High Court
Facts
CriAppeal-398-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 398 OF 20021]Parmeshwar s/o Raoji Ade,Age 22 years, Occu. Agril.,R/o. Sankarala, Tq. Jintur,Dist. Parbhani.2]Vitthal s/o Sawairam Ade,Age 20 years, Occu. Agril.,R/o. Sankarala, Tq. Jintur,Dist. Parbhani.… Appellants[Orig. Accused]Versus1]The State of Maharashtra,Through Police Station, Bamani,Tq. Jintur, Dist. Parbhani.2]X.Y.Z.… Respondents.…..Mr. S. B. Bhapkar, Advocate for the Appellants.Mr. N. D. Batule, APP for Respondent No.1-State.Mr. K. B. Jadhav, Advocate for Respondent No.2.….. CORAM :ABHAY S. WAGHWASE, J.Reserved on: 13.02.2024Pronounced on: 21.02.2024JUDGMENT : 1.Instant appeal arises out of judgment and order of convictionpassed by learned 1st Adhoc Assistant Sessions Judge, Parbhani dated18.07.2002 in S.T. No. 158 of 2000 in which both the appellant areheld guilty and convicted for commission of offence punishable underSection 376(g) of the Indian Penal Code [IPC]. CriAppeal-398-2002-2- FACTS GIVING RISE TO THE SESSIONS TRIAL ARE AS UNDER2.On 05.11.1999, victim, a 15 years old girl, was carrying mealsfor her grandfather, who was working in the field. While going to hefield, she was required to pass through the fields of appellantsParmeshwar and Vitthal. Around 10.00 a.m., she was intercepted byParmeshwar. Later on appellant Vitthal joined him and they bothlifted victim and took her to the cotton crop and took turns to haveforcible sexual intercourse with her. She informed her mother, butinitially she reported only regarding occurrence of outraging hermodesty. In the evening, it is case of prosecution that, she disclosedabout pains to her private part and thereafter she narrated the factsabout both accused committing rape on her. Therefore, on the strength of such statement, crime initiallyregistered for offence under Section 354 IPC came to be converted to376(g) IPC. She was subjected to medical examination. PW6 carriedout investigation and after its completion, both accused came to bechargesheeted and tried by learned trial court, who, on appreciatingtestimonies of six witnesses and documentary evidence, recorded guiltfor offence under Section 376(g) IPC and sentenced both accused tosuffer 10 years rigorous imprisonment and to pay fine. Such orderdated 18.07.2002 is now taken exception to by filing instant appeal.
Legal Reasoning
CriAppeal-398-2002-8- 10.Law is fairly settled that mere medical opinion about‘habituated to sex’ would not relieve accused from the charge. Victimhas every right to refuse to submit herself to sexual intercourse. Itwould be fruitful to refer cases of same nature which are decide bythe Hon’ble Apex Court which are as follows:In State of Maharashtra v. Madhukar Narayan Mardikar (1991)1 SCC 57 ; State of Punjab v. Gurmeet Singh and others (1996) 2 SCC384 ; State of U.P. v. Pappu @ Yunus AIR 2005 SC 1248 and State(Govt. of NCT of Delhi) v. Pankaj Chaudhary (2019) 11 SCC 575/AIR2018 SC 5412, the Apex Court observed that even a woman of easyvirtue is entitled to privacy and no one can invade her privacy as andwhen he likes. So also it is not open to any and every person toviolate her person as and when he wishes. She is entitled to protecther person if there is an attempt to violate it against her wish. She isequally entitled to the protection of law.In State (Govt. of NCT of Delhi) v. Pankaj Chaudhary (supra),in para 29 the Apex Court has held as under:“29.It is now well settled principle of law that convictioncan be sustained on the sole testimony of the prosecutrix ifit inspires confidence. [Vishnu v. State of Maharashtra(2006) 1 SCC 283]. It is well settled by a catena of CriAppeal-398-2002-9- decisions of this Court that there is no rule of law orpractice that the evidence of the prosecutrix cannot berelied upon without corroboration and as such it has beenlaid down that corroboration is not a sine qua non forconviction in a rape case. If the evidence of the victim doesnot suffer from any basic infirmity and the “probabilitiesfactor” does not render it unworthy of credence, as ageneral rule, there is no reason to insist on corroborationexcept from medical evidence, where, having regard to thecircumstances of the case, medical evidence can beexpected to be forthcoming. [State of Rajasthan v. N.K.(2000) 5 SCC 30]”In State of Orissa v. Thakara Besra & Another AIR 2002 SC1963, the Apex Court held that testimony of the prosecutrix must beappreciated in the background of the entire case and in such cases,non-examination even of other witnesses may not be a seriousinfirmity in the prosecution case, particularly where the witnesses hadnot seen the commission of the offence.In Vijay @ Chinee v. State of Madhya Pradesh (2010) 8 SCC191, the Apex Court, after referring State of Maharashtra v.Chandraprakash Kewalchand Jain AIR 1990 SC 658, State of U.P. v.Pappu @ Yunus (supra), State of Punjab v. Gurmit Singh (supra),State of Orissa v. Thakara Besra (supra) and few other judgments,has held that the law that emerges on the issue is to the effect that CriAppeal-398-2002-10- statement of prosecutrix, if found to be worthy of credence andreliable, requires no corroboration. The court may convict the accusedon the sole testimony of the prosecutrix.11.Therefore, above defence is not sufficient to absolve the seriouscharge of rape. Victim has categorically stated that she was lifted,made to lie down on the ground, rendered immobile by one whileraped by other. After being raped, she claims to have pleaded not tothrow her in the well and on her assurance of not telling the incidentto anybody, both accused let her lose. Same day she had reported theoccurrence.12.As regards non examination of medical evidence, it is clear thatbefore commencement of trial, under Section 294 Cr.P.C., defenceitself has admitted the medical report and therefore, under suchcircumstances, it is not open for them to question the medicalevidence.13.Here, this court is also of the considered opinion that there isno reason to disbelieve or discard the evidence of victim. She hasnamed both accused and has identified them. As such, learned trialJudge has correctly appreciated and accepted her evidence. Law is
Arguments
CriAppeal-398-2002-3- SUBMISSIONS3.Learned counsel for the appellants pointed out that there isapparently false implication. He emphasized that initially incidentreported by victim herself was of merely outraging modesty. Evencrime was registered on her such statement, but later on false andafterthought complaint alleging commission of rape has beenregistered. He pointed out that there is no convincing evidence aboutvictim being taken by accused in the field and raped. He pointed tothe medical evidence and submitted that there are no injuries andeven medical report is about old hymen tear and victim to behabituated to sex. Therefore, according to him, even medical evidencedoes not support prosecution. He took this court to the testimony ofvictim in witness box and also to her cross-examination and wouldemphatically submit that answers given in cross clearly show thatversion has been improvised. Her entire testimony is full of materialomissions and contradictions. He also took this court through the testimony of mother andwould point out that her cross also clearly shows that it is full ofmaterial omissions and contradictions and improvised version. That,except testimonies of these two witnesses, there is no otherindependent witness. Therefore, it is his submission that with such CriAppeal-398-2002-4- quality of evidence, guilt ought not to have been recorded. He finallysubmitted that very testimony of victim has failed to inspireconfidence. That, according to him, it is not possible to commit suchoffence during day time, that too in a cotton crop when people wereadmittedly working around the alleged scene of occurrence dueharvesting season. That, victim also has not raised any hue and cry oralarm. Therefore he questions the reasoning and the conclusionreached at by the trial Judge. For all above reasons, he prays to allowthe appeal by quashing the impugned judgment of conviction.4.In answer to above, learned APP pointed out that firstly, victimwas below 16 years of age at the time of occurrence. She is a villagegirl and an illiterate. That, taking disadvantage of her loneliness, bothaccused known to her have committed rape by taking turns. That,accused Parmeshwar had committed rape twice. That, when one wasraping, the other held her. They had threatened to throw her in thewell, but on her pleading not to throw her in well and assurance notto disclose the incident, they had let her off. Same day she hadnarrated the occurrence to her mother and had approached police.There is no delay. According to him, in such cases, even otherwisedelay is insignificant. He lays much stress that though in the FIR,victim had not narrated about rape, he pointed out that being a minor CriAppeal-398-2002-5- and furthermore FIR not being encyclopedia, mere failure to reportrape also in the FIR was not fatal for prosecution. Her testimony wasinspiring confidence. Medical evidence though is about no injury andhabituated to sex, it is his submission that, accused persons had noright to have forceful sex when victim herself had opposed. Thus, it ishis submission that learned trial court has rightly appreciated theevidence as well as applied the settled law and therefore, according tohim, no fault can be found in the appreciation and conclusion drawnby learned trial court.5.Here, both accused are chargesheeted for offence punishableunder Section 376(g) of IPC. To bring home the said charge,prosecution seems to have examined following six witnesses:PW1 Medical Officer Maske who examined both accused.PW2 is the victim.PW3 is mother of victim.PW4 Deorao is pancha to spot panchanama Exhibit 44.PW5 Pandurang has acted as pancha to seizure of clothes of victimvide seizure panchanama Exhibit 48.PW6PHC Thakur is the Investigating Officer. CriAppeal-398-2002-6- 6.Evidence of victim is crucial and of significance. She seems tobe a girl, 15 to 16 years of age. In her evidence at Exhibit 40 she hasstated that on that day, while she was taking meals for hergrandfather and while she was passing through the way which goesthrough the fields of both accused, accused Parmeshwar first stoppedher, thereafter accused Vitthal joined him. According to her, they bothlifted her, took her to the cotton crop, first Parmeshwar committedrape while Vitthal held her, whereas after him, Vitthal took turn torape her while Parmeshwar held her. She has named Parmeshwar forraping her twice. 7.It is true that on visiting her cross, what she reported in FIRwas only about pressing her breasts, that too only by accused Vitthal,but on next day she seems to have given supplementary statementwhich is noted by PW6 IO and he has deposed to that extent in thewitness box. Therefore, whatever is shown to be improved version ormaterial omission and contradiction, is finding place in thesupplementary statement given on 06.11.1999. It is pertinent to notethat victim is barely 15 to 16 years of age and moreover, resides in asmall village. She is apparently illiterate. She may not have reportedto her mother about rape and only reported about outraging ofmodesty. But on the next day i.e. on 06.11.1999, actual incident has CriAppeal-398-2002-7- been disclosed and therefore, on the strength of her suchsupplementary statement, crime was converted from 354 to 376(g) ofIPC. Charge to that extent was also framed and explained to theaccused before commencement of trial. Therefore, her version is asper her supplementary statement which is also given immediately i.e.on the next day. Taking such circumstances into consideration and particularlywhen the victim was a girl from small village, said reporting after aday cannot be the sole ground to disbelieve her version. 8.Though attempt is made to show false implication on accountof refusal of accused Parmeshwar’s father to perform Parmeshwar’smarriage with elder sister of victim and so parents of victim havinggrudge against accused Parmeshwar, in the considered opinion of thiscourt, merely on such count, allegations of such serious nature wouldnot be raised by a small girl.9.Learned counsel for the appellants would strenuously submitthat here, medical expert is not examined and secondly, medicalexamination report is about old hymen tear and girl to be habituatedto sex. Therefore, it is tried to be submitted that present allegations ofrape cannot be considered.
Decision
CriAppeal-398-2002-11- also fairly settled that if sole testimony of victim inspires confidence,the same can be accepted and even relied for fixing guilt. For abovereasons, this court does not find any reason to interfere in thejudgment. Hence, finding no merits in the appeal, I proceed to passthe following order:ORDERI.The appeal is hereby dismissed.II.The bail bonds furnished by both the appellants standcancelled.III.The Superintendent of Police, Parbhani is directed to seethat both the accused-appellants surrender to undergosentence as ordered by the learned Ist Adhoc AssistantSessions Judge, Parbhani in S.T.No.158/2000 on18.07.2002 forthwith and send compliance report to thiscourt within two weeks from the date of receipt of thisjudgment.IV.The record and proceedings be sent back to the concernedcourt forthwith.V.The Criminal Appeal is accordingly disposed of. [ABHAY S. WAGHWASE, J.]vre