1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 16 OF 1999 Sajidbeg Yusufbeg Mirza, Age : 32 years, R/o Islampura, Amalner, Taluka Amalner, District Jalgaon. APPELLANT -VERSUS- The State of Maharashtra RESPONDENT Mrs. Deepali Jape-Ansingkar, advocate for appellant Mr. T.S.Lodhe, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 29th November, 2010 ORAL JUDGMENT : 1. This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Amalner in Sessions Case No. 23 of 1998, convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 500/- with default clause. 2. It is alleged that on 7th April, 1998 at about 11.30 a.m. while the appellant was alone in his house, he committed rape on a minor girl aged 3 years and caused injury to her vagina. 3. At the time of trial, the prosecution brought before the Court seven witnesses out of which the prosecution witness no.1, the mother of victim is an important witness. Besides her, the Medical 2 Officer, the prosecution witness no.3 Dr. Patil is also important witness, as he had examined the victim and has found injuries on her person. The prosecution witness no.7, the Investigation Officer is the last important witness, who stated as to how he investigated the case, prepared the panchanama and seized the clothes belonging to the accused on the same day. The last circumstance against the appellant is the findings of the Chemical Analyzer, which are mentioned in the Chemical Analysis Reports Exhibit 29, 30 and 31. 4. The prosecution witness no.1 stated in her deposition that on 07.04.1998, while she was in her house, she heard her daughter's cry from the outside. She went out of the house and realized that her daughter's voice was coming from the adjoining house belonging to the appellant. She came to the house of the appellant and heard her crying. She found the door of the house of the appellant was closed from inside. When she knocked at the door the appellant himself opened the door. The complainant rushed inside and picked her daughter up and found that her frock was wet and appeared washed. Yet she found some blood stains on her frock. She said, when she inquired with her daughter, her daughter told her that she had pain at her private part. She said, when she checked her private part, she found oozing of blood. She said, thereafter, she inquired the appellant as to what he had done to her daughter. To this the appellant replied to her that he had committed rape on her daughter. She said, she then brought her daughter at home and called her husband. Her husband came soon thereafter and they along with others went to the house of the appellant and enquired with him. She said, to this the appellant admitted having committed rape and threatened them. She said, thereafter, she came to the Police and lodged the complaint. She said, after lodging of the complaint, the Police sent her daughter to 3 hospital. As said above, the second important witness is prosecution witness no. 3 Dr. Patil, who said that on 07.04.1998, while he was working as C.M.O. of Municipal Hospital, Amalner at about 2.40 p.m. the victim was brought to him for medical examination. He said, on examination of the victim, he found external injuries to the genitals of the victim. He found, the victim's vagina swollen, congested and lacerated. He also found that the victim's hymen was ruptured and was found hemorrhagic. He opined that the injuries to the vagina of the victim were caused by pushing hard and blunt object in to the vagina. He said, erect penis of an adult male would cause such injuries. 5. The learned Judge of the trial Court believed the case of the prosecution and convicted the appellant. 6. While challenging this judgment and order, the learned Advocate appearing for the appellant submitted that the entire case depends on the deposition of the prosecution witness no.1. She said, this witness's deposition is not at all corroborated by any other witness. She said, this witness in cross examination admitted that when she heard the cries of her daughter, her neighbour had also come to the house of the appellant. She said, none of these neighbours were examined as witnesses. She further asserted that the prosecution should have examined the victim who was three years old and was in a position to talk. In absence of such evidence, she said, there is practically no corroboration to the deposition of the prosecution witness no.1. She further argued that no one saw the appellant committing the rape and so the learned Judge of the Lower Court wrongly assumed that it was the case of rape and it was because of the insertion of erect penis of the appellant, the victim sustained the injuries. She further asserted that the Investigation Officer could not have decided as to whether or not he should record the statements of the victim and her elder 4 but minor brother (it has come in evidence that Asif, is elder child of the prosecution witness no.1 and was at the relevant time five years old). She further pointed out that had the appellant inserted his erect penis in the vagina of the victim, he would have certainly sustained some injuries but since the prosecution witness no.4 Dr. Deshmukh stated that he did not found any injury on the person of the appellant, there was probably no rape at all committed by the appellant. She further pointed out that on the clothes of the victim and also of the appellant, the Chemical Analyzer did not find stains on semen. With this she asserted that there was probably no case of rape. Her submissions are devoid of merits. The prosecution witness no.1 is trustworthy witness. She has not exaggerated the account of the incident at all. The incident took place at broad day light. This witness, when heard the cries of her daughter, she probably thought that her daughter has sustained some injuries and she obviously rushed to the house from where the cries were heard. That was natural conduct on the part of any mother. Then when she went to the house of the appellant and gave a call to her daughter, the appellant himself opened the door. She found her daughter inside the house of the appellant. This clearly shows that the appellant and the victim at the relevant time were found in the house of the appellant. The appellant has not at all explained as to why he allowed the victim to come inside the house and as to why he closed the door from inside. If the prosecution witness no.1 found her daughter bleeding and as said above, if she indeed had sustained serious injuries to her tender vagina, it was again for the appellant to explain as to how the victim who was in his custody at the relevant time sustained the injury. Instead of explaining this circumstance against him, the appellant recorded his deposition in defence and stated that until 4 `O' clock on that day, he was sleeping in his house and the police came and arrested him. He 5 suggested that a false case is lodged against him at the behest of two persons, who wanted to purchase his house. He did not give any reason as to why the prosecution witness no.1 had made such serious charge against him. 7. Now the question still remains as to whether when the victim was in the custody of the appellant, he had raped her. As said above, there is no eye witness account. Therefore, one is left to guess as to what was inserted in the vagina of the victim while she was with the appellant. As said above, it was for the appellant to explain as to how the victim sustained the injury. But as said above, he made no attempt to explain it. Instead what has come on record is the fact that soon after the incident the appellant blurted out to the prosecution witness no.1 as well as her husband that it is he who had raped the victim. There is no reason why this confession of the appellant should not be taken into account to come to the conclusion that the appellant had raped the victim. 8. The Chemical Analyzer's Report proved further that the appellant has blood group `B' whereas, the victim has blood group `O'. The blood of the victim was found on the shirt of the appellant. It was again for the appellant to explain as to how the blood of the victim has come on his shirt. The prosecution thus has proved the case beyond the reasonable doubt. The judgment of the Lower Court deserves to be confirmed. 9. The learned Advocate for the appellant then contended that the appellant deserves leniency and his sentence should be reduced. She pointed out that the appellant from the date of arrest remained in custody till he was released on bail by this Court on 28th April, 1999. She said, the appellant was in custody for more than one year. I am afraid. I am not inclined to show any leniency to the appellant. The offence, he had committed, is very heinous. 6 When the matter was taken up for last time for hearing, I found that the appellant had not made contact with the learned Advocate appearing for him though she was appointed as Amicus Curiae. I then thought it fit to issue bailable warrant to him and yet he had not come before the Court. The appellant deserves exemplary punishment. The appeal stands dismissed. 10. Issue fresh arrest warrant against the appellant. 11. Learned Advocate Smt. Deepali Jape-Ansingkar appointed as an Amicus Curiae shall be paid remuneration of Rs. 2,500/-. ( A.V. NIRGUDE ) JUDGE gas/cria16.99/ok