Milind Janu Kharat v/s State of Maharashtra Criminal Appeal No. 431 of 1994

Milind Janu Kharat v/s State of Maharashtra
Criminal Appeal No. 431 of 1994
decided on
01-08-2012
at
High Court of Judicature at Bombay
by
THE HONOURABLE JUSTICE R.C. CHAVAN advocates For the Appellant: Abhijeet Desai, Vrushali Maindad i/b Sunil Kadam, V.B. Kakade, Advocates. For the Respondent: Rajeshree M. Gadhvi, Additional Public Prosecutor.
Equivalent Citation(s)
2013 ALL MR (CRI) 1960
Judgment
Oral Judgment:
This appeal is directed against the appellant’s conviction by the learned Additional Sessions Judge, Pune for the offence punishable under Section 376 r/w Section 511 of the Indian Penal Code (for short, “IPC”), as also Section 323 of the IPC and sentence of rigorous imprisonment for five years with fine of Rs.2,000/- and rigorous imprisonment for one month with fine of Rs.500/- imposed upon the two counts on conclusion of Sessions Case No.37 of 1993 before him.
2. The facts which are material for deciding this appeal are as under:
The victim was a 10 to 12 years old school going girl. On 16-10-1992 when she had gone with her brothers to drop them to the school, the appellant had offered her flowers which she refused. On 17-10-1992 again when she was taking her younger brother Anil to his school at about 7:00 a.m. and was returning after dropping him at the school, the appellant came near her and told her that she had been called by his boss. The appellant was wearing a black pant and a full sleeve blue sweater. He had blue slippers in his feet and had a black wristband. She claims to have followed the appellant, who held her by her wrist and then pulled her, dragged her for some distance and committed rape upon her after making her fall down. He then let her go. She claims to have managed to go through the barbed wire compound of the school and met teacher Smt. Yamuna Kurhade. She narrated the incident to her. Another teacher was also present. The teachers were taking the victim to her house and on the way met the victim’s parents. A report was immediately given by the victim’s father, upon which an offence was registered. The police seem to have arrested the appellant on the same day in the afternoon. In the meantime, the victim had been sent for medical examination. The police performed panchnama of the spot, seized the clothes of the victim and the appellant, took some sample from the spot, caused biological samples also to be taken of the victim as well as the appellant. They recorded statements of the witnesses. A test identification parade was organised on 31-10-1992, at which the appellant was identified by the victim. On receipt of report from the Laboratory and completion of investigation, charge-sheet was sent to the Court of learned Judicial Magistrate, First Class, Pune, who committed the case to the Court of Sessions.
3. The learned Sessions Judge charged the appellant of offences punishable under Sections 363, 366, 376(2)(f) and 323 of the IPC. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all seven witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellant as afore-mentioned. Aggrieved thereby, the appellant is before this Court.
4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, “APP”) for the State. With the help of both, I have gone through the evidence on the record. PW-1 Dr. Charulata Bhalerao had examined the victim and had proved the medical certificate at Exhibit-12. The certificate would rule out the possibility of complete penetrative intercourse. The doctor opined that an attempt of intercourse could not be ruled out. PW-2, the victim herself, deposed as to how she was taken by the appellant near the water tank. She stated that the appellant slapped her on her cheek. She claims to have shouted but the appellant pressed her throat. She then claims that she was made to fall down on the ground and in spite of her resistance the appellant fell upon her. She states that in fact the appellant was successful in having intercourse. She stated about accompanying her father to the police station and also states that she identified the appellant at the test identification parade held in Yerawada Prison on 31-10-1992. In the course of cross-examination she admitted that there was none else who had come to drop children at the school. She stated that the appellant may be lying on her for about half-an-hour.
5. PW-3 Yamuna Kurhade is the teacher to whom the victim had narrated the incident initially. She supported the prosecution case and was not cross-examined by the defence. PW-4 Kachru is the victim’s father who proved his report at Exhibit-18. He, too, was not cross-examined by the defence. PW-5 Shankar is a panch at the seizure of clothes of the accused at about 2:30 p.m. on 17-10-1992. He proved the panchnama of the seizure of clothes at Exhibit-20. He denied the suggestion in the cross-examination that no such panchnama was drawn up in his presence. PW-6 Rajaram Retawade is the Special Executive Magistrate who held the test identification parade in Yerawade Prison on 31-10-1992, and stated that at the parade the appellant was immediately identified by the victim. PW-7 PSI More received the information and conducted the investigation. The report from the Forensic Science Laboratory, which was admitted, show that the appellant’s blood group was “O”. Stains of semen of blood group “O” were found on the victim’s clothing.
6. The learned counsel for the appellant submitted, first, that the victim’s story is incredible and should not have been believed by the learned trial Judge. He submitted that since the incident of the victim’s being dragged by the appellant took place at the gate of the school at the time when the school was about to open, there should have been several persons who could have witnessed the appellant taking the victim and therefore it was incredible that none had seen the victim being taken by the appellant. He next submitted that though the victim stated in the deposition that she “again” shouted after the appellant allegedly slapped her, there was no reference in her evidence about her having first shouted and therefore the story was incredible. The learned counsel further submitted that the victim had not described the appellant. She had only described his clothes. He wondered as to how on the description of clothes alone the investigating officer could immediately arrest the appellant within hours of receiving the report and therefore submits that this is a case of false implication in which, on account of the appellant being apprehended by the investigating officer, the victim came to identify him subsequently at the test identification parade. The learned counsel also wondered as to how there were absolutely no other injuries found on the person of the victim, though the victim had claimed to have resisted the appellant’s advances for a period of about half-an-hour. He submitted that presence of stains of semen of blood group “O” on the victim’s clothes is thoroughly insignificant, since there is no panchnama drawn by the investigating officer to show as to how he collected the biological sample of the appellant from the Medical Officer before being sent to the Laboratory. The learned counsel submitted that since the test identification parade was held after eighteen days, the identification of the appellant by the victim immediately at such a parade was doubtful and therefore, according to him, the learned trial Judge should have acquitted the appellant.
7. I have carefully considered these objections in the light of the response of the learned APP. She rightly submitted that the victim’s omission to state as to when she shouted first need not lead to rejection of her evidence simply because when she narrated the incident, she used the words ‘she shouted again’ when she was slapped. She submitted that absence of injuries on the person of the victim may not be significant since though the victim had stated that the incident took about halfan-hour, in fact it may have been a shorter period of time. This is so because the victim might have felt an eternity having passed during the ordeal to which she was subjected to. Therefore, the estimate of time given by the victim need not be given any importance. Absence of injuries on the back of the victim, though enigmatic, cannot result in rejecting her evidence outright, since there are various circumstances which could explain the absence of injuries like the position of her clothing, etc..
8. As to the absence of panchnama about collection of biological sample, the learned APP is right in submitting that since samples were forwarded by the Medical Officer in sealed packet, there was absolutely no need for drawing any panchnama. In any case, it is not the case of the appellant that his blood group is not “O”. Therefore, presence of stains of semen of blood group “O” on the victim’s clothing speaks volumes about the appellant’s complicity in the incident. The learned counsel for the appellant submitted that if intercourse was not complete and the victim’s clothes had been removed, there would be no occasion for stains of semen being found on the victim’s clothes. This has been properly dealt with by the learned Sessions Judge in his Judgment. He has observed that there could be discharge of semen and after the victim put on her clothes, the semen stains would have got attached to the clothes.
9. The contention of the learned counsel about prompt identification of the appellant by the victim in a parade held after eighteen days has to be rejected outright because eighteen days is not a period long enough to make the victim forget the person who ravished her. The learned counsel also tried to suggest that the victim might have an occasion to see the appellant in the meantime. However, there is nothing to show that the victim had occasion to see the appellant during the period from his arrest till he was subjected to test identification parade. The Special Executive Magistrate, PW-6 Shri Retawade, had specifically stated that he had ascertained from the victim that she had no occasion to see the appellant before the parade. In view of this, in the face of the fact that the report of the incident was promptly given, the appellant was promptly arrested by the investigating officer and was duly connected to the crime by presence of stains of his semen on the victim’s clothing, as also by being identified at the test identification parade held within eighteen days of the arrest, it cannot be said that the learned Sessions Judge erred in holding the appellant guilty of offence punishable under Section 376 r/w Section 511 of the IPC in view of the medical evidence showing absence of complete penetrative intercourse.
Reliance by the learned counsel for the appellant on a Judgment of the Punjab & Haryana High Court in Balwan Singh v. State of Haryana, reported in 1994 Cri.L.J. 2810 is misplaced, since in that case the Court had come to the conclusion that there was an inordinate delay of more than five hours in lodging the FIR, which is not so in the case at hand. In view of the clear evidence indicating the complicity of the appellant, the learned Sessions Judge has rightly convicted the appellant for attempting to commit rape. The learned APP, on the other hand, submitted that having charged the appellant under Section 376(2)(f) of the IPC, the learned Judge should have convicted the appellant for the offence of attempting to commit rape upon a girl less than 12 years of age, punishable under Section 376(2)(f) of the IPC. Since this conviction has not been questioned by the State, this aspect need not be considered. Considering that the victim was 12 years or less in age, the sentence of rigorous imprisonment for five years imposed upon the appellant cannot be said to be harsh. In fact, as suggested by the learned APP, it may lean on the side of leniency.
10. Since the victim had suffered an injury on her forehead, that is, a sub-conjunctival haemorrhage on the left side, as stated by PW-1 Dr. Charulata Bhalerao, the appellant’s conviction for the offence punishable under Section 323 of the IPC and the sentence imposed for that offence has also to be upheld.
11. In view of the above, the appeal is dismissed. The appellant shall surrender to his bail within a period of eight weeks and if he does not do so, the learned Sessions Judge shall have the appellant arrested and commit him to prison to serve his sentence.
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