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2010 DIGILAW 34 (BOM)

Ganpat son of Sadashiv Nadekar v. State of Maharashtra

2010-01-08

A.P.BHANGALE

body2010
Judgment : 1. Appellant questions legality and validity of his conviction in Sessions Trial No. 299 of 2007 by learned Ad-hoc Additional Sessions Judge-4, Nagpur. He has been convicted and sentenced for various offences as under: Offence Quantum of Amount of Sentence in sentence Fine default of payment of fine S. 366 IPC 7 years’ RI Rs. 1000/- 3 months’ SI S. 376 (1) (f) 10 years’ RI Rs. 1000/- 3 months’ SI IPC S. 354 IPC 1 year RI Rs. 500/- 1 month’s SI S. 506 (II) IPC 1 year RI Rs. 500/- 1 month’s SI All substantive sentences are directed to run concurrently and benefit of set-off for the period of imprisonment already undergone was also given to the appellant-convict. 2. The prosecution case in nut-shell is as under: On the basis of FIR No. 34/07 at Jalalkheda Police Station, District Nagpur, the incident of rape was reported on 5.5.2007. The investigation was taken up to draw a spot panchanama (exhibit 28). The accused was arrested on 6.5.2007 and his clothes Dhoti and full-sleeved white Bengali shirt were seized. His blood sample etc. were seized. Clothes of victim were seized as also her blood sample and vaginal swab. Her age certificate (exhibit 40) was collected. The seized material was referred to chemical analyser for expert opinion and reports were received (exhibits 10 to 13). Upon completion of investigation, the accused was charge-sheeted before the Judicial Magistrate, First Class, Narkhed and the case was committed to the Court of Sessions on 9.8.2007. 3. The charge was framed on 3.11.2007 and plea was also recorded on the same day. Accused pleaded not guilty and claimed to be tried. 4. The prosecution examined total seven witnesses. The accused denied the crime adopting defence of total denial. 5. Victim Dipika studying in 6th standard is a minor school-going girl who deposed as to how the accused asked her to accompany with him upon temptation that he will give money to her. He caught hold of her hand, took her to his house; closed her house; spread a gunny bag on the floor, removed her nicker; laid her on the gunny bag and placed himself on her. Blood oozed from her private part. He had also fingered her private part twice or thrice. She shouted and cried. She was asked not to disclose the occurrence to anybody under threat to kill her. Blood oozed from her private part. He had also fingered her private part twice or thrice. She shouted and cried. She was asked not to disclose the occurrence to anybody under threat to kill her. The accused had given Rs. 7/- to her. The testimony of the victim appeared consistent to the oral report lodged by her (exhibit 15). Mother of victim Durga (PW 2) and PW 3 Gumpha, a vegetable vendor corroborated the version of victim about the incident of rape by the accused. It also appears from the record that investigation was promptly undertaken on 6.5.2007 to seize clothes of the victim and the accused as also seize and collect vaginal swabs and blood sample from the victim and blood sample from the accused; Cotton swab from glans penis, pubic hair from the accused so as to collect and send it for obtaining further evidence in the form of report from chemical analyzer (exhibits 10 to 13). The trial Court has considered all this evidence to arrive at finding of guilt against the accused. 6. In this case it appears that a 12-year old minor school-going girl who was raped by the accused disclosed the incident to her mother and a lady vegetable vendor and promptly lodged report to the police. Sole testimony of such minor girl complaining of rape can be relied upon without corroboration as there was no possibility of false implication of the accused. The corroboration in the present case came from the other witnesses examined as also circumstances, such as, absence of smegma indicative of recent sexual intercourse by the accused. The evidence inspired confidence in the judicial mind and the trial Court recorded finding of guilt upon considering entire evidence on record which does not furnish any ground for interference by this Court. 7. Learned Advocate for the appellant submitted that the appellant-accused had no effective opportunity to be defended by Advocate of his own choice and the Advocate offered from Legal Aid had no time to go through entire charge-sheet and then to cross-examine witnesses and, therefore, case may be remitted back to trial Court to afford effective opportunity to the appellant-accused to defend himself through lawyer of his choice. 8. The contention is opposed stoutly by learned Additional Public Prosecutor on the ground that the accused was arrested in the case on 6.5.2007. 8. The contention is opposed stoutly by learned Additional Public Prosecutor on the ground that the accused was arrested in the case on 6.5.2007. He was charge-sheeted on 28.6.2007 before the JMFC, Narkhed and the case was committed to the Sessions Court on 9.8.2007. The charge was framed on 3.11.2007 and plea of accused was recorded on the same day when accused was offered legal aid. The accused had refused legal aid on the ground that he wants to engage private Advocate. He had not engaged any private advocate to defend him although he had ample time at his disposal to engage legal practitioner of his choice. The accused-appellant, therefore, cannot complain of infringement of his fundamental right more so when he had not made any plea for adjournment of the trial on that ground. 9. It does appear from the record that charge was framed on 3.11.2007 at exhibit 4 and plea of the accused came to be recorded at exhibit 5. The accused was specifically offered legal aid by the trial Court which he had initially declined to accept on the ground that he wanted to engage private Advocate. Therefore, it was left to the accused to make necessary arrangement to engage private Advocate. Upon his failure to avail of the opportunity, the trial Court had offered legal aid which the accused had accepted. It is not case of the appellant that he had requested the trial Court to be represented by a particular private lawyer of his choice and that such prayer was rejected. Hence, there is no question of infringement of his fundamental right as the recording of evidence in the trial had commenced much later on 9.1.2008. The contention by the learned Advocate for appellant, therefore, has no substance and hence, rejected. 10. Learned counsel next contended maximum sentence of ten years rigorous imprisonment imposed on the appellant is too harsh looking to his age of more than sixty years. 11. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is serious blow to her supreme honour and offends her self-esteem and dignity. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor it leaves behind a traumatic experience. The Supreme Court in a series of judgments (e.g. Bodhisatwa Gautam v. Subhra Chakraborty : AIR 1996 SC 922 ; State v Ramdev Singh : AIR 2004 SC 1290 ; State v. Rajesh : 2006 (1) Crimes 121 (SC) has laid down that the Courts are, therefore, expected to deal with cases of sexual crime against woman with utmost sensitivity. Such cases need to be dealt with sternly and severely. There is no adequate and sufficient or special reason warranting sympathy to appellant and consequently to reduce substantive sentence of imprisonment. Prayer to remit the case back to the trial Court or to reduce substantive sentence of imprisonment cannot be granted and hence, rejected. 12. No ground is made out for interference in the impugned judgment and order. Appeal is without any merit and has to be dismissed. It is dismissed accordingly.