Bombay High Court
State Of Maharashtra vs Vasant Madhav Devre on 18 July, 1988
JUDGMENT Tated, J.
1. This appeal is directed against the judgment and order dated 26th February, 1981 passed by the learned Additional Sessions Judge, Dhule, in Sessions Case No. 114 of 1980 whereby he acquitted the respondent Police Constable Vasant Madhav Devre of the offences of criminal trespass and rape punishable under sections 457 and 376 of the Indian Penal Code.
2. The prosecution case in brief is that the accused Vasant Madhav Devre is a Police Constable and at the relevant time he was attached to the Police Station at Dhadgaon, Dhule District. Shelya Atya Pavra owns small area of land at village Vadfalya Taluka Dhadgaon, Dist. Dhule and he also worked as a labourer for watching crops in the fields of others. He married Bajubai about seven years before the incident which took place on 7th September, 1980. Bajubai has a child from Shelya. The hut of Shelya is at a distance of about 150 ft. from the Police Station at Dhadgaon. On the night between 7th and 8th September, 1980 Shelya had gone to the field of his master for watching the standing jowar crop. His wife Bajubai and the child of the age of 3 or 4 years were at the hut. In the hut there were two cots. The door of the hut had no latch from inside. At about 11.30 p.m. the accused arrived at the hut of Shelya and called Shelya by his name. As Shelya was not in the hut, his wife Bajubai replied that he had gone to the land. The accused instead of going away pushed open the tin door of the hut, entered into the hut and asserted his authority by saying to the prosecutrix Bajubai that he wanted to take search of the house as she was dealing in liquor. She told the accused that she did not deal in liquor and that he could very well take search of the hut. The accused then stepped ahead and caught hold of the hands of Bajubai, fell her on the cot where she was sitting before the arrival of the accused. The accused gave threats that she would be done away with in case she raised shouts. The accused removed his shirt and pant and committed rape on Bajubai notwithstanding her protest. The accused had completely overpowered her and she was so much frightened that she could not repel the sexual assault by the accused. The accused committed sexual intercourse with Bajubai and while he was in the process, Shelya the husband of Bajubai feeling thirsty returned from the nearby field to drink water. He pushed the tin door of the hut and flashed the torch which was in his hand. At that time he noticed the accused committing rape on his wife. Before he could do anything the accused noticing the arrival of Shelya hurriedly collected his clothes and ran away. Shelya tried to chase the accused but could not succeed in catching hold of him.
3. On the next day at about 8.00 a m. Shelya and his wife Bajubai went to the hotel of Parshi Parbha and disclosed the night incident to the Panch witnesses of their caste. These panch witnesses were Gulabsingh Mitharam Pawara (P.W. 5), Bhimsingh Bhamta and Parsi Parbha. These witnesses advised the couple to wait for two days i.e. on Monday, and Tuesday as those were festival days of Pola and Basipola. After two days Shelya and Bajubai again saw the Panchas. The accused was called. As per the custom in the Adiwasi community to which the victim belonged, Panchas asked the accused to pay a sum of Rs. 3000/- to Shelya by way of compensation which is their community is called Zagada amount. The accused expressed his inability to make the payment. Thereafter the complaint was got written from one Shantabai and the prosecutrix Bajubai along with her husband and some panch witnesses went to the Police Station, Dhadgaon and submitted the written report dated 10th of September 1980 at 11.45 a.m. which is at Exh 9. On the basis of the report offence under sections 457 and 376 of the Indian Penal Code was registered.
4. The private parts of Bajubai were got examined by a woman panch. The panch found swelling on the private parts of Bajubai. Thereafter, Bajubai, was sent to the Medical Officer, Dhadgaon. A search of the accused was made but he could not be found. The accused had moved the Court for anticipatory bail. Thereafter, the accused appeared and he was sent for medical examination. Dr. Navinchandra Wani examined the accused on 19th September, 1980. After the necessary investigation the accused was prosecuted for the offence mentioned above.
5. The defence was of complete denial. According to the accused, in July 1980 one Rupsingh Paradke had been to the Police Station at Dhadgaon where three accused persons of some other crime had been detained in Police lock-up. This Rupsingh wanted to have a talk with the aforesaid accused persons. The accused questioned Rupsingh Paradke and prohibited him from talking with other accused. Rupsingh got offended and threatened that he would see how the accused could stay in Dhadgaon. According to the accused at the instance of Rupsingh the prosecution witnesses gave evidence against him.
6. The learned Addl. Sessions Judge after considering the evidence adduced by the prosecution found that the prosecution failed to prove the charges levelled against the accused and, therefore, the learned Judge acquitted the accused.
7. Being aggrieved the State has preferred this appeal.
8. The learned Public Prosecutor Mr. Suryawanshi took us through the evidence on record and also the judgment of the trial Court. He submits that the accused knew the prosecutix Bajubai before the date of the incident and he had visited her hut 2 or 3 times for some reason or the other. He also pointed out that the hut of Shelya and Bajubai was at a distance of 150 ft. from Dhadgaon Police Station and as such the accused knew Bajubai. He also submits that the accused knew that Shelya was working as a labourer and had to go out for night duty to guard crops and taking advantage of that fact he entered into the hut of shelya during his absence on the pretext that he wanted to search the hut as he suspected that Bajubai and her husband were dealing with country liquor. The learned Public Prosecutor submits that there is no reason for disbelieving the testimony of prosecutrix Bajubai and her husband Shelya who had seen the accused committing sexual intercourse with his wife. He submits that it is improbable that poor persons like Shelya and Bajubai without there being any grudge against the accused would make a false complaint against him. He also submits that Shelya and his wife Bajubai instead of immediately rushing to the Police Station first went to the Panchas of that community and as per the custom in that community the Panchas advised for settling the dispute by accepting an amount of Rs. 3000/- as compensation from the accused (Zagda amount). On that day it was Pola festival and second day was Basi Pola day. Therefore the Panchas advised them that the matter would be thrashed out after Basi pola festival day. Gulabsing (P.W. 5) has corroborated the testimony of Bajubai and her husband regarding their approaching Panchas and narrating them that the accused committed rape on Bajubai at about 11.30 p.m. on 7th September, 1980. He also states that the accused was called before the Panchas and the accused admitted to have done the alleged act but expressed his inability to pay the Zagda amount of Rs. 3000/- to the husband of Bajubai. Thereafter a written complaint at Exh. 9 was submitted at the Police Station.
9. The learned Counsel appearing for the respondent contends that the medical evidence does not show that there was any mark of violence on the person of prosecutrix Bajubai. According to him, had the accused tried to commit rape on her she would have shouted and would have resisted by kicking or scratching the accused. But nothing of this type did take place at the time of the alleged rape. According to him, the report made by Bajubai regarding the rape in view of the negative medical evidence cannot be relied upon. Bajubai was married to Shelya seven years before the date of the incident and she had a child from Shelya. She was accustomed to sexual intercourse. Therefore, from mere absence of injuries on the private parts of Bajubai who was examined as late as on 11th September 1980, it cannot be inferred that she was not subjected to sexual intercourse. We find it improbable that Bajubai and her husband Shelya could dare to make a false complaint against a Police Constable who was attached to the Police Station at the distance of about 150 ft. away from their hut. Consequently, we see no reason to disbelieve the testimony of Bajubai (P.W. 3) and Shelya (P.W. 4) that the accused had been to their hut on the night of the incident and he had sexual intercourse with Bajubai. The subsequent conduct of the accused in remaining away from the Police Station without submitting any application also supports the prosecution story. Consequently, we find that the accused did commit sexual intercourse with Bajubai on the night of the incident.
10. The next point for consideration is whether the sexual intercourse committed by the accused with Bajubai was with her consent. The accused was known to Bajubai as the accused had visited her house 2/3 times before the date of the incident. As the hut of Bajubai and Shelya was at a short distance from the Police Station it is but natural that the accused who was Police Constable at that Police Station was acquainted with Bajubai. He also knew that the husband of Bajubai has been out in the field at night for crop protection. Therefore, on the night of the incident he went to the hut of Bajubai and Shelya and finding Shelya's absence from his hut, he entered into the hut. Besides the testimony of Bajubai there is no evidence of any resistance by her. The accused removed his pant and shirt and kept near the cot. When he removed his shirt and pant, it can be expected that Bajubai could know his evil designs and had she not been a willing party she would have certainly shouted and alerted the neighbours. She admits that she has not raised any cries. When Shelya the husband of Bajubai that night returned home for drinking water, he saw his wife in a compromising position with the accused. Shelya on that night did not try to wake up the neighbours and did not go to the Police Station to report the matter. It was only on the next day that he took his wife with him to the Panchas and the Panchas were told about the night incident. Thereafter, the matter was tried to be settled by asking the accused to pay Rs. 3000/- as Zagda amount and as he did not pay the amount, the matter was reported to the Police Station as late as 10th September, 1980.
11. Taking into consideration the facts and circumstances mentioned above attending the crime, it may be, as deposed to by Bajubai, that the accused overpowered her and threatened her with physical harm in case he resisted and forcibly had sexual intercourse with her. It is also possible that she being already acquainted with the accused, and her husband being out in the field for night watchman duty, consented to sexual intercourse by the accused. When two views are possible on the evidence on record, the view that is favourable to the accused has to be accepted and the benefit of doubt must be extended to the accused. The possibility of consent of Bajubai for sexual intercourse by the accused cannot be ruled out and therefore this Court in appeal against acquittal cannot take the view different from the view taken by the learned trial Judge, when the view taken by the learned trial Judge is not unreasonable.
12. In this view of the matter, we find that there is no substance in the appeal. Hence the appeal is dismissed.
Bail bond stands cancelled.
13. Appeal dismissed.