Kishor @ Vadya S/O. Shivdas Koli vs The State Of Maharashtra
2018 Latest Caselaw 807 Bom

                                 1                    cri.appeal.106-17


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                  CRIMINAL APPEAL NO.106 OF 2017

Kishor @ Vadya s/o. Shivdas Koli,
Age : 27 years, Occ. In jail,
R/o. Adgaon, Tq. Yawal,
Dist. Jalgaon                                ..Appellant 

               Vs.

1. The State of Maharashtra,
   Through Yawal Police Station,
   Tq. Yawal, Dist. Jalgaon                  ..Prosecution

2. Jagruti Eshwar Baviskar,
   Age : Minor, Occ. Nil,
   Through : Guardian -
   Eshwar Ramesh Baviskar,
   Age : 40, Occ. Agri.,
   r/o. At Post Aadgaon,
   Tq. Yawal, Dist. Jalgaon
                                             ..Respondents
    
                         --
Mr.V.B.Patil, Advocate for appellant
Mr.A.A.Jagatkar, APP for respondent no.1
Smt.M.L.Sangeet, Advocate for respondent no.2
                         --

                  CORAM :  SANGITRAO S. PATIL, J. 
            RESREVED ON :  JANUARY 16, 2018
          PRONOUNCED ON :  JANUARY 23, 2018 
JUDGMENT :

The appeal has been preferred against the

judgment dated 06.03.2017 delivered in Sessions

2 cri.appeal.106-17

Case No.100 of 2014 by the learned Additional

Sessions Judge, Bhusawal, whereby the appellant

has been convicted for the offences punishable

under Section 376 read with Section 511 and under

Section 448 of the Indian Penal Code ("I.P.C.",

for short) and has been sentenced to suffer

rigorous imprisonment for seven years and six

months respectively and to pay a fine of

Rs.20,000/- and Rs.500/- respectively, with

default clause, on these two counts.

2. Briefly stated, it is the case of the

prosecution that the victim girl was aged about

nine years at the time of the incident, which took

place on 03.01.2011 in the cattle-shed of the

informant namely, Ishwar Ramesh Mistri situate at

village Adgaon, Tq.Yawal, Dist. Jalgaon. The

victim had gone to serve fodder to the cow in that

cattle-shed at about 2.00 p.m. to 2.30 p.m. The

appellant, who was residing nearby that cattle-

shed, went there, caught hold of the victim from

3 cri.appeal.106-17

behind, dragged her and made her to lie on a

rubber-mat. He removed her pant. He removed his

own pant as well. He lied on the person of the

victim. She tried to raise shouts. He pressed her

mouth. He then committed sexual intercourse with

her. The victim started suffering from pains at

her private part. Bleeding was oozing therefrom.

She shouted due to pains and took bite of the

fingers of the appellant. Therefore, the appellant

ran away. The victim rushed to her house and

informed the said incident to her mother and

grand-mother. The informant, i.e. the father of

the victim, was in his agricultural land. He was

immediately got called back to home through one

Ravindra Vasudeo Patil. The informant visited the

cattle-shed. The victim narrated the incident to

him. He took the victim to Police Station, Yawal

and lodged FIR against the appellant.

3. Crime No.2 of 2011 came to be registered

against the appellant for the offences punishable

4 cri.appeal.106-17

under Sections 376, 448, 323 and 506 of the I.P.C.

The investigation followed. The spot panchnama was

prepared. The rubber-mat and the stems of Jawar

which were stained with blood, came to be seized

therefrom. The appellant was arrested. The victim

as well as the appellant were subjected to medical

examinations. Their blood samples were collected.

Vaginal swab of the victim was collected. The

baniyan, under-pant and full pant of the appellant

came to be seized. The pant of the victim also

came to be seized. Statements of witnesses were

recorded. All the seized articles were sent for

chemical analysis and report.

4. After completion of the investigation,

the appellant came to be charge-sheeted for the

above-mentioned offences in the Court of the

learned Judicial Magistrate First Class. Since

the offence punishable under Section 376 of the

I.P.C. was triable by the Court of Session, the

learned Magistrate committed the case to the Court

5 cri.appeal.106-17

of the learned Additional Sessions Judge,

Bhusawal.

5. The learned trial Judge, after

considering the papers of investigation, framed

charges against the appellant for the offences

punishable under Sections 376 and 448 of the

I.P.C. only and explained the contents thereof to

the appellant in vernacular. The appellant pleaded

not guilty and claimed to be tried. His defence

was that of total denial.

6. The prosecution examined ten witnesses to

bring home guilt to the appellant of the above-

mentioned two offences. The learned trial Judge

scrutinised the said evidence and found it

sufficient and dependable to hold the appellant

guilty of the offences punishable under Section

376 read with Section 511 and under Section 448 of

the I.P.C. Accordingly, he convicted and sentenced

the appellant for the said offences, as stated

above.

6 cri.appeal.106-17

7. The learned Counsel for the appellant

submits that the evidence of the victim girl, who

was aged about nine years at the time of the

incident, is not at all believable. The medical

evidence does not support her version about the

alleged sexual assault made by the appellant. No

injury was found on her person. Her hymen was

found intact. Relying on the judgment in the case

of Tukaram Govind Yadav Vs. State of Maharashtra,

2012(1) Bom.C.R.(Cri.) 427, he submits that the

evidence on record is not sufficient to establish

that the appellant attempted to commit sexual

intercourse with the victim. He, therefore, prays

that the appellant may be acquitted of the above-

mentioned offences.

8. On the other hand, the learned APP

submits that the evidence of the victim is very

natural and probable. It inspires a great

confidence. She has no reason to make false

7 cri.appeal.106-17

allegations against the appellant. He submits that

the version of the victim clearly indicates that

the appellant had crossed the stage of preparation

for committing the offence of rape and had

actually attempted to commit rape on her.

Therefore, the trial Court rightly appreciated the

evidence on record to bring home the guilt of the

appellant of the said offence. He supports the

the impugned judgment and order and prays that the

appeal may be dismissed.

9. Considering the facts of the case as well

as the nature of the offence alleged against the

appellant, the evidence of the victim girl alone

would be relevant in order to see whether the

offences alleged against the appellant have been

satisfactorily proved or otherwise. The victim

girl deposes at Exh.20 that on the day of the

incident at about 2.00 p.m. to 2.20 p.m., she had

gone to the cattle-shed for serving fodder to the

cow. At that time, the appellant came there,

8 cri.appeal.106-17

caught her from behind, dragged her and made her

to lie on a rubber-mat. He then removed her pant

and that of himself and slept on her person. When

she tried to raise shouts, he pressed her mouth.

The appellant did bad work (i.e. sexual

intercourse) with her causing her to feel pains at

the place of her urine. She states that blood

started oozing from her private part. She then

raised shouts due to the pains and took bite of

the fingers of the appellant. Therefore, the

appellant ran away therefrom. Then she went to her

house and told the incident to her mother and

grand-mother. Her father had gone to the field.

After he came back home, she told the incident to

him also. She showed the spot of the incident to

her father. This is what is the account of the

incident given by the victim.

10. The evidence of the victim has been

supported by Vimalbai (PW 3)(Exh.20), who is her

grand-mother. She had seen the victim immediately

9 cri.appeal.106-17

after the incident. She deposes that the victim

was crying. Her clothes and legs were stained with

blood and on being asked, she narrated the above-

referred incident showing involvement of the

appellant. Though the evidence of Vimalbai (PW 3)

is hearsay, it is admissible in view of

Illustration (j) under Section 8 of the Evidence

Act.

11. Dr.Namrata (PW 8)(Exh.36) and Dr.Pravin

(PW 5)(Exh.24), who were working as Medical

Officers in the Civil Hospital at Jalgaon,

examined the victim on 03.01.2011. From their

evidence, it is clear that there was no

penetrative assault made by the appellant on the

victim. Her hymen was found to be intact.

Dr.Pravin (PW 5) specifically states that in the

case of penetrative assault, hymen always get

ruptured. He states that no injury was found on

the private part or other part of the body of the

victim, except an abrasion on her right elbow.

10 cri.appeal.106-17

However, both of these medical witnesses state

that the age of the abrasion was more than 72

hours. The victim was examined by these witnesses

on the same day on which the incident took place.

Therefore, the said abrasion cannot be connected

with the incident in question.

12. Dr.Feroz (PW 9)(Exh.38), who examined the

appellant on 03.01.2011 in Rural Hospital, Yawal,

states that he found three abrasions over the left

index finger of the appellant. He states that

fresh minimal bleeding was present over these

abrasions. The age of the abrasions was within six

hours of the examination. Bluish discoloration was

found on the nails of the appellant. He

specifically states that the said abrasions were

possible due to human bite. It has further come in

his evidence that after the examination of the

appellant, he found him to be competent to perform

sexual intercourse.

11 cri.appeal.106-17

13. The evidence of Dr.Feroz (PW 9) supports

the version of the victim that she took bite of

the fingers of the appellant when she started

shouting because of the pains at the time of the

incident. Dr.Feroz (PW 9) also accepts that the

abrasions found on the fingers of the appellant

were possible due to daily agricultural work.

However, it is not the case of the appellant that

he sustained those abrasions because of any

agricultural work done by him within six hours of

his examination by Dr.Feroz (PW 9). Therefore,

this alternative possibility would not be of any

help to the appellant. On the contrary, in view of

the positive evidence of the victim, the cause of

these abrasions given by Dr.Feroz (PW 9), i.e. due

to human bite, would strengthen the evidence of

the victim showing involvement of the appellant in

the incident in question.

12 cri.appeal.106-17

14. Machindra (PW 4)(Exh.21) happens to be

the panch to the spot panchnama (Exh.22). He

specifically states that a rubber-mat and stems of

Jawar stained with blood were laying on the spot

of the incident and the same were seized under the

panchnama (Exh.22). Nothing has been elicited in

the cross-examination of this witness so as to

create doubt about his evidence.

15. A.P.I. Pawar (PW 10)(Exh.45), who

prepared the spot and seizure panchnama also

corroborates the version of Machindra (PW 4).

A.P.I. Pawar (PW 10) further states that he sent

the said rubber-mat and stems of Jawar for

chemical analyais with letter (Exh.47) and report

thereof is at Exh.48. The said C.A. report shows

that the semen having human origin was found on

that rubber-mat. Though grouping could not be

established conclusively, the fact remains that

the human semen was found on the rubber-mat, which

was seized from the spot of the incident on the

13 cri.appeal.106-17

day of the incident itself between 5.45 p.m. and

6.15 p.m. Finding of the human semen on the

rubber-mat clearly indicates that the alleged

sexual activity was performed over that mat. The

victim has attributed authorship of that act to

the appellant.

16. Kailash (PW 6)(Exh.28) deposes that a

baniyan, under-pant and full-pant of the appellant

were seized in his presence on 03.01.2011 under

the panchnama (Exh.29). He then states that the

pant of the victim also was seized on 04.01.2011

in his presence vide panchnama (Exh.30). The said

articles also were sent to the Chemical Analyser

for chemical analysis with letter (Exh.47). The

C.A. report in respect of the under-pant of the

appellant shows that semen and blood stains were

detected thereon. Blood was also found on the

pant of the victim. Though grouping was not

ascertained, existence of the human semen and

human blood on the under-pant of the appellant and

14 cri.appeal.106-17

the pant of the victim also would corroborate the

version of the victim about the occurrence of the

alleged incident.

17. There is nothing on record to show that

there was any previous rivalry between the

informant or his family members on one hand and

the appellant or his family members on the other.

The victim, who was quite an innocent child at the

time of the incident, had no axe to grind against

the appellant. There was no reason for her to

speak false against the appellant. As stated

above, her evidence is corroborated by the above-

mentioned circumstantial evidence. Her evidence

creates a great confidence. There is absolutely no

possibility of her being tutored by anybody else

with a view to falsely implicate the appellant.

18. As stated above, the involvement of the

appellant in the above-mentioned incident has been

proved by the prosecution beyond reasonable doubt.

15 cri.appeal.106-17

Only because the medical evidence does not support

the version of the victim in respect of

penetrative assault, the appellant cannot be held

guilty for the offence of committing rape.

However, from the facts proved by the prosecution,

it is obvious that the appellant had crossed the

stage of preparation and attempted to commit rape

on victim. In the case of Tukaram Govind Yadav

(supra) cited on behalf of the appellant, the

accused therein, after removing nicker of the

victim, was found laying on her person. He was

trying to have intercourse with her, however, the

grand-mother of the victim reached there. At that

time, on seeing her, he fled away. In the

circumstances, it was held that the accused

therein had not crossed the stage of preparation

and there could not have been attempt to commit

rape. In the present case, as stated above, the

appellant had crossed the stage of preparation as

seen from the evidence of the victim and the C.A.

16 cri.appeal.106-17

reports. Consequently, the said judgment would not

be of any assistance to the appellant.

19. The learned APP relied on the judgment in

the case of Ravi s/o. Shankarrao Kale Vs. State of

Maharashtra, 2015 All M.R.(Cri.)4476, wherein the

accused was held guilty for the offence punishable

under Section 376(2)(f) read with Section 511 of

the I.P.C. on being noticed that he was sleeping

naked on a minor girl by removing her nicker and

was trying to insert his private part into the

private part of that minor girl. The age of the

victim girl therein was five years. The medical

evidence did not support the prosecution to

establish penetrative sexual intercourse. Hymen of

the victim was found intact. In the circumstances,

the accused was convicted for the offence of

attempt to commit rape. Thus, the judgment in the

case of Ravi s/o. Shankarrao Kale (supra) would be

helpful to the prosecution to advance its case.

17 cri.appeal.106-17

20. The prosecution has produced sufficient,

cogent and dependable evidence on record to

establish that the appellant unlawfully entered

into the cattle-shed of the informant with an

intention to commit rape on the victim girl and

attempted to commit rape on her. The guilt of the

appellant for the offences punishable under

Section 376 read with Section 511 and Section 448

of the I.P.C. has been established beyond the

reasonable doubt. The learned trial Judge has

rightly appreciated the evidence on record and

convicted the appellant for the said offences.

21. The incident has taken place prior to the

amendment to Section 376 of the Indian Penal Code.

Therefore, the sentence of the appellant would be

governed as per the provisions those were

prevailing prior to the amendment to this Section.

Accordingly, the punishment for the offence of

rape was imprisonment of either description, which

would not be less than seven years, but might be

18 cri.appeal.106-17

for life or for a term which might extend to ten

years. A discretion was vested in the Court to

impose the sentence of imprisonment for a term of

less than seven years for adequate and special

reasons to be recorded. For attempt to commit

rape, as per Section 511 of the I.P.C., the

punishment is for a term which may extend to half

of the longest term of imprisonment provided for

the offence. In the present case, the learned

trial Judge has convicted the appellant for the

offence punishable under Section 376 read with 511

of the I.P.C. with rigorous imprisonment for seven

years and to pay a fine of Rs.20,000/-. The

learned trial Judge observed in paragraph 45 of

the judgment that the offence of ravishing the

victim aged about nine years, being serious,

taking over-sympathetic view in the matter of

punishment would give a wrong signal to the

persons committing such offence.

19 cri.appeal.106-17

22. The appellant was aged about 21 years at

the time of the incident. The period of six years

has been elapsed after the date of the incident.

It seems that the appellant had not attained that

maturity to visualize the serious consequences of

his act because of his age at the time of the

incident. In the circumstances, in my view, the

sentence of imprisonment for seven years inflicted

on the appellant would be rather harsh. In my

view, if the sentence of imprisonment for the said

offence is reduced to four years, it would be

sufficient to deter the appellant in indulging

into any criminal activity in future. The sentence

passed against the appellant for the offence

punishable under Section 448 of the I.P.C. needs

no interference. In my view, the judgment

convicting the appellant for the offences

punishable under Sections 376 and 448 of the

I.P.C. calls for no interference. However, the

order of sentence in respect of the offence

20 cri.appeal.106-17

punishable under Section 376 read with Section 511

of the I.P.C. will have to be modified and the

sentence of imprisonment will have to be reduced

to four years. The appeal will have to be allowed

partly.

23. In the result, I pass the following

order:-

(1)            The appeal is partly allowed.


(2)            The   conviction   of   the   appellant   for   the 

offences punishable under Section 376

read with Section 511 and under Section

448 of the Indian Penal Code is

maintained as it is.

(3) The sentence passed against the appellant

for the offences punishable under Section

376 read with Section 511 is modified and

he is sentenced to suffer rigorous

imprisonment for 4 (four) years and to

21 cri.appeal.106-17

pay a fine of Rs.20,000/- in default to

suffer rigorous imprisonment for 6 (six)

months.

(4) The order of sentence in respect of the

offence punishable under Section 448 of

the I.P.C. is maintained as it is.

(5) The substantive sentences shall run

concurrently.

(6) Set off shall be given to the appellant

for the period from 03.01.2011 to

24.02.2011 and from 06.03.2017 till the

date of this judgment vide Section 428 of

the Code of Criminal Procedure.

(7) Rest of the directions given in the

impugned order are maintained as they

are.

(8) The appeal is accordingly disposed of.

[SANGITRAO S. PATIL, J.] kbp