Sandip Pandurang Kadam vs The State Of Maharashtra on 11 September, 2017

1 CRI.APPEAL 327/2016

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.327 OF 2016

Sandip s/o Pandurang Kadam
Age: 27 Yrs., occu. Agril.
R/o Chincholi, Tq. Tuljapur,
District Osmanabad. APPELLANT

VERSUS

The State of Maharashtra
Through its Police Station,
Tuljapur, Tq. Tuljapur,
District Osmamanabad. RESPONDENT
—–
Mr.S.S.Choudhari, Advocate for Appellant;
Mr.S.P.Tiwari, APP for Respondent
—–
CORAM : P.R.BORA, J.

RESERVED ON : 14
th

August, 2017

PRONOUNCED ON: 11
th

September,2017

JUDGMENT:

1) Present appeal is filed against the

Judgment and order passed by learned Additional

Sessions Judge at Osmanabad in Sessions Case

No.9/2015 decided on 6th May, 2016. Vide the

impugned judgment, the appellant has been

convicted for an offence punishable under Section

376 of the Indian Penal Code and has been

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sentenced to suffer rigorous imprisonment for

seven years and to pay a fine of Rs.1,000/-, in

default to suffer further R.I. for three months.

2) On 10th September, 2014, a report was

lodged against the appellant at police station

Tuljapur by the prosecutrix. It was alleged by

the prosecutrix that on 10.9.2014, when she was

proceeding towards her field, on the way to her

field, she was obstructed by the appellant-

accused and thereafter was raped by him. It was

alleged by the prosecutrix that though she

opposed and tried to give alarm, her mouth was

gagged by the appellant and thereafter he

committed forcible intercourse with her. The

prosecutrix immediately rushed in the nearby

field to one Surekha Nana Kadam, who, according

to her version, was her maternal aunt and

narrated the incident to her. The said incident

was thereafter narrated by the prosecutrix to her

in-laws and also to her husband and then on the

same day, she lodged the report against the

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appellant.

3) On such report being lodged, crime was

registered against the appellant, vide Crime No.

185/2014 and the investigation was conducted by

the police station Tuljapur. The prosecutrix was

immediately sent for chemical examination.

Thereafter spot panchanama was prepared. The

clothes of the prosecutrix, which were on her

person at the relevant time of the occurrence of

the alleged incident, were seized. The accused

was arrested on the next day of the incident. He

was also sent for his medical examination. His

blood and semen samples were collected. The

clothes seized from the person of the prosecutrix

as well as the accused and the blood and semen

samples were sent for the chemical analysis.

After receiving the report from the Chemical

Analyzer, it was confirmed that the semen, which

was noticed on the petticoat of the prosecutrix,

was of the accused – appellant. The statements

of the necessary witnesses were recorded by the

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Investigating Officer and after completing the

investigation, charge sheet was filed in the

court of Judicial Magistrate First Class,

Tuljapur, Since the offence was exclusively

triable by the Court of Sessions, the learned

Magistrate committed the said case to the Court

of Session, whereupon it was registered as

Sessions Case No.9/2015. The learned Sessions

Judge framed the charge under Section 376 of IPC

against the appellant and explained it to him in

vernacular. The appellant did not plead guilty

and claimed to be tried.

4) In order to prove guilt of the accused,

total nine witnesses were examined by the

prosecution. The defence of the accused was that

of false implication. The statement of the

accused was recorded under Section 313 of Cr.P.C.

The accused also examined one witness in his

defense. On her assessment of the oral and

documentary evidence on record, the Additional

Sessions Judge held the appellant guilty for

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offence under Section 376 of the Indian Penal

Code and after hearing the accused on the point

of punishment, sentenced him to suffer rigorous

imprisonment for seven years with fine of Rs.

1,000/-, in default to under further R.I. for

three months. Aggrieved by, the accused has

preferred the present appeal.

5) Shri S.S.Choudhari, learned Counsel

appearing for the appellant – accused, criticized

the impugned judgment on various grounds. The

learned Counsel submitted that the trial court

has utterly failed in appreciating that there was

no conclusive evidence to show that the accused

committed intercourse with the prosecutrix

without her consent. The learned Counsel

submitted that the chemical analyzer’s report in

respect of vaginal swab collected after the

alleged incident of rape, demonstrates that no

semen was detected therein. The learned Counsel

submitted that this was clearly indicating that

no intercourse had taken place as alleged by the

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prosecutrix. The learned Counsel further

submitted that the medical report in respect of

the accused revealed that no injury was noticed

on his person or to his genitals. The learned

Counsel submitted that had it been the case of

the forcible intercourse as alleged by the

prosecutrix, there must have been some injury on

the person of the accused and also to his

genitals.

6) The learned Counsel further submitted

that it was the case of the prosecution that the

accused committed rape on the prosecutrix at the

muddy place. The learned Counsel submitted that

the clothes seized from person of the prosecutrix

nowhere reveal that any mud stain was noticed

thereon. The learned Counsel further submitted

that as per the case of the prosecution itself,

at the relevant time, the prosecutrix was

carrying two sickles with her. The learned

Counsel submitted that it appears improbable that

in spite of having two sickles with her, the

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prosecutrix would not use the said sickles even

in case of forcible intercourse with her by the

appellant accused.

7) Learned Counsel further submitted that

the prosecution has utterly failed in proving

that the appellant had forcible intercourse with

the prosecutrix without her consent and as such,

no conviction could have been recorded by the

learned Sessions Judge. The learned Counsel,

therefore, prayed for setting aside the impugned

judgment of conviction and consequently to acquit

the appellant of the charge levelled against him

under Section 376 of IPC.

8) Shri S.P.Tiwari, learned APP appearing

for the State supported the impugned judgment.

The learned APP submitted that the FIR of the

alleged incident was promptly lodged. The

prosecutrix has testified the facts before the

court, as are revealing from the FIR lodged by

her. The evidence of the prosecutrix has been

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fully corroborated by the other witnesses. The

report of the Chemical Analyzer and the medical

evidence on record also fully support the case of

the prosecution. In the circumstances, according

to learned APP, the Sessions Court has rightly

held the appellant guilty of the commission of

rape on the prosecutrix. The learned APP further

submitted that the defense put forth of the

accused of consensual sex has been rightly

rejected by the learned Sessions Court. The

learned APP, therefore, prayed for dismissal of

the appeal.

9) I have carefully considered the

submissions advanced by the learned Counsel

appearing for the appellant and learned APP

appearing for the State. I have also perused the

impugned judgment and the entire evidence on

record.

10) It is the case of the prosecution that

the appellant caught hold of the prosecutrix when

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she was proceeding towards her field and then

gagging her mouth so that she should not shout,

committed forcible intercourse with her. The FIR

lodged by the prosecutrix reveals that in an

attempt by the accused of having forcible

intercourse with her, the semen of the accused

fell on her petticoat. As has been deposed by

the prosecutrix in her testimony before the

court, the accused thereafter fled from the spot

and she went to Surekha Kadam, i.e. her maternal

aunt (PW 3) and narrated her the incident. It is

the further case of the prosecution that PW 3 –

Surekha Kadam then called mother-in-law of the

prosecutrix, to whom also the alleged incident

was narrated by the prosecutrix and the

prosecutrix was then taken to home by her mother

in law. As per the further case of the

prosecution, thereafter, the prosecutrix,

accompanied by her in-laws, went to police

station Tuljapur and lodged the report against

the accused.

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11) As against the story of prosecution, it

is the case of the accused that the prosecutrix

instigated him to have sexual intercourse with

her, however, before they could have sexual

intercourse, the maternal aunt of the prosecutrix

saw them in the said compromising position and

thereafter the prosecutrix, on insistence from

her in-laws, lodged a false case against him,

alleging that he had forcible intercourse with

the prosecutrix without her consent.

12) The prosecution evidence has to be

scrutinized in light of the allegations made by

the prosecutrix and the defense as has been

raised by the accused. As has been testified by

the prosecutrix before the Court, at about 2 p.m.

when she was proceeding towards their field

having two sickles in her hand, near the well of

one Gautam, the accused caught hold of her left

hand and when she started shouting, kept his

right hand on her mouth, then threw her on the

earth, torn her petticoat and inserted his penis

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in her vagina. The prosecutrix has further stated

that the semen of the accused fell on her

petticoat. It was further deposed by the

prosecutrix that she assaulted the accused by

giving blows on his face and then the accused

fled from the spot. It has further come in her

evidence that then she went to Surekha Kadam (PW

3) and narrated her the incident. The

prosecutrix has further deposed that then she

narrated the incident to her mother in law as

well as to all of her family members. She has

further deposed that thereafter they went to

police station Tualjapur and she lodged the

complaint against the accused. In her evidence,

before the court, she admitted the contents of

the report lodged by her to the police and also

her signature over the said report. The said

report is at Exh.15.

13) PW 3 – Surekha in her evidence before

the court, has deposed that at about 1 noon of

the day of incident, she heard the shouting from

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the well of Kalyan Kadam, however, as the

crushing machine was in operation, she did not

give any attention to the said shouts. Surekha

has further deposed that thereafter the

prosecutrix rushed to her and disclosed to her

that the accused, by gagging her mouth, committed

rape on her. PW 3 has further deposed that the

prosecutrix also disclosed to her that she

assaulted the accused by fist blows. It has also

come in the evidence of PW 3 that then she called

mother in law of the prosecutrix and the

prosecutrix narrated the entire incident to her

mother in law. PW 3 Surekha further deposed that

the prosecutrix and her mother in law then went

to their house.

14) PW 4 – Shardabai Tukaram Kulkarni, is

mother in law of the prosecutrix. She has

deposed before the Court that on the day of the

incident, she had asked the prosecutrix to go

home and bring sickles therefrom. She has

further deposed that the prosecutrix narrated her

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the entire incident. She has then deposed that,

she took the prosecutrix to home and thereafter

she lodged the report against the accused.

15) In so far as charge against the accused

that he had forcible intercourse with the

prosecutrix without her consent is concerned, the

evidence of the prosecutrix would only be

material. Evidence of PW 3 and PW 4 is relevant

to the extent that the prosecutrix, at the first

instance, disclosed the alleged incident to PW 3

Surekha and thereafter to PW 4 – Shardabai. A

deeper scrutiny, therefore, has to be made of the

evidence of the prosecutrix.

16) As noted by me herein above, the defense

of the accused is that he and the prosecutrix

attempted to do sexual intercourse with consent.

The learned Additional Sessions Judge, has,

however, rejected the theory of consent,

observing that there is no such evidence or

circumstance brought on record by the accused so

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as to accept the defense so raised by him.

17) Perusal of the impugned judgment reveals

that the learned Additional Sessions Judge has

heavily relied upon the Chemical Analyzer’s

reports and the medical evidence brought on

record by the prosecution. It is true that the

semen, which was detected on the petticoat of the

prosecutrix, which, she was allegedly wearing at

the time of happening of the alleged incident, is

proved to be of blood group `B’, which is

admittedly the blood-group of the accused.

However, after having considered the entire

material on record, it does not appear to me that

detection of the semen of the blood-group of the

accused on the petticoat of the prosecutrix,

cannot be a strong circumstance in the present

case for holding the accused guilty of the

offence of rape. In the FIR lodged by the

prosecutrix, it was the case of the prosecutrix

that the semen of the accused fell on her

petticoat. In her testimony before the Court

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also, she reiterated the said fact. The fact

that his semen fell on the petticoat of the

prosecutrix has also not been denied by the

accused. However, he has denied that he had

sexual intercourse with the prosecutrix. From

the tenor of the cross-examination, it can be

gathered that it was the case of the accused that

it was the prosecutrix, who instigated him to

have sexual intercourse with her, but, before

they could have the sexual intercourse, they were

noticed by PW 3 – Surekha in the said

compromising position and in that attempt, his

semen fell on the petticoat of the prosecutrix.

18) In the instant case, according to me, it

is not that material whether or not the accused

had the penetrative intercourse with the

prosecutrix. It was sought to be canvased by

Shri Choudhari, learned counsel for the

appellant, that no semen was detected in the

vaginal swab collected of the prosecutrix after

the alleged occurrence. According to Shri

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Choudhari, it supports the contention of the

accused that he did not have intercourse with the

prosecutrix. However, I am not convinced with

the point so canvassed by the learned counsel.

It is not necessary that at the time of

intercourse, there must be seminal discharge in

the vagina though she has deposed that the

accused inserted his penis in her vagina. It is

also not the case of the prosecutrix that the

semen of the accused was discharged in her

vagina. On the contrary, in the FIR itself, it

is the specific contention of the prosecutrix

that the semen of the accused fell on her

petticoat and not in her vagina. In the

circumstance, merely because no semen is detected

in vaginal swab of the prosecutrix, it is unsafe

to draw any such inference that the accused did

not have intercourse with the prosecutrix.

19) The material issue is whether the

accused had the intercourse with the prosecutrix

forcibly and without her consent? It is not in

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dispute that when the accused allegedly caught

hold of the left hand of the prosecutrix, she was

having two sickles with her. As has been

admitted by the prosecutrix, the sickles were

having sharp pointed surface at inner side.

Neither in the FIR nor in her testimony before

the court, it is disclosed by the prosecutrix as

to in which hand, she was holding the said two

sickles when the accused allegedly held her left

hand. The entire prosecution evidence is further

silent on the point as to what happened to the

said two sickles after the accused allegedly held

the left hand of the prosecutrix. Only when in

the cross-examination, a suggestion was given to

the prosecutrix that it was possible for her to

assault the accused by the sickles in her hand

that she has denied the said suggestion and has

further explained that both the sickles in her

hand fell down.

20) PW 8 – Pradip Pawar, the Investigating

Officer, in his cross-examination, has admitted

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that he did not make any investigation as about

the said two sickles. It appears improbable that

the prosecutrix would not disclose as to what

happened to the sickles in her hand when the

alleged incident happened.

21) It is not the case of the prosecutrix in

the FIR lodged by her that when the accused held

her left hand, the sickles fell down on the

earth. It is worth to reproduce herein below the

relevant portion in the FIR so lodged by the

prosecutrix, which reads thus, –

“vkt rk- 10-09-2014 jksthps 12-00 ok- lqekjkl ekk
uojk ?kjkps toG vlysY;k ‘ksrke/;s dkans yko.;klkBh fu?kwu
xsyk- R;kposGh eh o lklwckbZ vls vks;kP;ktoG vlysY;k
‘ksrke/;s eqx rksM.;klkBh xsyks- ‘ksrke/;s iksgkspwu vkEgh nks?
kht.kh v/kkZikm.k rkl gkrkus eqx rksMys- gkrkus eqx rksM.ks
yodj mjdr ulY;kus lklwckbZus eyk ?kjkdMs tkmu foGk
vk.k.;kl lkafxrys- R;kaP;k lkax.;kuqlkj eh ?kjkdMs xsyks
o ?kjkrwu nksu foGs ?ksmu ‘ksrkdMs ijr tkr vlrkuk vankts
02-15 ok- lqekjkl okVse/;s vlysY;k dY;k.k dne ;kaps
iDD;k foghjhtoG vkys vlrk ikBhekxwu ,dkus ekk Mkok
gkr /kjyk- eh ?kkc:.k ekxs ikfgys vlrk vkeP;k
Hkkodhrhy lanhi ikaMqjax dne ;kus ekk gkr /kjyk gksrk- eh

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vkjMkvksjM d: ykxys rj R;kus R;kpk mtok gkr eks
rksaMkoj Bsoyk o eyk [kkyh ikMys-”

In her testimony before the Court, the

prosecutrix has deposed as under, –

“….That time one person came
behind from me and caught hold of my
left hand. So, I saw that he was
Sandip Kadam. I started shouting.

So, he kept his right hand on my
mouth. Then he thrown me on
floor…..”

As has been deposed by the prosecutrix, the

accused had come from her behind and hold her

left hand. As further deposed by her when she

saw as to who was the said person, she identified

the said person to be Sandip Kadam, i.e. the

accused. She has further deposed that then she

started shouting and because she started

shouting, the accused kept his right hand on her

mouth and then threw her on the floor. Thus, it

is not the case of the prosecutrix that when the

accused caught hold of her left hand, the sickles

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in her hand fell down. On the contrary, as per

the averments in the FIR as well as from her

testimony before the Court, when a person coming

from her behind held her left hand, she saw to

her backside as to who was the said person and on

seeing the said person identified him to be the

accused. Had the sickles in her hand really

fallen down at that time, the said fact must have

been disclosed by the prosecutrix at the very

first instance, i.e. at the time of lodging the

FIR. As noted herein above, the FIR is silent on

the issue. Even if it is accepted that in the

FIR it may not be possible to incorporate each

and every information, it appears quite

improbable and unnatural that the prosecutrix

would not disclose in her testimony before the

Court about the same. When the prosecutrix could

provide all other particulars in detail, it

cannot be accepted that she will forget to

disclose as to what happened to the sickles in

her hand. The explanation of the prosecutrix has

come on record as about the said sickles only

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when it was suggested to her in the cross-

examination that she could have made assault on

the accused by the said sickles in her hand.

22) It is further significant to note that,

though, it was the specific case of the

prosecutrix that at the time when the alleged

incident happened, she was having two sickles

with her, the Investigating Officer has not made

any investigation as about the said sickles. In

fact, the first question ought to have crept in

the mind of the investigating officer as to what

happened to the sickles in the hands of the

prosecutrix and why she did not use the said

sickles in her defense to avoid the alleged

forcible intercourse on her by the accused.

23) From the entire aforesaid evidence,

reasonable doubts are certainly created about the

allegations made by the prosecutrix against the

accused that he had forcible intercourse with her

without her consent. From the facts which have

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come on record, the explanation given by the

prosecutrix that the sickles fell down on the

earth appears difficult to be accepted. I

reiterate that the aforesaid fact was so material

that it must have been disclosed at the first

instance by the prosecutrix and if that was

missed at the time of giving FIR, there was no

reason for not to disclose the said fact in the

evidence before the Court. There is substance in

the argument made by the learned Counsel for the

accused that in spite of the sickles in the hands

of the prosecutrix when she did not make any use

of the said sickles to defend herself from the

alleged rape by the accused, a reasonable

inference emerges that if at all any such attempt

was made by the accused, the same was not opposed

by the prosecutrix leading to a further possible

inference that the attempted sexual intercourse

was consensual.

24) There are certain other circumstances

also, which have created reasonable doubts about

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the allegation made by the prosecutrix that the

accused forcibly had intercourse with her without

her consent. It is the case of the prosecutrix

that after her left hand was held by somebody, to

whom later on she has identified to be the

accused, she started shouting. She has further

deposed that the accused, therefore, gagged her

mouth by his right hand and then committed rape

on her. It has to be stated that as has been

deposed by the prosecutrix some more acts had

taken place after the accused gagged her mouth;

that the accused threw her down, that he tore the

petticoat of the prosecutrix, that he drew out

his penis and eventually inserted it in vagina of

the prosecutrix. It appears improbable and

unnatural that the accused could have done the

aforesaid acts by his left hand, simultaneously

holding his right hand tight over the mouth of

the prosecutrix so that she should not again

shout. Even if it is accepted that when

prosecutrix initially shouted, her mouth was

gagged by the accused. from the facts, as are

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further deposed by the prosecutrix, there is

reason to believe that the prosecutrix was having

every opportunity to again give alarms and thus,

she could have made the attempt by the accused

unsuccessful.

25) Further, as has come on record through

evidence of the prosecutrix herself as well as PW

3 – Surekha and PW 4 Shardabai, the spot where

the alleged incident is said to have occurred, is

surrounded by the fields and in the said fields,

the persons were carrying out the agricultural

operations when the alleged incident happened.

Admittedly, it was the time of afternoon. It

appears somewhat improbable that having a

knowledge that in the adjoining fields the

agricultural operations are going on and several

persons are present in the said fields, somebody

would dare to commit sexual intercourse with any

woman without her consent.

26) Further, as has come on record, the spot

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where the prosecutrix is alleged to have been

raped by the accused was wet. However,

admittedly, no mud or mud-stains are noticed on

saree of the prosecutrix. The spot panchaname

clearly depicts that the alleged spot was wet

leading to an inference that if somebody commits

rape at the said place, wet mud would certainly

get attached to the saree of the victim. The

Investigating Officer has also admitted that the

spot of incident was wet. However, no mud or

mud-stains are noticed on saree of the

prosecutrix. Reasonable doubt is, therefore,

created about the happening of the alleged

incident at the said spot. It has to be stated

that the spot was shown by the prosecutrix

herself.

27) As has deposed by the prosecutrix in her

cross-examination, she was wearing bangles when

the alleged incident happened and the pieces of

said bangles fell on the spot of occurrence,

indicating thereby that in an attempt by the

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accused to have forcible intercourse with the

prosecutrix, the bangles in her hands were broken

and pieces thereof were spread over on the spot.

In light of the fact so stated by the

prosecutrix, if the spot panchanama is perused,

it does not show existence of the pieces of

broken bangles on the spot. The fact that pieces

of bangles were not found at the spot of

occurrence also creates a reasonable doubt about

the fact deposed by the prosecutrix and also

about the occurrence of the alleged incident at

the said spot.

28) When it is the case of the prosecutrix

that in the alleged incident her bangles were

broken some injury may be minor, at least an

abrasion must have been caused to the

prosecutrix. Admittedly, no such injury is

noticed on person of the prosecutrix. This

circumstance also creates reasonable doubt about

the allegation made by the prosecutrix against

the accused.

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29) Non-existence of any notable injury on

person of the prosecutrix and no injury on person

of the accused is another circumstance, which has

also created serious doubts about the case of the

prosecution. As I noted earlier, the medical

evidence has weighed in the mind of the learned

Additional Sessions Judge in reaching to the

conclusion that the accused committed rape on the

prosecutrix. It has come in the evidence of PW 5

- Dr.Kiran Ghadge that in the medical examination

by her of the prosecutrix, after occurrence of

the alleged incident, three abrasions noticed on

the chest of the prosecutrix, which were fresh.

As has been further deposed by Dr. Kiran, three

abrasions were noticed on the chest of the victim

were indicative of the struggle of the

prosecutrix against the sexual intercourse.

Based on the said evidence of Dr.Kiran, the

learned Additional Sessions Judge has recorded a

finding that the prosecutrix was raped. In light

of the evidence of PW 5 - Dr.Kiran, if the

testimony of the prosecutrix before the court is

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28 CRI.APPEAL 327/2016

perused, the prosecutrix has not stated that any

such injury was caused to her because of the

alleged incident of rape or that the same was

caused by the accused while committing rape on

her. No much weightage, therefore, can be given

to the opinion so given by the Medical Officer.

Merely on the basis of the said evidence, it is

very unsafe to hold that the prosecutrix was

raped. In the case of forcible intercourse,

there is some resistance from the prosecutrix,

injuries would be necessarily on the back and not

only on the chest. Non-existence of any injury

on person of the accused is another circumstance,

leading to an inference that there was no

resistance from the prosecutrix.

30) In the cross-examination, the

prosecutrix has stated that she hauled shirt of

the accused and, therefore, the shirt was torn.

However, if the seizure panchanama in respect of

the clothes of the accused is perused, it nowhere

demonstrates that the shirt which was seized from

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29 CRI.APPEAL 327/2016

person of the accused was torn at any place. The

prosecutrix in her evidence before the court has

identified the said seized shirt to be the same

shirt allegedly worn by the accused at the time

of the alleged occurrence. In the circumstance,

the fact stated by the prosecutrix that she

hauled the shirt of the accused and, therefore,

it was torn has proved to be false.

31) The fact that the accused torn her

petticoat was not stated by prosecutrix in the

FIR lodged by and has come on record, for the

first time in her testimony before the Court.

The fact that she hauled the shirt of the accused

and, therefore, it was torn was also not stated

by her either in the FIR or in her examination in

chief before the Court. Only when certain

suggestions were given indicating that she had

instigated the accused to have sex with her that

she added that she pulled the shirt of the

accused and, therefore, it was torn, probably to

suggest that she was not consenting party, but

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30 CRI.APPEAL 327/2016

was resisting the attempt.

32) In the statement given by the accused

under Section 313 of Code of Criminal Procedure,

he has specifically said that near the well the

maternal aunt of the prosecutrix called mother in

law and husband of the prosecutrix at the spot

and all of them condemned the prosecutrix and

abused her and the husband of the prosecutrix

went to the extent of beating her. The accused

has further stated that then his father was also

called on the spot and money was demanded from

him.

33) I am conscious of the fact that the

statement given by the accused under Section 313

of Cr.P.C. cannot be a conclusive cause for

either his acquittal or his conviction. However,

if the facts stated by the accused in such a

statement are corroborated by any other evidence

on record, the facts so corroborated can be

certainly used for recording the conclusion

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31 CRI.APPEAL 327/2016

accordingly. Viewed the statement of the accused

with this angle, the fact as has been stated by

him that the husband of the prosecutrix was

called on the spot of occurrence has been

corroborated by PW 3 - Surekha as well as PW 4 -

Shardabai. In the cross-examination of PW 3 -

Surekha, she has admitted that the husband of the

prosecutrix had reached on the spot of occurrence

though she has denied the further suggestion that

he made an assault on the prosecutrix. PW 4 -

Shardabai, however, has also accepted in her

cross-examination that her son Vishwas i.e.

husband of the prosecutrix reached on the spot

immediately. Shardabai has further admitted that

he became angry towards his wife, i.e. the

prosecutrix. The facts as have come on record

through the statement of the accused and through

the oral testimony of PW 3 and 4, will have to be

conjointly considered.

34) The fact which has come on record

through cross-examination of PW 4 - Shardabai

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32 CRI.APPEAL 327/2016

that the husband of the prosecutrix had become

angry with assumes importance. In given

circumstances, no husband is likely to become

angry with his wife. On the contrary, he would

have all sympathy, compassion towards his wife

and he would first try to console her. As was

rightly argued by the learned Counsel for the

appellant, the fact that the husband of the

prosecutrix condemned her, has to be considered

and understood in premise of the statement of the

accused under Section 313 of the Code that the

prosecutrix instigated him to have sex with her.

In the circumstance, the defence of the accused

that he and the prosecutrix attempted to do

sexual intercourse with consent is difficult to

be ruled out.

35) After having considered the entire

prosecution evidence, I find it difficult to

agree with the conclusion recorded by the learned

Additional Sessions Judge holding the accused

guilty for the offence under Section 376 of IPC.

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33 CRI.APPEAL 327/2016

I reiterate that there are plural circumstances,

which I have discussed in detail herein above,

which create reasonable doubts about the case of

the prosecution. From the evidence which has

come on record it is difficult to record any such

concrete conclusion that the accused had sexual

intercourse with the prosecutrix without her

consent. In absence of any unimpeachable

evidence against the accused, he deserves to be

given benefit of doubt and hence deserves to be

acquitted of the charge levelled against him

under Section 376 of IPC.

36) For the reasons stated above, following

order is passed, -

ORDER

i) The order of conviction passed

by the learned Additional Sessions

Judge, Osmanabad in Sessions Case

No.9/2015 is quashed and set aside;

ii) The appellant - accused stands

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acquitted of the offence under Section

376 of IPC. He be released forthwith, if

not required in any other case or crime;

iii) The Criminal Appeal thus stands

allowed in the aforesaid terms.

(P.R.BORA)
JUDGE

bdv/
fldr 14.8.17

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