Bombay High Court
Ramesh Bansiram Pawar vs The State Of Maharashtra on 7 August, 2017
Bench: A.M. Badar
209-APPEAL-236-2012-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.236 OF 2012
RAMESH BANSIRAM PAWAR )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mrs.A.A.Mane, Advocate Appointed for the Appellant.
Ms.N.S.Jain, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 7th AUGUST 2017
ORAL JUDGMENT :
1 This is an appeal filed by the convict / accused
challenging his conviction and sentence imposed upon him in
Sessions Case No.154 of 2009 on 30th September 2011 by the
learned Ad-hoc Assistant Sessions Judge, Nashik. The appellant /
accused has been convicted of the offences punishable under
Sections 376(2)(f), 377 and 506 of the Indian Penal Code (IPC),
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by this impugned judgment and order. For the offence punishable
under section 376(2)(f) of the IPC, he is sentenced to suffer
rigorous imprisonment for 10 years apart from directions to pay
fine of Rs.5,000/-, in default, to undergo further simple
imprisonment for 3 months. For the offence punishable under
section 377 of the IPC, the appellant / accused is sentenced to
suffer rigorous imprisonment for 7 years apart from payment of
fine of Rs.3,000/-, in default, he is directed to undergo further
simple imprisonment for 2 months. For the offence punishable
under section 506 of the IPC, the appellant / accused is sentenced
to suffer rigorous imprisonment for 2 months. Substantive
sentences were directed to run concurrently by the learned trial
court.
2 Briefly stated, according to the prosecution case,
informant Bhagabai Kalu Barde used to reside in Village Bhaitana,
Kalwan Taluka in Nashik District, along with her husband, three
sons and a daughter. On 21st May 2009, at about 7 p.m., her 11
years old daughter (the prosecutrix) along with niece of the
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informant (another victim) were playing near a tank. The
appellant / accused enticed both of them on the pretext of
knowing from them the house of one Balu Pawar. On the way,
when they were passing through a culvert, the appellant / accused
dragged them to a nearby tree. On point of knife, he then
committed rape on 11 years old daughter of the informant and
sodomised the niece of the informant, who was reported to be of 7
years of age, at that time.
When both these minor female children did not report back
to home by 8.15 p.m. of 21st May 2009, informant Bhagabai
attempted to search them. At about 9.00 p.m., both minor female
children returned home. At that time, minor daughter of the
informant was weeping. She disclosed the incident to the
informant. The informant noticed that her minor daughter was
bleeding from the private part. By that time, it was late in the
night, and husband of the informant was also not present in the
house. The first informant then intimated the incident to her
husband and on the next day, i.e. on 22nd May 2009, she along
with her daughter and niece went to Police Station Abhona and
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lodged report of the incident. Accordingly, Crime No.38 of 2009
for the offences punishable under Sections 376, 377 and 506 of
the IPC came to be registered against the appellant / accused and
wheels of investigation were set in motion.
3 During the course of investigation, minor female
children were sent for medical examination. The spot came to be
inspected. The appellant / accused came to be arrested. He was
also sent for medical examination. Clothes of victims, so also of
the appellant / accused came to be seized. On the basis of
voluntary disclosure statement of the appellant / accused, a knife
came to be seized. Statement of witnesses came to be recorded.
Seized articles were sent for chemical analysis and on completion
of investigation, the appellant / accused came to be charge-
sheeted for the offences punishable under Sections 376, 377 and
506 of the IPC.
4 The learned Ad-hoc Assistant Sessions Judge framed
and explained charges to the appellant / accused, who abjured his
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guilt and claimed trial. In order to bring home the guilt to the
appellant / accused, the prosecution has examined in all six
witnesses. Informant Bhagabai is examined as PW1 and report
lodged by her is at Exhibit 12. Her daughter - the victim of the
crime in question, is examined as PW2. The panch witness to the
spot cum seizure panchnama (Exhibit 15) namely Parshuram
Choure is examined as PW3. Panch witness to seizure of clothes
from the appellant / accused as well as the victim namely
Somnath Choure is examined as PW4. Seizure panchnamas are at
Exhibits 17 and 18. PW5 Lalaji Jadhav is a panch witness to the
Memorandum statement and Recovery panchnama Exhibits 20
and 20A respectively. Investigating Officer A.P.I. Suhas Deshmukh
is examined as PW6.
5 The appellant / accused has admitted some
documents. Those are Medical Certificates of victim girls at
Exhibits 25 and 26, so also, bonafide certificate of one of the
victims / PW2 i.e. daughter of the first informant.
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6 The defence of the appellant / accused is that of total
denial. According to him, as he had lent Rs.7,000/- to informant
PW1 Bhagabai, who refused to pay it back and therefore, he is
falsely implicated in the crime in question.
7 I have heard Ms.A.A.Mane, the learned advocate
appearing for the appellant / accused. She vehemently argued
that evidence of the first informant so also that of PW2 - one of
the victim girls, suffers from contradictions and omissions. In her
First Information Report (FIR) the first informant has failed to
disclose material facts such as banging one of the victims on a tree
or dragging the another victim towards the tree. The learned
advocate further argued that previous statement of the first
informant does not disclose that victims were unable to walk
properly when they returned to their home. In the wake of these
omissions, possibility of false implication of the appellant /
accused in the crime in question, in submission of the learned
advocate for the appellant / accused, cannot be ruled out.
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8 I have also heard the learned APP who supported the
impugned judgment and order of conviction.
9 I have carefully perused the record and proceedings
including the depositions of witnesses as well as the documentary
evidence placed on record. According to the case of prosecution,
the appellant / accused had committed rape on one of the minor
female victims whereas sodomised another minor female victim of
the crime in question. The law regarding appreciation of evidence
in the matter of sexual offence is crystallized by catena of
judgments rendered by the Hon'ble Apex Court. In the matter of
Bharwada Bhoginbhai Hirjibhai vs. State of Gujarath 1 it is held
that in the Indian setting refusal to act on the testimony of a
victim of sexual assault in absence of corroboration as a rule is
adding insult to injury. In the matter of Radhu vs. State of
Madhya Pradesh 2 it is held by the Hon'ble Apex Court that it is
well settled that a finding of the guilt in the case of rape can be
1 AIR 1983 Supreme Court 753
2 2007 Cri.L.J. 4704
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based on uncorroborated testimony of the prosecutrix and the
court should not sway away on the basis of minor discrepancies
and contradictions in version of the prosecution. Let us examine
the case in hand in the light of this law laid down by the Hon'ble
Apex Court.
10 Though the prosecution has not examined one of the
victims of the crime in question, the another victim of this crime is
examined as PW2 by the prosecution. This PW2 is an eye witness
to the entire episode. Her testimony carries great weight as that of
an injured witness. She has deposed that on 21 st May 2009, at
about 7.00 p.m., she along with her cousin, was playing near a
village tank and the appellant / accused came there and asked
them to show house of Balu Pawar. Hence, they both
accompanied the appellant / accused and while passing through a
culvert, the appellant / accused caught hold of both of them and
dragged them near a tree. As per version of the PW2, the
appellant / accused then committed rape on her by making her to
lie on the ground and because of this act of the appellant /
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accused, she started bleeding from her private part. The PW2
further deposed that, thereafter, the appellant / accused denuded
her cousin and tried to sodomise her by committing carnal
intercourse on her against the order of the nature. Thereafter, the
appellant / accused ran away and they managed to reach at their
home at about 10.00 p.m. The PW2 further deposed about her
medical examination, so also identified her clothes while in the
dock. She identified the appellant / accused in the court.
11 The evidence of this victim of the crime in question is
criticized with a reason that she had disclosed the name of the
appellant / accused as Ramesh Gangurde after the incident.
However, once the victim of the crime identifies the accused as a
perpetrator of the crime while in the dock, mentioning incorrect
surname pales into insignificance. Apart from this, the PW2 has
categorically denied the suggestion that accused Ramesh Pawar
and a person named Ramesh Gangurde are two different persons.
The evidence of PW2, as such, points out that the appellant /
accused did commit rape on her and attempted to sodomise her
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cousin in her presence, soon after raping her. However, without
concluding the matter at this stage, let us examine whether
evidence of the prosecutrix is gaining corroboration from other
evidence adduced by the prosecution.
12 PW1 Bhagabai is mother of the PW2. Bhagabai has
categorically deposed that at the time of the incident, her
daughter i.e. PW2 was eleven years old. This witness further
testified that her daughter i.e. PW2 along with her niece were
playing near a tank at about 7.00p.m., on the day of the incident,
but they did not return to the house. Subsequently, her daughter
and niece returned to the house at about 10.00 p.m. On enquiry,
her daughter i.e. PW2 reported the entire incident to her. This
witness further deposed that she noticed that her daughter i.e.
PW2 was bleeding from her private part and was unable to walk
due to pain. She telephonically reported the matter to her
husband, as he was not present in the home, and as deposed by
her, on the very next day she took her daughter and niece to
Abhona Police Station and lodged report Exhibit 11. In chief-
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examination PW1 Bhagabai has disclosed narrations made by her
to her daughter i.e. PW2. This witness has identified the appellant
/ accused while in the dock.
13 Evidence of PW1 Bhagabai is again criticized by
pointing out that victim girls have told her that the offence was
committed by one Ramesh Gangurde. However, as held earlier,
mentioning of incorrect surname is of no consequence because of
dock identification. Similarly, minor and insignificant omissions
such as non-disclosure of banging of one of victims against a tree,
non-disclosing the fact that the victim was unable to walk properly
and dragging of the victims does not touch to the core of the
prosecution case nor those are sufficient to jettison the version of
the victim as well as her mother. Evidence of PW1 Bhagabai in
respect of the disclosure made to her by her daughter / PW2, who
is the victim of the crime in question, fully corroborates the
version of PW2 in view of provisions of Section 157 of the
Evidence Act.
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14 As per version of the victim of the crime in question,
the incident took place near the tree when she and her cousin
were accompanying the appellant / accused. Evidence of the
victim i.e. PW2 shows that she started bleeding after commission
of rape by the appellant / accused. The spot of the incident came
to be inspected immediately on 22nd May 2009 by PW6 A.P.I.
Suhas Deshmukh along with PW3 Parshuram Choure, a panch
witness. Their evidence, along with contemporaneous spot
panchnama Exhibit 15, goes to show that blood stained branch of
a tree and dried leaves were lying on the spot. Other articles such
as broken necklace, comb etc. were also lying on the spot.
Evidence of panch witness PW3 Parshuram Choure shows that
articles found lying on the spot came to be seized vide spot
panchnama Exhibit 15 by sealing them.
15 Evidence of PW4 Somnath Choure, another panch
witness, shows that clothes of the appellant / accused, so also that
of one of the victims i.e. PW2 came to be seized vide seizure
panchnama Exhibits 17 and 18. This evidence is gaining
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corroboration from the evidence of Investigating Officer PW6
Suhas Deshmukh. Evidence of panch witness Somnath Choure
goes to show that seized clothes were having stains of blood on
them. Seizure panchnamas at Exhibits 17 and 18 also reveal the
same fact. As seen from the evidence of the Investigating Officer,
seized articles were sent for chemical analysis and reports of the
Chemical Analyser are at Exhibits 34 to 37. Perusal of this
Chemical Analyser's report shows that blood group of PW2 was
"AB" whereas the blood group of the another victim was "B".
Blood group of the appellant / accused is also "B". The Chemical
Analyser's report at Exhibit 37 shows that kurta, salwar and nicker
of PW2 was stained with blood of "AB" group. Pant of the
appellant / accused was found to be stained with blood of "B"
group. His underwear was found to be having blood of "AB" and
"B" origin. At this juncture, it is apposite to note that after his
arrest, the appellant / accused came to be examined medically
and his report of medical examination is an admitted document.
The same is at Exhibit 24. It does not show that the appellant /
accused was having any injury on his person. Thus, finding of
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blood of the blood group of victims of the crime in question on
clothes of the appellant / accused, so also finding of blood on
clothes of the PW2 corroborates the version of PW2, regarding rape
on her by the appellant / accused and sodomising her cousin by
him.
16 Both victim girls were subjected to medical examination
soon after the incident. Report of their medical examination are
admitted by the appellant / accused. Those are at Exhibits 25 and
26. Medical report of the PW2 shows that upon her medical
examination, she was found to be having a contused lacerated
wound at the fourchette. Perineal injury of about 2 cm was also
noticed at her fourchette towards anal region. The Medical Officer
also noticed that vagina of the PW2 was admitting one finger and
ultimately the Medical Officer opined that there is evidence of
sexual assault / rape, so far as the PW2 is concerned. Similarly,
report of medical examination of another victim i.e. niece of PW1
Bhagabai is at Exhibit 26. It shows that she had suffered an injury
from fourchette to anal admeasuring 2 cm x 2 cm.
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17 Thus, evidence of PW2 - daughter of PW1 Bhagabai,
regarding rape on her and sodomising her cousin by the
appellant / accused is fully corroborated even by reports of
medical examination of victim minor girls. As eye witness account
of the incident of sodomising niece of PW1 Bhagabai given by her
daughter i.e. the PW2 is found to be trustworthy and
corroborated by the medical evidence as well as the evidence
found on the spot of the incident, non-examination of the niece of
the PW1 Bhagabai is of no consequence.
18 Apart from this, there is evidence regarding recovery
of a knife at the instance of the appellant / accused, which is
proved by PW5 Lalaji Jadhav. This evidence corroborates the
version of the prosecutrix that she and her cousin were threatened
at the point of knife by the appellant / accused prior to molesting
them sexually.
19 In the light of foregoing discussion, it needs to be held
that the prosecution has established charges leveled against the
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appellant / accused and no infirmity can be found with the
impugned judgment and order of conviction and sentence
recorded by the learned trial court.
20 In the result, the appeal is dismissed.
21 Mrs.A.A.Mane, the advocate appointed to represent
the appellant / accused is entitled for fees at the rate paid to the
advocates on the panel of the legal aid and she be paid
accordingly.
(A. M. BADAR, J.)
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