((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.689 OF 2006 Ramesh Yashwant Bibavanekar Appellant (Org.Accused) versus The State of Maharashtra Respondent Mr.Rajan M. Salvi, appointed advocate for applicant. Mr.J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 12th January 2009 JUDGEMENT : 1. Heard learned counsel appearing for the appellant and learned Additional Public Prosecutor for the State. The conviction of the appellant is for the offence punishable under section 376 of the Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for seven years. Fine of Rs.1,000/- has been imposed. In default of payment of fine, he has been directed to undergo rigorous imprisonment for fifty days. 2. With a view to appreciate the submissions ((-2-)) made by the learned Counsel appearing for the parties it will be necessary to refer to the facts of the case in brief. According to the prosecution case, the prosecutrix is a married woman having three children residing at Bibavane, Taluka Kudal, District Sindhudurg. At the relevant time the elder daughter of the prosecutrix was fifteen years old. The prosecutrix and her husband are labourers. The accused is having his house in front of the house of the prosecutrix. In May 2003 the prosecutrix was engaged in the work of massaging and taking care of new born child. On 16th May 2003 at about 2.00 to 2.15 post meridiem the prosecutrix was returning from the house of Mahesh Samant after completing her work along a foot way. On the way she met the appellant- accused on the land of one Mr.Loke. The appellant-accused held and pulled end of her saree from the back side. When the prosecutrix questioned the accused as to why he was holding her saree, he called her in the adjoining bushes for work for five minutes. The prosecutrix was taken to the bushes and thereafter the accused committed the offence of rape. The prosecutrix raised shouts on two occasions. According to the case of the ((-3-)) prosecution one Gita Naik came on site and on seeing her, the accused picked up his half pant and ran away. Thereafter Shashi Naik (PW-2), Kaka Naik, Padmakar Walavalkar (PW-3) rushed to the spot. The prosecutrix became unconscious and she was brought to the house of Shashi Naik. At the time of incident glass bangles of the prosecutrix were broken. FIR was lodged on the same day at 8.05 post meridiem with Kudal Police Station. 3. The learned counsel appearing for the appellant has taken me through the notes of evidence and the judgement. He submitted that the case made out by the prosecutrix in her evidence is inconsistent and the same does not inspire the confidence. He pointed out that in her complaint she has stated that after she raised shouts on the second occasion, one Geeta Naik arrived at the spot and after seeing the said Geeta Naik, the accused ran away by picking up his half pant. He pointed out that the prosecutrix has not even referred to the presence of said Geeta Naik in her examination in chief. He pointed out that the learned Trial Judge has drawn corroboration to the version of the prosecutrix by relying upon ((-4-)) chemical analyser’s report at Exhibit-40 which shows that the pettycoat on the person of the prosecutrix was having one semen stain of three centimetre in diameter having blood group "AB". He invited my attention to the physical examination of the accused at Exhibit-28 which discloses that the blood group of the accused was "B Rh Positive". He also invited my attention to the deposition of Dr.Shrikrishna Pendharkar (Exhibit-26). It is stated that even as per his deposition the report of the local laboratory disclosed that the blood group of the accused was B Rh Positive. He pointed out that the C.A.Report at Exhibit-42 disclosed that the blood group of the deceased was "AB". He submitted that in view of the conflict of opinion in the evidence of Dr.Pendharkar and the C.A.Report, the case of the prosecution regarding semen stains on the pettycoat will have to be discarded. 4. He also invited my attention to the evidence of other two witnesses Padmakar Walavalkar (Exhibit-19) and Shashikant Bhagwan Naik (Exhibit-20). He submitted that Geeta Naik who according to the FIR lodged by the prosecutrix was the first person who arrived at ((-5-)) the site has not been examined by the prosecution. He pointed out that the witness Padmakar Walavalkar was declared as hostile. He invited my attention to the evidence of Shashikant Naik. He pointed out that the said witness has not stated that the accused picked up his half pant and ran away. He pointed out that the witness has simply stated that on seeing him and Padmakar Walavalkar the accused ran away. He pointed out that thus even the witness Shashikant Naik has not supported the prosecution. He submitted that the evidence of the prosecutrix was not worth believing and the learned Judge has committed an error by accepting the testimony of the prosecutrix notwithstanding the serious infirmities in the prosecution case. He submitted that therefore the impugned order is perverse and deserves to be set aside. 5. The learned APP submitted that it is not necessary that there should be a corroboration to the testimony of the prosecutrix and the conviction under section 376 of the Indian Penal Code could be based only on the basis of the evidence prosecutrix. Inviting my attention to the evidence of Dr.Shrikrishna ((-6-)) Pendharkar, he stated that Dr.Pendharkar has clarified that in the document at Exhibit-28 blood group of the accused was mentioned by him as "B Rh Positive" as a local laboratory opined that his blood group was "B Rh Positive". He pointed out that the report of the chemical analyser shows that the blood group of the appellant-accused was "AB". He submitted that the learned Judge was absolutely right in relying upon the testimony of the prosecutrix He pointed out that the appellant-accused has admitted his presence at the time of incident. 6. I have given careful consideration to the submissions. It will be necessary to refer to the relevant part of the deposition of the prosecutrix at Exhibit-14. Paragraphs 3 and 4 of her deposition read thus :- "3. On 16/5/2003, at 10 a.m. I had gone to the house of Mahesh Samant. After doing the work of massaging and ablution of the child, I had my meals at the house of Mahesh Samant, and at 2 p.m. I started to return to my house. I was returning along the footway by the side of house of Loke. The accused came in front of me and told me that he was having work with me. I asked him what was the work. The accused told me that he would disclose the nature of work in the adjoining bushes. I told him to leave me and I was returning by taking a ((-7-)) turn to go to my house. That time the accused held end of my saree. The accused surrounded my saree around my neck and pulled it. The accused lifted me and took me towards the bushes. I shouted "Dhava re Dhava". The accused then laid me down and raised my saree and Parkar. Then he removed my underwear. Then he inserted his penis inside my vagina. When the noose of my saree around my neck was loosened, I raised shouts as "Dhave re Dhava". Then Shashi Naik and Padmakar Walavalkar came there. Then the accused took his underpant in his hand and ran away. Thereafter I lost my consciousness. I regained my conscious after half an hour at the same spot. Shashi Naik and Padmakar provided me water by taking me to the house of Shashi Naik. 4. I sustained a nail scratch on my left hand from the accused. My 4 bangles from both the hands were broken and I sustained minor abrasions on my arms. That time I was wearing green saree, green blouse and underwear of soil colour and red parkar. The accused was wearing a half pant and white shirt with red spots. The shirt was having white strips. Then I went to my house. My husband was not in my house. My son went to Pinguli and called my husband. Bibavane to Pinguli is a distance of 3 to 4 kms. My husband returned home at about 7 p.m. Then my self, my husband and Police Patil went to Kudal Police Station by rickshaw, and I lodged complaint. The F.I.R. now shown to me bears my signature. The contents are correct." A submission was made by the counsel for the appellant that in the complaint filed by the prosecutrix she stated that one Geeta Naik came to the scene of the offence after hearing her shouts and the said aspect is not mentioned by the prosecutrix in her deposition. Perusal of ((-8-)) the cross examination of the prosecutrix shows that surprisingly there is no cross examination made on this point. It will be necessary to refer to a part of the cross examination of the prosecutrix which reads thus :- "... ... It is not correct that I held the hand of the accused and then the accused forcibly pushed me and I fell down and then I raised shouts." The suggestion given by the advocate for the appellant-accused to the prosecutrix shows that the presence of the accused-appellant at the time of offence at the scene of the offence is admitted. In fact, in statement under section 313 of the Code of Criminal Procedure, 1973, the appellant-accused has not disputed his presence. His defence is that he had advanced a sum of Rs.500/- to the prosecutrix on two occasions. According to him, when he demanded the amount to the prosecutrix she told him that she would collect the money from her employer and thereafter she would repay his hand loan amount. His defence is that on the date of the incident, when he visited the house of Mahesh Samant to demand the money, he saw the prosecutrix and Mahesh Samant in compromising position. It is stated that the prosecutrix ((-9-)) met him and impressed upon him not to disclose the incident to any one and especially to her husband. According to the appellant-accused the prosecutrix held his hand and he gave jerk and removed her hand and thereafter false complaint has been filed. 7. The witness Shashikant Bhagwan Naik (PW-4) stated in his deposition that when he was talking with Padmakar Walavalkar (PW-3), he heard the shouts (Dhava) from the site of the stream. When he along with PW-3 rushed towards spot they saw that the prosecutrix was standing in footway and the appellant-accused has held her saree. He stated that on seeing them, the appellant ran away towards the Eastern side along the footway. According to him, the prosecutrix was in frightened condition and she was brought to his house and provided with water. PW-3 Padmakar deposed that after hearing shouts, he alongwith PW-4 rushed to the spot. He stated that he saw the prosecutrix sitting below a tree and he saw the accused running towards opposite direction. Both the PW-3 and PW-4 were declared hostile and were cross examined by the learned Public Prosecutor with the permission of the Court. ((-10-)) 8. The learned Trial Judge has drawn corroboration to the testimony of the prosecutrix from the fact that the report of the chemical analyser discloses that there were semen stains on her pettycoat of the blood group "AB". It is true that the concerned medical officer who deposed before the Court stated that the blood group of the accused as disclosed by the local laboratory was "B Positive" but the report of the chemical analyser shows that it was "AB Positive". The report of the local laboratory is not on record. The medical officer is examined before the Court is not a pathologist. Therefore, the opinion of the Chemical Analyser regarding blood group will have to be accepted. 9. Perusal of the deposition of the proseutrix shows that she is a married woman having three children. She is residing in a house in front of the house of the accused. The prosecutrix at the time of recording of her evidence in May 2005 disclosed her age as 32 years and stated that her eldest daughter was 17 years of age and she was having two sons who were 14 and 12 years of age respectively. The evidence on ((-11-)) record and especially the spot panchanama shows that the pieces of broken bangles were found at the spot of the incident which supports the case of the prosecutrix which is made out in paragraph 4 of the deposition. The learned Sessions Judge has observed that there was no reason for 32 years old prosecutrix having three children and especially a daughter of 17 years old to come before the Court and to depose against the accused and state that the offence of rape has been committed by the accused. The learned Judge observed and in my opinion rightly, that no self respected woman would come forward in the Court to make a humiliating statement against her own honour especially when she is married and she has three children. In the present case there is sufficient evidence on record to prove the presence of the accused at the time of incident and in fact his presence appears to be admitted. 10. The discrepancy in the opinion of the doctor regarding blood group of the accused and failure of the prosecutrix to disclose the presence of Geeta Naik on the site as well as the failure of the prosecution to examine the ((-12-)) said Geeta Naik, in my opinion, are not sufficient to discard the testimony of the prosecutrix. 11. Therefore, it is very difficult to find fault with the finding recorded by the learned Sessions Judge as regards guilt of the appellant-accused. 12. The learned counsel for the appellant has made submission on the sentence. However, there are no special reasons or circumstances brought on record to award the sentence less than the minimum prescribed by the section. He pointed out that the appellant has young children and a mentally dull wife. In this case the finding against the appellant-accused is of committing rape on a woman residing in the close vicinity of the house of the accused. The prosecutrix, as stated earlier, is married and has three children. Therefore, it cannot be said that there are special circumstances to reduce the sentence. 13. No case is made out for interference. The appeal is accordingly dismissed. ((-13-)) (A.S.OKA, J.)