Kallu @ Kalimkhan S/O Gauskhan (In ... vs The State Of Maha. Thr. P.S.O. ...
2016 Latest Caselaw 4097 Bom

        apeal566.14                              1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO.566 OF 2014.




                                                            
       APPELLANT:                  Kallu @ Kalimkhan s/o Gauskhan,
                                   aged about 30 years, Occu: Labour,
                                   R/o Najuk Nagar, Mohta Mill Road,




                                             
                                   Marghat, Akola,Tq.and Distt.Akola.
                             
                                                : VERSUS :

       RESPONDENT:       State of Maharashtra,
                            
                         through Police Station Officer,
                         Police Station, Ramdaspeth, Akola.

       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
      


       Mr.D.A.Sonwane,   Advocate   (appointed)   for   the   appellant.
       Mr.N.B.Jawade, Addl.Public Prosecutor for the State.
   



       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                      CORAM:     V.M.DESHPANDE, J.

                                             DATE:     25th JULY, 2016.


       ORAL JUDGMENT :

1. Being aggrieved by the judgment and order of

conviction passed by the learned Additional Sessions Judge, Akola

in Sessions Trial No.73 of 2012, by which the appellant was

convicted for the offence punishable under Section 376 of the

Indian Penal Code and was directed to suffer rigorous

imprisonment for ten years and to pay a fine of Rs.2000/- and in

default of payment of fine to suffer rigorous imprisonment for two

months, the appellant is before this Court.

2. The prosecution case is as under -

Prosecutrix along with her aunt Mumtazbee w/o Shaikh

Rasool (PW 4) came to the Police Station Ramdaspeth, Akola on

31st of December, 2012. Mumtazbee informed Rahul Libasrao

Athawale (PW 6), a Assistant Police Inspector of Police Station

Ramdaspeth that the appellant has committed rape on minor girl,

the prosecutrix. That time, Rahul Athawale found that the girl

was weeping. Therefore, immediately, he sent said girl to the

Government Hospital, Akola for treatment. Thereafter, he

recorded the complaint filed by Mumtazbee. Her oral report is at

Exh.28. The same was registered as Crime No.14 of 2012. The

printed FIR is at Exh.29.

3. The First Information Report shows that the Prosecutrix

was aged about nine years and was taking education in fourth

standard. Her school timings were from 11 a.m. to 5 p.m. On the

day of the incident i.e. on 31st of January, 2012 the first informant

returned to her house at 7.45 p.m. from Bazar, that time the elder

sister of the prosecutrix namely, Sajiya aged about 11 years

informed her that the present appellant has committed rape on the

prosecutrix. Therefore, the first informant called the prosecutrix

to her house, that time she noticed that her clothes were stained

with blood. She also noticed that the blood was oozing from her

private part and also noticed injury on her private part. That time,

she made enquiry with the prosecutrix as to how this has

happened, upon which it was revealed to her that the appellant to

whom the prosecutrix used to refer as Kallu Mamu lifted her and

took to a secluded place and thereafter he committed rape on her

and also threatened to her that if this is disclosed he will kill her.

4. The Investigating Officer thereafter gave a letter

(Exh.18) containing some queries to the Medical Officer. He

seized clothes of the prosecutrix. Her vaginal swab and blood

sample were obtained under Seizure memo (Exh.34). So also,

the blood of the accused and his clothes were seized under Seizure

Memo (Exh.35). The spot of the occurrence was also prepared in

presence of panchas (Exh.36). Dilip Shinde (PW 5) has proved all

the aforesaid panchanamas. After the completion of the

investigation, Charge-sheet was filed.

5. After registration of the case as Sessions Trial, a Charge

was framed against the appellant. He denied the same and

claimed for his trial. The prosecution has examined in all six

witnesses to bring home the guilt of the appellant. His statement

under Section 313 of the Code of Criminal Procedure was also

recorded. From the line of the cross-examination and from his

statement, the case of the appellant is that he was falsely

implicated in the crime.

6. Heard Shri D.A.Sonwane, the learned counsel for the

appellant and Shri N.B.Jawade, the learned Additional Public

prosecutor for the State. According to the learned counsel for the

appellant, he is falsely implicated in the crime. He submitted that

looking to the fact that no external injuries were found on the

person of the prosecutrix, the false implication is not completely

ruled out. He therefore submitted that the appellant be set free

by allowing the appeal.

Per contra, the learned Additional Public Prosecutor

supported the impugned judgment. He submitted that no error is

committed by the learned Court below while convicting the

appellant as the Court below has correctly appreciated the

evidence brought on record by the prosecution. Hence, he prayed

for dismissal of the appeal.

7. There is no dispute in respect of the age of the

prosecutrix. She was nine years old at the time of the incident. It

is nowhere suggested by the defence that at that age she has

attained puberty.

8. The prosecutrix reveals that she used to call the

appellant as Mamu. In the cross-examination it is brought on

record that the prosecutrix used to go always to the house of the

appellant therefore the appellant was well versed and well known

to the prosecutrix. According to the evidence of the prosecutrix,

on the day of the incident the appellant asked her to call his wife

who went for easing and since that time some light was there the

prosecutrix obliged the request made by the appellant. At that

time, the appellant lifted her on his shoulder and took her to a

ditch and thereafter has committed shameful act with the

prosecutrix. While returning to the house, on way, the prosecutrix

noticed her sister Sajiya to whom she narrated the incident.

Therefore, she was taken to the house of Mumtazbee

(PW 4) to whom the incident was narrated and she was taken to

the police station by Mumtajbee. The cross-examination of the

prosecutrix shows that her evidence relating to the main incident

is not shattered at all.

9. Neethika Ram Mohan Raghuwanshi (PW 2) was the

Medical Officer at Main Hospital, Akola on 31 st of January, 2012.

The prosecutrix was referred to this doctor for her medical

examination. According to the evidence of Dr.Neethika, on local

examination she noticed blood stains on private part and thighs

and there was 0.5 x 0.5 cm. tear at the fourchette. The

prosecutrix was admitted in the hospital as a indoor patient from

31st of January, 2012 to 3rd of February, 2012. The Discharge

Card is at Exh.20. Dr.Neethika points out from the Discharge

Card that she was required to give injection to stop the bleeding

and antibiotics for preventing infection. She has stated that there

is a possibility of such injuries due to forceful sexual intercourse.

In the cross-examination it is brought on record that laceration of

0.5 cm. to fourchette is not possible due to itching by fingers.

Insofar as not noticing of external injuries on the person, doctor

has stated in her cross-examination that if the girl had not resisted

then there is no possibility of having any injury on her person. We

cannot forget that the age of the prosecutrix was only 9 years

whereas the age of the appellant was 30 years. In that event the

resistance by such little girl is out of imagination. And therefore,

the appellant cannot take advantage of not noticing any external

injuries on the person of the prosecutrix.

10. The learned Judge of the Court below has appreciated

the evidence brought on record by the prosecution in its true

perspective. In my view, there was no reason for the prosecutrix

to falsely implicate the appellant. Nothing is brought on record to

draw such inference.

Further, the First Information Report is immediately

lodged. The lodging of the First Information Report immediately

rules out the possibility of false implication. As soon as it was

brought to the notice of Mumtazbee that blood was oozing from

the private parts of the prosecutrix, she immediately took her to

the Police Station without consulting anybody. That rules out the

fabrication against the appellant. The prosecutrix was

immediately referred to the Medical Officer who noticed that the

blood was oozing from her private part as observed in the

preceding paragraphs of this judgment. The prosecutrix was

required to be an indoor patient. That shows trauma, both

physically and mentally, the little girl must have suffered. In my

view, no case is made out for interference by the appellant to the

well reasoned judgment delivered by the learned Court below.

Hence, I pass the following order.

-ORDER-

The appeal is dismissed.

The fees to be paid to the learned counsel appointed by

the Legal Aid Committee to represent the appellant is quantified at

Rs.5000/- (Rupees Five thousand only)

JUDGE JUDGE

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