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2014 DIGILAW 1629 (BOM)

Raju Namdeo Chavan v. State of Maharashtra

2014-07-24

SADHANA S.JADHAV

body2014
JUDGMENT : Sadhana S. Jadhav, J. 1. The appellant is convicted for the offence punishable under Section 376(2)(f) of the Indian Penal Code and sentenced to suffer R.I. for ten years and to pay a fine of Rs. 2,000/- in default further R.I. for three months. He is also convicted for the offence punishable under Section 323 of IPC and sentenced to suffer further R.I. for six months and to pay fine of Rs. 500/- in default to suffer R.I. for one month by Extra Joint Ad hoc Addl. Sessions Judge, Nashik, in Sessions Case No. 73 of 2008 vide judgment and order dated 15.7.2010. Hence, this appeal. Such of the facts necessary for the decision of this appeal are as follows:- "That one Kalubai Lahane lodged a report at Ghoti Police Station on 13.3.2007 contending therein that she has two daughters aged about 7 years and 4 years respectively. She used to go for agricultural work. Her husband used to sell Bislery water bottles at Kasara Railway Station. It is alleged in the report that on 12.3.2007, her husband had gone to railway station and she was at home with her two daughters. At about 4 p.m., she learnt that her maternal uncle was declared as elected as a member of Panchayat Samiti and therefore she went to greet him along with her daughters to village Manikkhamb. The villagers had felicitated Vishnu Chavan. Thereafter, Vishnu was proceeding on foot towards his house. The complainant and her two daughters had also followed. When the procession came near the house of Deoram Chavan, Raju i.e. the present appellant developed a conversation with the complainant. Raju asked the complainant to give her daughter Deepali to him and that he would take her to the maternal uncle of the complainant and return after the child meets Vishnu Chavan. The complainant allowed the accused to go with her daughter. She waited for her daughter to return home. At about 9.30 p.m., the appellant came to the house of the complainant lifting Deepali on his hands. He informed the complainant that the girl got scared in the crowd. That she was doing unwanted activities. He advised the complainant to serve food to her and allow her to sleep. After the accused had left the house, the child aged about 7 years embraced her mother and started crying. He informed the complainant that the girl got scared in the crowd. That she was doing unwanted activities. He advised the complainant to serve food to her and allow her to sleep. After the accused had left the house, the child aged about 7 years embraced her mother and started crying. The complainant noticed blood oozing from the mouth of her daughter. The child informed her mother that the accused had slapped her and thereafter had ravished her. The complainant had examined the person of her child and soon realized that she had been ravished. The complainant then went to the house of the accused and informed his parents about the same and thereafter she waited for the arrival of her husband. When the husband did not return home on that day, on 13.3.2007, she telephonically asked her husband to return home forthwith. Then they approached the police station and lodged the report. On the basis of the said report, C.R. No. 35 of 2007 was registered at Ghoti Police Station against the accused for the offences punishable under Sections 376(2)(f) and 323 of Indian Penal Code. The victim was examined by the doctor. The accused was arrested on 13.3.2007. The investigation was set in motion. After completion of investigation, charge sheet was filed on 13.9.2007. The case was committed to the Court of Sessions and registered as Sessions case No. 73 of 2008. The prosecution examined 8 witnesses to bring home the guilt of the accused." 2. PW-1 is the complainant Kalubai. According to her, her elder daughter/victim was about 7 years at the time of incident. She has deposed before the Court in consonance with the first information report. She has proved the contents of the FIR which is marked at Exhibit 13. In the cross-examination, she has denied the suggestion that the accused has been falsely implicated. She has denied the suggestion that on the date of incident, the accused was at Igatpuri for whole day as Vishnu Chavan had entrusted an important work to him. She has denied the suggestion that the victim girl had sustained injury as she had fallen down. As far as the entire incident is concerned, as narrated by the victim to the doctor, the defence has failed to make a dent in the deposition of PW-1. She has denied the suggestion that the victim girl had sustained injury as she had fallen down. As far as the entire incident is concerned, as narrated by the victim to the doctor, the defence has failed to make a dent in the deposition of PW-1. She has stated in her cross-examination that she had disclosed the entire incident to her neighbours, but they did not pay attention to her. 3. PW-2 is the victim herself. The learned Judge has put certain questions to the victim. She has answered that on the date of the incident, she had gone with her mother to see Vishnu Mama at Railway gate. She met the accused there. He told the victim that they should go to Vishnu Mama. Upon being asked as to whether she met Vishnu Mama, that she answered in the negative. She has deposed that Raju Nana had taken her towards water tank in the dark. That he had denuded her of her under garments, gagged her mouth and then ravished her. Thereafter, he took her in his arms and brought her home. She narrated the incident to her mother and then they went to the police station. She has identified the accused in the Court. The victim was subjected to cross-examination. She has categorically denied the suggestion that she had named the accused at the instance of her mother. 4. The learned counsel for the appellant has stressfully submitted that the victim has admitted in the cross-examination that she had not seen the accused at any time prior to the date of her recording statement and that she had seen him for the first time in Court. That she has admitted that the statement was already recorded by the police in the police station and the same was read over to her subsequently. According to the learned counsel, this would be sufficient to infer that the victim was tutored. In fact, the complainant had allowed her minor daughter to accompany the accused since at the relevant time, she had not apprehended any danger to her minor child and/or reposed faith in him, hence, there is no reason for false implication. 5. PW-3 Dr. Bhaskar Kuwar has examined the accused on 17.3.2007. He has admitted in the cross-examination that the police of Ghoti police station had given the history of accused to him before he was examined. 5. PW-3 Dr. Bhaskar Kuwar has examined the accused on 17.3.2007. He has admitted in the cross-examination that the police of Ghoti police station had given the history of accused to him before he was examined. PW-3 has proved the report of physical examination/male report at Exhibit 11. 6. PW-4 is Dashratsing Pardeshi, is the panch for the arrest panchnama and the seizure of clothes from the person of the victim as well as seizure of clothes of the accused. The said witness was declared hostile. 7. PW-5 is Dr. Mandakini Barve, was the Medical Officer and Gynecologist. She has deposed before the Curt that she had seen a small abrasion on medical aspect of labia minora. The girl was a minor. Her hymen was intact. There was a small superficial abrasion of medical aspect of labia minora on right side. She issued certificate to that effect which is marked at Exhibit 19. She has deposed before the Court that injury could be possible by attempt of sexual assault. In the cross-examination, she has admitted that the first part of Ex. 19 was recorded by other medical officer who was on duty as casualty before the girl was referred to her for examination and therefore she had again asked the victim the history and that she had narrated history to the officer. It is admitted that the entries in column Nos. 23 to 276 of Exhibit 19 are based on her opinion. She has also admitted that the labia manora and labia majora are sensitive parts. Exhibit 19 is the proforma of rape case. Column No. 13 shows abrasion of size 0.5 x 0.5 cms. over left nostril and abrasion of 0.5 x 0.5 cms. underneath upper lip. Column No. 25 shows that Hymen intact. No injuries on vagina or fourchtte. 8. PW-6 Pandurang Chavan has acted as the panch for the spot panchnama. He has been declared hostile by the prosecution. 9. PW-7 Dr. Pratibha Patil was working as the medical officer at Civil Hospital Nashik. She had examined the victim on 13.3.2007. During the course of her examination, she had observed:- "(1) Abrasion of size 0.5 x 0.5 cms. over left nostril and (2) abrasion of size 0.5 x 0.5 cms. underneath upper lip." The history was narrated by the victim as well as her mother. She ha proved the contents of the first part of Exhibit 19. During the course of her examination, she had observed:- "(1) Abrasion of size 0.5 x 0.5 cms. over left nostril and (2) abrasion of size 0.5 x 0.5 cms. underneath upper lip." The history was narrated by the victim as well as her mother. She ha proved the contents of the first part of Exhibit 19. She has admitted in the cross-examination, that she had not identified thumb impressions of the victim and her mother. She had not mentioned the marks of identification of the victim. She has opined that the said injuries in column No. 13 could be possible by a fall. 10. PW-8 Nanasaheb Ahirrao is the Investigating Officer. He has deposed before the Court that on 13.3.2007, Kalubai had come to the police station and her complaint was recorded as per her say. He has proved the report at Exhibit 13. He has deposed that the minor girl of the complainant had accompanied her. He had recorded the statement of the victim girl in the police station and then referred the victim to the Civil Hospital. He has stated before the Court the steps taken by him in the course of investigation. In the cross-examination, he has admitted that at the time when the complainant had come to the police station to lodge the report, the lady ASI Salve was present. However, he had recorded the statement of the complainant. He has denied the suggestion that he had not carried out the steps in the investigation. The defence has failed to make a dent in the deposition of PW-8. 11. The learned counsel appearing for the appellant submits that the medical evidence does not corroborate the allegations levelled against the accused. According to the learned counsel, the hymen was intact and therefore it cannot be said that the accused has ravished the victim girl. He has stressfully submitted that the medical opinion is that the victim could have sustained the said injuries in case of a fall. The opinion is, at the most, an expert opinion. However, the superficial abrasions on the said sensitive parts cannot be overlooked. This is a case of direct evidence. The accused has failed to shatter the witnesses in the cross-examination. The substantive evidence of the victim as well as the complainant inspire confidence of the Court. The element of truthfulness is at large. However, the superficial abrasions on the said sensitive parts cannot be overlooked. This is a case of direct evidence. The accused has failed to shatter the witnesses in the cross-examination. The substantive evidence of the victim as well as the complainant inspire confidence of the Court. The element of truthfulness is at large. There was no reason for the complainant to expose her minor daughter to social obloquy and falsely implicate the accused in a ghastly case. 12. Although it is true that the accused had in fact not committed rape as stated in Section 376 in the sense that he did not have sexual intercourse with the victim as contemplated by Explanation to Section 375 of IPC. It is apparent that an attempt had been made by the accused. The said attempt has left a scar on the victim which cannot be healed throughout her life. At a tender age, she was exposed to physical obloquy which would tarnish her womanhood and hence the accused does not deserve to be acquitted only because there is no sign of actual penetration 13. Section 511 of IPC reads thus:- "511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment - Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description proved for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both." In the present case, the evidence is sufficient to hold that an attempt was made to ravish the child. The accused was charged and convicted for the offence punishable under Section 376(2)(f) of IPC which contemplates a punishment of R.I. for a term which shall not be less then 10 years, but which may be for life and was also be liable to fine. The victim was less than 12 years and hence the accused would be liable to be sentenced for life. 14. The victim was less than 12 years and hence the accused would be liable to be sentenced for life. 14. Taking into consideration the age of the accused at the time of incident and that he had brought the victim girl back to her house without abandoning her after the attempt had failed, this Court is inclined to convict the appellant for the offence punishable under Section 376(2)(f) read with Section 511 of IPC and holds that the sentence awarded to the appellant needs to be modified. The appellant has undergone the sentence for the offence punishable under Section 323 of IPC. His conviction and sentence for the offence punishable under Section 323 of IPC is maintained. Hence, the Appeal stands dismissed. However, the sentence awarded is modified as follows:- "(i) Appellant herein is convicted for the offence punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code. He is sentenced to seven years of rigorous imprisonment. (ii) Sentence of fine is maintained." Appeal stands disposed of.