Life sentence reaffirmed for rape accused: Bombay High Court

Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 Bombay High Court Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 Bench: S.S. Shinde Makarand Subhash Karnik criminal 803.16.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 803 OF 2016 Sudam Ramnath Shelke Age: 27 years R at : Nandur Shingote Tal : Sinnar Dist : Nashik present at Nashik Central Jail .. Appellant Vs The State of Maharashtra .. Respondent Mr.Aniket Vagal for Appellant Dr.F.R.Shaikh APP for State CORAM : S. S. SHINDE M. S. KARNIK JJ RESERVED ON : 19th AUGUST 2020 PRONOUNCED ON : 19th OCTOBER 2020 JUDGMENTThe appellant by this Appeal challenges the judgment and order dated 18 01 2016 passed by Additional Sessions Judge Nashik convicting the appellantfor the ofence punishable under section 376(2)(f) of the Indian Penal Codand sentencing him to sufer rigorous imprisonment for life and to pay fne of Rs.30 000 in default of payment of fne criminal 803.16.doc to sufer rigorous imprisonment for two years The prosecution case in brief is as under 2. The FIR Exhibit 17 was registered by Latagrandmother of the victim. The victim was about 3 years and 8 months of age on the date of the incident. P.W.1 complainant lodged report on 13 09 2014. P.W.1 was residing along with her husband son daughter in law and the victim Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 grand daughter. The incident took place on 12 09 2014 and it occurred around 3.00 p.m.. The victim went in the hotelwhile playing. P.W1 is the owner of the hotel which is just in front of her residence. The victim girl came home with a mobile phone. The accused told P.W.1 that the phone belongs to him and he had given the phone to the victim to play. Then P.W.1 carried on with her work. 10 15 minutes thereafter P.W.1 s husband came from the agricultural feld and enquired whereabouts of victim. P.W.1 informed him that she is playing in front of the house. The victim however was not found therefore they searched for her. P.W1 went towards the agricultural feld She heard noise of weeping from the agricultural feld. The same was of her granddaughter the victim. At that time P.W.1 saw the accused running from the feld towards the road 3. The victim had sufered injuries on her waist and blood was oozing from her private part. There were no underclothes on her person. P.W.1 made enquiry with the victim but she was too terrifed to disclose anything. The victim was taken to the hospital of Doctor Chandurkar in village Nandur Shingote. The victim was examined by Dr.Anita Satish Kanitkartook her in agricultural feld. He removed his pant & hers and slept on her person. P.W.1 realised that that the victim was subjected to sexual intercourse. P.W.1 approached Vavi Police Station and lodged FIR which is at Exhibit 17 5. The investigation was carried out by Mr.Hemant Subhash Patil Investing OfcerP.W.11. The IO criminal 803.16.doc visited the spot with two panchas and recorded the spot panchanama at Exhibit 27. The spot panchanama was recorded by Mr.Ramdas Savliram Sanap P.W.8 attached to the Vavi police station as police constable. Nandkumar Laxminarayan Ladhha P.W.2) is a panch witness of the spot panchanama. P.W.2 deposed that spot of incident is situated behind the dhaba. There was bajra crop standing in the fled. It was 4 to 5 feet high. The IO collected the blood stained soil and simple soil and leaves of the bajra crop having blood stains. The motorcycle used by the accused for coming to the spot of the incident was seized in the presence of 6. The victim was referred for medical examination on 13 09 2014 vide letter which is at Exhibit 61 Dr. Mahesh Arun Khairnar P.W.6 examined the victim. P.W.6 deposed that there was no external injury. On examination of genital parts labia majora was found edematous. Labia minora was bruised. There was bleeding from vulva. Hymen was torn at 6.00 O clock position. There was vaginal bleeding. During examination P.W.6 collected blood sample vaginal swab vulval swab for the purpose of analysis. P.W.6 Doctor opined on the basis of the examination that fndings are consistent with recent sexual assault. The certifcate at Exhibit 41 was issued by him. P.W.6 criminal 803.16.doc deposed that the injury was recent within 24 hours. The collected samples were handed over in a sealed condition to the police constable Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 7. The IO issued a letter Exhibit 63 to T.I.L.R Sinnar for drawing a map of the spot of the incident The accused was arrested on 17 09 2014 vide arrest panchanama Exhibit 64. Mr.Kiran Sopan Patil P.W.3 is the panch witness of seizure of clothes of the victim. The panchanama of the seizure of the clothes is at Exhibit 30. The clothes of the accused were seized by preparing the panchanama at Exhibit 33. P.W. 4 Santosh Dashrath Bhopi is a panch witness of this panchanama. The accused was sent for medical examination vide letter at Exhibit 65. Upon deposit of the clothes of the accused muddemal receipt obtained is at Exhibit 66 8. Mr.Vijay Lokhande P.W.9 was given two sealed packets and report to be handed over to the forensic science laboratory Panchavati Nashik. The said sealed packets were handed over on same date on 19 09 2014 9. After completing the investigation the IO submitted criminal 803.16.doc the charge sheet. The Session Judge framed the charge at Exhibit 2 on 13 11 2014. The accused pleaded not guilty and claimed to be tried vide his plea at Exhibit O 3. The prosecution examined as many as 11 witnesses By the impugned judgment and order the appellant was convicted and sentenced as mentioned 10. P.W.1 complainant deposed that the incident took place on 12 09 2014. Her granddaughter victim was playing in front of the hotel owned by her. The hotel is just in front of residential house of P.W.1. P.W.1 noticed the victim had a mobile phone. The accused came there and said that he had given it to the victim to play. P.W.1 went back to attend her work. 10 15 minutes thereafter P.W.1 s husband asked the whereabouts of victim. The victim was not seen around. They went in search of the victim. The victim was found weeping in the agricultural feld. P.W.1 saw the accused running towards the road from agricultural feld. The victim sustained injuries on her waist and blood was oozing from her private part. There was no knicker on her person. P.W.1 made enquiry with the victim but she was unable to disclose anything. The victim girl was 3 years and 8 months old at the time of incident. Thereafter she was taken to the hospital where she was examined by the Doctor P.W.5. Next criminal 803.16.doc day at 7.00 a.m. the victim disclosed to P.W.1 and victim s mother that the mobilewala babatook her to the agricultural feld. He removed her pant and slept on her person. He removed his pant as well. P.W.1 realised that the victim was subjected to sexual assault. She then fled FIR 11. P.W.1 was cross examined by the defence. The defence tried to suggest that the activities in the feld would not be visible from her house and therefore P.W.1 could not have noticed the incident or the accused running away from the feld. P.W.1 denied that the bajra crop was 6 feet high. The defence also tried to suggest that bajra crop was thick and the incident could not possibly have taken place in the agricultural feld. The defence tried to establish the innocence of the accused on the basis of initial history given by husband of P.W.1 to the doctor P.W.5 as nothing was recorded alleging any role of the accused. The defence case is that the victim went to answer nature s call in the agricultural feld which resulted in the injuries Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 12. The evidence of P.W.1 shows that when she was searching for the victim in the agricultural feld she saw the accused running towards the road from where the bajra crop was criminal 803.16.doc standing. The victim was found in the agricultural feld weeping. It is material to note that the agricultural feld of the complainant is right behind the dhaba and in the agricultural feld itself the house is also constructed. No doubt the complainant has admitted that if there is crop in the agricultural feld then the activities in the feld are not visible from the house. However the evidence of P.W.1 needs to be considered from the standpoint that P.W.1 complainant was in the agricultural feld when she saw the accused running away from the agricultural feld. The complainant was running away towards the road as deposed by P.W.1. It is not her testimony that she saw accused running away from her house. Nothing has been elicited in the cross examination of P.W.1 which casts a doubt on the veracity or truthfulness of her version. In our opinion nothing would turn on the contradiction brought on record as regards the presence of the complainant in the hospital where the victim was examined. From the evidence of P.W.5 Doctor it is seen that it is the grandfather of the victim who brought her to the hospital. P.W.5 has deposed that she examined the victim girl. The victim sustained genital injuries which P.W.5 Doctor treated. The injuries sustained by the victim is consistent with the prosecution case 13. We shall now consider whether the evidence of P.W.1 stands corroborated with the other evidence on record to prove beyond reasonable doubt the complicity of the accused in the crime 14. P.W.2 Nandkumar Laxminarayan Ladhha acted as a panch of the spot panchanama. P.W.8 Ramdas Savliram Sanap police constable was present at the time of spot panchanama. The spot of the incident was shown by P.W.1 complainant. The police collected the blood stained soil and blood stained roots of the bajra crop and the same came to be sealed by wrapping it. The police also seized the motorcycle of the accused by drawing panchanama at Exhibit 27 15. It is argued that non examination of victim is fatal to the prosecution. Admittedly the age of the victim girl is hardly 3 years and 8 months. Considering her tender age it cannot be expected of her to understand the questions asked by the prosecution. There can be no infrmity in the prosecution case only because of non examination of the victim. In such circumstances the evidence of P.W.1 complainant who is the grandmother of the victim and the other evidences on record criminal 803.16.doc obviously needs to be considered to fnd out whether the guilt of the accused can be brought home. It is signifcant to note that the presence of the accused is not denied by the defence 16. The evidence of complainant regarding the spot of the incident is corroborated by the evidence of P.W.2 Nandkumar Laddha and P.W.8 Ramdas Sanap police constable. They collected the blood stained soil and dried leaf of bajra crop and said articles were seized and sealed by afxing the labels The articles reached in seal condition for chemical analysis. There is no evidence of tampering. The said labels are at Exhibit 28 Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 17. So far as the medical evidence is concerned Dr.Ujwala Subhash Tejale was examined at Exhibit 76 as Court witness No.2. She deposed that on examination of genital parts of victim she found that Labia Majora was edematous Labia Minora was bruised vulva was having minimum bleeding Hymen was torn at 6 O Clock position. Vagina was bleeding. Dr.Ujwala opined that victim girl was subjected to sexual assault and the fndings are consistent with recent sexual intercourse. In the cross examination she admitted that there was history of criminal 803.16.doc mild abrasion on inner side of thigh and mild abrasions on genitals recorded by the Casualty Medical Ofcer. No doubt she admitted that there is possibility of injuries on back and buttock if the alleged incident has taken place on hard and rough surface like agricultural feld having bajra crop. She further admitted that such injuries are possible if a girl went to answer nature s call and while sitting such type of injuries can be caused by the small pieces of branch of roots. She admits that hymen can be torn completely in case of a sexual assault by a grown up man. These admissions form the basis of case of the defence that the victim sustained these injuries when she went to answer the nature s call. However these admissions do not in any manner afect the genesis of the prosecution version having regard to the quality of the clinching evidence on record which proves beyond reasonable doubt that the accused is the author of the crime 18. Immediately therefore it would be material to consider the evidence relied upon by the prosecution regarding the seizure of clothes of the victim girl and the accused. P.W.3 and P.W.4 are the panch witnesses of the seizure panchanama of the clothes. The said clothes are seized and sealed in their presence and label with their signatures are afxed. The said labels are at Exhibit 31 and Exhibit 34. Learned Counsel for the criminal 803.16.doc accused would invite our attention to the evidence of P.W.4 where he admits that there were no blood stains on the clothes. The incident in question occurred on 12 04 2014 whereas the accused was arrested on 17 04 2014 i.e. after 5 days In our opinion considering the time gap blood stains may not be visible 19. P.W.9 Vijay Ramesh Lokhande received the sealed samples to be handed over to CA. He handed over the samples to the CA Nashik along with letterhead Exhibit 55. The letterhead at Exhibit 55 clearly mentions that the muddemal mentioned in column No. 13 is handed over to police constable Vijay Lokhande in a sealed condition. If we consider CA reports at Exhibits 7 8 9 & 10 the same would show that the sealed parcels are received by CA Nashik. It is the prosecution case that initially articles were sent to CA Nashik for chemical analysis and thereafter CA Nashik forwarded it to CA Kalina Mumbai for DNA examination. Considering all these materials it is not possible for us to accept the contention of the defence that samples were not in a sealed condition The question of tampering is completely ruled out 20. Learned Counsel for the accused made an attempt to contend that no reliance should be placed on DNA analysis as CA Kalina had received stain cuttings and not the entire clothes and therefore there is possibility of tampering. DNA report however shows that stain cuttings of frock stain cuttings of full pant stain cuttings of underwear stain cuttings of full pant were received. The numbers mentioned in DNA profle were also matching. The Court witness Dr.Shrikant Hemant Lade has produced on record the letter received from CA Nashik wherein it is specifcally mentioned Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 that stain cuttings were forwarded for DNA analysis. DNA report shows that blood stains found on the underwear of the accused are of the victim girl. The complainant s version is thus corroborated by the medical and other evidence. Nothing is on record to indicate that there is enmity between P.W.1 and the accused hence possibility of a false implication is ruled out. There is even no suggestion in the cross examination of P.W.1 to this efect. The evidence of P.W.1 appears to be reliable and trustworthy corroborated by the other evidence on record 21. Let us now consider the evidence relating to the medical examination of the victim by witnesses i.e. P.W.5 Dr. Anita Satish Kanitkar P.W.6 Dr. Mahesh Arun Khairkar and Court criminal 803.16.doc witness No.2 Dr.Tejale. It is seen that the victim was initially examined by P.W.5 and thereafter by Dr.Tejale in civil hospital Nashik. The injuries as mentioned earlier were found on her person. It is opined that all these injuries are fresh injuries and that on the basis of the said injuries it can be opined that these injuries are possible due to sexual intercourse 22. We fnd no merit in the contentions of the accused that as the accused has not sustained any injuries on his private part his complicity is ruled out. The victim is only 3 years and 8 months old The trial Court has observed that "medical jurisprudence shows that in young children there are few or no signs of general violence for the child usually has no idea of what is happening and also incapable of resisting. The hymen is deeply situated and as the vagina is very small it is impossible for the penetration of the adult organ to take place. Usually the penis is placed either within the vulva or between the thighs. As such the hymen is usually intact and thereby may be little redness and tenderness of the vulva. To attract the provisions of section 376 of IPC complete penetration is not required slight penetration is also sufcient.t We are in agreement with the view of the trial Court that no beneft can be given to the criminal 803.16.doc accused merely because he has not sustained any injury on his private part 23. The DNA report specifcally shows that blood group of DNA extracted from the blood stains found on the underwear of the accused are of blood group of victim girl. The trial Court has correctly observed that no explanation is put forth by the accused about the blood of the victim girl found on his under garments. The accused has also not denied his presence on the spot of the incident 24. The contention of the learned Counsel for the appellant that delay in lodging FIR would enure to the beneft of accused lacks merit in the light of the law laid down by the Apex Court in the case of 1State of Punjab Vs. Gurmit Singh. The Apex Court observed that in sexual ofences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual ofence is generally lodged. Even if there is some delay in 1 AIR 1996 Supreme Court 1393 criminal 803.16.doc lodging FIR in respect of ofence of rape if it is properly explained and the explanation is natural in the facts and circumstances of the case such delay would not matter and is not fatal 25. In the present facts the evidence shows that on the date of the incident the victim was not in a position to narrate anything about the incident which is but natural considering her tender age. She Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 had to be taken to the hospital for treatment. It is next day morning on 13 09 2004 she disclosed about the incident. At 8.00 a.m. the report is lodged. The victim was hardly 3 years and 8 months old on the date of the incident. In such circumstances it cannot be said that there is any delay in lodging FIR. It can hardly be expected of her to reveal the manner in which the incident happened and that too with promptitude 26. We are satisfed that the prosecution has established beyond reasonable doubt that the accused is guilty of ofence alleged. Having gone through the order of the trial Court we are in respectful agreement with the well considered order passed by the trial Court. It is pertinent to refer to paragraph 56 of the trial criminal 803.16.doc Court s order which reads thus 56. After appreciating the entire evidence and proved circumstances on record by the prosecution I have no hesitation to hold that it is the accused who took the victim girl of 3 years and 8 months of age along with him and subjected her for sexual assault. The prosecution has proved through direct evidence of complainant grandmother of the victim girl. The evidence of grandmother of the victim is corroborated by various circumstances 1. Accused is seen running away from the spot of incident 2. Bloods stains are found at the spot of incident 3. Motor cycle of the accused was found near the spot of incident and it is seized from the spot of incident 4. Medical evidence of P.W.5 Dr. Kanitkar P.W.6 Dr.Khairkar and Court witness Medical Ofcer Dr.Tejale. The evidence of Dr.Tejale is not only in the nature of opinion but she has actually seen the injuries sustained in the private part of the victim girl and regarding the witnessing the injuries on the private part is the evidence which is direct in nature 5. DNA report shows blood stains found on the underwear of the accused are having DNA extracts of blood of victim girl 6. The seal of the DNA samples was intact from the seizure till its examination.t 27. It would also be material to reproduce paragraphs 65 & 66 of the trial Courts order which read criminal 803.16.doc "65. Heard both the sides. I have recapitalized the entire episode. It appears from the evidence on record that victim girl who is from the village of the accused aged about 3 years and 8 months was sexually assaulted by the accused on 12 09 2014. When victim girl was playing accused has handed over his mobile phone to her to play and taken her with him. She was taken in the agricultural feld of Bajra crop and subjected for sexual assault. The evidence on record Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 shows that the grandmother of the victim girl has lodged report against the accused on 13 09 2014 Victim girl was found in the agricultural feld by grandmother in an injured condition. There was no knicker on her person and blood was oozing from her private part. She was immediately taken to private clinic. P.W.5 Dr.Kanitkar examined her and observed injuries in her private part. On the next day small girl disclosed to her mother and grandmother that Mobilewala Baba has taken her and removed her clothes. Thereafter report was lodged. She was referred for medical examination and Medical ofcer has observed that she was subjected for sexual assault. Not only the medical evidence but DNA report shows blood stains of the blood group of victim girl are found on the underwear of the accused. The evidence of Court Witness Chemical Analyzer Shri Lade specifcally shows that the blood stains of the blood group of victim girl was found on the underwear of the accused. Thus the entire evidence which is in the nature of direct evidence is corroborated by medical evidence. Though accused has submitted that he is implicated falsely but there is nothing on record to show that there was enmity between family of accused and family of victim girl. During cross examination no reason came forward to show that there was reason for the grandmother of the victim girl or her family members to implicate the accused falsely 66. The evidence on record shows that accused has committed a crime which is heinous in nature Accused has betrayed the trust of a small girl who was playing with the accused. The sexual assault on the children is one of the heinous crime. In the present case victim girl is only three years and 8 months of age. It is an ugly breach of our commitment to protect the innocent. The act of the accused shows that he has committed barbaric act and shown total disregard towards humanity.t 28. So far as question of punishment is concerned we are of the same view as the trial Court that having regard to the fact that the accused is 27 years of age a resident of the same village who betrayed the trust of the victim & became a violator deserves no leniency. We therefore do not fnd any infrmity in the order passed by the trial Court consequently Appeal is dismissed 29. This judgment will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order (S.S.SHINDE J Digitally signed by Urmila Urmila P Ingle P. Date 2020.10.19 Ingle 19:17:31 +0530 Indian Kanoon 

Summary: The Bombay high court rejected the plea of a 27-year-old who was accused of raping a 3-year-old girl. This judgement was passed by the division bench of Justice S Shinde and Justice MS Karnik in the matter of Sudam Ramnath Shelke versus The State of Maharashtra [Criminal Appeal No. – 803 of 2016]. The appellant challenged the judgement of the Additional Session Judge, Nashik for the offence punishable under section 376 (2) (f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 30,000/-. Life sentence reaffirmed for rape accused and after gone through the order of the Trial Court, High Court was in respectful agreement with the well-considered order passed by the Trial Court. Facts related to this case is: The victim was raped by the accused while she lived with her late grandmother when she was about three years and eight months old. The victim was found crying and with several injuries, while the incident took place and later confirming to her mother that it was mobile wala babu (accused) who took her in the field and committed the offence. The Court observed that “Learned Counsel for the accused made an attempt to contend that no reliance should be placed on DNA analysis as CA Kalina had received stain cuttings and not the entire clothes and therefore there is the possibility of tampering. DNA report however shows that stain cuttings of frock, stain cuttings of full pant, stain cuttings of underwear, stain cuttings of full pant were received. The numbers mentioned in DNA profile were also matching.” Also “The Court witness – Dr Shrikant Hemant Lade has produced on record the letter received from CA Nashik wherein it is specifically mentioned that stain cuttings were forwarded for DNA analysis. DNA report shows that bloodstains found on the underwear of the accused are of the victim girl. The complainant’s version is thus corroborated by the medical and other evidence.” The Court stated that the tender age of the victim does not allow her to narrate the incident which took place but the circumstances and evidence are enough to prove the faults of the accused. The Court proceeded to state that “the entire evidence which is in the nature of direct evidence is corroborated by medical evidence. Though the accused has submitted that he is implicated falsely, there is nothing on record to show that there was enmity between the family of the accused and the family of the victim girl. During cross-examination, no reason came forward to show that there was the reason for the grandmother of the victim girl or her family members to implicate the accused falsely.” The Court dismissed the petition by saying that “So far as the question of punishment is concerned, we are of the same view as the trial Court that having regard to the fact that the accused is 27 years of age, a resident of the same village who betrayed the trust of the victim &amp; became a violator deserves no leniency. We, therefore, do not find any infirmity in the order passed by the trial Court, consequently, Appeal is dismissed.” Click here to read the judgement