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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 383 OF 2012
Mangesh s/o Pandurang Bokade,
Aged about 24 years,
Occupation - Labour Work,
R/o Bramhni, Ward No.4,
District Nagpur. .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Kalmeshwar, District Nagpur. .... RESPONDENT
______________________________________________________________
None for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent/State.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 02-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 06-11-2017
JUDGMENT :
The appellant is assailing the judgment and order dated 19-7-2012 delivered by the learned District Judge-1 and Additional Sessions Judge, Nagpur in Special Case 36/2011, by and under which ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 2 apeal383.12 the appellant (hereafter referred to as the "accused") is convicted for offences punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code and under Section 3(1)(xi) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and is sentenced to suffer rigorous imprisonment for a period of seven years and to payment of fine of Rs.1,000/- for offence punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code, to suffer rigorous imprisonment for a period of six months and to payment of fine of Rs.500/- for offence punishable under Section 3(1)
(xi) of the Atrocities Act and to suffer rigorous imprisonment for a period of five years and to payment of fine of Rs.1,500/- for offence punishable under Section 3(2)(v) of the Atrocities Act.
2. The appeal was called out on 10-10-2017, there was no appearance on behalf of the appellant. The appeal was adjourned to 11-10-2017 as part-heard since the learned Additional Public Prosecutor Shri A.V. Palshikar was heard in some detail. The Counsel for the appellant was put on notice that should there be no appearance on behalf of the appellant on 11-10-2017, the appeal would be decided on merits. Again, there was no appearance on behalf of the appellant ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 3 apeal383.12 when the appeal was called out on 11-10-2017. This Court intended to directed that the appeal be listed in the week commencing from 30-10-2017. However, due to inadvertence, it was recorded that the appeal be listed in the week commencing from 02-11-2017. In this view of the matter, although the appeal was called out on 31-10-2017 and there was no appearance on behalf of the appellant, this Court directed that the appeal be listed on 02-11-2017. Since there was no appearance on behalf of the appellant when the appeal was called out on 02-11-2017, this Court scrutinized the record with the able assistance of the learned Additional Public Prosecutor Shri A.V. Palshikar and reserved the judgment.
3. The case of the prosecution as can be culled out from the report lodged by the complainant Sangita Madavi on 05-6-2011, is thus:
The complainant Sangita, an employee of a rubber pipe manufacturing company located at M.I.D.C. Kalmeshwar, is a resident of Gire Layout, Bramhani, Tahsil-Kalmeshwar, District-Nagpur. The husband of the complainant Sudhakar is an employee of Espat Company MIDC, Kalmeshwar. The complainant is blessed with a daughter then aged 8 years and son Amit then aged 6 years. ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 :::
4 apeal383.12 The accused Mangesh Bokade then occupied a tenanted premises alongwith his brother and mother Ashabai, situated at the rear side of the residence of the complainant.
The complainant returned home from her work at 6-00 p.m. on 04-6-2011 and found the child victim and son sitted in the courtyard of the house. The child victim was visibly sad and sickly in appearance. The complainant asked the child victim to arrange the cleaned and washed utensils in the rack and was told by Amit that the child victim is suffering from pain in the private part and may not be asked to do the said chore. The complainant asked the child victim as to why she was suffering from pain and burning sensation in the private part. The child victim disclosed that accused Mangesh, to whom child victim used to refer to as "Mangesh Dada", had visited the house, taken the child victim to his house, closed the door from inside, made child victim lie down on the bed, removed her knicker, applied oil on her private part and then Mangesh unzipped his full pant, took out his penis and touched the same to the private part of the child victim and slept on her person. The child victim disclosed to the complainant that since the accused Mangesh inserted his penis in her private part, she cried out aloud due to pain. Mangesh got up from her person and offered Rs.10/- to the child victim and told her not to ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 5 apeal383.12 disclose the incident to the complainant. The child victim did not accept the amount and told Mangesh that he would disclose the incident to her mother. The accused Mangesh opened the door of the house and ran away. The child victim wore her knicker and returned home. The child victim further told the complainant that the incident occurred between 1.30 to 2-00 p.m. The report was lodged on the next day since the complainant waited for her husband to return and her husband returned home late night. On the basis of the said report, offences punishable under Section 376 of the Indian Penal Code and under Section 3(2)(xi) of the Atrocities Act were registered at Police Station Kalmeshwar. The culmination of investigation led to submission of charge-sheet before the learned Judicial Magistrate First Class, Kalmeshwar who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge for offences punishable under Section 376(2)(f), Section 376(2)(f) read with Section 511 of the Indian Penal Code and under Section (3)(1)(xi) and Section 3(2)
(v) of the Atrocities Act. The accused abjured guilt and claimed to be tried. The defence, as is discernible from the statement recorded under Section 313 of the Criminal Procedure Code and the tenor of the cross- examination, is of false implication.
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4. The prosecution examined eight witnesses including the complainant Sangita (P.W.1), Sudhakar, the father of the child victim (P.W.2), Rahul Deshmukh (P.W.3) who was examined to prove the spot panchanama, the child victim (P.W.4), Onkar Sarode (P.W.5), Dr. Sachin Wankhede (P.W.6) who examined the child victim, Devanand Kuril (P.W.7) who proved the oral report and the printed first information report (Exhibit 22 and Exhibit 23 respectively), Anil Shivrao Raut (P.W.8) who proved the arrest form Exhibit 68.
Accused did not dispute seizure memo pertaining to seizure of clothes of child victim Exhibit 24, caste certificates Exhibit 25 and 26, hospital card Exhibit 31, referral card Exhibit 32, requisition for medical examination of accused Exhibit 33, medical report Exhibit 34, form II Exhibit 35, special report Exhibit 36, order deputing investigating officer Exhibit 37, certificates Exhibits 38, 39, 40, 41 and 42 seizure memo pertaining to seizure of samples regarding child victim Exhibit 45, seizure memo pertaining to seizure of clothes of accused Exhibit 46, seizure memo regarding seizure of samples regarding accused Exhibit 47, forwarding letter alongwith muddemal sent for chemical analysis Exhibit 49, and invoice challan Exhibit 48. The accused did not dispute arrest form Exhibit 68 and correspondence made by investigating officer during investigation Exhibits 65, 66 and ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 7 apeal383.12
67.
5. The child victim is examined as P.W.4. She was aged 9 years when her evidence was recorded. She was not administered oath. Her version in the examination-in-chief is consistent with the oral report lodged by the complainant. The version of the child victim is not seriously challenged. The only suggestion given in the cryptic cross-examination is that the child victim fell down while playing which was the cause of pains in private part and that she was narrating the incident on the say and at the instance of the complainant. Both the suggestions are denied. The evidence of the child victim is confidence inspiring.
6. The complainant Sangita is examined as P.W.1. She has deposed consistent with the contents of the oral report. She has proved the oral report Exhibit 22 and the printed first information report Exhibit 23. She has proved the seizure memo Exhibit 24 and the caste certificates Exhibit 25 and 26. Her evidence that she belongs to Gond community and that the accused belongs to the Kunbi caste has gone unchallenged. Indeed, virtually the entire testimony of the complainant (P.W.1) has gone unchallenged. The only suggestion ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 8 apeal383.12 given to the complainant, who is the mother of the child victim, is that the child victim fell while playing which caused pain in her private part. A general suggestion is given that the incident did not happen and that the report lodged was false. Both the suggestions are denied.
7. The father of the child victim Sudhakar is examined as P.W.2 who states that when he returned home at 9-00 p.m. on the day of the incident, he was informed about the incident by the complainant. Both the child victim and the son of P.W.2 Sudhakar were asleep and on the next day the complainant accompanied by P.W.2 and the children lodged the report. P.W.3 Rahul has proved spot panchanama Exhibit 29. P.W.5 Onkar, a neighbour of accused and P.W.1 complainant, states that on the day of the incident the accused threw earth upon the mentally challenged mother-in-law of the complainant and the child victim confronted the accused. P.W.7 police head constable Devanand recorded the first information report on the basis of the oral report of the complainant and registered the crime. P.W.7 Devanand also sent the child victim for medical examination vide request letter Exhibit 64. P.W. 8 PSI Anil has proved arrest form Exhibit 68. Dr. Sachin Wankhede who alongwith Dr. Singh and Dr. Shinge examined the child victim on 05-6-2011, is examined as ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 9 apeal383.12 P.W.6. The hymen was found intact, redness was visible over fourchette. P.W.6 did not notice any evidence of semen on the genitalia of the child victim. He has deposed that redness can be caused by an attempt to have sexual intercourse. P.W.6 has proved medical report Exhibit 62.
8. In view of the absence of the Counsel for the appellant, at the request of the Court, the learned Additional Public Prosecutor has assisted in careful and considered scrutiny of the record. The C.A. reports Exhibits 18, 19 and 20 coupled with medical evidence would render unsafe and hazardous finding of rape and the learned Sessions Judge is absolutely right in so holding. Equally unexceptional is the finding of the learned Sessions Judge in the teeth of the evidence on record conviction of the accused for attempt to commit rape is in order.
9. It must be noted that the evidence of every material witness has gone virtually unchallenged on significant aspects. The defence has miserably failed to probablize the defence of false implication even on the touchstone of preponderance of probabilities. The evidence of the child victim is implicitly reliable and confidence inspiring. The conviction could well have rested even on the ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 10 apeal383.12 uncorroborated testimony of the child victim. The testimony of the child victim is corroborated, by that of the complainant and the medical evidence on record. I have no hesitation in upholding the finding of the learned Sessions Judge that the prosecution has successfully brought home the charge under Section 376(2)(f) read with Section 511 of the Indian Penal Code.
10. The conviction of the accused under Section 3(1)(xi) and 3(2)(v) of the Atrocities Act is unsustainable in law. It is well settled that the provisions of Section 9 of the Atrocities Act and Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as the "Atrocities Rules") are mandatory. The prosecution has not proved that the investigation in the offences under the Atrocities Act is conducted by an authorised officer as is envisaged under the said statutory provisions. The statement in the examination-in-chief of Anil Raut, PSI Kalmeshwar (P.W.8) that the investigation was made by SDPO Shri Aadewar is not sufficient to prove compliance with the mandatory provisions of Section 9 of the Atrocities Act and Rule 7 of the Atrocities Rules. The judgment impugned, to the extent the accused is convicted for offences punishable under Section 3(1)(xi) and Section 3(2)(v) of the Atrocities ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 ::: 11 apeal383.12 Act is manifestly erroneous.
11. In the light of the discussion supra, the appeal is partly allowed. The conviction of the accused under Section 3(1)(xi) and Section 3(2)(v) of the Atrocities Act is set aside. The conviction of the accused under Section 376(2)(f) read with Section 511 of the Indian Penal Code is confirmed. The bail bond of the accused shall stand discharged. The accused be taken into custody forthwith to serve the sentence and compliance report be submitted in the registry of this Court within two weeks.
JUDGE adgokar ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 02:08:47 :::