Divisional Bench of Justice S Shinde and Justice MS Karnik heard a criminal appeal filed by a Sudam Shelke convicted under Section 376(2)(f) of the Indian Criminal Code and sentenced to life by Nashik, Judge of the Additional Sessions.
Facts of the case:-
The FIR was reported by the grandma of the victim. The girl was around 3 years and 8 months old on the day of the assault, staying with her grandmother and parents. The event took place on 12 September 2014 and happened at 3 p.m. The victim headed towards the hotel (Dhaba) while playing. The victim's grandma is the landlord of the hotel right in front of her home. The victim girl has come home with a cell phone. The accused told the victim's grandma that the phone was his, and he offered the victim the mobile to play. And the victim's grandma moved ahead with her job.
Then, 10-15 minutes later, the complainant's husband (victim's grandfather) returned from the agricultural field and asked about the victim. Her grandma told him she was playing in front of the gate. The victim, though, was not found, so they looked for her. The victim's grandma went to the agricultural field, and she heard screams of crying from the agricultural field. The same was true of her granddaughter, the victim. At that time, the claimant saw the accused heading from the field to the street.
As far as the prosecutor was concerned, the complainant saw that the victim had been injured in her waist and that blood was oozing from her private section. There were no underclothes on her body. When the plaintiff confronted her granddaughter for the same thing, she was too afraid to say anything. The survivor was taken to Doctor Chandurkar 's hospital in the village of Nandur, Shingote, and was examined by Dr. Anita Satish Kanitkar. The doctor speculated that such injuries could be caused by a sexual attack on the victim and recommended that the victim should be admitted to the civil hospital.
The plaintiff notified the victims' parents of the incident at 7 p.m. and 7 a.m. the next day, the survivor told her grandma and her mother that the "mobilewala baba" (accused) had taken her to the farm, stripped her clothing and his own and slept on her own. Subsequently, the FIR was filed and the inquiry was undertaken by Hemant Patil. The medical examination of the survivor was performed by Dr. Mahesh Khairnar and, on the grounds of the examination, the results are consistent with a similar sexual attack. He deposed that the injury had recently happened within 24 hours. Samples gathered were turned over to the police constable in sealed condition. Advocate Aniket Vagal appeared on behalf of the defendant and cross-examined the grandmother of the plaintiff. Adv Vagal indicated that the events in the field would not be noticeable from her home, and therefore the claimant may not have witnessed the incident or the accused running.
It's away from the ground. He also tried to imply that the bajra crop was dense and that the incident could not probably have occurred in the agricultural area. The prosecution claimed that the victim had responded to the call of nature in the agricultural sector, which resulted in injury.
Having reviewed all the facts and proofs before it, the Court opined-
"We saw no merit in the claim of the accused that, since the accused has not suffered any personal harm, his complicity is removed. The victim is just 3 years old and 8 months old. The Court acknowledged that medical jurisprudence indicates that there are little to no symptoms of general abuse in small children because the child typically has no idea what is going on and is therefore unaware of fighting it. The hymen is tightly positioned, and since the vagina is very small, it is difficult to reach the adult organ. Usually, the penis is positioned either inside the vulva or between the thighs. As such, the hymen is normally intact and thus the vulva may have no redness and tenderness. In order to attract the requirements of section 376 of the IPC, full penetration is not necessary, but limited penetration is also appropriate. We agree with the opinion of the trial court that there is no benefit that can be granted to the accused solely because he has not suffered any personal injuries."
Besides, the Court dismissed the claims of the defense-
"In the present case, the data indicates that, on the day of the incident, the survivor was not in a position to narrate anything but normal in the light of her tender age. She had to be rushed to the hospital to be examined. It was the following morning on 13/09/2004 when she revealed the incident. The complaint was filed at 8 a.m. The victim was barely 3 years and 8 months old on the day of the attack. In certain cases, it cannot be assumed if there is a delay in FIR accommodation. It can hardly be anticipated from her to announce the way the incident occurred, and that too easily."
The rejected the plea and stated that-
"So far as the question of punishment is concerned, we are of the same view as the trial Court that having regard to the fact that the accused is 27 years of age, a resident of the same village who betrayed the trust of the victim & became a violator deserves no leniency. We, therefore, do not find any infirmity in the order passed by the trial Court, consequently, Appeal is dismissed."
The High Court of Bombay, while withdrawing an appeal against a judgment submitted by a 27-year-old man convicted of raping a 3-year-old child, stated that the victim, at such a tender age, could not be expected to expose how the incident took place and that the prosecution proved the crime against the accused beyond possible suspicion.
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