Tatoba Laxman Madavi vs State Of … on 10 August, 2017

1 apeal171.02

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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