Diwakar S/O Bhanu Shende vs State Of Maharashtra,Thr.Its … on 31 October, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.587 OF 2002

Diwakar S/o. Bhanu Shende,
aged about 32 years,
Resident of Sagnapur,
Tahsil Chamorshi,
District Gadchiroli …APPELLANT

…Versus…

State of Maharashtra,
through P.S.O. Chamorshi,
District Gadchiroli …RESPONDENT

——————————————————————————————-
Mr. Sumit Joshi, Counsel for Appellant.
Mrs. M.H. Deshmukh, Additional Public Prosecutor for
Respondent /State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 01-09-2017
DATE OF PRONOUNCING THE JUDGMENT : 31-10-2017

JUDGMENT

Challenge is to the judgment and order dated

11.10.2002 in Sessions Trial 22 of 1996 delivered by 1 st Adhoc

Additional Sessions Judge, Gadchiroli, by and under which, the

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

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offence punishable under section 376 of the Indian Penal Code

(“IPC” for short) and is sentenced to suffer rigorous imprisonment

for seven years and to payment of fine of Rs. 500/- and is further

convicted of offence punishable under section 448 of the IPC and

is sentenced to suffer rigorous imprisonment for three months and

to payment of fine of Rs. 200/-.

2 Heard Shri. Sumit Joshi, learned counsel for the

accused and Smt. M.H. Deshmukh, learned Additional Public

Prosecutor for the respondent / State.

3 The learned counsel for the accused Shri. Sumit Joshi

submits that the learned Sessions Judge fell in serious error in not

appreciating that the evidence on record is overwhelmingly

suggestive of consensual sexual relationship.

Per contra, Smt. M.H. Deshmukh, the learned

Additional Public Prosecutor submits that the judgment impugned

is unexceptional on facts and in law.

4 In rejecting the defence of consensual sexual

relationship, the learned Sessions Judge has invoked the statutory

presumption under section 114-A as the provisions stood prior to

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the Criminal Law (Amendment) Act, 2013. The learned Sessions

Judge has noted the provisions of Section 114-A in paragraph 16

of the judgment impugned, which read thus:

“In a prosecution for rape under clause (a) or clause (b)
or clause (c) or clause (d) or clause (e) or clause (g) of
sub-section (2) of section 376 of the Indian Penal Code
(45 of 1860), where sexual intercourse by the accused is
proved and the question is whether it was without the
consent of the woman alleged to have been raped and
she states in her evidence before the Court that she did
not consent, the Court shall presume that she did not
consent.”

Unfortunately, the learned Sessions Judge failed to notice

that the statutory presumption under section 114-A comes into

play only if the prosecution is for rape under clause (a), (b), (c),

(d), (e), (f) and (g) of sub-section (2) of section 376 of the IPC.

The relevant provisions as they read before the Criminal Law

(Amendment) Act, 2013 are reproduced below:

376. Punishment for rape.– (1) Whoever, except in
the cases provided for by sub-section (2), commits rape
shall be punished with imprisonment of either
description for a term which shall not be less than seven
years but which may be for life or for a term which may
extend to ten years and shall also be liable to fine unless
the woman rapes is his own wife and is not under
twelve years of age, in which case, he shall be punished
with imprisonment of either description for a term
which may extend to two years or with fine or with
both:

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Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of less
than seven years.

(2) Whoever, —

(a) being a police officer commits rape–

(i) within the limits of the police station
to which he is appointed; or

(ii) in the premises of any station house
whether or not situated in the police station to which he
is appointed; or

(iii) on a woman in his custody or in the
custody of a police officer subordinate to him; or

(b) being a public servant, takes
advantage of his official position and commits rape on
a woman in his custody as such public servant or in the
custody of a public servant subordinate to him; or

(c) being on the management or on the
staff of a jail, remand home or other place of custody
established by or under any law for the time being in
force or of a woman’s or children’s institution takes
advantage of his official position and commits rape on
any inmate of such jail, remand home, place or
institution; or

(d) being on the management or on the
staff of a hospital, takes advantage of his official
position and commits rape on a woman in that
hospital; or

(e) commits rape on a woman knowing
her to be pregnant; or

(f) commits rape on a woman when she is
under twelve years of age; or

(g) commits gang rape.

shall be punished with rigorous imprisonment for a

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term which shall not be less than ten years but which
may be for life and shall also be liable to fine:

Provided that the Court, may for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either description
for a term of less than ten years.

Explanation 1.– Where a woman is raped by
one or more in a group of persons acting in furtherance
of their common intention,, each of the persons shall be
deemed to have committed gang rape within the
meaning of this sub-section.

Explanation 2.– “Women’s or children’s
institution” means an institution, whether called an
orphanage or a home for neglected women or children
or a widow’s home or by any other name, which is
established and maintained for the reception and care
of women or children.

Explanation 3.– “Hospital” means the precincts
of the hospital and includes the precincts of any
institution for the reception and treatment of persons
during convalescence or of persons requiring medical
attention or rehabilitation.]

The prosecution was not for rape under the aforesaid

provisions and the learned Sessions Judge, oblivious to the

statutory provisions fell in serious error in holding that the

statutory presumption under section 114 (A) came into play.

5 The prosecutrix who is examined as PW 1 states that

at 12.00 p.m. on the date of the incident she was in the house

cleaning rice while her husband was away on labour work of

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breaking and crushing metals. The accused came to the house of

the prosecutrix and demanded a glass of water. The prosecutrix

went to fetch water, the accused entered the house, caught hold of

the prosecutrix and forcibly brought her down to the floor, is the

deposition. The prosecutrix shouted but in vain, as the villagers

were away in connection with their day to day work. The

prosecutrix has deposed that the accused forcibly ravished her.

Her saree was removed, the accused who had only towel wrapped

around his waist and was wearing a sando baniyan undressed and

raped the prosecutrix, is the deposition. The prosecutrix states

that the accused had shut the door while entering the house and

after committing rape he went away. The prosecutrix then states

that she narrated the incident to her husband at 6.00 p.m., a

Panchayat was convened in the night, in the presence of the

panchas the accused declared that he had done the act and that

the panchas were free to do whatever they wished to do. It was

then that police complaint was lodged, the next day. The

prosecutrix proved the complaint Exh. 14 and the printed First

Information Report Exh. 15.

6 In the cross-examination of the prosecutrix, it is

brought on record that the accused stays nearby and that there are

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200 to 400 houses in the village. It is brought on record that the

husband of the prosecutrix does not come home for lunch and that

the prosecutrix generally carries tiffin to her husband at 10.00

a.m., although sometimes she is delayed. It is suggested to the

prosecutrix that it was she who called the accused, shut the door

and permitted the accused to have sexual intercourse. It is also

suggested that when the accused left, Maroti and Devidas Shende

who were playing near the house of the prosecutrix saw the

accused leaving the house of the prosecutrix and told the

prosecutrix that her husband would be duly informed. The

prosecutrix has denied the suggestion. It is also suggested to the

prosecutrix that since she apprehended that Maroti and Devidas

will disclose the incident to her husband, she carried the tiffin to

the place of work of the husband and made the disclosure of the

incident. She has denied the portion mark “A” in her statement,

which is however, proved through the Investigating Officer –

P.W.6. The said portion reads thus:-

^uarj eh dkgh osGkus uo;kdjhrk Lo;aikd d:u
R;kl vank- 2] 3 ok- f’knksjh usowu fnyh o ?kMysyh
gdhxr lkaxhryh^-

It is further elicited from the prosecutrix that she did

the work of breaking the metal with her husband and that

conveyed to her husband that there was no need to file a report

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and that whatever has happened should be forgotten. It is also

elicited from the prosecutrix that her husband told her that unless

the report is lodged, he would not cohabit with her.

7. The husband of the prosecutrix – Parasram is

examined as PW 2. PW 2 has deposed, in stark variance with the

prosecutrix, that he was informed about the incident in the

evening when he returned to the house. Be it noted, that in the

cross examination of the prosecutrix, she admits that she carried

the tiffin box to the work place of PW 2 in the afternoon, disclosed

the incident to PW 2, joined in the work of breaking the metal and

there was a conversation between the couple during the course of

which the prosecutrix told her husband that whatever has

happened be forgotten and a police report was not needed and the

husband told the prosecutrix that unless report is lodged, he

would not cohabit with her.

8. PW 2 then deposes that a Panchayat was convened,

the accused was summoned, the accused told the panchas that he

has done whatever he wanted and dared the panchas to do

whatever they wished to do. PW 2 has further deposed that since

it was night time, he alongwith the prosecutrix went to the Police

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Station the next day morning. In the cross-examination, the

attention of the PW 2 was invited to the portion mark “A” of the

161 statement and the response is that the said portion is not

correctly recorded. The portion mark “A” reads thus:-

^vank- nqikjh 2]3 ok- ps lqekjkl ekh iRuh f’knksjh
?ksmu ek;k dkekoj vkyh o frus eyk lkaxhrys dh]
njokt;ktoG clwu rkanqG fuoMr vlrk ukes fnokdj
‘ksaMs gk ?kjkr ,dne vkyk o eyk [kkyh tehuhoj
dywu nsmu njoktk can d:u ghps rksaM nkcwu
dkLVk dkwu laaHkksx dsY;kps lkaxhrys^

In the later part of the cross-examination, PW 2

admits that he did not state to the police that the prosecutrix

narrated the incident by visiting the work place with tiffin. PW 2

admits that the prosecutrix told him that the incident should be

forgotten and they should not lodge complaint. It is elicited from

PW 2 that he asked the prosecutrix to lodge the complaint.

9. PW 3 – Nanaji Shende, is examined to prove that in

the meeting of the panchas, the accused admitted to have raped

the prosecutrix. However, it is brought out in the cross-

examination of the said witness, that there were inimical terms

between his family and the accused. The wife of PW 3 had lodged

complaint against the accused alleging abusive behaviour. The

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witness admits that his relationship with accused is not cordial.

The statement that the prosecutrix disclosed the incident to PW 3

in the evening is shown to be an omission.

10. Sarjabai – PW 4, who is examined as PW 4 to prove

the proceedings of the Panchayat did not support the prosecution,

was declared hostile and cross-examined by the learned Additional

Public Prosecutor. However, nothing is elicited in her cross-

examination to assist the prosecution.

11. Nanaji Bhoyar, then Police Inspector who submitted

the chargesheet is examined as PW 5 and Kamlakar Gadpalliwar,

Investigating Officer is examined as PW 6.

12. Concededly, as is evident from the report of the

medical examination of the prosecutrix, the prosecutrix has not

suffered any injury whatsoever on her person including genitalia.

The learned Additional Public Prosecutor is justified in submitting

that the absence of injury per se does not rule out forcible sexual

intercourse particularly since the prosecutrix is a married woman

habituated to sexual intercourse. In rebuttal, Shri. Sumit Joshi,

the learned counsel for the accused would submit that since the

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prosecutrix claims that she was forcibly brought down, her mouth

was gagged, the sexual intercourse committed on the bare floor of

the Chhapri (Varandah), the absence of signs like abrasions

coupled with other circumstances would strongly suggest

consensual sex.

13. In so far as the case of the prosecution that a

Panchayat was convened in the evening of the day of the incident

and that the accused admitted to have raped the prosecutrix, I

have no hesitation in holding that the evidence on record is grossly

inadequate to support the said version. PW 3 who is admittedly

on inimical terms with the accused, is not a trustworthy witness.

PW 4 – Sarjabai has not supported the prosecution. The medical

evidence does not take the case of the prosecution any further in

the absence of any physical signs of injury suffered by the

prosecutrix due to the alleged forcible sexual intercourse. The

case of the prosecution, in the circumstances, essentially rests on

the testimony of the prosecutrix and to a certain extent on the

testimony of her husband PW 2 – Parasram, as lending

corroboration. The learned Additional Public Prosecutor Smt.

M.H. Deshmukh would urge that the conviction can be safely

based even on the uncorroborated testimony of the prosecutrix.

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The learned Additional Public Prosecutor would urge that the

testimony of the prosecutrix is more than amply corroborated by

the testimony of her husband PW 2. The position of law that

conviction can be based on the uncorroborated testimony of the

prosecutrix, if the testimony is implicitly reliable and confidence

inspiring, is too well settled to warrant any elaborate discussion.

I have given my anxious consideration to the

testimony of the prosecutrix. Having done so, I am not persuaded

to base the conviction on her uncorroborated testimony. The

version of the prosecutrix is that she was forcibly raped at 1.00

p.m. or thereabout. The prosecutrix claims that her mouth was

gagged, she was brought down on the bare floor and forcibly

ravished. The absence of even an abrasion, the failure of the

prosecutrix to disclose the incident to any person in the village and

that prosecutrix carried on with her day to day work in a routine

manner, prepared the tiffin box and at 3.00 p.m. or thereabout

went to work place of the husband with the tiffin, joined the

husband in breaking the metal and after making the disclosure

about the incident to her husband told him that there was no need

to file a police report and whatever has happened be forgotten, are

circumstances which cumulatively strongly suggest that the

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possibility of consensual sex is real possibility and can not be

excluded from consideration. I have already noted that the

statutory presumption under section 114(A) could not have been

invoked by the learned Sessions Judge. The accused was under no

burden to prove the defence beyond reasonable doubt. The

limited burden on the accused was to probabilize the defence on

the touchstone of preponderance of probabilities and to create

doubt about the veracity of the prosecution case. This, the defence

has succeeded in doing, and the benefit of the doubt must

necessarily go to the accused.

In the light of the discussion supra, the judgment impugned

is unsustainable and is set aside.

The accused is acquitted of offence punishable under section

376 and 448 of IPC.

The bail bond shall stand discharged.

Fine paid by the accused, if any, be refunded.

The appeal is allowed.

JUDGE

Belkhede

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