Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
Abhay S. Waghwase, J.
Bhaulal S/o. Dokraji Reswal – Appellant
versus
State of Maharashtra – Respondent
Criminal Appeal No.673 of 2002
Decided on 6.3.2024

Advocates:
Counsel for the Parties:
For the Appellant: Ms. Harsha Lomte h/f. Mr. V.D. Salunke, APP
For the Respondent No.1:Mr. S.M. Ganachari, Advocate
For the Respondent No.2:Mr. Kalyan Patil h/f. Mr. S.R. Barlinge, Advocate

IMPORTANT POINT
Murder and rape of minor girl – Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence – When direct evidence inspires confidence, case of prosecution can still be accepted.

Headnote:
Indian Penal Code, 1860 – Sections 302 and 376 – Murder and rape of minor girl – Conviction – There is no supportive medical evidence – However, merely absence of medical evidence is no good ground to discard direct and ocular evidence of parents coupled with evidence of an independent witness regarding rape – Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence – When direct evidence inspires confidence, case of prosecution can still be accepted – Here is a case of such nature where parents and independent witness who have seen incident, have narrated occurrence while in witness box – Their testimonies have not been rendered doubtful – Even in absence of medical evidence, case of prosecution can safely said to be inspiring confidence and can be readily accepted – Non-examination of brother of victim would not affect prosecution version – Prosecution has established charge of rape – Appeal dismissed. (Paras 12, 15 and 16)
Result: Criminal Appeal dismissed.

JUDGMENT

Convict for offence under Section 376 of the Indian Penal Code (IPC) is hereby questioning the judgment and order dated 21-10-2002 passed by II Additional Adhoc Sessions Judge, Aurangabad in Sessions Case No.103 of 2001.

Facts in Brief Leading to Trial

2. Six years old daughter of informant was unwell. She was taken to Doctor, who prescribed medicines, but there was no improvement. Informant called his brother, who advised bringing an occultist as he suggested that deceased daughter was possessed by evil force. Informant conceded and his brother brought accused, who claimed himself to be a Mantrik and he assured to treat deceased upon charging Rs.250/-. He directed informant to purchase necessary material and under the pretext of exorcising and driving out spirit, he committed rape on the minor. Her condition worsened and while being taken to the native, in the journey itself, she breath her last. Parents performed last rituals and later on informant came back to Aurangabad and lodged report, which was made the basis of registering crime bearing no.24 of 2001 for offence under Sections 302 and 376 of the IPC.

PW8 Nikam (PSI) and PW9 Muthe (PI), both Police Officers conducted and concluded investigation at respective times and finally accused was chargesheeted and made to face trial before learned II Additional Adhoc Sessions Judge, Aurangabad, who on appreciating oral and documentary evidence adduced by prosecution, held charge under Section 376 of the IPC to be proved but acquitted accused from offence under Section 302 of the IPC.

It is the above judgment and order of conviction under Section 376 of the IPC, which is now taken exception to.

Submissions

On behalf of appellant:

3. Learned Counsel for the appellant would submit that conviction is challenged primarily on following grounds:

Grounds

Firstly, there is inordinate delay in lodging the FIR.

Secondly, there is no medical evidence in support of charge of rape.

Thirdly, false implication at the behest of a Corporator.

Fourthly, inconsistency, material omissions and contradictions in the versions of parents of victim and PW7.

Emphasizing the above grounds, learned Counsel for the appellant would vehemently submit that there is no convincing evidence in support of the case of prosecution. That prosecution infact had failed to establish case beyond reasonable doubt. Learned Counsel took this Court through the charge and pointed out that apart from allegation of rape, there was also charge of committing murder, but on the same set of evidence, learned trial Court has already acquitted appellant from charge of murder, however, unfortunately guilt is fastened for offence under Section 376 of the IPC. Learned Counsel would point out that apart from inordinate delay of almost a month in implicating accused, there is no supporting medical evidence suggesting evidence of rape. She further pointed out that prosecution is merely relying on evidence of parents i.e. PW3 father of victim and PW4 mother of victim, but according to her, they both are not lending support to each other and are rather giving inconsistent versions and that their evidence is full of material omissions and contradictions.

4. She further pointed out that it has come in the evidence of parents about presence of other independent 10-15 persons at the time of alleged occurrence, but none of them is examined. Consequently, it is her submission that there is no convincing evidence but still learned trial Judge has accepted the case of prosecution as proved and so she prays to allow the appeal by setting aside the impugned judgment.

On Behalf of State:

5. Per contra, learned APP strongly opposed pointing out that complainant parents are residents of Latur and they have shifted to Aurangabad. That informant father is illiterate and was working as a Watchman for livelihood of his family. That moreover he belongs to Latur and had shifted to Aurangabad to earn. Being illiterate, after death of his daughter, inst