1 Cri.Appeals-1357-1586.04 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1357 OF 2004 1. Sharad Baban Chavan, aged 25 years, 2. Jawaharlal Santosh Chavan, aged 25 years, 3. Deepak Supadu Chavan, aged 28 years, All above resident of Lulle, Taluka Malegaon, Dist. Nashik. ... Appellants Versus The State of Maharashtra, through P.I. Vadner Khakurdi Police Station, Taluka Baglan, Dist. Nashik ... Respondent WITH CRIMINAL APPEAL NO. 1586 OF 2004 The State of Maharashtra, through P.I. Vadner Khakurdi Police Station, Taluka Baglan, Dist. Nashik ... Appellant Versus 1. Sharad Baban Chavan, aged 25 years, 2 Cri.Appeals-1357-1586.04 2. Jawaharlal Santosh Chavan, aged 25 years, 3. Deepak Supadu Chavan, aged 28 years, All above resident of Lulle, Taluka Malegaon, Dist. Nashik. ... Respondents Mr. Jagdish G. Reddy for the appellant in Appeal No. 1357 of 2004. Ms. S.V. Gajare, A.P.P. for the respondent no. 1/State in Appeal No. 1357 of 2004 and Appellant/State in Appeal No. 1586 of 2004. Mr. Sachin U. Dhakephalkar for respondent no. 1 in Appeal No. 1586 of 2004. CORAM : NARESH H. PATIL & K.U. CHANDIWAL,JJ. DATED : JULY 27, 2011 JUDGMENT : (Per K.U. Chandiwal,J.): 1. These two appeals arise out of the judgment of conviction recorded by the learned Ad hoc Additional Sessions Judge, Malegaon in Sessions Case No. 26 of 2004. The accused appellant questions the conviction for the offence punishable under section 376(2)(g) of I.P.C. directing each of them to suffer R.I. for five years. The State also challenge the sentence as the State feels that punishment should be 3 Cri.Appeals-1357-1586.04 maximum. 2. The victim and accused appellants are residents of village Lulle. The victim is aged 13 years born on 1.6.1989. On 18.11.2003, victim with three girls went to the land belonging to Sharad Appellant no. 1 to harvest the cotton crop as labour at the rate of Rs.25/- per day. At around 6.00 p.m. since the labour work was complete, the victim with other girls left the field. At such time, Sharad insisted the prosecutrix to wait to keep bundle of cotton. Appellant nos. 2 and 3 also reached the spot. The appellant no. 3 caught hold the prosecutrix, dragged her in the cotton crop, mounted on her and thereafter, the appellants committed sexual assault upon the victim/prosecutrix. 3. The prosecutrix returned home late in the evening. She did not immediately disclose the events to her mother. However, she had severe pains in her stomach. She conveyed the same to her mother. Consequently the prosecutrix was taken by the parents to the clinic of Dr. Merchant for treatment. It was at that time, Dr. Merchant on examination informed the father that prosecutrix is sexually abused. Resultantly, shattered parents took the prosecutrix in confidence and 4 Cri.Appeals-1357-1586.04 cajoled her to disclose the episode. They were stunned to learn her plight. The parents got themselves assured that such barbaric act has indeed taken place, they approached on 23.11.2003 to police, lodged report vide Crime No. I/84/2004 against the accused appellants. On 24.11.2003 the victim/prosecutrix was medically examined. The Medical Officer Dr. Sreelekha confirmed sexual abuse to prosecutrix and her age to be 13 years. On 24.11.2003 the accused appellant no. 1 and 2 were arrested while on 25.11.2003 accused/appellant no. 3. Birth certificate of the prosecutrix was collected. Seized articles were sent to the office of Chemical Analyzer, Aurangabad for examination. Chargesheet against all the accused was furnished before the learned Judicial Magistrate, First Class and it was committed to Sessions Court. Charge for the offence punishable under section 376(2)(g) and 506 read with 34 of I.P.C. was explained to the accused. The accused challenge the same and claimed to be tried. Their defence is of false implication and involved due to political rivalry. 4. We have extensively heard the learned counsel for the appellants as also the learned A.P.P. for State. Read the evidence. The counsel submits that Dr. Merchant is a material witness and the parents of the 5 Cri.Appeals-1357-1586.04 victim are not examined. The evidence of prosecutrix belies the logic. The birth record is not coherently proved. No ossification test is carried. The learned A.P.P. for State submits that the age of the victim is provenly 13 years, She was threatened to face consequences of her siblings. She had stomach pain and consequently she was taken to Dr. Merchant. She did not initially rope in the accused appellants. The injuries on her body are sufficient to disclose the violence she has faced. The C.A. reports are also sufficient to implicate the accused. The learned A.P.P. submits five years' imprisonment is inadequate. It should have been maximum as the victim was labour working at the rate of Rs.25/- per day and accused/appellants misused her poor position. 5. It is denied that credulous parents could risk future prospects of their beloved to politically involve the accused as they themselves are hand to mouth and fighting against situation. 6. The prosecution case is unfold by eight witnesses, PW 1 is prosecutrix (her name is kept in wrappers in tune with section 228A of Indian Penal Code), PW 2 is Dr. Srilekha who has examined the prosecutrix. PW 3 Manohar Dusane, Headmaster in Zilla Parishad 6 Cri.Appeals-1357-1586.04 School at Lulle. The prosecutrix was admitted in Zilla Parishad school on 15.8.1995. The witness has produced general register maintained by the school and entry at 935 is relating to prosecutrix showing her date of birth as 1.6.1989 (School leaving certificate Exh. 23). PW 4 Natha Sampat Suryawanshi stated that on 21.11.2003 while he was talking with Santosh, accused no. 1 Sharad was standing on the road before him. Then Jawaharlal, accused no. 2 came and disclosed to accused no. 1 Sharad that they had a fun in the cotton crop belonging to accused Sharad. He also states that the prosecutrix told him on 23.11.2003 of the accused appellant taking her to the agricultural field and sexually abusing her. He accompanied the prosecutrix to Wadner police station on 23.11.2003 and report is filed. P.W 5 Prakash Patil agreed to act as panch at the spot where two broken plants of cotton were taken charge (Panchanama Exh. 29). PW 6 Dr. Bapu Pandit Bawiskar deposed, on 24.11.2003 in the night the prosecutrix was brought at the hospital for examination. He referred her to Rural Hospital for examination by a lady Medical Officer. PW. 6 had on 24.11.2003 examined accused Sharad Chavan wherein he stated alleged history of assault by people on 24.11.2003 at about 7.00 pm as there was one contusion on right scapular region of accused Sharad. The duration of the injury was within 7 Cri.Appeals-1357-1586.04 36 hours. He has also certified that accused appellant Sharad was potent and capable of sexual intercourse. He had collected blood sample, semen and pubic hair of accused appellant Sharad Chavan for examination (Exh. 31). PW 6 Dr. Bapu Bawiskar has also examined accused appellant Jawahar Chavan. He was also assaulted by public on 24.11.2003. He had long contusion over his back. He was potent and competent to perform sexual intercourse (Exh. 32). He had abrasion on right side of nipple. Dr. Bapu Bawiskar has also examined the accused appellant Deepak Chavan and certified that he was potent and competent to perform sexual intercourse (Certificate Exh. 33). PW 8, Police Inspector Kishore Navale has recorded report of the prosecutrix and carried investigation in the matter. 7. On reading the evidence of witnesses, statement under section 313 of Cr.P.C. following points can be said to be not controverted : (a) The accused/appellants, prosecutrix and witnesses are residents of the same village. (b) The prosecutrix and her female friends were engaged as casual labour on the agricultural field gut no. 157/1 8 Cri.Appeals-1357-1586.04 belonging to Sharad established by revenue records. (c) The accused/appellants were manhandled on 23.11.2003 owing to the incident by villagers and were examined by PW 6 Dr. Bapu Bawiskar. (d) The accused/appellants are potent and competent to perform sexual intercourse. 8. The entire case revolves on the narration of PW 1 prosecutrix. Before dwelling upon her evidence to its worth, let us examine her physical and mental development whether could falsely implicate the accused on either political ground or otherwise. The victim even after the un-glorified events, though was broken did not inform her parents. It was only due to sufferance of stomach-ache she informed her mother of the same and consequent upon which she was taken to the clinic of Dr. Merchant by her father. Her father did not dream of any such abrasion with his daughter or atmosphere of hostility and violence from the employer or youths. It was an unfortunate event that Dr. Merchant on examination suspected that the prosecutrix was the victim of sexual abuse, situation revealed a blast to the jittery of parents. Consequent upon disclosure, they took the prosecutrix in confidence and she 9 Cri.Appeals-1357-1586.04 narrated the ravish events. Curiously when the prosecutrix was examined by PW 2 Dr. Srilekha, hesitation, hostility in her mind was enduring and she was reluctant for medical examination. PW 2 Dr. Srilekha informs that the victim was virtually crying at the time of medical examination. This is even stated by her in medical certificate Exh. 20 as the victim was mentally disturbed and was crying on questioning though her gate was normal, she was moderately built, her weight was 38 kgs. 9. Evidence of PW 1 proseucutrix was recorded by the learned Additional Sessions Judge on 7.9.2004 virtually after 9 to 10 months of the events. In Paragraph 2 of her version, she has furnished the account of events having taken place on 18.11.2003. It is true that the prosecution should have examined female friends accompanying the victim and leaving her back. However, that by itself will not defuse the statement of PW 1. The victim worked in the field upto 6.00 pm and as other girls left, appellant Sharad asked her that she should stay and cooperate to lift gunny bags. She complied. Thereafter, it was Deepak and Jawaharlal who came on motorcycle. Deepak dragged her hand and made her to lie in the cotton crop. He lifted her gown, removed her 10 Cri.Appeals-1357-1586.04 nicker and had forceful sex with her inspite of her shouting and resisting. Accused Deepak threatened her she should not make any hue and cry. After Deepak moved away, accused Sharad undressed himself below the waist and committed sex. It was thereafter Jawahar who had committed sex. She has stated it was one after another. When she was to leave the filed, she was threatened by Sharad that disclosure of the event to anybody would entail to death of her brother. She went home and she could not dine and went to sleep. Thereafter she complained of stomach-ache and examination by Dr. Merchant. The objection of the defence that Dr. Merchant was imperative to be examined is inconsequential as he has simply advised based on his examination. He did not accelerate the prosecution case based on any prior recording of events or on any grievance of the prosecutrix. It was a clinical examination. 10. The proseuctrix accept that she has been referred to Medical Officer for examination by PW 2 and accordingly examined. She has identified her FIR at Exh. 18. Though she is studied upto 4th standard, she was plain enough to inform she could not read and write. She accepted having born at village Lulle where Gram Panchyat exists. She gave the ages of her brother Nilesh as 9 years, Meenal as 10 years and 11 Cri.Appeals-1357-1586.04 Pravin about 6 years old. She could not instantly gave her age. However, it will not amount to supplantment on her part to avoid quoting correct age. She was unable to read watch. She could not quote the date, month and year of the incident. Though she says she do not give the age however recorded the same in the FIR by itself will not deflate its worth. She disclosed that in the field where she was dragged, the height of the cotton crop was upto chest. Even if she did not disclose the incident while returning to the villagers standing on the road, that in normal circumstance will not shatter worth of her evidence as the shameless act of the accused was not such glorifying event to be made public. This mind set of the prosecutrix is accepted when she even did not disclose instantly the clamorous violence to her mother. 11. The events of sexual assault on the prosecutrix is established if one peruse the panchanama of spot, demonstrating frown situation, creating violence to the normal features of the cotton crop as around 10 sq. ft. of the area in the agricultural field was quite disturbed. 12. The prosecutreix/victim was of tender age and mentally disturbed. She has hardly studied upto 4th standard in village school and naturally does not proper reading or writing. She had indeed not persuade the lift realities as was seen during the evidence by the learned Judge, as he 12 Cri.Appeals-1357-1586.04 found she does not recollect the directions East, West and likewise. She was hesitant and confused about stating her age as she stated it could be 13 years and before two years also as 13 years. However, since it is seen from the record that the witness is credulous, little embellishment in her evidence will not distort her contention about sexual abuse while she was minor. 13. The distance of the agricultural field is 1 to 1.1/2 km away from Lulle and there is no habitation in nearby area. This was known to the accused to achieve their goal of committing heinous offence against the helpless and hapless victim. The medical evidence indeed supports to the narration of the victim as PW 2 Dr. Srilekha on examination of prosecutrix found that patient was mentally disturbed. Her secondary sex characters were developed, auxiliary hair present, public hair also developed, breast was developed, there were scratch mark on right side of the patient. There were nail mark on both sides of the neck. There were block swab on the injury, forchette of the patient was torn with irregular margin and tender. The medical officer having validly examined could not found trace of bleeding or touch. Radish brown vaginal discharge stuck to the finger of the doctor when it was tried to pasting by speculum. In the opinion of medical officer, that the above 13 Cri.Appeals-1357-1586.04 features were suggestive of rate. This is so indicated in the certificate Exh. 29. The tenor of the entire cross examination revolves to age of the victim though in clear tune and tone PW 2 has clarified that from the development of sexual characters, patient would be 13 years old. She agreed there may be variation from person to person in development of sexual characteristics. The climate and nutrition are responsible for the development. In rare cases, the development of secondary sexual organs may be belated. The simplicity of the prosecutrix and her mother is eloquent when they could not give exact date of birth to PW 2 even by asking. According to her, breast of the girl starts developing from the age of 12 to 14 years. It may be 13 to 14 years. She denied that the age of the prosecutrix was not 13 years. The scratch marks were present on both sides of the beck of the patient. She confirmed that the forchette was torn with irregular margin and tender and there was reddish brown vaginal discharge which the victim complain of pain during the examination which conclusively suggested of rape on her. Even if it is indicated there was little penetration, however that by itself will not mitigate or devalue the act of sexual abuse as the law on the point of rape is quite established and more effectively stated in Modi's Medical jurisprudence. 14 Cri.Appeals-1357-1586.04 14. In Modi's medical Jurisprudence while dealing with the chapter of rape, : "Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the judicial officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." 15. It is well settled principle of law that the evidence of prosecutrix, victim of rape cannot be accomplice. It is true in the case of rape, the evidence of prosecutrix attracts pre-dominant consideration. However, we could see this evidence would not be acceptable if the story 15 Cri.Appeals-1357-1586.04 projected by the prosecutrix is improbable and belies logic. Now reverting to the facts stated hereinabove, we find there is nothing to suggest that the prosecutrix desired to malign the reputation of the accused or that she or her parents had any political clout. It is pertinent, even accused do not hold any position in the political or social life. They merely appears to be vagabond and vexed mongers in the village. The prosecutrix was naive under the control of accused Sharad and unaware that she was being led deceitfully by him with a design to commit sexual offence. Whatever force she could apply to resist is naturally reflected which is suggestive even in the injuries suffered by her. Taking these aspects into consideration, we have no hesitation in accepting the version of PW 1 prosecutrix that she was sexually assaulted by the accused/appellant who were known to her belonging to the same village. 16. The panchanama at Exh. 40, 41, 42, 43, 44 and 45 which are proved through investigator as11 panch witnesses desisted to appear. This will not dilute the prosecution case as the nature of the panchanama collectively do not suggest any prejudice to the accused/appellant. 16 Cri.Appeals-1357-1586.04 17. The learned defence counsel put a question mark about the delay in reporting the matter to police. The law on this point is quite settled. The delay in all situations, cannot be fatal to the case of prosecution as the delay is to be considered in the background of the facts and circumstances in each case. The delay revolves to the appreciation of evidence by the court of fact. It is pertinent to note that after the incident, the prosecutrix did not immediately inform the same to her parents. It was only stomach ache which made her to put grievance of ailment and consequently was taken on the next date to Dr. Merchant. Thereafter report was lodged on 23.11.2003. The delay from 18.11.2003 is thus properly explained. EVIDENCE ON AGE : 18. The prosecutrix has informed that she was 13 years at the material time. Exh. 23 birth certificate shows her date of birth as 1.6.1989. The evidence of headmaster of the school (PW 3) has indicated that in the general register at Entry 953 the date of birth of the victim prosecutrix was recorded. She had passed forth standard. Based on the 17 Cri.Appeals-1357-1586.04 request of her parents, she left the school after such examination. The school leaving certificate tallies to the entries in the general register. On analyzing the school leaving certificate, we have no element of doubt in our mind to accept that the prosecutrix was 13 years at the material time when she was sexually ravished. Non examination of parents by itself would not be a feature to castigate her birth record. Even PW 2 Medical Officer on analysis of physical features has opined that the victim was 13 years old on examination. Even if any margin of plus or minus 1 or 2 years as proposed by the appellant is considered, in all circumstances will not exceed upper limit of 16 years. The court should not take hyper technical approach for determining the age of the victim. It is to be determined while appreciating the evidence adduced on behalf of the victim. Uncle of victim PW 4 Natha identifies victim to be his niece and informs that she was employed as daily-wager with accused appellant Sharad with other girls. He endorsed the date of birth of victim/prosecutrix as 1/6/1989. However, he could not give such birth dates of Pravin, Nilesh and Minal, the other siblings of the prosecutrix/victim. He informs, the birth certificate of prosecutrix was obtained from Gram Panchayat and consequently he recollects the date of birth. He disputed that he is associated with any political party. The 18 Cri.Appeals-1357-1586.04 age determination given does not call for any question mark upon the version of victim to be 13 years. We in the set of above facts hold that the prosecutrix/victim was minor, 13 years old at the time of incident. 19. Taking survey of the evidence and the documents, we find that the prosecution has proved that the prosecutrix/victim was sexually ravished when she was oscillating between 12 to 13 years and consequently offence punishable under section 376(2)(g) has taken place. The accused during the course of such illegal transaction, caused criminal intimidation to the prosecutrix/victim as she was threatened with any injury to reputation or to her siblings, the offence punishable under section 506 of Indian Penal Code is also established. The appeal of the appellants lacks merit. ENHANCEMENT OF PUNISHMENT : 20. Now turning to the enhancement of punishment (State Appeal), the learned A.P.P. submits that the imposition of sentence of 5 years is inadequate and not in consonance with the scheme as contemplated in section 376(2)(g) of the Indian Penal Code. Section 376(2)(g) reads as 19 Cri.Appeals-1357-1586.04 under : "376. Punishment for rape.-- (1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- .......................................... (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." Section 376(2)(g) deals with committing gang rape and the punishment provided is rigorous imprisonment for the term which shall not be less than 10 years but which may be life and shall also be liable to fine. Provided that the the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment of 20 Cri.Appeals-1357-1586.04 either description for a term of less than ten years. Turning to the judgment of the learned Sessions Judge on this aspect, we find that the learned Sessions Judge was persuade on the