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2018 DIGILAW 310 (BOM)

Dnyaneshwar v. State of Maharashtra

2018-02-01

ROHIT B.DEO

body2018
JUDGMENT : 1. The appellant-accused is aggrieved by the judgment and order dated 09.10.2013 rendered by the Sessions Judge, Yavatmal in Sessions Case 136/2012, by and under which, the appellant-accused is convicted for offence punishable under Section 376 of the Indian Penal Code ('IPC' for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.500/-. 2. Heard Shri Amit Band, the learned counsel for the appellant and Shri V.P. Maldhure, the learned Additional Public Prosecutor for the respondent-State. 3. The genesis of the prosecution lies in the oral report dated 17.07.2012 lodged by the prosecutrix (P.W.1) at Police Station Parwa, District Yavatmal. The gist of the report lodged by the prosecutrix, who was then aged 15 years, is that between 05:30 to 06:00 p.m. on the day of the incident she went to the grocery shop of one Rajesh Dabbawar to purchase cell for watch. The wife of the shop owner Smt. Kalpana informed the prosecutrix that watch cells were not available in the shop. The prosecutrix was returning to her residence uttering that the cells are not available and from which shop could she purchase the cell. The accused, who was sitting in front of his house heard the uttering of the prosecutrix and told her that the prosecutrix is free to collect the cell from his residence. The prosecutrix approached the residence of the accused, she was pushed inside the house, the accused removed her clothes and gagged her when she attempted to raise an alarm. The accused threatened the prosecutrix with physical harm, made her lie on the cot, undressed and slept over the person of the prosecutrix and inserted his male organ in the vagina. After she was subjected to sexual intercourse the prosecutrix wore her clothes, and when the accused opened the door of the house, she started running towards her house. The accused followed her and obstructed her from proceeding towards the house. The prosecutrix turned back and ran towards the agricultural field of Avinash Vithalkar. She met Akshay Meshram, who held her since while running the jaws of the prosecutrix was locked. Akshay Meshram took the prosecutrix near the canal and offered her water. Akshay Meshram, Mangesh Madavi and Sanjay Meshram escorted the prosecutrix to her house. She disclosed the incident to her parents and lodged the report. 4. She met Akshay Meshram, who held her since while running the jaws of the prosecutrix was locked. Akshay Meshram took the prosecutrix near the canal and offered her water. Akshay Meshram, Mangesh Madavi and Sanjay Meshram escorted the prosecutrix to her house. She disclosed the incident to her parents and lodged the report. 4. The prosecutrix was referred to Civil Hospital, Yavatmal for medical examination, during the investigation spot panchnama was recorded one wakal (mattress) was seized from the residence of the accused, and upon completion of the investigation charge-sheet was submitted in the court of Judicial Magistrate First Class, Ghatanji who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh.11) for offence punishable under Section 376 and 506 of IPC. The accused abjured guilt and claimed to be tried. The defence of the accused is of total denial and false implication. The trend and tenor of cross-examination would suggest that the defence is that the prosecutrix and Akshay Meshram were in relationship and used to meet at the residence of the accused. One Sanghpal saw the prosecutrix and Akshay at the residence of the accused and only in order to avoid a scandal the prosecutrix in collusion with Akshay Meshram falsely implicated the accused. 5. The age of the prosecutrix is not in serious dispute. P.W.8 Vilas Chitram the Head Master of Primary School of Kopri Kapsi, in which school the prosecutrix was admitted in the 1st standard, has proved the school record Exh.45 and 46 which record the date of birth as 04.10.1996. 6. P.W.5 Dr. Atul Padmawar Medical Officer has deposed that on clinical examination the age of the prosecutrix was, in his opinion, 15 years. 7. In any event, it is not suggested by the defence that the sexual intercourse, if any, was consensual and the age of the prosecutrix is of scant significance. 8] Before I consider the evidence of the prosecutrix P.W.1, it would be apposite to analyze the medical evidence on record. P.W.5 Dr. Atul Padmawar, who medically examined the prosecutrix has deposed that the history narrated by the prosecutrix as is recorded in the medical paper is of forcible sexual intercourse. The day on which the medical examination was conducted was the first day of the menstrual cycle. P.W.5 has deposed that he noticed injury on the upper lip (upper lip edema). Atul Padmawar, who medically examined the prosecutrix has deposed that the history narrated by the prosecutrix as is recorded in the medical paper is of forcible sexual intercourse. The day on which the medical examination was conducted was the first day of the menstrual cycle. P.W.5 has deposed that he noticed injury on the upper lip (upper lip edema). The hymen admitted one finger, which would mean, in the opinion of P.W.5, that the hymen was torn. P.W.5 has deposed that since the prosecutrix was examined on the first day of menstruation, definite opinion regarding injury or sexual assault cannot be given. However, edema on upper lip is evidence of force and violence, is the deposition. P.W.5 has proved medical examination report Exh.37. There is no serious challenge to the testimony of the Medical Officer, in the cross-examination. The only suggestion given is that if a grown up person commits forcible intercourse with a woman aged 15 years, there may be swelling or tenderness in labia majora and minora. 9. The prosecutrix is not an accomplice. The court is not obligated to search for corroboration if the testimony of the prosecutrix is reliable and confidence inspiring. Corroboration, if at all, may be sought in the medical evidence. However, absence of injury or absence of semen or even of tear to hymen, is not decisive. The offence of rape is established, even if slightest penetration in the vulva is established. Hymen, may or may not be, torn. The slightest penetration, with or without discharge of semen, would constitute rape. The pivotal issue which needs consideration from the court is whether the testimony of the prosecutrix is implicitly reliable and confidence inspiring. If the testimony is credit worthy, to insist on corroboration would be an insult to woman hood. 10. The prosecutrix (P.W.1) has lodged the report with promptitude. The testimony of P.W.1 is consistent with the contents of the First Information Report. The defence of false implication, is not probabilized even on the touchstone of preponderance of probabilities. Assuming, that the prosecutrix and Akshay Meshram (P.W.3) used to meet in the residence of the accused and were seen by one Sanghpal, why would be the prosecutrix falsely implicate the accused, is a question which cannot be answered in favour of the accused, by any stretch of imagination. Assuming, that the prosecutrix and Akshay Meshram (P.W.3) used to meet in the residence of the accused and were seen by one Sanghpal, why would be the prosecutrix falsely implicate the accused, is a question which cannot be answered in favour of the accused, by any stretch of imagination. The suggestion and insinuation of the defence that the prosecutrix cried foul to avoid dishonour, is inexplicable. Au contraire, by lodging a report that she was subjected to forcible sexual intercourse by the accused, the prosecutrix boldly and undeterred by the unfortunate and deplorable reality of the non-permissive Indian society of considering rape as a stigma, displayed fortitude and willingness to stoically bear the burden of the stigma in her future life. 11. The medical evidence corroborates the testimony of the prosecutrix. Shri Amit Band, the learned counsel for the appellant submits that a woman cannot be raped during menstrual period. In support of the said submission, the learned counsel has placed on record an article by a law student who has recently graduated. Shri Amit Band, the learned counsel ought to have been conscious of the fact that the hearing of the appeal in the High Court is not a moot court or mock court competition in a law school. Relying on an article written by a law graduate, without making any effort to bring to the notice of the court the authorities referred to in the article, does not do justice to the learned profession of law nor to the justice dispensation system. Penning the afore made observations was indeed a painful duty, but then, the performance of the painful duty was necessary lest the sanctity of the proceedings in court is dented and the stakeholders in the justice dispensation system lose confidence in the assistance rendered by the officers of the court to the Judges. The submission that menstruating woman cannot be subjected to rape, is noted only for rejection. Menstruation may create some difficulty in collecting forensic medical evidence. However, the submission that a menstruating woman cannot be rape dangerously borders on the absurd. The learned counsel was also oblivious of the fact that the incident occurred on 17.07.2012 while the medical examination was conducted the next day which in the opinion of the Doctor was the first day of the menstruation cycle. 12. However, the submission that a menstruating woman cannot be rape dangerously borders on the absurd. The learned counsel was also oblivious of the fact that the incident occurred on 17.07.2012 while the medical examination was conducted the next day which in the opinion of the Doctor was the first day of the menstruation cycle. 12. The probative value of the testimony of the prosecutrix, which is implicitly reliable and credit worthy is not diluted or dented by inconsistencies between the version of the prosecutrix and the version of Akshay Meshram (P.W.3). The testimony of P.W.3 Akshay Meshram that the prosecutrix was running towards the well and was saying that she would end her life, is not spoken of by the prosecutrix herself. However, the evidence of P.W.3 Akshay Meshram corroborates the testimony of the prosecutrix to the extent that the incident is narrated by the prosecutrix to her family members in presence of P.W.3 Akshay Meshram. The submission of the learned counsel for the accused that the failure of the prosecution to examine the parents or sister of the prosecutrix is fatal, cannot be countenanced. The submission militates against the settled position of law that conviction can rest even on the uncorroborated testimony of the prosecutrix. 13. The conscious of this court is satisfied that the evidence of the prosecutrix is confidence inspiring. The judgment and order impugned is unexceptionable. 14. The appeal is sans merit and is rejected. 15. The Parwa Police Station, District Yavatmal is directed to take the accused in custody forthwith and to submit a compliance report in the Registry of this court within ten days from today.