1 cra103.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 103 OF 2011 Balu s/o Bhausaheb Kothule, age 41 years, occ. Tractor Driver, R/o Khadki, Tq. Nagar, District Ahmednagar ...Appellant (Original Accused) VERSUS The State of Maharashtra, through Nagar Taluka police station ...Respondent ..... Ms. Monika Purnapatre, advocate appointed for appellant Shri V.D.Rakh, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 15 th July, 2011 ORAL JUDGMENT : 1 Challenge in this appeal is to the conviction and sentence imposed upon the appellant (original accused) by way of judgment and order, dated 12.1.2011. It appears that the 2 cra103.11 appellant herein faced the trial for the offence punishable under Sections 376, 354, 323, 504 and 506 of the Indian Penal Code under Sessions Case No. 136 of 2010 and was convicted therefor, excepting for the offence punishable under Section 504 of the Indian Penal Code and was sentenced to suffer R.I. for the period of ten years and to pay fine of Rs. 10,000/-, in default of payment of fine to suffer R.I. for six months for the offence punishable under Section 376 of the Indian Penal Code; and was also sentenced to suffer R.I. for two months and to pay fine of Rs. 5,000/-, in default of payment of fine to suffer R.I. for three months for the offence punishable under Section 354 of the Indian Penal Code; and was further sentenced to suffer R.I. for the period of one year and to pay fine of Rs. 1,000/-, in default of payment of fine to suffer R.I. for one month for the offence punishable under Section 323 of the Indian Penal Code; as well as was sentenced to suffer R.I. for the period of two years and to pay fine of Rs. 1,000/-, in default of payment of fine to suffer R.I. for one month for the offence punishable under Section 506 of the Indian Penal Code; and it was also directed that the afore said substantive sentences to run concurrently, by way of judgment and order, dated 3 cra103.11 12.1.2011, rendered by the learned District Judge-6 and Assistant Sessions Judge, Ahmednagar. 2 The factual matrix and the events leading to the present appeal are as follows :- The prosecutrix Nilima lodged the complaint against her father i.e. appellant herein with the Ahmednagar Taluka police station and reported that the appellant herein, namely Balu @ Balasaheb Bhausaheb Kothule i.e. father of the prosecutrix outraged her modesty and also two months prior to 5.4.2010 raped upon her for two times, as well as raped upon her during night of 5.4.2010 when she was residing along with the appellant and her grand father, namely Bhausaheb Kothule and sister Nikita in the house at Khadki, Taluka and District Ahmednagar. She also alleged that she was the student of 8 th standard in Tuljabhavani High School at Khadki and her father Balasaheb had married to one Kamalabai and initially they were residing at Kalewadi, Pimpri-Chinchwad, District Pune, but about one year back her mother died due to heart attack, and hence, the appellant, prosecutrix and her sister Nikita shifted to the house of her grand parents, namely Bhausaheb and 4 cra103.11 Babaibai Kothule at Khadki. It is also alleged that the appellant was the driver by profession on a dumper at Khandala and used to leave his house at about 7.00 a.m. with the tifin and used to return back at about 8.00 p.m. It is also alleged that about two months prior to the incident of rape i.e. 5.4.2010, the appellant picked up a quarrel with his mother Babaibai and drove her out of the house, and therefore, she took the shelter of house of her daughter Saina Vitthal Gadhave in the same village at Khadki. 3 It is the case of the prosecutrix that on 5.4.2010 the prosecutrix returned to the house after giving the examination paper and prepared food at about 9.00 p.m. At this juncture, the appellant came to the house in drunken condition. The prosecutrix served him food. After the dinner, the appellant went out of the house. Thereafter, the prosecutrix, her sister Nikita and grand father Bhausaheb also took their dinner and went to sleep in the court yard of the house. The appellant returned home at about 11.00 p.m. It is alleged that the prosecutrix woke up when her legs were pulled by the appellant father and the appellant skidded her inside of the house from 5 cra103.11 the court yard. Thereupon, the prosecutrix cried, but the appellant gave threat to kill her, and hence, prosecutrix remained silent. After taking inside the house, the appellant removed her salvar, kurta, petty coat and nicker. The prosecutrix was beseeching “No, No” and started weeping. However, the appellant ignored her weeping and started rubbing her chest. Then, the accused removed his clothes and laid the prosecutrix on the cot and divided her legs opposite to each other and laid on the person of the prosecutrix and committed the sexual intercourse with her like husband and wife. The appellant also gagged her mouth by one hand. It is further alleged that there was pain to her urinating place and she became unconscious. It is further alleged that on the next day morning, the appellant kicked the prosecutrix and woke her up at 4.00 a.m. and asked her to cook food. Accordingly, after taking tifin, the appellant left the house at about 7.00 a.m. and while leaving the house gave threat to the prosecutrix to kill her if she disclosed the incident to anybody. Hence, the prosecutrix was scared. 4 It is also the case of prosecution that after leaving the 6 cra103.11 appellant for his work, the prosecutrix took the bath and washed away her clothes. Thereafter, she narrated the incident to her aunt, namely Tarabai and grand father Bhausaheb, who in turn informed to Badambai, her remote grand mother, as well as the said incident came to the knowledge of one Raghunath Kothule, remote maternal uncle of the prosecutrix, who took her and her sister Nikita to their houses. On 10.4.2010 Raghunath Kothule left the prosecutrix and her sister Nikita to the house of PW4 Chandrakant Borude i.e. maternal uncle of victim, resident of Sarola Baddi. The prosecutrix narrated the events to the said maternal uncle and aunt. Accordingly, her complaint (Exh.15) was recorded by P.S.O. of Nagar Taluka police station PW9 A.S.I. Bapu Bhosale on 14.4.2010 and offence was registered against the appellant under C.R. No. 62 of 2010 under Sections 376, 354, 504 and 506 of the Indian Penal Code and same was treated as the first information report. 5 It is further the case of prosecution that PW8 Mrs. Jyotipriya Singh, Superintendent of Police (Rural), Ahmednagar, was having charge of Nagar Taluka police station at the relevant time and on 14.4.2010 she received C.R. No. 62 7 cra103.11 of 2010 for further investigation. Accordingly, she perused the complaint and special report of the crime and arrested the appellant under arrest panchanama (Exh.31). The special report (Exh.38) was prepared by PW9 A.S.I. Bhosale. Thereafter PW8 Mrs. Jyotipriya Singh issued letter (Exh.17) for examination of the appellant and the appellant was sent to the Civil Hospital, Ahmednagar for examination purpose. Accordingly, PW2 Dr. Bharati Peche, who was Medical Officer at the Civil Hospital, Ahmednagar, examined him and collected the samples of blood, hair and nail, as well as sample of his semen was taken by other doctor, namely Dr. Bhujbal and M.L.C. (Exh.18) was registered. She also prepared the medical certificate of examination of the appellant at Exh. 20. 6 Thereafter, PW8 Mrs. Jyotipriya Singh visited the spot of the offence on 15.4.2010 and drew spot panchanama (Exh. 35) and the complainant prosecutrix pointed out the said spot of the offence. The quilt and bed sheet (cover of mattress) i.e. articles C and D were attached from the scene of offence under the said panchanama. Moreover, the clothes of the prosecutrix and the accused were also seized bearing article nos. 1 to 10 8 cra103.11 under panchanama Exhs. 34 and 35 respectively. 7 The prosecutrix was referred to the Civil Hospital, Ahmednagar and PW6 Dr. Kalamkar Sandip Malhari examined her as per letter of Reference (Exh.26), as well as her radiological examination was conducted for confirmation of her age and while recording her history, her age was given as 13 years. Accordingly, he issued the medical examination certificate of the prosecutrix, which is produced at Exh.27. 8 Moreover, PW8 Mrs. Jyotipriya Singh also recorded statements of witnesses, as well as she gave letter (Exh.41) to the Head Master, Tuljabhavani Madhyamik Vidyalaya, Khadki and requested for bona fide certificate of the prosecutrix on 21.4.2010. Accordingly, on 22.4.2010, she received letter from the Head Master of the said school along with bona fide certificate (Exh.32) of the prosecutrix, showing her date of birth therein. 9 The prosecution case further recites that PW8 Mrs. Jyotipriya Singh prepared forwarding letter (Exh.33) and sent 9 cra103.11 the muddemal clothes of the accused and the prosecutrix to the Forensic Laboratory on 21.4.2010. Accordingly, the chemical analysis reports were received from the Chemical Analyser’s office, which are produced at Exhs. 43, 44, 45 and 46, respectively. During the investigation, the prosecutrix and her sister were produced before the Special Judicial Magistrate for recording the statement. Accordingly, after completion of investigation, PW8 Mrs. Jyotipriya Singh filed the charge sheet before the learned Judicial Magistrate, First Class, Court no.6, Ahmednagar on 5.7.2010 and thereafter the said learned Judicial Magistrate, First Class, Court No.6, Ahmednagar, committed the case to the Court of Sessions, Ahmednagar on 6.7.2010. 10 Accordingly, charge was framed against the appellant on 15.7.2010 at Exh. 2 by the learned District Judge-6 and Assistant Sessions Judge, Ahmednagar for the offences punishable under Section 376, 354, 323, 504 and 506 of the Indian Penal Code. 11 To substantiate the said charges levelled against the 10 cra103.11 appellant, the prosecution examined as many as 9 witnesses, as mentioned below :- PW1 Nilima Balasaheb Kothule i.e. prosecutrix. PW2 Dr. Bharati Shahaji Peche, who examined the accused and issued medical certificate Exh.18 and case papers (Exh.20). PW3 Badambai Sitaram Kothule, relative of prosecutrix, whom prosecutrix narrated the incident for the first time. PW4 Chandrakant Bhanudas Borude, maternal uncle of victim Nilima. PW5 Mithu Sopan Sathe, panch for panchanama of seizure of clothes of victim (Exh.24). PW6 Dr. Kalamkar Sandip Malhari, who examined the prosecutrix and issued the medical certificate (Exh. 27). PW7 Ram Vitthal Salunke, panch to spot panchanama Exh.35. PW8 Mrs. Jyotipriya Singh, Superintendent of Police (Rural), Ahmednagar - investigating officer. PW9 A.S.I. Bapu Dashrath Bhosale, who recorded the complaint of prosecutrix (Exh.15). 11 cra103.11 12 The defence of the appellant/accused was of total denial. He contended that he has been implicated in this case falsely and he further stated that his wife was heart patient prior to marriage a quarrel was picked up on birth of daughters. His brother in law i.e. PW4 Chandrakant blamed him for death of his wife. Then they started insisting upon him to transfer his landed property, to which appellant/accused refused. Hence, the said brother in law lodged false case against him, through PW1 Nilima, and accordingly, the accused claimed to be innocent. After considering the oral, the documentary and the medical evidence adduced/produced by the prosecution on record, as well as considering the rival submissions advanced by the learned counsel for the parties, the learned Assistant Sessions Judge and District Judge-6, Ahmednagar, convicted and sentenced the appellant/accused as aforesaid. Being aggrieved and dissatisfied by the said conviction and sentence, the appellant has assailed the same by filing the present appeal and prayed for quashment thereof. 13 Before adverting to the submissions advanced by the 12 cra103.11 learned counsel for the parties, it is necessary to deal with the material evidence on record and the pivot of the prosecution case revolves around the very testimony of the prosecutrix, namely Nilima Kothule, wherein she has narrated the occurrence of events meticulously, wherein she stated that her mother died when they were residing at Pimpri-Chinchwad, Pune, and therefore, they shifted to the house of her grand parents along with accused and her younger sister at Khadki, Taluka Nagar. Her father was serving as driver on a dumper at Khandala. She used to prepare food in the house for all the family members i.e. grand parents, sister and accused father. Her father used to leave the house at about 7.00 a.m. and used to return back at about 8.00 p.m. One day quarrel took place between accused father and grand mother of prosecutrix, namely Babaibai, and hence, the accused/appellant drove her out of the house, which occurred about two months prior to the incident and therefore, she went to her married daughter, namely Saina Vitthal Gadhave for shelter. She further stated that on 5.4.2010 at about 2.30 p.m. she attended her examination of drawing and returned back at 5.30 p.m. At about 6.00 p.m. she prepared food for all the members of the 13 cra103.11 family and at about 8.00 p.m. her father returned to home and she served him food and after dinner he went outside the house. Thereafter, the prosecutrix, her sister Nikita and grand father Bhausaheb took their dinner and went to sleep in the court yard of the house. 14 She further stated that about 11.00 p.m. her father returned back to home and pulled her legs and thereby she was woke up and the appellant/accused dragged her inside of the house from the court yard and while dragging inside the house she requested him not to do the atrocity on her, but accused ignored her and gave her threat not to shout and further gave threat to kill her, if shouted. Hence, prosecutrix started weeping and crying. The appellant removed his clothes as well as her clothes and thereafter he laid the prosecutrix on the cot and divided her legs to opposite sides. There was mattress (Gadi) covered with quilt (Godhadi). He laid on her person and committed the sexual intercourse with her like husband and wife, and thereby she started paining to her private part and she became unconscious. At about 4.00 a.m. her father appellant kicked her and woke her up and asked to 14 cra103.11 prepare food for tifin, and accordingly, she prepared food and appellant took tifin and left at 7.00 a.m. for work and before leaving the house he threatened to the prosecutrix to kill her, if she disclosed the incident to anybody. 15 Thereafter, she stated that she took the bath and told the said event to her sister Nikita and grand father Bhausaheb, and further informed to Badambai i.e. her remote grand mother, who in turn informed to her son Raghunath Kothule. Thereafter prosecutrix and her sister Nikita resided at the house of Badambai and Raghunath for about 4-5 days. Accordingly, on 12.4.2010 Badambai and Raghunath took the prosecutrix and her sister to the house of her maternal uncle Chandrakant Borude at Sarola Baddi, Taluka Nagar and she narrated the afore said incident to him. Accordingly, Chandrakant Borude took the prosecutrix and Nikita to the Child Line Care Center, Ahmednagar and the prosecutrix narrated the untoward incident occurred at the hands of her father to Shri Panchal, Manisha Kasar and Kundan Pathare, and with their help, approached Nagar Taluka police station and narrated the incident to police personnel, and accordingly, her complaint was recorded, which 15 cra103.11 was treated as the first information report (Exh.15). 16 Thereafter, she further stated that she was referred to the Civil Hospital and her medical examination was conducted and she also gave her history and stated that about two months prior to the incident, her father drove her grand mother Babaibai from the house and in the absence of grand mother, outraged her modesty and used to behave with her in filthy and badly manner. She further stated that during investigation, her clothes were seized and she further stated that the accused be sentenced for life. 17 In the cross-examination, she stated that there were scratches on her back due to dragging and pulling and she cried loudly and also shouted in low voice, but did not give call to her grand father or sister or neighbourer. She also stated that she attempted to escape from the clutches of her father. She further stated that she resisted her father while making intercourse with her. However, she stated that she did not sustain any injury on her back at that time. She also stated that her father was drunkard and addicted to alcohol. 16 cra103.11 18 According to her, she did not go to the police station after lodging the complaint on 14.4.2010 and also did not go to Khadki to the house of the accused. She further stated that her father accused picked up quarrel with her grand mother and drove her out of the house and started outraging her modesty, but she did not make any complaint or narrated the grievance to any person. She further stated that her maternal uncle used to visit their house at Khadki on occasions. She admitted that she did not narrate the event to Tarabai Kothule wife of brother of her father and the contents to that effect were marked as portion ‘A’ in her complaint amounting to contradiction. Moreover, she deposed that she did state before police that she narrated the event to her sister Nikita and grand mother Badambai, but she could not assign any reason why said fact is not mentioned in the police statement amounting to omission therein and improvement in her testimony. Moreover, she deposed that she stated to the police that she told the event of rape to Manisha Kasar and Kundan Pathare, but such mention is not there in her complaint amounting to omission and improvement in her testimony. So also, contradiction was 17 cra103.11 brought on record in respect of portion marked ‘B’ in her complaint. Few suggestions were given to her, but same were denied by her. 19 Coming to the testimony of PW4 Chandrakant Bhanudas Borude i.e. maternal uncle of victim Nilima, who stated that his sister Kamala @ Sangita died due to heart attack on 29.1.2009 and accused Balu had two daughters, namely Nilima and Nikita. At the time of incident, Nilima was learning in 8 th standard in the High School at Khadki. He further stated that on 12.4.2010, Raghunath Kothule of Khadki brought Nilima and Nikita at his house at Sarola Baddi at about 9.15 a.m. and when both came to his house, they started weeping and they were extremely nervous, and therefore, he gave support to them, and thereafter, Nilima told him about the occurrence of the incident and narrated that in the night at about 9.00 p.m. Balu took food and went outside the house and then came back at 11.00 p.m. and thereafter held legs of Nilima while she was asleep and pulled her with skidding and dragged inside the house and when he was removing clothes on his person, Nilima was beseeching not to do the shameful 18 cra103.11 and abominable act, but he removed her clothes and committed rape on her and she became unconscious till 4.00 a.m. when accused father kicked her and woke her up. Thereafter Nilima prepared food, accused took his tiffin and left the house at 7.00 a.m. She further narrated that accused gave her threat to kill her if she narrated the incident to any person. Thereafter, Nilima stated that she went to the house of Badambai and narrated the incident to her. Then, Badambai took Nilima and her sister in their house on the land. Thereafter, Raghunath Kothule gave meassage to PW4 Chandrakant Borude on telephone and reported him that accused treated his daughters with cruelty and assaulted them. Hence, PW4 Chandrakant Borude informed Raghunath Kothule not to bring the said girls to his house for 4-5 days due to death of his aunt Draupadabai and her last rites, and he brought them thereafter on 12.4.2010. 20 PW4 Chandrakant Borude further stated that on hearing the afore said event, he was shocked and on 13.4.2010 he decided to approach the Child Line Center, Ahmednagar in the interest of both the minor girls Nilima and Nikita at 19 cra103.11 Ahmednagar. He further stated that the office bearers of Child Line Center advised him that it was necessary to report the incident to the police though the girl is minor. Accordingly, on 14.4.2010, he approached Ahmednagar Taluka police station along with his wife, prosecutrix Nilima, his maternal uncle Raghunath Kothule, Manisha Kasar and Kundan Pathare of Child Line Center. Accordingly, police personnel recorded the complaint of prosecutrix Nilima, as well as police personnel recorded his statement on 15.4.2010. 21 In the cross-examination, he stated that another maternal uncle of victim Nilima, namely Raghunath told him about the incident whatever he heard. However, PW4 Chandrakant stated that Raghunath did not state him on 6.4.2010 that accused raped Nilima at about 11.00 a.m. He also stated that he did not make further contact with Raghunath to get additional information. He even did not talk with Raghunath on 7.4.2010, and neither Raghunath nor Badambai came to his residence on the said date. Badambai also told him about the incident on phone. He further stated that till 12.4.2010 he did not meet Raghunath Kothule or his mother 20 cra103.11 Badambai. However, on 12.4.2010 both the girls and Raghunath came to his home. However, he did not discuss the event occurred with Nilima, since persons had gathered on the 10 th day on the cause of death of his aunt, namely Drupadabai. He also stated that he did not bring Nilima to police station on 13.4.2010. He also admitted that till 12.4.2010 Nilima and Nikita did not make contact with him on phone. On 14.4.2010 Raghunath Kothule again came at Nagar and thereafter he, his wife Anita and both the girls came to Child Line Center. He also stated that Kotwali police station is situated on the way near Child Line Center. He also stated that he was knowing and had learnt that Child Line Center gives hand to the children who are victims of atrocity, illtreatment and outraging of modesty, etc. 22 As regards, recording of the complaint, he stated that between 12.00 noon to 1.00 p.m. they were in the police station and police recorded the complaint of victim during that period on 14.4.2010 as per the events narrated by the victim. Contradiction as to portion marked ‘A’ in the contents of his police statement was brought on record that he stated to police 21 cra103.11 about the incident. Alike, the police also interrogated with his wife. Moreover, omission was taken out in his police statement and improvement in his testimony that Nilima stated about the incident to Badambai and Badambai took her in the land Mala. Few suggestions were given to him that false complaint was lodged against the accused with the assistance of office bearers of the Child Line Center, but same were denied by him. 23 That takes me to the evidence of PW6 Dr. Kalamkar Sandip Malhari, who stated that he was serving as Medical Officer at Civil Hospital, Ahmednagar at the relevant time and on 14.4.2010 the police personnel referred the prosecutrix Nilima for medical examination along with letter (Exh.26), which comprised following five points :- (1) Whether the prosecutrix is competent physically for sexual intercourse ? (2) Whether there is penetration of penis in the vagina of the prosecutrix ? (3) Whether injuries or marks of injury is present to internal or outer side of vagina ? 22 cra103.11 (4) Whether stains of semen present inside or outside of vagina ? (5) And lastly the age determination test to confirm the age of prosecutrix. 24 Accordingly, Dr. Malhari stated that he carried out the medical examination of the prosecutrix with reference to the said letter Exh.26.