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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.512 OF 2014
Shri Sadashio s/o. Rengo Kotangale,
Aged 57 years, Occupation : Labour,
R/o. Tudmapuri,
Tahsil – Sakoli, District Bhandara …APPELLANT
…V E R S U S…
The State of Maharashtra,
Through Police Station Officer,
Police Station Sakoli,
Tahsil Sakoli, District Bhandara …RESPONDENT
——————————————————————————————-
Mr. Akash Gupta, counsel (appointed) for the Appellant.
Mr. A.V. Palshikar, Additional Public Prosecutor for the
Respondent.
——————————————————————————————-
CORAM
:ROHIT B. DEO, J.
DATE
:05.12.2017
ORAL JUDGMENT:
Challenge is to the judgment and order dated
7.10.2014, passed by the Additional Sessions Judge, Bhandara, in
Sessions Trial 82 of 2012, by and under which, the appellant
(hereinafter referred to as “the accused”) is convicted of offence
punishable under section 376 of the Indian Penal Code (“IPC” for
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short) and is sentenced to suffer rigorous imprisonment for a
period of 7 years and to payment of fine of Rs. 1000/- and is
further convicted of offence punishable under section 326 of IPC
and is sentenced to suffer rigorous imprisonment for a period of 3
years and to payment of fine of Rs.500/-.
2 Heard Shri. Akash Gupta, the learned counsel for the
appellant and Shri. A.V. Palshikar, the learned Additional Public
Prosecutor for the respondent / State.
3 The learned counsel for the accused Shri. Akash
Gupta submits, that the judgment and order impugned militates
against the weight of evidence on record. The prosecution has not
proved, much less beyond reasonable doubt, that the prosecutrix
was subjected to forcible sexual intercourse, is the submission.
The learned counsel would submit that the evidence of the
prosecutrix is inconsistent with the medical evidence and is not
corroborated, au contraire, is rendered suspect, by the spot
panchanama and the evidence of the Investigating Officer. The
learned counsel for the accused would further submit, that the
finding recorded by the learned Sessions judge that the accused
caused grievous hurt to the prosecutrix by pouring corrosive
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substance (acid) into the vagina is not consistent with the oral and
circumstantial evidence on record. The learned counsel for the
accused Shri. Akash Gupta would urge, arguendo and in the
alternate, that even if the entire evidence is accepted at face value,
the offence made out would at the most be under section 354 and
324 of IPC.
4 Per contra, Shri A.V. Palshikar, the learned Additional
Public Prosecutor would support the judgment and order
impugned. The marshalling of evidence and the findings
recorded, are both an unexceptionable, is the submission.
5 The gist of the prosecution case, as can be culled out
from the oral report lodged by the prosecutrix on 13.8.2012 at
5.00 pm, is thus:
The prosecutrix states in the oral report, which is marked
Exh. 38, on the record of the trial Court, that she is a widow and
earns livelihood by cultivating ½ acre agricultural land, which was
the ancestral property of her late husband. The prosecutrix has
two sons namely Padmakar and Ratnakar who are engaged in
manual labour at Nagpur and whose visits to the village are few
and far in between. The prosecutrix lives alone in the village.
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The prosecutrix states in the oral report that on 13.8.2012
between 10.00 to 10.30 a.m. she went to her agricultural field to
cut grass, she cut the grass and tied and stacked the bales.
Between 1.00 to 1.30 p.m. when she went to the adjoining canal
to answer nature’s call, she was accosted by the accused, the
prosecutrix stood up and asked the accused as to why he had
come. The accused replied “rqh xkaM yky djrks”, lifted the
prosecutrix on shoulders, carried her to the bushes, made her lay
on the grass, threatened to kill the prosecutrix and then committed
forcible sexual intercourse twice. The prosecutrix further states in
the report that after ravishing her, the accused took out a bottle
from pocket and poured some liquid on the private part of the
prosecutrix, the prosecutrix cried out in pain due to the burning
sensation. The accused again threatened the prosecutrix with
physical harm and fled.
The oral report was reduced to writing and the printed First
Information Report is Exh. 39. On the basis of the report, offence
punishable under section 376 and 506 of IPC was registered, the
accused was arrested on 13.8.2012, both the prosecutrix and the
accused were medically examined and the reports obtained. The
spot panchanama was prepared on 14.8.2012, the clothes wore by
the prosecutrix were seized on 15.8.2012, presumably while the
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prosecutrix was admitted to the Government Medical Collage,
Nagpur. The prosecutrix was discharged from the Government
Medical Collage on 30.8.2012 and on the premise that an offence
punishable under section 326 of IPC is made out, the accused was
additionally charged under section 326 of IPC and upon
completion of investigation chargesheet was submitted in the
Court of Judicial Magistrate First Class, Sakoli who committed the
case to the Sessions Court.
6 The learned Sessions Judge framed charge vide Exh.
12 under section 504 or 509, 506, 376 and 326 of IPC. The
accused abjured guilt and claimed to be tried in accordance with
law. The defence of the accused, as is discernible from the trend
and tenor of the cross examination, the statement recorded under
section 313 of the Code of Criminal Procedure and the evidence of
the sole defence witness, is of false implication. The defence is,
that the prosecutrix and the accused were in a relationship. The
prosecutrix was pressurizing the accused to transfer the
agricultural land of the accused in favour of the son / sons of the
prosecutrix. The accused was not inclined to oblige and wished to
transfer the agricultural land in favour of his daughter. The
defence is that refusal to oblige the prosecutrix is a motive for
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false implication.
7 The prosecutrix is examined as PW 1. The evidence
of the prosecutrix is brief and is criticized by the learned counsel
for the accused as “conveniently cryptic”. The prosecutrix has
deposed that on 13.8.2012 she went to answer the nature’s call
near the canal, she saw the accused approaching and asked the
accused as to why he had come, the response was the use of
abusive expression “rqh xkaM yky djk;yk vkyks”, the accused
lifted the prosecutrix on his shoulder, took the prosecutrix to the
bushes and committed sexual intercourse twice. The accused put
some liquid on the vagina after sexual intercourse. She felt
burning sensation and shouted, the accused threatened to kill the
prosecutrix and then fled, is the deposition.
The prosecutrix has then deposed that she entered the canal
to dilute the burning sensation, came to her house and alongwith
her son went to the Police Station and lodged the report. The
prosecutrix states that she was admitted at the Medical Collage
and Hospital, Nagpur for 20 days and her saree and blouse were
seized by the police.
The statement that the prosecutrix entered into the
water of the canal to dilute the burning sensation, was subjected
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to some debate. Shri Akash Gupta, the learned counsel for the
accused contends that the said statement or rather version that the
prosecutrix entered the water of canal to dilute the burning
sensation is conspicuously absent in the oral report. The
statement of the prosecutrix recorded under section 161 of the
Code of Criminal Procedure on 7.9.2012 , in which statement the
said version crops up, is recorded belatedly and the only inference
is that the Investigating Officer was marking his time to give the
investigation a particular shape or direction. Reliance is placed
amongst others, on the enunciation of law by the Hon’ble Apex
Court in Ganesh Bhawan Patel Vs. State of Maharashtra,
(1978) 4 SCC 371 and in particular on the following observations.
“15. As noted by the trial Court, one unusual feature
which projects its shadow on the evidence of Pws Welji,
Pramila and Kuvarbai and casts a serious doubt about
their being eyewitnesses of the occurrence, is the undue
delay on the part of the investigating officer in recording
their statements. Although these witnesses were or could
be available for examination when the investigating
officer visited the scene of occurrence or soon thereafter,
their statements under Section 161, Cr. P.C. were
recorded on the following day. Welji (PW 3) was
examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and
Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in::: Uploaded on – 07/12/2017 08/12/2017 02:58:14 :::
apeal512of2014.odt 8recording the statements of eye-witnesses may not, be
itself, amount to a serious infirmity in the prosecution
case. But it may assume such a character if there are
concomitant circumstances to suggest that the
investigator was deliberately marking time with a view to
decide about the shape to be given to the case and the eye-
witnesses to be introduced. A catena of circumstances
which lend such significance to this delay, exists in the
instant case.”
8 The learned Additional Public Prosecutor Shri.
A.V. Palshikar would contend that the delay in recording a
statement, particularly the statement of prosecutrix or victim of
sexual offence, would not per se dilute the credibility of the
version. In rebuttal, the learned counsel for the accused contends
that while there cannot be any quarrel with the proposition of law
that delay in recording the statement may not be per se fatal or
destructive of the credibility of the evidence, the fact that the
delay remains unexplained, would render the version of the
prosecutrix suspect.
The submission of the learned counsel for the accused is
that the story or version of the prosecutrix of having entered the
water of the canal (Nala) is introduced since the prosecution was
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seeking for a possible or plausible explanation for the absence of
semen in the genitalia of the prosecutrix.
9 The learned counsel for the accused is justified in
contending that the evidence of the prosecutrix that she was
subjected to forcible sexual intercourse is not consistent with the
medical evidence. In the searching cross-examination, the
prosecutrix states that the accused made the first attempt to
commit sexual intercourse between boundary of the field and the
boundary of canal, which attempt was unsuccessful. The accused
then committed sexual intercourse at the same spot in his second
attempt, is the deposition. The first attempt and the second
successful attempt took 15 minutes, is the deposition. The sexual
assault, over an extended period, after forcing the prosecutrix to
lay on dry grass, would have left some visible tell tale signs on the
person of the accused, which are however, not seen in the medico
legal examination although extensive injuries are noticed on the
genitalia of the prosecutrix which are caused by corrosive
substance. The absence of visible marks on the person of the
prosecutrix indicating resistance, although the prosecutrix claims
to have been subjected to forcible sexual intercourse twice over a
period of 15 minutes is inconsistent with the medical evidence.
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10 The medical evidence, is however consistent with the
evidence of the prosecutrix that the accused poured some
corrosive substance on her vagina. However, the absence of
semen and absence of injury on the person of the prosecutrix other
than the injuries caused by the corrosive substance and absence of
injuries on the person of the accused would be one circumstance
inconsistent with the version of forcible intercourse. The evidence
of the prosecutrix, is even otherwise not confidence inspiring to
the extent she alleges forcible sexual intercourse. There are too
many gray areas and the incident is blurred. The spot
panchanama does not corroborate the evidence of the prosecutrix.
Au contraire the evidence of the prosecutrix is rendered suspect in
view of the recitals in the spot panchanama. The evidence of the
prosecutrix is that she was subjected to sexual intercourse twice,
and on both the occasions the spot was between the boundary of
the field and the boundary of the canal. The spot panchanama
describes the location of the spot as on either sides of canal, to wit
western and the eastern banks of the canal. The spot panchanama
is quite obviously inconsistent and discrepant with the ocular
evidence of the prosecutrix. The evidence of prosecutrix that
after she was subjected to sexual intercourse, she entered the
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water of the canal to reduce or dilute the burning sensation must
be discarded. Firstly, the said version is rendered extremely
suspect since the statement recorded under section 161 of the
Code of Criminal Procedure of the prosecutrix is recorded
belatedly on 7.9.2012 and there is no explanation for the delay
forthcoming. The evidence of the prosecutrix and the
Investigating Officer – Ganesh Gawade, who is examined as PW 7
is also discrepant to the extent the prosecutrix states that the level
of the water in the canal was thy high while the Investigating
Officer states that the water level could have been 4 inches,
although, he adds a caveat that the level could be different at
different places.
The spot of the incident is concededly near the field of the
prosecutrix, which is situated between agricultural fields of
Pundlik Gharmare and Girdhari Chandewar. The incident
occurred in the noon hours and the defence has brought on record
that the agricultural operations were then ongoing. The
prosecution has not examined, for reasons best known to the
prosecution, the owners of the adjoining fields on either side of
the field of the prosecutrix although one of them is cited as a
witness. The prosecutrix had ample opportunity to raise an alarm
and to seek the assistance of the persons who in normal
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circumstances would be working in the nearby agricultural fields.
The prosecutrix, did have the opportunity, if not to resist, to
rescue herself since the entire incident took more than 15 minutes,
even according to the prosecutrix. The graphic and to certain
extent vivid and disturbing description which is extracted in the
cross examination of the prosecutrix would suggest that although
the pouring of the corrosive substance in the vagina, which act
could have been done in a matter of seconds or minutes, is not per
se unbelievable, the version of the prosecutrix that she was
subjected to forcible sexual intercourse is inherently unbelievable.
The version that the prosecutrix was threatened and therefore,
suffered the ravishment without making any attempt either to
raise an alarm or to plainly flee away, is doubtful.
11 Be it noted, that the prosecutrix has not even
whispered that she was in physically restrained per se. The cryptic
statement in the examination in chief is that accused lifted the
prosecutrix on his shoulder, took her to the bushes, made her lay
down in the grass and committed sexual intercourse twice and the
accused threatened to kill the prosecutrix only after completion of
the sexual intercourse.
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12 Having given anxious consideration to the evidence
on record, I am not persuaded to uphold the conviction of the
accused under section 376 of the IPC. However, the evidence on
record is cogent and clinching enough to prove that the accused
outraged the modesty of the prosecutrix and poured some
corrosive substance on her vagina. The prosecutrix has indeed
exaggerated and over implicated the accused. But then, the entire
testimony of the prosecutrix cannot be brushed under the carpet
and the chaff must be separated from the grain. The evidence of
the prosecutrix that the accused poured corrosive substance on the
vagina is more than amply corroborated by the detection of
medical evidence. The seizure of the saree and the detection of
Nitric acid residue thereon in the chemical analysis is subjected to
severe criticism by the learned counsel for the accused. The
seizure of the saree on 15.8.2012, when, concededly, the
prosecutrix was undergoing treatment at the Government Medical
College, Nagpur, is not per se disputed. However, the submission
of the learned counsel is that there is absolutely no evidence on
record to satisfy the conscious of the Court that the saree seized on
15.8.2012 was duly sealed and between the seizure and the
forwarding of the saree to the Chemical Analyzer on 27.8.2012,
the possibility of any tampering or manipulation is implicitly
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excluded. The submission is that the report of the Chemical
Analyzer which notices Nitric acid residue on the saree is of little
significance since no evidence is adduced to rule out the possibility
of tampering of the article seized. The submission of the learned
counsel is not without substance. However, even keeping out of
consideration the said incriminating piece of evidence, I am more
than satisfied that the evidence of the prosecutrix that accused
poured corrosive substance on her vagina deserves acceptance.
13 The defence witness, who is son in law of the accused,
and who has deposed that the prosecutrix attended the office of
the Sub-Registrar of documents alongwith her son on the day of
the incident and there was an altercation between the accused on
one hand and the prosecutrix on the other since the accused was
desirous of executing sale deed in favour of his daughter (wife of
the defence witness) must be discarded for more reasons than one.
The defence witness states in the examination in chief that the
prosecutrix alongwith her son and the accused were present at the
office of the Sub-Registrar at Deori. Concededly, the agricultural
field of the accused is situated within the jurisdiction of the Sub-
Registrar of documents Sakoli. The son of the prosecutrix
Ratnakar Dademal was examined as PW 2. The defence version is
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however, not put to the son of the prosecutrix. While it is true, as
is contended by the learned counsel for the accused, that the
evidence of the defence witness can not be viewed with suspicion
and defence witnesses are entitled to be treated at par with
prosecution witnesses as far as appreciation of evidence is
concerned, (see – Dudh Nath Pande Vs. State of Uttar Pradesh,
AIR 1981 SC 911), I am not inclined to hold that the evidence of
the defence witness is trustworthy or confidence inspiring or that
the defence is probabilized even on the touchstone of
preponderance of probabilities.
14 The learned counsel Shri. Ashish Gupta contends that
the offence can at the most be under section 324 of IPC since the
injury suffered does not fall in any of the eight categories
enumerated under section 328 of the Code of Criminal Procedure.
The Investigating Officer admits that he had invoked section 326
of IPC on the premise that the prosecutrix was admitted in the
hospital for more than 20 days. Unfortunately, this is also an
assumption of the learned Sessions Judge which appears to be
contrary to record. The medical record including the discharge
card would show that the prosecutrix was admitted in the hospital
on 14.8.2012 and discharged on 30.8.2012. The learned counsel
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for the accused is justified in contending that the offence made out
against the accused would fall not under section 326 but under
section 324 of IPC.
15 It is axiomatic, that in the process of pouring corrosive
substance on the vagina of the prosecutrix, the modesty of the
prosecutrix was outraged. While the prosecutrix has not proved
that the prosecutrix was subjected to forcible sexual intercourse,
the offence punishable under section 354 of the IPC is more than
established and established beyond reasonable doubt.
In the light of the discussion supra, I am inclined to allow
the appeal partly. While the accused is acquitted of offence
punishable under section 376 of IPC, he is convicted of offence
punishable under section 354 of IPC and is sentenced to suffer
rigorous imprisonment for a period of three years and to payment
of fine as directed by the trial Court. The conviction under section
326 of IPC is scaled down to conviction under section 324 of IPC
and the accused is sentenced to suffer rigorous imprisonment for
three years and to payment of fine as directed by the trial Court.
Accused shall be entitled to set of under section 428 of the Code of
Criminal Procedure. The accused is in jail in view of order dated
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20.11.2017. He shall remain in jail for the remainder of the
sentence. Appeal is partly allowed in the aforesaid terms. The
fees of the learned counsel for the accused is quantified at
Rs. 5,000/-.
JUDGE
RS Belkhede
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