1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 643 OF 2009 Damodhar s/o Rambhau Inchal, age 67 years,occ. Agri. Labour, r/o Dudhna Kalegaon, Tq. and Dist. Jalna ...Appellant (original accused) VERSUS The State of Maharashtra through police station, Osmanpura, Aurangabad ...Respondent ..... Shri J.V.Deshpande, advocate for the appellant Shri S.D.Kaldate, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 15.6.2010 DATE OF PRONOUNCMENT OF THE JUDGMENT : 01.7.2010 2 J U D G M E N T :- 1 The challenge in this appeal is to the conviction and sentence awarded by learned Additional Sessions Judge-5, Aurangabad in Sessions Case No. 102 of 2008 on 21.11.2009, convicting the appellant (original accused) herein for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for ten years and to pay fine of Rs.1,000/-, in default of non-payment of fine to suffer further Rigorous Imprisonment for two months; and also convicting him for the offence punishable under Section 342 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for one year and to pay fine of Rs. 500/-, in default of non-payment of fine to suffer further Rigorous Imprisonment for one month. Both the said substantive sentences were to run concnurrently. 2 The factual matrix of the prosecution case can be summarised as under :- PW1 i.e. complainant namely Eknath Kashinath Pawar was residing along with his wife PW4 Sunita and their daughter i.e. 3 the victim herein, aged about 5 years and two sons at Ghuge Vasti, Satara Parisar, Aurangabad and they used to do labour work in the agricultural field of one Ghuge, bearing Gat No. 226. They used to reside in the houses built for labourers by said Ghuge. The appellant i.e. accused Damodhar Rambhau Inchal was also residing at some distance from their house along with his daughter and son- in-law. 3 It is the prosecution case that on 9.1.2008 PW1 Eknath had gone to Pawar Vasti to attend last rites of her cousin father-in- law, as well as his wife PW4 Sunita had also left the house for agricultural work in the adjacent land with other women. During this period, their daughter i.e. victim was in their house. It is also alleged that daughter of the accused had handed over key of their house to the victim to be given to the accused when he would come. It is further alleged that PW4 Sunita, while doing agricultural work in the field, heard hue and cry of her daughter i.e. victim at about 1.00 p.m. Hence, she rushed towards her house. She also heard cry from the house of the accused. Hence, she rushed towards the house of the accused and went inside the house of the accused and saw victim and accused together and victim was crying and her nicker was 4 blood stained. Hence, PW4 Sunita inquired with the victim. Thereupon victim disclosed that she had been to the house of the accused to give key of his house, but accused caught hold of her hand and dragged her inside the house and made her to lie flat on the ground and removed her nicker, as well as he removed his dhoti and inserted his penis in her private part. Hence, PW4 Sunita examined private part of the victim and found bleeding injury. Thereafter PW4 Sunita took her daughter victim towards PW1 Eknath and narrated the whole incident to him. Thereafter PW1 Eknath, PW4 Sunita along with victim went to Osmanpura police station and lodged the complaint at about 5.15 p.m. on the said date and C.R. No. I-6 of 2008 was registered against the accused herein for the offences punishable under Sections 376(F) and 342 of the Indian Penal Code. 4 It is also the case of prosecution that PW10 Police Sub- Inspector, Jilani Gafoor, was attached to Osmanpura police station at the relevant time and on 9.1.2008 he was entrusted with the investigation of C.R. No. 6 of 2008. Hence, he verified the complaint and went to the place of incident and prepared the spot panchanama (Exh. 16) in presence of panchas including PW2 panch witness 5 Bhimrao Ghandge. Moreover, he also arrested the accused on 9.1.2008 and made inquiry with him and seized his clothes including his dhoti (article 1) under panchanama (Exh.19) in presence of panchas including PW3 panch witness Vijay Patil. Moreover, nicker of victim was produced by PW1 Eknath and same was also seized under seizure panchanama (Exh.20). 5 The prosecution case further recites that the victim was taken to the Government Medical College and Hospital for medical examination and PW9 Dr. Anjana Santpure examined the victim and issued the medical certificate to that effect (Exh.31). Moreover, the accused was also referred to the Government Medical College and Hospital for medical examination along with letter dated 9.1.2008 (Exh.36) and examined by PW11 Dr.Pushpa Rokade and she issued the medical certificate (Exh.37) to that effect. Moreover, during the course of investigation, PW10 P.S.I. Jilani Madar recorded the statements of witnesses. 6 It is further the case of prosecution that the seized articles were sent to the Chemical Analyzer's office for examination purpose along with forwarding letter dated 22/1/2008 (Exh.43). 6 Moreover, the samples collected by the doctor in respect of victim were also sent to the office of the Chemical Analyser vide letter dated 11.1.2008 (Exh.44), as well as blood sample collected by the doctor pertaining to the accused was sent to the Chemical Analyser’s office for examination purpose along with letter dated 11.1.2008 (Exh.45). Pursuant to the same, reports from the office of the Chemical Analyser and the medical reports were received, which are marked as Exhs. 46 and 47, respectively. 7 Accordingly, after completion of investigation, the investigating officer filed the charge sheet before the learned Chief Judicial Magistrate, Aurangabad on 5.3.2008 and the offence being exclusively triable by the Court of Sessions, learned Judicial Magistrate, First Class, Aurangabad committed the said case to the Court of Sessions, Aurangabad on 11.3.2008 for trial. 8 The learned Additional Sessions Judge-5, Aurangabad framed the charge against the accused on 2.9.2008 at Exh.10 under Sections 376 (F) and also under Section 342 of the Indian Penal Code. The accused pleaded not guilty to the said charges and claimed to be tried. 7 9 To substantiate the charges levelled against the accused, the prosecution examined in as much as eleven witnesses as mentioned below :- 1) PW1 Eknath Kashinath Pawar complainant and father of victim (Exh.14) 2) PW2 Bhimrao Kisanrao Ghandge panch to the spot panchanama (Exh.16) 3) PW3 Vijay Laxman Patil panch to seizure panchanama (Exh.19) in respect of dhoti article 1 and seizure panchanama (Exh.20) in respect of nicker of victim 4) PW4 Sunita Eknath Pawar mother of victim 5) PW5 victim, aged about 5 years. 6) PW6 Karunabai Sheshrao Jadhav, neighbourer working with PW4 Sunita turned hostile 7) PW7 Saraswati Limbaji Kukade working with PW4 Sunita 8 8) PW8 Baban Maruti Bhalerao relative of victim 9) Dr.Anjana Shivkumar Santpure who examined the victim and issued the medical certificate to that effect (Exh. 31) 10) PW10 P.S.I. Jilani Gafoor Shah Madar, investigating officer. 11) PW11 Dr. Pushpa Baburao Rokade who examined the accused and issued the medical certificate to that effect (Exh. 37) 10 The defence of the accused is of total denial and he denied the entire incriminating evidence adduced and produced against him and took a stand that the witnesses deposed falsely against him due to previous quarrel and falsely implicated him in the present case, and therefore, he claimed to be innocent. 11 After scrutinizing and appreciating the evidence, learned Additional Sessions Judge-5, Aurangabad convicted and sentenced the accused/appellant as aforesaid. Being aggrieved and dissatisfied by the said conviction and sentence, rendered by learned Additional Sessions Judge-5, Aurangabad by judgment and order dated 9 22.11.2009, the appellant has preferred the present appeal praying for quashment thereof and acquittal from the charges levelled against him. 12 In order to deal with the submissions advanced by the learned counsel for the appellant as well as learned A.P.P. for the respondent effectively, it is necessary to advert to the material evidence adduced and produced by the prosecution on record. 13 In the said context, coming to the deposition of PW4 Sunita i.e. the mother of the victim, who deposed that on the day of incident, they were residing at Ghuge Vasti in the vicinity of village Satara near Aurangabad and she knows the accused Damodhar Inchal, who was residing near her house. She also stated that she was residing along with her husband, two sons and a daughter victim, and the incident occurred at about 1.00 p.m. She further deposed that on the date of incident, her husband had been to Pawar Vasti to attend the last rites of her cousin father-in-law and her two sons had gone to the school and she was working in the land near her house; whereas her daughter i.e. the victim was at her house. She also stated that when she was working in the field she 10 heard hue and cry of her daughter i.e. victim from the house of the accused, and therefore, she immediately rushed towards the said house and saw that the accused and and her daughter i.e. victim together and her daughter was crying and her nicker was having blood stains. Hence, she asked her about the incident. Thereupon her daughter disclosed her that when she had been to the house of accused to give key of his house, the accused held her hands and dragged her inside the house and made her lie down on the floor and removed her nicker and he removed his dhoti and inserted his penis in her private part. Hence, PW4 Sunita examined private part of her daughter i.e. victim and found bleeding injury. Thereafter she stated that she took her daughter victim towards her husband PW1 Eknath and narrated the whole incident to him. Thereafter she herself, her husband PW1 Eknath and her daughter i.e. victim went to Osmanpura police station and PW1 Eknath lodged the complaint. 14 During cross-examination, she stated that wife of the accused is alive and daughter of the accused used to keep key of their house with her daughter. She further stated that she was working at a distance of 2000 ft. away from their residential houses and her house was not visible from the place where she was 11 working. She further stated that blood was oozing from the injuries sustained by her daughter from her private part and her private part was swollen and when she saw her private part, she made hue and cry and people had gathered there, but nobody attempted to beat the accused. 15 Suggestions were given to her that no such incident had taken place as deposed by her and there was no injury to private part of her daughter and blood was not oozing from the same, but same were denied by her. It was also suggested to her that her daughter victim used to play by climbing on the trees and she was in habit to play, but same was denied by her. Suggestion was also given to her that she and her husband concocted story and filed false complaint against the accused, but same was denied by her. 16 That takes me to the testimony of PW1 Eknath complainant, she has stated that the incident took place on 9.1.2008 and at the said time he was residing at Ghuge Vasti , Satara Parisar, Aurangabad along with his wife, mother and children. His daughter i.e. victim was five years old, his eldest son Ajay was about ten years; whereas son Vijay was eight years old. He stated that he 12 knew the accused who was residing near his house and both were working with one Ghuge on yearly basis. He also stated that accused was residing with his daughter and son-in-law. He further stated that on the day of incident i.e. on 9.1.2008 at about 10.00 a.m. He had gone to Aloknagar for last rites of his uncle Asaram, but at about 1.00 p.m. to 1.30 p.m. his wife PW4 Sunita came to Aloknagar with his daughter and met him and his wife PW4 Sunita disclosed him that accused committed rape upon their daughter when their daughter had gone to the house of the accused to hand over the key of his house which was kept by his daughter with victim and on hearing noise of cry from the house of the accused, she went there and found that her daughter victim was frightened and she disclosed occurrence of the incident to her. Accordingly, PW1 Eknath stated that he, his wife PW4 Sunita and his brother Kaduba Pawar went to Osmanpura police station with victim daughter. He also stated that he personally saw the blood and semen on the thighs of his daughter and her private part was having bleeding injuries and her clothes were knicker were having blood and semen stains. Hence, he lodged the complaint (Exh.14) in the police station against the accused. He also deposed that the police personnel seized the nicker (article 2) of his daughter and she was referred to the Ghati 13 Hospital, Aurangabad for medical examination. 17 During cross-examination, he stated that he was on leave and his daughter and son-in-law were working in another land of Ghuge; whereas accused was working in the agricultural land of Ghuge and working hours were 6.00 a.m. to 5.00 p.m. Suggestion was given to him that on the date of incident the accused was working in the agricultural land of Ghuge which was at different place, but same was denied by him. Suggestion was also given to him that his wife has not narrated him the incident of rape upon his daughter victim by the accused, but same was denied by him. Suggestion was also given to him that on the date of incident, he and his wife were not on duty, whereas their both the children were at Aloknagar with his brother Kaduba, but same was denied by him. It was also suggested to him that in order to teach lesson to the accused they all filed false case against the accused, but same was denied by him. He also denied that since he saw blood stains on the private part and nicker of his daughter and also bleeding injury on her private part, he is deposing falsely. Suggestion was also given to him that accused was 67 to 68 years of age at the time of occurrence of incident, but same was denied by him. 14 18 Coming to the testimony of PW5 victim herself and since she was a child witness of five years old, her understanding to relevancy of question was verified by the learned Trial Judge, and accordingly, her deposition was recorded, wherein she stated that she knew Damodhar Baba. i.e. the accused herein, who resides at their neighbourhood, as well as she knew Karuna Tai, who had given her key of lock asking her to hand over the said key to Baba whenever he comes. The accused came in the afternoon. Karunatai had gone to work after giving key to her. She was in their house and her mummi was doing agricultural work near their house. Damodhar Baba i.e. accused came at the house in the afternoon and she handed over key to him after going to the house of the accused. Thereupon Baba i.e. accused took her inside his house and penetrated his penis in her private part and blood started from her private part. She further stated that her mummi came running towards her and thereupon she disclosed the occurrence of incident to her. Thereafter she was taken to the hospital and doctor examined her. 19 During cross-examination, specific leading question was 15 put to her that her mummi taught her what to depose before the court and thereupon she moved her neck giving signal in affirmative and also stated that it is true that her mummi taught her. She further stated that Karuna was residing near their house, but she used to play alone. She further stated that she was climbing on the mango trees, but denied that she fell from mango tree at any time. She further denied that she had been tutored by her mother what to depose in the court. She also denied that accused Damu Baba never met her and she had never handed over key of his house. She also admitted that accused never caught hold of her and never took her inside the house. She further stated that she never disclosed the alleged incident to her mother i.e. PW4 Sunita and she also admitted that police never made inquiry with her about the said incident. 20 That takes me to the deposition of PW9 Dr. Anjana Shikumar Santpure, who stated that on 8.1.2008 she was working as Lady Medical Officer in Gynecology Department and victim was referred by the police personnel from Osmanpura police station for medical examination with history of sexual assault as given by her mother and she recorded the said history. She examined the victim 16 and upon examination she found that her height was 100 cm., weight was about 11 kg. and she was having 20 teeth, as well as her secondary sexual character were not developed and she was five years old. There were seminal stains on her under garment and there was no evidence of violence upon her body. Her private part was normal and hymen was ruptured. She also stated that she took samples of blood, vaginal swab and nails and the said samples were handed over to Mr. L.M.Jadhav of Osmanpura police station. She further stated that to determine her age, she referred her to the Radiology Department. Accordingly, she issued the medical certificate, which is produced at Exh 31. She further stated that samples were sent to the Chemical Analyser's office for examination along with the covering letter Exh. 31 and pursuant to that Chemical Analyser's report regarding the said samples was received, which was produced at Exh. 33. 21 In the cross-examination, she stated that she examined the victim on 8.1.2008 at 11.00 p.m., but there was no semen and blood seen on her genitals. She also stated that hymen may be ruptured by trauma by sharp instruments and masturbation other than sexual intercourse, and hymen cannot be ruptured due to 17 veneral infection. She also stated that bleeding is possible in several veneral infection and external genital infection is possible due to non-hygienic condition of private part, as also inflammation and swelling is possible in external genital infection. She also deposed that to have a sexual intercourse with a child of about five years old, more force for penetration is required, but penetration is possible. However, during penetration there may or may not be injuries on the private part, and tears may or may not occur. She denied that by penetration there must be injury to Libia Majora/Minora. She also denied that in the absence of seminal and blood stains on the private part of victim, it cannot be said that there was no penetration, attempt to penetration or sexual intercourse. She further denied that it can not be said that the victim was not sexually assaulted. She admitted that mother of victim had not stated her the particulars of the incident. She admitted regarding issuance of certificate by her on 9.1.2008. A specific court question was put to her that was there any infection on the private part of the victim and thereupon she replied in the negative that there was no infection on the private part of the victim. 22 Coming to the deposition of PW11 Dr.Pushpa Baburao 18 Rokade, who stated that on 10.1.2008, she was attached to Government Medical College and Hospital, Aurangabad as C.M.O. And on that day one Damodhar Rambhau Inchal i.e. the accused was referred by Osmanpura police for his medical examination with history of sexual assault, along with letter dated 9.1.2008 (Exh.36). Accordingly, she examined the said accused and she produced the M.L.C. papers. On examination, she found that his height was about 5.2 ft, weight was 48 kg., he had 14 teeth and his secondary sex character were fully developed, but there was no presence of mud, seminal and blood stains upon the wearing of the accused. She further stated that there was no evidence of violence upon his person and his genital organs were normal as there was no presence of pubic hairs of victim on the genital part of the accused and also there were no seminal and blood stains on the genital part. Accordingly, she issued the certificate, which is produced at Exh. 37. She categorically stated that the patient was capable of having sexual intercourse. She stated that she had taken blood sample and said sample was sealed and handed over to P.C. B.J.Pathe of Osmanpura police station, which was sent to Chemical Analyser's office for examination purpose along with letter Exh.38. 19 23 In the cross-examination, she stated that she had not examined accused so as to ascertain his age, and she gave his age ranging between 65 to 70 years. She further stated that since the accused had no genital disease and his all the secondary sexual characters were fully developed, she opined that he was capable for sexual intercourse. However, she admitted that she had not done any other test to ascertain his capability of sexual intercourse. Suggestion was given to her that she had not examined the accused, but same was denied by her. 24 Turning to the testimony of PW3 Vijay Laxman Patil, panch to the seizure panchanama (Exh.19), who has stated that on 9.1.2008 he was called by the police personnel of Osmanpura police station at about 8.00 p.m. to act as panch, and another panch Baban Bhalerao was with him. The accused was also present there at the poilce station and his dhoti article 1 bearing three white stains was seized under the said panchanama. He further stated that the police personnel also seized a red colour knicker having stains produced by the father of victim in their presence under the said panchanama (Exh.20). 20 25 In the cross-examination, he admitted that he is acquainted with the complainant in the present case and suggestion was given to him that he went to police station along with complainant and his wife, but same was denied by him. He further stated that another panch Bhalerao was already present in the police station prior to him. Suggestion was given to him that the police personnel did not seize the articles in his presence and they obtained his signature on already written panchanama, but same was denied by him. It was also suggested to him that he deposed falsely at the instance of complainant and his brother, but same was denied by him. 26 Turning to the testimony of PW6 Karunabai Sheshrao Jadhav, who is the daughter of the accused, and although she turned hostile to the prosecution, she has categorically stated in her deposition that she handed over the key of their house to the victim. Moreover, she also stated in her deposition that she, PW4 Sunita i.e. mother of victim and PW7 Saraswatibai were doing agricultural work on the day of incident and she stated in the cross-examination that after completion of work, she, PW7 Sunita-mother of victim, Bhimabai and PW7 Saraswatibai came together to her house. PW7 21 Saraswatibai Limbaji Kukade also stated in her deposition that she knew PW4 Sunita i.e. mother of the victim, who was working with her in agricultural land of Ghuge. She also stated that at about 1.00 p.m. she left the work and went towards her residential house and at about 1.30 p.m. remaining all came towards their houses