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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. V. K. TAHILRAMANI & V. L. ACHLIYA, JJ.
Nandkumar Sitaram Jadhav
Vs.
The State of Maharashtra
Criminal Appeal No. 69 of 2011
Decided On: 20th November, 2013
Another circumstance relied upon by prosecution against the accused is about his conduct of running away after the incident. The conduct of the appellant is also material. On the basis of immediate conduct of accused to run away from his house after girl raised the shouts and PW 3 and other woman entered the house is sufficient to draw inference that as he has committed rape on victim girl, he ran away from the spot. If the appellant was innocent, there was no reason for him to run away. This conduct on the part of the appellant also speaks volumes about his mens rea. One highly incriminating factor which goes against the appellant is his conduct. The conduct of the appellant in running away from the spot immediately on seeing PW 3 and PW 6 strongly underlines his guilt. The conduct of the appellant can certainly be taken into account in view of Section 8 of the Indian Evidence Act.
The facts in the present case and the case of Shilla @ Shilender are quite similar. In the said case also the accused was seen running away from the scene of occurrence and the victim was found bleeding from her vagina. Though the victim girl was not examined the accused was convicted. Same are the facts in the present case. On going through the record, Court is of the opinion, that there is sufficient evidence to show that the appellant committed rape on the victim girl and also caused several injuries to her.
The conviction and sentence of the appellant under Section 376(2)(f) is maintained. The conviction under Section 324 of the IPC is also maintained. Hence, the sentence is reduced to six months RI and fine of Rs. 500/-, in default further SI for one month. The conviction and sentence under Section 354 is set aside.
Indian Penal Code, 1860 - Sections 354 and 376(2)(f) - Conviction and sentence under. - An accused cannot be convicted both under Section 376 as well as Section 354, IPC for a single incident of sexual assault on one person. - An accused person in a single incident of sexual assault on one person cannot be convicted under Section 376 as well as 354, IPC. In such case an accused can be convicted under Section 354 of IPC, if the assault is of such a nature that he intended to outrage or knowing it to be likely that it will thereby outrage the modesty of the girl. However, if there is concrete evidence to show that a person has committed rape on the victim then in such case a person can only be convicted under Section 376. A person cannot be convicted under both sections for a single incident of sexual assault. Section 354 falls short of Section 376 that is 354 is a lesser offence compared to Section 376, IPC and an accused cannot be convicted in a single incident for the bigger offence as well as the lesser offence. For example, if in one single incident of assault an accused causes grievous hurt as well as simple hurt to one persons, the accused cannot be convicted under Section 326 as well as Section 323, IPC.
SMT. V.K. TAHILRAMANI, J. :- The appellant (original accused) has preferred this appeal against the judgment and order dated 25/4/2008 passed by the learned 3rdAdditionai Sessions Judge, Kolhapur, in Sessions Case No. 120 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant u/s 376 (2)(f), 324 and 354 of Indian Penal Code ("IPC" for short). For the offence punishable u/s 376(2) (f) of IPC, the appellant was sentenced to suffer RI for ten years and fine of Rs.1000/-. In default RI for six months. For the offence punishable u/s 324 of IPC the appellant was sentenced to suffer RI for three years and fine of Rs.1000/-. In default RI for six months. no separate sentence was imposed on the appellant for the offence u/s 354 of IPC. The substantive sentences u/s 376(2)(f) and 324 of IPC were directed to run concurrently.
2. The prosecution case briefly stated is as under;
PW 3 Maya was residing at Raman Mala, Taluka Karvir, Dist. Kolhapur. The appellant was residing in front of her' house. The victim girl, who was aged about 6 years, at the time of incident, was residing in the same area along with her family.
It is the prosecution case that on 9/5/2006 at about 1 p.m., the appellant called the victim girl to his house stating that he would give her 'khau' (sweet meats) and then committed rape on the victim girl. As there was pain the victim girl shouted. On hearing her shouts, PW 3 Maya and PW 6 Madhuri rushed into the house of the accused-appellant. They saw the victim girl weeping and she was frightened. There was bleeding from her mouth. When they entered the house of the appellant, the appellant ran away. PW 3 Maya and PW 6 Madhuri asked the victim girl what had happened. Thereupon she told them that while she was playing in the courtyard the appellant had taken her to his house stating that he would give her 'khau' (sweat meats). The appellant then bit her face, leg and chest. The appellant then removed her nicker and slept on her person. As there was pain, she started shouting. After PW 3 and PW 6 came to the spot, the appellant wore his pant and ran away. Then the mother of the victim girl was called. They informed her about the incident. The victim girl's mother lodged FIR. Thereafter investigation commenced. The victim girl was sent for medical examination. PW 9 Dr. Shaha examined the victim girl. A number of injuries were seen on the body of the victim girl and it was found that hymen was ruptured. Injury was fresh injury. After completion of investigation, charge-sheet came to be filed.
3. Charge came to be framed u/s 376(2)(f) against the appellant for committing rape on a girl below 12 years. Charge was also framed u/s 354 and 324 of the IPC. The appellant-accused pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant, as stated in para 1 above, hence, this appeal.
4. We have heard Mr. Najmi, the learned advocate for the appellant and Mrs. Bhonsale, the learned APP for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, we are of the opinion, that, the appellant did commit rape on a minor girl.
5. Despite diligent efforts to trace them, the victim girl and her mother could not be traced, therefore, they could not be examined. Hence, there is no direct evidence to prove the case. Non-examination of the complainant and the victim girl, since they are not available, is not fatal to the prosecution case and there can be conviction of the accused on the basis of material available on record. In this context, we would like to make useful reference to a few decisions wherein though the victim of sexual assault or material witnesses have not been exami
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