Namdeo Raibhan Bobade vs The State of Maharashtra

V.M. Deshpande, J.—Challenge in the present appeal is to the conviction and order of sentence passed by the learned Additional Sessions Judge, Nagpur dated 28/11/2011 by which the learned Judge convicted the appellant in Sessions Trial No. 78 of 2011 for the offence punishable under Section 376(2)(f) of the Indian Penal Code directing that the appellant should suffer rigorous imprisonment for a period of seven years and to pay fine of Rs. 500/- and in default to suffer rigorous imprisonment for one month.

I heard Ms Taksande, learned Counsel appointed by the Legal Aid Committee, which has provided legal aid to the appellant, who is in jail. I also heard Shri Bhoyar, learned Assistant Public Prosecutor for the State. With their able assistance, I have gone through the record and proceedings of the case. Both the learned Counsel articulated their submission in support of their respective prayers.

The age of the prosecutrix in the present case at the time of incident i.e. on 16/11/2010 was 10 (ten) years. The said fact is an admitted fact in as much as, during the trial, the appellant has admitted the Birth Certificate (Exh. 11) of the prosecutrix and her School Leaving Certificate (Exh. 12). Both these documents show that her date of birth is 07/8/2000.

The appellant faced the charge for the offence punishable under Section 376 (2)(f) of the Indian Penal Code as he pleaded not guilty and claimed his trial. In order to bring home the guilt of the appellant, the prosecution has examined in all eleven witnesses. The relevant witnesses would be P.W.-1 Narayan Sawarkar - father, P.W.-2 Sou. Sindhu Sawarkar - mother and P.W.-3 Akshay - brother of the prosecutrix, who has witnessed the heinous act on the part of the appellant. P.W.-6 Dr. Ashutosh Deshmukh has examined the prosecutrix for determination of her radiological age, P.W.-9, the prosecutrix herself and P.W.-11 Dr. Suvarna Sapkal, who has examined the prosecutrix and proved her medical certificate.

The first information report (Exh. 24) is lodged by Narayan. First information report and his substantive evidence shows that, he is having two sons Akshay (P.W.-3), Rushab and a daughter, the prosecutrix. The appellant, who is tailor by profession, resides in front of his house. The first informant engaged himself in the electrical work whereas his wife P.W.-2 Sindhu is engaged herself in cleaning utensils. According to the prosecution case, on 16/11/2010 the first informant was out of his house and his wife also had gone for washing clothes and utensils. Only his three siblings were in the house. He received a mobile call at about 1.30 p.m. from his son Akshay, who asked the first informant to come to the house urgently. When he reached the house, that time it was disclosed to him that the appellant had committed rape on the prosecutrix. The report was immediately lodged to the police.

P.W.-5 Vasant Rathod was Duty Officer at Police Station Hudkeshwar, Nagpur. He reduced into writing the oral report of Narayan. He registered the offence and immediately went to the place of incident which is the house of the appellant himself. The appellant was not available in the house. However, the house was open, no member of his family was present. The spot panchanama (Exh. 30) was drawn. On the very same day, i.e. on 16/11/2010, he recorded statement under Section 161 of the Code of Criminal Procedure of Akshay (P.W.-3) and send the prosecutrix for medical examination.

Dr. Suvarna Sapkal on 16/11/2010 was discharging her duties as Lecturer in Gynecology Department of Government Medical College, Nagpur. She received requisition (Exh. 32) for examining the prosecutrix. The prosecutrix gave the history of assault on her by the appellant. The same was reduced into writing. The prosecutrix also disclosed that some white was discharged by the appellant, thereby suggesting the ejaculation. According to Dr. Suvarna Saplak, on her physical examination, she confirmed labia minora was reddish and was having swelling. Her hymen was torn and the age of said tear injury was within 24 hours of her medical examination. The doctor, on physical examination of private parts of the prosecutrix, in clinching word, had stated that the prosecutrix was subjected to forceful sexual intercourse. Vaginal swab was also taken. Dr. Suvarna Sapkal proved medical certificate (Exh. 62).

During the course of investigation the undergarments of the prosecutrix were seized under seizure memo (Exh. 27). The bed-sheet was also seized from the spot as it could be seen from the spot panchanama (Exh. 30). This muddemal property were sent to the Chemical Analyser. The C.A. Report is available at Exh. 34. The undergarment of the prosecutrix namely a knicker and the bed-sheet seized from the house of the appellant were having semen stains. The DNA test report reads as under.:

"The DNA profile obtained from semen stains detected on Exh. 3 knicker of victim and Exh. 4 bed-sheet from scene are from one and the same source of male origin and matched with paternal and maternal alleles present in blood of accused Namdeo Suryabhanji Bobde."

Thus, it is crystal clear that source of semen stains found on the knicker of the prosecutrix is that of the present appellant.

Thus, the medical evidence, which clearly shows and establishes the forceful intercourse with the prosecutrix, is corroborated by the corroborative forensic evidence namely having found the semen stains on her undergarment.

In this backdrop, let us examine the evidence of P.W.-3 Akshay and P.W.-9, the prosecutrix herself. P.W.-3 Akshay and P.W.-9 Ku. Sonal, the prosecutrix are real brother and sister. Evidence of P.W.-3 Akshay would disclose that he is taking education in 9th standard. Thus, it is clear that he has sufficient knowledge about male and female organs. On the day of the incident, according to him, his parents were out of their house. The said evidence is corroborated by the evidence of P.W.-1 Narayan and P.W.-2 Sindhu. At the time of incident, according to this witness, he went for playing. No fault can be located on this activity of this young boy. When he returned, he found his younger brother Rushabh is available in the house and Sonal was not there. Therefore, naturally, he put up a question about the whereabouts of Sonal. Upon that, it was disclosed by Rushabh that he does not know about Sonal. At that time, he heard cries of Sonal from the house of the appellant, which is situated just opposite to the house of the victim. Naturally, due to cry, the attention of Akshay was drawn towards the said house. When Akshay pipped inside the house from the window, he noticed that the appellant was on the person of his sister and at that time both were not having clothes on them. He gave call to the accused that he will narrate the incident to his parents requiring the appellant to free his sister.

Though P.W.-3 Akshay was subjected to cross-examination, his evidence has remained unshattered. On the contrary, it appears that his evidence is most natural and he has disclosed what he has seen as it could be seen from the suggestion made to him during his cross-examination that, "Nobody has told me to tell in said manner." Thus, it is crystal clear that Akshay has witnessed the misdeeds of the appellant. He has wholly narrated the entire incident from the witness box without missing the word. That leads me to scan the evidence of the prosecutrix, who was examined as P.W.-9.

The evidence of P.W.-9, the prosecutrix, would disclose the happening to her. She has wholeheartedly narrated the happening to her from the witness box. This girl was also subjected to the cross-examination. However, her evidence is free from exaggeration, omission or contradiction.

The evidence of P.W.-3 Akshay and P.W.-9 Ku. Sonal inspires confidence coupled with the fact that the first information report is immediately lodged, which completely rules out the possibility of false implication of the appellant. Therefore, the medical evidence and the forensic evidence clearly show that the appellant is the perpetrator of the heinous crime of subjecting a girl below the age of twelve years to his lust. Therefore, according to me, the prosecution has proved its case beyond reasonable doubt and hence the appeal is dismissed.

Criminal Appeal is dismissed.

Smt. Smita V. Taksande, learned Advocate, appointed to represent the appellant, be paid Rs. 5,000/- (rupees five thousand only) as professional charges.