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Shri. Sadashio S/O Rengo … vs State Of Maharashtra, Through … on 5 December, 2017

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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

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recording 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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