Bombay High Court
Shivaji Sakharam Madhe vs The State Of Maharashtra on 19 September, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:21967-DB
Cri.Appeal No.432/2022
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.432 OF 2022
Shivaji Sakharam Madhe,
Age 27 years, Occu. Nil,
R/o Chichondi Thakarwadi,
Taluka Akole, District Ahmednagar
At present residing at Bhorghoda,
Taluka Akole, District Ahmednagar ... APPELLANT
VERSUS
1. The State of Maharashtra
through Akola Police Station,
Taluka Akola, Dist. Ahmednagar
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad)
2. X Y Z (Victim) ... RESPONDENTS
.......
Mr. Chetan T. Jadhav, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent No.1 - State
Mr. S.K. Shinde, Advocate for respondent No.2
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 26th August, 2024.
Date of pronouncing judgment : 19th September, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
The challenge in this appeal is to a judgment and
order of conviction and consequential sentence dated
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19/7/2016, passed by the Court of Additional Sessions Judge,
Sangamner in Sessions Case, No.3/2015. The relevant part of
the operative order impugned herein reads as follows :-
"The accused Shivaji Sakharam Madhe is hereby
convicted u/s. 235(2) of Criminal Procedure Code
for the offence punishable under Section 5(m) of
Protection of Children from Sexual Offences Act,
2012 punishable under Section 6 of the Act and
sentenced to suffer imprisonment for life and to pay
a fine of Rs.10,000/- (Rupees Ten Thousand only).
In default to undergo rigorous imprisonment for six
months. Out of said fine amount Rs.8,000/- (Rupees
eight thousand only) be given to victim, after appeal
period is over and inquiry be made u/s.357(a) of
Cr.P.C. to grant the compensation to the victim.
In view of the above sentence no separate sentence
is awarded for the offences u/s. 4 of Protection of
Children from Sexual Offences Act, 2012 and
Section 363 and 376 of Indian Penal Code, though
he is convicted for the same.
2. Facts giving rise to the present appeal are as
follows :-
P.W.1 "V" would reside along with her husband and
two children at a village in Taluka Akola, District Ahmednagar.
The house of her parents was in the close neighbourhood of
her residence. The victim "S" was a younger sister of P.W.1.
She was 4th Standard student at the relevant time and was
about to complete 10 years of age.
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3. On 7/11/2014, little past 9.00 p.m., the victim went
to answer nature's call in an open field behind her residence.
The appellant came from behind. Lifted her and took her on
the bank of the river (other end of the field). He removed her
legging and underwear as well. He also removed his pant and
underpant. He made the victim lay. He then forced himself on
her person and committed sexual intercourse. The victim
raised shouts. The appellant thereupon fled away. The victim
returned to her house crying. P.W.1 and the father of the
victim took her into confidence. The victim related them what
the appellant did with her. A search for the appellant was
made. He was found at one place. It appears that, he was
thrashed. The father of the victim then related the matter to
Patilba Savant (P.W.6), Ex-Sarpanch of the village, who
advised them to report the matter to the police. The victim, her
father and P.W.1, therefore, went to the Police Station. P.W.1
lodged the First Information Report (F.I.R.- Exh.20) there.
Statement of the victim was also recorded. The victim was
medically screened. The appellant was arrested. Crime scene
panchanama (Exh.22) was drawn. Statements of the persons
acquainted with the facts and circumstances of the case were
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recorded. A charge sheet was filed against the appellant on
completion of the investigation.
4. The Trial Court framed the charge. The appellant
pleaded not guilty. His defence was of false implication in view
of dispute between the two families. The appellant was
residing at the house of his grandparents. He was just 20
years of age at the material time.
5. To bring home the charge, prosecution examined
13 witnesses and adduced in evidence certain documents. On
appreciation of the evidence in the case, the Trial Court
convicted and consequently sentenced the appellant as stated
above.
6. Heard. Learned Advocate for the appellant would
submit that, the F.I.R. was lodged 24 hours after the incident.
The C.A. reports do not further the prosecution case. he
adverted our attention to the victim's statement recorded under
Section 164 of the Cr.P.C., wherein she did not name the
appellant as the culprit. He would further submit that, the
medical screening report of the victim also does not further the
prosecution case because the Medical Officer did not give firm
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opinion in so many words. He reserved his opinion pending
F.S.L. report. According to the learned Advocate, swelling and
redness on private part of a girl may occur for very many
reasons. He ultimately urged for allowing the appeal.
7. The learned A.P.P. and learned Advocate for the
respondent No.2 - victim would, on the other hand, submit
that, the victim was about 10 years of age. She had no reason
to falsely implicate the appellant. The incident took place by
9.30 p.m. It was a remote village. It is but natural for the
family members first to approach the family members of a
culprit, think over twice before lodging of the F.I.R. taking into
consideration the nature of offence. The fact that P.W.1 and
her father immediately approached the Ex-Sarpanch of the
village reinforces the prosecution case. Some suggestions
were put to the prosecution witness indicating the prosecution
case to have been reinforced. The medical screening report
undoubtedly indicate it to be a case of sexual intercourse. The
learned A.P.P. and learned Advocate for respondent No.2 -
victim, therefore, urged for dismissal of the appeal.
8. Considered the submissions advanced. Perused
the evidence on record. Also perused the judgment impugned
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herein. Let us advert to the evidence on record and appreciate
the same.
The incident took place in a remote village by little
past 9.30 p.m. on 7/11/2014. P.W.1 was the elder sister of the
victim. She was married and blessed with two children. Her
residence and the residence of her parents abut each other.
The victim was her 10 year old sister. The evidence of P.W.1
is to the effect that she was engaged in cooking. By 10.00 in
the evening, she heard cries of her sister (victim). She,
therefore, came out of the house. Her father too came out of
his residence. Both of them took the victim into confidence.
The victim related them that she had been to the open field
back side of her residence for answering nature's call.
Appellant took her to the other end of the field. A river runs by
that side. The appellant lay her down, removed her legging
and underwear. The appellant too removed his pant. The
appellant forced himself on her person and committed sexual
intercourse. It is further in her evidence that, then they
approached P.W.6 Savant - Ex-Sarpanch of the village , who
advised them to lodge the report with police. The family
members thought over the matter and then she lodged the
report with the police on the following day. The F.I.R. is at
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Exh.20. P.W.8 Mahamad Rafik was the Police Station Officer
at the relevant time, who recorded the F.I.R. lodged by P.W.1.
9. During cross-examination of P.W.1, it was
suggested to her that her father was at his residence at the
relevant time. It was further suggested to her that the victim
related her about the incident. Both these suggestions go a
long way to infer the incident to have taken place as stated by
the victim in her evidence, to which we will refer a little later.
P.W.1 was confronted with her F.I.R. to bring on record certain
omissions therein. She testified to have informed the police
that they took the victim into confidence. The family members
usually go to sleep by 9.30 p.m. There was no electricity
facility in their area. She admitted to have not remembered
what she had related to the police as the contents of the F.I.R.
10. P.W.1 was referred to her F.I.R. (Exh.20). She
testified the same to have been lodged by her. As such, her
evidence before the Court gets corroborated by the F.I.R.
True, P.W.1 is not an eye witness to the incident. The fact is,
however, that the victim immediately related her what the
appellant did with her would be admissible in evidence as a res
gestae under Section 6 of the Evidence Act.
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11. P.W.2 Shantaram is a witness to the crime scene
panchanama (Exh.22). It was drawn on pointing out by the
P.W.1 and not by the victim. The same, therefore, loses its
efficacy. Then he is a witness to the panchanama (Exh.23)
whereunder the P.W.1 delivered the clothes of the victim which
were on the person of victim at the relevant time. The police
seized those clothes under panchanama. The clothes were
greenish colour top, sky-blue colour Salwar and a knicker.
P.W.10 Dilip was the investigating officer who had drawn the
crime scene panchanama (Exh.23) and seized the clothes of
both, the appellant and the victim.
12. P.W.3 is a witness to the panchanama (Exh.25)
whereunder police seized the clothes of the appellant delivered
to the police by his father. There is nothing to indicate that the
very clothes were on the person of the appellant at the relevant
time. The clothes were - a black-white colour full shirt,
underpant and a full pant as well.
13. Then comes the evidence of the victim. She
testified that, on the given day i.e. on 7/11/2014, it was about
9.00 p.m. She had gone to attend nature's call, to the back
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side of her Vasti. While she was returning back to her
residence, the appellant came from behind. He covered her
mouth with his hand. Asked her to keep silent. He lifted her
and took to the nearby sugarcane field on the bank of river. He
made her lay. He then forced himself on her person and
committed sexual intercourse. It is further in her evidence that
she shouted a loud. The appellant thereafter ran away. She
returned home crying. On hearing the same, her elder sister
(P.W.1) and her father came out of the house. They took her in
the house. She related them what the appellant did with her.
Her father, therefore, took search for the appellant. The
appellant was found at one place. Her father assaulted him.
Then they went to the Police Station. Her elder sister lodged
the report. Her statement was also recorded. She underwent
medical screening.
14. During her cross-examination, it has been brought
on record that, both, the appellant and the victim belonged to
Thakar community. She denied there was quarrel between her
family and the grandfather of the appellant before the incident.
She also denied a dispute to have taken place while the
search for the appellant was made. She was confronted with
her statement to the police which was silent to state that the
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appellant laid her on the ground, removed her pant and
knicker. He too removed his clothes and did sexual
intercourse with her. Her statement, however, records the
appellant to have committed, "Jabri Sambhog" (Marathi term).
According to her, this word was related to the police by her
elder sister (P.W.1). She admitted that there was no electricity.
She was further suggested that, after the incident, the
appellant was beaten up. Thereafter quarrel took place
between the appellant's grandfather and her family members.
This suggestion also goes a long way to infer the incident to
have taken place. She denied to have given evidence on the
say of her elder sister (P.W.1). She was further suggested
that, her father related the incident to P.W.6 Patilba Savant,
Ex-Sarpanch of the village. He (Patilba Savant) was examined
as a witness to testify to have been informed by the father of
the victim. As such, a suggestion further goes a long way the
appellant to have admitted what he did with the victim was
informed by the victim's father to the Ex-Sarpanch of the
village P.W.6 Savant. She, however, denied that the
Sarpanch of the village in turn informed the police about the
incident the same day.
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15. Learned Advocate for the appellant took is through
the victim's statement recorded under Section 164 of the
Cr.P.C., wherein no name of the appellant has been recorded
as culprit.
Admittedly, victim was not confronted with her this
previous statement. Needless to state, statement under
Section 164 of the Cr.P.C. is not substantive piece of evidence.
It can only be used for contradicting the maker thereof or for
corroboration. Admittedly, prosecution did not refer the
statement of the victim in her examination-in-chief for
corroboration. We, therefore, cannot look into it.
16. P.W.5 Sanjay was Head Master of Zilla Parishad
School. he produced in evidence the victim's School Leaving
Certificate and Bonafide Certificate indicating her date of birth
as 1/6/2005. Only one question was put to him in his cross-
examination suggesting him that except the affidavit of the
victim's father no document was supplied to the school in proof
of date of birth of the victim. In view of the same, the evidence
of this witness coupled with the evidence of P.W.1 proves the
case of the victim to have been around 10 years of age at the
relevant time.
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17. P.W.6 Patilba Savant was the Ex-Sarpanch of the
village. His evidence indicates that, P.W.1 and the father of the
victim had been to him on 8 November i.e. on the following day
of the incident and reported him what the appellant did with the
victim. He advised to lodge the report with the police.
As already observed above, the factum of relating
the incident to this witness has been impliedly admitted by the
appellant while suggestions to that effect were given to the
concerned witnesses referred to hereinabove.
18. The evidence of P.W.7 is of little consequence
since the investigating officer had got drawn from him a sketch
of the crime scene.
19. P.W.9 Vijay had carried the muddemal articles to
Forensic Science Laboratory, Nasik. Those articles were the
clothes of both, the victim and the appellant. Along with those
articles, he had carried the articles given by the Medical
Officer. The Forensic Science Laboratory, at the first instance,
did not accept those articles since the container did not bear
seal of Rural Hospital, Akole. He, therefore, came back with
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that parcel. After having done the needful, he again carried it
and delivered to the Forensic Science Laboratory, Nasik.
20. He was only cross-examined to the extent that his
statement was silent to record that the Medical Officer had
removed the irregularity.
21. Now the material evidence is that of P.W.11 Dr.
Jayashri. Her evidence indicates that, she medically screened
the victim by 11.00 p.m. on 8/11/2014. On examination of the
genitals of the victim, she noticed white discharge on her
posterior aspect of vagina on posterior aspect of vagina on
per-speculum examination. Mild swelling was present over
folds of labia minora. Redness was also noted on clitoris and
vagina. On the basis of her examination, she found the victim
was subjected to sexual assault. As per her examination,
there was rape upon the victim.
22. The medical examination report finds place at
Exh.46. While the case papers are at Exh.45.
During her cross-examination, she admitted to
have not examined clothes of the victim. She offered
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explanation thereto that it was reported that the victim had
changed the clothes. She admitted that the gait of the victim
was normal, according to her, it was not necessary that in case
of forcible rape, there was red blood on vagina. According to
her, as there was no proper facility at Rural Hospital for
examination of vagina secretion by swabbing it, she did not
obtain the same. She admitted that, such examination is one
of the signs to corroborate the rape. She also admitted that, in
case of rape, spermatozoa might be present or oozing. She
went on to admit that, injuries noticed by her at the private part
of the victim of the victim may be a case of sexual assault.
She denied to have not report/ mentioned in her report that
there was sexual intercourse with the victim.
23. The aforesaid was the evidence in the case. It is a
remote village whereat both, the victim and the appellant would
reside. The victim returned her house weeping/ crying. Her
elder sister (P.W.1) and her father took her into confidence.
She related them what the appellant did with her. This
disclosure made by the victim to these two witnesses was
within a few minutes or soon after the incident took place. The
same would, therefore, be admissible as res gestae under
Section 6 of the Evidence Act. As already referred to above,
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the defence Advocate had put some suggestion indicating the
incident to have taken place and even admitting the same. At
the cost of repetition, it is reiterated that, it was suggested to
the victim that the appellant was, therefore, caught hold of and
thrashed by her father. Thereafter a quarrel took place
between her father and the grandfather of the appellant. It was
also suggested that the elder sister of the victim and her father
had immediately approached the Ex-Sarpanch of the village
P.W.6 Savant. His (Savant) evidence reinforce the said fact.
He advised them to approach the Police Station. It is,
therefore, but natural and particularly considering the nature of
offence that the family members will think twice before lodging
the F.I.R. Within 24 hours the F.I.R. was lodged by P.W.1. A
statement of the victim was recorded immediately thereafter.
True, the word "Jabri Sambhog" was recorded in the victim's
statement. The same was stated by P.W.1 and not by the
victim. The said fact, however, would in no way lead us to
disbelieve the entire prosecution case. The victim's evidence
corroborated by the evidence of her elder sister, father and Ex-
Sarpanch of the village gets materially reinforced by her
medical examination report. Column VI of the medical
examination report records thus :
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a) Pubic hairs : Present, nonmatted with semen or blood
b) Labia Majora : Redness present
c) Labia Minora : Swelling over folds of labia minora noted.
d) Clitoris : Redness noted
e) Fourchette & Introitus/ Vagina : Redness noted
...........
i) PS examination : White discharge noted on posterior
aspect of vagina.
24. The Medical Officer gave her provisional opinion
that her overall findings were consistent with sexual
intercourse. True, final opinion was kept pending till receipt of
FSL report. It is also true that the FSL report indicate that no
semen was detected on urethral or vaginal swab. In our view,
the same would be of little consequence.
25. It is reiterated that, the victim related the incident to
her elder sister and father immediately, who, in turn, made a
search for the appellant. The appellant was found. The
victim's father beaten him up. A quarrel, therefore, ensued
between him and the appellant's grandfather. The victim's
elder sister and father immediately approached P.W.6 Savant -
Ex-Sarpanch of the village. On his advice, F.I.R. was lodged
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within 24 hours of the incident. The victim was medically
screened immediately. The medical examination report
indicate that the findings were consistent with sexual
intercourse. It is not in dispute that the victim was about to
complete the age of 10 years. As such, it's a case of offence
to have been duly proved against the appellant. We find the
Trial Court to have not erred in convicting the appellant
therefor.
26. At the relevant time the appellant was just 20 years
of age. During the relevant period, the offence punishable
under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 was thus :
"6. Punishment for aggravated penetrative
sexual assault:- Whoever, commits aggravated
penetrative sexual assault, shall be punished with
rigorous imprisonment for a term which shall not
be less than ten years but which may extend to
imprisonment for life and shall also be liable to
fine."
27. The same indicates that the minimum sentence for
the offence was not less than 10 years imprisonment.
Considering the age of the appellant and the fact that he would
be completing ten years imprisonment within a few months, we
propose to reduce the quantum of sentence from life
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imprisonment to a period of rigorous imprisonment for ten
years. In case of Bavo Alias Manubhai Ambalal Thakore
Vs. State of Gujarat [AIR 2012 SC 979], the Apex Court, in
para 11 of its judgment, observed thus :-
"11. Considering the fact that the victim, in the
case on hand, was aged about 7 years on the date
of the incident and the accused was in the age of
18/19 years and also of the fact that the incident
occurred nearly 10 years ago, the award of life
imprisonment which is maximum prescribed is
not warranted and also in view of the mandate of
Section 376(2)(f) IPC, we feel that the ends of
justice would be met by imposing RI for 10 years.
Learned counsel appearing for the appellant
informed this Court that the appellant had already
severed nearly 10 years."
28. Since there is nothing to indicate the appellant was
gainfully employed, and considering his age, the amount of
fine imposed by the Trial Court appears to be excessive. We
reduce the same to Rs.1000/- and in default of payment
thereof, he shall undergo rigorous imprisonment for one
month. With the aforesaid conclusion the appeal stands
disposed of in terms of following order :
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) Conviction of the appellant for offence punishable under
Section 6 of the Protection of Children from Sexual Offences
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Act, 2012, recorded by learned Additional Sessions Judge,
Sangamner in Sessions Case No.3/2015, vide order dated
19/7/2016 is maintained. However, the sentence of life
imprisonment with fine of Rs.10,000/- (Rupees ten thousand)
and in default of payment of fine, rigorous imprisonment for six
months is modified and the appellant is sentenced to suffer
rigorous imprisonment for ten years and to pay a fine of
Rs.1000/- (Rupees One thousand). In default of payment
thereof, he shall undergo rigorous imprisonment for one
month.
(iii) The clause directing the payment of Rs.8000/- from the
amount of fine, if recovered, to the victim is, therefore,
withdrawn.
(iv) The appellant is entitled for the benefit of set-off under
Section 428 of the Cr.P.C.
(v) Rest of the part of clause (1) of the operative order of the
impugned judgment to stand unaltered.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
