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Mangal @ Mangesh Husen Meshram (In … vs The State Of Maharashtra, Thr. … on 2 November, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 280/2016
APPELLANT:- Mangal @ Mangesh Husen Meshram,
aged about 26 years, Occ. Labour,
R/o. Rampur, Tah. Arvi, Dist. Wardha,
now in Central Jail, Nagpur.

VERSUS

RESPONDENT: The State of Maharashtra,
through Police Station Officer,
P. S. Pulgaon, Dist. Warhda.

—————————————————————————————————
Shri R. P. Thote, Advocate (Appointed) for appellant.
Mrs. S. S. Jachak, Additional Public Prosecutor for respondent/State.
————————————————————————————————-

CORAM: R. K. DESHPANDE AND
VINAY JOSHI, JJ.

DATE OF RESERVING THE JUDGMENT :- 19.10.2018
DATE OF PRONOUNCING THE JUDGMENT:- 02.11.2018

JUDGMENT (PER VINAY JOSHI, J.)

This criminal appeal has been filed against the judgment

and order of conviction dated 06.10.2015 passed by the learned

Additional Sessions Judge, Wardha in Sessions Case No. 152/2013

registered at Pulgaon Police Station, whereby, the learned Additional

Sessions Judge convicted the appellant – accused namely Mangal @

Mangesh Husen Meshram for the offence punishable under Section 376

of the Indian Penal Code and sentenced him to suffer imprisonment for

life and to pay fine of Rs. 1000/- with stipulation of default. The

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appellant was also convicted for commission of offence punishable

under Section 323 of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with

stipulation of default. Both the sentences are directed to run

concurrently. The learned Additional Sessions Judge however, acquitted

the appellant – accused for the offence punishable under Sections 307

and 506 of the Indian Penal Code. The benefit of set off in terms of

Section 428 of the Code of Criminal Procedure was accorded to

appellant – accused since he was in jail from 13.03.2013 till conclusion

of trial.

2. The factual matrix of the case is that the victim lady was

labourer, resident of village Rampur, and at relevant time, was living

with one Rama Mundekar. On 12.03.2013, around 05.00 p.m., she

went to her new hut for plastering and then within 30 minutes, she went

to nearby place for answering nature’s call. At that time, accused

arrived, pressed her mouth and by force, dragged her to nearby place.

The victim raised alarm, on which the accused struck at her left shoulder

with wooden stick. The accused partially undressed her and had

forcefully sexual intercourse with her. After few minutes, the accused

repeated the act of sexual intercourse. While leaving the place, the

accused threatened to the victim that she should not disclose the

incident to any one. After sustaining sexual assault, victim was lying at

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the place itself. Around 07.00 p.m., Rama with whom victim was living,

came to the place of occurrence and took her to the house. On the

following day, victim went to the concerned Police Station and lodged

report.

3. On receipt of report regarding commission of cognizable

offence, the Police registered crime vide Crime No. 53/2013 and

commenced the investigation. During the course of investigation, the

Police drew panchanama of the scene of offence, seized incriminating

articles at the instance of the accused and sent accused as well as victim

for medical examination. On completing the formalities of investigation,

Police filed final report in terms of Section 173(2) of the Code of

Criminal Procedure in the Court of Jurisdictional Magistrate.

4. After receipt of final report, the learned Magistrate

committed the case to the Court of Sessions for trial. Initially, the

charge against accused was came to be framed for commission of

offences punishable under Sections 376, 323 and 506 of the Indian

Penal Code. Latter on, charge for commission of offence punishable

under Section 307 of the Indian Penal Code was added. The charge was

read over and explained to accused on which, he pleaded not guilty and

put the prosecution to the task of establishing leveled charges with

requisite standard of proof. The defence of the accused was of total

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denial. To substantiate the case, the prosecution endevoured into

examining as many as five witnesses. The prosecution witnesses mainly

consists of the evidence of victim, her so-called husband, Medical Officer

and Police personnel. The prosecution also banks upon certain

documents namely First Information Report, panchanama of the scene

of offence, memorandum and seizure panchanama, chemical analyser’s

report and medical examination report. On the basis of said oral and

documentary evidence, the prosecution endevoured to bring home the

guilt of accused.

5. The statement of accused was came to be recorded in terms

of Section 313 of the Code of Criminal Procedure. By denying the guilt,

the accused claimed to be falsely implicated in the case. Besides that, no

specific defence has been raised by accused. After hearing both sides

and perusing the record, the learned trial Court passed the impugned

judgment and order of conviction and sentenced to the accused as

detailed above. Being aggrieved and dissatisfied with the impugned

judgment and order of conviction and sentence, the appellant – accused

filed this appeal.

6. The point for consideration in the appeal is as to whether

the prosecution has been able to bring home the charges leveled against

the accused beyond all reasonable doubt or not.

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7. The learned counsel for the appellant/accused argued that

the evidence of victim is wholely unreliable. There is no corroborative

evidence to support the victim’s sole testimony as well as the medical

evidence does not support the prosecution case. Moreover, there is

inordinate unexplained delay in lodgment of First Information Report.

With these contentions, he would submit that the prosecution failed to

establish leveled charges with requisite standard of proof, hence the

accused is entitled for acquittal. On the other hand, the learned

Additional Public Prosecutor for respondent/State submitted that for

establishing the offence of rape, the sole testimony of victim is sufficient.

The evidence of victim is reliable, trustworthy and there is no reason for

victim to falsely implicate the accused. In short, she submitted that the

learned trial Court has correctly appreciated the evidence available on

record and passed the impugned judgment and order of conviction

which is in accordance with law. Ultimately she urged that, the

sentence is liable to be upheld by dismissing the appeal.

8. Few admitted fact needs reference for the purpose of quick

appreciation. The victim lady who was 57 years of age was married

with a fellow from Kolhapur, prior to 15 years. Since her relationship

with her husband were strained, she was living with Rama Mundekar at

the time of occurrence. It is not disputed that on the day of occurrence,

the victim had gone for plastering her hut with mud. Besides that, the

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rest of the prosecution case is denied by the defence. We may

recapitulate that the alleged incident occurred on 12.03.2013, around

05.30 p.m. whilst the First Information Report was lodged by victim on

the following date i.e. on 13.03.2013, around 11.00 a.m.

9. The learned Additional Sessions Judge by relying on sole

testimony of PW-2 – Victim, has convicted the accused for commission of

offence of rape and causing simple hurt. While analysing the evidence

on record, the learned Additional Sessions Judge, was much swayed by

some legal principles by referring some precedents for which there can

be no dispute. The learned Additional Sessions Judge expressed that the

sole testimony of prosecutrix can be believed in context of the values

prevailing in our society. It would be unusual for women to come up

with false story of sexual assault. The minor contradictions are to be

neglected for establishing the offennce of rape. Injury is not a must to

prove the offence of rape. When there is a conflict in between oral and

medical evidence ocular testimony would prevail, and shabby quality of

investigation can not prevail over the truthful version of the victim. The

learned Additional Sessions Judge has quoted these legal principles

while recording the findings of guilt.

10. In-fact, each criminal case defers from one to another. Each

case has its own peculiar facts. The criminal case cannot be decided

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solely on the basis of settled legal principles but the applicability of the

principles in context to the facts of the case plays crucial role. It reveals

that the learned Additional Sessions Judge while recording the order of

conviction, was much influenced by these settled principles. Needless

to say that the Court has to see the factual matrix, the evidence

forthcoming and then go to the principles on the basis of which, the

evidence is to be appreciated.

11. Reverting to the facts, we have gone through the vital

evidence which is obviously of the PW-2, victim. She stated in her

evidence that she had gone for plastering her house with one lady.

When she went to answer nature’s call, the accused suddenly came,

gagged her mouth, lifted upto Nala, made to fall on the ground with

force and had forcible sexual intercourse with her. It is her evidence

that initially she shouted, on which accused dealt with stick blow at her

left hand. She specifically stated that after gap of few minutes, again

the accused repeated the things. The prime question is whether the

victim’s evidence inspires confidence. We are conscious of the fact that

generally such offences are committed in secrecy. Therefor, it is

unrealistic to expect eye-witness to the incident. The said very fact casts

heavy duty on Court to minutely scrutinize the evidence of victim before

placing reliance. Usually, there happens to be medical evidence in

corroborative form to which we are coming after short-while.

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12. The prosecutrix was 57 years of age. As per her own case,

the accused dragged her upto nearby Nala and caused her to fall on the

ground with force. When she raised alarm, she was subjected to stick

blow. It has come in her evidence that the place was surrounded by

some houses, as it also emerges from the evidence of Investigating

Officer. Pertinent to note that though immediately on the following day,

the panchanama of the seen of offence (Exhibit-52) was drawn, no

scratches or any mark of violence was noted on the spot. It is matter of

appreciation that the incident has not occurred in the house where there

could be hardly any marks or scratches on the floor. However, as per

the prosecution case, at the side of Nala on rough surface alleged act of

repeated sexual intercourse by use of force occurred. In the

circumstances, there must have signs at the place to demonstrate the

marks of struggle. Though victim stated that she shouted for help, none

of the witness of neighboring area has been examined, so as to at least

corroborate her version to the extent of hearing of shouts. Notably, as

per victim’s own case, after initial act of sexual intercourse, after some

time again accused repeated the things. It means that the alleged

occurrence took considerable time as there was gap between two

occurrences. In the circumstances, the victim who was quite grown up

lady of 57 years of age, must have raised alarm or tried to run away, but

nothing of that kind was happened.

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13. Interesting to see medical examination report of

prosecutrix. Though injuries are not must for establishing the offence of

rape, however the medical evidence mostly provides the corroborative

link. There can be no straight jacket formula to that effect. Alway it

depends upon the variety of circumstances and mainly on the nature

and manner of occurrence. At the cost of repetition, we may note that

alleged occurrence took place near Nala i.e. on rough surface and was

going on for few minutes since the allegations are of repeated act. In

the circumstances, it was quite natural rather essential to find marks of

struggle on the person of victim. The medical report nowhere speaks

about the marks of struggle so as to strengthen the isolated statement of

victim. As per medical report (Exhibit-74), there were no signs of

scratches on the body or any injury over the body of victim. If there

was struggle for few minutes and particularly when the victim was

immediately examined by the Medical Officer on the following day,

there must be at least some marks or scratches on the person of victim.

However, total absence of the marks of struggle in the nature of

scratches on the body, specially when the occurrence took place on

rough surface creates a serious doubt about the happening. Though

there was fracture injury at the left hand of victim, that can not be

treated as sign of struggle since there may be variety of possibility to

have such specific injury only at hand. Though the victim sustained

fracture injury, the prosecution has not endevour to produce X-ray or

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report.

14. Medical report further discloses that there was neither

secretion of semen nor injury on the private part. Medical Officer – PW-

4 Dr. Narlwar equally stated about total absence of injuries on private

part of victim. Medical Officer admits that he can not conclusively say

whether sexual intercourse had taken place. True the prosecutrix was

married lady of advance age, however, as the alleged incident repeated

sexual assault took place on rough surface, there must have marks of

struggle on her person, but that is not the case. As such the medical

evidence, nowhere supports the prosecution case either about struggle

or to show the sexual assault. The Medical Officer specifically admits

that he is not sure about sexual assault. Contextually, we have gone

through the Chemical Analyser’s report (Exhibits 63 to 65). Clothes of

victim as well as accused and wooden stick allegedly used in the

commission of crime were sent to Chemical Analyser. The report

indicates that there were no blood stains on the clothes of accused as

well as on wooden stick. The Chemical Analyser’s report nowhere

assists to connect the accused with the crime. Pertinent to note that no

semen was detected on the clothes of victim or the accused. To our

mind, this is one another setback to the prosecution to establish the act

of forcible sexual violence as alleged.

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15. Coming to other circumstances, the prosecution has

examined PW-3 Rama Mundekar with whom the victim was living at

relevant time. He deposed that since victim never returned, he went for

search and found her around 07.30 p.m. near Nala. Admittedly, he had

not enquired with anybody about the victim. At relevant time, victim

had gone to nearby hut for the purpose of plastering. It is difficult to

understand as to how Rama came to know about the exact isolated place

where the victim was lying in injured condition. If he went to the place

due to cry of victim then naturally nearby residents must have noticed

the cry. The version of Ram is not free from doubt. He admits that he

used to sell liquor for which cases were registered against him.

However, he denied that he has falsely implicated accused due to rival

terms. Rama admits that the Police had not recorded his statement nor

he disclosed the things to anybody till giving evidence. Thus, the entire

version of Rama is suspicious as well as does not help to strengthen the

evidence of victim.

16. Then, it comes to the aspect of lodgment of FIR. The

defence has criticized the prosecution case by submitting that there was

inordinate delay in lodgment of FIR. The alleged incident took place in

between 06.00 to 07.00 p.m. on 12.03.2013 whilst on the following day,

around 11.00 a.m., the report was lodged. It has come in the evidence

of Rama that on the day of occurrence, they returned to the house, took

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dinner and slept. It is not a case that they searched for conveyance to

reach the Police Station but they did not get. One should not forget that

Rama was selling liquor and police cases were registered against him.

Considering the said aspect, it was quite easy for Rama to take his wife

to the Police Station at earlier point of time, therefore, the explanation

given by prosecution in the background of factual aspect does not

appear to be probable one.

17. Summing up the discussion, the victim’s isolated testimony

is not reliable. Since the prosecution solely rests on the testimony of

victim, her evidence must be credible and trustworthy. Though there

are specific allegations about repeated forcible sexual assault on rough

surface and dragging victim on hard land, non finding of marks of

struggle creates enternable doubts about her entire version. None of the

circumstance corroborates her version. The medical evidence on the

point of struggle as well as sexual intercourse is totally against the

prosecution case. Though the victim allegedly shouted, none of the

neighbouring witnesses were examined to corroborate her version. On

such background, the delay in lodgment of FIR evolves a possibility of

concoction. Moreover, the Chemical Analyser’s Report does not support

the prosecution case from any angle as detailed above. At the cost of

repetition, we may say that the learned trial Court without appreciating

the factual aspect in proper perspective, has recorded the findings of

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guilt by quoting some legal propositions. The evidence of victim is not

of such quality so as to place implicit faith to base conviction. It is

cardinal principle of criminal jurisprudence that when two view emerges

from facts, the benefit of doubt belongs to accused. Therefore, we hold

that the prosecution failed to establish the leveled charges beyond the

reasonable doubt.

18. In the result, the judgment and order of trial Court does not

sustain in the eyes of law, consequently it requires reversal by

allowing appeal. Accordingly, we allow the appeal, set aside the

judgment and order of conviction dated 06/10/2015 passed by the

Additional Sessions Judge, Wardha, in Sessions Case No.152 of 2013.

The appellant/accused, viz. Mangal @ Mangesh Husen Meshram stands

acquitted of the offence punishable under Sections 376, 323 of the

Indian Penal Code and he be released forthwith from Jail, if not required

in any other offence. The amount of fine, if deposited, be refunded to

the accused, seized muddemal property being worthless be destroyed

on expiry of period of appeal and R. P. be sent back to the Trial Court.

The fee payable to the appointed Counsel is quantified at Rs.

5000/-

JUDGE JUDGE
Gohane

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