Bhiku Tukaram Jadhav vs The State Of Maharashtra
2011 Latest Caselaw 274 Bom

    sat                                   1
                                                                     crim.appeal 1091-2008


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                   CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO. 1091 OF 2008




                                                        
          Bhiku Tukaram Jadhav                    )
          Now lodged at Kolhapur                  )
          Central Prison,                         )




                                                       
          Kolhapr-7                               )      ...Appellant

                       vs.




                                             
          The State of Maharashtra                )
          Panchgani Police Station,
                              ig                  )
          Tal.Mahabaleshwad,                      )
          Dist.Satara                             )      ...Respondent
                            
          Mrs.Anjali R. Waghmare, Advocate appointed for the
          Appellant.
          Mr.P.S. Hingorani, APP for the State.
            
         



                              CORAM : M.L. TAHALIYANI, J.

DATED : DECEMBER 23, 2011

JUDGMENT :-

1 The appellant is found guilty by the trial court of

the offence of rape punishable u/s.376(2)(f) of IPC and is

sentenced to suffer R.I. for ten years and to pay a fine of Rs.

5000/-, in default, to suffer further R.I. for six months.

crim.appeal 1091-2008

2 The appellant had sexual intercourse repeatedly

with his own daughter Vanita, who is the complainant in the

present case. The offence was committed at two places i.e.

Bhogavali and Village Kaswand in District Satara. At the time

of recording of evidence of the victim/complainant, she was

staying at Mahila Sudhar Griha, Pune.

3 It is a case of prosecution that the complainant was

educated upto the 3rd Standard. She left school as the appellant

was not permitting her to attend school for further education.

She was about 9 years old when she left education. She was

staying at village Bhogavali with the appellant, her mother and

second wife of the appellant. The complainant used to sleep

with the appellant while they were staying at Bhogavali. It

appears that while they used to sleep together, they used to be

physically very close to each other and taking advantage of that

situation, the appellant started sexually abusing his own

daughter. He started indulging into sexual intercourse with her.

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It is alleged that on first occasion, there was bleeding from

vagina of the complainant. She however did not report the

matter to her mother or second wife of the appellant. As such,

the abuse continued and the appellant had been indulging in

sexual intercourse with the complainant at frequent intervals. In

the result, after a few months, the victim conceived and it had

become difficult for her to conceal this fact from her mother.

She, therefore, disclosed to her mother that she had been

sexually abused by her own father. She did not earlier disclose

to her mother due to the threats extended by her father that in

the event she discloses the misdeeds of the appellant to her

mother, the complainant would be killed by some poisonous

substance. It appears that ultimately it is the third wife of the

appellant who had taken the complainant to her house at Sangli

where the complainant stayed for two months. Thereafter, she

had brought the complainant to Mumbai. After a few days, she

was taken to village Kaswand. Thereafter, she was again taken

to Borivali. The step mother of the complainant i.e. third wife of

the appellant had kept the complainant at the house of one lady

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known to her. It appears that the complainant was kept at

Borivali so that the villagers did not come to know that the

complainant was pregnant. It appears that gradually that lady

won confidence of the complainant and suggested her to file a

complaint at police station. The complainant, therefore, came to

village Kaswand and went to Panchgani with Police Patil. She

narrated the incident to Police. The offence was registered vide

CR No.30/2006 at Panchgani Police Station against the

appellant.

4 Statements of witnesses were recorded, spot

panchnama was drawn and the complainant was medically

examined. After completion of investigation, chargesheet was

filed in the court of Magistrate. The case was committed to the

Court of Sessions.

5 The learned trial court framed the charge u/ss. 376

and 506 of IPC. The accused pleaded not guilty and claimed to

be tried. During the course of trial, eight witnesses were

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examined by the prosecution.

6 PW 1 is the panch witness. PW 2 Anusaya is

mother of the complainant Vanita and wife of the appellant. PW

3 is Vanita herself. PW 4 is one of the witnesses who had

employed the appellant as a Gardner. PW 5 is one of the wives

of the appellant (not mother of the Vanita). PW 6 is the Medical

Officer. PW 7 is also Medical Officer and PW 8 is the

Investigating Officer.

7 PW 3 Vanita has more or less repeated of what has

been stated by her in the complaint to the Panchgani Police

Station. She has stated in her evidence that she used to sleep

with her father. It is further stated that at one night, accidentally

her hand had gone towards the undergarment of her father. It is

at that time that the appellant woke up and committed rape on

her. She has stated that her father had inserted his private part in

her private part. She had sustained injury due to forcible

penetration. The blood was oozing from her vagina. She

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however did not disclose this fact to anybody. Thereafter her

father continued to indulge in sexual intercourse with her

whenever both of them were alone at home. These frequent

incidents had occurred at village Bhogavali. It is stated by PW 3

that after few days PW 3 herself, her mother, the appellant and

second wife all shifted to village Kaswand. The appellant was

working as Gardner at the bungalow of one Anand Bhilare.

They were staying in the house constructed in the front of said

bungalow. The alleged nefarious activities of the appellant did

not stop here also. It is stated by PW 3 that he continued to

molest her time and again. After few months, her menstrual

period did not occur as usual. She was feeling nauseous and

vomiting sensation. She narrated this to the appellant. The

appellant, however, told her that she should not disclose this

fact to her mother and in the event of she disclosing this fact to

her mother, she would be killed by the appellant by

administering poison. She was taken to Government Hospital

by her step mother. Thereafter, she was taken to Mumbai by the

said step mother. She was again brought to Kaswand. Her step

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mother had again taken her back to Borivali and had kept her in

custody of one lady known to her step mother. It is in the

custody of that lady the PW 3 disclosed this fact to the lady who

suggested her to lodge a police complaint. Therefore, PW 3 had

come to Kaswand and visited Panchgani police station with

Police Patil and reported the matter to police.

In the cross-examination, the PW 3 has admitted

that she did not resist when the appellant was removing her

undergarments. She was unable to tell the exact time as to when

the first incident of alleged rape had occurred. Nobody was

present when the alleged incident had occurred. In the cross-

examination, she has further stated that normally her mother

used to wash her clothes. However, on that day, she had washed

her own clothes because of blood stains. PW 3 has denied that

she had physical relations with other villagers also and she had

conceived due to the relations with other villagers. It appears

from the cross-examination of this witness that by the time she

had given evidence before the court, she had delivered a baby

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boy.

9 PW 2 Anusaya is her mother. She was married to

the appellant about 24 years ago. She was staying with the

appellant at Bhogavali. She could not conceive for about four

years after the marriage. The appellant, therefore, performed

second marriage with a lady by name Suman. PW 2 had

delivered three daughters after the marriage of the appellant

with Suman. PW 3 is one of the daughters of PW 2. The

appellant was staying with the second wife Suman for about 20

years in Mumbai. After staying with her for about 20 years in

Mumbai, he had returned to Bhogavali along with his second

wife Suman. He had brought one more lady by name Jayashri

with him when he returned from Mumbai to Bhogavali.

10 The appellant, the PW 2 and 3 and 3rd wife of the

appellant were staying together at village Bhogavali. PW 3

Vanita used to sleep with the appellant and the mistress (third

wife) of the appellant viz. Jayashri. It is stated by this witness

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that as there was bleeding Vanita's vagina, she had told the

appellant that it was not proper on his part to indulge into

sexual intercourse with his own daughter. The appellant

however had no repentance of any nature. On the contrary, he

challenged PW 2 that she could do whatever she wanted. As

there was no work at Bhogvali, the appellant along with his

family members including PW 3 had shifted to Kaswand. He

was working as a Gardner in the bungalow of Anand Bhilare

and was staying with family in the house situated opposite the

said bungalow. It was suggested to this witness that she was not

happy with the appellant as the appellant had married two more

ladies and because he had stopped earning due to spinal cord

problem. She has denied the suggestion. She had also denied

that PW 3 had illicit relations with three to four boys of

Bhogavali and Kaswand. It appears from the evidence of this

witness that Vanita was taken to Sangli by mistress (third wife

Jayashri) of the appellant after she got pregnant and her

pregnancy was becoming apparent.

crim.appeal 1091-2008

11 PW 4 has stated that the appellant was working as a

Gardner in the bungalow of his maternal uncle Anand Bhilare.

It is not necessary to discuss the evidence of this witness in

detail. This witness was examined only to bring on record that

for sometime, the appellant along with his family members had

shifted from Bhogavali to Kaswand.

PW 5 Suman is the second wife of the appellant.

She has stated that after her marriage with the appellant, the

appellant was staying at Bhogavali for some days. The evidence

of this witness also does not require much discussion as there is

nothing material in the evidence of this witness which could

help this Court in any manner.

13 PW 6 Dr.Jayashri Dange had opined that the

accused was able to perform sexual intercourse.

14 PW 7 Dr.Rohan Raokhande had given opinion on

4th December 2006 that PW 3 was pregnant and she was

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carrying 34 weeks old foetus.

15 PW 8 is the Investigating Officer. He had

registered the offence on the complaint made by PW 3 on 4th

December, 2006. PW 3 was sent to Civil Hospital for medical

examination. PW 8 had also visited the spot of the alleged

incident at Kaswand. PW 3 was sent to Mahila Sudhar Griha by

this witness. It is admitted by this witness in his cross-

examination that the villagers of village Bhilar including the

Sarpanch had accompanied the PW 3 when she had gone to

police station to lodge report.

16 From the examination-in-chief of PW 3, it is

absolutely clear that she had stated that she was sexually

assaulted by the appellant on number of occasions. She

conceived because of sexual intercourse on the part of the

appellant. She had disclosed this fact to her mother (PW 2). The

PW 3 was threatened by the appellant that she should not

disclose the incident to anybody else and in the event of she

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disclosing, she would be killed by him by administering poison

which is normally used in villages for killing rats. It has also

come in the evidence that PW 3 was taken to village Sangli and

then she was taken to Mumbai and was kept in the custody of

one lady at Borivali. PW 3 was advised by that lady to file

police complaint. It is on the advice of that lady that PW 3 had

come to meet Police Patil and thereafter she had gone to

Panchgani to file an FIR.

17 From the trend of cross-examination of witnesses,

it appears to be a case of the appellant that he has been falsely

implicated by PW 2 Anusaya, who is first wife of the appellant,

because Anusaya was unhappy over the relations of appellant

with his second wife Suman and mistress Jayashri. I have

carefully gone through the cross-examination of all the

witnesses, particularly, PW 3. I do not find anything in the

cross-examination which renders the evidence of PW 3

nugatory or suspicious.

crim.appeal 1091-2008

18 It could be argued that there was inordinate delay

in lodging the FIR and therefore, possibility of false implication

could not be ruled out. It could be further argued that PW 2,

wife of the appellant, who was mother of PW 3 victim of the

offence, might have instigated the PW 3 to lodge the complaint

and that PW 3 might have conceived due to illicit relations with

the boys of the village. However, there is nothing on record to

jump to such conclusion.

19 One may also argue that there is no explanation as

to why the PW no.3 did not disclose that she was being sexually

abused by her father despite the fact that she was being

subjected to sexual intercourse repeatedly. In this regard, if one

study the findings of researchers of psychology of child victims

of rape, it could be seen that there are many valid reasons which

could be cited to explain as to why the sexually abused child

does not disclose the abuse immediately. The child psychology

researchers have found that the abuser makes the victim feel

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that she had caused offender to act inappropriately. In the

present case, it is seen from the evidence that the PW 3 was

sleeping by the side of the appellant and on the first occasion, it

was her hand which had accidentally extended to the

undergarments of the appellant. The child abusers also are in the

habit of making the child feel that the child is also guilty party

and if the child discloses the fact to others, she will be ridiculed

in the family or the society. This is one more reason that the

child victims of sex abuse do not disclose the abuse for a long

time. Once there is a feeling in the mind of victim that she

herself is also responsible for the abuse, she cannot resist or

oppose the subsequent attempts made by the abuser. This is how

the sex abuse continues for a longer time till it is revealed by

the victim or is detected by somebody else.

20 No doubt that the matter was reported to police

very late i.e. only after detection of pregnancy of about 34

months. However, there is nothing on record to indicate that the

PW 3 had conceived due to any other sexual intercourse than

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the sexual intercourse with the appellant. Moreover, the

evidence clearly establishes that the appellant had committed

sexual intercourse with the victim on many occasions. It has

come on record that the appellant had threatened PW 3 that in

case she disclosed the misdeeds of the appellant to her mother

or anybody else, she would be killed. It is necessary to be stated

here that in the cases of rape, particularly the sexual assault on

children, it is the psychology of child to obey the orders of the

rapists if he is her custodian, may be father, uncle, teacher or

warden of the hostel. It is also seen that most of such children

who are dependent on abusers abide by their orders. There are

many reasons for children not disclosing the fact of sexual

abuse to their relatives or friends. One of the reasons is that they

are threatened. The other reason is that in many cases, they are

dependent on the persons who had sexually abused them. It is

also seen that there is threat from the abuser to the near and dear

ones of the sexually abused child. In the present case, it appears

that PW 3 was afraid of being killed at the hands of the

appellant. If one takes overall view of the case, it can be said

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that PW 3 also might be afraid that in case she discloses this

fact to her mother or anybody else, her mother Anusaya also

might be subjected to cruelty by the appellant. As the appellant

had married Suman as his second wife and had brought his

mistress Jayashri at home, the apprehension of PW 3 was

genuine.

In fact, it is difficult for anybody to definitely find

out the reason for non-disclosure on the part of child of sexual

abuse. The psychologists have cited many reasons. Some of

them have been referred by me hereinabove. However, if the

evidence of abused child is accepted, it is not necessary for

Court to search for definite reason as to why the abuse was not

reported to the relatives or friends for long time. In my

considered opinion, non-disclosure by sexually abused child for

long time by itself cannot be a reason to throw away the

evidence of sexually abused if it is otherwise believable.

22 In the present case, I have minutely examined the

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evidence of PW 3 from all angles. I am of the definite view that

the PW 3 is a truthful witness. She might have made

exaggeration at some or other place, that does not cause any

embellishment of serious nature to her evidence. It is also

noticed by me that PW 2 Anusaya, mother of PW 3, has also

made certain exaggerations in her evidence. At one stage she

had gone to the extent of stating that once she had personally

seen the appellant having sexual intercourse with PW 3. This

may not sound correct. This might be exaggeration. But at the

same time, this exaggeration or some other embroidery made by

PW 2 in her evidence at one or two other places cannot be a

reason to disbelieve the evidence of PW 3. In fact, in the present

appeal, the whole charge depends upon the evidence of PW 3. I

do not find any reason to reject her evidence. In my view, the

learned trial court has rightly believed the evidence of PW 3.

No doubt the Courts shall always be on guard in such cases.

Possibility of false implication at the instance of some

aggrieved person is always there. In the present case it could be

mother of the victim and wife of the appellant PW 2. Such

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possibility must be ruled out before accepting the evidence of

victim. However it shall be borne in mind that a witness who

is not truthful, particularly child, normally gives some or other

admissions in the cross-examination which may create a doubt

about genuineness of the evidence of witness. Evidence which

is partly false is not necessarily false in its entirety. The maxim

'false in uno falsus in omnibus' has no application in India and

the witness or witnesses cannot be branded liers. The Hon'ble

Supreme Court in the case of Jaya Seelan vs. State of Tamil

Nadu {(2009) Criminal Law Journal, Page 1758) at para 5

has observed :

5. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by PW1 to a large extent to contend about desirability to throw out entire

prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of

an accused, his conviction can be maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not

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ruin it from the beginning to end. The maxim "falsus in

uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim "falsus in uno falsus in omnibus" has not received

general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The

doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence. (See Nisar Alli v. The State

of Uttar Pradesh [AIR 1957 SC 366]. In a given case, it is always open to a Court to differentiate accused who had

been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460] .

The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal

justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the

main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the

testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does

not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972(3) SCC 751] and Ugar Ahir and Ors. v. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor,

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separate grain from the chaff, truth from falsehood.

Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be

reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in

toto. (See Zwinglee Ariel v. State of Madhya Praadesh [AIR 1954 SC 15] and Balaka Singh and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed by this Court in State of Rajasthan v. Smt.Kalki and Anr. [1981

(2) SCC 752], normal discrepancies in evidence are those which are due to normal errors of observation, normal

errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest

and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal

discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were

highlighted in Krishna Mochi and Ors. v. State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh v. State of Punjab [2003 (7) SCC 643]. It was further illuminated in the Zahira H. Sheikh v. State of Gujarat [2004(4) SCC

158], Ram Udgar Singh v. State of Bihar [2004(10) SCC 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12) SCC 449], Gubbala Venugopalswamy v. State of Andhra Pradesh [2004 (10) SCC 120] and in Syed Ibrahim v. State of A.P. (2006(10)SCC 601).

23 In the present case, it is established by the

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evidence of PW 3 that the appellant had sexual intercourse with

PW 3. The issue whether it was by consent or without consent,

does not arise as the PW 3 was admittedly below 16 years of

age. As such, it is proved that the appellant had committed

offence of rape. The issue before the trial court was whether it

amounted to rape simplicitor or rape committed on a woman

who was under 12 years of age. The trial court while deciding

this issue has stated that the evidence of PW 3 indicates that the

first intercourse was committed when the PW 3 was 8 to 9 years

old. This is based on the oral testimony of PW no.3. The School

Leaving Certificate of PW 3 shows that she was born on 7th

October, 1993. The matter was reported to police on 4th

December, 2006. She was carrying foetus of 34 weeks old. It

means more than eight months. She was 13 years 2 months old

at the time of filing of FIR. The date on which she had

conceived was 34 weeks before the date of her FIR. As such she

was about 12 years 4 months old. From the evidence of PW 3, it

is absolutely clear that the appellant had been committing

sexual intercourse with PW 3 few months prior to the date of

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conception. He had been committing sexual intercourse with the

PW 3 much before the appellant along with his family including

PW 3 had shifted to Kaswand. They had stayed at Kaswand for

about four months. It is, therefore, apparent that the PW 3 was

subjected to sexual intercourse by the appellant before she had

attained the age of 12 years. She must have conceived after

attaining puberty. However, that has nothing to do with the first

intercourse she had with the appellant. The offence of rape was

committed by the appellant on the very day he had forcible

sexual intercourse with PW No.3 on his own bed at village

Bhogivali. As such, the appellant is rightly found guilty of the

offence punishable u/s. 376(2)(f) of IPC. The appellant is not

found guilty of the offence punishable u/s. 506 of IPC. Since

the State has not filed any appeal against the acquittal, it is not

necessary to examine that issue in the present appeal.

24 As far as sentence is concerned, the learned trial

court has imposed substantive sentence of 10 years and a fine of

Rs.5000/-. The appellant has been convicted of the offence

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punishable u/s.376(2)(f) of IPC. The minimum sentence

provided for such offence is 10 years and it may extent to

imprisonment for life. As such, there was no scope for the

learned trial Judge to impose lesser than the minimum sentence

unless there were adequate and special reasons to be recorded in

the judgment for imposing lesser than 10 years sentence. If one

goes through the judgment of trial court and this Court, it will

be abundantly clear that the appellant is a person of the nature

in whose custody even closest of the female relative was not

safe. One who could, taking advantage of age of his daughter,

molest his own daughter repeatedly does not deserve to be dealt

with leniently. He has not taken care of his legally married wife

i.e.mother of the victim. Instead, he got married to another lady

by name Suman. What is more pertinent to note is that after

staying together with Suman for about 20 years in Mumbai, the

appellant had carried one more female friend with him to his

native place who has been described as his third wife in the text

of the judgment. I do not think there were any special adequate

reasons for imposing lesser than the minimum punishment. I do

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not find any infirmity in the finding and sentence both.

25 For all these reasons, the appeal is liable to be

dismissed and the appeal is accordingly dismissed.

(M.L. TAHALIYANI, J.)