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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.9 OF 2006
Nana S/o. Saduji Mane,
Aged about 50 years,
Occupation : Agriculturist,
Resident of Jalka Jagtap, PS Kurha,
District Amravati …APPELLANT
…V E R S U S…
The State of Maharashtra,
Through PSO Kurha,
District Amravati …RESPONDENT
——————————————————————————————-
Mr. Vinay Dahat, counsel for the Appellant.
Mr. A.V.Palshikar, Additional Public Prosecutor for the Respondent
——————————————————————————————-
CORAM
:ROHIT B. DEO, J.
DATE
:13.12.2017
ORAL JUDGMENT:
The appellant is aggrieved by the judgment and order
dated 23.12.2005, delivered by the learned Additional Sessions
Judge, Amravati in Sessions Trial 130 of 2004, by and under
which the appellant is convicted for offence punishable under
section 376(1) of the Indian Penal Code (“IPC” for short) and is
sentenced to suffer rigorous imprisonment for ten years and to
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payment of fine of Rs. 5000/-.
2. Heard Shri. Vinay Dahat, the learned counsel for the
appellant and Shri A.V. Palshikar, the learned Additional Public
Prosecutor for the respondent / State.
3. Shri. Vinay Dahat, the learned counsel for the
appellant – accused submits that the conviction, which is
substantially if not entirely, based on the sole uncorroborated
testimony of the prosecutrix is unsustainable and is against the
weight of evidence on record.
Shri. Dahat, the learned counsel, would submit, that while
as a preposition of law he has no demur that the conviction can
entirely rest on the sole uncorroborated testimony of the
prosecutrix, the caveat is that the testimony must be implicitly
reliable, trustworthy and confidence inspiring. Shri. Dahat would
submit that the evidence of the prosecutrix must be discarded as
untrustworthy for reasons more than one. The conduct of the
prosecutrix is most unnatural, is the submission. The prosecutrix
states in the examination in chief that the accused, her father in
law, viewed her with “evil eye”. However, in the course of cross-
examination when the prosecutrix was called upon to explain as to
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why she did not protest when the accused locked door from inside,
the response was that she treated the accused as her father. The
fact that the prosecutrix claims to have left the matrimonial home
after she was subjected to sexual intercourse by the father in law
and then to have directly gone to the parental house, concededly,
without making any effort to narrate the incident either to her
husband or her mother in law is not a natural or normal human
conduct, is the submission. The evidence of the prosecutrix that
she was subjected to forcible sexual intercourse, and that she was
prevented from shouting, that she scratched the accused and
resisted, is not compatible with the medical evidence which does
not reveal any tell tale sign of resistance on the person of either
the prosecutrix or the accused, is the submission. Shri. Dahat, the
learned counsel would then submit that it is inherently incredible
and improbable that such a incident could have taken place in a
small house comprising two rooms, which is surrounded by houses
on every side, without any of the neighbours coming to know of
the incident. The prosecutrix had ample opportunity to raise an
alarm, is the submission. Shri Vinay Dahat, the learned counsel
would then submit, that as many as four witnesses were examined
in defence. The defence was that the prosecutrix had an axe to
grind against the accused since the accused was desirous that the
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husband of the prosecutrix marry some other woman in view of
the inability of the prosecutrix to conceive. The accused was not
present at the house on 7.8.2004, is the defence. The defence was
also that the prosecutrix was not residing in the matrimonial home
since 8 days or thereabout prior to the incident. However, the
evidence of the defence witnesses is not examined in the correct
perspective and that the learned Sessions Judge has committed the
often noticed error of approaching defence evidence with
suspicion, is the submission. Reliance is placed amongst others,
on the judgment of the Hon’ble Apex Court in Dudh Nath Pandey
vs. State of U.P. AIR 1981 SC 911, to buttress the submission that
a defence witness is entitled to be treated at par with the
prosecution witness while appreciating and marshalling the
evidence.
4. Per contra, the learned Additional Public Prosecutor
Shri A.V. Palshikar submits that the evidence of the prosecutrix is
rightly accepted and believed as reliable, trustworthy and
confidence inspiring and there is no infirmity in the judgment of
conviction. It is trite law that the conviction can entirely rest on
the uncorroborated sole testimony of the prosecutrix, is the
submission.
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5. Having given anxious consideration to the evidence
on record, the submissions urged and the reasoning underlying the
conviction, I have no hesitation in holding that the prosecution has
failed to prove the offence punishable under section 376(1) of the
IPC much less beyond reasonable doubt.
6. Concededly, the testimony of the prosecutrix is
incompatible with the medical evidence on record. It is true, as
contended by the learned Additional Public Prosecutor, that since
the prosecutrix was a married woman the absence of injuries on
the genitalia would not be decisive. But then, the evidence of the
prosecutrix is that when the accused closed the door of the inside
room she rushed at the accused. She was prevented from
shouting. The prosecutrix tried to rescue herself and to resist the
sexual assault. She scratched the accused by nails. The absence of
any visible injury on the person of either the prosecutrix or the
accused would suggest that the evidence of the prosecutrix is
inconsistent with the medical evidence. Concededly, nothing
incriminating is detected to link the accused with the alleged
sexual assault, in the reports of the Chemical Analyzer. The
learned APP Shri A.V. Palshikar, with usual fairness, is not
disputing the submission of Shri Vinay Dahat, the learned counsel
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that the evidence of PW 3 Gumphabai apart, who states that the
prosecutrix disclosed to her that she was ravished by the accused
there is no other evidence much less medical or scientific to
corroborate the evidence of the prosecutrix.
7. The prosecutrix states that she was ravished at 1.30
p.m. on 7.8.2004 at her matrimonial house. The evidence of the
prosecutrix is that the accused had a roving eye and that at the
relevant time her husband had gone to the forest to graze goats,
the accused asked Ambabai the daughter of the accused to take
her mother to the Chandur Railway hospital and the accused and
the prosecutrix were alone at the house. The prosecutrix states
that the accused closed the front door from inside, caught her by
hand and brought her to the drawing room, she was made to lay
down on the blanket and was ravished. The accused completed
the sexual act and walked out of the house. The prosecutrix went
to the house of her parents who were not present since they had
gone to Shendola Dhaskat, she disclosed the incident to
Gumphabai (PW 3) and thereafter, to her brother at 4 pm. The
prosecutrix then went to Shendola-Dhaskat alongwith her brother
and narrated the incident to her parents. The report was lodged
at 6 pm on the next day i.e. on 8.8.2004.
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8. The prosecution case has too many gray areas and it
would be absolutely unsafe to permit the conviction to rest on the
uncorroborated sole testimony of the prosecutrix. The learned
counsel for the accused Shri. Dahat is justified in contending that
the conduct of the prosecutrix is not at all natural. Apart from the
fact that the version of the prosecutrix as to what transpired on
7.8.2004 at 1.30 p.m. in the matrimonial house is suspect, that she
did not make any effort to establish contact with her husband or
mother in law and that she did not even after lodging the report
meet her husband or mother in law to narrate her grievance,
creates sufficient doubt about the version of the prosecutrix. The
explanation given for the delay in lodging the First Information
Report is not at all convincing. The defence has brought on record
in the cross-examination of PW 3 – Gumphabai that Kurha Police
Station is in between Jalka-jagtap and Shendola Dhaskat village.
The prosecutrix accompanied by her brother claims to have
proceeded from Jalka-jagtap to Shendola Dhaskat only to narrate
the incident to her parents. Concededly, the prosecutrix and her
brother did not visit the Kurha Police Station to lodge the report
although the Kurha Police Station is situated on Jalka-jagtap to
Shendola Dhaskat road. It is inexplicable as to why the report was
lodged only at 6 p.m. on 8.8.2004. It is true, as contended by Shri
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A.V. Palshikar, the learned APP that particularly in cases of sexual
assault or crime against women there can not be a cut and dried
formula to determine whether the delay in lodging the First
Information Report is fatal or otherwise. But then, in the factual
matrix, the delay in lodging the report does render the prosecution
version vulnerable.
9. The learned Sessions Judge has indeed viewed the
defence witnesses with instinctive suspicion and clearly the
learned Sessions Judge has committed the error, against which the
Hon’ble Apex Court has cautioned in Dudh Nath Pandey vs. State
of U.P, of viewing defence witnesses with instinctive disbelief and
suspicion. However, even de-hors the defence evidence, and
assuming arguendo that the learned Sessions Judge was right in
not relying on the defence evidence, I am not persuaded to hold
that the evidence of the prosecutrix is confidence inspiring.
10. It is trite law that the prosecution has to establish the
guilt of the accused beyond reasonable doubt. The liberty of the
accused can not be sacrificed at the alter of suspicion. The
evidence on record is grossly inadequate to bridge the gulf
between suspicion and proof.
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11. The judgment and order impugned is unsustainable and is
set aside. The accused is acquitted of offence punishable under
section 376(1) of the IPC.
12. The bail bond of the accused shall stand discharged. Fine
paid by the accused, if any, shall be refunded.
The appeal is allowed.
JUDGE
RS Belkhede
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