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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.536 OF 2003

Vasudeo s/o Navnath Maraskolhe,
Aged about 35 years,
Sarpanch, R/o Heti Akoli,
District Wardha. …. APPELLANT

VERSUS

State of Maharashtra,
through its Police Station Officer,
Police Station, Selu, District Wardha. …. RESPONDENT

__

Shri R.L. Khapre, Counsel for the appellant,
Shri N.H. Joshi, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.
DATED : 5 th
MAY, 2018

ORAL JUDGMENT :

Challenge is to the judgment and order dated 12-8-2003

rendered by the learned 1st Ad hoc Additional Sessions Judge, Wardha

in Sessions Trial 154/2001, by and under which the appellant-accused

is convicted for offence punishable under Section 376 of the Indian

Penal Code (“IPC” for short) and is sentenced to suffer rigorous

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imprisonment for seven years and to payment of fine of Rs.2,000/-.

2. Heard Shri R.L. Khapre, learned Counsel for the accused

and Shri N.H. Joshi, learned Additional Public Prosecutor for the

respondent.

3. The prosecutrix-P.W.1 lodged oral report at Police Station

Selu on 14-4-2001 alleging that the accused subjected her to forcible

sexual intercourse. The gist of the oral report Exhibit 20 is that the

prosecutrix is a resident of Heti and is an agricultural labour. She went

to answer the nature’s call at 9-00 p.m. on 13-4-2001 when the

accused, the then Sarpanch of the Gram-Panchayat, suddenly came to

the spot, lifted the prosecutrix in his arms and took her in his adjoining

field. The accused made her fall down on the ground, and when the

prosecutrix started shouting, he tied her mouth with dupatta and then

sexually ravished her. The husband of the prosecutrix (P.W.2) who

was looking for her arrived on hearing her shouts. The accused was

committing sexual intercourse with the prosecutrix when P.W.2 arrived

at the spot. P.W2 caught hold of the prosecutrix and pushed him aside

from the person of the prosecutrix. The accused left the spot and the

prosecutrix and her husband went home. The prosecutrix and her

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husband lodged the police report on the basis of which offence

punishable under Section 376 of the IPC was registered against the

accused.

4. Investigation ensued and upon completion thereof charge-

sheet was submitted in the Court of Judicial Magistrate First Class,

Wardha who committed the case to the Sessions Court. The learned

Sessions Judge framed charge at Exhibit 11. The accused abjured guilt

and claimed to be tried. The defence is of total denial and false

implication.

5. Shri R.L. Khapre, learned Counsel for the accused submits

that in view of the glaring inconsistencies between the evidence of the

prosecutrix and her husband P.W.2, which inconsistencies touch

material aspects, the version of the prosecutrix that she was subjected

to forcible sexual intercourse is rendered doubtful and the benefit of

the doubt must necessarily go in favour of the accused. The version of

the prosecutrix is not corroborated, and is indeed belied by the medical

evidence, is the further submission. Per contra, learned Additional

Public Prosecutor Shri N.H. Joshi would submit that the evidence of the

prosecutrix is implicitly reliable, trustworthy and confidence inspiring

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and the conviction is unexceptionable. The learned Additional Public

Prosecutor submits that it is well settled that the conviction can rest on

the uncorroborated testimony of the prosecutrix.

6. The version of P.W.1 in the substantive evidence is that

when she went to the abadi (Government land) by the side of the road

to answer the nature’s call, the accused came to the spot where she was

answering the nature’s call, tied handkerchief on her mouth, lifted her

in his arms and took her to his field which is located near the road.

She was requesting the accused to let her go and the response of the

accused was to threaten her that should she shout she would be

beaten. The accused caused her to lie down in the field, removed her

knicker, removed his banyan and towel and subjected the prosecutrix

to sexual intercourse. The prosecutrix was shouting when she was

subjected to sexual intercourse which brought her husband at the

scene. The prosecutrix states that when her husband arrived at the

scene, the accused was committing sexual intercourse. Her husband

caught hold of the accused’s hair and pulled him The accused

attempted to flee, however, her husband P.W.2 held him and brought

the accused in the house. The knicker, water container and sleeper

remained at the scene of occurrence. Her husband then went to the

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residence of the Police Patil and informed him about the incident. In

the meanwhile, the son of the prosecutrix had detained the accused in

the house. The police arrived at the house of the prosecutrix and the

accused was taken in the police jeep to the police station accompanied

by the prosecutrix, P.W.2 and some other persons.

7. The version of the prosecutrix is at stark variance with the

contents of the oral report. It is elicited in the cross-examination that

the evidence that when the prosecutrix was about to answer the

nature’s call, the accused tied handkerchief on her mouth is an

omission. The evidence that the prosecutrix was shouting and was

threatened by the accused, when the prosecutrix was taken to the field

of the accused, is again an omission. The witness is confronted with

her version in the police statement which was to the effect that she was

taken by the accused in his field, made to lie down and that since she

was shouting, her mouth was tied with dupatta. The prosecutrix denies

to have made such statements before the police. The evidence that her

husband caught hold of the accused and the accused was brought at

the house of the prosecutrix, is an omission. The evidence that the

husband of the prosecutrix went to the house of the Police Patil and in

the meanwhile, the son of the prosecutrix detained the accused in the

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house, is again an omission. It is suggested to the prosecutrix that the

accused is falsely implicated due to political rivalry, which suggestion is

denied.

The omission which have come in the evidence of the

prosecutrix pertain to material facts and partake the character of

contradictions and the omissions are duly proved in the evidence of

P.W.7 API Pralhad Giri.

8. The son of the prosecutrix, who according to her, detained

the accused at her residence when her husband P.W.2 Chaitram went

to the house of the Police Patil to inform the Police Patil about the

incident, is not examined. The husband of the prosecutrix Chaitram is

examined as P.W.2. His version is that when he returned home after

having dinner at the temple, the prosecutrix was not present in the

house. His son informed that the prosecutrix had gone to answer the

call of nature. P.W.2 then states that he heard his wife shouting and

rushed towards the direction of the shouts. He reached the fieled of the

accused and saw the accused committing sexual intercourse with the

prosecutrix. He caught hold of hair of the accused and separated him

from the prosecutrix. The accused threatened P.W.2 not to raise an

alarm else he would be murdered. P.W.2 then states that he and the

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prosecutrix reached home and the accused left the field. He noticed a

dupatta tied on the mouth of the prosecutrix. In the cross-examination,

it is elicited that the field of the accused is at a distance of 300 and 350

feet. The evidence that the accused threatened P.W.2 with murder, is

an omission. P.W.2 admits that his employer Ramesh Ingole (P.W.4)

and the accused are political rivals. P.W.2, however, denies the

suggestion that the accused is falsely implicated due to political rivalry.

9. Shri R.L. Khapre, learned Counsel is justified in submitting

that the evidence of P.W.1 prosecutrix and P.W.2 husband is

inconsistent and is indeed irreconcilable. The son of the prosecutrix is

not examined. While P.W.2 states that he caught the accused red

handed committing sexual intercourse and then the accused left the

field, the version of the prosecution is that P.W.2 apprehended the

accused and brought the accused to the residence of the prosecutrix

where he was detained by the son of the prosecutrix while P.W.2 went

to the house of the Police Patil to inform him about the incident. Shri

R.L. Khapre rightly relies on the decision of the Hon’ble Apex Court in

Dilip and another vs. State of M.P. reported in AIR 2001 SC 3049, to

buttress the submission that the prosecution version is rendered

suspect in view of the diametrically different versions of P.W.1 and

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P.W.2 on material aspects of the incident.

10. P.W.8 Sangita Patil who examined the prosecutrix on

14-4-2001 deposed that no signs of injuries were observed suggesting

forcible sexual intercourse. P.W.4 Ramesh Ingole who, it has come in

evidence, is a political rival of the accused, has deposed that he saw the

accused hurriedly walking on the road infront of his house and that the

accused appeared frightened. P.W.4 has deposed that P.W.2 Chaitram

disclosed that he saw accused lying on the person of the prosecutrix.

However, this evidence is by way of omission which is duly proved in

the cross-examination of the Investigating officer. The spot

panchanama Exhibit 32, which is proved by the Investigating Officer

does not take the case of the prosecution any further. Exhibit 32

records that sleepers, a tin container and the underwear of the accused

were found at the scene of the spot, which is in the field of the accused.

The articles are not shown to the prosecutrix in her evidence. That

apart, the version of the prosecutrix is that she was bodily lifted by the

accused when she was about to answer the nature’s call and taken to

the field of the accused. It is highly improbable that the tin container

which the prosecutrix was carrying when she went to answer the

nature’s call at the side of the road would be found in the field of the

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accused. The version of the prosecutrix is that her mouth was tied and

then she was badly lifted which would suggest some scuffle which

would make it highly improbable that the prosecutrix would retain the

possession of the tin container.

11. It is not in dispute that neither the medical nor the forensic

evidence is of any assistance to the prosecution. The evidence of P.W.4

Ramesh Ingole must be discarded for reasons recorded supra. The son

of the prosecutrix is not examined with the result that there are two

inconsistent versions i.e. of the prosecutrix and her husband. The

evidence of the prosecutrix is marred by contradictions and

embellishments and is inconsistent with the contents of the oral report.

The prosecution version is shrouded in doubt. In my opinion, it would

be unsafe and hazardous to base the conviction on the evidence on

record.

12. The judgment and order impugned is set aside and the

accused is acquitted of the offence punishable under Section 376 of the

IPC.

13. The bail bond of the accused shall stand cancelled. The

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fine paid by the accused shall be refunded to him.

14. The appeal is allowed and disposed of.

JUDGE

adgokar

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