Shri. Hari P. Davare, J.@mdashHeard learned respective Counsel for the parties.
2. The challenge in this appeal is to the conviction and sentence imposed upon the appellant (original accused), for the offence punishable u/s 376 of Indian Penal Code, and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for six months, and also convicting him for the offence punishable u/s 506 of Indian Penal Code, and sentencing him to suffer simple imprisonment for one month and to pay fine of Rs. 500/-, in default, to suffer simple imprisonment for seven days, and also directing that the said substantive sentences to run concurrently, by way of judgment and order dated 23-2-2010, rendered by the learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 182/2009.
3. The shorn of details of the prosecution case are as follows :
(a) The first informant P.W.2 Hirabai Khandagale, who is mother of three daughters and one son, and she and her husband P.W. 6 Tulshiram and a daughter, P.W.1 Anita and son Ganesh used to reside jointly. It is alleged that the victim Anita was aged about 13 -14 years and she used to go to the field of Madhavrao by tractor. It is also alleged that the incident took place on 30th May 2009 at about 12 to 12.30 Noon when Mainabai, Sakubai, Sunita, and daughter of Hirabai, namely, Anita and others about 20 women had gone to the field and accused Pinu Shaikh was driving on the said tractor. It is further alleged that at about 12 Noon, women in the field sent victim Anita to bring water, and hence, she came near pipeline which was near grown up sugarcane. At this juncture, accused Pinu Shaikh came there and grabbed her in the sugarcane crop and threatened to kill her by axe, if she stated anything to other women. Thereafter, he fell down her and pressed her breast and removed her clothes, as well as, removed his clothes to the extent of knees and committed rape upon her, which resulted into oozing of blood and swelling on her private part and stains thereof were scattered on her knicker and Salwar. She was frightened having sweating. However, accused threatened her to kill if she stated anything to other women and went away. But thereafter victim Anita came to other women in the field, but did not state them anything due to threats and returned from the field at about 6.00 p.m., but did not disclose to her mother due to threats given by the accused, and went to the bed without food.
(b) It is also alleged that there was holiday on the next day being Sunday and the first informant Hirabai heard from Gayabai, that there was discussion amongst the women about atrocity committed by the accused upon victim Anita. Hence, first informant P.W.2 Hirabai enquired with the victim and thereafter victim Anita narrated the aforesaid incident to her, that on Monday at 12.30 noon, when she went to take water, accused caught her and threatened to kill her if she raises shouts, and committed rape upon her. Hence, the first informant had been to the Sarpanch and narrated the aforesaid incident, and thereafter proceeded to Shevgaon Police Station.
(c) It is the case of the prosecution that P.W.9 Sunil Suryawanshi, Police Naik, was attached to the said Police Station and was on duty as P.S.O. on 1-6-2009, and he recorded report of P.W.2 Hirabai on 1-6-2009 as per her version and same was treated as FIR Exhibit 12, and offence was registered against accused under C.R. No. 53/2009 on 1-6-2009 at about 21.05 hours.
(d) It is also case of the prosecution that P.W.10 API Dnyaneshwar Karche was also attached to Shevgaon Police Station as PSI at the relevant time and investigation of aforesaid C.R. No. 53/2009 was handed over to him and he arrested the accused on 2-6-2009 in the evening, under arrest panchanama Exhibit 36. On the next day, he visited the spot and drew spot panchanama Exhibit 14. He also made enquiry with the women with whom victim was working, and recorded their statements, as well as, recorded statements of other witnesses and statement of victim Anita. Moreover, he also recorded statement of father of victim, namely, Tulshiram, and also requested Talathi for getting extract of the land where spot is situated. Copy of the letter is produced on record at Exhibit 37. Thereafter, he collected 7 x 12 extract and 8-A extract of the said land, which are produced at Exhibits 38 and 39, respectively. Moreover, he drew panchanama regarding seizure of clothes on the person of accused, Exhibit 31, as well as, seizure panchanama of clothes on the person of victim Anita, Exhibit 22, in the presence of Panch witness P.W.5 Shivaji Tekale. Thereafter, he sent the seized Muddemal articles to Chemical Analyser''s office along with the covering letter, through Police Constable Suryawanshi, on 9-6-2009, for examination purpose and the office copy of the said forwarding letter is produced at Exhibit 41. Pursuant to the said forwarding letter, Chemical Analyser''s reports were received which are produced at Exhibits 43, 44 and 45.
(e) Moreover, the victim was sent to Civil Hospital, Ahmednagar, and P.W.7 Dr. Ganesh Bade examined her on 2-6-2009 and issued report thereof which is produced at Exhibit 26. Moreover, accused and victim were also examined by P.W.8 Dr. Satish Pawar at Civil Hospital at Shevgaon, and he issued the medical certificate in respect of victim Anita, at Exhibit 28, and also issued medical certificate in respect of accused which is produced at Exhibit 31.
(f) Accordingly, after completion of investigation, P.W.10 API Dnyaneshwar Karche filed charge sheet against the accused before learned Judicial Magistrate (F.C.), Shevgaon. However, since the case was exclusively triable by the Court of Sessions, said case was committed to the Court of Sessions at Ahmednagar. Thereafter, learned Assistant Sessions Judge, Ahmednagar, framed charge against the accused, at Exhibit 4, on 28th July 2010, for the offences punishable under Sections 376, 506 and Section 376 read with Section 201 of Indian Penal Code. However, accused pleaded not guilty to the said charges and claimed to be tried.
4. To substantiate the charges levelled against the accused, the prosecution examined as many as ten witnesses as mentioned below :
PW 1 -Anita d/o. Tulshiram Khandagale
- victim / prosecutrix.
PW 2 - Hirabai w/o. Tulshiram Khandagale
- complainant (first informant) and mother of victim who produced the complaint dated 1-6-2009 at Exhibit 12.
PW 3 - Laxman s/o. Vitthal Kshirsagar
- Panch witness to the spot panchanama Exhibit 14.
PW 4 -Vijay s/o. Namdeo Nalawade
- Junior Clerk in Shevgaon Panchayat Samiti.
PW 5 - Shivaji s/o. Bapu Tekale - Panch to the panchanama of seizure of clothes of the accused and victim, Exhibits 21 and 22, respectively.
PW 6 -Tulshiram s/o. Shripati Khandagale - Father of the victim.
PW 7 - Dr. Ganesh s/o. Ramnath Bade - Medical Officer in Civil Hospital, Ahmednagar, who examined the victim.
PW 8 - Dr. Satish s/o. Harikisan Pawar - Medical Officer attached to Civil Hospital, Shevgaon, who examined the victim and issued medical certificate Exhibit 28, and also examined accused and issued medical certificate Exhibit 31.
PW 9 - Sunil s/o. Haribhau Suryawanshi, Police Nail -Who recorded FIR of PW 2 Hirabai on 1-6-2009, under C.R. No. 53/2009 against the accused.
PW 10 - Dnyaneshwar s/o. Tukaram Karche,API - Investigating Officer.
5. The defence of the accused is of total denial and he stated that since P.W.2 Hirabai used to steal grass of other women, he did not allow her for work. On Monday, he did not allow Anita to come for work, and therefore, P.W.2 Hirabai took her to home and stated that ''we would see him''. Accordingly, she called boys in the village and also Sarpanch, and they assaulted him on his returning home in the evening and lodged false criminal complaint against him, and accordingly, accused claimed to be innocent. Moreover, accused also put his defence through the cross examination of prosecutrix / victim P.W.1 Anita, that since she was prevented from proceeding for work on Monday by the accused and Mainabai, she herself and her mother got annoyed and lodged false report, but same was denied by her. However, accused neither examined himself on oath nor examined any defence witness.
6. After considering oral, documentary and medical evidence on record, and after considering rival submissions advanced by the learned Counsel for the parties, accused was convicted and sentenced, as aforesaid, by way of judgment and order dated 23-2-2011.
7. Hence, being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, accused has preferred the present appeal assailing the same and prayed for quashment thereof.
8. In order to deal with the submissions advanced by the learned Counsel for the parties effectively, it is necessary to advert to the material evidence adduced / produced by the prosecution, and in that context, coming to the deposition of P.W. 1, prosecutrix / victim, namely, Anita, who claims to be of 15 years old, and therefore, questions were put to her by the learned trial court, to which she apparently replied properly, and hence, learned trial court held that she knew the sanctity of oath, and therefore, oath was administered to her. She stated in her deposition that she used to go for work of sugarcane cutting at Yerandgaon Shiwar of one Madhavrao Nalawade, along with some women, namely, Mainabai Khandagale, Sakubai Kande, Sunita Jagdhane and other 10 -12 women by tractor which belonged to Madhavrao Nalawade and the appellant herein was driver thereon, and they used to go at about 9 a.m. and used to return at about 6 p.m., and appellant / accused used to take them by tractor. She also stated that on the date of incident, she along with other women proceeded to the field of Madhavrao at about 9.30 a.m. and started work at about 11 a.m., and appellant went towards grown up sugarcane. At about 12.00 noon, women in the field sent the prosecutrix to bring water, and therefore, she came near pipeline which was near grown up sugarcane. The appellant also came there and he grabbed the victim in the sugarcane crop and threatened to kill her by axe, if anything was stated to other women and he fell her down and pressed her breast and removed knot of Salwar, and also removed knicker to the extent of her knees, and also removed his pant and knicker to the extent of his knees, and inserted his penis into her vagina, and moved himself in upward and downward directions for 4 -5 times. She also stated that there was blood and swelling in her private part, and blood was oozing, and there were blood stains over her knicker and Salwar, as well as, she was frightened and was sweating. She further stated that the accused threatened to kill her, if anything was stated to other women and thereafter he went away. She also stated that she came to other women in the field and the pitcher containing water carried by her fell down, after reaching near women, but she did not state anything to women due to threats. She also stated that she returned home at about 6.00 p.m. along with other women, but did not disclose anything about the incident to her mother due to threats given by the accused, and went to bed without food. However, next day was holiday being Sunday and she was suffering on the said day, and thereafter she narrated about the said incident to her mother on Monday, and expressed her suffering, and stated that the appellant committed rape upon her. Thereupon, her mother and maternal uncle took her to Sarpanch Takalkar, but he was not available, and he came to home at 6.00 p.m., and thereafter the victim and her mother narrated the incident to him, and thereafter they went to Shevgaon Police Station and victim''s mother lodged report and thereafter the said victim was sent to Government Hospital where she was not examined, but she was examined at Ahmednagar, and Police personnel recorded her statement. She identified the accused in the court, as well as, identified clothes on her person at the time of incident i.e. Articles 4, 5 and 6, respectively.
9. In the cross examination of prosecutrix / victim P.W.1 Anita, a specific question was put to her, whether she can tell the date of FIR and she replied thereto in the affirmative and gave the date as 30/2009. Accordingly, she stated date of incident which is 30th May 2009, but the FIR came to be lodged after two days i.e. on 1st June 2009. The appellant put his case to the said witness through the cross examination, that there was dispute between accused and one of the women and the victim was with those women on Monday, to come to the field and accused Pinu stated Mainabai on Monday while coming to the field that the victim was not doing the work and tractor was in front of her house on Monday, but Mainabai asked the victim to get down from the tractor, and therefore, victim''s mother stated that they would see them and let them refuse to go for work, but same was denied by her. She also stated that she does not know that on Monday accused took women from the field at 6.00 p.m. It was also suggested to her that she herself, her mother and brother, and other 20 -25 boys stopped the tractor in front of her house on Monday, and at that time, victim''s mother, brother and other boys assaulted accused, but same was denied by her. She also asserted that on Monday at 6.00 p.m., Takalkar took her near the tractor, but she did not see Mainabai and other women near the tractor. Thereafter, specific question was put to her, whether place near the pipeline was at a distance of 50 feet from the place where women were sitting in the land, and in reply, she stated that it was 80 feet. Moreover, she was also asked specific question that had she raised shouts while accused Pinu was holding and snatching her, and she replied thereto, that the accused had threatened her to kill and further stated that she tried to push the accused when he tried to sit on her body by felling her down, and there were blood stains on front side of her knicker and Salwar.
10. The prosecutrix / victim P.W.1 Anita further stated in her cross examination that her statement was recorded on Monday, which is contradictory to her earlier version wherein she stated that Police recorded her statement on Tuesday, as well as, she stated that she narrated about the incident to her Mother on Sunday. Moreover, she also stated that she has not taken bath on Friday, Saturday, Sunday and Monday, but medical certificate discloses that last bath was taken by her on 1-6-2009.
11. Coming to the deposition of P.W.2 Hirabai, who lodged the complaint i.e. first informant, who has stated that she herself, her daughter Anita and son Ganesh were residing jointly at the time of incident and her husband had gone for job since last two months. She also stated that prosecutrix Anita was aged about 13 to 14 years at the time of incident and prosecutrix Anita used to go to the field of Madhavrao by tractor. She further stated that the incident took place prior to one year and three months, and Mainabai, Sakubai, Sunita, daughter Anita and about 20 other women used to go to the field by tractor owned by Madhavrao and driven by accused at the relevant time. On the date of incident, Anita returned to home at about 6.00 p.m. in confused condition and her eyes were reddish and she did not take food and went to sleep and the day of incident was Saturday and there was Sunday on the next day being holiday. She also stated that Gayabai is her aunt and Gayabai disclosed her that there was murmur among women about atrocity on her daughter Anita by the accused, and hence, P.W.2 Hirabai made enquiry with her daughter on Monday, which revealed that the accused gave threats to the victim to kill her by axe and dragged her into sugarcane crop and committed rape upon her. Thereafter, they had been to Sarpanch, but he was not at home and when he came at about 7.00 p.m., she narrated the incident to him and thereafter proceeded to Shevgaon Police Station and P.W.2 Hirabai lodged the report which is stated in FIR and marked as Exhibit 12. She also identified the accused before the court.
12. As regards age of the victim Anita, P.W.2 Hirabai i.e. her mother was cross examined, and she stated that she was married about 25 years back and delivered elder daughter Sunita after one and half years after the marriage; then she delivered daughter Kavita after two years, and then she delivered third daughter Anita after two years of birth of second daughter, and it is canvassed that the said calculation discloses that the age of the victim was 19 years at the time of alleged incident. Moreover, she also stated that the distance between village Ghotan and Shevgaon might be 10 to 12 miles, and she went to Sarpanch at about 2.00 p.m. and again had been to him at about 7.00 p.m., and she was at home between 2.00 p.m. to 7.00 p.m. on the said date. The accused also put his defence to the said witness, that on Monday, when other women were to go to field, victim Anita also accompanied them, but Mainabai asked Anita to get down from the tractor and thereupon P.W.2 Hirabai stated to Anita, that ''they would see tractor driver (i.e. accused) and Mainabai on arrival in the evening'', but same was denied by her. She also denied that she was annoyed because accused stated Mainabai, not to allow Anita i.e. victim to come for work, but same was denied by her.
13. Coming to the evidence of PW6 Tulshiram Shripati Khandagale, who is the father of the victim girl, stated that he has three daughters, namely Savita, Kavita and Anita and one one son, namely Ganesh and out of them, Savita and Kavita were married and the age of Anita i.e. victim herein was 13 to 14 years at the time of incident. He also stated that he was out side the village for his work at the time of incident and learnt about the incident on the first day of 6th Month, which took place about 11/4 years back, since his wife informed him on phone that Pinu i.e. accused herein committed rape on her daughter, namely Anita in the land of Narwade, as lady workers sent her to bring water and at that time the accused took her inside the sugarcane crop forcibly. He also stated that his wife lodged the report and police also recorded his statement. However, they informed him that his name was changed as Tukaram. Hence, he moved an application to change his name from Tukaram to Tulshiram to the Panchayat Samiti along with affidavit, coupon card and election card and also annexed the certificate of his residence at Ghotan, and accordingly, his name was changed as per his request. He also identified the accused before the court.
14. In the cross-examination, he stated that at the time of incident, he was working in Newasa Tahasil and he received information on phone at about 11.00 a.m. and he met his wife in the evening and his daughter was at home. He made inquiry with her. He also stated that police recorded his statement at the police station on the next day. As regards his contention that lady workers sent his daughter for bringing water, there is omission in his police statement and improvement in his testimony. He also admitted that he stated for the first time before the court that his name was changed as Tukaram and he filed the affidavit in Panchayat Samiti, Shevgaon along with the afore said documents for correcting his name. He asserted that his wife also used to proceed for work with Mainabai for some time before the incident, but his wife PW2 Hirabai denied the same.
15. That takes me to the deposition of PW4 Vijay Nalawade, who was serving as Junior Clerk at Shevgaon Panchayat Samiti at the relevant time. He stated that his work was to issue the extract of death or birth on demand and to act as per the order of the Block Development Officer. He also stated that the concerned Gramsevak takes entry of death and birth in the register. The register remains with the Grampanchayat for the period of five years after taking the entry. Then they use to send the said register to the Panchayat Samiti. He also stated that the extract of birth or death are issued on the basis of the register sent to them. He brought the birth and death register for the year 1995 and stated that entry as to birth of a female child, dated 19.5.1995 was taken in the register on 31.12.1995 and the birth place is noted as Nitya Seva Hospital, Shevgaon and the name of the mother of the child as Hirabai and the name of father of child as Tukaram are also noted in the said register. He was shown the birth extract and he stated that it was issued by them on the basis of register and the contents thereof are correct as per the original register and it bears signature of the Block Development Officer Mr. Pawade and he identified the said signature and the said extract is produced at Exh.17. He further stated that Tulshiram Shripati Khandagale had filed an application in his office on 29.7.2009 for correction of his name in the birth register and in support of it, he filed the documents and the affidavit. He had also brought the said affidavit in the court and was ready and willing to produce it in original. In the said context, he stated that he asked him to produce the certificate as to his residence at the village, since there was no person of the name as Tukaram Shripati Khandagale. He also stated that Tulshiram had produced the certificate issued by the Gramsevak and Sarpanch of village Chanakwadi that he was resident of that village and there is no person named Tukaram Shripati Khandagale in the same village. He further stated that Tulshiram also produced certificate of Gramsevak and Sarpanch of village Ghotan that, ''Tukaram Shripati'' and ''Tulshiram Shripati'' are one and the same persons. Accordingly, he sated that after receipt of this document, a note sheet was produced before the Block Development Officer and he passed an order thereon to correct and effect the change in the name as ''Tulshiram'' instead of ''Tukaram'' in the birth register. Accordingly, said correction was carried out in the concerned register in the office and on the basis of said correction, he prepared the birth extract taking note in the said extract that in view of said order, dated 28.7.2009, name ''Tulshiram'' is to be read instead of ''Tukaram'' in column 5. He produced the said extract, which is taken on record and marked Exh.19.
16. During cross-examination, he stated that he has experience to issue birth and death extracts since last one year, but no birth or death entry is taken in Panchayat Samiti. He also stated that there is clause 5 in the register for mentioning the name of newly born child, but admitted that in column 5 in the said register no name of newly born child is mentioned. He also admitted that names of various newly born children were mentioned in column 5 in the said register. He also admitted that he has no personal knowledge as to the birth place of female child in the present matter. He further admitted that name of village where birth took place is not mentioned in birth extract Exh.19, as well as the name of newly born child is also not mentioned in clause 1 of Exh.19. He also stated that Talathi of Ghotan issued the certificate dated 10.7.2009 that Tulshiram is resident of Ghotan in the year 2009. He was confronted with the certificate, in which it is mentioned that Tukaram and Tulshiram Shripati are the same persons and thereupon he admitted that no date is mentioned therein. Moreover, specific question was put to him that what was the difficulty in mentioning the corrected name in clause 5 of Exh.19 and thereupon he replied that correction made subsequently is to be mentioned in the remark column of the register. Accordingly, the birth certificate of female child disclosing her date of birth as 19.5.1995 and name of father as Tukaram Khandagale is produced at Exh.17 and birth certificate of female child disclosing date of birth as 19.5.1995 and mentioning her father''s name as ''Tukaram'' Khandagale, which is rectified as ''Tulshiram'' as per the order passed by the Executive Magistrate, Shevgaon on 31.7.2009 is produced at Exh.19.
17. Moreover, prosecution has also examined PW3 Laxman Kshirsagar, spot panch, who produced the contents of spot panchanama (Exh.14), who also stated that on 2.6.2009 at the request of police personnel he arrived at field of Madhavrao along with another panch and found that premises at the spot in the sugarcane crop was rough and the sugarcane crop therein was ravished. He also stated that there was outlet at the distance of 20 to 25 feet from the spot for supply of water to the field. In the cross-examination, he admitted that police have stated that panchanama is written and asked him to sign and accordingly he signed it, but denied that it was signed at Shevgaon police station. He also admitted that the complainant Hirabai is his real sister. As regards the damage in the sugarcane crop, he further admitted that while removing the sugarcane with the help of sickle, there is possibility of scattering of earth from the ground.
18. Moreover, the evidence of PW5 Shivaji Tekake pertains to the panchanama of seizure of clothes of the accused and the victim and he proved the contents of panchanama of seizure of clothes of accused at Exh.21 and also proved the contents of panchanama seizure of clothes of victim at Exh.22. However, in the cross-examination, as regards the production of clothes of the victim and the accused, he stated that he cannot tell from where that boy had brought the clothes; as well as from where that girl had brought the clothes.
19. Coming to the testimony of P.W.8 Dr. Satish Pawar, who examined the victim as well as accused, who stated that he was working as Medical Officer at Shevgaon at the relevant time and at about 11.45 p.m. P.S.I. Karche gave khim two letters for examination of a boy and a girl, and the girl had history of sexual assault on 30-5-2009, and hence, he took her general examination and also took entry in MLC register. Accordingly, he stated that on general examination and on inquiry as to the complaints, the girl stated that she was suffering from giddiness. Hence, he referred that girl to Civil Hospital, Nagar. He also stated that the patient came on 2nd June 2009 at about 3.40 p.m., and papers containing findings of gynecologist were also sent to him. It was opined in it, old rupture of hymen seen. Accordingly, he prepared and issued the certificate and gave his opinion on the basis of findings of gynecologist, that there is evidence of old rupture of hymen is possible in case of sexual intercourse. On perusal of papers, he gave his opinion, that it is case of sexual intercourse and the said certificate is produced at Exhibit 28.
20. P.W.8 Dr. Satish Pawar further stated that on visit of that patient again on 2-6-2009, he again recorded history in MLC register, wherein she stated about sexual assault in noon on Saturday by one person in the field of sugarcane and the said history was noted and he identified handwriting in MLC register as his handwriting and his signature thereon. He further stated that age of that girl was 14 years.
21. P.W.8 Dr. Satish Pawar also examined accused Pinu in the same night and took his history and he was medically examined by him and found that age of Pinu was about 25 years, and he was brought by Police personnel. After obtaining consent from the accused, he noticed abrasion over his back, contusion over upper lip associated with swelling, and therefore, he opined that there is nothing to suggest that the appellant accused was not capable of performing sexual act, and the said certificate is produced at Exhibit 31.
22. During cross examination, P.W.8 Dr. Satish Pawar stated that MLC register was prepared after the case papers and on the basis of MLC register, certificate Exhibit 28 was given by him. He also stated that earlier he has not handled case of rape, and therefore, he referred the patient to Civil Hospital. He also admitted that whenever girl is more than 12 years of age, her consent is necessary, but he has not obtained consent of that girl in the present case. He also admitted that although presence of nurse is necessary while examining victim, but no such nurse was present in the present case. It is also stated by him that opinion about old rupture of hymen was given by him on the basis of report of gynecologist from Nagar. He further admitted that in case of rupture of hymen of a day or two, there is possibility of bleeding. A specific question was put to him, that whatever stated by him, about old rupture of hymen might be before so many days, and thereupon he stated that it might be of 3 to 4 days before. He also admitted that the injuries stated by accused were not mentioned by him on the case papers, and hence, suggestion was given to him, that he prepared MLC register subsequently and noted injuries in it, but the same was denied by him. As regards injuries mentioned in clause 11 of Exhibit 31, he stated that those are possible in case of assault by a person to another by by felling him down, as well as, admitted that age of injuries in clause 11 of Exhibit 31 is not mentioned in Exhibit 31.
23. Turning to the medical evidence i.e. P.W.7 Dr. Ganesh Bade, who was attached to Civil Hospital at the relevant time, has stated that on 2nd June 2009, he took the history of the patient i.e. victim Anita Khandagale of rape in the present case, and examined her private part and gave his findings on the referred chit, and there was history of rape before four days, and therefore, the said victim was referred to Rural Hospital at Shevgaon. He also stated that on local examination, he found that hymen was ruptured. The vagina was admitting finger easily. Accordingly, vaginal swab was taken for examination by Chemical Analyser. He also stated that there is possibility of rupture of hymen in case of sexual intercourse. In his opinion, in this case, rupture of hymen may be due to sexual intercourse. Accordingly, he stated that he sent the report after examination to Rural Hospital, Shevgaon, which is produced at Exhibit 26. In cross examination, he admitted that the hymen rupture in the present case might be of the period long back from the date of examination and rupture of hymen is possible due to itching and fingering, as well as, due to any disease or infection and also due to cycling and swimming and heavy working. He also admitted that in case of forcible rape and when the victim is struggling and lying on the floor, there is possibility of causing injuries on the back of the victim. He also further stated that if a person is sitting over chest and pressing the breasts forcibly, there is possibility of causing injuries over her chest, breasts, face, wrist, inner portion of thighs, as well as, lower part of abdomen, and such injuries may be in the manner of scratches, abrasions and bruises. He further stated that if the rupture of hymen is within 2 -3 days, there is possibility of having redness and tenderness to vagina. However, there was no symptom of redness and tenderness to vagina in the present case. He also stated that if no semen stains are found on vulva, it cannot be said that there is rape. A specific question was put to the said Dr. Ganesh Bade, that it cannot be said on the basis of contents in the certificate and examination, there was no possibility of rape on 30-5-2009, and in response, he replied that no exact time of sexual assault can be stated. Moreover, another specific question was put to him, that ''You have not seen clothes on the person of victim at the time of incident'', and thereupon he replied, on the day of examination, he had not noticed blood stains etc. on the clothes of victim, and therefore, he has not mentioned about it in his paper. He further stated that he has not asked the victim about M.C., vaginal discharge and intercourse and infection in the past.
24. Moreover, P.W.10 API Dnyaneshwar Karche, Investigating Officer, sent the seized articles, and blood samples of the victim and accused, to Chemical Analyser''s office for examination purpose on 9-6-2009, along with forwarding letter through Police Constable Suryawanshi, and copy of the said forwarding letter is produced at Exhibit 41. Accordingly, Chemical Analyser''s reports thereof were received which are produced at Exhibits 43, 46 and 48, and blood group of victim was found to be of ''O'' Group, whereas blood group of the accused was found to be of ''A'' Group.
25. On the background of the aforesaid material evidence adduced / produced by the prosecution, learned Counsel for the appellant canvassed that two birth certificates produced at Exhibit 17 and Exhibit 19 do not pertain to victim Anita. It is also pointed out that the change in the birth certificates was effected after filing the complaint by the complainant in the present case. According to the learned Counsel for the appellant, the birth certificate Exhibit 17 discloses the name of the father of female child as ''Tukaram Khandagale'', and name of mother of female child as ''Hirabai'', residing at Telwadi, whereas parents of victim reside at village Ghotan. It is further submitted that even there is no date of issuance on the said birth certificate. As regards birth certificate Exhibit 19, learned Counsel for the appellant submitted that the said birth certificate is of a female child and name of father of female child is shown as ''Tukaram Khandagale, and name of mother of female child is show as ''Hirabai'', resident of Telwadi, and there is endorsement on the bottom of the said certificate, that name of ''Tukaram'' be read as ''Tulshiram'' as per correction dated 31-7-2009 and order passed by the Executive Magistrate in pursuance of the affidavit filed before him. In the said context, learned Counsel for the appellant argued that the prosecution has not examined the witness who took the entry in the birth register or who recorded date of birth as 19-5-1995 of the said female child, and hence, the date of birth of the victim Anita cannot be taken as 19-5-1995 as a gospel truth. Moreover, it is pointed out by the learned Counsel for the appellant that both the said certificates disclose name of the father as ''Tukaram Khandagale'', whereas name of father of victim Anita is ''Tulshiram Khandagale'', who has been examined as P.W.6 in the present case, and the rectification carried out in Exhibit 19 in respect of said father''s name i.e. ''name of Tulshiram be read instead of name of Tukaram'' is carried out after filing complaint by P.W.2 Hirabai in the present case, and hence, it is submitted that the said correction has been carried out afterthought and suspicion is created in respect of the said birth certificate, and more particularly, in respect of name of father of the female child thereon, and further more particularly, date of birth mentioned therein.
26. In the said context, learned Counsel for the appellant placed reliance on the judicial pronouncement of Hon. Apex Court, in the case of Alamelu & another Vs. State represented by Inspector of Police, reported in 2011 ALL MR (Cri) 1278 (S.C.), wherein it is observed, ''The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.'' In the said case, Hon. Apex Court has relied upon the observations in the case of Birad Mal Singhvi Vs. Anand Purohit [1988 (Supp) SCC 604)], that ''The date date of birth mentioned in the scholars'' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined''. Hon. Apex Court has further relief upon the observations in the case of
We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.
27. As regards the alleged act of rape, learned Counsel for the appellant submitted that there is variance in the testimony of P.W.1 Anita, alleged victim and prosecutrix, and although the alleged incident occurred on Saturday i.e. 30th May 2009 at about 12 to 12.30 noon, the FIR came to be lodged after delay of two days i.e. on 1st June 2009, that too, at 21.05 hours in the night, and the prosecution has failed to give convincing explanation for the said delay which is fatal to the case of the prosecution. Moreover, when a specific question was put to P.W. 1 Anita in the cross examination about date of filing FIR, she gave different date i.e. 30/2009. It is also canvassed that there are contradictions in the testimony of P.W.1 Anita since she stated in examination in chief, that Police recorded her statement on Tuesday, whereas she stated in the cross examination, that her statement was recorded on Monday. In fact, FIR was lodged on Monday i.e. 1-6-2009 and it is submitted that the contradiction goes to the root of the matter and hampers the case of the prosecution. Learned Counsel for the appellant further submitted that the said testimony of P.W.1 Anita, alleged victim and prosecutrix, cannot be said to be reliable and trustworthy, and in the said context, he placed reliance on judicial pronouncement of the Hon. Apex Court, in the case of
It is well settled that in rape cases the conviction can be solely based on the evidence of the victim provided such evidence inspires confidence in the mind to the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material.
28. Learned Counsel for the appellant also submitted that although P.W.1 Anita stated in her deposition that there were blood stains on front side of her knicker and Salwar since she tried to push accused when he attempted to sit on her body by felling her down, but the seizure panchanama Exhibit 22 in respect of seizure of clothes of the victim is silent in respect of blood stains on knicker of the victim Anita. In the said context, it is also canvassed that although seizure panchanama Exhibit 22 does not disclose any blood stains on her Kurta and knicker, but pertinently, Chemical Analyser''s report Exhibit 43 discloses blood stains on Kurta and knicker. It is also canvassed that although the medical certificate of the accused at Exhibit 31 does not disclose any bleeding injury sustained by him, but his pant, banian and underwear which were seized under the seizure panchanama Exhibit 21, which also does not reflect any blood stains thereon, but still Chemical Analyser''s report Exhibit 43 surfaces human blood stains on the said clothes of ''A'' Group, and the Chemical Analyser''s report Exhibit 48 discloses the blood group of the accused as ''A'' i.e. blood of the accused thereon and the prosecution has not given any explanation in respect of said anomalies. It is further canvassed that the vaginal swab, pubic hair and vaginal smear of the victim were sent for examination purpose and Chemical Analyser''s report thereof, Exhibit 46, discloses that no semen was detected thereon. Moreover, nail clippings of the victim were sent to Chemical Analyser for examination, and Chemical Analyser''s report Exhibit 46 discloses that neither blood nor tissue matter was detected therein. Accordingly, learned Counsel for the appellant canvassed that the said evidence of Forensic Science Laboratory does not corroborate the prosecution theory.
29. As regards medical evidence, learned Counsel for the appellant canvassed that P.W.7 Dr. Ganesh Bade has admitted that the hymen rupture in the present case might be of the period long back from the date of examination and rupture of hymen is possible due to itching and fingering, as well as, it is possible due to any any disease or infection and also due to cycling and swimming and heavy working. He also stated that there is possibility of causing injuries over chest, breasts, face, wrist, inner portion of thighs, lower part of abdomen, if a person is sitting forcibly over chest of the victim, and such injuries may be in the manner of scratches, abrasions and bruises. He also stated that if rupture of hymen is within a period of 2 -3 days, then there is possibility of having redness and tenderness to vagina, but there is symptom of redness and tenderness to vagina in the present case. He also stated that if no semen stains are found on vulva, it cannot be said that there is rape. It is also canvassed that the certificate Exhibit 26 also discloses that no external injury to vulva.
30. As regards the testimony of P.W.8 Dr. Satish Pawar and medical certificate issued by by him, Exhibit 28, learned Counsel for the appellant canvassed that he stated that he gave opinion on the basis of findings of gynecologist that there is evidence of old rupture of hymen is possible in case of sexual intercourse, and although if the age of girl is more than 12 years, her consent was necessary, but he did not obtain any consent of victim girl, as well as, no lady nurse was present at the time of her examination, and hence, it is submitted that the said examination of victim itself, made by P.W.8 Dr. Satish Pawar is suspicious. In the context of certificate Exhibit 28, issued by P.W.8 Dr. Satish Pawar, learned Counsel for the appellant submitted that there is overwriting in column No.21 and it appears that the figure ''1-6-2009'' is made to ''2-6-2009'' in respect of alleged intercourse. Moreover, although it is stated in the said certificate in column Nos.17 to 20, that last bath was taken on 1-6-2009, P.W.1 Anita has admitted in her cross examination that she has not taken bath on Friday, Saturday, Sunday and Monday i.e. for four days, and hence, it is submitted that the said contents of the certificate Exhibit 28 are contrary to her version. Moreover, said certificate in respect of hymen discloses that it is old ruptured, no bleeding, in column No.25, as well as, in column No.29, opinion given by P.W.8 Dr. Satish Pawar is the opinion given on the basis of findings given by Gynecologist i.e. ''Evidence of old rupture of Hymen seen''. Medical certificate Exhibit 28 further discloses that the vagina admit finger easily, and column No.24 thereof discloses no visible external injury. Hence, it is submitted that there was no occurrence of violence on the body of the victim Anita and the said medical evidence suggests that no rape was committed upon her, as alleged by the prosecution.
31. As regards medical examination of the accused, P.W.8 Dr. Satish Pawar has stated that he noticed abrasion over his back, contusion over upper lip associated with swelling, and he opined that there is nothing to suggest that he was not capable of performing sexual act, and issued the medical certificate at Exhibit 31. However, it is canvassed by the learned Counsel for the appellant, that P.W.8 Dr. Satish Pawar admitted that the stated by the accused were not mentioned by him on the case papers, and injuries mentioned in column No. 11 of Exhibit 31 are possible in case of assault by a person to another by felling him down, as well as, he admitted that the injuries mentioned in clause No.11 of Exhibit 31 were not mentioned on the case papers. Moreover, age of said injuries was not mentioned in the said certificate. Hence, it is canvassed by the learned Counsel for the appellant that the alleged injuries sustained by the accused are also under suspicion.
32. In the said context, learned Counsel for the appellant has placed reliance on the following judicial pronouncements :
(a) Judgment of Hon. Apex Court, in the case of
The medical evidence on record, as we have noticed earlier, does not support the case of the prosecution since on the basis of medical evidence, it cannot be held affirmatively that the prosecutrix was subjected to sexual assault as alleged.
(b) Judgment of Hon. Apex Court, in the case of State of Karnataka Vs. Mapilla P.P. Soopi, reported in 2004 ALL MR (Cri) 568 (S.C.), wherein Hon. Apex Court has observed thus :
Coming to the evidence of PW-3 prosecutrix as noted by the High Court, we see that she has stated that immediately after the respondent entered her house, she raised an alarm but from the material produced by the prosecutrix, even though there were children and other adults near-about the house of the victim, none responded to the said alarm though witnesses examined by the prosecution show they heard the alarm and by the time they went to the place of incident, they could only see the accused walking away. This indicates that if at all PW-3 raised an alarm it was only after the respondent went away from her house. This coupled with the fact that there were no injuries on the body of PW-3 to indicate any forceful assault on her, we are in agreement with the finding of the High Court that the prosecution has failed to establish its case.
(c) Judgment of learned Single Judge of this Court, in the case of Suresh Yellaji Yerewar Vs. State of Maharashtra, reported in 2003 ALL MR (Cri) 2014, wherein this Court observed thus:
In the instant case, there was doubt regarding age of rupture of the vagina. No other injury is found on the body of victim and it would be dangerous to pass a conviction merely on the fact that the hymen of Sunita was found ruptured. Admittedly, no semen was found either on the pubic hair, underclothes or vaginal swab of victim. Finding of washed blood on the underclothes of adult girl by itself cannot be said to be a major circumstance in favour of the prosecution as the finding of such blood could be due to variety of reasons including menstruation.
(d) Judgment of learned Single Judge of this Court, in the case of Aannaso Shripal Bukade Vs. State of Maharashtra, reported in 2011 ALL MR (Cri) 2170, wherein this Court has observed thus :
The victim has stated that she had taken bath and washed her clothes. Hence recovery of her clothes becomes immaterial. Report of the C.A., Exhibit 32, does show blood and semen stains on her petticoat and the underpant of the accused. However, the blood group is inconclusive. No semen has been detected on other clothes. The C.A. report also therefore, fails to support the victim''s story.
(e) Judgment of Hon. Apex Court, in the case of
We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.
33. Learned Counsel for the appellant also argued that there are discrepancies in the prosecution evidence, such as, although appellant / accused was arrested on 2nd June 2009, as per the arrest panchanama Exhibit 36, dated 2nd June 2009, but the date of intimation of arrest given to relatives in the arrest panchanama Exhibit 36 was modified from ''2nd June'' to ''1st June''. Moreover, although P.W.1 Anita made first disclosure about the alleged incident to Gayabai, her aunt, the said vital witness Gayabai has not been examined by the prosecution. Accordingly, it is submitted by the learned Counsel for the appellant, that no injuries were found on body of the victim to show that she was ravished by the accused, and even the said victim was examined by the Doctor on 2nd June 2009, i.e. after lapse of four days of the alleged incident.
34. In the circumstances, learned Counsel for the appellant submitted that there are deformities and infirmities in the prosecution case, and hence, prosecution has failed to prove and establish the charges levelled against the accused beyond reasonable doubt, and therefore, urged that present appeal deserves to be allowed, setting aside the impugned judgment and order of conviction and sentence, and further urged that the appellant be acquitted.
35. Learned Additional Public Prosecutor appearing for the respondent / State countered the said arguments and opposed the present appeal vehemently, and submitted that to substantiate the charges levelled against the appellant, the prosecution has examined as many as ten witnesses. As regards the alleged delay in lodging the FIR, learned APP pointed out that P.W.1 Anita, the prosecutrix, was threatened by the accused to kill by axe, and therefore, she disclosed the said incident at later stage which resulted in delay in lodging the FIR and the said explanation for delay is plausible and convincing. As regards the variance in the testimonies of prosecution witnesses, it is canvassed by the learned APP, that the witnesses belong to village, and therefore, there is some variance, but the said variance does not go to the root of the matter and does not hamper the case of the prosecution, and more particularly, does not vitiate the occurrence of very incident of rape committed by the accused upon the victim.
36. As regards two birth certificates produced at Exhibits 17 and 19, learned APP submitted that both the said certificates were issued by the Block Development Officer (Higher Grade), Panchayat Samiti, Shevgaon, and the said birth certificates disclose that they pertain to birth of female child who took birth on 19-5-1995 and her mother''s name is Hirabai, and the said details match with the birth of the victim Anita. Moreover, it is pointed out that the date of birth in both certificates is same i.e. 19-5-1995. As regards the name of father of the victim Anita, Exhibit 17 discloses name of father as ''Tukaram Khandagale'', and P.W.6 Tulshiram, who is father of victim Anita, was not aware that his name was entered into the register of birth incorrectly, and he came to know the same later on, and therefore, he applied for correction along with the affidavit and relevant documents, and the Executive Magistrate passed the order to that effect, and directed that name of ''Tukaram'' be read as ''Tulshiram'', which has been reflected in birth certificate Exhibit 19. Hence, it is canvassed by the learned APP, that the very birth certificate Exhibit 19 discloses the correct name of father of the victim as ''Tulshiram'' which is to be read instead of ''Tukaram'', and her mother''s name is correctly mentioned as ''Hirabai'' in both birth certificates, as well as, date of birth is correctly mentioned in both birth certificates i.e. 19-5-1995, and the date of alleged incident is 30-5-2009, and therefore, it is amply clear that the victim Anita was below 15 years of age on the date of occurrence of the incident. It is submitted that the birth certificate Exhibit 19 has been issued by the Block Development Officer (Higher Grade), Panchayat Samiti, Shevgaon, which is conclusive proof of the date of birth of the victim, and hence, same is required to be accepted and believed in respect of date of birth of the victim Anita, and it is submitted that the argument canvassed by the learned Counsel for the appellant, in that respect, bears no substance.
37. Moreover, learned APP canvassed that the very testimony of P.W.1 Anita, the victim and prosecutrix, is eloquent and self-sufficient to connect the appellant with the crime since she has narrated occurrence of the incident and details thereof elaborately, and the testimonies of P.W.2 Hirabai, mother of the victim, and P.W.6 Tulshiram, father of the victim, corroborate with her testimony and the said testimonies cumulatively connects the accused with the crime.
38. As regards the medical evidence, learned APP submitted that the testimony of P.W.7 Dr. Ganesh Bade, who examined the victim, is self-explicit, who examined the victim and found that hymen of the victim was ruptured and vagina was admitting one finger easily, and accordingly, he opined that the rupture of hymen may be due to sexual intercourse. It is also submitted by the learned APP, that the injury certificate Exhibit 26 issued by P.W.7 Dr. Ganesh Bade also discloses the rupture of hymen and vagina admits finger easily, and the said evidence is incriminating against the accused. It is further canvassed by the learned APP, that P.W.8 Dr. Satish Pawar, who also examined the victim, stated that he gave his opinion on the basis of findings of Gynecologist, that there is evidence of old rupture of hymen which is possible in case of sexual intercourse. He also gave opinion, that it is case of sexual intercourse, and issued certificate Exhibit 28. Learned APP further canvassed that a bare perusal of certificate Exhibit 28 also discloses old rupture of hymen and vagina admits finger easily, and the said medical evidence connects the accused with the crime.
39. As regards examination of the accused by P.W.8 Dr. Satish Pawar, it is submitted by the learned APP, that P.W.8 Dr. Satish Pawar examined the accused and noticed abrasion over his back, contusion over upper lip associated with swelling on his body, and opined that there is nothing to suggest that said accused is not capable of performing sexual act, and issued certificate which is produced at Exhibit 31. The said certificate Exhibit 31 discloses the injuries sustained by the accused and aforesaid opinion given by the Doctor. Accordingly, learned APP submitted that the said medical evidence, pertaining to victim as well as accused, cumulatively establishes the nexus between accused and the crime.
40. As regards the evidence of Forensic Science Laboratory, it is canvassed by the learned APP, that the clothes of victim i.e. Salwar, Kurta and knicker bore human blood of inconclusive group, as well as, clothes of the accused i.e. pant, banian and underwear also bore human blood of ''A'' group which pertains to the accused, and the accused has not given any explanation in respect of the said blood stains on the clothes of the victim, as well as, his clothes, although it has not come in evidence, that he sustained any bleeding injury, and hence, it is submitted that the said Chemical Analyser''s report Exhibit 43 connects the accused with the crime.
41. As regards judicial pronouncements cited by the learned Counsel for the appellant, learned APP submitted that considering the said judicial pronouncements, same are not applicable in the present case since the ocular evidence of victim P.W.1 Anita connects the appellant with the crime and the testimonies of other witnesses i.e. P.W.2 Hirabai, her mother, and P.W.6 Tulshiram, her father, as well as, medical evidence of P.W. 7 Dr. Ganesh Bade and P.W.8 Dr. Satish Pawar supports the case of the prosecution and the evidence of Forensic Science Laboratory, as discussed herein above, strengthens the case of the prosecution.
42. In the circumstances, learned APP submitted that the oral, documentary and medical evidence adduced / produced by the prosecution is in consonance with each other which connects the accused with the crime. Moreover, accused has failed to give any explanation, why P.W.1 Anita, a tender age girl, would involve accused in the crime falsely. It is further submitted by the learned APP that the accused has committed heinous crime and shattered privacy, integrity and personality of the victim girl and caused psychological as well as physical harm to her and degraded her very soul, and therefore, present appeal bears no substance. Accordingly learned APP supported the impugned judgment and canvassed that there is no glaring mistake therein, and hence, no interference therein is called for in the present appeal, and therefore, urged that it be dismissed.
43. I have perused the impugned judgment and order dated 23-2-2010, and oral, documentary and medical evidence, as well as, evidence of Forensic Science Laboratory, and heard the submissions advanced by the learned Counsel for the parties, as well as, perused the observations made in the judicial pronouncements cited by the learned Counsel for the parties, carefully, and it is a matter of record, that the prosecution has examined as many as ten witnesses to substantiate the charges levelled against the accused, and the very testimony of the prosecutrix i.e. victim P.W.1 Anita carries weightage and importance, wherein she has categorically stated that the incident occurred on Saturday i.e. 30th May 2009 at about 12.00 noon and she knew the accused; he was driver on the tractor which used to carry the women including the prosecutrix, to the sugarcane field of Madhavrao, and on the date of incident, he carried them to the said field and when the victim was asked by other women to bring water, she went to the pipeline near the grown up sugarcane where accused came and grabbed her in the sugarcane crop and threatened her to kill with the help of axe, if anything was stated to other women and he fell her down and pressed her breast and removed knot of Salwar, and also removed knicker to the extent of her knees, and also removed his pant and knicker to the extent of his knees, and inserted his penis into her vagina, and moved himself in upward and downward directions for 4 -5 times, and there was blood and swelling in her private part and blood was oozing, as well as, there were blood stains on her knicker and Salwar, and she was frightened and sweating, as well as, accused threatened her to kill if anything was stated to women, and went away. Thereafter, she went to women in the field and the pitcher containing water carried by her fell down, and thereafter she returned to her home from the field at about 6.00 p.m., and the said testimony of the victim Anita is eloquent wherein she has narrated the details of committal of rape upon her by the accused, elaborately with small details thereof. Moreover, her testimony has not been demolished in the cross examination, more particularly, in respect of the act of committal of rape upon her by the accused.
44. True it is, that there are minor discrepancies, such as, she stated in the examination in chief, that Police recorded her statement on Tuesday i.e. on 2nd June 2009, but in the cross examination, she stated that her statement was recorded on Monday i.e. 1st June 2009, and in fact, FIR was recorded on 1st June 2009, but the said minor discrepancies do not go to the root of the matter since the fact remains that the very FIR was recorded on 1st June 2009. Moreover, a specific question was put to her in the cross examination, that ''Could she tell the date of FIR ?'', and in response, she replied that ''30/2009''. In fact, ''30/2009'' is the date of incident and not the date of FIR, but that much latitude is required to be given to the prosecutrix considering her age and village background, and more particularly, she has stated in para 2 of the cross examination that she is illiterate. As regards another specific question put to her in the cross examination, that ''Have you raised shouts while Pinu was holding and snatching you ?'', and in response, she replied that she was threatened by the accused to kill her, and the said very answer given by her to the specific question speaks for itself.
45. Besides, it is pertinent to note that there are no omissions and/or contradictions in the testimony of prosecutrix P.W.1 Anita, and therefore, same does not suffer from any omissions / contradictions. Moreover, she has also identified the accused in the court, and also identified her clothes at the time of incident i.e. Articles 4, 5 and 6. It is also significant to note that no suggestions have been given to said prosecutrix P.W.1 Anita in her cross examination, that why she should involve the accused in the present case falsely and even no acceptable specific defence has been raised by the accused in his statement u/s 313 of the Code of Criminal Procedure, as well as, no convincing explanation has been given by the accused therein, why prosecutrix P.W.1 Anita would involve him in the present case falsely. True it is, that suggestion has been given to prosecutrix P.W.1 Anita in para 5 of the cross examination, that accused stated Mainabai on Monday while coming to the field, that prosecutrix was not doing the work, but the same was denied by her, but there is no further suggestion that due to that alleged disclosure, the prosecutrix impleaded / involved the accused in the present case falsely, as well as, a suggestion was given to the prosecutrix that Mainabai asked prosecutrix to get down from the tractor on Monday, and therefore, mother of the prosecutrix stated to prosecutrix that they would see to them, let them refuse to go forward, and the said suggestion was also obviously denied by her, and again there is no further suggestion that due to that, prosecutrix involved / implicated the accused in the present case falsely. Further it is material to note that the said alleged defence of the accused although suggested to P.W.2 Hirabai in her cross examination, which was obviously denied by her, does not appear to be probable and logical, considering the facts and circumstances of the case.
46. In the said context, reliance can be very well placed on the judicial pronouncement of the Hon. Apex Court in the case of
The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman''s rights in all spheres, 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. 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 an 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 of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
Consequently, implicit reliance is required to be kept on the testimony of prosecutrix P.W.1 Anita, and hence, there is no substance in the submissions canvassed by the learned Counsel for the appellant, in that respect.
47. As regards the alleged delay in lodging the FIR, admittedly although the incident of rape took place on 30th May 2009, FIR came to be lodged on 1st June 2009, and in the said context, sight cannot be lost of the very aspect which has been stated by prosecutrix P.W.1 Anita in her testimony, that she was threatened by the accused to kill her by axe, and therefore, she could not disclose occurrence of the incident even before her mother on the very same day i.e. 30th May 2009, and she has further stated categorically in her deposition that she did not disclose to her mother due to threats given by the accused, and even she went to the bed on the date of incident without food and next day being Sunday i.e. holiday, she was suffering on that day, and thereafter she narrated the incident to her mother on the next day i.e. 1st June 2009, and expressed her sufferings before her mother, and stated to her that the accused committed rape upon her and thereafter her mother approached the Sarpanch Takalkar and they proceeded to Shevgaon Police Station and lodged the report, and accordingly, FIR came to be lodged on 1st June 2009. Thus, it is apparently clear that the prosecutrix P.W.1 Anita has given explanation for the said delay and explanation put forth by the prosecution for the said delay appears to be plausible and convincing and same cannot be viewed with suspicion, and consequently, such delay cannot be construed as fatal to the case of the prosecution.
48. Moreover, the deposition of P.W.2 Hirabai i.e. mother of the victim Anita, whom she disclosed the occurrence of the incident for the first time, also is in tune with the testimony of prosecutrix P.W.1 Anita. True it is, that the prosecution has not examined Gayabai i.e. aunt of P.W.2 Hirabai, as canvassed by the learned Counsel for the appellant, but non-examination of the said witness cannot be termed as fatal to the case of the prosecution since Gayabai is not the person before whom the prosecutrix disclosed the incident for the first time, but what has come in evidence is that Gayabai stated to P.W.2 Hirabai about murmur among the women about the atrocity on her daughter by the accused and thereafter P.W.2 Hirabai came to home and made enquiry with victim Anita, and not beyond that, and hence, non-examination of the said witness cannot be construed as lacuna in the prosecution case since victim Anita disclosed occurrence of the incident before her mother only i.e. P.W.2 Hirabai. Moreover, it is also apparent that the testimony of P.W.2 Hirabai i.e. mother of the victim Anita has not been shaken in the cross examination and same does not suffer from any omissions / contradictions, and the said testimony discloses the revelation in the enquiry made by P.W.2 Hirabai to victim P.W.1 Anita, which is in consonance with very testimony of P.W.1 Anita in respect of very act of committal of rape by the accused upon her. Moreover, it cannot be ignored that both the said witnesses i.e. P.W.1 Anita and P.W.2 Hirabai are the witness who belong to village area, and therefore, minor discrepancies in their testimonies, if any, are required to be viewed with the said angle, and apparently, there are no infirmities or deformities therein which go to the root of the matter and diminish the credibility of the depositions of the said witnesses, and even some variance, as canvassed by the learned Counsel for the appellant, in the said testimonies ,does not hamper case of the prosecution, and more particularly, does not vitiate occurrence of very incident of rape committed by the accused upon the victim.
49. Coming to the two birth certificates produced by the prosecution at Exhibits 17 and 19, it is a matter of record that both the said certificates have been issued by the Block Development Officer (Higher Grade), Panchayat Samiti, Shevgaon, and disclose that they pertain to birth of female child on 19-5-1995 and her mother''s name is Hirabai and the said details are in tune with the birth of the victim Anita. Moreover, the date of birth in both the said certificates is the same i.e. 19-5-1995. As regards the name of father of the said female child, birth certificate Exhibit 17 discloses name of the father as ''Tukaram Khandagale'', and birth certificate Exhibit 19 discloses name of the father of the female child as ''Tukaram'', but there is specific endorsement at the bottom of the said certificate that name of ''Tukaram'' be read as ''Tulshiram'' in pursuance of the order passed by the Executive Magistrate, Shevgaon, as per the affidavit filed by him, and the said correction was carried out on 31st July 2009. Pertinently, the said aspect has been substantiated by P.W.6 Tulshiram, who has stated in his deposition that Police personnel informed him that his name was changed as ''Tukaram'', and therefore, he moved an application to Panchayat Samiti along with affidavit, coupon card and election card, as well as, filed certificate of his residence at Ghotan, and said application was pertaining to change of his name from ''Tukaram'' to ''Tulshiram'', and accordingly, the said correction was carried out. Thus, considering the date of birth of female child in both the said certificates as 19-5-1995, as date of birth of the victim Anita, and also considering the date of incident i.e. 30-5-2009, it is amply clear that the victim Anita was below 15 years of age on the date of occurrence of the incident.
50. In the said context, argument was canvassed by the learned Counsel for the appellant, that the person who registered the date of birth in the birth register / person who gave name of the said female child while entering into birth register has not been examined by the prosecution, and therefore, the said date of birth appearing on both the certificates i.e. 19-5-1995 cannot be construed as correct date of birth of female child. However, P.W. 4 has categorically stated in his deposition that the birth extracts produced by him on record i.e. Exhibits 17 and 19 were issued on the basis of the birth register and contents of the said extracts are correct as per original register and it bears signature of B.D.O. Mr. Pawade, and identified his signature, and he also stated that he has brought the application filed by P.W.6 Tulshiram on 29-7-2009 for correction of his name in the birth register, as well as, he had brought original affidavit and ready to produce the same in the court, and further stated that accordingly B.D.O. passed order as to correction of name in the said register, that the name of ''Tukaram'' be read as ''Tulshiram'', and the said correction was made in the concerned register in the office, and accordingly, prepared the birth extract which is produced at Exhibit 19, and note is taken therein to that effect and the contents of the said extract Exhibit 19 are correct as per contents in the original register, and therefore, both the said birth certificates i.e. Exhibit 17 and 19 have been substantiated by P.W.4 Vijay Nalawade and P.W.6 Tulshiram Khandagale, as well as, in the said context, learned APP canvassed that the birth certificate Exhibit 19 has been issued by Block Development Officer (Higher Grade), Panchayat Samiti, Shevgaon, which is conclusive proof of the date of birth of the victim Anita.
51. As regards the argument canvassed by the learned Counsel for the appellant, on the basis of testimony of P.W.2 Hirabai, that considering her version that she married about 25 years back and considering the births of Sunita and Kavita and periods intervening therein, the age of victim Anita can be construed as 19 years at the time of incident, apparently, P.W.2 Hirabai has given the time of her marriage and time of births of Sunita and Kavita and the intervening periods therein by approximation and conspicuous incident/s attached to her marriage and births of Sunita and Kavita thereafter, have not been mentioned / referred by her anywhere to substantiate the birth of her elder two daughters and consequently third daughter i.e. Anita -victim, and therefore, such vague and approximate calculation cannot be the basis for deriving age of victim Anita, and hence, said argument canvassed by the learned Counsel for the appellant cannot be accepted.
52. Having comprehensive view of the matter, regarding age of the victim i.e. testimonies of P.W.4 Vijay Nalawade and P.W.6 Tulshiram Khandagale, and both the birth certificates i.e. Exhibits 17 and 19, and the submissions advanced by the learned Counsel for the parties in that respect, and further particularly age of the victim given in medical certificate Exhibit 28, and consent given by her mother P.W.2 Hirabai, to examine the victim Anita by male Doctor, since she was minor, it appears that there is substance in the submissions canvassed by the learned APP in that respect.
53. Turning to the medical evidence, it is apparent that the testimony of P.W.8 Dr. Satish Pawar, who was attached as Medical Officer at Shevgaon Rural Hospital, and who examined the victim at 11.45 p.m. on 1-6-2009, categorically stated that the girl gave history of sexual assault on 30-5-2009 and he examined the said victim and took entry in MLC register, and on inquiry about complaints, the girl stated that she was suffering from giddiness, and therefore, he referred that girl to Civil Hospital, Nagar, and moreover, the said patient came on 2-6-2009 at 3.40 p.m., and the papers containing findings of Gynecologist were also sent to him, and it was opined in it that ''Old rupture of hymen'', and accordingly, he prepared and issued the certificate. He also gave opinion on the basis of finding of Gynecologist, that there was evidence of old rupture of hymen which is possible in case of sexual intercourse. Moreover, he categorically gave his opinion that it is a case of sexual intercourse and issued the certificate at Exhibit 28. A bare perusal of the said certificate Exhibit 28 discloses a case of old rupture of hymen and vagina admits finger easily. He also produced the photostat copy of the original register at Exhibit 30 and further stated that the age of the victim girl was 14 years.
54. Moreover, P.W.7 Dr. Ganesh Bade, who was Medical Officer attached to Civil Hospital, Nagar, also examined the victim Anita on 2nd June 2009 and he stated that he took history of the patient and examined private part of the victim, and gave his finding on referred chit and there was history of rape before four days, and the victim was referred by Rural Hospital, Shevgaon, and on local examination, he found that hymen was ruptured and vagina was admitting one finger easily, and there was possibility of rupture in hymen in case of sexual intercourse. He also gave his opinion that rupture of hymen may be due to sexual intercourse, and accordingly, he sent report to Rural Hospital, Shevgaon, after examination and gave name of the victim as Anita i.e. P.W.1, and the original papers were filed with list Exhibit 25, and since handwriting over it is admitted, it is exhibited as Exhibit 26. True it is, that he stated in the cross examination that there were no symptom of redness and tenderness to vagina in the present case and no semen stains were found on vulva and it cannot be said that there is rape.
55. However, having the survey of totality of the medical evidence i.e. testimony of P.W.8 Dr. Satish Pawar and the certificate issued by him Exhibit 28, and testimony of P.W.7 Dr. Ganesh Bade, and the certificate issued by him Exhibit 26, and further the examination of the accused conducted by P.W.8 Dr. Satish Pawar, which discloses that he noticed abrasion over his back, contusion over upper lip associated with swelling, and there was nothing to suggest that the accused was not capable of performing sexual act, and certificate Exhibit 31 issued by him, in respect of the accused, it appears that there is substance in the submissions advanced by the learned APP, and the said medical evidence and the very testimony of the victim P.W.1 Anita cumulatively establish the nexus between the accused and the crime.
56. The said nexus of ocular evidence and medical evidence is further strengthened by the evidence of Forensic Science Laboratory since clothes of the victim i.e. Kurta, Salwar and knicker bore human blood of inconclusive group, as well as, clothes of the accused bore human blood of ''A'' group which pertains to the accused, and a specific question was put to him, in that respect i.e. Question No. 33 in his statement recorded u/s 313 of the Code of Criminal Procedure, but the accused has failed to give any explanation in respect of the said blood stains on the clothes of the victim, as well as, his clothes, although it has not come in evidence that he sustained any bleeding injury, and therefore, Chemical Analyser''s report Exhibit 43 connects the accused with the crime.
57. Having survey of the evidence, it is amply clear that the ocular evidence, documentary evidence, medical evidence and evidence of Forensic Science Laboratory, and more particularly, testimony of P.W.1 Anita, which is eloquent and self-explicit, connects the accused / appellant with the crime, and since reliance can be implicitly placed upon the judicial pronouncement of the Hon. Apex Court, in the case of State of Punjab Vs. Gurmit Singh and others (supra), the judicial pronouncements cited by the learned Counsel for the appellant cannot be of any aid and assistance to the case of the appellant. Simultaneously, it cannot be overlooked that the accused has committed heinous crime against a tender aged minor girl and not only caused physical harm, but also shattered the privacy, integrity and personality of the victim girl, and caused psychological harm to her, and degraded her very soul.
58. In the circumstances, having comprehensive view of the matter, and more particularly, after scrutinizing and re-appreciating the evidence on record, there does not appear to be glaring mistake in the impugned judgment and order of conviction, and therefore, I am not inclined to accept the submissions advanced by the learned Counsel for the appellant, and hence, consequently, no interference is called for in the impugned judgment and order in the appellate jurisdiction, and hence, present appeal fails.
59. In the result, present Appeal stands dismissed, and the conviction and sentence imposed upon the appellant / accused, by the impugned judgment and order dated 23-2-2010, stands confirmed, and present Appeal is disposed of accordingly.
