1 CriAppal-507-05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 507 of 2005 Prashant Laxman Aher, ) (At present detained at Yeravada ) Central Prison, Pune). ).. Appellant (Orig.Accused) Versus The State of Maharashtra ..Respondent Mr. V.V.Purwant, Advocate, for the appellant. Mrs. V.R.Bhosale, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 28th July, 2010. JUDGMENT: 1. The accused has preferred this Appeal challenging the judgment and order dated 5.4.2005 passed by the 3rd Adhoc Sessions Judge, Pune in Special Case No.21 of 2003 whereby the accused was convicted for the offence punishable under Section 376(2)(f) IPC and was sentenced to undergo R.I. for seven years and to pay fine of Rs.2,000/- and in default, to undergo further R.I. for six months. 2. Prosecution case, in brief, is that the accused was a teacher in the 2 CriAppal-507-05.sxw Primary school at Village Ajnavale, Tal. Junnar, where the prosecutrix, a girl aged about 11 to 12 years, was a student of 6th Standard. On 29.7.2003, the prosecurix went to school as usual. At about 3 p.m., the accused asked the prosecurix to bring a broom for cleaning the temple of Bhairoba and accordingly, she brought the broom. When she was in the temple, the accused made her sit on his thighs and then removed her nicker; he also opened the Zip of his pant and allegedly inserted his penis into the private part of the girl. She shouted, but the accused asked her not to disclose this fact to anybody. The accused also discharged semen in her private part. After the incident, the prosecutrix went to the school and then to her house. At about 7 p.m., her father P.W.1 Deoram came back from his field and found her in depressed mood. On enquiry by him, she told him about the incident. On the next day, PW-1 Deoram informed the police Patil and Sarpanch. On 31.3.2003, he went to the Police Station Junnar and lodged the report about this incident. On his report, Crime No.59/2003 came to be registered under Section 376 IPC against the accused. On the same day, the prosecutrix was referred for medical examination. Her clothes were seized under a panchnama. Blood samples and vaginal smear were collected. The accused was arrested on 5.8.2003 and he was also referred for medical examination. His clothes, blood and semen samples were collected. As the girl belonged to the Scheduled Caste, Section 3(1)(xi) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) 3 CriAppal-507-05.sxw Act, 1989 (for short, "the Atrocities Act") was also added. After investigation, the charge-sheet was filed in the Court of J.M.F.C., Junnar, who committed the case to the Court of Sessions. 3. Charges were framed against the accused under Section 376(2)(f) IPC and under Section 3(1)(xi) of the Atrocities Act. Accused pleaded not guilty. According to him, due the groupism among teachers in the school, a false case was lodged against him. After trial and hearing the parties, the trial Court convicted the accused for the offence under Section 376(1)(f) and sentenced him as stated above. He was acquitted of the charge under the Atrocities Act. 4. Heard the learned Counsel for the accused-appellant and the learned APP. perused the record and proceedings of the trial Court. 5. On behalf of the prosecution, in all 9 witnesses were examined. PW-1 Deoram is father of the girl and PW-2 is posecutrix herself. She has deposed the prosecution story in her evidence. Her father PW-1 Deoram also deposed as to how he came to know about the incident from his daughter. When he came to know, it was late in the evening. According to him, on the next day i.e. 30.7.2003, he informed the Police Patil and Sarpanch of the Village about this 4 CriAppal-507-05.sxw incident. However, as he did not have money for travelling from the village to the Police Station Junnar, he could not go to the Police Station on that day. On 31.7.2003, he went to the Police station and lodged oral report which was reduced to writing. Ex.18 is the report lodged by him wherein all the above details are mentioned. The report was recorded by PW-6 Parvatrao Kengle, who was PSO at the relevant time. After registration of the offence, he handed over the investigation to PW-7 PI Krishna Magdum. 6. Evidence of PW-7 PI Krishna Magdum shows that immediately after registration of offence, he went to the spot of occurrence and recorded spot panchnama Ex.23. He also seized the clothes of the prosecutrix under a panchnama Ex.21. The clothes included a petti-coat and nicker of the prosecutrix. These clothes were duly sealed and seized in presence of panch witnesses. PW-3 Maruti Lande and PW-4 Ankush Lande were the panch witnesses. PW-4 deposed about the spot panchnama, Ex.23 while PW-3 Maruti lande deposed about seizure of clothes vide panchnama Ex.21. Evidence of PW-7 PI Krishna Magdum shows that on the same day he referred the prosecutrix to the Cottage Hospital at Junnar and from there she was referred to the Sasoon Hospital, Pune, for examination. 7. PW-8 Dr. Santosh Gondkar was the Chief Resident Doctor at Sasoon 5 CriAppal-507-05.sxw Hospital, Pune, on 1.8.2003. According to him, on 1.8.2003, the prosecutrix was brought to the hospital from Junnar by Junnar Police. She gave history of rape by her teacher. Evidence of PW-8 Dr. Santosh Gondkar shows that on examination of the prosecutrix, he found : "Her general condition was stable. Secondary sexual characters were not well developed. On her genital examination: scratch marks with erythema about 3x3 cms patch was present on medial aspect on right thigh. The erythemotous were present on left medial thigh. Erythema was present on labia majora and perineum. While sludge like material was present on vulva. Hymen reddened and tendered but not torn or bleeding. One finger for vaginal examination was not possible. Pubic hairs were not developed." He opined as follows :- "Superficial genital injuries present, but no evidence of penetrative sexual intercourse. It suggests attempt of penetrative sexual intercourse." Accordingly, he issued a medical certificate Ex.40. He also deposed that he had collected semen samples. 8. Evidence of Dr. Santosh Gondkar also shows that the prosecurix was 6 CriAppal-507-05.sxw referred to the Sasoon Hospital for determining her age. As per the radiological test conducted by Dr. Bhosle and on physical examination, her age was found to be between 10 to 12 years. The medical report Ex.62 to that effect was admitted. Even the school leaving certificate of the girl revealed that the date of her birth was 23.6.1992 and on the date of incident, she was just 11 yeas 1 month and 6 days. 9. The accused was arrested on 5.8.2003. he was also referred for medical examination. His clothes were also seized. His medical report was admitted. It has come on evidence that the clothes of the prosecutrix, her blood samples and the vaginal smear as well as the samples of blood and semen of the accused were collected and referred to C.A. Exhibits 52 and 53 are the relevant C.A. reports. As per the C.A. report, on the petti-coat and nicker of the girl, semen and human blood were found and the semen was of Group "A". The blood and semen samples of the accused were also found to be of Group "A" as per the C.A. report Ex.53. the semen of the Group ":A" was also found on the under- wear of the accused. The presence of semen on the underwear of the accused would not be of much help in determining his guilt. However, the presence of the semen of "A" Group on the petticoat and nicker of the prosecutrix provides corroboration to the testimony of the girl that the accused had ejaculated semen. 10. It may be noted that even though according to the accused, he has been falsely implicated because of the groupism among the teachers in the school, no material has come on record on the basis of which this contention of the accused could be accepted. There is nothing on record that the prosecutrix or her father was related to any of the teacher who was on inimical relations with the accused It is well-settled position of law that the conviction in the case of 7 CriAppal-507-05.sxw rape can be based on the sole testimony of the prosecutrix without any corroboration because the prosecutrix in such case stands in position of a victim and not as an accomplice. There is no reason for P.W.1 Deoram and particularly his young daughter aged about 11 years to make such serious charge of rape on her and thus to bring her future life in difficulties. It is also settled position of law that even if it is necessary, Court can look for some assurance that the evidence of prosecutrix is truthworthy and this assurance may come from the medical evidence and C.A. report. In the present case, the medical evidence strongly corroborates the version of the prosecutrix. The scratch marks with erythema on her both thigs, Erythema on labia majora, presence of white sludge like material on vulva reddened and tendered Hymen go to show that rape was committed on her. It is true that hymen was not torn. That only indicates that the penetration was not complete, but even partial penetration into the private part of the woman is sufficient to commit the offence of rape. The C.A. report showing presence of semen of group "A" on her nicker and petticoat strongly corroborates her version. In view of this evidence on record, prosecution case is proved beyond reasonable doubt. Therefore, the trial Court was justified in convicting the accused for the offence of rape. The sentence awarded is just minimum as prescribed by law and it needs no interference. 11. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.)