Bombay High Court
Vaishali Bapurao Dopare vs Hanmant Masna Ibitwar And Anr on 4 October, 2024
2024:BHC-AUG:23739
-1- Cri.Appeal.769.2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 769 OF 2004
Hanmant S/o. Mashna Ibitwar,
Age : 30 years, Occu. Police Patil & Agriculture,
R/o. Jirga, Taluka Mukhed,
District Nanded ... Appellant
Versus
The State of Maharashtra ... Respondent
WITH
CRIMINAL REVISION APPLICATION NO. 84 OF 2005
X.Y.Z. (Victim)
Age : 17 years, Occu. : Minor,
under guardianship of
Bapurao S/o. Piraji Dopare,
Age : 46 years, Occu. : Agril.,
R/o. Village Jirga, Post Barali,
Tq. Mukhed, District Nanded. ... Applicant
(Orig. Complainant)
Versus
1. Hanmant S/o. Masna Ibitwar,
Age : 30 years, Occu. : Agril.,
Police Patil, R/o. Jirga,
Post Barali, Tq. Mukhed,
District Nanded.
2. The State of Maharashtra ... Respondents.
...
Ms. Rakhi Sundale, Advocate for Appellant in Cri.Appeal/769/2004
Mr. D. R. Korade, APP for Respondent - State
Mr. U. L. Momale, Advocate for Applicant in Cri.Revision/84/2005
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 27st SEPTEMBER, 2024
PRONOUNCED ON : 4th OCTOBER, 2024
-2- Cri.Appeal.769.2004
JUDGMENT :
1. Appellant herein is challenging judgment and order of
conviction recorded by learned Additional Sessions Judge,
Kandhar dated 05.11.2004 rendering conviction for offence
punishable under sections 376 and 323 of Indian Penal Code (IPC).
2. In nutshell, prosecution version in trial court is that,
on 25.08.2003 victim PW5 was returning home from her field
around 5:30 p.m. after she had accompanied her parents since
morning. When she reached near field of one Gurling, accused who
was coming from opposite direction caught her hand, pulled her
near a hillock and after making her fall, committed intercourse
with her. He also hit her on the face. When her brother came,
accused assaulted her brother. After coming home, she reported
the occurrence to her father and on next day, they approached
Mukramabad police station, where her statement was recorded
and crime was registered.
After being charge-sheeted, appellant was tried by
learned Additional Sessions Judge, Kandhar vide Sessions Case No.
156 of 2003 and held guilty for both offences under sections 376
and 323 of IPC.
-3- Cri.Appeal.769.2004
Feeling aggrieved by the above, instant appeal has been
preferred.
3. Original complainant has also preferred criminal
revision for enhancement of sentence awarded by learned trial
Judge.
SUBMISSIONS
On behalf of Appellant :
4. Questioning the legality and maintainability of the
impugned judgment, learned counsel pointed out that, there is no
cogent, convincing and reliable evidence in support of any of the
charges. She pointed out that, in fact, there is no iota of evidence
that victim was forcibly raped. She took this court through the
medical evidence i.e. medical certificate and submitted that, even
after examination, there were no injuries on the person and even
clear opinion has been given that there was no evidence suggesting
forceful intercourse which is at Exh.17. At this point, she
submitted that, the doctor, who allegedly physically examined
victim, is not examined by prosecution for the best reasons known
to him. She also pointed to the cross of victim and submitted that
she too has candidly admitted that there were no injuries on
person. She further submitted that, even CA report does not help
prosecution. Consequently, learned counsel submits that, there is
-4- Cri.Appeal.769.2004
no convincing or reliable evidence in support of charge of either
under section 376 or 323 IPC.
5. She pointed out that, prosecution has adduced
evidence of brother, who was admittedly elder to victim, but he
allegedly ran away and according to learned counsel, his testimony
shows that, he has not seen alleged incident as is put-forth by
prosecution.
6. She pointed out that, there is no prompt complaint.
Moreover, there are suggestions that due to previous political
rivalry, there is false implication. According to learned counsel,
there is weak evidence. That, there is no corroboration to the
testimony of victim and therefore according to her, learned trial
court erred in accepting prosecution version and hence she prays
to allow the appeal. She seeks reliance on the following rulings :-
(i) Rai Sandeep v. State of NCT of Delhi,
MANU/SC/0623/2012
(ii) Narender Kumar v. State (NCT of Delhi),
MANU/SC/0481/2012
(iii) Nirmal Premkumar and Ors. v. State Rep. by Inspector
of Police, MANU/SC/0188/2024
(iv) Manak Chand v. The State of Haryana,
MANU/SC/1191/2023
-5- Cri.Appeal.769.2004
(v) Sadashiv Ramrao Hadbe v. State of Maharashtra & Ors.
MANU/SC/0607/2006
(vi) Bhagbat Gorain v. State of West Bengal,
(C.R.A. No.587/2007- High Court of Calcutta)
On behalf of Respondent :-
7. Per contra, learned APP pointed out that, victim was
barely 15 years of age. That, she was ravished by accused while
she was alone returning from the field. That, her brother saw his
sister crying and even accused putting on his own clothes. That,
therefore, he went for her rescue, but was beaten. That, he ran and
reported incident to his parents and aunt. That, they all are
examined. He submitted that, sole testimony of victim is sufficient
to record guilt and according to him, here, as the testimony of
victim is inspiring confidence and her evidence having remained
unshaken regarding the occurrence, it is his submission that, there
is no infirmity or error on the part of learned trial Judge in
returning the guilt.
In support of above submissions, he seeks reliance on
the decision of Hon'ble Apex Court in the case of Phool Singh v. the
State of Madhya Pradesh in Criminal Appeal 1520 of 2021.
EVIDENCE ON RECORD
8. PW1 Narayan, pancha to seizure of clothes of victim
did not support prosecution.
-6- Cri.Appeal.769.2004
PW2 Havgirao, another pancha to seizure of clothes of
victim did not support prosecution.
PW3 Pandhari, neighbour did not support prosecution.
PW4 Dr. Rajendra Chavan, Medical expert, who
examined accused.
PW5 is the victim. He deposed at Exh.23.
PW6 is father of victim.
PW7 is brother of victim.
PW8 is the aunt of victim.
PW9 Sk. Mehboob is the pancha to spot panchanama.
PW10 API Pathan is the Investigating Officer.
PW11 Maroti, Head Master, who placed on record
extract of admission register.
SUM AND SUBSTANCE OF PROSECUTION EVIDENCE
deposed as under :-
"1. I know the accused, sitting before the court.
Incident occurred on 25.08.2003, at about 5:30 p.m.
at that time, I was returning from the fields when I
was near the field of one Gurling, at that time, the
accused was coming from my opposite direction. He
caught my hand, pulled me by the side behind the
bushes below a hillock, he fell me down in a stream
(nali) and closed my mouth by means of his hand, he
fell on my person and committed intercourse on me.
-7- Cri.Appeal.769.2004
He also assaulted on my face. At that time, my
brother came there. Accused assaulted him on his
face. My brother ran towards the field to inform my
mother. I came home. The accused had ran away
form the spot after assaulting my brother is 2 years
elder than me. I came home and told about the
incident. I was crying.
2. As it was the night time, we did not go to
the police station, Mukramabad. On the next day
morning we went to Mukramabad police station and
filed the complaint. Police reduced into the writing
my report as per my narration. I then signed on it.
The report dated 26.08.2003."
While under cross, she stated that, she studied up to 8 th
standard; left school 2 to 3 years back; that she used to go to field
work since she was about 5 years old; on the date of incident she
had been to the field between 9 to 10 a.m. with parents and
brother. She answered all questions put to her regarding location
and situation of the way to the field; about lady working in the
adjoining field and their names. In paragraph no.8, she answered
that, accused was coming from his field. She answered that she did
not go to the hospital of Dr. Repanwad one and half month prior to
the incident. He answered that, her brother served at Pune. She
answered that, her brother came from the house when she
shouted. She answered that, she was alone when she left for home
-8- Cri.Appeal.769.2004
and she met no one on the way. She stated that, she herself
narrated the incident to police. She admitted that, she did not
suffer any injury on her person. Rest is all denial.
10. PW6 father at Exh.25 deposed as under :-
"1. I know the accused. Witness victim is my
daughter. Incident occurred on 25.08.2003. I was in
the field at that time. On that day myself, my wife, my
son and my daughter victim had gone to the field in
the morning. We were in the fields till about 6:00 p.m.
About 4:30 p.m. we sent ahead our daughter victim to
our house for preparing meals etc. prior to that in the
afternoon we had sent our son home for home work on
account of the pola festival which was on next day.
2. At about 6:00 p.m. my son came back to the fields.
He came running to the fields. I inquired from him as to
what was the matter. He told me that when he was
coming towards the field, he saw accused Hanmant was
in his underwear and he was trying to wear his
trousers at that time, his sister victim was sitting
crying there. My son inquired frok her as to what had
happened. My daughter victim told him that accused
Hanmant had forcibly sexually intercourse with her.
My son followed the accused, at that time, the accused
assaulted him by means of slaps and thereafter the
accused ran away towards the village and my son came
towards the fields. My daughter victim went towards
the house. My son told us about the incident.
-9- Cri.Appeal.769.2004
Thereafter we returned the home.
3. In the house we saw daughter crying. She told us
about the incident and she was crying. She told us that,
the accused Hanmant had caught hold of her in the
fields, fell her down and forcibly had intercourse with
her. As it was night time and there was little rain, so
we could not go to the police station.
4. On the next day morning we went to police station
and complaint was filed against the accused."
While under cross, following omissions are brought :-
That, son PW7 had told that he had seen accused in his
undergarment and he was wearing his trouser; that his son told
that victim was sitting at that place; that his son had chased
accused; that his son told that accused had run away from the spot;
during that night it was slightly raining.
In further paragraph nos. 6, 7 and 8 there are questions
about distance between villages, location of land, neighbours, who
was the Sarpanch, his name, tenure, boundaries of village, location
of the road, its nature, whether road was kachcha road or tar road;
nature of crop in the adjoining fields. Again in paragraph no. 9
questions are put about grampanchayat elections and he admitted
that he and his mother both lost the same. He answered that he
-10- Cri.Appeal.769.2004
does know whether accused belonging to political party of ex
Sarpanch. He answered that they reached police station at 12:00
noon. Rest is all denial.
11. PW7 brother at Exh.26 deposed as under :
"I know the accused Hanmant who is present before the
court. Complainant victim is my sister. The incident
occurred about 9 to 10 month ago at about 4:30 to 5:00
p.m. At that time I was going towards my field from my
house. At that time, I saw my sister victim sitting and
crying in field of Guruling Targude. I also saw the
accused wearing his clothes. On seeing me he started
running away. I then went to my sister victim. She
told me that the accused caught her hand, fell her down
and raped her. I then chased the accused. I obstructed
the accused. He then abused me and assaulted me and
told me to go away from there. Due to the assault at the
hands of accused I got frightened, and went towards my
parents in the fields. I told about the incident to my
parents. Thereafter we all came home. At that time my
sister was crying in the house. After assaulting me, the
accused had ran away from the spot. The accused
present before the court is the same whom I had seen
during the incident."
While under cross, he stated that, he studied upto 10 th
standard and regarding the occurrence he stated that he chased
accused for about 100 meters towards east. He answered that
-11- Cri.Appeal.769.2004
when he went to the field after the incident, his parents and aunt
met him in the field and he returned home at 6:30 p.m. Rest is all
denial.
12. PW8 maternal aunt stated that at about 4:00 to 5:30
victim was sent to prepare meals. Thereafter PW7 came and told
that, accused caught hand of his sister, assaulted him and raped
his sister.
In cross, she is questioned about her family, field and its
surroundings. Rest is all denial.
13. PW9 Sk. Mehboob, pancha identified spot panchanama
to be at Exh.29 prepared in his presence. But, thereafter he denied
that any clothes seized in his presence. He again identified Articles
4 to 7 and seizure panchanama at Exh.30.
In cross he answered that, his signature was obtained
at the spot and secondly at Maruti temple.
14. PW11 Maroti, Head Master, who deposed that, victim
studied in their school up to 5 th standard as per school register, her
date of birth was 04.05.1998. He placed photocopy of certificate at
Exh.44.
-12- Cri.Appeal.769.2004
While under cross he admitted that, he did not carry
original admission register of victim.
ANALYSIS
15. Evidence of victim is crucial. She in her evidence at
Exh.23 has narrated that while she was returning from field,
accused appellant, who was coming from opposite direction,
initially caught her hand, dragged her behind the bush, after
making her fall, he committed sexual intercourse. He also hit her
on the fact. When her brother came on hearing her cries, accused
hit him also and therefore, he ran to inform parents. She also
stated that, her brother had chased the accused and thereafter he
ran away.
Her brother who is examined as PW7 also in his
evidence stated that, while he was returning towards his house
around 5:00 p.m., he saw his sister sitting and crying and also saw
accused putting up clothes and so he ran there. She told him that
accused raped her. He claims to have chased accused.
On visiting their cross, the above testimonies have
virtually remained unshaken.
16. Fundamental objection raised by learned counsel is
that, there are no injuries on the person of victim and she has
-13- Cri.Appeal.769.2004
admitted to their extent in her cross. It is also pointed out that,
there are no fresh injuries noticed by doctor or indicating forceful
intercourse.
17. Going by the settled legal position that, merely because
there are no injuries, that itself is not sufficient to discard her
testimony that she was raped. She has narrated the episode since
being dragged, made to fall down and thereafter forcibly raped.
Settled law is loud and clear that, absence of injury is itself no good
ground to rule out rape. Further, law is also fairly settled that,
evidence of prosecutrix if inspires confidence, even in absence of
corroboration or injuries, her version can be accepted. Even law is
reiterated to that extent in the cases of Krishan v. State of
Haryana, (2014) 13 SCC 574; Dastagir Sab & Anr. v. State Of
Karnataka, 2004 (3) SCC 106 and State of Punjab v. Gurmit Singh
and Ors. (1996) 2 SCC 384.
18. Second attack of learned counsel is about age of the
victim. It is emerging that, PW11 Maroti, Head Master has been
examined, who placed on record extract of school register, quoting
her date of birth as 04.05.1988. Mere failure to bring original
register in the court will itself not be sufficient to doubt the age.
School record has gained primacy in terms of documentary
-14- Cri.Appeal.769.2004
evidence as regards to age is concerned. Once victim stood
steadfast about being raped, her such sole testimony can be relied
and made basis of conviction.
19. Considering the testimony of victim, finding support
from her brother and prompt lodgment of FIR, case of prosecution
deserves to be accepted. No good ground is made out in appeal to
interfere.
20. Original complainant has preferred criminal revision
praying for enhancement of sentence awarded by learned trial
Judge. After considering the above discussed evidence, no fault
can be found in the findings recorded by learned trial Judge as
regards to quantum of sentence is concerned. Consequently,
revision has no substance and is devoid of merits. Hence, following
order is passed.
ORDER
(i) The criminal appeal is dismissed.
(ii) Criminal revision application filed by complainant is
dismissed.
(ABHAY S. WAGHWASE, J.)
-15- Cri.Appeal.769.2004
21. On pronouncement of this judgment, learned counsel
for the appellant prays for six weeks time to surrender so as to
enable him to approach the Hon'ble Apex Court.
22. Learned APP as well as learned counsel for complainant
strongly opposes the same.
23. Considering the above request made by learned counsel
for the appellant, six weeks time is granted for the appellant to
surrender.
(ABHAY S. WAGHWASE, J.)
Tandale
