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2008 DIGILAW 1765 (BOM)

Duryodhan Chaitu Meshram v. State of Maharashtra

2008-12-17

R.C.CHAVAN

body2008
ORAL JUDGMENT : 1. The appellant takes exception to his conviction for the offence punishable under Section 376 of the Penal Code and sentence of rigorous imprisonment for ten years and fine of Rs.two thousand or in default rigorous imprisonment for three months, imposed upon him, by learned Adhoc Additional Sessions Judge, Bhandara in Sessions Trial No.17/2006, before him. 2. Facts which led to prosecution and conviction of the appellant are extremely distressing : The appellant is father of prosecutrix, who was at the relevant time a school going child, aged about fifteen years. The appellant is alleged to have perpetrated rape upon the prosecutrix for a period spread over July to October, 2005. Pregnancy of the prosecutrix had become visible. The prosecutrix and her mother allegedly reported the matter to Police Patil, who took them to the Police Station where a report was lodged. The prosecutrix was subjected to medical examination and lateron, by her and her mother's consent, the pregnancy was terminated. Foetus was preserved for DNA finger printing. Sample of blood of the prosecutrix was also drawn for this purpose. The appellant had been arrested and sample of blood of the appellant was also drawn for the purpose of DNA finger printing. These samples were sent to Forensic Science Laboratory, which returned the finding that the appellant and the prosecutrix were, respectively, biological father and mother of the foetus. The police had also performed panchnama of the spot, recorded statements of witnesses and taken other necessary steps in course of the investigation. Upon completion of investigation chargesheet was sent to the Court of Judicial Magistrate First Class, Sakoli, who committed the case to the Court of Session, Bhandara. The learned Additional Sessions Judge, to whom the case was made over, chargesheeted the appellant for the offence punishable under Sections 376 and 506 of the Penal Code, to which the appellant pleaded not guilty and claimed to be tried. In its attempt to bring home the guilt of the appellant, the prosecution examined as many as fourteen witnesses. Upon consideration of the evidence of these witnesses in light of defence of denial raised by the appellant, the learned Additional Sessions Judge held the appellant guilty of offence punishable under Section 376 of the Penal Code and sentenced him as indicated above. He acquitted the appellant of the offence punishable under Section 506 of the Penal Code. Upon consideration of the evidence of these witnesses in light of defence of denial raised by the appellant, the learned Additional Sessions Judge held the appellant guilty of offence punishable under Section 376 of the Penal Code and sentenced him as indicated above. He acquitted the appellant of the offence punishable under Section 506 of the Penal Code. Aggrieved by his conviction and sentence the appellant is before this Court. 3. I have heard Advocate Shri Bhide, learned counsel for the appellant and Shri Mirza, learned A.P.P. for the State. With the help of both the learned counsel, I have gone through the entire evidence on record. 4. P.W. 1 Geeta was panch of seizure of victim's nicker vide Exh.13. She stuck to her version that the nicker was taken out from the person of the victim in her presence. P.W. 2 Manohar, Police Patil, stated that on 18.10.2005 the mother of the prosecutrix came to him and reported that her daughter was pregnant because of illicit relations between the appellant and her daughter. He took the appellant's wife and her daughter to the Police Station where the prosecutrix lodged a report. Cross-examination of this witness does not indicate anything as to why he should be falsely implicating the appellant. P.W. 3 Patiram stated that in his presence panchnama of the spot was drawn up vide Exh.16. This panchnama is insignificant since the incident comprises of repeated sexual assaults spread over a period of time in the residential house of the parties. 5. P.W. 4 Manda, mother of the prosecutrix, turned hostile. She stated that the age of the prosecutrix was twenty one years at the time of incident. She stated that there used to be quarrels between her and the appellant and therefore, she had gone to the Police Station and told the police about the quarrel. She claimed ignorance as to why police came to her house or arrested the appellant or whether the prosecutrix was taken to hospital by police. She stated that nothing had happened to the prosecutrix. She was declared hostile and cross-examined at length by the learned A.P.P. However, she did not budge from her version that nothing had happened to her daughter. She stated that nothing had happened to the prosecutrix. She was declared hostile and cross-examined at length by the learned A.P.P. However, she did not budge from her version that nothing had happened to her daughter. Long after she was cross examined and her evidence was over she was recalled at a instance of the Court, in order to ascertain name of the prosecutrix and she admitted that the prosecutrix was also named by another name. The prosecutrix herself was examined as P.W. 7 and she too turned hostile denying that her father-appellant had ravished her. She stated that she had gone with her mother to the Police Station because there was a quarrel between her parents. She stated that her signatures were obtained by the police on fifteen blank papers, adding that her signature was taken on one blank paper and fourteen papers on which something was scribed. She too turned hostile and was cross-examined extensively by the learned A.P.P., but refused to go along with prosecution case. She, however, admitted that she had given her photograph when police demanded it and that one form from the Forensic Science Laboratory had her photograph on it. She also admitted that her mother had signed on one of the forms in her presence. She denied that sample of her blood was taken or that she was pregnant. She admitted that she wanted that her father should be acquitted, but denied that for this reason she was deposing falsely. 6. P.W. 9 L.P.C. Prabha had taken the victim for medical examination. P.W. 10 Dr. Nisha Bhavsar had examined the prosecutrix and found her to be carrying twelve weeks' old pregnancy. She issued Medico Legal Certificate and she proved it at Exh.27. She collected samples of pubic hair and blood in separate bottles and sealed them. It was suggested to this witness that she had not examined the prosecutrix but some other girl. She denied this suggestion. P.W. 11 Dr. Charushila Doifode was Professor of Gynecology in Government Medical College, Nagpur. She stated that she had received a letter from Civil Surgeon of Bhandara for collection of foetus after abortion of the prosecutrix. It was suggested to this witness that she had not examined the prosecutrix but some other girl. She denied this suggestion. P.W. 11 Dr. Charushila Doifode was Professor of Gynecology in Government Medical College, Nagpur. She stated that she had received a letter from Civil Surgeon of Bhandara for collection of foetus after abortion of the prosecutrix. She stated that she went through the literature about DNA finger printing, obtained consent of the prosecutrix and her mother regarding terminating pregnancy, administered necessary drugs and after abortion was complete preserved foetus and sample of blood in two separate bottles, which she kept in special container with ice and handed over the container to the police. She had obtained photograph of the prosecutrix and pasted the same on the form of DNA finger printing. She stated that she attested the photograph of the prosecutrix and had also obtained signature of P.W. 4 Manda on the form. She then handed over original form to the police for being presented to DNA Laboratory. She proved copy thereof at Exh.36. In her cross-examination she admitted that it was her first occasion for collecting material for DNA testing. She stated that she had brought case papers to show the procedure she had conducted. She denied the suggestion that the prosecutrix had not at all come to her and that she had not at all taken foetus of the prosecutrix for DNA finger printing. 7. P.W. 14 Dr. Kate stated having taken blood sample of the appellant, after requisition was received for the purpose of DNA finger printing and had handed over the sample to the police. P.W. 8 HC Motiram had carried out samples, P.W. 13 HC Vinod had carried the appellant to Civil Hospital, Bhandara for taking sample of blood of the appellant in two bottles which had been received from DNA Laboratory, Mumbai for collection of samples. He stated that he had given bottles to the Medical Officer, who collected the blood sample of the accused, sealed those bottles, kept those bottles in a plastic box, sealed the box and then the plastic box was kept in thermos flask, filled with ice. He then handed over the sample to Police Constable Sarve i.e. P.W. 8 for carrying them to the Laboratory. P.W. 12 P.S.I. Newalkar conducted investigation. 8. He then handed over the sample to Police Constable Sarve i.e. P.W. 8 for carrying them to the Laboratory. P.W. 12 P.S.I. Newalkar conducted investigation. 8. The learned counsel for the appellant submitted that in face of denial of the prosecutrix and her mother that no such incident took place, the learned Additional Sessions Judge should have acquitted the appellant. He submitted that the victim was of consenting age. On her own statement. No ossification test has been done. Birth certificate showing date of birth as 17.02.1990 could have been incorrect and therefore, the prosecutrix would have to be taken to be of consenting age even if it is presumed for a while that there was sexual intercourse between the prosecutrix and the appellant. Therefore, according to him, there was no case for conviction of the appellant. 9. The learned Additional Public Prosecutor, on the other hand, submitted that hostility of the prosecutrix or her mother cannot erase the fact that the prosecutrix was found to be pregnant by people who had absolutely nothing to do with the life of the prosecutrix or appellant. He submitted that P.W. 11 Dr. Charusheela was Professor of Gynecology in Government Medical College, Nagpur, holding senior position. She could have had no interest in implicating the appellant in a false prosecution. She stated that she had carried out termination of the pregnancy of the prosecutrix and collected sample of foetus. There is absolutely no reason to disbelieve her word. This would falsify the version of the prosecutrix that there was absolutely nothing which had happened to her and that her father was falsely implicated. 10. The learned Additional Public Prosecutor submitted that even P.W. 10 Dr. Bhavsar had found the prosecutrix to be carrying twelve weeks' pregnancy. Dr. Bhavsar would have had absolutely no reason to falsely implicate the appellant. Therefore, in the face of evidence of these two independent witnesses, who stated that the prosecutrix was pregnant, her word that nothing had happened, or her mother's word to the same effect, have absolutely no evidentiary value. 11. The learned counsel for the appellant could not show any lapses in collecting the samples for the purpose of DNA finger printing or sending them to the DNA Laboratory. The report of the Laboratory is at Exh.66. 11. The learned counsel for the appellant could not show any lapses in collecting the samples for the purpose of DNA finger printing or sending them to the DNA Laboratory. The report of the Laboratory is at Exh.66. It shows that the appellant was biological father of the aborted foetus, which was retrieved upon termination of the pregnancy of the prosecutrix. There is no reason why this conclusion drawn by the Laboratory should be rejected. 12. The learned counsel for the appellant placed for my perusal a leading case of Kamalnatha Vs. State of T.N., reported at (2005) 5 SCC 194 where the technique of DNA finger printing had been considered by the Apex Court. The Court had considered the expert opinion, by one Dr. Lalji who was examined as witness in the said case, to the effect that an error can produce mismatch but cannot produce a proper match. He had also stated that contamination would not result in proper match, it can give rise to exclusion and not to positive inclusion. 13. In view of this, there can be absolutely inconceivable objection to the correctness of the report from the Laboratory that the appellant is biological father of the aborted foetus of the prosecutrix. This could not have happened without intercourse between the appellant and the prosecutrix. Since the prosecutrix was not of consenting age at the relevant time as can be seen from the certificate of birth which shows her date of birth to be 17.02.1990, such intercourse would amount to rape. It is strange that the prosecutrix and her mother have chosen to shield perpetrator of such heinous crime. The learned trial Judge had dealt with the entire evidence in a extremely sensible and proper manner and has drawn inferences which are unimpeachable. He has also not been unduly harsh in the matter of sentence and has stated that a stern sentence need not be imposed. Though he had in fact come to the conclusion, that the prosecutrix as well as her mother had given false evidence, the learned Sessions Judge had not taken any action against them, possibly considering that after having suffered such an assault, the prosecutrix may be spared of another deprivation because of her failure to standby her word particularly in the context of the pressures that she must have subjected to. 14. 14. In view of this, the judgment does not at all call for any interference. The conviction of the appellant is unassailable as is the sentence. The appeal is therefore, dismissed.