(201)APEALNo.8112013(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.811 OF 2013
Mr.Santosh Dinanath Gupta
Aged 24 years, Occ. Autorickshaw driver
Lovly Mutton Shop, Near HiraMoti Building,
Gazdharband, Santacruz (West), Mumbai.
(At present Thane Jail) … Appellant
V/s.
The State of Maharashtra
(Through Goregaon Police Station
Vide in C.R.No.201/2011) … Respondent
…..
Ms.Nasreen S.K.Ayhubi, Appointed Advocate for the Appellant.
Ms.Anamika Malhotra, APP for the Respondent/State.
….
CORAM : A.M.BADAR J.
DATED : 16th APRIL 2018.
ORAL JUDGMENT :
1 The appellant/accused by this appeal, is challenging
the Judgment and Order dated 22/05/2013 passed by the learned
Additional Sessions Judge, Mumbai in Sessions Case No.201 of
2011 thereby convicting the appellant/accused of offences
punishable under Sections 376, 366A, 342 and 506 Part II of the
Indian Penal Code. For the offence punishable under Sections 376
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of the IPC, the appellant/accused is sentenced to suffer rigorous
imprisonment for ten years apart from imposition of fine of
Rs.10,000/- and default sentence of rigorous imprisonment for
two years. For the offence punishable under Section 366A of the
IPC, he has been sentenced to suffer rigorous imprisonment for
seven years apart from imposition of fine of Rs.5,000/- and default
sentence of rigorous imprisonment for one year. For the offence
punishable under Section 342 of the IPC, the appellant/accused is
sentenced to suffer rigorous imprisonment for six months. For the
offence punishable under Section 506 of the IPC, he has been
sentenced to suffer rigorous imprisonment for two years apart
from imposition of fine of Rs.3,000/- and default sentence of
rigorous imprisonment for two months. The learned trial Court
has directed all substantive sentences to run concurrently by the
impugned Judgment and Order.
2 Facts in nutshell leading to the prosecution of the
appellant/accused can be summarized thus :
(a) The prosecutrix/P.W.No.1 was residing at Mutton Galli in
Gazdharband area Santacruz (West), Mumbai. She was
residing along with her mother P.W.No.3 Jayashree, her
father Praful and her two sisters and one brother. The
appellant/accused Santosh is also resident of the same locality
and he used to drive a auto rickshaw for earning his
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livelihood. Absconding accused Ranu is cousin of the
appellant/accused and Mrs.Annu is wife of Ranu. The
appellant/accused was on visiting terms with the prosecuting
party. Members of the prosecuting party used to use services
of the appellant/accused for reaching them to the house of
their relatives by auto rickshaw of the appellant/accused.
(b) In April 2011, as there was holidays to the schools, the
prosecutrix/P.W.No.1 went to reside with her maternal
grandmother P.W.No.5 Sonibai Solanki at Jawaharnagar,
Goregaon (West), Mumbai. On 05/06/2011, while staying
with her maternal grandmother P.W.No.5 Sonibai Solanki,
the prosecutrix/P.W.No.1 had gone to purchase some articles
at Jawaharnagar. At that time, the appellant/accused came
and threatened the prosecutrix/P.W.No.1 to accompany him
by stating that her mother had obtained hand loan of
Rs.15000/- and if she accompany him, he will waive recovery
of that hand loan or else the prosecutrix/P.W.No.1 will face
dire consequences. Under this threat of the appellant/
accused, the prosecutrix/P.W.No.1 sat in the auto rickshaw of
the appellant/accused which was also occupied by Ranu
Gupta and his wife Mrs.Annu. The rickshaw was then taken to
Mutton Galli, Gazdharband, where parental house of the
prosecutrix/P.W.No.1 was situated. The prosecutrix/
P.W.No.1 was then taken to the house of absconding accused
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Ranu Gupta. She refused to have dinner provided by the
appellant/accused. They all slept in that house.
(c) On the next day i.e. on 06/06/2011, the prosecutrix/
P.W.No.1 was assaulted by the appellant/accused as well as
the absconding accused and then she was locked inside the
house. The appellant/accused and others left that room. At
3.00 p.m. of 06/06/2011, the appellant/accused returned to
the room and offered meal to the prosecutrix/P.W.No.1. She
refused to eat. Thereafter, the appellant/accused committed
rape on her and left the room by again locking the
prosecutrix/P.W.No.1 inside that room. He again returned at
9.30 p.m. carrying the packed dinner. However, the
prosecutrix/P.W.No.1 refused to eat. Hence, the appellant/
accused again locked the room and went away.
(d) On 07/06/2011, at 7.00 a.m., the appellant/accused again
returned to the room and offered breakfast. The prosecutrix/
P.W.No.1 again refused to eat. She was thereafter again
locked inside the house. The appellant/accused then returned
to the room at about 2.30 p.m. and committed rape on the
prosecutrix/P.W.No.1. Locking the prosecutrix/P.W.No.1
inside the room, the appellant/accused again left the room.
(e) On 08/06/2011, at about 8.00 a.m. in the morning, the
appellant/accused again came to the room. The prosecutrix/
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P.W.No.1 requested him to take her to the Goregaon area of
Mumbai for having lunch. The appellant/accused, therefore,
took her by the auto rickshaw towards Goregaon and at about
5.10 p.m., when auto rickshaw came near the Goregaon
Railway station, the prosecutrix/P.W.No.1 alighted from that
auto rickshaw and by taking another auto rickshaw went to
Police Station, Goregaon and contacted Mrs.Pawan Pethe,
Assistant Police Inspector and lodged the FIR (Exhibit 9),
which has resulted in registration of Crime No.201 of 2011
for the offences punishable under Sections 366A, 376, 341,
323, 504, 506(II) read with Section 34 of the IPC against the
appellant/accused as well as co-accused.
(f) During the course of investigation, the prosecution has seized
clothes of the prosecutrix/P.W.No.1 and she was referred to
the Police Hospital, Nagpada, where P.W.No.7 Dr.Pratap
Anand had medically examined her on 09/06/2011. She was
also examined by P.W.No.8 Yusuf Abdulla Matcheswalla. The
appellant/accused came to be arrested and on the basis of his
disclosure statement, a bed-sheet came to be recovered from
his auto rickshaw in presence of P.W.No.4 Ashok Shirke,
panch witness. The spot came to be inspected in presence of
P.W.No.2 Ganesh Maingade, panch witness and spot
panchanama (Exhibit 13) came to be recorded on
09/06/2011. Certificate of date of birth of the prosecutrix/
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P.W.No.1 came to be collected and on completion of
investigation, the appellant/accused came to be charge-
sheeted.
(g) The learned trial Court framed charge for the offences
punishable under Sections 366-A, 376, 342, 323, 504, 506(II)
read with Section 34 of the IPC against the appellant/accused.
He pleaded not guilty and claimed trial.
(h) In order to bring home the guilt to the appellant/accused, the
prosecution has examined in all 11 witnesses. The
prosecutrix came to be examined as P.W.No.1, whereas the
report lodged by her is at Exhibit 9. Panch witness Ganesh
Maingade is examined as P.W.No.2, whereas the spot
panchanama is at Exhibit 13. Jayashree – mother of the
prosecutrix examined as P.W.No.3. Exhibit 15 is the
certificate of date of birth of the prosecutrix/P.W.No.1.
P.W.No.4 Ashok Shirke is examined to prove Memorandum
Statement and recovery panchanama (Exhibits 17 and 18)
showing recovery of a bed sheet of the appellant/accused.
Sonibai Solanki, maternal grand-mother of the
prosecutrix/P.W.No.1 is examined as P.W.No.5. Panch
witness Geeta Borkar is examined as P.W.No.6, whereas
Exhibit 21 is the seizure panchanama of clothes of the
prosecutrix. Dr.Pratap Anand is examined as P.W.No.7
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whereas Yusuf Abdulla Matcheswalla is examined as
P.W.No.8. Mrs.Pawan Pethe is examined as P.W.No.9.
Investigating Officer, Deepak Gujar, Police Inspector of
Goregaon Police Station is examined as P.W.No.10. Asha
Adwani, Sub Registrar under Registration of Births and
Deaths Act, 1969 is examined as P.W.No.11. Exhibit 36 is the
extract of the Birth Register.
(i) The defence of the appellant/accused was that of total denial.
He, however, did not enter into defence. According to the
appellant/accused, he had given hand loan of Rs.15,000/- to
the mother of the prosecutrix/P.W.No.1 and she has falsely
implicated him in the instant case.
(j) Upon hearing the parties, by the impugned Judgment and
Order, the learned trial Court was pleased to convict the
appellant/accused and sentenced him as indicated in the
opening paragraph of this Judgment.
3 I heard Ms.Ayubi, the learned Advocate from the Panel
of Legal Aid of this Court appointed to represent the appellant/
accused at the cost of the State. She vehemently argued that
evidence of the prosecutrix/P.W.No.1 is totally uncorroborated
and the same is suffering from severe infirmities and lacunas. The
prosecutrix/P.W.No.1 is not the witness of the truth and her
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evidence is inherently improbable. The learned Advocate drew my
attention to the cross-examination of the prosecutrix/P.W.No.1 to
point out that she was repeatedly leaving her house and
wandering in the locality and thereafter approaching the Police
Station to lodge report. The learned Advocate further argued that
undisputedly mother of the prosecutrix had taken hand loan of
Rs.15,000/- from the appellant/accused and for no reason the
appellant/accused is falsely implicated in the crime in question.
4 The learned Additional Public Prosecutor supported
the impugned Judgment and Order by contending that the
prosecutrix, who was a minor girl aged about 14 to 15 years came
to be kidnapped from her lawful guardianship by the
appellant/accused and, thereafter, she was subjected to rape by
the appellant/accused. She was threatened and intimidated by the
appellant/accused and evidence of the prosecutrix is gaining
corroboration from the forensic evidence adduced by the
prosecution.
5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including depositions of
witnesses and documentary evidence adduced by the prosecution.
6 Principles of appreciation of evidence in rape cases as
well as cases involving sexual offences are elaborated by the
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Honourable Apex Court in the matter of State of Punjab vs.
Gurmeet Singh1 and it is apposite to reproduce the relevant
portion of that Judgment, which reads thus :
“It is an irony that while we are celebrating women’s
rights in all spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of human
dignity of the victims of sex crimes. We must remember
that a rapist not only violates the victim’s privacy and
personal integrity, but inevitably causes serious
psychological as well as physical harm in the process.
Rape is not merely a physical assault – it is often
destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The
Courts, therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must deal
with such cases with utmost sensitivity. The Courts should
examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which
are not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
particulars. If for some reason the Court finds it difficult
to place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
1 1996 Cr.L.J. 172.
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accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.”
7 It is now well settled that a finding of guilt in cases
of rape can be based on uncorroborated evidence of
prosecutrix because very nature of such offence makes it
difficult to get direct corroborating evidence. In such cases,
minor discrepancies and contradictions in the evidence of the
prosecutrix are required to be ignored and her evidence is
required to be considered by keeping in mind the broader
probabilities of the prosecution case. Evidence of the victim of
the rape case is used to be normally accepted even if it is
uncorroborated unless material on record requires drawing of
an inference that the entire incident was improbable or
imaginary. Even if there is material to infer consent of the
victim, the act will still be a rape if the girl is under sixteen
years of age. Similarly, absence of injuries on private parts of
such victim will not by itself falsify the case of rape. Keeping
in mind these aspects, let us examine the evidence of the
prosecutrix.
8 According to the prosecution case, the
prosecutrix/P.W.No.1 came to be kidnapped by the
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appellant/accused with the aid of his cousin i.e. absconding
accused Ranu Gupta on 05/06/2011 from Jawaharnagar,
Goregaon with an intention that she will be forced to illicit
intercourse with other person and subsequently, she was
subjected to rape by the appellant/accused by wrongfully
confining her in the room of his cousin i.e. absconding accused
Ranu Gupta by criminally intimidating her. According to the
prosecution case, as reflected from the FIR, the
prosecutrix/P.W.No.1 was kidnapped on 05/06/2011 and was
wrongfully confined in the room of absconding accused Ranu
Gupta up to 08/06/2011, whereat she was raped by the
appellant/accused. Considering this nature of the prosecution
case, evidence of the prosecutrix/P.W.No.1 has prime
importance to infer guilt of the appellant/accused. It is
worthwhile to mention her that there is no witness to the fact
of kidnapping of the prosecutrix/P.W.No.1 by the
appellant/accused and the co-accused, so also there is no
witness to the fact that the fact of confining the
prosecutrix/P.W.No.1 in the room of absconding accused
Ranu Gupta located at Gazdharband, Santacruz (West).
Similarly, there is no eye-witness to the fact of the
appellant/accused taking the prosecutrix/P.W.No.1 out of the
said room on 08/06/2011. In other words, there is no direct
corroborating evidence in the case in hand. Let us, therefore,
examine evidence of the prosecutrix/P.W.No.1 carefully in
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order to ascertain whether she is truthful witness and whether
her evidence can be relied in order to base conviction.
9 Evidence of the prosecutrix/P.W.No.1, so also that
of her mother P.W.No.3 Jayashree shows that the prosecutrix
along with her family comprising of her mother, father, two
sisters and one brother used to reside at Gazdharband area of
Santacruz (West) and the appellant/accused, who is rickshaw
driver by occupation used to reside in the same area.
Evidence of both these witnesses shows that P.W.No.3
Jayashree had taken hand loan of Rs.15,000/- from the
appellant/accused and she used to refund Rs.750/- per month
to the appellant/accused. It is seen from the evidence of the
prosecutrix/P.W.No.1 that the appellant/accused used to visit
her house for watching the programmes on the television set
and they used to travel in the auto rickshaw of the
appellant/accused. Relations of the members of the
prosecuting party with the appellant/accused were cordial and
this fact is stated in her cross-examination by P.W.No.9
Mrs.Pawan Pethe, Assistant Police Inspector of the Goregaon
Police Station.
10 With this material on record let us further examine
what the prosecutrix is stating about the incident, As seen
from the evidence of the prosecutrix/P.W.No.1 and that of her
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mother P.W.No.3 Jayashree, in the month of April 2011, the
prosecutrix/P.W.No.1 went to reside with her grand-mother
P.W.No.5 Sonibai Solanki at Jawaharnagar, Goregaon (West),
Mumbai. On 05/06/2011, as stated by the the prosecutrix/
P.W.No.1 as well as her grand-mother P.W.No.5 Sonibai
Solanki, the prosecutrix/P.W.No.1 went to purchase some
eatables. As per version of the prosecutrix/P.W.No.1 at about
1.30 p.m. of that day when she had been to purchase the curd,
the appellant/accused came and told her that if she
accompanies him, he will not demand refund of Rs.15,000/-
borrowed by her mother. Then brother and sister-in-law of
the appellant/accused caught hold of her and made her to sit
in the rickshaw by which she was taken to the house of the
brother of the appellant/accused at Santacruz. Evidence of
the prosecutrix/P.W.No.1 shows that from 05/06/2011, she
was detained in the room of brother of the appellant/accused.
As per her version, on 05/06/2011, she refused to have dinner
and slept in that room where the appellant/accused,
absconding accused Ranu Gupta and his wife slept. Then on
06/06/2011, she was offered breakfast by the appellant/
accused but she refused and then the appellant/accused left
the room by locking her inside the room. The prosecutrix/
P.W.No.1 deposed that in the evening, the appellant/accused
returned to the room and offered dinner to her to which she
refused. Then the appellant/accused committed rape on her
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and left the room by locking the same from inside. She
claimed to have became unconscious thereafter. As per her
version, she regain consciousness in the morning hours of
07/06/2011. She deposed that she found the appellant/
accused as well as the absconding accused Ranu Gupta
present in the room at that time. She was offered breakfast by
the appellant/accused, but she refused to eat it. Then, she
was beaten and the appellant/accused left her in the room by
locking that room. The prosecutrix/P.W.No.1 further stated
that then four to five hours thereafter, the appellant/accused
returned to the room and offered her dinner. She refused to
eat. As per version of the prosecutrix/P.W.No.1, at about 8.00
a.m., the appellant/accused came in the room. Thereafter, he
forced the the prosecutrix/P.W.No.1 to sit in his auto
rickshaw. She was taken in the auto rickshaw, but on the way
she ran away at a signal and by taking another auto rickshaw
she went to the Police Station, Goregaon and lodged report
regarding the incident. She claims to have stayed in the Police
Station in that night and on the next day she was subjected to
medical examination.
11 This is all which the prosecutrix has stated in her
chief-examination and at the first blush the incident appears
to be a serious incident of kidnapping a minor and subjecting
the minor to rape by confining her in the room for three days.
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However, let us test the veracity of version of this witness
from the material brought on record from her cross-
examination.
12 Cross-examination of the prosecutrix/P.W.No.1
reveals that her missing from her parental house was a routine
phenomenon. Her cross-examination reveals that prior to the
incident in question she went missing from her house for
seven days. She has also stated in her cross-examination that
from 12/04/2012 to 18/04/2012 she went missing from the
house and was wandering in the locality and was staying near
the house. As per her version in the cross-examination she
again went missing for two days from her house and went to
Jawaharnagar. The prosecutrix/P.W.No.1 has stated in her
cross-examination that after the incident in question she went
missing for seven days and was wandering in the locality
without meeting anybody. In cross-examination she claims
that when she went to the Police Station for lodging report of
this incident, the constable went to her house as the constable
was knowing her house. The reason for this knowledge of the
constable is also stated by the prosecutrix. She stated in the
cross-examination that two-three months from the incident in
question, she went missing and thereafter she herself went to
the Police Station for lodging the report and that is how the
police constable was knowing her house. This material
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elicited from the cross-examination of prosecutrix, who was
just fourteen years and few days old goes to show that the
prosecutrix used to leave her house frequently and thereafter
used to wander in the locality for few days. Then she used to
go to the Police Station where she claims to have lodged
reports of such incidents also.
13 Now, let us put on record the situation prevalent
on the scene of occurrence where, according to the
prosecution, she was kept confined by the appellant/accused
after kidnapping her on 05/06/2011. Though in the chief-
examination, the prosecutrix/P.W.No.1 stated that she was
kidnapped at about 1.00 to 1.30 p.m. of 05/06/2011 by the
appellant/accused with the aid of the absconding accused, in
cross-examination, she stated that she was not taken
immediately to the room where she was confined. She stated
that for about four to five hours, she was travelling in the auto
rickshaw in the company of accused and then came to
Kasdarban, Santacruz at about 2.00 to 2.30 a.m. of
06/06/2011 and then slept in the said room. The location of
the room where she was allegedly confined by the
appellant/accused is also stated by the prosecutrix in her
cross-examination. That room, as per statement of the
prosecutrix/P.W.No.1 in her cross-examination, was just 15 to
20 houses away from her parental house. It was a slum area
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where 500 to 1000 people used to reside in small rooms. The
prosecutrix/P.W.No.1 has stated that the room in which she
was kept was a small room having rooms abutting to it on
both sides. She further stated that there were rooms on both
sides of that room where she was kept and the passage in
front of that room used to be inhabitated by women and
children round the clock. The prosecutrix/P.W.No.1 has
admitted in her cross-examination that she was acquainted
with the neighbourers residing in the vicinity of that room.
The prosecutrix/P.W.No.1 has stated that during her stay for
three days in that room she has never attempted to knock the
door of that room despite the fact that the person residing in
the neighbouring rooms were acquainted with her and even
her parental house was located nearby to that room.
14 In cross-examination, the prosecutrix has stated
that right from 05/06/2011 to 08/06/2011, she had not eaten
any food nor had answered to nature’s call. She stated in
cross-examination that there was no toilet inside the room
where she was kept and the toilet for the residents was
located outside the room.
15 With this material elicited from cross-examination
of the prosecutrix/P.W.No.1, it becomes clear that the
prosecutrix/P.W.No.1 was having tonnes of opportunities to
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get herself rescued from the so-called clutches of the
appellant/accused. Evidence of the prosecutrix/P.W.No.1
shows that the appellant/accused used to remain present in
that room for a very little time and otherwise the prosecutrix
used to be alone in that locked room. She had an opportunity
to raise hue and cry, to knock or thump the door to attract the
attention of neighborers, who were known to her. Her own
house was located near to that room. Still she had chosen not
to protest or to make any attempt to get herself freed during
that period of days. Her evidence shows that the
appellant/accused was well acquainted with her as well as her
family. She was not under threats of the appellant/accused
nor the appellant/accused used to remain present in the
vicinity of that room. She could have very well got attention
of women and children who used to remain present in the
passage in front of the room which was located in the thickly
populated locality.
16 The prosecutrix/P.W.No.1 wants this Court to
believe that she had not eaten anything right from 1.00 to
1.30 p.m of 05/06/2011 till 08/06/2011 and was not required
to attend nature’s call for this long period of time. This
evidence on the face of it is meaningless and absurd. The
same is also inherently improbable in the wake of the fact that
the prosecutrix/P.W.No.1 was having habit of going missing
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from her house frequently and then after wandering in the
locality going to the police station to lodge report of her own
conduct. It is improbable that a human being will not require
to go to answer nature’s call for a period of three days in
continuity. All these facts are making the evidence of the
prosecutrix/P.W.No.1 highly doubtful and unbelievable. The
same does not appear to be reflecting normal human conduct.
17 Even the situation prevalent at the spot of the
incident coming on record from the spot panchanama (Exhibit
13) proved by P.W.No.2 Ganesh Maingade, panch witness also
makes evidence of the prosecutrix/P.W.No.1 doubtful.
Evidence of this witness shows that the room where the
prosecutrix/P.W.No.1 was confined was a very small room of
6 x 10 feet located in the slum area. Similar is the situation as
reflected in spot panchanama (Exhibit 13). This makes it clear
that the prosecutrix was having ample opportunity to seek
help from the nearest neighbourers in the vicinity, had she
been confined in the room for subjecting herself to rape by the
appellant/accused. Even cross-examination of P.W.No.2
Ganesh Maingade, panch witness makes it clear that he is
friend of the prosecutrix/P.W.No.1, who was in habit of going
missing repeatedly. P.W.No.2 Ganesh Maingade, panch
witness had made it clear in his cross-examination that he
used to take leave for helping the family members of the
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(201)APEALNo.8112013(J)
prosecutrix/P.W.No.1 for tracing her out whenever the
prosecutrix/P.W.No.1 used to went missing. As per version of
this witness, to his knowledge, the prosecutrix/P.W.No.1 went
missing at least for three to four occasions when he helped her
family members to trace her out.
18 Evidence of P.W.No.3 Jayashree, who is mother of
the prosecutrix/P.W.No.1 goes to show that when the
prosecutrix went missing prior to the incident in question, the
appellant/accused had shown desire to marry her. This
witness has stated that she had taken hand loan from the
appellant/accused amounting to Rs.15000/-. As per version
of this witness, her daughter was knowing the transaction of
hand loan.
19 Thus, it is clear from the evidence on record that
the prosecutrix/P.W.No.1 used to went missing from her
house repeatedly and her own evidence goes to show that she
used to approach the police station thereafter for lodging
complaint.
20 The prosecution could not get any witness to
fortify its case that the prosecutrix/P.W.No.1 was seen to be
kidnapped by the appellant/accused and was forcibly kept in
the room for confining her for the purpose of raping her. The
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prosecution could not get any witness to show that after
keeping the prosecutrix inside the small room for three days,
she was taken out by the appellant/accused from the thickly
populated locality and then travelled in the auto rickshaw
driven by the appellant/accused. The locality from where the
prosecutrix was allegedly taken by the appellant/accused as
well as the locality where she was kept were the thickly
populous localities of Mumbai. The prosecutrix/P.W.No.1 did
not claim to have raised alarm through all these happenings.
All these factors make her version regarding taking by the
appellant/accused and subjecting her to rape doubtful.
21 P.W.No.7 Dr.Pratap Anand had medically
examined the prosecutrix/P.W.No.1 soon after the incident.
Upon medical examination of the prosecutrix/P.W.No.1 on
09/06/2011, this witness had noted old healed tear of hymen,
but did not notice any other injuries on the person of the
prosecutrix/P.W.No.1. Evidence of this witness shows that the
tear was more than a week’s old. Thus, the tearing of hymen
of the prosecutrix/P.W.No.1 is not attributable to the incident
in question as, according to the prosecutrix, she was raped by
the appellant/accused on 06/06/2011 and 07/06/2011. This
medical evidence is also not supporting and corroborating the
case of the prosecution.
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22 P.W.No.6 Geeta Borkar is a panch witness to the
seizure of clothes of the prosecutrix/P.W.No.1. She deposed
that on 09/06/2011, clothes of the prosecutrix/P.W.No.1 were
lying on the table and in her presence police seized those
clothes. P.W.No.9 Mrs.Pawan Pethe, Assistant Police Inspector
deposed that on 09/06/2011, she seized clothes of the
prosecutrix/P.W.No.1 vide seizure panchanama (Exhibit 24).
Both these witnesses have not stated about applying lac/wax
seal on the packets in which those seized clothes were kept.
Even seizure panchanama is not reflecting sealing the packets
containing clothes by applying the lac/wax seal There is no
connecting evidence to show that the clothes were kept in
sealed condition till they were dispatched to the Chemical
Analyzer. In this view of the matter, no overbearing
importance can be given to the fact that the Chemical Analysis
report (Exhibit 11) shows presence of semen on jeans pant of
the victim. Similarly, finding of blood of ‘O’ group on knicker
of the victim is also of no consequence in the wake of Medical
Certificate (Exhibit 23), which shows that she has already
attained menarchy. Similar is the case in respect of recovered
bed sheet. There is nothing to show that it was kept in a
packet, which was sealed with lac/wax till it was subjected to
chemical analysis.
23 It is thus seen that evidence of the prosecutrix/
P.W.No.1 is totally improbable. The same is not worth
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reliance for the reasons stated in the foregoing paragraphs. It
is not gaining corroboration from other evidence adduced by
the prosecution. Therefore, at any rate, the appellant/accused
is entitled for benefit of doubts though the
prosecutrix/P.W.No.1 was undoubtly a minor female at the
time of the alleged incident. In the result, I proceed to pass
the following order :
ORDER
(i) The appeal is allowed.
(ii) The impugned Judgment and Order dated
22/05/2013 passed by the learned Additional
Sessions Judge, Mumbai in Sessions Case No.201 of
2011 convicting the appellant accused for offences
punishable under Sections 376, 366A, 342 and 506
of the Indian Penal Code is quashed and set aside.
(iii) The appellant/accused is acquitted of the offences
punishable under Sections 376, 366A, 342 and 506
of the Indian Penal Code.
(iv) Fine amount, if any, paid by him be refunded to him
(v) He be set at liberty if not required in any other case.
(vi) The Appeal is disposed of accordingly.
(A.M.BADAR J.)
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