High Court

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-1- Cri.Appeal.769.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 769 OF 2004Hanmant S/o. Mashna Ibitwar, Age : 30 years, Occu. Police Patil & Agriculture, R/o. Jirga, Taluka Mukhed,District Nanded… AppellantVersusThe State of Maharashtra… RespondentWITHCRIMINAL REVISION APPLICATION NO. 84 OF 2005X.Y.Z. (Victim)Age : 17 years, Occu. : Minor, under guardianship of Bapurao S/o. Piraji Dopare, Age : 46 years, Occu. : Agril.,R/o. Village Jirga, Post Barali, Tq. Mukhed, District Nanded.… Applicant(Orig. Complainant)Versus1.Hanmant S/o. Masna Ibitwar, Age : 30 years, Occu. : Agril., Police Patil, R/o. Jirga, Post Barali, Tq. Mukhed, District Nanded. 2.The State of Maharashtra… Respondents.…Ms. Rakhi Sundale, Advocate for Appellant in Cri.Appeal/769/2004Mr. D. R. Korade, APP for Respondent – StateMr. U. L. Momale, Advocate for Applicant in Cri.Revision/84/2005...CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 27st SEPTEMBER, 2024PRONOUNCED ON : 4th OCTOBER, 2024 -2- Cri.Appeal.769.2004JUDGMENT : 1.Appellant herein is challenging judgment and order ofconviction recorded by learned Additional Sessions Judge,Kandhar dated 05.11.2004 rendering conviction for offencepunishable under sections 376 and 323 of Indian Penal Code (IPC).2.In nutshell, prosecution version in trial court is that,on 25.08.2003 victim PW5 was returning home from her fieldaround 5:30 p.m. after she had accompanied her parents sincemorning. When she reached near field of one Gurling, accused whowas coming from opposite direction caught her hand, pulled hernear a hillock and after making her fall, committed intercoursewith her. He also hit her on the face. When her brother came,accused assaulted her brother. After coming home, she reportedthe occurrence to her father and on next day, they approachedMukramabad police station, where her statement was recordedand crime was registered. After being charge-sheeted, appellant was tried bylearned Additional Sessions Judge, Kandhar vide Sessions Case No.156 of 2003 and held guilty for both offences under sections 376and 323 of IPC. -3- Cri.Appeal.769.2004 Feeling aggrieved by the above, instant appeal has beenpreferred. 3.Original complainant has also preferred criminalrevision for enhancement of sentence awarded by learned trialJudge.SUBMISSIONSOn behalf of Appellant :4.Questioning the legality and maintainability of theimpugned judgment, learned counsel pointed out that, there is nocogent, convincing and reliable evidence in support of any of thecharges. She pointed out that, in fact, there is no iota of evidencethat victim was forcibly raped. She took this court through themedical evidence i.e. medical certificate and submitted that, evenafter examination, there were no injuries on the person and evenclear opinion has been given that there was no evidence suggestingforceful intercourse which is at Exh.17. At this point, shesubmitted that, the doctor, who allegedly physically examinedvictim, is not examined by prosecution for the best reasons knownto him. She also pointed to the cross of victim and submitted thatshe too has candidly admitted that there were no injuries onperson. She further submitted that, even CA report does not helpprosecution. Consequently, learned counsel submits that, there is -4- Cri.Appeal.769.2004no convincing or reliable evidence in support of charge of eitherunder section 376 or 323 IPC. 5.She pointed out that, prosecution has adducedevidence of brother, who was admittedly elder to victim, but heallegedly ran away and according to learned counsel, his testimonyshows that, he has not seen alleged incident as is put-forth byprosecution.6.She pointed out that, there is no prompt complaint.Moreover, there are suggestions that due to previous politicalrivalry, there is false implication. According to learned counsel,there is weak evidence. That, there is no corroboration to thetestimony of victim and therefore according to her, learned trialcourt erred in accepting prosecution version and hence she praysto allow the appeal. She seeks reliance on the following rulings :- (i)Rai Sandeep v. State of NCT of Delhi, MANU/SC/0623/2012 (ii)Narender Kumar v. State (NCT of Delhi), MANU/SC/0481/2012(iii)Nirmal Premkumar and Ors. v. State Rep. by Inspector of Police, MANU/SC/0188/2024(iv)Manak Chand v. The State of Haryana,MANU/SC/1191/2023 -5- Cri.Appeal.769.2004(v)Sadashiv Ramrao Hadbe v. State of Maharashtra & Ors.MANU/SC/0607/2006(vi)Bhagbat Gorain v. State of West Bengal,(C.R.A. No.587/2007- High Court of Calcutta)On behalf of Respondent :-7.Per contra, learned APP pointed out that, victim wasbarely 15 years of age. That, she was ravished by accused whileshe was alone returning from the field. That, her brother saw hissister crying and even accused putting on his own clothes. That,therefore, he went for her rescue, but was beaten. That, he ran andreported incident to his parents and aunt. That, they all areexamined. He submitted that, sole testimony of victim is sufficientto record guilt and according to him, here, as the testimony ofvictim is inspiring confidence and her evidence having remainedunshaken regarding the occurrence, it is his submission that, thereis no infirmity or error on the part of learned trial Judge inreturning the guilt. In support of above submissions, he seeks reliance onthe decision of Hon’ble Apex Court in the case of Phool Singh v. theState of Madhya Pradesh in Criminal Appeal 1520 of 2021.EVIDENCE ON RECORD8.PW1 Narayan, pancha to seizure of clothes of victimdid not support prosecution. -6- Cri.Appeal.769.2004 PW2 Havgirao, another pancha to seizure of clothes ofvictim did not support prosecution. PW3 Pandhari, neighbour did not support prosecution. PW4 Dr. Rajendra Chavan, Medical expert, whoexamined accused. PW5 is the victim. He deposed at Exh.23. PW6 is father of victim. PW7 is brother of victim. PW8 is the aunt of victim. PW9 Sk. Mehboob is the pancha to spot panchanama. PW10 API Pathan is the Investigating Officer. PW11 Maroti, Head Master, who placed on recordextract of admission register.SUM AND SUBSTANCE OF PROSECUTION EVIDENCE9.PW5 Victim at Exh.23 in paragraph Nos.1 and 2deposed as under :- “1.I know the accused, sitting before the court.Incident occurred on 25.08.2003, at about 5:30 p.m.at that time, I was returning from the fields when Iwas near the field of one Gurling, at that time, theaccused was coming from my opposite direction. Hecaught my hand, pulled me by the side behind thebushes below a hillock, he fell me down in a stream(nali) and closed my mouth by means of his hand, hefell on my person and committed intercourse on me. -7- Cri.Appeal.769.2004He also assaulted on my face. At that time, mybrother came there. Accused assaulted him on hisface. My brother ran towards the field to inform mymother. I came home. The accused had ran awayform the spot after assaulting my brother is 2 yearselder than me. I came home and told about theincident. I was crying. 2.As it was the night time, we did not go tothe police station, Mukramabad. On the next daymorning we went to Mukramabad police station andfiled the complaint. Police reduced into the writingmy report as per my narration. I then signed on it.The report dated 26.08.2003.” While under cross, she stated that, she studied up to 8thstandard; left school 2 to 3 years back; that she used to go to fieldwork since she was about 5 years old; on the date of incident shehad been to the field between 9 to 10 a.m. with parents andbrother. She answered all questions put to her regarding locationand situation of the way to the field; about lady working in theadjoining field and their names. In paragraph no.8, she answeredthat, accused was coming from his field. She answered that she didnot go to the hospital of Dr. Repanwad one and half month prior tothe incident. He answered that, her brother served at Pune. Sheanswered that, her brother came from the house when sheshouted. She answered that, she was alone when she left for home -8- Cri.Appeal.769.2004and she met no one on the way. She stated that, she herselfnarrated the incident to police. She admitted that, she did notsuffer any injury on her person. Rest is all denial. 10.PW6 father at Exh.25 deposed as under :- “1.I know the accused. Witness victim is mydaughter. Incident occurred on 25.08.2003. I was inthe field at that time. On that day myself, my wife, myson and my daughter victim had gone to the field inthe morning. We were in the fields till about 6:00 p.m.About 4:30 p.m. we sent ahead our daughter victim toour house for preparing meals etc. prior to that in theafternoon we had sent our son home for home work onaccount of the pola festival which was on next day. 2. At about 6:00 p.m. my son came back to the fields.He came running to the fields. I inquired from him as towhat was the matter. He told me that when he wascoming towards the field, he saw accused Hanmant wasin his underwear and he was trying to wear histrousers at that time, his sister victim was sittingcrying there. My son inquired frok her as to what hadhappened. My daughter victim told him that accusedHanmant had forcibly sexually intercourse with her.My son followed the accused, at that time, the accusedassaulted him by means of slaps and thereafter theaccused ran away towards the village and my son cametowards the fields. My daughter victim went towardsthe house. My son told us about the incident. -9- Cri.Appeal.769.2004Thereafter we returned the home. 3.In the house we saw daughter crying. She told usabout the incident and she was crying. She told us that,the accused Hanmant had caught hold of her in thefields, fell her down and forcibly had intercourse withher. As it was night time and there was little rain, sowe could not go to the police station. 4.On the next day morning we went to police stationand complaint was filed against the accused.” While under cross, following omissions are brought :- That, son PW7 had told that he had seen accused in hisundergarment and he was wearing his trouser; that his son toldthat victim was sitting at that place; that his son had chasedaccused; that his son told that accused had run away from the spot;during that night it was slightly raining. In further paragraph nos. 6, 7 and 8 there are questionsabout distance between villages, location of land, neighbours, whowas the Sarpanch, his name, tenure, boundaries of village, locationof the road, its nature, whether road was kachcha road or tar road;nature of crop in the adjoining fields. Again in paragraph no. 9questions are put about grampanchayat elections and he admittedthat he and his mother both lost the same. He answered that he -10- Cri.Appeal.769.2004does know whether accused belonging to political party of exSarpanch. He answered that they reached police station at 12:00noon. Rest is all denial. 11.PW7 brother at Exh.26 deposed as under :“I know the accused Hanmant who is present before thecourt. Complainant victim is my sister. The incidentoccurred about 9 to 10 month ago at about 4:30 to 5:00p.m. At that time I was going towards my field from myhouse. At that time, I saw my sister victim sitting andcrying in field of Guruling Targude. I also saw theaccused wearing his clothes. On seeing me he startedrunning away. I then went to my sister victim. Shetold me that the accused caught her hand, fell her downand raped her. I then chased the accused. I obstructedthe accused. He then abused me and assaulted me andtold me to go away from there. Due to the assault at thehands of accused I got frightened, and went towards myparents in the fields. I told about the incident to myparents. Thereafter we all came home. At that time mysister was crying in the house. After assaulting me, theaccused had ran away from the spot. The accusedpresent before the court is the same whom I had seenduring the incident.” While under cross, he stated that, he studied upto 10thstandard and regarding the occurrence he stated that he chasedaccused for about 100 meters towards east. He answered that -11- Cri.Appeal.769.2004when he went to the field after the incident, his parents and auntmet him in the field and he returned home at 6:30 p.m. Rest is alldenial.12.PW8 maternal aunt stated that at about 4:00 to 5:30victim was sent to prepare meals. Thereafter PW7 came and toldthat, accused caught hand of his sister, assaulted him and rapedhis sister. In cross, she is questioned about her family, field and itssurroundings. Rest is all denial. 13.PW9 Sk. Mehboob, pancha identified spot panchanamato be at Exh.29 prepared in his presence. But, thereafter he deniedthat any clothes seized in his presence. He again identified Articles4 to 7 and seizure panchanama at Exh.30. In cross he answered that, his signature was obtainedat the spot and secondly at Maruti temple.14.PW11 Maroti, Head Master, who deposed that, victimstudied in their school up to 5th standard as per school register, herdate of birth was 04.05.1998. He placed photocopy of certificate atExh.44. -12- Cri.Appeal.769.2004 While under cross he admitted that, he did not carryoriginal admission register of victim.ANALYSIS15.Evidence of victim is crucial. She in her evidence atExh.23 has narrated that while she was returning from field,accused appellant, who was coming from opposite direction,initially caught her hand, dragged her behind the bush, aftermaking her fall, he committed sexual intercourse. He also hit heron the fact. When her brother came on hearing her cries, accusedhit him also and therefore, he ran to inform parents. She alsostated that, her brother had chased the accused and thereafter heran away. Her brother who is examined as PW7 also in hisevidence stated that, while he was returning towards his housearound 5:00 p.m., he saw his sister sitting and crying and also sawaccused putting up clothes and so he ran there. She told him thataccused raped her. He claims to have chased accused. On visiting their cross, the above testimonies havevirtually remained unshaken. 16.Fundamental objection raised by learned counsel isthat, there are no injuries on the person of victim and she has -13- Cri.Appeal.769.2004admitted to their extent in her cross. It is also pointed out that,there are no fresh injuries noticed by doctor or indicating forcefulintercourse. 17.Going by the settled legal position that, merely becausethere are no injuries, that itself is not sufficient to discard hertestimony that she was raped. She has narrated the episode sincebeing dragged, made to fall down and thereafter forcibly raped.Settled law is loud and clear that, absence of injury is itself no goodground to rule out rape. Further, law is also fairly settled that,evidence of prosecutrix if inspires confidence, even in absence ofcorroboration or injuries, her version can be accepted. Even law isreiterated to that extent in the cases of Krishan v. State ofHaryana, (2014) 13 SCC 574; Dastagir Sab & Anr. v. State OfKarnataka, 2004 (3) SCC 106 and State of Punjab v. Gurmit Singhand Ors. (1996) 2 SCC 384.18.Second attack of learned counsel is about age of thevictim. It is emerging that, PW11 Maroti, Head Master has beenexamined, who placed on record extract of school register, quotingher date of birth as 04.05.1988. Mere failure to bring originalregister in the court will itself not be sufficient to doubt the age.School record has gained primacy in terms of documentary -14- Cri.Appeal.769.2004evidence as regards to age is concerned. Once victim stoodsteadfast about being raped, her such sole testimony can be reliedand made basis of conviction. 19.Considering the testimony of victim, finding supportfrom her brother and prompt lodgment of FIR, case of prosecutiondeserves to be accepted. No good ground is made out in appeal tointerfere. 20.Original complainant has preferred criminal revisionpraying for enhancement of sentence awarded by learned trialJudge. After considering the above discussed evidence, no faultcan be found in the findings recorded by learned trial Judge asregards to quantum of sentence is concerned. Consequently,revision has no substance and is devoid of merits. Hence, followingorder is passed.ORDER(i)The criminal appeal is dismissed.(ii)Criminal revision application filed by complainant isdismissed. (ABHAY S. WAGHWASE, J.) -15- Cri.Appeal.769.200421.On pronouncement of this judgment, learned counselfor the appellant prays for six weeks time to surrender so as toenable him to approach the Hon’ble Apex Court.22.Learned APP as well as learned counsel for complainantstrongly opposes the same.23.Considering the above request made by learned counselfor the appellant, six weeks time is granted for the appellant tosurrender. (ABHAY S. WAGHWASE, J.) Tandale