1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1277 OF 2003 PRABHAKAR TULSHIRAM KAMBALE APPELLANT Vs. THE STATE OF MAHARASHTRA RESPONDENT Mr. Rakesh Bhatkar for the appellant Ms. P. H. Kantharia, APP CORAM:-SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED :-4/1/2010 ORAL JUDGMENT:-(Per Smt. Ranjana Desai, J.) The appellant (“the accused”) was charged for offences punishable under Section 376, 323, 506(1) of the Indian Penal Code (“IPC” for short) on the allegation that he confined his daughter Vaishali in his house, gave her threats by showing knife and after assaulting her, committed rape on her forcibly. The accused was tried for the said offences in Sessions Case No. 928 of 2000 in the Court of Sessions for Greater Bombay. By the impugned 2 judgment and order dated 28/2/2003 learned Sessions Judge has convicted the accused under Section 376 of the IPC and sentenced him to suffer imprisonment for life and fine of Rs.5000/-. In default the accused has to suffer further R.I. for one year The accused has also been convicted for an offence under Section 323 of the IPC and sentenced to suffer R.I. for one year. The accused has also been convicted for an offence punishable under Section 506 Part-I of the IPC and sentenced to suffer R.I. for two years. The substantive sentences are to run concurrently. Being aggrieved by the said judgment and order the accused has approached this court. 2. It is necessary to begin with the facts of the case. a) The prosecutrix PW 1 Vaishali at the relevant time was 14 years of age. She was residing with her parents, two brothers and two sisters at Dahisar Naka, Ketkipada. Her mother PW 2 Saraswati is working in a factory. The accused used to work as a labourer on the trucks carrying sand. From May, 2000 he was not doing any work. PW 2 used to go for work early in the morning and return home at about 7 p.m. Sometimes she used to return home at about 9 p.m. b) PW 1 was not going to school. Her two sisters and two 3 brothers used to go to school. Her brother Vishal was very young and she used to look after him. She and her two sisters used to do household work in the absence of her mother. According to PW 1 from May 2000 the accused used to threaten her at the point of knife. He used to beat her and used to have sexual intercourse with her forcibly. About 5-6 times he had sexual intercourse with her when her mother was away. Whenever nobody was present in the house the accused used to have sexual intercourse with her. c) PW 1 lodged the FIR on 25/6/2000 in which after narrating the above history she stated that a day prior to the FIR i.e. on 24/6/2000 her sister Vrishali and Devshali went to fetch water. Her mother went for work. She feared that the accused would again have sexual intercourse with her, therefore, she did not send her brother Amol outside the house. However the accused beat Amol and sent him out. She was in the house along with her small brother Vishal. The accused closed the door from inside and asked her to sleep with him but she refused to do so. She sat in one corner with her small brother. Then the accused came to her. He pushed her brother Vishal away and started kicking her with his leg. He took her to a chatai by holding her hand. He asked her to sleep on the chatai. He removed her salwar and committed rape on her. He told her that she should 4 wash her private part. She wore her salwar. Thereafter the accused opened the door and her sisters came inside. In the night time she went out to answer nature’s call with her sister Devshali. Devshali asked her what her father was doing with her and why he was sleeping with her. PW 1 then asked Devshali as to how she could know this. Devshali told her that she saw what accused was doing from the hole of the door when she came back with water. She told Devshali that as the accused assaulted her she slept with him. Then Devshali told her that they should not stay there and they should go to their grandmother’s house. According to PW 1 her tolerance had worne out and, therefore, next day morning i.e. on 25/6/2000 she went to the Dahisar Police Station and lodged the complaint which is Exhibit-7. On the basis of the said complaint investigation was set into motion. After completion of the investigation the accused came to be charged as aforesaid. 3. In support of its case the prosecution examined as many as 7 witnesses. The star witness of the prosecution is PW 1 Vaishali. The prosecution examined PW 2 the mother of the prosecutrix. The medical evidence was given by PW 6 Dr. Patil, who was at the relevant time attached to Nagpada Hospital. The details of investigation were given by PW 5 API Dhatrak attached to Dahisar Police Station at the relevant time. 5 4. The accused denied the case. According to the accused his relations with his wife had soured. PW 1 Vaishali was moving around with a boy for which he scolded her and, therefore, in collusion with her mother i.e. PW 2, PW 1 Vaishali lodged false complaint. In support of his defence, the accused examined DW 1 Lalita Shantaram Kamble, who is his sister. 5. After perusing the evidence on record learned Sessions Judge was of the view that the prosecution had proved its case beyond reasonable doubt. He, therefore, convicted the accused as aforesaid and hence this appeal. 6. We have heard Mr. Bhatkar, learned counsel appearing for the accused at some length. Mr. Bhatkar submitted that the prosecution has failed to prove its case beyond reasonable doubt. He submitted that PW 1 Vaishali has in collusion with her mother PW 2 Saraswati fabricated a false case against the accused because the accused had scolded her for her loose behaviour. He submitted that it is inherently improbable that the prosecutrix would not inform her mother about the rape committed by her father on her. He submitted that it is the case of the prosecution that sister of the prosecutrix had witnessed the incident, however, the prosecution has failed to examine her. Therefore, necessary corroboration to the version of the prosecutrix is not available. In the circumstances it is very risky to rely 6 on the sole evidence of the prosecutrix. Learned counsel submitted that, therefore, the conviction and sentence be set aside and the accused be set at liberty. It is not possible for us to accept the submissions of learned counsel for the appellant for the reasons, which we shall now state: 7. In several judgments the Supreme Court has explained how a rape victim’s evidence is to be appreciated. Rape victim is like an injured witness and her evidence cannot be lightly discarded. In Dinesh v. State of Rajasthan, (2006) 3 SCC 771, the Supreme Court has observed as under: “In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sexual offence is entitled to great weight, notwithstanding the 7 absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 were: “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge....” Keeping the above observations of the Supreme Court in mind, we need to appreciate the evidence of PW 1. 8. PW 1 Vaishali was 14 years of age when the accused committed rape on her. The accused is her father. PW 1 has clearly stated that the accused kept threatening her that if she disclosed the fact that he subjected her to sexual intercourse to her mother he would harm her mother and also subject her sisters to sexual intercourse. He used to also threaten her that, if she did not sleep with him, he would rape her sisters. It is clear from the evidence of PW 1 Vaishali and her mother PW 2 Saraswati that the accused was not working regularly. It is PW 2 Saraswati, who used to go out for work. For 8 her work she used to leave house early in the morning and come home late in the evening because she had to take care of her family which consisted of her husband, two sons and three daughters. It is obvious that the accused was most of the time at home with the children. PW 1 was, therefore, at his mercy. The accused persistently raped PW 1. It appears from the evidence of PW 1 that he used to ensure that nobody is in the house so that he could commit rape on her. He used to drive the brothers of PW 1 out of the house so that he could be alone with her. He used to beat her with a whip and threaten her at the point of knife. Fearing that her mother and sisters would be harmed PW 1 did not disclose this fact to anybody. Being fed up with the dastardly acts of the accused ultimately PW 1 mustered courage and lodged her complaint Exhibit-7 with the Dahisar Police Station on 25/6/2000. 9. We are impressed by the testimony of PW 1. Her evidence is straightforward and honest. She has narrated the history and the last act of rape clearly. She has been subjected to cross-examination but in the cross- examination the defence has not been able to make any dent in her version. She has stood firm in the cross-examination, so far as her case against the accused is concerned. Her conduct of not informing anybody about the rape committed on her by her father cannot be taken against her. No daughter 9 would like to tell anybody that her father had raped her. Besides this conduct of hers must be examined against the backdrop of facts narrated by her. She has stated that the accused threatened her that, if she disclosed the facts of rape to anybody her mother would be harmed and her sisters would be raped. She has stated that the accused used to come home drunk and beat her, her mother and her siblings. This is also corroborated by PW 2 . She has further stated that first time when she was raped she had bleeding but she did not tell her mother about it because her father had told her that, if she told her mother about it he would kill her and her mother and would burn them. She has stated that the accused used to beat her with a whip and threaten her at the point of knife. Precisely for all these reasons that PW 1 appears to have not told her mother about the rape and directly gone to the police station. 10. It was tried to be suggested in the cross-examination that because PW 1 was moving around with a boy the accused scolded her. It was suggested that the accused’s relations with PW 2 i.e. his wife were strained and, therefore, PW 1 and PW 2 filed a false case against the accused. This defence case must be rejected. We cannot lose sight of the fact that when it was suggested to PW 1 that she was moving around with one boy and, therefore, the accused scolded her, she denied the suggestion. She started 10 weeping in the court saying that false allegations are levelled against her. PW 2 had five children from the accused. She is married to him for several years. In her evidence to which we will soon come, she has stated that she thought that her husband would improve and hence she never told anyone about the ill-treatment meted out to her. If PW 2 wanted to falsely implicate the accused, she would have done so long back. Besides no wife or a daughter would want to implicate husband or father respectively in heinous crime of this nature. We have no hesitation in rejecting this case of the defence. 11. PW 2 Saraswati has corroborated PW 1 about the fact that the accused was not doing any work and that he used to beat her and her children. Undoubtedly there is a discrepancy between her evidence and the evidence of PW 1 to the effect that while PW 1 has categorically stated that she did not tell PW 2 about the rape, PW 2 has stated that PW 1 did tell her about it, but she did not believe it because no father could rape his daughter. In our opinion, this discrepancy does not discredit the prosecution story. Even if PW 2’s evidence is left out of consideration, evidence of PW 1 is strong enough to bear out the prosecution case. Besides it is supported by cogent medical evidence to which, we will advert at the appropriate time. 11 12. It is urged that the prosecution has not examined Devshali, sister of PW 1, who is said to have seen the incident of rape through the hole in the door and, therefore, there is no corroboration to PW 1’s version. This submission must be rejected. PW 7 PI Kakde, who was part of the investigating team has stated that he had recorded the statement of Devshali. He has further stated that Devshali had gone to Rajasthan after marriage and though several efforts were made to trace her she could not be found. PI Kakde has not been cross-examined on this aspect. DW 1 Lalita Kamble has confirmed that Devshali is married and is staying with her husband at Rajasthan. Therefore, non-examination of Devshali does not have any adverse impact on the prosecution case, because her absence is explained by the prosecution. 13. The evidence of PW 1 is amply corroborated by the medical evidence. PW 3 Baban Nirgude is the pancha of panchnama Exhibit-12 under which clothes of PW 1 and other articles from the house of the accused were seized. He has proved the panchnama Exhibit-12. PW 4 is Majid Isac Shaikh. He is the pancha to Exhibit-14 under which clothes of the accused were taken charge of. PW 4 has proved panchnama Exhibit-14. The clothes and the seized articles were sent to the Chemical Analyser. 12 14. PW 6 Dr. Patil was the medical officer attached to Nagpada Hospital at the relevant time. He has stated that on 25/6/2000 he examined PW 1 at the Nagpada Hospital. According to him PW 1 gave the history. She stated that since one month her father was having sexual intercourse with her forcibly, without her consent. She further told him that on 24/6/2000 her father had sexual intercourse with her and had beaten her. Dr. Patil found following injuries on PW 1; i) Contusion on left arm from front top of shoulder size varies. 3 cm x 1 cm bluish black in colour. ii) Contusion on right thigh laternally 7 cm above from knee joint, Size 4 cm x 1 cm bluish black in colour. Dr. Patil has stated that these injuries could be caused by a hard and blunt object. These injuries, in our opinion, are sufficient to establish PW 1’s case that the accused had kicked her with his leg when she refused to sleep with him. 15. Further relevant part of Dr. Patil’s deposition may be quoted: “On local examination of private part her hymen was torn, position of 13 tear 3,6,9 O’clock position. Age of tears old healed. Administered 2 fingers. Finding of private part consistent with the history given by victim girl. X ray had taken of wrist, elbow, shoulder and knee joint. According to me her age on the basis of secondary sex character, dental status and occification test is between 14-15 years. Medical certificate is in my handwriting and it bears my signature it is at Exh. 17.” 16. It is apparent from Dr. Patil’s above evidence that PW 1 was a minor at the time when the incident took place and she was persistently subjected to sexual intercourse. Dr. Patil has been cross-examined, however, he has stood firm in the cross-examination. 17. Another piece of evidence which is clinching is the chemical analyser’s report. It is at Exhibit 28. The report indicates that 1 semen stain of about 1 cm in diameter, one semen stain of about 2 cms in diameter and one semen stain of about 3 cms in diameter were noticed on the underwear (Exh.-1) of PW 1. On Exhibit-2 which is kurta of the PW 1 two semen stains each of about 2 cms in diameter were found. On quilt (Exh.-7) seized from the house, one semen stain of about 1 cm in diameter, one semen stain of about 2 cms in diameter and one semen stain of about 3 cms in diameter were found. The underwear and kurta of PW 1 were blood-stained. On the 14 quilt also the semen of the accused were found. It has come on record through the evidence of PW 1 that PW 1 had gone to the police station wearing the same clothes which she was wearing when the rape was committed and the clothes were seized immediately. The semen stains are of the blood group of the accused. This piece of evidence brings home guilt to the accused. 18. The defence of the accused is obviously concocted. The evidence of DW 1 Lalita Kamble does not inspire confidence. She has been examined to establish that PW 1 and the accused had hardly any chance to be together alone. According to her she used to cook in the house of the accused. She stated in the evidence that she would be there from 10 a.m. to 5 p.m. and at about 5-30 p.m. PW 2 would come home. This case has not been put to PW 1 and PW 2. Lalita Kamble stated that the accused had scolded Vaishali because she was going around with a boy. This is denied by PW 1. In any case even, if it is assumed for a moment that the accused had scolded PW 1 it is difficult to believe that a daughter would lodge a case of rape against her father on that count. It cannot be forgotten that her reputation is also at the risk of getting tarnished and unless the case is genuine a daughter would not rush to the police. In any case, in view of the prompt lodging of the FIR, cogent and clinching medical evidence and credible evidence of the 15 prosecutrix, in our opinion, the inherently improbable defence of the accused will have to be discarded. We have no hesitation in recording that the prosecution has proved its case to the hilt. 19. In the circumstance, the appeal is dismissed. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.) 16 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1277 OF 2003 PRABHAKAR TULSHIRAM KAMBALE APPELLANT Vs. THE STATE OF MAHARASHTRA RESPONDENT Mr. Rakesh Bhatkar for the appellant Ms. P. H. Kantharia, APP CORAM:-SMT. RANJANA DESAI & SMT. MRIKDULA BHATKAR, JJ. DATED :-4/1/2010 OPERATIVE PART OF THE JUDGMENT: For the reasons stated in the Oral Judgment, this court has dismissed the appeal. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.) 17