1 Cri.Appeal No.375/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.375/1998. Milind Mahadu Thorat (Shown as Manoj @ Milind @ Shah Rukh Khan) Age: 22 Yrs., occ. Education, R/o Sidharthnagar, Purna, District Parbhani. - APPELLANT (orig.Accused) VERSUS The State of Maharashtra. - RESPONDENT ***** Mr.SS Bora, Advocate for Appellant; Mr.KM Suryawanshi, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 5th April, 2011. JUDGMENT: 1) The appellant Manoj @ Milind @ Shahrukhkhan was convicted under Section 376 of Indian Penal Code by the Court of Sessions at Parbhani in Sessions Trial No.84/1995, directing him to undergo rigorous imprisonment for seven years and fine of Rs.500/-, in default, further R.I. for two years. 2) FACTS: 2 Cri.Appeal No.375/1998 (i) On 18.10.1994, the victim, a minor, not accustomed to sexual intercourse, (approximate age 13/14 Yrs.) was proceeding to purchase gram food (Phutane) at grocery shop. The accused accosted her, insisted to join him for meals at his home. The victim did not concede as she was in hurry to attend home. The accused insisted and caught hold her. In process, took her at nearby dilapidated premises – cattle shed, situated behind the said shop. The accused gagged her by a cloth-ball and successfully prevented attention of others. He removed his pant and under-garment, raised skirt of the victim, removed her nicker and committed rape upon her. This resulted in victim’s suffering bleeding at her private part. The accused/appellant forced the victim to remain in the same position. Again second time, committed rape, at that time also, she had bleeding. The accused put nicker to the victim, put his garment in order, removed the cloth ball, threw it, took the victim towards the shop of Anwar and went away. (ii) The victim rushed home, informed the traumatic experience to her parents. She was consequently taken to police station. The events were narrated by her to PSI – Ganesh Arvind More (PW 5), who recorded the same treating it as 3 Cri.Appeal No.375/1998 F.I.R. (Exh.17). The report of the victim was dictated by her father and she allegedly, after getting the contents explained, signed it. The victim was examined by Dr.Rathod (PW 4)on 19.10.1994. During spot panchanama, cotton- ball/handkerchief from the scene of offence was seized. (iii) On 20th October, 1994, the accused was put under arrest. His under-garment was collected under panchanama, he was medically examined. The apparels of the victim and of the accused were sent to the Chemical Analyzer under forwarding letter. Report of CA dated 21.2.1995 was collected. 3) The matter was committed to the Sessions Court. The learned Sessions Judge explained charge to the accused for the offence punishable under Section 376(f) of Indian Penal Code on 23.6.1998, informing that the victim/prosecutrix was less than 12 years of age. The accused pleaded not guilty to the charge, claimed to be tried, his defence was of denial and false prosecution and alibi. 4) According to the accused/appellant on 18.10.1994, he had left Purna for Partur at about 8.00 a.m. with his students-colleagues and 4 Cri.Appeal No.375/1998 teacher – Adinath Ingole and reached Partur at around 4.45 p.m. The police apprehended him on 19.10.1994 at 4.00 p.m. at Partur and he was brought to Purna. The accused examined two defence witnesses – Adinath Ingole, the Lecturer and Bhagwan Mundada, his class-fellow. The other defence of the accused was, father of victim PW 3 was engaged in vending illicit liquor, some persons, including the parents of the appellant/accused, had complained, father of the victim demanded some amount from appellant’s father, not budging to the demand victim was against him. Victim's sister had filed a case on identical grounds against another boy to extract money. 5) In order to establish the charge, prosecution has put in following five witnesses, - (i) PW 1 – Bhimsing Thakur, concerning seizure of nicker belonging to the victim. However, he did not support the prosecution; (ii) PW 2 – Maruti Raosaheb Bokare, witness to seizure of nicker of accused, however, failed to coordinate the prosecution; (iii)PW 3 – is the victim/prosecutrix (her identity is kept in wrappers in terms of Section 228-A of Indian Penal Code); 5 Cri.Appeal No.375/1998 (iv) PW 4 – Dr. Gauri Rathod, had examined the victim/complainant and issued a Certificate regarding age and also injuries suffered by the victim and found that age of the victim was less than 14 years, could be approximately 13 years; and (v) PW 5 – Ganesh More, PSI, carried investigation and presented charge sheet. 6) CA reports are at Exhibits, 23, 24 and 25 concerning vaginal swab, pubic hair, test of the blood semen in pubic hair of accused, reflect his blood-group is “B”. Exhibit-25 concentrates to the report of nicker and Jangya of accused and victim/complainant. Jangya of victim was stained with human blood. Examination of the accused is at Exhibit-27. 7) Mr.Bora, learned Counsel for the appellant/accused submits that the prosecution is full of infirmities. The report is not by the prosecutrix, but by her parents. The prosecutrix remained in the company of the accused for four hours at distance of 200 feet and did not offer resistance, it does not appeal to mind. The alleged place has a heavy traffic and incident could not have been ignored by the passers. The accused/appellant was not at Purna, 6 Cri.Appeal No.375/1998 he has been framed owing his father’s controversies. The prosecutrix’s version need not be accepted as a gospel truth. 8) The learned Counsel submits in 2009 (15) SCC 566 (Tameezuddin @ Tammu vs.State of (NCT) of Delhi), paragraph 7, the Apex Court has held, - “ in a case of rape, evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted, even if story is improbable and belies logic, would be doing violence to the very principles, which govern appreciation of evidence in a criminal matter.” 9) In 2010 (2) Scale 308 9 (Abbas Ahmed Choudhari Vs. State of Assam), the Hon'ble Apex Court has held, - “ In a matter of rape, statement of prosecutrix must be given primary consideration, but at the same time, broad principle that prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that prosecutrix would always tell the entire story truthfully." 10) In the matter of Rajoo Vs. State of Madhya Pradesh ( AIR 2009 SC 858), the Apex Court again cautioned that evidence of prosecutrix can always 7 Cri.Appeal No.375/1998 be accepted as gospel truth. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. 11) In the matter of infraction of Section 376 either (f) or in category sixthly, of Section 375 Indian Penal Code, age of the prosecutrix attracts attention. The victim while narrating her plight, stated, she was 12 years on 18th October, 1994. At the time of recording her evidence on 7.9.1998, she disclosed it to be 16 years. She is illiterate. Thus, case would attract Section 376 of IPC. 12) PW 4 – Dr.Gouri Rathod had examined the victim on 19th October, 1994. On general examination, PW 4 found that the victim’s breasts were small, not developed; her nipples areola were not developed, auxiliary hair not developed. In ossification test, it revealed her aliocrest not developed; radius was not fused; the distal ulna was not fused; elbow joints showed lateral epicondyle was fused; medial epicondyle was not fused. Based on these features, the medical officer reached to a conclusion that age of the victim was less than 14 years. In her opinion, it could be approximately 13 years on the date of examination. PW 4 also informs that the victim 8 Cri.Appeal No.375/1998 was not accustomed to sexual intercourse. 13) No Birth Certificate to establish age proof was tendered. The statement of fact made by PW 4 about approximate age of the victim/prosecutrix supported in her medical report (Exh.19) is not challenged in cross- examination. 14) There is no guess work from PW 3 or PW 4 about sketching the age to be below 14 years. It has the scientific base of bone examination, coupled with physical condition, non-development of the sex characters. The medical evidence does not show that prosecutrix was found to have been used to sexual intercourse or hymen was torn. The age, stated by the prosecutrix before the Investigator and before the Court, in all certainties, leads to indicate, she could not be more than 14 years. There cannot be any principle of plus or minus for a period of two years either way as the maximum. Even if that scale is applied, the radiological report in tune with ossification test would not accelerate her age to be sixteen years or more than that. It is not that mere estimate of age was carried by the medical officer, but as stated earlier, it had a sturdy scientific proof. Consequently, I hold the victim was a minor, below 16 years of age on 9 Cri.Appeal No.375/1998 the date of incident and consequently, no case of consensual sex could be advanced or attributed. 15) The learned Counsel has submitted, Anwar’s shop was at proximity and the alleged spot is attended by traffic. This is factually incorrect, as the panchanama (Exhibit-11) dated 19.10.1994 shows the area to be in the scheduled locality of Siddharthnagar in Purna city, an isolated place, belonging to Paska church, covered by four sides in bricks mortar. It has east facing with folder door. The place is used as a cattle-shed totally admeasuring 20 ft length and 40 ft in width. It has eight tin-sheets. The shop of Anwar was around 200 ft. At the east, there was Government road; and also house of Hussian Yelappa Waghmare; At the west-south – road. Since the property was of the church, though called as cattle-shed, full of rags, was certainly unused. At the spot, the victim pointed cotton swab (handkerchief), which was used for gagging the victim, same has been identified by her in the evidence. 16) PW 3, the victim, is the sole witness to illustrate the ignominy and turbulent situation she has faced. She was controlled by the accused, a known boy, under the pretext of having meal and in spite of her little resistance, he ensued her 10 Cri.Appeal No.375/1998 to the said cattle-shed. Corroboration to the testimony of the victim is from the scientific base and also medical examination. Waiting to seek additional corroboration in such event would be rubbing salt to the injuries. 17) It does not apply to logic that the victim having gone to the shop of Anwar for purchasing grams, would make a show of accused, alluring her and dragging. She is an illiterate girl; her reference to sex on two occasions in the said cattle-shed need not be read with precision dissection. Her narration of such sex to be for one hour or for two times need not be an exaggeration, as evidence suggests, at all moments during her company with the accused, she has rebelled, created violence, she abused the accused, suffered bruises. The learned Judge has also considered and rightly, evidence was recorded after four years of the incident and consequently, the duration of the incident could be by approximation. The incident has taken place between 4 to 5 p.m. while her F.I.R. (Exh. 17) was registered at 10.15 p.m. Five hours delay, would not lead that case was weaved against the accused. 18) Prosecutrix has clarified that she narrated the events, then it was recorded and she 11 Cri.Appeal No.375/1998 confirmed the events and then signed the F.I.R. This certainly distracts the situation of doubts. The prosecutrix since inception was complaining of suffering bleeding at her private part due to the forcible sex and it is so corroborated by blood-stained nicker/jangya of the victim, seized under the panchanama (Exh.10), analyzed by the office of CA, to be smeared with human-blood(Exh. 25/2). Even if the panch for seizure of Jangya has turned hostile, that will not dilute and deface the worth of the panchanama (Exh.10) as it is confirmed by the Investigator, the Jangya, Article 3, was identified by the victim in Court. Dispatch of Jangya under forwarding letter is proved. 19) In the threadbare cross-examination, the evidence of the prosecutrix that she was gagged and faced forcible sex, is not shattered. She explained, immediately after the accused caught her hand, he inserted cotton ball in her mouth at 30 paces from the place. She attempted to run away, however, accused had caught hold her hand. There was scuffle between the accused and the prosecutrix at the scene of offence. Such resistance was barely 2-4 minutes. Though in the cross-examination, after four years of the events, she has stated that there was no injury on her back side, or no injury at her buttock, 12 Cri.Appeal No.375/1998 however, the medical evidence about the injuries and forcible sexual intercourse is illustrative. Dr.Gouri Rathod found that there was evidence of discharge per vagina congestion of vulva hymen was torn. Dr.Gouri has firmly stated, the prosecutrix was not accustomed to sexual intercourse, however, there were signs of forcible sexual intercourse and she was raped. 20) PW 4 noticed in her clinical examination that the prosecutrix has suffered - contusion on left scapular region – 3 x 3 inch ; abrasion on left forearm – 3 X ½ cm; abrasion on right leg – 2 X ½ cm.; abrasion on left leg- 2 X 1 cm. These injuries blast the theory of the accused that there was no resistance on the part of the prosecutrix. On the contrary it establishes that the prosecutrix stiffly opposed and resisted. Consequently, the narration in the evidence of prosecutrix of non-sufferance of injuries is immaterial. It may be prosecutrix felt that the abrasion, contusion, she has suffered, could not be branding in the term of an injury, which as per her mindset, should be referable to bleeding injury. The swab/handkerchief was seized under the panchanama, has a telling impact in positive assertion to the plight of the victim, it has identified in the Court. 13 Cri.Appeal No.375/1998 21) The learned Counsel submits that father of prosecutrix or step mother indulged in illicit liquor. It may be correct, however, that by itself is difficult to digest that the accused/appellant could get license to ravish a minor girl below sixteen years. The girl is not a chattel, or whore to be done as per the whims of the accused/appellant. Even if there was bitter enmity, which indeed is not surfacing, prudent does not allow that she could be stating the events, which are supported by PW 4. The place of incident was known to the accused to be a secluded place and not frequented by public. In such situation, there could not be other ocular evidence. 22) The accused/appellant came with a plea of alibi. Photo stat copy of a colege Certificate (Exh.33) was produced to show he was its student, he was selected as one of the participant at Youth Festival to be held at Partur. 23) Even if the accused/appellant says that he has left for Partur on 18th October, 1994 at 8.00 a.m., there was no programme or festival on 18.10.1994 as it was to be inaugurated on 19.10.1994 at 2.00 p.m. The second aspect of the matter is, the accused/appellant had to perform 14 Cri.Appeal No.375/1998 on 20th October, 1994 at Partur and not on 18th October, 1994. 24) Geographical location of Purna, Partur also needs attention. It takes around three hours from Purna to Partur. The accused allegedly went to Partur and in the early morning of 18.10.1994 left Partur for Parbhani to attend Cricket match scheduled at Parbhani. This is illogical as Purna is located in between Partur and Parbhani and it is unconceivable that circuitous travel could be undertaken by the accused. The acquittance roll produced at Exh.34 is not coming from proper custody, it does not bear signature of DW 1 – Adinath Ingole. The explanation offered by the defence is entire record of the college concerning attendance is gutted in fire. The photo stat certificates produced by DW 1 could not read in evidence as no permission to lead secondary evidence was obtained, straightway, these documents were flashed and without any relevancy to its existence, it was sought to be accepted. Evidence of DW 2, colleague of the appellant, indeed caused damage as he accepts that festival was scheduled on 19th October, 1994 and not on 18th October, 1994. 25) The theory that the accused was not at 15 Cri.Appeal No.375/1998 Purna on 18th October, 1994 is not established. Evidence of DW 1 is not satisfactorily and raises doubt. Consequently, on analysis of the evidence, supported with documentary evidence, panchanama, CA reports, medical evidence, I hold that there is no error in the judgment under challenge. The victim/prosecutrix was a minor girl below 16 years and consequently, no case of her recording consensual sex. 26) In the result, the appeal lacks merit, dismissed. The appellant/accused to surrender to undergo left over sentence. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ fldr.5.4.2011