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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.16 OF 2006
Shri Ganpat s/o Fakira Ghenawatt,
Aged about 44 years,
Occupation – Agriculturist,
R/o Manusdhari, Tahsil – Ghatanji,
District – Yeotmal. …. APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Police Station Parwa, District –
Yeotmal. …. RESPONDENT
__
Shri Mir Nagman Ali, Advocate for the appellant,
Shri H.R. Dhumale, Additional Public Prosecutor for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 11-10-2017
DATE OF PRONOUNCING THE JUDGMENT : 17-01-2018
JUDGMENT :
The appellant is aggrieved by the judgment and order
dated 16-12-2005 passed by the learned Additional Sessions Judge,
Pandharkawda (Kelapur) in Special Case 36/2002 (Old 17/1999), by
and under which the appellant (hereinafter referred to as the
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“accused”) is 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.1,000/-.
The accused is acquitted of offence punishable under Section 3(1)(xii)
of the Scheduled Castes and the Schedules Tribes (Prevention of
Atrocities) Act, 1989 (“Atrocities Act” for short).
2. Heard Shri Mir Nagman Ali, learned Advocate for the
appellant and Shri H.R. Dhumale, learned Additional Public Prosecutor
for the respondent/State.
3. The prosecution examined four witnesses to prove the
offence. P.W.1 is the prosecutrix who lodged the oral report dated
27-9-1999 (Exhibit 31) and printed first information report is Exhibit
32. Subhash Gedam, who is the brother-in-law of P.W.1, is examined
as P.W.2. P.W.3 Bharat Madavi, who is examined as eyewitness, did
not support the prosecution and P.W.4 Harish Baijal is the authorised
officer who investigated the offence.
4. Concededly, the edifice of the prosecution case is built on
the testimonies of P.W.1 and her brother-in-law P.W.2. The medical
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evidence on record does not take the case of the prosecution any
further. No injury is detected on the person of the prosecutrix. No
blood or semen is detected on the saree which the prosecutrix was
wearing. Neither semen nor spermatozoa are detected on the pubic
hair of the prosecutrix or the vaginal smear of the prosecutrix or the
pubic hair of the accused. The lungi seized from the accused was found
to be blood stained.
5. The oral report is lodged by the prosecutrix at 6-00 a.m.
on 27-9-1999. The gist of the report is that the prosecutrix is a married
woman having a four years old daughter. She returned from
agricultural field on 26-9-1999, she was suffering from fever and after
cooking meals at 8-00 to 8-30 p.m., she was proceeding to the house of
the sarpanch to collect anti malaria tablets. The accused met the
prosecutrix, asked her where she was going and when the prosecutrix
disclosed that she was going to the house of the sarpanch to collect
tablets, the accused told her that he had the tablets at his house and
asked her to come to his house and take the tablets. The prosecutrix
went to the house of the accused, the accused took her to the varandah
behind the house. The family members of the accused were sleeping
and the door was closed. The prosecutrix asked the accused as to why
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she had been brought to the varandah on the backside of the house and
was asked to wait. The prosecutrix waited for the accused to bring the
tablets. However, the accused caught hold of her, made her lie on the
ground and then raped her. The prosecutrix shouted, on hearing her
shouts, P.W.2 arrived at the scene. The people residing in the nearby
houses gathered, P.W.2 rescued the prosecutrix. On the basis of the
said report, offence under Section 376 of the IPC was registered.
6. The evidence of the prosecutrix is that the accused
suddenly caught hold of her body, unwrapped the saree, caused her lie
down and sexually ravished her. She shouted “lksMk] lksMk” (leave,
leave). P.W.2 rushed at the scene, others gathered. P.W.2 took the
prosecutrix to her house. P.W.2 returned to her house and took her to
police station Parwa.
In the cross-examination, she denies the suggestion that
the villagers were having doubts as regards relationship between the
complainant and the accused. P.W.1 does not dispute that she was
working in the field of the accused since four to five years. She is
suggested that there was a quarrel between the accused and P.W.2 at
the house of one Utane. The response of the prosecutrix was that she
did not know about such quarrel at the house of Utane or that the
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accused had beaten P.W.2 Subhash at the house of Utane. P.W.1
admits that if there is any loud talk in the house of the accused, the talk
can be easily heard by others. The suggestion was given in the context
of the earlier admission that Laxman Dipewar, Namdeo Pendhare,
Zibal and Samba Meshram have their houses near the house of the
accused and the houses are adjoining each other. P.W.1 states that the
entry to the courtyard of the house of the accused is from the road.
The prosecutrix admits that the accused sustained bleeding head injury
because he was beaten by P.W.2 Subhash. She volunteers that the
incident of beating occurred after the incident with her. She claims
ignorance in response to a suggestion that the accused had gone to
police station Parwa for lodging report against P.W.2. P.W.1, however,
admits that it was P.W.2 who told her to lodge the report. She, at a
later stage, admits that when she went to police station to lodge the
report, the accused was also present in the police station. She admits
that all the villagers had gathered at the house of the accused. She
admits that when the villagers had gathered, the accused had sustained
bleeding injury. She further admits that when people had gathered, a
scuffle was going on between the accused and P.W.2 Subhash. She
denied the suggestion that she attempted to separate the two, failed to
do so and returned to her house. The prosecutrix claims ignorance as
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to whether there is any dispute between the accused and P.W.2
Subhash concerning the agricultural field. The statement that P.W.2
took and left her at her house, is an omission. Few other omissions are
brought on record including the words “lksMk] lksMk” (leave, leave). Be it
noted, that since the scribe who recorded the statement under Section
161 of the Criminal Procedure Code was not examined, the omissions
could not be proved.
7. Subhash Gedam, brother-in-law of the prosecutrix is
examined as P.W.2. His version is that when he was proceeding to his
house from a panthela, he heard the weeping sound of a woman from
the rear of the house of the accused, he wait there and saw the accused
committing sexual intercourse with the prosecutrix. The accused was
angry and rushed on his person. The accused abused him ” xkasMkM;k
ekÖ;k ?kjh rq d’kkyk vkyk”. P.W.2 took his sister-in-law to his house and
on the way he disclosed that the accused took her to his house under
the pretext of giving tablets, took her to the rear of the house, caused
her lie down and committed sexual intercourse. P.W.2 asked his sister-
in-law to go to the house. People gathered. P.W.2 was taken to the
police patil Mahadeo Bansod by Bharat Madavi and Linga Meshram.
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The sarpanch Shriram Pendhare had also came to the house of the
police patil. The accused was summoned who did not tell anything.
Thereafter, P.W.3, the prosecutrix, police patil, sarpanch and one
Bhagat went to Chikhalwardha in a bullock-cart and thereafter police
station Parwa in a truck and the prosecutrix lodged the report.
In the cross-examination, it is brought out that the
statement that he saw the accused committing sexual intercourse with
the prosecutrix, is an omission. He denied the suggestion that there
was discussion in the village that there was an illicit relationship
between the accused and the prosecutrix. He also denied the
suggestion that he was suspicious about the relationship. He denies
that there was a quarrel between him and the accused at the house of
one Utane a day before the incident. He denies the suggestion that on
the day of the incident, he caused injury to the head of the accused
with an iron rod. He disclaims any knowledge of any report lodged by
the accused in the night of the incident. He admits that the panthela is
between the house of the accused and his house.
8. Bharat Madavi (P.W.3), who is examined as an
independent eyewitness, did not support the prosecution. The learned
A.P.P. was permitted to cross-examine P.W.3. However, in the cross-
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examination, nothing is elicited to assist the prosecution. However, in
the examination-in-chief, P.W.3 states that between 7-00 p.m. to 7-30
p.m. a quarrel was going on between the accused and P.W.2 in the
courtyard of the house of the accused and number of villagers were
present.
9. The only other witness examined is Harish Baijal (P.W.4)
who deposes that he took over the investigation on 30-9-1999 and
recorded the statements of the witnesses.
10. It is strenuously urged by the learned Additional Public
Prosecutor that there is no reason to disbelieve the version of the
prosecutrix. Her version is amply corroborated by P.W.2, is the
submission. Conviction can rest even on uncorroborated testimony of
the prosecutrix, is the submission. It is well settled, that if the
testimony of the prosecutrix is found reliable, credit worthy and
confidence inspiring no further corroboration need be sought.
However, for reasons spelt out infra, I am not persuaded to hold that
the prosecution has proved the offence beyond reasonable doubt.
11. I have already observed that the case of the prosecution is
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entirely founded on the evidence of P.W.1 prosecutrix and her brother-
in-law P.W.2. The varandah where the prosecutrix was subjected to
sexual intercourse is concededly situated at the rear side of the house
of the accused. The prosecutrix states in the oral report that when the
accused took her to the varandah, the family members of the accused
were asleep and the door was closed. She admits that even a loud talk
in the house of the accused is audible to the neighbours since the
houses adjoin each other. P.W.1 states that the entry to the courtyard
of the house is from the road and then one enters the house of the
accused. P.W.1 admits that the accused sustained bleeding head injury
since he was assaulted by her brother-in-law P.W.2 Subhash. It is true
that P.W.1 volunteers that the assault took place after the incident of
ravishment. However, she admits that when she went to the police
station to lodge the report, the accused was also present in the police
station. This probablises the defence that the accused was in the police
station to lodge report the against P.W.2 Subhash. She admits that
many persons were present when a scuffle was on going between the
accused and her brother-in-law Subhash. The words “lksMk] lksMk”
(leave, leave) is an omission. If the evidence of P.W.2 Subhash is
considered, there is glaring variance between his evidence and that of
P.W.1. Subhash has outrightly rejected the suggestion that there was a
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physical scuffle with the accused on the day of the occurrence of the
incident and that P.W.2 Subhash caused injury to the accused due to
iron rod. Be it noted, that the accused was medically examined and
the head injury is noticed and recorded in the medical certificate
(Exhibit 19). The statement that P.W.2 Subhash saw the accused
committing sexual intercourse with the prosecutrix, is an omission.
While P.W.1 candidly admits that P.W.2 Subhash did assault the
accused and caused a head injury, P.W.2 Subhash outrightly denied
having caused injury to the accused.
12. In the teeth of the version of P.W.1 and P.W.2 that number
of villagers had gathered at the scene of occurrence, the failure of the
prosecution to examine independent witnesses, other than P.W.3, who
did not support the prosecution, assumes significance. Equally
significant is the failure of the prosecution to examine Linga Meshram
or the police patil Mahadeo Bansod or the sarpanch Shriram Pendhare
to unfold the prosecution story. It is the deposition of P.W.2 Subhash
that he went to the police patil with Bharat Madavi and Linga Meshram
and the sarpanch Pendhare also came to the house of the police patil.
Subhash claimed to have narrated the incident to the police patil and
states that the accused was summoned to the residence of the police
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patil. Ordinarily, it is the discretion of the prosecution whom to
examine. Ultimately, evidence must be weighed and not counted,
which is the jurisprudential philosophy underlying Section 134 of the
Indian Evidence Act. But then, failure to examine witnesses who could
have thrown significant light on the prosecution case assumes
importance particularly when the evidence on record, as in the present
case, is not clinching. The panthela, is situated between the house of
the accused and the house of P.W.2 Subhash, is the admission. The
accused was proceeding towards his house, which would mean he was
proceeding in the opposite direction vis-a-vis the house of the accused.
The prosecutrix admits that the houses of the neighbours of the
accused adjoin each other and even a loud voice is audible to others.
In the teeth of the said evidence, the version of P.W.2 Subhash that he
heard weeping sound of a woman and went to the rear of the house of
the accused is extremely doubtful. I have already noted that the words
“lksMk] lksMk” (leave, leave) is an omission. The prosecutrix claims to
have shouted, when she was subjected to sexual intercourse by the
accused. This is not consistent with the version of P.W.2 that he heard
weeping sound. That apart, that the weeping sound was heard only by
P.W.2 Subhash who happened to be the only person near the scene of
occurrence is again improbable. The fact that there is absolutely no
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evidence of any injury whatsoever nor is semen or spermatozoa
detected either in the sample of the pubic hair or vaginal smear or the
saree worn by the prosecutrix, may not be per se decisive, but then,
absence of any injury whatsoever and lack of other medical or scientific
evidence must be given due weight when the Court is compelled to
seek corroboration since the ocular evidence is not clinching and
confidence inspiring.
13. In the light of the discussion supra, it would be extremely
unsafe to hold that the prosecution has proved the offence under
Section 376 of the IPC beyond reasonable doubt. It is trite law, that
benefit of any doubt must necessarily go in favour of the accused. The
prosecution case has to many gray areas and I am inclined to hold that
the benefit of the doubt must be given to the accused.
14. The judgment and order impugned is set aside.
15. The accused is acquitted of the offence punishable under
Section 376 of the IPC.
16. The bail bond of the accused shall stand discharged and
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the fine paid by the accused, if any, shall be refunded to him.
17. The appeal is allowed.
JUDGE
adgokar
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