Sambhaji Sopan Bobade vs The State Of Maharashtra on 28 November, 2017

1 CRI.APPEAL NO.72 OF 2017

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.72 OF 2017

Sambhaji Sopan Bobade,
Age 29 years, Occu: Agril.,
R/o Shirshi (Bk),
Sonpeth, Dist. Parbhani.

…APPELLANT

VERSUS

The State of Maharashtra
Through the Police Station Sonpeth,
Dist. Parbhani.

…RESPONDENTS

Shri S.V.Mundhe, Advocate for appellant.
Shri S.P.Tiwari, APP for respondent State.

CORAM: P.R. BORA, J.

***
Date of reserving the judgment:22/9/2017

Date of pronouncing the judgment: 28/11 /2017
***

JUDGMENT:

1. The appellant has filed the present appeal against

the judgment and order passed by the Additional Sessions

Judge, Gangakhed, in Special (POCSO) Case No.03/2016.

The appellant has been convicted by the learned Special Judge

for the offenses punishable under Sections 452 and 376 of IPC

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
2 CRI.APPEAL NO.72 OF 2017

and is sentenced to suffer rigorous imprisonment for seven

years for the offense punishable under Section 376 of IPC with

fine of Rs.1,000/-; in default, to suffer further rigorous

imprisonment for three months, and rigorous imprisonment for

one year for the offense punishable under Section 452 of IPC

with fine of Rs.500/-; in default, to suffer further rigorous

imprisonment for one month.

2. It was the case of the prosecution that on 22nd of

December, 2015, the appellant, who is hereinafter referred to

as the accused, dragged the prosecutrix, who was cleaning

utensils infront of her house, situated at village Shirsi, along

with her sister, namely, Dipali, and forcibly entered in the

house of the prosecutrix along with the prosecutrix, bolted the

house from inside and committed rape on the prosecutrix.

The act of the accused was resisted by the prosecutrix by

raising shouts. Hearing the shouts of the prosecutrix, PW 3,

namely, Kondabai, along with one Mirabai, who were stated to

be neighbours, reached to the house of the prosecutrix and

compelled the accused to open the door of the house and

brought the accused out of the house. The persons viz.

Harshal and Pinnu, then took away the accused from there.

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::

3 CRI.APPEAL NO.72 OF 2017

3. At the relevant time, the mother and father of the

prosecutrix both were not at home. After they returned to

home in the evening, prosecutrix narrated the incident to her

mother and then on 24th of December, 2015, report was

lodged at Sonpeth Police Station in regard to the alleged

incident against the accused whereupon the investigation was

initiated. Initially, the offense was registered under Section

354 of IPC and 7 and 8 of the Protection of Children from

Sexual Offenses Act,2012 ( hereinafter referred to as the

POCSO Act), however, since the prosecutrix in her statement

recorded by the Police, disclosed that the accused committed

rape on her, offense under Section 376 of IPC and the offenses

under Sections 3 and 4 of the POCSO Act were added against

the accused.

4. The prosecutrix was sent for medical examination

and the medical report in that regard was obtained.

Necessary samples were collected and were forwarded to the

Chemical Analyzer. The accused was arrested and he was

also medically examined. His blood and semen samples were

collected and the same were also sent for chemical analysis.

In the meanwhile, spot panchnama was prepared, the clothes

on the person of the prosecutrix were seized and the

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
4 CRI.APPEAL NO.72 OF 2017

statements of the witnesses were recorded. The evidence as

about the age of the prosecutrix was also collected and after

completing the investigation, the chargesheet was filed in the

Special Court at Gangakhed whereupon Special Case No.3/2016

was registered against the accused. The learned Sessions

Judge on 26.7.2016 framed the charge against the accused and

since the accused pleaded not guilty and claimed to be tried,

the trial was proceeded further.

5. In order to prove the guilt of the accused, as many

as 9 witnesses were examined by the prosecution. Accused

denied the charges levelled against him and took a defense that

he was falsely implicated in the crime on account of previous

enmity between him and the father of the prosecutrix. The

accused did not enter into the witness box nor examined any

witnesses in his defense.

6. The learned Sessions Court, after having assessed

the oral as well as the documentary evidence brought on

record, though acquitted the accused from the offenses under

the POCSO Act, held him guilty for the offenses punishable

under Sections 452 and and 376 of the IPC and sentenced him

to suffer the punishments as noted hereinabove. Aggrieved

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
5 CRI.APPEAL NO.72 OF 2017

thereby, the appellant has preferred the present appeal.

7. Shri S.V.Mundhe, learned Counsel appearing for the

appellant accused, criticized the impugned judgment on several

grounds. Learned Counsel submitted that though there are

several discrepancies as well as omissions in the statements

recorded of the prosecutrix during the course of the trial, the

learned Sessions Court has implicitly relied upon the said

testimony and though there was no corroboration to the facts

stated by the prosecutrix in her testimony before the Court, the

Sessions Court has wrongly held the appellant guilty for the

offenses punishable under Sections 452 as well as 376 of the

IPC and convicted him for the said offenses. Learned Counsel

further submitted that the prosecution did not bring on record

sufficient medical evidence so as to prove that the prosecutrix

was raped by the accused. Learned Counsel further submitted

that the Chemical Analyzer’s reports also do not in any way

indicate the occurrence of rape and, as such, in no case, the

accused could have been convicted for an offense under Section

376 of the IPC.

8. Learned Counsel further submitted that from the

admissions given by PW 3 Kondabai, it is evident that she was

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
6 CRI.APPEAL NO.72 OF 2017

an interested witness and, as such, her evidence was not liable

to be relied upon. Even otherwise, according to the learned

Counsel, it was not possible for PW 3 Kondabai to view anything

from outside as to what was going on inside the house of the

prosecutrix at the relevant time. Learned Counsel submitted

that, thus, there was absolutely no evidence before the

Sessions Court showing complicity of the accused in the

commission of the alleged crime, however, inspite of that, in a

pre-determined manner, the Sessions Court has convicted the

accused. Learned Counsel, therefore, prayed for setting aside

the impugned judgment and order and, consequently, to acquit

the accused of the charges levelled against him.

9. Learned A.P.P. supported the impugned judgment

and order.

10. I have perused the impugned judgment as well as

the evidence on record. The First Information Report in the

present matter was admittedly lodged by PW 1 Rukhminibai,

who happens to be the mother of the prosecutrix. The alleged

incident happened on 22nd of December, 2015. Rukhminibai

lodged the report of the alleged incident on 24th of December,

2015. It was the first objection raised by the learned Counsel

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
7 CRI.APPEAL NO.72 OF 2017

for the accused that there was considerable delay in lodging the

report of the alleged incident and the same has not been

explained by the prosecution. Ostensibly, there appears

substance in the objection so raised on behalf of the accused.

However, on perusal of the record, it is revealed that the

complaint so lodged by Rukhminibai was entered in the Police

record of Police Station, Sonpeth, on 00.15 hrs. on 24th

December, 2015. It is, thus, evident that, may be at late

hours but the FIR was practically lodged on 23rd of December,

2015, i.e. on the next day of the alleged incident. When the

FiR was registered at 00.15 hrs., it can be reasonably inferred

that the complainant might be there in the Police Station prior

to few hours of the registration of the said complaint, meaning

thereby, on 23rd December, 2015.

11. Even then, the question would remain why the

complainant waited till night of 23rd of December, 2015, when

the alleged incident had occurred on 22nd December, 2015. It

is true that nothing has been brought on record by the

prosecution to explain the said delay. However, as has been

discussed by the learned Sessions Judge, merely on the said

ground it would be wholly unjust to discard the prosecution

case. As has been held by the Honourable Apex Court in the

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
8 CRI.APPEAL NO.72 OF 2017

case of Ravinder Kumar and another Vs. State of Punjab ( 2001

CRI.L.J. 4242), though prompt and immediate lodging of the

FIR is ideal, as that would give the prosecution a twin

advantage; first is that it affords commencement of the

investigation without any time lapse, and second is that it

expells the opportunity for any possible concoction of a false

version. Barring these two plus points, the demerits of the

delayed FIR cannot operate as a fatal to any prosecution case.

12. In the report so lodged by PW 1 Rukhminibai,

admittedly, there was no allegation against the accused that he

committed rape on the prosecutrix. The record reveals that in

her supplementary statement recorded on 26th of December,

2015, Rukhminibai disclosed to the investigating officer that

subsequently, she had come to know from women residing

adjacent to her house, as well as from the disclosure made by

the prosecutrix, that the accused committed forcible intercourse

with the prosecutrix against her will. As has come on record

through the evidence of PI Meena Kardak (PW 7), the

prosecutrix disclosed in her statement recorded by said Meena

Kardak that she was subjected to forcible rape by the accused

and, as such, with the permission of the learned Magistrate,

offense under Section 376 of IPC was added in the crime

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
9 CRI.APPEAL NO.72 OF 2017

registered against the accused.

13. In the light of the facts as aforesaid if the testimony

of Rukhminibai (PW 1) is perused, she has not specifically

deposed that the prosecutrix disclosed to her that the accused

committed rape on her. Perusal of the oral evidence of PW 1

Rukhminibai reveals that she has re-narrated the facts which

were allegedly stated to her by the prosecutrix. Rukhminibai

in her evidence has deposed that,

” Kavita further informed that the accused
caught hold her and took her inside the house. Kavita
informed me that the accused put the latch of the door
from inside. Kavita informed that the accused removed
the clothes from his person. Kavita informed that the
accused also removed the clothes on her person. Kavita
informed that she raised the shouts. Kavita informed
that on the shouts as raised by her, females came and
constrained the accused to open the door. The witnesses
by names Pinoo and Harshu took out the accused out side
from the house. On the next day of the incident,
Kondabai and Meerabai have informed me about the
incident as happened.”

From the aforesaid version, it becomes clear that PW 1

Rukhminibai did not depose that the prosecutrix informed her

or disclosed to her that the accused had forcible sexual

intercourse with her without her consent.

14. In her testimony before the Court, the prosecutrix

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
10 CRI.APPEAL NO.72 OF 2017

has, however, specifically deposed that the accused inserted his

penis in her private part. In view of the fact that in the First

Information Report lodged by PW 1 Rukhminibai, there was no

mention that the prosecutrix was raped by the accused, and

further that in her testimony also, PW 1 Rukhminibai did not

depose any such fact, the fact stated by the prosecutrix in her

testimony before the Court that she was raped by the accused

requires to be closely scrutinized.

15. In this regard the testimony of PW 3 Kondabai also

bears material importance. According to the case of the

prosecution, after hearing the alarms given by the prosecutrix,

Kondabai had been to the house of the prosecutrix along with

one Mirabai. It would be, therefore, apt to look into the

testimony of PW 3 Kondabai. As has been deposed by PW 3

Kondabai, at the relevant time, she and one Mirabai were

sitting infront of her house and they heard the noise of shouting

from the house of prosecutrix. As further deposed by said

Kondabai, she along with Mirabai reached at the house of the

prosecutrix and peeped through the slit of the door of the

house of the prosecutrix whereupon she noticed that

prosecutrix and the accused, both were inside the house and no

clothes were there on person of both of them. As further

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
11 CRI.APPEAL NO.72 OF 2017

deposed by Kondabai, the prosecutrix and the accused hurriedly

came out and the accused was removed from the said place by

Harshal and Pinnu, who were called at the said place by her. It

is, thus, evident that PW 3 Kondabai has also not deposed any

such fact before the Court disclosing that the accused

committed rape on the prosecutrix.

16. As has come on record, the prosecutrix was sent to

the Sub-District Hospital for medical examination on 24th

December, 2015. PW 6 Dr. Manisha Rathod conducted her

medical examination and prepared a report in that regard. I

have carefully perused the said report as well as the testimony

of PW 6 Dr. Manisha. As was opined by Dr.Manisha, the

injuries as were noticed on the person of prosecutrix were

possible during the sexual assault. In her entire evidence PW 6

Dr. Manisha has nowhere clarified whether from the

examination of the prosecutrix any such concrete inference was

emerging that she was subjected to forcible intercourse in the

recent past. As deposed by Dr.Manisha, the hymen of the

prosecutrix was noticed to be torn and was admitting two

fingers. In the cross examination, Dr. Manisha admitted that

in case of a married woman, the hymen admits two fingers.

Thus, from the testimony of Dr.Manisha and the medical

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
12 CRI.APPEAL NO.72 OF 2017

examination report of the prosecutrix at Exh.41, no such

concrete inference can be drawn that the prosecutrix was

subjected to forcible intercourse.

17. Now remains the evidence in the form of the

reports received from the Chemical Analyzer. As has come on

record, the clothes on the person of the prosecutrix as well as

her vaginal swab were forwarded for chemical examination.

The reports received in that regard are at Exh.47 and Exh.48.

The report at Exh.47 pertains to the clothes of the prosecutrix,

more particularly, Salwar, Kurta, Jangia. The report reveals

that no blood was detected on the Salwar or Kurta of the

prosecutrix. Blood was detected on the Jangia of the

prosecutrix,however, no semen was noticed on it. Blood

detected on it was of human origin and was of group `A’. It

has also come on record through the document at Exh.48 that

blood group of the prosecutrix was of Group A. Thus, the

blood detected on the said Jangia was of the prosecutrix,

however, no semen was noticed on it. From the report at

Exh.48 it is further revealed that no semen was noticed in the

vagianal swab of the prosecutrix.

18. If the entire aforesaid evidence is analyzed, it

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
13 CRI.APPEAL NO.72 OF 2017

appears difficult to accept the version of the prosecutrix that

the accused had forcible intercourse with her. As noted

earlier, in the FIR initially lodged by PW 1 Rukhminibai, it was

not alleged that the accused committed rape on the

prosecutrix. The allegations were restricted to pressing of

breasts of the prosecutrix by the accused. Though in her

supplementary statement PW 3 Rukhminibai added that the

prosecutrix also informed her that the accused had forcible

intercourse with her, in her evidence before the Court she did

not specifically depose the said fact and her testimony was

restricted only to the extent of saying that the accused

removed the clothes from his person and also from the person

of the prosecutrix. More importantly, the prosecutrix in her

cross examination has clearly admitted that her mother

instructed her to depose before the Court that the accused

inserted his penis in her private part. In view of the evidence

as above, serious doubts are created about the fact deposed by

the prosecutrix that the accused had forcible intercourse with

her.

19. There cannot be a dispute that in case of rape, the

statement of the prosecutrix alone can be a basis for convicting

the accused for the said offense and no further corroboration

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
14 CRI.APPEAL NO.72 OF 2017

may be required. However, as has been laid down by the

Honourable Apex Court in the case of Ramdas others Vs.

State of Maharashtra ( AIR 2007 Supreme Court 155), the

conviction in a rape case can be based solely on the testimony

of the proxecutrix but that can be done in a case where the

Court is convinced about truthfulness of the prosecutrix and

there exists no circumstance which casts a shadow of doubt

over her veracity. If the evidence of the prosecutrix is of such

a quality, the order of conviction may rest solely on the basis of

her testimony.

20. Learned Sessions Judge has also referred to few

other judgments of the Honourable Apex Court; for example,

(1) the State of Maharashtra vs. Rameshwar Shridhar Jaware

and another ( 20007 ALL MR ( Cri) 2761, (2) Sudhanshu Sekar

Sahoo Vs. The State of Orissa ( 2003 Supreme Court Cases

(Cri.) 1484, (3) Vimal Suresh Kamble Vs. Chaluverapinake Apal

S.P. and another ( 2003 Criminal Law Journal 910), wherein

also it is consistently held that in rape cases, the conviction can

be solely based on the evidence of the victim provided such

evidence inspires confidence and appears to be natural and

truthful.

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::

15 CRI.APPEAL NO.72 OF 2017

21. The facts which are deposed by the prosecutrix in

her testimony before the Court, if scrutinized in the light of the

evidence of the other witnesses, and the documentary evidence

on record, it is difficult to agree with the conclusion recorded by

the learned Additional Sessions Judge that the prosecution has,

beyond reasonable doubt, proved that the accused committed

rape on the prosecutrix. As noted earlier, in the FIR lodged by

the mother of the prosecutrix which, according to her own

version, was based on the facts disclosed to her by the

prosecutrix, no such complaint was made that the accused had

forcible sexual intercourse with the prosecutrix. It was

complained that the accused laid on the person of the

prosecutrix and pressed her breasts. In her testimony before

the Court, the mother of the prosecutrix (PW 1 Rukhminibai)

has deposed that the prosecutrix informed her that the accused

removed the clothes on his person and also removed the

clothes on her person. Further, nothing more has been

deposed by PW 1 Rukhminibai that the prosecutrix also told her

that accused thereafter had sexual intercourse with the

prosecutrix. It is significant to note that, according to the case

of the prosecution, two days after lodging of the report,

Rukhminibai (PW 1) gave her supplimentary statetement

making further allegation that the accused inserted his private

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
16 CRI.APPEAL NO.72 OF 2017

part in the vagina of the prosecutrix whereupon the offense

earlier registered under Section 354 of the IPC was converted

into an offense under Section 376 of IPC. However, as stated

above, in her testimony before the Court, Rukhminibai (PW 1)

did not depose before the Court that the accused committed

sexual intercourse with the prosecutrix. Similarly, from the

medical evidence on record also, no such irresistable inference

can be drawn that the accused had sexual intercourse with the

prosecutrix. In view of the evidence as above, the argument

made by the learned A.P.P. that the prosecutrix has clearly

deposed that the accused inserted his private part in her vagina

and, as such, believing her version, the conclusion recorded by

the trial Court that the accused committed rape on the

prosecutrix, is sound, and does not require any interference,

cannot be accepted. I reiterate that the prosecutrix in her

cross examination has given a vital admission that the fact

stated by her in her testimony before the Court that the

accused inserted his penis in her private part was stated by her

on instructions of her mother. In the circumstances, I have no

doubt that the prosecution has failed in proving the offense

under Section 376 of IPC against the accused.

22. The next question, therefore, arises as to whether

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
17 CRI.APPEAL NO.72 OF 2017

any offense is then made out against the accused or he

deserves to be acquitted. Learned Counsel for the appellant

accused, after having advanced his submissions for claiming

acquittal of the accused of the charges levelled against him,

had alternatively submitted that from the prosecution evidence,

if at all any offense can be said to have been made out against

the accused, is under Section 354 of the IPC. In view of the

evidence on record, the submission so made by the learned

Counsel is difficult to be accepted.

23. Though there is no clinching evidence proving

beyond reasonable doubt that the accused had forcible sexual

intercourse with the prosecutrix without her consent, the

prosecution has, undoubtedly, proved that the accused dragged

the prosecutrix in her home and bolted the door of the house

from inside. From the testimony of the prosecutrix read with

testimony of PW 3 Kondabai, it is also established that the

prosecutrix raised shouts at the relevant time. As has been

deposed by PW 3 Kondabai, after hearing such shouts, she

along with one Mirabai, rushed to the house of the prosecutrix.

Kondabai, PW 3, has also deposed that when she and Mirabai

peeped inside the house of the prosecutrix from a slit in the

door, it was noticed by her that there were no clothes on the

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
18 CRI.APPEAL NO.72 OF 2017

person of the accused as well as the prosecutrix. Though an

objection was raised that Kondabai was an interested witness,

as she is the close relative of the prosecutrix, I do not see

any reason to disbelieve the fact stated by her in her testimony

before the Court on the said ground.

24. Now, it would be useful to again look into the facts

as were stated by the prosecutrix in her testimony. It has

come in the evidence of the prosecutrix that the accused bite

on her right hand near elbow. Prosecutrix had also deposed

that the accused was again intending to repeat the said act. In

the medical examination of the prosecutrix, teeth bite marks

over her right arm were noticed. The fact stated by the

prosecutrix that the accused bite on her right arm is, thus, fully

corroborated by the medical evidence.

25. Removing the clothes on his person by the

accused, removal of the clothes by him on the person of the

prosecutrix leads to the only inference that the accused was

intending to commit rape on the prosecutrix. The further act

of the accused to bite the right hand of the prosecutrix and, as

stated by the prosecutrix, his intention to repeat the said act,

establishes that the accused had gone beyond the stage of

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
19 CRI.APPEAL NO.72 OF 2017

preparation and, in such circumstances, mere absence of the

further evidence that the accused did not attempt penetration

would not absolve him from the offense of attempt to commit

rape. The very act of the accused to drag the prosecutrix

from outside of her house to the inside of the house, to bolt the

door of the house from inside also sufficiently indicates the

intention of the accused of committing rape on the prosecutrix.

The further acts of the accused, as I discussed hereinbefore,

un-doubtedly amounts to an attempt by the accused to commit

rape on the prosecutrix. Having regard to the aforesaid acts

of the accused, which have been proved by the prosecution

beyond reasonable doubt, it would not be a case of mere

assault under Section 354 of IPC. From the acts of the

accused it is difficult to accept the contention of the learned

Counsel appearing for the accused that the same would amount

to outraging modesty of the prosecutrix. Considering the

acts of the accused of removing clothes on his own person,

removing clothes on the person of the prosecutrix, biting the

arm of the prosecutrix lead to the only inference that the

accused was determined to have sexual intercourse with the

prosecutrix at any cost, however, he could not succeed in the

same as because prosecutrix raised shouts and, in response to

the shouts so raised by her, Kondabai, Mirabai, etc. rushed to

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::
20 CRI.APPEAL NO.72 OF 2017

the house of the prosecutrix.

26. For the reasons as aforesaid, the conviction of the

appellant by the trial Court for an offense under Section 376 of

IPC deserves to be altered to the conviction under Section 376

read with Section 511 of IPC. In the result, the following order

is passed:

ORDER

1. The conviction of the accused as ordered by the trial

Court under Section 376 of IPC stands set aside. The

appellant – accused, namely, Sambhaji Sopan Bobade, is

convicted for an offense under Section 376 read with Section

511 of the IPC and is sentenced to suffer rigorous imprisonment

for four years and to pay fine of Rs. 75,000/- (Rs. seventy five

thousand); in default, to suffer further rigorous imprisonment

for one year.

2. The sentence awarded by the trial Court for the

offense under Section 452 of the IPC is maintained as it is.

3. Both the sentences shall run concurrently.

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::

21 CRI.APPEAL NO.72 OF 2017

4. The accused would be entitled for set off under

Section 428 of Code of Criminal Procedure for the period he has

undergone in jail.

5. Fine amount be deposited in the Sessions Court. If

the said amount is realized, the Sessions Court shall pay an

amount of Rs.70,000/- ( Rs. seventy thousand) out of that to

the prosecutrix in the present case on proper identification.

Balance amount of Rs.5,000/- be credited to the Government.

Criminal Appeal, thus, stands partly allowed in above

terms.

(P.R.BORA)
JUDGE

AGP/72-17criminalappeal

::: Uploaded on – 28/11/2017 29/11/2017 02:07:54 :::

Leave a Comment

Your email address will not be published. Required fields are marked *