Shivam @ Swapnil S/O Vishwanath ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 1257 Bom

apeal.76.16.jud.doc                           1


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


                     CRIMINAL APPEAL NO.76 OF 2016


Shivam @ Swapnil s/o Vishwanath Shende,
Aged about 22 years, Occupation : Nil,
R/o Kattipar, Tahsil Amgaon, District Gondia,
(Confined at Central Prison, Nagpur)                                 .... Appellant

                -- Versus --

State of Maharashtra,
Through Police Station Officer,
Amgaon Police Station, Amgaon,
District Gondia.                                               .... Non-Applicant

                          -------------
Ms. S.B. Saikhede, Advocate for the Appellant.
Shri R.S. Nayak, Additional Public Prosecutor for the Respondent/State.
                          -------------


                CORAM           : KUM. INDIRA JAIN, JJ.

                DATE            : 29th MARCH, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 04/06/2015 passed by the learned Sessions Judge,

Gondia in Sessions Trial No.39/2013. By the said judgment and

order, appellant/accused was convicted of the offence

punishable under Section 376(2)(f) of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for ten years and fine

of Rs.5,000/-, in default to suffer rigorous imprisonment for six

months.

02] The prosecution case, in brief, is as under :

(i) Complainant Sheelabai Tembhurnikar is resident of

Kattipar in Tahsil Amgaon, District Gondia. She is

mother of the victim. On 10/11/2012, husband of

complainant had gone for labour work. At around

01:00 p.m., complainant was whitewashing wall of her

house. Victim, a ten year old daughter of complainant

and Samir, a five year old son, were playing in the

courtyard.

(ii) According to prosecution, at around 01:15 p.m.,

accused came to the house of complainant. He

started playing songs on his mobile and took the

victim and Samir inside the house. At around 02:00

p.m., he unclothed the victim and committed sexual

intercourse with her. After committing sexual assault,

accused left the house.

(iii) Complainant entered the house and saw victim

weeping. She inquired from her. Victim told her that

blood was oozing from her private part and disclosed

the incident to her. Complainant saw blood oozing

from private part of the victim. Knicker of victim was

also found stained with blood. Complainant searched

the accused, but he was not found.

(iv) At about 03:00 p.m., husband of complainant came to

the house. He and other villagers took search of the

accused, but his whereabouts were not known.

Sarpanch of village was informed about the incident.

Then report at Police Station Amgaon was lodged.

Crime No.104/2012 was registered against the

accused.

(v) PW-9 API Suraj Patil took over investigation. Victim

was sent for medical examination. PW-5 Dr. Kendre

examined the victim and issued medical certificate.

On examination, Doctor opined attempt of sexual

intercourse. Accused was arrested. He was referred

for medical examination. PW-6 Dr. Shende examined

the accused. On examination, Doctor did not notice

any external injury and no stains of semen on genital

part of accused was found.

(vi) API Patil visited the spot and recorded spot-

panchnama. Clothes of victim and accused were

seized in the presence of panch-witnesses. Seized

muddemal was sent to Chemical Analyzer. On

completing investigation, charge-sheet was submitted

to the Court of learned Magistrate, who in turn

committed the case for trial to the Court of Sessions.

03] Charge of the alleged offence was explained to the

accused vide Exh.14. He pleaded not guilty and claimed to be

tried. His defence is of total denial and false implication.

04] To substantiate the guilt of accused, prosecution

examined in all nine witnesses. Considering the evidence of

prosecution witnesses, particularly victim, her brother an eye-

witness 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

as stated hereinabove in paragraph 1. Being aggrieved by the

judgment and order of conviction, present appeal has been

preferred by the original accused.

05] Heard the learned Counsel for appellant and learned

Additional Public Prosecutor for State. Perused reasonings

recorded by trial Court. On meticulous examination of evidence

of prosecutrix, her brother and Medical Officer, this Court for

below mentioned reasons finds that prosecution has proved the

charge against the accused under Section 376(2)(f) of the Indian

Penal Code.

06] Needless to state that in a case of sexual assault,

where victim is minor, her evidence plays a significant role, but

at the same time she being a child witness, her evidence has to

be evaluated with great caution and circumspection. PW-3 is the

victim. So far as her age is concerned, it is not in serious dispute

that at the time of occurrence, she was minor.

07] It can be seen from the evidence of prosecutrix that

on the date of incident, she was playing in the courtyard with her

brother. She states that accused took her inside the house and

he was playing songs. She and her brother were hearing songs.

It is stated by victim that accused caught hold her hand, fell her

down on the cot, removed her clothes and his clothes, slept on

her person and then inserted his private part in her private part.

She sustained bleeding injury. She states that accused ran away

after the incident. It also appears from the evidence of the

victim that her underwear was stained with blood.

08] From the cross-examination of prosecutrix, it can be

seen that a contradiction i.e. "A", has been brought on record.

This relates to statement of victim that accused first entered the

house and then called. This omission does not go to the root of

actual incident. Beside this, nothing substantial could be elicited

to disbelieve her testimony.

09] PW-4 Samir is younger brother of victim. He is an

eye-witness to the incident. He states that he along with his

sister was playing in the courtyard. Accused came to their house

and took them inside the house for hearing songs on mobile. He

states that accused fell her sister down on the bed and

committed rape on her. In the cross-examination, he clarifies the

meaning of rape as sexual intercourse (Heple).

Assailing the evidence of Samir, learned Counsel for

appellant submits that Samir does not state the manner of

incident in which it has occurred. On a cryptic statement that

her sister has been raped, conviction cannot be based.

10] In support of the submission, reliance is placed on the

decision of this Court in Dhanraj s/o Shivram Tagde vs. The

State of Maharashtra - [2015 ALL MR (Cri) 501]. In this

case, rape was committed on a minor girl. Appellant was

convicted. Medical evidence and Chemical Analyzer's reports

were not supportive to the case of prosecution. There was no

supporting evidence and conviction was based only on one word

"Heple". In this background, this Court observed that in view of

the absence of description of incident conviction was not

sustainable.

11] In the instant case, victim fully supports the case of

prosecution. She has no reason to grind an axe against the

accused. The evidence of brother, who was also minor at the

time of incident, remains unshaken in cross-examination. As

such facts in the case relied upon by the learned Counsel for

appellant and in the case on hand substantially differ.

12] This takes the Court further to the evidence of Medical

Officer Kendre [PW-5]. On 10/11/2012, victim was examined by

the Medical Officer. On examination, Doctor found bleeding from

vagina, redness over vulva vagina and hymen ruptured. As per

the opinion of the Medical Officer, it was a case of attempt to

sexual intercourse. Exh.34 is the medical certificate. In cross-

examination, Doctor admits that bleeding from vagina may be

possible by inserting hard object. Submission of appellant in this

regard is that victim and her brother were playing in the

courtyard and possibility of bleeding from private part due to

insertion of hard object is not ruled out. Though Dr. Kendre

opined that it was an attempt of sexual intercourse, on going

through medical certificate [Exh.34], it can be seen that Medical

Officer has given a definite opinion that there was a forceful

sexual intercourse. Medical evidence thus corroborates the

evidence of victim.

13] So far as spot-panchnama and seizure-panchnamas of

clothes of victim and accused are concerned, panch-witnesses

have not supported the case of prosecution. Investigating

Officer API Suraj Patil [PW-9] states in his evidence that on

10/11/2011, he went to the place of occurrence and recorded

spot-panchnama [Exh.45]. From the spot, a mat was recovered.

The clothes of victim and accused were seized. Seized articles

and clothes were sent to Chemical Analyzer. C.A. Report [Exh.55]

indicates that bed cover was having human blood. The clothes

of victim were stained with blood and the blood group found was

"B". Underwear of accused was also found having human blood.

The blood group of victim was determined as group "B".

However, blood group of accused could not be determined.

From C.A. Reports, it is apparent that clothes of victim and

clothes of accused were stained with blood. Articles recovered

from spot were also having blood stains. Though panch-

witnesses do not support the prosecution, this Court does not

find any reason to disbelieve the testimony of Investigating

Officer, particularly where no mala fides are attributed. The

incriminating circumstances further strengthen the case of

prosecution.

14] 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 the appeal. Hence,

the following order.

ORDER

 Criminal Appeal No.76/2016 stands dismissed with no order

as to costs.

(Kum. Indira Jain, J.) *sdw