1 CRI.APPEAL NO.72 OF 2017
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.72 OF 2017
Sambhaji Sopan Bobade,
Age 29 years, Occu: Agril.,
R/o Shirshi (Bk),
Sonpeth, Dist. Parbhani.
…APPELLANT
VERSUS
The State of Maharashtra
Through the Police Station Sonpeth,
Dist. Parbhani.
…RESPONDENTS
…
Shri S.V.Mundhe, Advocate for appellant.
Shri S.P.Tiwari, APP for respondent State.
…
CORAM: P.R. BORA, J.
***
Date of reserving the judgment:22/9/2017
Date of pronouncing the judgment: 28/11 /2017
***
JUDGMENT:
1. The appellant has filed the present appeal against
the judgment and order passed by the Additional Sessions
Judge, Gangakhed, in Special (POCSO) Case No.03/2016.
The appellant has been convicted by the learned Special Judge
for the offenses punishable under Sections 452 and 376 of IPC
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and is sentenced to suffer rigorous imprisonment for seven
years for the offense punishable under Section 376 of IPC with
fine of Rs.1,000/-; in default, to suffer further rigorous
imprisonment for three months, and rigorous imprisonment for
one year for the offense punishable under Section 452 of IPC
with fine of Rs.500/-; in default, to suffer further rigorous
imprisonment for one month.
2. It was the case of the prosecution that on 22nd of
December, 2015, the appellant, who is hereinafter referred to
as the accused, dragged the prosecutrix, who was cleaning
utensils infront of her house, situated at village Shirsi, along
with her sister, namely, Dipali, and forcibly entered in the
house of the prosecutrix along with the prosecutrix, bolted the
house from inside and committed rape on the prosecutrix.
The act of the accused was resisted by the prosecutrix by
raising shouts. Hearing the shouts of the prosecutrix, PW 3,
namely, Kondabai, along with one Mirabai, who were stated to
be neighbours, reached to the house of the prosecutrix and
compelled the accused to open the door of the house and
brought the accused out of the house. The persons viz.
Harshal and Pinnu, then took away the accused from there.
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3. At the relevant time, the mother and father of the
prosecutrix both were not at home. After they returned to
home in the evening, prosecutrix narrated the incident to her
mother and then on 24th of December, 2015, report was
lodged at Sonpeth Police Station in regard to the alleged
incident against the accused whereupon the investigation was
initiated. Initially, the offense was registered under Section
354 of IPC and 7 and 8 of the Protection of Children from
Sexual Offenses Act,2012 ( hereinafter referred to as the
POCSO Act), however, since the prosecutrix in her statement
recorded by the Police, disclosed that the accused committed
rape on her, offense under Section 376 of IPC and the offenses
under Sections 3 and 4 of the POCSO Act were added against
the accused.
4. The prosecutrix was sent for medical examination
and the medical report in that regard was obtained.
Necessary samples were collected and were forwarded to the
Chemical Analyzer. The accused was arrested and he was
also medically examined. His blood and semen samples were
collected and the same were also sent for chemical analysis.
In the meanwhile, spot panchnama was prepared, the clothes
on the person of the prosecutrix were seized and the
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4 CRI.APPEAL NO.72 OF 2017
statements of the witnesses were recorded. The evidence as
about the age of the prosecutrix was also collected and after
completing the investigation, the chargesheet was filed in the
Special Court at Gangakhed whereupon Special Case No.3/2016
was registered against the accused. The learned Sessions
Judge on 26.7.2016 framed the charge against the accused and
since the accused pleaded not guilty and claimed to be tried,
the trial was proceeded further.
5. In order to prove the guilt of the accused, as many
as 9 witnesses were examined by the prosecution. Accused
denied the charges levelled against him and took a defense that
he was falsely implicated in the crime on account of previous
enmity between him and the father of the prosecutrix. The
accused did not enter into the witness box nor examined any
witnesses in his defense.
6. The learned Sessions Court, after having assessed
the oral as well as the documentary evidence brought on
record, though acquitted the accused from the offenses under
the POCSO Act, held him guilty for the offenses punishable
under Sections 452 and and 376 of the IPC and sentenced him
to suffer the punishments as noted hereinabove. Aggrieved
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thereby, the appellant has preferred the present appeal.
7. Shri S.V.Mundhe, learned Counsel appearing for the
appellant accused, criticized the impugned judgment on several
grounds. Learned Counsel submitted that though there are
several discrepancies as well as omissions in the statements
recorded of the prosecutrix during the course of the trial, the
learned Sessions Court has implicitly relied upon the said
testimony and though there was no corroboration to the facts
stated by the prosecutrix in her testimony before the Court, the
Sessions Court has wrongly held the appellant guilty for the
offenses punishable under Sections 452 as well as 376 of the
IPC and convicted him for the said offenses. Learned Counsel
further submitted that the prosecution did not bring on record
sufficient medical evidence so as to prove that the prosecutrix
was raped by the accused. Learned Counsel further submitted
that the Chemical Analyzer’s reports also do not in any way
indicate the occurrence of rape and, as such, in no case, the
accused could have been convicted for an offense under Section
376 of the IPC.
8. Learned Counsel further submitted that from the
admissions given by PW 3 Kondabai, it is evident that she was
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an interested witness and, as such, her evidence was not liable
to be relied upon. Even otherwise, according to the learned
Counsel, it was not possible for PW 3 Kondabai to view anything
from outside as to what was going on inside the house of the
prosecutrix at the relevant time. Learned Counsel submitted
that, thus, there was absolutely no evidence before the
Sessions Court showing complicity of the accused in the
commission of the alleged crime, however, inspite of that, in a
pre-determined manner, the Sessions Court has convicted the
accused. Learned Counsel, therefore, prayed for setting aside
the impugned judgment and order and, consequently, to acquit
the accused of the charges levelled against him.
9. Learned A.P.P. supported the impugned judgment
and order.
10. I have perused the impugned judgment as well as
the evidence on record. The First Information Report in the
present matter was admittedly lodged by PW 1 Rukhminibai,
who happens to be the mother of the prosecutrix. The alleged
incident happened on 22nd of December, 2015. Rukhminibai
lodged the report of the alleged incident on 24th of December,
2015. It was the first objection raised by the learned Counsel
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for the accused that there was considerable delay in lodging the
report of the alleged incident and the same has not been
explained by the prosecution. Ostensibly, there appears
substance in the objection so raised on behalf of the accused.
However, on perusal of the record, it is revealed that the
complaint so lodged by Rukhminibai was entered in the Police
record of Police Station, Sonpeth, on 00.15 hrs. on 24th
December, 2015. It is, thus, evident that, may be at late
hours but the FIR was practically lodged on 23rd of December,
2015, i.e. on the next day of the alleged incident. When the
FiR was registered at 00.15 hrs., it can be reasonably inferred
that the complainant might be there in the Police Station prior
to few hours of the registration of the said complaint, meaning
thereby, on 23rd December, 2015.
11. Even then, the question would remain why the
complainant waited till night of 23rd of December, 2015, when
the alleged incident had occurred on 22nd December, 2015. It
is true that nothing has been brought on record by the
prosecution to explain the said delay. However, as has been
discussed by the learned Sessions Judge, merely on the said
ground it would be wholly unjust to discard the prosecution
case. As has been held by the Honourable Apex Court in the
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8 CRI.APPEAL NO.72 OF 2017
case of Ravinder Kumar and another Vs. State of Punjab ( 2001
CRI.L.J. 4242), though prompt and immediate lodging of the
FIR is ideal, as that would give the prosecution a twin
advantage; first is that it affords commencement of the
investigation without any time lapse, and second is that it
expells the opportunity for any possible concoction of a false
version. Barring these two plus points, the demerits of the
delayed FIR cannot operate as a fatal to any prosecution case.
12. In the report so lodged by PW 1 Rukhminibai,
admittedly, there was no allegation against the accused that he
committed rape on the prosecutrix. The record reveals that in
her supplementary statement recorded on 26th of December,
2015, Rukhminibai disclosed to the investigating officer that
subsequently, she had come to know from women residing
adjacent to her house, as well as from the disclosure made by
the prosecutrix, that the accused committed forcible intercourse
with the prosecutrix against her will. As has come on record
through the evidence of PI Meena Kardak (PW 7), the
prosecutrix disclosed in her statement recorded by said Meena
Kardak that she was subjected to forcible rape by the accused
and, as such, with the permission of the learned Magistrate,
offense under Section 376 of IPC was added in the crime
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9 CRI.APPEAL NO.72 OF 2017
registered against the accused.
13. In the light of the facts as aforesaid if the testimony
of Rukhminibai (PW 1) is perused, she has not specifically
deposed that the prosecutrix disclosed to her that the accused
committed rape on her. Perusal of the oral evidence of PW 1
Rukhminibai reveals that she has re-narrated the facts which
were allegedly stated to her by the prosecutrix. Rukhminibai
in her evidence has deposed that,
” Kavita further informed that the accused
caught hold her and took her inside the house. Kavita
informed me that the accused put the latch of the door
from inside. Kavita informed that the accused removed
the clothes from his person. Kavita informed that the
accused also removed the clothes on her person. Kavita
informed that she raised the shouts. Kavita informed
that on the shouts as raised by her, females came and
constrained the accused to open the door. The witnesses
by names Pinoo and Harshu took out the accused out side
from the house. On the next day of the incident,
Kondabai and Meerabai have informed me about the
incident as happened.”
From the aforesaid version, it becomes clear that PW 1
Rukhminibai did not depose that the prosecutrix informed her
or disclosed to her that the accused had forcible sexual
intercourse with her without her consent.
14. In her testimony before the Court, the prosecutrix
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10 CRI.APPEAL NO.72 OF 2017
has, however, specifically deposed that the accused inserted his
penis in her private part. In view of the fact that in the First
Information Report lodged by PW 1 Rukhminibai, there was no
mention that the prosecutrix was raped by the accused, and
further that in her testimony also, PW 1 Rukhminibai did not
depose any such fact, the fact stated by the prosecutrix in her
testimony before the Court that she was raped by the accused
requires to be closely scrutinized.
15. In this regard the testimony of PW 3 Kondabai also
bears material importance. According to the case of the
prosecution, after hearing the alarms given by the prosecutrix,
Kondabai had been to the house of the prosecutrix along with
one Mirabai. It would be, therefore, apt to look into the
testimony of PW 3 Kondabai. As has been deposed by PW 3
Kondabai, at the relevant time, she and one Mirabai were
sitting infront of her house and they heard the noise of shouting
from the house of prosecutrix. As further deposed by said
Kondabai, she along with Mirabai reached at the house of the
prosecutrix and peeped through the slit of the door of the
house of the prosecutrix whereupon she noticed that
prosecutrix and the accused, both were inside the house and no
clothes were there on person of both of them. As further
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11 CRI.APPEAL NO.72 OF 2017
deposed by Kondabai, the prosecutrix and the accused hurriedly
came out and the accused was removed from the said place by
Harshal and Pinnu, who were called at the said place by her. It
is, thus, evident that PW 3 Kondabai has also not deposed any
such fact before the Court disclosing that the accused
committed rape on the prosecutrix.
16. As has come on record, the prosecutrix was sent to
the Sub-District Hospital for medical examination on 24th
December, 2015. PW 6 Dr. Manisha Rathod conducted her
medical examination and prepared a report in that regard. I
have carefully perused the said report as well as the testimony
of PW 6 Dr. Manisha. As was opined by Dr.Manisha, the
injuries as were noticed on the person of prosecutrix were
possible during the sexual assault. In her entire evidence PW 6
Dr. Manisha has nowhere clarified whether from the
examination of the prosecutrix any such concrete inference was
emerging that she was subjected to forcible intercourse in the
recent past. As deposed by Dr.Manisha, the hymen of the
prosecutrix was noticed to be torn and was admitting two
fingers. In the cross examination, Dr. Manisha admitted that
in case of a married woman, the hymen admits two fingers.
Thus, from the testimony of Dr.Manisha and the medical
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12 CRI.APPEAL NO.72 OF 2017
examination report of the prosecutrix at Exh.41, no such
concrete inference can be drawn that the prosecutrix was
subjected to forcible intercourse.
17. Now remains the evidence in the form of the
reports received from the Chemical Analyzer. As has come on
record, the clothes on the person of the prosecutrix as well as
her vaginal swab were forwarded for chemical examination.
The reports received in that regard are at Exh.47 and Exh.48.
The report at Exh.47 pertains to the clothes of the prosecutrix,
more particularly, Salwar, Kurta, Jangia. The report reveals
that no blood was detected on the Salwar or Kurta of the
prosecutrix. Blood was detected on the Jangia of the
prosecutrix,however, no semen was noticed on it. Blood
detected on it was of human origin and was of group `A’. It
has also come on record through the document at Exh.48 that
blood group of the prosecutrix was of Group A. Thus, the
blood detected on the said Jangia was of the prosecutrix,
however, no semen was noticed on it. From the report at
Exh.48 it is further revealed that no semen was noticed in the
vagianal swab of the prosecutrix.
18. If the entire aforesaid evidence is analyzed, it
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appears difficult to accept the version of the prosecutrix that
the accused had forcible intercourse with her. As noted
earlier, in the FIR initially lodged by PW 1 Rukhminibai, it was
not alleged that the accused committed rape on the
prosecutrix. The allegations were restricted to pressing of
breasts of the prosecutrix by the accused. Though in her
supplementary statement PW 3 Rukhminibai added that the
prosecutrix also informed her that the accused had forcible
intercourse with her, in her evidence before the Court she did
not specifically depose the said fact and her testimony was
restricted only to the extent of saying that the accused
removed the clothes from his person and also from the person
of the prosecutrix. More importantly, the prosecutrix in her
cross examination has clearly admitted that her mother
instructed her to depose before the Court that the accused
inserted his penis in her private part. In view of the evidence
as above, serious doubts are created about the fact deposed by
the prosecutrix that the accused had forcible intercourse with
her.
19. There cannot be a dispute that in case of rape, the
statement of the prosecutrix alone can be a basis for convicting
the accused for the said offense and no further corroboration
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may be required. However, as has been laid down by the
Honourable Apex Court in the case of Ramdas others Vs.
State of Maharashtra ( AIR 2007 Supreme Court 155), the
conviction in a rape case can be based solely on the testimony
of the proxecutrix but that can be done in a case where the
Court is convinced about truthfulness of the prosecutrix and
there exists no circumstance which casts a shadow of doubt
over her veracity. If the evidence of the prosecutrix is of such
a quality, the order of conviction may rest solely on the basis of
her testimony.
20. Learned Sessions Judge has also referred to few
other judgments of the Honourable Apex Court; for example,
(1) the State of Maharashtra vs. Rameshwar Shridhar Jaware
and another ( 20007 ALL MR ( Cri) 2761, (2) Sudhanshu Sekar
Sahoo Vs. The State of Orissa ( 2003 Supreme Court Cases
(Cri.) 1484, (3) Vimal Suresh Kamble Vs. Chaluverapinake Apal
S.P. and another ( 2003 Criminal Law Journal 910), wherein
also it is consistently held that in rape cases, the conviction can
be solely based on the evidence of the victim provided such
evidence inspires confidence and appears to be natural and
truthful.
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21. The facts which are deposed by the prosecutrix in
her testimony before the Court, if scrutinized in the light of the
evidence of the other witnesses, and the documentary evidence
on record, it is difficult to agree with the conclusion recorded by
the learned Additional Sessions Judge that the prosecution has,
beyond reasonable doubt, proved that the accused committed
rape on the prosecutrix. As noted earlier, in the FIR lodged by
the mother of the prosecutrix which, according to her own
version, was based on the facts disclosed to her by the
prosecutrix, no such complaint was made that the accused had
forcible sexual intercourse with the prosecutrix. It was
complained that the accused laid on the person of the
prosecutrix and pressed her breasts. In her testimony before
the Court, the mother of the prosecutrix (PW 1 Rukhminibai)
has deposed that the prosecutrix informed her that the accused
removed the clothes on his person and also removed the
clothes on her person. Further, nothing more has been
deposed by PW 1 Rukhminibai that the prosecutrix also told her
that accused thereafter had sexual intercourse with the
prosecutrix. It is significant to note that, according to the case
of the prosecution, two days after lodging of the report,
Rukhminibai (PW 1) gave her supplimentary statetement
making further allegation that the accused inserted his private
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16 CRI.APPEAL NO.72 OF 2017
part in the vagina of the prosecutrix whereupon the offense
earlier registered under Section 354 of the IPC was converted
into an offense under Section 376 of IPC. However, as stated
above, in her testimony before the Court, Rukhminibai (PW 1)
did not depose before the Court that the accused committed
sexual intercourse with the prosecutrix. Similarly, from the
medical evidence on record also, no such irresistable inference
can be drawn that the accused had sexual intercourse with the
prosecutrix. In view of the evidence as above, the argument
made by the learned A.P.P. that the prosecutrix has clearly
deposed that the accused inserted his private part in her vagina
and, as such, believing her version, the conclusion recorded by
the trial Court that the accused committed rape on the
prosecutrix, is sound, and does not require any interference,
cannot be accepted. I reiterate that the prosecutrix in her
cross examination has given a vital admission that the fact
stated by her in her testimony before the Court that the
accused inserted his penis in her private part was stated by her
on instructions of her mother. In the circumstances, I have no
doubt that the prosecution has failed in proving the offense
under Section 376 of IPC against the accused.
22. The next question, therefore, arises as to whether
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any offense is then made out against the accused or he
deserves to be acquitted. Learned Counsel for the appellant
accused, after having advanced his submissions for claiming
acquittal of the accused of the charges levelled against him,
had alternatively submitted that from the prosecution evidence,
if at all any offense can be said to have been made out against
the accused, is under Section 354 of the IPC. In view of the
evidence on record, the submission so made by the learned
Counsel is difficult to be accepted.
23. Though there is no clinching evidence proving
beyond reasonable doubt that the accused had forcible sexual
intercourse with the prosecutrix without her consent, the
prosecution has, undoubtedly, proved that the accused dragged
the prosecutrix in her home and bolted the door of the house
from inside. From the testimony of the prosecutrix read with
testimony of PW 3 Kondabai, it is also established that the
prosecutrix raised shouts at the relevant time. As has been
deposed by PW 3 Kondabai, after hearing such shouts, she
along with one Mirabai, rushed to the house of the prosecutrix.
Kondabai, PW 3, has also deposed that when she and Mirabai
peeped inside the house of the prosecutrix from a slit in the
door, it was noticed by her that there were no clothes on the
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person of the accused as well as the prosecutrix. Though an
objection was raised that Kondabai was an interested witness,
as she is the close relative of the prosecutrix, I do not see
any reason to disbelieve the fact stated by her in her testimony
before the Court on the said ground.
24. Now, it would be useful to again look into the facts
as were stated by the prosecutrix in her testimony. It has
come in the evidence of the prosecutrix that the accused bite
on her right hand near elbow. Prosecutrix had also deposed
that the accused was again intending to repeat the said act. In
the medical examination of the prosecutrix, teeth bite marks
over her right arm were noticed. The fact stated by the
prosecutrix that the accused bite on her right arm is, thus, fully
corroborated by the medical evidence.
25. Removing the clothes on his person by the
accused, removal of the clothes by him on the person of the
prosecutrix leads to the only inference that the accused was
intending to commit rape on the prosecutrix. The further act
of the accused to bite the right hand of the prosecutrix and, as
stated by the prosecutrix, his intention to repeat the said act,
establishes that the accused had gone beyond the stage of
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preparation and, in such circumstances, mere absence of the
further evidence that the accused did not attempt penetration
would not absolve him from the offense of attempt to commit
rape. The very act of the accused to drag the prosecutrix
from outside of her house to the inside of the house, to bolt the
door of the house from inside also sufficiently indicates the
intention of the accused of committing rape on the prosecutrix.
The further acts of the accused, as I discussed hereinbefore,
un-doubtedly amounts to an attempt by the accused to commit
rape on the prosecutrix. Having regard to the aforesaid acts
of the accused, which have been proved by the prosecution
beyond reasonable doubt, it would not be a case of mere
assault under Section 354 of IPC. From the acts of the
accused it is difficult to accept the contention of the learned
Counsel appearing for the accused that the same would amount
to outraging modesty of the prosecutrix. Considering the
acts of the accused of removing clothes on his own person,
removing clothes on the person of the prosecutrix, biting the
arm of the prosecutrix lead to the only inference that the
accused was determined to have sexual intercourse with the
prosecutrix at any cost, however, he could not succeed in the
same as because prosecutrix raised shouts and, in response to
the shouts so raised by her, Kondabai, Mirabai, etc. rushed to
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the house of the prosecutrix.
26. For the reasons as aforesaid, the conviction of the
appellant by the trial Court for an offense under Section 376 of
IPC deserves to be altered to the conviction under Section 376
read with Section 511 of IPC. In the result, the following order
is passed:
ORDER
1. The conviction of the accused as ordered by the trial
Court under Section 376 of IPC stands set aside. The
appellant – accused, namely, Sambhaji Sopan Bobade, is
convicted for an offense under Section 376 read with Section
511 of the IPC and is sentenced to suffer rigorous imprisonment
for four years and to pay fine of Rs. 75,000/- (Rs. seventy five
thousand); in default, to suffer further rigorous imprisonment
for one year.
2. The sentence awarded by the trial Court for the
offense under Section 452 of the IPC is maintained as it is.
3. Both the sentences shall run concurrently.
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4. The accused would be entitled for set off under
Section 428 of Code of Criminal Procedure for the period he has
undergone in jail.
5. Fine amount be deposited in the Sessions Court. If
the said amount is realized, the Sessions Court shall pay an
amount of Rs.70,000/- ( Rs. seventy thousand) out of that to
the prosecutrix in the present case on proper identification.
Balance amount of Rs.5,000/- be credited to the Government.
Criminal Appeal, thus, stands partly allowed in above
terms.
(P.R.BORA)
JUDGE
…
AGP/72-17criminalappeal
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