Motiram S/O Asaram Gore vs The State Of Maharashtra And Anr
2022 Latest Caselaw 1812 Bom

                                                        Cri.Appeal No.292/2018
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.292 OF 2018


 Motiram Asaram Gore
 Age 50 years, Occ. Agriculturist,
 R/o Village Guru Pimpri,
 Taluka Ghansawangi, District Jalna                  ... APPELLANT

          VERSUS

 1.       The State of Maharashtra
          through Police Station, Ghansawangi,
          Taluka Ghansawangi, District Jalna.

 2.       A                                          ... RESPONDENTS

                               .......
 Shri Mahesh B. Karande, Advocate for appellant
 Shri S.P. Sonpawale, A.P.P. for respondent No.1 - State
 Shri S.S. Tope, Advocate for respondent No.2.
                               .......

                                  CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 18th February, 2022
                  Date of pronouncing judgment : 23rd February, 2022


 JUDGMENT:

The challenge in this appeal is to the judgment of

conviction and order of sentence dated 27/3/2018, passed by

Special Judge/ Additional Sessions Judge-2, Jalna in Special

Case (Child) No.21/2014. Vide impugned judgment and

order, the appellant came to be convicted for the offence

punishable under Section 376(1)(i) of the Indian Penal Code,

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and under Section 4 of the Protection of Children from Sexual

Offences Act and, therefore, sentenced to suffer rigorous

imprisonment for 10 years and 7 years respectively with a

direction to pay fine of Rs.5000/- on each count, in default of

payment of fine, he has been directed to undergo rigorous

imprisonment for three months.

2. The facts giving rise to the present appeal are as

under :

P.W.3 - A (prosecutrix) was resident of a village in

Ghansawangi Taluka, District Jalna. Her date of birth is stated

to be 14/9/2001. In the year 2014, the prosecutrix was in 6 th

Standard. She would reside along with her parents and

siblings. The prosecutrix had been to the school in the

morning of 22/3/2014. she returned from school by little past

12.00 noon. The prosecutrix went to play out of the house

after lunch. The mother of the prosecutrix (P.W.2 - B) along

with her sister-in-law was home. The prosecutrix returned

home crying. It was 4.00 p.m. She told her mother (P.W.2 -

B) that she went to the house of the appellant in response to

his call. The appellant latched the entrance door of the house

from inside, laid her on cot. He removed his pant and

inserted his private part in her female organ. She shouted

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complaining burning sensation. The appellant, therefore, rose

with a view to apply oil to her private part. Taking this

opportunity, the prosecutrix left his house and came home to

narrate her mother. The mother, in turn, called her brother-

in-law (K). He came. All of them approached Ghansawangi

Police Station. The prosecutrix lodged the First Information

Report (F.I.R.) Exh.28.

3. Based on the F.I.R., a crime vide C.R. No.81/2014

came to be registered. The prosecutrix was medically

screened. The appellant was arrested. Scene of offence

panchanama was drawn. clothes on the persons of both of

them were seized under panchanamas. Their blood samples

were obtained. During medical screening of the prosecutrix,

her vaginal swab too was obtained. Statements were

recorded of the persons acquainted with the facts and

circumstances of the case. On completion of the

investigation, the appellant was proceeded against by filing

the charge sheet.

4. The trial Court framed the Charge Exh.18. The

appellant pleaded not guilty. His defence is of false

implication on the ground of having refused to pay interest on

the amount taken as a hand loan from the father of the

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prosecutrix.

5. The prosecution examined 9 witnesses and

produced in evidence certain documents to establish the

charge. On appreciation of the evidence, the trial Court

convicted and sentenced the appellant as stated hereinabove.

6. Heard. Learned counsel for the appellant would

submit that, the evidence of the prosecutrix is grossly

inconsistent with the F.I.R. and her statement recorded under

Section 164 of the Code of Criminal Procedure. The medical

examination report of the prosecutrix rules out sexual assault.

According to him, as such, it is a case of acquittal. He,

therefore, urged for allowing the appeal.

7. Learned A.P.P. and learned counsel for the

prosecutrix would, on the other hand, submit that,

penetration howsoever slight, constitutes an offence of rape.

The prosecutrix was 12 years of age when the incidence did

take place. It was not a completed sexual activity and,

therefore, the C.A. report does not suggest presence of

semen on vaginal swab and/or the garments of both, the

prosecutrix and the appellant as well. According to learned

counsel, the parents of the victim have no reason to falsely

implicate the appellant at the cost of honour and career of

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their daughter. The appellant failed to make out his defence

even on preponderance of probabilities. According to the

learned counsel, no interference is warranted with the

impugned judgment and order.

8. Considered the submissions advanced. Perused

the evidence relied on. Although 9 witnesses were examined

before the trial Court, the evidence relevant for deciding the

present appeal would be that of the prosecutrix (P.W.3 - A),

her mother (P.W.2 - B) and the doctor who medically screened

the prosecutrix. Some of the witnesses are panchas to the

scene of offence panchanama, seizure of clothes, arrest of

appellant etc. Let us appreciate the relevant evidence.

9. The prosecutrix testified that she was playing in

the courtyard of her house. It was 4.00 p.m. of 22/3/2014,

the appellant called her to his house for some work. She

went to his house. He latched the door from inside. He

enquired with her as to who were present in her house. She

told him that her mother and aunt were there. The appellant

then laid her on a cot. He removed his pant and underwear

as well. The appellant then inserted his private part into her

female organ and gave 2 - 3 jerks. She shouted complaining

of burning sensation. The appellant told her that he would

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apply oil to her private part. Taking this opportunity, she fled

from his house and came home. She narrated her mother the

ordeal. It is further in her evidence that she accompanied her

mother to Ghansawangi Police Station. She made a report of

the incidence. The police officials took it down as narrated by

her. She then signed the same. The F.I.R. is at Exh.28.

10. In her cross-examination, it has come on record

that, on the given day, she had returned from school at 12.30

noon. She was in the courtyard of her house for playing. No

one was playing with her. The house of the appellant was in

the close-by. The appellant gave her a call from a bye-lane.

He told her that he wanted bidis. She asked him to give her

money to buy bidis. He in turn told her that he wanted to buy

on credit. She was about to leave his residence. He,

however, closed the door. Latched it from inside. She could

not shout because his mouth was pressed by him. According

to her, she was at his house for about two hours. She put up

resistance, but in vain as she was handicapped physically. It

is further in her evidence that, her private part had a swelling

and turned reddish. There was, however, no bleeding. She

was also confronted with her statement under Section 164 of

the Code of Criminal Procedure. she admitted to have stated

in her statement that the incident took place on 20/4/2014.

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11. P.W.2 - B (mother of the prosecutrix) testified

that, house of the appellant was in the close-by of her

residence. The appellant is an agricultural labourer. The

prosecutrix was playing in the front yard of her house. It was

little past 2.30 p.m. The prosecutrix was alone. The

prosecutrix returned home crying. It was 3.30 p.m. She

narrated everything as to how the appellant behaved with her

in his house. It is further in her evidence that she thereafter

called her brother-in-law - K. all of them went to the police

station. The prosecutrix lodged the F.I.R.

In her cross-examination, it has come on record

that, house of the appellant abuts a main road in the village.

Houses of one Macchindra and Sarjerao Kolhe are adjacent to

the house of the appellant. The appellant's house is in the

nature of one room of tin sheets. Although the father of the

prosecutrix was informed, he did not return by the time she

approached the concerned police station. She denied the

appellant to have obtained Rs.5000/- as a hand loan from her

husband. She denied his suggestion that the amount was

returned but no interest was paid thereon. All the

suggestions disclosing the appellant's defence came to be

denied.

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12. P.W.7 Kashinath was a Police Station Officer on

duty at Ghansawangi Police Station during relevant time. He

took down the F.I.R. as narrated by the prosecutrix. It is,

however, not known as to why the F.I.R. has been signed by

the Head of Women's Vigilance Cell. Be that as it may.

13. Dr. Ramkrushna Gaul (P.W.4) was a Medical Officer

on duty at District Women's Hospital, Jalna. It is in his

evidence that, the police had referred the prosecutrix for her

medical examination. He did examine her to find that her

vaginal examination was painful. Hymen was intact. He took

vaginal swab and blood sample of the prosecutrix for chemical

analysis. He issued the medical examination report Exh.34. It

is also in his evidence that he replied the queries made by the

investigating officer. His response to the queries is at Exh.35.

In his opinion, the prosecutrix was not capable of having

sexual intercourse. On examination of her private part, it

could not be observed that she was subjected to sexual

intercourse. The C.A. reports are at Exhs.55 and 56.

14. The appreciation of the aforesaid evidence

undoubtedly leads to observe that the medical examination

report of the prosecutrix and the C.A. reports as well rule out

case of sexual assault. It is true that, penetration howsoever

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slight, is sufficient to constitute the offence of rape. It is also

true that, the prosecutrix had testified that the appellant put

his male organ into her private part and gave jerks. Had the

same really been true, her hymen would not have been intact.

It is also true that, the sole testimony of the prosecutrix, if

found to be true, is sufficient to base a conviction for an

offence of rape.

15. In the case in hand, the medical evidence falsifies

her claim of having been sexually assaulted. There is no any

other evidence to reinforce the case of the prosecutrix. It is

true that, the family of the prosecutrix would not go to an

extent of lodging a false case against the appellant on account

of his failure to pay interest on the sum of Rs.5000/-

advanced to him as a hand loan, as per the case of the

appellant himself. No parents would like to put the career/

honour at stake. There must have been some substance in

the case made out by the victim. In view of this Court, the

evidence of the victim brings down the offence to attempt to

commit rape or attempt to penetrative sexual assault. The

punishment provided for attempt to commit such an offence is

an imprisonment which may extend to half of the punishment

and sentence provided for the offence attempted. The

appellant herein has been behind the bars for about four

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years and two months. Hence the order :-

ORDER

(i) The Criminal Appeal is partly allowed.

(ii) The order dated 27/3/2018, passed by learned Special

Judge/ Additional Sessions Judge-2, Jalna in Special Case

(Child) No.21/2014, convicting the appellant for the offence

punishable under Section 376(2)(i) of the Indian Penal Code

and under Section 4 of the Protection of Children from Sexual

Offences Act and sentencing the appellant to undergo rigorous

imprisonment for 10 years and 7 years respectively and to

pay fine of Rs.5000/- on each count, is hereby set aside.

(iii) The appellant is, however, convicted for the offence of

committing rape/ attempt to penetrative sexual assault, being

punishable under Section 511 read with Section 376 of the

Indian Penal Code and Section 18 of the Protection of Children

from Sexual Offences Act and sentenced to suffer rigorous

imprisonment for four years and four months and to pay fine

of Rs.10,000/- (Rupees ten thousand). In default of payment

of fine, the appellant shall undergo rigorous imprisonment for

further two months.

(iv) the appellant will be entitled for the set off under

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Section 428 of the Code of Criminal Procedure for the period

he has already undergone in prison.

(v) The amount of fine, if paid in excess, be paid back to

the appellant.

( R. G. AVACHAT ) JUDGE

fmp/-