( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 357 OF 1997 Satish Jijaba Ugalmugale, presently residing at village Joharpur, Tq. Shevgaon, District Ahmednagar. APPELLANT VERSUS The State of Maharashtra RESPONDENT ..... Mr. V.S. Kadam, advocate holding for Mr. R.N. Dhorde, advocate for the appellant. Mrs. Y.M. Kshirsagar, APP for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th October, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 311/1996 whereby appellant Satish has been convicted for offence punishable under section 376 read with section 511 of ( 2 ) the I.P. Code and is sentenced to suffer rigorous imprisonment for five (5) years. 2. In brief, the prosecution case is as follows : House of the appellant is situated in the proximity of house of the complainant – PW Suryakant. Minor Sonam alias Soni, niece of PW Suryakant, was attending school in second standard. She was then aged about seven (7) years. Her maternal cousin Ganesh was then residing with PW Suryakant. He was then aged about twelve (12) years. Complainant – PW Suryakant is serving as Mapadi (measurer) in market-yard at Shevgaon. His younger brother by name Balasaheb is mentally derailed. The family members of both the brothers reside together in the same house. Since Balasaheb is rather a simpleton person, complainant PW Suryakant looks after the family affairs. On 18th September, 1996, PW Sonam @ Soni and PW Ganesh were playing outside their house. The appellant asked PW Ganesh to go home at about 1 p.m. He thereafter picked up the minor girl (PW Sonam). He took her inside his house. He removed her undergarment (Jangya) after placing her beneath a ( 3 ) staircase on the second floor. He then removed his pant and ravished her. He threatened her that she shall not disclose the incident to anyone else or otherwise he would beat her. He gave her a fruit. After a short- while, her mother searched for Sonam and sent PW Ganesh to call her. She was found inside house of the appellant. She was having a fruit in her hands. She was taken to the house of her parents and uncle. She did not disclose the incident to anyone on that day. On the next day, she complained of acute pains in the private part. Her mother examined the private part and noticed that there was tenderness and swelling over the vagina. On further asking, PW Sonam narrated to her mother as to how the appellant had committed sexual intercourse with her in the noon of earlier day. This information was given to complainant PW Suryakant in the same noon. He approached the Police Station and lodged a report about the incident. The appellant was arrested for alleged offence of rape. The police sent PW Sonam @ Soni to the Rural Hospital, Shevgaon for clinical examination. She was examined by PW Dr. Swati Chunkhade who was the then Medical Officer attached to the Rural Hospital. The ( 4 ) Medical Officer noticed that there was redness and tenderness in the lower part of vulva. There was vaginal discharge present. The hymen was found intact. The Medical Officer opined that penetration of the vulva by male organ might have occurred. On basis of material gathered during course of investigation, the appellant was chargesheeted for the offence punishable under section 376 of the I.P. Code. 3. The appellant denied truth into the accusations. He pleaded “not guilty”. His defence is that there was some dispute between PW Suryakant and his family members on account of right to drift waste water from the open space in front of the houses. He suggested that due to such previous dispute, false charge has been slapped on him by PW Suryakant. 4. The prosecution examined in all six (6) witnesses in support of its case. The prosecution also produced certain documents viz. spot panchanama, seizure panchanama, reports of the Chemical Analyst and the medico-legal certificate. The learned Sessions Judge ( 5 ) held that the offence of rape was not made out from the evidence tendered by the prosecution. The learned Judge, however, came to the conclusion that the appellant attempted to commit the rape. Consequently, the impugned judgement of conviction and sentence is passed by the learned Sessions Judge. 5. On behalf of the appellant, learned counsel would submit that version of the prosecutrix (PW Sonam @ Soni) would not be sufficient because she was unable to describe the act of the appellant. He would submit that PW Suryakant might have tutored PW Sonam @ Soni to give a fabricated story. He contended that there are material contradictions between the versions of PW Sonam @ Soni and PW5 Ganesh as regards lifting of herself by the appellant from near the house. He would further submit that the criminal charge is unsustainable due to unreasonable delay caused in filing of the FIR. He invited my attention to admission of PW Sonam @ Soni that she was suffering from vaginal pains since before the alleged incident. It is argued that the learned Sessions Judge committed error while appreciating the ( 6 ) evidence of the witnesses and, therefore, the impugned judgement of conviction and sentence is unsustainable. Per contra, learned APP Mrs. Kshirsagar supports the impugned judgement. 6. Before I proceed to scrutinize the prosecution evidence, let it be noted that this is a case of alleged child abuse. The fact that father of the victim i.e. PW Sonam @ Soni is a simpleton person and his family members resides jointly with PW1 Suryakant is undisputed. The house of the appellant is situated in the proximity of the house of PW1 Suryakant is also an undisputed fact. The map (Exh-15) furnishes topography of the place of the incident. There is no dispute about the fact that there is a staircase on the upper floor of the house of the appellant’s parents. His father is a school teacher. The appellant was aged about 24 years at the material time. He was attending third year of Arts graduation course (B.A.). 7. Coming to the version of PW1 Suryakant, it may be gathered that he learnt about the incident on next ( 7 ) day. He verified the information after making inquiry with PW Sonam @ Soni. He thereafter approached the Police Station and lodged report (Exh-18). His version purports to show that he had examined private part of PW Sonam which indicated swelling over the vagina. He denied the suggestion that there was political rift between himself and the appellant. He also denied that there was dispute between his family members and the appellant’s family members on account of drifting of foul water from front of house of the appellant. In fact, the FIR (Exh-18) is lodged by him on basis of hearsay information and because he noticed swelling on private part of PW Sonam @ Soni. 8. Though PW2 Sonam @ Soni and PW5 Ganesh are the minor witnesses, yet, their versions would unmistakably show that they were playing in front of house of the appellant in the relevant noon. Their versions go to show that the appellant asked PW Ganesh to go home and thereafter, lifted PW Sonam @ Soni and took her inside his house. The testimony of PW Ganesh lends partial corroboration to the version of the prosecutrix. The ( 8 ) version of PW Sonam @ Soni goes to show that she was made to lie down beneath the staircase in the house and thereafter, her undergarment i.e. Jangya was removed by the appellant. She deposed that the appellant removed his pant and inserted his male organ in her vagina. It is true that the penetration of the male organ may not have occurred because the hymen was found intact during course of the clinical examination. Still, however, it cannot be overlooked that PW Sonam @ Soni was then of tender age and obviously could not have understood the meaning of the words related to the sexual intercourse. The testimony of such a child witness is required to be cautiously scrutinized. At the same time, the innocent account given by such a witness cannot be branded as `untrue version’ only because the witness is unable to describe each act of the accused in so far as the alleged fornication is concerned. 9. The learned counsel, appearing for the appellant, would submit that there was considerable delay in making disclosure about the incident to PW3 Shobhabai and other members of the family of PW ( 9 ) Suryakant and, therefore, it is probable that the appellant had been framed due to suspicion which could have arisen on examination of the private part of PW Sonam @ Soni. Mere delay in such a case would not indicate falsehood in the charge. There are two (2) material aspects. First, the minor may not be able to properly describe the acts of the accused or might not have disclosed such acts due to fear instilled in her mind by the accused. Secondly, the delay could be due to the avoidance of social stigma which is attached to such a charge of rape. The version of PW3 Shobhabai purports to show that the family members were busy in their house because there was festival of `Mahalaxmi’ and meals were arranged on the occasion of such festival. She admits that waste water of their house goes towards house of the appellant. This admission of PW Shobhabai cannot be blown out of proportion. There was no serious dispute on account of drifting of foul water by PW Suryakant and his family towards house of the accused. In any case, that could be the dispute between father of the appellant and PW Suryakant. It is unreasonable to believe that due to such trivial dispute ( 10 ) between the elders, for no much reason, a false case was prepared against the appellant. The testimony of PW Shobhabai reveals that PW Sonam @ Soni had gone to play outside the house of the appellant, but only PW Ganesh returned home after some time. Though she tried to search for Sonam @ Soni, yet, initially, she could not get her. Her version purports to show that after about one hour, she noticed that PW Sonam @ Soni was inside the house of the appellant. There was a fruit in her hands. She took her back home. The witness narrated as to how on next day, PW Sonam @ Soni complained of pains in the private part which was found to be reddish and swollen. 10. The medico legal certificate (Exh-22) is duly corroborated by PW4 Dr. Swati Chunkhade. Her version purports to show that on clinical examination of PW Sonam @ Soni, she noticed the redness and tenderness in the lower part of the vulva. According to the version of PW Dr. Swati, the penetration of male organ could have been attempted. She noticed vaginal discharge emanating from the vulva. She admitted that nothing ( 11 ) suspicious was found on clothes of PW Sonam @ Soni. It is also true that the reports of Chemical Analyst do not give any clue about presence of semen on the clothes of PW Sonal @ Soni. It cannot be overlooked that she had taken bath on the next day morning. Moreover, the minor witness was unable to describe the acts of the appellant in detail. It is not expected that she understands the meaning of the expression `ejaculation’. 11. It is not necessary to elaborately discuss the other evidence on record. PW6 API Dhanraj narrated as to what steps were taken during course of the investigation. The minor variations in the statements of witnesses and the discrepancies which were pointed out by the learned counsel for the appellant are of no impact on the core of the evidence tendered by them. The learned Sessions Judge has ascribed sufficient reasons in support of his conclusions. I am in general agreement with the findings of the learned Sessions Judge. On behalf of the appellant, reliance is placed on certain observations in “Bibhishan v. State of ( 12 ) Maharashtra” 2007 (11) JT 545. The Apex Court rendered acquittal in the given case on basis of the circumstances which gave rise to reasonable doubt about the appellant’s complicity. In the given case, the prosecutrix by name Anita was aged about 18 years and was habituated to sexual intercourse. The present case is on different footings. He also invited my attention to observations in “Baldev Singh v. State of Haryana” 2009 AIR (SCW) 33. The Apex Court considered the case wherein one Balwinder Kaur alias Rani was allegedly raped and done to death. The factual matrix in the given case and the present case stand on different footings. No parallels can be drawn from the given cases. 12. For the reasons aforestated, I am of the opinion that the charge for offence punishable under section 376 read with section 511 of the I.P. Code is duly proved against the appellant. The impugned judgement of conviction and sentence is legal and proper. No interference is called for. ( 13 ) 13. In the result, the appeal is dismissed. The impugned judgement of conviction and sentence is confirmed. The appellant shall undergo the remaining substantive sentence and for such purpose, he shall immediately surrender before the Sessions Court. The Sessions Court shall immediately issue warrant if the appellant will not surrender and shall ensure that the appellant would undergo the remaining substantive sentence. The compliance report be submitted by the Sessions Court to this Court within six (6) weeks after receipt of the writ. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl357-97