sat 1 crim.appeal 1091-2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1091 OF 2008 Bhiku Tukaram Jadhav ) Now lodged at Kolhapur ) Central Prison, ) Kolhapr-7 ) ...Appellant vs. The State of Maharashtra ) Panchgani Police Station, ) Tal.Mahabaleshwad, ) Dist.Satara ) ...Respondent Mrs.Anjali R. Waghmare, Advocate appointed for the Appellant. Mr.P.S. Hingorani, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : DECEMBER 23, 2011 JUDGMENT :- 1 The appellant is found guilty by the trial court of the offence of rape punishable u/s.376(2)(f) of IPC and is sentenced to suffer R.I. for ten years and to pay a fine of Rs. 5000/-, in default, to suffer further R.I. for six months. sat 2 crim.appeal 1091-2008 2 The appellant had sexual intercourse repeatedly with his own daughter Vanita, who is the complainant in the present case. The offence was committed at two places i.e. Bhogavali and Village Kaswand in District Satara. At the time of recording of evidence of the victim/complainant, she was staying at Mahila Sudhar Griha, Pune. 3 It is a case of prosecution that the complainant was educated upto the 3rd Standard. She left school as the appellant was not permitting her to attend school for further education. She was about 9 years old when she left education. She was staying at village Bhogavali with the appellant, her mother and second wife of the appellant. The complainant used to sleep with the appellant while they were staying at Bhogavali. It appears that while they used to sleep together, they used to be physically very close to each other and taking advantage of that situation, the appellant started sexually abusing his own daughter. He started indulging into sexual intercourse with her. sat 3 crim.appeal 1091-2008 It is alleged that on first occasion, there was bleeding from vagina of the complainant. She however did not report the matter to her mother or second wife of the appellant. As such, the abuse continued and the appellant had been indulging in sexual intercourse with the complainant at frequent intervals. In the result, after a few months, the victim conceived and it had become difficult for her to conceal this fact from her mother. She, therefore, disclosed to her mother that she had been sexually abused by her own father. She did not earlier disclose to her mother due to the threats extended by her father that in the event she discloses the misdeeds of the appellant to her mother, the complainant would be killed by some poisonous substance. It appears that ultimately it is the third wife of the appellant who had taken the complainant to her house at Sangli where the complainant stayed for two months. Thereafter, she had brought the complainant to Mumbai. After a few days, she was taken to village Kaswand. Thereafter, she was again taken to Borivali. The step mother of the complainant i.e. third wife of the appellant had kept the complainant at the house of one lady sat 4 crim.appeal 1091-2008 known to her. It appears that the complainant was kept at Borivali so that the villagers did not come to know that the complainant was pregnant. It appears that gradually that lady won confidence of the complainant and suggested her to file a complaint at police station. The complainant, therefore, came to village Kaswand and went to Panchgani with Police Patil. She narrated the incident to Police. The offence was registered vide CR No.30/2006 at Panchgani Police Station against the appellant. 4 Statements of witnesses were recorded, spot panchnama was drawn and the complainant was medically examined. After completion of investigation, chargesheet was filed in the court of Magistrate. The case was committed to the Court of Sessions. 5 The learned trial court framed the charge u/ss. 376 and 506 of IPC. The accused pleaded not guilty and claimed to be tried. During the course of trial, eight witnesses were sat 5 crim.appeal 1091-2008 examined by the prosecution. 6 PW 1 is the panch witness. PW 2 Anusaya is mother of the complainant Vanita and wife of the appellant. PW 3 is Vanita herself. PW 4 is one of the witnesses who had employed the appellant as a Gardner. PW 5 is one of the wives of the appellant (not mother of the Vanita). PW 6 is the Medical Officer. PW 7 is also Medical Officer and PW 8 is the Investigating Officer. 7 PW 3 Vanita has more or less repeated of what has been stated by her in the complaint to the Panchgani Police Station. She has stated in her evidence that she used to sleep with her father. It is further stated that at one night, accidentally her hand had gone towards the undergarment of her father. It is at that time that the appellant woke up and committed rape on her. She has stated that her father had inserted his private part in her private part. She had sustained injury due to forcible penetration. The blood was oozing from her vagina. She sat 6 crim.appeal 1091-2008 however did not disclose this fact to anybody. Thereafter her father continued to indulge in sexual intercourse with her whenever both of them were alone at home. These frequent incidents had occurred at village Bhogavali. It is stated by PW 3 that after few days PW 3 herself, her mother, the appellant and second wife all shifted to village Kaswand. The appellant was working as Gardner at the bungalow of one Anand Bhilare. They were staying in the house constructed in the front of said bungalow. The alleged nefarious activities of the appellant did not stop here also. It is stated by PW 3 that he continued to molest her time and again. After few months, her menstrual period did not occur as usual. She was feeling nauseous and vomiting sensation. She narrated this to the appellant. The appellant, however, told her that she should not disclose this fact to her mother and in the event of she disclosing this fact to her mother, she would be killed by the appellant by administering poison. She was taken to Government Hospital by her step mother. Thereafter, she was taken to Mumbai by the said step mother. She was again brought to Kaswand. Her step sat 7 crim.appeal 1091-2008 mother had again taken her back to Borivali and had kept her in custody of one lady known to her step mother. It is in the custody of that lady the PW 3 disclosed this fact to the lady who suggested her to lodge a police complaint. Therefore, PW 3 had come to Kaswand and visited Panchgani police station with Police Patil and reported the matter to police. 8 In the cross-examination, the PW 3 has admitted that she did not resist when the appellant was removing her undergarments. She was unable to tell the exact time as to when the first incident of alleged rape had occurred. Nobody was present when the alleged incident had occurred. In the cross- examination, she has further stated that normally her mother used to wash her clothes. However, on that day, she had washed her own clothes because of blood stains. PW 3 has denied that she had physical relations with other villagers also and she had conceived due to the relations with other villagers. It appears from the cross-examination of this witness that by the time she had given evidence before the court, she had delivered a baby sat 8 crim.appeal 1091-2008 boy. 9 PW 2 Anusaya is her mother. She was married to the appellant about 24 years ago. She was staying with the appellant at Bhogavali. She could not conceive for about four years after the marriage. The appellant, therefore, performed second marriage with a lady by name Suman. PW 2 had delivered three daughters after the marriage of the appellant with Suman. PW 3 is one of the daughters of PW 2. The appellant was staying with the second wife Suman for about 20 years in Mumbai. After staying with her for about 20 years in Mumbai, he had returned to Bhogavali along with his second wife Suman. He had brought one more lady by name Jayashri with him when he returned from Mumbai to Bhogavali. 10 The appellant, the PW 2 and 3 and 3rd wife of the appellant were staying together at village Bhogavali. PW 3 Vanita used to sleep with the appellant and the mistress (third wife) of the appellant viz. Jayashri. It is stated by this witness sat 9 crim.appeal 1091-2008 that as there was bleeding Vanita’s vagina, she had told the appellant that it was not proper on his part to indulge into sexual intercourse with his own daughter. The appellant however had no repentance of any nature. On the contrary, he challenged PW 2 that she could do whatever she wanted. As there was no work at Bhogvali, the appellant along with his family members including PW 3 had shifted to Kaswand. He was working as a Gardner in the bungalow of Anand Bhilare and was staying with family in the house situated opposite the said bungalow. It was suggested to this witness that she was not happy with the appellant as the appellant had married two more ladies and because he had stopped earning due to spinal cord problem. She has denied the suggestion. She had also denied that PW 3 had illicit relations with three to four boys of Bhogavali and Kaswand. It appears from the evidence of this witness that Vanita was taken to Sangli by mistress (third wife Jayashri) of the appellant after she got pregnant and her pregnancy was becoming apparent. sat 10 crim.appeal 1091-2008 11 PW 4 has stated that the appellant was working as a Gardner in the bungalow of his maternal uncle Anand Bhilare. It is not necessary to discuss the evidence of this witness in detail. This witness was examined only to bring on record that for sometime, the appellant along with his family members had shifted from Bhogavali to Kaswand. 12 PW 5 Suman is the second wife of the appellant. She has stated that after her marriage with the appellant, the appellant was staying at Bhogavali for some days. The evidence of this witness also does not require much discussion as there is nothing material in the evidence of this witness which could help this Court in any manner. 13 PW 6 Dr.Jayashri Dange had opined that the accused was able to perform sexual intercourse. 14 PW 7 Dr.Rohan Raokhande had given opinion on 4th December 2006 that PW 3 was pregnant and she was sat 11 crim.appeal 1091-2008 carrying 34 weeks old foetus. 15 PW 8 is the Investigating Officer. He had registered the offence on the complaint made by PW 3 on 4th December, 2006. PW 3 was sent to Civil Hospital for medical examination. PW 8 had also visited the spot of the alleged incident at Kaswand. PW 3 was sent to Mahila Sudhar Griha by this witness. It is admitted by this witness in his cross- examination that the villagers of village Bhilar including the Sarpanch had accompanied the PW 3 when she had gone to police station to lodge report. 16 From the examination-in-chief of PW 3, it is absolutely clear that she had stated that she was sexually assaulted by the appellant on number of occasions. She conceived because of sexual intercourse on the part of the appellant. She had disclosed this fact to her mother (PW 2). The PW 3 was threatened by the appellant that she should not disclose the incident to anybody else and in the event of she sat 12 crim.appeal 1091-2008 disclosing, she would be killed by him by administering poison which is normally used in villages for killing rats. It has also come in the evidence that PW 3 was taken to village Sangli and then she was taken to Mumbai and was kept in the custody of one lady at Borivali. PW 3 was advised by that lady to file police complaint. It is on the advice of that lady that PW 3 had come to meet Police Patil and thereafter she had gone to Panchgani to file an FIR. 17 From the trend of cross-examination of witnesses, it appears to be a case of the appellant that he has been falsely implicated by PW 2 Anusaya, who is first wife of the appellant, because Anusaya was unhappy over the relations of appellant with his second wife Suman and mistress Jayashri. I have carefully gone through the cross-examination of all the witnesses, particularly, PW 3. I do not find anything in the cross-examination which renders the evidence of PW 3 nugatory or suspicious. sat 13 crim.appeal 1091-2008 18 It could be argued that there was inordinate delay in lodging the FIR and therefore, possibility of false implication could not be ruled out. It could be further argued that PW 2, wife of the appellant, who was mother of PW 3 victim of the offence, might have instigated the PW 3 to lodge the complaint and that PW 3 might have conceived due to illicit relations with the boys of the village. However, there is nothing on record to jump to such conclusion. 19 One may also argue that there is no explanation as to why the PW no.3 did not disclose that she was being sexually abused by her father despite the fact that she was being subjected to sexual intercourse repeatedly. In this regard, if one study the findings of researchers of psychology of child victims of rape, it could be seen that there are many valid reasons which could be cited to explain as to why the sexually abused child does not disclose the abuse immediately. The child psychology researchers have found that the abuser makes the victim feel sat 14 crim.appeal 1091-2008 that she had caused offender to act inappropriately. In the present case, it is seen from the evidence that the PW 3 was sleeping by the side of the appellant and on the first occasion, it was her hand which had accidentally extended to the undergarments of the appellant. The child abusers also are in the habit of making the child feel that the child is also guilty party and if the child discloses the fact to others, she will be ridiculed in the family or the society. This is one more reason that the child victims of sex abuse do not disclose the abuse for a long time. Once there is a feeling in the mind of victim that she herself is also responsible for the abuse, she cannot resist or oppose the subsequent attempts made by the abuser. This is how the sex abuse continues for a longer time till it is revealed by the victim or is detected by somebody else. 20 No doubt that the matter was reported to police very late i.e. only after detection of pregnancy of about 34 months. However, there is nothing on record to indicate that the PW 3 had conceived due to any other sexual intercourse than sat 15 crim.appeal 1091-2008 the sexual intercourse with the appellant. Moreover, the evidence clearly establishes that the appellant had committed sexual intercourse with the victim on many occasions. It has come on record that the appellant had threatened PW 3 that in case she disclosed the misdeeds of the appellant to her mother or anybody else, she would be killed. It is necessary to be stated here that in the cases of rape, particularly the sexual assault on children, it is the psychology of child to obey the orders of the rapists if he is her custodian, may be father, uncle, teacher or warden of the hostel. It is also seen that most of such children who are dependent on abusers abide by their orders. There are many reasons for children not disclosing the fact of sexual abuse to their relatives or friends. One of the reasons is that they are threatened. The other reason is that in many cases, they are dependent on the persons who had sexually abused them. It is also seen that there is threat from the abuser to the near and dear ones of the sexually abused child. In the present case, it appears that PW 3 was afraid of being killed at the hands of the appellant. If one takes overall view of the case, it can be said sat 16 crim.appeal 1091-2008 that PW 3 also might be afraid that in case she discloses this fact to her mother or anybody else, her mother Anusaya also might be subjected to cruelty by the appellant. As the appellant had married Suman as his second wife and had brought his mistress Jayashri at home, the apprehension of PW 3 was genuine. 21 In fact, it is difficult for anybody to definitely find out the reason for non-disclosure on the part of child of sexual abuse. The psychologists have cited many reasons. Some of them have been referred by me hereinabove. However, if the evidence of abused child is accepted, it is not necessary for Court to search for definite reason as to why the abuse was not reported to the relatives or friends for long time. In my considered opinion, non-disclosure by sexually abused child for long time by itself cannot be a reason to throw away the evidence of sexually abused if it is otherwise believable. 22 In the present case, I have minutely examined the sat 17 crim.appeal 1091-2008 evidence of PW 3 from all angles. I am of the definite view that the PW 3 is a truthful witness. She might have made exaggeration at some or other place, that does not cause any embellishment of serious nature to her evidence. It is also noticed by me that PW 2 Anusaya, mother of PW 3, has also made certain exaggerations in her evidence. At one stage she had gone to the extent of stating that once she had personally seen the appellant having sexual intercourse with PW 3. This may not sound correct. This might be exaggeration. But at the same time, this exaggeration or some other embroidery made by PW 2 in her evidence at one or two other places cannot be a reason to disbelieve the evidence of PW 3. In fact, in the present appeal, the whole charge depends upon the evidence of PW 3. I do not find any reason to reject her evidence. In my view, the learned trial court has rightly believed the evidence of PW 3. No doubt the Courts shall always be on guard in such cases. Possibility of false implication at the instance of some aggrieved person is always there. In the present case it could be mother of the victim and wife of the appellant PW 2. Such sat 18 crim.appeal 1091-2008 possibility must be ruled out before accepting the evidence of victim. However it shall be borne in mind that a witness who is not truthful, particularly child, normally gives some or other admissions in the cross-examination which may create a doubt about genuineness of the evidence of witness. Evidence which is partly false is not necessarily false in its entirety. The maxim ‘false in uno falsus in omnibus’ has no application in India and the witness or witnesses cannot be branded liers. The Hon’ble Supreme Court in the case of Jaya Seelan vs. State of Tamil Nadu {(2009) Criminal Law Journal, Page 1758) at para 5 has observed : 5. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by PW1 to a large extent to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not sat 19 crim.appeal 1091-2008 ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence. (See Nisar Alli v. The State of Uttar Pradesh [AIR 1957 SC 366]. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460] . The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972(3) SCC 751] and Ugar Ahir and Ors. v. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, sat 20 crim.appeal 1091-2008 separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Praadesh [AIR 1954 SC 15] and Balaka Singh and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed by this Court in State of Rajasthan v. Smt.Kalki and Anr. [1981 (2) SCC 752], normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the