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

CRIMINAL APPEAL NO.724 OF 2004

Mohan s/o Jayram Ghanbahadur,
Age about 36 years,
R/o Warud-Jaulka, Tq. Akot,
Dist. Akola. ……. APPELLANT

…V E R S U S…

State of Maharashtra, through
Police Station Officer Akot,
Tq. Akot, Dist. Akola. ……. RESPONDENT
——————————————————————————————-
Shri N.D. Khamborkar, Advocate for Appellant.
Ms. Ritu Kalia, APP for Respondent-State
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 01.11.2017
DATE OF PRONOUNCING THE JUDGMENT : 25.01.2018
JUDGMENT :

1] The appellant-Mohan Jayram Ghanbahadur is

convicted for offence punishable under section 376 of the Indian

Penal Code (‘IPC’ for short) and is sentenced to undergo rigorous

imprisonment for three years and to payment of fine of Rs.300/-,

and is convicted for offence punishable under section 354 of IPC

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and is sentenced to suffer rigorous imprisonment for one year and

to payment of fine of Rs.100/- and is convicted for offence

punishable under section 506 of IPC and is sentenced to suffer

simple imprisonment for one year and to payment of fine of

Rs.50/- and is further convicted of offence punishable under

section 323 of IPC and is sentenced to suffer simple imprisonment

for six months and to payment of fine of Rs.50/-. This judgment

and order dated 01.11.2004 passed by 2 nd Ad-hoc Additional

Sessions Judge, Akola in Sessions Trial 17/2004 is assailed in the

appeal.

2] Heard Shri N.D. Khamborkar, the learned Counsel for

the appellant and Ms. Ritu Kalia, the learned Additional Public

Prosecutor for the respondent-State.

3] The case of the prosecution as is unfolded during the

trial is thus:

The prosecutrix (P.W.1) was residing at Akot with her

sister Savita. Accused was in relationship with Savita who was

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estranged from her husband. Accused and Savita were in

relationship since 5 to 6 years.

4] The incident occurred on 05.12.2003. The prosecutrix

was alone and Savita had gone to village Pardi to meet a relative.

The prosecutrix was sleeping, at 11:00 p.m. or thereabout she

heard noise of somebody thumping the door. She called out and

the accused answered. The prosecutrix opened the door, the

accused entered the house and asked her the whereabouts of

Savita. The prosecutrix told the accused that Savita had gone to

village Pardi and the accused said she was lying. The accused

pulled her hair and started assaulting her on cheeks with hands

and fists. The accused made her lie on a mattress (wakal).

The accused removed her knicker and subjected to her to sexual

intercourse for 3 to 4 minutes. The accused threatened the

prosecutrix not to create a commotion else he would dislocate her

teeth or kill her brother. The accused stayed in the house till

05:00 a.m. On the next day Savita returned to Akot at 10:00 a.m.

and the prosecutrix narrated the incident to her. The prosecutrix

and Savita lodged report Exh.17 at Akot Police Station on

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06.12.2003 on the basis of which offence punishable under

sections 376, 354, 506 and 323 of the IPC was registered against

the accused. The prosecutrix was referred for medical

examination. The accused was arrested and his undergarments

were seized. The accused was also referred for medical

examination. Spot panchnama was recorded. Samples of pubic

hairs, blood and vaginal swab were collected and sent to the

Chemical Analyzer. The C.A. Report was obtained and upon

completion of the investigation charge-sheet was submitted in the

court of Judicial Magistrate First Class, Akot who committed the

proceedings to the Sessions Court. The learned Sessions Judge

framed charge under sections 376, 354, 506 and 323 of the IPC.

The accused abjured guilt and claimed to be tried in accordance

with law.

The text and tenor of the cross-examination is that

since one year prior to the incident, the accused and the

prosecutrix were in consensual sexual relationship.

The prosecutrix conceived and under went termination of

pregnancy procedure at the hospital of one Dr. Agrawal.

The accused committed sexual intercourse with Sangita with her

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consent, twice, on the date of the incident. The defence is also

that Savita was demanding money, which demand the accused

could not fulfill and was falsely implicated by Savita and the

prosecutrix.

5] The prosecution examined as many as four witnesses

to bring home the charge. P.W.1 is the prosecutrix, P.W.2 is

Pandurang Solanke the witness to spot panchnama Exh.20, P.W.3

is Dr. Vandana Vasu who examined Sangita and issued certificate

Exh.28 and P.W.4 is the Investigating Officer. In view of the trend

and tenor of the cross-examination, it is irrefutable that the

accused subjected the prosecutrix to sexual intercourse on

05.12.2003. The pivotal question is whether the sexual contact

was consensual, as is suggested by the defence, or the prosecutrix

was ravished against her will and without her consent. It is

axiomatic that the most material witness from the perspective of

the prosecution is the prosecutrix herself. For reasons best known

to the prosecution, the sister of the prosecutrix Savita is not

examined as witness though cited in the charge-sheet.

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6] Before the evidence of P.W.1 prosecutrix is discussed,

it would be appropriate to consider the medical evidence on

record. The evidence of the prosecutrix is that she was assaulted

on cheeks by fist blows. The medical examination report does not

notice any visible sign of injury on the person of the prosecutrix.

No scratch marks or abrasions or lacerations are noticed in the

medical examination of the prosecutrix. P.W.3 Dr. Vasu does state

that the prosecutrix was complaining about the trauma to back

and left cheek. However, P.W.3 has deposed that she did not find

swelling on cheek or back. The hymen was found ruptured, and

there was swelling around the hymen. The opinion is that the

hymen was ruptured within 24 to 48 hours of the medical

examination.

A suggestion is given to her that a grown up woman

will offer stiffest possible resistance to the molester. The response

of Doctor is that she agrees with the proposition, however, if the

woman is threatened or is disabled such resistance may not be

possible. Concededly, the prosecutrix is physically challenged and

one leg is polio affected.

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7] The prosecutrix-P.W.1 has deposed that the accused

and her sister Savita were in relationship. At 11:00 p.m. on

05.12.2003 the accused entered the house, asked whereabouts of

Savita and when the prosecutrix told him that Savita had gone to

village Pardi to meet maternal aunt, she was accused of lying.

The accused pulled her hair and started assaulting her with fists

on the cheeks. The accused removed her knicker forcibly and

ravished her for 3 to 4 minuets. The accused threatened the

prosecutrix not to create a commotion else her teeth would be

dislocated and brother killed. The accused left the house at 05:00

a.m. and the prosecutrix narrated the incident to her sister Savita

when she returned to Akot at 10:00 a.m. on 06.12.2003.

The prosecutrix has proved the report Exh.17 and the printed

F.I.R. Exh.18.

The proseuctrix is subjected to a lengthy

cross-examination. The defence has brought on record the

relationship between the accused and Savita and that Savita has

two children from two husbands. The prosecutrix admits that both

the husbands deserted Savita and volunteers that Savita is

estranged from her husbands due to the relationship with the

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accused. She admits that the relationship between the accused

and Savita was like husband and wife. An endeavour is made to

bring on record that since the accused was not in a position to

fulfill the monetary demand of the two sisters, he is falsely

implicated. The prosecutrix has denied the suggestion that she

and the accused established sexual relationship one year prior to

the incident and that she conceived and the pregnancy was

medically terminated. She admits that 4 to 5 days prior to the

incident the accused came to her house. The prosecutrix does not

remember whether as on the date of the incident two months rent

was due and her sister Savita demanded Rs.1000/- from the

accused to pay the rent. She states that she has no personal

knowledge about such demand. It is brought on record that

several houses are situated in close proximity and the attempt was

to suggest that a woman who is ravished against her will or

without her consent had ample opportunity to alert the

neighbours by raising an alarm.

The prosecutrix has obviously exaggerated when she

deposes in the cross-examination that she was assaulted not only

in the front room, but also in the bed room. The house comprises

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three rooms. The version of the prosecutrix, as has come on record

in the cross-examination, is that the accused assaulted her in the

front room, then followed her when she went in the inner room,

she suffered injury when the accused pulled her down, she

suffered injury to head and hand. The accused assaulted her on

forehead and cheeks till the cheeks were swollen. She speaks of a

forcible and violent sexual intercourse. At one point in the

cross-examination the prosecutrix states that after the sexual

intercourse she went to sleep and was asleep throughout the night

and so was the accused. In the next breath, the prosecutrix states

that the accused did not take a nap on that night and she was also

not sleeping. The prosecutrix then comes out with a version which

is inconsistent with the F.I.R. and the examination-in-chief and

states that in the same night the accused subjected her to sexual

intercourse for the second time. She denies the suggestion that the

accused had tea in the morning and then left. She however,

admits that she did not disclose about the incident to any of the

neighbours nor did she inform her parents. She denies the

suggestion that the sexual relationship was consensual.

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8] The learned A.P.P. strenuously urged that the

prosecutrix is not an accomplice. Conviction can rest on the sole

testimony of the prosecutrix and corroboration is not necessary, is

the submission. This court is conscious of the settled position of

law that uncorroborated testimony of the prosecutrix, if found

implicitly reliable, can be the basis of conviction and the court is

not obligated to seek corroboration which would be adding insult

to the injury. However, the burning question is whether the

testimony of the prosecutrix is implicitly reliable, credit worthy

and confidence inspiring. Be it noted, that since it is not disputed

by the accused that he did establish sexual contact with the

prosecutrix, the only question to be answered is whether the

accused has probablized the defence that the sexual intercourse

was consensual.

9] The medical evidence is not decisive, either way.

The fact that the Doctor did not detect any visible sign of injury

suffered due to resistance pales into insignificance since the

prosecutrix is physically challenged. The medical evidence is

however, inconsistent with the defence that since one year prior to

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the incident the accused and the prosecutrix were in physical

relationship. The finding is that the rupture of the hymen is 24 to

48 hours old. The medical evidence is also inconsistent with the

version of the prosecutrix that she was violently assaulted on

forehead and cheek not only when the accused entered the house,

but again in the inner room before she was ravished. The ocular

evidence of the prosecutrix that she suffered head injury and

swelling on cheeks is again not consistent with the medical

evidence. In so far as sexual intercourse is concerned, it is already

noted that the defence is not disputing sexual intercourse.

10] The evidence of the prosecutrix is not implicitly

reliable and it is more than apparent that she is vacillating in her

versions. Over exaggeration, over implication and embellishment

is discernible from the evidence. The prosecutrix is indeed

physically challenged and one leg is affected by polio.

However, notwithstanding the handicap, the conscious of the

court is not satisfied that she did not have an opportunity to either

raise an alarm or alert the neighbours. The prosecutrix at one

point in the evidence states that she went to sleep after the

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intercourse and at a subsequent stage comes out with a totally

different version, which is that neither she nor the accused slept

and she was subjected to sexual intercourse for the second time.

It is in view of the fragile testimony that this court was impelled to

seek corroboration.

11] The prosecution has not examined the elder sister of

the prosecutrix Savita though she cited as a witness.

Concededly, the disclosure was made by the prosecutrix for the

first time only to Savita. Whom to examine as a witness is

ordinarily the discretion of the prosecution. Ultimately the

evidence must be weighed and not counted. However, when a

material witness who is cited and not examined, the court must be

on guard. The failure of the prosecution to examine a witness who

could have unfolded the narrative and corroborated the testimony

of the prosecutrix assumes significance, particularly as the witness

is the elder sister of the prosecutrix. I have already noted, that the

medical evidence does not take the case of the prosecution any

further as since the rupture of hymen with swelling around, is not

per se decisive of the indication of forcible intercourse.

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The medical evidence, is to certain extent incompatible with the

version of the prosecutrix that she was subjected to violent assault

not only in the front room when the accused entered the house,

but again in the inner room before she was sexually ravished.

12] Shri Khamborkar, the learned counsel for the

appellant invites my attention to the observations of the Apex

Court in Narendra Singh and another v. State of M.P. reported in

(2004) 10 SCC 699 in paragraph 30 which reads thus:

30. It is now well settled that benefit of doubt
belonged to the accused. It is further trite that
suspicion, however grave may be, cannot take place of a
proof. It is equally well settled that there is a long
distance between “may be” and “must be”.

The learned counsel would submit that the defence

has succeeded in creating sufficient doubt about the veracity of

the prosecution case and the benefit of the doubt must necessarily

go to the accused. The submission is well merited. The golden

thread which runs through the web of the criminal justice

dispensation system is that the offence must be proved beyond

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reasonable doubt and the benefit of any reasonable hypothesis

incompatible with the guilt of the accused must be given to the

accused.

13] I am not persuaded to hold that the offence is proved

beyond reasonable doubt.

14] The judgment and order impugned is set aside.

15] The accused is acquitted of offence punishable under

sections 376, 354, 506 and 323 of the IPC.

16] Fine paid by the accused, if any, be refunded.

17] The bail bond of the accused shall stand discharged.

18] The appeal is allowed.

JUDGE
NSN

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