The State Of Maharashtra vs Hanumanta @ Hanmappa Malappa Koli ...
2003 Latest Caselaw 868 Bom

JUDGMENT

Palshikar, J.

1. This appeal is directed against order of acquittal by the Additional Sessions Judge, Pune in Sessions Case No. 334 of 1986 acquitting the accused of offences under Sections 376, 109 and 341 of the Indian Penal Code.

2. With the assistance of the learned Public Prosecutor and the learned counsel appointed by us for defending the accused persons we have scrutinized the record and reappreciated the evidence on record. The prosecution story stated briefly as disclosed on our reappreciation is that on 19.5.1986 around 7.00 p.m. when the prosecutrix P.W.1-Gauravva was going home after working as labourer was stopped by accused persons and she was told that she is invited at her sister's place. Gangubai who was accompanying the prosecutrix said that the prosecutrix can go with them and therefore she left with them. Around 8.00 p.m. when they were near Shankar Maharaj Math they were going by Satara Road, there was a ditch behind the math, accused No. 2-Smt. Yallavva w/o accused No. 1-Hanumanta held the hands of the prosecutrix and she was floored. Then accused No. 2 gagged the prosecutrix, accused No. 1 removed her clothes and raped her. In this assault the buttons of the blouse of the prosecutrix were broken. When the assault was over the accused left the prosecutrix alone at the spot. The prosecutrix after she recovered from the shock of assault went home. She was raped and her private parts were injured. On reaching home she narrated whole incident to her mother who examined her physically and found that the statement made by the victim is correct. Since it was late in the night they went to the police station on the next day morning and reported the matter to the police. The police recorded FIR, investigated the complaint, arrested the accused and they were prosecuted for rape on the prosecutrix.

3. Police has examined as many as 10 witnesses in support of this case of rape on 13 years old prosecutrix. The learned trial Judge on appreciation of this evidence came to the conclusion that the prosecution has failed to prove the guilt and proceeded to acquit the accused of all the charges. Hence the State has come up in appeal.

4. Learned prosecutor submitted that all the requirements of proving the rape were complete in this case. The prosecution has fully to discharged its burden and the acquittal is therefore unsustainable in law. According to the prosecutor if evidence on record is properly appreciated it leads to only one conclusion of guilt and therefore misappreciation of evidence by the learned trial Judge has resulted in grave miscarriage of justice and a person assaulting minor girl of 13 years age to satisfy his lust is going scot free. According to the learned public prosecutor evidence is more serious than usual case of rape because in this case accused-husband was assisted in committing rape by his wife accused No. 2.

5. We will consider the evidence as is available on record and re-examine the question as to whether the accused was entitled to acquittal as ordered by the learned trial Judge.

6. Evidence of P.W.1-prosecutrix is at Ex.7 record page 42. She was at the time of occurrence 13 years old. She has told with reasonable clarity the entire incident. She tells as to how she worked as labourer on that day, how she was returning when Gangubai, how they were met by accused, why she was asked to accompany them, whey she factually accompanied them and what actually happened on the spot. She has clearly deposed that accused No. 2 gagged her and held her hands, fell her on the ground and then accused No. 1 removed her undergarments and raped her. Serious injuries of bleeding nature were caused to her. He clothes were bloody and she was left over after rape by accused persons. She came home and told her mother about the unfortunate incident which was verified by her mother by physically examining the prosecutrix and then matter was reported to the police. In police station also the witness gave detailed description of the assault on her. She has been extensively cross examined and the cross examination does not yield anything which would require rejection of evidence of the prosecutrix.

7. P.W.2 is panch witness who had drawn and proved the spot panchnama. Panchanam is at Ex.10 which reveals that on the spots buttons of the blouse as mentioned by the victim were found.

8. P.W.3 is another panch called Subhash who proved the panchnama regarding seizure of the clothes of prosecutrix and has stated that when the seizure was effected the clothes had blood stains.

9. P.W.4 is Gangubai who accompanied the prosecutrix back home from the work when they were stopped by accused persons and prosecutrix was taken away by accused persons on the pretext of taking her to the house of her sister. Every fact deposed to by P.W.1-prosecutrix regarding working as labourer, leaving the work till the accused met the prosecutrix is corroborated by the testimony of P.W.4-Gangubai. There is total corroboration of the evidence of P.W.1 by P.W.4 in so far as their starting from work place till meeting of the accused is concerned. The fact that accused met the victim when she was with Gangubai is therefore duly corroborated by the statement of Gangubai. For the rest of the incident of assault there is no eye witness. The rape has taken place at a solitary spot and has been described by P.W.1-prosecutrix.

10. P.W.5-Subhash proves Ex.15 as panchnama to the recovery of clothes of the accused.

11. P.W.6-Dr. Laxman who certifies that the prosecutrix was less than the age of 15 when she was assaulted. He proves Ex.16 showing that she was less than at years of age. P.W.7-Sanjay is translator of the Court as she was required to translate the questions put to the witness by the lawyers and give answers in Marathi to the Court.

12. Then comes P.W.8-Siddava mother of the accused. She tells as to how the victim returned home, how she narrated the assault on her, how she found it to be true and how she got the knowledge of victim's bleeding. There is thus adequate corroboration to the statement of the victim that she was assaulted by the accused. The happenings prior to the accused meeting the victim are corroborated by testimony of P.W.4. There is immediate disclosure of the assault by the victim to her mother P.W.8. P.W.8 states in her testimony how the incident was narrated to her and who she examined the daughter-prosecutrix. She also tells that the examination by her revealed the assault by the accused. The daughter only 13 years of age was ravaged.

13. P.W.9 is Dr. Sulbha who examined the prosecutrix. She has proved the examination report Ex.21 and she has very categorically stated that the prosecutrix was sexually assaulted and raped. She has noticed injuries on the private parts of the victim and she has deposed to that effect. Her testimony therefore corroborates on every material particulars with the statement made by the prosecutrix that she was raped. She had taken swab and smeer of the prosecutrix and sent it for analysis. The analysis resulted in the analyst informing that there was no semen found on the swab.

14. P.W.10-Ramakant is the police sub-inspector who worked as investigating officer. His evidence was considered by the learned trial Judge as inadequate for convicting the accused. In our opinion, the learned trial Judge has erred in law in coming to the conclusion of not guilty. His rejection of the entire evidence on flimsy grounds has resulted in grave miscarriage of justice. A heinous crime of rape of a minor child by a man with the assistance of his wife has gone unpunished. In our opinion, the judgment of the learned trial Judge has resulted in miscarriage of justice which is of grave nature and perverse for non-appreciation of evidence on record in its correct perspective. The law on the question of conviction on solitary testimony of prosecutrix is now well established. The Supreme Court of India has in several cases repeatedly said that in such cases of evidence ocular evidence in addition to that of the victim is not possible. It is very rare that a person is raped in the presence of witnesses. The Supreme Court of India therefore has laid down that if the testimony of the victim-prosecutrix is sufficiently clear in a case of sexual assault and is duly corroborated in material particulars by other circumstantial evidence the conviction can be based on the sole testimony of the prosecutrix. In several cases the Supreme Court of India has held that only the deposition of the prosecution by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.

15. In our opinion, the evidence of the prosecutrix who was 13 years old girl when the incident took place, has boldly stated before the Court of the sexual assault on her. She has given complete description of the entire evidence from the beginning of her being accosted and left alone in the ditch. Her testimony is corroborated by disclosure of incident to mother. It is corroborated from the beginning till accosted by the accused by circumstantial evidence of P.W.4. It is corroborated and substantiated by the doctor who positively states that the victim was raped and there is therefore no escape from the conclusion of guilt of the accused. Merely because semen was not found in the swab it cannot be said that no rape has taken place. The provisions of Section 375 of Indian Penal Code are very clear. Even slight penetration is also enough for the purposes of finding the offence of rape. In this case the penetration was enough to cause bleeding injury to the victim. Whether semen was there or not is grossly irrelevant. In our opinion, therefore, the order passed by the learned Judge acquitting the accused ignoring all this evidence has to be termed perverse in law. It has resulted in grave injustice, grave miscarriage of justice. A heinous offence of rape committed by a man with the assistance of his wife has gone unpunished. These, in our opinion, are sufficient reasons to warrant the conviction of the accused even if the incident is of 12/15 years old. In the result, therefore, the appeal succeeds and is allowed. The judgment of acquittal by the learned trial Judge, Pune in Sessions Case No. 334 of 1986 i set aside. Instead accused No. 1-Hanumanta @ Hanmappa Malappa Koli is convicted under Section 375 of Indian Penal Code and accused No. 2-Smt. Yallavva Hanmappa @ Hanmanta Koli is convicted under Section 375 read with Section 109 of Indian Penal Code for aiding and abetting the offence of rape committed by her husband. That brings us to the question of sentence.

16. The offence is heinous. The punishment for persons committing such offence must always be deterrent. There are no extraneous circumstances. The girl who was raped was minor of 13 years age. A a period of 17 years has passed since date of incident. For all this time the accused is on bail though he has committed heinous crime. In our opinion, therefore, ends of justice would be met if the accused No. 1-Hanumanta @ Hanmappa Malappa Koli is sentenced to suffer rigorous imprisonment of three years and to pay fine of Rs. 2000. We also hold as sufficient punishment for accused No. 2-Smt. Yallavva Hanmappa @ Hanmanta Koli to suffer three years rigorous imprisonment for the offence punishable under Section 375 read with Section 109 of India Penal Code. The accused are on bail. Their bail bonds are canceled. The police authorities in Pune are directed to take immediate appropriate steps to take both the accused persons into custody to suffer their imprisonment. Writ of arrest to be issued immediately. Appeal is accordingly allowed.