Bombay High Court
Sandip Pandurang Kadam vs The State Of Maharashtra on 11 September, 2017
Author: P.R.Bora
Bench: P.R.Bora
1 CRI.APPEAL 327/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.327 OF 2016
Sandip s/o Pandurang Kadam
Age: 27 Yrs., occu. Agril.
R/o Chincholi, Tq. Tuljapur,
District Osmanabad. = APPELLANT
VERSUS
The State of Maharashtra
Through its Police Station,
Tuljapur, Tq. Tuljapur,
District Osmamanabad. = RESPONDENT
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Mr.S.S.Choudhari, Advocate for Appellant;
Mr.S.P.Tiwari, APP for Respondent
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CORAM : P.R.BORA, J.
RESERVED ON : 14
th
August, 2017
PRONOUNCED ON: 11
th
September,2017
JUDGMENT:
1) Present appeal is filed against the Judgment and order passed by learned Additional Sessions Judge at Osmanabad in Sessions Case No.9/2015 decided on 6th May, 2016. Vide the impugned judgment, the appellant has been convicted for an offence punishable under Section 376 of the Indian Penal Code and has been ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 2 CRI.APPEAL 327/2016 sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to suffer further R.I. for three months.
2) On 10th September, 2014, a report was lodged against the appellant at police station Tuljapur by the prosecutrix. It was alleged by the prosecutrix that on 10.9.2014, when she was proceeding towards her field, on the way to her field, she was obstructed by the appellant- accused and thereafter was raped by him. It was alleged by the prosecutrix that though she opposed and tried to give alarm, her mouth was gagged by the appellant and thereafter he committed forcible intercourse with her. The prosecutrix immediately rushed in the nearby field to one Surekha Nana Kadam, who, according to her version, was her maternal aunt and narrated the incident to her. The said incident was thereafter narrated by the prosecutrix to her in-laws and also to her husband and then on the same day, she lodged the report against the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 3 CRI.APPEAL 327/2016 appellant.
3) On such report being lodged, crime was registered against the appellant, vide Crime No. 185/2014 and the investigation was conducted by the police station Tuljapur. The prosecutrix was immediately sent for chemical examination. Thereafter spot panchanama was prepared. The clothes of the prosecutrix, which were on her person at the relevant time of the occurrence of the alleged incident, were seized. The accused was arrested on the next day of the incident. He was also sent for his medical examination. His blood and semen samples were collected. The clothes seized from the person of the prosecutrix as well as the accused and the blood and semen samples were sent for the chemical analysis. After receiving the report from the Chemical Analyzer, it was confirmed that the semen, which was noticed on the petticoat of the prosecutrix, was of the accused - appellant. The statements of the necessary witnesses were recorded by the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 4 CRI.APPEAL 327/2016 Investigating Officer and after completing the investigation, charge sheet was filed in the court of Judicial Magistrate First Class, Tuljapur, Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the said case to the Court of Session, whereupon it was registered as Sessions Case No.9/2015. The learned Sessions Judge framed the charge under Section 376 of IPC against the appellant and explained it to him in vernacular. The appellant did not plead guilty and claimed to be tried.
4) In order to prove guilt of the accused, total nine witnesses were examined by the prosecution. The defence of the accused was that of false implication. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused also examined one witness in his defense. On her assessment of the oral and documentary evidence on record, the Additional Sessions Judge held the appellant guilty for ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 5 CRI.APPEAL 327/2016 offence under Section 376 of the Indian Penal Code and after hearing the accused on the point of punishment, sentenced him to suffer rigorous imprisonment for seven years with fine of Rs. 1,000/-, in default to under further R.I. for three months. Aggrieved by, the accused has preferred the present appeal.
5) Shri S.S.Choudhari, learned Counsel appearing for the appellant - accused, criticized the impugned judgment on various grounds. The learned Counsel submitted that the trial court has utterly failed in appreciating that there was no conclusive evidence to show that the accused committed intercourse with the prosecutrix without her consent. The learned Counsel submitted that the chemical analyzer's report in respect of vaginal swab collected after the alleged incident of rape, demonstrates that no semen was detected therein. The learned Counsel submitted that this was clearly indicating that no intercourse had taken place as alleged by the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 6 CRI.APPEAL 327/2016 prosecutrix. The learned Counsel further submitted that the medical report in respect of the accused revealed that no injury was noticed on his person or to his genitals. The learned Counsel submitted that had it been the case of the forcible intercourse as alleged by the prosecutrix, there must have been some injury on the person of the accused and also to his genitals.
6) The learned Counsel further submitted that it was the case of the prosecution that the accused committed rape on the prosecutrix at the muddy place. The learned Counsel submitted that the clothes seized from person of the prosecutrix nowhere reveal that any mud stain was noticed thereon. The learned Counsel further submitted that as per the case of the prosecution itself, at the relevant time, the prosecutrix was carrying two sickles with her. The learned Counsel submitted that it appears improbable that in spite of having two sickles with her, the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 7 CRI.APPEAL 327/2016 prosecutrix would not use the said sickles even in case of forcible intercourse with her by the appellant accused.
7) Learned Counsel further submitted that the prosecution has utterly failed in proving that the appellant had forcible intercourse with the prosecutrix without her consent and as such, no conviction could have been recorded by the learned Sessions Judge. The learned Counsel, therefore, prayed for setting aside the impugned judgment of conviction and consequently to acquit the appellant of the charge levelled against him under Section 376 of IPC.
8) Shri S.P.Tiwari, learned APP appearing for the State supported the impugned judgment. The learned APP submitted that the FIR of the alleged incident was promptly lodged. The prosecutrix has testified the facts before the court, as are revealing from the FIR lodged by her. The evidence of the prosecutrix has been ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 8 CRI.APPEAL 327/2016 fully corroborated by the other witnesses. The report of the Chemical Analyzer and the medical evidence on record also fully support the case of the prosecution. In the circumstances, according to learned APP, the Sessions Court has rightly held the appellant guilty of the commission of rape on the prosecutrix. The learned APP further submitted that the defense put forth of the accused of consensual sex has been rightly rejected by the learned Sessions Court. The learned APP, therefore, prayed for dismissal of the appeal.
9) I have carefully considered the submissions advanced by the learned Counsel appearing for the appellant and learned APP appearing for the State. I have also perused the impugned judgment and the entire evidence on record.
10) It is the case of the prosecution that the appellant caught hold of the prosecutrix when ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 9 CRI.APPEAL 327/2016 she was proceeding towards her field and then gagging her mouth so that she should not shout, committed forcible intercourse with her. The FIR lodged by the prosecutrix reveals that in an attempt by the accused of having forcible intercourse with her, the semen of the accused fell on her petticoat. As has been deposed by the prosecutrix in her testimony before the court, the accused thereafter fled from the spot and she went to Surekha Kadam, i.e. her maternal aunt (PW 3) and narrated her the incident. It is the further case of the prosecution that PW 3 - Surekha Kadam then called mother-in-law of the prosecutrix, to whom also the alleged incident was narrated by the prosecutrix and the prosecutrix was then taken to home by her mother in law. As per the further case of the prosecution, thereafter, the prosecutrix, accompanied by her in-laws, went to police station Tuljapur and lodged the report against the accused.
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11) As against the story of prosecution, it is the case of the accused that the prosecutrix instigated him to have sexual intercourse with her, however, before they could have sexual intercourse, the maternal aunt of the prosecutrix saw them in the said compromising position and thereafter the prosecutrix, on insistence from her in-laws, lodged a false case against him, alleging that he had forcible intercourse with the prosecutrix without her consent.
12) The prosecution evidence has to be scrutinized in light of the allegations made by the prosecutrix and the defense as has been raised by the accused. As has been testified by the prosecutrix before the Court, at about 2 p.m. when she was proceeding towards their field having two sickles in her hand, near the well of one Gautam, the accused caught hold of her left hand and when she started shouting, kept his right hand on her mouth, then threw her on the earth, torn her petticoat and inserted his penis ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 11 CRI.APPEAL 327/2016 in her vagina. The prosecutrix has further stated that the semen of the accused fell on her petticoat. It was further deposed by the prosecutrix that she assaulted the accused by giving blows on his face and then the accused fled from the spot. It has further come in her evidence that then she went to Surekha Kadam (PW
3) and narrated her the incident. The prosecutrix has further deposed that then she narrated the incident to her mother in law as well as to all of her family members. She has further deposed that thereafter they went to police station Tualjapur and she lodged the complaint against the accused. In her evidence, before the court, she admitted the contents of the report lodged by her to the police and also her signature over the said report. The said report is at Exh.15.
13) PW 3 - Surekha in her evidence before the court, has deposed that at about 1 noon of the day of incident, she heard the shouting from ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 12 CRI.APPEAL 327/2016 the well of Kalyan Kadam, however, as the crushing machine was in operation, she did not give any attention to the said shouts. Surekha has further deposed that thereafter the prosecutrix rushed to her and disclosed to her that the accused, by gagging her mouth, committed rape on her. PW 3 has further deposed that the prosecutrix also disclosed to her that she assaulted the accused by fist blows. It has also come in the evidence of PW 3 that then she called mother in law of the prosecutrix and the prosecutrix narrated the entire incident to her mother in law. PW 3 Surekha further deposed that the prosecutrix and her mother in law then went to their house.
14) PW 4 - Shardabai Tukaram Kulkarni, is mother in law of the prosecutrix. She has deposed before the Court that on the day of the incident, she had asked the prosecutrix to go home and bring sickles therefrom. She has further deposed that the prosecutrix narrated her ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 13 CRI.APPEAL 327/2016 the entire incident. She has then deposed that, she took the prosecutrix to home and thereafter she lodged the report against the accused.
15) In so far as charge against the accused that he had forcible intercourse with the prosecutrix without her consent is concerned, the evidence of the prosecutrix would only be material. Evidence of PW 3 and PW 4 is relevant to the extent that the prosecutrix, at the first instance, disclosed the alleged incident to PW 3 Surekha and thereafter to PW 4 - Shardabai. A deeper scrutiny, therefore, has to be made of the evidence of the prosecutrix.
16) As noted by me herein above, the defense of the accused is that he and the prosecutrix attempted to do sexual intercourse with consent. The learned Additional Sessions Judge, has, however, rejected the theory of consent, observing that there is no such evidence or circumstance brought on record by the accused so ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 14 CRI.APPEAL 327/2016 as to accept the defense so raised by him.
17) Perusal of the impugned judgment reveals that the learned Additional Sessions Judge has heavily relied upon the Chemical Analyzer's reports and the medical evidence brought on record by the prosecution. It is true that the semen, which was detected on the petticoat of the prosecutrix, which, she was allegedly wearing at the time of happening of the alleged incident, is proved to be of blood group `B', which is admittedly the blood-group of the accused. However, after having considered the entire material on record, it does not appear to me that detection of the semen of the blood-group of the accused on the petticoat of the prosecutrix, cannot be a strong circumstance in the present case for holding the accused guilty of the offence of rape. In the FIR lodged by the prosecutrix, it was the case of the prosecutrix that the semen of the accused fell on her petticoat. In her testimony before the Court ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 15 CRI.APPEAL 327/2016 also, she reiterated the said fact. The fact that his semen fell on the petticoat of the prosecutrix has also not been denied by the accused. However, he has denied that he had sexual intercourse with the prosecutrix. From the tenor of the cross-examination, it can be gathered that it was the case of the accused that it was the prosecutrix, who instigated him to have sexual intercourse with her, but, before they could have the sexual intercourse, they were noticed by PW 3 - Surekha in the said compromising position and in that attempt, his semen fell on the petticoat of the prosecutrix.
18) In the instant case, according to me, it is not that material whether or not the accused had the penetrative intercourse with the prosecutrix. It was sought to be canvased by Shri Choudhari, learned counsel for the appellant, that no semen was detected in the vaginal swab collected of the prosecutrix after the alleged occurrence. According to Shri ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 16 CRI.APPEAL 327/2016 Choudhari, it supports the contention of the accused that he did not have intercourse with the prosecutrix. However, I am not convinced with the point so canvassed by the learned counsel. It is not necessary that at the time of intercourse, there must be seminal discharge in the vagina though she has deposed that the accused inserted his penis in her vagina. It is also not the case of the prosecutrix that the semen of the accused was discharged in her vagina. On the contrary, in the FIR itself, it is the specific contention of the prosecutrix that the semen of the accused fell on her petticoat and not in her vagina. In the circumstance, merely because no semen is detected in vaginal swab of the prosecutrix, it is unsafe to draw any such inference that the accused did not have intercourse with the prosecutrix.
19) The material issue is whether the accused had the intercourse with the prosecutrix forcibly and without her consent? It is not in ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 17 CRI.APPEAL 327/2016 dispute that when the accused allegedly caught hold of the left hand of the prosecutrix, she was having two sickles with her. As has been admitted by the prosecutrix, the sickles were having sharp pointed surface at inner side. Neither in the FIR nor in her testimony before the court, it is disclosed by the prosecutrix as to in which hand, she was holding the said two sickles when the accused allegedly held her left hand. The entire prosecution evidence is further silent on the point as to what happened to the said two sickles after the accused allegedly held the left hand of the prosecutrix. Only when in the cross-examination, a suggestion was given to the prosecutrix that it was possible for her to assault the accused by the sickles in her hand that she has denied the said suggestion and has further explained that both the sickles in her hand fell down.
20) PW 8 - Pradip Pawar, the Investigating Officer, in his cross-examination, has admitted ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 18 CRI.APPEAL 327/2016 that he did not make any investigation as about the said two sickles. It appears improbable that the prosecutrix would not disclose as to what happened to the sickles in her hand when the alleged incident happened.
21) It is not the case of the prosecutrix in the FIR lodged by her that when the accused held her left hand, the sickles fell down on the earth. It is worth to reproduce herein below the relevant portion in the FIR so lodged by the prosecutrix, which reads thus, -
"vkt rk- 10-09-2014 jksthps 12-00 ok- lqekjkl ek>k uojk ?kjkps toG vlysY;k 'ksrke/;s dkans yko.;klkBh fu?kwu xsyk- R;kposGh eh o lklwckbZ vls vks<;kP;ktoG vlysY;k 'ksrke/;s eqx rksM.;klkBh xsyks- 'ksrke/;s iksgkspwu vkEgh nks? kht.kh v/kkZ&ikm.k rkl gkrkus eqx rksMys- gkrkus eqx rksM.ks yodj mjdr ulY;kus lklwckbZus eyk ?kjkdMs tkmu foGk vk.k.;kl lkafxrys- R;kaP;k lkax.;kuqlkj eh ?kjkdMs xsyks o ?kjkrwu nksu foGs ?ksmu 'ksrkdMs ijr tkr vlrkuk vankts 02-15 ok- lqekjkl okVse/;s vlysY;k dY;k.k dne ;kaps iDD;k foghjhtoG vkys vlrk ikBhekxwu ,dkus ek>k Mkok gkr /kjyk- eh ?kkc:.k ekxs ikfgys vlrk vkeP;k Hkkodhrhy lanhi ikaMqjax dne ;kus ek>k gkr /kjyk gksrk- eh ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 19 CRI.APPEAL 327/2016 vkjMkvksjM d: ykxys rj R;kus R;kpk mtok gkr ek>s rksaMkoj Bsoyk o eyk [kkyh ikMys-"
In her testimony before the Court, the prosecutrix has deposed as under, -
"....That time one person came behind from me and caught hold of my left hand. So, I saw that he was Sandip Kadam. I started shouting.
So, he kept his right hand on my
mouth. Then he thrown me on
floor....."
As has been deposed by the prosecutrix, the accused had come from her behind and hold her left hand. As further deposed by her when she saw as to who was the said person, she identified the said person to be Sandip Kadam, i.e. the accused. She has further deposed that then she started shouting and because she started shouting, the accused kept his right hand on her mouth and then threw her on the floor. Thus, it is not the case of the prosecutrix that when the accused caught hold of her left hand, the sickles ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 20 CRI.APPEAL 327/2016 in her hand fell down. On the contrary, as per the averments in the FIR as well as from her testimony before the Court, when a person coming from her behind held her left hand, she saw to her backside as to who was the said person and on seeing the said person identified him to be the accused. Had the sickles in her hand really fallen down at that time, the said fact must have been disclosed by the prosecutrix at the very first instance, i.e. at the time of lodging the FIR. As noted herein above, the FIR is silent on the issue. Even if it is accepted that in the FIR it may not be possible to incorporate each and every information, it appears quite improbable and unnatural that the prosecutrix would not disclose in her testimony before the Court about the same. When the prosecutrix could provide all other particulars in detail, it cannot be accepted that she will forget to disclose as to what happened to the sickles in her hand. The explanation of the prosecutrix has come on record as about the said sickles only ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 21 CRI.APPEAL 327/2016 when it was suggested to her in the cross- examination that she could have made assault on the accused by the said sickles in her hand.
22) It is further significant to note that, though, it was the specific case of the prosecutrix that at the time when the alleged incident happened, she was having two sickles with her, the Investigating Officer has not made any investigation as about the said sickles. In fact, the first question ought to have crept in the mind of the investigating officer as to what happened to the sickles in the hands of the prosecutrix and why she did not use the said sickles in her defense to avoid the alleged forcible intercourse on her by the accused.
23) From the entire aforesaid evidence, reasonable doubts are certainly created about the allegations made by the prosecutrix against the accused that he had forcible intercourse with her without her consent. From the facts which have ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 22 CRI.APPEAL 327/2016 come on record, the explanation given by the prosecutrix that the sickles fell down on the earth appears difficult to be accepted. I reiterate that the aforesaid fact was so material that it must have been disclosed at the first instance by the prosecutrix and if that was missed at the time of giving FIR, there was no reason for not to disclose the said fact in the evidence before the Court. There is substance in the argument made by the learned Counsel for the accused that in spite of the sickles in the hands of the prosecutrix when she did not make any use of the said sickles to defend herself from the alleged rape by the accused, a reasonable inference emerges that if at all any such attempt was made by the accused, the same was not opposed by the prosecutrix leading to a further possible inference that the attempted sexual intercourse was consensual.
24) There are certain other circumstances also, which have created reasonable doubts about ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 23 CRI.APPEAL 327/2016 the allegation made by the prosecutrix that the accused forcibly had intercourse with her without her consent. It is the case of the prosecutrix that after her left hand was held by somebody, to whom later on she has identified to be the accused, she started shouting. She has further deposed that the accused, therefore, gagged her mouth by his right hand and then committed rape on her. It has to be stated that as has been deposed by the prosecutrix some more acts had taken place after the accused gagged her mouth;
that the accused threw her down, that he tore the petticoat of the prosecutrix, that he drew out his penis and eventually inserted it in vagina of the prosecutrix. It appears improbable and unnatural that the accused could have done the aforesaid acts by his left hand, simultaneously holding his right hand tight over the mouth of the prosecutrix so that she should not again shout. Even if it is accepted that when prosecutrix initially shouted, her mouth was gagged by the accused. from the facts, as are ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 24 CRI.APPEAL 327/2016 further deposed by the prosecutrix, there is reason to believe that the prosecutrix was having every opportunity to again give alarms and thus, she could have made the attempt by the accused unsuccessful.
25) Further, as has come on record through evidence of the prosecutrix herself as well as PW 3 - Surekha and PW 4 Shardabai, the spot where the alleged incident is said to have occurred, is surrounded by the fields and in the said fields, the persons were carrying out the agricultural operations when the alleged incident happened. Admittedly, it was the time of afternoon. It appears somewhat improbable that having a knowledge that in the adjoining fields the agricultural operations are going on and several persons are present in the said fields, somebody would dare to commit sexual intercourse with any woman without her consent.
26) Further, as has come on record, the spot ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 25 CRI.APPEAL 327/2016 where the prosecutrix is alleged to have been raped by the accused was wet. However, admittedly, no mud or mud-stains are noticed on saree of the prosecutrix. The spot panchaname clearly depicts that the alleged spot was wet leading to an inference that if somebody commits rape at the said place, wet mud would certainly get attached to the saree of the victim. The Investigating Officer has also admitted that the spot of incident was wet. However, no mud or mud-stains are noticed on saree of the prosecutrix. Reasonable doubt is, therefore, created about the happening of the alleged incident at the said spot. It has to be stated that the spot was shown by the prosecutrix herself.
27) As has deposed by the prosecutrix in her cross-examination, she was wearing bangles when the alleged incident happened and the pieces of said bangles fell on the spot of occurrence, indicating thereby that in an attempt by the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 26 CRI.APPEAL 327/2016 accused to have forcible intercourse with the prosecutrix, the bangles in her hands were broken and pieces thereof were spread over on the spot. In light of the fact so stated by the prosecutrix, if the spot panchanama is perused, it does not show existence of the pieces of broken bangles on the spot. The fact that pieces of bangles were not found at the spot of occurrence also creates a reasonable doubt about the fact deposed by the prosecutrix and also about the occurrence of the alleged incident at the said spot.
28) When it is the case of the prosecutrix that in the alleged incident her bangles were broken some injury may be minor, at least an abrasion must have been caused to the prosecutrix. Admittedly, no such injury is noticed on person of the prosecutrix. This circumstance also creates reasonable doubt about the allegation made by the prosecutrix against the accused.
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29) Non-existence of any notable injury on person of the prosecutrix and no injury on person of the accused is another circumstance, which has also created serious doubts about the case of the prosecution. As I noted earlier, the medical evidence has weighed in the mind of the learned Additional Sessions Judge in reaching to the conclusion that the accused committed rape on the prosecutrix. It has come in the evidence of PW 5
- Dr.Kiran Ghadge that in the medical examination by her of the prosecutrix, after occurrence of the alleged incident, three abrasions noticed on the chest of the prosecutrix, which were fresh. As has been further deposed by Dr. Kiran, three abrasions were noticed on the chest of the victim were indicative of the struggle of the prosecutrix against the sexual intercourse. Based on the said evidence of Dr.Kiran, the learned Additional Sessions Judge has recorded a finding that the prosecutrix was raped. In light of the evidence of PW 5 - Dr.Kiran, if the testimony of the prosecutrix before the court is ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 28 CRI.APPEAL 327/2016 perused, the prosecutrix has not stated that any such injury was caused to her because of the alleged incident of rape or that the same was caused by the accused while committing rape on her. No much weightage, therefore, can be given to the opinion so given by the Medical Officer. Merely on the basis of the said evidence, it is very unsafe to hold that the prosecutrix was raped. In the case of forcible intercourse, there is some resistance from the prosecutrix, injuries would be necessarily on the back and not only on the chest. Non-existence of any injury on person of the accused is another circumstance, leading to an inference that there was no resistance from the prosecutrix.
30) In the cross-examination, the prosecutrix has stated that she hauled shirt of the accused and, therefore, the shirt was torn. However, if the seizure panchanama in respect of the clothes of the accused is perused, it nowhere demonstrates that the shirt which was seized from ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 29 CRI.APPEAL 327/2016 person of the accused was torn at any place. The prosecutrix in her evidence before the court has identified the said seized shirt to be the same shirt allegedly worn by the accused at the time of the alleged occurrence. In the circumstance, the fact stated by the prosecutrix that she hauled the shirt of the accused and, therefore, it was torn has proved to be false.
31) The fact that the accused torn her petticoat was not stated by prosecutrix in the FIR lodged by and has come on record, for the first time in her testimony before the Court. The fact that she hauled the shirt of the accused and, therefore, it was torn was also not stated by her either in the FIR or in her examination in chief before the Court. Only when certain suggestions were given indicating that she had instigated the accused to have sex with her that she added that she pulled the shirt of the accused and, therefore, it was torn, probably to suggest that she was not consenting party, but ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 30 CRI.APPEAL 327/2016 was resisting the attempt.
32) In the statement given by the accused under Section 313 of Code of Criminal Procedure, he has specifically said that near the well the maternal aunt of the prosecutrix called mother in law and husband of the prosecutrix at the spot and all of them condemned the prosecutrix and abused her and the husband of the prosecutrix went to the extent of beating her. The accused has further stated that then his father was also called on the spot and money was demanded from him.
33) I am conscious of the fact that the statement given by the accused under Section 313 of Cr.P.C. cannot be a conclusive cause for either his acquittal or his conviction. However, if the facts stated by the accused in such a statement are corroborated by any other evidence on record, the facts so corroborated can be certainly used for recording the conclusion ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 31 CRI.APPEAL 327/2016 accordingly. Viewed the statement of the accused with this angle, the fact as has been stated by him that the husband of the prosecutrix was called on the spot of occurrence has been corroborated by PW 3 - Surekha as well as PW 4 - Shardabai. In the cross-examination of PW 3 - Surekha, she has admitted that the husband of the prosecutrix had reached on the spot of occurrence though she has denied the further suggestion that he made an assault on the prosecutrix. PW 4 - Shardabai, however, has also accepted in her cross-examination that her son Vishwas i.e. husband of the prosecutrix reached on the spot immediately. Shardabai has further admitted that he became angry towards his wife, i.e. the prosecutrix. The facts as have come on record through the statement of the accused and through the oral testimony of PW 3 and 4, will have to be conjointly considered.
34) The fact which has come on record through cross-examination of PW 4 - Shardabai ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 32 CRI.APPEAL 327/2016 that the husband of the prosecutrix had become angry with assumes importance. In given circumstances, no husband is likely to become angry with his wife. On the contrary, he would have all sympathy, compassion towards his wife and he would first try to console her. As was rightly argued by the learned Counsel for the appellant, the fact that the husband of the prosecutrix condemned her, has to be considered and understood in premise of the statement of the accused under Section 313 of the Code that the prosecutrix instigated him to have sex with her. In the circumstance, the defence of the accused that he and the prosecutrix attempted to do sexual intercourse with consent is difficult to be ruled out.
35) After having considered the entire prosecution evidence, I find it difficult to agree with the conclusion recorded by the learned Additional Sessions Judge holding the accused guilty for the offence under Section 376 of IPC. ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 33 CRI.APPEAL 327/2016 I reiterate that there are plural circumstances, which I have discussed in detail herein above, which create reasonable doubts about the case of the prosecution. From the evidence which has come on record it is difficult to record any such concrete conclusion that the accused had sexual intercourse with the prosecutrix without her consent. In absence of any unimpeachable evidence against the accused, he deserves to be given benefit of doubt and hence deserves to be acquitted of the charge levelled against him under Section 376 of IPC.
36) For the reasons stated above, following order is passed, -
ORDER
i) The order of conviction passed
by the learned Additional Sessions Judge, Osmanabad in Sessions Case No.9/2015 is quashed and set aside;
ii) The appellant - accused stands ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 ::: 34 CRI.APPEAL 327/2016 acquitted of the offence under Section 376 of IPC. He be released forthwith, if not required in any other case or crime;
iii) The Criminal Appeal thus stands allowed in the aforesaid terms.
(P.R.BORA) JUDGE bdv/ fldr 14.8.17 ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 02:02:58 :::