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Vishwas Shipurtya Kale vs The State Of Maharashtra on 8 October, 2018

(30)APEALNo.5382016(J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.538 OF 2016

Vishwas Shipurtya Kale,
Age : 33 years, Hindu, Occu : Labour,
Indian Inhabitant, R/at.: Post:Velapur,
Taluka : Malshiras, Dist.:Solapur. … Appellant

V/s.

The State of Maharashtra,
(Through Indapur Police Station
in CR No.213/2011.) … Respondent

…..

Mr.Vikas K. Singh, Appointed Advocate for the Appellant.

Mr.S.V.Gavand, APP for the Respondent/State.

….

CORAM : A.M.BADAR J.

DATED : 8th OCTOBER 2018.

ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging

the Judgment and Order dated 16/04/2016 passed by the learned
Additional Session Judge – 1, Baramati, District Pune in Sessions
Case No.38 of 2012 thereby convicting him of the offences
punishable under Section 376(2)(g), 341 and 368 of the Indian
Penal Code. For the offences punishable under Sections 376(2)(g)

Gaikwad RD 1/16
(30)APEALNo.5382016(J)

and 368 of the Indian Penal Code, the appellant/accused is
sentenced to suffer rigorous imprisonment for ten years apart from
payment of fine of Rs.1,000/-, on each count. For the offence
punishable under Section 341 of the Indian Penal Code, the
appellant/accused is sentenced to suffer rigorous imprisonment for
one year apart from payment of fine of Rs.500/- and in default to
undergo simple imprisonment for one month.

2 Facts leading to the prosecution of the
appellant/accused can be summarized thus :

(a) The prosecutrix/P.W.No.1 is a married woman having four
sons and a daughter. Along with her husband and children,
she used to reside at Kachare Vasti, Kati in Indapur Taluka,
Pune District. The appellant/accused as well as absconding
accused were known to her.

(b) According to the prosecution case, on 13/10/2011, after
completing her labour work, the prosecutrix/P.W.No.1
returned to her house and thereafter left the house for
purchasing grocery. When she reached near the house of one
Mahadev Patil, appellant/accused Vishwas Kale, Rahul Kale
and Chandya Pawar came there on two motorcycles.
Appellant/accused Rahul Kale offered lift to her. The
prosecutrix/P.W.No.1, therefore, took a pillion seat on the

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(30)APEALNo.5382016(J)

motorcycle of appellant/accused. Instead taking her towards
her village, the appellant/accused took her near the tank of
village Varkute. She was then raped by appellant/accused
Vishwas Kale by dragging her in a ditch. Thereafter, her face
including eyes were covered and tied by scarf. She was made
to sit on the motorcycle of the appellant/accused. Co-accused
Rahul Kale sat behind her on that motorcycle. Then she was
taken by the accused persons in the field of jawar after a
journey of about four hours on the motorcycle. There,
accused persons including the appellant/accused uttered that
they want to keep her as concubine and for the period of four
days, she was kept in that field where jawar crop was grown.
All accused persons in furtherance of their common intention
committed rape on her in that field. After about four days,
appellant/accused Vishwas Kale left the spot. Thereafter also
co-accused Rahul and Chandya continued to rape per. Then
on 18/10/2011 at about 8.30 p.m., the prosecutrix/P.W.No.1
was left at village Velapur by the co-accused with a direction
that she should go to the house of her father-in-law, which
was situated in that village. Accordingly, the prosecutrix/
P.W.No.1 alleged that she went to the house of her father-in-
law named Appa. She did not disclose the incident for two
days out of the fear. Then, on 21/10/2011, she lodged the
report of the incident to Police Station, Indapur which has
resulted in registration of Crime No.313 of 2011 against the

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(30)APEALNo.5382016(J)

accused persons. Wheels of investigation were then set in
motion.

(c) During the course of investigation, the prosecutrix/P.W.No.1
was sent to the Sasoon Hospital, Pune for medical
examination. She was examined by P.W.No.7 Dr.Vipul Gurav.
The spot of the incident came to be inspected in presence of
panch witness P.W.No.3 Ramesh Kale. Spot panchanama
(Exhibit 20) came to be prepared. Clothes of the
prosecutrix/P.W.No.1 came to be seized. The appellant/
accused came to be arrested. Statement of witnesses came to
be recorded. Seized articles were sent for chemical analysis.
On completion of investigation, the appellant/accused came
to be charge-sheeted. The Investigator could not apprehend
co-accused Rahul Kale and Chandya Pawar.

(d) The learned Additional Sessions Judge, Baramati framed and
explained the charge for the offences punishable under
Sections 376(g), 342 read with 34, 323 read with 34, 363
read with 34, 366 read with 34, 368 read with 34, 504 read
with 34 and 506 read with 34 of the Indian Penal Code to the
appellant/accused. He abjured his guilt and claimed trial. In
order to bring home the guilt to the appellant/accused, the
prosecution has examined in all seven witnesses. The victim
of the crime in question is examined as P.W.No.1. Her

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(30)APEALNo.5382016(J)

mother-in-law Dropada is examined as P.W.No.2. panch
witness to the spot panchanama Ramesh Kale is examined as
P.W.No.3. Bhanudas Kale is examined as P.W.No.4.
Sureshsingh Pardeshi, a panch witness is examined as
P.W.No.5. Investigating Officer Ramdas Aware, is examined
as P.W.No.6, whereas Medical officer Dr.Vipul Gurav is
examined as P.W.No.7.

(e) Defence of the appellant/accused was that of total denial.

However, he did not enter in the defence. After hearing the
parties, the learned trial Court was pleased to convict the
appellant/accused of the offences punishable under Sections
376(2)(g), 341 and 368 of the Indian Penal Code and he is
sentenced accordingly as indicated in the opening paragraph
of this Judgment.

3 I heard Shri.Vikas Singh, the learned Counsel
appointed to represent the appellant/accused at the cost of the
State. He drew my attention to the evidence of the prosecutrix/
P.W.No.1 and argued that she is not a witness of truth. Her
evidence shows that the incident is inherently improbable. Her
evidence is not supported or corroborated by any other evidence.
The FIR is belated and possibility of concoction cannot be ruled
out. Therefore, the appellant/accused is entitled for benefit of
doubt.

Gaikwad RD 5/16
(30)APEALNo.5382016(J)

4 The learned Additional Public Prosecutor supported

the impugned Judgment by contending that victim of the sexual
offence cannot be treated as accomplice requiring corroboration to
her version. The conviction can be safely recorded even on the
basis of uncorroborated testimony of the prosecutrix. The learned
Additional Public Prosecutor argued that evidence of P.W.No.4
Bhanudas Kale shows that he has seen the prosecutrix/P.W.No.1
going along with appellant/accused on the motorcycle and version
of this witness substantially corroborates evidence of the
prosecutrix/P.W.No.1.

5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including oral as well as
documentary evidence adduced by the prosecution. I am of the
considered opinion that for the reasons stated in subsequent
paragraphs, the appellant/accused is entitled for benefit of doubt.

6 The prosecutrix/P.W.No.1 was a fully grown adult lady
at the time of the incident in question. She was mother of four
sons and a daughter. She was residing along with her husband
and children at Kachare Vasti, Kati in Indapur Taluka in Pune
District. Her chief-examination itself shows that she was
acquainted with the accused persons including the appellant/
accused. The prosecutrix/P.W.No.1 has deposed in tune with the

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(30)APEALNo.5382016(J)

prosecution case to state that she was offered a lift by
appellant/accused Vishwas Kale for reaching to her village and
that is how she sat on the motorcycle of appellant/accused
Vishwas Kale. As per her version, then appellant/accused Vishwas
Kale took her near the tank. The co-accused also followed them
there on the motorcycle. The prosecutrix/P.W.No.1 deposed that
then all three accused persons started taking with each other.
Thereafter, the appellant/accused dragged her in a ditch and
committed forcible sexual intercourse with her. Then her face was
tied by a scarf and the appellant/accused asked her to sit on his
motorcycle. Co-accused Rahul Kale sat behind her and she was
taken by the appellant/accused to the field of grown up jawar
crop. There accused Chandya Pawar followed them by another
motorcycle. The prosecutrix/P.W.No.1 stated that this journey
took two to two and half hours.

7 The prosecutrix/P.W.No.1 further testified that she
was kept in that field of jawar for the period of four days where all
three accused persons successively raped her. She was being fed
with by giving her bhajiya, vada pav and biscuits. Thereafter,
appellant/accused Vishal Kale got phone call and he left the field.
Then also co-accused Rahul Kale and Chandya Pawar continued to
rape her. Then they left her at village Velapur by motorcycle. She
went to the house of her father-in-law situated at that village
Velapur. The prosecutrix/P.W.No.1 in her chief-examination itself

Gaikwad RD 7/16
(30)APEALNo.5382016(J)

had stated that house of appellant/accused Vishal Kale so also that
of other accused persons were situated at village Velapur. The
prosecutrix/P.W.No.1 further testified that at village Velapur,
wives and children of accused persons abused her and beaten her.
She was then taken in custody by police from Velapur Police
Station. On the next day, policemen from Bawada Out-post were
called. On the next date, she was given in custody of her husband.
The prosecutrix/P.W.No.1 further stated that for two days
thereafter she did not lodge any complaint. However, on
21/10/2011 she lodged the report. Perusal of chief-examination
of the prosecutrix/P.W.No.1 did not show any explanation for
lodging the FIR belatedly.

8 Material elicited from cross-examination of the
prosecutrix/P.W.No.1 is interesting. It reflects that the appellant/
accused is nephew of the father-in-law of the prosecutrix/
P.W.No.1. He was on visiting terms with her. He used to come to
her house frequently. The prosecutrix/P.W.No.1 made it clear in
her cross-examination that at the time of marriage of uncle of the
appellant/accused, she went more close to the appellant/accused.
However, she denied that the said intimacy converted in love
affairs between them. The prosecutrix/P.W.No.1 accepted the fact
that on return to village Velapur from the agriculture field, there
was quarrel between her and wives of accused persons. Police
came to the spot. She was taken in custody by police. However,

Gaikwad RD 8/16
(30)APEALNo.5382016(J)

accused persons were not arrested though she was taken in
custody at village Velapur on her return. As per version of the
prosecutrix/P.W.No.1, she did not disclose any incident to police
at that time. To crown this all, the prosecutrix/P.W.No.1 has
candidly accepted the fact that she was taken in custody by police
from house of the appellant/accused Vishal Kale.

9 In her cross-examination, the prosecutrix/P.W.No.1
has stated that after she was taken in custody by police from the
house of the appellant/accused, for the period of two days, there
was discussion between her and her family members about the
complaint which was to be lodged against accused persons and
after due deliberation she lodged complaint against the accused
persons.

10 If material elicited from cross-examination of the
prosecutrix/P.W.No.1 is considered in proper perspective then it
becomes clear that the prosecutrix/P.W.No.1, who was a fully
grown adult female, voluntarily sat on motorcycle of the
appellant/accused with whom she was having acquaintance.
Though she claimed to have been raped by the appellant/accused,
she still sat on his motorcycle again and travelled with him for
about two to two and half hours. Throughout this long journey,
the prosecutrix/P.W.No.1 had tons of opportunities to raise shouts
and to save herself. She did not do so. Then, she claimed to be

Gaikwad RD 9/16
(30)APEALNo.5382016(J)

kept at the open jawar field for the period of four days, where she
was raped by the appellant/accused along with other co-accused
successively. Perusal of the spot panchanama (Exhibit 20) shows
that fields of other agriculturists were there on three side of that
field. On the southern side of that field, there was kachha
dambari road and house of one Subhash Sandipan Koli. Her
evidence shows that she was not kept in any hut, but she was kept
in open space. The spot panchanama does not also reflect
existence of any hut in that field. Evidence of the
prosecutrix/P.W.No.1 does not show that she was under
surveillance of the appellant/accused, so also his two associates in
that long stay of four days. She must be going for answering
nature’s call during these four days. Why the prosecutrix/
P.W.No.1 did not make any attempt to save herself from clutches
of the appellant/accused during the period of four days is a fact
which is not explained by the prosecution in its case. The
prosecutrix/P.W.No.1 had tons of opportunities to give calls for
saving herself. She had opportunity to run from the field where
she was kept as she never claimed that she was kept tied in that
field. However, the evidence of the prosecutrix/P.W.No.1 does
not show that she has taken any opportunity to leave the company
of the appellant/accused as well as the co-accused.

11 If really the prosecutrix/P.W.No.1 was abducted then
raped by three adult person continuously for four days and then

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(30)APEALNo.5382016(J)

she was left to village Velapur, it was not expected her to be found
in the house of the appellant/accused. House of her father-in-law
was situated in the very same village. However, the prosecutrix/
P.W.No.1 herself has stated that police took her in custody after
quarrel from the house of the appellant/accused. This makes her
evidence improbable and untrustworthy. After taking the custody
of the prosecutrix/P.W.No.1, the Velapur Police, as per her
testimony, had handed over her to Bawada Police Out-post. Then
she was given in custody of her husband. Cross-examination of
the prosecutrix/P.W.No.1 shows that she was in custody of police
for one day. During this period, nothing prevented her from
registering her grievance with the police. This did not happen.
After joining company of her in-laws, the prosecutrix/P.W.No.1
did not lodge report to police about the incident of gang rape by
three persons. Her evidence indicates that by deliberating for two
days, the FIR came to be lodged. There is no plausible explanation
for this delay in lodging the FIR on 21/10/2011. At this juncture,
it is apposite to quote observations of the Honourable Apex Court
in the matter of Thulia Kali v. The State of Tamil Nadu 1. The
relevant portion of paragraph 12 from the Judgment of the
Honourable Apex Court read thus :

“The object of insisting upon prompt lodging of the
report to the police in respect of commission of an
offence is to obtain early information regarding the

1 (1972) 2 Supreme Court Cases 393.

Gaikwad RD 11/16
(30)APEALNo.5382016(J)

circumstances in which the crime was committed, the
names of the actual culprits and the part played by
them as well as the names of eye-witnesses present at
the scene of occurrence. Delay in lodging the first
information report quite often results in embellishment
which is a creature of after-thought. On account of
delay, the report not only get bereft of the advantage of
spontaneity, danger creeps in of the introduction of
coloured version, exaggerated account or concocted
story as a result of deliberation and consultation. It is,
therefore, essential that the delay in the lodging of the
first information report should be satisfactorily
explained.”

12 Unexplained delay in lodging the FIR by the
prosecutrix/P.W.No.1 that too after deliberation gives indication
that it is a result of concoction and embellishment. At this
juncture, it is apposite to note the observations of the Honourable
Apex Court in the matter of Sheikh Zakir v. State of Bihar1. How
evidence of the victim of the sexual offence, when such victim is
grown up married woman, needs to be appreciated can be found
in the ratio of this judgment. Relevant portion from paragraph 9
of this Judgment reads thus :

“9. ……. Even though a victim of rape cannot be
treated as an accomplice, on account of a long time of
judicial decisions rendered in our country over a

1 AIR 1983 SUPREME COURT 911.

Gaikwad RD                                                                  12/16
(30)APEALNo.5382016(J)

number of years, the evidence of the victim in a rape
case is treated almost like the evidence of an
accomplice requiring corroboration. (Vide Rameshwar
v. State of Rajasthan, 1952 SCR 377 : (AIR 1952 SC 54)
: Gurucharan Singh v. State of Haryana, (1973) 2 SCR
197 : (AIR 1972 SC 2661) and Krishan Lal v. State of
Haryana, (1980) 3 SCR 305 : (AIR 1980 SC 1252). It is
accepted by the Indian Courts that the rule of
corroboration in such cases ought to be as enunciated
by Lord Reading C. J. in King v. Baskerville, (1916) 2
KB 658. Where the case is tried with the aid of a jury
as in England it is necessary that a Judge should draw
the attention of the jury to the above rule of practice
regarding corroboration wherever such corroborating
is needed. But where a case is tried by a Judge alone,
as it is now being done in India, there must be an
indication in the course of the Judgment that the Judge
had this rule in his mind when he prepared the
Judgment and if in a given case the Judge finds that
there is no need for such corroboration he should give
reasons for dispensing with the necessity for such
corroboration. But if a conviction is based on the
evidence of the prosecutrix without any corroboration
it will not be illegal on that sole ground. In the case of
a grown up and married woman it is always safe to
insist on such corroboration. Wherever corroboration
is necessary it should be from an independent source
but it is not necessary that every part of the evidence

Gaikwad RD 13/16
(30)APEALNo.5382016(J)

of the victim should be confirmed in every detail by
independent evidence. Such corroboration can be
sought from either direct evidence or circumstantial
evidence or from both."

13 The prosecutrix/P.W.No.1 claimed to have stayed in
open agriculture field where jawar crop was grown. She claimed
to have suffered continuous forcible sexual intercourse by three
fully grown adult male persons. After lodging the FIR, she was
sent for medical examination to the Sasoon Hospital, Pune.
P.W.No.7 Dr.Vipul Gurav has examined her. His evidence shows
that on the medical examination of the prosecutrix/P.W.No.1,
there were no external injuries on all over her body. If the
prosecutrix/P.W.No.1 had really undergone ordeal of rape by
three adult persons continuously for four days on rough surface of
the agriculture field, then she must have suffered at least some
external injuries on her person. Non-finding of any external injury
on person of the prosecutrix/P.W.No.1 creates doubt on her
version regarding the incident. That apart, even no internal
injures were found by P.W.No.7 Dr.Vipul Gurav on medical
examination of the prosecutrix/P.W.No.1. If she was a subject of
lust of three adult persons and if she was actually being raped
continuously for four days by those three persons, then her private
part must have shown some signs such as swelling, redness etc.
Non-finding of any internal injuries on the prosecutrix/P.W.No.1
makes her version suspect.

Gaikwad RD                                                                    14/16
(30)APEALNo.5382016(J)

14 No doubt during examination, the Medical Officer

found two abrasions on her left forearm, but those appear to be
resulted on scabies suffered by the prosecutrix/P.W.No.1.

15 Chemical Analysis report at Exhibit 32 shows that
petticoat of the prosecutrix/P.W.No.1 was stained with semen.
However, finding of semen stains on the petticoat of a married
woman is of no consequence. Blood group of the appellant/
accused could not be determined and as such, those semen stains
cannot be attributed to the appellant/accused. In the result, it
needs to be held that the prosecution has failed to establish guilt
of the appellant/accused beyond all reasonable doubts. The
appellant/accused is entitled for benefit of doubt. Therefore, the
Order :

ORDER

(i) The Appeal is allowed.

(ii) The impugned Judgment and Order dated 16/04/2015
passed by the learned Additional Sessions Judge - 1,
Baramati in Sessions Case No.38 of 2012 is quashed and
set aside.

(iii) The appellant/accused is acquitted of the offences
punishable under Sections 376(2)(g), 341 and 368 of the
Indian Penal Code.

Gaikwad RD                                                                 15/16
(30)APEALNo.5382016(J)

(iv) Fine amount, if any, paid by him be refunded to him.

(v) The appellant/accused be released forthwith if not
required any other offence.

(vi) The Appeal is disposed of accordingly.

(A.M.BADAR J.)

Raju
Dattatraya
Gaikwad
Digitally signed
by Raju
Dattatraya
Gaikwad
Date: 2018.10.09
11:58:17 +0530

Gaikwad RD 16/16

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