1 CriApl230/10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.88 OF 1999 Raju S/o Dagadu Rajput, Age 25 years, Occu. Labourer, R/o Jyoti Nagar, Aurangabad .. APPELLANT V E R S U S The State of Maharashtra ... RESPONDENT Shri A.P. Pardeshi Advocate holding for R.S. Deshmukh, Advocate for the appellant Shri N.H. Borade, APP for the respondent / State CORAM : U. D. SALVI, J. DATED : 30th September, 2011 ORAL JUDGEMENT : 1. This is an appeal preferred by the accused No. 2-Raju Rajput in Sessions Case No. 278/1995 against his conviction for the offence punishable under Section 376 of Indian Penal Code, 1860, and consequent sentence of five years R.I. and fine of Rs. 1,000/-, in default further R.I. for three months, recorded by the Additional Sessions Judge-4, Aurangabad, in the case on 20-02-1999. 2 CriApl230/10 2. The accused No. 1- Dadarao @ Mohan S/o Panditrao Jadhav in the said Sessions case was acquitted of all the charges levelled against him. Third Accused-Laxmibai was convicted for the offence punishable under Section 366-A of Indian Penal Code, 1860 and was sentenced to suffer R.I. for a period of five years and to pay fine of Rs. 1,000/-, in default further R.I. for three months, in the said Sessions Case. Criminal Appeal No. 92/1999 preferred by Laxmibai, against her conviction in the said case was dismissed on merits by this Court on 18-02-2011. It appears that the present appeal remained to be disposed off along with Criminal Appeal No. 92/1999, for the reason of the abscondence of the appellant/ accused, who was released on bail pending this appeal. Hearing of this appeal got momentum when the presence of the appellant/ accused could be procured by issuance of non-bailable warrant, and the appellant/ accused imprisoned. 3. Parties have been heard and the record perused. 4. According to the prosecution, the prosecutrix, a twelve year old girl, and Laxmibai were residents of Rahul Nagar, Aurangabad and knew each other well, both as neighbors and co- workers in Nath Seeds Company, Aurangabad. The co-accused Mohan and the appellant/ accused Raju were working as 3 CriApl230/10 Watchmen in the said Company, and as such, prosecutrix knew the accused. On 23-07-1993 ’Nagpanchmi Day’, Nath Seeds Company was closed and as such, prosecutrix was at home around 8.30 a.m. that day, Laxmibai approached prosecutrix at her home and asked her to accompany her to enjoy swings. Initially, the prosecutrix was reluctant to join Laxmibai, and therefore, Laxmibai again approached her to join her for enjoying the pleasure of swinging. This time, the prosecutrix joined Laxmibai. 5. It is the case of the prosecution that, Laxmibai took prosecutrix to one room up stairs in the building situate at Jyoti Nagar, where the appellant/ accused was waiting inside, and he pulled the prosecutrix inside the room, latched the door, undressed and raped her. In response to her shouts, the prosecutrix revealed, Laxmibai opened the door and found the prosecutrix bleeding with her clothes stained with blood. Laxmibai, thereafter removed prosecutrix in a Rickshaw back to her home at Rahul Nagar. It was 2.30 p.m. when they reached home of the prosecutrix. The mother and aunt of the prosecutrix, who were present in the house, then made query as to what had happened? Thereupon, Laxmibai told all of them that while swinging the prosecutrix fell down and sustained injuries. Thereafter, the prosecutrix was taken to Government Medical College and Hospital, (GHATI) Aurangabad, 4 CriApl230/10 and was examined by lady Medical Officer on duty at the hospital. The fact of rape on the prosecutrix was revealed in her medical examination. In the mean time, Laxmibai lodged a report with Kranti Chowk Police Station, Aurangbad on 23-11-1993, against the appellant/ accused and co-accused Mohan Jadhav alleging rape committed by the appellant/ accused on the prosecutrix, and his subsequent acts of destruction of evidence at the premises in occupation of the appellant/ accused Raju, at Jyoti Nagar, Aurangabad. Law was thus set in motion. 6. Initially the crime was registered as Crime No. 0/93, for the offences punishable under Sections 376, 201 read with Section 34 of the Indian Penal Code, 1860, against the named accused at Kranti Chowk Police Station, Aurangabad. Later on, the case was transferred to Jawahar Nagar Police Station, Aurangabad, within the limits of which the Crime was committed, and the Crime came to be registered there again. The police carried out investigation at the room shown by Laxmibai, and made seizure of blood stained bed-sheet and Lungi of the appellant/ accused Raju from the said room. Thereafter, blood stained clothes of the prosecutrix namely petticoat, blouse and saree and knicker were seized from the house of the prosecutrix at Rahul Nagar, Aurangabad. Statements of witnesses including the prosecutrix were recorded. On 5 CriApl230/10 23-07-1993, the accused were arrested. After the involvement of the accused No.3-Laxmibai was revealed in the crime, she was arrested on 27-07-1993. The blood stained clothes of prosecutrix and accused No. 1 Raju were sent to the Forensic Science Laboratory, for scientific investigation. On completion of investigation, all the three accused including the appellant/ accused were charge sheeted in the Court of IVth Joint Judicial Magistrate, First Class, Aurangabad. 7. In due course, the case was committed to the Court of Sessions. Sessions Trial commenced with the framing of the charges under Sections 366-A, 201 of the Indian Penal Code, 1860, against all the accused, and under Section 376 of Indian Penal Code, 1860, against the appellant/ accused Raju and co- accused Mohan Jadhav on 11-03-1998. The accused pleaded not guilty to the charges levelled against them. 8. The prosecution examined the prosecutrix, her mother Gayabai, her aunt-Kantabai, maternal aunt-Sonubai, Panchas, Medical Officer who examined prosecutrix, and the policemen involved with the investigation in the present case. The appellant/ accused, in response to examination under Section 313 of Criminal 6 CriApl230/10 Procedure Code, 1973, replied that a false case was filed against him on suspicion-vide statement (Exhibit 7). 9. The learned trial Court believed the prosecutrix, and the medical evidence and dismissed the defence of the appellant/ accused. The learned Advocate Shri Pardeshi holding for Shri Rajendra Deshmukh for the appellant/ accused, focused his argument on this very premise on which the learned trial Court had dismissed the defence of the appellant/ accused. He submitted that prosecutrix evidence was not worthy of credence, as she had not named anybody as a rapist in her disclosure made before Medical Officer at Government Medical and Hospital (GHATI), Aurangabad prior to the recording of her statement, and she had changed her version before the Court. To expand his argument, he took the Court through testimony of PW-1-prosecutrix and PW-7- Dr. Snehlata Nair. According to him, the report (Exhibit 35) recorded by PW-7 Dr. Nair in medical examination of the prosecutrix at the Government Medical College & Hospital, (GHATI), Aurangabad ought to be treated as First Information Report (For short ‘F.I.R.’); and non mentioning of the name of rapist therein by the prosecutrix, would certainly shake her credibility in absence of any explanation offered in that regard. To strengthen his arguments, he relied upon the judgment of the Hon’ble Apex 7 CriApl230/10 Court in Krishan Kumar Malik’s case ( Krishan Kumar Malik V. State of Haryana; [2011] 7 SCC 130). As regards rest of the evidence, the learned Advocate for the appellant/ accused submitted that it was not of much consequence as what matters in the present case was the direct evidence of the prosecutrix and the medical evidence. 10. To evaluate the merits of these submissions, it would be worthwhile to scan the relevant evidence. PW-7-Dr. Nair deposed that on 23-07-1993 she had examined the prosecutrix brought by her aunt, and on examination she found that hymen was torn on left side and there was injury of 1½” in left fornix with severe pv vaginal bleeding. She noticed no other injury or seminal stains on her body or clothes. As per the history given by aunt of the prosecutrix, her age was 11 years. She added that the prosecutrix was subjected to radiological test for confirmation of her age and her blood, pubic hair and vaginal swab were collected for further scientific investigation. She further deposed that certificate (Exhibit 33) was issued by her. Her cross-examination revealed that repeated enquiries with the prosecutrix had brought out the medical history of rape and it was recorded by her in the Medico Legal Certificate ( for short ‘M.L.C.’) register as per the entries 8 CriApl230/10 (Exhibit 35) a reference to which was made by learned Advocate for the appellant/ accused. 11. Perusal of the entry No. 35 reveals the substance of the medical history and the manner in which it was elicited from the prosecutrix by PW-7 Dr. Nair. It is revealed that, the prosecutrix initially gave history of fall from running at 1.00 p.m. on that day followed by the bleeding from her vagina since then, that there was no history of any external injury, pain in abdomen and giddiness for passing clots per vagina since then. It appears from the entry (Exhibit 35) that PW-7 reviewed the history and made repeated enquiries with the prosecutrix, as a result of which the prosecutrix gave history of rape at 1.00 P.M. on that day. This evidence is material for understanding the frame of mind of the prosecutrix at the relevant time. 12. PW-7 Dr. Nair deposed in her cross-examination that the prosecutrix did inform her that while she was taking swing, two young boys came there and they committed rape on her around 1.00 p.m. Her cross-examination further reveals that the prosecutrix had revealed the facts not narrated by her to any of her relatives previously. According to her, the prosecutrix had narrated these facts before a duty constable whom she had called 9 CriApl230/10 thereafter. According to her, the enquiries with the prosecutrix lasted for about 25-20 minutes. 13. PW-1- the prosecutrix gave the story of she being taken out by Laxmibai to Jyoti Nagar on the pretext of going to Hamalwadi for enjoying swings in the morning on the day of incident. She deposed that, when she reached the building with Laxmibai, she had asked Laxmibai that there was no swing, whereupon she was told that she would swing near the building. She deposed that, Mohan accosted them, took them up stairs and on giving call bell, the appellant/ accused had opened the door. She further deposed that she was left in the room by Laxmibai, and when she started following her, she pushed her inside the room, and the appellant/ accused caught hold of her and Laxmibai latched the door from outside. She further deposed that the appellant/ accused fell her down on Chaddar which was put on the floor, whereupon she had raised shouts; and the appellant/ accused Raju pressed her mouth by one hand and untied lace of the petticoat, tore it, removed her petticoat and knicker and touched her private part. She further deposed that she shouted and pushed him back and came near the door shouting “Laxmibai Laxmibai” whereupon Laxmibai, had opened the door when the appellant/ accused had removed her clothes and tried to insert his 10 CriApl230/10 private part in her private part. She added she again shouted and pushed him, whereupon Laxmibai had opened the door and gave her clothes, and those clothes were got stained with blood. 14. Her cross-examination reveals that, the police had recorded her statement in the Government Medical College and Hospital, (GHATI), Aurangabad. However, her cross-examination reveals no material contradiction or omission regarding the version of the incident. However, her version of the incident does not tally on all counts with the version she had given before PW-7- Dr. Nair. It is this mis-match between two versions, learned Advocate Shri pardeshi holding for Shri Rajendra Deshmukh for the appellant/ accused argued, demolishes the credibility of the witness. 15. It is true that there is change in version of incident of rape. However, the fact remains that the medical evidence shows sexual violence. It is also not brought out in the medical evidence that hymen tear leading to per vaginal bleeding could have been caused due to any accident on swings, and it has not been the case of defence also. Occurrence of rape on the prosecutrix, the learned Advocate Shri Pardeshi holding for Shri Rajendra Deshmukh for the appellant / accused, conceded that this fact is not controverted in the present case. Change in the versions 11 CriApl230/10 concerning rape, therefore, only warrants close scrutiny of the evidence of the prosecutrix. 16. Evidence of prosecutrix reveals that she did not dispute the fact of narration of history to the lady Medical Officer, who examined her. However, she refused to admit the truth of her version recorded in the M.L.C. Register entry (Exhibit 35). She was, however, not confronted with further cross-examination as to the reason for recording of such version in M.L.C. Register. As observed here-in-before, the fact of repeated enquiries made by Dr. Nair lasting for 25-20 minutes with the prosecutrix, and the prosecutrix initially giving history of fall during running and thereafter, switching over to the history of rape goes to show that the prosecutrix was trying to conceal the facts before the Medical Officer initially, and ultimately succumbed to her enquiries made in relation to her physical condition. While appreciating this fact, one cannot ignore the tender age of the prosecutrix, who had left her home with child like fancy for enjoying the pleasure of swings only to fall in the trap as a easy prey for lusty designs. Naturally, these circumstances made her conceal the facts before the Medical Officer and even before her guardians i.e. mother and her aunt. 12 CriApl230/10 17. On the other hand, there is credible evidence regarding seizure of blood stained Chhadar and Lungi from a room at Jyoti Nagar. PW-5- Vijay Bhate, a tailor from Shahanoorwadi Road, Aurangbad, deposed that on 21-07-1993, he was called by police to witness as a panch, when one lady- Laxmibai showed the spot a room and from where blood stained bed sheet (Article 5) and Lungi (Article 6) were seized under Panchanama (Exhibit 27). He further referred to the seizure of Petticoat, saree, blouse and knicker from the house of prosecutrix at Rahul Nagar under Panchanama (Exhibit 28). His cross-examination reveals a fact, he was standing outside the room when the police had brought the clothes from inside the room. This, according to learned Advocate for appellant/ accused, leaves a room to suspect the testimony of PW-5-Vijay Bhate. It may be that PW-5 Vijay Bhate was standing outside the room at the material time, but the fact remains that the blood stained clothes are brought from the said room in his presence and there is nothing on record to suggest that these clothes were planted in the said room, or that PW-5 Vijay Bhate is an interested witness. His evidence lends a effective corroboration to the testimony of the prosecutrix, regarding the occurrence of the incident in the room. 13 CriApl230/10 18. As discussed here-in-above, there was a reason enough for the prosecutrix to conceal certain facts before the Medical Officer, and therefore, the discrepancy between what she testified before the Court and her version before the Medical Officer need not be read as any slur on her credibility, particularly in the facts and circumstances of the present case. 19. Referring to the evidence of PW-8- Suresh R. Andhare- Investigation Officer, the learned Advocate Shri Pardeshi holding for Shri Rajendra Deshukh for the appellant/ accused, pointed out that no investigation had been made concerning the revelations made in the M.L.C. Report (Exh. 35). Bare fact that such investigation or inquiry was not made figures in the evidence of PW-8-Suresh Andhare. It can be seen that in the present case the earliest disclosure regarding the crime committed by the appellant/ accused and another at the room at Jyoti Nagar, was made by Laxmibai around 23.00 Hours on 24-07-1993 and statement of the prosecutrix recorded thereafter had given definite direction to the investigation. These facts perhaps did not necessitate investigation into the vague allegations appearing in the M.L.C. Report (Exhibit 35). 14 CriApl230/10 20. The learned APP for the respondent / State submitted with reference to Madan Gopal Kakkad’s case (Madan Gopal Kakkad V. Naval Dubey and another; [1992] 3 SCC 204) that as a general rule corroboration cannot be insisted upon except from the medical evidence. In his view, the evidence of the prosecutrix was well corroborated by the medical evidence as well as by the circumstances brought on record. He invited my attention to the C.A. report, which showed the presence of human blood on the Chaddar and Lungi seized from the place of offence vide C.A. report (Exhibit 40). 21. Considering all these facts and circumstances, it can be seen that learned trial Court was not wrong in placing credence in the testimony of the prosecutrix and convict the accused, for the offence punishable under Section 376 of Indian Penal Code, 1860. As regards the submissions regarding the M.L.C. report (Exhibit 35) being treated as an F.I.R., it can be seen from the evidence of PW-6 Gulabrao More, P.S.I., Jawahar Nagar Police Station, that first information of crime was recorded by the police, as per the statement of Laxmibai Sawant (Exhibit 30). Evidence of PW-8 Andhare-Investigation Officer reveals that initially crime was registered at Kranti Chowk Police Station, where F.I.R. (Exh. 30) was recorded and the investigation was handed over to him, after 15 CriApl230/10 registration of the offence. His testimony discloses that he came across the M.L.C. report at the time of starting investigation. Moreover, M.L.C. report (Exhibit 44) is an improvement made by a police constable over the M.L.C. report (Exhibit 35), and M.L.C. report (Exhibit 35) gives no details as regards the identity of the accused. A question of treating it as an F.I.R. therefore, does not arise. In this context the Judgment of the Apex Court in Krishan Kumar Malik’s case (cited supra) has a little application. 22. Lastly, learned Advocate Shri Pardeshi holding for Shri Rajendra Deshmukh for the appellant/ accused, submitted that considering the ages of the accused and prosecutrix and the fact that they have settled in their life as married persons, the accused needs to be shown leniency by leaving him on the imprisonment undergone in last one year. He further submitted with reference to Judgment of the Apex Court in Phul Singh’s case (Phul Singh V. State of Haryana; AIR 1980, SC 249) that incarceration is likely to turn potentially good person into a hardened delinquent and as such, it is a fit case for saving the accused from the prison severity. According to him, there would be no fetter on discretion of the Court to award sentence lesser than the one prescribed by law. 16 CriApl230/10 23. Section 376 in clear terms mandates that 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 women 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 two years or with fine or with both. With respect to the Hon’ble Justice Mr. V.R. Krishana Iyer words on the philosophy of punitive therapeutics, which were expressed prior to the amendment incorporated to Section 376 mandating the minimum sentence, it can be seen from the latter judgments of the Hon’ble Apex Court, particularly in the matters of rape on minor girls that the attitude of law has hardened over passage of time, undoubtedly, for the reason that the offenders in cases of such crime are seen as menace to civilized society. This can be seen from para No. 57 of Madan Gopal Kakkad’s case (cited supra). In the instant case, it is not in dispute that the prosecutrix was a minor girl whose radiological test confirmed her age around 14 years. Evidence discloses that the accused took disadvantage of the innocence of the prosecutrix and left her with bad memories of childhood. Hence the plea for leniency deserves to be dismissed. 17 CriApl230/10 24. In view of the aforesaid discussion, the appeal is dismissed. Judgment of conviction dated 20-02-1999 passed by the learned Additional Sessions Judge-4, Aurangabad, in Sessions Case No. 278/1995, is confirmed. ( U.D. SALVI, J. ) SDM*September-11