1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1230 OF 2004 Marappa @ Gurusidha Bhimrao Padavale .. Appellant (Orig.Accused No.1) Versus State of Maharashtra .. Respondent Mr.P.R.Arjunwadkar for appellant Mr.R.Y.Mirza, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 11th/12th September 2006. ORAL JUDGEMENT:- . This Criminal Appeal is by the original 2 accused No.1 challenging the judgement and order delivered by the IIIrd Ad-hoc Assistant Sessions Judge, Solapur dated 31st August 2002 in Sessions Case No.103 of 2002. Learned Sessions Judge has convicted the Appellant under section 366 read with 34 I.P.C. and sentenced him to undergo rigorous imprisonment (RI) for two years and fine of Rs.500/- and in default of payment R.I. for fifteen days. Further, the learned Judge has convicted the appellant for offences punishable under sections 376 of I.P.C. and sentenced him to undergo R.I. for seven years and fine of Rs.500/- with identical stipulation in Default of payment. Learned Judge has also convicted the appellant under section 354 of I.P.C. and sentenced him to R.I. for three months and fine of Rs.250/- and in default to undergo R.I. for one week. It is directed that the sentences passed against him shall run concurrently. 2. Prosecution’s case in brief is as under:- 3 . Prosecutrix/victim, whose name need not be set out in accordance with the judgement of the Supreme Court, was residing along with her mother Vimal who is accused No.2 and brother Ganesh at Ambika Nagar, Village Bale in Solapur Dist. It is alleged that she was studying in Yashoyash School at Village Bale in VIth Std. It is alleged that the appellant was teaching Mathematics to standard VI in which the prosecutrix was pursuing her studies. It is further alleged that the appellant insisted on marrying the prosecutrix/victim. It is alleged that the appellant used to embrace the prosecutrix/victim in the class room and, therefore, she stopped attending school since October 2000. Further, the appellant was residing near the house of victim. Accused No.2 who is mother of the prosecutrix was working as his cook. It is alleged that after the victim/prosecutrix gave up education at the 4 school, yet, the appellant was coming to her house. Her brother used to object to his visits at their house. It is alleged that the mother also asked the accused No.1 to change his residence. For about 15 days before the incident, the appellant shifted his residence to Nehru Nagar. However, even thereafter, he was visiting the house of paternal aunt of prosecutrix, Kaveri, who is residing adjacent to the house of prosecutrix and was also discussing something with the accused No.2. . On 21st December 2000, the mother (A-2) asked the prosecutrix to accompany her. It is alleged that she told the prosecutrix that she will have to marry accused No.1 - appellant before me. Accordingly, accused No.2 took the prosecutrix to Nehru Nagar Bus stop where the appellant was waiting for them. The appellant took accused No.2 and the prosecutrix to his house. He put Mangalsutra around prosecutrix’s 5 neck and a chain on her ankle/foot. After taking lunch, the appellant accused took accused No.2 and prosecutrix to his maternal uncle’s house at Village Chanegaon Taluka Indi Dist.Vijapur. The allegation is that appellant introduced the prosecutrix as his wife to his maternal uncle Parsappa Pujari. The prosecutrix and the appellant stayed in the house of said Pujari. It is alleged that after dinner, the appellant and the mother of prosecutrix so also the prosecutrix went to bed in one room. Later at night, the appellant had forcible sexual intercourse with the prosecutrix. 3. On 22nd December 2000 at about 7.00 a.m. the maternal uncle of the appellant Parsappa Pujari took the prosecutrix and appellant No.2 to the house of one Suresh Patil. Suresh Patil made enquiry with the prosecutrix whether she was ready to marry the appellant. The prosecutrix told the said Suresh Patil that she would consult 6 her brother and, thereafter, decide about her marriage. After this, the maternal uncle of the appellant asked prosecutrix and appellant to return back to Solapur. Accordingly at 7.00 p.m. on 22nd December 2000, prosecutrix and the appellant returned to Solapur. 4. Prosecutrix went to the house of her grandfather Shrikrishna Sutrale who resides at Manjusha Society and met her brother Ganesh. She narrated the incident to her brother. He confirmed the incident from mother accused No.2. Thereafter, on 23rd December 2000 the brother brought the prosecutrix to Navipeth Police chowky where she lodged F.I.R. Exh.15. 5. Officer of the police station of Navipeth Police chowky sent the F.I.R. to Vijapur Naka Police station because, according to him, offence was committed within jurisdiction of Vijapur Naka police station. Accordingly, the offence was 7 registered at Vijapur Naka police station on 24th December 2000. During investigation, the concerned police officer noticed that the offence had been committed at Village Bale and Nehrunagar and both places are within the jurisdiction of Fauzdar Chowdi police station. Accordingly, on 25th December 2005 Crime No.293 of 2000 came to be registered at Fauzdar chawdi police station. 6. The prosecutrix was referred to medical examination at civil hospital, Solapur. The appellant came to be arrested and he was referred to medical examination. I.O. P.W.4 seized Mangalsutra and Ankle chain from the prosecutrix in the presence of Panch witnesses. Prosecutrix showed the scene of offence to the police. Accordingly the I.O. prepared Panchanama of scene of offence (Exh.18) in the presence of Panch witnesses. Clothes of the appellant as also the prosecutrix were seized in the presence of Panch witnesses (Exh.27 and 28). I.O. 8 recorded statement of witnesses. He seized school leaving certificate of the prosecutrix (Exh.22) and leave application of the appellant (Exh.23) from the custody of Headmaster of Yashoyash school. Seized muddemal property has been sent to chemical analyst. I.O. received the medical certificate of the prosecutrix and the appellant (Exh.16 and 17 respectively). He also received report of C.A. (Exh.30 and 31). After completion of investigation, charge sheet came to be filed against the appellant in the Court of Judicial Magistrate, Solapur who inturn committed the same to the court of sessions under section 209 of Cr.P.C. 7. Initially both accused were enlarged on bail but subsequently, they remained absent and therefore, they were arrested under execution of warrants and since then, they are in custody. 8. Learned Assistant Sessions Judge to whom 9 the case was committed for trial framed charges against both accused for offences punishable under the above referred provisions of I.P.C. In addition, as far as appellant is concerned, charge was framed against him for offence punishable under (Outraging of Modesty and Rape) section 354 and 376 vide Exh.2. Accused pleaded not guilty and claimed to be innocent. In other words, he claimed to be tried. 9. Defence of the appellant in the case is that he is falsely implicated therein because he refused to marry the prosecutrix/victim. The brother of victim was insisting on his doing so. He specifically denied the charge of rape and all allegations in that behalf. The mother was also named as accused No.2 and it is her defence that she had advised prosecutrix to marry the appellant which she refused and, therefore, she is falsely implicated in this case. 10 10. P.W.1 was naturally the prosecutrix. In her deposition she has stated that she was studying in Yashoyash Highschool Bale in VI std. She resides along with her mother Vimal, sister Suman and brother Ganesh. Her mother was working as a cook and brother was working at stationary shop at Solapur. Appellant was her Maths teacher. He used to reside in a house adjacent to her place as a tenant. Mother of prosecutrix used to prepare food for the appellant in his house. She stated that during school hours the appellant used to press her breasts and threatened that if she discloses anything against him, that would entail serious consequences. He embraced her for about six months. 11. The prosecutrix further stated that one of the teachers Mr.Bhalerao saw the appellant embracing her. He scolded the appellant. After this incident, the prosecutrix stopped attending the school. Her mother also stopped cooking food 11 for appellant. Appellant shifted his residence to Nehru Nagar. The appellant started coming to paternal aunt of prosecutrix for meals. Paternal aunt of prosecutrix resides behind their house. 12. Prosecutrix, thereafter, narrated the incident of 21st December 2000 referred to above and specifically stated in her deposition that "myself and accused No.1 slept in one room on a cot whereas my mother slept outside the room". 13. She further stated that appellant removed her clothes forcibly. He also removed his clothes. Thereafter the appellant committed rape on her. 14. She then referred to the visit at Maternal uncle’s place at Chanegaon. She has also referred to the event leading to the lodging of F.I.R. and her medical examination. She stated that the Articles at Sr.Nos. 6 to 10 12 under the seizure panchanama are her clothes. She gave her date of birth as 7th November 1987. 15. The Advocate appearing for appellant cross examined the prosecutrix at length. She admitted therein that the appellant is handicapped. He is suffering from Polio. She admitted that prior to joining Yashoyash school, she was studying in Chandak High School, Bale. She admitted that she failed twice or thrice in Chandak high school. She further stated that Yashoyash school is a co-Ed. school and in all there were thirty students. She further states that the appellant was teaching her Maths. She stated that after his period was over some other teacher used to come in the class for teaching other subjects. The school timing was from 11.00 a.m. to 5.00 p.m. She admitted that she used to attend the school at 11.00 a.m,. and returned home at 5.00 p.m. Sometimes, she would return after 3.00 p.m. and while returning she used to 13 come with her friends. To a suggestion that the appellant used to collect fees from students, she said that the same is not true. 16. At para 9 of her deposition, she states thus:- ". I did not give any written or oral complaint against accused No.1 to anybody, after the alleged incident of embracing. It is true that I did not inform police about the incident of embracing. It is true that I did not inform police about the incident of breast pressing and embracing in my F.I.R." 17. She admits that after joining Yashoyash school she did not pay fees of the school. To a suggestion that a quarrel took place between her 14 brother and the appellant over payment of fees, she has denied the said suggestion. She also denied the suggestion put to her that her brother was assaulted by teachers of her school including appellant No.1. To a suggestion that she was removed from the school because she did not pay fees thereof, she denied the said suggestion so also the suggestion that her brother was having a grudge against the appellant after the prosecutrix was removed from the school. 18. She has specifically admitted that her father has left their house four years back and nobody knows his whereabouts. She is being looked after by her mother. She admits that there are several houses around the house of appellant at Nehru Nagar. She stated that she raised shouts when the appellant forcibly tied Mangalsutra and ankle chain. She had resisted and raised shouts while proceeding to Chanegaon. However, she admits that she did not inform the 15 people who met her on way that the appellant was taking her forcibly. To the suggestions put during the course of cross examination, she replies in the negative. 19. However, in para 13 of her deposition this is what is stated:- ".I had stated before police that accused No.1 used to visit house of my aunt Kaveri Namdeo Sutrave for meals. I cannot assign any reason why said fact is not mentioned in my statement. I had stated before police that in the house of maternal uncle of accused No.1 my mother slept out side the room. I cannot assign any reason why said fact is not mentioned in my statement. I had stated before police that accused No.1 removed my clothes forcibly, similarly he had removed his clothes. I cannot assign any 16 reason why said portion is not mentioned in my statement of F.I.R. It is not true that accused No.1 was not ready to marry me. It is not true that accused No.1 had called paternal uncle, aunt and other persons who decided not to marry me. It is not true that as accused No.1 refused to marry me, therefore myself, my brother got annoyed and angry and filed false case. It is not true that it was desire of my brother that I should marry with accused No.1 as I had given up my education." 20. She also admits that at the time of lodging F.I.R. her grandfather and brother were present at the police station. To a suggestion that she has stated before the police that she had no grievance against the appellant, she said that the same is not true. However, she admits 17 that some statement was made by her grandfather, which is recorded by the police. As to whether the said statement was to this effect that the grand father has no grievance against the appellant, she denies the said suggestion. To a suggestion that she has lodged a false case because the appellant refused to marry her, she denies the said suggestion. 21. It is pertinent to note that the Advocate appearing for mother of the prosecutrix also cross examined the prosecutrix and in her cross examination by the Advocate for accused No.2, she admitted that financial position of her mother is very poor. She was cooking food in two/three houses. She admits that in the morning of 21st December 2000, her mother had gone out to cook food. She once again denied the suggestion that a false case is lodged against her mother at the instance of her brother. 18 22. In the light of the order passed on Exh.24, further cross examination of the prosecutrix was conducted by the appellant’s Advocate and in para 16, this is what is stated:- "16. It did not happen that myself, accused No.1 and accused No.2 had slept on one cot at Chanegaon. Portion marked "A" in my F.I.R. namely "at night myself, my mother and accused No.1 slept on one cot in the room", had not stated by me before police. I cannot assign any reason as to why said portion is mentioned in my F.I.R." 23. During the course of cross examination by the appellant’s Advocate, and the mother the prosecutrix denied that she is deposing falsely against the mother to the effect that she brought her to Solapur for purchasing something but took her to Nehru Nagar bus stop. 19 24. The examination in chief was on 30th July 2000, whereas her cross concluded on 6th August 2002. Her statement before the police is recorded on 23rd December 2000. 25. The documents which are referred to by me as above were taken on record and marked as Exhibits. 26. The P.W.2 was one Bapurao Shankar Bhalerao, Head Master of the Yashoyash High School. It appears that he was declared hostile and the learned A.P.P. sought permission to cross examine him. 27. However, during the course of his examination in chief, the Head Master stated that the appellant was serving as a clerk cum teacher in the school and used to teach Maths and History. He was teaching students from Ist to 20 VIth. He admitted that the prosecutrix was studying in VIth std. in the school. Upon school leaving certificate being shown, the Head Master states that it is in his handwriting and bears his signature and contents are as per original register. He states that the same are correct and true and he verifies it. Thus, the leaving certificate is taken on record. P.W.2 has also referred to an application presented by the appellant for leave. The same was shown to him and he stated that the contents thereof are true and correct. After he stated in his examination in chief that neither the prosecutrix nor any other student reported to him the incident of embracing the prosecutrix in the class room, the A.P.P. before the trial court sought permission to declare him hostile. Thereafter, he was cross examined by the A.P.P. and also by the Appellant’s Advocate. 28. P.W.3 is one Jayashree who was in the 21 same class in VI std. She said during the course of her examination in chief that the appellant used to throw chalk sticks towards the prosecutrix and used to tell her that she should marry him. She goes ahead and states that the appellant used to press her breasts and she had seen the appellant telling the prosecutrix that she should marry him. She further stated in her examination in chief that the appellant told her not to disclose anything to Mr.Bhalerao. She admits that the police enquired about her and recorded her statement. 29. In the cross examination, however, she admits that the prosecutrix was residing at Ambika Nagar. P.W.3 was also residing there. She admits that her other classmates were also residing at Bale. She admits that she had not stated before the police that the appellant used to throw chalk sticks towards the prosecutrix. She admits that she did not state before the 22 police that the appellant asked her not to disclose the incident to Mr.Bhalerao. She specifically admitted that she used to narrate all events at the school to her elder sister. She admits that she did not lodge any complaint against the appellant regarding his alleged act. She also did not lodge any complaint against the appellant with other teachers. To the suggestion that she was deposing falsely, she denied the same. 30. P.W.4 is Arun Kadam who is P.S.I. For about 2 years, he was attached to Navipeth Police Chowki. He states that on 23rd December 2000 the prosecutrix came to lodge the F.I.R. and it was recorded by him. The F.I.R. was exhibited at Exh.15. In his examination in chief details are mentioned about registration of F.I.R. He also refers to the medical examination of both appellant and prosecutrix and seizures as above. The Panchanamas were, therefore, exhibited during 23 the course of his deposition. Leave application of the appellant was also exhibited together with the chemical analysts report. He further stated that he applied for addition of charge under sections 4 and 5 of Child Marriage Restraint Act. 31. During the course of cross examination by the appellant’s Advocate, the said witness admitted that he had recorded statement of neighbours of appellant. He admits that at Village Bale there is police beat. To a suggestion he states that it is not true that Ambika Nagar is at a distance of five minutes from Bale. However, the distance between two places, according to him, may be 2 and 1/2 kms. P.W.3 is residing at Ambika Nagar so also prosecutrix. He admits that he has recorded statement of prosecutrix twice. He also admits that he has recorded the statement of grand father of the prosecutrix. To a suggestion that both stated before him that they have no 24 grievance against the appellant, he denied the said suggestion. To another suggestion that he has not recorded statement of the witness as per their say, he denies the same. He admits that P.W.1 did not state before him that appellant used to visit house of her paternal aunt Kaveri for meals. Further, in his cross examination, he states thus:- ". .. P.W.1 did not state before me that accused No.1 removed her clothes forcibly. Similarly, he had removed his clothes. She did not state before me that accused No.2 had slept out of the room in the house of maternal uncle of accused No.1. The P.W.1 had stated before me portion marked "A" in her F.I.R. Exh.15. Said portion is at Exh.32". 25 32. To a suggestion that his investigation reveals that the prosecutrix was insisting on the appellant marrying her and upon his refusal, she lodged false complaint, he denied the same. In the cross examination by the mother, appellant No.2’s lawyer, he denies that the investigation had revealed that no offence is committed by mother but yet false case is registered against her. 33. These are the only witnesses examined by the prosecution. Appellant has not examined any witnesses in his defence. Similar is the position with regard to original accused No.2. 34. The learned Judge, thereafter, recorded statements of accused under section 313 of Cr.P.C. He heard arguments of learned A.P.P. on behalf of prosecution and the advocates appearing for appellant so also original accused No.2. He framed points of determination and recorded his 26 finding thus:- "Point No.1: Whether the prosecution proves that on 21/12/2000 at about 10.00 a.m. at Ambika Nagar, Village Bale, Solapur, the accused in furtherance of their common intention adbucted the prosecutrix with intent that she may be compelled or knowing it to be likely that she would be compelled to marry accused No.1 against her will or in order that she may be forced or seduced to illicit inter course or knowing it to be likely that she will be forced or seduced to illicit intercourse and thereby committed offence punishable under section 366 read with Section 34 of I.P.C.? Finding: Proved. "Point No.2: Whether it proves that on 27 21/12/2002 in the house of one Parsappa Pujari at Chanegaon, Taluka Indi, Dist.Bijapur, accused No.1 committed rape on prosecutrix Bhagyashree, a minor girl aged below 16 years and thereby committed offence punishable under section 376 of I.P.C.? Finding: Proved. Point No.3: Whether it further proves that since six months prior to 21/12/2000 at Yashoyash School, Bale, accused No.1 used criminal force to the prosecutrix intending to outrage or knowing it to be likely that he will thereby outrage her modesty and thereby committed offence punishable under section 354 of I.P.C.? Finding: Proved. 28 Point No.4: What Sentence. As per final order." 35. Consistent with his findings, he convicted the appellant as above and sentenced him. 36. The learned Judge has specifically referred to the admission of prosecutrix in her cross examination. In so far as the offences alleged under section 366 read with 34 I.P.C., the learned Judge has concluded that even if there are omissions in the testimony of the prosecutrix, the same will not affect the truthfulness of her positive evidence. According to learned Judge, the omissions are not contrary to the theory of prosecution. They can not termed as material or of such nature so as to discard her evidence completely or destroy the 29 story of prosecution. 37. Insofar as the plea of the appellant that the prosecutrix was insisting on him marrying her, the learned Judge observed that he is not inclined to accept the said defence because, the prosecutrix was looked after by her mother. She had left the school. It is her mother who is more interested in performing prosecutrix’s marriage as early as possible. The learned Judge in para 18 of the judgement has observed that circumstances are such that the mother wanted prosecutrix to marry the appellant and in order to perform such marriage, mother had taken the prosecutrix to the house of appellant. According to learned Judge, this story is not shattered in the cross examination and except suggestion, nothing is brought on record to establish that the mother never took the prosecutrix to the house of appellant and, thereafter to Village Chanegaon. It is in such circumstances that the 30 learned Judge refused to accept defence of appellant that because he refused to marry the prosecutrix, false case has been registered against him.