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2016 DIGILAW 240 (BOM)

Yogiraj s/o Pralhad Ghule v. State of Maharashtra

2016-02-04

A.B.CHAUDHARI

body2016
JUDGMENT : A.B. Chaudhari, J. Being aggrieved by the judgment and order dated 3rd July 1999 passed by learned Addl. Sessions Judge, Washim in Sessions Trial No. 89/1998 sentencing the appellant to suffer R.I. for seven years and to pay a fine of Rs. 1,000/-, in default R.I. for six months, the present Appeal was filed in this Court. 2. In support of the Appeal Shri A.D. Girdekar, learned counsel for the appellant vehemently argued that the conviction recorded by the learned trial Judge for offence punishable under Section 376 IPC, is perverse since the medical evidence does not at all support the prosecution case. It was risky to convict the appellant for the offence of rape, looking to the age of the appellant and the prosecutrix, having the age of six years. He then submitted that the evidence of the prosecutrix is untrustworthy and should have been discarded by the trial Judge. At any rate, there could be no conviction of the appellant, much less under section 376 IPC. In the alternative, he submitted that the appellant has already undergone sentence of three months and two days and in view of the fact that the appellant has a family with children to maintain, he should be let off on the period of imprisonment already undergone by him. Lastly, the learned counsel left it to the discretion of this Court about the deposit of increased fine amount, if any. 3. Per contra, Ms. Ritu Kalia, learned APP supported the impugned judgment and order and submitted that the sole testimony of the prosecutrix stands unshattered in the cross-examination which is crystal clear from reading of the cross-examination. In fact, according to her, there is no cross-examination at all on the material evidence and that evidence has gone unchallenged and, therefore, no fault can be found with the conviction which was recorded on the basis of sole testimony. She, therefore, prayed for dismissal of the Appeal. 4. I have heard learned counsel for the rival parties. I have perused the impugned judgment and order minutely, recorded by the learned trial Judge convicting the appellant under section 376 IPC. I have gone through the evidence of the prosecution witnesses, including the prosecutrix PW 2. The age of the prosecutrix on the date of recording of evidence, is eight years. She described the incident in paragraph no.1 of the examination-in-chief as under : "1. I have gone through the evidence of the prosecution witnesses, including the prosecutrix PW 2. The age of the prosecutrix on the date of recording of evidence, is eight years. She described the incident in paragraph no.1 of the examination-in-chief as under : "1. In the last year I was studying in 2nd standard. I know the accused Yogiraj. At about 2.p.m. I had been to my house from my school to take meals. After taking meal, I was playing outside the house. The accused Yogiraj came there and he had lifted me and carried me to his house and laid me on the 'Palang' (cot). The accused had removed his clothes and removed my nicker and committed sexual intercourse with me. I was weeping. There the grandmother of accused came. Then his sister came there. Then I had proceeded to my school. On that day my parents had been to the field. At about 4 p.m. I returned back from the school to my home. My parents returned back to home in evening. Then, I had narrated the incident to my parents. I was directed for medical examination." 5. I have perused the cross-examination of this witness and as rightly contended by the learned APP, the cross-examination is not worth even the paper on which it is written. The entire material portion regarding the incident proper, has gone unchallenged. The question, however, is whether the Court should mechanically accept the testimony of the sole witness, namely, prosecutrix of the age of 6 years, merely because there is a failure on the part of the defence in making the effective and proper cross-examination to her. At Exh.17, there is a medical examination report of this girl of six years of age who was said to have been raped by the appellant, aged 19 years. I quote the relevant Exh. 17- medical report which reads thus; "No any injury all over the body externally illegible. No any stain. Local examination – No any illegible over the private parts illegible vagina. 1. No definite opinion about the rape can be x illegible x 2. Not eligible for sexual intercourse. 3. NAD 4. Blood sample taken. 5. Adv. X-ray Elbow Jt./Wrist Jt. Illegible. .... Secondary sexual character are not developed. .... No public hair over vagina illegible. No any injury over the vagina. Hymen Intact. No any stain. 1. No definite opinion about the rape can be x illegible x 2. Not eligible for sexual intercourse. 3. NAD 4. Blood sample taken. 5. Adv. X-ray Elbow Jt./Wrist Jt. Illegible. .... Secondary sexual character are not developed. .... No public hair over vagina illegible. No any injury over the vagina. Hymen Intact. No any stain. No definite opinion about the Rape can be given." (Page no. 30 of the paper book) 6. From the perusal of the above medical report produced by the prosecution, it is clear that the entire body of the prosecutrix was not having any external or internal injuries anywhere. No stain was found on any part of her body or her private part. No definite opinion about rape could be given. No injury over the private part or hymen or vagina was found. This evidence, in turn, shows absolute negation of the theory of rape of a girl, aged six years, by a person of 19 years old. There is no other evidence produced by the prosecution affirmatively to prove the sexual intercourse/penetration or any of the ingredients of Section 375 of the IPC. The clothes of the appellant/accused were also seized and he was also medically examined but then the perusal of the medical evidence in relation to the accused, again, demonstrates the same story, namely, absence of even the remotest evidence about the act of sexual intercourse. In the wake of the above medical evidence, though the evidence of prosecutrix that she was raped by the appellant/accused, has gone unchallenged in the cross-examination, I think, this Court should not mechanically, nay in a pedantic way, act on that evidence and record the conviction of the appellant for the offence of rape. After all there is a duty cast on the Court to scan the evidence according to law and not to record the moral conviction. What is required is legal evidence. I find that the learned trial Judge recorded moral conviction for the offence under section 376 IPC. 7. There is one more angle about the evidence of PW 2 - prosecutrix, aged about 6 years, as to why the same cannot be relied upon to convict the appellant. The reason is that she is a child witness, aged about 6 to 8 years. 7. There is one more angle about the evidence of PW 2 - prosecutrix, aged about 6 years, as to why the same cannot be relied upon to convict the appellant. The reason is that she is a child witness, aged about 6 to 8 years. As to the appreciation of the evidence of child witness, this court in the case of Baban Bakkayya Attre Vs. State of Maharashtra, 2001 (4) Mh.L.J. 404 held in paragraph no.13 as under :- "13. A child witness is certainly a competent witness to depose before the Court. The Court would be justified in convicting an accused on the basis of the evidence of a child witness. If the court finds that the child witness has the capacity of understanding and gives truthful answers, a conviction could be based on the evidence of such child witness. The rule of prudence, now, ripped into rule of law, is to seek corroboration to the evidence of child witness before the evidence of child witness is made a foundation for conviction. It is to be always remembered that a child witness is susceptible to being tutored. Because of tutoring, the child witness is so much impressed that he begins to believe that what is tutored to him is the truth. The court has, therefore, to be extremely cautious while accepting the evidence of the child witness." 8. The Courts have repeatedly held that the evidence of the child witnesses should be carefully scrutinised as there is likelihood of the child witnesses being tutored prone to depose in the court in a particular manner. But then there is a duty cast on the Courts to evaluate and assess the evidence of the child witnesses, that too in juxtaposition with the other evidence, even if the evidence of prosecutrix has not been challenged in the cross-examination in a proper manner. As such, for the reasons given above, the appellant cannot be held guilty of offence of rape by relying on the sole testimony of the prosecutrix, aged about six years. Hence, I am of the opinion that the prosecution utterly failed to prove the offence under section 376 IPC against the appellant and he must be acquitted of the said charge. 9. The next question is as to what offence the appellant did commit, based on the evidence of the prosecutrix which, as earlier stated, has gone unchallenged. Hence, I am of the opinion that the prosecution utterly failed to prove the offence under section 376 IPC against the appellant and he must be acquitted of the said charge. 9. The next question is as to what offence the appellant did commit, based on the evidence of the prosecutrix which, as earlier stated, has gone unchallenged. From the above evidence of the prosecutrix, it is clear that the appellant had outraged her modesty. The assault made by the appellant on the girl-child as is clear from the above evidence, clearly proves that he committed the offence punishable under section 354 IPC. The incident relates to the year 1998, that is obviously prior to the amendment made by the Parliament, which is effective from 3rd February 2013. Therefore, the Court gets discretion to alter or modify the sentence having found the appellant guilty for offence under section 354 IPC. The appellant has already undergone imprisonment of 3 months and 2 days. Since the incident is of the year 1998 and the appellant is said to be a married person with children to look after, I do not think, at this stage, he should be pushed into jail. But then appellant cannot be let off so easily. The appellant will have to pay a substantial amount towards fine, for not being again sent to Jail. Learned counsel for the appellant states that he is a poor agriculture labourer. Be that at it may, in my opinion, the appellant should be asked to deposit an amount of Rs. 25,000/- (rupees twenty five thousand) as fine, to be forfeited to the Government, upon its deposit. In that view of the matter I make the following order :- ORDER : a. Criminal Appeal No. 205/1999 is partly allowed. b. The judgment and order dated 3.7.1999 in Sessions Case No.89/98 passed by learned Additional Sessions judge, Washim, convicting and sentencing the appellant for offence punishable under section 376 IPC, is set aside and the appellant is acquitted of the charge with which he was charged. c. The appellant is convicted for offence punishable under section 354 IPC and sentenced to suffer imprisonment for the period which he has already undergone. d. The appellant shall pay a fine in the sum of Rs. 25,000/- (rupees twenty five thousand) to be deposited before the trial Court within a period of one year from today. c. The appellant is convicted for offence punishable under section 354 IPC and sentenced to suffer imprisonment for the period which he has already undergone. d. The appellant shall pay a fine in the sum of Rs. 25,000/- (rupees twenty five thousand) to be deposited before the trial Court within a period of one year from today. In default, the appellant shall undergo R.I. for one year. e. Bail bonds of the appellant shall stand cancelled.