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2014 DIGILAW 1242 (BOM)

Rakesh Shrinaval Patel v. State of Maharashtra

2014-06-12

SADHANA S.JADHAV

body2014
Judgment : The appellant herein is convicted for the offence punishable under Section 452 of Indian Penal Code and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000/- in default S.I. for three months and under Section 376 (2)(f) of Indian Penal Code, he is sentenced to suffer R.I. for ten years and to pay fine of Rs.5,000/- in default S.I. for six months in Sessions Case No.357 of 2009 by the 5th Ad-hoc Sessions Judge, Greater Bombay vide judgment and order dated 31.8.2009. Hence, this appeal. 2. Such of the facts necessary for the decision of this appeal are as follows :- On 27.3.2009, one Smt. Phuladevi Chauhan approached Kherwadi Police Station along with her daughter and informed the police that she is residing at New SRA, Maharashtra Nagar, Bandra (East), Mumbai, along with her husband and her four children. Her husband is working as a mason at a construction site. They are residing in one room of a building which is under construction. On 27.3.2009, her husband had gone to the house of the supervisor to watch T.V. At about midnight, when she woke up, she could not find her husband in the house and, therefore, proceeded to call upon him. Her husband had asked her to wait for some time. She had again reiterated her request to her husband to return home. However, he asked her to go back home and he would soon follow. When she returned to her house, she saw her elder daughter i.e. the victim lying. She noticed that the victim was denuded of her clothes and the present appellant was lying on her person. She further noticed that the present appellant was having sexual intercourse with her daughter. She raised alarm. She questioned the appellant. He fled away. She chased the accused. Her husband also chased the appellant and thereafter assaulted him. The appellant had rescued himself and fled from the spot. Thereafter, the complainant along with her husband and her victim daughter approached the police station and lodged report. On the basis of the said report, Crime No.60 of 2009 was registered against the accused-appellant for the offence punishable under Sections 376 and 452 of IPC. 3. After some time, one Lalu Yadav had brought the accused to the police station. The accused was arrested. On the basis of the said report, Crime No.60 of 2009 was registered against the accused-appellant for the offence punishable under Sections 376 and 452 of IPC. 3. After some time, one Lalu Yadav had brought the accused to the police station. The accused was arrested. The clothes of the accused and the victim girl were seized in the presence of the panchas. The Investigating Officer recorded statement of the victim and the victim was referred for medical examination. After completion of investigation, charge-sheet was filed on 4.4.2009. The prosecution examined four witnesses to bring home the guilt of the accused. 4. PW-1 is the victim herself. She has deposed before the Court that she was residing along with her parents and her brothers and sisters in a room on the site under construction. She was knowing the accused as he used to visit the said building to meet his friend. On the day of incident, at night, the accused had entered into the house, denuded her of her clothes and then he has committed sexual intercourse with her. That upon arrival of her mother, the accused had worn his clothes and escaped from the room. Her mother chased him and caught him. She beat him. Thereafter, he ran away. It is elicited in the cross-examination that the victim had stated before the Court that prior to this incident, 5 - 6 times some persons had raped her. Those persons were working with her father. She has also admitted that at the time of incident, she was sleeping. She was frightened due to the said incident. It is further elicited that only upon arrival of her mother, she learnt about the identity of the accused and had identified him as the person who was present before the Court. It is further admitted that her mother had instructed her before her statement was recorded by the police. She has further admitted in the cross-examination that her father had beaten the accused, as a result of which the accused had sustained injuries. One Lalu Yadav was with the complainant when they went to the police station. 5. The learned Counsel appearing for the appellant submits that the victim has been shattered in the cross-examination on two grounds. Firstly, that she was knowing the accused as he used to visit the said building to meet his friend. However, in the cross-examination. One Lalu Yadav was with the complainant when they went to the police station. 5. The learned Counsel appearing for the appellant submits that the victim has been shattered in the cross-examination on two grounds. Firstly, that she was knowing the accused as he used to visit the said building to meet his friend. However, in the cross-examination. the victim has admitted that only upon arrival of her mother, she learnt that the said person is Rakesh. According to the learned counsel, the appellant has been falsely implicated. The victim girl was not knowing the accused. It is further submitted that the victim has admitted in the cross-examination that she had informed the doctor that prior to this incident, she was raped on 5 - 6 occasions by different persons. The learned Counsel submits that there has been no prosecution against those persons in all probabilities because they were the co-workers of her father. It is further submitted that the victim girl has admitted in the cross-examination that she has been instructed by her mother before her statement was recorded by the police. An inference needs to be drawn that she has been tutored to depose against the present applicant. 6. As against this, the learned APP submits that the victim had identified the accused in the Court. Identification in the Court is a substantive piece of evidence and, therefore, according to the learned APP, it cannot be said that the appellant has been falsely implicated. The medical certificate of the victim indicates that the victim had disclosed to the doctor at the time of her clinical examination that she had been raped by the associates of her father. However, that cannot be a ground to discard her testimony in respect of the present incident. The past history of the victim cannot be taken into consideration by the Court, especially when she has categorically stated that she had been ravished by the present appellant on the date of the incident. The uncorroborated testimony of the victim is a sufficient ground to convict the accused and it cannot be doubted. 7. PW-2 Smt. Phuladevi Chauhan happens to be the mother of the victim. She had lodged First Information Report under Section 154 of Cr.P.C. She has deposed before the Court in consonance with the report lodged before the police. The uncorroborated testimony of the victim is a sufficient ground to convict the accused and it cannot be doubted. 7. PW-2 Smt. Phuladevi Chauhan happens to be the mother of the victim. She had lodged First Information Report under Section 154 of Cr.P.C. She has deposed before the Court in consonance with the report lodged before the police. It is elicited in her cross-examination that they were residing in a room admeasuring 12 x 15 ft. In the cross-examination, it is elicited that she had raised hue and cry. They had assaulted the accused. He had sustained injuries. She had admitted that at that stage, Lalu Prasad intervened and the accused had fled away. However, Lalu Yadav had brought the accused to the police station. Besides this, the witness has not been shattered and, therefore, implicit reliance can be placed upon the testimony of the mother of the victim, who also happens to be an eye-witness. 8. The learned Counsel for the appellant has drawn attention of this Court to the discrepancy in the evidence of the victim and her mother. The victim had stated that upon arrival of her mother, the accused had worn the clothes and then escaped. The victim has stated that her mother had assaulted the accused and thereafter he had fled away. However, according to PW-2, they all had assaulted the accused and thereafter Lalu Yadav had intervened and brought him to the police Station. The learned Counsel further submits that the accused has been implicated in the present case at the behest of Lalu Yadav. However, it cannot be believed that at the instance of Lalu Yadav the police would expose the very womanhood of her minor daughter. At the time of incident, the victim was 9 years old. 9. PW-3 Dr. Baban Shinde was attached to Nagpada Hospital. He had examined the victim girl. He has deposed before the Court that the victim had disclosed to him that when she was sleeping in the house, one person known to her entered her house and subjected her to intercourse. She had given history of sexual intercourse for 5 to 6 times by different persons. The doctor has further deposed that there are no external injuries on the person of the victim. She was subjected to ossification test and then the age of the victim was determined between 10 to 11 years of age. She had given history of sexual intercourse for 5 to 6 times by different persons. The doctor has further deposed that there are no external injuries on the person of the victim. She was subjected to ossification test and then the age of the victim was determined between 10 to 11 years of age. It is elicited in the cross-examination that the victim had not disclosed the name of the accused to the doctor, although the victim has claimed that she was knowing the accused. It is specifically admitted in the cross-examination that there were no injuries found on the private part of the victim. 10. The learned Counsel appearing for the appellant submits that in the eventuality that the act was committed, more so a forceful intercourse, there ought to have been injuries on the person of the victim. The medical case papers do not indicate that there were injuries on any part of the body of the victim, including her private part and, therefore, according to the learned Counsel for the appellant, it cannot be said that the appellant had committed sexual assault upon the victim. No doubt, the submissions are made on the basis of the medical case papers. However, the law is settled that the medical evidence is only a corroborative piece of evidence and the substantive evidence of the victim cannot be thrown overboard only because the medical evidence does not support her case. 11. The learned APP has placed reliance on the Judgment of the Hon'ble Apex Court in the case of Vijay @ Chiriee vs. State of Madhya Pradesh reported in 2010 AIR (SCW) 5510 : [2010 ALL MR (Cri) 3326 (S.C.)], wherein the Hon'ble Apex Court has observed that "Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony". 12. The learned APP has further relied upon the Judgment of the Hon'ble Apex Court in the case of Lillu @ Rajesh & Anr. 12. The learned APP has further relied upon the Judgment of the Hon'ble Apex Court in the case of Lillu @ Rajesh & Anr. vs. State of Haryana in Criminal Appeal No.1226 of 2011 : [2013 ALL MR(Cri) 1866 (S.C.)], wherein the Hon'ble Apex Court has held that there is no rule of law that the testimony of the prosecutrix cannot be acted upon without corroboration in material particulars, for the reason, that she stands on a much higher pedestal than an injured witness." The Hon'ble Apex Court has further held that "even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. "Hence, this Court is of the opinion that implicit reliance can be placed upon the uncorroborated testimony of the victim. 13. PW-4 Sharad Raut is the Investigating Officer. He has deposed before the Court in respect of the steps taken by him in the course of investigation. It is admitted by him in the cross-examination that Lalu Yadav had accompanied the complainant to the police station. The learned Counsel submits that the discrepancy is writ large on the face when the Investigating Officer says that Lalu Yadav had accompanied the complainant to the police station, whereas the complainant has specifically stated that she along with her husband had taken the victim to the police" station and that Lalu Yadav had brought the accused to the police station. However, the discrepancies in the evidence of the witnesses inter-se is of a trivial nature and do not touch the very case of prosecution. 14. The Court cannot be oblivious of the fact that a victim in a rape case is not only an injured witness, who has suffered physical injury but the injury is a psychological injury. The injury is caused to the soul of the woman and therefore this Court is of the opinion that the conviction recorded by the Sessions Court cannot be interfered with. 15. The injury is caused to the soul of the woman and therefore this Court is of the opinion that the conviction recorded by the Sessions Court cannot be interfered with. 15. Taking into consideration the admission of the victim, the aspect that the victim was instructed by her mother before her statement was recorded by the police can only indicate that the mother was trying to help the child psychologically to see that she is not frightened at the sight of the police and shall narrate the factual aspects fearlessly and, therefore, it cannot be said that the victim was tutored by her mother. 16. The learned Counsel appearing for the appellant prays for leniency as far as the sentence is concerned on the ground that the appellant was hardly 22 years of age and that he was the only earning member in the family. It is further demonstrated that the appellant has been in jail since 28.3.2009. He had no criminal antecedents. The appellant has undergone the substantive sentence of five years and three months. Hence, this Court is inclined to modify the substantive sentence imposed upon the appellant. 17. Before parting with this judgment, this Court appreciates the effort taken by the learned Counsel for the appellant who was appointed as amicus curiae. His fees are quantified at Rs.3,000/- to be paid within three months. ORDER (i) The conviction of the appellant for the offences punishable under Sections 452 and 376(2)(f) of the Indian Penal Code recorded by the 5th Ad-hoc Asstt. Sessions Judge, Greater Bombay vide judgment and order dated 31.8.2009 is upheld. (ii) The appellant is sentenced to rigorous imprisonment for eight years. (iii) The sentence of fine is maintained. However, the default sentence is modified to the extent that in default of payment of fine, the appellant shall undergo R.I. for three months. (iv) The appellant has already undergone the sentence imposed upon him under Section 452 of I.P.C. Appeal is disposed of accordingly. Ordered accordingly.