Bombay High Court
Bandu S/O Maroti Dupare vs State Of Mah.Thr.Pso.Bhadrawati on 18 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
crapeal103of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.103 OF 2002
Bandu s/o. Maroti Dupare,
aged about 26 yars,
R/o. Baranz Maksa,
Police Station Bhadrawati,
District Chandrapur ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station, Bhadrawati ...... RESPONDENT
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Mr. M.P. Lala & Mr. R.N. Patil, Counsels for Appellant.
Mrs.M.H. Deshmukh, Additional Public Prosecutor for
Respondent /State.
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CORAM
:ROHIT B. DEO, J.
DATE
:18 th
SEPTEMBER, 2017.
ORAL JUDGMENT
The appellant assails the judgment and order dated 8.1.2002 in Sessions Trial 113 of 1996 delivered by the 3 rd District Sessions Judge, Chandrapur 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 ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 2 short) and is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/-.
2 The genesis of the prosecution case is the report dated 11.1.1996 lodged by the prosecutrix inter alia stating that on 10.1.1996 - Wednesday at 6 p.m., she went to Bhadrawati being a weekly market day. The prosecutrix was in the weekly market till 7.30 p.m. and then her brother Suryabhan Dongre dropped the prosecutrix near the field of one Vitthal Punvatkar on bicycle. Suryabhan Dongre left and the prosecutrix was walking towards the village Baranj when she was accosted by the accused near the "Bodi" (a small pond or reservoir) located on the rear side of the school. The accused lifted the prosecutrix from behind and started taking her towards Bodi. The prosecutrix raised an alarm, the accused pressed her mouth, made the prosecutrix fall down, threatened her with the physical harm, undressed her with one hand and at that time the prosecutrix resisted and kicked the accused with both feet. The oral report states that despite the resistance, the accused committed forcible intercourse and then ran away but not before threatening the prosecutrix that if the incident is disclosed, she shall be dealt with appropriately. The oral report states that incident took place at 8.30 p.m. and then ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 3 the prosecutrix disclosed the incident to her husband and alongwith her husband came to the police station to lodge report. The oral report is at Exh. 14 and the First Information Report which is registered on the basis of oral report is at Exh. 37. 3 The investigation culminated into chargesheet being submitted before the Judicial Magistrate First Class, Bhadrawati who committed the case to the Sessions Court, Chandrapur. The learned Sessions Judge framed charge at Exh. 10, the accused pleaded not guilty and claimed to be tried. The prosecution examined as many as ten witnesses. The defence as is discernible from the text and tenor of the cross examination is of total denial and then in the alternate, of a consensual sexual relationship. 4 Heard Mr. M.P. Lala & Mr. R.N. Patil, the learned counsels for the accused and Mrs. M.H. Deshmukh, learned Additional Public Prosecutor for the respondent / State. 5 The learned counsel for the accused submits that evidence on record is grossly insufficient to bring home a charge under section 376 of IPC. The learned counsel would submit that while conviction can rest even on the uncorroborated testimony of ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 4 the prosecutrix, the evidence of the prosecutrix must be implicitly reliable or confidence inspiring. The conduct of the prosecutrix is not natural, is the submission. Shri. Lala, the learned counsel invites my attention to the medical evidence on record to contend that absence of injuries, in the factual matrix, is absolutely inconsistent with the version of the prosecutrix that accused committed forcible sexual intercourse. The learned counsel for the accused would then submit that the fact that the prosecutrix chose to visit the house of the accused rather than directly go to the police station is not the normal human conduct. The learned counsel would submit that there are too many gray areas in the version of the prosecutrix for the conviction to rest on her uncorroborated testimony. The learned counsel would further submit that while the evidence must be weighed and not counted, witnesses who could have thrown light on material aspects of the prosecution version, have not been examined although cited in the chargesheet as witnesses. Shri. Lala, the learned counsel would submit that while whom to examine is the sweet choice of the prosecution and the prosecution is not under any duty to examine multiple witnesses to prove the same fact, failure to examine witnesses who were available and whose testimony would have unfolded the prosecution version and lent assurance or ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 5 corroboration to the evidence of the prosecutrix, fatal. An adverse inference must be drawn against the prosecution for non- examination of witnesses cited in the chargesheet, is the submission.
6 Mrs. M. H. Deshmukh, the learned APP would urge that the testimony of the prosecutrix is more than amply corroborated by the testimony of PW 2 Prakash Dahiwalkar and PW5 Vitthal Punvatkar and the report of Chemical Analyzer Exh.
41. The learned APP would further urge that in the circumstances, the oral report is lodged with promptitude. The prosecutrix has disclosed to her family members at the earliest opportunity that she was sexually assaulted. The absence of injuries on the private parts of the prosecutrix is of no significance since the prosecutrix is a married woman with two children, is the submission.
7 The learned counsel for the accused Shri. Lala did make a serious attempt to persuade me to hold that the defence of total denial must be accepted and that the very act of sexual intercourse is not proved. For reasons spelt out infra, I am not inclined to agree with the learned counsel for the accused that the ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 6 prosecution has not proved the sexual intercourse and that the testimony of the prosecutrix must be discarded in entirety. The learned counsel Shri. Lala then contend that even if it is assumed arguendo that the accused committed sexual intercourse, the relationship was obviously consensual.
8 In my opinion, the central issue for consideration is whether the prosecution has ruled out the possibility that the sexual intercourse committed by the accused was consensual. The prosecutrix (PW1), states that she was working at N.T.P.C. till 6 p.m. in the evening and after finishing her labour work, she went to Bhadrawati to make certain purchases in the weekly market. She purchased vegetables and then went to the bus stop but there was no bus available. It was then, that the prosecutrix met her cousin brother Suryabhan Dongre. She requested Suryabhan Dongre to drop her till Baranj Fata. Suryakant dropped the prosecutrix till the field of Vitthal Punvatkar. The prosecutrix started walking alone towards her house, the accused came on a bicycle with one Machhindra Petkar and stopped the bicycle near the prosecutrix. The accused got down, inquired with the prosecutrix as to whether she had been to the market, Machhindra proceeded towards his house on the bicycle and the prosecutrix ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 7 started walking, when the accused suddenly accosted her, the prosecutrix started running towards a nearby brick kiln, the accused came from behind and caught hold of her neck. The prosecutrix further states that accused pressed her mouth by one hand, pulled her towards a bush situated near the Bodi, made her fall on ground undressed her and gagged her by inserting her saree in her mouth as she had started shouting. She then states that accused committed forcible sexual intercourse and fled from the spot. She went home weeping, narrated the incident to the mother of Vitthal (PW 3) and elder daughter Pratibha. She then states that she went to the house of the accused and informed the parents of the accused about the incident. She further states that the parents of the accused told her not to go to the police station and wait till the accused comes back. She further states that she was present in the house of the accused when the accused returned and then she confronted the accused as to why he did such a thing and the accused replied arrogantly and asked her to do whatever she could. It was only thereafter, that the prosecutrix disclosed the incident to her husband and other persons from the village and went to Police Station, Bhadrawati to lodge report against the accused.
::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 8 9 In paragraph 3 of the cross examination, the prosecutrix admits that the house of the accused is located at a distance of a two houses from her house. She admits that when she reached her house, the family members asked her as to why she came home late from the market. She denies the suggestion that there was a quarrel between her and the husband and that the husband voiced suspicion about her character. She denies the suggestion that it was only in view of the suspicion of the husband that she lodged a false report against the accused at the instance of the husband. The effort of the defence is obviously to suggest that the sexual relationship was consensual and the report was lodged at the behest of the husband of the prosecutrix to ensure stability of the marriage.
10 It is brought on record in the cross examination that distance between the agricultural field of Vitthal Punvatkar and the residence of the prosecutrix is 60 to 70 meters. The prosecutrix admits that she did not request Machhindra Petkar who is known to the prosecutrix, to drop her to her residence. The prosecutrix admits the existence of thorny bushes near the Bodi and that the terrain is rough. The prosecutrix admits that despite the sexual intercourse for half an hour, there was no ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 9 tenderness in her private part.
11 I have no hesitation in concurring with the learned Sessions Judge that the sexual intercourse is proved. The report of the Chemical Analyzer which proves that the semen found on the petticoat of the prosecutrix is of the same blood group as that of the accused. This corroborates the version of the prosecutrix. However, I am impelled to seek corroboration to the evidence of the prosecutrix to the extent that the possibility of consensual sexual intercourse is excluded from consideration. The evidence of the prosecutrix, at any rate the entire evidence of the prosecutrix, is not free from doubt. The conduct of the prosecutrix in non disclosing the incident first to her husband or then, disclosing the incident to her daughter and the mother of PW 5, and going to the house of the accused to inform his parents, does not appear to be natural and normal conduct of a similarly placed woman. A woman who is subjected to a forcible sexual intercourse and that too lasting for half an hour during which period the woman states that she was resisting would ordinarily disclose the incident to her husband and would rush to the Police Station to lodge a report at the first available opportunity. The version of the prosecutrix that she disclosed the incident to her daughter and to the mother of PW5 and then she went to the ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 10 house of the accused is in my opinion not free from doubt and the conviction can not rest on such uncorroborated evidence. The prosecution has not brought on record, the circumstances in which the mother of PW 5 was present in the residence of the prosecutrix as the mother of PW 5 whom the discloser is allegedly made is not examined as a witness although cited as a witness in the chargesheet.
12 Since I am not inclined to agree with the learned APP that evidence of the prosecutrix is implicitly reliable and can be the basis of the conviction, I made an attempt to seek corroboration from the other direct and indirect evidence on record. Unfortunately, this is a glaring case where the prosecution has not examined material witnesses who were cited in the chargesheet and who could have amply corroborated the version of the prosecutrix. May be the blame lies at the doorstep of the both the investigator and the prosecutor. The prosecutrix states that she was dropped near the field of Vitthal Punvatkar by her cousin Suryabhan Dongre. However, Suryabhan has not been examined. The version of the prosecutrix is that the accused came alongwith one Machhindra Petkar on bicycle and then Machhindra left alone. Machhindra is cited as a witness. He ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 11 could have corroborated the version of the PW1 and could have thrown some light on the circumstances in which the prosecutrix and the accused met. The failure of the prosecution to examine Machhindra is inexplicable. According to the prosecutrix, she went home and immediately disclosed the incident to her daughter Pratibha and the mother of Vitthal. The mother of Vitthal is cited as a witness and again for reasons not clear is not examined. Pratibha, the daughter of the prosecutrix is also not examined. The husband of the prosecutrix who is cited as a witness in the chargesheet is again not examined. The learned APP is absolutely right in contending that evidence must be weighed and not counted and that the prosecution was under no duty to examine multiple witnesses to prove the same fact. It is true that whom to examine is ordinarily the sweet choice of the prosecution. However, if material witnesses, who are cited in the chargesheet, are suppressed and such suppression is an impediment in clearing the doubt and in corroborating the evidence of the prosecutrix, as in the case in hand, I have no hesitation in opining that the counsel for the accused is right in contending that an adverse inference against the prosecution can be and must be drawn. Non examination of material witnesses on vital aspects of the prosecution case, in the factual matrix of this ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 ::: crapeal103of02.odt 12 case is fatal.
13 The learned APP would invite my attention to the enunciation of the Hon'ble Supreme Court that proof beyond reasonable doubt is not a fetish and is only a guideline. The learned APP would contend that the Courts must appreciate the broad probabilities of the prosecution evidence in offences involving outraging of modesty or sexual offences against woman. There can not be any quarrel with the contention, in principle. However, while proof beyond reasonable doubt can not be a fetish, the golden rule that an accused is presumed to be innocent till the guilt is established beyond reasonable doubt is too deeply entrenched in Indian criminal jurisprudence for this court to sacrifice the liberty of the accused at the alter of suspicion, however, strong the suspicion may be.
The Judgment impugned is set aside.
Appeal is allowed.
The accused is acquitted of offence punishable under section 376 of the Indian Penal Code.
Bail bond shall stand discharged.
Fine paid by accused, if any, be refunded.
JUDGE Belkhede ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:32:51 :::