Bombay High CourtBalu S/O Bhausaheb Kothule vs The State Of Maharashtra on 15 July, 20111                           cra103.11




                                                                              
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 AURANGABAD BENCH, AURANGABAD




                                                      
                  CRIMINAL  APPEAL  NO.  103   OF   2011




                                                     
    Balu s/o Bhausaheb Kothule,
    age 41 years, occ. Tractor Driver,




                                        
    R/o Khadki, Tq. Nagar,
    District Ahmednagar ig                                ...Appellant
                                                      (Original Accused)
                       
               VERSUS
                      
    The State of Maharashtra,
    through Nagar Taluka
      

    police station                                    ...Respondent
   



                                         .....
    Ms.  Monika Purnapatre, advocate  appointed for appellant 
    Shri  V.D.Rakh, A.P.P.  for  the respondent
                                         .....





                           CORAM  :    SHRIHARI  P.DAVARE, J.


                           DATED   :    15th  July,  2011





    ORAL JUDGMENT  :1          Challenge   in   this   appeal   is   to   the   conviction   and 

    sentence imposed upon the appellant (original accused) by way 

    of judgment  and order, dated 12.1.2011.    It appears that the::: Downloaded on - 09/06/2013 17:30:51 :::2                           cra103.11




                                                                             
    appellant herein faced the trial for the offence punishable underSections 376,354,323,504and506of the Indian Penal Code 




                                                     
    under   Sessions   Case   No.   136   of   2010   and   was   convicted 

    therefor,   excepting   for   the   offence   punishable   underSection 




                                                    
    504of the Indian Penal Code and was sentenced to suffer R.I. 

    for the period of ten years and to pay fine of   Rs. 10,000/-, in 




                                       
    default of payment of fine to suffer R.I. for six months for the 
                        
    offence   punishable   underSection   376of   the   Indian   Penal 
                       
    Code; and was also sentenced to suffer R.I. for   two months 

    and to pay fine of  Rs. 5,000/-, in default of payment of fine to 

    suffer   R.I.   for   three   months  for   the   offence   punishable   underSection   354of   the   Indian   Penal   Code;   and   was   further 

    sentenced to suffer R.I. for the period of one year and to pay 





    fine of  Rs. 1,000/-, in default of payment of fine to suffer R.I. for 

    one month for the offence punishable underSection 323of the 

    Indian Penal Code; as well as was sentenced to suffer R.I. for 





    the period of two years and to pay fine of  Rs. 1,000/-, in default 

    of payment of fine to suffer R.I. for one month for the offence 

    punishable underSection 506of the Indian Penal Code; and it 

    was also directed that the afore said substantive sentences to 

    run   concurrently,   by   way   of     judgment   and   order,   dated::: Downloaded on - 09/06/2013 17:30:51 :::3                          cra103.11




                                                                              
    12.1.2011,   rendered   by   the   learned   District   Judge-6   and 

    Assistant Sessions Judge, Ahmednagar.2           The   factual   matrix   and   the   events   leading   to   the 




                                                     
    present appeal are as follows :-The prosecutrix Nilima lodged the complaint against 




                                         
    her  father  i.e.    appellant  herein  with   the  Ahmednagar   Taluka 
                        
    police   station   and   reported   that   the   appellant   herein,   namely 
                       
    Balu   @   Balasaheb   Bhausaheb   Kothule   i.e.   father   of   the 

    prosecutrix outraged her modesty and also two months prior to 

    5.4.2010 raped upon her for two times, as well as raped upon 
      
   



    her during night of 5.4.2010 when she was residing along with 

    the appellant and her grand father, namely Bhausaheb Kothule 





    and   sister   Nikita   in   the   house   at   Khadki,   Taluka   and   District 
                                                                                        th 
    Ahmednagar.  She also alleged that she was the student of 8

    standard in Tuljabhavani High School at Khadki and her father 





    Balasaheb had married to one Kamalabai and initially they were 

    residing   at   Kalewadi,   Pimpri-Chinchwad,   District   Pune,   but 

    about one year back  her mother died due to heart attack, and 

    hence, the appellant, prosecutrix and her sister Nikita shifted to 

    the   house   of     her   grand     parents,   namely   Bhausaheb   and::: Downloaded on - 09/06/2013 17:30:51 :::4                           cra103.11




                                                                              
    Babaibai Kothule at Khadki.  It is also alleged that the appellant 

    was   the   driver   by   profession   on   a   dumper   at   Khandala   and 




                                                      
    used to leave his house at about 7.00 a.m. with the tifin and 

    used to return back at about 8.00 p.m. It is also alleged that 




                                                     
    about two months prior to the incident of rape i.e. 5.4.2010, the 

    appellant   picked   up   a   quarrel   with   his   mother   Babaibai   and 




                                        
    drove her out of the house, and therefore, she took the shelter 
                        
    of house of her daughter Saina Vitthal Gadhave in the same 
                       
    village at Khadki.3           It is the case of the prosecutrix that on 5.4.2010 the 
      
   



    prosecutrix returned to the house after giving the examination 

    paper and prepared food at about 9.00 p.m.   At this juncture, 





    the   appellant   came   to   the   house   in   drunken   condition.   The 

    prosecutrix     served   him   food.   After   the   dinner,   the   appellant 

    went   out   of   the   house.   Thereafter,   the   prosecutrix,   her   sister 





    Nikita and grand father Bhausaheb also took their dinner and 

    went  to  sleep  in  the court  yard of  the  house.   The  appellant 

    returned   home   at   about   11.00   p.m.     It   is   alleged   that   the 

    prosecutrix woke up when her legs were pulled by the appellant 

    father and the appellant skidded her inside of the house from::: Downloaded on - 09/06/2013 17:30:51 :::5                          cra103.11




                                                                             
    the   court   yard.   Thereupon,   the   prosecutrix   cried,   but   the 

    appellant   gave   threat   to   kill   her,   and   hence,   prosecutrix 




                                                     
    remained   silent.     After   taking   inside   the   house,   the   appellant 

    removed   her   salvar,   kurta,   petty   coat   and   nicker.     The 




                                                    
    prosecutrix   was   beseeching   "No,   No"   and   started   weeping.However,   the   appellant   ignored   her   weeping   and   started 




                                        
    rubbing her chest.  Then, the accused removed his clothes and 
                        
    laid the prosecutrix on the cot and divided her legs opposite to 
                       
    each   other   and     laid   on   the   person   of   the   prosecutrix   and 

    committed   the   sexual   intercourse   with   her   like   husband   and 

    wife.  The appellant also gagged her mouth by one hand.  It is 
      
   



    further alleged that there was pain to her urinating place and 

    she became unconscious.  It is further alleged that on the next 





    day morning, the appellant kicked the prosecutrix and woke her 

    up at 4.00 a.m. and asked her to cook food.  Accordingly, after 

    taking tifin, the appellant left the house at about 7.00 a.m. and 





    while leaving the house  gave threat to the prosecutrix to kill her 

    if   she   disclosed   the   incident   to   anybody.     Hence,   the 

    prosecutrix was scared.4           It is also the case of prosecution that after leaving the::: Downloaded on - 09/06/2013 17:30:51 :::6                           cra103.11




                                                                            
    appellant for his work, the prosecutrix took the bath and washed 

    away her clothes. Thereafter, she narrated the incident to her 




                                                    
    aunt, namely Tarabai and grand father Bhausaheb, who in turn 

    informed to Badambai, her remote grand mother, as well as the 




                                                   
    said incident came to the knowledge of one Raghunath Kothule, 

    remote maternal uncle of the prosecutrix, who took her and her 




                                      
    sister Nikita to their houses.  On 10.4.2010 Raghunath Kothule 
                      
    left the prosecutrix and her sister Nikita to the house of   PW4 
                     
    Chandrakant Borude  i.e. maternal uncle of victim, resident of 

    Sarola Baddi.   The prosecutrix narrated the events to the said 

    maternal uncle and aunt.   Accordingly, her complaint (Exh.15) 
      
   



    was recorded by P.S.O.   of   Nagar Taluka police station PW9 

    A.S.I. Bapu Bhosale on 14.4.2010 and offence was registered 





    against the appellant under C.R. No. 62 of 2010 underSections 

    376,354,504and506of the Indian Penal Code and same was 

    treated as the first information report.5         It   is   further   the   case   of   prosecution   that   PW8   Mrs. 

    Jyotipriya   Singh,   Superintendent   of   Police   (Rural), 

    Ahmednagar, was having charge of Nagar Taluka police station 

    at the relevant time and on 14.4.2010 she received C.R. No. 62::: Downloaded on - 09/06/2013 17:30:51 :::7                          cra103.11




                                                                              
    of 2010 for further investigation.  Accordingly, she perused the 

    complaint   and   special   report   of   the   crime   and   arrested   the 




                                                      
    appellant   under   arrest   panchanama   (Exh.31).     The   special 

    report   (Exh.38)   was   prepared   by   PW9   A.S.I.   Bhosale.Thereafter PW8 Mrs. Jyotipriya Singh issued letter (Exh.17) for 

    examination of the appellant and the appellant was sent to the 




                                         
    Civil   Hospital,   Ahmednagar   for   examination   purpose.Accordingly, PW2 Dr. Bharati Peche, who was Medical Officer 
                       
    at the Civil Hospital, Ahmednagar, examined him and collected 

    the samples of blood,   hair and nail, as well as sample of his 

    semen   was   taken   by   other     doctor,   namely   Dr.   Bhujbal   and 
      
   



    M.L.C. (Exh.18)  was registered. She also prepared the medical 

    certificate of examination of the appellant at Exh. 20.6           Thereafter, PW8 Mrs. Jyotipriya Singh visited the spot 

    of the offence  on 15.4.2010 and drew spot panchanama (Exh.35) and the complainant prosecutrix pointed out the said spot of 

    the   offence.   The   quilt   and   bed   sheet   (cover   of   mattress)   i.e. 

    articles C and D were attached from the scene of offence under 

    the said panchanama.  Moreover, the clothes of the prosecutrix 

    and the accused were also seized  bearing article nos. 1 to 10::: Downloaded on - 09/06/2013 17:30:51 :::8                          cra103.11




                                                                             
    under panchanama Exhs. 34 and 35 respectively.7           The   prosecutrix   was   referred   to   the   Civil   Hospital, 

    Ahmednagar and PW6 Dr. Kalamkar Sandip Malhari examined 




                                                    
    her   as   per   letter   of   Reference   (Exh.26),   as   well   as   her 

    radiological examination was conducted for confirmation of her 




                                        
    age and while recording her history, her age was given as 13 
                        
    years.     Accordingly,   he   issued   the   medical   examination 
                       
    certificate of the prosecutrix, which is produced at Exh.27.8           Moreover, PW8 Mrs. Jyotipriya Singh also recorded 
      
   



    statements of witnesses, as well as she gave letter (Exh.41) to 

    the Head Master, Tuljabhavani Madhyamik Vidyalaya,  Khadki 





    and   requested   for   bona   fide   certificate   of   the   prosecutrix   on 

    21.4.2010.  Accordingly, on 22.4.2010, she received letter from 

    the   Head   Master   of   the   said   school   along   with   bona   fide 





    certificate  (Exh.32) of the prosecutrix, showing her date of birth 

    therein.9           The prosecution  case further recites that PW8  Mrs. 

    Jyotipriya   Singh   prepared  forwarding  letter  (Exh.33)  and  sent::: Downloaded on - 09/06/2013 17:30:51 :::9                           cra103.11




                                                                             
    the muddemal clothes of the accused and the prosecutrix to the 

    Forensic   Laboratory on 21.4.2010.   Accordingly, the chemical 




                                                     
    analysis   reports   were   received   from   the   Chemical   Analyser's 

    office,   which   are   produced   at   Exhs.   43,   44,   45   and   46, 




                                                    
    respectively.   During the investigation, the prosecutrix and her 

    sister were produced before the Special Judicial Magistrate for 




                                       
    recording   the   statement.     Accordingly,   after   completion   of 
                        
    investigation, PW8 Mrs. Jyotipriya Singh filed the charge sheet 
                       
    before the learned Judicial Magistrate, First Class, Court no.6, 

    Ahmednagar   on   5.7.2010   and   thereafter   the   said   learned 

    Judicial   Magistrate,   First   Class,   Court   No.6,   Ahmednagar, 
      
   



    committed the  case to the Court of Sessions, Ahmednagar on 

    6.7.2010.10          Accordingly, charge was framed against the appellant 

    on   15.7.2010   at   Exh.   2   by   the   learned   District   Judge-6   and 





    Assistant   Sessions   Judge,   Ahmednagar   for   the   offences 

    punishable underSection 376,354,323,504and506of the 

    Indian Penal Code.11          To substantiate the said charges levelled against the::: Downloaded on - 09/06/2013 17:30:51 :::10                        cra103.11




                                                                       
    appellant, the prosecution examined as many as 9 witnesses, 

    as mentioned below :-PW1      Nilima Balasaheb Kothule i.e. prosecutrix.PW2      Dr. Bharati Shahaji Peche, who examined the 
             accused and issued medical certificate Exh.18 
             and  case papers (Exh.20).PW3      Badambai   Sitaram   Kothule,   relative   of   prosecutrix,  
                    
             whom prosecutrix narrated the incident for the first  
             time.PW4      Chandrakant   Bhanudas   Borude,   maternal   uncle   of  
             victim Nilima.PW5      Mithu Sopan Sathe, panch for panchanama of 
   



             seizure of clothes of victim (Exh.24).PW6      Dr. Kalamkar Sandip Malhari,  who examined 





             the prosecutrix and issued the 
             medical certificate (Exh. 27).PW7      Ram   Vitthal   Salunke,   panch   to   spot   panchanama    





             Exh.35.PW8      Mrs. Jyotipriya Singh, Superintendent of Police 
             (Rural), Ahmednagar - investigating officer.PW9      A.S.I. Bapu Dashrath Bhosale, who recorded the 
             complaint of prosecutrix (Exh.15).::: Downloaded on - 09/06/2013 17:30:51 :::11                         cra103.11




                                                                             
    12          The   defence   of   the   appellant/accused   was   of   total 




                                                     
    denial.   He contended that he has been implicated in this case 

    falsely and he further stated that his wife was heart patient prior 




                                                    
    to marriage a quarrel was picked up on birth of  daughters. His 

    brother in law i.e. PW4 Chandrakant   blamed him for death of 




                                        
    his wife.   Then they started insisting upon him to transfer his 
                        
    landed   property,   to   which   appellant/accused   refused.   Hence, 
                       
    the said brother in law lodged false case against him, through 

    PW1   Nilima,   and     accordingly,   the   accused   claimed   to   be 

    innocent.   After considering the oral, the documentary and the 
      
   



    medical   evidence   adduced/produced   by   the   prosecution   on 

    record, as well as considering the rival submissions advanced 





    by   the   learned   counsel   for   the   parties,   the   learned   Assistant 

    Sessions Judge and District Judge-6, Ahmednagar, convicted 

    and   sentenced   the   appellant/accused   as   aforesaid.         Being 





    aggrieved   and   dissatisfied     by   the     said   conviction   and 

    sentence,   the   appellant   has   assailed   the   same   by   filing   the 

    present appeal and prayed for quashment thereof.13          Before adverting to the submissions advanced by the::: Downloaded on - 09/06/2013 17:30:51 :::12                         cra103.11




                                                                             
    learned counsel for the parties, it is necessary to deal with the 

    material evidence on record and the pivot   of the prosecution 




                                                     
    case   revolves   around   the   very   testimony   of   the   prosecutrix, 

    namely   Nilima   Kothule,   wherein   she   has   narrated   the 




                                                    
    occurrence of events meticulously, wherein she stated that her 

    mother   died   when   they   were   residing   at   Pimpri-Chinchwad, 




                                        
    Pune,   and   therefore,   they   shifted   to   the   house   of   her   grand 
                        
    parents along with accused and her younger sister at Khadki, 
                       
    Taluka Nagar.  Her father was serving as driver on a dumper at 

    Khandala.  She  used  to   prepare  food   in  the  house   for   all  the 

    family members i.e. grand parents, sister and accused father.Her father used to leave the house at   about 7.00 a.m.   and 

    used to return back at about 8.00 p.m.   One day quarrel took 





    place between accused father and grand mother of prosecutrix, 

    namely  Babaibai,  and hence, the accused/appellant drove her 

    out of the house,  which occurred about two months prior to the 





    incident   and   therefore,   she   went   to     her   married   daughter, 

    namely   Saina Vitthal Gadhave for shelter.   She further stated 

    that   on   5.4.2010     at   about   2.30   p.m.   she   attended   her 

    examination     of   drawing   and   returned   back   at   5.30   p.m.     At 

    about 6.00 p.m. she prepared food  for all the members of the::: Downloaded on - 09/06/2013 17:30:51 :::13                          cra103.11




                                                                              
    family and at about 8.00 p.m. her father returned  to home and 

    she   served   him   food   and   after   dinner   he   went   outside   the 




                                                      
    house.  Thereafter, the prosecutrix, her sister Nikita and grand 

    father Bhausaheb   took their dinner and went to sleep in the 




                                                     
    court yard of the house.14          She   further   stated   that   about   11.00   p.m.   her   father 
                        
    returned back to home and   pulled   her legs and thereby she 
                       
    was woke up and the appellant/accused dragged  her inside of 

    the   house   from   the   court   yard   and   while   dragging   inside   the 

    house   she   requested   him   not   to   do   the   atrocity   on   her,   but 
      
   



    accused   ignored   her   and   gave   her   threat   not   to   shout     and 

    further gave threat to kill her, if shouted.   Hence, prosecutrix 





    started  weeping and crying. The appellant removed his clothes 

    as well as her clothes and thereafter he laid the prosecutrix on 

    the   cot   and   divided   her   legs   to   opposite   sides.     There   was 





    mattress (Gadi) covered with quilt (Godhadi). He   laid on her 

    person     and   committed   the   sexual   intercourse   with   her   like 

    husband   and   wife,   and   thereby   she   started   paining   to   her 

    private part  and she became unconscious. At about 4.00 a.m. 

    her father appellant kicked her and woke her up and asked  to::: Downloaded on - 09/06/2013 17:30:51 :::14                         cra103.11




                                                                            
    prepare food for tifin, and accordingly, she prepared food and 

    appellant took   tifin and   left at 7.00 a.m. for work and before 




                                                    
    leaving the house  he threatened to the prosecutrix to kill her,  if 

    she disclosed the incident to anybody.15          Thereafter, she stated that she took the bath and told 




                                       
    the said event to her sister Nikita and grand father Bhausaheb, 
                       
    and further informed to Badambai i.e. her remote grand mother, 
                      
    who in turn informed to her son Raghunath Kothule. Thereafter 

    prosecutrix   and   her   sister   Nikita   resided   at   the   house   of 

    Badambai and Raghunath for about 4-5 days. Accordingly, on 
      
   



    12.4.2010 Badambai and Raghunath took the prosecutrix and 

    her   sister   to   the   house   of   her   maternal   uncle     Chandrakant 





    Borude   at   Sarola   Baddi,   Taluka   Nagar   and   she   narrated   the 

    afore said incident to him.     Accordingly, Chandrakant Borude 

    took the prosecutrix and Nikita to the Child Line Care Center, 





    Ahmednagar and the prosecutrix narrated the untoward incident 

    occurred at the hands of her father to Shri Panchal, Manisha 

    Kasar   and   Kundan   Pathare,   and   with   their   help,   approached 

    Nagar Taluka police station and narrated the incident to police 

    personnel, and accordingly, her complaint was recorded, which::: Downloaded on - 09/06/2013 17:30:51 :::15                         cra103.11




                                                                            
    was treated as the first information report (Exh.15).16          Thereafter, she further stated that she was referred to 

    the Civil Hospital and her medical examination was conducted 




                                                   
    and she also gave her history and stated that about two months 

    prior to the incident, her father drove her grand mother Babaibai 




                                       
    from the house and in the absence of grand mother, outraged 
                       
    her modesty and used to behave with her in filthy and badly 
                      
    manner.     She   further   stated   that   during   investigation,   her 

    clothes were seized and she further stated that the accused be 

    sentenced for life.17          In the cross-examination, she stated that there were 





    scratches   on   her   back   due   to   dragging   and   pulling   and   she 

    cried loudly and also shouted in low voice, but did not give call 

    to her grand father or sister or neighbourer.   She also stated 





    that she attempted to escape from the clutches of her father.She  further stated that she  resisted  her father while    making 

    intercourse   with   her.   However,   she   stated   that   she   did   not 

    sustain any injury on her back at that time. She also stated that 

    her father was drunkard and addicted to alcohol.::: Downloaded on - 09/06/2013 17:30:51 :::16                         cra103.11




                                                                              
    18          According to her, she did not go to the police station 




                                                      
    after lodging the complaint on 14.4.2010 and also did not go to 

    Khadki to the house of the accused.   She   further stated that 




                                                     
    her father accused   picked up quarrel with her grand mother 

    and   drove   her   out   of   the   house   and   started   outraging   her 




                                         
    modesty, but she did not make any complaint or narrated the 
                        
    grievance to any person.   She further stated that her maternal 
                       
    uncle used to visit their   house at Khadki on occasions.  She 

    admitted that she did not narrate the event to Tarabai Kothule 

    wife of brother of her father and the contents to that effect were 
      
   



    marked   as   portion   'A'   in   her   complaint   amounting   to 

    contradiction. Moreover, she deposed that she did state before 





    police that she narrated the event to her sister Nikita and grand 

    mother   Badambai,   but   she   could   not   assign   any   reason   why 

    said fact is not mentioned in the police statement amounting to 





    omission therein and improvement in her testimony.  Moreover, 

    she   deposed   that   she   stated   to   the   police   that   she   told   the 

    event of rape to Manisha Kasar and Kundan Pathare, but such 

    mention   is   not   there   in   her   complaint   amounting   to   omission 

    and improvement in her testimony. So also, contradiction was::: Downloaded on - 09/06/2013 17:30:51 :::17                          cra103.11




                                                                             
    brought   on   record   in   respect   of   portion   marked   'B'   in   her 

    complaint.  Few suggestions were given to her, but same were 




                                                     
    denied by her.19          Coming   to   the   testimony   of   PW4   Chandrakant 

    Bhanudas   Borude   i.e.   maternal   uncle   of   victim   Nilima,   who 




                                       
    stated that his sister Kamala @ Sangita died due to heart attack 
                        
    on   29.1.2009   and   accused   Balu   had   two   daughters,   namely 
                       
    Nilima and Nikita. At the time of incident, Nilima was learning in 
     th
    8   standard   in the High School at Khadki.   He further stated 

    that   on   12.4.2010,     Raghunath   Kothule   of   Khadki   brought 
      
   



    Nilima and Nikita at his house at Sarola Baddi at about 9.15 

    a.m. and when both came to his house, they started weeping 





    and   they   were   extremely   nervous,   and   therefore,   he   gave 

    support   to   them,   and   thereafter,   Nilima   told   him   about   the 

    occurrence of the incident and narrated that   in the night   at 





    about 9.00 p.m. Balu took food and went outside the house and 

    then   came   back   at   11.00   p.m.   and   thereafter     held   legs   of 

    Nilima while she was asleep and pulled her with skidding  and 

    dragged inside the house and when he was  removing clothes 

    on his person,   Nilima was beseeching not to do the shameful::: Downloaded on - 09/06/2013 17:30:51 :::18                         cra103.11




                                                                            
    and abominable act, but he removed her clothes and committed 

    rape on her and she became unconscious till 4.00 a.m. when 




                                                    
    accused father kicked her and woke her up.  Thereafter Nilima 

    prepared food, accused took his tiffin and left the house at  7.00 




                                                   
    a.m.   She further narrated that accused gave her threat to kill 

    her   if   she   narrated   the   incident   to   any   person.   Thereafter, 




                                       
    Nilima   stated   that   she   went   to   the   house   of   Badambai   and 
                       
    narrated the incident to her.  Then, Badambai took Nilima  and 
                      
    her sister in their house   on the land.   Thereafter, Raghunath 

    Kothule   gave   meassage   to     PW4   Chandrakant   Borude   on 

    telephone and reported him that accused treated his daughters 
      
   



    with   cruelty   and   assaulted   them.     Hence,   PW4   Chandrakant 

    Borude  informed Raghunath Kothule not to bring the said girls 





    to his house for 4-5 days due to death of his aunt Draupadabai 

    and   her     last   rites,   and   he   brought   them   thereafter   on 

    12.4.2010.20          PW4   Chandrakant   Borude   further   stated   that   on 

    hearing the afore said event, he was shocked and on 13.4.2010 

    he decided to approach the Child  Line Center, Ahmednagar in 

    the   interest   of   both   the   minor   girls   Nilima   and   Nikita   at::: Downloaded on - 09/06/2013 17:30:51 :::19                          cra103.11




                                                                              
    Ahmednagar.  He further stated that the office bearers of Child 

    Line   Center   advised   him   that   it   was   necessary   to   report   the 




                                                      
    incident to the police  though the girl is minor.    Accordingly, on 

    14.4.2010,   he   approached   Ahmednagar   Taluka   police   station 




                                                     
    along     with     his     wife,   prosecutrix   Nilima,   his     maternal 

    uncle Raghunath Kothule, Manisha Kasar and Kundan Pathare 




                                        
    of Child Line Center. Accordingly, police personnel   recorded 
                        
    the complaint of prosecutrix Nilima, as well as police personnel 
                       
    recorded  his statement on 15.4.2010.21          In   the   cross-examination,   he   stated   that   another 
      
   



    maternal   uncle   of   victim   Nilima,   namely   Raghunath   told   him 

    about   the   incident   whatever   he   heard.   However,   PW4 





    Chandrakant     stated   that   Raghunath   did   not   state   him   on 

    6.4.2010 that accused raped Nilima at about 11.00 a.m. He also 

    stated that he did not make further contact with Raghunath to 





    get   additional   information.       He   even   did   not   talk   with 

    Raghunath on 7.4.2010, and  neither Raghunath nor Badambai 

    came to his residence on the said date.   Badambai also told 

    him   about   the   incident   on   phone.   He   further   stated   that   till 

    12.4.2010   he  did  not  meet  Raghunath  Kothule  or  his  mother::: Downloaded on - 09/06/2013 17:30:51 :::20                          cra103.11




                                                                               
    Badambai.     However,   on   12.4.2010   both   the   girls   and 

    Raghunath came to his home. However, he did not discuss the 




                                                       
    event occurred with Nilima, since persons had gathered on the 
         th
    10  day on the cause of death of his aunt, namely Drupadabai.He also stated that he did not bring Nilima to police station on 

    13.4.2010. He also admitted that till 12.4.2010 Nilima and Nikita 




                                         
    did   not   make   contact   with   him   on   phone.     On   14.4.2010 
                         
    Raghunath Kothule again came at Nagar and thereafter he, his 
                        
    wife Anita and both the girls   came to Child Line Center.   He 

    also   stated   that   Kotwali   police   station   is   situated   on   the   way 

    near   Child   Line   Center.   He   also   stated   that   he   was   knowing 
      
   



    and had learnt that Child Line Center gives hand to the children 

    who   are   victims   of   atrocity,   illtreatment   and   outraging   of 





    modesty, etc.  



    22          As regards, recording of the complaint, he stated that 





    between 12.00 noon to 1.00 p.m. they were in the police station 

    and police recorded the complaint of victim during that period 

    on   14.4.2010   as   per   the   events   narrated   by   the   victim.Contradiction   as   to   portion   marked   'A'   in   the   contents   of   his 

    police statement was brought on record that he stated to police::: Downloaded on - 09/06/2013 17:30:51 :::21                         cra103.11




                                                                           
    about the incident. Alike, the police also interrogated with his 

    wife. Moreover, omission was taken out in his police statement 




                                                   
    and improvement in his testimony that Nilima stated about the 

    incident to Badambai and Badambai took her in the land Mala.Few suggestions  were   given  to  him   that  false  complaint  was 

    lodged   against   the   accused   with   the   assistance   of   office 




                                      
    bearers of the Child Line Center, but same were denied by him.23         That takes me to the evidence of PW6 Dr. Kalamkar 

    Sandip   Malhari,   who   stated   that     he   was  serving   as  Medical 

    Officer at Civil Hospital, Ahmednagar at the relevant time and 
      
   



    on   14.4.2010     the   police   personnel   referred   the   prosecutrix 

    Nilima   for   medical   examination   along   with   letter   (Exh.26), 





    which comprised  following five points  :-(1)        Whether the prosecutrix is competent physically for  
               sexual  intercourse ?(2)        Whether there is penetration of penis in the vagina of 
               the  prosecutrix ?(3)        Whether injuries or marks of injury is present to 
               internal or outer side of vagina ?::: Downloaded on - 09/06/2013 17:30:51 :::22                         cra103.11




                                                                           
    (4)        Whether stains of semen present inside or outside of 
               vagina ?(5)        And lastly the age determination test to confirm the  
               age of  prosecutrix.24         Accordingly, Dr. Malhari stated that he carried out the 




                                      
    medical   examination   of   the   prosecutrix   with   reference   to   the 

    said letter Exh.26.  He also stated that he recorded the history 
                       
    of rape as per the narration of prosecutrix Nilima that she was 
                      
    raped on 5.4.2010 and   she had taken her regular bath every 

    day thereafter till the medical examination.  During examination, 
      


    he   noticed,     secondary   sexual   characters   moderately 
   



    developed, breast developed moderately, and public hairs and 

    auxillary hairs developed moderately. There were no marks or 





    sign  of  any  external injury on  all  over  body  including  vagina.On internal examination  of vagina, he  found that hymen  was 

    ruptured  and  it  was  easily  passing   two  fingers  inside  vagina.Thereafter he collected the samples of (1) blood in plain and 

    cited phial, (2) nails of toes and fingers, (3) pubic hairs,  and  (4) 

    vaginal swab.25         He further stated that thereafter he referred the victim::: Downloaded on - 09/06/2013 17:30:51 :::23                         cra103.11




                                                                             
    to the Gynecologist for medical examination and received the 

    report of female unmarried girl about 13 years   with history of 




                                                     
    rape.   He stated that as stated by victim menstrual cycle was 

    not started and secondary sexual characters were in developing 




                                                    
    stage.   Auxillary   pubic   hairs   were   present   and   breast   was 

    developing.     No   evidence   of   external   or   internal   region   in 




                                        
    around vagina and other parts of the body was seen.  In vaginal 
                        
    examination,   hymen   was   found   ruptured,   no   fresh   injuries   or 
                       
    bleeding   was   seen   from   inside.   Two   fingers   were     easily 

    passing   in   vaginal   region   and   uterus   was   normal   in   size, 

    anteverted and free, servix  and vaginal health.26          He   also   stated   that   the   victim   was   then   sent   for 





    radiological examination to confirm her age.  Accordingly,  X-ray 

    of wrist joint, elbow joint and of iliac bone and x-ray of skull, 

    scalp   were   taken.   However,   opinion   of   radiologist   was   not 





    recorded.         Accordingly,   PW6     Dr.   Malhari   stated     that     he 

    issued   medical   examination   certificate,   which   is   produced   at 

    Exh. 27.   He further stated that at the out set while recording 

    history, victim told her age as 13 years and name Nilima. He 

    agreed   that   secondary   sexual   characters   can   be   found::: Downloaded on - 09/06/2013 17:30:51 :::24                         cra103.11




                                                                              
    developed   in   the   female   above   15   years.     Accordingly,   he 

    recorded   secondary   sexual   characters   in   developing   state   in 




                                                      
    medical   examination   certificate.     He   further   stated   that 

    existence of injuries depends on passing of longer period and 




                                                     
    nature of the injuries and the victim was produced for medical 

    examination after the period of 9 days from the date of rape.According   to   him,   rupture   of   hymen   is   sign   of   sexual 
                        
    intercourse.27          In   the   cross-examination,   he   stated   that   he   agrees 

    with   the   observation   of   Dr.   Modi   that   in   female   women 
      
   



    menstrual cycle   may be started at the age of 10 to 11 years.He also stated that he agrees with the observation of Dr. Modi 





    that marks of violence may be found present on every part of 

    body like forearm, wrist, face, breast, lower part of the abdomen 

    and internal aspects of thighs and back.  The injuries scratches, 





    abrasion, bruises are the marks of resistance and struggle to 

    rape   and   such   injuries   can   be   seen   at   the   time   of   medical 

    examination.   However, he stated that he does not agree that 

    the   injuries   may   be   seen   after   7-8   days   after   rape   and     it 

    depends   upon   the   nature  and   gravity  of    existence   of  longer::: Downloaded on - 09/06/2013 17:30:51 :::25                          cra103.11




                                                                                
    period.     He also stated that it is probable that in rape cases, 

    due to struggle and resistance, injuries like scratches, bruises, 




                                                        
    abrasion can be found on the body of rapist.   He further stated 

    that   he   agrees   with   the   observation   of   Dr.   Modi   that   vaginal 




                                                       
    orifice in case of a girl of 14 years is of so small size that it will 

    be difficult for passing of little finger in vagina. He further stated 




                                          
    that he agrees with the observations of Dr. Modi that passing of 
                         
    two   fingers   in   vagina   is   possible   in   case   of   frequent   sexual 
                        
    intercourse committed with female.  However, he stated that by 

    single act of sexual intercourse may not give the observation of 

    passing  two  fingers easily  and further  agreed  that  in  case  of 
      
   



    forceful   sexual   intercourse     like   rape   on   a   female   below   14 

    years of age, it becomes difficult for the victim even to walk in 





    order.   He admitted that during medical examination of victim, 

    he   found     no   injury   in   libia   majora,   libia   minora   and   in   her 

    vagina.  He further stated that he agrees with the observation of 





    Dr. Modi that injury to the penis of a young person is probable 

    when   forceful sexual intercourse is committed on a minor girl 

    below   age   of   14   years   and   it   depends   on   hymen   size   i.e. 

    hymnal orifice.      Few  suggestions  were given  to  him  that he 

    falsely stated that he carried out medical examination of victim::: Downloaded on - 09/06/2013 17:30:51 :::26                         cra103.11




                                                                          
    Nilima and recorded her history and other particulars, but same 

    was denied by him. It was further suggested that the opinion of 




                                                 
    radiologist is not taken purposely for the reason that age of the 

    victim was above 16 years, but same was also denied by him.28         Coming  to the deposition of PW2 Dr. Bharti Shahaji 




                                     
    Peche, who examined the appellant herein and she stated that 
                      
    she   was   serving   as   Medical   Officer   in   Civil   Hospital, 
                     
    Ahmednagar   since   last   eight   years   and   on   14.4.2010   the 

    accused   Balasaheb   Kothule   was   produced   for   medical 

    examination along with letter (Exh.17).  Accordingly, she carried 
      
   



    out     the   medical     examination   of   Balasaheb   Kothule   and 

    extracted     the  samples of   blood,  hairs and   nail on  the  same 





    day.   She further stated that on the next day the other doctor 

    collected   sample  of semen  of  the accused.        She   produced 

    M.L.C. paper   at Exh.18, as well as produced case papers at 





    Exh.19,   which   show     that   the   accused   was   produced   on 

    15.4.2010 for taking the sample of semen.   After sealing   the 

    sample of blood, hair and nails of the accused she affixed the 

    lable   and  handed  over  the  same   in  the  custody  of  police   for 

    sending it to the Chemical Analyser. She further stated that she::: Downloaded on - 09/06/2013 17:30:51 :::27                          cra103.11




                                                                               
    prepared the certificate (Exh.20) on the basis of entries in the 

    medical certificate.29          In the cross-examination, she stated that it may be or 




                                                      
    may not be probable to result injury by forceful rape on a girl of 

    14 years old.  She further admitted that minor injury to a girl on 




                                         
    the   verge   of   her   young   age   is   possible   during   forceful 
                         
    intercourse,     She stated that major injury may survive for the 
                        
    period of 4 to 5 days as an impact of rape and minor injuries 

    may not survive.     It was suggested to her that   she has not 

    referred   that     the   samples   of   hair,   blood   and   nail,   etc.   were 
      
   



    sealed and packed for handing over to the police for sending to 

    the Chemical Analyser, but same was denied by her.30          On   the   afore   said   material   evidence 

    adduced/produced   by   the   prosecution   on   record,   learned 





    counsel   for   the   appellant   submitted   that   although   the 

    prosecutrix Nilima stated   that she narrated the incident to his 

    grand father Bhausaheb, but prosecution has not examined the 

    said   material   witness   for   the   reasons   best   known   to   the 

    prosecution   and   the   said   infirmity   hampers   the   case   of   the::: Downloaded on - 09/06/2013 17:30:51 :::28                          cra103.11




                                                                               
    prosecution. It was also canvassed that   the prosecution also 

    failed   to  examine  the   younger  sister  of  victim,  namely  Nikita, 




                                                       
    who could have thrown better light on the prosecution case, but 

    the   prosecution   failed   to   examine   the   said   important   witness 




                                                      
    also, which sustains fatal blow to the case of prosecution.31          Moreover, it is vehemently argued by learned counsel 
                         
    for the appellant that there is delay of 9 days in lodging the first 
                        
    information   report,   since   the   alleged   incident   occurred     on 

    5.4.2010;   whereas     the   first   information   report   came   to   be 

    lodged   after   the   lapse   of   9   days   i.e.     on   14.4.2010   and   the 
      
   



    prosecution   has   not   given   any   convincing   and   plausible 

    explanation therefor, which also creates suspicion about base 





    of   the   prosecution   case   and     possibility   of   concocting   after 

    though false story against the appellant  cannot be ruled out.  It 

    is also canvassed by the learned counsel for the appellant that 





    the timing in the first information report and the timing given by 

    PW4 Chandrakant   Borude differs from each other, since the 

    first information report discloses time as 1700 hours; whereas 

    PW4   Chandrakant   Borude   stated   that   report   was   lodged 

    between 12.00 noon and 1.00 p.m. on 14.4.2010 and the said::: Downloaded on - 09/06/2013 17:30:51 :::29                          cra103.11




                                                                               
    variance in the timing of  lodging the first information report also 

    goes to the root of the matter  and diminishes the credibility of 




                                                       
    the prosecution case.     Pertinently, it is also pointed out that 

    even the medical examination of the accused was   conducted 




                                                      
    after   the   period   of   9   days   from   the   alleged   incident   i.e.   on 

    14.4.2010   and   even   the   semen   sample   of   the   accused   was 




                                         
    taken after the lapse of 9 days and his genital part was also 
                         
    examined after delay of 9 days, which amounts to deformity and 
                        
    infirmity in the prosecution case.32          It is asserted by the learned counsel for the appellant 
      
   



    that panch witness PW5 Mithu Sathe and the panchnama are 

    silent in respect of sealing of the articles after seizure thereof, 





    and   therefore,   suspicion   is   created   about   the   consequent 

    chemical   analysis   reports,   since   the   seized   articles   were   not 

    sealed  and possibility of tampering thereof cannot be ruled out.33          It is further canvassed by the learned counsel for the 

    appellant   that   the   prosecutrix   was   pampered   and   tutored   by 

    PW4 Chandrakant Borude and present complaint came to be 

    lodged by the prosecutrix Nilima at the instance and behest of::: Downloaded on - 09/06/2013 17:30:51 :::30                         cra103.11




                                                                            
    said   PW4   Chandrakant   Borude,   who   is   brother   in   law   of   the 

    appellant herein with ulterior motive.34          It is further canvassed by the learned counsel for the 




                                                   
    appellant   that   there   are   omissions   and   contradictions   in   the 

    testimonies of prosecution witnesses i.e. PW1 prosecutrix and 




                                       
    PW4 Chandrakant Borude, which go to the root of the matter 
                       
    and hampers the case of the prosecution. The prosecutrix also 
                      
    admitted about the delay in lodging the first information report 

    and it is further submitted that it is curious to note that although 

    PW1 prosecutrix was dragged by the appellant from courtyard 
      
   



    to the house, she did not sustain any injury on her back. It is 

    also canvassed that although the prosecutrix   cried loudly and 





    shouted   even at low voice, neither her   grand father   nor her 

    younger sister woke up and came there to help her and even 

    she admitted that she did not give call to her grand father or 





    sister or neighbourer, which raises suspicion about the conduct 

    of the prosecutrix and absolves the appellant from the alleged 

    offence.35          As   regards   the   testimony   of   PW4   Chandrakant::: Downloaded on - 09/06/2013 17:30:51 :::31                          cra103.11




                                                                               
    Borude, it is canvassed that the said testimony also has been 

    impeached   in  the  cross-examination  and  there  are  omissions 




                                                       
    and contradictions, which go to the root of the matter.  It is also 

    canvassed   that   although   PW4   Chandrakant   Borude   had 




                                                      
    telephoned, it is curious to note that prosecutrix Nilima and her 

    sister Nikita did not ring him up and inform the occurrence of 




                                         
    the  alleged  incident  at  the  earlier  point  of  time and  it  is  also 
                         
    submitted that he took the prosecutrix to the police station on 
                        
    14.4.2010   and   lodged   the   first   information   report   of   the 

    prosecutrix   after   the   lapse   of   about   9   days   from   the   date   of 

    incident   and     his   statement   was   recorded   thereafter   on 
      
   



    15.4.2010   and   no   proper   explanation   has  been   given   for   the 

    said delay.   Accordingly he submitted that the said testimony is 





    not of any aid and assistance to the case of prosecution.36          As regards the medical evidence, it is submitted that 





    the age of the prosecutrix was not ascertained, although her X-ray was taken and the said radiological certificate has not been 

    produced by the prosecution on   record.   It is also canvassed 

    that the report of the medical examination discloses that there 

    was no mark or sign of any external injury on all over her body,::: Downloaded on - 09/06/2013 17:30:51 :::32                          cra103.11




                                                                                
    including vagina, and therefore, there was no violence, which 

    essentially   culminates   to   the   position   that   no   rape   was 




                                                        
    committed   upon   the   victim   by   the   appellant.   Moreover,   it   is 

    submitted   that   two   fingers   were   easily   passing   through   the 




                                                       
    vagina of the victim, which indicates that she was habituated to 

    sexual   intercourse.     It   has   also   come   in   the   evidence   of   Dr. 




                                          
    Malhari that  in case of forceful sexual intercourse like rape on a 
                         
    female below 14 years of age, it becomes difficult to the victim 
                        
    even to walk in order, but same did not happen with the victim.He also stated that in case of rape after making struggle and 

    resistance, injuries like scratches, bruises, abrasion also can be 
      
   



    found  on the body of rapist, but nothing was found on the body 

    of appellant during his medical examination conducted by Dr. 





    PW2   Bharati   Peche.     Even,   it   is   submitted   that   blood   and 

    semen samples of the appellant were taken after the lapse of 9 

    days and the said delay  also brings the medical examination of 





    the appellant under the cloud of suspicion. It is submitted that 

    the   timing   in   lodging   the   first   information   report   given   in   the 

    deposition of PW4 Chandrakant Borude differs and it is stated 

    that   the   first   information   report   discloses   the   timing   as   1700 

    hours; whereas PW4 Chandrakant Borude stated the timing of::: Downloaded on - 09/06/2013 17:30:51 :::33                          cra103.11




                                                                              
    lodging the complaint between 12.00 noon and 1.00 p.m. and 

    the   said   variance   also   creates   doubt   about   the   timing   of   the 




                                                      
    lodging   of   the   first   information   report.     Accordingly,   it   is 

    submitted that the prosecutrix   was pampered and tutored   by 




                                                     
    PW4 Chandrakant Borude   i.e. brother in law of the appellant 

    and the complaint/the first information report was lodged by the 




                                        
    prosecutrix     Nilima   against   her   father   at   the   instance   of   her 
                        
    maternal   uncle   PW4   Chandrakant   Borude   and   the   appellant 
                       
    has  been  implicated     falsely in  this  case,  and  urged  that  the 

    present appeal be allowed and the appellant be acquitted.37          Learned   Additional   Public   Prosecutor   countered   the 

    said   arguments   vehemently   and   submitted     that     the   ocular, 





    documentary and medical evidence adduced/produced by the 

    prosecution is in consonance with each other, which connects 

    the   appellant   with   the   guilt.     He   also   canvassed   that   the 





    testimony of  prosecutrix is  trustworthy and reliable and there is 

    no lacuna therein, and hence, same is required to be accepted, 

    and   consequently,   is   required   to   be   believed   to   base   the 

    conviction against the appellant.::: Downloaded on - 09/06/2013 17:30:51 :::34                          cra103.11




                                                                                 
    38           As   regards   the   alleged   delay   in   lodging   the   first 

    information report, it is submitted that the date of occurrence of 




                                                         
    incident  is 5.4.2010;  whereas the complaint came to be lodged 

    on   14.4.2010   i.e.   after   the   lapse   of   9   days   and   in   the   said 




                                                        
    context,   it   is   submitted   that   PW4   Chandrakant   Borude   i.e. 

    maternal   uncle   of   victim   has   given     convincing   explanation 




                                           
    therefor that his aunt, namely Draupadabai   had expired and 
                          ig                                                 th
    after the expiry of  mourning period  i.e. after the 10   day and 
                        
    her last rites, he talked to the victim and lodged the complaint 

    immediately   on   14.4.2010   and   the   said   explanation   given   by 

    PW4 Chandrakant Borude is plausible.39           In support of his argument, learned  Additional Public 





    Prosecutor appearing on behalf of the respondent/State  relied 

    upon the observations made by the Hon'ble Supreme Court in 

    the judicial pronouncement in the case of Satyaopal vs State of 





    Haryana, reported at AIR 2009 SC 2190, which are as follows :-" 20.         This   Court   can   take   judicial   notice   of 
                 the   fact   that   ordinarily     the   family   of   the   victim 
                 would not intend to get a stigma attached to the 
                 victim.     Delay   in   lodging   the   First   Information::: Downloaded on - 09/06/2013 17:30:51 :::35                          cra103.11




                                                                              
                Report   in   a   case   of   this   nature   is   a   normal 
                phenomenon.   Both   the   courts  below   apart   from 




                                                      
                relying   on   a   part   of   the   testimony   of   the 
                prosecutrix   found   the   evidence   of   PW-5   to   be 
                absolutely   reliable.   The   medical   evidence   itself 




                                                     
                being   a   part   of   the   evidence   is   required   to   be 
                appreciated in the context of ocular evidence and 
                other circumstances surrounding thereto.40It   is   also   canvassed   by   learned   Additional   Public 

    Prosecutor     that   the   medical   evidence   adduced   by   the 
                       
    prosecution through PW6 Dr. Malhari, who examined the victim 

    and   the   medical   report   and   case   papers   pertaining   to   victim 
      


    produced by him as well as the medical  evidence adduced by 
   



    the prosecution through PW2 Bharati Peche, who examined the 

    accused and the medical report and case papers submitted by 





    her   in   respect   of   accused   correlate   with   each   other   and 

    amounts   to   cogent   and     incriminating   evidence   against   the 





    appellant, which connects the appellant with the crime.41          As   regards   the   argument   advanced   by   the   learned 

    counsel   for   the   appellant   that   prosecution   did   not   examine 

    grand father, namely Bhausaheb and younger sister of victim::: Downloaded on - 09/06/2013 17:30:51 :::36                         cra103.11




                                                                              
    namely   Nikita,   it   is   submitted   that   there   was   no   necessity   to 

    examine   the   said   witnesses,   since   testimony   of   PW1 




                                                      
    prosecutrix Nilima is self-explicit, who has narrated the incident 

    with the particulars lucidly and nothing could be elicited through 




                                                     
    her   cross-examination   beneficial   to   the   case   of   the   accused, 

    and hence, the said deposition of PW1 prosecutrix itself and the 




                                         
    other   circumstantial   evidence,   such   as  medical   evidence   and 
                        
    the Chemical Analyser's reports Exhs. 43 to 46 pertaining to the 
                       
    blood on the quilt and semen on the bed cover and blood on the 

    kurta, which pertained to 'A' group, connect the accused with 

    the crime clinchingly.42          It is further submitted that there is no substance in the 





    defence taken by the appellant that prosecutrix   filed the false 

    case against the appellant at the instance of her maternal uncle 

    PW4   Chandrakant   Borude,   who   pampered   and   tutored   the 





    prosecutrix and it is submitted that no daughter would falsely 

    implicate her father at the instance of her maternal uncle in the 

    crime, such as in the present case.  It is further submitted that, 

    in   fact,   the   appellant   has   committed   heinous     crime   i.e. 

    committed   rape   upon   her   own   daughter,   and   hence,   it   is::: Downloaded on - 09/06/2013 17:30:52 :::37                          cra103.11




                                                                              
    submitted   that   the   learned   Trial   Court   has   scrutinized     and 

    assessed   the   evidence   and   convicted   and   sentenced   the 




                                                      
    appellant properly and no interference therein is warranted in 

    the present appeal and urged that present appeal be dismissed.43         Learned   Additional   Public   Prosecutor   for   the 




                                        
    respondent/State   relied   upon   the   observations   made   by   the 
                       
    Hon'ble   Supreme   Court   in   the   judicial   pronouncement   in   the 
                      
    case of Siriya aliasShri Lal vs State of M.P., reported at 2008 

    AIR SCW 3940, which are as follows :" 7.         The   law   regulates   social   interests, 
               arbitrates   conflicting   claims   and   demands. 
               Security of persons and property of the people is 





               an   essential   function   of   the   State.     It   could   be 
               achieved through instrumentality of criminal law. 
               Undoubtedly,   there   is   a   cross   cultural   conflict 
               where   living   law   must   find   answer   to   the   new 





               challenges and the courts are required to mould 
               the   sentencing   system   to   meet   the   challenges. 
               The contagion of lawlessness would   undermine 
               social   order   and   lay   it   in   ruins.     Protection   of 
               society and stamping out criminal proclivity must 
               be the object of law   which must be achieved by 
               imposing appropriate sentence. Therefore, law as 
               a   corner   stone   of   the   edifice   of   "order"     should::: Downloaded on - 09/06/2013 17:30:52 :::38                         cra103.11




                                                                   
      meet   the   challenges   confronting   the   society. 
      Friedman in his "Law in Changing Society" stated 




                                           
      that, "State of criminal law continues to be - as it 
      should   be   -   a   decisive   reflection   of   social 
      consciousness   of   society".     Therefore,   in 




                                          
      operating   the   sentencing   system,   law   should 
      adopt the corrective machinery or the deterrence 
      based   on   factual   matrix.     By     deft   modulation 




                              
      sentencing process be stern where it should be, 
      and     tempered   with   mercy   where   it   warrants   to 
              
      be.   The   facts   and   given   circumstances   in   each 
      case,   the     nature   of   the   crime,   the   manner   in 
             
      which it was planned and committed, the motive 
      for commission of the crime, the conduct of the 
      accused,   the   nature     of   weapons   used   and   all 
      other attending circumstances are relevant facts 
      


      which would enter into the area of consideration.8.          Therefore,   undue   sympathy   to   impose 
      inadequate sentence would do more harm to the 





      justice system to undermine the public confidence 
      in the efficacy of law and society could not long 
      endure   under   such   serious   threats.     It   is, 
      therefore, the duty of every court to award proper 





      sentence   having   regard   to   the   nature   of   the 
      offence and the manner in which it was executed 
      or committed etc.  This position was illuminatingly 
      stated   by   this   Court   in   Sevaka   Perumal   etc.   v. 
      State of Tamil Nadu (1991 (3) SCC 471). "::: Downloaded on - 09/06/2013 17:30:52 :::39                         cra103.11




                                                                              
    44          I   have   perused     the   impugned   judgment,   dated 

    12.1.2011;   the   ocular,   the   documentary   and   the   medical 




                                                      
    evidence adduced/produced by the prosecution on record; and 

    also heard the submissions advanced by the learned counsel 




                                                     
    for the parties anxiously and at the out set, as regards 9 days 

    delay   in   lodging   the   first   information   report,   admittedly   the 




                                         
    alleged   incident     of   committal   of   rape   upon   victim   Nilima 
                        
    occurred   on   5.4.2010;     whereas   the   first   information   report 
                       
    came to be lodged on 14.4.2010 and in the said context, it is 

    material to note that the prosecutrix PW1 Nilima stated in her 

    deposition   that   she   was   scared   and   frightened     due   to   said 
      
   



    incident of committal of rape upon her by the accused, and she 

    and her sister Nikita approached Badambai Sitaram Kothule i.e. 





    her remote grand mother from the side of mother and told her 

    the   occurrence   of   the   incident,   and   in   turn,   she   narrated   the 

    said   incident   to   her   son,   namely   Raghunath   Kothule   and 





    thereafter for 4-5 days victim Nilima and Nikita   resided in the 

    land  of   Badambai  and  her  son  Raghunath   and  on  12.4.2010 

    Raghunath Kothule took both the said sisters to the house of 

    PW4 Chandrakant Borude maternal uncle of victim Nilima and 

    she narrated him the untoward incident occurred with Nilima at::: Downloaded on - 09/06/2013 17:30:52 :::40                         cra103.11




                                                                              
    the   hands   of   appellant,   and   PW4   Chandrakant   Borude   has 

    categorically stated in his deposition that at that time he was 




                                                      
    busy on account of death of his aunt   and after expiry of said 

    period of mourning, he  approached the police personnel along 




                                                     
    with Nilima and lodged the complaint on 14.4.2010, and hence, 

    it   is   amply   clear   that   the   prosecution   has   explained   the   said 




                                         
    delay i.e. from 5.4.2010 to 14.4.2010 convincingly.45          Moreover, the state of mind of victim Nilima, who was 

    hardly   of   13   to   14   years   of   age   at   the   relevant   time,   is 

    necessary   to   be   considered,   since   committal   of   rape   at   the 
      
   



    hands   of   her   own   father   gave   indelible   scar   not   only   on   her 

    body but on her mind also and the feeling of  betrayal of trust in 





    the   mind   of   victim   Nilima   is   required   to   be   considered   with 

    gentle   approach,     since   the   person   i.e.   father,   in   whom   she 

    reposed   the   trust   and   confidence   to   protect   her,   he   himself 





    betrayed her by committing rape upon her and the said aspect 

    also is required to be considered while assessing the delay in 

    lodging the first information report and there is no doubt that 

    the   prosecution   has   given   plausible   explanation   for   the   said 

    delay,   and   hence,   same   would   not   be   an   impediment   in   the::: Downloaded on - 09/06/2013 17:30:52 :::41                          cra103.11




                                                                              
    prosecution case.46          As   regards   time   of   the   lodging   the   first   information 

    report on 14.4.2010, the first information report discloses that it 




                                                    
    was   registered   at   about   1700   hours   on   14.4.2010;   whereas 

    PW4     Chandrakant   Borude   has   stated   in   his   deposition   that 




                                        
    they were in the police station between 12.00 noon to 1.00 p.m. 
                       
    on 14.4.2010 and the police recorded the complaint within the 
                      
    said period of one hour.  It is pointed out that the complaint of 

    PW1 Nilima was recorded at about 1.00 p.m. on 14.4.2010, but 

    offence   came   to   be   registered   on   the   basis   of   the   said 
      
   



    complaint at about 1700 hours on the same day under C.R. No. 

    62 of 2010 by the police personnel  and considering the totality 





    of the circumstances,  the said difference in the timing does not 

    hamper the case of the prosecution.47          Moreover, it is material to note that the testimony of 

    PW1 Nilima i.e. prosecutrix   is self-explicit and she has given 

    the   details   meticulously   about   the   occurrence   of   the   incident 

    therein   and   it   has   not   been   shaken   in   the   searching   cross-examination by the defence.  True it is, there are few omissions::: Downloaded on - 09/06/2013 17:30:52 :::42                          cra103.11




                                                                              
    and a contradiction therein, but same are not vital and do not go 

    to the root of the matter and do not diminish the credibility of her 




                                                      
    testimony. Moreover, it is also material to note that PW1 Nilima 

    also categorically stated about the chain of the incidents since 




                                                     
    the   death   of   her   mother   and   also   the   occurrence   of   the 

    incidents   about   two   months  prior   to   5.4.2010,   as  well   as  the 




                                        
    events   occurred   on   the   date   of   incident   i.e.   5.4.2010 
                        
    meticulously   and   also   her   testimony  reflects  the   conduct   and 
                       
    behaviour of the appellant herein and nothing beneficial to the 

    case   of   the   appellant   could   be   elicited     from   the   searching 

    cross-examination conducted by the defence, and therefore, it 
      
   



    is   amply   clear   that   the   said   testimony   withstood   the   test   of 

    cross-examination  and has not been demolished  therein, and 





    hence,   same   is   required   to   be   accepted   as   reliable   and 

    trustworthy to connect the appellant with the crime.48          As   regards   the   defence   of   the   accused   that 

    prosecutrix   was   pampered   and   tutored   by  PW4   Chandrakant 

    Borude i.e. brother in law of accused and the present complaint 

    came to be lodged by the prosecutrix Nilima at the behest of::: Downloaded on - 09/06/2013 17:30:52 :::43                          cra103.11




                                                                             
    PW4 Chandrakant Borude falsely with ulterior motive, the said 

    defence   is   not   acceptable,   since   considering   the   facts   and 




                                                     
    circumstances in the present case, it is not conceivable that a 

    daughter i.e. PW1 Nilima prosecutrix lodged the false complaint 




                                                    
    against her own father in respect of committal of rape, at the 

    instance   and   on   the   behest   of   her   maternal   uncle   PW4 




                                       
    Chandrakant   Borude   and   considering   the   oral,   documentary 
                        
    and medical evidence on record, which is in consonance with 
                       
    each other, the said defence bears no substance.49          Besides, it is pertinent to note that   the prosecution 
      
   



    has produced the bona fide certificate of victim Nilima  at Exh.32,   which   discloses   her   date   of   birth   as  18.6.1997  and   the 





    incident of committal of rape occurred on 5.4.2010, and hence, 

    it is apparently clear that the age of the victim Nilima was about 

    13   years     on   the   date   of     occurrence   of   the   incident   and 





    although  radiological  examination of the victim was conducted, 

    but her said report was not recorded and such non-recording of 

    said   report   will   not   hamper   the   case   of   the   prosecution, 

    considering the very bona fide certificate disclosing the date of 

    birth of victim Nilima therein.::: Downloaded on - 09/06/2013 17:30:52 :::44                          cra103.11




                                                                             
    50          Keeping   in   mind   the   oral   evidence   of   PW1   Nilima 




                                                     
    prosecutrix and considering the medical evidence adduced by 

    PW6   Dr.   Malhari,   who   examined   the   victim,   wherein   it   is 




                                                    
    categorically mentioned that on internal examination of vagina 

    of the victim, her hymen was found ruptured and her  menstrual 




                                       
    cycle was not started and considering her age about 13 years, 
                        
    and as two fingers were easily passing through vaginal region, 
                       
    there cannot be any dispute that there was penetration into the 

    vagina of PW1 Nilima and the appellant herein committed rape 

    upon her as stated by her.  Moreover, although no injuries were 
      
   



    found on the libia majora and  libia minora and no mark or sign 

    or any external injury on the body of victim   including vagina 





    were   found,   since   the   victim   has   categorically   stated   in   her 

    deposition that the accused has committed rape upon her and 

    since her hymen was ruptured although she was of 13 years 





    old,   the   said   circumstances   of   alleged   non   violence   will   not 

    diminish the credibility of her testimony and very occurrence of 

    the incident of committal of rape upon her will not come under 

    the cloud of suspicion.::: Downloaded on - 09/06/2013 17:30:52 :::45                         cra103.11




                                                                           
    51         Moreover, the quilt, bed cover and kurta were seized 

    under the panchanama and same were sent to the Chemical 




                                                   
    Analyser's office for examination purpose and the reports of the 

    Chemical Analyser are produced on record at Exhs. 43 to 46, 




                                                  
    and the report of the Chemical Analyser at Exh. 43 discloses 

    that quilt bore human blood of 'A' group, as well as  bed cover 




                                      
    bore human semen of 'A' group and the nicker of victim bore 
                       
    human blood of 'A' group.  As also Chemical Analyser's report 
                      
    Exh. 44 discloses that the blood group of victim Nilima was 'A', 

    as  well as  Chemical Analyser's  report Exh.   45  discloses that 

    blood group of accused was also 'A', and therefore, it is amply 
      
   



    clear that semen on the bed cover pertained to the accused and 

    the blood stains on the quilt and nicker pertained to the victim 





    and   the   said   corroborative   piece   of   evidence   categorically 

    connects the appellant with the crime.52         Having   the   comprehensive     view   of   the   matter   and 

    substratum and entire survey of the tangible evidence including 

    the oral, the documentary and the medical evidence on record 

    and also considering the afore said judicial pronouncements, I 

    am   not   inclined   to   accept   the   submissions   advanced   by   the::: Downloaded on - 09/06/2013 17:30:52 :::46                         cra103.11




                                                                            
    learned   counsel   for   the   appellant   and   the   prosecution   has 

    proved   and   established   beyond   reasonable   doubt   that   the 




                                                    
    appellant committed rape upon her own daughter, which is not 

    only   loathsome   sin,   but   also   abhorrent,   which   gave   indelible 




                                                   
    scar not only on the body of the victim Nilima, but also on her 

    mind and   the offence committed by the appellant is certainly 




                                       
    shocking and heinous, since the appellant betrayed the trust of 
                       
    her own daughter,  as the protector of the trust i.e. father  has 
                      
    betrayed   the   victim   his  own   daughter,   and   therefore,   learned 

    Trial   Court,   after   scrutinizing   and   analysing   the   evidence, 

    convicted and sentenced the appellant rightly and there is no 
      
   



    glaring   defect   therein,   and   hence,   no   interference   therein   is 

    warranted   in   the   present   appeal,   and   consequently,   present 





    appeal fails.53          In   the   result,   present   appeal   stands   dismissed   and 





    the conviction and  sentence imposed upon the appellant by the 

    judgment and order, dated 12.1.2011, rendered by the learned 

    District   Judge-6   and   Assistant   Sessions   Judge,   Ahmednagar 

    stands   maintained   and   confirmed.     Office   to   inform   to   the 

    appellant   in   the   concerned   jail   accordingly.     Mrs.   Monika::: Downloaded on - 09/06/2013 17:30:52 :::47                         cra103.11




                                                                           
    Purnapatre,     was   appointed   in   the   present   matter   as   an 

    Advocate   for   the   appellant   through   Legal   Aid.   Hence,   her 




                                                   
    remuneration     is   quantified   at   Rs.5,000/-   and   the   Legal   Aid 

    Committee to pay the same to her accordingly.ig             (SHRIHARI P. DAVARE),
                                                     JUDGE. 
                      
    dbm/cra103.11::: Downloaded on - 09/06/2013 17:30:52 :::