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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 171 OF 2002
Tatoba Laxman Madavi,
Aged about 35 years,
Occupation – Labour,
R/o Palgaon, P.S. Gadchandur,
District – Chandrapur. …. APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Gadchandur, District – Chandrapur. …. RESPONDENT
__
Dr. Anjan De, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 10
AUGUST, 2017
th
ORAL JUDGMENT :
The appellant seeks to assail the judgment and order
dated 08-3-2002 of the learned IInd Ad hoc Additional Sessions Judge,
Chandrapur in Sessions Case 64/1994 by and under which the
appellant (hereinafter referred to as the “accused”) is convicted under
Sections 376 and 506 of the Indian Penal Code and is sentenced to
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suffer rigorous imprisonment for three years and rigorous
imprisonment for a month respectively.
2. The prosecution case is that the complainant/prosecutrix
who was then 17 years, born on 26-05-1976, was studying in standard
9th at Pandit Jawaharlal Nehru Vidyalaya, Awalpur. She was suffering
from fever on 08-03-1994 and was, therefore, resting at her house.
The accused entered her residence at 1.30 p.m. when the prosecutrix
was alone, closed the door of the room from inside and made himself
comfortable on the bed of the complainant. The prosecution further
alleges that the accused attempted to undress her, the prosecutrix
shouted, upon which the accused pressed her neck and committed
forcible sexual intercourse. The accused thereafter left the house of
the prosecutrix.
3. It is further the case of the prosecution that on the date of
the incident the father of the prosecutrix had gone to Wani and he
returned only in the evening. Her mother was away for the work of
some nursery. The prosecutrix did not disclose the incident to her
parents on the date of the incident. However, on the next day i.e. on
09-3-1994 she disclosed the incident to her mother in the morning and
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her mother took her to the police station where she lodged a report
against the accused. On the basis of the said report, offences
punishable under Sections 376 and 506 of the Indian Penal Code were
registered against the accused. The prosecutrix was referred for
medical examination to the civil hospital at Chandrapur and was
medically examined by the medical officer. The medical officer also
collected pubic hair, vaginal smear and blood of the prosecutrix and
handed over the same in sealed condition to lady police constable
Uma. A spot panchanama was prepared and the quilt which covered
the bed was seized. Statement of witnesses were recorded and the
accused was arrested and referred for medical examination to primary
health center, Gadchandur. The accused was examined by the medical
officer who has issued the medical certificate. The medical officer
collected the blood sample, semen sample and pubic hair of the
accused. It is alleged that on 24-5-1994 when the accused was in
custody, discovery of the clothes worn at the time of the incident was
effected pursuant to a discovery memo recorded by P.S.I. Tikas. The
clothes which were seized pursuant to the said statement of the
accused including a lungi and knicker. The said clothes were seized
from the residence of the accused in the presence of the panch
witnesses. The said articles were sent to the chemical analyzer. The
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investigating officer recorded the statements of the witnesses and
presented a charge-sheet in the court of Judicial Magistrate First Class,
Rajura, who committed the case to the sessions court for trial. The
first information report (Exhibit 15) dated 09-3-1994 lodged by the
prosecutrix states that on 08-3-1994 she was sleeping in the house
alone since she was running fever. The accused came to her house and
taking advantage of the fact that she was alone came inside and locked
the door. The prosecutrix further states that the accused sat on the cot
and without speaking a word with the prosecutrix lifted her petticoat
and committed rape. The first information report further narrates that
when the prosecutrix shouted, the accused pressed her neck and left
after satisfying his lust. The prosecutrix states that she did not inform
that her father or her mother on 08-3-1994 and that it was only in the
morning of 09-3-1994 that she informed her mother that the accused
went away after satisfying his lust. The first information report further
recites that immediately upon receiving the information, the mother of
the prosecutrix took her to the police station.
4. The prosecutrix is examined as P.W.1. She states in the
examination-in-chief that she was aged about 18 years on 08-3-1994
and on the date of the incident between 12-00 noon and 1-00 p.m.
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when she was alone, the accused entered the room and sat on her cot.
She got up and shouted. The accused then pressed her neck and
threatened that if the prosecutrix raises an alarm, she would be killed
by strangulation. She states that the accused removed her knicker and
undressed her and then committed rape. She deposes that she did not
inform her mother about the incident on 08-3-1994, however,
according to the prosecutrix, she informed her mother about the
incident on 09-3-1994 in the morning. She states that since she was
weeping, her mother made enquiries and in response she narrated the
incident to her mother. The prosecutrix further states that her mother
took her to Gadchandur police station, she lodged a report which was
reduced to writing and signed by her. She has proved the first
information report at Exhibit 15. She states that the police referred
her for medical examination, medical officer examined her and issued
a certificate which bears her signature. She states that she was
wearing petticoat and knicker which the police seized alongwith the
quilt kept on the cot. She states that her date of birth is 26-5-1976.
5. The prosecutrix is cross-examined extensively. She agrees
that there are houses adjacent to the house of her father. The persons
working in cement factory reside at Palgaon and their family members
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remain at their house. She admits that all the houses adjacent to her
house are occupied by families. She further admits that even in
summer when farmers are in the fields, they work in the morning and
evening and in the noon time the farmers remain in the house. The
prosecutrix states that she shouted only once and at that point of time
she was wearing her petticoat and knicker. She admits that the
knicker on her person was tight and was, therefore, removed by both
the hands. She accepts that cot/bed was knitted by jute rope and the
weaving was tight enough to cause abrasions on the back if there is
friction between the back and the jute weaving. In the cross-
examination, the prosecutrix states that on the next day of the incident
she was sleeping as she was running fever. Her mother woke up at 8-
00 a.m. She states that since she was not feeling well, she continued
with her sleep. She further states that after sometime, she went to the
wash room and upon her return, her mother enquired about her
health. She denies the suggestion that at that time her mother noticed
stains and therefore, made enquiries with her.
The prosecutrix admits that the house of the accused is
two houses away from her house. She is Gond by caste and is ignorant
about the caste of the accused. She claims ignorance about the family
of the accused. She states that prior to the incident she had no talks
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with the accused and did not even know the accused. The prosecutrix
is suggested that on that day her mother had talked with the accused
and abused him. She is ignorant, is the response. A suggestion is
given to her that in view of political rivalry, the accused is being falsely
implicated, which suggestion is denied. She states that the police had
recorded the statements of the witnesses residing adjacent to her house
and immediately retracts the said statement.
6. P.W.2 Vitthal Nisatkar is examined as panch to prove the
spot panchanama. He did not support the prosecution, was declared
hostile and cross-examined. Nothing significant or relevant is brought
on record in the cross-examination. P.W.3 Janardhan Warpatkar is
also a panch to the spot panchanama and the seizure memo. He
identifies his signatures at Exhibits 16 and 18.
7. P.W.4 Kantabai Aatram is the mother of the prosecutrix.
She has deposed that on the date of the incident her daughter Sunita
was alone in the house as she was having fever. When P.W.4 Kantabai
returned to the house at 8-00 p.m., Sunita was resting and did not talk
to her. She further states that next day in the morning, she saw Sunita
weeping and upon enquiries Sunita informed her about the incident.
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She deposes that her daughter Sunita informed her that the accused
came near her, closed the door from inside, sat on her cot, pressed her
neck and raped her. P.W.4 further claims that she was told by the
prosecutrix that the accused threatened her that should the prosecutrix
make any disclosure about the incident, the accused shall kill her.
P.W.4 claims in the examination-in-chief that she went to the house of
the accused to confront him, however, the accused ran away from his
house. She states that thereafter she took the complainant to
Gadchandur police station. P.W.4 accepts that four to five persons
(male) and four to five ladies accompanied her to the police station.
She says that they first went to Nandafata where the police made
enquiries and it was thereafter that she and the others went to the
police station Gadchandur. She claims to have made enquiries with
the residents of Gadchandur before lodging the report. She identifies
only one from the group which accompanied her and he is one Kishor
Khanke who resides at a short distance from her house. She deposes
that she returned home at 9-00 p.m. on the date of the incident and
denies the suggestion that she returned at 8.00 p.m. She denies the
suggestion that on the date of the incident her son also slept on the
same cot. She denies the suggestion that she noticed stains on the
petticoat of the prosecutrix and therefore, made enquiries from her.
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She denies the suggestion that Sunita started weeping after P.W.4
started making enquiries from her. She denies the suggestion that the
women residents of the locality instigated her to lodge a report
implicating the accused. She denies the suggestion that she asked
Sunita to lodge false report against the accused. P.W.5 Mirabai
Aambatkar is a neighbour of the prosecutrix and claims to have
accompanied the prosecutrix to the police station. She claims that the
prosecutrix told her that accused entered her house, closed the door,
pressed mouth of the prosecutrix and raped her. She has denied the
suggestion that the accused is falsely implicated due to political rivalry.
8. P.W.6 Chandrabhan Tadas who then was attached to
police station Gadchandur as police constable was examined to prove
the forwarding letter to the chemical analyzer (Exhibit 23), the invoice
challan (Exhibit 24) and the compliance report submitted by him to
the police station officer (Exhibit 25). P.W.7 Ramdas Saindane then
attached to police station Gadchandur as A.S.I. He is the investigating
officer. He states that he sent the prosecutrix for medical examination,
conducted a spot panchanama, seized the quilt from the spot which
had semen stains. He states that he recorded the statements of
witnesses and seized the articles brought by lady police constable Uma
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in the presence of the panch witnesses. He has proved the spot
panchanama (Exhibit 28). He states that further investigation was
done by P.S.I. Tikas. In the cross-examination, P.W.7 accepts that he
did not record statements of the persons residing in adjacent houses.
He admits that he recorded the statements of the persons who were
present alongwith the prosecutrix in the police station. P.W.8 is head
constable Lahari Pendam who reduced the report of the prosecutrix
into writing (Exhibit 15). He proves the printed first information
report (Exhibit 30) and states that further investigation was done by
A.S.I. Saindane. P.W.9 Avinash Karmarkar was attached to
Gadchandur police station and states that upon completion of the
investigation the charge-sheet was filed by him in the court of Judicial
Magistrate First Class. P.W.10 Prabhakar Tikas was then attached to
police station Gachandur as P.S.I. He has conducted major part of the
investigation. He states that he arrested the accused, sent him for
medical examination and also effected recovery. He has proved the
seizure memo (Exhibit No.39) recording the discovery and seizure of
knicker and lungi from the residence of the accused. He has proved
the chemical analyzer report filed on record at Exhibit 40. He denies
that the accused did not give memorandum statement in presence of
panch witnesses (Exhibit 38). He denies the suggestion that he
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prepared false seizure panchanama (Exhibit 39).
9. P.W.11 Bhavana Adtani is the medical officer who has
examined the prosecutrix on 09-3-1994. She has deposed that the
hymen of the prosecutrix was ruptured. Slight bleeding from ruptured
area was noticed, suggestive that coitus had occurred. She states that
there was no other injury on any part of the body of the prosecutrix
such as thigh, elbows, breast and shoulders. She states that the
prosecutrix was fit for coitus. She status that she noticed stains on
underwear and petticoat which the prosecutrix was wearing. P.W.11
states that she collected the blood sample, vaginal smear and pubic
hair of the prosecutrix and handed over the same in sealed condition
to lady police constable Uma. She states that the prosecutrix told her
that her menstruation started one year before the incident and the last
period was prior to fifteen days of the medical examination. P.W.11
has proved the medical certificate (Exhibit 43). In the cross-
examination, P.W.11 deposes that she cannot say if the prosecutrix was
subjected to forcible sexual intercourse.
10. The defence of the accused as is revealed from the
statement under Section 313 of the Criminal Procedure Code, 1973 is
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of total denial and false implication.
11. The learned Sessions Judge records that the prosecution
case is entirely founded on the testimony of Sunita-the prosecutrix.
Accepting the testimony of the prosecutrix as credible and reliable, the
learned Sessions Judge has convicted the accused for the offences
punishable under Sections 376 and 506 of the Indian Penal Code.
12. With the able assistance of the learned Counsel Dr. Anjan
De for the appellant and the learned Additional Public Prosecutor Shri
A.V. Palshikar for the respondent, I have carefully and minutely
perused the record. The learned Sessions Judge is right in observing
that the entire prosecution case is based on the sole testimony of the
prosecutrix. It is well settled that the victim or prosecutrix is not an
accomplice. Conviction can undoubtedly be based on the sole
testimony of the prosecutrix subject to the rider that the testimony is
credible, reliable and inspires confidence. I am not persuaded to
confirm the view taken by the learned Sessions Judge that in the facts
conviction of the accused can rest on the sole and uncorroborated
testimony of the prosecutrix. The conversion of the prosecutrix is not
free from doubt and there are too many gray areas for this Court to
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permit the conviction of the accused to hold the field.
13. The incident, according to the prosecutrix, took place on
08-3-1994 between 12-00 noon to 1-00 p.m. when she was alone
resting in her house. The first information report (Exhibit 15) states
that at about 1-30 p.m. accused came to the house of the prosecutrix
and taking advantage of she being alone, locked the door, sat on the
cot and then without speaking a word lifted her petticoat and
committed rape. According to the first information report, the
prosecutrix shouted, the accused then pressed her neck and left after
satisfying his lust. In her testimony before the trial Court, the
prosecutrix states that due to fever, she was alone and while she was
resting on the cot in the room, the accused came to that room and sat
on the cot. She claims to have got up and shouted. She claims that the
accused pressed her neck and threatened her that should she shout,
she will be killed by strangulation. The version of the prosecutrix is
that she was undressed by the accused who also removed his clothes.
The accused, according to the prosecutrix, raped her and left the room.
In cross-examination, she admits that she was wearing tight knicker
which was removable only by both the hands. She admits that the cot
was knitted with jute rope and that any contact between the back and
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jute knitting would cause abrasions. The prosecutrix accepts that there
are many houses in the neighbourhood. The effort of the defence is
obviously to suggest that any forcible sexual intercourse would have
led to prosecutrix raising an alarm which the residents of the adjacent
houses would have taken note of.
14. I have anxiously scrutinized the entire record to seek
corroboration to the testimony of the prosecutrix. This Court is alive to
the legal position that conviction can be based on the uncorroborated
sole testimony of the prosecutrix. However, this Court was impelled to
seek corroboration since the sole testimony of the prosecutrix did not
inspire confidence and that the credibility and reliability of the
testimony was in serious doubt. Despite every effort made to search
and seek for corroborative evidence, I have not come across any
corroborative evidence and needless to say I am not persuaded to
return a finding of guilt on the uncorroborated sole testimony of the
prosecutrix. Firstly the conduct of the prosecutrix is not natural. Her
versions are to a great extent inconsistent on material aspects. It
appears to be inherently incredible that the accused would be in a
position to enter the house of the prosecutrix during the noon time,
enter her room and without any apparent resistance remove the
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clothes of the prosecutrix and rape her and casually walk away. The
version of the prosecutrix has to many holes to be the basis of a
conviction. The version of the prosecutrix that although she shouted
once, since the accused pressed her neck, she had to submit to the
indignity of the rape, is not corroborated by the medical evidence. The
medical evidence would reveal that there is absolutely no injury on the
person of the prosecutrix except of course the rupture of the hymen.
Forcible sexual intercourse and that too with the neck of the
prosecutrix being pressed, would in the natural course leave injury
marks on the neck and other parts of the person of the prosecutrix. The
medical evidence and probabilities apart, even according to the
prosecutrix, it is not as if a person who committed sexual intercourse,
could have all the while held the prosecutrix by her neck. The
prosecutrix states that the accused undressed, then removed her
petticoat and knicker, knicker was tight and was removed or could
have been removed with both hands. Opportunities were ample to
attempt an escape or shout for help. I find it difficult to rely on the
sole uncorroborated testimony of the prosecutrix that she was forcibly
raped. The needle of probabilities points more towards consensual
sexual intercourse rather than forcible sexual intercourse. The incident
took place on 08-3-1994 when the prosecutrix was admittedly more
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than 16 years of age. In view of the then prevailing provisions of the
Indian Penal Code, sexual intercourse with a women of more than 16
years and with her consent, would not be rape.
15. The admitted fact that the prosecutrix did not disclose the
incident to her mother on the date of the incident, that the version in
the first information report is substantially inconsistent with the
version before the Court, the fact that the mother of the prosecutrix
upon coming to know of the alleged rape chooses to visit the house of
the accused rather than immediately lodging a report with the police
station, are all suggestive if not of consensual relationship of exclusion
of forcible sexual intercourse or rape on 08-3-1994.
16. In the light of the discussion and findings recorded supra,
the appeal is allowed. The judgment and order passed by the learned
IInd Ad hoc Additional Sessions Judge, Chandrapur in Sessions Case
64/1994 on 08-3-2002 is set aside. The appellant is acquitted of the
offences punishable under Sections 376 and 506 of the Indian Penal
Code. His bail bond shall stand discharged. Fine paid, if any, by the
appellant shall be refunded to him.
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The appeal accordingly stands disposed of.
JUDGE
adgokar
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