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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.103 OF 2002

Bandu s/o. Maroti Dupare,
aged about 26 yars,
R/o. Baranz Maksa,
Police Station Bhadrawati,
District Chandrapur ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through Police Station Officer,
Police Station, Bhadrawati …… RESPONDENT

——————————————————————————————-
Mr. M.P. Lala Mr. R.N. Patil, Counsels for Appellant.
Mrs.M.H. Deshmukh, Additional Public Prosecutor for
Respondent /State.
——————————————————————————————-

CORAM
:ROHIT B. DEO, J.

DATE
:18 th
SEPTEMBER, 2017.

ORAL JUDGMENT

The appellant assails the judgment and order dated

8.1.2002 in Sessions Trial 113 of 1996 delivered by the 3 rd District

Sessions Judge, Chandrapur by and under which the appellant

(hereinafter referred to as “the accused”) is convicted of offence

punishable under section 376 of the Indian Penal Code (“IPC” for

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short) and is sentenced to suffer rigorous imprisonment for five

years and to pay fine of Rs. 5000/-.

2 The genesis of the prosecution case is the report

dated 11.1.1996 lodged by the prosecutrix inter alia stating that

on 10.1.1996 – Wednesday at 6 p.m., she went to Bhadrawati

being a weekly market day. The prosecutrix was in the weekly

market till 7.30 p.m. and then her brother Suryabhan Dongre

dropped the prosecutrix near the field of one Vitthal Punvatkar on

bicycle. Suryabhan Dongre left and the prosecutrix was walking

towards the village Baranj when she was accosted by the accused

near the “Bodi” (a small pond or reservoir) located on the rear

side of the school. The accused lifted the prosecutrix from behind

and started taking her towards Bodi. The prosecutrix raised an

alarm, the accused pressed her mouth, made the prosecutrix fall

down, threatened her with the physical harm, undressed her with

one hand and at that time the prosecutrix resisted and kicked the

accused with both feet. The oral report states that despite the

resistance, the accused committed forcible intercourse and then

ran away but not before threatening the prosecutrix that if the

incident is disclosed, she shall be dealt with appropriately. The

oral report states that incident took place at 8.30 p.m. and then

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the prosecutrix disclosed the incident to her husband and

alongwith her husband came to the police station to lodge report.

The oral report is at Exh. 14 and the First Information Report

which is registered on the basis of oral report is at Exh. 37.

3 The investigation culminated into chargesheet being

submitted before the Judicial Magistrate First Class, Bhadrawati

who committed the case to the Sessions Court, Chandrapur. The

learned Sessions Judge framed charge at Exh. 10, the accused

pleaded not guilty and claimed to be tried. The prosecution

examined as many as ten witnesses. The defence as is discernible

from the text and tenor of the cross examination is of total denial

and then in the alternate, of a consensual sexual relationship.

4 Heard Mr. M.P. Lala Mr. R.N. Patil, the learned

counsels for the accused and Mrs. M.H. Deshmukh, learned

Additional Public Prosecutor for the respondent / State.

5 The learned counsel for the accused submits that

evidence on record is grossly insufficient to bring home a charge

under section 376 of IPC. The learned counsel would submit that

while conviction can rest even on the uncorroborated testimony of

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the prosecutrix, the evidence of the prosecutrix must be implicitly

reliable or confidence inspiring. The conduct of the prosecutrix is

not natural, is the submission. Shri. Lala, the learned counsel

invites my attention to the medical evidence on record to contend

that absence of injuries, in the factual matrix, is absolutely

inconsistent with the version of the prosecutrix that accused

committed forcible sexual intercourse. The learned counsel for

the accused would then submit that the fact that the prosecutrix

chose to visit the house of the accused rather than directly go to

the police station is not the normal human conduct. The learned

counsel would submit that there are too many gray areas in the

version of the prosecutrix for the conviction to rest on her

uncorroborated testimony. The learned counsel would further

submit that while the evidence must be weighed and not counted,

witnesses who could have thrown light on material aspects of the

prosecution version, have not been examined although cited in the

chargesheet as witnesses. Shri. Lala, the learned counsel would

submit that while whom to examine is the sweet choice of the

prosecution and the prosecution is not under any duty to examine

multiple witnesses to prove the same fact, failure to examine

witnesses who were available and whose testimony would have

unfolded the prosecution version and lent assurance or

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corroboration to the evidence of the prosecutrix, fatal. An adverse

inference must be drawn against the prosecution for non-

examination of witnesses cited in the chargesheet, is the

submission.

6 Mrs. M. H. Deshmukh, the learned APP would urge

that the testimony of the prosecutrix is more than amply

corroborated by the testimony of PW 2 Prakash Dahiwalkar and

PW5 Vitthal Punvatkar and the report of Chemical Analyzer Exh.

41. The learned APP would further urge that in the

circumstances, the oral report is lodged with promptitude. The

prosecutrix has disclosed to her family members at the earliest

opportunity that she was sexually assaulted. The absence of

injuries on the private parts of the prosecutrix is of no significance

since the prosecutrix is a married woman with two children, is the

submission.

7 The learned counsel for the accused Shri. Lala did

make a serious attempt to persuade me to hold that the defence of

total denial must be accepted and that the very act of sexual

intercourse is not proved. For reasons spelt out infra, I am not

inclined to agree with the learned counsel for the accused that the

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prosecution has not proved the sexual intercourse and that the

testimony of the prosecutrix must be discarded in entirety. The

learned counsel Shri. Lala then contend that even if it is assumed

arguendo that the accused committed sexual intercourse, the

relationship was obviously consensual.

8 In my opinion, the central issue for consideration is

whether the prosecution has ruled out the possibility that the

sexual intercourse committed by the accused was consensual. The

prosecutrix (PW1), states that she was working at N.T.P.C. till 6

p.m. in the evening and after finishing her labour work, she went

to Bhadrawati to make certain purchases in the weekly market.

She purchased vegetables and then went to the bus stop but there

was no bus available. It was then, that the prosecutrix met her

cousin brother Suryabhan Dongre. She requested Suryabhan

Dongre to drop her till Baranj Fata. Suryakant dropped the

prosecutrix till the field of Vitthal Punvatkar. The prosecutrix

started walking alone towards her house, the accused came on a

bicycle with one Machhindra Petkar and stopped the bicycle near

the prosecutrix. The accused got down, inquired with the

prosecutrix as to whether she had been to the market, Machhindra

proceeded towards his house on the bicycle and the prosecutrix

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started walking, when the accused suddenly accosted her, the

prosecutrix started running towards a nearby brick kiln, the

accused came from behind and caught hold of her neck. The

prosecutrix further states that accused pressed her mouth by one

hand, pulled her towards a bush situated near the Bodi, made her

fall on ground undressed her and gagged her by inserting her

saree in her mouth as she had started shouting. She then states

that accused committed forcible sexual intercourse and fled from

the spot. She went home weeping, narrated the incident to the

mother of Vitthal (PW 3) and elder daughter Pratibha. She then

states that she went to the house of the accused and informed the

parents of the accused about the incident. She further states that

the parents of the accused told her not to go to the police station

and wait till the accused comes back. She further states that she

was present in the house of the accused when the accused

returned and then she confronted the accused as to why he did

such a thing and the accused replied arrogantly and asked her to

do whatever she could. It was only thereafter, that the prosecutrix

disclosed the incident to her husband and other persons from the

village and went to Police Station, Bhadrawati to lodge report

against the accused.

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9 In paragraph 3 of the cross examination, the

prosecutrix admits that the house of the accused is located at a

distance of a two houses from her house. She admits that when

she reached her house, the family members asked her as to why

she came home late from the market. She denies the suggestion

that there was a quarrel between her and the husband and that

the husband voiced suspicion about her character. She denies the

suggestion that it was only in view of the suspicion of the husband

that she lodged a false report against the accused at the instance

of the husband. The effort of the defence is obviously to suggest

that the sexual relationship was consensual and the report was

lodged at the behest of the husband of the prosecutrix to ensure

stability of the marriage.

10 It is brought on record in the cross examination that

distance between the agricultural field of Vitthal Punvatkar and

the residence of the prosecutrix is 60 to 70 meters. The

prosecutrix admits that she did not request Machhindra Petkar

who is known to the prosecutrix, to drop her to her residence.

The prosecutrix admits the existence of thorny bushes near the

Bodi and that the terrain is rough. The prosecutrix admits that

despite the sexual intercourse for half an hour, there was no

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tenderness in her private part.

11 I have no hesitation in concurring with the learned

Sessions Judge that the sexual intercourse is proved. The report

of the Chemical Analyzer which proves that the semen found on

the petticoat of the prosecutrix is of the same blood group as that

of the accused. This corroborates the version of the prosecutrix.

However, I am impelled to seek corroboration to the evidence of

the prosecutrix to the extent that the possibility of consensual

sexual intercourse is excluded from consideration. The evidence

of the prosecutrix, at any rate the entire evidence of the

prosecutrix, is not free from doubt. The conduct of the

prosecutrix in non disclosing the incident first to her husband or

then, disclosing the incident to her daughter and the mother of

PW 5, and going to the house of the accused to inform his parents,

does not appear to be natural and normal conduct of a similarly

placed woman. A woman who is subjected to a forcible sexual

intercourse and that too lasting for half an hour during which

period the woman states that she was resisting would ordinarily

disclose the incident to her husband and would rush to the Police

Station to lodge a report at the first available opportunity. The

version of the prosecutrix that she disclosed the incident to her

daughter and to the mother of PW5 and then she went to the

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house of the accused is in my opinion not free from doubt and the

conviction can not rest on such uncorroborated evidence. The

prosecution has not brought on record, the circumstances in which

the mother of PW 5 was present in the residence of the

prosecutrix as the mother of PW 5 whom the discloser is allegedly

made is not examined as a witness although cited as a witness in

the chargesheet.

12 Since I am not inclined to agree with the learned APP

that evidence of the prosecutrix is implicitly reliable and can be

the basis of the conviction, I made an attempt to seek

corroboration from the other direct and indirect evidence on

record. Unfortunately, this is a glaring case where the prosecution

has not examined material witnesses who were cited in the

chargesheet and who could have amply corroborated the version

of the prosecutrix. May be the blame lies at the doorstep of the

both the investigator and the prosecutor. The prosecutrix states

that she was dropped near the field of Vitthal Punvatkar by her

cousin Suryabhan Dongre. However, Suryabhan has not been

examined. The version of the prosecutrix is that the accused

came alongwith one Machhindra Petkar on bicycle and then

Machhindra left alone. Machhindra is cited as a witness. He

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could have corroborated the version of the PW1 and could have

thrown some light on the circumstances in which the prosecutrix

and the accused met. The failure of the prosecution to examine

Machhindra is inexplicable. According to the prosecutrix, she

went home and immediately disclosed the incident to her

daughter Pratibha and the mother of Vitthal. The mother of

Vitthal is cited as a witness and again for reasons not clear is not

examined. Pratibha, the daughter of the prosecutrix is also not

examined. The husband of the prosecutrix who is cited as a

witness in the chargesheet is again not examined. The learned

APP is absolutely right in contending that evidence must be

weighed and not counted and that the prosecution was under no

duty to examine multiple witnesses to prove the same fact. It is

true that whom to examine is ordinarily the sweet choice of the

prosecution. However, if material witnesses, who are cited in the

chargesheet, are suppressed and such suppression is an

impediment in clearing the doubt and in corroborating the

evidence of the prosecutrix, as in the case in hand, I have no

hesitation in opining that the counsel for the accused is right in

contending that an adverse inference against the prosecution can

be and must be drawn. Non examination of material witnesses on

vital aspects of the prosecution case, in the factual matrix of this

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case is fatal.

13 The learned APP would invite my attention to the

enunciation of the Hon’ble Supreme Court that proof beyond

reasonable doubt is not a fetish and is only a guideline. The

learned APP would contend that the Courts must appreciate the

broad probabilities of the prosecution evidence in offences

involving outraging of modesty or sexual offences against woman.

There can not be any quarrel with the contention, in principle.

However, while proof beyond reasonable doubt can not be a

fetish, the golden rule that an accused is presumed to be innocent

till the guilt is established beyond reasonable doubt is too deeply

entrenched in Indian criminal jurisprudence for this court to

sacrifice the liberty of the accused at the alter of suspicion,

however, strong the suspicion may be.

The Judgment impugned is set aside.

Appeal is allowed.

The accused is acquitted of offence punishable under
section 376 of the Indian Penal Code.

Bail bond shall stand discharged.

Fine paid by accused, if any, be refunded.

JUDGE

Belkhede

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