Rajkumar S/O Shyamnarayan ... vs State Of Maharashtra
2017 Latest Caselaw 7821 Bom

 apeal297of02.odt                          1

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


                     CRIMINAL APPEAL NO.297 OF 2002

 Rajkumar s/o. Shyamnarayan Shrivastav,
 aged about 35 years, Occ. Private,
 resident of Parvatinagar, P.S. Ajni,
 Nagpur                                                     ...APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Ajni,
 Nagpur                                                     ...RESPONDENT

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         Mr. R.B. Gaikwad, counsel for the appellant.
 Mrs. M.H. Deshmukh, Addl. Public Prosecutor for the respondent. 
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                                   CORAM:           ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT

:3.10.2017.

DATE OF PRONOUNCING THE JUDGMENT :5.10.2017.

ORAL JUDGMENT

Appellant seeks to assail judgment and order dated

29.4.2002 in Sessions Trial 124 of 1996 delivered by 4th Adhoc

Additional Sessions Judge Nagpur, by and under which, the

appellant (hereinafter referred to as the "accused") is convicted of

offence punishable under section 376 of Indian Penal Code ("IPC"

for short) and is sentenced to suffer rigorous imprisonment for

period of 5 years and to payment of fine of Rs. 2000/-.

2 Heard Shri. R.B. Gaikwad learned counsel for the

accused and Smt. M.H. Deshmukh, learned Addl. Public

Prosecutor for the respondent / State.

3 The learned counsel for the accused Shri. R.B.

Gaikwad has a two fold submission to canvas. Firstly, the learned

counsel would submit that the ocular evidence of the victim is not

implicitly reliable and is inconsistent with the medical evidence.

Secondly, Shri. R.B. Gaikwad, learned counsel for the accused

would submit that even if the evidence is taken at face value, the

accused at the most can be convicted of an attempt to murder.

Per contra, the learned Additional Public Prosecutor Smt.

M.H. Deshmukh has submitted that the evidence of the minor

victim is trustworthy and confidence inspiring. The learned

counsel would submit that the medical evidence corroborates the

evidence of the minor victim that she was subjected to forcible

intercourse.

4 The informant Jyoti Kanojiya, the mother of the

victim could not be examined as she was no more. However, the

First Information Report lodged by Jyoti on 8.11.1995 at 7.15 p.m.

is at Exh. 51. The gist of the report is that Jyoti is a house wife

and her husband a labour who used to be out of house during day

hours in connection with labour work. The victim then aged 6

years was playing outside the house at 1.20 p.m. on 8.11.1995.

Jyoti came outside the house to check on her daughter, her

daughter was not seen, however, Jyoti heard cries of the minor

victim from the house of the accused. She witnessed the minor

exiting the house of the accused weeping. Jyoti took the minor

victim in her arms and asked as to why she was weeping. Her

minor daughter was frightened, she told Jyoti that accused asked

her to bring tobacco and gave some money. The accused took the

minor victim to the bedroom and made her lie down on the cot

after removing her underwear and inserted his private organ into

her vagina. The minor victim experienced pain and started

weeping.

On the basis of the report, offence was registered against the

accused under section 376 of IPC. Investigations were completed

and chargesheet was submitted in the Court of Chief Judicial

Magistrate, Nagpur who was pleased to commit the case to the

Sessions Court. The learned Sessions Judge framed charge at

Exh. 07. The accused pleaded not guilty and claimed to be tried.

The defence of the accused, as is apparent from the trend of the

cross examination and the statement recorded under section 313

of the Criminal Procedure Code, is of total denial and false

implication.

5 The case of the prosecution essentially rests on the

testimony of minor victim who is examined as PW 1, her minor

cousin Shikha who is examined as PW 2, Dr. Aparna Borkar who is

examined as PW 6 and the medical evidence. The victim who was

aged 5 years or thereabout has on the date of the incident has

deposed that between 2.00 to 2.30 pm on 8.11.1995 she was

playing alongwith her cousin Shikha and brother who was flying a

kite. The victim and Shikha went to search the kite which was cut.

The accused called the victim and Shikha and asked Shikha to

fetch a Bidi. Shikha brought Bidi and while she was giving the

Bidi to the accused, he caught her hand. Shikha bit the hand of

the accused and then went to her house. PW 1 has deposed that

the accused called her, took her inside his house, gave her some

money to bring tobacco which she did. The accused then closed

the door of his house and told the minor victim to sleep on a bed.

The accused removed her nicker, undressed and then inserted his

private organ in the private part of PW 1. The victim could not

tolerate the sexual assault and started crying. PW 1 has deposed

that she narrated the incident to her mother and she and her

mother went to the Police Station to lodge the report, she was

referred to medical hospital for examination.

6 Shri. Gaikwad, the learned counsel for the accused is

vehement in his contention that the evidence of PW 1 is neither

reliable nor confidence inspiring. My attention is invited to certain

omissions and discrepancies. The learned counsel for the accused

would submit that the credibility of PW 1 is totally demolished in

the cross examination. The victim has admitted that the report is

lodged at the instance of her mother Jyoti and that the statement

is given to the police was as per the say of her mother. The victim

has further admitted that she has been told about the evidence to

be given, by her grant-father and that the police have read over

the statement to PW 1 and also to her cousin sister Shikha.

It is true that there are certain omissions brought on record.

However, the omissions are minor and do not affect the credibility

of the evidence. Such omissions or discrepancies are even

otherwise quite natural when the evidence is recorded after six

years of the incident. The victim was 5 years old as on the date of

incident and 11 years old when her evidence was recorded. The

other contention that accused is falsely implicated by the minor

victim at the instance of her mother is noted only for rejection.

Nothing is brought on record to suggest that the alleged enmity or

bad blood was of such a nature as would persuade a mother to use

her 5 year old minor daughter as a tool to falsely implicate the

accused.

The evidence of PW 1, in my opinion is confidence inspiring,

and is corroborated by the evidence of her cousin sister Shikha

who is examined as PW 2. Shikha her then aged 8 years has

corroborated PW 1 to the extent she has deposed that accused

called both her and PW 1, asked Shikha to bring matchbox and

Bidi, the accused held her hand, PW 2 bit the accused and went

home. The ocular evidence of PW 1 and PW 2 is more than amply

corroborated by Dr. Aparna Borkar who is examined as PW 8. She

has deposed that examination of the minor victim revealed

redness over labia majora and minore and that the hymen was not

intact. Except for a suggestion that PW 2 could not come to

definite conclusion that the victim was sexually assaulted, to

which suggestion PW 8 has agreed, the evidence is virtually

unchallenged. The admission of PW 8 that she is not in a position

to give a definite opinion on whether the victim was sexually

assaulted, is of little significance. The hymen is not intact and

there is redness on labia majora and minore is the finding in the

medical examination, which is not challenged in the cross

examination. The medical evidence is consistent with the

testimony of PW 1 that she was subjected to forcible intercourse.

The alternate submission of Shri. R.B. Gaikwad, the learned

counsel for the accused that the evidence would suggest, if at all

attempt to rape, can not be accepted, in the teeth of the medical

evidence on record.

On a holistic appreciation of evidence, I do not see any

substance in the appeal. The prosecution has proved the offence

under section 376 of IPC beyond reasonable doubt.

The appeal is without substance and is rejected.

The bail bond of the accused shall stand cancelled.

The accused be taken into custody forthwith to serve the

sentence.

JUDGE

R.S.Belkhede, Personal Assistant.