Amir Nyamatkha Tadvi vs State Of Maha
2018 Latest Caselaw 286 Bom

                                                               Cri. Appeal No. 395/2003
                                                 1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO. 395 OF 2003

         Amir Nyamatkha Tadvi,
         Age 35 years, Occu. Labour,
         R/o. Loni, Tq. Jamner,
         Dist. Jalgaon.                                       ....Appellant.


                 Versus


         The State of Maharashtra
         (Through Sanjay Uttam Mhaske
         (Vadar) of Loni, Taluka Jamner
         in Cr.No. 59/2002 of Jamner PS)                      ....Respondent.



Mr. A.R. Rathod, Advocate for appellant.
Mr. S.D. Ghayal, APP for respondent/State.


                                    CORAM    :       T.V. NALAWADE AND
                                                     S.M. GAVHANE, JJ.

Reserved on : 18/12/2017 Pronounced on : 11/01/2018

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of Sessions

Case No. 92/2002, which was pending in the Court of 3rd Ad-hoc

Additional Sessions Judge, Jalgaon. The Trial Court has convicted the

appellant for the offence punishable under section 376 (2) (f) of

Indian Penal Code (hereinafter referred to as 'IPC' for short) for

committing the offence of rape on a girl aged about 5 years and he is

sentenced to suffer imprisonment for life. Heard both the sides.

Cri. Appeal No. 395/2003

2) In short, the facts leading to the institution of the present

proceeding can be stated as follows :-

The F.I.R. was given by father of the victim girl. Sanjay

Mhaske (PW 2), the complainant is resident of village Loni, Tahsil

Jamner and he was living in the village with his wife, victim girl, other

girl aged about 2 years and one son and also with father and mother.

He is agricultural labourer. The accused also hails from the same

village.

3) The incident took place on 28.5.2002 in the evening time.

The complainant was sitting in the courtyard of his house at about

7.00 p.m. and the victim girl was playing in the place situated behind

the house of complainant where Samaj Mindir of village is situated.

The complainant felt that the victim girl was raising shouts by calling

his name as 'Baba, Baba' and so, he, his elder brother and his wife

rushed towards Samaj Mindir. After reaching the spot, they noticed

that the accused had kept the victim girl on his thighs and in sitting

position he was giving jerks for committing rape on the victim girl and

the victim girl was crying. After seeing the complainant and others,

the accused pushed aside the victim girl and started running away.

The elder brother of complainant ran after the accused, but the

accused escaped by running through a field.

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4) The complainant noticed that from the private part of the

victim girl blood was coming. On inquiry, the victim girl disclosed on

the spot that when she was playing there, the accused called her, he

removed her underwear and made her to sit on his thighs. She then

became unconscious. The complainant then collected his relatives and

went to police station to give the report. On the basis of report given

by complainant, the crime came to be registered for the aforesaid

offence on the same day.

5) The victim girl was referred for medical examination by

police. The Medical Officer, who examined the victim girl, noticed that

there were signs of rape and there was still bleeding from vagina. The

accused came to be arrested on the same night. The accused was also

referred for medical examination. Blood was noticed on his clothes and

there was tenderness on his private part showing the sign of

intercourse. The accused was aged about 35 years at the relevant

time and he was also working as labour.

6) During the course of investigation, the clothes of victim girl

were taken over and the clothes of accused were also taken over

under separate panchanamas. The spot panchanama came to be

prepared. Statements of aforesaid witnesses came to be recorded. The

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clothes were sent to C.A. office along with blood samples of victim girl

and accused. Blood group of victim girl is 'B+' and blood group of

accused is 'O'. Blood of 'B+' group is found on the clothes of the

accused. After completion of investigation, chargesheet came to be

filed for aforesaid offence. In the Sessions Court, charge was framed

for aforesaid offence against the accused. The accused pleaded not

guilty.

7) The prosecution examined in all 9 witnesses. The victim

girl was not examined as she was hardly 6-7 years old when the

evidence was recorded, in January 2003. The accused took the

defence of total denial. During cross examination, it was suggested to

some witnesses that there was political rivalry between the

complainant's side and the accused and out of that rivalry, accused is

falsely implicated. The Trial Court has believed the father of victim girl.

The Trial Court has considered the corroboration of circumstantial

evidence and conviction is given.

8) Sanjay Mhaske (PW 2), father of victim girl has given

evidence that on that day, at about 7.00 p.m. when he was sitting in

the courtyard of house, he heard the shouts of the victim girl as 'Baba,

Baba' and so, he rushed towards that side. Samaj Mandir, community

hall is situated on that side which is backside of the house of the

Cri. Appeal No. 395/2003

complainant. He has given evidence that after reaching the spot, he

noticed that accused had kept victim girl on his thighs and he was

moving her in up and down position and he was giving jerks for having

sexual intercourse with her. He has given evidence that the incident

was going on in Varanda portion of community hall and not inside of

the hall. He has given evidence that after seeing him and others, the

accused pushed aside the victim girl, closed the zip of his pant and ran

towards the field to escape. He has given evidence that his elder

brother Sunil gave chase to accused, but accused escaped. He has

given evidence that on the spot when he lifted the victim girl and

examined her, he noticed that blood was coming through the genital

portion of victim girl and there was blood on the frock and nicker of

the victim girl. He has given evidence that the victim girl disclosed the

incident to him and then she became giddy. He has given evidence

that then he took the victim girl to police where he lodged the report

against the accused. The crime was registered in Pahur Police Station

and victim girl was referred to Government Hospital. He has given

evidence that his daughter was examined in the Government Hospital.

The report given by him is proved as Exh. 19.

9) The victim girl was present in the Court hall when evidence

of Sanjay Mhaske (PW 2) was recorded and the Court has observed

that the victim girl was hardly six years old at that time i.e. on

Cri. Appeal No. 395/2003

22.1.2003. It can be said that it was open to the Trial Court to

examine the victim girl by using the provision of section 313 of

Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for short),

but considering the age of the victim girl, the Trial Court did not prefer

to do so.

10) The cross examination of Sanjay Mhaske (PW 2) is mainly

to create probability that it was dark and it was not possible for PW 2

to hear the shouts and also to see the accused. There is some

discrepancy in the time given by the complainant to police and the

time given to Medical Officer by the complainant when the history of

incident was recorded. In police station, the time was recorded as 7.00

p.m. in the F.I.R., when in the hospital, the time was recorded as 5.00

p.m. In any case, due to such inconsistency only close scrutiny of the

evidence is required and the evidence cannot be discarded due to such

discrepancy. When there is such discrepancy, there are all kinds of

probabilities including the mistake committed by the hospital while

recording the time given in the hospital. The F.I.R. was given

immediately and the accused also came to be arrested on the same

night i.e. on the night between 28.5.2002 and 29.5.2002. The incident

took place in the month of May and the Trial Court has rightly

observed that in the month of May, the sun sets late and so even in

the evening, at 7.00 p.m. from some distance the face of the person

Cri. Appeal No. 395/2003

can be seen. Further, the accused was known to the complainant and

the victim girl and so, even if there was some darkness, it was not

difficult for the complainant to identify the accused on that evening.

His name was given in F.I.R. and due to these circumstances, this

Court holds that no probability is created in the evidence of Sanjay

Mhaske (PW 2) by the defence that there was no possibility to see the

incident or there was no possibility to identify the person who

committed the heinous act.

11) The aforesaid evidence shows that incident did not take

place inside of the community hall, but it took place outside of the

community hall. The spot panchanama is proved in the evidence of

Sanjay Aher (PW 1) and this document at Exh. 17 also shows that

incident took place on plat-form situated outside of the portion of

Samaj Mandir and not inside of Samaj Mindir, community hall. Though

no blood was found there, considering the nature of offence and the

circumstance that there was blood on the clothes of the victim girl and

also on the clothes of the accused, there was no probability that blood

stains could have been found at the place where the incident took

place. The evidence is given that the victim girl was kept on thighs by

the accused and in sitting position, he was doing the heinous act. The

medical evidence shows that blood was found on the thighs of the

accused. All these circumstances need to be kept in mind while

Cri. Appeal No. 395/2003

considering the defence suggested during cross examination of Sanjay

Mhaske (PW 2).

12) There is strong corroboration of medical evidence to the

version of Sanjay Mhaske (PW 2). Dr. Vaishali (PW 5) has given

evidence that she examined victim girl on the night between 28th and

29th, at about 1.20 a.m. as police had brought the victim girl to her

for medical examination. She has given evidence that she noticed

blood stains on the clothes of victim girl, which were on both front side

and back side of the clothes. She has given evidence that there was

dry blood on the thighs and at vulva of the victim girl. She has given

evidence that on examination of genital portion, she noticed edema on

vulva and there was sign of inflammation and there was also

tenderness. She has given evidence that she noticed bleeding through

vaginal part. Though hymen was intact, there was redness to hymen

and bleeding was through vaginal mucosa. The medical certificate

prepared by her is duly proved in her evidence as Exh. 26. Though she

had not given specific evidence in respect of sexual intercourse, after

going through the record in the Court and also the C.A. report, she

gave opinion that the victim girl had suffered sexual intercourse.

13) Dr. Vaishali (PW 5) examined accused also on 29.5.2002 at

about 9.30 a.m. She has given evidence that there was dry blood on

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his thighs and on pubic hair and she found tenderness over his genital

region. The medical certificate prepared by her in respect of accused is

duly proved as Exh. 30 in her evidence and after perusal of the record

including the C.A. report, she has given opinion that the accused had

taken sexual intercourse within 12 hours prior to his examination.

14) It is already observed that there is some inconsistency in

time given by Sanjay Mhaske (PW 2) to police in F.I.R. and the time

given when the history was given by PW 2 to doctor. Dr. Vaishali (PW

5) is cross examined mainly on that time. There is no need of more

discussion on this discrepancy.

15) It was submitted that the time of seizure of clothes of

victim girl does not match with the time of examination of victim girl

by Dr. Vaishali (PW 5) and so, the version given by doctor that there

was blood on the clothes of the victim girl cannot be believed. The

Trial Court has observed that there is possibility that due to bleeding

even after changing the clothes, the blood had come on the clothes

which were put on the person of victim girl after the incident. There

are other possibilities also. Many times mistakes are committed in

mentioning the time in panchanamas. In any case, this discrepancy

cannot affect the evidence of Sanjay Mhaske (PW 2) as there is strong

corroboration of the medical evidence.

Cri. Appeal No. 395/2003

16) Evidence is given by doctor and Investigating Officer (PW

9) about taking of blood samples of both the victim girl and the

accused. The carrier constable, who produced the clothes of victim

girl, accused and the blood samples in C.A. office [Sonawane, PW 6, a

lady police constable] is examined by prosecution and her evidence

shows that articles were produced in C.A. Office on 11.6.2002. Panch

witness Pralhad (PW 4) is examined to prove the panchanama of

seizure of clothes of accused. Second panch witness Vasant (PW 3) is

also examined. There is also the evidence of Investigating Officer (PW

9) on seizure panchanama. The seizure panchanama was prepared on

29.5.2002 between 10.30 a.m. and 10.50 a.m. The panchas had

noticed blood stains on front portion of the pant and also on

underwear at many places. Though Vasant (PW 3) has not whole

heartedly supported the prosecution case by saying that when he went

to police station, the clothes were already kept on table, there is

evidence of Pralhad (PW 4) and Investigating Officer (PW 9). Further,

there is also the evidence of Medical Officer Dr. Vaishali (PW 5). Due to

other evidence, this Court holds that Pralhad (PW 4) and Investigating

Officer (PW 9) need to be believed and this circumstance needs to be

used against the accused.

17) Sanjay Ahere (PW 1), panch witness on panchanama of

Cri. Appeal No. 395/2003

seizure of clothes of victim girl is examined by the prosecution and in

his evidence, the panchanama at Exh. 16 is duly proved. It was

prepared between 22.45 hours and 23.00 hours of 28.5.2002. This

document shows that on both the frock and the underwear of victim

girl, there were many blood stains. The inconsistency which was

argued in respect of time of this panchananama and time of

examination of victim girl by Medical Officer is already mentioned.

There is no reason to disbelieve Ahere (PW 1). The evidence of Ahere

(PW 1) shows that he gave his evidence most fairly and he gave

evidence during cross examination to show that complainant's side

belongs to political party BJP, who was in power in Village Panchayat

and accused belongs to NCP. However, there is nothing on the record

to show that this witness had adverse interest against the accused.

The spot panchanama at Exh. 17 is also proved in his evidence. This

evidence corroborates the case of prosecution.

18) C.A. report at Exh. 27 shows that on the frock of victim girl

and on the underwear of accused, blood of group 'B' was found.

Similarly semen was found on underwear of victim girl though it's

blood group was not detected. No blood was found on the pant of the

accused. C.A. report at Exhs. 28 and 29 show that blood group of

victim girl is 'B' and blood group of accused is 'O'. This evidence gives

corroboration to the case of prosecution. No explanation is offered by

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the accused on this circumstance.

19) The only defence which was taken by the accused is so

called political rivalry. The party of complainant's side was in power.

Even if it is presumed that there was political rivalry, it does not look

probable that complainant involved his daughter, who was aged about

5 years at the relevant time in such a serious case to teach lesson to

the accused. The accused had never contested the election, though his

grandmother had contested the election in the past as a candidate of

NCP. This Court holds that there is no possibility of false implication.

There is strong corroboration of circumstantial evidence to the version

of Sanjay Mhaske (PW 2).

20) The evidence of Sanjay Mhaske (PW 2) is direct evidence

and his evidence is also on the conduct of the accused. The evidence

is also on the disclosure made by the victim girl immediately after the

incident to him. Evidence is given that accused ran away from the

place and that is relevant under section 8 of the Evidence Act. The

presence of blood stains on the clothes of the accused and presence of

semen on the clothes of the victim girl is relevant under section 7 of

the Evidence Act. Though the victim girl is not examined in the Court,

the evidence given by Mhaske (PW 2) on disclosure made to him

immediately after the incident by the victim girl is relevant under

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section 6 of the Evidence Act. All these circumstances show that there

was no room of false implication. The Trial Court has discussed this

evidence and has rightly convicted the accused for the offence of rape.

21) On the point of sentence, it can be said that the accused

who was aged about 35 years and working as labour did heinous act of

committing offence of rape on a girl aged about 5 years. Such

incidents are increasing day by day. Fortunately, in the present matter,

the father of victim girl was available in the vicinity and so, he could

notice the incident and he could take the action against the accused.

The incident took place in the year 2002 and at the relevant time, the

punishment provided was imprisonment for not less than 10 years, but

which may extent to imprisonment for life. The meaning of 'life

imprisonment' is given as 'imprisonment for the remainder period of

that person's natural life'. The evidence on record and particularly, the

medical evidence shows that history of intoxication was given. There is

no record in respect of background of the accused, but during the

hearing given on the point of sentence, the accused prayed for lenient

view by submitting that he has four daughters and one son and eldest

daughter was aged about 11 years. No submission was made that

accused had bad antecedents. The Trial Court has given sentence of

imprisonment for life due to circumstance that accused committed

rape on a girl aged about 5 years and the Trial Court has held that the

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accused does not deserve any leniency.

22) Due to other aforesaid circumstances, this Court holds that

the minimum penalty provided for the offence needs to be given and

sentence of imprisonment of life is harsh. In the result, following order

is made.

ORDER

The appeal is partly allowed. The conviction given by the

Trial Court to the appellant is maintained, but the sentence given is

modified to make it imprisonment for ten years and fine of Rs.1000/-

(Rupees one thousand). In default of payment of fine amount, accused

is to undergo rigorous imprisonment for one month. Accused is

entitled to set off in respect of the period for which he was behind bars

in this case.

          [S.M. GAVHANE, J.]              [T.V. NALAWADE, J.]


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