2016 ALL MR (Cri) 468
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. B. CHAUDHARI, J.

Amol Nilkanth Awaghan Vs. The State of Maharashtra

Criminal Appeal No.1 of 2013

29th June, 2015.

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. P.V. BHOYAR

Penal Code (1860), Ss.376(2)(f), 377 - Rape or attempt to rape on minor - Evidence and proof - Prosecutrix, a 9 yrs. old girl stated that appellant took her in cattle-shed and committed rape on her - Versions of prosecutrix and complainant were corroborated by FIR, filed immediately after incident - Even when Medical Officer asked history of case, prosecutrix immediately disclosed about appellant committing rape on her - It can be inferred that rape was complete - Additionally, medical evidence that oozing of profused blood was certainly indicative of rape on prosecutrix - Offence of rape proved - Conviction u/S.376(2)(f) proper.

2013 ALL MR (Cri) 2004, 2014 ALL MR (Cri) 3863, 2012 ALL MR (Cri) 160 Disting. (Paras 5, 6, 7, 8, 9, 10)

Cases Cited:
Vijay Abhiman Barahate Vs. State of Maharashtra, 2013 ALL MR (Cri) 2004 [Para 3]
Umesh s/o Ramesh Supe Vs. The State of Maharashtra, 2014 ALL MR (Cri) 3863 [Para 3]
Vasant Hindurao Patil Vs. The State of Maharashtra, 2012 ALL MR (Cri) 160 [Para 3]


JUDGMENT

JUDGMENT :- Being aggrieved by judgment and order dated 28.11.2012 in Sessions Case No.126/2011, by which the appellant was convicted for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.7,000/- in default to undergo rigorous imprisonment for one year, this appeal was preferred by the appellant.

FACTS:

2. It is the case of the prosecution that on 10.06.2011 at about 7.00 a.m. the prosecutrix, who is a minor girl of 9 years, was at house when the appellant-accused Amol Nilkanth Awaghan came to her house, watched television for some time and then told her that her toys were lying in the field and should collect them. At about 8.30 a.m., she went to bring her toys when the appellant followed her in the field and took her to cattle-shed and committed rape on her. Thereafter, he went away. The prosecutrix came from the road weeping and told the incident to her mother and, thereafter, the FIR was lodged with Police Station vide Crime No.11/2011. The accused pleaded not guilty and as such was tried. The appellant was convicted for the offence of rape of minor girl and was sentenced as above. Hence, this appeal.

SUBMISSIONS:

3. Mr. Daga, learned counsel for the appellant, submitted that the evidence of PW1-Ku. S. ought to have been rejected by the trial court since she was a child witness and she admitted in the cross-examination that she was deposing before the Court as told to her by police. He then submitted that she was, therefore, tutored to depose against the appellant in the court and there was enmity between the parties as earlier a quarrel took place between father of the accused Amol and uncle and aunt of prosecutrix for keeping bullocks in the shed as bullocks of the accused who used to tie them in the cattle-shed of father of the prosecutrix. He, therefore, submitted that it was risky to rely on the evidence of the prosecutrix. At any rate, according to him, in the alternative, looking to the medical evidence, there was hardly any evidence about the actual commission of rape and at the most, looking to the entire medical evidence, it can be said that an offence of attempt to commit rape could be constituted and nothing more and, therefore, sentence of appellant deserves to be reduced.

Learned counsel for the appellant relied on judgments in Vijay Abhiman Barahate..vs..State of Maharashtra; 2013 ALL MR (Cri) 2004, Umesh s/o Ramesh Supe ..vs.. The State of Maharashtra; 2014 ALL MR (Cri) 3863 and Vasant Hindurao Patil ..vs.. The State of Maharashtra, 2012 ALL MR (Cri) 160.

4. Learned A.P.P. for the State opposed the appeal and submitted that the medical evidence does not suggest mere intention to commit rape but suggest that there was, in fact, rape committed by the appellant. The learned A.P.P., therefore, prayed for dismissal of appeal.

CONSIDERATION:

5. I have read the evidence of PW1-Ku. S., her mother PW-2 Manda and PW-3 Dr. Anjali. It is clear from the evidence of these witnesses that the FIR was lodged by mother immediately after the incident was reported to her by the girl. The version of PW1-Ku. S. and PW2-Manda is, therefore, fully corroborated by the FIR. The prosecutrix, in clear cut terms in her examination-in-chief in paragraphs 3, stated the incident with necessary details. I quote paragraph 3 of her evidence, which reads as under:

"3. At cattle shed accused removed my nicker. The accused put bedsheet on ground. He told me to sleep on that bed sheet. Accordingly, I slept on said bed-sheet. The accused slept on my person. The accused inserted his penis in my private part. Therefore, blood oozed from my private part. I asked the accused to leave me. He did not leave me. The accused went towards place where bullocks were tied. I ran away from the place."

6. After the incident, she ran away from the field and came home and was weeping in the house with severe pain in her private part. Therefore, she made enquiries from her and she told the incident of rape to her mother and thereafter they went to Police Station. I quote paragraph 2 from the evidence of PW2-Manda, which reads thus:

"2. My daughter told me that accused Amol took her in the field at cattle shed (Mandav). She further told that accused spread bed-sheet on ground and made her to sleep on it. My daughter further told that the accused removed his pant and slept on her person. My daughter further told that the accused inserted his penis in my private part. Therefore she had a pain in her private part. My daughter came to house by weeping. My husband was at Rajura. He went to Rajura for supply of milk. I was suffering from fever. I asked my sister-in-law to give ring to my husband. My husband came to house. My husband, my brother-in-law, my sister-in-law took my daughter Sandhya in police station for filing report."

7. Insofar as defence about the quarrel about tying of bullocks in the cattle-shed of PW2-Manda is concerned, there was no details nor specific instance of the alleged quarrel suggested in the cross-examination and mere cursory reference thereto would not be enough to believe the defence, particularly when the evidence of the prosecutrix and her mother is trustworthy. That apart, there is a very strong evidence of PW3-Dr. Anjali, who examined the girl. In paragraphs 3 to 6 of her evidence, PW3-Dr. Anjali deposed thus:

"3. Before examination, I obtained history from the victim. The victim told me history of intercourse by Amol Nilkanth Avghan on herself at 8.00 a.m. on 10-06-2011. History was noted down in proforma.

4. On medical examination, I found that her secondary sexual character was not developed. Her hymen was ruptured at 6 O'clock position. Bleeding was present and admits one tip of finger.

5. I did digital examination. It was very painful. Vaginal tenderness was noticed. Accordingly, I issued certificate. It is on record. It bears my signature. It contents are true. It is at Ex.22.

6. During medical examination vaginal swab and blood sample were collected. They were handed over to Lady Police Constable Vandana. Clothes on person of victim were handed over to lady constable. Police made queries with me. I gave answers in queries on back side of Ex.22. Those queries are in my handwriting. They bear my signature. Their contents are correct. It is at Ex.22-A. OPD card and discharge card are in my handwriting. It bears my signature. Their contents are true. They are at Ex.23 and Ex.24."

8. Reading of the evidence of Dr. Anjali shows that when she examined the prosecutrix on the same day at 3.05 p.m., she told her the incident of intercourse by appellant with her when she was asked the history of the case, which is again a corroboration by way of immediate disclosure about the appellant committing rape. The medical evidence in the above paragraphs in terms shows that the only inference that can be drawn is that rape was complete and there was no attempt to commit rape as contended by learned counsel for the appellant. It would be appropriate to quote paragraphs 35 to 39 from the impugned judgment with which, I fully agree.

"37] On the basis of these admissions learned defence counsel urged that if there was rape on the prosecutrix certainly there must be some injury to vulva. In case in hand vulva of the prosecutrix was in normal condition. There are various reasons for rupture of hymen. Hymen can be ruptured due to itching. Urine infection is common in girls of rural areas. Hymen of the prosecutrix might have been ruptured due to any other reason and not because of rape.

38] I do not agree with this submission of learned counsel. When the prosecutrix was examined by Dr. Meshram, she noticed bleeding in vagina of the victim. Hymen was ruptured at 6'O clock position. Digital examination of victim was painful. Dr. Meshram also noticed vaginal tenderness. These facts are indicative of the offence of rape. Possibility of rape cannot be ruled out only because vulva was in normal position. Version of minor prosecutrix that the accused did forcible sexual intercourse with her will prevail over.

39] It is brought to my knowledge by the learned Public Prosecutor Shri Ambatkar that due to profuse bleeding through vagina of the prosecutrix she was admitted at General Hospital, Chandrapur for three days. He has drawn my attention to discharge card Ex.24. It shows that the prosecutrix was admitted at General Hospital, Chandrapur during 10-6-2011 to 14-6-2011. Oozing of profused blood is certainly indicative of rape on the prosecutrix."

9. I have gone through judgments cited by learned counsel for the appellant. On facts, those judgments have no application since the evidence in the present case is clearly of actual commission of rape and not attempt to commit rape.

10. In the result, I find that the offence was clearly proved. The alternate submission that there was an attempt to commit rape and not rape cannot be accepted. The judgment of the trial Court cannot be faltered and must be upheld. In the result, I pass the following order.

ORDER

(i) Criminal Appeal No.1/2013 is dismissed.

Appeal dismissed.