Cri. Appeal 78/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 78/1999 Arun Bhagwan Waghmare, Age : 21 years, Occu. Labour, R/o Wadgaon (J) Taluqa Kallam, Dist. Osmanabad. ...Appellant. Versus The State of Maharashtra, through the P.P. High Court of Bombay, Bench at Aurangabad. ....Respondent. Mr. S.K. Mathpati h/f Mr. S.B. Talekar, Advocate for appellant. Mr. T.S. Lodhe, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J. Date : 21st December, 2010. ORAL JUDGMENT:- 1 This appeal is filed against the judgment and order passed by learned Sessions Judge, Osmanabad dated 03/02/1999 in Sessions Case No.173/1996 convicting the appellant for the offence punishable under Section 376 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/- with default clause. 2 The prosecution case is that on 04/10/1995 at about 12.30 p.m. (midday) at village Wadgaon at the house of the appellant, he committed rape on Pratibha a girl of seven years and thereby committed an offence punishable under Section 376 of Indian Penal Code. It is further alleged that after the rape, the appellant threatened Cri. Appeal 78/1999 2 Pratibha of dire consequences if she revealed the incident to anyone. The case of the prosecution depends on seven witnesses. The prosecution witness No.2 is the complainant. She is Pratibha’s mother Vaijayanta. She stated that on 04/10/1995 she and her husband left the house early, leaving behind her two minor daughters. The younger one was Pratibha aged seven years and elder one was Shobha aged 16 years. She stated, at about 7.00 p.m. when she came back, her daughter Pratibha started weeping. She said, she asked Pratibha as to why she was weeping. To this, Pratibha informed her that the appellant came to their house, took her away to his house and then inserted his penis in her vagina. She said, due to insertion, there occurred bleeding in her vagina. The witness then said that hearing this, she examined the vagina of Pratibha and found that it was still bleeding. She said, she then took Pratibha to Dr. Pawar on the next day. She said, Dr. Pawar told her to take Pratibha to Civil Hospital, at Osmanabad. The victim Pratibha whose deposition was recorded without administering oath because of her tender age, also reiterated what is stated by her mother. She stated that on that day when she and her sister were alone in the house, the appellant came to her and then told her that he would give her bread. She said, the appellant then took her to his house. She said, the appellant then took her in middle room of his house and then raped her. She said, due to the insertion she started bleeding. She said, the appellant then left her saying that he would bring some eatables for her. She said thereafter she came home and told the incident to her sister Shobha and then to her mother in the evening. Prosecution witness No.1 is Dr. Pawar whose name is Cri. Appeal 78/1999 3 referred to above. He said that on 05/10/1995 the complainant had brought victim Pratibha to his clinic. He said, he examined Pratibha and found that there was bleeding and swelling at her vagina. He said, he advised the complainant to take Pratibha to the Civil Hospital, at Osmanabad or at Kallamb. The appellant cross examined both – the complainant and victim and suggested to them that it was probably due to insertion of finger in the vagina by Pratibha the injury was occurred and bleeding had taken place. He denied his involvement in the case. However, he did not suggest that some one else might have committed the offence or that there was possibility of incorrect identification by the victim. None the less, the learned advocate appearing for the appellant tried to argue that the prosecution case should fail because it has failed to prove that it was the appellant who had committed the crime. He suggested that the victim who was nine years old girl, is the only witness who deposed that it was the appellant who had taken her to his house. He suggested that looking to the tender age of this witness, there was strong possibility of either tutoring or of wrong identification. He even tried to suggest that some one else had committed the rape and his client was falsely implicated. Indeed, at the time of trial, the appellant could have taken the defence that it was some one else and not him who could have taken the victim away from her house, for the purpose of committing rape on her. He could have even suggested that the victim did not know him since prior to the incident and therefore, could not have identified him as the perpetrator. He even could have suggested to the prosecution witness No.2 -the victim- that she had wrongly identified him as the person Cri. Appeal 78/1999 4 who ravished her. But unfortunately, despite of it, the appellant did not pursue this line of defence that probably it was not possible for him to do so because he has not denied the fact that his house is opposite the house of the complainant and therefore, the complainant and the victim knew him since prior to the incident. Thus, this could not be a case of wrong identification. 3 The learned advocate appearing for the appellant then suggested that in view of the tender age of the victim, she could not have explained in her deposition that the appellant had actually inserted his penis in her vagina. He thereby suggested that the appellant probably did not rape the victim but probably fondled her vagina. The he took me through the deposition of the victim who described the incident in following words. “Then the accused removed my underwear i.e. jangya, then the accused committed forcible intercourse on me”. He questioned the ability of the nine years old girl's to understand the meaning of the word “intercourse”. He also suggested that in a situation of this nature, the learned judge of the trial Court should have recorded the deposition of the victim of young age in detail, so as to prove that the accused had inserted his erect penis in the vagina of the victim. Indeed the learned advocate’s submissions are quite correct when he said that the learned judge of the trial Court should have recorded the testimony of this important witness, giving proper details. The learned judge of the trial Court should have asked victim as to what she really meant by the word “sexual intercourse”. He further pointed out that the Medical Officer prosecution witness No. 7 Dr. Cri. Appeal 78/1999 5 Sudhir specifically mentioned in his deposition that when he examined the appellant clinically, he did not find any injury on his penis. I think, there is substance in the submission of the learned advocate. The learned judge of the trial Court as well as the learned A.P.P. who had recorded the testimony of the victim should have taken more care while recording the testimony so as to bring on record the details of the act of the appellant. A young girl of nine years would certainly not understand the meaning of the word “intercourse”, or the word “Sambhog” which is used in taking down her deposition in Marathi. In absence of such vital details in the deposition of the victim, one can not draw a conclusion that the appellant had inserted his penis in the vagina of the victim and so I think, the appellant should succeed in dispelling the prosecution case of rape. None the less the appellant can not escape his conviction under Section 354 of Indian Penal Code. Section 354 of Indian Penal Code reads as under. Section 354 :- Section 354 of I.P.C. “Assault or criminal force to woman with intent to outrage her modesty:- Whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a Cri. Appeal 78/1999 6 term which may be less than five yeas, but which shall not be less than two years. 4 The prosecution has amply proved that the appellant took the victim to his house and then took her in the middle room of the house and then he closed the door of the room and removed the underwear of the victim, and thereafter the prosecution proved that the victim sustained injury on her vagina. The prosecution has also amply proved through the deposition of the victim that it was the appellant who had done something to the vagina of the victim which has caused injury to it. I am therefore, inclined to convict the appellant under section 354 of Indian Penal Code. 5 On the point of sentence, I heard the learned advocate appearing for the appellant. He urged me to be lenient. He said, the incident took place way back in the year 1995 and the appellant is undergoing the rigours of the prosecution since last 15 years. He said, his substantive sentence should be reduced to the period which he has already undergone. He said, the appellant was in custody for one month prior to filing of the charge sheet. He also urged me to give benefit of The Probation of Offenders Act. He said, the appellant has no previous enmity and during the last 15 years, the appellant is not involved in any other case. I think, the appellant deserves reduction in the substantive sentence but not to the extent which the appellant’s advocate suggested. I would reduce the substantive sentence of the appellant to 1 ½ years of the rigorous imprisonment. ORDER a) The appeal is partly allowed. b) The conviction of the appellant under Section 376 Cri. Appeal 78/1999 7 of Indian Penal Code in Sessions Case No. 173/1996 passed by the Sessions Judge, Osmanabad, passed on 03/02/1999 is set aside. c) The appellant is convicted for offence punishable under Section 354 of Indian Penal Code and he is sentenced to suffer rigorous imprisonment for 1 ½ years and to pay a fine of Rs.500/- (Rs. Five hundred) i.d. he should undergo sentence of imprisonment for one month. d) The appellant is taken in custody. (A.V. NIRGUDE, J.) ts k/ok