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2007 DIGILAW 950 (BOM)

Ramlal Dhyansing Jabre v. State of Maharashtra

2007-07-13

C.L.PANGARKAR

body2007
ORAL JUDGMENT: This is an appeal by the accused who was convicted under Section 376 of the Indian Penal Code and was sentenced to 10 years R. I. and to pay fine of Rs.500/-. 2. The facts giving rise to this appeal are as follows: One Zingubai resides with her daughter and husband at village Rangai district Barhanpur. Her husband had taken on lease 5 acres of land at village Tembhurkheda. One Ramlal also had taken another field on lease and he was residing by the side of the house of the complainant Zingubai. Prosecutrix Barkibai was being sent to the field every day in order to keep watch over the crops in the field. On the date of the incident i.e. on 18.08.05 Barkibai was sent to the field and her mother assured that she would follow her. They went to the field around 11 a.m. They did not find Barkibai in the field. They took search around and again came to the field. Around 12 in the noon Barkibai came weeping. Her mother Zingubai questioned her as to what had happened. She told her that accused Ramlal met her and asked to follow him in the hilly track for collection of the fire wood. After taking her there it is alleged that Ramlal raped her. Complainant mother took Barkibai to the police station and lodged the report with the police. Police had sent Barkibai for examination. It was reported 3 that Barkibai had suffered injury on her private part and her hymen was torn. Police also seized clothes of Barkibai and that of the accused. After completion of the investigation the charge sheet came to be filed. 3. Judicial Magistrate First Class committed the case to the Sessions. Sessions Judge framed the charge and after recording the evidence of the witnesses held the accused guilty of offence under Section 376 and sentenced him to 10 years imprisonment. It is against this order of conviction and sentence that this appeal is preferred. 4. I have heard the learned counsel for the appellant/accused and the State. 5. The first thing that is required to be determined is the age of the prosecutrix. It was contended on behalf of the accused that the age of the prosecutrix is 18 to 20 years. The prosecution alleges that the age of the prosecutrix is 11 years. 4. I have heard the learned counsel for the appellant/accused and the State. 5. The first thing that is required to be determined is the age of the prosecutrix. It was contended on behalf of the accused that the age of the prosecutrix is 18 to 20 years. The prosecution alleges that the age of the prosecutrix is 11 years. The report in this incident was lodged by the mother of thane prosecutrix vide Ex.20. The mother of the prosecutrix i.e. Zingubai had told her own age as 30 years and that of the prosecutrix 11 years. Even Barkibai has stated her age on oath 4 as 11 years and Zingubai has stated her age on oath to be 31 years. Barkibai has stated that she is studied upto 5th standard. P. W. 4 Zingubai states in the cross examination that Barkibai is studied upto 4th standard. Not only this but even P. W. 5 Asaram the neighbour has also stated that last year Barkibai was in 4th standard. It is a matter of common knowledge that the child is admitted in the school at the age of 6 years. If she was admitted in 1st standard at the age of 6 years she ought to be 11 years old. This matches with what both prosecution witness prosecutrix and the mother tell. Even otherwise Medical Officer Dr. Poonam observed that the sexual characters of the prosecutrix were not developed. The fact that the sexual characters were not developed clearly corroborates the statement of the mother as well as prosecutrix. Much ado was made of one statement of Barkibai where she states that she is 18 to 20 years old. The witness is rustic and tribal. Her stray statement does not go to show that she is 18 years old. The above evidence overwhelmingly shows that she is only 11 to 12 years old. There is, therefore, no question of consent or otherwise. Even otherwise that is not the defence of the accused. 6. It is stated by P. W. 3 Barkibai that the accused took her to the hilly area, made her to sit and then inserted private part into hers. She also states that accused then washed her private part forcibly. Her mother P. W. 4 says that she saw her daughter coming from the field weeping and she too noticed bleeding from the private part. She also states that accused then washed her private part forcibly. Her mother P. W. 4 says that she saw her daughter coming from the field weeping and she too noticed bleeding from the private part. Now the veracity of these two witnesses is sought to be challenged on the ground that there was some dispute between the father of the prosecutrix and the accused over grain lent to the accused. Barkibai no doubt admits that there was some dispute over the grain but then it is difficult to accept that they would falsely implicate the accused on account of such small dispute in such a crime. Further it has to be borne in mind that the medical evidence corroborates the version of the prosecutrix completely. P. W. 2 Dr. Poonam found the hymen to be torn. She also found lacerated wound on vulva and it was inflamed. These findings are recorded in the Certificate Ex. 17 and that fully corroborates the version of the prosecutrix. It is, therefore, not that the prosecutrix did not suffer any injury due to the act. The fact that she did suffer an injury clearly suggest that what she is telling 6 before the Court is true. It should also be borne in mind that Zingubai immediately took the prosecutrix to the police station and immediately lodged the report. The conduct of the mother in lodging the report immediately also rules out the possibility of any false implication. The contents of the F.I.R. also corroborates her version. The clothes of the prosecutrix were seized vide panchanama Ex. 26. it shows that they had multiple blood stains on it and this fact also corroborates the version of the prosecutrix. In the circumstances I do not find that the learned Sessions Judge committed any error in convicting the accused. No other point was urged. Appeal is dismissed.