The High Court of Bombay partly allowed the criminal appeal. Conviction under Section 376 IPC for rape of a 5-year-old girl was upheld, but the death-warrant life sentence was commuted to 10 years imprisonment and a fine.
Sentence of imprisonment for life reduced to imprisonment for ten years and fine of Rs. 1,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cri. Appeal No. 395/2003
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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 395 OF 2003
Amir Nyamatkha Tadvi, Age 35 years, Occu. Labour, R/o. Loni, Tq. Jamner, Dist. Jalgaon.
....Appellant.
Versus
The State of Maharashtra (Through Sanjay Uttam Mhaske (Vadar) of Loni, Taluka Jamner in Cr.No. 59/2002 of Jamner PS) ....Respondent.
Mr. A.R. Rathod, Advocate for appellant. Mr. S.D. Ghayal, APP for respondent/State.
CORAM : T.V. NALAWADE AND S.M. GAVHANE, JJ.
Reserved on : 18/12/2017 Pronounced on : 11/01/2018
JUDGMENT : [PER T.V. NALAWADE, J.]
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The F.I.R. was given by father of the victim girl. Sanjay Mhaske (PW 2), the complainant is resident of village Loni, Tahsil Jamner and he was living in the village with his wife, victim girl, other girl aged about 2 years and one son and also with father and mother. He is agricultural labourer. The accused also hails from the same village.
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clothes were sent to C.A. office along with blood samples of victim girl and accused. Blood group of victim girl is 'B+' and blood group of accused is 'O'. Blood of 'B+' group is found on the clothes of the accused. After completion of investigation, chargesheet came to be filed for aforesaid offence. In the Sessions Court, charge was framed for aforesaid offence against the accused. The accused pleaded not guilty.
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complainant. He has given evidence that after reaching the spot, he noticed that accused had kept victim girl on his thighs and he was moving her in up and down position and he was giving jerks for having sexual intercourse with her. He has given evidence that the incident was going on in Varanda portion of community hall and not inside of the hall. He has given evidence that after seeing him and others, the accused pushed aside the victim girl, closed the zip of his pant and ran towards the field to escape. He has given evidence that his elder brother Sunil gave chase to accused, but accused escaped. He has given evidence that on the spot when he lifted the victim girl and examined her, he noticed that blood was coming through the genital portion of victim girl and there was blood on the frock and nicker of the victim girl. He has given evidence that the victim girl disclosed the incident to him and then she became giddy. He has given evidence that then he took the victim girl to police where he lodged the report against the accused. The crime was registered in Pahur Police Station and victim girl was referred to Government Hospital. He has given evidence that his daughter was examined in the Government Hospital. The report given by him is proved as Exh. 19.
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22.1.2003. It can be said that it was open to the Trial Court to examine the victim girl by using the provision of section 313 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for short), but considering the age of the victim girl, the Trial Court did not prefer to do so.
observed that in the month of May, the sun sets late and so even in the evening, at 7.00 p.m. from some distance the face of the person
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can be seen. Further, the accused was known to the complainant and the victim girl and so, even if there was some darkness, it was not difficult for the complainant to identify the accused on that evening. His name was given in F.I.R. and due to these circumstances, this Court holds that no probability is created in the evidence of Sanjay Mhaske (PW 2) by the defence that there was no possibility to see the incident or there was no possibility to identify the person who committed the heinous act.
medical evidence shows that blood was found on the thighs of the accused. All these circumstances need to be kept in mind while
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considering the defence suggested during cross examination of Sanjay Mhaske (PW 2).
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his thighs and on pubic hair and she found tenderness over his genital region. The medical certificate prepared by her in respect of accused is duly proved as Exh. 30 in her evidence and after perusal of the record including the C.A. report, she has given opinion that the accused had taken sexual intercourse within 12 hours prior to his examination.
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Sanjay Ahere (PW 1), panch witness on panchanama of
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seizure of clothes of victim girl is examined by the prosecution and in his evidence, the panchanama at Exh. 16 is duly proved. It was prepared between 22.45 hours and 23.00 hours of 28.5.2002. This document shows that on both the frock and the underwear of victim girl, there were many blood stains. The inconsistency which was argued in respect of time of this panchananama and time of examination of victim girl by Medical Officer is already mentioned. There is no reason to disbelieve Ahere (PW 1). The evidence of Ahere (PW 1) shows that he gave his evidence most fairly and he gave evidence during cross examination to show that complainant's side belongs to political party BJP, who was in power in Village Panchayat and accused belongs to NCP. However, there is nothing on the record to show that this witness had adverse interest against the accused. The spot panchanama at Exh. 17 is also proved in his evidence. This evidence corroborates the case of prosecution.
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the accused on this circumstance.
the evidence given by Mhaske (PW 2) on disclosure made to him immediately after the incident by the victim girl is relevant under
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section 6 of the Evidence Act. All these circumstances show that there was no room of false implication. The Trial Court has discussed this evidence and has rightly convicted the accused for the offence of rape.
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accused does not deserve any leniency.
O R D E R
The appeal is partly allowed. The conviction given by the Trial Court to the appellant is maintained, but the sentence given is modified to make it imprisonment for ten years and fine of Rs.1000/(Rupees one thousand). In default of payment of fine amount, accused is to undergo rigorous imprisonment for one month. Accused is entitled to set off in respect of the period for which he was behind bars in this case.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
2 issues framed by the court
Whether the conviction for rape on a 5-year-old girl based on circumstantial evidence stands sustainable on appeal.
Whether the life sentence awarded to the appellant for rape of a minor girl is excessive and requires modification.
4 provisions across 2 enactments
Amir Nyamatkha Tadvi
The State of Maharashtra
T.V. NALAWADE
S.M. GAVHANE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
