Bombay High Court
Ramesh Bajirao Sakharkar vs State Of Mah.Thr.P.S.Allipur on 11 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 40 OF 2002
Ramesh alias Shankar s/o Bajirao
Sakharkar, Aged about 22 years,
Resident of Allipur, P.S. Allipur,
Tahsil - Hinganghat, District - Wardha. .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Allipur, District - Wardha. .... RESPONDENT
______________________________________________________________
Shri R.L. Khapre, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 11
SEPTEMBER, 2017
th
ORAL JUDGMENT :
The challenge is to the judgment and order dated 23-1-2002 in Sessions Trial 22/1996, delivered by the learned 1 st Ad hoc Additional Sessions Judge, Wardha, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offences punishable under Sections 376, 354 and 448 of the Indian ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:54:57 ::: 2 apeal40.02 Penal Code. The sentences imposed are rigorous imprisonment for four years, rigorous imprisonment for six months and rigorous imprisonment for three months for offences punishable under Sections 376, 354 and 448 of the Indian Penal Code respectively.
2. Heard Shri R.L. Khapre, learned Advocate for the accused and Shri A.V. Palshikar, learned Additional Public Prosecutor for the respondent/State.
3. Shri R.L. Khapre, learned Advocate submits that the prosecution has miserably failed to bring home the charge under Sections 354, 376 and 448 of the Indian Penal Code. He would urge, that on a holistic appreciation of evidence on record, it is quite obvious, that the sexual intercourse, if any, was consensual. Shri R.L. Khapre, learned Advocate would invite my attention to certain features of the prosecution case, which according to the learned Advocate, are totally inconsistent with the allegation of forcible sexual intercourse.
4. The first circumstance to which my attention is invited, is the conduct of the prosecutrix. I would advert to the evidence of ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:54:57 ::: 3 apeal40.02 P.W.1, at a later stage in the judgment. Suffice it to say, that the submission of the learned Advocate is that the conduct of the prosecutrix, as has come on record in the evidence of the prosecutrix herself, is consistent with consensual sexual relationship rather than forcible sexual intercourse. The second circumstance to which my attention is invited, is the fact that the medical evidence does not corroborate the prosecution case of forcible sexual intercourse or sexual assault and the third glaring and clinching circumstance is, according to the learned Advocate, the fact that when the prosecutrix lodged the report on the date of the incident i.e. on 12-10-1995 at 2.30 p.m., the only allegation leveled was of molestation. There is not even in a whisper in the report lodged at 2.30 p.m. on 12-10-1995 that the prosecutrix was raped by the accused. It was only on the next day on 13-10-1995 that a supplementary statement was given by the prosecutrix alleging that she was raped. The learned Advocate for the accused would urge that although conviction can be based on the sole uncorroborated testimony of the prosecutrix, the testimony must be implicitly reliable and confidence inspiring. He would urge, that the conviction of the accused on the basis of the sole testimony of the prosecutrix, is illegal inasmuch as the testimony is not at all trustworthy or confidence inspiring.
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5. Shri A.V. Palshikar, learned Additional Public Prosecutor would urge that the prosecutrix had no reason to falsely implicate the accused. The defence that the accused is implicated in view of the refusal of the accused to marry the prosecutrix, is according to the learned Additional Public Prosecutor, inherently unbelievable. The learned Additional Public Prosecutor would submit that the accused has not probablised the defence even on the touchstone of preponderance of probabilities.
6. The prosecutrix is examined as P.W.1. She states that the accused came to her residence at 12.30 p.m. on 12-10-1995 and after a preliminary conversation, caught hold of her hand and when the prosecutrix shouted, the accused asked her not to shout or tell anybody and further threatened the prosecutrix that in case of any disclosure the prosecutrix will be killed. P.W.1 further deposes that she was taken to another room in the house, asked to lie down on the ground of floor of that room, her salwar was 'loosened and removed to some extent' and the accused also removed her knicker. P.W.1 deposes that then the accused removed his full pant, she shut her eyes, the accused committed sexual intercourse and when the prosecutrix asked the accused why he was doing what he did, the accused replied that he be ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:54:58 ::: 5 apeal40.02 allowed to continue the act of sexual intercourse. P.W.1 states that the accused completed the sexual intercourse, wore his full pant and P.W.1 also wore her clothes. P.W.1 states that in the meanwhile, her brother Gajanan arrived and then she lodged the report in police station Allipur.
7. The learned Advocate for the accused is absolutely right in contending that even de hors the cross-examination, if the examination-in-chief of the prosecutrix is considered at face value, what emerges is a consensual sexual act. The evidence of the prosecutrix must be closely scrutinized and tested on the anvil of caution, particularly as the medical examination does not reveal signs of forcible sexual intercourse. The evidence of the prosecutrix is suggestive of a consensual act and the possibility that the prosecutrix lodged a report only due to the arrival of her brother at an inopportune moment, cannot be ruled out.
8. The brother of the prosecutrix Gajanan is examined as P.W.4. He states that he returned to his residence at 12.30 p.m. from the agricultural field and found both doors closed. He pushed the door, entered the house and heard the words "sod-sod" (leave-leave) ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:54:58 ::: 6 apeal40.02 from inside the room of the house. P.W.4 has deposed that in the meanwhile, the accused was running away, P.W.4, however, apprehended the accused and slapped him, as a result of which slap the accused fell down infront of the courtyard of the house. P.W.4 then states in the examination-in-chief that the accused took his shoes from the front courtyard of the house and ran away.
9. I am inclined to agree with the contention of the learned Advocate for the appellant that the evidence of the prosecutrix is not at all confidence inspiring. The evidence of the prosecutrix P.W.1 and that of her brother Gajanan (P.W.4) is absolutely inconsistent. Be it noted, that all that the prosecutrix states in the examination-in-chief is that the accused completed the act and in the meanwhile, her brother arrived at the spot. There is no whisper in the testimony of the prosecutrix that there was any interaction muchless an altercation between P.W.4 and the accused or that the accused was running away and was apprehended by her brother P.W.4 and slapped. All that is said by the prosecutrix is that after completion of sexual intercourse, the accused wore his full pant and the prosecutrix was also wore her clothes and in the meanwhile, Gajanan (P.W.4) reached the house. ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:54:58 :::
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10. The evidence of the prosecutrix, even if taken at face value is not suggestive of a sexual intercourse which is either forcible or which is forced by issuance of threats. The report alleged only molestation. The allegation of rape was made in the supplementary statement given by the prosecutrix on next day on 13-10-1995. The defence of the accused is that the family members and relatives of the prosecutrix exerted pressure on the accused to marry the prosecutrix. A specific defence is taken that after lodging the first information report which alleged only molestation, the accused was threatened that should he not agree to the marriage proposal, he would be falsely implicated for rape. The defence apart, the golden Rule and which salutary principle is the very bedrock of the criminal jurisprudence, is that the accused is presumed to be innocent till the guilt is established beyond any reasonable doubt. It is axiomatic that the prosecution ought to have proved its case on its own legs. I am not inclined to delve in the great detail on the defence which has been suggested to P.W.1 and P.W.4 during the cross-examination and which has also come on record in the statement of the accused recorded under Section 313 of the Criminal Procedure Code, since I am of the opinion that the prosecution has not proved its case, muchless beyond reasonable doubt.
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11. I have no hesitation in holding that the judgment and order dated 23-1-2002 delivered by the learned 1 st Ad hoc Additional Sessions Judge, Wardha in Sessions Trial 22/1996 is unsustainable and same is set aside. The appeal is allowed. The accused is acquitted of the offences punishable under Sections 354, 376 and 448 of the Indian Penal Code. The bail bond of the accused shall stand discharged. Fine, if any, paid by the accused shall be refunded to him.
The appeal is disposed of accordingly.
JUDGE adgokar ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:54:58 :::