Bombay High Court
Dilip Manohar Shejwal vs State Of Mah on 17 January, 2025
2025:BHC-AUG:1346
{1} CRI APPEAL 843 OF 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 843 OF 2005
Dilip s/o Manohar Shejwal
Age: 25 yrs., Occ. : Agril.,
R/o. Kumbhari, Tq.Kopargaon,
Dist.Ahmednagar. ....Appellant /
Orig. Accused
Versus
The State of Maharashtra ....Respondent
.....
Advocate for Appellant : Mr. Shaikh Majit S.
APP for Respondent : Mr.N.B.Patil
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 16 DECEMBER, 2024
PRONOUNCED ON : 17 JANUARY, 2025
JUDGMENT :
-
1. In this appeal, there is challenge to judgment and order dated
21-07-2004 passed by learned Additional Sessions Judge, Kopargaon
in Sessions Case No.29 of 2002 thereby convicting appellant for
offence under Sections 376 and 341 of the Indian Penal Code (IPC).
PROSECUTION CASE IN BRIEF
2. PW1 father of victim approached Kopargaon Police Station
{2} CRI APPEAL 843 OF 2005
and lodged report that, his victim daughter studied in 5 th standard
and she used to attend school by using bicycle. On 30-03-2002, he
reported that, as usual she left house at 10:00 a.m. to appear for
science examination, but around 01.45 p.m., she returned home
weeping, and on being questioned, she told that one person
obstructed her on the way, took her in nearby forest and committed
rape on her. On her further information about later on seeing PW2
Nitin taking lift from the said person on motorcycle, he visited the
Institution, where PW2 Nitin was taking education and on learning
from him about applicant, he took his victim daughter to the Police
Station and lodged report, on the basis of which PW6 Padwal, who
was posted as Police Officer, investigated crime bearing no.52 of
2002 and after completing investigation, he chargesheeted accused
for offence of wrongful restraint and rape.
On committal, case was tried by learned Additional Sessions
Judge, Kopargaon vide Sessions Case no.29 of 2002. On appreciating
oral and documentary evidence, case of prosecution was held to be
proved and after recording guilt, appellant was held guilty and
sentenced for above offences. Said judgment is now subject matter
of the appeal.
{3} CRI APPEAL 843 OF 2005
SUBMISSIONS
On behalf of appellant :
3. Learned Counsel for the appellant alleged false implication.
He submitted that victim alleged rape by unknown person. That
there was no T.I. parade. That on information of PW2 Nitin,
appellant is involved in the present crime. That informant father
lodged report on hearsay information.
4. Learned Counsel pointed out that, prosecution evidence is not
convincing for several reasons. According to him, here though
medical certificate is placed on record, prosecution did not examine
the concerned Doctor and hence, according to him, allegation of rape
cannot be said to be proved. He pointed out that there were no
injuries on the person of victim and as such theory of prosecution
about forceful rape cannot be accepted. According to him, unless
there is supporting medical evidence, charge of Section 376 of the
IPC cannot be said to be brought home.
5. Learned Counsel also raised the point that alleged occurrence
is of around 01:00 p.m. but report is lodged in the evening i.e. after
05:00 p.m. Thus, there is delayed reporting. Therefore, according to
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learned Counsel, learned trial court ought not to have held charge
proved and further according to him, as there is erroneous
appreciation of evidence, he seeks indulgence by allowing the appeal.
On behalf of State :
6. In answer to above, learned APP supported the impugned
judgment by pointing out that there is prompt reporting of the
incident to informant father. That informant father first went to
school, met PW2 Nitin, who had seen accused with victim near
forest, and thereafter, approached Police on the same day and hence,
according to him, there is no delay as alleged. Further according to
him, delay in cases of such nature is insignificant.
7. Learned APP also took this court through the evidence of
informant father PW1 and victim PW3 and would submit that both
are consistent. That evidence of victim has remained unshaken.
That the core of prosecution case has remained intact inspite of
extensive cross-examination. Learned APP pointed out that there is
independent evidence of PW2 Nitin. He pointed out that there are
medical papers issued by examining Doctor confirming occurrence of
rape. According to learned APP, merely because such Doctor did not
step into witness box, testimony of victim cannot be doubted. Lastly,
{5} CRI APPEAL 843 OF 2005
he submitted that there being convincing, cogent and reliable
evidence, the impugned judgment cannot be faulted at.
EVIDENCE IN TRIAL COURT
8. In support of its case, prosecution has adduced evidence of in
all six witnesses. Sum and substance of their evidence is as under :
PW1 is father of victim. At exh.24, he deposed as under:
"I have three daughters. Victim is my younger daughter. Her
date of birth is 19-08-1991. At the time of incident she was studying
in 5th std. At the time of incident she was taking education in a school
at Kumbhari.
Incident took place on 30-3-2002. At that time final
examination of victim was going on. On 30-3-2002 she left the house
at 10 a.m. On that day she had examination of science subject. At
about 1.45 p.m. she returned to the house at that time she was
weeping. I asked her as to why she was weeping. She told that while
returning to the house after examination, she came near Kumbhari
forest on bicycle. At that time one person restrained her by his
motorcycle. That person shut her mouth and took her in nearby
forest. She further told that, that person took out her nicker, he also
removed his pant and committed rape on her and thereafter that
person ran away from the spot on his motorcycle towards Kumbhari.
She further told that she saw one more person on the motorcycle.
The name of that other person is Khandu alias Nitin Sahebrao Pawar.
Nitin is residing in our village. My daughter further told me that the
colour of motorcycle was black and it was Hero Honda make. Some
other students of her school took victim to our house.
{6} CRI APPEAL 843 OF 2005
2. Immediately after the disclosure by my daughter I went to her
school, to meet Nitin. I asked Nitin on whose motorcycle he came in
the school. He has stated that he came in the school on the
motorcycle of Dilip Manohar Shejwal. Thereafter I went to the Police
Station. I lodged the complaint against the accused. It was recorded
as per my say. I am now shown said complaint. It is same, contents
therein are correct, it bears my signature, it is at exh.25."
PW2 Nitin Sahebrao Pawar is acquaintance of informant. At
exh.26, he deposed as under :
"1. I know complainant and his victim daughter. In the year 2002
I was taking education in Tukaram Baba Vidyalaya, Kumbhari. Victim
was also taking education in the same school. I used to go to school
on my bicycle. At the time of incident final examination was going
on. On the day of incident my paper was from 3 to 6 p.m.
2. The incident is dt. 30-3-2002. On that day I left my house at
about 1 p.m. as my cycle was punctured, I was proceeding on foot.
When I reached near Katwan Forest, I saw accused and Victim
standing by the side of the road. Accused asked me whether I want to
come at Kumbhari. I replied yes. Therefore, accused took me to my
school on his motorcycle. Thereafter he proceeded towards
Dharngaon. It was Hero Hondo motorcycle of black colour.
3. Thereafter father of victim came to the school. He asked me
as to on whose motorcycle I came to the school. I have stated the
name of accused to him. Accused before the court is same. He is
residing at Kumbhari."
PW3 Victim deposed at exh.30 as under :
"We are three sisters, I am the youngest. I was studied in school upto
4th std. at Hingani. When the incident took place I was 11 yrs. Old. I
{7} CRI APPEAL 843 OF 2005
have taken admission in the school at Kumbhari in 5 th std. I used to
go to school on bicycle.
2. At the time of incident my final examinations were going on.
Incident took place on 30-3-2002. On that day it was the examination
of subject science. During 11 a.m. to 2 p.m. After giving paper I was
coming to my house on my bicycle at about 1 p.m. When I reached
near Katwan jungle one boy obstructed my bicycle. He is the accused
before the court. He was on his Hero Honda motorcycle of black
colour. He asked me whether I am blind. He took me from my
bicycle and took me at some distance in Katwan. He fell me down.
He removed his pant and nicker. He also removed my cloths. He
entered his male organ in my vagina. He committed rape on me.
After the act was over he went towards his motorcycle. I also started
going towards road, while I was coming towards road, I saw that one
boy from our village by name Khandu alias Nitin Sahebrao Pawar was
proceeding towards Kumbhari on the motorcycle of that person.
Thereafter I started proceeding towards my house on bicycle. Some
girls of my school meet me on the way. They were three in numbers.
My sister was one of them. We all came to our house. My father was
alone at the house. My sister went to another room for changing the
cloths and other girls went to the shool. I narrated the entire incident
to my father. Thereafter myself and my father started proceeding
towards the police stn. at about 3.30 p.m. My father lodged the
complaint at police station. I was referred to the hospital for
examination. Doctor examined me. I gave history of incident to the
doctor. At that time my father was out of the examination room.
After examination we again came to police station. Thereafter my
statement recorded by police. I handed over my cloths to the police.
It were seized under panchanama. Art. No.1 blouse, No.2 skirt and
Art. no.3 nicker before the court are the same.
3. Again on next day I was called by police for showing the spot
of incident in the morning. Accordingly I have shown the spot of
{8} CRI APPEAL 843 OF 2005
incident. Accused before the court is the same who has committed
rape on me. My date of birth is 19/8/1991.
PW4 Machindra Laxman Chandanshiv is pancha to spot
panchanama exh.32. He deposed as under :
"Daughter of informant had shown the spot of incident. Girl who has
given the evidence in the court today has shown the spot of incident.
The spot of incident is the Forest area."
PW5 Dnyandeo Baburao Fund is pancha to seizure of clothes
of victim. Seizure panchanama is at exh.34. On 1-4-2002, he was
pancha to seizure of clothes of accused. Said seizure panchanama is
at exh.36.
PW6 Rajendra Narhari Padwal (API) is the Investigating
Officer, who has carried out investigation and after gathering
sufficient evidence, he has arrested accused.
ANALYSIS
9. The gist of allegations against appellant are that, PW3 victim, a
minor of around 11 years of age, who was returning from school
after answering her examination, was intercepted, dragged to the
forest and raped.
{9} CRI APPEAL 843 OF 2005
10. Substantive evidence of PW3 victim as well as her father PW1
is already reproduced in above paragraphs. They both are also
extensively cross-examined and on analyzing the same, it is emerging
that, PW3 victim admitted that she was not knowing the accused, she
did not report occurrence to her sister, who arrived shortly near the
scene of occurrence. Even it has come in the cross-examination of
PW1 father informant that inspite of PW3 daughter informing him,
he did not report it to his wife and own brothers and that in his
presence, medical expert, who examined her, did not ask her
anything and he is unable to state whether his daughter had narrated
the incident to the Doctor.
Another crucial witness here is PW2 Nitin and it is this boy,
who has pointed finger to the present appellant for giving him lift
and seeing victim and accused in each other's company on the road
just outside the forest.
11. Therefore, on critical analysis of above material on record, it
does emerge that, though medical expert examined victim,
unfortunately, there is no concrete opinion as to whether sexual
assault has been committed, however, prosecution is coming with a
case that semen stains were detected on the clothes of victim.
{10} CRI APPEAL 843 OF 2005
12. The principal grounds of attack on the prosecution case here
are that firstly, inspite of victim not knowing accused, there is no T.I.
parade, secondly, medical expert who examined victim, is not a
witness before the Court and thirdly, there are no internal or external
injuries on the person of the victim.
13. It is settled legal position that in cases of such nature, medical
evidence is merely looked upon as a corroborative piece of evidence
and nothing beyond it and as such it is not a conclusive evidence and
it is viewed as an opinion evidence. It is fairly settled position that
sole testimony of prosecutrix, if found credible and convincing, is
sufficient to record guilt. Even it is further settled position that, mere
penetration attracts offence of Section 376 of the IPC and there need
not be evidence of rape in the form of injuries or semen. Likewise,
no benefit can be derived by accused on the ground of absence of
injuries.
14. With such legal precedent, here it is emerging that, PW3 victim
testified in the witness box that her way was intercepted by one
person, who then took her near the forest and committed rape on
her. She was a 11 years child at the time of incident. She has also
testified that on coming on the road, she saw PW2 Nitin, who was of
{11} CRI APPEAL 843 OF 2005
her village and known to her, going in the company of said person on
motorcycle. She immediately on reaching home has reported
incident to her father. PW1 father of victim also testified that he
immediately went to the Institution and approached PW2 Nitin and
asked him as to on whose motorcycle he reached the Institution and
PW2 Nitin named present appellant. Both these witnesses PW1
informant father and PW2 Nitin are cross-examined, but the core of
their substantive evidence has not been rendered doubtful.
Suggestion about affair with PW2 Nitin is only given to victim, but
similar suggestion is not put to PW2 Nitin himself in support of
defence of false implication. After knowing about culprit, PW1
informant father straightway took the victim girl to the Police Station
and on the same day evening, report has been lodged and appellant
is also apprehended on the same day.
15. It does emerge that though there are papers of medical
examination, unfortunately it is not understood as to why said
medical expert is not made to step in the witness box. Doctor seems
to have issued medical papers on a plain paper and has not issued
final opinion, but again law is fairly settled that absence of medical
evidence is of no avail to the accused when story of victim is credible.
{12} CRI APPEAL 843 OF 2005
If the testimony of victim inspires confidence and does not create
doubt in the mind of Court about false implication, then the Court
can definitely rely and act on sole testimony of prosecutrix.
Here on complete re-appreciation of PW3 victim's evidence, it
emerges that after the occurrence, she has spotted accused going in
the company of PW2 Nitin and after she reported about it to her
father PW1, he too has without losing time, confronted PW2 Nitin
and has learnt about accused. PW2 Nitin, in clear terms, has testified
that, when he was walking towards the Institution, he saw victim girl
and accused in each others company. PW3 Victim has identified
accused in the Court to be the said person. Resultantly, submission of
no T.I. parade loses its significance. Infact, contrary to the
submission that there was delay, report is lodged in the same
evening. It is a rural part. PW3 victim first went home, then
informed her father and he initially visited Institution to get fact
reported to him verified and thereafter, has approached Police. Some
time is thus spent, but again in cases of such nature, delay is
inconsequential.
Resultantly, on the strength of evidence of PW3 victim, her
father PW1, and independent witness PW2 Nitin, prosecution does
discharge its burden in establishing the charges. Therefore, appeal
{13} CRI APPEAL 843 OF 2005
deserves to be dismissed. Accordingly, I proceed to pass following
order :
ORDER
Criminal Appeal No.843 of 2005 is dismissed.
( ABHAY S. WAGHWASE )
JUDGE
SPT
