apeal297of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.297 OF 2002
Rajkumar s/o. Shyamnarayan Shrivastav,
aged about 35 years, Occ. Private,
resident of Parvatinagar, P.S. Ajni,
Nagpur ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Ajni,
Nagpur ...RESPONDENT
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Mr. R.B. Gaikwad, counsel for the appellant.
Mrs. M.H. Deshmukh, Addl. Public Prosecutor for the respondent.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT :3.10.2017.
DATE OF PRONOUNCING THE JUDGMENT :5.10.2017.
ORAL JUDGMENT Appellant seeks to assail judgment and order dated 29.4.2002 in Sessions Trial 124 of 1996 delivered by 4th Adhoc Additional Sessions Judge Nagpur, by and under which, the appellant (hereinafter referred to as the "accused") is convicted of offence punishable under section 376 of Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 02:07:32 ::: apeal297of02.odt 2 period of 5 years and to payment of fine of Rs. 2000/-. 2 Heard Shri. R.B. Gaikwad learned counsel for the accused and Smt. M.H. Deshmukh, learned Addl. Public Prosecutor for the respondent / State.
3 The learned counsel for the accused Shri. R.B. Gaikwad has a two fold submission to canvas. Firstly, the learned counsel would submit that the ocular evidence of the victim is not implicitly reliable and is inconsistent with the medical evidence. Secondly, Shri. R.B. Gaikwad, learned counsel for the accused would submit that even if the evidence is taken at face value, the accused at the most can be convicted of an attempt to murder.
Per contra, the learned Additional Public Prosecutor Smt. M.H. Deshmukh has submitted that the evidence of the minor victim is trustworthy and confidence inspiring. The learned counsel would submit that the medical evidence corroborates the evidence of the minor victim that she was subjected to forcible intercourse.
4 The informant Jyoti Kanojiya, the mother of the victim could not be examined as she was no more. However, the ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 02:07:32 ::: apeal297of02.odt 3 First Information Report lodged by Jyoti on 8.11.1995 at 7.15 p.m. is at Exh. 51. The gist of the report is that Jyoti is a house wife and her husband a labour who used to be out of house during day hours in connection with labour work. The victim then aged 6 years was playing outside the house at 1.20 p.m. on 8.11.1995. Jyoti came outside the house to check on her daughter, her daughter was not seen, however, Jyoti heard cries of the minor victim from the house of the accused. She witnessed the minor exiting the house of the accused weeping. Jyoti took the minor victim in her arms and asked as to why she was weeping. Her minor daughter was frightened, she told Jyoti that accused asked her to bring tobacco and gave some money. The accused took the minor victim to the bedroom and made her lie down on the cot after removing her underwear and inserted his private organ into her vagina. The minor victim experienced pain and started weeping.
On the basis of the report, offence was registered against the accused under section 376 of IPC. Investigations were completed and chargesheet was submitted in the Court of Chief Judicial Magistrate, Nagpur who was pleased to commit the case to the Sessions Court. The learned Sessions Judge framed charge at Exh. 07. The accused pleaded not guilty and claimed to be tried. ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 02:07:32 ::: apeal297of02.odt 4 The defence of the accused, as is apparent from the trend of the cross examination and the statement recorded under section 313 of the Criminal Procedure Code, is of total denial and false implication.
5 The case of the prosecution essentially rests on the testimony of minor victim who is examined as PW 1, her minor cousin Shikha who is examined as PW 2, Dr. Aparna Borkar who is examined as PW 6 and the medical evidence. The victim who was aged 5 years or thereabout has on the date of the incident has deposed that between 2.00 to 2.30 pm on 8.11.1995 she was playing alongwith her cousin Shikha and brother who was flying a kite. The victim and Shikha went to search the kite which was cut. The accused called the victim and Shikha and asked Shikha to fetch a Bidi. Shikha brought Bidi and while she was giving the Bidi to the accused, he caught her hand. Shikha bit the hand of the accused and then went to her house. PW 1 has deposed that the accused called her, took her inside his house, gave her some money to bring tobacco which she did. The accused then closed the door of his house and told the minor victim to sleep on a bed. The accused removed her nicker, undressed and then inserted his private organ in the private part of PW 1. The victim could not ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 02:07:32 ::: apeal297of02.odt 5 tolerate the sexual assault and started crying. PW 1 has deposed that she narrated the incident to her mother and she and her mother went to the Police Station to lodge the report, she was referred to medical hospital for examination. 6 Shri. Gaikwad, the learned counsel for the accused is vehement in his contention that the evidence of PW 1 is neither reliable nor confidence inspiring. My attention is invited to certain omissions and discrepancies. The learned counsel for the accused would submit that the credibility of PW 1 is totally demolished in the cross examination. The victim has admitted that the report is lodged at the instance of her mother Jyoti and that the statement is given to the police was as per the say of her mother. The victim has further admitted that she has been told about the evidence to be given, by her grant-father and that the police have read over the statement to PW 1 and also to her cousin sister Shikha.
It is true that there are certain omissions brought on record. However, the omissions are minor and do not affect the credibility of the evidence. Such omissions or discrepancies are even otherwise quite natural when the evidence is recorded after six years of the incident. The victim was 5 years old as on the date of incident and 11 years old when her evidence was recorded. The ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 02:07:32 ::: apeal297of02.odt 6 other contention that accused is falsely implicated by the minor victim at the instance of her mother is noted only for rejection. Nothing is brought on record to suggest that the alleged enmity or bad blood was of such a nature as would persuade a mother to use her 5 year old minor daughter as a tool to falsely implicate the accused.
The evidence of PW 1, in my opinion is confidence inspiring, and is corroborated by the evidence of her cousin sister Shikha who is examined as PW 2. Shikha her then aged 8 years has corroborated PW 1 to the extent she has deposed that accused called both her and PW 1, asked Shikha to bring matchbox and Bidi, the accused held her hand, PW 2 bit the accused and went home. The ocular evidence of PW 1 and PW 2 is more than amply corroborated by Dr. Aparna Borkar who is examined as PW 8. She has deposed that examination of the minor victim revealed redness over labia majora and minore and that the hymen was not intact. Except for a suggestion that PW 2 could not come to definite conclusion that the victim was sexually assaulted, to which suggestion PW 8 has agreed, the evidence is virtually unchallenged. The admission of PW 8 that she is not in a position to give a definite opinion on whether the victim was sexually assaulted, is of little significance. The hymen is not intact and ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 02:07:32 ::: apeal297of02.odt 7 there is redness on labia majora and minore is the finding in the medical examination, which is not challenged in the cross examination. The medical evidence is consistent with the testimony of PW 1 that she was subjected to forcible intercourse. The alternate submission of Shri. R.B. Gaikwad, the learned counsel for the accused that the evidence would suggest, if at all attempt to rape, can not be accepted, in the teeth of the medical evidence on record.
On a holistic appreciation of evidence, I do not see any substance in the appeal. The prosecution has proved the offence under section 376 of IPC beyond reasonable doubt.
The appeal is without substance and is rejected. The bail bond of the accused shall stand cancelled. The accused be taken into custody forthwith to serve the sentence.
JUDGE R.S.Belkhede, Personal Assistant.
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