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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.115 OF 2016
Pralhad s/o Pundlik Nawade
Age : 24 years, Occu : Driver,
R/o. Manyarkheda, Tq. Bhusawal,
Dist. Jalgaon .. Appellant
Versus
The State of Maharashtra,
Through Varangaon Police Station,
Tq. Bhusawal, Dist. Jalgaon, .. Respondent
…..
Shri. Sunil Koli and Shri S.B. Surse, learned Counsel
for appellant
Mr. A.A. Jagatkar, APP for respondent – State.
…..
CORAM : P.R. BORA, J.
RESERVED ON : 12.03.2018
PRONOUNCED ON : 22.03.2018
JUDGMENT :
1. The appellant has filed the present appeal against
the judgment and order passed by the Additional Sessions
Judge, Bhusawal in Sessions Case No.401 of 2014 decided on
30th September, 2015. Vide the impugned Judgment, the
appellant has been convicted for the offences punishable under
Sections 376 and 451 of Indian Penal Code (hereinafter referred
to as the ‘I.P.C.’) and is sentenced to suffer rigorous
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imprisonment for 7 years with fine of Rs.5,000/-, in default to
suffer simple imprisonment for 6 months for the offence
punishable under Section 376 of I.P.C. and to suffer rigorous
imprisonment for 1 year with fine of Rs.1,000/-, in default to
suffer simple imprisonment for 2 months for the offence
punishable under Section 451 of I.P.C. Both the sentence are
directed to run concurrently. Appellant is hereinafter referred to
as the ‘accused’.
2. Briefly stated, it was the case of the prosecution that,
when the prosecutrix had been to village Manyarkheda at her
parents house and resided there for the period of 5-6 months, on
one day when the prosecutrix was alone, the accused entered
into the house in the midnight and committed rape on the
prosecutrix and threatened her not to disclose the said incident
to anyone or else he will kill her. It was further alleged that,
keeping the prosecutrix under threat the accused repeatedly had
forcible sexual intercourse with her. The prosecutrix did
not disclose about the alleged incident to her parents or
anyone from her parental side till she was at village
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Manyarkheda. The prosecutrix then returned to her matrimonial
house. 8-10 days thereafter she started receiving some pain in
her abdomen. She was therefore taken by her in-laws to the
government hospital at Jalgaon and thereafter to one private
hospital. On her medical examination, it was revealed that, the
prosecutrix was pregnant and was carrying the pregnancy of
around 4 months. The prosecutrix then disclosed that, the
accused had committed rape on her and because of that, she has
incurred the pregnancy. Thereafter the prosecutrix accompanied
by her in-laws went to Police Station, Varangaon and lodged the
report against the accused on 27.01.2014, whereupon the
investigation was set in motion.
3. During the Course of the investigation, blood
samples were taken of the prosecutrix, the feotus in the womb of
the prosecutrix, the accused and the husband of the prosecutrix
for the purpose of conducting the DNA test. In the said test, it
was revealed that, the accused was the biological father of the
feotus in the womb of the prosecutrix. Before receiving of the
DNA test report the other investigation was completed and the
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charge-sheet was also filed against the accused for the offences
under Sections 376, 452 and 506 of I.P.C. in the Judicial
Magistrate First Class Court at Bhusawal. Since the offences
charged against the accused was exclusively triable by the Court
of Sessions, the learned J.M.F.C. At Bhusawal committed the said
case to the Sessions Court. After committal the Additional
Sessions Judge at Bhusawal framed the charge against the
accused on 24.07.2014. The accused did not plead guilty and
claimed to be tried.
4. In order to prove the guilt of the accused, as many as
8 witnesses were examined by the prosecution. The defence of
the accused was of total denial. The accused did not enter into
the witness box nor examined any witness in his support. The
learned Additional Sessions Judge on his assessment of the oral
as well as documentary evidence brought before him held the
accused guilty for the offences punishable under Sections 376
and 451 of I.P.C. and sentenced him to suffer imprisonment as
noted herein above.
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5. The learned Counsel appearing for the appellant
assailed the impugned Judgment on various grounds. Learned
Counsel submitted that, from the evidence which has come on
record, though it was quite evident that, the prosecutrix was a
consenting party, learned Additional Sessions Judge has
erroneously held the accused guilty for an offence under Section
376 of I.P.C. Learned Counsel submitted that, inordinate delay
committed by the prosecutrix in making the complaint against
the accused has raised serious doubts about the allegation made
by the prosecutrix that, accused had forcible sexual intercourse
with her. Learned Counsel further submitted that, the
prosecution has utterly failed in proving that, the prosecutrix
was threatened by the accused and she therefore could not
lodge the report immediately. Learned Counsel submitted that,
the evidence on record sufficiently demonstrates that, before
lodging the report against the accused there were certain
opportunities for the prosecutrix when she could have very well
disclosed that, the accused had forcible sexual intercourse with
her but she did not make any grievance and remained silent.
Learned Counsel submitted that, silence on part of the
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prosecutrix leads to an inference that, the prosecutrix had
willingly submitted herself for sexual intercourse with the
accused. The learned Counsel further submitted that, the trial
Court has drawn some unwarranted inferences though there was
no evidence in that regard. Learned Counsel, therefore prayed
for setting aside the impugned Judgment and order and
consequently to acquit the accused of the charges levelled
against him.
6. Shri A.A. Jagatkar, learned APP appearing for the
State supported the impugned Judgment and order. Learned
APP submitted that, DNA report has conclusively proved that,
the accused did have forcible sexual intercourse with the
prosecutrix. Learned APP submitted that, the prosecutrix has
given a complete account of the alleged misdeeds committed by
the accused. He further submitted that, nothing has been
brought on record to disbelieve the testimony of the prosecutrix.
The learned APP further submitted that, because of the report of
DNA test, the guilt of the accused has been fully proved and
learned trial Judge has therefore rightly held the accused guilty
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for the offence under Section 376 and 451 of I.PC. Learned APP,
therefore, prayed for dismissal of the appeal.
7. I have carefully considered the submissions made by
the learned Counsel appearing for the appellant and the learned
APP. I have also perused the impugned Judgment and the
evidence on record. Perusal of the impugned Judgment reveals
that, the learned Additional Sessions Judge has fully relied upon
and believed the testimony of the prosecutrix in holding the
accused guilty for the offences punishable under Sections 376
and 451 of I.P.C. It further appears that, the DNA test report had
also much weighed in the mind of the learned additional
Sessions Judge while holding the accused guilty for the
aforesaid offences.
8. On 27.01.2014 when the prosecutrix lodged the
report against the accused in the Police Station at Varangaon,
she was carrying pregnancy of around 4 months. As was alleged
by the prosecutrix, she had incurred the pregnancy because of
the rape committed by the accused on her. The question
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therefore arises why the prosecutrix did not lodge the report
against the accused for the period of about 4 months. As per the
version of the prosecutrix, she did not lodge the report because
of the threat given to her by the accused that, he will kill her if
she makes any complaint against him. The accused had denied
that, he had sexual intercourse with the prosecutrix without her
consent. The accused had also denied that, any such threat was
given by him to the prosecutrix at any point of time.
9. In a case of rape the most important witness is
always the prosecutrix and if her testimony inspires confidence
and appears fully believable the conviction of the accused can be
based on the sole testimony of the prosecutrix without seeking
any corroboration to her version. It is also a well settled
principle of law that, the occurrence of any offence is to be
reported as early as possible. The delay in lodging the FIR
provides a legitimate basis to suspect the truthfulness in the
allegations made. It is further true that, delay in filing the FIR
in cases of rape is not to be viewed with the same sensitiveness
as in other cases and delay in lodging the FIR itself may not be
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sufficient to discard the prosecution case if it relates to offence
of rape.
10. In the instant case admittedly the delay of about 4
months has occurred in lodging the FIR. The only reason which
has been assigned by the prosecution to justify the said delay is
that, the accused had threatened the prosecutrix that, he would
kill her if she discloses the alleged occurrence or makes any
complaint against him.
11. It has to be therefore ascertained from the evidence
on record whether the threat which the prosecutrix had
complained of was in fact given by the accused and whether it
was such intimidation which prevented the prosecutrix from
making any disclosure of the occurrence for more than 4
months.
12. It has to be stated that, the charge of criminal
intimidation was also framed against the accused and in that
regard a specific point was framed by the learned trial Judge
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while delivering the Judgment in the matter. The said point no.3
reads thus :
“3. Whether prosecution proves that at above
time, place and date, accused committed criminal
intimidation by threatening prosecutrix to kill her,
caused alarm to her and thereby committed offence
punishable u/s 506 of IPC?”
13. The learned trial Judge has answered the said point
‘in negative’. In para-33 the discussion is made by the learned
trial Judge as to why he has answered the said point in negative,
which reads thus :
“33. It is said that prosecutrix is slow in
understanding. She said that accused gave threat
that if she tells anyone, he would kill her. She did
not tell about the incident to anyone. Except her
words, there is no other evidence. I come to the
conclusion that offence punishable u/s 506 IPC is not
proved against the accused. I answer point No.3 in
negative.”
14. Surprisingly the learned trial Judge while deciding
point no.1 relating to offence under Section 376 of I.P.C. had
made a one line observation that, ‘there is explanation for delay
in lodging the FIR and not complaining to the relatives
immediately’. I reiterate that, threat given by the accused was
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the only reason given by the prosecution for occurrence of delay
in lodging the FIR. The learned trial Judge has in clear terms
held that, the prosecution has failed in proving that, there was
any criminal intimidation from the side of the accused. As such,
the one line finding as above recorded by the trial Court that,
there is explanation for delay in lodging FIR cannot be
sustained. There is no basis for recording such conclusion by the
learned trial Judge.
15. Delay occurred in lodging the FIR was liable to be
explained by the prosecutrix. In her testimony before the Court,
the prosecutrix has deposed about only one instance that
occurred in the midnight, however, on which day it occurred has
not been stated by the prosecutrix. The prosecutrix has testified
that, on that day after having committed rape on her the
accused gave threat to her not to disclose the said incident to
anybody otherwise he will kill her. In her entire further
testimony there is no even iota of evidence that, at any time
after the alleged occurrence the accused ever met her,
threatened or intimidated her. The prosecution has not brought
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on record any evidence to show that, there was a continuous
threat by the accused, which prevented the prosecutrix from
making any disclosure of the alleged occurrence or making any
complaint against the accused.
16. For a moment even if it is accepted that, the
prosecutrix was really under the threat when she was residing at
Manyarkheda, nothing has been brought on record by the
prosecutrix as to what prevented her from lodging report
against the accused immediately after she returned to her
husbands house. It further appears improbable and
unconscionable that, the prosecutrix could not have disclosed
the said fact even to her husband and that even at that time the
threat of the accused was persisting. As has come on record, the
prosecutrix started suffering pains in her abdomen few days
after she returned to her matrimonial house. At that time the
prosecutrix was in 4th month of her pregnancy. It cannot be
digested that, the prosecutrix could not have realized that, the
pains in her abdomen were having nexus with her pregnancy.
However, it is the matter of record that, even at that time the
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prosecutrix did not disclose to her husband or her in -laws that,
she was sexually abused by the accused.
17. The evidence on record further shows that, after
prosecutrix complained about pains in her abdomen, she was
taken to Civil Hospital at Jalgaon for her medical examination
on 25.01.2014. It is not in dispute that, even at that time the
prosecutrix did not unveil that, she was subjected to rape by the
accused while she was at her parental house. It has come on
record that, VPT test was done at Civil Hospital, Jalgaon and the
said test came positive. The concerned Medical Officer at that
time opined that, the prosecutrix was pregnant. Surprisingly
even at that time also the prosecutrix did not utter a single word
that, she was sexually abused by the accused.
18. It is the further matter of the record that, the
prosecutrix was then taken to the sonography centre of
Dr. Manali Chaudhari at Aayush Hospital, Jalgaon and the
sonography test was done. Dr. Manali Chaudhari then certified
that, the prosecutrix was carrying pregnancy of 15 weeks and 1
day. It is undisputed that, before conduction of the sonography
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test also the prosecutrix did not tell to her husband or her
in-laws about the rape committed on her by the accused. The
evidence on record shows that, only after it was diagnosed by
Dr. Manali Chaudhari after conduction of the sonography test
that the prosecutrix was carrying pregnancy of 15 weeks, for the
first time the prosecutrix disclosed that, the accused, who was
the friend of her brother had committed rape on her and that
the foetus in her womb was the “sin” of the accused.
19. From the prosecution material on record, it does not
appear that, the prosecutrix was noticed to be under great fear
while unveiling the fact that the accused had committed rape on
her. It is also not the case that prosecutrix was reluctant to
disclose the name of the accused as a culprit. In the
circumstances, the question arises that the fact which the
prosecutrix did disclose after it was exposed that, she was
pregnant, why was not disclosed by her at the earlier occasions.
Even if it is accepted that, immediately after the occurrence it
could not have become possible for the prosecutrix to disclose
about the alleged occurrence to her parents or to her brother, in
no case it can be accepted that, the said threat was persisting
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even after she returned to her matrimonial house. After
returning to her matrimonial house the prosecutrix could have
certainly disclosed about the alleged occurrence when she
started pain in her abdomen. She could have also disclosed the
said fact before her medical examination while giving the history
of pain. It was also possible for her to disclose the said fact
before going for the sonography test. The evidence on record
shows that, the prosecutrix all the while kept silence and
disclosed about the occurrence for the first time when doctor
Manali diagnosed that, she was pregnant and was carrying
pregnancy of 15 weeks.
20. In absence of any evidence to show that, the alleged
threat by the accused which the prosecutrix complained of,
continued to have its influence on her even when she found
herself pregnant and that such state of influence continued so
much that, she could not disclose the occurrence to anyone,
even within her family, for long 4 months until time she could no
longer keep the event a secret, because of her 4 months
pregnancy, the possibility of the accused having sexual
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intercourse with the prosecutrix with her consent is difficult to
be ruled out. As was argued by the learned Counsel for the
accused, from such conduct of the prosecutrix, it can be
reasonably inferred that, the prosecutrix had willingly submitted
herself for sexual intercourse with the accused. When such was
the nature of evidence, the learned trial Judge ought to have
given the benefit of doubt to the accused and in no case could
have convicted the accused either for the offence under Section
376 of I.P.C. or under Section 451 of I.P.C.
21. There appears substance in the argument advanced
by the learned Counsel for the accused that, some untenable
inferences are drawn by the learned trial Judge. It is not
understood as to on what basis learned trial Judge has observed
that, the inference can be drawn that, the prosecutrix was not of
normal understanding and that is why she did not immediately
complain to anyone. It is nowhere the case of the prosecution
that, the prosecutrix was not having normal understanding. On
the contrary, her brother has candidly deposed that, the
prosecutrix was quite normal. From the evidence on record also,
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no such inference is liable to be drawn. In her testimony before
the Court, the prosecutrix appears to have correctly answered
the questions put to her in the examination-in-chief as well as in
her cross-examination. It is nowhere observed by the trial Judge
that, the prosecutrix did not understand any question put to her
either in her examination-in-chief or in cross-examination or that
she was taking more time in understanding the questions put to
her or that, there was a general impression formed after having
observed the demeanor of the witness that, she may not be of
normal understanding. It is thus evident that, the inference as
has been drawn by the learned trial Judge that, the prosecutrix
is not of normal understanding and that was the reason that she
did not immediately make the complain against the accused is
without any basis and in fact contrary to the evidence on record.
22. After having considered the entire material on
record, it is revealed that, the prosecution has failed in brining
on record any unimpeachable evidence proving the guilt of the
accused. The evidence which has been brought on record is not
free from doubt. It would be unsafe to confirm the order of
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conviction which is based on such doubtful evidence. Hence,
the following order.
ORDER
i) The Judgment and order passed by Additional Sessions
Judge, Bhusawal on 30th September, 2015 in Sessions Case
No.401 of 2014 is quashed and set aside.
ii) The appellant – accused namely Pralhad s/o. Pundlik
Nawade is acquitted of the offences under Section 376 and 451
of Indian Penal Code charged against him. He be released
forthwith, if not required in any other case or crime.
iii) The fine amount paid, if any, by the appellant – accused
shall be refunded to him.
. The appeal thus stands allowed in the aforesaid terms.
(P.R. BORA)
JUDGE
ggp
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