Rakesh Kisan Nagarale vs The State Of Maharashtra & Anr
2016 Latest Caselaw 2614 Bom

                                                        Criminal Appeal No.474/2015
                                              1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                                   BENCH AT AURANGABAD




                                                       
                            CRIMINAL APPEAL NO.474 OF 2015


     Rakesh Kisan Nagarale




                                                      
     Age 30 years, Occu. Labour
     R/o Chimthane,
     Tq. Shindkheda, District Dhule                    ...      APPELLANT

              VERSUS




                                         
     1.       The State of Maharashtra
                             
              through P.S.I., Shindkheda
              Police Station,
              District Dhule.
                            
     2.       Sangita Daga Koli,
              Age 35 years, Occu. Agri.,
              R/o Chimthane, Tq. Shindhkheda
              District Dhule                           ...      RESPONDENTS
      


                        .....
   



     Shri P.B. Patil, Advocate for appellant
     Shri P.N. Kutti, A.P.P. for respondent No.1/ State
     Shri B.S. Deokate, Advocate for respondent No.2
                        .....





                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       8th June, 2016.

                      Date of reserving judgment : 28th April 2016





                      Date of pronouncing judgment : 8th June, 2016.


     JUDGMENT:

1. The appellant - original accused has been convicted

under Section 376(2)(i) of the Indian Penal Code, 1860 (I.P.C. in

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brief) and under Section 4 of the Protection of Children from

Sexual Offences Act, 2012. Under Section 376 of the I.P.C., he

has been sentenced to suffer rigorous imprisonment for 10 years

with fine and under Section 4 of the Protection of Children from

Sexual Offences Act, he has been sentenced to suffer rigorous

imprisonment for 7 years with fine. The sentences have been

directed to run concurrently by the Additional Sessions Judge,

Dhule vide judgment dated 27.5.2015 passed in Special Case

No.55/2014. The present appeal is against the conviction and

sentence.

2. The case of prosecution in short is as follows :

a) On 2.5.2014, complainant (I am not reproducing her

name to conceal her identity in the judgment) filed

F.I.R. at Sindkheda Police Station in the morning. The

complainant is mother of victim girl, who was 5 years

old at the time of incident (I am not referring to the

name of the victim also). Complainant informed that,

she resides at Chimthane, Taluka Sindkheda along with

her husband and family. Near their house, the accused

Rakesh resides and he had family relations with the

family of complainant.

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b) F.I.R. mentions that, on 1.5.2014, at about 8.30 in the

evening, the complainant along with her husband and

parents-in-law had gone to the place of her sister-in-law

Ashabai for dinner. When they were having dinner at

the place of Ashabai, the accused came there and told

the husband of complainant that he wants mobile

charger to charge his mobile, at which time the husband

told accused that charger is at home.

ig Thereafter the

husband asked the minor victim to go home with uncle

Rakesh and give the charger which is kept near T.V.

Thereafter accused picked up the victim and she sat on

his hip and went away. At about 9.00 p.m., the victim

came back alone to the place of Ashabai and she was

crying. She had a Rs.10/- note in her hand and when

the complainant and other family members enquired

from her, she told that, Rakesh uncle had given that

Rs.10/- and that he had put her in the bed and removed

her underwear and had slept on her person after

removing his own underwear and had inserted

something in her private part. The complainant and her

family members then saw the private part of the victim

and found that there was drop of blood coming at the

place of private part. Therefore, the complainant along

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with her husband got frightened. They put the victim to

sleep.

c) F.I.R. further is that, on 2.5.2014, the victim girl told

the complainant that she is having pain in her private

part and the complainant was convinced that the victim

had been raped. Consequently, the complainant and

her family came to the police station along with the

victim and were filing the F.I.R.

3. Rajendra Baliram (P.W.5) then Police Inspector,

Sindkheda registered the offence at about 9.30 a.m. on 2.5.2014

and investigated the same. The clothes of the victim and the

amount of Rs.10/- were seized vide panchanama (Exh.18). The

investigating officer prepared the spot panchanama (Exh.21,

which was admitted by accused). The clothes of the accused

were also seized on the same day vide panchanama Exh.19. The

accused as well as the victim were referred for medical

examination to the hospital. Statement of the victim was got

recorded before Special Court, Dhule under Section 164 of Code

of Criminal Procedure. The samples of nail clippings, pubic hair

and blood of the accused were collected. The seized articles

were sent to Chemical Analyser and Chemical Analyser's report

was obtained. After investigation, the charge sheet came to be

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filed.

4. Charge was explained to the accused for offences

mentioned above. The accused pleaded not guilty. His defence,

as can be seen from the cross-examination of witnesses, is that

of denial. It is claimed that, father of the victim and the accused

were earlier working together at the place of one Namdeo Mistry

and they had quarreled and that's why the relations were

strained and because of such strained relations false case has

been filed.

5. Before the trial Court, the complainant was examined

as P.W.1 and the victim deposed as P.W.2. Prosecution

examined Dr. Vaishali (P.W.3) to prove the medical certificate of

the victim. One Dhanraj Koli (P.W.4) deposed as panch

regarding seizure of clothes of victim and Rs.10/-, and proved

panchanama Exh.18. He also proved the seizure of clothes of

the accused on same date of 2.5.2014 vide panchanama Exh.19.

The investigating officer Rajendra deposed as P.W.5.

6. The trial Court considered the evidence of prosecution

and the defence, and after considering the same, passed

conviction orders as mentioned above, further directing that if

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the fine amount is paid, it would be paid as compensation to the

complainant.

7. Against the conviction, the present appeal has been

filed. It has been argued by the learned counsel for the appellant

- accused, and grounds have been raised that the conviction was

incorrect and illegal. It is stated that, no prima facie case of

offence of rape was made out. The trial Court did not consider

that the victim being minor, it was possible to tutor her. The

evidence of the minor was required to be scrutinized properly

and consciously. According to the accused, the findings recorded

are perverse and contradictory. The case was not proved beyond

reasonable doubt. That, there was delay in filing of F.I.R. The

version of the victim was not corroborated. The medical

evidence did not support the version of victim. Nothing was

recovered from the accused and he has been falsely implicated

without there being any proof. The counsel submitted that, the

only evidence regarding the incident was that of the complainant

and the victim and no other witness was examined although the

evidence showed that in the neighbourhood there were other

people residing. It is stated that, in the F.I.R. the name of the

accused was referred as Rakesh Uncle, but in evidence, the

accused was referred as Bhurya Uncle. The evidence of doctor

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should not have been accepted that there was intercourse.

According to the counsel, the doctor need not have waited for

C.A. Report to give her opinion about intercourse. it is stated

that, P.W.1 deposed that they had gone to the police station in

the night itself, but the investigating officer deposed that the

complainant had come in the morning and then F.I.R. was

registered. It is argued that, the accused was only 23 years old

at the time of incident and if the conviction is to be maintained,

he may be released on probation as he is not hardened criminal.

8. Against this, the learned A.P.P. argued that, the

evidence of doctor shows that the hymen of such little girl got

torn in the incident. The C.A. report showed that there was

blood on the undergarments of the victim and shirt of the

accused and there was semen on his undergarments. According

to the learned A.P.P., the accused was 30 years old at the time of

incident and no case is made out for showing leniency to him for

having committed such serious offence against a child. He

supported reasons recorded by trial Court.

9. I have heard counsel for both sides and I have gone

through the record and proceedings. Regarding the incident, the

evidence of P.W.1 complainant and P.W.2 victim needs to be

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examined together. The evidence shows that, the victim was

about 5-6 years old at the time of incident. The complainant

deposed that, she knows the accused, whose name is Rakesh.

According to her, the accused is also known as Bhurya. The

evidence of these witnesses shows that, on the day of incident,

the complainant along with her in-laws and children had gone to

the house of her sister-in-law Ashabai for taking dinner, which

house was in another lane. The accused went to the said house

at about 8.00 -8.30 p.m. and he asked the husband of the

complainant for mobile charger. It appears from the evidence

that, the husband asked the victim to go along with the accused

to give the charger which was kept on the Television. It appears

that, the complainant was at that time having her dinner. She

saw the accused taking the victim carrying her on his waist (as

small children are carried in rural parts).

10. There is evidence of the victim that at the relevant

time she had gone to the house of her maternal aunt and from

there she was taken by the accused by lifting her on his waist, to

their house. The victim, who is a small child, was asked and

stated that, at the concerned time her parents and brothers were

at the house of maternal aunt. Regarding the incident, the victim

was asked in Question - Answer form and she informed that,

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when she was so taken at home, the accused removed her

undergarment and removed his own undergarments also. He

made the victim sleep on the cot and slept on her person. In her

way, the victim deposed that, due to the act of the accused,

blood started coming out from her private part and sustained

pain. Her evidence shows that, the accused gave her a note of

Rs.10/-. She deposed that, thereafter she went to where her

mother was and that she was weeping. Her evidence is that, she

narrated the incident to her mother referring to the accused as

Bhurya. The evidence of the victim further shows that, when

such act was committed by the accused, he had closed the door

of the house from inside. She identified the clothes which she

was wearing at the time of incident, in Court. She was asked

about the note of Rs.10/- and she stated that it was given to her

by Bhurya Uncle.

11. The evidence of complainant then shows that, after

the victim was taken by the accused as he wanted the charger,

the victim came back after some time having note of Rs.10/- in

her hand and she was continuously weeping. When asked, the

victim told complainant that, she was having pain in her private

part. Victim told complainant that she was made to sleep on the

cot and the accused had removed her undergarment and had

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slept on her person after removing his own undergarment. She

informed that, the accused had given her the note of Rs.10/- so

that she does not disclose the incident to anybody.

12. The evidence of complainant then shows that, she

had examined the private part of her daughter, when she came

to know about the incident and she noticed that blood was oozing

from it. According to her, the victim was in pains. Regarding the

injury to private part of the victim, the prosecution examined

P.W.3 Dr. Vaishali who deposed that the victim was referred to

her and she recorded the history of the incident on the basis of

what complainant informed her. The doctor was told that the

victim was having difficulty in passing urine since the earlier

night. Doctor also came to know that, after the incident has

happened, the victim had passed urine in the morning, which

was whitish in colour. The doctor examined the victim and found

that the victim had swelling at labia majora and labia minora and

there was swelling and oedema. Doctor found, there was

tenderness and oedema at vagina. Even the vulva had oedema.

Doctor found that, the hymen was torn. The doctor, in her

evidence, gave the opinion that the person concerned must have

tried to have sexual intercourse with the victim and must have

inserted his penis in her private part. The doctor proved medical

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certificate Exh.16 and also took support from C.A. report Exh.31

to state that the person concerned had inserted his penis in the

private part of the victim. The evidence of doctor is that, as the

victim has passed urine, chances of semen getting washed away

were there. As per the doctor, forcible intercourse had been

done, because of which she noticed the injuries as mentioned in

clause 12 of the medical certificate (which has been referred

above). It appears that, the doctor examined the victim at 6.30

p.m. on 2.5.2014.

13. The above evidence shows that the evidence of P.W.1

complainant and P.W.2, the victim, is supported by medical

evidence brought on record from the mouth of P.W.3 Dr.

Vaishali.

14. To challenge the above evidence of these witnesses,

the accused asked the complainant in her cross-examination and

she stated that, one can hear the talk in their house by sitting in

another house. She admitted that, one Sagunabai Patil resides

adjacent to their house and on day of incident, Sagunabai was at

her house. No doubt the witness made such statement, but by

that itself it cannot be presumed that at the time of actual

incident also Sagunabai was in hearing range. The victim girl

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was a small child, and mere crying of a child may not attract that

attention. The cross-examination of the complainant has shown

that they were living in "Beghar Vasti". The house of Ashabai

was in another lane. The living conditions can be understood

from the fact that complainant deposed in cross-examination that

while going to the house of Ashabai, they had closed the door of

their house by merely putting latch.

15.

In the cross-examination, complainant stated that,

she had told while giving report that the name of accused was

also Bhurya. The F.I.R. Exh.12 does not mention that the

complainant informed that accused Rakesh was also known as

Bhurya. The accused brought on record difference in version in

this count to say that, in the F.I.R. the accused was referred as

Rakesh and it was also stated that the victim told that she had

been violated by Rakesh Uncle, but in oral evidence P.W.1 and

P.W.2 both referred to the accused as Bhurya Uncle. I find that,

this is not material. There is no dispute that name of accused is

Rakesh. There is no confusion regarding identity of the accused.

The victim was referring to the accused as Bhurya Uncle. At the

time of recording evidence of the victim, she was asked and she

pointed out towards the accused who had been arrayed before

the Court as Rakesh Nagrale to be the same Bhurya. The

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accused had been arrested on the same day. The evidence

shows that, he was residing just opposite the house of the victim

and he was well known to P.W.1 as well as P.W.2.

16. The evidence of the complainant is that, after the

incident, in the night itself they had gone to the police station.

She deposed that, they went to the police station at about 3.00

Hrs. in the night and halted there. She stated that, she narrated

the incident to police. The learned counsel for the accused

argued that, the F.I.R. stated that, after the incident, the victim

was made to sleep and in the morning they had come to the

police station. The counsel referred to the cross-examination of

investigating officer P.W.5 where he was asked (in para 5) and

he stated that he cannot say whether during that night time the

minor girl and her parents and relatives had come to the police

station. The investigating officer deposed that, if cognizable

offence happens during the night, the Police Station Officer calls

them at the police station. In the cross-examination, he

accepted that on 2.5.2014 he went to the police station at about

9.00 a.m. He was asked and he stated that, he came to know

that the minor girl and her parents and relatives had come to the

police station at about 8.30 a.m. According to this investigating

officer, at that time, a lady Police Constable was recording the

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statement of the complainant when he came to the police

station. Although the accused is trying to say that there was

delay in recording of the F.I.R. and that the evidence of

complainant that they went to the police station in the night

itself, does not match with the contents in that regard in the

F.I.R., I find that, this is not material. This is matter of honour of

a small girl from not only rural background but also who are

illiterate as well as poor.

ig The complainant was admittedly

residing in what is called as "Beghar Vasti" i.e. residential area of

the homeless. It is apparent from the cross-examination of the

investigating officer himself that, when he reached the police

station, from before that, the victim and her parents were

present at the police station. The offence was registered only at

9.30 a.m., which is after this Police Inspector had reached the

police station. Overall reading of the evidence of complainant,

the F.I.R. as well as the evidence of investigating officer gives

the impression that the victim and her parents were made to

wait till the investigating officer came and the offence was

registered only thereafter and further action started thereafter.

It hardly makes difference if complainant reached Police Station

in the night itself or early morning. The trial Court also observed

that the complainant was illiterate lady, who had no control over

police authority while recording her report. Trial Court observed

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that, there is fault of the police machinery in not recording the

report in the night itself. I am not convinced that the

complainant and the victim need to be disbelieved only because

the police officials dragged their feet in the night and then in

evidence the investigating officer deposed in a vague manner

that he came to know that the victim and her parents had come

at about 8.30 a.m. It would be hear-say. Again, from whom he

came to know is not stated. It could be effort of the subordinate

to cover his negligence.

17. It is then the defence of the accused that, the

husband of the complainant and the accused were doing

Centering work with one Namdeo Mistry and there was quarrel

and because of that, there were strained relations. In the cross-

examination, the complainant did not accept the suggestion that

there had been quarrel and that there were strained relations.

There is no material to suggest that the complainant or her

husband had any grudge against the accused before the incident

took place.

18. In the cross-examination of the victim, she admitted

that, in the evening time she used to play in the courtyard along

with children. She admitted that, before going to the house of

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her maternal aunt on that day, she was playing. She admitted

that there is cement-concrete road in their lane. However, she

denied that she sustained injury to her private part on account of

falling on ground while playing. In this regard, suggestions were

made by the accused to P.W.3 Dr. Vaishali also. Doctor denied

that the injuries as were found on the person of the victim were

possible if she comes in contact with rough surface. Thus, the

defence of accidental injuries to the private part has no

substance.

19. It has been argued that, the victim was a little girl

and it was possible to tutor her. Reference was made to the

cross-examination of victim where she stated that her parents

told her that she should depose as to what Bhurya Uncle did to

her. This does not mean that she was told to say what did not

happen. While taking child to Court, she would naturally be

required to be told why they are going there. I do not think that

such statement of this victim shows that she was tutored. In

fact, if she was tutored, she would not have given such

statement as it could have been then possible to tutor her that if

such question is asked, she should deny the same. The evidence

of the victim, when read as a whole, gives a clear picture that the

victim although from a poor background and although she was

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just six years of age at the time of her evidence, understood as

to what is asked to her and what she is answering. In the cross-

examination also she has given logical answers although various

things were asked to her. The evidence clearly shows that she

understands what is being told to her. The trial Court has

discussed the evidence of the victim. The trial Court was aware

that it is necessary to have close scrutiny of the evidence of such

minor witness. The trial Court observed that, going through the

material it did not find any material omission or contradiction in

the evidence of the victim. According to trial Court, victim stated

about the incident in her own language and that the victim was

not shaken in cross-examination. According to trial Court, the

victim was found to be truthful witness who did not exaggerate

her version in the Court. The trial Court, on careful scrutiny of

the evidence of the victim, found her to be truthful and inspiring

confidence. I have also gone through her evidence minutely and

find that the victim is quite clear in her thoughts and her

memory. She is a truthful witness who can be relied on. In the

cross-examination, the victim was asked and she deposed that,

when the accused closed the door from inside, she did not shout.

She accepted that, when the accused removed his pant, at that

time also she did not shout. Such evidence cannot be

interpreted as consent. Apparently, consent of a victim of 5

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years of age would also not be material. Such conduct of the

victim cannot be doubted also because a child at that age, in

such situation where she has been taken in a room and the door

is closed and the accused removing his pant, may be more

confused than have the ability to understand as to what is likely

to happen. The cross-examination of victim shows that, when

the accused made her to sleep on the cot, she started weeping.

Thus, what appears from the evidence is that, when the accused

violated her, the victim started crying, which is a natural conduct

of a child of that age. Looking to such evidence, if the

neighbours did not get attracted, it would not be surprising. The

F.I.R. shows that, the accused had homely relations. It is

apparent that, because of this only when accused went asking for

charger, the parents sent the little child to go home and give the

charge and accused carried the little girl on his hip. The accused

coming with the child home in such situation may not have

attracted attention of the neighbours.

20. It has been argued that, the articles seized were

belatedly sent to Chemical Analyser and once were even returned

back by the Chemical Analyser and the same had to be

resubmitted. The cross-examination of P.W.5 shows that, the

articles seized were sent to Chemical Analyser only on 21.5.2014

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with letter Exh.26. The investigating officer was confronted with

another letter dated 12.6.2014, which is at Exh.27 and which

shows that, the articles were required to be resent after making

necessary compliances. The C.A. reports are at Exh.30 and

Exh.31. The C.A. report Exh.31 shows that there was blood on

the knicker of the victim and there was also blood on the half

shirt of the accused and semen was there on undergarment.

However, looking to the delay in sending the articles to Chemical

Analyser and fact that the articles were sent back and again

required to be resent, I would ignore the C.A. reports. However,

I find that, even without assistance of the C.A. reports, there is

convincing evidence of P.W.1 and P.W.2 regarding the incident

and there is corroboration to the complainant P.W.1 and P.W.2

from doctor P.W.3 who had examined private part of the victim

on the next day of incident and found the injuries clearly showing

that there was penetration into the private part of the victim.

Considering the evidence of P.W.1 and P.W.2, it has to be held

that the accused did in fact rape the victim.

21. I have gone through the judgment of the trial Court.

The trial Court found that there was no dispute regarding the age

of the victim. Trial Court also, after discussing the evidence,

found that the victim had not acted under influence of her

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parents or anybody else while giving evidence. It held that

victim understood the questions put to her and was capable of

giving rational answers and that the trial court had no hesitation

in relying on her testimony showing involvement of the accused

in the crime. Trial Court held that there was no material

omission or contradiction in the testimony of the victim and that

she was truthful witness. Trial Court held that the evidence of

the doctor could not be discarded only because at the time of

issue of medical certificate Exh.16 she had not drawn her

conclusions and concluded about the intercourse only on seeing

the C.A. reports (In fact I find after going through the medical

certificate Exh.16, the injuries found on the person of victim were

such that immediately also it could have been stated that there

had been forcible intercourse.) Trial Court held that, even partial

penetration would amount to rape. Trial Court found that, the

victim was corroborated by the medical evidence. It also held

that, there was no material omission or contradiction in the

evidence of the complainant and the evidence of complainant

also could be relied on. For such reasons, the trial Court found

that the offence was proved against the accused.

22. I have also gone through the evidence and having

considered the arguments also, I do not find any force in this

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appeal against conviction. The judgment of the trial Court in

finding the accused guilty and convicting and sentencing the

accused does not call for interference. There is no substance in

the appeal.

23. The appeal is dismissed.

24. The appellant - accused shall immediately surrender

to his bail bonds before the trial Court. The trial Court shall

ensure execution of the sentence as was passed in the matter.

(A.I.S. CHEEMA, J.)