Bombay High Court

Shyam Jivan Medhkar vs The State Of Maharashtra on 20 June, 2025

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2025:BHC-AS:25851-DB


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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO.309 OF 2022

            Shyam Jivan Medhkar                                    .....Appellant
                         Versus
            The State of Maharashtra                               .....Respondent
                                                 .....
                                                WITH
                           INTERIM APPLICATION NO.1484 OF 2025
                                                  IN
                              CRIMINAL APPEAL NO.309 OF 2022
                                                 -----
            Mr. Pramod G. Kathane, Advocate for the Appellant.
            Ms. Kranti T. Hiwrale, APP for the Respondent-State.
                                                 -----

                                                CORAM : SARANG V. KOTWAL &
                                                        SHYAM C. CHANDAK, JJ.

                                                DATE   : 20th JUNE, 2025


            ORAL JUDGMENT : [PER SARANG V. KOTWAL, J.]

1. The Appellant has preferred this Appeal challenging the

judgment and order dated 7.7.2017 passed by the Additional

Sessions Judge, Kalyan in Sessions Case No.193/2013. The

Appellant was convicted for commission of the offence punishable

under Section 376 read with Sections 511, 354, 504, 506 of IPC.

This order was in the first clause of the operative part. In the

second clause, it was recorded that the Appellant was convicted for

the offence punishable under Section 376 read with 511 of IPC and 1 of 15

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he was sentenced to suffer life imprisonment and to pay a fine of

Rs.5,000/- and in default to suffer S.I. for six months. The

Appellant was also convicted for commission of the offence

punishable under Section 354 of IPC and was sentenced to suffer

S.I. for three years and to pay a fine of Rs.5,000/- and in default to

suffer S.I. for three months. The Appellant was further convicted

for commission of the offence punishable under Section 504 of IPC

and was sentenced to suffer SI for one year and to pay a fine of

Rs.1,000/- and in default to suffer S.I. for one month. He was also

convicted for the offence punishable under Section 506 of IPC and

was sentenced to suffer S.I. for one year and to pay a fine of

Rs.1,000/- and in default to suffer S.I. for one month. All the

sentences were directed to run concurrently. Set off under section

428 of Cr.P.C. was granted to him.

2. Heard Mr. Pramod Kathane, learned counsel for the

Appellant and Ms. Kranti Hiwrale, learned APP for the Respondent-

State.

3. Though the Appellant was specifically convicted under

Section 376 read with Section 511 of IPC., the charges were framed

under different headings. The first heading was under Section 376 2 of 15

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read with Section 511 of IPC; and the last heading was under

Section 376 of IPC only. Thus two separate charges, (i) attempt to

commit rape and (ii) the specific charge of actual commission of

rape, were framed. The operative part of the judgment and order

mentions Section 376 read with Section 511 of IPC. However, in

the previous discussion; and in particular in paragraph No.30, the

learned Judge had clearly observed that the accused had

committed rape. Therefore, it is obvious that the judgment is not

clearly worded; but if the entire judgment is read; it is more than

clear that the learned Judge has convicted the Appellant for

commission of the offence of rape i.e. the offence punishable under

Section 376 of IPC.

4. The incident is dated 27.9.2012. The victim in this case

is the Appellant's own daughter. She was six years of age at that

time. The prosecution case is that when she came home, the

Appellant, who was addicted to liquor, sent his son outside the

house. He then removed his clothes. He removed clothes of his

daughter and committed rape on her. In the meantime, the

Appellant's wife came home. She saw the incident. The Appellant

ran away. The Appellant's wife had not lodged the FIR immediately

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but lodged it after two days. The investigation was carried out.

The Appellant was arrested. The victim was subjected to medical

examination. The investigation was carried out and the charge-

sheet was filed. As mentioned earlier, the charges were framed

under different headings. During the trial, the prosecution

examined seven witnesses, including the victim, her mother, her

aunt, the Medical Officer, a pancha and the investigating officer.

The defence of the Appellant was of total denial. According to him,

because of quarrels with his wife, this false case was filed. The

learned trial Judge considered the evidence and then convicted and

sentenced the Appellant as mentioned earlier.

5. The prosecution case relies on the evidence of the

victim herself. She was examined as PW-2. At the time of

recording of her evidence, after more than four years of the

incident, she was more than ten years of age and, therefore, she

was in a position to understand the questions put to her. She

deposed that she was residing with her two brothers, a sister and

her parents. Her elder sister used to do labour work. One of her

brothers and she herself used to attend the school. The other

brother used to play in the locality. She further deposed that the 4 of 15

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Appellant did not do any job and was addicted to liquor. The

incident took place when she was in the 1 st standard. At the time of

deposition, she was in the 5th standard. It was the days of Ganpati

festival. On the date of incident, she came home. The Appellant

asked her brother to go outside the house. She has further deposed

that her father took off her clothes and then took off his own

clothes and slept on her person. At that time, her mother (PW-1)

came there. The Appellant wore his clothes and ran away. PW-2

was crying. She told her mother what had happened. According to

her, she was having pain in her stomach and, therefore, she was

taken to a hospital near her house. They then went to another

hospital. When they came back, the Police came to their house and

enquired with PW-2 and PW-1. PW-2 narrated the incident to

them. She identified the Appellant before the Court. She did not

remember the exact date of the incident and which dress she was

wearing at that time.

In the cross-examination, she deposed that her paternal

aunt was residing nearby. Her maternal uncle and his wife had

come to their house. She deposed that in those days the Appellant

was addicted to liquor and there used to be continuous quarrels 5 of 15

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between the Appellant and PW-2's mother. She admitted that the

Appellant used to scold PW-2 and her brothers and sister. She

denied the suggestion that she was deposing falsely about the

incident. She denied that she had pain in the stomach because of

the food which she had eaten outside.

6. PW-1 is the mother of the victim and the wife of the

Appellant. She has deposed that there used to be constant disputes

with the Appellant as he used to be under influence of liquor. Her

brothers and relatives were residing in the same locality. The

incident took place on 27.9.2012. On that day, she had gone to

attend her labour work at a site for construction of a road. PW-2

and her brother had gone to school. At about 6.30 p.m., PW-1 had

returned home. She opened the door of the house. She saw that the

Appellant was sleeping on the person of the victim (PW-2). They

did not have clothes on their persons. The Appellant saw her and

ran away. PW-2 was crying. She told her that when they returned

home, the Appellant asked her brother to go out and then removed

their clothes and slept on her. PW-2 started crying but the

Appellant threatened her. At that time, PW-1 had returned home.

In the night, the Appellant returned back. He threatened PW-1 not 6 of 15

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to disclose this incident to anybody. She approached her relatives

and then went to Mharal Outpost. The police advised her to report

to the Kalyan Taluka police station. On 28.9.2012, she went to

Titwala police station, but, they did not take her complaint. Then

she took her daughter PW-2 to the hospital on 29.9.2012 as she

was having pain in the stomach. The doctor enquired about the

incident. The victim was admitted to the hospital. Then PW-1

lodged her complaint at Mharal Outpost. She produced the FIR at

Exhibit-13. The investigation was carried out. She showed the

spot to the police. She produced the clothes of the victim and the

short pant of her husband i.e. the Appellant.

In the cross-examination, she accepted that it was not

mentioned in the report that PW-2 was admitted in the hospital.

She admitted that from the date of the complaint, the relatives

used to accompany her. At that time, even the Appellant's sisters

used to accompany them. During that period, the Appellant was

present in their locality but not in their house. She denied the

suggestion that on 26.9.2012, there was a quarrel with the

Appellant. She could not explain as to why she did not mention

in her FIR that on 29.9.2012, PW-2 was having stomach pain and, 7 of 15

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therefore, they had gone to Mharal Outpost. She denied the

suggestion that because of the enmity with the Appellant, she had

used her daughter and lodged the false complaint.

7. PW-3 Dr. Meenal Pingale had examined the victim on

29.9.2012. She has deposed that there were contusions present at

labia minora. There was tear at 12 O'Clock position on the hymen.

It was her opinion that there was an attempt to make sexual

intercourse with the victim. She produced the medical certificate

at Exhibit-18. According to her, the injuries mentioned in the

certificate could have taken place prior to 48 hours from

29.9.2012.

In the cross-examination, she deposed that the injuries

mentioned in the Medical Certificate were not possible by cycling,

horse riding, jumping or even playing. There was no laceration or

abrasion on the victim. The medical certificate is produced at

Exhibit-18. The age of the girl was mentioned as six years.

8. PW-4 Vilas Shevale was the Headmaster of the Zilla

Parishad School. He produced the birth-certificate showing the

date of birth of the victim as '20.9.2006'. Considering the tender

age of the victim, her age is not really disputed; and in any case it 8 of 15

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is also established that she is below twelve years of age.

9. PW-5 Parshuram Chavan was a pancha for spot

panchnama, which was conducted on 30.9.2012. It is produced on

record at Exhibit-23. Nothing much can be seen from that spot

panchnama. It is the description of the house of the Appellant.

10. PW-6 Anusuya Dhamane was PW-1's sister-in-law. She

does not know the incident by her own knowledge, but, she

deposed that in the evening of the date of incident, PW-1 came to

her house and narrated the incident to her and that she expressed

her desire to lodge the complaint against the Appellant. Beyond

that, her evidence is not very material.

11. PW-7 API Moreshwar Pendam was the investigating

officer. He investigated the crime No.179/2012 registered at Kalyan

Police Station. He deposed about the investigation carried out by

him. He had arrested the Appellant. He had carried out the spot

panchnama. According to him, the investigation revealed that

there was an attempt to commit rape. He collected the bonafide

certificate. He recorded the statements of the victim and her

brothers and sisters.

In the cross-examination, he accepted that the FIR was 9 of 15

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delayed because there was discussion between the first informant

and her relatives; and that she had not explained the delay of two

and half days in lodging the FIR. He accepted that the witnesses

were relatives of the first informant.

12. Learned counsel for the Appellant submitted that the

conviction and sentence is recorded under Section 376 read with

511 of IPC. Therefore, even as per the prosecution case it was a

case of attempt to commit rape and not the actual commission of

the rape. He submitted that there is evidence to show that there

were disputes between the Appellant and his wife and, therefore,

using the daughter, the wife has filed this false case against the

Appellant.

13. Learned counsel submitted that there were no injuries

on the labia minora mentioned in the medical certificate. The

Medical Officer had mentioned that injury in her evidence. He

submitted that the hymen can be ruptured because of many

reasons - that may not point to the only possibility of commission

of rape. He submitted that the incident could not have taken place.

The door was not locked from inside. PW-1 could easily enter the

house. The entire evidence does not inspire confidence. The 10 of 15

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medical certificate mentions that blood was found on her clothes.

That blood was of 'O-Group' and the victim's blood group was also

'O-Group' as can be seen from the C.A. report. But the blood group

on the Appellant's clothes was inconclusive.

14. Learned APP, on the other hand, submitted that there

was no other injury on the person of the victim and, therefore, the

blood found on her clothes was directly related to the offence

committed by the Appellant. She further submitted that there is no

reason to disbelieve the version given by PW-2 considering her

tender age. She has described the incident. In such cases, it is not

expected that the FIR is lodged promptly. Therefore, the delay of

about two days in lodging the FIR does not give any benefit to the

Appellant. She submitted that the medical evidence clearly

supports the case of prosecution and, therefore, though the learned

Judge has wrongly recorded the conviction under Section 376 read

with 511 of IPC, the correct conviction would be under Section 376

of IPC which can be seen from the entire discussion of the

judgment. Therefore, no prejudice is caused to the Appellant.

15. We have considered these submissions. As rightly

submitted by the learned APP, the victim was of tender age of six 11 of 15

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years. Therefore, she has described the incident in the best possible

manner in which she could describe it. Her version of the incident

is supported by the evidence of PW-1, who had entered the house

right at that time. The victim had told that after removing their

clothes, the Appellant had slept on her. There was pain in her

stomach subsequently and the medical evidence shows that there

were injuries to her private parts. There was fresh tear causing

bleeding, which supports the victim's case. Thus, in this case the

ocular evidence is supported by the medical evidence. It is further

supported by the C.A. reports which shows that the blood of the

victim was 'O Group'. Therefore, it is clear that there was fresh

blood on her clothes which was a result of the incident. All these

factors together show that the incident has taken place.

16. The victim has clearly named the present Appellant.

Rest of the evidence may not be of much importance because PW-6

did not have any personal knowledge. The age of the victim is

proved through the bonafide certificate produced by the

Headmaster of the school. There is no reason to dispute that

particular evidence and hardly any cross-examination is conducted

and, therefore, it is not possible to discard that evidence. Rest of 12 of 15

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the evidence is given by the investigating officer which is

procedural in nature. He has conducted the investigation, has

carried out the spot panchnama, had arrested the Appellant and he

had taken all the necessary steps for completing the investigation.

Thus, from the evidence on record it is quite clear that the

Appellant has committed this offence.

17. The question is whether some leniency can be shown to

the Appellant in this particular case. In that context, learned

counsel for the Appellant submitted that the incident had taken

place on 27.9.2012. Since then the Appellant is continuously in

custody. The Appellant had suffered a heart-attack in the year

2019.

18. Learned counsel for the Appellant submitted and

learned APP also accepted that in the year 2012 i.e. on the date of

offence, the minimum sentence provided for the offence of rape on

a child below twelve years of age, was 10 years. In this situation

considering that the Appellant is continuously in custody for

thirteen years and since he has already suffered a heart-attack, we

are inclined to show some leniency to him. The Appellant is in

custody for almost thirteen years now. Therefore, interest of justice 13 of 15

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would be served if the sentence is reduced to the period which is

already undergone by the Appellant.

19. Though the operative part of the impugned judgment

and order shows that the conviction was under Section 376 read

with Section 511 of IPC, as mentioned earlier, the entire discussion

and specific observation of the learned Judge mentions that it was

the offence of commission of rape. Therefore, we treat the offence

as under Section 376 of IPC. No prejudice would be caused to the

Appellant because the charges are also framed separately under

Section 376 of IPC.

20. Hence, the following order :

:: O R D E R ::

i. The Appeal is partly allowed. The judgment and order dated

7.7.2017 passed by the Additional Sessions Judge, Kalyan in

Sessions Case No.193/2013, is modified as under.

ii. The conviction of the Appellant under Section 376 of IPC is

upheld. However, instead of the sentence of life

imprisonment, the sentence is modified and the Appellant is

sentenced to suffer the imprisonment for the period which he

has already undergone from 29.9.2012. The conviction and 14 of 15

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sentence under other Sections are maintained.

iii. All the sentences are directed to run concurrently.

iv. The Appellant is entitled for set-off for the period undergone

as an under-trial prisoner under Section 428 of Cr.P.C.

v. The Appeal is disposed of accordingly. With the disposal of

the Appeal, nothing survives in the Interim Application,