Balu Kundalik Patil vs The State Of Maharashtra Ana Anr
2021 Latest Caselaw 13640 Bom

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                                                   CRI-APPEAL-147-2014.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.147 OF 2014

Balu Kundalik Patil                                    ... Appellant
           Versus
The State of Maharashtra & another                     ... Respondents

                                  ....
Mr. Niranjan Mundargi, Advocate i/b. Manish Rai, for the Appellant.
Ms. S.V. Sonavane, APP, for Respondent No.1-State.
Ms.Rebecca Gonsalvez, Advocate (appointed) for Respondent No.2.
                                   ....


                      CORAM : SMT. SADHANA S. JADHAV &
                              SARANG V. KOTWAL, JJ.

RESERVED ON : 16th SEPTEMBER, 2021

PRONOUNCED ON : 22nd SEPTEMBER, 2021

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 The appellant has preferred this appeal challenging the

judgment and order dated 25.7.2013 passed by the learned Special

Judge (Atrocities Act), Raigad at Alibag passed in Special Criminal

Case No.5/2013. By the impugned judgment and order, the

appellant was convicted for commission of the offence punishable

under Section 376(2) and was sentenced to suffer life

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imprisonment and to pay a fine of Rs.5,000/-; and in default of

payment of fine he was sentenced to suffer further RI for one year.

The appellant was further convicted for commission of the offence

punishable under Section 3(1)(xii) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,

"Atrocities Act") and was sentenced to suffer RI for five years and

to pay a fine of Rs.5,000/-; and in default of payment of fine to

suffer further RI for one year. The sentences were directed to run

concurrently. On depositing of the fine amount, Rs.9,900/- was

directed to be paid to the mother of the victim. The appellant was

given set-off for the period which he had undergone since the date

of his arrest i.e. from 21.11.2010. The District Special Social

Welfare Officer, Raigad-Alibag was directed to pay compensation of

Rs.1,20,000/- to the victim's mother as per the schedule annexed

to Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Rules, 1995. He was also directed to pay the travelling

allowances and daily wages of the victim and her parents in visiting

the office of the investigating officer and he was also directed to

make arrangement for rehabilitation of the victim.

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2 The prosecution case, in brief, is as follows:

. On 19.11.2010 between 4:00 p.m. to 4:45 p.m., the

appellant, who was about 33 years of age at that time, took the

victim girl, aged about five years, to his room and committed rape

on her. After the victim came back home, she narrated the incident

to her mother, who is respondent No.2 in this appeal. The mother

of the victim found injuries on the victim's private parts and,

therefore, along with her husband she approached the police and

lodged the FIR. The investigation was conducted. The victim was

belonging to Scheduled Caste and, therefore, provisions of

Atrocities Act were applied. The investigation was carried out by a

competent officer under the Atrocities Act. The appellant was

arrested. The victim was sent for medical examination. The spot

of incident i.e. the appellant's room was inspected. Spot

panchnama was carried out. Some blood was collected on the swab

from a chair in that room. A wedding card having blood stains was

also seized. The clothes of the appellants and those of the victim

were seized. The articles and various swabs collected during

medical examination of the victim as well as of the appellant were

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sent for chemical analysis. The caste certificate of the victim's

father was collected. After completion of the investigation, charge-

sheet was filed and the trial was conducted before the Special

Judge, which resulted in the impugned judgment and order, as

mentioned earlier.

3 During trial, the prosecution examined PW-1 Dr. Sachin

Ajamera, who had conducted medical examination of the victim.

He was working as Medical Officer at Vashi General Hospital. PW-2

Narendra Parulekar was a pancha for two panchnamas under

which the clothes of the appellant as well as the victim were seized

on 21.11.2010 and 20.11.2010 respectively. Similarly, he was also

a pancha for the spot panchnama of the house of the appellant.

Those panchnamas are produced on record at Exhibits-24, 25 and

26 respectively. PW-3 Dr. Swati Naik had conducted medical

examination of the appellant on 23.11.2010. She was attached to

Rural Hospital, Panvel. PW-4 was mother of the victim. She had

lodged the FIR vide C.R. No.498/2010 at Panvel City Police Station

on 19.11.2010. It was lodged at 9:45 p.m. PW-5 Dinkar Kadam

was the Assistant Police Inspector attached to Panvel City Police

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Station. He had conducted initial part of the investigation when

clothes were seized, spot panchnama was carried out and articles

from the spot were collected. PW-6 Assistant Commissioner of

Police Shri Pralhad Sandansiv was examined as the investigating

officer. He had carried out the investigation and had filed charge-

sheet. He had arrested the appellant on 21.11.2010. He had

collected the caste certificate of the victim's father, which is

produced on record at Exhibit-23. The caste certificate of the

appellant's brother was produced at Exhibit-53. The appellant was

belonging to 'Agri' caste. PW-7 was the victim girl herself. The C.A.

reports were also produced on record vide Exhibits-50, 51 and 52.

4 We have heard Shri Niranjan Mundargi, learned counsel

for the appellant, Smt. S.V. Sonavane, learned APP for respondent

No.1-State and Ms. Rebecca Gonsalvez, learned counsel appointed

for respondent No.2.

5 The important evidence in this case is the evidence of the

victim, her mother, medical evidence and the C.A. reports. The

victim is examined as PW-7. Learned Judge satisfied himself that

she was able to give rational answers and, thereafter, her

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deposition was recorded. She has stated that she was residing at

Koli Kopar in a chawl with her parents and brother. Her father was

working as a mason. Her mother was a housewife. On the day of

the incident, she was playing outside with her friends and brother.

She has deposed that a person known as "Balu" came near her

house. He offered to give her some snacks and called her to his

house. He took her to his house. She was made to sit on a chair.

She has deposed that thereafter he removed her undergarments.

He forced himself on the victim. She was having pain in her

private parts. Thereafter she has described that the appellant

touched his private parts with her private parts. She has further

deposed that her mother had came to that place and she had taken

her back to their house. The victim was in pain. She went to

hospital with her parents. The victim identified the appellant

before the Court. She also identified her clothes.

6 During cross-examination, the victim stated that she did

not know where the appellant was residing. He had not visited her

house. She was not knowing him prior to the incident. She

admitted that her father told his name as "Balu" and her father had

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shown the appellant to her in the Court. She has deposed that

when the appellant was taking her to his house, her mother had

quarreled with him. Some other people also quarreled with him.

She has further stated that her father had told her about what

evidence she was to give. She stated that her father had told her to

state that the appellant had touched the victim with his private

parts. She stated that her father told her to say so and that she had

stated that she was having pains on the say of her father.

7 PW-4 is the mother of the victim (i.e. respondent No.2 in

this appeal). She has described the incident. She has stated that

the victim was playing with other children in their court yard. It

was about 4:00 p.m. on that day. The appellant took the victim

with him by saying that he would give sweets to her. This witness

had seen the appellant taking her daughter with him. PW-4 then

went to the appellant's house to search for her daughter. Her

daughter was found inside the house. There was some bleeding

from her daughter's private parts. This witness then took her

daughter to her house. She enquired with her daughter. At that

time, her daughter told her about the incident. She told her that

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the appellant removed her clothes as well as his own clothes and

then he laid himself on the victim. PW-4 told this fact to her

husband. Both of them went to police station. They lodged their

FIR. The FIR is produced on record at Exhibit-39. The police sent

the victim to the hospital. The victim's clothes were seized.

8 In the cross-examination, PW-4 stated that, her husband's

uncle Manoj had accompanied them to the police station. The

appellant's house was at a distance of 100 meters from their house.

She could not explain as to why in her complaint to the police, it

was not mentioned that when she went to the appellant's house,

the victim was there and that she was bleeding. She had also not

mentioned that her daughter told her that the appellant removed

their clothes and then laid himself on her. She denied the theory

that the daughter herself came to their house and then narrated the

incident. It was recorded so in the FIR. But, she could not give

any reasons why it was so recorded.

9 PW-1 Dr. Sachin Ajamera had conducted the medical

examination of the victim. He has stated that the victim's age was

calculated on the basis of X-ray report and she was found to be five

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years of age. On examination, he found that she had abrasion over

left labia minora measuring 0.5 cm X 0.5 cm. It was not bleeding.

There was presence of hymenal teat at 5'O clock position. The

hymenal orifice was hyperaemic but it was not bleeding.

Importantly, he stated that the injury was within less than 24

hours. There was no evidence of injury to vagina. He had

collected various swabs and had sent them for examination. He

further deposed that hymenal orifice admitted tip of finger. There

was injury over private part and tear of hymen suggested injury by

blunt object. He has deposed that based on this injury he had

suggested that the victim was sexually assaulted. In the cross-

examination, he admitted that there could be various reasons for

tearing of hymen. No semen was detected on the swab collected by

him, but, he denied the suggestion that absence of semen meant

that sexual assault was ruled out. He reiterated that after

examination of the victim, he could state that there was sexual

assault. He produced the medical certificate of examination at

Exhibit-21, which noted the aforementioned injuries.

10 PW-2 Narendra Parulekar was a pancha for the spot

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panchnama. The panchnama is produced on record at Exhibit-26.

Importantly, blood was collected from the plastic chair with the

help of cotton. A wedding card was also seized from that place. It

also had blood stains.

11 PW-3 Dr. Naik has produced the medical papers of

examination of the appellant. She stated that she found following

injuries on his person :

"Swelling of testes. Hydrocele was prsent. No other exernal injury. Sample of blood, public hairs were obtained. He refused to give sample of semen."

12 The C.A. report showed presence of human blood on the

cotton swab taken from the chair, wedding card, shirt and

underwear of the appellant. However, the blood grouping was

inconclusive.

. This, in short, is important evidence of the prosecution

case.

13 Shri Niranjan Mundargi, learned counsel for the

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appellant submitted that the evidence of the victim shows that she

was a tutored witness and, therefore, was unreliable. The mother

of the victim has given inconsistent deposition compared to the

contents of her own FIR. There is a major contradiction in the

versions of her deposition and FIR because in the deposition she

has stated that she herself had gone to the appellant and brought

the victim back to her house; whereas, in the FIR she has stated

that the victim came back to their house on her own and then

narrated the incident. He submitted that this is an important

contradiction which shows that the witness is not telling the truth.

14 He submitted that the medical officer has admitted that

hymenal tear can occur due to various reasons. Lastly, he

submitted that in case it is held that the appellant has committed

rape, leniency be shown by reducing the sentence.

15 Learned APP submitted that the prosecution has proved

its case beyond reasonable doubts. Some latitude will have to be

given to the version of the victim who was very young and it was

not expected from her to narrate the incident without natural

infirmities in her deposition which would occur because of her

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tender age. She submitted that the mother's evidence is more

important. This ocular evidence is supported by the medical

evidence.

16 Ms. Rebecca Gonsalves, learned counsel for respondent

No.2 submitted that the case was immediately reported to the

police. The victim was sent for medical examination without delay.

The medical examination supports the prosecution case. There was

no scope to concoct and to implicate the appellant falsely. She

submitted that considering the tender age of the victim, her

deposition will have to be perused from that angle and in any case

it does not show that the victim's father had tutored her regarding

the actual incident.

17 We have considered these submissions. The medical

evidence given by PW-1 is clear enough. He has specifically opined

that the victim was subjected to sexual assault. He had mentioned

the injuries suffered by the victim. More importantly he had stated

that the injury was within less than 24 hours. Therefore, the

prosecution has proved beyond reasonable doubt that the victim

was sexually assaulted.

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18 PW-4, the mother of the victim, has stated that she had

seen the appellant taking away her daughter. There is no

inconsistency to this aspect between the evidence of PW-4, her FIR

and deposition of PW-7. Therefore, whether PW-4 brought the

victim back to her house or whether the victim came back home on

her own; will not make any real difference to the prosecution case.

19 One of the most incriminating circumstances in this case

against the present appellant is finding of blood on the chair as

well as on the wedding card found in his house. The prosecution

case is that the victim was made to sit on the same chair when the

incident had taken place. The medical examination of the

applicant himself shows that he did not have any bleeding injuries.

There were injuries on the private parts of the victim. The C.A.

report shows that there was blood on these articles as well as

clothese of the appellant. In the context and facts of this case, this

is a strong incriminating piece of evidence against the present

appellant.

20 The appellant in his statement under Section 313 of

Cr.P.C. has taken a defence that he was implicated at the behest of

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his brother who was landlord of the victim's family. However, there

is nothing on record to substantiate this suggestion and the

defence. As rightly submitted by Ms. Gonsalves the victim's family

had immediately approached the police. Medical examination was

conducted immediately and there was no scope for concoction of

the story falsely implicating the present appellant.

21 In this background, the admissions given by the victim

are inconsequential. She was barely five to seven years of age at

the time of incident. Even without referring to her deposition and

her admissions about her father showing her the appellant, and

father instructing her, there are other clinching circumstances as

mentioned hereinbefore against the present appellant.

22 In this view of the matter, we are satisfied that the

prosecution has proved its case beyond reasonable doubt. The

prosecution has also proved the fact that the victim belonged to the

Scheduled Caste and the appellant did not belong to a scheduled

caste. Therefore, the offence under the Atrocities Act is also

proved.

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23 We have considered whether leniency can be shown to

the appellant. The victim was barely five years of age and the

appellant was over 35 years of age at the time of incident. The

victim had suffered bleeding injury. She had innocently gone to his

house on his inducement. We are not inclined to show any leniency

to the appellant. We have considered the injuries and trauma

suffered by the victim. Therefore, there is no reason to reduce the

quantum of the sentence awarded to the appellant. Hence, we do

not find any merit in the matter. The prosecution has proved that

the appellant has committed these offences, i.e. the offence under

Section 376(2)(f) of IPC (before amendment) as well as under

Section 3(1)(xii) of the Atrocities Act. We are not inclined to

reduce the sentence.

24 Therefore, the appeal fails and is accordingly dismissed.

Ms. Rebecca Gonsalves was appointed by this Court. Therefore,

she be paid her fees as per rules.

Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.) 2021.09.22 16:03:09 +0530 Deshmane (PS)

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