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2018 DIGILAW 442 (BOM)

Rajesh v. State of Maharashtra, through P. S. O.

2018-02-14

ROHIT B.DEO

body2018
JUDGMENT : 1. Exception is taken to the judgment and order dated 05122002 rendered by the learned 6th Ad hoc Assistant Sessions Judge, Nagpur in Sessions Trial 62/2002, by and under which the appellant-accused is convicted for offence punishable under Section of the Indian Penal Code (“IPC” for short) and is sentenced to suffer rigorous imprisonment for six months and is further convicted for offence punishable under Section 376(2)(f) of the IPC and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/-. 2. The child victim, then aged 8 years, was residing at Panchnal Square, Imambada with her maternal aunt Yashodhara Bhagwat since her birth. The father of the child victim Panjabrao Gajbhiye is no more and her mother Gautamabai was residing at Ambika Nagar, Manewada. The genesis of the prosecution lies in oral report dated 24-5-2001 lodged at Imambada Police Station, Nagpur by Sau. Yashodharabai (P.W.1). The gist of the said report (Exhibit 15) is that at 1000 p.m. or thereabout on 24-5-2001, a neighbour Pratiksha Waghmare (P.W.3) disclosed, that two days ago between 100 p.m. and 300 p.m. when the child victim was playing in the courtyard, the accused who resided in the neighbourhood took the child victim to his house, he closed the door and removed the knicker worn by the child victim, made the child victim to sleep on the cot, undressed and forcibly inserted his penis in the vagina. The child victim disclosed to Pratiksha Waghmare (P.W.3), that she was experiencing pain in vagina and when the accused committed sexual intercourse, due to some sticky substance emitted from the penis, she experienced “sticky feeling”. P.W.3 Pratiksha Waghmare told the informant that the child victim did not disclose the incident to the informant since she feared that her aunt (P.W.1) and uncle would beat her. The informant made enquiries with the child victim, who though frightened narrated the entire incident, the informant conveyed the same to her husband. The informant also narrated the incident to the mother of the child victim. The informant took the child victim to a private hospital for medical examination. Dr. Padole opined that the child victim has suffered a slight vaginal tear at the lower portion and that she was subjected to sexual intercourse. 3. The informant also narrated the incident to the mother of the child victim. The informant took the child victim to a private hospital for medical examination. Dr. Padole opined that the child victim has suffered a slight vaginal tear at the lower portion and that she was subjected to sexual intercourse. 3. The oral report was reduced to writing and the printed first information report is Exhibit 16 on the record of the trial Court. On the basis of the said report, offence punishable under Sections 341, 342 and 376(2)(f) of the IPC was registered against the accused. The child victim was referred to the Government Medical College Hospital, Nagpur for medical examination. The clothes of the child victim and the accused were seized. The accused was also medically examined. The culmination of investigation led to submission of the charge sheet in the Court of Judicial Magistrate First Class (Corporation Court 1), Nagpur who committed the proceeding to the Sessions Court. 4. The learned Sessions Judge framed charge (Exhibit 7) under Sections 342 and 376(2)(f) of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence is of total denial. The further defence is of false implication. According to the accused, he was working with the maternal uncle of child victim. Initially, he was paid regularly, however, later on the maternal uncle of the child victim defaulted in making payment of the wages of the accused and was threatened by the maternal uncle of the child victim of false implication. 5. The child victim (P.W.2), who was aged 9 years when the evidence was recorded, has deposed that she was studying in the 3rd Standard and on the day of the incident was playing in the courtyard of her maternal aunt. The accused held her hands and took her to his house. The accused put bed sheet on the cot, removed his knicker and the knicker worn by the child victim and inserted his male organ in her private part. The child victim shouted, the accused pressed her mouth and threatened to beat her if the incident is disclosed. She did not disclose the incident to her maternal aunt (P.W.1) nurturing a fear that she would be beaten by her maternal aunt and her mother. The child victim shouted, the accused pressed her mouth and threatened to beat her if the incident is disclosed. She did not disclose the incident to her maternal aunt (P.W.1) nurturing a fear that she would be beaten by her maternal aunt and her mother. She disclosed the incident to P.W.3 Pratiksha Waghmare who in turn disclosed the same to her maternal aunt (P.W.1). The child victim was taken to the hospital and then to the police station. The police referred her for medical examination. She has identified the accused present in the Court and the seized clothes which she was wearing on the day of the incident. In the cross-examination, it is elicited that the husband of P.W.1 is a building contractor. The child victim admits that the accused was an employee of the husband of her maternal aunt. She admits that some days before the incident a quarrel took place between the accused and her maternal uncle on the issue of payment of money. She admits that her maternal uncle told the accused not to work with him. She further admits that her maternal uncle threatened the accused that he will file police case against the accused. She admits that at the instance of the maternal uncle, her maternal aunt had lodged report at the police station. The child victim categorically denies the suggestion that the accused did not commit rape on her. The statement in the examination-in-chief that the accused held her hands and took her to his house, is brought on record as an omission. The statement that when the child victim shouted, the accused pressed her mouth and threatened to beat her, is also brought on record as an omission. 6. P.W.1 Yashodhara Bhagwat, who is the informant, has deposed consistently with the first information report. She has deposed that when she enquired from the child victim about the information received from Pratiksha Waghmare, the entire incident was narrated by the child victim. P.W.1 has deposed that she took the child victim to Dr. Padole and then lodged the report (Exhibit 15). She has proved the seizure panchanama (Exhibit 17) while which the clothes worn by the child victim were seized. She has denied the suggestion that a dispute arose between her husband and the accused on the issue of payment of wages. P.W.1 has deposed that she took the child victim to Dr. Padole and then lodged the report (Exhibit 15). She has proved the seizure panchanama (Exhibit 17) while which the clothes worn by the child victim were seized. She has denied the suggestion that a dispute arose between her husband and the accused on the issue of payment of wages. She has denied the suggestion that her husband threatened the accused of false implication, if the accused demanded wages. It is elicited in her cross-examination that the disclosure was made by P.W.3 Pratiksha Waghmare on 25-5-2001 and not on 24-5-2001 as is stated in the report. Few omissions are brought on record visavis the oral report. The omissions, however, do not touch the core and substratum of the report. The oral report though dated 24-5-2001, was lodged on 25-5-2001 at 1000 a.m., as is revealed from the printed first information report (Exhibit 16). 7. P.W.3 Sau. Pratiksha Waghmare has deposed that when she was talking with a lady, the child victim said that she has a husband. P.W.3 asked the child victim who is her husband and the child victim pointed her finger towards the accused who was sitting near the latrine. P.W.3 inspected the private part of the child victim and noticed swelling. The child victim was then taken to the hospital by P.W.1, is the deposition. In the cross-examination, she was given suggestions to elicit that there was a dispute between the accused and the husband of P.W.1 on the issue of payment of wages. P.W.3 has, however, disclaimed any knowledge about such dispute. 8. P.W.4 Dr. Rajesh Gajbhiye, who was then attached with the Government Medical College Hospital, Nagpur as Lecturer in Gynecology, has deposed that when he examined the child victim, the hymen was found torn. In the cross-examination, it is elicited that it is not recorded in the medical certificate (Exhibit 24), who narrated the history of the incident. P.W.4 admits that in case of rape on minor, there should be redness, inflammation or tear of the private parts of the victim. P.W.4 admits that except torn hymen he did not notice any other injury on the private parts of the child victim. P.W.4 admits that he did not mention the age of the tear of hymen in the medical certificate (Exhibit 24). P.W.4 admits that except torn hymen he did not notice any other injury on the private parts of the child victim. P.W.4 admits that he did not mention the age of the tear of hymen in the medical certificate (Exhibit 24). It is elicited that tear of hymen is possible due to various reasons. 9. P.W.5 Bhila Bacchav is the Investigating Officer. It is elicited in the cross-examination that there is overwriting over the dates in printed first information report (Exhibit 16). However, he asserts that the report was lodged on 25-5-2001. The Investigating Officer was asked about the delay in lodging the report and in response he states that enquiries revealed that since the child victim was frightened, she did not disclose the incident to her maternal aunt and her husband and the child victim disclosed the incident to a third person. It is elicited that the statement of the child victim was not filed alongwith chargesheet. The explanation given is that the statement was not filed due to inadvertence. However, he denies the suggestion that he did not record the statement of the child victim. He admits that no date is mentioned on the top of the first page below the signature on the statement of the child victim. This again is attributed to oversight. 10. Shri R.M. Patwardhan, the learned counsel for the accused would submit that in the light of the admissions elicited in the cross-examination of the prosecutrix, it would be extremely unsafe to base the conviction on her testimony. Shri R.M. Patwardhan invites my attention to the following observations of the Apex Court in K. Venkateshwarlu vs. State of Andhra Pradesh, (2012) 8 SCC 73 : “9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.” Shri R.M. Patwardhan also relies on a Division Bench judgment of this Court in the State of Maharashtra Vs. Chatish Arunachalam Das & Ors, 2015 ALL MR (Cri) 2961 and in particular paragraphs 12, 13 and 14 which read thus: “12. P.W.7 is the victim girl Alina. At the time of recording of her testimony she was nine years of age. This child witness has narrated the incident in great detail. This witness in her examination in chief has narrated the various acts committed by the Respondents in her testimony. In her cross examination, this witness has in unequivocal terms admitted that P.W.1 i.e. her grandfather and P.W.6 i.e. her grandmother were instructing her for giving the evidence. She has further admitted that P.W.1 i.e. the grandfather was instructing her as to what is to be stated before the Court and what should not be stated before the Court. She has further admitted that she has stated the names of the 'rapist' before the police. She has further admitted that a quarrel took place between Respondent No.1 and P.W.1 Arunachalam because Respondent No.1 was coming to the house after consuming liquor and Respondent No.1 used to pick up quarrels on some trifle issues. She has further admitted that she has stated the names of the 'rapist' before the police. She has further admitted that a quarrel took place between Respondent No.1 and P.W.1 Arunachalam because Respondent No.1 was coming to the house after consuming liquor and Respondent No.1 used to pick up quarrels on some trifle issues. She has further admitted that P.W.1 i.e. her grandfather was fed up due to the activities of Respondent No.1 and therefore P.W.1 Arunachalam started residing at garage. This witness in paragraph 11 of her evidence has admitted that she was participating in the competition of race and had stood first. She was also participating in the competition of long jump and high jump and was scoring good marks in the long and high jump. 13. It further appears from the record that initial statement of P.W.7 i.e. the victim girl Alina was recorded by police on 30 October 2009. However, the First Information Report is recorded on 3 November 2009. The prosecution has not given any explanation for the delay of four days in recording the First Information Report and it appears to us that the recording of the First Information Report at the instance of P.W.1 Arunachalam which is at Exhibit 18 is an afterthought and filed with malafide intention. 14. The defence has elicited various omissions in her cross examination. What is surprising to note here is that this child witness has stated in her cross examination that she has read the word 'rape' in book and in her earlier part of the testimony she has described the sexual assault as 'galat kaam kiya' as a synonym to the term 'rape'. In view of the admissions given by this witness, in our considered opinion, this child witness was tutored by P.W.1 Arunachalam to give evidence as per his wish before the Court and we find that her evidence is not reliable and trustworthy.” I am respectfully bound by the enunciation of law in said judgments. However, the pivotal issue is, whether the admissions elicited in the cross-examination of the prosecutrix destroy the core and substratum of the testimony. It would also be necessary to analyze the evidence to ascertain whether the testimony of the child witness is uncorroborated. However, the pivotal issue is, whether the admissions elicited in the cross-examination of the prosecutrix destroy the core and substratum of the testimony. It would also be necessary to analyze the evidence to ascertain whether the testimony of the child witness is uncorroborated. The prosecutrix who was aged 9 years when the evidence was recorded, has indeed admitted that some days before the incident a quarrel took place between the accused and her maternal uncle on account of money and that the accused threatened her maternal uncle that money will be recovered. She admits that her maternal uncle threatened the accused that he will file police case against the accused. She admits that at the instance of maternal uncle her maternal aunt had lodged report at the police station. Be it noted, that the prosecutrix emphatically denied the suggestion that she was not taken by the accused to his home. She denies the suggestion that she was not sexually ravished by the accused. The version of the prosecutrix that she disclosed the incident to PW 3 Pratiksha has gone unchallenged. A general suggestion is given that the prosecutrix is deposing falsehood at the instance of her maternal aunt. Having scrutinized the evidence of the prosecutrix with due caution, the conscious of the Court is satisfied that she is not a tutored witness. The evidence of the prosecutrix is corroborated by the evidence of PW 3 Pratiksha to whom the prosecutrix disclosed that she has a husband, and when asked who was her husband, she pointed her finger towards the accused. The evidence is further corroborated by the disclosure made by the prosecutrix to her maternal aunt PW 1 Yashodhara. The medical evidence on record is that the hymen was torn. The absence of any physical injury on the genitalia of the prosecutrix, is not decisive. 11. Shri R.M. Patwardhan would submit that the First Information Report is lodged belatedly. Delay in lodging the First Information Report is not necessarily fatal to the credibility of the prosecution version. The prosecutrix did not disclose the incident to her maternal aunt fearing that she would be scolded or beaten. The incident came to light when she told PW 3 that she has a husband and pointed out towards the accused. It is then, that after PW 3 informed PW 1 Yashodhara and the entire incident was revealed by the prosecutrix. The prosecutrix did not disclose the incident to her maternal aunt fearing that she would be scolded or beaten. The incident came to light when she told PW 3 that she has a husband and pointed out towards the accused. It is then, that after PW 3 informed PW 1 Yashodhara and the entire incident was revealed by the prosecutrix. The two days delay in lodging the report, in the factual matrix, is duly explained. 12. The defence is of false implication. Although it is admitted by the prosecutrix that there was a monitory dispute on the issue of wages between her maternal uncle and the accused, PW 1 Yashodhara has denied the suggestion that there was such dispute between her and husband and accused. Arguendo, even if it is assumed, that there was dispute, it would be rare, if at all, that a 8 to 9 year old child would be used as a tool to wreak vengeance. The dispute was, according to the defence, on the issue of non payment of wages. It is highly improbable that such a relatively trivial issue would persuade the maternal aunt and maternal uncle of the prosecutrix to falsely implicate the accused. In the non permissive Indian society, sexual ravishment is unfortunately a stigma. The relatives of the prosecutrix would be well aware that the ghost of such stigma haunts the girl child through out her life. I am not persuaded to hold that the defence is probabilized even on the touchstone of preponderance of probabilities, particularly since in my view, the evidence of the prosecutrix is confidence inspiring. (i) The appeal is sans merit and is rejected. (ii) The accused is in custody in view of the order dated 30.11.2017. He shall continue to remain in custody to undergo the reminder of the sentence. (iii) The accused shall be entitled to set of under section 428 of the Code of Criminal Procedure. (iv) The bail bond of the accused shall stand cancelled. (v) The appeal is disposed of in the above terms.