Nishikant Maruti Nimbalkar (In ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 6937 Bom

                                                                                             CRI.APPEAL.373.15
                                                             1


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

                             CRIMINAL APPEAL NO. 373/2015

          Nishikant Maruti Nimbalkar 
          Aged 55 years,  
          R/o Jodmod, Aurangpura, 
          Amravati, Dist. Amravati.                                                  ...       APPELLANT 

                     v e r s u s

          The State of Maharashtra 
          Through Police Station Officer 
          Police Station, Kotwali 
          Dist. Amravati                                                             ...       RESPONDENT

...........................................................................................................................
           Shri C.A. Babrekar, Advocate for the appellant 
           Shri N.H. Joshi,  Additional  Public Prosecutor for respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED :     08th September, 2017

ORAL  JUDGMENT: 

The appellant/accused has preferred the present Appeal against

the judgment and order dated 24.08.2015 in Sessions Case No. 54/2015

delivered by the learned Sessions Judge, Amravati, thereby convicting the

appellant under Section 5(m) read with section 6 of the Protection of Children

from Sexual Offences Act, 2012, in the alternative, u/s. 376(2)(i) of the Indian

Penal Code and sentencing him to suffer R.I. for ten years and to pay a fine of

Rs. 5000/-, in default, to suffer RI for five months.

2. The prosecution case in brief is that, in the year 2015 the

CRI.APPEAL.373.15

complainant-PW1-Smt.Sunanda Pathade was residing with her husband and

three children at Jodmod, Aurangpura, Dist. Amravati. The victim at the

relevant time was aged about 9-years. The husband of the complainant was

working as a labourer in a Printing Press at Amravati. The victim was studying

in 5th standard at Ramkrishna Vidyalaya, Amaravati. The accused was residing

in the same locality. It is the case of the prosecution that the friends of the

victim, namely, Amrita was residing adjacent to the house of the accused. The

victim used to visit the house of Amrita very often. On 24.1.2015 at about

9.00 am, as usual, the complainant had gone to the mess of HVMP for

cooking food. Her husband had gone out for work. Her three children were

in the house. When the complainant returned back between 1.00 and 1.30

pn, she saw that her daughter (victim) was weeping and was repeatedly

going for urination. On making enquiry with her daughter, she informed her

that she was having inflammation at her urination organ (private parts). At

that time, she was weeping. On further enquiry, the victim informed her

mother that she had gone out near the house of Nishikant Kaka. He called her

inside his house. Nishikant Kaka sent her friends outside and told her that he

would pay her Rs. 10/- for purchasing eatables and on saying this he closed

the door. The victim further informed her mother that the accused pulled her

nicker indulged in sex with her. Further the victim informed her mother that

she had pains in her vagina. On hearing this, the complainant went to the

house of the accused and made enquiry about the said incident. However he

CRI.APPEAL.373.15

flatly denied that he had committed such a heinous act. After the husband of

the complainant returned home at about 7 to 7.30 pm, she narrated the

incident to him. On the next day, i.e. 25.1.2015 at about 3.30 p.m, the

complainant proceeded to the Police Station and lodged her complaint (Exh.

8). On the basis of said complaint, offence was registered at Kotwali Police

station vide Crime No. 22/2015 u/s 376 of IPC as well as Sections 3 and 4 of

the POCSO Act. The victim was referred for medical examination. The

statement of the complainant as well as the victim was recorded by a lady

Magistrate u/s 164 of the Cr.P.C. The clothes of the victim as well as that of

the accused, were taken charge by the Police and were sent to CA office for

analysis. After completion of investigation, charge was framed by the learned

trial Judge. The accused pleaded not guilty to the charge and claimed to be

tried. The defence of the accused was of total denial. The accused examined

defence witness on his behalf. According to the defence witness, at the time of

of the incident, the accused was not present in his house and had gone to

attend his work. It is further defence of the accused that there was a quarrel

between the complainant and the accused on the count of some money

lending transaction.

3. I have heard Shri Babrekar, the learned counsel for the appellant

and N.H.Joshi, learned Additional Public Prosecutor for the respondent. I have

meticulously gone through the record and proceedings of the case.

4. Learned counsel for the appellant vehemently argued that the

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learned trial Judge has not considered the discrepancies in the testimony of

the prosecution witnesses, so also failed to consider that although the hymen

of the victim was noticed in torn condition by the Medical Officer, no bleeding

injury as such, was noticed by her. According to the learned counsel for the

appellant there are various reasons for rupturing of the hymen. Shri Joshi, the

learned A.P.P. contended that the learned trial Judge has rightly convicted the

accused on careful scrutiny of the testimony of the prosecution witnesses PW

1-Sunanda and PW 2-victim. He contended that the victim has in must natural

manner, deposed before the Court and there are no material improvements as

such in her testimony. He further contended that the testimony of the

complainant has not been shattered in the cross-examination.

5. In order to consider the rival contentions of both sides, it would

be proper to go through the testimony of the victim of rape as well as her

mother-Sunanda, who is the complainant and the Medical officer,Dr.Sarika

Bhutada (PW4) who examined the victim.

6. So far as the testimony of the victim-PW2 is concerned, the

learned trial Judge has satisfied himself that the witness understands the

sanctity of oath. At the relevant time PW2 was studying in IV th standard. She

was aged about 9-years. She stated that Jhanvi, Amrita, Samiksha are her

friends residing in the same locality. Nishikant kaka resides near the house

of her friend Amrita. According to her, as there was some programme in her

school she had not gone to attend the school. In the afternoon, she went with

CRI.APPEAL.373.15

Amrita and Samu to play near the house of Nishikant kaka. At that time

Nishikant kaka called her alone in his house and told her that he would pay

the amount of Rs. 10/-for purchasing eatables. As she went inside his house,

he removed knicker of the victim and touched his penis to her private parts:

"R;kus ek>h pMM~h dk<yh vk.kh R;kph ukuw ekÖ;k lklwckbZyk ykoyh." The accused asked

her that she should not disclose the incident to anybody. She has severe pain in

her private parts. She further deposed that she was weeping and came home.

She further stated she was examined by the Medical Officer as she had pains

for several days.

7. The cross-examination of PW2 depicts that, it was suggested to

PW2 that whenever they used to play in the house of Amrita, the talks used to

be heard in the house of house of Nishikant Kaka and he used to say not to

raise shouts. The said query was made with PW2 probably in order to show

that whenever noise used to be there it was possible to hear in the adjacent

house. PW2 admitted that on the next day of the incident i.e. on Sunday she

had gone with Vaishali to play. Learned counsel for the appellant contended

that when the victim was in position to go to play on the very next day of the

incident, the said fact indicates that there was no injury on her private parts. I

am unable to agree with the said argument advanced by the learned counsel

for the appellant, for the simple reason that it is the case of the prosecution

that on the very next day victim had gone with her mother to Kotwali Police

Station, Amravati. Apart from that, no material discrepancies are pointed out.

CRI.APPEAL.373.15

PW 2 is found to be reliable and trustworthy witness and her evidence has

not been shattered in the cross-examination as such. PW1 has immediately

disclosed the incident to her mother.

8. The testimony of PW2-victim is well supported by the testimony

of PW1-Sunanda, who is the complainant. According to PW1-Sunanda, on

24.1.2015 at about 9.00 am, she left for work and returned to the home at

3.00 to 3.30 pm. She saw that her daughter weeping and repeatedly going

for urination. On making enquiry, her daughter informed that there was

inflammation in her urination (private parts). PW1 touched her private parts

with her finger and questioned whether she has touched her private parts

with fingers having chilly powder. On this her daughter replied that nothing of

that sort had happened. However she continued to weep. PW2-Sunanda

stated that on cajoling her daughter, PW2 told her that she had gone out for

playing and when she was near the house of Nishikant kaka, he called her

inside the house. Nishikant Kaka sent his friends outside and told her that he

would pay Rs. 10/- for purchasing eatables and closed the doors. Her

daughter further told that the accused pulled her nicker down and touched his

'Nanu' to her 'Sasubai'. She told that the word 'Nanu' is used for penis and

word Sasubai for vagina. Her daughter said that due to this she had pains in

her vagina. According to PW1 she got frightened and after her husband

returned home at about 7 to 730 p.m, she disclosed the incident to him. She

also told the incident to brother in law 's wife, elder brother in law and

CRI.APPEAL.373.15

nephew. On the next day i.e. 25.1.2015 at about 3.30 p.m. PW1 proceeded

to Police Station, Kotwali along with her daughter PW2 and lodged the

complaint (Exh. 8).PW1 specifically stated as her daughter was young and

was likely to be defamed, it took some time to take a decision about lodging of

the complaint. PW1 stated that the clothes of the victim were taken charge by

the police. Her daughter was referred for medical examination at Duffarine

Hospital, Amravati. The Medical Officer examined PW2. Nothing adverse

was elicited from the cross-examination of PW2 on her exhaustive cross-

examination. An improvement was pointed out in her deposition before the

Court that she had noticed the redness on the vagina of her daughter.

9. Apart from the said improvement in the version of PW1 there is

no improvement as such in her version. In my opinion, the witnesses are not

supposed to give the details to the police immediately. Sometimes the witness

exaggerate their version before the Court. In this case, it was natural on the

part of PW1 to examine the private parts of her daughter. One suggestion of

the incident was given to PW1 that she had not stated in her complaint that

her daughter was young and she was likely to be defamed and as such, took

time for lodging the complaint. In my opinion, the said version of the

complainant cannot be termed as an improvement as such. PW1 has explained

the reason for delay while she was examined before the Court. So also it is

well settled that in rape cases the delay of one or two days is bound to be

there as the parents of the victim normally give a cool thought over lodging

CRI.APPEAL.373.15

of the complaint as reputation of their daughter and family is at stake and

thereafter only proceed to lodge the complaint.

10. In the case of Tulsidas Kanolkar vs. State of Goa, reported in

(2003) 8 SCC 590, it is held by the Hon'ble Apex Court that the delay in

lodging of the first information report cannot be used as a ritualistic formula

for discarding the prosecution case and doubting its authenticity.

11. In the case of State of Punjab vs. Gurmit Singh and others,

reported in (1996) 2 SCC 384, it was observed by the Hon'ble Apex Court

that, the Courts cannot overlook the fact that in sexual offences delay in the

lodging of the FIR can be due to variety of reasons particularly the reluctance

of the prosecutrix or her family members to go to the police station and

complain about the incident which concerns the reputation of the prosecutrix

and the honour of her family. It is only after giving it a cool thought that a

compliant of sexual offence is generally lodged.

12. The testimony of PW1-Sunanda is not shaken in the cross-

examination. Thus, the testimony of PW2 corroborates on all material

particulars with the testimony of PW1. There was no reason for PW1 to falsely

implicate the accused in such a heinous offence by putting the reputation of

her daughter and family at stake.

13. As far as the medical evidence is concerned, PW 4-Medical

Officer-Dr. Sarika Bhutada, examined the victim on 26.1.2015. She found on

local examination that the hymen of the patient was ruptured and there was

CRI.APPEAL.373.15

no redness, no swelling but tenderness was present. According to PW4-Dr.

Sarika, patient was complaining of micturition (frequent urination). PW 4

gave her opinion that the patient was not eligible for intercourse and there was

no evidence of swelling over private part. PW4 issued the medical certificate

(Exh.19). PW4 deposed that there is very less possibility of hymen getting

ruptured in sports activity in view of the tender age of the patient. She

specifically stated that the hymen of the girl, aged 9-years can be ruptured

by forceful penetration. PW1 stated that since she carried out the examination

of the victim/patient after 36 hours, the injuries might have subsided. PW 4

failed to state as to exactly when the hymen was ruptured. The meticulous

scrutiny of the testimony of PW4 depicts that tenderness was noticed in the

hymen and the hymen was ruptured. The testimony of PW4 does not indicate

that there was fresh injury to the hymen. However since the tenderness was

seen on the hymen and the said fact coupled with the fact that the victim was

examined 36-hours after the incident, it can be said that the testimony of PW4

corroborates with the testimony of victim as well as complainant with regard

to the factum of incident.

14. As far as the age of the victim is concerned, it is not disputed that

she was 8½ years old at the time of incident. It is well-settled that the

testimony of the sole eye witness cannot be discarded when it is found to be

reliable cogent and trustworthy.

15. In the case of Aman Kumar and another vs. State of Haryana,

CRI.APPEAL.373.15

reported in (2004) 4 SCC 379, the Hon'ble Apex Court has held as under :-

"5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice."

16. For the reasons aforementioned and the position of law as

discussed above, I am of the opinion that the learned trial Judge has rightly

convicted the accused. No interference at the hands of this Court is necessary.

Hence the following order :-

ORDER:

I)       Criminal Appeal No. 373/2015 is dismissed. 

2)       The   judgment   and   order   dated   24.08.2015   in     Sessions   Case   No. 

54/2015 delivered by the learned Sessions Judge, Amravati, convicting the

appellant under Section 5(m) read with section 6 of the Protection of Children

from Sexual Offences Act, 2012, in the alternative, u/s. 376(2)(i) of the

CRI.APPEAL.373.15

Indian Penal Code and sentencing him to suffer R.I. for ten years and to pay a

fine of Rs. 5000/-, in default, to suffer RI for five months, is maintained.

iii) Muddemal property, if any, be destroyed after the appeal period if over.

JUDGE

sahare