(1) Cri. Appeal No. 229 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 229 OF 2010 1 Arvind s/o Bhagwant Datal, age 21 years, occ. Business, r/o Bokangaon, Tq. And Dist. Latur ...Appellant (Accused) VERSUS 1 The State of Maharashtra, through S.H.O. Police Station, Latur (Rural), Latur, 2 Mohini d/o Hanumant Datal, age 14 years, r/o Bokangaon, Tq. And Dist. Latur, through guardian Hanumant Datal, age major, r/o Bokangaon, Tq. And Dist. Latur ...Respondents ..... Smt. S.S.Jadhav, advocate h/f Shri V.T.Sakolkar, advocate for appellant Shri S.G.Nandedkar, A.P.P. for respondent no.1 Shri S.S.Manale, advocate for respondent no.2 ..... (2) Cri. Appeal No. 229 of 2010 CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 01.12.2011 DATE OF PRONOUNCING THE JUDGMENT : 22.12.2011 JUDGMENT : 1 Challenge in this appeal is to the judgment and order, dated 11.6.2010, rendered by the learned Additional Sessions Judge, Latur, in Sessions Case No. 74 of 2009, thereby convicting the appellant i.e. original accused for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer R.I. for 7 years and to pay fine of Rs.20,000/-, in default to suffer further R.I. of 1 year, and also convicting him for the offence punishable under Section 342 of the Indian Penal Code and sentencing him to suffer R.I. for 1 year and to pay fine of Rs.500/-, in default to suffer further R.I. of 15 days, and also directing that the fine amount be paid to the victim Mohini Hanumant Datal as compensation under Section 357 (1) of the Code of Criminal Procedure. 2 The factual conspectus and shorn of details of the prosecution case is as follows :- The accused faced the trial for the charges under Sections 376 and 342 of (3) Cri. Appeal No. 229 of 2010 the Indian Penal Code for committing rape on a minor girl, namely Mohini, aged about 13 years, in his Kirana shop by wrongfully confining her therein. 3 It is alleged that on 3.1.2009 at about 5.00 p.m. the complainant, namely Ranjana Hanumant Datal i.e. mother of victim Mohini and her husband had gone to the agricultural field for labour work and when the complainant returned to home, her neighbourer, namely PW7 Damayanti Shinde informed her that her daughter Mohini was washing the blood stained nicker and frock. Hence, the complainant made inquiry with her and she disclosed that the accused, namely Arvind committed rape upon her when she went to his shop to purchase the snacks. On inquiry, victim Mohini also stated that when she went to purchase snacks to the shop of the accused, he caught hold of her and pulled her into his shop and closed the door and committed intercourse upon her forcibly. Thereafter, the complainant along with her daughter went to Latur (Rural) police station. PW8 P.I. Ashok Patil was attached to Latur (Rural) police station on 4.1.2009 and the complainant Ranjana met him and she lodged the complaint, which was reduced into writing by him as per her narration, which is produced at Exh. 19 and the offence was registered against the accused on 4.1.2009 at about 1.15 a.m. under C.R. No. 2 of 2009 for the offences punishable under Sections 342 and 376 of the Indian Penal Code. Thereafter he sent victim Mohini for medical examination along with letter (Exh. 38), and went to the village of the complainant along with the victim and seized blood stained and white stained clothes of the victim in presence of the panchas under the seizure panchanama (Exh. 27). Thereafter, the victim showed the spot of the (4) Cri. Appeal No. 229 of 2010 incident i.e. the shop of the accused and also pointed out the exact spot where rape was committed upon her therein and on inspection of the said spot, blood stains were found, which were taken on cotton swab and seized the same under the spot panchanama (Exh. 21). Moreover, the photographs of the said spot were taken, which were marked Article ‘A’. Thereafter, the statements of witnesses were recorded. 4 It is also case of the prosecution that the accused was absconding. He came to be arrested on 7.1.2009 by PW8 PI Ashok Patil and he was referred for medical examination along with letter (Exh.43) and his blood and semen samples were collected thereafter. Moreover, the clothes of the accused were recovered at his instance under the memorandum panchanama (Exh.27) and recovery panchanama (Exh.29) respectively and same were identified by the victim girl. 5 It is further the case of the prosecution that thereafter all the seized articles were sent to the Chemical Analyser for examination purpose along with the forwarding letter (Exh.42) and pursuant to the said letter, the Chemical Analyser’s reports were received, which are produced at Exhs. 44 to 48. The opinion of the Medical Officer was called for by letter (Exh.25). Moreover, Damase Jamal Shaikh collected certificate from the Grampanchayat regarding the house and the shop of the father of the accused. Accordingly, after completion of investigation, A.P.I. Damase filed the charge sheet against the accused before the Chief Judicial Magistrate, Latur and as the offence was (5) Cri. Appeal No. 229 of 2010 exclusively triable by the court of Sessions, the learned Chief Judicial Magistrate committed the said case to the Court of Sessions, Latur by order, dated 30.7.2009. 6 Accordingly, learned Additional Sessions Judge, Latur framed the charge against the accused below Exh.12 on 30.11.2009 for the offences punishable under Sections 376 and 342 of the Indian Penal Code. However, the accused pleaded not guilty to the said charge and claimed to be tried. 7 To substantiate the case of the prosecution, the prosecution has examined, as many as eight witnesses, as mentioned below :- PW1 - Ranjana Datal, complainant, who proved the F.I.R. (Exh.19) PW2 - Narsing Datal, panch to spot panchanama (Exh.21), turned hostile. PW3 - Dr. Aruna Maske Patil, who proved the medical certificate (Exh.24) and also examined the victim and issued certificate. PW4 - Prabhakar Datal, panch to seizure panchanama of clothes of prosecutrix (Exh.27), as well as to the seizure panchanama of cotton swab (Exh.21), and panch to memorandum panchanama (Exh.28) and also recovery panchanama of clothes of accused (Exh.29) PW5 - Mohini Datal, prosecutrix and victim PW6 - Pradip Patil, the person who informed the prosecutrix that she was ravished. (6) Cri. Appeal No. 229 of 2010 PW7 - Damayanti Shinde, neighbourer of victim, before whom she disclosed that she was ravished. PW8 - P.I. Ashok Patil, investigating officer. 8 The defence of the accused is of total denial. His statement under Section 313 of the Code of Criminal Procedure was recorded and he has specifically stated that his family is qualified and financially sound, but complainant’s family is poor and also there are two groups in their village i.e. one is of accused and the other is of one advocate Datal, to whom husband of complainant is attached and also demanded Rs.2,00,000/-, but he has not fulfilled their demands, and therefore, due to rivalry in the said groups and non- payment of Rs. Two Lacs, the complainant implicated the accused in the present case by lodging the false report. However, the accused neither examined him on oath, nor examined any defence witness to substantiate the said defence. After assessing the oral and documentary evidence as well as medical evidence, and after considering the rival submissions advanced by the learned counsel for the parties, the learned Trial Court convicted the accused for the offences punishable under Sections 376 and 342 of the Indian Penal Code and sentenced him as mentioned herein above. Being aggrieved and dissatisfied by the said judgment and order of conviction, dated 11.6.2010, the appellant has preferred the present appeal assailing the same and urged for quashment thereof. 9 In order to deal with the submissions advanced by the learned counsel for the parties, it is necessary to advert to the material evidence (7) Cri. Appeal No. 229 of 2010 adduced/produced by the prosecution and in the said context, coming to the deposition of PW1 Ranjana Hanumant Datal i.e. the complainant, wherein she stated that Mohini is her daughter and at the time of incident she was in 6 th standard. She also stated that on 3.1.2009 her husband had gone to the field for agricultural work and she also had gone for agricultural work in another field and her two daughters were at home. At about 5.30 p.m., she returned back to the home and thereupon PW7 Damyanti Shinde informed her that nicker and frock of her daughter was stained with blood. Hence, after coming to home, she asked daughter Mohini about the same and thereupon she stated that she had gone to the shop of accused Arvind Datal to purchase snacks, but he pulled her by holding her inside and committed rape upon her. She also stated that she tried to shout at that time, but the accused kept his hand on her mouth. He further stated that one Sidram Datal was present out side the said shop at the said time. She further stated that thereafter she returned to the house by crying. Accordingly, PW1 Ranjana lodged the complaint against the accused, which is produced at Exh. 19. 10 During cross-examination, she stated that there is long distance between her house and the house of the accused, since her house is situated at one side of the village, whereas the house of the accused is situated at another side of the village. She also stated that there were about 3 to 4 grocery shops between the shop of the accused and her house, and the shops of Kantappa Belur and Bhimrao Datal are near her house. She further stated that the parents of accused reside in his house, as well as there is a house of his brother hood. (8) Cri. Appeal No. 229 of 2010 She further stated that the shop of the accused is about 4 x 8 feet and at the eastern side of the said shop there is a house and at western side of it there is a road. She further stated that at southern side of said shop, there is a house of Sopan Shinde and at the northern side of it there is a house of one Murlidhar Datal. She further stated that adjacent to the house of Murlidhar Datal, there is one Anganwadi, Samajmandir, Narsing Mandir and Maruti Mandir, and there is also a tree having structure around it for sitting and about 50 to 60 persons gather there. Moreover, in the front of the shop of the accused, there is a house of one Swamibai and there used to be regular traffic on the road in front of the shop. Accordingly, she gave the topography of the said shop, as well as gave its description that there were four doors of the said shop of the accused, which is having full of grocery articles and there was only space for keeping chair. 11 She further stated that the accused being Datal, he belonged to her brotherhood and she was her nephew by relation. Suggestion was given to her that about 1½ month prior to the incident, there was quarrel between the accused and her husband on account of grazing of cattle in his field, but same was denied by her. As regards the raising alarm by victim Mohini during the occurrence of the incident, she did state to police in her complaint that when her daughter tried to shout, the accused kept his hand on her mouth, but could not assign any reason for non-mention thereof in the complaint, amounting to omission in her statement and improvement in her testimony. 12 She further stated that there are two groups in her village, one is (9) Cri. Appeal No. 229 of 2010 headed by advocate Datal and another headed by Madhukar Patil and Madhukar Patil is maternal uncle of the accused and he was the Chairman of the Society since last 15 years and party of Datal was always defeated in the election. Hence, suggestion was given to her that due to the said election disputes, she had filed false case against the accused, but same was denied by her. She further stated that her husband used to sit with Datal advocate. Suggestion was also given to her daughter is of extraordinary nature, but same was denied by her. She further stated that Bablu Swami is from her vicinity. Moreover, it was also suggested to her that there were illicit relations of her daughter with Bablu Swami, but same was denied by her. It was also suggested to her that the accused has not committed rape on her daughter and she filed false case against the accused, but same was denied by her. It was further suggested to her that for withdrawing the case, she demanded Rs. Two Lacs, but same was denied by her. 13 Coming to the testimony of PW5 Mohini prosecutrix, she stated that on 3.1.2009 her parents had gone to the field and she and her sister were at home; whereas her brother had gone away to play. At this stage at about 5.00 p.m. she had gone to the shop of Arvind to purchase snacks (khara) and one Shriram was present there. However, the accused sent him out of the shop. Thereafter PW5 Mohini gave Rs.2/- to the accused to purchase snacks. At this juncture, accused Arvind pulled her inside shop by holding her hand. Thereupon, she attempted to shout, but the accused put his hand on her mouth and closed the door of the shop and removed her nicker and caused her to lie down and (10) Cri. Appeal No. 229 of 2010 thereafter removed his underwear and inserted his penis in her private part, and thereby she felt pain. She also stated that he threatened her that he would kill her if she told the said incident to anybody. She further stated that she started bleeding on her private part and some blood had fallen in the shop. She further stated that while she was returning to her house, three people were sitting beneath the tree on the platform, who included Pradip Patil, Balaji Datal and Shrimant Datal. She told them about the said incident and thereafter returned to her house and informed her sister about the said incident. Accordingly, her sister informed the same to PW7 Damyanti Shinde, who was coming from the field. At that time, PW5 Mohini was washing her clothes having blood stains thereon. Thereupon, Damayanti asked her what had happened. Thereafter, she informed her about the incident. Thereafter, when her parents returned from the field, PW7 Damyanti told them about the said incident. Thereafter, at about 9.00 p.m. on the same day, she went to police station along with her parents and police personnel made inquiry with her and took her to the doctor and doctor examined her. She further stated that she knew the accused Arvind and identified him in the court. She also identified her clothes i.e. frock and nicker from muddemal property, which were worn by her at the time of incident. 14 During cross-examination, she stated that her house is situated at one corner of the village, whereas the house of the accused is situated at another corner of the village and she admitted that the shops of Kantappa Belure and Bhimrao Datal are near her house. As regards topography of the shop, she stated that there was wooden counter of 3 feet in the said shop and one person (11) Cri. Appeal No. 229 of 2010 cannot go by crossing that counter and the shop of the accused is situated in his house. She further stated that 2-3 families were residing in the house of the accused Arvind and the said persons always used to come and go from the main door of the house and the shop is situated adjacent to the said main door. She also stated that there was one small door for entering into the said house from the shop and the persons coming and going used to be visible from the said door. She further stated that there is house of one Swami Madam in front of the shop of the accused and the said shop is visible from the said shop of Swamibai and the house of Swamibai is also visible from the said shop. She stated that the said shop was having one iron shutter and the doors were of wood planks. She further stated that the said shop of the accused was situated in the crowded area and there used to be regular customers. As regards the occurrence of the incident, she stated that accused Arvind pulled her by right hand holding her left hand. She further stated that when accused caught hold of her, she shouted, but he kept his hand on her mouth She further stated that shop of the accused is fully loaded with grocery articles. As regards alleged rape committed upon the victim, she stated that the accused removed her nicker by his left hand and at that time his right hand was on her mouth. She further stated that he also removed his jangya and inserted his penis and moved for 2-3 times. It was suggested to her that the clothes seized by police personnel did not belong to her, but same was denied by her. She further stated that the house of Damyanti was situated adjacent to her house, but denied that she had not told about the incident to her. It was further suggested to her that when she went to purchase snacks, other customers were also present there, but same (12) Cri. Appeal No. 229 of 2010 was denied by her. As regards the presence of Shriram in the said shop, omission in her statement and improvement in her testimony was brought on record. Suggestion was given to her that there was quarrel between the father of the accused and her father on account of grazing cattle, but same was denied by her. It was also suggested to her that her parents were trying to compromise the matter, but same was denied by her. It was further suggested to her that in order to harass the accused they lodged the false complaint on the say of people from the group of her father, but same was denied by her. However, she categorically stated that the accused Arvind is her cousin brother. 15 That takes me to the testimony of PW6 Pradit Patil, who has stated that he knows accused Arvind and victim Mohini and on 3.1.2009 at about 5.00 to 5.30 p.m. he was sitting on the platform under the tree along with Shrimant Datal and Balaji Datal. At that time, he saw daughter of Hanumant Datal, namely Mohini coming there crying. Hence, they asked her why she was crying. Thereupon, she informed that she had gone to the shop of accused Arvind to purchase snacks, but he pulled her in the shop and committed rape on her. PW6 Pradip Patil further stated that he saw blood lying on her legs. Hence, he sent her in the house and they went towards the shop of the accused. However, the accused had ran away by keeping the shop open. He also identified the accused before the court. 16 In the cross-examination, he stated that accused belongs to his brotherhood. He also stated that on 3.1.2009 there might be Sunday and it was (13) Cri. Appeal No. 229 of 2010 the market day in Latur. Hence, suggestion was given to him that he was present at Latur and not at the village, but same was denied by him. He also stated that he does not know whether there were two groups in the village, out of which one is headed by Madhukar Patil and another is headed by advocate Datal. He also denied that accused Arvind Datal is nephew of Madhukar Patil. He further stated that he is not concerned with any group of the political party. He further stated that he is not aware whether in the election persons from the group of Madhukar Patil was elected. He also denied that the accused and his father are from rival group, and therefore, he deposed against them falsely. Accordingly, it is the case of Pradip Patil that he is the first person to whom victim Mohini informed the occurrence of the incident that she was ravished by the accused. 17 Coming to the deposition of PW7 Damayanti Shinde, who stated that she knows victim Mohini as well as accused Arvind. She also stated that about one year back at about 5.00 to 5.30 p.m. victim Mohini and her sister Pushpa called her and informed that something happened to Mohini and Mohini was in bathroom washing something. Then she asked Mohini what had happened. Thereafter she disclosed her that Arvind committed rape on her. Thereafter she returned to her house. Thereafter mother of Mohini i.e. complainant Ranjana came from agricultural field and PW7 Damayanti informed her about the incident. In the cross-examination, she stated that her daughter in law was present in her house on the relevant day. She also stated that police personnel recorded her statement as per their own mind. She also denied that she is deposing falsely that Mohini told her that accused committed rape on her. (14) Cri. Appeal No. 229 of 2010 Accordingly, PW7 Damayanti is also the neighbourer of victim Mohini, whom victim Mohini and her sister Pushpa narrated the occurrence of the incident of committal of rape by the accused on her. 18 Coming to the testimony of PW4 Prabhakar Datal, who is the panch witness, in whose presence clothes of the prosecutrix were seized under seizure panchanama (Exh.27) on 4.1.2009, as well as cotton swab was seized under seizure panchanama (Exh.21), and in whose presence accused made voluntary statement under memorandum panchanama (Exh.28) and thereafter the clothes were seized under recovery panchanama (Exh.29) at the instance of the accused on 9.1.2009. He stated in his deposition that on 4.1.2009 he acted as panch at the request of police personnel and another panch PW2 Narsing Datal was along with him and they went to the house of Mohini along with police and seized one frock and nicker of the victim in their presence under seizure panchanama (Exh.27). Thereafter he went to the shop of the accused Arvind along with the police and victim Mohini and some blood was lying in the said shop and police personnel collected the said blood by cotton swab in plastic bag and same was seized under panchanama (Exh.21). He further stated that on 9.1.2009 he was called to the police station and at that time one Balaji Datal was present there and accused Arvind made voluntary statement, which was recorded under memorandum panchanama (Exh.28). Thereafter, the police personnel seized one bag of clothes at the instance of the accused under seizure panchanama (Exh.29). He also identified the accused as well as seized articles in the court. During cross-examination he stated that panchanama (Exh. (15) Cri. Appeal No. 229 of 2010 27) was prepared between 7.00 to 7.30 a.m. However, he was unable to tell the Grampanchayat number of the shop of the accused. Hence, suggestion was given to him that police personnel wrote the panchanama as per their wish and he signed thereon, but same was denied by him. He also stated that panchanama (Exh.21) was prepared on 4 th January, but he was unable to state whether blood stains were dry or wet. It was also suggested to him that he was not present at the time of any panchanama and he signed the panchanamas only to harass the accused, but same was denied by him. He further stated that he does not know which clothes were worn by the accused on the relevant day. Suggestion was