Bombay High Court
State Of Maharashtra vs Subhash Sitaram Sangare on 14 June, 2001
Equivalent citations: 2001CRILJ4468
Author: Pratibha Upasani
Bench: Vishnu Sahai, Pratibha Upasani
JUDGMENT Pratibha Upasani, J.
1. This Criminal Appeal has been filed by the State of Maharashtra being aggrieved by the Judgment and Order 31st Dec. 1985 passed by Sessions Judge, Ratnagiri, in Sessions Case No. 64 of 1985, acquitting the Respondent/ accused Subhash Sitaram Sangare, who had been charged for offences punishable Under Section 376, 354 and 417 of the Indian Penal Code.
2. The prosecution case in nutshell can be narrated as follows :
A private complaint dated 24th August, 1984 came to be lodged in the Court of the Chief Judicial Magistrate, Ratnagiri by the complainant Mangala Balu Mavalankar (PW 3) against the Respondent Subhash Sitaram Sangare for offences punishable Under Sections 354, 376 and 417 of the Indian Penal Code. It was alleged in the said complaint by her that she was resident of Fagarvathar, Ratnagiri and was staying in her own house along with her parents. She was working as a maid servant with one Advocate Patane, and that, she used to leave her house early in the morning at 7.30 a.m., and used to return home at about 6.30 p.m. It was further stated by her in the said complaint that in the year 1983, few days after Diwali, while she was returning home, after finishing her work as maid servksnt with Advocate Patane, the accused allegedly came from her behind, embraced her, pressed her mouth, so as to prevent her from shouting , dragged her near the bushes, removed her underwear, so also, his own underwear and had sexual intercourse wih her. It was further stated by the complainant, in the said complaint that the said act of forcible intercourse was done by the accused against her will and without her consent. It was also mentioned by her that she was threatened by the accused from disclosing the said fact to anyone and that, accordingly, she did not disclose it to anyone, even after returning home.
It is also further the case of the complainant, as narrated in the complaint that three-four days after the incident in question, the accused again accosted her at the same place, and again comitted forcible intercourse with her. He also promised to marry her. Thus, as per the narration of the complainant Mangala, the accused continued to have sexual intercourse with her on five to six occasions. Therefore, she conceived. After completion of about seven months, she fell ill, and was taken to one Dr. Shinde for examination, who told her mother Indira (PW 5) that Mangala was seven months pregnant. Thereafter Indira made queries with Mangala, after coming home, as to who had sexual intercourse with her and it was then that the complainant disclosed the name of the accused.
As per the narration of the complainant, the mother of the complainant then went to the place of the parents of the accused, and told them that their son should get married with Mangala as she was seven months pregnant from him. All of them flatly refused the suggestion, including the accused. Thereafter, a private complaint came to be lodged by Mangala.
3. Thereafter, charge was framed against the accused in the Court of Sessions, Ratnagiri, after the case was committed to the Court of Sessions , Under Sections 376, 354 and 417 of the Indian Penal Code. The accused who was explained the contents of the charge in Marathi, denied the same and pleaded not guilty and claimed to be tried. The defence of the accused was that of total denial. It was also suggested by way of defence that he was a well-to-do person, coming from a rich family and that, the complainant Mangala and her parents were interested in getting her marriage done with him, and therefore, he had been falsely implicated in this case.
4. The learned Sessions Judges, Ratnagiri, after recording evidence and after hearing both the sides, came to the conclusion that the prosecution had established that the prosecutrix Mangala was below 16 years of age at the time when the offence was committed, but that, the prosecution had failed to prove that the accused before the Court had forcible intercourse with Mangala against her will and without her consent. The learned Sessions Judge also gave a finding that the prosecution had failed to prove that the accused before the Court had tried to outrage the modesty of the complainant Mangala or that, he had given any false promise to Mangala to get married with her and that believing upon such a promise Mangala allowed the accused to have sexual intercourse with her. Holding this, the learned Sessions Judge, Ratnagiri, by his impugned Judgment and Order dated 31st Dec. 1985, acquitted the accused/respondent of all the charges levelled against him. Being aggrieved, the State has now approached this Court by way of filing this Criminal Appeal Under Section 378(1) of the Code of Criminal Procedure, 1973.
5. We have heard Ms. Kamat, the learned A.P.P. appearing for the Appellant-State, so also, Mr. Kachare, the learned Advocate appearing for respondent/original accused. We have also gone through the entire record which has been called from the trial Court. After going through the evidence and the impunged judgment, and after hearing both sides, we are of the considered view that the trial Court was correct in acquitting the accused of all the charges levelled against him.
6. The prosecution, to prove its case, examined four witnesses. PW 1 was one Dhondiba Hiroji Kamble, who was the Head Master of Partavane High School, who had brought with him the original School General Registrar maintained in the ordinary course of school working. From the said original School Register, PW 1 Dhondiba Kamble showed entry at Serial No. 76. From the said entry, he deposed that Mangala was admitted to school on 1st June, 1974, and her birth date was shown as 24th Sept. 1968, and that, she left the School on 20th July, 1981. He admitted in his cross-examination that the age of the child to be admitted in school is given to school authorities by the person accompanying the child. He further stated that he was not able to tell as to who had accompanied Mangala when she was admitted in the School in the year 1974, nor was he able to state as to what documentary evidence was produced at the time of admission of Mangala with respect to her age.
PW 2 was one Arun Rajaram Patll, who stated that he was working as a clerk with Municipal Nagar Parishad, Ratnaglri. He had brought the original Birth Register along with him, which mentioned that on 24th Sept. 1968, a women by name, Indira Balu Mavalankar gave birth to a female child. On the cross-examination, he admitted that after making the entry in the birth register, it is usually signed by the clerk concerned and the officer, but that, in this case, there is no signature on the relevant paper.
P.W. 3 Mangala Balu Mavalankar is the prosecurtix , who stated in her deposition that she was knowing the accused Subhash since her childhood, that he was staying at Sangarwadi, and that the said wadi and her wadi were close to each other. She stated that in the year 1983, she was serving as a maid servant with Advocate Patane, and used to leave the house early in the morning at 7.30 a.m. and used to come back by 6.30 p.m. She further stated that the Incident in question took place about two years back, but she was not able to tell the month. She only stated that she remembered that it was a Diwali day and the time was 6.30 p.m. She stated that when she was going to her house after completing the work at Advocate Patane's house, and when she went near the Mango Garden, the accused came from behind, caught hold of her, pressed her mouth and started dragging her. She stated that she tried to rescue herself, but her efforts were unsuccessful. The accused took her behind the bushes and made her lay on the ground removed her underwear; he also removed his underwear and had forcible Intercourse with her. She stated that due to fear and shame, she did not tell about the incident to anyone. She has further deposed that after about seven to eight days, the accused again caught hold of her and again at the same place, behind the bushes, had forcible intercourse with her. She stated that at that time, he threatened that he would kill her. She further "stated that after seven to eight days, again the accused had forcible intercourse with her, and that, this happened four to five times. She stated that she did not disclose this fact to anyone, as she was afraid of the accused and was feel-Ing shy. She also stated that accused had promised her that he would marry her. She stated that in the month of June, she fell ill, started vomiting and having loose motions, and hence, her mother took her to Dr. Shinde at Ratnaglri for treatment. Dr. Shinde examined her, but did not tell her the cause of vomiting. After coming home, her mother asked her from whom she conceived, and at that time, she told her mother the entire incident. Mangala's mother then went to the house of the accused to settle her marriage with the accused. But the parents of the accused flatly refused the proposal given by the mother. Mangala stated that she was then put at Mahila Ashram at Lanja, where she delivered a male child on 21st Sept. 1984. Before that, on 24th August, 1984, she lodged a complaint against the accused in the Court of the Chief Judicial Magistrate.
In the cross-examination, PW 3 Mangala stated that within two-three months time , the accused had sexual intercourse with her on several occasions, and that, in all it was on five occasions. While highlighting the incident of the first time. She admitted that she did not shout when the accused came from behind and embraced her with both his hands. She also admitted that even when the accused was dragging her behind the bushes, she did not shout for help, giving an explanation that she was frightened. She further stated that her clothes were not torn at that time, and that, she had no scratches or abrasions on any part of her body. She also admitted that there was no injury to her private parts after sexual intercourse. She also admitted that immediately after sexual intercourse, she went home, but that, she was not crying when she was going home. She further stated that she did not tell anything about the intercourse to her parents at the time. She also admitted that though accused used to have intercourse wiht her at one and the same place, she did not change the route after the first intercourse with her by the accused. She further stated that on the second occasion, she saw the accused from a distance of 4 to 5 paces, but she did not when she saw him, and that, even on the second occasion, her clothes were not torn. She stated that after second occasion, the accused promised her that he would marry her, but that, she did not tell anyone about that also. She further stated that till the time, she was admitted in Lanja Manila Asharam, she had not given the information about the offence in question, and that, complaint, was lodged only about eight months after the Incident. PW 4 Indira Balu Mavalankar, is the mother of the prosecurtrix. She stated in her deposition that she learnt about the pregnancy of her daughter Mangala only after Dr. Shinde told about it. Thereafter, she made queries with Mangala, who told her that she was pregnant from accused Subhash. She then went to the house of the accused and asked him whether he had promised her daughter that he would marry her daughter. The accused however, kept mum. Thereafter, meeting of few persons from the village was called, but that, the accused said that he was not responsible for the pregnancy of Mangala. Thereafter, Mangala was admitted in Lanja Mahila Ashram, where she delivered a male child on 21st Sept. 1984.
In the cross-examination, Indira admitted that she was not able to tell birth dates of any of her daughters, though she had four daughters. She could only say that the difference between each of the daughter was about two to two and a half years. She also admitted that she was not able to tell birth date of of Mangala, and that, she did not take birth extract of her daughter, when she admitted her in school.
7. This then was the evidence before the learned Sessions Judge for adjudication. After marshalling the said evidence and appreciating the same, the learned Sessions Judge gave a finding that Mangala was below the age of 16 years, but that, on all other counts, the prosecution miserably failed to prove any of the charges, and acquitted the accused, and rightly so. In fact, even as far as the finding given on the age of Mangala is concerned, in our opinion, it cannot be said with certainly that Mangala was below the age of 16 years. Evidence of PW 1, 2 and 4, creates a doubt in the mind as to the exact age of Mangala. PW 1 stated that the age of the child was entered as per the information given by the person ac-'companying the child, and that, he was not remembering as to who had accompanied Mangala at the time, when she was admitted in the School, or what documentary evidence was submitted at that time with respect to her age. As far as the entry in the Municipal register is concernd , it has to be said that even the said entry is not free from doubt. PW 4, the mother of the prosecutrix herself was not sure about the age of Mangala. Thus, the age of Mangala appears to be shrouded in the cloudes of uncertainty, and it cannot be said with certainty that she was a minor. This finding of the learned Sessions Judge therefore, does not appear to be correct.
8. As far as the evidence of the prosecutrix herself is concerned, it is beset with numerous flaws, inconsistency bordering on the line of falsehood and concealment of truth. In fact, it gives a clear impression that Mangala was a consenting party. It is clear from her evidence that the accused and Mangala were known to each other from childhood, their wadis were adjacent to each other. There was no resistance from Mangala as per the deposition given by herself, when the accused allegedly tried to have intercourse with her. As per her own version, nor was there any abrasion or scratches at any part of her body , nor was there any injury on her private parts. Her clothes were not torn and she was not crying when she went home, after the so called forcible intercourse. All these are indications of only one circumstance that she was a consenting party. She had also gone to the extent of saying that though accused used to have intercourse with her at one and the same place, she did not change her route after the first intercourse with her by the accused, and on the second occasion, even when she had seen the accused, she did not shout.
The most unnatural conduct on the part of the the prosecutrix is not telling this incident of rape (?) to her own mother. It would have been but natural of for Mangala to confide in her own mother, if such an untoward and traumatic incident had taken place, and it is very difficult to digest that a young virgin girl did not choose to confide in her own mother, when such a a shockingly traumatic incident took place in her life. This conduct of Mangala is absolutely unnatural, and makes her deposition suspicious. Even PW 5 Indira's deposition to the effect that she did not know anything about the pregnancy of her daughter upto seven months is unbelievable.
The defence of the accused as disclosed from cross-examination and the statement Under Section 313 of the Code of Criminal Procedure, 1973 appears to be that the accused is a well to do person from a rich family, and Mangala and her mother wanted her to get married with the accused. Testing this defence on the touchstone of probabilities, and having considered the nature of evidence given by prosecutrix herself and her mother, the defence cannot be said to be pre-posterous or something which is improbable. The story as given by the prosecutrix appears to be unconvincing and does not point to the accused as a rapist of Mangala. The learned Sessions Judge, therefore, was right in acquitting him. It cannot be said that his findings were unreasonable or perverse. In our opinion, the appeal is without any substance, which deserves dismissal. Hence, the following order:
Criminal Appeal No. 273 of 1986 is dismissed.