Bombay High Court
Shravan Pintu Prabhakar Salunkhe vs The State Of Mah on 7 April, 2016
Bench: I.K. Jain
1
CRI.APPEAL.346.02.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 346 OF 2002
Shravan @ Pintu Prabhakar Salunke,
age : 20 yrs,
R/o. Adavad, Tq. Chopda,
Dist. Jalgaon. ... APPELLANT
(Original Accused)
V E R S U S
The State of Maharashtra,
(Copy to be served on Public
Prosecutor, High Court of Judicature
of Bombay, Bench at Aurangabad.) ... RESPONDENT
(Original Complainant)
...
Mr. Dnyaneshwar Patil, Advocate h/f Mr. G. V. Wani, Advocate for
Appellant.
Mr. S. N. Morampalle, APP for Respondent / State.
...
CORAM : INDIRA K. JAIN, J.
DATE : 07th April, 2016.
ORAL JUDGMENT:
. This appeal takes an exception to the judgment and order
dated 7th May, 2002 passed by the learned Additional Sessions Jude,
Amalner in Sessions Case No.37 of 1997. By the said judgment and
CRI.APPEAL.346.02.odt
order Appellant was convicted of the offence punishable under
Section 376 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for seven years and fine of Rs.1,000/- with a
default clause.
2 Prosecution case in brief is as under :
I. Incident occurred on 6th April, 1997 between
01:00 and 01:30 p.m. in the field of one Sharifabi
Rauf situated at village Adavad, Taluka Chopda,
District Jalgaon. Prosecutrix, a 12 year old girl
was residing with her parents in the same village.
She was studying in 5th standard. On the fateful
day at around 10:00 a.m. prosecutrix alongwith
her friend Guddi went to collect firewood. When
they were returning home Accused who was on
bullock cart met them on the way. Prosecutrix
and her friend Guddi sat in the bullock cart of
Accused. It is alleged that at some distance
Accused untied the bullocks and asked
prosecutrix and her friend to wait near mango
CRI.APPEAL.346.02.odt
tree. Accused then left the place. After some
time, he came back and took them to a field
where Accused asked prosecutrix to allow him
for sexual intercourse. Prosecutrix refused for the
same. Accused then caught hold hands of
prosecutrix, took her to banana garden,
undressed her and committed sexual intercourse
forcibly. Incident was witnessed by Guddi friend
of prosecutrix.
II. Report of the incident was lodged to Police
Station at around 03:35 p.m. Clothes of
prosecutrix were seized under seizure
Panchanama. Accused was arrested. On the
same day spot Panchanama was drawn in the
evening. Prosecutrix had shown spot of incident.
She was referred to Cottage Hospital. Accused
was also sent for medical examination. Semen,
blood and pubic hair samples were collected.
Same were sent for analysis to the laboratory.
Statements of witnesses were recorded. After
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completing investigation charge-sheet was
submitted to the Court of Judicial Magistrate First
Class, Chopda who in turn committed the case
for trial to the Court of Sessions.
3 Charge of the alleged offence was explained to the
Accused. He pleaded not guilty and claimed to be tried. His defence
was of total denial and false implication.
4 Prosecution examined 10 witnesses in support of its case.
Considering the evidence of prosecution witnesses and particularly
prosecutrix and medical officer Trial Court came to the conclusion that
Accused was guilty of committing sexual assault on prosecutrix and in
consequence thereof Accused was convicted. Being aggrieved by
the judgment and order of conviction present appeal has been
preferred by the original Accused.
5 Heard the learned counsel for parties. Perused
reasonings recorded by Trial Court. On meticulous examination of
evidence of prosecutrix and medical officer this Court finds that
prosecution has proved the charge against Accused under Section
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376 of the Indian Penal Code.
6 Needless to state that age of prosecutrix is an important
factor which is to be considered at the threshold. Incident took place
in 1997. Prosecutrix was examined in Court in February 2002. At the
time of her examination before the Court she stated her age as 16
years. There is no effective cross-examination of prosecutrix on age.
True, investigating agency has not collected school certificate or birth
certificate of prosecutrix to prove her age. Investigating Officer has
admitted that no document was collected regarding age of
prosecutrix. But the question here is whether inaction on the part of
investigating agency in not collecting evidence on age would be fatal
to the prosecution case and in the given facts and circumstances of
the case apparently answer would be in the negative.
7 It is significant to note that in his written defence Accused
has admitted in an unequivocal terms that prosecutrix was of tender
age. He did not cross-examine prosecutrix when she stated her age
in the year 2002 as 16 years. Since factum of age of prosecutrix is
not seriously challenged this Court too finds that prosecutrix was
under age at the time of incident.
CRI.APPEAL.346.02.odt
8 In her further evidence prosecutrix stated that on 6 th April,
1997 in the morning she left the house alongwith her friend Guddi.
They went to collect firewood. On the way Accused met them. He
was proceeding on bullock cart. Prosecutrix and her friend with the
permission of Accused sat in bullock cart. At some distance, bullock
cart was stopped by Accused. He asked them to wait near mango
tree and left the place. After some time, he came and asked
Complainant to allow him for sexual intercourse. She refused. Her
evidence indicates that thereafter Accused took her to banana crop.
He lifted her petticoat, removed her nicker and then committed sexual
intercourse with her. It is stated by prosecutrix that seeing one S.T.
bus proceeding through the road she was released by Accused. She
stated that blood was oozing from her private part. She came to the
house and narrated the incident to her parental aunt and father.
Thereafter they went to Police Station and lodged report.
9 Prosecutrix was cross-examined at length. Nothing
substantial could be elicited in her piercing cross-examination to
disbelieve her testimony. Defence has raised a ground that
prosecutrix was 12 years old at the relevant time and considering her
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age it was not possible for her to give vivid account of incident which
shows that she was a tutored witness. Prosecutrix was not put on a
guard in her cross-examination and the statement made on behalf of
defence that it is not possible for a 12 year old girl to give vivid
account of incident, holds no water as nothing could be brought in the
cross-examination of prosecutrix to show that she was a tutored
witness.
Commenting upon the evidence of prosecutrix learned
counsel for Appellant vehemently contended that her testimony is not
corroborated by independent witness and it would be risky to rely
upon sole testimony of Complainant. This is a case in which sexual
assault at the hands of Accused is alleged. In such a case as law
stands reliance can be placed on the sole testimony of prosecutrix if it
inspires confidence. On the close scrutiny of evidence of prosecutrix
it can be seen that she had no reason to grind an axe against the
Accused. Her evidence is consistent throughout and there is no
reason to discard her testimony.
11 This takes this Court further to the evidence of medical
officer. PW-3 Dr. Deepak Chaudhary was attached to Cottage
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Hospital as medical officer. On 10th April, 1997 he was on duty. He
states that at 06:15 p.m. he examined prosecutrix brought by P.S.I. of
Adavad Police Station. On examination doctor found multiple fine
abrasions on the back of patient. Hymen was found in torn condition
and blood was oozing through hymenal laceration. On examination
medical officer issued certificate vide Exhibit 21. Doctor opined that
injury at serial No.7 mentioned in the certificate can be possible by
penetration. Evidence of medical officer supports the evidence of
prosecutrix on sexual assault.
12 Appellant attempted to assail the evidence of medical
officer on the ground that he examined prosecutrix at 06:15 pm in the
hospital whereas spot Panchanama Exhibit 17 indicates that it was
recorded between 17:30 and 18:30 hours. Learned counsel for
Appellant submitted that one person cannot remain present at two
different places at one point of time and this falsifies the evidence of
medical officer that he examined the prosecutrix at 06:15 p.m. at the
hospital.
13 If evidence of Investigating Officer PW-10 A.P.I. Sanjay
Patil is looked into it is apparent that prosecutrix was not taken to
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hospital at 06:15 p.m. Evidence of Investigating Officer shows that
after drawing spot Panchanama he returned to Police Station within
15 - 20 minutes and thereafter prosecutrix was sent to hospital. This
clarifies that medical officer committed an error in showing time
06:15 p.m. in the certificate and also stating the same in his evidence.
The error is human and in view of evidence of investigating officer
would not be fatal to prosecution case.
In the above background this Court is of the view that
Trial Court has rightly come to the conclusion that prosecution has
succeeded in proving the guilt of Accused beyond reasonable doubt.
There is no substance and merits in appeal. Hence the following
order -
O R D E R
Criminal Appeal No.346 of 2002 stands dismissed.
[ INDIRA K. JAIN, J. ]
ndm
