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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 212/2003
…
Bidhan s/o Vijay Viswas,
Aged 19 years,
R/o Laxmipur,
District Gadchiroli. .. APPELLANT
.. Versus ..
The State of Maharashtra,
through Police Station officer,
Mulchera, Dist. Gadchiroli. .. RESPONDENT
Mr. G.G. Bade, Advocate for Appellant.
Mrs. Swati Kolhe, APP for Respondent
….
CORAM : MANISH PITALE, J.
DATED : JULY 27, 2018.
ORAL JUDGMENT
1. The appellant herein has challenged judgment and
order dated 6.3.2003 passed by the Court of Adhoc Additional
Sessions Judge, Gadchiroli (trial Court) in Sessions Case No.51
of 1997, whereby the Court has convicted him for offence
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punishable under Sections 376/511 of the Indian Penal Code
(IPC) and sentenced him to suffer rigorous imprisonment for
two years and to pay fine of Rs.1,000/-.
2. The prosecution case was that on 14.08.1996 at
about 4.30 p.m. when the prosecutrix was returning from her
agricultural land to village, she was obstructed by the appellant
and she was dragged into the bush where the appellant
allegedly committed forcible sexual intercourse with her. It was
claimed by the prosecutrix PW2 that after the incident when
she was heading towards the village, she had met one Sanjay
Sarkar to whom she narrated the incident and that thereafter
when she reached the village square, she narrated the incident
to the villagers who were present there. Upon the incident
being narrated to the Police Patil of the village, a report was
submitted in the Police Station and a first information report
(FIR) was registered against the appellant for offence
punishable under Section 376 of the IPC at about 1.35 a.m. on
15.08.1996. The investigating officer PW3 took charge of the
investigation, seized the clothes of the prosecutrix PW2 as well
as the accused (appellant) and sent them for chemical
analysis. The investigating officer PW3 recorded statements of
witnesses and submitted charge sheet.
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3. The prosecution examined four witnesses in support
of its case. PW1 Krishna Haldar was a panch witness for
seizure, PW2 was the prosecutrix, PW3 Dilip Jagtap was the
investigating officer and PW4 Dr. Lata Galpande was the
Medical Officer, who had examined the prosecutrix after the
incident.
4. On the basis of the evidence of the prosecution
witnesses and the material on record, the trial Court found that
although a case under Section 376 of the IPC was not made out
against the appellant, the evidence on record was sufficient to
demonstrate that the appellant was guilty of an attempt to
commit rape of the prosecutrix PW2. Accordingly, the trial
Court convicted and sentenced the appellant in the aforesaid
manner.
5. Mr. G.G. Bade, learned counsel appearing on behalf of
the appellant, submitted that in the present case the
prosecutrix PW2 herself had turned hostile. Her evidence was
not believable at all. It was pointed out that the panch witness
for seizure i.e. PW1 had turned hostile and, therefore, seizure of
the clothes was also not proved by the prosecution. It was
further pointed out that while the prosecutrix PW2 and the
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investigating officer PW3 had claimed that there were stains of
semen on the petticoat and the clothes of the prosecutrix PW2,
report of the chemical analysis did not reveal presence of
either semen or blood on the clothes. It was further pointed
out that the evidence of the Doctor PW4 was also not sufficient
to prove the prosecution case. In these circumstances, it was
submitted that the entire story of the prosecution was not
proved by the evidence and material on record and that,
therefore, the trial Court was not justified in passing the
impugned judgment and order.
6. On the other hand, Mrs. Swati Kolhe, learned
Additional Public Prosecutor appearing on behalf of the
respondent-State, submitted that even if the prosecutrix PW2
had turned hostile to the extent that she herself stated that the
appellant could not succeed in raping her, the statements
made by her in cross-examination were sufficient to prove that
the appellant had indeed made an attempt to commit rape. On
this basis it was submitted that when the clothes of the
prosecutrix PW2 had been found to be in torn condition by the
investigating officer PW3, no interference was warranted in the
impugned judgment and order passed by the trial Court.
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7. Heard counsel for the parties and perused the
record.
8. In the present case, a perusal of the report lodged at
the behest of the prosecutrix PW2 shows that according to her
the appellant had committed the act of sexual intercourse with
her. She claimed that the appellant had pressed her mouth
while committing the said act and that the incident had taken
place on muddy earth with mud sticking to her person. She
also claimed that after the incident when she was returning to
the village, she met one Sanjay Sarkar to whom she narrated
the entire incident and thereafter she narrated the incident also
to villagers including Prashant Sana, Ranjit Mandal and Mani
Mistri. The first information report was registered against the
appellant on the basis of the said oral report submitted by the
prosecutrix PW2. For reasons best known to the prosecution,
none of the said persons, to whom the prosecutrix PW2 had
narrated the incident immediately after suffering the alleged
act of forcible sexual intercourse, were examined. Thus, it is
only the evidence of the prosecutrix PW2 which could take the
case of the prosecution forward.
9. But, a perusal of the evidence of the prosecutrix PW2
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shows that she was declared hostile. This was because in her
evidence before the Court, she stated that the appellant did
not succeed in committing the act of sexual intercourse with
her. Thus, the question of the appellant having committed
rape was ruled out. She was declared hostile and the A.P.P.
cross-examined her. In cross-examination, she admitted to the
fact that the report was written by the Police Patil. A perusal of
the said report/complaint Exh.24 shows that it is written in
Marathi and that it bears thumb impression said to be that of
the prosecutrix PW2. It has come on record that the
prosecutrix PW2 did not know Marathi or Hindi language and
that her evidence in the Court was also recorded in Bengali
language, which was translated by an interpreter. A perusal of
the said report/complaint Exh.24 shows that it is written in
Marathi. These circumstances create a serious doubt about the
fact as to whether the said report/complaint at Exh.24 was
submitted at the behest of the prosecutrix PW2. Apart from
this, prosecutrix PW2 has admitted that the relations between
the father of the appellant and the Police Patil were not good.
This clearly indicates a possibility of false or exaggerated
complaint being submitted against the appellant.
10. It has come on record that the clothes of the
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prosecutrix PW2 as well as the appellant were seized and they
were sent for chemical analysis. But, evidence of the panch
witness for seizure PW1 shows that he has turned hostile and
he has stated that the clothes were not seized in his presence.
Even otherwise, a perusal of the Chemical Analyser’s report
shows that there were no traces of semen or blood found on
the clothes of the prosecutrix PW2, although it was claimed by
the prosecution that there were stains of semen on the
petticoat and other clothes of the prosecutrix.
11. A perusal of the evidence of the Doctor PW4 shows
that the prosecutrix PW2 was examined at about 12.15 a.m.
on 15.08.1996, while the incident was said to have occurred on
14.08.1996 at about 4.30 p.m. The medical examination
report and the evidence of the Doctor PW4 does not indicate
that the prosecutrix PW2 had suffered any forcible sexual
intercourse. Although the Doctor PW4 in her report and in her
deposition before the Court stated that there was evidence of
sexual intercourse about 7 to 8 hours before examination of the
prosecutrix PW2, but this statement also goes against the
evidence of the prosecutrix PW2 because she specifically
stated in her evidence that the appellant had not been
successful in committing the act of sexual intercourse with her.
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12. The evidence on record also does not show that the
clothes of the prosecutrix were found to be sticking with mud
or earth, even when the specific claim made by her in her
report/complaint Exh.24 was that the appellant had pressed a
towel on her mouth and committed the act of sexual
intercourse on muddy earthen ground and that mud had stuck
on her person and clothes.
13. Therefore, the entire material on record does not
support the prosecution case. The genesis of the incident and
its description given at the first instance by the prosecutrix
PW2 was at complete variance with what she stated in the
Court. The material on record did not support her claim of the
appellant having dragged her and pushed her down on muddy
earthen ground for committing the act of sexual intercourse.
Therefore, the evidence of the prosecutrix PW2 does not inspire
confidence at all. Yet in the impugned judgment and order, the
trial Court has given a finding that the evidence of the
prosecutrix PW2 inspires confidence to the extent that the
appellant had pushed her on muddy earthen ground and
attempted to commit sexual intercourse. The said finding of
the trial Court is not supported by the evidence and material
on record. It is based on erroneous appreciation of the
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evidence of the prosecutrix PW2 read with the other evidence
of the prosecution witnesses. Hence the said finding of the trial
Court is not sustainable.
14. Consequently, the conviction and sentence imposed
by the trial Court by the impugned judgment and order is also
rendered unsustainable. Accordingly, this appeal is allowed.
The impugned judgment and order passed by the trial Court is
quashed and set aside and the appellant is acquitted of the
offence with which he was charged. The appellant was on bail
during the pendency of this appeal. Hence his bail bonds shall
stand cancelled.
(Manish Pitale, J. )
…
halwai/p.s.
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