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Shri Ganpat Fakira Ghenawatt vs The State Of Mah.Thr.Pso Yavatmal on 17 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.16 OF 2006

Shri Ganpat s/o Fakira Ghenawatt,
Aged about 44 years,
Occupation – Agriculturist,
R/o Manusdhari, Tahsil – Ghatanji,
District – Yeotmal. …. APPELLANT

VERSUS

The State of Maharashtra,
through Police Station Officer,
Police Station Parwa, District –
Yeotmal. …. RESPONDENT

__

Shri Mir Nagman Ali, Advocate for the appellant,
Shri H.R. Dhumale, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 11-10-2017
DATE OF PRONOUNCING THE JUDGMENT : 17-01-2018

JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 16-12-2005 passed by the learned Additional Sessions Judge,

Pandharkawda (Kelapur) in Special Case 36/2002 (Old 17/1999), by

and under which the appellant (hereinafter referred to as the

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“accused”) is convicted for 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.1,000/-.

The accused is acquitted of offence punishable under Section 3(1)(xii)

of the Scheduled Castes and the Schedules Tribes (Prevention of

Atrocities) Act, 1989 (“Atrocities Act” for short).

2. Heard Shri Mir Nagman Ali, learned Advocate for the

appellant and Shri H.R. Dhumale, learned Additional Public Prosecutor

for the respondent/State.

3. The prosecution examined four witnesses to prove the

offence. P.W.1 is the prosecutrix who lodged the oral report dated

27-9-1999 (Exhibit 31) and printed first information report is Exhibit

32. Subhash Gedam, who is the brother-in-law of P.W.1, is examined

as P.W.2. P.W.3 Bharat Madavi, who is examined as eyewitness, did

not support the prosecution and P.W.4 Harish Baijal is the authorised

officer who investigated the offence.

4. Concededly, the edifice of the prosecution case is built on

the testimonies of P.W.1 and her brother-in-law P.W.2. The medical

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evidence on record does not take the case of the prosecution any

further. No injury is detected on the person of the prosecutrix. No

blood or semen is detected on the saree which the prosecutrix was

wearing. Neither semen nor spermatozoa are detected on the pubic

hair of the prosecutrix or the vaginal smear of the prosecutrix or the

pubic hair of the accused. The lungi seized from the accused was found

to be blood stained.

5. The oral report is lodged by the prosecutrix at 6-00 a.m.

on 27-9-1999. The gist of the report is that the prosecutrix is a married

woman having a four years old daughter. She returned from

agricultural field on 26-9-1999, she was suffering from fever and after

cooking meals at 8-00 to 8-30 p.m., she was proceeding to the house of

the sarpanch to collect anti malaria tablets. The accused met the

prosecutrix, asked her where she was going and when the prosecutrix

disclosed that she was going to the house of the sarpanch to collect

tablets, the accused told her that he had the tablets at his house and

asked her to come to his house and take the tablets. The prosecutrix

went to the house of the accused, the accused took her to the varandah

behind the house. The family members of the accused were sleeping

and the door was closed. The prosecutrix asked the accused as to why

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she had been brought to the varandah on the backside of the house and

was asked to wait. The prosecutrix waited for the accused to bring the

tablets. However, the accused caught hold of her, made her lie on the

ground and then raped her. The prosecutrix shouted, on hearing her

shouts, P.W.2 arrived at the scene. The people residing in the nearby

houses gathered, P.W.2 rescued the prosecutrix. On the basis of the

said report, offence under Section 376 of the IPC was registered.

6. The evidence of the prosecutrix is that the accused

suddenly caught hold of her body, unwrapped the saree, caused her lie

down and sexually ravished her. She shouted “lksMk] lksMk” (leave,

leave). P.W.2 rushed at the scene, others gathered. P.W.2 took the

prosecutrix to her house. P.W.2 returned to her house and took her to

police station Parwa.

In the cross-examination, she denies the suggestion that

the villagers were having doubts as regards relationship between the

complainant and the accused. P.W.1 does not dispute that she was

working in the field of the accused since four to five years. She is

suggested that there was a quarrel between the accused and P.W.2 at

the house of one Utane. The response of the prosecutrix was that she

did not know about such quarrel at the house of Utane or that the

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accused had beaten P.W.2 Subhash at the house of Utane. P.W.1

admits that if there is any loud talk in the house of the accused, the talk

can be easily heard by others. The suggestion was given in the context

of the earlier admission that Laxman Dipewar, Namdeo Pendhare,

Zibal and Samba Meshram have their houses near the house of the

accused and the houses are adjoining each other. P.W.1 states that the

entry to the courtyard of the house of the accused is from the road.

The prosecutrix admits that the accused sustained bleeding head injury

because he was beaten by P.W.2 Subhash. She volunteers that the

incident of beating occurred after the incident with her. She claims

ignorance in response to a suggestion that the accused had gone to

police station Parwa for lodging report against P.W.2. P.W.1, however,

admits that it was P.W.2 who told her to lodge the report. She, at a

later stage, admits that when she went to police station to lodge the

report, the accused was also present in the police station. She admits

that all the villagers had gathered at the house of the accused. She

admits that when the villagers had gathered, the accused had sustained

bleeding injury. She further admits that when people had gathered, a

scuffle was going on between the accused and P.W.2 Subhash. She

denied the suggestion that she attempted to separate the two, failed to

do so and returned to her house. The prosecutrix claims ignorance as

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to whether there is any dispute between the accused and P.W.2

Subhash concerning the agricultural field. The statement that P.W.2

took and left her at her house, is an omission. Few other omissions are

brought on record including the words “lksMk] lksMk” (leave, leave). Be it

noted, that since the scribe who recorded the statement under Section

161 of the Criminal Procedure Code was not examined, the omissions

could not be proved.

7. Subhash Gedam, brother-in-law of the prosecutrix is

examined as P.W.2. His version is that when he was proceeding to his

house from a panthela, he heard the weeping sound of a woman from

the rear of the house of the accused, he wait there and saw the accused

committing sexual intercourse with the prosecutrix. The accused was

angry and rushed on his person. The accused abused him ” xkasMkM;k

ekÖ;k ?kjh rq d’kkyk vkyk”. P.W.2 took his sister-in-law to his house and

on the way he disclosed that the accused took her to his house under

the pretext of giving tablets, took her to the rear of the house, caused

her lie down and committed sexual intercourse. P.W.2 asked his sister-

in-law to go to the house. People gathered. P.W.2 was taken to the

police patil Mahadeo Bansod by Bharat Madavi and Linga Meshram.

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The sarpanch Shriram Pendhare had also came to the house of the

police patil. The accused was summoned who did not tell anything.

Thereafter, P.W.3, the prosecutrix, police patil, sarpanch and one

Bhagat went to Chikhalwardha in a bullock-cart and thereafter police

station Parwa in a truck and the prosecutrix lodged the report.

In the cross-examination, it is brought out that the

statement that he saw the accused committing sexual intercourse with

the prosecutrix, is an omission. He denied the suggestion that there

was discussion in the village that there was an illicit relationship

between the accused and the prosecutrix. He also denied the

suggestion that he was suspicious about the relationship. He denies

that there was a quarrel between him and the accused at the house of

one Utane a day before the incident. He denies the suggestion that on

the day of the incident, he caused injury to the head of the accused

with an iron rod. He disclaims any knowledge of any report lodged by

the accused in the night of the incident. He admits that the panthela is

between the house of the accused and his house.

8. Bharat Madavi (P.W.3), who is examined as an

independent eyewitness, did not support the prosecution. The learned

A.P.P. was permitted to cross-examine P.W.3. However, in the cross-

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examination, nothing is elicited to assist the prosecution. However, in

the examination-in-chief, P.W.3 states that between 7-00 p.m. to 7-30

p.m. a quarrel was going on between the accused and P.W.2 in the

courtyard of the house of the accused and number of villagers were

present.

9. The only other witness examined is Harish Baijal (P.W.4)

who deposes that he took over the investigation on 30-9-1999 and

recorded the statements of the witnesses.

10. It is strenuously urged by the learned Additional Public

Prosecutor that there is no reason to disbelieve the version of the

prosecutrix. Her version is amply corroborated by P.W.2, is the

submission. Conviction can rest even on uncorroborated testimony of

the prosecutrix, is the submission. It is well settled, that if the

testimony of the prosecutrix is found reliable, credit worthy and

confidence inspiring no further corroboration need be sought.

However, for reasons spelt out infra, I am not persuaded to hold that

the prosecution has proved the offence beyond reasonable doubt.

11. I have already observed that the case of the prosecution is

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entirely founded on the evidence of P.W.1 prosecutrix and her brother-

in-law P.W.2. The varandah where the prosecutrix was subjected to

sexual intercourse is concededly situated at the rear side of the house

of the accused. The prosecutrix states in the oral report that when the

accused took her to the varandah, the family members of the accused

were asleep and the door was closed. She admits that even a loud talk

in the house of the accused is audible to the neighbours since the

houses adjoin each other. P.W.1 states that the entry to the courtyard

of the house is from the road and then one enters the house of the

accused. P.W.1 admits that the accused sustained bleeding head injury

since he was assaulted by her brother-in-law P.W.2 Subhash. It is true

that P.W.1 volunteers that the assault took place after the incident of

ravishment. However, she admits that when she went to the police

station to lodge the report, the accused was also present in the police

station. This probablises the defence that the accused was in the police

station to lodge report the against P.W.2 Subhash. She admits that

many persons were present when a scuffle was on going between the

accused and her brother-in-law Subhash. The words “lksMk] lksMk”

(leave, leave) is an omission. If the evidence of P.W.2 Subhash is

considered, there is glaring variance between his evidence and that of

P.W.1. Subhash has outrightly rejected the suggestion that there was a

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physical scuffle with the accused on the day of the occurrence of the

incident and that P.W.2 Subhash caused injury to the accused due to

iron rod. Be it noted, that the accused was medically examined and

the head injury is noticed and recorded in the medical certificate

(Exhibit 19). The statement that P.W.2 Subhash saw the accused

committing sexual intercourse with the prosecutrix, is an omission.

While P.W.1 candidly admits that P.W.2 Subhash did assault the

accused and caused a head injury, P.W.2 Subhash outrightly denied

having caused injury to the accused.

12. In the teeth of the version of P.W.1 and P.W.2 that number

of villagers had gathered at the scene of occurrence, the failure of the

prosecution to examine independent witnesses, other than P.W.3, who

did not support the prosecution, assumes significance. Equally

significant is the failure of the prosecution to examine Linga Meshram

or the police patil Mahadeo Bansod or the sarpanch Shriram Pendhare

to unfold the prosecution story. It is the deposition of P.W.2 Subhash

that he went to the police patil with Bharat Madavi and Linga Meshram

and the sarpanch Pendhare also came to the house of the police patil.

Subhash claimed to have narrated the incident to the police patil and

states that the accused was summoned to the residence of the police

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patil. Ordinarily, it is the discretion of the prosecution whom to

examine. Ultimately, evidence must be weighed and not counted,

which is the jurisprudential philosophy underlying Section 134 of the

Indian Evidence Act. But then, failure to examine witnesses who could

have thrown significant light on the prosecution case assumes

importance particularly when the evidence on record, as in the present

case, is not clinching. The panthela, is situated between the house of

the accused and the house of P.W.2 Subhash, is the admission. The

accused was proceeding towards his house, which would mean he was

proceeding in the opposite direction vis-a-vis the house of the accused.

The prosecutrix admits that the houses of the neighbours of the

accused adjoin each other and even a loud voice is audible to others.

In the teeth of the said evidence, the version of P.W.2 Subhash that he

heard weeping sound of a woman and went to the rear of the house of

the accused is extremely doubtful. I have already noted that the words

“lksMk] lksMk” (leave, leave) is an omission. The prosecutrix claims to

have shouted, when she was subjected to sexual intercourse by the

accused. This is not consistent with the version of P.W.2 that he heard

weeping sound. That apart, that the weeping sound was heard only by

P.W.2 Subhash who happened to be the only person near the scene of

occurrence is again improbable. The fact that there is absolutely no

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evidence of any injury whatsoever nor is semen or spermatozoa

detected either in the sample of the pubic hair or vaginal smear or the

saree worn by the prosecutrix, may not be per se decisive, but then,

absence of any injury whatsoever and lack of other medical or scientific

evidence must be given due weight when the Court is compelled to

seek corroboration since the ocular evidence is not clinching and

confidence inspiring.

13. In the light of the discussion supra, it would be extremely

unsafe to hold that the prosecution has proved the offence under

Section 376 of the IPC beyond reasonable doubt. It is trite law, that

benefit of any doubt must necessarily go in favour of the accused. The

prosecution case has to many gray areas and I am inclined to hold that

the benefit of the doubt must be given to the accused.

14. The judgment and order impugned is set aside.

15. The accused is acquitted of the offence punishable under

Section 376 of the IPC.

16. The bail bond of the accused shall stand discharged and

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

17. The appeal is allowed.

JUDGE
adgokar

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