Oral Judgment: (B.R. Gavai, J.)

1. Being aggrieved by the Judgment and order dated 18th December, 2010 passed by the learned Additional Sessions Judge, Nagpur, in Sessions Trial No.529 /2009, thereby convicting the appellants/ accused for the offence punishable under Section 376 of the Indian Penal Code and sentencing each of them to suffer imprisonment for life and to pay a fine of Rs.500/-each, and in default of payment of fine, each of them to suffer rigorous imprisonment for one month, the appellants have approached this Court.

2. The prosecution case, as could be gathered from the material placed on record, is thus:-

The prosecutrix is a daughter of accused no.1 Gurucharan from his first deceased wife and niece of accused no.2 Gayadin. P.W.2 P.S.I., Rajendrasingh, who was then attached to the Police Station, Yashodhara Nagar, Nagpur, received a phone call on 23.8.2009 that at Vanadevi Nagar, a father had raped his daughter. Therefore, he reached the said area situated in the slum. People had gathered in front of one house. On enquiry, he came to know that accused Gurucharan had admitted his daughter, the prosecutrix to the Zaveri Nursing Home, Vaishali Nagar, Nagpur. He accompanied with the accused reached to Zaveri Nursing Home and recorded the statement of the prosecutrix. The prosecutrix, in her statement, disclosed that her father Gurucharan had sexual intercourse with her and consequently she became pregnant. The prosecutrix was discharged from Zaveri Nursing Home and was taken to Mayo Hospital where she was medically examined. After receipt of MLC, P.W.2 P.S.I., Rajendrasingh registered Crime No.139/2009 for the offence punishable under Section 376 of the Indian Penal Code against the accused no.1 Gurucharan. The said accused was arrested and was got medically examined. P.W.2 P.S.I., Rajendrasingh then interrogated some other persons and recorded their statements. He seized the clothes of the prosecutrix and admitted her to Priyadarshani Mahila Sudhar Griha Nagpur. She was thereafter shifted to Shraddhanandpeth Anathalaya, Nagpur. The prosecutrix was produced before the Child Welfare Committee on 31.8.2009.

The Child Welfare Committee recorded her statement, in which she also disclosed the name of her uncle accused no.2 Gayadin as having intercourse with her. Accused no.2 Gayadin came to be arrested. He was also examined by the Medical Officer. On 5.10.2009, the Investigating Officer received an intimation from the Child Welfare Committee that the victim girl had delivered a male child and the DNA test of the accused persons to determine the paternity of the child, was to be conducted. Hence, with the permission of the concerned Judicial Magistrate First Class, blood of both the accused was collected as sample for DNA. Meanwhile, the new born baby had expired. Its scalp skin and bone were collected for DNA test. The DNA test was held, which reveals that accused no.2 Gayadin was a putative father and the victim was the mother of the child. The investigating officer also collected the birth certificate of the prosecutrix which transpired the date of birth as 20th July, 1995 and as such she was below 16 years of age when the accused persons ravished her.

3. Upon completion of the investigation, charge sheet came to be filed for the offence punishable under Section 376 of the Indian Penal Code in the court of Judicial Magistrate First Class. Since the case was exclusively triable by the Sessions Judge, the same came to be committed to the learned Sessions Judge.

4. The learned trial Judge framed the charge for the offence punishable under Section 376 of the Indian Penal Code against the accused to which the accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby the present appeal.

5. With the assistance of the learned APP, we have scrutinized the entire evidence on record. The testimony of P.W.1 Meera, the prosecutrix would be vital in the present matter. P.W.1 Meera, the prosecutrix in her evidence has stated that prior to her staying in Anath Ashram she was staying in the house of elder brother of her father at Badadat, District Sultanpur in U.P.. She states that when she was four years old, she had lost her mother. She further states that she studied up to 5th standard. She was admitted in 6th standard at the school at Badadat. However, leaving her education incomplete, she came to Nagpur and started residing with accused no.2 Gayadin at his house at Pension Nagar, Nagpur. She has further stated that her aunt i.e. wife of the accused no.2, had gone to her parents house for the purpose of delivery. Accused no.2 Gayadin forcibly committed sexual intercourse with her. She further states that her father had performed his second marriage. However, his second wife had deserted him and thereafter accused no.1 Gurucharan had came to the house of accused no.2 Gayadin to fetch her back to his house. She, therefore, went to her fathers house at Vandevi Nagar, Zopadpatti, Nagpur. Her father also raped her for 3-4 times in the said house. Her father then took her to the village Badadat in U.P.. She has stated that accused no.2 Gayadin had sexual intercourse with her in March, 2008.

She further stated that in August, 2009 she had come to her fathers house at Vandevi Nagar, Zopadpatti, Nagpur. She further states that after staying at Badadat for a month, she came back to Nagpur and started residing in the house of her uncle Sahebsaran at Gorewada, Nagpur. From there, her father had taken her to the house of one Shamlal Yadao at Pension Nagar. From there, she was taken by her father to his house at Vandevi Nagar, Nagpur and that time she realized that she was pregnant. Her father accused no.1, took her to the Doctor for termination of the pregnancy. She was pregnant for five months. Police reached the Hospital and recorded her statement. She was indoor patient in Mayo Hospital for 23 days. She further states that after her discharge, she was lodged in Anath Ashram, Shradhanand Peth, Nagpur. Since then, she was staying there. In the month November, 2009 she delivered a male child. Baby died within a week. She was admitted to the Medical College for the purpose of delivery.

6. The prosecutrix was thoroughly cross examined by the counsel for the accused. The defence appears to be that she was having affair with a body, which was not liked by the her father and, therefore, she had levelled false allegations against both the accused persons. Further, it appears that her father had two plots and the prosecutrix wanted one of the plots to be transferred in her name. Since the accused had opposed to it, they have been falsely implicated.

7. Exh. 59 is the report about parentage test result. In the said report, on comparison of the DNA extracted from blood samples of i) Mira Yadav, ii) Gurucharan Yadav and iii) Gayadin Yadav and the DNA extracted from tissue in RFSL ML case No.DNAn/092/09, a finding is that the putative father of the male child born to the prosecutrix, is accused no.2 Gayadin. It can, thus, be seen that according to the DNA the mother of the male child born, whose samples were sent for analysis, is the prosecutrix and the father is accused no.2 Gayadin.

8. P.W. 4 Dr. Dake has deposed that on 10th October, 2009, he received requisition from the Police Station, Yashodhara Nagar, Nagpur for DNA test of the new born baby of the prosecutrix. He has further deposed that he has taken sample of scalp tissue with hair and femur and radius bones. He sealed those samples, filled Form No.2 and handed over the sealed samples and that form to the police constable Suresh.

9. No doubt that the name of accused no.2 Gayadin is not disclosed in the first report. However, perusal of the evidence of P.W. 3 Dr. Ranjana Patil, who is a chairperson of Child Welfare Committee, Nagpur, would reveal that when the prosecutrix was given in her custody by the police and when she was interrogated by the Child Welfare Committee, she has specifically disclosed that during her stay with the accused no.2 Gayadin, he had raped her.

10. By now, it is a settled proposition of law that the conviction for the offence punishable under Section 376 of the Indian Penal Code could be recorded on the basis of the sole testimony of the prosecutrix. The only requirement in law is that the evidence of the prosecutrix must be found cogent, reliable and trustworthy. The learned trial Judge had occasion to witness the demeanour of the witness. The learned trial Judge has found the evidence of the prosecutrix as cogent, reliable and trustworthy. Upon perusal of the testimony of P.W. 1 Meera Yadav, we are also of the considered view that the testimony of the prosecutrix is trustworthy, cogent and reliable. Apart from that insofar as the accused No.1 is concerned, there is corroboration to her testimony from her statement on the basis of which First Information Report is lodged. Insofar as the accused no.2 is concerned, her version is corroborated by the statement given by her to P.W. 3 Dr. Ranjana Patil, Chairperson of Child Welfare Committee, Nagpur and also the DNA report Exh. 59.

11. In that view of the matter, we do not find that a case is made out for interference with the well reasoned findings recorded by the learned trial Judge. We, upon independent appreciation of the evidence, are also of the view that the prosecution has proved the case beyond reasonable doubt. Hence, the following order.

Order

The appeal is dismissed.