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Pralhad S/O. Pundlik Nawade vs The State Of Maharashtra on 22 March, 2018

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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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