Bombay High Court
Navnath Chandrakant Rithe vs The State Of Maharashtra And Anr on 9 September, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:36518
Gokhale 1 of 14 1-apeal-1295-23 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1295 OF 2023
Navnath Chandrakant Rithe ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
INTERIM APPLICATION NO. 1837 OF 2023
IN
CRIMINAL APPEAL NO. 1295 OF 2023
__________
Mr. Shailesh A. Chavan (appointed Advocate) for Appellant.
Ms. Ranjana D. Humane, APP for State/Respondent.
Mr. Ashley Cusher (appointed Advocate) for Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 9 SEPTEMBER 2024
ORAL JUDGMENT :
1. The Appellant has challenged the Judgment and order
dated 31.03.2017 passed by the Additional Sessions Judge, Pune,
in Sessions Case No.380 of 2015. The Appellant was convicted for
commission of offences punishable under section 376 of the I.P.C.
and under section 4 of the Protection of Children from Sexual
Offences Act (hereinafter referred to as 'POCSO Act'). He was
sentenced to suffer R.I. for 10 years and to pay a fine of Rs.5000/-
and in default to suffer further R.I. for six months for commission
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2024.09.11
14:35:56
+0530
2 of 14 1-apeal-1295-23 (J)
of offence punishable U/s.376 of the I.P.C. In view of this sentence,
no separate sentence U/s.4 of the POCSO Act was imposed. The
appellant was acquitted from the charges of offences punishable
U/s.506(2) of the I.P.C. and U/s.6 of the POCSO Act. The
Appellant was granted set off U/s.428 of the Cr.p.c. Out of the fine
amount, Rs.3000/- was directed to be paid to the victim.
2. Heard Mr. Shailesh Chavan, learned counsel for the
Appellant, Ms. Ranjana Humane, learned APP for the State and Mr.
Ashley Cusher for Respondent No.2.
3. The prosecution case is that the victim's date of birth
was 27.10.2002. The incident had occurred on 26.07.2015. Thus,
at that time, she was 14 years and 3 months old. The Appellant
was husband of the victim's maternal cousin. On the day of the
incident, he came to the victim's house and offered to take her for
lunch. He took her first to his house and then told her that a goat
was slaughtered in the forest from where he could get some
portion of mutton. On that pretext, he took the victim to the forest
at a secluded place and committed rape on her. He assaulted her
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and threatened her. After that, he dropped her at some distance.
From there, one of her neighbours 'M' took her home on his
motorcycle. The victim narrated the incident to her family
members and then lodged her F.I.R. at Lonikalbhor police station
vide the C.R.No.271 of 2015 at 5:05p.m. The victim was sent for
medical examination. Her clothes were seized. The appellant was
arrested on 18.08.2015. His clothes were seized. The articles were
sent for the C.A. examination. The spot panchanama was conducted.
The statements of the witnesses were recorded and the charge-
sheet was filed. The Appellant faced the trial, as mentioned earlier.
4. During the trial, the prosecution examined five witnesses
including the victim, her mother, a pancha, the Medical Officer and
the Investigating officer. The defence of the appellant was of total
denial. The learned Judge, after considering the evidence on
record and the defence taken by the Appellant, convicted and
sentenced the Appellant, as mentioned earlier.
5. The victim was examined as PW-1. She has deposed that,
her date of birth was 27.10.2002. Her birth certificate was
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produced on record at Exhibit-38. There is no challenge to that
birth certificate, therefore, it is proved that the victim was 13 years
and 5 months old on the date of the incident. She has deposed
that, she was studying in the 8 th standard. She knew the appellant.
He was her cousin's husband. At the time of the incident, he was
residing nearby, in another vasti, from the house of the victim. On
26.07.2015, at about 12:30p.m. the victim and her mother were in
their house. The appellant came to their house on his motorcycle
and asked PW-1 to accompany him for lunch. First, he took her to
his house. At around 2:00p.m. to 2:30p.m. the appellant told her
that a goat was slaughtered in the forest and they could bring the
meat from there. Saying this, the Appellant took her towards the
forest on his motorcycle. He took her to a secluded spot and
committed rape on her. He pressed her mouth and slapped her. He
threatened her and told her not to disclose it to anyone. After that,
the appellant dropped her on the road of Kolpewasti. One boy 'M'
met her on the road. She narrated the incident to him. He brought
her near her house on his motorcycle. After reaching home, she
narrated the incident to her mother. She went to Lonikalbhor
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police station with her parents and lodged her F.I.R. It is produced
on record at Exhibit-16. It substantially corroborates her
deposition. On the same day, she showed the spot of the incident
to the police. The spot panchanama was prepared by the police.
She was sent to Sassoon hospital for medical examination. She
narrated the history to the Doctor. On 27.07.2015 her clothes were
seized by the police. She identified the Appellant before the Court.
In the cross-examination, she submitted that the
appellant's wife was the daughter of the victim's maternal aunt.
After the incident, the victim's father had called her maternal
aunt's husband informing him about the incident. At the time of
lodging of F.I.R., her parents and her landlord had gone to the
police station. She admitted that, she had good relations with 'M'
and that she knew him since her childhood. On 26.07.2015, when
the Appellant took her to his house, at that time, her cousin i.e. the
Appellant's wife was with him. She was given the suggestions that
the Appellant had seen the victim having physical relations with
'M'. There was scuffle between the Appellant, the victim and 'M'
and out of fear that the Appellant might disclose this to others, he
6 of 14 1-apeal-1295-23 (J)
was falsely implicated. PW-1 denied these suggestions. The
defence also put another theory through suggestions to her. She
was suggested that the Appellant was not on good terms with his
wife i.e. the victim's cousin and, therefore, the Appellant was
falsely implicated. This suggestion was also denied by PW-1.
6. PW-2 is the mother of the victim. She has deposed that
on 26.07.2015, the Appellant had come to their house asking the
victim to accompany him for lunch. At about 3:00p.m., 'M'
dropped the victim near her house. The victim was frightened.
PW-2 made enquiry with her. The victim told her about the
incident. Then she went to the police station and lodged the F.I.R.
In the cross-examination, PW-2 denied that the victim
and 'M' were in love relationship. PW-2 did not know whether the
Appellant was not cohabiting with his wife properly and, therefore,
PW-2's relatives had grudge against him.
7. PW-3 ASI Suvarna Hulwan had conducted the
investigation. She had registered the F.I.R. She had conducted the
spot panchanama, recorded the statements of 11 witnesses, seized
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the clothes of the victim and that of the appellant and seized the
appellant's motorcycle. She produced the birth certificate of PW-1
on record at Exhibit-38. The defence had no objection for
exhibiting that certificate.
In the cross-examination, she stated that the victim had
come to the police station at around 4:00p.m. on 26.07.2015.
8. PW-4 Uttam Gujar was a pancha for three panchanamas
i.e. the spot panchanama at Exhibit-26, seizure of the victim's
clothes panchanama at Exhibit-27 and seizure of the appellant's
clothes panchanama dated 18.08.2015 at Exhibit-28.
However, his evidence is not free from doubt as he has
admitted that the victim's father was his tenant and that he had
good relations with the victim's family. He had accompanied the
victim and her parents to the police station. They were also
accompanied by PW-4's wife. Therefore, he is obviously an
interested witness. Nonetheless, his evidence will not make any
difference to the decision of this appeal because, there is nothing
incriminating found in relation to the clothes of the victim and the
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Appellant. The C.A. certificate does not show any incriminating
conclusion. Nothing incriminating was recovered from the spot,
therefore, these corroborative pieces of evidence do not help the
prosecution case in any manner.
9. PW-5 Dr. Sushma Shikha is an important witness. She
was the Medical Officer attached to Sassoon Hospital, Pune. On
26.07.2015, the victim was sent to her for medical examination.
PW-5 deposed that the victim had disclosed the history. The history
repeated by PW-5 in her deposition substantially corroborates the
version given by the victim PW-1 in her deposition. PW-5 found the
injuries on the victim's person, as follows:
i) Linear abrasion over left cheek of size
2cm, regular margin, red scab, fresh in
nature.
ii) Linear abrasion over right cheek of size
4cm, regular margin, red scab, fresh in
nature.
iii) Abrasion over left elbow of size 0.1cm x
0.1cm, regular margin, red scab.
iv) Abrasion over left lip of size 0.5 x 0.5cm,
regular margin, red scab.
9 of 14 1-apeal-1295-23 (J)
Besides this, she found multiple tears of hymen on 2, 3,
6 and 10 O'clock position. There was no injury on the external
genital area. From the medical examination, it was her opinion
that there was evidence of penetrative vaginal sexual intercourse
associated with use of force in the form of physical assault. The
injuries were possible by scratching or by slapping.
In the cross-examination, she deposed that the result of
the incident would differ from person to person. In the case of first
intercourse, the hymen would be lacerated having one or more
radiate tears having red and swollen edges which could bleed on
touching. However, no specific questions were put to PW-5 in
respect of the medical examination of the victim, in this particular
case, on these aspects. These were only general questions and
general answers given by PW-5 in the cross-examination. However,
on one aspect, PW-5 did answer that, in this case, she found
radiate tears, though, she did not find any bleeding on touching.
There was no external injury on the back or buttock of the victim.
10. The medical certificate and the report are produced on
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record at Exhibit-32. The opinion of PW-5 is written on that report
as follows:
"From history and clinical examination, there is
evidence of penetrative vaginal sexual intercourse
associated with the use of force in the form of
physical assault is present."
This, in short, is the evidence led by the prosecution.
11. Learned counsel for the Appellant submitted that the
prosecution has not proved its case beyond the reasonable doubt.
There was no injury on the back or on the buttocks of the victim.
This is the circumstance in favour of the appellant, as it contradicts
the victim's version. The neighbours were not examined and, in
particular, 'M' was not examined. He was an important witness
because he had brought the victim to her house after having found
her on the road in a helpless condition. The C.A. report does not
support the prosecution case.
12. Learned counsel for the Respondent No.2, as well as, the
learned APP on the other hand submitted that the victim's
evidence is corroborated by the medical evidence. The opinion
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expressed by PW-5 is clear. The victim was immediately sent for
medical examination. The age of the victim is not disputed as the
birth certificate is not disputed by the defence. They submitted
that, in view of the clear evidence given by the victim, non
examination of 'M' or any other witness will not matter. In any
case, the other neighbours had no knowledge about the incident.
13. I have considered these submissions. As rightly
submitted by the learned counsel for the Respondent No.2 and the
learned APP, the medical evidence in this case strongly
corroborates the victim's case. The medical opinion given by PW-5
on that very day in writing mentions that "From history and
clinical examination, there is evidence of penetrative vaginal
sexual intercourse associated with the use of force in the form of
physical assault is present." Thus, the allegations are corroborated
by the clinical examination of her private parts, as well as, injuries
suffered by her on her cheeks and elbow. They are corroborating
the deposition given by the victim in this case.
14. It is important to note that, there is absolutely no delay
12 of 14 1-apeal-1295-23 (J)
in approaching the police and lodging the F.I.R. The incident had
occurred at around 2:30p.m. to 3:00p.m. and the F.I.R. was
immediately lodged at 5:00p.m. There was no scope to deliberate
and concoct a false story to implicate the Appellant falsely. The
accused has taken two separate defences. One suggestion was
given that the victim was having physical relations with 'M' and
when the Appellant saw it, he was falsely implicated. This defence
is not probable. The Appellant has not led any evidence to show
that PW-1 was having any relations with 'M'. In any case, if he had
seen them together, he could have told this fact to her parents. But
his conduct shows that the victim was left on the road and she was
brought home by 'M'. The Appellant had not even approached PW-
1's parents to tell them about the incident.
15. The other defence was that the victim's cousin was not
on good terms with the Appellant and, therefore, he was falsely
implicated. Again, for this version, there is nothing on record to
suggest that the appellant was having any dispute with his wife
and that the victim's family would go to this extent to implicate
him falsely.
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16. The prosecution, independent of the defence taken by
the appellant, has proved its case beyond reasonable doubt on the
evidence of the victim herself and that of the medical officer. In
addition, PW-2's evidence also corroborates PW-1's evidence. PW-2
has narrated that the appellant had come to their house at around
12:30p.m. to take the victim for lunch. Thereafter, the victim had
returned home at around 3:00p.m. She was dropped near the
house by 'M'. After that, the victim had narrated the incident to the
family members and they had immediately gone to the police
station to lodge the F.I.R.
17. The Appellant's clothes were seized on 18.08.2015.
Thus, there was some delay in arresting him and effecting seizure
of his clothes. The victim's clothes were seized on the next day. The
C.A. report is produced on record at Exhibit-19. There is a
reference that vaginal swab sent to D.N.A. division for medical
examination. However, no such report is produced on record. The
C.A. report regarding the victim's clothes and the Appellant's
clothes is produced on record at Exhibit-11. Neither blood nor
semen was detected on their clothes. However, the undergarments
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of the appellant and the victim were not seized and sent for C.A.
examination.
18. The prosecution is relying on the ocular evidence of the
victim, the corroboration offered by her mother and more
importantly, the medical evidence. On the basis of these pieces of
evidence, the prosecution is successful in proving its case against
the appellant beyond reasonable doubt. The learned Judge,
therefore, has rightly convicted and sentenced the Appellant. I do
not see any reason to interfere with the impugned Judgment and
order.
19. With the result, the Appeal is dismissed. With disposal of
the Appeal, the interim application is also disposed of.
(SARANG V. KOTWAL, J.)
