Ramesh Bajirao Sakharkar vs State Of Mah.Thr.P.S.Allipur on 11 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 40 OF 2002

Ramesh alias Shankar s/o Bajirao
Sakharkar, Aged about 22 years,
Resident of Allipur, P.S. Allipur,
Tahsil – Hinganghat, District – Wardha. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Officer,
Police Station Allipur, District – Wardha. …. RESPONDENT

__

Shri R.L. Khapre, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.
DATED : 11
SEPTEMBER, 2017
th

ORAL JUDGMENT :

The challenge is to the judgment and order dated

23-1-2002 in Sessions Trial 22/1996, delivered by the learned 1 st

Ad hoc Additional Sessions Judge, Wardha, by and under which the

appellant (hereinafter referred to as the “accused”) is convicted for

offences punishable under Sections 376, 354 and 448 of the Indian

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Penal Code. The sentences imposed are rigorous imprisonment for

four years, rigorous imprisonment for six months and rigorous

imprisonment for three months for offences punishable under Sections

376, 354 and 448 of the Indian Penal Code respectively.

2. Heard Shri R.L. Khapre, learned Advocate for the accused

and Shri A.V. Palshikar, learned Additional Public Prosecutor for the

respondent/State.

3. Shri R.L. Khapre, learned Advocate submits that the

prosecution has miserably failed to bring home the charge under

Sections 354, 376 and 448 of the Indian Penal Code. He would urge,

that on a holistic appreciation of evidence on record, it is quite

obvious, that the sexual intercourse, if any, was consensual. Shri

R.L. Khapre, learned Advocate would invite my attention to certain

features of the prosecution case, which according to the learned

Advocate, are totally inconsistent with the allegation of forcible sexual

intercourse.

4. The first circumstance to which my attention is invited, is

the conduct of the prosecutrix. I would advert to the evidence of

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P.W.1, at a later stage in the judgment. Suffice it to say, that the

submission of the learned Advocate is that the conduct of the

prosecutrix, as has come on record in the evidence of the prosecutrix

herself, is consistent with consensual sexual relationship rather than

forcible sexual intercourse. The second circumstance to which my

attention is invited, is the fact that the medical evidence does not

corroborate the prosecution case of forcible sexual intercourse or

sexual assault and the third glaring and clinching circumstance is,

according to the learned Advocate, the fact that when the prosecutrix

lodged the report on the date of the incident i.e. on 12-10-1995 at 2.30

p.m., the only allegation leveled was of molestation. There is not even

in a whisper in the report lodged at 2.30 p.m. on 12-10-1995 that the

prosecutrix was raped by the accused. It was only on the next day on

13-10-1995 that a supplementary statement was given by the

prosecutrix alleging that she was raped. The learned Advocate for the

accused would urge that although conviction can be based on the sole

uncorroborated testimony of the prosecutrix, the testimony must be

implicitly reliable and confidence inspiring. He would urge, that the

conviction of the accused on the basis of the sole testimony of the

prosecutrix, is illegal inasmuch as the testimony is not at all

trustworthy or confidence inspiring.

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5. Shri A.V. Palshikar, learned Additional Public Prosecutor

would urge that the prosecutrix had no reason to falsely implicate the

accused. The defence that the accused is implicated in view of the

refusal of the accused to marry the prosecutrix, is according to the

learned Additional Public Prosecutor, inherently unbelievable. The

learned Additional Public Prosecutor would submit that the accused

has not probablised the defence even on the touchstone of

preponderance of probabilities.

6. The prosecutrix is examined as P.W.1. She states that the

accused came to her residence at 12.30 p.m. on 12-10-1995 and after a

preliminary conversation, caught hold of her hand and when the

prosecutrix shouted, the accused asked her not to shout or tell anybody

and further threatened the prosecutrix that in case of any disclosure

the prosecutrix will be killed. P.W.1 further deposes that she was

taken to another room in the house, asked to lie down on the ground

of floor of that room, her salwar was ‘loosened and removed to some

extent’ and the accused also removed her knicker. P.W.1 deposes that

then the accused removed his full pant, she shut her eyes, the accused

committed sexual intercourse and when the prosecutrix asked the

accused why he was doing what he did, the accused replied that he be

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allowed to continue the act of sexual intercourse. P.W.1 states that the

accused completed the sexual intercourse, wore his full pant and P.W.1

also wore her clothes. P.W.1 states that in the meanwhile, her brother

Gajanan arrived and then she lodged the report in police station

Allipur.

7. The learned Advocate for the accused is absolutely right in

contending that even de hors the cross-examination, if the

examination-in-chief of the prosecutrix is considered at face value,

what emerges is a consensual sexual act. The evidence of the

prosecutrix must be closely scrutinized and tested on the anvil of

caution, particularly as the medical examination does not reveal signs

of forcible sexual intercourse. The evidence of the prosecutrix is

suggestive of a consensual act and the possibility that the prosecutrix

lodged a report only due to the arrival of her brother at an

inopportune moment, cannot be ruled out.

8. The brother of the prosecutrix Gajanan is examined as

P.W.4. He states that he returned to his residence at 12.30 p.m. from

the agricultural field and found both doors closed. He pushed the

door, entered the house and heard the words “sod-sod” (leave-leave)

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from inside the room of the house. P.W.4 has deposed that in the

meanwhile, the accused was running away, P.W.4, however,

apprehended the accused and slapped him, as a result of which slap

the accused fell down infront of the courtyard of the house. P.W.4

then states in the examination-in-chief that the accused took his shoes

from the front courtyard of the house and ran away.

9. I am inclined to agree with the contention of the learned

Advocate for the appellant that the evidence of the prosecutrix is not at

all confidence inspiring. The evidence of the prosecutrix P.W.1 and

that of her brother Gajanan (P.W.4) is absolutely inconsistent. Be it

noted, that all that the prosecutrix states in the examination-in-chief is

that the accused completed the act and in the meanwhile, her brother

arrived at the spot. There is no whisper in the testimony of the

prosecutrix that there was any interaction muchless an altercation

between P.W.4 and the accused or that the accused was running away

and was apprehended by her brother P.W.4 and slapped. All that is

said by the prosecutrix is that after completion of sexual intercourse,

the accused wore his full pant and the prosecutrix was also wore her

clothes and in the meanwhile, Gajanan (P.W.4) reached the house.

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10. The evidence of the prosecutrix, even if taken at face value

is not suggestive of a sexual intercourse which is either forcible or

which is forced by issuance of threats. The report alleged only

molestation. The allegation of rape was made in the supplementary

statement given by the prosecutrix on next day on 13-10-1995. The

defence of the accused is that the family members and relatives of the

prosecutrix exerted pressure on the accused to marry the prosecutrix.

A specific defence is taken that after lodging the first information

report which alleged only molestation, the accused was threatened

that should he not agree to the marriage proposal, he would be falsely

implicated for rape. The defence apart, the golden Rule and which

salutary principle is the very bedrock of the criminal jurisprudence, is

that the accused is presumed to be innocent till the guilt is established

beyond any reasonable doubt. It is axiomatic that the prosecution

ought to have proved its case on its own legs. I am not inclined to

delve in the great detail on the defence which has been suggested to

P.W.1 and P.W.4 during the cross-examination and which has also

come on record in the statement of the accused recorded under Section

313 of the Criminal Procedure Code, since I am of the opinion that the

prosecution has not proved its case, muchless beyond reasonable

doubt.

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11. I have no hesitation in holding that the judgment and

order dated 23-1-2002 delivered by the learned 1 st Ad hoc Additional

Sessions Judge, Wardha in Sessions Trial 22/1996 is unsustainable and

same is set aside. The appeal is allowed. The accused is acquitted of

the offences punishable under Sections 354, 376 and 448 of the Indian

Penal Code. The bail bond of the accused shall stand discharged. Fine,

if any, paid by the accused shall be refunded to him.

The appeal is disposed of accordingly.

JUDGE

adgokar

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