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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.358 OF 2003
Mukesh s/o Shriram Khobragade,
Aged about 27 years,
Occupation – Service Headmaster,
Bhagwantrao High School, Dechalipeth,
(permanent resident of Ambedkar Ward,
Kurkheda, Tahsil Kurkheda, District –
Gadchiroli) …. APPELLANT
VERSUS
The State of Maharashtra,
through its P.S.O., Zhinganoor, Tahsil-
Sironcha, District – Gadchiroli. …. RESPONDENT
__
Shri R.M. Daga, learned Counsel for the appellant,
Shri N.H. Joshi, learned Additional Public Prosecutor for the
respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 5 th
MARCH, 2018
ORAL JUDGMENT :
Challenge is to the judgment and order dated 22-5-2003
rendered by the learned Additional Sessions Judge, Gadchiroli in
Sessions Trial 77/1994, by and under which the appellant-accused is
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convicted for offence punishable under Section 376 of the Indian Penal
Code (“IPC” for short) and is sentenced to suffer rigorous
imprisonment for seven years and to payment of fine of Rs.5,000/-.
2. Heard Shri R.M. Daga, learned Counsel for the accused
and Shri N.H. Joshi, learned Additional Public Prosecutor for the
respondent.
3. The genesis of the prosecution lies in the oral report dated
15-10-1993 lodged by P.W.1 Penta Kunbhi alleging that the accused
subjected his wife (P.W.2) to forcible sexually intercourse between
10-00 to 11-00 p.m. on 14-10-1993. On the basis of the said report
(Exhibit 7) and printed first information report (Exhibit 8) offence
punishable under Section 376 of the IPC was registered against the
accused. Investigation ensued and upon completion thereof charge-
sheet was submitted in the Court of Judicial Magistrate First Class,
Sironcha, who committed the proceeding to the Sessions Court. The
learned Sessions Judge framed charge (Exhibit 2). The accused
pleaded not guilty and claimed to be tried. The defence of the accused,
as is discernible from the trend and tenor of the cross-examination and
the answers given in response to questions put in the examination
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under Section 313 of the Criminal Procedure Code is of false
implication.
4. Shri R.M. Daga, learned Counsel for the accused would
submit that the prosecution version is highly improbable and indeed
incredible. The accused is alleged to have subjected the prosecutrix to
forcible sexual intercourse although her husband P.W.1 was sleeping
on a cot at a distance of one foot. Shri R.M. Daga, learned Counsel
would submit that the prosecution witnesses have admitted that the
report was lodged only because the accused threatened to lodge a
police report alleging that the accused was unnecessarily beaten by
P.W.1. The defence that while leaving the house (hutment) to answer
the nature’s call, accidentally the accused stepped on the person of the
prosecutrix, she shouted, P.W.1 awoke and inflicted two to three slaps
to the accused who threatened to lodge a police report and in
retaliation oral report (Exhibit 7) was lodged, is more than probablised
on the touchstone of probabilities, is the submission. Shri R.M. Daga,
learned Counsel invites my attention to answers the questions 76 and
79 in the statement under Section 313 of the Criminal Procedure Code,
which read thus :
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“Q.76. Why the witnesses are deposing against you ?
Ans. I awake my both colleagues from the sleep with intent
to go to urinal purposes. Rajayya was standing there. I was
going for urinal purposes. There was darkness. My leg fell
on leg of somebody else in the darkness. I heard the noise of
talking shouting of a lady in Telgu language. Then,
husband of Masi awake from the sleep. Her husband gave
me two slaps. Then, we came outside his house. I told to her
husband that why he beat me and what is my fault ? While
going for urinal, my leg fell on her leg. I told him that I am
going to Police Station to lodge report. Then, we three
persons went to Police Station.
Q.79 Do you want to say anything else ?
Ans. When we went to the police station, police raised the
guns as it is Naxalite Area. We lodged oral report in the
police station. One Bhaurao Police Constable attached to
that police station was my friend. On the next day at about
11-00 a.m. Masi, her husband and ¾ others came to the
police station. There was one Sarpanch who was her father-
in-law. That Sarpanch told that I lodged report against them,
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therefore, now they will lodge report against us. Then, they
lodged report in the police station. Then, I was arrested.”
5. Shri R.M. Daga, learned Counsel would further submit that
the failure of the prosecution to examine the investigating officer has
caused an obvious prejudice to the accused. The learned Sessions
Judge has held the failure of the accused to bring on record the report
lodged at the police station as an incriminating circumstance. Shri
R.M. Daga, learned Counsel would submit that firstly, in the teeth of
the admission by the witnesses that they lodged the report in view of
the report lodged by the accused, and but for the report lodged by the
accused the prosecution witnesses would not have reported the
incident, the failure to bring on record the contents of the report
lodged by the accused are of little significance. Secondly, if the contents
of the oral report are indeed of significance, as is observed by the
learned Sessions Judge, the accused are put to prejudice due to the
non-examination of the investigating officer, is the submission.
6. Scrutiny of the evidence would reveal that the submission
of Shri R.M. Daga, learned Counsel that the report (Exhibit 7) was
lodged by P.W.1, is lodged as a counter-blast, is not without substance.
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P.W.1-Penta, who lodged the report, admits thus in the cross-
examination :
“Accused went to the police station saying that he is going to
lodge report about beating. It is true that I feel that police
will take action against me on the report of the accused,
therefore, in morning, I lodged report.”
7. In view of the admission reproduced supra, the evidence of
P.W.1 and P.W.2 must be tested with extreme caution. The version of
the prosecutrix is that her husband P.W.1 would not have lodged the
report, had the accused not lodged the report. The prosecutrix admits
in so many words that it was only because the accused threatened that
he would be lodging a report that the prosecutrix and her husband
lodged the oral report (Exhibit 7). Concededly, other than the evidence
of P.W.1 and P.W.2 the only incriminating circumstance according to
the learned Sessions Judge is an injury noticed on the penis of the
accused.
8. It would be apposite first to consider the evidence of the
prosecutrix (P.W.2). She states that the accused and his two associates
visited one Gudda Kulmethe, they had dinner at Gudda’s house, since
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proper sleeping arrangement was not available at the house of Gudda,
the accused and his two associates came to the house of the prosecutrix
to spend the night. The accused and his two associates slept on one cot
in one room, the husband slept on a cot in the other and the
prosecutrix slept on the ground in another room. At 12-00 p.m., the
accused came near the prosecutrix, caught hold of both hands and
pressed her mouth, removed her petticoat and subjected her to sexual
intercourse. The prosecutrix awoke, caught hold of the hair of the
accused and shouted. The accused got up from the person of the
prosecutrix, her husband awoke and gave two slaps to the accused.
The accused disclosed to her husband that the accused was committing
sexual intercourse with her. The prosecutrix states that since she was
menstruating, she was sure that the person committing the sexual
intercourse was not her husband and it was then that she caught hold
of the hair of the person and called her husband. She states that when
her husband awoke, she was holding the accused by the hair. She
states that it was after her husband awoke that the lamp was lit and it
was noticed that the person was committing the sexual intercourse was
accused. She states that after her husband beat the accused, he
(accused) went to the police station. The prosecutrix and P.W.1 went
to the police station in the morning and lodged the report.
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In the cross-examination, P.W.2 states that she and her
husband were sleeping in the same room at a distance of five feet from
each other. She at later stage states that her husband (P.W.1) was
sleeping at a distance of 1 foot from her. She states in the cross-
examination that a person moved her saree upwards and penetrated his
penis in her vagina twice. It was after the two penetrations that she
awoke, is the deposition. She reiterates that when her husband awoke,
she had caught hold of the hair of the accused.
9. The admission extracted that it was only in view of the
accused lodging the report that she and her husband lodged the report,
is noted supra.
10. P.W.1, the husband of the prosecutrix, is the informant.
According to P.W.1, his house comprises two rooms, the accused and
his two associates slept on wooden cot and he slept on a separate
wooden cot. The prosecutrix slept on the ground in another room
besides the partition. P.W.1 states that the incident occurred at 11-00
p.m., since his wife shouted, he went near her and saw the accused
present near the prosecutrix. P.W.1 inflicted two to three slaps to the
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accused, is the deposition. He states that P.W.2 disclosed that the
accused came near her, caught hold of her hands, legs and pressed her
mouth and committed sexual intercourse forcibly. P.W.1 states that the
accused and his two associates went to the police station.
The evidence of P.W.1 and the evidence of P.W.2 is not
consistent inasmuch as according to P.W.1, when he awoke and went
near P.W.2, the accused was present near P.W.2. P.W.1 does not
support the version of P.W.2 that she was holding the accused by hair
when her husband (P.W.1) came near her. In the cross-examination,
P.W.1 admits that the distance between the cot on which he was
sleeping and his wife (P.W.2) was one foot.
11. P.W.1 admits that since he felt that the police will take
action on the report of the accused, he lodged the report in the
morning. Concededly, the prosecution case substantially, if not
entirely, hinges on the evidence of P.W.1 and P.W.2. The forensic
evidence on record does not take the case of the prosecution any
further. The learned Sessions Judge has recorded a finding that the
injury noticed on the penis on the accused, in the absence of any
explanation, is suggestive of rape. The doctor, who examined the
accused was not examined as a witness, since the medical certificate
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(Exhibit 15) was admitted by the accused. Injury 3, which is referred
by the learned Sessions Judge as a strong piece of evidence, is
described thus :
“Scab over right side of penis in unstretched condition of
skin length with profuse behind glans in mid length of few
size having scab of blackish red colour and is hard.
Duration before 48 hours.
Healing period in normal course 6-7 days.”
12. Scab is a development during the wound healing
reconstruction face. The wound itself may be caused in several diverse
circumstances. The injury, ultimately would only serve as a
corroborative piece of evidence and if the evidence of P.W.2 prosecutrix
is not found by this Court to be implicitly reliable or if the version of
the prosecution is found to be incredible and unbelievable, as is
vehemently argued by Shri R.M. Daga the said injury would cease to be
of any significance, particularly since the duration of the injury is
opined to be before 48 hours. The accused was medically examined at
5-30 p.m. on 16-10-1993 within 41.30 hours of the alleged incident.
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13. P.W.1 is concededly not a witness to the entire incident.
According to P.W.1, when he went near P.W.2 hearing her shouts, the
accused was standing near his wife (P.W.2). P.W.2 states in the cross-
examination that it was only after the second penetration of the penis
in her vagina that she awoke. She states that when she awoke, she
caught the hair of the accused and called her husband. The version of
P.W.2 is that the accused caught hold of her both hands, pressed her
mouth and removed her clothes. However, it is her categorical
assertion that it was only after the second penetration that she awoke.
Shri R.M. Daga, learned Counsel is justified in the submission that the
version of the prosecutrix is doubtful and indeed is rather unbelievable.
Firstly, that the accused, concededly the stranger to the family, would
have the temerity to rape a woman whose husband is sleeping a foot
away, is a version which must be tested with caution. That the
prosecutrix did not awake although her clothes were removed, mouth
was pressed and hands were pressed and she awoke only after the
second penetration of the penis in the vagina, is a version which
borders on unbelievable. The defence of the accused that he was not
oriented since it was dark and as he was not aware of the topography,
he stepped on the person of the prosecutrix, was beaten up and when
he and his two associates left to lodge the report at police station, the
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report (Exhibit 7) was lodged in retaliation, is, in my opinion,
probablised on the touchstone of preponderance of probabilities.
14. In my opinion, the prosecution has not proved the offence
beyond reasonable doubt. Suspicion even a grave suspicion cannot be
the basis of conviction. The accused is entitled to the benefit of the
doubt.
15. The judgment and order impugned is set aside. The
accused is acquitted of the offence punishable under Section 376 of the
IPC.
16. The bail bond of the accused shall stand discharged. The
fine paid by the accused, if any, shall be refunded to him.
17. The appeal is allowed and disposed of.
JUDGE
adgokar
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