1. This Appeal has been directed against the Judgment and Order dated 30th March, 2007 delivered by the 6th Adhoc Additional Sessions Judge, Amravati in Sessions Trial No. 145 of 1999, whereby the learned Judge has convicted the Appellant - Accused (hereinafter be referred to as 'Accused' for the sake of brevity) for the offence punishable under Section 376 read with Section 511 of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5000/- for the offence punishable under Section 376 read with Section 511 of Indian Penal Code, in default of payment of fine amount, sentenced to suffer rigorous imprisonment for six months. Appellant – Accused has further convicted for the offence punishable under Section 324 of Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.1000/-, in default of payment of fine amount, sentenced to suffer rigorous imprisonment for two months. However, the learned Judge has acquitted the Accused of the offence punishable under Section 376(2)(f) of Indian Penal Code.
2. The factual matrix of the case are that :
The victim (PW-1) is a minor girl aged about 7 years. She is daughter of PW-2 Pushpabai Tarale, resident of Bhatkuli, District Amravati. At the time of incident i.e. in the year 1990 victim (PW-1) was residing with her mother and maternal grand-father at Bhatkuli. On the day of incident i.e. on 15th August, 1999 there was a Nagpanchami festival and pooja was performed in the house of grand-father of the victim (PW-1). The Accused along with one Deepak Umbarkar and his wife visited the house of PW-2 Pushpabai on the occasion of Nagpanchami. At about 7.00 p.m. while victim (PW-1) was playing in front of her house, Accused came there in inebriated condition, took the victim (PW-1) to the shop of one Hakim, purchased the packet of Biscuit and handed over it to the victim (PW-1). Thus, he allured her and took her to the place of incident i.e. behind Primari Health Center at Bhatkuli. He removed her knicker and caused biting injuries on her cheek, waist and buttock. Thereafter Accused made her to lie down, he also lied on her person and committed sexual intercourse with her. He also vomited on her person.
3. On hearing cries of the victim (PW-1), one Kishor Chouhan (PW-4) rushed to that place, removed the Accused from the person of victim and slapped him. He also noticed the injuries on the person of victim (PW-1). Kishor Chouhan (PW-4) then took the victim and accused to the house of victim (PW-1) and the incident was narrated by the victim to her mother. After knowing about the incident, PW-2 Pushpabai along with her daughter i.e. victim (PW-1) proceeded to the outpost of Police Station Kholapur and lodged oral report (Exh.42).
4. PW-5 ASI Dilip Deshmukh recorded the complaint of PW-2 Pushpabai and on the basis of it, police registered the offence vide Crime No. 93 of 1999. Accused was arrested on the date of incident itself at 22.35 hours. PW-5 ASI Dilip Deshmukh referred the victim to the Primary Health Center, Bhatkuli for her medical examination. He collected the medical report vide Exhibit-57, visited the place of incident and recorded spot panchanama (Exh.58). He seized the articles lying on the spot, viz – biscuit packet, knicker and one footwear i.e. chappal under seizure panchanama (Exh.59). The clothes of the Accused were also taken charge under seizure panchanama (Exh.61). The statement of the witnesses were recorded, seized articles were sent to the Chemical Analyzer for analysis and after completion of formal investigation, PW-5 ASI Dilip Deshmukh submitted chargesheet in the court of Judicial Magistrate First Class, Amravati. Thereafter the case was committed to the Court of Sessions. The learned Adhoc Additional Sessions Judge, Amravati after recording evidence of the prosecution witnesses and hearing both the sides, convicted the Accused as mentioned above.
5. I have heard Mr. Badar, the learned Counsel for Appellant – Accused and Mr. Chutke, the learned APP for Respondent – State. With their able assistance, I have gone through the record and proceedings of the present case.
6. Mr. Badar, the learned Counsel for Appellant – Accused vehemently argued that learned trial Judge has not assessed the evidence led by the prosecution witnesses in its proper perspective and erroneously convicted the Accused. The learned Counsel further submitted that actually the injuries are caused to the victim, as she had fallen on the pieces of glass which were thrown away by the employees of the Primary Health Center, Bhatkuli and the hospital was adjacent to the place of incident.
7. Per contra, the learned APP contended that the learned trial Judge has properly assessed the evidence led by the prosecution witnesses and has rightly convicted the Accused. It is submitted that knicker of the victim was lying on the place of incident and seized under seizure panchanama (Exh.59) and the injuries on the private part of the victim (PW- 1) clearly indicates that the Accused had attempted to commit rape on her. It is submitted that otherwise there is no reason for knicker lying at the place of incident and injuries on the private part of victim.
8. It is further submitted that even the contention of the victim that the Accused vomited on her person, has been corroborated by the version of PW-2 Pushpabai i.e. mother of the victim. It is submitted that there was no reason for the victim as well as her mother PW-2 Pushpabai to falsely implicate the Accused in the present case, as there was no animosity between them and the Accused.
9. In order to consider the rival contention of both the sides, it would be advantageous to go through the testimony of the prosecution witnesses. The prosecution has examined PW-1 victim, PW-2 Pushpabai i.e. mother of the victim, PW-3 Medical Officer Dr. Kalpana Bhagwat, PW-4 Kishor Chouhan, eye witness and PW-5 ASI Dilip Deshmukh, Investigating Officer.
10. Testimony of PW-1 victim shows that she was residing at village Bhatkuli along with her mother Pushpabai and grand-father. She was studying in 2nd standard. On 15th August, 1999 it was a day of Nagpanchami festival. At about 4.00 p.m. she was playing in front of her house. Accused visited her house along with two male persons and one female for attending the pooja on the occasion of Nagpanchami. Thereafter in the evening the Accused came to her house and said that he would give biscuit to her and took her to the shop of one Hakim. He purchased the biscuit packet from the said shop and handed over the same to her. Thereafter the Accused took her behind the house of one Bhokre which was situated behind the hospital. The Accused threw her on the ground, removed her knicker and inserted his private part into her private part and caused biting injuries to her on cheek, below right eye. He also took a bite of her waist. Thereafter he laid on her person. He then vomited on her person. As the victim PW-1 tried to shout, he pressed her neck.
11. On hearing her shouts, one Kishor Mama rushed to that place and removed the Accused from her person and slapped him. Thereafter she proceeded to her house and narrated the incident to her mother. The Accused was then brought by Kishor Mama to her house. The Accused informed his name in front of others as Vijay. Her knicker, waist string (kardoda) and biscuit packet were lying on the place of incident. The victim was then taken to police station and report was lodged.
12. In the cross-examination of the victim, it was put up to her that after wandering in Bhatkuli the Accused came to her house in inebriated state and her mother, grand-father and other relatives scolded him for the said act. It was further put up to the witness that she was taken to the shop of Hakim by the Accused by holding her hand. It was further suggested that due to the said act of the Accused, shopkeeper Hakim scolded him in her presence and the people gathered over there. It was put to the victim that by holding her hand, the Accused forcibly took her to the shop of Hakim.
13. Surprisingly all the aforesaid suggestions were given to the witness in cross-examination thereby confirming the fact that the Accused has taken the victim to the shop of Hakim, which was situated 2-3 houses from the house of the victim. Thus, confirming the presence of the Accused with the victim while she was taken to the shop of Hakim, corroborates the testimony of the victim that from that place the Accused purchased biscuit packet for her which was found at the place of incident. The said biscuit packet was taken charge from the place of incident under seizure panchanama (Exh.59). It was also suggested to the victim which she denied that Accused said to her that he has to pass the urine and vomit, therefore, he has to go. Therefore, the presence of the Accused along with victim near the place of incident has been admitted by the defence by putting such suggestions to the victim in her cross-examination.
14. The cross-examination of PW-1 victim also shows that on the day of incident, Accused was in inebriated condition, he laid down the victim on the ground, vomited on her person and attempted to commit rape on her under the influence of liquor. It was also suggested to the victim that when she was being taken by the Accused, PW-4 Kishor Chouhan was sitting along with Ganesh on the ota and while they were proceeding, Ganesh said that Accused had drunken heavily and he was unable to walk. All these suggestions confirm that the Accused was under the influence of liquor at the time of incident.
15. In this regard the testimony of PW-2 Pushpabai shows that although the Accused was in drunken condition, he was in a position to walk. It was suggested to the victim which she admitted that waist material of hospital i.e. broken glass bottles etc. were stored near the gate of hospital. PW-1 further categorically denied that while Ganesh was saying about the condition of Accused, she along with Accused fell down near the place where the broken glass bottles were lying and due to that, she sustained injuries. Thus, the victim specifically denied the suggestion given to her that injuries were caused to her person due to fall on the waist material i.e. broken glass bottles found near the place of incident. 16. In this regard, it is worthwhile to note that the place of incident as shown in spot panchanama (Exh.58) does not reveal pieces of glass and it shows that there was grown grass at the place of incident, which was found scattered. Few improvements were pointed out in the testimony of the victim with regard to the fact that after lying on her person, Accused committed rape on her. Prior to that, he had removed his knicker and inserted his private part into her private part, due to which there were pains.
17. In this regard it may be mentioned here that at the time of incident victim was allegedly seven years old. Her age has not been disputed and while her evidence was recorded her age was fifteen years. In view thereof, those improvements were in respect of giving the details about the incident, and therefore, those improvements do not go to the root of the prosecution case in any manner. Leaving apart the improvements made by the victim, in her evidence before the court, the evidence which confirms the presence of the Accused at the place of incident and the other details regarding the fact of lying of the Accused on her person and pressing her neck has not been shaken in the cross-examination. Even receiving the injuries by the victim and the corroboration of the medical evidence in that regard, makes her testimony as credible one.
18. Thus, the testimony of the victim is found to be reliable and trustworthy which has not been shaken in the cross-examination. On the contrary, presence of the Accused has been established in the cross-examination of the witness. There is no question of mistaken identity of the Accused as such. There was no reason for the victim to level false allegations of rape against the Accused.
19. The testimony of PW-1 victim has been corroborated by the evidence of PW-2 Pushpabai i.e. her mother. It shows that on the day of incident being Nagpanchami, the Accused along with one Deepak and his wife visited her house. The Accused returned her house in drunken state after some time and took her daughter with him. At about 7.00 p.m. she heard some noise, and therefore, came out of the house and saw her daughter PW-1 victim crying. On making enquiry with her daughter, she narrated to PW-2 Pushpabai that she was playing in front of her house, the Accused came there and took her to the grocery shop of Hakim and purchased the packet of biscuit and thereafter took her to the house of one Bhokre, which was behind the hospital and Bhatkuli and caused biting injury on her cheek and waist and private part. Accused also vomited on her person.
20. PW-2 Pushpabai deposed that at that time her daughter was wearing only frock and her knicker was thereafter found at the place of incident. Thereafter PW-2 Pushpabai took the victim to the police station and lodged complaint. She categorically stated that in the meantime Kishor Chouhan and Gopal Dahake brought the Accused to her house and thereafter they took the victim and Accused to the police station and lodged complaint.
21. During her cross-examination, it was suggested to PW-2 Pushpabai which she admitted that frock of the victim was full of residues of vomiting. She further admitted that there was a big function in their house on the occasion of Nagpanchami. She further admitted that Accused had consumed liquor on that day. However, she denied that he was not in a position to walk. It was suggested to her that after bringing the Accused to her house by Kishor Chouhan, she scolded him. Such suggestion again confirms that the Accused was brought by Kishor Chouhan (PW-4) to the house of PW-2 Pushpabai after the incident.
22. It is worthwhile to note that in cross-examination it was suggested to PW-2 Pushpabai that since the Accused had consumed liquor and taken the victim with him, people gathered at her house and assaulted him. Now the said suggestion again confirms that the Accused was brought to her house by Kishor Chouhan (PW-4), people gathered in front of her house and assaulted him. So, the testimony of PW-2 Pushpabai corroborates the testimony of PW-1 victim on all material aspects and it indicates that on the day of incident there was Nagpanchami pooja at the residence of PW-2 Pushpabai and the Accused took the victim with him. Significantly, taking the victim with the Accused on the day of Nagpanchami, as stated by PW-2 Pushpabai, has not been challenged in the cross-examination at all. On the contrary, presence of the Accused in the house of PW- 2 Pushpabai on the day of incident is established beyond reasonable doubt. So also immediately after the incident the Accused was brought by PW-4 Kishor Chouhan to the house of PW-2 Pushpabai and he was assaulted by the people who gathered at that place is also proved by the prosecution beyond reasonable doubt.
23. The spot panchanama (Exh.58) shows that the place of incident was open space near the backside wall of the Government quarter of one Yadav, who was the employee of Primary Health Center and sealed biscuit packet of Krackjack company was found at the place of incident. So also one knicker and waist string (Kardoda) were also found at the place of incident. Pertinently one pair of black coloured footwear was also found at the place of incident. Purportedly, the spot panchanama also shows that there was grown grass on the place of incident which was found scattered. Thus the spot panchanama supports the case of the prosecution.
24. As far as medical evidence is concerned, evidence of PW-3 Medical Officer Dr. Kalpana Bhagwat shows the following injuries on the person of the victim :
(1) Abrasion – round shape on right cheek with scap formation 1 inch x 1 inch.
(2) Abrasion – on left parital region inch x 1 1/8 inch.
(3) Abrasion – on left hypochendrium inch x inch
(4) Abrasion – over pubic region, five in number inch x 1/8 inch, inch x 1/8 inch, inch x 1/8 inch, 1/3 inch x 1/8 inch and inch x 1/8 inch respectively.
(5) Contusion over right side of the neck, anteriourly irregular in shap inch x inch.
(6) Contusion over the upper lip, in the middle 1/3 inch x 1/3 inch.
(7) Contusion over left labia mejora inch x inch.
(8) abrasion over back, five abrasions over left lumber region inch x 1/8 inch, inch x 1/8 inch, inch x 1/9 inch inch x 1/8 inch and inch x 1/8 inch.
(9) Four abrasions over left infra scapular region inch x inch, 1/8 inch x 1/8 inch, inch x 1/8 inch, 1/3 inch x 1/8 inch.
(10) Rounded shaped abrasion over the right Scapular region, inch x 1 inch.
(11) Three abrasions over the left lumber region – inch x 1/8 inch, inch x 1/8 inch, 1/3 inch x inch.
(12) Contusion of left cheek 1 inch x inch.
Per Vagina Findings :
(1) No internal injuries seen, no bleeding P. V. Seen;
(2) Vagina admits tip of little finger with difficulty;
(3) Hymen intact.
(4) Signs of inflammation are seen in labiaminora.
25. The Medical Officer opined that there were injuries on the pubic region of the victim. Injuries were on labia minora, inflammation was present on it. PW-3 Dr. Kalpana Bhagwat opined that as the signs of inflammation were seen on labia minora and the abrasions were noticed on the pubic region, the attempt of rape was possible. Accordingly, she issued medical Certificate (Exh.46). PW-3 Dr. Kalpana further opined that abrasion on the right side of the cheek of the victim was possible by human bite. No doubt in the cross-examination it is also opined that the injuries on the back was possible due to broken glass pieces and waist material. The medical evidence corroborates the testimony of PW-1 victim in all respect.
26. Even considering that the injuries on the back of the victim as suggested by the Accused might have caused by the broken glass pieces, however, removal of knicker from the person of victim and receiving injuries on her private part clearly indicate the case of attempt to commit rape on the victim. Thus, the prosecution has established the case beyond reasonable doubt. Unfortunately, the eye-witness turned hostile, however, the evidences of PW-1 victim and PW-2 Pushpabai inspire confidence and these testimonies beyond reasonable doubt establish that Accused had attempted to commit rape on the victim.
27. It is well settled that the testimony of PW-1 victim can be relied upon as it is found to be reliable and trustworthy. On that aspect, the prosecution has placed reliance on the various Judgments of Hon’ble Apex Court, viz – Digambar Vaishnav & Anr. V/s State of Chattisgarh, reported in 2019 ALL SCR (Cri) 1009; Moti Lal V/s State of M.P., reported in 2008 ALL MR (Cri) 2583 (S.C.); Mohd. Imran Khan V/s State (Govt.of NCT of Delhi), reported in 2011 ALL SCR 2689; and State of Himachal Pradesh V/s Sanjay Kumar @ Sunny, reported in 2017 ALL SCR (Cri) 1.
28. Hon’ble Apex Court in the case of State of Rajasthan V/s Chandi Ram and Others, reported in (2014) 14 Supreme Court Cases 596 held that :
“the evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring.
Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully”.
In the instant case there is no evidence on record to show that the victim was tutored.
29. In this context, it would advantageous to go through the guidelines issued by the Hon'ble Apex Court in the case of State of Punjab .vs. Gurmit Singh and others, reported in (1996) 2 SCC 384, as follows:
“Where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of “loose moral character” is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the courts, for after all it is the accused and not the victim of sex crime who is on trial in the court.
In paragraph 8 the Hon'ble apex Court has held as under:-
“8. .......The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.”
In the matter of State of Maharashtra .vs. Chandraprakash Kewalchand Jain, reported in 1 (1990) 1 SCC 550, time and again, it is held by the Hon'ble Apex Court that :
“A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of case and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”
As regards the concealment of the offence, it is further held that :
“A girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society.”
In the case of State of H.P. v. Sanjay Kumar alias Sunny reported in 2017(3) Mh.L.J. (Cri.)(S.C.) 68, the Hon'ble apex Court has held in paragraph 31 as under:-
“31. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborate in material particulars, as in the case of an accomplice to crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.”
In case of Aman Kumar and another v. State of Haryana, reported in (2004) 4 SCC 379, the Hon'ble apex Court has held as under:-
“It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional.”
In case of Jugendra Singh v. State of Uttar Pradesh, reported in (2012) 6 SCC 297, the Hon'ble apex Court in paragraphs 41, 42, 43 and 49 has held as under:-
“41. In State of U.P. v. M.K. Anthony (1985) 1 SCC 505 this Court has observed (SCC p. 331, para 15) that in case of
“[m]inor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole”.
42. In Rammi v. State of M.P. (199) 8 SCC 649, this Curt has held as follows :(SCC p. 656, para 24)
“24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in
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mind that it is only when discrepancies in the evidence of a witness were so incompatible with the credibility of the version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.” 43. In Appabhai v. State of Gujarat (1988 Supp SCC 24) this Court has ruled thus :(SCC pp.246-47, para 13). “13. ... The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witlessness altogether if they were otherwise trustworthy. 49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment.” 30. In the wake of above discussion, it is found that PW-1 victim is truthful and reliable witness. Thus, the prosecution has proved its case beyond reasonable doubt. The learned trial Judge has assessed the evidence led by the prosecution witnesses in its right perspective and accordingly convicted the Accused. In that view of the matter, in my opinion, no interference is called for in the Judgment dated 30th March 2007 delivered by the learned Adhoc Additional Sessions Judge, Amravati in Sessions Trial No. 145 of 1999. Hence, the following order. ORDER (A) Criminal Appeal is dismissed. (B) Judgment and Order dated 30th March 2007 delivered by the 6th Adhoc Additional Sessions Judge, Amravati in Sessions Trial No. 145 of 1999 is hereby confirmed. (C) Appellant – Accused is on bail. He is directed to surrender the bail bonds within a period of one month from the date of receipt of the order passed by this Court. 31. Criminal Appeal is disposed of accordingly.