1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.143 OF 2007. Asaram S/o Rangnath Jadhav, Age 38 years, Occ.Labour, R/o Kesapuri Camp, Tq.Majalgaon, Dist. Beed. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mr.B.N.Palve, advocate for the appellant. Mrs.R.D. Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 28.07.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Majalgaon, in Sessions Case No.34/2006, whereby the appellant has been convicted for offences punishable U/ss 376, 377, 342, 323 and 506 of the 2 I.P.C. and has been sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.1,000/- (Rupees one thousand), in default to undergo rigorous imprisonment for three (3) months on first count, rigorous imprisonment for seven (7) years and to pay fine of Rs.1,000/- (Rupees one thousand), in default to undergo rigorous imprisonment for three (3) months on 2nd count, to undergo rigorous imprisonment for six (6) months on 3rd count, to undergo imprisonment for three (3) months on 4th count and to undergo rigorous imprisonment for six (6) months on the 5th count. The substantive sentences were directed to run concurrently. 2. The hapless victim is a minor girl. Her father is an agricultural labour. Her father was engaged by one Bapurao Gawali to work as a labour in his agricultural field bearing Gat No.11 situated at Kesapuri. The village Kesapuri is situated at a distance of about 4/5 Km. away from township of Majalgaon but is practically part of the township due to development of the town towards that side. The father of the victim, 3 namely, P.W.6 Sk.Mahboob use to reside in a small three rooms farm house alongwith other two servants of his Master. There were two other servants, namely, P.W.4 Laxman and deceased Rangnath. The victim had left Schooling in the midst while she was in 6th standard and had started residing with her father since few days prior to the relevant night. 3. The prosecution case, stated briefly, is that in the night of June 16, 2006, the victim (P.W.1 Mumtaj), her father (P.W. 6 Sk.Maheboob) and other two servants were preparing to go to bed in the farm house. At about 10-30 p.m. three persons came to the agricultural field on a motor-cycle. Those three persons had brought a piglet with them. They demanded some dry raw cotton plants. P.W.4 Laxman indicated place where some stack of dry cotton plants was kept. Those three persons, including the appellant, took away some dry cotton plants. They set fire to a bunch of the dry plants at a place situated approximately about 150 ft. away from the farm house. They roasted the piglet on the fire. 4 They barbecued the piglet. After a little while, two of them left the agricultural field on the motor-cycle, whereas the appellant remained behind. 4. The appellant went towards the farm house at about odd hours after the mid-night. He enquired with father of the victim as to why the room was locked. He compelled her father to open the lock put on the door of the room. He threatened her father and assaulted him by means of a knife while doing so. He thereafter, wriggled out the victim from the room and locked the room. Thus, father of the victim and the other two agricultural servants were confined in the room. The appellant dragged the victim towards a place near Bandh. He asked her to remove her clothes and lie down on a mattress which was laid. She refused to do so. He forcibly removed her garments, placed himself over her body and forcibly took bites of her lips and cheek. He ravished her. She started screaming. He thereafter sodomised her. The child whimpered He did not leave her even after 5 the carnal intercourse in both the ways. He took her near him and pressed her under his person. However, after some time he became drowsy and fell fast asleep. The victim (P.W.1 Mumtaj) gradually escaped from clutches of the appellant and rushed towards the room. She asked her father from outside the room as to where shall she go. He told her to go to house of a relative by name Mainuddin, who use to reside in nearby locality. She took shelter in the house of said Mainuddin during remaining part of the dark night. In the next morning, lock of the room was broken. She narrated the incident to her father. Her father and his Master took her to the Police Station where her complaint was reduced into writing vide FIR (Exh.14). She was subjected to medical examination. The appellant was arrested. The Police prepared spot panchanama and recovered the mattress alongwith a moulded plastic bucket from that place. The Police also recovered a knife and under-garment of the appellant at his instance. The appellant was charge-sheeted after collecting the necessary material during course of the investigation. 6 5. The appellant pleaded not guilty to the charge. His defence was of simple denial. He stated that father of the victim had picked up a quarrel with his wife on account of grazing of goats near the agricultural field and, therefore, he had called for explanation of her father - (P.W. Sk.Maheboob) about misbehaviour with his wife. The appellant further stated that he told father of the victim that in order to teach a lesson to him, he would lodge a report at the Police Station about commission of rape on his wife. It is due to such reason that father of the victim assaulted him, and lodged a false report about sexual assault on the victim. Hence, he sought acquittal from the charge. 6. At the trial, the prosecution examined in all eight (8) witnesses in support of its case. The learned Sessions Judge came to the conclusion that the prosecution case is duly proved. The learned Sessions Judge believed version of the victim (P.W. Mumtaj). He noticed that the victim was minor at the material time 7 and was sexually abused by the appellant. It being a case of child abuse as such, the learned Sessions Judge held that the appellant did not deserve any sympathy. In keeping with such findings, the appellant came to be convicted and sentenced as described hereinbefore. 7. Mr.Palve, would submit that the entire story of the prosecution is improbable for the reason that there were three agricultural servants in the farm house alongwith the teenager victim and the appellant was alone. He would submit that it is unbelievable that singlehandedly, the appellant managed to confine the three agricultural servants in the room and thereafter committed the act of sexual assault on the victim. He pointed out that two other persons who had accompanied the appellant upto agricultural land were not examined and, therefore, it is contended that genesis of the incident is not properly proved. Mr.Palve, would point out further that hymen of victim was found intact. He would submit that if the victim would have been subjected to sexual intercourse then 8 private part of the appellant would have received injuries and that the hymen of the victim could not have remained intact. He urged to dislodge the testimony of the victim on the ground that she is a minor witness and was likely to be tutored by her father. Per contra, learned A.P.P. Smt.Reddy, supports the impugned judgment. 8. The fact that the victim was aged about 14 years is not seriously disputed during the course of the trial nor such a dispute is raised before me. The version of P.W.5 Shri Kale, Head Master of Madhyamik Vidhyalaya, reveals that birth date of the victim is June 5, 1992 as per the School record. The School's record can not be dislodged without any substantial reason. There is no iota of evidence to hold that the entries in the School record were improperly taken. The medical evidence tendered by P.W.8 Dr. Yende, also shows that age of the prosecutrix was approximately in the range of 10/15 years. The ossification test indicated her age between 12/14 years. His version shows that she was below 14 years of age at the relevant time. She gave 9 her age as 14 years. Her father also corroborated this fact. It can be gathered, without difficulty, that the victim was aged around 14 years at the relevant time. 9. What emerges from the versions of the victim (P.W.Mumtaj), P.W. Laxman and P.W. Sk.Maheboob is that the appellant and his two friends or relatives visited the agricultural field Gat No.11 in the relevant night at about 10-30 p.m. Their versions categorically show that the appellant and the other two persons roasted the piglet at a place situated around 150 ft. away from the farm house. They ate the piglet and lateron other two persons left the field, whereas the appellant alone remained there. Considered together, these three versions unmistakably show that at about 1-00 a.m., after midnight, the appellant went towards the farm house and asked P.W. Sk.Maheboob as to why lock was put on the room. He asked P.W. Sk.Maheboob to open the lock. The victim was sleeping inside the room, whereas her father was sleeping outside that room. The appellant threatened to kill her 10 father by means of a knife. He gave blows of knife on hands and back of P.W. Sk.Maheboob. Under spell of fear, P.W. Sk.Maheboob opened the lock. Thereafter, the appellant confined her father (Sk.Maheboob), P.W. Laxman and deceased Rangnath in that room. The appellant chained the room from outside and locked the same after he dragged the victim out of the room. The consistent versions of P.W. Sk.Maheboob and P.W. Laxman go to establish the fact that the appellant confined them in the room under threats. It has been proved that the appellant assaulted P.W. Sk.Maheboob by means of knife when resistance was offered. It is under such circumstances that singlehandedly the appellant could force P.W.Sk.Maheboob, P.W.Laxman and deceased Rangnath in the confinement at point of knife. True, he was alone, whereas they were three. However, he was armed with knife. He had exhibited his brutal mentality by knifing P.W. Sk.Maheboob. The three agricultural servants became helpless due to the serious threats given by the appellant and more so because they noticed that he dared to actually use the knife against 11 them. In this view of the matter, I find it difficult to countenance the submission of Mr.Palve about improbability of the genesis of the incident. 10. There is no reason coming forth as to why P.W.Laxman, who is an independent witness, should speak against the appellant. His version corroborates a part of the prosecution story regarding confinement of P.W. Sk.Maheboob himself and deceased Rangnath in the room. His version also corroborates further part of the prosecution story regarding forcible removal of the victim by the appellant towards secluded place near the Bandh in the agricultural field. There is no scintilla of evidence to show that P.W.Laxman and P.W. Sk.Maheboob had any animosity with the appellant. Nothing of much significance could be gathered from their cross-examinations. 11. The victim (P.W.Mumtaj) narrated the manner in which she was sexually abused by the appellant. Her version purports to show that he tore out her clothes. Made her to lie down on 12 the mattress at point of knife and committed sexual intercourse with her. Her version further reveals that even after the vaginal intercourse, the appellant sodomised her by committing anal intercourse. He acted like a brute animal while committing the sexual assault. He took bites of her cheeks, lips and physically assaulted her. The evidence on record clearly shows that there was total exit of reason and the appellant's mind was working like that of a brute animal. The horrendous act of sexual assault is rather a pathetic story narrated by the victim. She was subjected to life time harrowing experience which would shudder her at any time as and when she would recollect the incident throughout her life. 12. The medical evidence tendered by P.W.7 Dr.Wagh lends corroboration to the eye witness account tendered by the victim (P.W.Mumtaj) as well as her father (Sk.Maheboob). His version purports to show that on 17.6.2006, he examined the victim at about 12-30 p.m. He noticed multiple injuries including abrasions on anal 13 region, redness around vaginal orifice, abrasions around right breast, right upper lip, right cheek, vertebral column in lower part, vertebral column on right side in upper 1/3rd, on tip of the tongue and below the tongue on lower jaw inside the mouth. These were fresh injuries. The injuries revealed that the victim was sexually assaulted in brutal manner. The version of P.W.Dr. Wagh, who was attached to the Rural Hospital, Majalgaon, at the relevant time, lends corroboration to the medical certificate (Exh. 43). His version also indicates that though the hymen was not ruptured, yet, he noticed a tear on the hymen. He corroborates the findings in the medical certificate (Exh.44) in this behalf. His version also shows that clinical examination of P.W. Sk.Maheboob revealed presence of three injuries as stated below : "1. Contused lacerated wound on his right leg, below knee joint, anteriorly placed, having size 1x1/2 cms. x 1/2 cm. 2. Abrasion on left upper lip on inner 14 side, having size 1 x 1/2 cms. 3. Abrasion on right side of back, in middle 1/3rd near vertebral column, having size 2 cms. x 1/2 cm." He issued injury certificate (Exh.45) accordingly and opined that the injury No.1 could be result of assault by knife. The second injury could have been caused due to blunt object like handle of the knife. 13. It has come in the evidence of the victim that she had put up resistance while the appellant was committing the act of sexual intercourse. The version of P.W.Dr.Wagh, reveals that medical examination of the appellant indicated presence of a contusion on his right ring finger and abrasion. Thus, there is medical corroboration available to show that the victim physically offered resistance and, therefore, the appellant received minor injuries on his person. Mere fact that the hymen was not found ruptured by itself will not be sufficient to infer absence of sexual intercourse by the appellant with the 15 victim. It is well settled that even a small penetration of the male organ in the vagina of the victim would amount to the sexual intercourse within the meaning of Section 375 of the I.P.C. The Medical Officer explained as to how he located tear in the hymen. He states that after separating the vulva, he would be able to see the hymen's tear. Needless to say, the version of the victim is duly corroborated by the medical evidence. 14. The version of P.W.8 Dr.Yende, goes to prove the fact that the victim was having eight (8) injuries including bruises on her tongue, anus etc. He noticed presence of evidence to indicate the child abuse. His version reveals that the victim (P.W. Mumtaj) was aged between 10/15 years. He issued certificate (Exh.52) accordingly. He admits that there is distinction between the term "abrasion" and the term "bruise". His evidence has remained unimpeached in so far as his opinion regarding the child abuse is concerned. 16 15. The Apex Court in "State of U.P. Vs. Munshi" (AIR 2009 Supreme Court 370), held that evidence of the prosecutrix can be basis for conviction even without corroboration. It is held that the prosecutrix is not an accomplice and she stands on higher footing than injured witness. In "Rajendra Datta Zarekar Vs. State of Goa" 2007 AIR SCW 7588, the Apex Court held that false implication of accused in case of charge for offence of rape is normally improbable. It is further held that no one would concoct a story of rape just to falsely implicate a person. It was argued before the Apex Court that charge for offence of rape was not made out because the hymen of victim Sonia was intact. The Apex Court rejected such argument. It is observed : "14. Learned counsel for the appellant has next submitted that the doctor had found that the hymen of Sonia was intact and, therefore, the charge for rape under S.376, I.P.C. as defined in S. 375, I.P.C. has not been made out. An identical question was 17 considered by a Bench of this Court in Santosh Kumar Vs. State of M.P. 2006(8)JT SC 171, and para 10 of the report is reproduced below : "10. The question, which arises for consideration, is whether the proved facts establish the offence of rape. It is not necessary for us to refer to various authorities as the said question has been examined in considerable detail in Madan Gopal Kakkad Vs. Naval Dubey, 1992(3) JT (SC) 270 and paras 37 to 39 of the said judgment are being reproduced below : "37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis 18 with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." 19 38. In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found : "Sexual intercourse. - In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains." 39. In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated : "..... even slight penetration is sufficient and emission is unnecessary". Therefore, the absence of injuries on the private parts of a victim specially a married lady cannot, ipso facto, lead to an inference that 20 no rape has been committed." Here the victim was a very young girl of six years of age and it is quite likely that full penetration did not take place as the accused is a grown up person of over 20 years of age. The injuries clearly indicate that rape, as defined in S. 275, I.P.C. did take place." 16. Having carefully gone through the entire evidence of the prosecution and close scrutiny of the circumstances, I have no hesitation in holding that the appellant committed heinous act of sexual intercourse by use of force and also that of unnatural carnal intercourse with the minor child. The learned Sessions Judge, has rightly convicted and sentenced him for the said offences. There is nothing redeeming about the appellant. The child victim was subjected to horrendous crime due to lascivious acts of the appellant. His acts are indicative of depraved mind and sexual perversity. Indeed, I feel that the sentence 21 awarded to him is on lower side. In such a case, one feels that the embargo put on the powers of the Court as per proviso appended to Section 31 of the I.P.C. is required to be uplifted in suitable cases. 17. For the aforestated reasons, I am of the opinion that there is no substance in the appeal. Hence, the appeal is dismissed. The impugned judgment of conviction and sentence rendered in Sessions Case No.34/2006 by the learned Additional Sessions Judge, Majalgaon, is confirmed. (V.R.KINGAONKAR,J.) asp/office/Crappeal14307