Bombay High Court
State Of Maharashtra vs Prakash Kalgya Kale on 28 June, 1988
Equivalent citations: 1988(2)BOMCR693
JUDGMENT Tated, J.
1. The State preferred this appeal against the judgment and order dt. 6th December, 1980 passed by the Additional Session Judge, Ahmednagar, in Session Case No. 95 of 1980 whereby he acquitted the respondent-accused of the charge of rape punishable under 376, I.P.C. and the charge of robbery punishable under S. 392, I.P.C.
2. The prosecution case in brief is that the complainant Mrs. Deubai Rupchand Chavan (P.W. 8), a lady belonging to the nomadic tribe Laman, resided at Waghluj in Tehsil Ashti of Beed district. She and her husband worked as labourers at various places. About two days prior to the date of incident, namely, 22nd November 1978, her husband went to Kolsewadi, near Kalyan, District Thane, for work and asked the complainant to follow him after some days after keeping the household articles in the house of her brother at Waghluj. Accordingly the complainant kept her belongings in the house of her brother and on her way to Kolsewadi she went to Ahmednagar by a State Transport bus. She reached Ahmednagar at about 3.30 p.m. and went to the railway station for going to Karjat by train, from where she wanted to go to Kolsewadi. She purchased a ticket for Rs. 9.50 p. for Karjat. At Karjat she wanted to go to a relation of hers and from Karjat she was to travel to Kalyan by a local train. While the complainant stood in the queue opposite the booking office at the Ahmednagar Railway Station for purchasing a ticket, the respondent-accused was also standing in the queue. The complainant had in her pouch ('chanchi') Rs. 40/-. She took out the wad of currency notes of Rs. 40/- and from it took Rs. 10/- for purchasing a ticket and kept the remaining amount in the pouch. The accused had seen the complainant keeping the amount of Rs. 30.50 P. in the pouch. He purchased a ticket for Sarola Railway Station. While the complainant and the accused were at the platform of the Ahmednagar Railway Station the accused made inquiries of the complainant as to where she was going, and when she boarded the train he also went in the same compartment and took his seat near her. The accused again inquired of the complainant as to where she was going. She told him that her husband had gone for work at Kolsewadi and she was going there to work with him. The accused told her that her husband had not gone to Kolsewadi and that he knew him and he also knew where he was working. He also told her that he would take her to her husband. He assured her that in case her husband was not found there, he would send her on the next day by train to Kolsewadi by purchasing a ticket for her. When the train arrived at Sarola Station, the accused asked her to get down. At that time the complainant told him that she had a ticket for Karjat. Thereupon the accused told her that he would give her another ticket if her husband did not meet her. Thus the accused persuaded the complainant to get down with him at Sarola Railway Station.
3. After the complainant Deubai (P.W. 8) got down at Sarola Railway Station the respondent-accused took her with him, saying that he would take her to the place where her husband worked. One boy was with the accused. The accused asked him to go away and the boy went away. The accused took the complainant for a long distance and in a field having jowar crop he sat down and started smoking a bidi. The accused asked the complainant to sit down. The complainant sensed that she was being deceived and she accordingly told the accused that she was being deceived. The complainant had a sucking child with her. The accused snatched the child from the hands of the complainant. He also snatched the bundles belongings the complainant was carrying with her from her hand. He forcibly made her to sit down and started misbehaving with her. The accused told the complainant that he wanted to marry her and have sexual intercourse with her. As the complainant was not willing to succumb to the demands of the accused, the accused took out a knife and threatened her to submit to his demands and keep quiet. The complainant got frightened on seeing the knife and hearing the threats of the accused. The accused kissed the complainant and forcibly had sexual intercourse with her. The accused also forcibly took the currency notes of Rs. 30/- from the complainant which she was carrying with her in the pouch. After having sexual intercourse with the complainant, the accused asked her to sleep there. It was then about 9 p.m. The complainant refused to sleep. The accused took a dhoti from the bundle of the complainant and spread it over on the ground and slept there, keeping the bundle of the complainant under his head. In that bundle the complainant was carrying some plastic boots and other articles for her children. At that time she had three sons and a daughter. The accused went to sleep and after some time started snoring. The complainant, seeing the accused fast asleep, availed of the opportunity to run away from that place. While going away from there she took with her the bag of the accused containing his articles. With the bag of the accused and her child she went to a cattle shed at a distance of about four to five miles from that place. There were three young boys. She told them that she was deceived by a person who took her to the jungle and forcibly had sexual intercourse with her. She also told them that she had brought the bag of that person. In the morning those boys took her to village Bhorwadi. There she saw the police patil and told him how she was deceived and was forcibly subjected to sexual intercourse. She also showed him the bag of the person who had deceived her. The police patil took her to the police station. She lodged the report Ex.26 at the police station.
4. After recording the complaint of Deubai (P.W. 8) she was sent to the medical officer Dr. Mrs. Madhuri Ramchandra Apte (P.W. 7), who examined the complainant at about 4.30 p.m. on 23rd November 1978 and issued the certificate Ex.23. She found that her hymen was separated and torn. There were small tags. Tears were healed. There was no recent sign of sexual intercourse. The complainant produced the bag of the respondent-accused which she had carried with her. She also produced her semen stained petticoat and her waist pouch at the police station. All those article were seized by the police after drawing up panchnamas. She took the police and the panchnamas. She took the police and the panchas to the scene of the offence, and a panchnama of the scene of offence was prepared. The site of 5' x 5' at the scene of offence was found trampled and the plants of jowar and safflower ('Kardi') were found pressed down. The ash of burnt plastic boots, a piece of a burnt sari, two pieces of plastic boots and two butts of bidis were found there. The panchnama of the scene of offence was prepared on 24th November 1978 in the presence of the panchas Ramdas Jabhaji Bhor (P.W. 2) and one Bhausaheb Bhor. The petticoat of the complainant was sent to the chemical analyser. It was found stained with semen. It had few semen stains ranging from one to five centimeters in diameter spread at places. The semen detected was human. The police made search for the accused, but the accused was not found. He was absconding. He was found and was arrested on 5th July 1980. Thereafter an identification parade was held and in that parade the complainant correctly identified accused. After completing the investigation the accused was prosecuted for the offences punishable under sections 376 and 392, I.P.C.
5. The learned Additional Sessions Judge charged the respondent-accused with the offences punishable under sections 376 and 392, I.P.C. The accused pleaded not guilty. His defence was of complete denial. Regarding the bag and the certificate found in it, he stated that he had lost the bag at Sarola Railway Station. The learned Additional Sessions Judge, on considering the evidence adduced by the prosecution, found that the charges levelled against the accused were not proved, and, therefore, he acquitted him of both the charges.
6. Feeling aggrieved, the State has come up in appeal.
7. The learned Public Prosecutor took us through the evidence on record and he contends that the learned Additional Sessions Judge was not right in finding that there was complainant Deubai (P.W. 8) and that her testimony could not be accepted without corroboration. He submitted that the circumstances attending the crime fully corroborated the testimony of the complainant and the learned Additional Sessions Judge was not right in not accepting her testimony. According to the learned Public Prosecutor, the respondent-accused by misrepresentation and false assurance persuaded the complainant to get down at Sarola Railway Station and thereafter he took her to the jungle on a misrepresentation that he was taking her to a place where her husband was serving. He submits that while the accused and the complainant were passing through a field having jowar crop, away from human habitation, the accused at the point of knife forced the complainant to submit to sexual intercourse. According to the learned Public Prosecutor, the lady, being the mother of four children and she having been unnerved completely on account of the threats of the accused at the point of knife, had no courage left to resist and in that helpless condition the accused forcibly had sexual intercourse with her, and, therefore, one cannot expect injuries on the private parts of the complainant. He also submits that the learned Additional Sessions Judge was not right in finding that had there been sexual intercourse by the accused with the complainant, that must have been with her consent. He submits that the conduct of the complainant and the accused from the beginning till the end completely rules out the possibility of consent. He also submitted that the testimony of the complainant regarding the accused forcibly taking away Rs. 30/- from her could not be disbelieved in the circumstances of the case and it was not right on the part of the learned Additional Session Judge to except recovery of the amount from the accused when the accused was absconding for about two years. Thus the learned Public Prosecutor submits that the accused is liable to be convicted under sections 376 and 392, I.P.C., both the charges having been proved beyond the doubt.
8. On going through the testimony of the complainant Deubai (P.W. 8), we find that there is a ring of truth around her testimony and it is fully corroborated by the circumstances attending the crime. The complainant is an illiterate lady. She hails from a nomadic tribe. She and her husband earned their livelihood by working as labourers at different places. Her husband had gone to work at Kolsewadi, asking her to follow him after some days. Accordingly she, at the instance of her husband, kept her belongings at the house of her brother and left village Waghluj on 22nd November, 1978 for going to Kolsewadi. She went to Ahmednagar Railway Station. There she obtained a ticket for Karjat. That ticket was produced by her while lodging the F.I.R. Ex.26 on 23rd November, 1978. The presence of the ticket clearly shows that the complainant was going to join her husband at Kolsewadi near Kalyan. She had with her one bundle containing her clothes and also plastic goods for her children. The testimony that she had a bundle containing some plastic goods finds support from the F.I.R. Ex.26 and also the half burnt pieces of the goods found at the scene of offence on the next day of the incident. Her testimony that the respondent-accused misrepresented her that her husband had not gone to Kolsewadi and that he knew where he was working and he would take her to him can be believed from the very fact that though she had a ticket for Karjat, she got down with the accused at Sarola Railway Station. She accompanied the accused in the hope that he would take her to husband. Taking advantage of the helplessness of a rustic woman, the accused in a lonely place forcibly had sexual intercourse with her. Before she was subjected to intercourse she was threatened at the point of knife. She had a sucking child with her. One can very well imagine the situation under which she was placed when she was threatened with a knife by the accused. She had no other choice but to submit to the wishes of the accused, and the accused took full advantage of the situation and had sexual intercourse with her. Her petticoat was found extensively stained with human semen. She states that after having sexual intercourse with her the accused wiped her vagina with her petticoat. It is true that the complainant does not say that when she left Waghluj for Kolsewadi she had washed her petticoat. There is nothing on record to indicate that she had sexual intercourse within two or three days before she left Waghluj for Kolsewadi. Under the circumstances, it is too far-fetched to say that those semen stains might be due to the complainant having sexual intercourse with her husband some time before the date of the incident. Her testimony that she left the place seeing that the accused was fast asleep is fully supported by her subsequent conduct. She took with her the bag of the accused which contained two certificates which were admittedly obtained by the accused from the sarpanch. Due to those certificates it could be known that the person who had deceived and forcibly subjected her to sexual intercourse was the accused. The F.I.R. Ex.26 lodged by the complainant immediately on the next day after walking the whole distance from the scene of offence to Bhorwadi and from there to the police station along with the police patil fully supports her testimony. There was no reason for the complainant to make a false allegation of rape and robbery against the accused whom she did not know before the date of incident. No motive for making false report has been suggested during the cross-examination of the complainant. The accused also in his examination under S. 313, Cr.P.C. does not suggest any motive on the part of the complainant to make a false report against him. Taking into consideration all those things, we find that the testimony of the complainant is fully supported by the attending circumstances mentioned above and we see no reason to disbelieve her testimony. We find that the learned Additional Session Judge was not right in observing that there is no corroboration to the testimony of the complainant. As stated by us earlier, there has been ample corroboration to the testimony of the complainant in the circumstances attending the crime.
9. The Supreme Court in various decisions has laid down that the prosecutrix in a rape case should be looked upon an accomplice and her testimony should not be rejected for want of corroboration, though the need of corroboration, as a rule of caution and prudence should always be kept in mind while appreciating her evidence. In this connection, a reference may be made to the decision of the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan, of the report their Lordships laid down the law thus :-
"In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge. In a jury case he must tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the case has hardened into one law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judges or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
Thereafter their Lordships have laid down the nature and extent of the corroboration required when it is not considered safe of dispense with it.
10. In a latter decision - Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, - their Lordships of the Supreme Court exhaustively considered and explained how the evidence of a prosecutrix in sexual offences should be viewed in the social set up in India and whether corroboration is a must for accepting the testimony of the prosecutrix. After considering the factors for a female in western society for levelling false accusation as regards sexual molestation against a male, their Lordships of the Supreme Court at page 1100 (of Cri LJ) : (at p. 757 of AIR) of the report observed thus :-
"By and large these facts are not relevant to India and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated and unsophisticated society. Only very rarely can conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the lane and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it should be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to the face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent".
After enumerating the circumstances which act as deterrent for a female to make a charge of sexual offence against a male, their Lordships laid down the law thus :-
"In view of these factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exclupate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obseisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities-factor' is found to be out of tune."
11. Their Lordships of the Supreme Court in Sheikh Zakir v. State of Bihar, , considered the effect of absence of medical evidence in the form of injuries on the person of the complainant and at page 1288 (of Cri LJ) : (at p. 914 of AIR) of the report propounded the law thus :-
"The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. In fact the complainant has deposed that she had taken bath and washed her clothes after the incident. The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable."
At page 1289 (of Cri LJ) : (at p. 915 of AIR) of the report their Lordships observed :-
"But where a case is tried by a Judge alone, as it is now being done in India, there must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment and if in a given case the Judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is always safe to insist on such corroboration. Wherever corroboration is necessary it should be from an in-dependent source but it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both."
12. Now we propose to consider the evidence in the present case in the light of the law laid down by the Supreme Court in the above decisions. As stated earlier, Deubai (P.W. 8) at the time of the incident was about 30 years of age, having a sucking child of the age of 1 or 2 years. She is an illiterate lady hailing from a backward community, that is, nomadic tribe Laman. She and her husband worked as labourers for maintaining themselves. Her husband and her son had gone to Kolsewadi near Kalyan for work and he had instructed her to follow him after about two days. Accordingly on 22nd November 1977 she started for going to her husband. She had with her sucking child. She had carried in a cloth bundle, the cloth being of her sari, certain articles for her children. They included plastic boots and chappals. On that day she obtained a railway ticket for Karjat. The fare for Karjat was Rs. 9.50 P. She produced that ticket while lodging the F.I.R. Ex.26, and that ticket had been seized by the police and it was produced in the trial Court along with the waste bag in which it was kept. It was seized under the panchnama Ex.16 or 23rd November, 1978. The railway ticket fully supports her testimony that she wanted to go to her husband at Kalyan. She was to go to Karjat and from Karjat by a local train she was to go to Kalyan. It is in evidence that the respondent-accused met her at Ahmednagar Railway platform and got friendly with her. He also joined her in the compartment and, after knowing from her that she was going to Karjat, persuaded her to get down at Sarola Railway Station on the false representation that he knew her husband and that he had not gone to Kolsewadi but he was working at the vasti of Patil of Sarola Pathar. He also told her that he had worked with her husband for two months on railway bridge and he knew her husband and her son very well. He told her that he would take her to her husband. The unsophisticated and illiterate woman from the backward community of Laman did not suspect that the accused was not to deceive her and implicitly believed in him. When he assured that in case her husband was not found there he would see that she was sent to Kalyan by the local train on the next day at 12 noon, the complainant got down at Sarola Railway Station with the accused. The accused states in his statement under S. 313, Cr.P.C. that he had lost his bag at Sarola Railway Station. When he was shown the certificates Exs. 18 and 20, he admitted that he got those certificates from Bhausaheb Baburao Borker (P.W. 5) and Kisan Keshavrao Takale (P.W. 6) and stated that they were lost when his bag was lost at Sarola Police Station. The bag of the accused was produced by the complainant at the police station on 23rd November, 1978 when she lodged her report Ex.26. The bag and the various articles found in that bag belonging to the accused were seized under the panchnama Ex.9 dt. 23rd November, 1978. The plastic bag clearly connects the accused with the crime. It shows that the accused was in the company of the complainant and the complainant somehow managed to take away the bag of the accused without his knowledge and on the next day produced it before the police while lodging her report. The defence story that the accused had lost his bag at Sarola Railway Station has been rightly disbelieved by the learned Additional Sessions Judge. The fact that the complainant had carried the bag of the accused and produced it before the police while lodging the report Ex.26 supports the testimony of the complainant that after the accused got asleep she left the place of the incident with the bag of the accused.
13. The scene of offence was shown by the complainant Deubai (P.W. 8) on 24th November 1978 in the presence of the panchas Ramdas (P.W. 2) and Bhausaheb Bhor. The scene offence is about two miles away from Bhorwadi and it is a lonely place by the side of a hill. There were jowar and safflower crops in that field. The evidence of panch Ramdas and the panchnama of the scene of offence (Ex.11) show that the place where the respondent-accused ravished the complainant was found trampled and the plants of jowar and safflower were found bent. While the complainant left the scene of offence, she could not carry her bundle of belongings because the accused while sleeping had kept it under his head. Her belongings, that is, a sari, a pair of chappals, plastic boots of the children, were found burnt at that place. It indicates that the accused, after he woke up, finding the complainant missing from that place and apprehending that the complainant might approach the police and lodge a report, burnt the bundle containing the belongings of the complainant. We know from the complainant that the accused had smoked bidis and there were butts of the burnt bidis at the scene of offence, as stated earlier. Thus, the scene of offence and the articles found there fully support the testimony of the complainant that the accused had taken the complainant to that lonely place and there, after the sunset at about 8 or 9 p.m., he forcibly subjected her to sexual intercourse. The complainant, after leaving the scene of offence while the accused was sleeping, went to some vasti in the jungle at a distance of about two to three miles and there she waited for the night and the boys who were at the cattle shed took her to the police patil. She states that she narrated the incident to the police patil, who took her to the police station. Ramrao Dhondiram Mahale (P.W. 9), who was present at the police station when the complainant along with the police patil of Bhorwadi arrived there, states that the complainant was accompanied by the police patil of Bhorwadi, the testimony of the complainant that she met the police patil of Bhorwadi and along with him she went to the police station and lodged the report Ex.26 and that she had narrated the incident to the police patil finds support from the F.I.R. Ex.26 lodged by her soon after the incident. The complainant has stated that after the sexual intercourse the accused rubbed her vagina with her petticoat (Art. 6). The petticoat was produced by the complainant before the police in the presence of the panchas on 23rd November, 1978 and it was seized along with the articles under the panchnama Ex.16. There are recitals in the said panchnama that there were thick few semen stains. The contents of the said panchnama are testified to be true by the panch Mrs. Gresbai Bhaurao Padale (P.W. 4). The chemical analyser, as stated earlier, found that there were human semen stains on the petticoat. The testimony of the complainant that the accused after sexual intercourse with her rubbed her vagina with the petticoats finds support from the fact that the chemical analyser found the petticoat stained with human semen. Thus the circumstances mentioned above fully corroborate the testimony of the complainant that the accused by misrepresentation made the complainant to get down at Sarola Railway Station and from there he took her to the jungle at a lonely place and there at the point of knife he forced her to submit to sexual intercourse.
14. The complainant Deubai (P.W. 8) is a married major woman and, therefore, in order to bring home the offence of rape the prosecution must rule out the possibility of a consent by the complainant for the sexual intercourse by the respondent-accused. In the present case when the conduct of the complainant and that of the accused before and after the sexual intercourse is taken into consideration, the possibility of consent by the complainant for the sexual intercourse by the accused is completely ruled out. The complainant, as stated earlier, was a rustic woman with a sucking child and she was on false representation taken by the accused to a lonely place in the jungle and there in a field having crops of jowar and safflower at night time the accused at the point of knife forced the complainant to submit for sexual intercourse. When we visualize the situation in which the complainant was placed, we cannot expect any resistance or violence from the complainant so as to cause injuries to the accused. Similarly, the complainant being a lady having four children and also being in a helpless condition under a threat to her life, we cannot expect any resistance on her part whereby injuries would be found on her person including the private parts. Therefore, in the circumstances of the case, we do not think that the absence of injuries on the private parts of the complainant can be used to discredit her testimony. The proved facts and circumstances narrated above loudly proclaim the guilt of the accused and they lead to no other inference than the accused forcibly had sexual intercourse with the complainant. Consequently, we find that the possibility of consent for the sexual intercourse on the part of the complainant is completely ruled out.
15. We know that we are hearing an appeal against acquittal and if two views on the evidence on record are possible, it would not be proper for this Court to take a different view taken by the trial Court. After giving anxious consideration to the evidence on record and to the factors attending the crime, we are of the view that no other conclusion that the one that the respondent-accused committed rape on the complainant Deubai (P.W. 8) can be drawn. The view taken by the learned Additional Sessions Judge is not at all possible on the evidence on record. Consequently, disagreeing with the learned Additional Sessions Judge, we find that the prosecution has proved beyond reasonable doubt that the accused had forcible sexual intercourse with the complainant on the night between 22nd and 23rd November 1978 and thereby committed an offence punishable under S. 376, I.P.C.
16. It takes us to a minor point regarding the robbery of Rs. 30/- by the respondent-accused from the complainant Deubai (P.W. 8). The accused at the Ahmednagar Railway Station had seen that the complainant had with her Rs. 40/- in currency notes and out of that she used one currency notes of Rs. 10/- for purchasing a ticket for Karjat. The ticket cost her Rs. 9.50 p. She got back 50 Paise from the ticket clerk and she kept them in her waste pouch. Thereby the accused knew that she had in her waste pouch Rs. 30.50 P. Some time after the accused had sexual intercourse with the complainant, the complainant was sitting exhausted and at that time she, being addicted to tobacco, took out her pouch for taking tobacco from that pouch. At that time the complainant states that the accused snatched away from her the pouch and removed Rs. 30/- from it. In her report Ex.26 lodged soon after the incident the complainant has stated this fact. Thus her testimony on this point is fully corroborated by her F.I.R. Ex.26. The learned Additional Sessions Judge did not believe her testimony because the amount of Rs. 30/- was not recovered from the accused. The accused was absconding after the incident and he was arrested about two years thereafter. It is difficult to understand how the amount of Rs. 30/- could have been recovered from the accused after a period of two years. It is pertinent to note that the testimony of P.S.I. Mahale (P.W. 9) that he tried to trace out the accused but he was not found till he was transferred in March 1979 is not at all challenged by the defence by cross-examining him on that point. P.S.I. Mahale states that he had sent constables with yadis to the police station to arrest the accused and a search for the accused was made, but he was not traced out. After P.S.I. Mahale was transferred in March 1979 the charge of the Ahmednagar Taluka Police Station was taken over by P.S.I. Nilkanth and thereafter by P.S.I. Vijay Narayan Gaikwad (P.W. 10) on 26th June 1980. He states that on 22nd February, 1980 his predecessor P.S.I. Nikhumbh had made 'A' final of this case as the accused was absconding. According to him, on 5th July 1980 he received information that the accused had arrived at Bhorwadi. Hence he went to Bhorwadi and arrested the accused on 5th July 1980. The above evidence of P.S.I. Mahale and P.S.I. Gaikwad is not challenged by the defence in the cross-examination of those witnesses. We see no reason to discard their evidence that as the accused was absconding he could not be arrested till 5th July 1980. As the accused was absconding for about one year and eight months, it is futile to expect recovery of the amount of Rs. 30/- from him and even if the amount is recovered, it is difficult to identify the currency notes. The testimony of the complainant is fully corroborated by the F.I.R. Ex.26 lodged by her soon after the incident and, therefore, we see no reason to disbelieve her testimony that the accused forcibly took away from her Rs. 30/-. Therefore, disagreeing with the learned Additional Sessions Judge, we find that the charge of robbery under S. 392, I.P.C. is also satisfactorily proved.
17. In the result, we find that the respondent-accused is liable to be convicted and sentenced of the offence under sections 376 and 392, I.P.C. The learned Counsel for the respondent-accused submits that the incident took place about ten years back. The accused is a labourer and he has been under the shadow of the present prosecution and the appeal for the last about ten years and, therefore, heavy sentence is not called for. She submits that sentence of R.I. for two years will meet the ends of justice. The circumstances under which the accused committed the crime are such that they do not call for any leniency. At the same time we find that the accused is under the shadow of the prosecution and this appeal for the last about ten years. He is an ordinary labourer and at the time of the incident his source of maintenance was service as a watchman of the standing crops. In the peculiar circumstances of the case, we think that it will not be proper to visit the accused with heavy sentence about ten years after the date of the incident. In our opinion, the sentence of R.I. for three years and a fine of Rs. 500/- for the offence under S. 376, I.P.C. and R.I. for six months and fine of Rs. 200/- for the offence under S. 392, I.P.C. will meet the ends of justice. Hence the following order :
The appeal is allowed. The judgment and order of the trial Court acquitting the respondent-accused is set aside and the respondent is convicted of the offence under sections 376 and 392, I.P.C. On the first count the respondent is sentenced to suffer R.I. for three years and to pay a fine of Rs. 500/-, or in default, to suffer R.I. for six months. On the second count the respondent is sentenced to suffer R.I. for six months and to pay a fine of Rs. 200/- or in default, to suffer R.I. for one month. The substantive sentences of imprisonment shall run concurrently. The respondent shall be entitled to set off under S. 428, Cr.P.C. of the period for which he was in custody as an undertrial prisoner. Out of the fine, if recovered, Rs. 500/- shall be paid as compensation to the complainant Mrs. Deubai Rupchand Chavan (P.W. 8). The respondent shall surrender to bail.
18. Appeal allowed.