Nilesh Anilrao Wankhede (In Jail) vs The Stae Of Maha., Thr. P.S.O., ...
2017 Latest Caselaw 4916 Bom

                                                    1                     apeal323.15.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                       CRIMINAL APPEAL NO.323/2015

      Nilesh s/o Anilrao Wankhede,
      aged 25 years, Occ. Nil, 
      R/o Vitala, P. S. Mangrul Dastagir,
      Tq. Dhamangaon Rly, Dist. Amravati.
      Presently lodged at Amravati Central
      Prison as Convict No.4637.                             .....APPELLANT
                         ...V E R S U S...

      State of Maharashtra through 
      Police Station Officer, Mangrul Dastgir,
      Tq. Dhamangaon Rly. Dist. Amravati. ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. H. P. Lingayat, Advocate for appellant. 
 Mr. N. B. Jawade, A.P.P. for respondent. 
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.
                               DATED :- 24.07.2017

 J U D G M E N T

1. The present appeal is directed against the judgment

and order of conviction passed by the learned Additional Sessions

Judge-2, Amravati in Sessions Trial No. 30/2012 on 22.05.2015.

By the impugned judgment and order of conviction, the

appellant is convicted for the offence punishable under Section

376 (f) of the Indian Penal Code. He is directed to suffer rigorous

imprisonment for 7 years and to pay a fine of Rs.2,000/- and in

default, rigorous imprisonment for 6 months.

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2. The prosecution case is as under:

Alka (PW1) is the first informant. She lodged a report

Exh.-9 at Police Station, Mangrul on 11.10.2011. On the report

lodged by Alka, an offence punishable under Section 376 (f) of the

Indian Penal Code vide Crime No. 53/2011 was registered against

the present appellant. The printed FIR is at Exh.-10.

Naresh Dhote (PW5) Police Sub Inspector attached to

Police Station, Mangrul Dastagir was entrusted with investigation

of Crime No.53/2011.

3. As per the FIR, the first informant who is separated

from her husband used to reside with one Shubham Chaudhari

along with her daughter victim (PW2). At the time of occurrence,

the victim was taking her education in 3rd standard in the school

run by Zilla Parishad.

The report states that on 11.10.2011, as usual at

11.00 O'clock the victim went to her school. At 1.00 O'clock the

victim came to the house for taking her lunch box and the

proceeded for her school. At 2 O'clock, 2 girls from the school

came to the house and informed the first informant that their

teacher has called the first informant in the school. That time, the

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first informant noticed that those 2 girls were in frightened

condition. Therefore, the first informant made inquiries with

them. Upon that it was revealed to the first informant that the

victim is weeping in the school and is saying that she was taken to

the agricultural field. Therefore, first informant immediately

reached to the school. That time, Mangala Khatare (PW6)

informed the first informant that the victim is disclosing that one

person from the village tried to allure the victim by giving

chocolate and money. However, when she refused to get herself

allured the said person took the victim in the agricultural field.

Mangala further revealed that on getting the said information, she

further inquired the victim and that time the victim revealed that

when she was returning to the school after taking lunch box, she

was forcibly taken to the agricultural field. Her clothes were

removed. The said person also removed his clothes and then slept

on her person. Thereafter he ran away towards the river. The FIR

further states that when inquiries were made with daughter by

teacher to show the house of the said person that time the victim

guided the teacher to the house of the appellant. The appellant

was not present in the house therefore the victim was taken in a

room of the school and the teacher noticed that her clothes were

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filled with mud from backside. She further found redness on her

private parts. Therefore, the teachers made phone call to

Shubham and when they were proceeding to the police station for

lodging report, one person was coming from the opposite direction

and victim shown finger towards the said person as her assailant.

4. The investigating officer on the day of registration of

the crime itself arrested the appellant under the arrest

panchanama Exh.-25. The spot of the incident was shown by the

victim to him. Spot panchanama was drawn by the investigating

officer in presence of panchas (Exh.-26). A knicker belonging to

the victim was lying on the spot. It was seized under seizure

memo Exh.-27. Clothes on the person of the victim which were

stained with mud were also seized under seizure memo Exh.-11.

The investigating officer referred the victim for medical

examination by giving requisition Exh.-28 to the Medical Officer of

the rural hospital, Dhamangaon. Vaginal swab and blood sample

of the victim were seized. The opinion of the Doctor was also

obtained and it is at Exh.-29.

The appellant was also referred for medical

examination. His clothes were also seized under seizure

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panchanama Exh.-30, blood sample and pubic hair were also

seized under the seizure panchanama Exh.-31. The investigating

officer also recorded statements of the witnesses. He also sent all

the seized articles to the chemical analyzer. CA report is also

available on record at Exh.-22.

The investigating officer also collected the school

certificate of the victim Exh.-35, which shows the date of birth of

the victim as 14.02.2002. After completion of the investigation,

final report was also filed in the Court Judicial Magistrate First

Class.

After the case was committed to the Court of Sessions,

the learned Additional Sessions Judge, Amravati framed the

charge below Exh.-2 in Sessions Trial No.30/2012 against the

appellant for committing an offence punishable under Section 376

(f) of the IPC. The appellant denied the charge and claimed for

his trial.

5. In order to bring home the guilt of the appellant, 7

witnesses were examined by the prosecution and various

documents were also relied upon which were proved during the

course of trial.

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After a full dress trial, the learned Judge of the Court

below convicted the appellant and sentenced him as observed in

the opening paragraph of this judgment.

6. I have heard Mr. H. P. Lingayat, learned appointed

counsel for the appellant and Mr. N. B. Jawade, learned A.P.P. for

the respondent-State. Both the learned counsel took me through

the entire record and proceedings in extenso.

7. As per the prosecution case, the victim's age was only

10 years. In order to prove her age, the prosecution has relied on

Exh.-35. This document shows that her date of birth is 14.02.2002

and was taking education in 3rd standard. This document was

obtained by the investigating officer during the course of

investigation. Further the truthfulness of this document was not at

all denied during the course of trial.

Mangala Khatare (PW6) a teacher of Zilla Parishad Pre-

Primary School, Mangrul Dastagir states that she is class teacher

for 3rd standard and the victim was studying in 3rd standard.

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On the basis of the aforesaid evidence, it is clear that at

the time of the incident, the victim was taking her education in 3 rd

standard and as per the date of birth, her age was about 10 years.

8. The learned counsel for the appellant submitted that

the prosecution is doubtful since the prosecution could not

examine any eye witness though according to the prosecution the

incident has occurred at noon hours.

The accused person who commits an offence like the

offence in the present case always commits in a secluded place and

not within the public view. Therefore, I do not see any merit in

the submission of the learned counsel in that behalf.

9. As per the evidence of Naresh Dhote, the investigating

officer, after registration of the crime he sent the victim to the

Medical Officer for her medical examination under requisition

Exh.-28. The Medical Certificate Exh.-29 mentions that at the time

of examination of the private parts of the victim, contusion of 2 X

2 cm on both sides of labia major was found. This document,

since was not disputed by the appellant during the course of trial,

it appears that the prosecution has not examined the doctor.

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However, the contusions as noticed on the labia majora on both

sides clearly establish sexual assault on the victim.

10. As per the evidence of Mangala (PW6) on the day of

incident i.e. on 11.10.2011 in between 12.35 to 12.50, there was a

short recess. Though the short recess was over, the victim failed to

return to the classroom. This prosecution witness further states

that the victim came to the classroom at about 1.30 p.m. The

victim came to the classroom weeping and as soon as she saw

Mangala, she hugged her. That time Mangala noticed that her

school dress was smeared with mud. Mangala inquired her and

that time the victim narrated that she was dragged in the field by a

person who removed her knicker and his pants and slept over her.

On getting this knowledge, Mangala immediately took her to

Sushila (PW3), the Head Mistress. In the meanwhile, Mangala

also sent 2 students to the house of the victim for calling her

mother.

The evidence of Head Mistress Sushila (PW3) also

shows that when the victim was brought to her by Mangala (PW6)

that time she noticed appearance of the victim shabby and her

clothes were stained, her undergarment was not found on her

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person and when inquired about the whereabouts of the assailant

by Sushila, the victim led both the teachers to the house of the

appellant. That time the appellant was not present.

The evidence of Sushila (PW3) and Mangala (PW6)

shows that when they firstly noticed the victim after she came to

the school, her clothes were stained with mud and her

undergarment was missing from her person.

11. As per the evidence of Mangala when the victim

reported to the classroom she started weeping and immediately

hugged her. This, in my view, was the most natural reaction of

that little girl. Mangala (PW6) is her class teacher. On noticing

Mangala, the victim reacted by hugging her. Immediate hug to

Mangala, in my view shows that the victim was frightened and

when she noticed a person of her confidence she hugged her to

release fear and pressure. Not only that she immediately disclosed

the happening to her. The statement made by the victim to

Mangala (PW6) was contemporaneous to the acts or immediately

thereafter which constitute the offence and it is contemplated as

res gestae under Section 6 of the evidence Act.

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12. The prosecution has also examined one Ajay Mandare

(PW7). He knows both the victims as well as the appellant. As

per his version, on the day of the incident, he was sitting near the

Gram Panchayat office along with 2 other friends. When the

victim was going to her house that time appellant was sitting near

the Gram Panchayat office. As per the evidence of this prosecution

witness also the appellant that time shown chocolate and money

to the victim and asked her to accompany him. However, she

refused. Thereafter she was taken by the appellant by holding her

hand. His evidence is challenged on the count of recording of his

statement after 2-3 days.

13. Alka (PW1) is the mother of victim. Her evidence is in

conformity with the FIR Exh.-9. The victim is examined as PW2.

The victim has identified the appellant in the court-room when he

was sitting in the dock. Her evidence shows that she was taken to

an agricultural field by the appellant and her undergarments were

removed and then he slept over her body. The evidence also

states that thereafter she came to the school weeping and

disclosed the incident to her teacher. These acts of the victim are

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duly corroborated by her teachers Sushila (PW3) and Mangala

(PW6).

Her evidence is also challenged on the ground that this

witness is a tutored one as she has admitted in her cross-

examination. She was informed how to speak and what to speak.

While appreciating the evidence of the victim, we

cannot forget her tender age. Merely because she narrated the

incident as it was to the Court that does not mean that she is a

tutored witness. As it is quite possible that she was asked to state

the happenings to her. By conducting half hearted cross-

examination of this victim, the defence cannot be permitted to

derive advantage.

14. During the course of trial, examination report of

Assassinate Chemical Analyzer to the Forensic Sciences

Laboratory, Mumbai is placed on record. The record shows that

this document does not appear to be exhibited.

This Court in Omprakash s/o Gayaram Nirmalkar Vs.

The State of Maharashtra; 2016 ALL MR (Cri) 3337, ruled that

merely because CA report is not exhibited that cannot be kept

aside from the zone of consideration in view of Section 293 of the

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Code of Criminal Procedure and same can be read in the evidence.

Relevant portion of paragraph 38 of this judgment reads thus:

"Sub-section (1) of Section 293 Cr. P. C. reads as under: "293. Reports of certain Government scientific experts.-

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code."

Sub-section (4) of Section 293 Cr. P. C. reads as under: "(4) This section applies to the following Government scientific experts, namely :-

        (a)           any     Chemical     Examiner     or     Assistant
        Chemical Examiner to Government;
        (b)            the Chief Controller of Explosives;
        (c)            the Director of the Finger Print Bureau;
        (d)            the Director, Haffkeine Institute, Bombay;
        (e)            the       Director       (Deputy       Director       or

Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

        (f)            the Serologist to the Government.
        (g)            any   other   Government   Scientific   Expert

specified, by notification, by the Central Government for this purpose."

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Clause (a) of sub-section (4) of Section 293 Cr. P. C. applies to a document from Chemical Examiner or Assistant Chemical Examiner to the Government. C. A. Report bearing No.N-(T)/11572/12 dated 28.8.2012 which shows that the weapon in question was having blood group "A" is signed by P. V. More, Assistant Chemical Analyser, Regional Forensic Sciences Laboratory, Nagpur. In that view of the matter, on a conjoint reading of sub-section (1) and sub-section (4) of Section 293 Cr. P. C. Though exhibit number is not given to Chemical Analyser's Report, it is admissible and it can be read as such."

The report of the Assistant Chemical Analyzer to the

Government of Maharashtra, Forensic Sciences Laboratory,

Mumbai shows that the clothes of the victim and the appellant

were sent for analysis. The result of the analysis reads as under:

"Earth particles collected from exhibits (1), (2), (5) and (6) have components of earth similar to earth in exhibit (4) in respect of hue, physio-chemical characteristics and spectro-chemical composition."

Thus, the said scientific evidence corroborates the

version of the victim that she was taken to an agricultural field

and there the heinous act was done, is duly supported.

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15. In view of the evidence of the victim, which is duly

corroborated by Mangala (PW6) and Sushila (PW3) and also the

forensic evidence though we keep aside the evidence of Ajay

Mandare for recording his statement belatedly. In my view, the

prosecution has proved its case against the appellant.

Consequently, the appeal fails and it is dismissed

accordingly.

Professional charges of Mr. H. P. Lingayat, learned

appointed counsel are quantified at Rs.5,000/-

JUDGE

kahale