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2021 Supreme(Bom) 353
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sadhana S. Jadhav, Sarang V. Kotwal, JJ.
Balu Kundalik Patil - Appellant
Versus
The State of Maharashtra & another - Respondents
Criminal Appeal No.147 of 2014
Decided On : 22-09-2021
Advocate Appeared:
For the Appellant :Mr. Niranjan Mundargi, Advocate i/b. Manish Rai,
For the Respondent:Ms. S.V. Sonavane, APP, Ms. Rebecca Gonsalvez, Advocate (appointed)
Point of law : Criminal Law – Offence of Rape – Conviction upheld – prosecution has proved beyond reasonable doubt that the victim was sexually assaulted.- Admissions given by the victim are inconsequential. She was barely five to seven years of age at the time of incident.
Headnote:
Penal Code, 1860 - Section 376(2) - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989- Section 3(1)(xii)- Offence of Rape – Conviction - Life imprisonment - Victim girl, aged about five years- evidence of the victim shows that she was a tutored witness and, therefore, was unreliable.
Finding of the Court : Mother of the victim has given inconsistent deposition compared to the contents of her own FIR - medical evidence given by PW-1 is clear enough. He has specifically opined that the victim was subjected to sexual assault. He had mentioned the injuries suffered by the victim. More importantly he had stated that the injury was within less than 24 hours. Therefore, the prosecution has proved beyond reasonable doubt that the victim was sexually assaulted.- Admissions given by the victim are inconsequential. She was barely five to seven years of age at the time of incident. Even without referring to her deposition and her admissions about her father showing her the appellant, and father instructing her, there are other clinching circumstances as mentioned hereinbefore against the present appellant - prosecution has proved its case beyond reasonable doubt.
Result : Appeal dismissed
JUDGMENT :
SARANG V. KOTWAL, J.
1. The appellant has preferred this appeal challenging the judgment and order dated 25.7.2013 passed by the learned Special Judge (Atrocities Act), Raigad at Alibag passed in Special Criminal Case No.5/2013. By the impugned judgment and order, the appellant was convicted for commission of the offence punishable under Section 376(2) and was sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/-; and in default of payment of fine he was sentenced to suffer further RI for one year. The appellant was further convicted for commission of the offence punishable under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “Atrocities Act”) and was sentenced to suffer RI for five years and to pay a fine of Rs.5,000/-; and in default of payment of fine to suffer further RI for one year. The sentences were directed to run concurrently. On depositing of the fine amount, Rs.9,900/- was directed to be paid to the mother of the victim. The appellant was given set-off for the period which he had undergone since the date of his arrest i.e. from 21.11.2010. The District Special Social Welfare Officer, Raigad-Alibag was directed to pay compensation of Rs.1,20,000/-to the victim’s mother as per the schedule annexed to Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. He was also directed to pay the travelling allowances and daily wages of the victim and her parents in visiting the office of the investigating officer and he was also directed to make arrangement for rehabilitation of the victim.
2. The prosecution case, in brief, is as follows:
On 19.11.2010 between 4:00 p.m. to 4:45 p.m., the appellant, who was about 33 years of age at that time, took the victim girl, aged about five years, to his room and committed rape on her. After the victim came back home, she narrated the incident to her mother, who is respondent No.2 in this appeal. The mother of the victim found injuries on the victim’s private parts and, therefore, along with her husband she approached the police and lodged the FIR. The investigation was conducted. The victim was belonging to Scheduled Caste and, therefore, provisions of Atrocities Act were applied. The investigation was carried out by a competent officer under the Atrocities Act. The appellant was arrested. The victim was sent for medical examination. The spot of incident i.e. the appellant’s room was inspected. Spot panchnama was carried out. Some blood was collected on the swab from a chair in that room. A wedding card having blood stains was also seized. The clothes of the appellants and those of the victim were seized. The articles and various swabs collected during medical examination of the victim as well as of the appellant were sent for chemical analysis. The caste certificate of the victim’s father was collected. After completion of the investigation, charge-sheet was filed and the trial was conducted before the Special Judge, which resulted in the impugned judgment and order, as mentioned earlier.
3. During trial, the prosecution examined PW-1 Dr. Sachin Ajamera, who had conducted medical examination of the victim. He was working as Medical Officer at Vashi General Hospital. PW-2 Narendra Parulekar was a pancha for two panchnamas under which the clothes of the appellant as well as the victim were seized on 21.11.2010 and 20.11.2010 respectively. Similarly, he was also a pancha for the spot panchnama of the house of the appellant. Those panchnamas are produced on record at Exhibits-24, 25 and 26 respectively. PW-3 Dr. Swati Naik had conducted medical examination of the appellant on 23.11.2010. She was attached to Rural Hospital, Panvel. PW-4 was mother of the victim. She had lodged the FIR vide C.R. No.498/2010 at Panvel City Police Station on 19.11.2010. It was lodged at 9:45 p.m. PW-5 Dinkar Kadam was the Assistant Police Inspector attached to Panvel City Police Station. He had conduct
