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Mukesh Shriram Khobragade vs The State Of Mah. Thr.P.S.O. … on 5 March, 2018

1 apeal358.03

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.358 OF 2003

Mukesh s/o Shriram Khobragade,
Aged about 27 years,
Occupation – Service Headmaster,
Bhagwantrao High School, Dechalipeth,
(permanent resident of Ambedkar Ward,
Kurkheda, Tahsil Kurkheda, District –
Gadchiroli) …. APPELLANT

VERSUS

The State of Maharashtra,
through its P.S.O., Zhinganoor, Tahsil-
Sironcha, District – Gadchiroli. …. RESPONDENT

__

Shri R.M. Daga, learned Counsel for the appellant,
Shri N.H. Joshi, learned Additional Public Prosecutor for the
respondent.
__

CORAM : ROHIT B. DEO, J.
DATED : 5 th
MARCH, 2018

ORAL JUDGMENT :

Challenge is to the judgment and order dated 22-5-2003

rendered by the learned Additional Sessions Judge, Gadchiroli in

Sessions Trial 77/1994, by and under which the appellant-accused is

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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.5,000/-.

2. Heard Shri R.M. Daga, learned Counsel for the accused

and Shri N.H. Joshi, learned Additional Public Prosecutor for the

respondent.

3. The genesis of the prosecution lies in the oral report dated

15-10-1993 lodged by P.W.1 Penta Kunbhi alleging that the accused

subjected his wife (P.W.2) to forcible sexually intercourse between

10-00 to 11-00 p.m. on 14-10-1993. On the basis of the said report

(Exhibit 7) and printed first information report (Exhibit 8) offence

punishable under Section 376 of the IPC was registered against the

accused. Investigation ensued and upon completion thereof charge-

sheet was submitted in the Court of Judicial Magistrate First Class,

Sironcha, who committed the proceeding to the Sessions Court. The

learned Sessions Judge framed charge (Exhibit 2). The accused

pleaded not guilty and claimed to be tried. The defence of the accused,

as is discernible from the trend and tenor of the cross-examination and

the answers given in response to questions put in the examination

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under Section 313 of the Criminal Procedure Code is of false

implication.

4. Shri R.M. Daga, learned Counsel for the accused would

submit that the prosecution version is highly improbable and indeed

incredible. The accused is alleged to have subjected the prosecutrix to

forcible sexual intercourse although her husband P.W.1 was sleeping

on a cot at a distance of one foot. Shri R.M. Daga, learned Counsel

would submit that the prosecution witnesses have admitted that the

report was lodged only because the accused threatened to lodge a

police report alleging that the accused was unnecessarily beaten by

P.W.1. The defence that while leaving the house (hutment) to answer

the nature’s call, accidentally the accused stepped on the person of the

prosecutrix, she shouted, P.W.1 awoke and inflicted two to three slaps

to the accused who threatened to lodge a police report and in

retaliation oral report (Exhibit 7) was lodged, is more than probablised

on the touchstone of probabilities, is the submission. Shri R.M. Daga,

learned Counsel invites my attention to answers the questions 76 and

79 in the statement under Section 313 of the Criminal Procedure Code,

which read thus :

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“Q.76. Why the witnesses are deposing against you ?

Ans. I awake my both colleagues from the sleep with intent

to go to urinal purposes. Rajayya was standing there. I was

going for urinal purposes. There was darkness. My leg fell

on leg of somebody else in the darkness. I heard the noise of

talking shouting of a lady in Telgu language. Then,

husband of Masi awake from the sleep. Her husband gave

me two slaps. Then, we came outside his house. I told to her

husband that why he beat me and what is my fault ? While

going for urinal, my leg fell on her leg. I told him that I am

going to Police Station to lodge report. Then, we three

persons went to Police Station.

Q.79 Do you want to say anything else ?

Ans. When we went to the police station, police raised the

guns as it is Naxalite Area. We lodged oral report in the

police station. One Bhaurao Police Constable attached to

that police station was my friend. On the next day at about

11-00 a.m. Masi, her husband and ¾ others came to the

police station. There was one Sarpanch who was her father-

in-law. That Sarpanch told that I lodged report against them,

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therefore, now they will lodge report against us. Then, they

lodged report in the police station. Then, I was arrested.”

5. Shri R.M. Daga, learned Counsel would further submit that

the failure of the prosecution to examine the investigating officer has

caused an obvious prejudice to the accused. The learned Sessions

Judge has held the failure of the accused to bring on record the report

lodged at the police station as an incriminating circumstance. Shri

R.M. Daga, learned Counsel would submit that firstly, in the teeth of

the admission by the witnesses that they lodged the report in view of

the report lodged by the accused, and but for the report lodged by the

accused the prosecution witnesses would not have reported the

incident, the failure to bring on record the contents of the report

lodged by the accused are of little significance. Secondly, if the contents

of the oral report are indeed of significance, as is observed by the

learned Sessions Judge, the accused are put to prejudice due to the

non-examination of the investigating officer, is the submission.

6. Scrutiny of the evidence would reveal that the submission

of Shri R.M. Daga, learned Counsel that the report (Exhibit 7) was

lodged by P.W.1, is lodged as a counter-blast, is not without substance.

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6 apeal358.03

P.W.1-Penta, who lodged the report, admits thus in the cross-

examination :

“Accused went to the police station saying that he is going to

lodge report about beating. It is true that I feel that police

will take action against me on the report of the accused,

therefore, in morning, I lodged report.”

7. In view of the admission reproduced supra, the evidence of

P.W.1 and P.W.2 must be tested with extreme caution. The version of

the prosecutrix is that her husband P.W.1 would not have lodged the

report, had the accused not lodged the report. The prosecutrix admits

in so many words that it was only because the accused threatened that

he would be lodging a report that the prosecutrix and her husband

lodged the oral report (Exhibit 7). Concededly, other than the evidence

of P.W.1 and P.W.2 the only incriminating circumstance according to

the learned Sessions Judge is an injury noticed on the penis of the

accused.

8. It would be apposite first to consider the evidence of the

prosecutrix (P.W.2). She states that the accused and his two associates

visited one Gudda Kulmethe, they had dinner at Gudda’s house, since

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proper sleeping arrangement was not available at the house of Gudda,

the accused and his two associates came to the house of the prosecutrix

to spend the night. The accused and his two associates slept on one cot

in one room, the husband slept on a cot in the other and the

prosecutrix slept on the ground in another room. At 12-00 p.m., the

accused came near the prosecutrix, caught hold of both hands and

pressed her mouth, removed her petticoat and subjected her to sexual

intercourse. The prosecutrix awoke, caught hold of the hair of the

accused and shouted. The accused got up from the person of the

prosecutrix, her husband awoke and gave two slaps to the accused.

The accused disclosed to her husband that the accused was committing

sexual intercourse with her. The prosecutrix states that since she was

menstruating, she was sure that the person committing the sexual

intercourse was not her husband and it was then that she caught hold

of the hair of the person and called her husband. She states that when

her husband awoke, she was holding the accused by the hair. She

states that it was after her husband awoke that the lamp was lit and it

was noticed that the person was committing the sexual intercourse was

accused. She states that after her husband beat the accused, he

(accused) went to the police station. The prosecutrix and P.W.1 went

to the police station in the morning and lodged the report.

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8 apeal358.03

In the cross-examination, P.W.2 states that she and her

husband were sleeping in the same room at a distance of five feet from

each other. She at later stage states that her husband (P.W.1) was

sleeping at a distance of 1 foot from her. She states in the cross-

examination that a person moved her saree upwards and penetrated his

penis in her vagina twice. It was after the two penetrations that she

awoke, is the deposition. She reiterates that when her husband awoke,

she had caught hold of the hair of the accused.

9. The admission extracted that it was only in view of the

accused lodging the report that she and her husband lodged the report,

is noted supra.

10. P.W.1, the husband of the prosecutrix, is the informant.

According to P.W.1, his house comprises two rooms, the accused and

his two associates slept on wooden cot and he slept on a separate

wooden cot. The prosecutrix slept on the ground in another room

besides the partition. P.W.1 states that the incident occurred at 11-00

p.m., since his wife shouted, he went near her and saw the accused

present near the prosecutrix. P.W.1 inflicted two to three slaps to the

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9 apeal358.03

accused, is the deposition. He states that P.W.2 disclosed that the

accused came near her, caught hold of her hands, legs and pressed her

mouth and committed sexual intercourse forcibly. P.W.1 states that the

accused and his two associates went to the police station.

The evidence of P.W.1 and the evidence of P.W.2 is not

consistent inasmuch as according to P.W.1, when he awoke and went

near P.W.2, the accused was present near P.W.2. P.W.1 does not

support the version of P.W.2 that she was holding the accused by hair

when her husband (P.W.1) came near her. In the cross-examination,

P.W.1 admits that the distance between the cot on which he was

sleeping and his wife (P.W.2) was one foot.

11. P.W.1 admits that since he felt that the police will take

action on the report of the accused, he lodged the report in the

morning. Concededly, the prosecution case substantially, if not

entirely, hinges on the evidence of P.W.1 and P.W.2. The forensic

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

further. The learned Sessions Judge has recorded a finding that the

injury noticed on the penis on the accused, in the absence of any

explanation, is suggestive of rape. The doctor, who examined the

accused was not examined as a witness, since the medical certificate

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(Exhibit 15) was admitted by the accused. Injury 3, which is referred

by the learned Sessions Judge as a strong piece of evidence, is

described thus :

“Scab over right side of penis in unstretched condition of

skin length with profuse behind glans in mid length of few

size having scab of blackish red colour and is hard.

Duration before 48 hours.

Healing period in normal course 6-7 days.”

12. Scab is a development during the wound healing

reconstruction face. The wound itself may be caused in several diverse

circumstances. The injury, ultimately would only serve as a

corroborative piece of evidence and if the evidence of P.W.2 prosecutrix

is not found by this Court to be implicitly reliable or if the version of

the prosecution is found to be incredible and unbelievable, as is

vehemently argued by Shri R.M. Daga the said injury would cease to be

of any significance, particularly since the duration of the injury is

opined to be before 48 hours. The accused was medically examined at

5-30 p.m. on 16-10-1993 within 41.30 hours of the alleged incident.

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11 apeal358.03

13. P.W.1 is concededly not a witness to the entire incident.

According to P.W.1, when he went near P.W.2 hearing her shouts, the

accused was standing near his wife (P.W.2). P.W.2 states in the cross-

examination that it was only after the second penetration of the penis

in her vagina that she awoke. She states that when she awoke, she

caught the hair of the accused and called her husband. The version of

P.W.2 is that the accused caught hold of her both hands, pressed her

mouth and removed her clothes. However, it is her categorical

assertion that it was only after the second penetration that she awoke.

Shri R.M. Daga, learned Counsel is justified in the submission that the

version of the prosecutrix is doubtful and indeed is rather unbelievable.

Firstly, that the accused, concededly the stranger to the family, would

have the temerity to rape a woman whose husband is sleeping a foot

away, is a version which must be tested with caution. That the

prosecutrix did not awake although her clothes were removed, mouth

was pressed and hands were pressed and she awoke only after the

second penetration of the penis in the vagina, is a version which

borders on unbelievable. The defence of the accused that he was not

oriented since it was dark and as he was not aware of the topography,

he stepped on the person of the prosecutrix, was beaten up and when

he and his two associates left to lodge the report at police station, the

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report (Exhibit 7) was lodged in retaliation, is, in my opinion,

probablised on the touchstone of preponderance of probabilities.

14. In my opinion, the prosecution has not proved the offence

beyond reasonable doubt. Suspicion even a grave suspicion cannot be

the basis of conviction. The accused is entitled to the benefit of the

doubt.

15. The judgment and order impugned is set aside. The

accused is acquitted of the offence punishable under Section 376 of the

IPC.

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

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

17. The appeal is allowed and disposed of.

JUDGE

adgokar

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