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2014 DIGILAW 1300 (BOM)

LAHU DEVRAM PAWAR v. STATE OF MAHARASHTRA

2014-06-19

SADHANA S.JADHAV

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JUDGMENT : The Appellant herein is convicted for offence punishable under section 376 of the Indian Penal Code and is sentenced to suffer 10 years rigorous imprisonment and fine of Rs. 2000/- i.d. to suffer simple imprisonment for 2 months. He is also convicted for offence punishable under section 323 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 6 months and fine of Rs. 500/- i.d. to suffer simple imprisonment for one month, by the Additional Sessions Judge, Pune vide Judgment and Order dated 23rd August, 2011 in Sessions Case No. 436 of 2008. Hence, this appeal through jail. 2. Heard Learned Counsel Mr. Rohan Surve who was appointed through legal aid to espouse the cause of the appellant and the learned APP. 3. Such of the facts which are necessary for the decision of this appeal are as follows : On 12th April, 2008 Indubai Shivaji Dhule lodged a report at Shirur Police Station alleging therein that she is mother of the victim. She and her husband are agricultural labourer and work on the agricultural land of Mhasku Shendge. On 12th April, 2008 at about 8 a.m. they had left the house leaving behind them their elder daughter Usha, her son and the victim girl who was about 7 years old at that time. At 12 noon, she returned home for lunch. At that time, their elder daughter Usha informed her that one person had come to their house on motor cycle. He had water. He inquired with Usha in respect of whereabouts of their parents. He had informed her that he wanted to give a wedding invitation card to her parents. When she informed him that parents were working in the agricultural land, he requested her to send the victim girl and Subhash along with him on the motor cycle to show the whereabouts of their parents. They did not return home for quite some time and the children were brought home by Aba Shindge. The victim had informed her sister that the said person who had taken them from home had assaulted them. The victim girl appeared to be disturbed and therefore, she was taken to the hospital of Dr. Satras. He had referred her to Civil Hospital. The doctor examined her and informed the parents that the victim girl has been ravished. The victim had informed her sister that the said person who had taken them from home had assaulted them. The victim girl appeared to be disturbed and therefore, she was taken to the hospital of Dr. Satras. He had referred her to Civil Hospital. The doctor examined her and informed the parents that the victim girl has been ravished. The victim informed about the incident to her parents and thereafter, they had approached the police station. On the basis of her statement, Crime No. 102 of 2008 was registered against the accused for offence punishable under section 376 and 323 of the Indian Penal Code. 4. The investigation was set in motion. The accused was arrested on 13-4-2008. The investigation was completed and charge-sheet was filed on 11-6-2008. The case was committed to the Court of Sessions and registered as Sessions Case No. 436 of 2008. The prosecution examined 11 witnesses to bring home the guilt to the accused. The Court had also examined 2 witnesses i.e. Santosh Jagtap and Suresh Londhe. 5. P.W. 5 Indubai is the complainant. She has deposed before the court in consonance with her first information report and has proved the contents of the first information report. The only omission elicited in the cross-examination is that Usha had informed her parents that the accused had come to their house and had water. However, Usha had not informed them that he had come to give wedding invitation. She had admitted that the accused had never come to their house before the incident. She has also admitted that she had informed the doctor regarding rape. She had not enquired with Aba Shendge, the person who had brought the children home about the incident on the road. She has admitted that her daughter had not informed her the name of the person who had committed rape on her. However, the said omissions are not material omissions, which would go to root of the matter. 6. The prosecution has examined the victim as P.W. 9. The victim in her examination-in-chief has narrated the incident and the trauma which she has gone through. However, in the cross-examination, it is elicited that the police and her parents had informed her about the identity of the person and had pointed to her the accused person and further asked her to identify him as an accused in the court. The victim in her examination-in-chief has narrated the incident and the trauma which she has gone through. However, in the cross-examination, it is elicited that the police and her parents had informed her about the identity of the person and had pointed to her the accused person and further asked her to identify him as an accused in the court. Learned Counsel for the appellant submits that the tenor of the cross-examination of the victim is sufficient to hold that she has been tutored to depose before the Court as per the instructions of the police and the parents and therefore, her evidence shall not inspire confidence of the court. The learned Counsel for the appellant further submits that although identification of the accused in the court is a substantive evidence, however, it has to inspire confidence that the said identification is not only truthful, but it has to be voluntary and conscious. According to the learned Counsel, identification of the accused by the victim in the court does not inspire confidence as it has taken place at the behest of the investigating officer and her parents and therefore, according to him, the said issue goes to the root of the matter and the appellant would be entitled to acquittal on the sole ground. However, taking into consideration the age of the victim, the Court is of the firm opinion that the victim has fallen prey to the graphic cross-examination by the defence and hence, the submission cannot be considered. 7. P.W. 8 Aba Shendge is the material witness who has deposed before the court that on the day of the incident, he had been to sugar factory at Ghodganga Sahakar Sakhar Karkhana for unloading his sugarcane tractor. At about 3 p.m., he had been to Shendge vasti. While he was passing through Navhavra to Ranjangaon, he saw the victim and Subhash were weeping on the road. He had enquired with them. The victim had not disclosed anything. On humanitarian ground, he picked them up on motor cycle and dropped them at their residence. At that time, the parents of the victim and her brothers were present. In his presence, the mother of victim had enquired with her about the incident and that time, the victim had informed her mother that one person had taken her on the motor cycle. At that time, the parents of the victim and her brothers were present. In his presence, the mother of victim had enquired with her about the incident and that time, the victim had informed her mother that one person had taken her on the motor cycle. He had noticed that the clothes of the victim were stained with blood. At the request of the mother of the victim, he had taken her to Dr. Satras. Dr. Satras had examined the victim and referred her to Government Hospital. P.W. 8 had also accompanied them to Government Hospital, Shirur. After medical examination of the victim, the doctor had opined that the victim had been a victim of rape. The defence has failed to make a dent in the substantive evidence of the P.W. 8 in his cross-examination. A suggestion was given to the witness that his statement is not recorded under section 161 of the Code of Criminal Procedure, 1973. However, upon perusal of the list of witnesses submitted alongwith the charge-sheet, it is clear that P.W.8 has been cited as a witness at Sr. 17, which indicates that his statement was recorded under section 161 of the Code of Criminal Procedure, 1973. 8. Upon perusal of the medical examination of the victim, which was conducted on the same day i.e. on 12th April, 2008, it is clear that the victim was 6 years old girl. The hymen was torn and there was fresh erythematous injury. The final opinion given by the doctor is that "evidence of penetrative vaginal intercourse with fresh tear, erythematous over fourchette and extending midline in the Perineum upto ant. anal margin". 9. The learned Counsel for the appellant submits that the CA report at Exh. 61 would indicate that no semen was detected in the vaginal swab as well as vaginal smear and therefore, it cannot be said that there is any corroborative evidence to establish that the victim had been subjected to the sexual assault. C.A. report would further indicate that the clothes of the accused at Exh. 5 which is the pant of the accused had two blood stains. The inner-ware of the accused also had semen stains. However, there was no blood on his shirt and his underwear. Hence, there is corroborative evidence. C.A. report would further indicate that the clothes of the accused at Exh. 5 which is the pant of the accused had two blood stains. The inner-ware of the accused also had semen stains. However, there was no blood on his shirt and his underwear. Hence, there is corroborative evidence. In the statement under section 313 of the Code of Criminal Procedure, 1973 the accused has failed to explain the presence of blood and semen on his wearing clothes which were seized in the panchanama. 10. For the reasons mentioned, above the conviction of the appellant deserves to be upheld. No interference is called for either in the conviction or the sentence since the victim was hardly 6 years of age and she would have to carry the trauma of rape all through her life. In view of this, Appeal deserves to be dismissed. There is no reason nor motive to falsely implicate the accused. The narration of facts given by the witnesses, more particularly the victim, is sufficient to hold that the appellant has committed sexual assault upon the victim. P.W. 8 is an independent witness, and his sterling testimony establishes that the victim was sexually assaulted by the person who had taken her away from home. 11. In view of the above observations, the Criminal Appeal is dismissed. The conviction and sentence passed by the Additional Sessions Judge, Pune vide Judgment and Order dated 23rd August, 2011 is hereby confirmed. 12. Office to communicate the order to the appellant through the Superintendent of Jail in which the appellant is lodged. 13. Writ be issued. 14. This Court cannot part with the Judgment without recording appreciation for the advocate Mr. Rohan Surve, who was appointed through legal aid to espouse the cause of the appellant. He has extended cooperation to the Court. He has put his best of efforts. The legal fees to be paid to him by the Legal Aid are quantified at Rs. 5000/-. The said fees be paid to Advocate Mr. Rohan Surve within three months from today. 15. Criminal Appeal is disposed of accordingly.