Ramesh S/O Mahadeo Meshram And ... vs State Of Maharashtra
2004 Latest Caselaw 572 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard Miss Nandita Dubey and Mr. Badar, learned counsel for the appellants and Mr. Y. B. Mandpe, learned A.P.P. for the respondent-State.

In regard to the incident that took place on 6th May, 1999 wherein both the appellants committed rape on prosecutrix a minor girl aged about 15 years P.W.1, the appellants were tried before the Sessions Judge, Bhandara in Sessions Trial No. 54/1999 and the learned Sessions Judge by his Judgment and order dated 11-5-2000 convicted both the appellants for offence punishable under Section 376(2)(g) of the Indian Penal Code and sentenced them to suffer R.I. for a period of 10 years and also to pay fine of Rs. 500/- each in default of payment of fine to suffer R.I. for 2 months. This appeal is directed against the said Judgment and Order of conviction and sentence.

2. The prosecutrix - P. W. 1 who is daughter of Sukhdeo Khobragade (P.W. 6) resident of Village Tidaka, on the date of occurrence the prosecutrix had gone to the house of one Ramchandra Meshram to take meals arranged on the eve of marriage of his son and after taking meals she was returning to her house at about 10.00 a.m. On her way there is house of appellant No. 2 - Sunil and when she came near his house, the appellant - Sunil called her and told that his sister - Mamata was calling her in the house. The prosecutrix being friend of Mamata, entered the house of appellant No. 2 - Sunil. As soon as she entered the house, the appellant No. 2 - Sunil asked her to bring water. She accordingly went towards the kitchen to bring water and while she was coming out of kitchen taking glass of water, the appellant No. 1- Ramesh who was hiding inside the house at once caught her and pressed her mouth and laid her on the ground. When prosecutrix tried to raise shouts, the appellant No. 2 rushed there and silenced her. The appellant No. 1 then after removing his underwear, removed the underwear of prosecutrix and had sexual intercourse with her. When the appellant Ramesh was taking sexual intercourse, the appellant Sunil caught hold the prosecutrix. After the appellant No. 1 satisfied his lust, it was the appellant No. 2 - Sunil who had sexual intercourse with the prosecutrix in the same manner and that time it was the appellant No. 1 who had caught hold the prosecutrix and silenced her by pressing her mouth. When the appellant was taking intercourse with prosecutrix - one person - Murari (P.W.5) who was cousin of the prosecutrix came inside the house in search of his chappal and he saw both the accused and his sister - prosecutrix was lying on the ground and her mouth was pressed by appellant No. 1 and appellant No. 2 was actually taking sexual intercourse with her. On seeing Murari the prosecutrix'was released by the appellant. He took her to her house. She disclosed the incident to the witness - Murari on her way to her house. After her parents returned home, the prosecutrix disclosed them as to what happened to her. Then they went to the police station Arjuni Morgaon, where the offence was registered vide Cr. No. 52/1999 against the appellants. The prosecutrix was referred to Medical Officer for her medical examination on 7-5-1999. She was examined by Dr. Vandana Kukde (P.W.12) who was Medical Officer, General Hospital, Bhandara. On examining her the Medical Officer issued a certificate Exhibit 38 in which she elaborately gave her findings. She found that there was abression over left wrist and elbow. The injury was recent one about 24 hours old. The doctor found that the victim had severe body ache and pain at private part. On local examination, she found that her secondary sexual characters were well developed. On local examination she found her libia swollen, tender and her hymen was absent. Her vaginal examination could be done and there was tenderness. From her examination, she opined that there was nothing to suggest that the patient was incapable of performing sexual act and on clinical examination the possibility of sexual intercourse could not be ruled out.

3. The appellants were arrested and they were examined by Doctor Ajay Malewar (P.W. 4). The Medical Officer also collected blood and semen samples of both the appellants which were sent to the Investigating Officer. During the course of the investigation conducted by the prosecution, P. S. I. Kailash Barve (P.W. 11), he prepared spot panchnama Exhibit 9, he seized the underwear of appellant No. 2 - Sunil under seizure memo Exhibit 19; he also seized the clothes of victim namely skirt, underwear and shirt under the seizure memo Exhibit 17. The seized articles were sent to Chemical Analyser for examination with requisition Exhibit 40. He also collected certificate from the school where the prosecutrix had her education, to ascertain her date of birth. After the report of Chemical Analyser was received he filed the charge sheet against the appellants in the Court where the case was committed to the Court of sessions.

4. Before the learned Sessions Judge to the charge framed the appellants pleaded not guilty and claimed to be tried. Their defence is that of total denial. It is contended by the appellants that they are falsely implicated in this case. According to the appellant No. 1 Ramesh the witness - Murari (P.W.5) had eloped with the daughter of his uncle. He brought Murari to the village and he was forced to marry with that girl. It is contended that at that time the appellant No. 1 was threatened by the witness - Murari saying that he would force him to many with the prosecutrix. It was contended by the appellant that this witness Murari was not willing to perform the marriage with that girl and that he was asked to marry her under pressure of villagers as well as other persons. It is also contended by the appellants that police patil of the village was of the other group party and that there was quarrel between the prosecutrix and the appellant No. 1 and due to that enmity it was contended that the appellant No. 1 was involved falsely in this case.

5. According to the appellant No. 2 Sunil after Murari having eloped with the daughter of his uncle, they brought Murari to village and forced him to marry with the girl in the village and at that time Murari was threatened that due to pressure of Murari the prosecutrix gave false evidence implicating the appellants in this case. It was contended that a false complaint was lodged with the help of police patil to involve the appellants.

6. At the trial Court the prosecution examined in all 11 witnesses including the prosecutrix (P.W.I), Dr. Ajay Malewar (P.W.4), Murari (P.W. 5), Sukhdeo Khobragade (P.W. 6), Dr. Vandana Kukde (P.W. 10) and P. S. I. Kailash Barve (P.W. II). The appellants were examined under Section 313 of Criminal Procedure Code after the prosecution evidence was over. Since their defence was of total denial, they have denied the prosecution evidence, in particular as to commission of sexual intercourse / rape on the prosecutrix. They have reiterated their contention of false implication. However, they have not examined, any witness in the defence. The learned Trial Judge on appreciation of oral as well as documentary evidence, more particularly the finding of semen stains of blood group 'O' on the skirt (Exhibit 2) of the prosecutrix which tallied with the blood group of the blood of the appellant No. 2 - Sunil, found both the appellants guilty for offence of committing rape on the prosecutrix. The Trial Court has discarded the theory of defence of false implication. Consequently the Trial Court sentenced the appellant for offence under Section 376(2)(g) of Indian Penal Code as stated above. Hence this appeal.

7. I have heard Miss Nandita Dubey and also Mr. Badar, learned Advocates for the appellants and Mr. Mandpe, learned A. P. P. for the respondent - State. With the assistance of the learned counsel for the parties I have gone through the judgment as well as the evidence on record. Before embarking upon the submissions of the learned counsel for the parties it would be appropriate to state few facts about which there is either no dispute or on the evidence on record, those facts have been duly proved. It is a matter of record that as per the complainant - prosecutrix and witness Murari and Sukhdeo, the incident of committing rape on prosecutrix took place on 6th May, 1999. It is no doubt true that the prosecutrix in her version has stated that the incident took place 5th May, 1999. Making much capital of this statement the learned counsel for the appellants pointed out that, that is contrary to the material on record and therefore it brings out grave infirmity in the prosecution case, going to the root of the matter. The trial Court has rightly dealt with this issue in the judgment. The prosecutrix stated that she lodged the report to the police station on the very day when the incident occurred. It is a matter of record and as stated earlier, it is not disputed that the prosecutrix lodged report - Exhibit 15 on 6th May, 1999 at Arjuni Morgaon Police Station on the basis of which the offence was registered against the accused. It is further matter of record and as could be seen from the record (Exhibit 15), and also the first information report (Exhibit 16) drawn on that basis, the date of occurrence was 6th May, 1999. Reading the complaint Exhibit 15, it is crystal clear that the incident has taken place on 6th May, 1999 at about 10.00 O'Clock in the morning. The recitals in the report in that regard are so clinching that no ambiguity or incorrectness in that regard could be at least spelt out. It is in this background that the trial Court has rightly observed that the prosecutrix has committed error in stating that the incident took place on 5th May, 1999. Therefore, the commission of sexual assault on the prosecutrix was on 6-5-1999. It is not disputed that the prosecutrix was examined on 7th May, 1999. In earlier part of the judgment on the piece of evidence of Dr. Vandana Kukde (P. W. 10) who examined the prosecutrix, her clinical findings as regards the prosecutrix and her sufferings have been elaborately dealt with by the trial Court. What is surprising is the medical findings on examination of the prosecutrix as recorded in the certificate - Exhibit 13 and also in her evidence by Medical Officer Dr. Vandana, have not been controverted at all by the defence. It was on the basis of those findings that the Medical Officer Dr. Vandana gave her candid opinion that the possibility of sexual intercourse could not be ruled out. She also noticed injury of abrasion on the person of the prosecutrix. On local examination of the prosecutrix the Medical Officer found libia swollen, tender and her hymen was absent. As stated earlier though Doctor Vandana was subjected to cross-examination by defence, on material particulars as to physical state of the prosecutrix and findings recorded by the Medical Officer on the basis of local and physical and clinical examination, it was not controverted at all. Therefore, that evidence of Medical Officer coupled with the version of the prosecutrix undoubtedly goes to show and establish that the prosecutrix was subjected to sexual intercourse at the time and place alleged, that is why as rightly observed by the trial Court that the factum of sexual intercourse with the prosecutrix or sexual assault on her at the time and place as stated by her stood proved and that is much more so when it was specifically not controverted. In this connection it is pertinent to note that the suggestion by the defence to the prosecutrix was only to the effect that the accused did not have sexual intercourse with her. It is needless to say that the prosecution has stoutly denied the suggestion.

8. The prosecutrix claimed in her evidence that on the date of occurrence, she had been to the house of accused No. 2 on her way back to house while returning from the house of one Ramchandra after taking meals arranged consequent upon the marriage of his son. The prosecutrix in her evidence has stated that the manner in which she entered the house of the appellant No. 2. The fact that she entered the house of appellant No. 2 is not specifically controverted. That apart the witness Murari though he was related to the prosecutrix has candidly stated in his evidence about the presence of the prosecutrix in the house of the appellant No. 2 and as it would have been unfortunate that he had to be at a place where actual act of sexual intercourse being performed by the appellants on the prosecutrix. We will consider the veracity of witness Murari in respect of whether actually he witnessed the incident when he entered the house, a bit latter. But at this juncture it is suffice to say that through his evidence the presence of the appellants and prosecutrix in the house of the appellant is established and that lends assurance to what the prosecutrix had stated in her evidence and that fact again gets corroboration from the contents of the report - Exhibit 15. There is absolutely no reason to discard that part of the evidence. The learned counsel for the appellants in the course of the arguments submitted that the visit of the prosecutrix on that date to the house of the appellant was fortified as sister of accused No. 2 was her friend and she must be used to visit the house of the appellant. This submission is referred at this juncture only to emphasise my conclusion that the factum of visit of prosecutrix on that date at the house of the appellant No. 2 is not disputed.

9. With this background of undisputed factual position as to visit of the prosecutrix to the house of appellant on the date of occurrence let us scrutinize the evidence to see whether the allegations of commission of rape by the appellants on the victim are proved. It is needless to say and that it is also very clear from the judgment of the trial Court that in this context reliance is placed on the version of the prosecutrix, medical evidence as well as evidence of witness Murari. Prosecutrix in her evidence has clinchingly stated as to what happened to her when she entered the house. In the first place she claims that it was the appellant No. 2 who called her in the house on the pretext that his sister Mamata who happened to be friend of the prosecutrix had called her. There is no challenge to this version of the prosecutrix. Added to that fact that the prosecutrix in fact visited the house of accused No. 2 on that date is not disputed. It may be that the prosecutrix might be on visiting terms as sister of appellant No. 2 was her friend, but in my opinion that by itself is not sufficient to infer even that the prosecutrix was consenting party. It is rather strange that the defence had tried to urge that even before the trial Court about the improbability of the occurrence of commission of rape or sexual assault on the prosecutrix when her friend Mamata was very much present in the house. It is in the background that at one stage the theory is put forth that the prosecutrix might be a consenting party. It does not appeal to the reason that in the presence of Mamata in the house and the prosecutrix knowing that she was very much in the house, it is difficult to concede that the prosecutrix was consenting party to the sexual assault on her by both the appellants. The Trial Court has rightly dealt with the factum of presence of Mamata in the house and even then there is probability of the accused having committed sexual assault on the victim in the house when the appellant No. 2 so to say enticed, the prosecutrix to enter the house on the pretext that his sister had called her. It is true that the prosecution did not examine Mamata as witness. It is also not known whether in the course of investigation her Statement was recorded and that she was cited as witness. But then the trial Court has dealt with the effect of the paucity of evidence of Mamata. In fact it was contended on behalf of the defence that the prosecutrix has stated in her evidence that Mamata was also present in her house. In fact the presence of Mamata was not at all disclosed in the report nor she had stated so in a statement recorded under Section 162 of Criminal Procedure Code. With this variance in the evidence of the prosecutrix, it was urged on behalf of the defence that the prosecutrix has improved her version and because of that her evidence is rendered unreliable. It is not disputed that Mamata was neither interrogated by police nor her statement was recorded. In that situation, there was no reason for the prosecution to examine Mamata as a witness in this case. It is pointed out that the prosecutrix did not have any talk with Mamata immediately though she was called by her and therefore, her evidence is unnatural as well as unreliable. However, it is pertinent to note that the prosecutrix in her examination-in-chief has nowhere stated that Mamata was present in the house when she entered. She has also stated that she ran away as she had seen that she was caught held by appellant. This situation is to be considered in the backdrop of presence of Mamata as stated by witness - prosecutrix in her cross-examination. This shows that in fact Mamata had no knowledge about the incident, nor she had seen the actual act of sexual assault on the prosecutrix. It is in this background as rightly observed by the Trial Court, mere admission of presence of Mamata in the house by the prosecutrix, does not render unreliable the claim of the prosecutrix about sexual assault on her by the appellant. That is why the prosecutrix entered the house when called by appellant No. 2 on the pretext that his sister Mamata had called her.

10. The prosecutrix in her evidence has disclosed in unambiguous words the alleged sexual assault on her by the appellants. She has stated about the penetration when both the appellants had sexual intercourse with her. Her evidence does show that there was resistance offered by her when the appellants had sexual intercourse with her. It was the appellant No, 2 who had caught held her and when it was turn of appellant the appellant No. 1 had held her by hands, which facilitated the appellant No. 2 to perform sexual intercourse. As stated earlier, this part of evidence of actual assault on her remained undisturbed, though the prosecutrix was subjected to searching cross-examination by the defence. Defence could not make out any infirmity in her evidence in that regard. There is absolutely no reason for the prosecutrix to make allegations against the appellants of committing sexual intercourse against her consent. The theory of false implication as put forth by the defence on the face of it does not stand probable. The trial Court has dealt with this aspect of the matter in detail in his judgment. Taking into consideration the relations inter se and the situation that prevailed as also the stand of the prosecutrix and her family members and even accepting the fact that witness Murari who had eloped with the girl with whom he was forced to marry, does not at all even spell out or make probalised false implication of the appellants.

11. The conduct of the prosecutrix on occurrence when came home along with witness Murari is self eloquent and natural as it could be. After her parents came home, she had disclosed as to what happened to her and when she was taken to the police station, she lodged the report Exhibit 15 in which categorically all that has occurred has been described in detail. The trial Court has pointed out that there was no slightest exaggeration made in the report by her about the occurrence. In fact same events that was found vis-a-vis the report and her statement before the Court, it speaks of truthfulness of the claim made by her against the appellants. In addition to that the evidence of witness Murari who happened to be at the house of the appellant No. 2 at that time and himself witnessed the actual act of sexual assault by appellant on the prosecutrix, what is deposed by him before the Court makes the matter clinching. There is absolutely no reason to discard his testimony. The learned counsel for the appellants have no doubt pointed out some contradictions in the evidence of witness Murari. In the background of direct evidence of the prosecutrix, no much importance could be given to the contradictions that had occurred and at least his evidence is not at all rendered incredible or unworthy of credit, even though there are contradictions in respect of some statements made by him vis-a-vis his statement recorded earlier by the police in the course of investigation. The factual position which the witness Murari has described in his evidence clinchingly goes to show that when he entered the house he saw the appellant No. 2 having laid on the person of prosecutrix and he was actually performing sexual intercourse with her and that time it was appellant No. 1 who was sitting near her. It is pertinent to note that immediately after witness Murari took out prosecutrix from the house she disclosed him as to what had happened and it is in that background that she was brought to her house by witness - Murari, those things that had occurred as a sequence of event rather as natural as it could be. The trial Court has rightly accepted the evidence of witness Murari which lends assurance to the version of the prosecutrix regarding the core claim as to sexual assault by the appellants.

12. Much has been made by the defence as to absence of clinching evidence as to the age of the prosecutrix. As the evidence stands through evidence of witness Namdeorao Nakade P.W. 9 who happened to be Headmaster of the Dr. Bhabha School, Zarpada where the prosecutrix had her education and as per the school record as stated by this witness her date of birth was 20-6-1983 and accordingly he issued the certificate. It was on the basis of this evidence the prosecution claimed that the prosecutrix was of 15 years of age. The trial Court accepted evidence of this witness. The trial Court has accepted the evidence as whatever he had stated before the Court has been supported by the record. Original school record was brought before the Court and defence could not bring out any infirmity in the certificate issued by this witness regarding the date of birth of the prosecutrix. As such the authenticity of the date of birth as recorded in the certificate is duly established. As the prosecutrix was less than 16 years of age, there was no question of consent. That apart, in the facts and circumstances of the case having regard to the specific plea taken by the defence of false implication and even denial of sexual intercourse with the prosecutrix by the appellants, the question of consent does not arise. In such a situation as observed by the trial Court the issue of consent was totally irrelevant in the facts and circumstances of the case. Apart from that if we consider the medical evidence particularly the factum of injuries sustained by the prosecutrix and having regard to the age of the injury as described as given by Medical Officer - Dr. Vandana Kukde, in the absence of any explanation, it indicates that there was resistance whatever was possible to the prosecutrix in the situation that one of the accused was holding her and also silencing her, there was resistance offered by her and in that situation it is very difficult even to infer that the prosecutrix was consenting party. In addition to that the fact of finding on local examination of the private part of the prosecutrix certainly goes to show that there was sexual assault on her against her consent. In such a situation we have to take into consideration the age of the prosecutrix and her ability to offer resistance in the presence of both the appellants when one of the appellants was thwarting her efforts to resist. There was swelling on her private part, there was tenderness. Having regard to this specific finding positive as it is on clinical as well as local examination of the prosecutrix by the Doctor, there is absolutely no room for holding that the prosecutrix was a consenting party. On the other hand the positive finding as observed by the Medical Officer docs suggest that sexual intercourse on the prosecutrix was against her consent. There was indication of penetration. Therefore, all this evidence on record has clinchingly proved that the accused had sexual intercourse with the prosecutrix against her wish or desire. The trial Court has therefore rightly found that the appellants have committed rape on the prosecutrix.

13. There is circumstantial evidence in the form of detection of semen on the skirt (Exhibit 2) of the prosecutrix and as per the report of Chemical Analyser (Exhibit 42) blood group of the semen detected was found to be 'O'. Incidentally the blood of group of semen of appellant No. 2 -Sunil was of Group 'O' as could be seen from the report of Chemical Analyser. The factum of seizure of clothes as also sample of semen of both the appellants taken by the Medical Officer is not disputed. No infirmity could be brought or set in respect of taking sample of semen of appellant No. 2 as also detection of semen of blood group 'O' by the Chemical Analyser as detailed in the report Exhibit 42. It is needless to say that the detection of semen of the same blood group as that of appellant No. 2 on the skirt of the prosecutrix is certainly a factor or circumstance which lends assurance to involvement of the appellant No. 2 in commission of the offence. To say the least the oral evidence of prosecutrix and witness Murari on the factum of commission of sexual assault by appellant No. 2 is confirmed and authenticated also because of this positive finding on the basis of report of Chemical Analyser - Exhibit 42. So with the evidence on record the offence under Section 376(2)(g) of Indian Penal Code is clinchingly brought home by the prosecution as against the appellants. The trial Court has committed no error in holding the accused guilty of the said offence. There is absolutely no reason to interfere with these findings of conviction of the "appellants for the said offence.

14. Learned counsel for the appellants vehemently urged that sentence awarded by the trial Court is unjust and disproportionate having regard to the circumstances attending including the age of the offenders. I have given my considerable thoughts to the preposition of submission made by the learned counsel on the point of sentence. In fact the trial Court has dealt with the situation as it appears that the defence was heard on the point of sentence. It is clear that before the trial Court leniency was claimed. In my opinion, for considering quantum of sentence to be awarded, the nature of offence committed by the accused is certainly relevant. It is needless to say that as it is in the present case, the sexual assault has been committed on minor girl by the appellants. It is pointed out in the earlier part of the judgment that the appellant No. 2 in fact made prosecutrix to enter the house on the pretext that she was called by her friend, who happened to be sister of appellant No. 2. It was in that situation when she entered the house, the appellant without having regard to the relations inter se as to the friendship of the prosecutrix vis-a-vis Mamata the sister of appellant No. 2 and also faith she had, committed sexual intercourse, taking disadvantage of the helpless situation of the prosecutrix. It was not only heinous but inhuman having regard to the tender age of the prosecutrix. In this background, younger age of accused is absolutely irrelevant consideration for showing leniency to the appellants. It cannot be lost sight of that because of the inhuman act and that too shamelessly committed by the appellants, the life of the minor girl - prosecutrix was ruined. That the appellant had no bad record of the past cannot be considered as a ground sustainable to earn leniency on the question of sentence. Therefore, I do not agree with the learned counsel for the appellant that the trial Court erred in inflicting the punishment of 10 years R.I., though it may appear to be harsh.

15. In the result, for the reasons stated above, I do not find any merit in this appeal. No interference is called for. The appeal deserves to be dismissed and same is dismissed.