-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 519 OF 2007 CRIMINAL APPEAL NO. 519 OF 2007 CRIMINAL APPEAL NO. 519 OF 2007 Anish Subhash Mokal ¦ .. Appellant. Age: 22 years, R/at Johe, Tal- Pen, ¦ (Org.Accused) Dist. Raigad,(At present serving the ¦ sentence of R.I.at Kolhapur Jail) V/s. The State of Maharashtra ¦ .. Respondent. (Through Pen Police Station, Tal-Pen ¦ Dist. Raigad.) --- Mr.Shreekant V. Gavand for the Appellant. Mr.A.S.Shitole, APP for the Respondent-State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 30TH MARCH, 2009 DATED : 30TH MARCH, 2009 DATED : 30TH MARCH, 2009 (Judgment reserved on 13.01.2009) ( -"- pronounced on 30.03.2009) ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant/ original accused takes exception to the judgment and order dated 11th of April, 2007 passed by the Ad hoc Additional Sessions Judge (I), Raigad, where under he was convicted for the offence punishable under section 376 (2)(f), 341 and 201 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1000/- in default to suffer further R.I. for a period of two months for the offence punishable -: 2 :- under section 376 (2)(f) of the Indian Penal Code and simple imprisonment for one month for the offence punishable under section 341 of the IPC and R.I. for the period of one month for the offence punishable under section 201 of the IPC. The substantial sentences were directed to run concurrently. 2. The prosecution case in short is as follows : . PW-2, the mother of the prosecutrix resides at village Johe, Tal. Pen, Dist. Raigad. PW-3, the father of the prosecutrix resides in Mumbai as he works as Waiter in the hotel. On 4th of February, 2005 there was gathering in the High School at village Johe at about 12.30 p.m. The victim prosecutrix, who at the relevant time was 10 years old, had gone to the High School alongwith her sister and brother Aniket to witness the programme in the gathering. The mother of the prosecutrix was at home. The prosecutrix at about 3 p.m. on that day came back to the house and narrated to her mother that the Appellant forcibly took her near the village Tambadshet by rickshaw. The appellant stopped the rickshaw near one well of village Tambadshet and asked the prosecutrix to get down and took her at Amrai. There the appellant told the prosecutrix that he had been asked by one lady teacher to find out mole on her person. He removed the clothes of the prosecutrix. The -: 3 :- prosecutrix started weeping, however, the appellant kept his one hand on her mouth and gagged her. He removed the clothes on the person of the prosecutrix and thereafter removed his clothes. The prosecutrix was forced to lay on the ground. The appellant thereafter slept over the person of the prosecutrix and inserted his private part into private part of the prosecutrix and thereby committed sexual intercourse. The appellant thereafter threatened the prosecutrix of dire consequences in case she reveals the incident to anybody else. The appellant after accomplishing his desire, inserted his penis into the mouth of the prosecutrix. The appellant after completing his act of insertion, worn his clothes and the prosecutrix also worn her clothes. However, the nicker of the prosecutrix was taken away by the appellant. The appellant brought the prosecutrix on road, gave five rupees to her and went away. 3. The PW-2 mother of the prosecutrix after receiving the information inspected private part of the prosecutrix. It was reddish and there was swelling. PW-3 father of the prosecutrix was informed on telephone by the PW-2 mother. PW-3 instructed to her that he would come at village Johe. The father accordingly came to Johe in the morning on the next day and thereafter, PW-2 mother and PW-3 father alongwith the prosecutrix lodged a compliant in the pen police station. On the basis of the complaint -: 4 :- C.R.No.15/2005 came to be registered against the appellant under sections 376, 506, 341 of the Indian Penal Code. The Investigating officer thereafter, got done the medical examination of the prosecutrix and drew spot panchanama and arrested the appellant accused. After recording the statement of the witnesses and completion of investigation, the charge-sheet was filed in the court of judicial Magistrate First Class at Pen. 4. Since the offence punishable under section 376 (2)(f) of IPC was exclusively triable by the court of sessions, the case was committed to the Court of Sessions at Alibag, Raigad. The charge was framed against the appellant at Exh. 14, under sections 341,376 (2)(f) and 201 of the IPC. The charge was explained to the appellant in vernacular language. The appellant denied the charge and claimed to be tried. The defence of the appellant was of total denial. 5. In order to establish the guilt of the accused, the prosecution examined in all seven witnesses, namely, PW-1 the prosecutrix, PW-2 mother of the prosecutrix, PW-3 the father of the prosecutrix, PW-4 the panch witness to the spot panchanama. PW-5 is the panch to the panchanama under which the appellant was arrested. PW-6, is medical officer who examined the prosecutrix and PW-7 is the investigating -: 5 :- officer. The prosecution also relied upon the documentary evidence, namely, spot panchanama at Exh. 24. The arrest panchanama at Exh. 26. The certificate of the prosecutrix regarding birth date at Exh.39 and two medical certificates- one of the prosecutrix and the other of the accused at Exh. 28 and 29 respectively. 6. The learned Adhoc Additional Sessions Judge after appreciating the evidence led by the prosecution and after hearing the learned counsel for the respective parties, held that the prosecution successfully established that the appellant has committed offence beyond any reasonable doubt for which he was charged and sentenced as stated above. 7. Mr. Gavand, the learned counsel for the appellant took me through the evidence led by the prosecution and submitted that the prosecution has failed to prove guilt of the appellant beyond any reasonable doubt. He submitted that the rape alleged to have been committed at about 2 to 3 p.m. on 4th of February, 1005; however, the FIR was filed only in the evening of 5th of February, 2005 and thus there was delay, which the prosecutrix failed to explain. He also submitted that the prosecution evidence does not inspire confidence. He also submitted that in any case the evidence under section 376 (2)(f) is not at all established and at the most the prosecution could have said to have -: 6 :- established offence under section 511 read with section 376 of the IPC. He lastly submitted that the benefit deserves to be given to the appellant accused under section 360 of the Code of Criminal Procedure. He relied upon the decision of this court in the case of Shankar Tukaram Ursal vs. State of Maharashtra, reported in 1977 CRI. L.J. 476 1977 CRI. L.J. 476 1977 CRI. L.J. 476 and the decision of the Apex Court in Rahim Beg vs. State of U.P., reported in AIR 1973 Supreme court AIR 1973 Supreme court AIR 1973 Supreme court 343. 43. 43. 8. Mr. Shitole, learned APP per contra supported the impugned judgment and order. He submitted that there is enough evidence on record to establish appellant’s complicity in the offence alleged against him. He also submitted that delay in lodging FIR specially in rape cases should be construed liberally. He lastly submitted that in a rape case the evidence of the prosecution does not require any independent corroboration. He ultimately submitted that the appeal is devoid of any merit and the same deserves to be dismissed. 9. The Apex Court in the State of Punjab vs. State of Punjab vs. State of Punjab vs. Gurmit urmit urmit Singh (1996 CRI L.J. 1728) Singh (1996 CRI L.J. 1728) Singh (1996 CRI L.J. 1728) lays down some guiding principles while appreciating the evidence of the victim of rape. In para 20 of the judgment, the Apex Court has made following observations : -: 7 :- "Of late, crime against women in general and rape in particular is one the increase. It is an irony that while we are celebrating women’s rights in all sphere, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying and accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case an accomplice. The testimony of the prosecutrix must be appreciated in the back ground of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual mole stations.". 10. The above observations unequivocally make the position clear that the evidence of the prosecutrix need not require any corroboration and it can be acted upon, if the same inspires confidence. 11. Now let us consider the evidence of the prosecutrix in the light of the above observations of the Apex Court. -: 8 :- Exh.39 is a certificate regarding birth date of the prosecutrix, which reveals that the date of birth of the prosecutrix is 12th July, 1995. Thus on the date of incident she was hardly 10 years old. There is no serious dispute in this regard. The prosecutrix in her evidence also stated that her date of birth is 12th of July, 1995. She deposed that the appellant took her at the hill portion at village Tambadshet. She started weeping and at that time she asked the appellant as to where she was brought. The prosecutrix further deposed that at that time the appellant told her that one lady teacher asked him to examine mole on her person. She further testified that the appellant thereafter removed her clothes and made her to lay on the ground. He removed his clothes and laid down on her person. The appellant inserted his penis into her private part. He started to make up and down his body. It started paining into her vagina and she started weeping. She further testified that the appellant accused inserted his penis into her mouth and started to kiss her. The appellant then instructed her to wear clothes.. Her nicker was taken away by the accused. The appellant also threatened her to kill if she narrates the incident to anybody or her mother. She deposed that after she came to her home, she narrated the incident immediately to her mother. The prosecutrix was cross-examined in great detail by the defence. However, nothing could be brought on -: 9 :- record so as to discard her evidence in chief. I find that the evidence of the prosecutrix is cogent, reliable, trustworthy and, therefore, inspires confidence. 12. The evidence of the prosecutrix is corroborated by the evidence of her mother-PW-2. PW-2 in her deposition stated that her daughter, the prosecutrix, came at home at about 3 p.m. on 4.2.2005 and she was weeping. She enquired as to why the prosecutrix is weeping, thereafter, the prosecutrix told her that the appellant took her to Tambadshet and committed sexual intercourse. The evidence of PW-2 further disclosed that the prosecutrix told her that the appellant removed her clothes and his clothes also. The appellant thereafter, made the prosecutrix laid down on the ground and thereafter laid himself on her person and inserted his penis into her private part. PW-2 deposed that the prosecutrix told her that her private part was paining. The PW-2 also deposed about appellant’s insertion of penis in the mouth of the prosecutrix. PW-2 thereafter inspected the private part of the prosecutrix and the same was found of reddish colour and there was swelling. PW-2 thereafter called her husband and informed the incident to him. Her husband accordingly came to village Johe on next day. PW-2 thereafter,alongwith her husband, the prosecutrix went to the police station to lodge FIR. The evidence of PW-2 is not at all shattered, -: 10 :- though she was cross-examined in detail during the trial. PW-2 corroborates the evidence of PW-1 in material particulars. 13. PW-3, the father of the prosecutrix deposed that he received telephone call from his wife at about 7.30 p.m. on the date of incident. She told that the appellant forcibly committed rape on the prosecutrix. He further deposed since there was no bus service available to village Johe, he came to village Johe at about 08.30 p.m. on the next day morning, i.e. 05.02.2005. He also deposed that thereafter, he alongwith PW-2 and the prosecutrix approached the police station and lodged FIR. The evidence of PW-3 also corroborates with the evidence of PW-1 and PW-2. 14. The prosecution led evidence of PW-6, medical officer. He examined the prosecutrix at about 4.00 p.m. on 5.2.2005 in the presence of two female staff members. He found one contusion mark over the left side of her chest, medial to nipple, measuring about 2 x 1.5 cm.. It was irregular in shape and its age was more than 24 hours. He deposed that local examination was done and there was no pubic hairs. He further deposed that on vaginal examination, there were slight laceration at the upper forehitty, slight swelling near urethral opening. He found labia majora was lightly -: 11 :- swollen lacerated in upper part. There was some laceration over labia minoras. PW-6 Doctor further testified that hymen was found intact and there was no evidence of fluid (blood) or semen like material in the vaginal part of the prosecutrix. PW-6 also testified that the above evidence suggests that there is no penetration in the vagina since hymen was found intact and there is no penetration in the vagina of the prosecutrix. PW-6 proved certified at Exh. 28. 15. Since I have already observed that the evidence of prosecutrix is genuine, trustworthy and inspires confidence, I find no merit in the first submission of Mr. Gavand. So far as the submission about delay in lodging FIR is concerned, the same is also devoid of any substance as the prosecution sufficiently explained the delay. The FIR could not be lodged on 4th of February, 2005 as the prosecutrix and her mother waited for arrival of PW-3, the father of the prosecutrix. It is but natural for the PW-2 to wait for arrival of her husband from Mumbai. PW-3 could not have come on the date of incident for want of transport facility from village Pen to village Johe. PW-3 ultimately came at 8.30 a.m. on the next date and thereafter, he alongwith his daughter and wife went to the police station to lodge a complaint. Thus I find that the delay is sufficiently explained by the prosecution. -: 12 :- 16. Now let us consider the third submission of Mr. Gavand that the prosecution at the most establishes offence under section 511 read with section 376 of the Act. Mr. Gavand in this regard heavily relied upon the evidence of PW-6, the Medical Officer who has deposed that hymen of the prosecutrix was found intact and there is no evidence of penetration. He also relied upon the decision of this court in Shankar Tukaram Shankar Tukaram Shankar Tukaram Ursal’s case rsal’s case rsal’s case (supra). In this regard I have already quoted the observations of the Apex Court in Gurmit Singh’s case. The Apex Court observed that if the evidence of the prosecutrix inspires confidence, it can be relied upon without seeking corroboration of her statement on the material particulars. In the present case, I find that the evidence of the prosecutrix is genuine, trustworthy and inspires confidence. Her evidence is corroborated by PW-2 her mother and PW-3 her father. There is direct evidence of the prosecutrix and evidence of the medical officer is nothing but the opinion. It is not necessary that the hymen should be ruptured in every case of rape. In a rape case there must be penetration in the technical sense, the slightest penetration is sufficient for constitution of an offence under section 375 of the IPC. PW-6 in term has deposed that there was slight laceration at the upper forehitty, slight swelling near urethral opening; labia majora was lightly swollen and -: 13 :- lacerated in upper part. In view of this evidence, I do not find any merit in the submission of Mr. Gavand that the prosecution at the most established attempt of rape, but no rape. The decision of this court in Shankar Tukaram Ursal’s case (supra) will not come to the rescue of the appellant as the doctor in that case admitted that congestion was quarter of an inch from vulva. The Apex Court in Rahim Beg’s Rahim Beg’s Rahim Beg’s case (supra) held that absence of injuries on the male organ of accused would point his innocence in case of rape on a girl of 10 to 12 years. This observation of Apex Court may not apply to the present case as in the present case, the accused was arrested on 9th of February, 2005 i.e. after five days of the incident as he was absconding and secondly, prosecutrix evidence inspires confidence which is corroborated in material particulars by the PW-2, PW-3 and PW-6-the medical officer. 17. This takes me to consider last submission of Mr. Gavand that the accused deserves to be given benefit under section 360 of the Cr.P.C.. Provisions of section 360 applies when the offender’s age is above 21 years and when the offence is not punishable for more than seven years. Since I have come to the conclusion that the prosecution has proved beyond reasonable doubt that the appellant is guilty under section 376 (2)(f), the provisions of section 320 have no application. -: 14 :- 18. Sofar as the conviction of the appellant under sections 341,201 is concerned, I find no error in the approach of the learned Sessions Judge. The evidence of the prosecutrix has established beyond any reasonable doubt that the appellant accused has committed the offence under section 341. The appellant took away nicker (underwear) of the prosecutrix, which could not be recovered during the investigation. Version of the prosecutrix in this regard needs to be accepted. The intention of the appellant in taking away the nicker of the prosecutrix must be to wipe out evidence. Thus conviction of the appellant in this regard is also justified. 19. In the result, I find no reason to interfere with the impugned judgment and order of the trial court. The appeal is devoid of any merit. Hence, the appeal is dismissed accordingly. (R.V.MORE,J.) .....