Criminal Appeal No.516 of 2004

23rd July, 2012

Petitioner Counsel: Shri R.H. RAWLANI
Respondent Counsel: Shri K.L. DHARMADHIKARI

Cases Cited:
Bhagat @ Rikhman Mahabal Maurya Vs. The State of Maharashtra, 1986 (2) Bom.C.R. 175 [Para 11]
M.S.Yadav Vs. State of Maharashtra, 1994 B. Cr. C. 3 (Bom) [Para 12]
Pramod Gopichand Thakare Vs. State of Maharashtra, 2009 ALL MR (Cri) 3169 =2009 (4) Mh.L.J. (Cri) 414 [Para 13]
Mohd. Kalam Vs. State of Bihar, 2008 ALL MR (Cri) 2892 (S.C.) =2008 (3) Mh.L.J. (Cri) 287 (SC) [Para 14]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order dt.26.7.2004 passed in Sessions Trial No.348 of 1997 by the learned 4th Additional Sessions Judge, Nagpur whereby the appellant/accused was convicted of the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine in the sum of Rs.1,000/-, in default to undergo further rigorous imprisonment for a period of one month. The accused was also found guilty of the offence punishable under Section 506 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine in the sum of Rs.1000/-, in default to suffer rigorous imprisonment for a period of one month. However, the accused was acquitted of the offence punishable under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act").

2. The facts, briefly stated, are as under :

Prosecutrix Vandana, aged about 14 years, on 3.2.1997, had gone to the agricultural field situated at village Nisatkheda along with her mother and other women from her village for doing labour work. At that time, the prosecutrix was resident of village Susdoh. On the day of incident i.e. on 3.2.1997, at about 10.00 a.m., the prosecutrix was called by the accused for doing labour work in his agricultural field and accordingly, she reached there. While the prosecutrix was busy doing labour work at the small bund erected for the purpose of cultivation of paddy crop, the appellant/accused caught hold of her, brought her down on the ground, gagged her mouth by pressing her hand and removing her underwear, he performed forcible sexual intercourse with her. It is alleged that, in the said process, the bangles of the prosecutrix were broken and she had also sustained abrasions on her back portion. After performing rape, the accused threatened her not to disclose the fact to her mother or otherwise he would kill her. The prosecutrix went back weeping to her mother and other agricultural labourers who were present there namely Kankibai, Parvatibai, Sakhubai and Ramolabai who were busy doing labour work in other field. Kankibai Netam (PW-6) advised the prosecutrix to lodge report at the Police Station, Ramtek which was about 20 kms. away from Nisatkheda. Accordingly, report was lodged at the Police Station as per Exh.38. The prosecutrix was referred to the Rural hospital, Ramtek to undergo medical examination on the day of incident. The appellant/accused was arrested on the same day at about night time. He was also medically examined on the following day. During the course of investigation, the police drew spot panchanama as also seized the clothes of the alleged victim as well as the accused and the seized articles were referred to the Chemical Analyser for examination and furnishing report. After completion of investigation, the accused was charge sheeted before the learned Judicial Magistrate, First Class, Ramtek and the case was committed for trial to the Sessions Court, Nagpur.

3. Thus, the accused was charged for the alleged offences punishable under Sessions 376 and 506 of the Indian Penal Code and also under Section 3(1)(xi) of the Atrocities Act. The accused pleaded not guilty and claimed to be tried. Prosecution had examined nine witnesses in support of the prosecution case and closed its evidence. While the accused had also examined one witness - his wife namely Chhayabai (DW-1).

4. In the trial Court, it appears that the prosecution had listed documentary evidence as per Exh.11. Sixteen documents were listed, out of which the documents at Serial Nos.1, 2, 6, 7, 8, 9 and 11 were admitted including medical examination papers in respect of the victim. From the evidence led before the Court, the defence did not seriously dispute presence of accused and Vandana in the agricultural field at the relevant time as also the spot of occurrence. According to the victim, she was called to the agricultural field by the accused for doing labour work. At the outset, it may be noted that, after the alleged rape, the prosecutrix was referred for medical examination with medical requisition letter (Exh.12) and report of the Medical Officer (Exh.13), in which it is mentioned that the Medical Officer had examined Ku. Vandana Chotelal Netab (prosecutrix) brought to Cottage hospital, Ramtek and she observed thus :-

"1. On physical examination - pubic hair present - scanty, breast developed, apparently her age is about 14-16 yrs.

2. Multiple abrasion over the back present - might have caused due to fall over the rough surface.

3. As per vaginal examination - hymen tear off. Vagina is virgin.

No bleeding from the vagina seen. No seminal fluid seen. Pubic hair, vaginal swab for sperm examination is taken. Blood from vein is taken for blood examination and handed over to L.P.C. Suvarna Ramteke.

No s/o struggle seen over the breast and thigh.

Opinion - Exact opinion about sexual intercourse cannot be given."

Identically, by the medical requisition (Exh.14), the accused was also referred for medical examination and it was found thus :-

"1. He is potent (able to erect the penis) and capable to do sexual intercourse.

2. No s/o. struggle observed on any part of the body.

3. Venous blood, seminal fluid and public hair - taken and handed over to P.C. B.No.6, P.S., Ramtek.

4. Smegma absent.

Opinion - Exact opinion about the sexual assault cannot be given."

But his potency and absence of smegma were significant observations by doctor.

5. Another important document which is on record is the report from the Chemical Analyser (Exh.25) in respect of examination of the clothes of the victim as well as the accused. It is pertinent to note that Article No.6 described as jangya; belonging to Vandana was found stained with blood in the middle and appears to be washed was found stained with blood group of "O". This appears corroborative evidence to main evidence of Vandana (PW-7). Regarding mixing of human hair at item no.3 with human hair item no.9 as also the blood group of semen could not be determined. Coming back to the oral evidence, it appears that the prosecutrix was examined as PW-7. According to her, she knew the accused who belongs to village Nisatkheda and used to go for labour work at that village along with her mother and other women in the village. Deposing about the incident, she stated that, at the time of incident she was about 14 years old. She had gone to village Nisatkheda along with her mother and Kankibai, Ramolabai, Parvatabai and Sakubai and they were doing labour work in the field of Devkya for about four days. After that time, wife of the accused had been to them for demanding one lady worker for the work to be done in her field and the prosecutrix had gone along with the wife of the accused at the instance of wife of Devkya. On that day, when she went to do the work in the field of the accused, the accused was not present. But, on the next day, the accused asked her to accompany him to his field for doing work. Accordingly, she went to the field of accused. The prosecutrix and the accused were arranging the pipes in the field. When the prosecutrix was lifting a pipe for keeping it in a Bandhi, the accused caught hold of her, fell her down, removed her clothes and sat on her person. The prosecutrix was crying, but the accused asked her not to cry. Thus, the accused had sexual intercourse with her and thereafter, he threatened her to kill her in case she discloses the incident to anybody. The prosecutrix when went back home, she narrated the incident to her mother. At that time, other women namely Mandabai and Parvatabai were present. Thereafter, she along with her mother and one Chindu went to Police Station, Ramtek and gave report to police as per Exh.37. F.I.R. was lodged as per Exh.38. The doctor examined the prosecutrix and certified the injuries she had sustained on her back. Her bangles were broken because of force used by the accused. The Spot of Occurrence was pointed out to police, wherefrom the pieces of bangles and stones of mud were seized. Her clothes were also recovered which were stained with blood, although she had washed her clothes.

6. It appears that when the prosecutrix deposed before the Court that she is a married woman. She was cross-examined at length; but, nothing could be elicited from her so as to give rise to doubt her version, particularly when - the version of the prosecutrix appears to have been amply corroborated by Parvatibai Kumbhare (PW-5) and Kankibai Netam (PW-6). It is in the evidence of Parvatibai (PW-5) that, on the day of incident, prosecutrix along with Kankibai, Ramolabai and Sakhubai had gone to the field of Chindu Mahadule. On that day, Vandana was required to go to the field of accused for work. Initially, Vandana was with Parvatibai, Kankibai and Sakhubai; but, on the say of wife of the accused, she had gone to the field of the accused. At about 11.00 a.m. Vandana came to them weeping and told that accused had sexual intercourse with her in the field. Kankibai (PW-6) also corroborated the version of the prosecutrix. Both these witnesses are about the circumstances narrated to them by the prosecutrix soon after the incident of rape and although both of them were cross-examined at length, nothing appears to have been elicited so as to disbelieve the version of the prosecutrix.

7. Rest of the evidence of prosecution consists of deposition of pancha namely Yogiraj Mahadule (PW-1) who was working at Police Station, Ramtek as a Station diary incharge and who had recorded F.I.R. The accused while denying the crime appears to have admitted about seizure of his clothes, sample of blood semen, pubic hair from him as also the medical examination. When he was questioned while recording of his statement u/s.313 of the Code of Criminal Procedure as to why the witnesses are deposing against him, while answering Question no.29 therein, he replied as under :

"I had given my field on 'batai' basis to one Yogiraj Mahadule. He had taken 50 bags of paddy and six quintals of Soyabean in respect of which I demanded my share (half), on which he avoided to make payment by saying he was not then having any money and would pay me later as and when it become possible. I then told him not to take the harvested crop. But he sent Vandana to my field. Vandana lifted a pipe and broke it down. So, I beat up Vandana due to which she fell down breaking her bangles and receiving abrasions on her back. Then, Yogiraj made her file a false complaint against me. At that time, my wife was present there."

8. Thus, adapting such a defence, the accused examined his wife Chhayabai as defence witness, who also narrated the like version that the accused had given land to Yogiraj on batai basis in the year 1996. It was decided between them that, after harvest of paddy, same will be shared between them on half each basis. The paddy crop was harvested in January, 1997, however, Yogiraj did not give half share to her husband. Hence, quarrel took place between Yogiraj and her husband. Somraj demanded accounts of all the crops from Yogiraj. Yogiraj stated that he would look into the matter after second crop is harvested. Thereupon, Somraj said to Yogiraj that he would not let in labourers of Yogiraj in his agricultural field from the next day onwards. On the next day morning, at 9.30 a.m. when Chhayabai and Somraj went to their field, Vandana was working in the field. She was the labourer brought by Yogiraj. Her husband had asked Yogiraj not to send any labourer still he sent Vandana to their field. At that time, her husband was lifting the pipes to arrange them properly. At that time, Vandana came and started to lift pipe. Thereafter, her husband questioned Vandana as to why she came for doing work, though he had prohibited Yogiraj from sending the labourers. Her husband also asked Vandana not to lift the pipe. At that time, the pipe held by Vandana fell on the ground and got broken. Her husband slapped her on her face due to which she fell down on ground and her bangles got broken. Vandana sustained abrasions on her back and she went weeping to the house of Yogiraj. Thus, Chhayabai (DW2) persuaded his version saying that I am aware as to what happened thereafter.

9. In the present case, therefore, when the accused has entered into defence and chose to lead evidence of one witness in support of his defence made out in answer to questions u/s. 313 of the Code of Criminal Procedure, the evidence led by the defence ought to be kept in juxtaposition with the prosecution evidence so as to decide upon preponderance of probabilities as to whether the defence version can be accepted as probable considering the evidence led by the prosecution. In the present case, considering the evidence of prosecutrix Vandana, Parvatibai (PW-5), Kankibai (PW-6) and the documentary and circumstantial evidence on record, the defence version considered in juxtaposition with the evidence led by prosecution cannot create doubt about the prosecution evidence. It cannot be believed that the prosecutrix would go to the extent of making serious accusation of rape against the accused to risk her own character. Her version is not only supported by Parvatibai (PW-5) and Kankibai (PW-6) but also by circumstantial evidence in the form of her medical examination as also C.A. report. The learned Advocate for the appellant argued that no definite opinion was given by the Medical Officer regarding commission of rape upon the prosecutrix. He, therefore, submitted that defence did not dispute medical examination report and admitted the document. The learned A.P.P., on the other hand, submitted that the medical examination of prosecutrix, notwithstanding absence of opinion of the doctor, indicated rupture of hymen as also bleeding caused by the incident. Underwear of the prosecutrix which was referred in respect of examination to C.A. was also found stained with blood group "O" which was blood group of prosecutrix. Under these circumstances, it is contended that there was sufficient corroboration to the evidence of prosecutrix and other witnesses supporting the prosecution and against her evidence, the defence version was such which cannot be believed. It is contended that the learned trial Judge, therefore, disbelieved the defence version and relied upon the evidence led by the prosecution and recorded satisfaction that the offence was proved beyond reasonable doubt.

10. The learned Advocate for the appellant submitted that the time of rupture of hymen was not mentioned by the Medical Officer, who examined the prosecutrix and she had not observed bleeding but found the vagina virgin. On the other hand, according to the learned Advocate for the appellant/accused, the accused was examined on the following day, although he was arrested on 3rd February, 1997, at about 20.45 hours. The Certificate showing the accused potent and capable of doing sexual intercourse as also the observation as to absence of smegma are not disputed.

11. The learned Advocate for the appellant made a reference to the ruling in the case of Bhagat @ Rikhman Mahabal Maurya vs. The State of Maharashtra reported in 1986 (2) Bom.C.R. 175 to argue that the Bombay High Court had set aside conviction u/s.376 of the Indian Penal Code in respect of the prosecutrix aged about 7 years on the ground that the evidence of the doctor had showed that the very sign on the person of the child indicated that she had not been raped. There was minimal bleeding from the vagina that did not indicate rape having regard to the insignificant quantity. However, vaginal bleeding as such could be consistent with the evidence of sexual intercourse and there was no evidence of callousness or negligence on the part of the doctor. The ruling in question regarding evidence of doctor and appreciation thereon could not be attracted in the present facts and circumstances of the case - because, in the present case, medical examination report itself was not disputed and it was admitted in the course of trial when notice u/s.294 of the Code of Criminal Procedure as per Exh.11 was given to the defence calling upon them to admit or deny genuineness of the documents.

12. Learned Advocate for the appellant also made a reference to the ruling in M.S.Yadav .vs. State of Maharashtra reported in 1994 B. Cr. C. 3 (Bom). It was a case of attempt to commit rape on a minor girl. There was sole testimony of the prosecutrix not corroborated by the medical evidence as also absence of injury marks on the body of prosecutrix. It was held that the medical evidence does not lend necessary corroboration to the evidence of prosecutrix. It was inconsistent with the injuries sustained by fall when the private part of the prosecutrix may have come in contact with a hard and blunt object. In that case, the accused was arrested after 12 days from the date of incident. In the facts and circumstances, therefore, it appears that the Bombay High Court had concluded that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt.

13. The learned Advocate for the appellant herein also submitted in the alternative that, if conviction is maintained on the basis of evidence, the offence may be converted into an attempt to commit rape since the Medical Officer was not examined due to admitted medical examination report. He made a reference to the case of Pramod Gopichand Thakare .vs. State of Maharashtra reported in 2009 (4) Mh.L.J. (Cri) 414 : [2009 ALL MR (Cri) 3169]. In that case, the victim was aged about11 years. This Court found on the basis of medical evidence that her pubic and auxillary hairs were not developed, breasts were not well developed. Labia majora was found completely covering the labia minora and she was not capable of performing intercourse. Slight inflammation was seen over upper margin of labia manora. Under these circumstances, when vulva was intact and no tear of hymen was seen, considering the age of the victim and the evidence, the conviction was altered to Section 376 r/w. Section 511 of the Indian Penal Code.

14. My attention is also invited to the ruling in Mohd. Kalam .vs. State of Bihar reported in 2008 (3) Mh.L.J. (Cri) 287 (SC) : [2008 ALL MR (Cri) 2892 (S.C.)]. In that case, the victim was aged about six years at the time of incident and in the facts and circumstances of the case, the Apex Court had recorded conviction u/s.376 (2)(f) r/w. Section 511 of the Indian Penal Code.

15. In the present case, the prosecutrix herein cannot be equated with the child victims as referred to in the rulings cited above. The facts and circumstances in the present case clearly indicate that the prosecutrix was aged about 14 to 16 years. Her pubic hairs were found as also her breast was developed. Therefore, prosecutrix Vandana in the present case cannot be equated with the prosecutrix mentioned in the rulings cited by the learned Advocate for the Appellant (cited supra). The evidence of prosecutrix who clearly stated that the sexual intercourse was committed with her by the accused under threat to kill her is corroborated by immediate narration of the incident by the prosecutrix to Parvatibai (PW-5) and Kankibai (PW-6). It was natural conduct of the prosecutrix to immediately narrate the incident to her mother and other fellow labourers in the agricultural field and even in the absence of deposition by medical witness, the oral evidence read along with the documentary evidence in the present case leaves no doubt in mind that the minor girl aged about 14 to 16 years was raped by the appellant/accused. As I cannot equate the case of the prosecutrix herein with the cases of the child victims in the aforesaid rulings, the submission of the learned Advocate for the appellant that the appellant herein may be convicted of lesser offence punishable u/s.376 r/w. Section 511 of the Indian Penal Code cannot be accepted. The fact that the prosecutrix narrated the incident of rape immediately to her mother and other labourers and the circumstantial corroboration to her evidence that there were abrasions on her back, hymen tear observed by the Medical Officer in the report as also blood stains found on her underwear belonging to "O" blood group, which was blood group of prosecutrix, absence of smegma in respect of medical examination of accused, broken bangles found on the spot of evidence all these circumstances taken together along with the oral evidence do not leave any doubt in the mind about rape being committed upon the prosecutrix. Her evidence cannot be disbelieved, particularly when she is deposing as a married woman after lapse of a period of six years from the date of the incident in the trial Court. Her oral report (Exh.37) lodged soon after the incident at Police Station, Ramtek and the evidence of other witnesses in the form of clinching evidence beyond reasonable doubt show that the prosecutrix was raped. The accused tried to invent afterthought defence in order to escape from serious accusations of rape. He did not venture to enter in the witness box himself, but tried to introduce his wife in order to create a make believe story. The defence evidence on considering in juxtaposition with the defence evidence led by the prosecution cannot inspire any confidence. The trial Court rightly disbelieved it and convicted the accused of the offence punishable under Section 376 and also Section 506 of the Indian Penal Code. Hence, there is no merit in the instant appeal. Hence, the appeal is dismissed.

Appeal dismissed.