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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO. 143 OF 2016

Rahul s/o Ashok Raut,
Aged about 20 years,
Occupation : Nil,
Resident of Tilak Nagar,
Brahmapuri, District Chandrapur.
(At present lodged in Central
Prison Nagpur). … APPELLANT/
ACCUSED
V E R S U S
State of Maharashtra,
through Police Station
Officer, Police Station,
Brahmapuri, Tahsil – Brahmapuri,
District : Chandrapur. … RESPONDENT
——————————————————————————————-
None for the appellant.
Shri N. R. Rode, Additional Public Prosecutor for respondent-State.
——————————————————————————————-

CORAM:- R. K. DESHPANDE
ARUN D. UPADHYE, JJ.

Date of reserving the Judgment : 25/09/2018
Date of pronouncing the Judgment : 01/10/2018

JUDGMENT : (PER ARUN D. UPADHYE, J.)

1. Being aggrieved by the Judgment and order dated

03/11/2015 passed by the Additional Sessions Judge, Chandrapur

in Special (Child) Case No.5/2013, the appellant-accused has

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preferred this appeal. The appellant – accused is convicted for the

offence punishable under Section 376 (2) (i), (j), 376-D of the

Indian Penal Code and sentenced to suffer Rigorous Imprisonment

for a period of 20 (Twenty) years and to pay a fine of Rs.10,000/-

(Rs.Ten thousand only). In default of payment of fine, he shall

suffer Rigorous Imprisonment for 90 days. He is also convicted for

the offence punishable under Section 3 r/w 4 of the Protection of

Children from Sexual offences Act, 2012 but no separate sentence

is passed against him. The accused is also convinced under Section

342 r/w Section 34 of Indian Penal Code and sentenced to suffer

Rigorous Imprisonment for a period of one year and for the

offence punishable under Section 363 r/w 34 of Indian Penal Code

and sentenced to suffer Rigorous Imprisonment for a period of 3

(three) years and to pay fine of Rs.500/- (Rs. Five Hundred only).

In default of payment of fine, he shall suffer Rigorous

Imprisonment for 15 days. All the substantive sentences were

directed to run concurrently.

The brief facts of the case are as under :-

2. The complainant – Vidya Vijay Thakare, is the

mother of the victim minor girl, who lodged the report at Police

Station, Brahmapuri on 14/07/2013. According to the prosecution

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case, the complainant along with her husband and daughter –

Vaishnavi Vijay Thakare, aged about 12 years and one son, aged

about 14 years are residing at Tilak Nagar, Brahmapuri and doing

labour work. According to the prosecution, the incident took place

on 08/07/2013 at about 5.30 p.m. On that day, the victim came to

the house from the school at about 12.00 noon and thereafter,

went to the field for grazing buffalo and returned to the house at

about 5.00 p.m. When she was watching TV and alone in her

house at about 5.30 p.m., one Montu came to her house and said

her to come for attending the Birth Day of Rahul Raut. The victim

therefore, went along with Montu for attending the Birth Day to

his house. According to the prosecution case, the accused Rahul

Raut was hidden behind the door in the house of Montu. When

victim went in the house, the accused gagged her mouth by

handkerchief and forcibly got her to sleep on the bed. Thereafter,

he tied her both the hands and removed clothes and committed

forcible sexual intercourse with her. Thereafter, juvenile in conflict

with law also committed forcible sexual intercourse with her. After

committing rape, they released her and brought to her house.

3. The prosecution further came with a case that on

13/07/2013 after taking dinner at about 9.30 p.m., the victim

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disclosed incident to her mother. Thereafter, on the next day i.e.

on 14/07/2013, the complainant narrated the incident to her

husband and thereafter, lodged the report in the Police Station,

Brahmapuri. The police registered the offence vide Crime

No.112/2013 under Sections 363, 342, 376 (2)(f)(g)(d) of Indian

Penal Code r/w Sections 4 and 6 of Protection of Children from

Sexual Offences Act, 2012.

4. During the course of investigation, the police

prepared spot panchnama vide Exh.38, The victim was referred for

medical examination. The police seized samples of vaginal swab

and blood of the victim. The accused came to be arrested in the

crime and referred for medical examination. The police also

collected samples of blood and clothes of the accused. The seized

property was sent to the Chemical Analyzer for analysis. During

the course of investigation, police recorded the statements of

witnesses. After completion of necessary investigation of the case

and after receipt of medical certificate and C.A. reports on record,

submitted charge sheet against the accused.

5. The accused appeared before the Special Court and

charge came to be framed against him for the aforesaid offences.

The contents of the charge were read over to him in vernacular.

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He pleaded not guilty and claimed to be tried. His defence is of

total denial.

6. After recording the evidence in the matter and after

hearing both the sides, the learned Additional Sessions Judge,

Chandrapur has convicted and sentenced the accused for the

aforesaid offences. The appellant – accused has assailed the said

Judgment and order of conviction amongst other grounds

mentioned in the appeal memo.

7. We have heard Shri Rode, learned A.P.P. for the

State at length. He submitted that the testimony of the victim is

corroborated by medical evidence and therefore, the learned

Additional Sessions Judge was right in convicting the accused for

the offences charged. He further submitted that the victim was

minor girl of 11 years and studying in 6 th Std. is proved by the

prosecution. He further submitted that the present accused along

with juvenile in conflict with law have committed rape on

08/07/2013. The victim is a minor girl of 11 years and therefore,

she could not disclose the incident to her mother immediately. The

victim disclosed the incident to her mother on 13/07/2013 and on

the next day i.e. on 14/07/2013, the complaint was lodged in the

police station. The delay of 6 days is, therefore, not fatal to the

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prosecution. He further submitted that medical evidence on record

shows that hymen was torn and there was pain in genital of the

victim. The appeal filed by the accused is having no merit and

therefore, be dismissed.

8. With the help of learned A.P.P., we have perused

the evidence on record. The prosecution has strongly relied upon

the evidence of PW-2 – Vaishnavi Vijay Thakare, the victim and

the medical evidence on record. PW-2 – Vaishnavi Thakare in her

evidence has deposed that in the last year, she was studying in

Lokmanya Tilak Vidyalaya, Bramhapuri in 6th Std. On 08/07/2013

when she returned from the school at about 12.00 noon and went

to the field for grazing buffalo. She returned to the house at about

5.00 p.m. from the field. When she was watching TV, Montu came

to her house and told that there is Birth Day of Rahul Raut and

asked her to accompany with him. She, therefore, went to the

house of Montu. However, nobody was present there. The accused

Rahul Raut had concealed himself behind the door and came

behind her and tied cloth around her mouth and took her on cot.

Thereafter, they both tied her hands and legs with string and

removed her clothes from her person. She also deposed that

thereafter, Rahul Raut committed sexual intercourse with her and

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thereafter, Montu committed sexual intercourse with her. Both

have given threat to her to kill and therefore, she did not disclose

the incident to her parents. According to her, thereafter 2 – 3 days,

she disclosed the incident and thereafter, her mother lodged the

report in the police station.

9. She was cross-examined at length. In her cross-

examination, she stated that she did not enquire from

neighbouring friends about the Birth Day. She also stated that she

did not enquire how Birth Day of Rahul Raut is celebrated at the

house of Montu. In the cross-examination, it was suggested to her

that she was not called for Birth Day by Montu and deposing

falsely, however, she denied. In the cross-examination, certain

omissions were brought on record. She has not stated before the

police in her statement that her legs were tied and she was

threatened to kill, if she discloses about the incident. She has not

stated before the police that, after 2 – 3 days, she told the incident

to her mother. She has not stated before the police that she along

with mother, went to the house of Montu and her mother asked

him about chocolate and scolded him. She has not stated that her

father brought Rahul Raut and asked about the incident in her

presence. All these omissions are vital in nature and therefore, her

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testimony creates doubt about the alleged incident. Thus, the story

put-forth by her that she went along with Montu for attending

Birth Day of Rahul Raut in the house of Montu without enquiry is

also not probable one. The alleged incident took place at 5.30 p.m.

and no resistance or hue and cry is made by her. The story put-

forth that her mouth was tied by handkerchief and hands and legs

were tied by string also not probable one as the omission is

brought on record to that effect. There is no oral evidence on

record to corroborate her version that she went to the house of

Montu on that day. Her sole testimony thus, cannot be safely

relied upon as the same does not inspire confidence of the Court.

10. As regards the medical evidence is concerned, the

prosecution has examined PW-12 – Dr. Sapna Haridas Tallarwar at

Exh.64. The doctor in her evidence has deposed that on

15/07/2013, she was Medical Officer at Government Hospital,

Chandrapur. She examined victim Vaishnavi Thakre. On

examination, she found old healed tear of hymen at 3 O’clock

position, slight congestion around hymen and was tendered to

touch. She was having pain in genital area. She was not co-

operating for P/V examination. The Medical Certificate issued by

her is at Exh.65. She also deposed that the police has referred

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some queries for opinion and she has answered the same that the

victim is capable of sexual intercourse. However, no comments

about commission of sexual intercourse as patient was not co-

operating due to pain in genital area. No injuries were seen over

her body parts. She also stated that no extra genital injuries are

seen.

11. The doctor was cross-examined at length. In her

cross-examination, she admitted that hymen can be torn during

exercise, cycling, etc. She also stated that if two able-bodied

persons by tying hands of 12 year girl commit forcible sexual

intercourse, then there should be injuries on their hands and

injuries may be to her genital organ and the injuries can heal

within 5 – 6 days. The Injury Certificate is at Exh.65. Considering

the evidence of the doctor, one thing is clear that the victim was

not co-operating and therefore, no specific opinion was given by

the doctor about the sexual intercourse committed on her. The fact

that the hymen was torn itself is not sufficient to hold that there

was sexual intercourse with her. The medical evidence thus, is not

sufficient to corroborate her version that she was sexually

assaulted on 08/07/2013.

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12. The prosecution has filed C.A. reports on record at

Exhs.48, 49 and 50. However, neither the blood nor semen was

detected on the clothes of the victim as well as accused. No semen

is detected on vaginal swab of the victim. The blood group of the

victim was “A”. Neither blood nor tissue is detected on the nail

clipping of the accused. No semen is detected on pubic heir. Blood

Group of the accused was not detected as inconclusive. The C.A.

reports thus, are not helpful to the prosecution to connect the

accused for the offences charged.

13. The complainant is the mother of the prosecutrix

who lodged the report in the Police Station on 14/07/2013. The

alleged incident took place on 08/07/2013 as per the version of

the complainant, the victim disclosed the said incident to her on

13/07/2013 and on the next day i.e. on 14/07/2013, she lodged

the complaint. In the evidence of the complainant, she has stated

that when she returned to the house at about 7.30 p.m. on

08/07/2013, her daughter was present and watching TV and she

was in good condition. The story put-forth by her that on

13/07/2013, the victim narrated the incident to her and

thereafter, on the next day, the complaint was lodged is not

believable. The delay of 6 days is not explained properly and

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certainly, it is fatal to the prosecution case. No reason is given by

the prosecution why the victim has not disclosed the incident to

her parents immediately. On the facts and circumstances of the

case, we are of the considered view that the prosecution story put-

forth against the accused is not believable and cannot be accepted.

14. The prosecutrix was 11 years at the time of incident

and studying in 6th standard was not seriously disputed by the

accused. The prosecution has examined PW-6 – Ku. Prajakta

Ashokrao Adgokar who is Secretary of Gram Panchayat, Kothulana

(Makta), Tah. Bramhapuri and as per the Register of Death and

Birth of Gram Panchayat, the date of birth of child victim is

31/12/2002. The Birth Certificate is at Exh.27. There is no cross-

examination to this witness and therefore, the prosecution has

established that the victim was minor on the day of incident.

However, the prosecution not able to connect the accused for the

alleged offence of rape. The learned Additional Sessions Judge has

not considered the evidence on record in proper perspective and

wrongly convicted the accused for the offences charged. The

evidence of victim is not cogent, trustworthy and does not inspire

confidence of the Court. The said is not corroborated by medical

evidence on record as well as C.A. reports and therefore, the

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conviction of the accused for the aforesaid offences is illegal and

liable to quashed and set aside.

15. As regards the presumption under Section 29 of the

Protection of Children from Sexual Offences Act, 2012 is

concerned by adducing evidence, the prosecution has not

established the case against the accused and therefore, no

presumption can be drawn against the accused under the said

section that he has committed the offence. Initially, burden is on

the prosecution to establish the case beyond doubt and the said

burden never shifts on the accused. The prosecution has not

discharged his burden and therefore, question of rebuttal of

presumption does not arise. The learned Additional Sessions

Judge, thus committed an error while convicting the accused for

the aforesaid offences. The impugned Judgment requires

interference of this Court and is liable to be quashed and set aside.

Hence, we proceed to pass the following order.

ORDER

i) The appeal is allowed.

ii) The impugned Judgment and order dated

03/11/2015 passed by the Additional Sessions Judge,

Chandrapur in Special (Child) Case No.5/2013 is hereby

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quashed and set aside.

iii) The accused – Rahul Ashok Raut is hereby

acquitted under Section 235 (1) of the Cr.P.C. of the

offences punishable under Sections 376 (2) (i)(j), 376-

D, 342, 363 r/w Section 34 of the Indian Penal Code.

iv) The accused – Rahul Ashok Raut is hereby

acquitted under Section 235 (1) of the Cr.P.C. of the

offence punishable under Section 3 r/w 4 of the

Protection of Children from Sexual Offences Act, 2012.

v) The accused – Rahul Ashok Raut is in Jail.

He be released forthwith, if he is not required in any

other case or crime.

vi) The fine amount, if paid, be refunded to

the accused after the appeal period is over.

vii) Muddemal property being worthless be

destroyed after the appeal period is over.

viii) The Record and Proceeding be sent to

Trial Court immediately.

(Arun D. Upadhye, J.) (R.K. Deshpande, J.)

Choulwar

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