Criminal Appeal No.188 of 2009

7th January, 2013

Petitioner Counsel: Mr. D.G. KHAMKAR
Respondent Counsel: Ms. R.M. GADHVI

JUDGMENT

JUDGMENT :- This appeal is directed against appellant's conviction by the learned Additional Sessions Judge, Pune for the offences punishable under Sections 376(2)(f) and 506 of the Indian Penal Code and sentence of rigorous imprisonment for a period of ten years with a fine of Rs.5,000/- or in default of payment of fine further rigorous imprisonment for a period of six months and sentence of rigorous imprisonment for a period of one year with a fine of Rs.1,000/- or in default of payment of fine further rigorous imprisonment for a period of three months respectively on the two counts imposed upon him on the conclusion of trial of Sessions Case No.460 of 2005.

2. Facts which are material for deciding this appeal are as under :-

The appellant resides in a hut adjacent to the hut of victim's family. On 30th May, 2005, in the afternoon the appellant called the victim, a six years old girl to bring bidi for him. After that he took that victim inside his house and making her lie down on a coach mounted himself upon her. Her sister possibly knocked at the door. Therefore, the appellant opened the door and victim went out. The victim was given Rs.3/- by the appellant. The victim reported a matter to her sister and eventually to her mother. A report about the incident was given immediately on the same day. The report, however, did not mention commission of any rape by the appellant. It seems that on the next day, when the victim was sent for medical examination, it was revealed that the victim had an abrasions and inflammation present on labia majora, the hymen was torn at 6 O'clock position and one finger per vaginal examination was possible. Then an offence punishable under Section 376 was registered. In course of investigation, police performed panchanama of spot, recorded statements of witnesses, arrested the appellant, seized appellant's clothes as well as victim's clothes and sent those clothes to the Forensic Science Laboratory along with biological samples which were collected by the Medical officer. On completion of investigation, police sent charge sheet to the Additional Chief Judicial Magistrate, Pune, who committed the case to the Court of Sessions at Pune.

3. The learned Additional Sessions Judge to whom the case was made over charged the appellant for the offences punishable under Sections 376 and 506 of the Indian Penal Code. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all five witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant is before this Court.

4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Latabai Dattatraya Madane is victim's mother, who stated about the incident as she learnt from her daughter. She proved her report at Exhibit 19. PW-2 is the victim herself, who stated that the appellant had taken her inside his house and after removing her undergarments, mounted himself upon her. She stated that on her sister's knocking the door, the appellant opened the door and let her go after paying Rs.3/-. The evidence of PW-3 Mehtabbi Usman Shaikh - Sayyad about the seizure of victim's clothes is rendered unuseful because the reports of the Forensic Science Laboratory at Exhibit Nos.40 to 42 are inconclusive. PW-4 Dr. Supriya Sharad Kolte had examined the victim on 31st May, 2005 and found that there was recent abrasions present on medial side of both labia majora. Inflammation was present. Hymen was torn at 6 O'clock position. She concluded that the injuries were possible only by penetrative intercourse. PW-5 PSI Ramdas Rajaram Shelke conducted investigation. He denied the suggestion that because the appellant's daughter and other relations had come to the police station and had created commotion, he was annoyed and he, therefore, changed the offence from one punishable under Section 354 to Section 376 of the Indian Penal Code.

5. The learned counsel for the appellant pointed out that victim's sisters Ashwini and Akshada, who were playing in the neighbourhood should have been the best witnesses, but they have not been examined. He also pointed out that the incident occurred in a hutment where all huts are close by and therefore, if such incident did take place, there would have been somebody to notice it. He also pointed out that the appellant's wife was, according to the witnesses, cleaning utensils nearer the hut and therefore, the incident was not possible. He also pointed out that there is absolutely no evidence about the victim having been sent to purchase the bidi. Therefore, according to the learned counsel for the appellant, the learned trial Judge erred in relying on the interested words of victim and her mother about the manner in which the incident took place. The learned counsel for the appellant pointed out that the victim herself had admitted in her cross examination that prior to to the incident, there was a quarrel between the appellant and victim's mother.

6. The learned Additional Public Prosecutor is right in submitting that merely because there was a quarrel between the appellant and victim's mother, it would not follow that the victim's mother or parents would go to the extent of making an injury to their own daughter to make a false allegation against the appellant. It is not shown that the quarrel was so severe as to propel first informant to injure her daughter for the purpose of making a false accusation. The learned Additional Public Prosecutor also submitted that the learned trial Judge has properly dealt with the question of independent evidence being not available, since the incident took place only two minutes. The learned Additional Public Prosecutor submitted that it was not necessary to collect corroborative evidence about the victim's going for purchasing bidis at the appellant's behest, since victim's word was sufficient to convince the learned trial Judge.

7. The learned counsel for the appellant submitted that the case is falsely concocted as could be seen from the delay in recording statement of victim. Victim's statement was recorded on 4th June, 2005 when the incident took place on 30th May, 2005. He submitted that victim's mother, PW-1 Latabai Madane had stated that victim's statement was also recorded on the same day when she had gone to the police station with the victim and her other daughter. The learned counsel for the appellant points out that in fact, from the evidence of PW-5 Ramdas Shelke it seems that the statement of victim was recorded on 4th June, 2005. He, therefore, submitted that victim's mother is obviously not telling the truth. It would be improper to decide whether reliance could be placed on the evidence of victim's mother or her evidence could be rejected only because she did not correctly state the time at which her daughter's statement was recorded. Therefore, this discrepancy in the evidence of PW-1 Latabai Madane and PW-5 Ramdas Shelke is immaterial. As for the delay in recording victim's statement, since she was in hospital till 3rd June, there is nothing abnormal in recording her statement on the 4th June. It cannot be forgotten that victim was just 6 years old at that time and was hurt.

8. The learned counsel for the appellant next submitted that the prosecution had not tendered at the trial any Medical Certificate to show that the appellant was, in fact, capable of performing any sexual act. He made available for my perusal School Leaving Certificate of the appellant to show that the appellant was born on 1st June, 1942. Thus, according to the learned counsel, the appellant was about 63 years old at the time of incident and therefore, should not have been in a position to perform sexual act. Now, if the appellant wanted to rely on such a factor, none prevented him from getting himself medically examined to rule out his participation in the sexual act. The learned counsel for the appellant submitted that it was for the prosecution to prove all aspects of the matter and therefore, the prosecution should have shown that the appellant was capable of performing sexual act. There can be no doubt that it would have been ideal for the prosecution to get Medical Certificate about appellant's ability of performing sexual act, but it's absence cannot result in an inference which would not be normal. The appellant is not shown to be so old as to be incapable of performing sexual act. Therefore, merely because the prosecution has not provided Medical Certificate to show that the appellant was capable of performing sexual act, it would not follow that the appellant could not perform sexual act.

9. The learned counsel for the appellant submitted that indulging in acts which resulted in victim having abrasions and a torn hymen, ordinarily, should have led to noticeable bleeding. He submitted that after noticing this bleeding ordinarily, the relations of the victim and victim's mother should have insisted on registration of case of rape and immediately sending the victim for medical examination. There can be no doubt that ordinarily, such injuries should have produced bleeding. However, there is no evidence to show that there was bleeding. This need not mean that there was no bleeding. There can be several reasons why victim's family may not have chosen, even after noticing the bleeding, to allege that the daughter was ravished. Though after three days, the investigating officer chose to register an offence of rape, there is nothing abnormal in the way the investigating officer has proceeded.

10. The learned counsel for the appellant next submitted that according to the victim, she had been told by Yogita and Sangita as to what she should state before the police. Therefore, the learned counsel for the appellant submitted that it is a clear case of victim's having been tutored to make out a false case against the appellant. The appellant could have gone with either the theory of enemity or quarrel with victim's mother or with Yogita and Sangita, as was suggested to PW-1. There can not be so many reasons for falsely implicating the appellant. In fact, had the victim's family an axe to grind against the appellant and wanted to falsely implicate the appellant by alleging that their daughter was raped, they would have done so when PW-1 reported the matter to police. This was not done. The report at Exhibit 19 does not mention rape. And, there is no possibility of the victim having been injured after the report was given.

11. The learned counsel for the appellant next submitted that the victim's evidence should not have been believed by the learned trial Judge because she stated that the appellant had put on T.V., whereas panchanama of the spot at Exhibit 38 does not show any T.V. set in the room concerned.

12. I have carefully considered these several discrepancies which the learned counsel has mentioned. However, these do not out weigh the word of the victim that she had been raped by the appellant. There would have been no reason for a six years old child to falsely implicate accused - the appellant in the matter of rape and there would be no reason for the victim's family to have their daughter injured only for the purpose of settling scores with the appellant with whom victim's mother had some minor dispute about wall. Therefore, the learned trial Judge cannot be faulted for having accepted the evidence of the victim, the victim's mother and PW-4 Dr. Kolte about victim having been raped by the appellant.

13. The learned counsel for the appellant is, however, right in submitting that according to the victim's account, there is absolutely no word that the appellant intimidated the victim or threatened or put her in any sort of fear. He submitted that the victim herself had stated that after the incident since the appellant had given her Rs.3/-, the victim had gone to some shop to purchase sweets. This would rule out any intimidation on the part of the appellant.

14. In view of this, conviction of the appellant for the offence punishable under Section 376(2)(f) of the Indian Penal Code would have to be upheld, since the victim was 6 to 8 years old as per the Certificate at Exhibit 29 at the time of incident. However, appellant's conviction for the offence punishable under Section 506 of the Indian Penal Code would have to be set aside. The learned counsel for the appellant next submitted that according to the School Leaving Certificate produced by him, the appellant is 71 years old now. He submitted that considering the age of the appellant and the fact that he has already undergone 7 years of imprisonment including remission, and as the appellant is also suffering from some ailments, the sentence may be reduced to that already undergone. The learned counsel for the appellant submitted that provisions of Section 376 enable the Court to reduce to sentence for the reasons to be recorded. The learned Additional Public Prosecutor has a very strong objection to such a course. The learned Additional Public Prosecutor submits that legislature has in its wisdom prescribed punishment for a minimum period of ten years for such offence and there are no good reasons in this case to depart from this. The learned Additional Public Prosecutor further rightly submits that this was heinous act on the part of the appellant with the victim, who was like her grandfather. Therefore, in my view, there is no case for any leniency to be shown to the appellant.

15. In view of this, Appeal is partly allowed. Conviction of the appellant for the offence punishable under Section 376(2)(f) and sentence of rigorous imprisonment for a period of ten years with a fine of Rs.5,000/- or in default of payment of fine further rigorous imprisonment for a period of six months is maintained. His conviction for the offence punishable under Section 506 and sentence of rigorous imprisonment for a period of one year with a fine of Rs.1,000/- or in default of payment of fine further rigorous imprisonment for a period of three months is set aside.

Appeal partly allowed.