Ishwarbhai Ranchoddas Parmar vs State Of Maharashtra
2002 Latest Caselaw 1332 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellant is hereby assailing correctness, propriety and legality of the judgment and order passed by 3rd Additional Sessions Judge. Thane is Sessions case No. 769 of 1993, by which he convicted the appellant for offence punishable under provisions of Section 376(2)(f) of Indian Penal Code and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment of period of two months.

2. The prosecution case, in brief, is that prosecutrix P.W.1, Manisha was aged 5 years at the time of incident and had come to the hut of her grandmother Kamal Yadav, who was residing in hutment opposite United Carbon Company at Thane, Belapur Road, Thane. On 1/5/1993 at about 11.30 a.m. when prosecutrix Manisha was playing opposite the hut of her grand-mother P.W.2 Kamal Yadav, the appellant called her to his hut, closed the door of the hut and made the prosecutrix to lie on a mattress. Thereafter, he removed her underwear, took her frock up and removed his underwear and started committing sexual intercourse with her. After his lust was fulfilled, the appellant asked her to go and therefore, prosecutrix returned to her house. She informed her grand-mother Kamal Yadav about the incident. Thereafter, Kamal Yadav took her to Rebale Police Station and gave the first information. In order to ascertain the truth of her complaint, Police Station Officer sent prosecutrix to Civil Hospital where she was examined by Dr. Ubale, who noticed that there were injuries on her vagina and other parts of the body. Thereafter again Kamal and prosecutrix came back to Rebale Police Station and at about 5 p.m. or so, her F.I.R. was recorded. The investigation proceeded and ended in the adjudication of the trial in the nature of conviction and sentence.

3. Shri Tiwari, Counsel appearing for the appellant pointed out the examination of the present appellant. More particularly, question No. 37 asked to the appellant which happens to be like this "Dr. Bhausaheb has deposed that on examination he found that you were not in a position in performing sexual intercourse. What have you to say about this? Answer:- This is true." He submitted that as this question was asked to appellant and he has given the answer that he was incapable of performing the intercourse, the trial Court should have acquitted the appellant but it did not do so and therefore, landed in error of law. Shri Tiwari submitted that on this count alone, the appellant is entitled to get acquittal but apart from that there are other questions which make the case of the appellant strong for acquittal.

4. Shri Tiwari submitted that it has come in the evidence of prosecutrix Manisha that her grandmother asked for the loan prior to the incident, so also Kamal's husband Ambadas had also asked for a loan of Rs. 15,000/- prior to the said incident. Shri Tiwari further submitted that even on the date of recording of evidence of Manisha, both had asked for a sum of Rs. 15,000/-. It is his submission that as they wanted that amount, they have concocted this false case against the appellant. He submitted that there is no corroboration to the evidence of prosecutrix, so far as incident is concerned and therefore, keeping in view all these factors the said order of conviction and sentences be set aside and appellant be acquitted.

5. Shri Saste, A.P.P. submitted that the evidence of Manisha, prosecutrix by itself is sufficient to prove the guilt of the appellant beyond reasonable doubt. In addition to that, the medical evidence led through the mouth of Dr. Ubale shows that there were major injuries on her private part as well as on other parts of her body. He submitted that the evidence of prosecutrix is corroborated by medical evidence and evidence of Kamal Yadav and therefore, the learned trial Judge had done the right thing in convicting and sentencing the appellant.

6. This Court examined the record. It seems to be the mistake committed by the Judge and his Sheristedar in typing the number of questions which were to be asked to the accused in his examination under provisions of Section 313 of Cr.P.C., 1973 (hereinafter referred to a Code for convenience). Section 313 provides:

"(1) In every inquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court;

(b) may at any stage, without previously warning the accused, put such question to him as the Court considers necessary:

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case;

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).

Sub-section (2) No oath shall be administered to the accused where he is examined under Sub-section (1).

(3) The accused shall not render, himself liable to punishment by refusing to answer such questions, or by giving false answer to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for any other offence which such answers may tend to show he has committed."

7. Therefore, by reading the provisions of Section 313 Cr.P.C. as a whole, the submissions advanced by Shri Tiwari will have to be dismissed. It is to be noted that what Section 313 Cr.P.C. requires is that the Court should for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him may ask a question to him for affording him an opportunity to explain any situation which has come in the evidence against him. the court may at any stage without prior warning to such an accused put questions to him as the Court consider necessary. Furthermore, after witnesses have been examined, and before the accused is called for entering into his defence, the accused may be questioned generally on the case. Keeping in view the spirit of provisions of Section 313, Cr.P.C. as pointed out above, no prejudice is caused to the accused by the mistake committed by the trial Judge in putting him a wrong question. Had there been the evidence on record, that he was incapable of performing sexual intercourse, there would have been some ground to consider the submissions advanced by Shri Tiwari. Had the appellant taken this defence in the case, there could have been also a ground to consider the submission advanced by Shri Tiwari on this point. The evidence of Dr. Bhausaheb is very clear, so far as physical condition of the appellant was concerned which showed that he was capable of committing sexual intercourse. His capacity to commit sexual intercourse is not the sole point to be considered in this case especially when the appellant has not taken that defence in the trial. Not a single question has been asked to any of the witness suggesting is defence. If Judge or his Sheristedar has committed a mistake, the accused cannot be permitted to take advantage of that mistake, when he has not taken the defence touching that point and when other evidence is available for justifying his guilt in context with the charge levelled against him.

8. Answer or answers given by accused in his examination under Section 313 of the Code can be considered in his favour but that alone would not be the ground for his acquittal when there is sufficient evidence on record establishing his guilt. Guilt or innocence is to be adjudicated on legal evidence and on the mistakes of Sheristedar, Prosecutor or the trial Judge.

9. The evidence of prosecutrix Manisha unequivocally shows that at about 11.30 a.m. on 1/5/1993 when she was playing opposite her grand-mother's hut, appellant took her to his hut and thereafter undressed himself and undressed prosecutrix and committed sexual intercourse with her. This evidence has been fully corroborated by the medical evidence coming through the mouth of Dr. Ubale, who had opportunity of examining prosecutrix Manisha immediately after some hours after the said incident. There were injuries on her vagina and other parts of her body also.

10. It is a most unfortunate aspect of this case, that grand-mother and grand-father out of greed started taking advantage of that incident and wanted to squeeze from the appellant a big sum of Rs. 15,000/-. It is unfortunate that the concerned Police Station Officer instead of recording the F.I.R. of Kamal Yadav immediately sent Kamal Yadav and Manisha to the Civil Hospital and after getting himself satisfied that such incident took place he recorded F.I.R. Thereafter learned Judge also committed an error in putting wrong question to the appellant. Clubbing of all these mistakes cannot be permitted to wash out the evidence of a poor hapless small girl. Her evidence has not been shattered at all by her cross-examination by defence. Manisha and Dr. Ubale need to be complimented for their straight forwardness in giving evidence. It was tried to be ruined by none else but grand-parents of prosecutrix Manisha and thereafter by the glaring mistake of trial Judge or his Sheristedar.

11. As a matter of prudence, the Courts may for the purpose of assurance look to other circumstances and when medical evidence is strongly supporting the evidence of prosecutrix, there should not be any hesitation in coming to the conclusion of the guilt of such an accused. When a defect in examination under Section 313 of Cr.P.C. is not causing any prejudice o the defence of the accused and when the evidence on record is sufficient to establish the guilt of the accused such defect in his examination under Section 313 of the Code has to be ignored. The mistake committed by some parts of machinery going to the prosecution and adjudication of the prosecution should not be permitted to be hurdied in giving justice to hapless victim. The evidence of prosecutrix is sterling sound and is creating confidence in judicial mind. Conviction and sentence based on it is by itself sound and legal. But in this case it is well corroborated by medical evidence.

12. Thus, this Court has no hesitation in coming to the conclusion that the trial Court has rightly recorded its finding that the appellant has committed offence punishable under Section 376 of Indian Penal Code.

13. Shri Tiwari submitted that the appellant is middle aged person and having two marriageable daughters therefore, leniency be shown to him. Shri Saste submitted that this Court be pleased to pass appropriate order.

14. A person who has committed heinous act of committing sexual intercourse with a budding girl of 5 years is not even morally entitled for any leniency. It is a blot on society. Such incidents are increasing therefore, thee should be a hammer hand treatment given to such accused. The shameful act of the appellant permits him no leniency. The sentence awarded to him is appropriate and fitting to the circumstances of the case. Thus, prayer for leniency is rejected and the conviction and sentence stands confirmed.

Thus, appeal stands dismissed. The appellant to undergo sentence in the appropriate jail, where he has to undergo it.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar Court Stenographer of this Court.