( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 209 OF 2009 Shivaji s/o. Sahebrao Patole .. Appellant Age. 21 years, Occ. Labour, R/o. Jai Bhavani Nagar, Aurangabad. Versus The State of Maharashtra .. Respondent Shri A.B. Girase, Advocate for the appellant. Mrs. B.R. Khekale, A.P.P. for sole respondent. CORAM : P.R. BORKAR,J. DATED : 05.03.2010 ORAL JUDGMENT :- 1. This is an appeal preferred by the accused person who is convicted of offences punishable under sections 376 (1), 363, 392, 323, 506, 363 read with 511 and 292 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1000/- for offence punishable under section 376 (1) of the I.P.C. He is ( 2 ) sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 500/- for each offence punishable under section 363 & 392 of the I.P.C. He is further sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 200/- for offence punishable under section 323 of the I.P.C. For offence punishable under section 506 of the I.P.C., he is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-. For offence punishable under section 363 read with section 511 of the I.P.C. he is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- and for offence punishable under section 292, he is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-. All substantive sentences are to run concurrently. It is this order, passed by the Assistant Sessions Judge-4, Aurangabad, in Sessions Case No. 211 of 2007, decided on 22.09.2008, which is challenged in this appeal. 2. Briefly stated facts giving rise to this appeal may be stated as below :- . P.W.3, a 12 years old girl was niece of P.W.1- ( 3 ) Babybai Rathod and had come to her house for vacation. The said victim, who is hereinafter described as the “victim” and who is examined as P.W.3 at Exh.18, was sleeping along with P.W.1-Babybai, her husband Sudhakar Rathod, her son and daughter Chhakuli. The victim was sleeping on a cot with Chhakuli by the side of cot on which P.W.1-Babybai, her husband and their son were sleeping. They went to sleep at about 12 mid-night on 14.05.2007. At about 2.00 to 2.30 a.m. P.W.1-Babybai got up and saw that the victim was not there in the bed. Therefore, P.W.1-Babybai and her husband searched the victim nearby. Thereafter, Sudhakar Rathod, the husband of Babybai, made telephone call to police station. Police came and they also took search of the victim, but the victim was not found. In the morning of 15.05.2007 at about 8.00-8.30 a.m. some people found the victim crying. Her face was swollen. She was brought by one boy on a motor-cycle to the house of P.W.1-Babybai. P.W.1-Babybai and her husband calm down the victim. The victim disclosed that one man had lifted her with quilt, took her at some distance and started beating her. He also tried to gag her near railway line. He removed her salwar and nicker and committed rape on her. The victim raised shout. The culprit did not leave her but ( 4 ) committed rape. The culprit was talking in Marathi as well as in Hindi. He was black and slightly fat. At about 5.50 a.m. the culprit left the victim but the victim could not find her house. She also said that she could identify the culprit if shown. Thereafter, when the victim was crying, an old lady saw her. The old lady took the victim to her home, gave her milk and tried to soothe her. Thereafter, she sent the victim on the motor-cycle with her son to find out house of P.W.1-Babybai. That boy brought back the victim to the house of P.W.1-Babybai. The police were immediately informed. The victim was sent to hospital. Initially, she was examined by P.W.6-Dr. Jyoti Munde. Lateron, she was examined by P.W.11-Dr. Seema Parvekar. The complaint was lodged by P.W.1-Babybai. On the next day police drew spot panchanama, as shown by the victim. They also recorded statements of other witnesses. 3. It was found that on same night between 14th - 15th May, 2007, one person had tried to lift and take away P.W.4- Bhuri Pimpale, who was 10 years old girl, residing in Vishranti Nagar area of Aurangabad. P.W.1-Babybai was resident of Ganesh Nagar. On that night P.W.4-Bhuri was ( 5 ) sleeping with her parents and her younger brother on the platform of their house. At about 1.00 a.m. one strong and well-built person came, lifted P.W.4-Bhuri and was carrying her away, but suddenly P.W.4-Bhuri caught hold of waist of her mother. P.W.5-Borabai got up and both of them saw the person, who was taking away Bhuri. So, Bhuri was left, but that person ran away. 4. It is further prosecution case that the accused was arrested and there was injury on his finger, which was bite injury caused by the victim while committing rape on her. Police arrested the accused on next day. They requested P.W. 7-Kishan Shinde, Special Judicial Magistrate, to hold test identification parade and accordingly test identification parade was held on 21.07.2007 between 9.00 a.m. to 10.00 a.m. During test identification parade the victim so also P.W.4- Bhuri and P.W.5-Borabai identified the accused/appellant as the very person who had committed rape on the victim and who had attempted to carry away P.W.4-Bhuri. Police had also sent the appellant to the Medical Officer for examination. The school leaving certificate of the victim was collected. Finally, the charge-sheet was sent for committing offences in ( 6 ) respect of the victim so also in respect of P.W.4-Bhuri. 5. Initially, the charge was framed at Exh.5 and thereafter additional charge under section 363 read with section 511 and 292 of the Indian Penal Code was framed at Exh.61. The prosecution in all examine 12 witnesses. Relying on their evidence, above said order of conviction and sentence is passed. It is this order, which is challenged in this appeal. 6. In this case the prosecution evidence is supported by P.W.1-Babybai and P.W.3-victim, who are respectively examined at Exh.10 and 18. P.W.4-Bhuri and P.W.5-Borabai, who have been examined at Exh. 20 and 21 respectively have also supported the prosecution case. All said four witnesses have stated the prosecution story which is narrated above. P.W.2-Shivaji Butte examined at Exh.14 and P.W.7-Kishan Shinde examined at Exh.38 are examined for proving the test identification parade and the memorandum and the panchanama drawn at that time. 7. P.W.6-Dr. Jyoti Munde, examined at Exh.36, has ( 7 ) stated that the victim was brought to her at about 11.00 a.m. on 15.05.2007 for examination by Mukundwadi Police Station. P.W.6-Dr. Jyoti Mundhe found age of the victim of 12 years. The victim had given history of assault. There was abrasion over upper lip about 0.5 x 5 cms with irregular margins, caused within 12 hours, by hard and blunt object. There was also contusion over right side of face and sub-mandibular region. The injury was caused within 12 hours by hard and blunt object. There was swelling and tenderness over right mandibular region. It is stated in the cross-examination that injury No.1 was possible if a person forcibly comes in contact with rough wall and injury No.2 was possible by fall. 8. P.W.11-Dr. Seema Parvekar examined the victim on 16.02.2007 at 01.00 a.m. She stated that police requested her to examine the victim gynecologically to ascertain whether sexual offence was committed on her. On examination the doctor found that secondary sex characters of the victim were not fully developed. The doctor found tears on the clothes of the victim. There was evidence of violence on the body of the victim. There was presence of seminal and blood stains in the vagina and hymen was ruptured. Tears were ( 8 ) fresh with blood stains. The age of tears was within 48 hours. There was no history of menstrual cycle. The injury on private part and hymen rupture were because of forcible sexual intercourse. P.W.11-Dr. Seema Parvekar proved medical certificate at Exh.49. Absolutely, there is nothing in the cross-examination to suspect or doubt the evidence of P.W.11- Dr. Seema Parvekar. 9. One of the important questions that was raised during argument is why the victim had not disclosed sexual assault on her to P.W.6-Dr. Jyoti Munde, when the victim was examined in the morning. Here we have to consider the social circumstances in which we live. For a girl, may be of 12 years, rape is a social stigma. Here the victim had come to the house of her parental aunt, and when she was with her paternal aunt and her husband, the decision of lodging complaint regarding rape is generally taken by the parents. Other relatives may not take such an important decision to lodge complaint regarding rape, considering future of the girl. So, in the circumstances, I am not surprised, if the relatives of the victim were hesitant in disclosing whole truth including the incident of rape. If we consider catena ( 9 ) of cases decided by the Supreme Court, regarding delay in lodging complaints in rape cases, the delay is more liberally considered in rape cases, considering this social reality. So, I am not prepared to hold that merely because the victim did not disclose the injuries on her private part or sexual assault on her in the morning, that alone is sufficient to disbelieve the prosecution case or evidence of Dr. Seema Parvekar or for that purpose even the victim herself. An appreciation of evidence divested of considering realities of life would not be doing justice. 10. In this case P.W.3-victim who is examined at Exh.18 has narrated the incident as stated earlier. She stated that she was lifted with quilt, taken towards railway line and in an isolated place she was raped. It is argued that the victim had not seen the accused prior to the incident. But description of the incident by the victim clearly shows that the victim had attempted to resist and therefore the accused had resorted to violence, which caused abrasions and swelling on the face of the victim. The very fact that the accused could take victim to the place of rape without stumbling or without difficulty clearly shows that there must be some ( 10 ) light, as stated by the victim herself. The victim has categorically stated in her cross-examination that at the place where she was raped, there was light and she could see face of the assailant. She was specific in saying that it was not so dark that one could not identify someone and village was situated at short distance. The spot panchanama Exh.41 indicates that the victim had taken police and panchas with her to the spot. First police drew panchanama of the place where the victim along with her relatives were sleeping. It was mid night time and therefore there was no possibility of independent witness. The police also attached clothes of victim, namely, Punjabi shirt, salwar and nicker, beside quilt. Then the victim pointed out the place where rape was committed. It was open space between two babool trees. At the spot police found beads of tulsi glossary, which the victim claimed to be her. From the spot, there was a colour factory at a distance of 500 mtr. At 150 mtrs. on southern side there was Chimegaonkar complex building and on northern side, there was Nirmal Nagar estate. After considering evidence of the victim and injuries on her, in my opinion, she was telling the truth. There is corroboration to her word regarding rape from medical evidence as well as ( 11 ) immediate conduct in disclosing what had happened when she met P.W.1-Babybai in the morning. I am not satisfied that in this case, if the accused could see the way by which he was going and could go without stumbling or falling, then the victim would not be able to see the face of offender who was so close to her. Impressions of such incident are bound to be everlasting. It is difficult to believe that the victim would forget face of the person. 11. The test identification parade was held within four-five days of the incident. The learned advocate for the appellant has taken me through evidence of panch witnesses P.W.2-Shivaji Butte and P.W.7-Krishna Shinde. Both have consistently stated about how the test identification parade was conducted. They also stated that the accused was identified by the victim, so also by P.W.4-Bhuri and P.W.4- Borabai. 12. It is argued before this Court that there was no injury on the person of the accused other than his finger, which was said to be a bite injury. Reliance was placed on para 26 of Rahim Beg V/s. State of U.P., AIR 1973 S.C.343. ( 12 ) It is argued that Dr. Katiyar, Medical Officer examined in that case stated that if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of a man. That was one piece of evidence in that case. It was considered with other evidence. No such question was put to P.W.9-Dr. Wakale, who has examined the accused in this case. Moreover, it is not an established medical truth that in every case of rape on minor girl, there should be injury on male organ of the offender. So, in my opinion, the case cited is not applicable to the facts and circumstances of the case. 13. It is argued that in this case P.W.1-Babybai is examined, but police who had come to the spot on telephone call made by the husband of P.W.1-Babybai or other neighbours who had taken part in search of the victim are not examined. In this case, what is important is not whether there was search of the victim by police and other neighbours, but question is whether the victim was taken away and raped and for proving said thing, evidence of P.W.1-Babybai along with evidence of P.W.3-victim is sufficient. They inspire ( 13 ) confidence and absolutely there is no reason to disbelieve either of the two. They had no axe to grind against the accused. In-fact, it is case of the accused that he was not previously acquainted with the prosecution witnesses. There was no reason for identifying the accused as the same person, if he had not committed the offence. The circumstances are such that the victim would not have identified any person other than the real culprit. 14. Relying on certain circumstances brought in the evidence of P.W.7-Kishan Shinde, it is argued that there is possibility of accused being shown to the victim. But absolutely nothing has come in the evidence of victim herself at Exh.18. P.W.1-Babybai did say that she had seen the accused in the police station when police had called them and told them that police had caught the accused. But, the victim did not say that she had seen the accused prior to the test identification parade, nor there is any reliable circumstance to suggest that she was shown the culprit prior to test identification parade. It is also argued that witnesses who were to identify the culprit were sitting in the adjoining room, which was facing towards east and the ( 14 ) room in which test identification parade was also facing east and therefore there was possibility of victim and other two witnesses seeing the accused prior to test identification parade. The accused is entitled to reasonable doubt based on evidence and not on surmises. I am also not satisfied that eight persons cannot stand in a row in a room of 10 x 10 feet and there cannot be test identification parade in such a small room. The evidence of the witnesses examined by the prosecution are reliable and inspires confidence. 15. P.W.4-Bhuri examined at Exh.20 and P.W.5-Borabai examined at Exh.21 have also supported their case as stated earlier and absolutely there is no reason to disbelieve either of the two. It is argued before this Court that the statements of witnesses P.W.4-Bhuri and P.W.5-Borabai were recorded for the first time on 21.01.2008, however, the fact has come on record that they participated in the test identification parade that was held on 21.05.2007 at 9.00 to 10.00 a.m. It is argued that the incident in respect of P.W. 4-Bhuri was different and statements recorded therein could not have been part of the present crime registered in respect of rape of the victim, until in the identification of the ( 15 ) accused it was established that same accused had committed both the crimes in the course of same transaction during same night. So, statements of P.W.4-Bhuri and P.W.5-Borabai were recorded in this crime only after it was established that same accused had taken part in both the crimes. 16. The evidence of victim is corroborated by evidence of P.W.9-Dr. Wakale, who had examined the accused and found on the person of the accused, an abrasion scab at the knuckle of index finger of left hand and it is because of the victim that she had beaten finger of the culprit. Moreover, in this case, various articles attached were sent to C.A. and we find C.A. certificate at Exh.57 and 58. It is worth noting that on the quilt in which the victim was wrapped and taken to the place of rape, the Chemical Analyser has found blood stains ranging from 0.5 cm to 2 cms. On Salwar of the victim there were two bloodstains which were of 2 cms. diameter and on the underwear of the accused, there were stains of blood in the middle portion and were found to be washed. It was found that all these bloodstains on three articles were of “A” blood group. So, this is an additional link which ( 16 ) established that the accused himself committed the crime. It may be noted that P.W.5-Borabai has stated that she had went to lodge complaint. Though the report is not on record, which could be treated only as a separate crime at that time, still that will not be sufficient to disbelieve evidence of P.W.5-Borabai. 17. It is argued that P.W.2-Shivaji is not an independent panch as he had accompanied P.W.1-Babybai and the victim to the police station so also to the hospital. The learned A.P.P. argued he is a social worker and might have accompanied the victim and P.W.1-Babybai. 18. The case of Ravi V/s. State, AIR 2007 S.C.1729 is cited by the advocate for the appellant on test identification parade. In the said case the F.I.R. was against unknown persons. It is observed that test identification parade should be held as early as possible. In this case, it was held within 4-5 days after the incident and it does not appear that there was any delay in holding test identification parade. ( 17 ) 19. In the case of State of Gujarat V/s. Mahamad alias Munno Usmanbhai Chauhan, 1996 Cri.L.J.3400, the Gujarat High Court observed that there were certain infirmities found in conducting the test identification parade, namely, non ascertainment of description of accused by Magistrate, absence of independent panch witness, appropriate dummies falling within age group of accused and having similar physique were not procured. In the facts of that particular case, the identification of the accused was doubted. That was the finding in the facts of the particular case. 20. In the case of Pralhad Singh V/s. State of Madhya Pradesh, AIR 1997 S.C.3442, the prosecutrix was a minor girl. The identification of the accused was not acceptable, in view of the admission that she was tutored by her father and police and the accused was shown to her prior to identification parade. In absence of such admission by the victim or P.W.4-Bhuri and P.W.5-Borabai; and mere admission of P.W.1-Babybai that she had seen the accused in the police station would not be sufficient to attribute the knowledge to the victim. ( 18 ) 21. The learned A.P.P. cited case of Nathuni Yadav and Ors., V/s. State of Bihar and Anr., AIR 1997 S.C.1808. In para 8 of the case, it is observed that keeping in mind the fact that even the assailants had enough light to identify the victim whom they targetted without any mistake from among those who were sleeping on the terrace. If the light then available though meagre, was enough to the assailants, why should we think that same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander. In this case the culprit could carry victim, he could see his way, take child to isolated place and remove her clothes and rape her. So, there was some light, which could be held sufficient for the victim to see the culprit. 22. In this case in order to prove age of the victim besides word of the victim, there is also evidence of P.W.11- Dr. Seema Parvekar, who has stated that the victim was 12 years of old, there is also evidence of P.W.10-Tukaram Rathod, Head Master of Primary School, in which the victim had taken education. P.W.10-Tukaram Rathod had brought ( 19 ) Admission Register of the school and proved that the date of birth of victim was 05.05.1995. The incident has taken place in the night between 14 and 15 May, 2007. So, there is no question of any consent. In-fact, it is case of the accused himself that the victim was not known to him and therefore there was no question of any consent and therefore the cases cited in respect of consent are irrelevant. 23. In the case of State of Maharashtra V/s. Rameshwar, 2007 (2) Mh.L.J.(Cri) 1947, the Court has observed that evidence of prosecutrix cannot be treated as gospel truth. In the facts of that case the evidence of the prosecutrix was disbelieved. Now, it is well settled that evidence of prosecutrix has to be considered like any other witness. In- fact, the victim of rape case is not likely to involve any person other than the real culprit. In this case, there is sufficient corroboration from other circumstances. The evidence of the victim inspires confidence. There is credible evidence. So, I am satisfied that in this case, the learned Additional Sessions Judge has not committed any error in holding the appellant guilty of various offences and awarding sentences. Considering the fact of the case, sever ( 20 ) sentence was called for and it was awarded. In the facts and circumstances, the order of conviction and sentence is hereby confirmed. The appeal is dismissed. [P.R. BORKAR,J.] snk/2010/MAR10/crap209.09