( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 251 OF 2010 Uttam s/o Chandu Thakare, R/o Manyarkheda, Taluka and District Jalgaon. APPELLANT VERSUS The State of Maharashtra, through the District Magistrate, Jalgaon, & M.I.D.C. Police Station, Jalgaon. RESPONDENT .... Mr. S.S. Nirkhee, advocate for the appellant. Mr. P.P. More, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th November, 2010] JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Adhoc Additional Sessions Judge-2, Jalgaon, in Sessions Case No. 39/2006. By that judgement, the appellant is held guilty for offence punishable under section 376 (2) (f) of the I.P. Code and has been sentenced to suffer rigorous imprisonment for ten (10) years and to pay fine of Rs. 2000/-, in default to suffer rigorous imprisonment for six (6)months. ( 2 ) 2. The prosecution case, stated briefly, is that complainant - PW Gautambai is a widow. She resides alongwith her children and her widowed daughter by name Dwarkabai. Said Dwarkabai resides in an adjacent part of the house alongwith her three (3) daughters and two (2) sons. On 6th June, 2005 at about 6 p.m., a minor granddaughter of the complainant - PW Gautambai was playing by side of a godown. However, she did not return home. The complainant and her son searched for her. Her son and other inhabitants of wada (house) brought the minor girl, namely, Sonabai aged about seven (7) years somewhere around 10.30 p.m. to the house of complainant PW Gautambai. It was noticed that the minor girl was continuously sobbing and weeping. The complainant (grandmother) noticed that the private part of the minor girl was swollen and blood was oozing therefrom. She received information that the minor girl was taken away towards the agricultural land of one Kautik Thakur by the appellant. The enquiry with the minor girl also confirmed the fact that the appellant had ravished her in that agricultural land. Consequently, complainant PW Gautambai went to Police Station and lodged the FIR in the next morning. The minor victim was referred for medical examination. The medical examination ( 3 ) revealed that the minor girl was subjected to forcible sexual intercourse as well as was forcibly sodomized. The appellant was found absconding from the village. He was subsequently arrested after a considerable lapse of period. On basis of material gathered during course of investigation, the appellant was put on trial for the offence of alleged rape on the minor girl. 3. The appellant denied truth into the accusation. He pleaded not guilty. No positive defence was raised by him. The defence was only of denial. 4. In order to bring home the guilt to the appellant, the prosecution examined six (6) witnesses in support of its case. The prosecution also placed on record certain documents viz. spot panchanama, medico-legal certificates, etc. The learned Sessions Judge came to the conclusion that the prosecution story is reliable and the evidence adduced during the trial was sufficient to convict the appellant for the alleged offence of rape. Accordingly, the impugned judgement and order was rendered. 5. Mr. Nirkhee, learned advocate appearing for the ( 4 ) appellant, would submit that in absence of any direct evidence, the prosecution version could not have been accepted. He would submit that the prosecutrix is rustic, of tender age and is not a reliable witness. He would submit that the prosecutrix was tutored and, therefore, no implicit reliance could be placed on her version. He contended that the appellant is not proved to be the alleged rapist. Hence, he urged to allow the appeal and acquit the appellant. Per contra, the learned A.P.P. supports the impugned judgement. 6. The points which arises for determination are thus :- (i) Is it proved that the appellant committed sexual intercourse with the minor girl, aged below 12 years in the relevant evening, by taking her away and ravished her by use of force ? (ii) Is the impugned judgement and order legal and proper? 7. At the threshold, let it be noted that this is a case of alleged child abuse. The victim was approximately aged ( 5 ) about seven (7) years at the relevant time. She was not administered oath by the Sessions Court. Though she was examined as a prosecutrix, it is conspicuous from her version that she was unable to understand importance of oath. The learned Sessions Judge found that PW4 Soni (the minor victim) was of tender age and unable to understand sanctity of the oath. It is explicit that she is member of Scheduled Tribe, is rustic, innocent and unable to know the import of the alleged acts committed by the appellant. She narrated that he had slept over her body and, therefore, she suffered bleeding from her vagina. The statement of the victim may not be clear enough in so far as the act of the sexual intercourse is concerned, yet, her version makes it amply clear that it was the appellant who had taken her to the agricultural land and had fallen over her body. She stated that before her maternal uncle, reached the place, the appellant fled away from the spot. The learned Sessions Judge further noticed demeanor of the witness. He found that the minor victim was in tears whilst in the witness box. It is but natural that she shuddered while recollecting the incident of forcible sexual intercourse. Her version does not appear to be unnatural. 8. So far as the involvement of the appellant is ( 6 ) concerned, there is direct version of PW6 Raju Sonawane. He claims to have seen the appellant while taking away the minor victim towards the agricultural land. His version purports to show that the minor victim was having one (1) packet with her. His version further purports to show that he informed the complainant regarding such observation. His version further shows that while he was sitting on the steps of the office of Cooperative Society, PW5 Hari inquired with him whether he had seen the minor girl. He thereafter had revealed the fact that the appellant had taken her away towards the agricultural land. He accommodated PW Hari during the search for the minor victim. They noticed that she was in the agricultural land of one Kautik Thakur. Nothing of much importance could be gathered during course of her cross-examination. He has no business to speak lie. He has no animus against the appellant. His version does not suffer from any serious infirmity. It will have to be, therefore, said that he had seen the appellant in the company of the prosecutrix in the relevant evening and both of them were seen going together towards the agricultural land. One of the important aspects of the version of PW Raju is that he also had seen a packet in the hand of the victim. It can be gathered, without difficulty, that the appellant had allured the minor girl by ( 7 ) giving her some eatables in the packet, to go with him towards agricultural land. 9. From version of PW5 Hari, it is explicit that he and PW Raju together went to the agricultural land of said Kautik Thakur and thereafter, brought the minor girl back home. 10. The testimony of PW1 Gautambai purports to show that when the minor girl was brought back home, she was weeping. Her version reveals that she examined person of the minor girl as she had been with the appellant since evening time till about 10.30 p.m. The version of PW Gautambai purports to show that she found that blood was oozing from vagina of the minor girl. She also noticed that the minor girl was unable to walk properly. The victim was staggering. Her private part was swollen. On enquiry, the victim narrated to the grandmother that the appellant had removed her underwear and had slept on her body. In the next morning, PW Gautambai approached the police and gave her report (FIR - Exh-30). She admits that the appellant is her relative. She further admits that prior to filing of the FIR, she and her relatives held a meeting and decided to lodge the FIR. Beyond these admissions, there is no loophole in her version. These admissions are also of no ( 8 ) much avail. There is no enmity between PW Gautambai and the appellant. Ordinarily, no such complaint could have been filed against the relative. Though PW Gautambai and her relatives sat together and decided to lodge the report, it does not reflect any concoction of the prosecution story committed by either of them. One cannot be oblivious of the stark reality prevailing in the rural area and particularly amongst the community of Scheduled Tribe. The tradition "Jat Panchayat" is still in vogue in the community of tribals like bhills of which PW Gautambai is the member. Obviously, without consultation of the relatives, she might not be thought it proper to lodge the report against the appellant. For, she could have the fear of her being out-casted by the community. In this view of the matter, her conduct cannot be regarded as unnatural. 11. The testimony of PW2 Dr. Smt. Kavita purports to show that the minor victim was examined on 8th June, 2005. She noticed multiple contusions and abrasions on the back of the minor girl. She also noticed that the vulva was o edematous, the hymen was torn at 6 O'Clock position. There was bleeding present. It is explicit from the medical report and the version of PW Dr. Smt. Kavita that the minor victim ( 9 ) was subjected to forcible sexual intercourse through the vagina as well as through the anus. There cannot be any doubt abut the fact that the minor was sexually abused. The act of the appellant is reflective of sexual perversity. 12. The Medico-Legal certificate (Exh-20) is duly corroborated by PW Dr. Smt. Kavita. There is hardly any reason to dislodge her version. It is true that the appellant also was medically examined and no injury was found on his private part. The Medico-Legal certificate (Exh-32) shows that he was found capable of performing the sexual intercourse. What transpires from the record is that the appellant was found absconding from the village locality for a long drawn period. He was arrested on 24th January, 2006. It appears that he was clinically examined at the fag end of January, 2006. The incident occurred in the first week of June, 2005 and for about six (6) months, the appellant was unavailable for the purpose of investigation. This conduct of the appellant also speaks voluminous. The absence of injuries on his private part is of no consequence in the given circumstances. The reasons ascribed by the learned Sessions Judge are quite legal and proper. I am in general agreement with the findings of the Sessions Court. I do not find any ( 10 ) substantial reason to interfere with the impugned judgement of conviction and sentence. 13. In the result, the appeal is dismissed. The impugned order of conviction and sentence is maintained. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl251-10