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2015 DIGILAW 953 (BOM)

Sunil Somnath Suryawanshi v. State of Maharashtra

2015-04-09

MRIDULA BHATKAR

body2015
Judgment :- 1. The appeal is directed against the judgment and order of conviction dated 18.3.2010 passed by the learned District Judge 2 & Additional Sessions Judge, Baramati in Sessions Case No.2 of 2009, thereby convicting the appellants for the offences punishable under section 376 (2) (g) of the Indian Penal Code. The appellants were sentenced to undergo R.I. for 10 years and to pay fine of Rs.50,000/-, i/d to suffer R.I. for six months. Criminal Application No.31 of 2015 is received through jail from the applicant Sunil Somnath Suryawanshi, original accused No.1, on 8.12.2014, praying that he has not preferred the appeal due to his poor financial condition and he has served the sentence and, therefore, the applicant has no income to pay the fine amount of Rs.50,000/-. It is impossible for him to pay the huge amount and, therefore, the fine amount be reduced to enable him to pay from his wages earned by him in prison. He has made the application that the appeal be admitted, heard and concluded only against the huge fine amount of Rs.50,000/- and waive off or remit the fine considering the bad financial condition. He has also prayed that an advocate from legal aid is to be given. 2. Pursuant to the said application, the present appeal alongwith the criminal application are taken up for hearing together and decided finally. It is to be noted that this appeal is filed on behalf of both the applicants. In fact, it is filed on behalf of both the applicants/accused by the learned Counsel appearing for them. 3. It is the case of the prosecution that on 21.7.2008, the prosecutrix attended her work at Sonawane Mala and then while returning alone at around 6.30 pm from Sonawale Mala to Navale Mala, at around 6.30 pm, she was caught by the applicants/accused. They pulled her in a sugarcane crop field. They removed her clothes and both the accused raped her one after the other repeatedly. At the time of rape, they were smoking and also igniting matchstick to threaten her. Though she resisted, it was not possible for her to run away from them at that time. The incident was going on nearly for 1 hours to 2 hours. It was late night at 8 pm to 8.30 pm, so her husband and family members came there in search of her. Though she resisted, it was not possible for her to run away from them at that time. The incident was going on nearly for 1 hours to 2 hours. It was late night at 8 pm to 8.30 pm, so her husband and family members came there in search of her. Her husband was calling her loudly. In response, she also shouted. One of the accused persons went to take the motor cycle and in between she could manage to escape out of the sugarcane crop towards her husband and the accused could not get chance to take away their motor cycle and so they ran away. The prosecutrix narrated the incident to her husband and the family members. They took her to the nearby hospital of Dr. Manisha Sunil Jagtap on that night. It being a medico legal case, the doctor referred her to Sassoon hospital, Pune. She was examined and treated there. On the next day, she approached the police and the offence was registered at C.R. No.139 of 2008 at Yavat police station, Pune (Rural) on 22.7.2008. The police thereafter carried out spot panchanama at exhibit 21. They found one motor cycle; they seized the same during the course of the investigation, they found a bag alongwith the motor cycle and the said motor cycle was stolen. On the basis of that clue, the police could nab the applicants. They were taken in custody. Test identification parade was carried out and the prosecutrix identified both the accused in the test identification parade. After completion of the investigation, the police filed chargesheet in the Court of the learned Magistrate. The case was committed to the Court of Sessions. The Court framed charges under section 376 (2) (g) of the Indian Penal Code. The accused pleaded not guilty and the trial was conducted. It concluded in the conviction and hence, this Appeal. 4. The learned Counsel for the applicants/accused has submitted that the applicants/accused are innocent. They have not committed the crime. The learned trial judge has not properly appreciated the evidence. The applicants/accused were not arrested immediately but they were traced after 3 to 4 days. He argued that it was the month of July and in villages during the rainy season, it is dark at around 6.30 pm to 7 pm. Their identification by the prosecutrix is doubtful. The learned trial judge has not properly appreciated the evidence. The applicants/accused were not arrested immediately but they were traced after 3 to 4 days. He argued that it was the month of July and in villages during the rainy season, it is dark at around 6.30 pm to 7 pm. Their identification by the prosecutrix is doubtful. The learned Counsel also submitted that the evidence of the prosecutrix is full of material omissions especially on the act itself and considering this, they are significant omissions and on that point, her evidence is not fully believable. Alternatively, he argued that the application moved by one of the accused in respect of reduction of fine also to be considered on the ground of his poor financial condition. 5. The learned Prosecutor submitted that the case against the appellants is foolproof as the survivor has stated about the incident with all details and has also identified the accused in the test identification parade. He relied on the evidence of PW10 Dr. Manisha S. Jagtap and the medical certificate issued by her on 5.9.2008. He also relied on the evidence of PW11 Dr. S.S. Ganpatrao and exhibit 40 – the medical case papers. He argued that it was possible for the prosecutrix to see faces of the appellants as they were smoking and igniting the matchsticks. The applicants were arrested by the police within 3 – 4 days as the police got clue on the basis of the motor cycle. He submitted that the survivor was 3 months pregnant and gang raped. He supported the judgment of the trial Court. 6. The victim is a star witness in the case of rape. The prosecutrix has given a consistent and detailed evidence on the point of how and when and where the offence had taken place. The submissions of the learned Defence Counsel that in the cross-examination, on the point of actual act, many significant omissions are brought on record and therefore, her evidence is not believable, are not acceptable. To find out whether they are significant omissions or not, the FIR is perused. The omissions are in respect of the details of the act of the sexual intercourse. In the FIR, such details are not mentioned. She has only mentioned that both the appellants had raped her twice, in a period of nearly 2 hours. To find out whether they are significant omissions or not, the FIR is perused. The omissions are in respect of the details of the act of the sexual intercourse. In the FIR, such details are not mentioned. She has only mentioned that both the appellants had raped her twice, in a period of nearly 2 hours. She has described the act of sexual intercourse in her evidence before the Court. 7. It is necessary for the Judge to understand what victim wants to convey by uttering the word 'rape'. Is it that what is contemplated under section 375 or not is required is to be ascertained by the trial Court at the time of recording of the evidence. Sometimes for outraging modesty or sexual assault under section 354, the word 'balatkar' is used. Especially, when a minor girl states that she was raped, then, what she means is to be ascertained by the Court. Police personnel who is recording the FIR may not enquire accordingly and may not record it. It is to be noted that at the time of giving the FIR in the present case, the scribe was not a female. It was recorded by a male police Hawaldar. It is natural that a woman may not give such details to a male though he is holding a position as a member of the investigating team. A survivor experiences mixed feeling of deep humiliation, embarrassment and shame with shyness. Therefore, even though the details of the actual act of sexual intercourse are not mentioned in the FIR and though they are brought in the cross-examination by way of omissions, when stated in the Chief, considering the facts and circumstances of such cases, those omissions are not to be considered as significant omissions. The details are given in the Court because a survivor trusts the authority of the Court. She hopes that she will not be ridiculed, she would be believed and will get justice at the hands of a Judge and, therefore, when she is taken in confidence by the Prosecutor, she may give details of the act of the intercourse. In the Court, the statement is given on oath in a very different atmosphere. She hopes that she will not be ridiculed, she would be believed and will get justice at the hands of a Judge and, therefore, when she is taken in confidence by the Prosecutor, she may give details of the act of the intercourse. In the Court, the statement is given on oath in a very different atmosphere. Further, a case may differ when a married woman or a woman from educational working class states that she has been raped, then it is presumed that she knows a meaning of the word and she utters the word with full understanding of its connotation. 8. The victim has stated that the accused were igniting matchsticks to threaten her and were smoking beedis. The prosecutrix can identify her rapists and these two persons were with her for more than 1 hours. Thus, though it was late evening and early night, there was full opportunity and visibility to the prosecutrix to see their faces. The evidence of test identification parade is rendered by the prosecution to prove the identification. 9. The prosecution has relied on the evidence of two medical officers and the medical certificates issued by them and her medical case papers in the Sassoon hospital. The evidence of PW10 Manisha Jagtap is very important. She was the first Doctor, who examined her clinically at 10.30 pm on 21.7.2008 i.e., immediately about 2 hours after the incident of rape. She found the marks and scratches on her neck, over the face and at thighs, her clothes were stained with mud. She was fully conscious. On genital examination, she found that she had marks of vulval oedema and presence of semen on perennial region. She has opined that she was subjected to sexual intercourse recently. She certified and then referred the case being a medico legal case immediately to Sassoon hospital. The applicant was produced before Dr. Neha, who prepared her medical case papers. The medical case papers were produced by Dr. Shivanand Sakhare and the medical papers (exhibit 39) corroborated the evidence of PW10. Thus, the medical evidence corroborated the evidence of the prosecutrix on all counts especially the force was used and she resisted the act. On the point of tracing, in the evidence of Rajendra Mohite (PW13), the Investigating Officer, it is stated the appellants have committed theft of motor cycle as the owner was different. Thus, the medical evidence corroborated the evidence of the prosecutrix on all counts especially the force was used and she resisted the act. On the point of tracing, in the evidence of Rajendra Mohite (PW13), the Investigating Officer, it is stated the appellants have committed theft of motor cycle as the owner was different. So a separate offence is registered against them. In the seizure panchanama of the vehicle, they found one bag alongwith some instruments which are used by thieves engaged in the theft of sandalwood and they concentrated their investigation in Shrigonda area and on the basis of the description of the accused, they could reach upto the accused and arrested them on 24.7.2008. At that time, they found one motor cycle and they were arrested under panchanama, exhibit 45. Then, test identification parade was carried out. At the time of spot panchanama, a beedi bundle, match box and one nicker, pair of chappals were found. These articles support the case of the prosecution. Thus, it is a foolproof case and the learned trial Judge has rightly held the accused guilty and convicted them under section 376(2)(g) of the Indian Penal Code. 10. As regards the prayer of the applicant/accused No.1 that his fine be reduced as he is poor, it is necessary to highlight the condition of the prosecutrix. At the time of the rape, she was a young woman of 20 years who had married one year back and she was having pregnancy of 3 months. It was a gang rape. The appellants had repeatedly raped her nearly for 1 hours. In view of this, I am not inclined to consider the application for reduction in the amount of fine or show leniency. The application is therefore rejected. 11. In these circumstances of the case, the impugned judgment and order is maintained. The sentence is confirmed. Appeal is dismissed.