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2014 DIGILAW 1293 (BOM)

Tejendra Bhaskar Ahire v. State of Maharashtra

2014-06-19

SADHANA S.JADHAV

body2014
JUDGMENT :- The appellant herein is convicted for the offence punishable under Sections 376 and 506(II) of Indian Penal Code and sentenced to suffer R.I. for seven years on both the counts by Ad-hoc Assistant Sessions Judge, Borivali Division, Dindoshi, Mumbai, vide judgment and order dated 28.4.2011 in Sessions Case No.99 of 2010. Hence, this appeal. 2. Such of the facts necessary for the decision of this appeal are as follows :- On 22.5.2010, Nitin Kharat accompanied by his younger sister (hereinafter referred as the victim), approached the Charkop Police Station and lodged a report alleging therein that his elder sister was married to the present appellant. That he had noticed that his younger sister was crying and she was under tremendous stress and, therefore, he enquired with the cause of her stress. She thereafter informed him that since October, 2009, her brother-in-law i.e. the husband of her elder sister Sheela had ravished her on more than two occasions. The first informant had questioned her as to why she had not disclosed the said incident to him earlier upon which she replied that she was threatened by the accused that in the eventuality she had disclosed the incident to anybody, he would divorce her elder sister and, therefore, she had restrained herself from informing anybody about the said incident. He, therefore, approached the police station and lodged a report that the present appellant had ravished his sister on four occasions. On the basis of his report, initially crime was registered as 00/2010 against the accused for the offence punishable under Sections 376 and 506 (II) of IPC. As per the jurisdiction, the first information report was sent to R.A. Police Station for further investigation and registered as Crime No.64 of 1010 and is in custody since then. Investigation was set in motion. After completion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and registered as Sessions Case No.99 of 2010. The prosecution has examined four witnesses to bring home the guilt of the accused. 3. PW-1 is the victim. She has deposed before the Court that the trauma which she had to go through at the house of her sister. According to her, at the time of incident, she was in fact studying at Ashram Shala at Nagpur. The prosecution has examined four witnesses to bring home the guilt of the accused. 3. PW-1 is the victim. She has deposed before the Court that the trauma which she had to go through at the house of her sister. According to her, at the time of incident, she was in fact studying at Ashram Shala at Nagpur. She had come to Mumbai for her Diwali vacation and had been to her mother's house at Kandivli. 2- 3 days thereafter, she had been to the house of her sister Sheela at Aarey Colony. On the day of the incident, she was in the house, whereas her sister had been for work. The accused had asked her to prepare tea for himself. Thereafter, she was asked to massage his head and at that time he had ravished her. She had attempted to rescue herself from the clutches of the accused. However, she could not succeed. She was restrained from informing the incident to anybody as the accused had threatened her that in the eventuality she disclosed the incident to anybody, he would divorce her sister. The victim had to maintain silence. 4. The victim has further deposed that one week thereafter, she had been to the house of her sister Sheela when the accused repeated the same incident. Thereafter, she had been to the house of her brother at Charkop. Being a close relative, the accused had visited the house of her brother and had again ravished her. The same incident was repeated 4 - 5 weeks thereafter. The victim had then gathered courage and informed the said incident to her sister Sheela. Her brother had also enquired with her. With great courage, she had narrated the incident to her brother and then her brother had brought her to the police station and lodged the report. In the cross-examination, it is elicited that she does not remember the exact date when she came to Mumbai for Diwali vacation. Her brother Nitin had taken her to Mumbai at that time. He had asked her to stay in the house of their sister Sheela. She has fairly admitted that she does not remember that her mother returned to Mumbai from the village or then what has happened to her mother. It is elicited in the cross-examination that her sister Sheela and her husband treated her as their daughter. He had asked her to stay in the house of their sister Sheela. She has fairly admitted that she does not remember that her mother returned to Mumbai from the village or then what has happened to her mother. It is elicited in the cross-examination that her sister Sheela and her husband treated her as their daughter. It is elicited that her brother had asked her to state before the police about the said incident and after lodging the report she had been to the house of her sister Sheela. It is suggested to the victim that she had given some material in writing to the police. A suggestion was also made as to whether her brother had assaulted her and was not providing food to her. She has denied the suggestion that her brother had asked her to lodge a report against the accused. The witness has volunteered that her sister Sheela had asked her to give such writing to the police. Be that as it may, whatever was given in writing to the police, the victim has not been confronted with the said material and, therefore, it is not necessary to consider the same. Several suggestions are extended in the cross-examination to suggest that the house of Sheela is surrounded with other houses. It is a dense locality and that people pass from front of the house for fetching water and that being a sister of Sheela, people in the locality were well acquainted with her and they used to converse with her. Much stress has been given on the exact date of the first incident. The victim has fairly stated that it would not be possible for her to state the exact dates of those incidents. 5. The learned Counsel for the appellant submits that the tenor of the substantive evidence of the victim would indicate that she had been coerced by her brother to lodge the report as the brother was on cross terms with the accused-appellant. All the suggestions are fairly denied by the victim. The substantive evidence of the victim inspires confidence inasmuch as she has admitted that the accused and his wife i.e. her sister used to treat her like their daughter. Inspite of it, the accused had committed the heinous offence. He had committed breach of the solemn faith which the victim had reposed in him being her relative. The substantive evidence of the victim inspires confidence inasmuch as she has admitted that the accused and his wife i.e. her sister used to treat her like their daughter. Inspite of it, the accused had committed the heinous offence. He had committed breach of the solemn faith which the victim had reposed in him being her relative. The victim had gathered courage to inform her sister about the said incident and then it had come to light. 6. PW-2 Dr. Baban Shinde has examined the victim on 23.5.2010. He has proved the contents of Exhibit 12 which is the medical examination certificate of the raped victim. The victim had informed the doctor that she was ravished by her brother-in-law on several occasions initially when she was in his house at Aarey Colony and thereafter Charkop, Kandivali. The doctor has conducted the ossification test and had given an opinion that she was about 13 to 14 years at the time of incident. He had issued a medical certificate to that effect. He has stated that he had not noticed any injuries on her person. It is elicited in the cross-examination that he had not obtained the consent of guardians of the victim girl. A suggestion was given as to whether he had verified the correctness and the truthfulness of the history given by the victim girl and he has specifically stated before the Court that it is not incumbent upon him to enquire into the same. However, he has recorded it which is seen at Exhibit 12. 7. PW-3 Nitin Kharat is the first informant who happens to be the brother of the victim. He has deposed before the Court that her elder sister was not feeling well. He had sent the victim to her house. The victim used to visit the house of the accused intermittently. He has further deposed that in the first week of November, the accused had been to his house. He had again visited on 7th November. When PW-3 returned home, his sister Vanita was crying and upon enquiry she had disclosed that the accused had committed sexual intercourse with her at his house as well as in the house of her brother at Charkop. PW3 has proved the contents of the first information report whichis marked Exhibit 16. He had again visited on 7th November. When PW-3 returned home, his sister Vanita was crying and upon enquiry she had disclosed that the accused had committed sexual intercourse with her at his house as well as in the house of her brother at Charkop. PW3 has proved the contents of the first information report whichis marked Exhibit 16. It is elicited in the cross-examination that the mother of PW-3 and the victim was suffering from mental ill-health and she had left the house. He had taken his mother to Mumbai in the year 2008. He has further admitted that his mother is missing since 22.10.2009. A suggestion was given to PW-3 that he was ill-treating his mother and, therefore, she was constrained to leave the house. He has further stated that after two months of missing of his mother he had brought the victim to Mumbai from Nagpur. According to him, he had brought the victim to Mumbai in the moth of January or February 2010. 8. The learned Counsel for the appellant submits that PW-3 has categorically admitted in the cross-examination that he had brought the victim to Mumbai only in the month of January-February, 2010. However, according to the victim, the incident had occurred during the month of October-November, 2009 and, therefore, the witness has been shattered in his cross-examination about the time of the incident. The learned Counsel for the appellant further submits that the accused had visited the house of PW-3 on 7.11.2009. The first information report is lodged on 22.5.2010. The learned Counsel further submits that if one goes by the chronology of events as narrated by PW-3, it will be clear that on 7th November, the accused had visited the house of PW-3. Thereafter, he had seen his sister weeping and in depression and upon enquiry, she had disclosed about the trauma which she had suffered at the hands of the accused-appellant. Hence, according to the learned counsel, there has been an inordinate delay in lodging the first information report and there is no plausible explanation for the same. According to the learned Counsel for the appellant, the delay in lodging the first information report would go to the root of the matter and it would clearly indicate that the accused h as been framed into the present case and has been falsely involved by concocting evidence against him. 9. According to the learned Counsel for the appellant, the delay in lodging the first information report would go to the root of the matter and it would clearly indicate that the accused h as been framed into the present case and has been falsely involved by concocting evidence against him. 9. As against this, the learned APP submits that the substantive evidence of the victim by itself is sufficient to hold the accused guilty of the alleged offence. She further submits that sterling testimony of the victim would inspire confidence of the Court. There is no reason for implicating the accused falsely. The victim has narrated the incident to her sister as well as to the first informant, who happens to be her brother. She has stood the test of cross-examination. Her evidence is corroborated by PW-2 and the medical certificate. Hence, the conviction recorded by the learned Sessions Judge does not warrant any interference. Implicit reliance can be placed upon the sterling testimony of PW-1 who is a young girl and has to suffer the trauma of rape throughout her life. For a young girl, the injury caused to her is not just a physical injury but is an injury to the very soul of a womanhood and, therefore, the conviction recorded against the accused for the offence punished under Section 376 of IPC does not call for interference. 10. For the reasons stated above, the conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code is hereby upheld. The Appeal is dismissed. Appeal dismissed.