1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 570 OF 2006 Shri Sambhaji Aba Mandale Age: 31 years, Occupation Agriculture, R/o. Jarandi Taluka Tasgaon, District: Sangli (At present lodged at Kolhapur Central Jail, Kalamba) ..... Appellant V/s 1. The State of Maharashtra (At the instance of Tasgaon Police Station, District : Sangli) 2. Poonam Bapursaheb Shinde, Age: 10 years, Occupation: Student Minor through natural guardian mother Anita Bapusaheb Shinde R/at: Jarandi Tal. Tasgaon District : Sangli. ...... Respondents. Mr. Manoj Kadam i/b Mr. Pratap Patil for the appellant. Mrs. R.V. Newton, APP for the State. CORAM: V. M. KANADE, J. DATE : 29th March, 2010 ORAL JUDGMENT:- 1. Heard the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State. 2 2. The appellant is challenging the judgment and order passed by the Sessions Court whereby the Sessions Court was pleased to convict the appellant for the offence punishable under section 376(2)(f) of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 3000/- and in default to undergo further rigorous imprisonment for six months. He was also convicted for the offence punishable under section 506 of the Indian Penal Code and sentenced to suffer simple imprisonment for six months and to pay fine of Rs 200 and in default to suffer further simple imprisonment for 15 days. 3. Prosecution case is that on 24/12/2004, the appellant induced the prosecutrix who was a young girl of 9 years of age to accompany him telling her that he would be giving her some sweets and, thereafter, took her to his land and there he committed rape on her. Prosecution case is that the prosecutrix, thereafter, immediately went and met her mother and narrated what had happened. Her mother examined her private part and then informed this fact to her mother-in-law and also her brother and brother-in-law and, thereafter, a complaint was lodged at night. The accused was arrested on the same day and he is in custody since then. 4. Prosecution, in support of its case, examined 7 witnesses. The Prosecution examined the prosecutrix as well as her mother, the Investigating Officer and two doctors 3 in support of their case. Prosecutrix in her evidence narrated the entire incident. The P.W. 1 - mother of the prosecutrix also has narrated what happened on that day and how her daughter had informed her about the incident. She has also narrated that, thereafter, she had examined the private part of the prosecutrix and found that there was swelling and it had become red. P.W.1 has also stated that she informed her mother-in-law about he said incident and other relatives and, thereafter, on the same day lodged a complaint. Prosecution has also relied on the Chemical Analyser’s Report. Though no blood or semen was found on the other articles, one semen stain was found on the nikar which was worn by the prosecutrix. The two doctors who were examined by the prosecutrix viz. P.W. 3 – Dr. Deepak Lade and P.W. 4 – Dr. Bhaskar Murthi have noted that the hymen of the prosecutrix was torn at 1 O’clock position, though they did not find any external injury on her genitals or over her body. P.W. 3 has stated that since he was not in a position to give clear finding, the matter was sent to the expert. P.W. 4, however, in his evidence has stated that there was possibility of sexual intercourse in the said case. P.W. 4 was cross examined at length and he was shown text books on medical jurisprudence by Dr. Parikh. The doctor has admitted that, normally, in a case of forceful rape on the minor girl who is less than 10 years of age, there is a strong possibility of external injuries on the internal and external private parts. 4 5. The learned Counsel appearing on behalf of the appellant submitted that the case of the prosecution is not supported by the medical evidence. He submitted that both the doctors have noted that there were no external injuries. He submitted that in a rape case, in the event of force being applied on the minor girl below 10 years of age, there are bound to be external and internal injuries which are not found in the present case. He submitted that there was previous enmity between the appellant and the family of the prosecutrix and, therefore, appellant was falsely implicated. He submitted that the civil suit was pending in Civil Court at the relevant time and the appellant had been permitted to have an access to the well which was situated in the land of the prosecutrix. He submitted that the prosecution has not established that the semen stain found on the nikar of the prosecutrix was that of appellant herein. 6. The learned APP, on the other hand, invited my attention to the evidence of P.W.4 in which the doctor has clearly given his opinion about possibility of sexual intercourse. She also took me through the judgment and order of the Sessions Court. 7. After having heard both the Counsel at length and after having gone through the evidence of the prosecution witnesses, Chemical Analyser’s report and the judgment of the Trial Court, in my view, the prosecution has established beyond reasonable doubt that the appellant had committed 5 rape on the minor girl below 10 years of age. It is true that P.W.3 has stated in his evidence that he was not in a position to give opinion about any forceful intercourse by the appellant with the prosecutrix. He has, however, stated that for that reason the prosecutrix was sent to an expert Gynaecologist by referring the patient to the General Hospital, Sangli and, thereafter, report was sent by the expert Gynaecologist. In the cross-examination of the witness, a suggestion was made that the hymen could be torn due to various reasons. It was also suggested that if there was forceful sexual intercourse, there would be injuries on the external and internal private parts. P.W.4 – Dr. Bhaskar Murthi, on the other hand, has noted that there was no injury on the external private parts. However, he found that hymen was not intact and there was tear at 1’Clock position and the injury was within 48 hours. He, however, did not find any bleeding on local examination. He had also performed ossification test and, according to him, age of the prosecutrix was between 8 to 10 years. He also admitted that in the case of forceful rape of a young girl below 10 years of age, external injuries would be present. 8. Taking into consideration the evidence which is brought on record, in my view, prosecution has established that the accused had committed rape on the minor girl below 10 years of age. The victim girl herself has narrated the sequence of events which has been corroborated by her mother. There is no reason to disbelieve the testimony of 6 the prosecutrix or her mother since the evidence is given in a most natural manner. There is no delay in filing the FIR. The submission of the appellant that because of enmity, prosecutrix has falsely implicated him in this case also cannot be accepted. Normally, such a false allegation is not made because the net effect of making such an allegation is that the entire life of the prosecutrix is likely to be spoiled and her name is defamed in the society and her prospects of getting good husband also diminish considerably. The family of the prosecutrix, though they are not very rich, have their own land and merely because there is some dispute between the appellant and the family of the prosecutrix, it is unacceptable that such a false complaint would be filed by them. Secondly, statement of the prosecutrix has been corroborated by the expert Gynaecologist – P.W.4 who has given an opinion after examining the prosecutrix that there was possibility of sexual intercourse, though he has stated that there were no injuries on her private parts. 9. In the present case, the prosecutrix has narrated that the appellant has placed the girl on the ground and had removed her nikar and had laid on her body and had threatened her not to shout. It is possible that because the girl was afraid and had stood stand-still, there were no injuries on her private parts. It has been established that there was tear on her hymen indicating sexual intercourse and her mother had stated in her evidence that when she 7 examined the prosecutrix after she had narrated the event that there was redishness on her private part and there was also swelling. One semen stain was also found on her nikar. Taking into consideration this evidence, therefore, in my view, prosecution has established that the appellant had committed rape on the minor girl and, therefore, the prosecution has succeeded in proving the offence punishable under section 376(2)(f) of the Indian Penal Code. 10. The next question which falls for consideration is regarding sentence which has been awarded by the Sessions Court. The Sessions Court, after convicting the accused has awarded him the sentence of 10 years. It is a well settled position in law that if an offence of section 376 is established and if the age of the girl is less than 10 years then the minimum sentence of 10 years has to be awarded for the said offence under section 376(2)(f) and if the court feels that the sentence less than the minimum sentence has to be awarded then special reasons have to be given by the court. 11. In the present case, in my view, the appellant has already undergone 6 years of sentence and he deserves to be released on the sentence which he has already undergone for the following reasons. The prosecutrix did not suffer any external or internal injuries. Her gait was normal. There was no bruises on her body which establishes that the appellant did not use unusual force while committing the said offence. The appellant was about 30 years old. There 8 are no prior antecedents against the present appellant. He is not convicted or has come to the adverse notice of the police for any other offence. Both the doctors who have examined the prosecutrix found that her blood pressure was normal and she did not show any sign of anxiety or depression or any other psychic disorder or trauma, though she was examined within 24 hours from happening of the said incident. This being the position, in my view, sentence which is awarded to the appellant needs to be reduced from 10 years to 6 years. Appeal, therefore, will have to be allowed partly. 12. In the result the following order is passed:- ORDER Conviction of the appellant under section 376(2)(f) of the Indian Penal Code is confirmed. The sentence, however, is reduced from 10 years to 6 years. The appellant, if he has already undergone the sentence of six years, be released forthwith, if not required in any other case. Appeal is partly allowed and disposed of. (V.M. KANADE, J.)