Bombay High Court
State Of Maharashtra,Thr.Pso.C'Pur vs Rushi Manik Duryodhan on 23 January, 2017
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.640.02
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 640/2002
State of Maharashtra
Through PSO Ramnagar
Chandrapur. .. APPELLANT
v e r s u s
Rushi Manik Duryodhan
Aged about 20 years,
R/o Mamla dist.Chandrapur.ig ... RESPONDENT
...........................................................................................................................
Mr. P.S. Tembhare, A.P.P. for appellant-State
Mr.Ved Deshpande, Adv.h/for Mr. Sirpurkar, for respondent
............................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED OF RESERVING: 20.01.2017
DATE OF PRONOUNCEMENT:.23.01.2017
JUDGMENT:
1. This Appeal is preferred by the appellant-State against the judgment and order dated 8th August, 2002 in Sessions Case No.146/2001 delivered by learned 2nd Additional Sessions Judge, Chandrapur, thereby acquitting the respondent/accused for the offences punishable under section 376(2)(g) and 506 Part-II of the Indian Penal Code.
2. Heard Mr. P.S.Tembhare, learned APP for the appellant-State and Mr. Ved Deshpande h/for Mr.Sirpurkar, learned counsel for the respondent/ accused. I have carefully gone through the entire evidence adduced on behalf of the prosecution and the impugned judgment and order.
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3. Brief facts of the case are that, in the year 2001, the prosecutrix who was residing at village Mamla, Dist. Chandrapur with her younger brother and parents. She was aged about 14-years, studying in VI standard. On 26.6.2001 at abut 9.00 am, the parents of the prosecutrix had gone toChichpalli for thrashing paddy. Younger brother of prosecutrix, Sandip was in the house along with the prosecutrix. At about 3.00 pm, the prosecutrix went to the forest situated at the back side of her house to answer nature's call. When she was under the tamarind tree, all of a sudden, Ashish Sambha Khobragade (juvenile in conflict with law) and Rushi Manik Duryodhan (respondent/ accused) came from back side and took her in the deep forest. She tried to resist, however, Rushi gagged her mouth and made her to lie down on the ground. Rushi caught hold of her hands, Ashish removed her salwar and knicker and he committed forcible sexual intercourse with her. Thereafter, Rushi committed forcible sexual intercourse with her. After some time, both left that place and went away. While going away, they threatened the prosecutrix with dire consequences, if she discloses the incident to anyone. On the next day, when the parents of prosecutrix returned from Chinchpalli, she narrated the incident to her mother. The prosecutrix proceeded to Police Station and lodged the complaint on 28.6.2001. According to the prosecutrix, she received injuries to her hands due to breaking of bangles. The offence was registered. The prosecutrix was referred to General Hospital, Chandrapur, for medical examination. After conducting due investigation charge-sheet was ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 ::: CRI.APPEAL.640.02 3 filed. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the court of session for trial, according to law.
4. Charge was framed against the respondent/accused for the offence punishable u/s.376(2)(g) and 506 Part-II, to which the accused pleaded not guilty and claimed to be tried. The case against the juvenile in conflict with law, was referred to the Juvenile Court. It is the specific case of the respondent/accused that the parents of the prosecutrix opposed the love affair between him and the elder sister of the prosecutrix. Therefore, in order to take revenge against him, the false complaint was lodged.
5. The prosecution examined in all nine witnesses. PW1-Dr. Narayan Daware, who examined the prosecutrix, PW2 is the prosecutrix, PW3-Sindhu Duryodhan, is the mother of prosecutrix, PW4-Kunda Khobragade, is the neighbour of prosecutrix, PW5-Namdeo Gajghate is the Panch witness on the point of place of incident, PW6-Vrinda Gajghate is the maternal aunt, PW 7- Lalita Umare, who brought the prosecutrix to her house, PW8-Dr.Arpita Wawarkar is the Medical Officer who examined the prosecutrix and PW9- Shivaji Salunke, is the Investigating Officer.
6. As far as the age of prosecutrix is concerned, the prosecution has not examined any witness from the school authority. The school leaving certificate dated 4.7.2001 (article-B) issued by the Headmaster of the Z.P. School, Mamla, is produced, which shows the date of birth of prosecutrix as 6.3.1988. Since the concerned Headmaster of the school was not examined in order to prove ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 ::: CRI.APPEAL.640.02 4 the said document, it was not relied upon and the certificate remained unproved. According to the testimony of parents of prosecutrix, her date of birth is 6.3.1988. According to the Medical Officer, the age of prosecutrix was 14-years. Apparently, ossification test of the prosecutrix was not conducted by the Investigating agency. Thus, the age of the prosecutrix is not proved by the prosecution.
7. As far as testimony of PW2-prosecutrix is concerned, on the date of the incident, at about 3.00 pm, she went outside to answer the nature's call. At that time, Rushi (respondent) and his associate-Ashish suddenly came there, took her inside the forest and made her to lie down on the ground. While Rushi caught hold of her hands, Ashish removed her salwar and committed forcible intercourse with her. Thereafter, Rushi took his turn and ravished her.
At that time, Ashish caught hold of the prosecutrix, due to which she sustained injuries on her hands. According to the prosecutrix, after the incident, both the culprits threatened her that if she discloses the incident to anyone she would be killed. The prosecutrix got frightened and she started returning home. However, when she came near her house, due to giddiness, she fell unconscious. After regaining consciousness, she realized that she was lying on a cot in her house. She was informed by those two ladies, namely Kunda Khobragade (PW4) and Lalita Umare (PW7) about the condition in which she was brought back home, by them. At that time, the prosecutrix narrated the entire episode to them and also to her mother, when her mother ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 ::: CRI.APPEAL.640.02 5 returned along with her father from Chinchpalli, at abut 7.00 pm. On the next day, i.e. on 28th June 2001, the prosecutrix lodged the complaint against the culprits.
8. During the course of cross-examination, the prosecutrix stated that when she resisted the heinous act of the culprits the bangles in hands got broken thereby causing injury to her hands. She stated that she received injuries to her private part and for about four days she was having a swelling over her vaginal area and had found it difficult to walk. She also stated that she received abrasions on both her wrists and she had shown all the injuries to Medical Officer. She also stated that she was dragged by the culprits on an uneven and rough surface. She stated that she had received abrasions on her breasts. She disclosed that it was bleeding after the said act of the culprits. According to her, she received abrasion on her back and buttocks.
Significantly, in the cross-examination, the prosecutrix admitted that they had lodged the report in Police Station regarding the fact that her sister had resided in the house of the respondent for a period of one month prior to the incident. Thereafter, the police visited their field and had taken her sister and the appellant to the house of Police Patil. She however stated that she is not aware whether in the house of Police Patil, her sister said that she was staying in the house of the appellant on her own and freewill. She further admitted that her parents got very much annoyed due to the fact that sister of the prosecutrix went to the house of the appellant and stayed with him. She also ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 ::: CRI.APPEAL.640.02 6 admitted that her parents did not wish that her sister should marry with the respondent. She, however, denied that in order to falsely implicate the respondent in this case, she had lodged a false complaint against him. The said version of prosecutrix indicates that there were love-affairs between her sister and the appellant and her sister started residing with the respondent.
However, thereafter, she was brought back. Her parents got annoyed and they did not like the behaviour of the respondent.
9. It is important to note here that as far as the medical evidence of the prosecutrix is concerned, there are no mark of injuries either on her private part or any other parts of the body, such as, breasts, back and buttocks.
According to the Medical Officer PW8-Dr.Arpita Wawarkar, hymen of the prosecutrix was intact and there were no marks of injuries on the body of the prosecutrix. According to the prosecutrix, she received injuries on breaking of the bangles. However, no abrasions or marks of injuries were noticed on both the wrists. Similarly, no swelling on private part, as alleged by the prosecutrix, was noticed by the Medical Officer. No doubt, the victim was examined on 28th Jun 2001 at 11.45 pm. as well as on 30 the June, 2001, however, no mark of injuries were found by the Medical Officer. Although she was allegedly sexually assaulted by two grown up boys, surprisingly the hymen of the prosecutrix was found intact. According to the prosecution, Ashish inserted his penis into his vagina and due to that her hymen got ruptured. However, the medical evidence reveals that hymen of prosecutrix ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 ::: CRI.APPEAL.640.02 7 was intact. Thus, the medical evidence falsifies the version of prosecutrix.
10. According to PW8-Arpita Wawarkar, the prosecutrix attained menarche six months prior to the incident and she did not find any injury on the person or private part of the prosecutrix. She again examined the prosecutrix on 30th June, 2001. However, the same opinion was given by her. According to her, no definite opinion could be given about the sexual intercourse with the prosecutrix as no injuries were seen on the private parts of the prosecutrix.
11. On going through the testimony of the prosecutrix as well as the medical evidence, I do not find any cogent evidence on record which would lead to the conclusion that the prosecutrix was raped by the respondent.
12. As far as the C.A. report is concerned, the C.A. report shows blood on the knicker of the prosecutrix of 'A', group, which was her group.
According to Medical Officer, the prosecutrix was undergoing menstruation since last three days from her medical examination. It means the blood- stains on knicker might be due to her menstruation. Significantly, no blood or semen was detected on the underwear of the respondent. Thus, the C.A. Report does not support the case of the prosecution.
13. As regards the testimony of two ladies i.e. PW 4-Kunda and PW7-Lalita is concerned, they have simply brought the prosecutrix from the forest to her house as she was in giddy condition. Most importantly, the prosecutrix did not disclose the incident to them and hence their testimony is of no assistance to the prosecution case.
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14. So far as spot Panchnama is concerned, no doubt the pieces of bangles were found at the place of the incident. However, it may be noted here that the spot panchnama was conducted two days after the incident. Hence much weightage cannot be given to the said panchnama.
15. In view of the facts and circumstance mentioned supra, I do not find any illegality or perversity in the impugned judgment delivered by the learned 2nd Additional District Judge.
16. It may be worth mentioning here that the case put up by the respondent that since there was rivalry between the family of prosecutrix and the respondent as there were love-affairs between the elder sister of prosecutrix and the respondent and as the father of prosecutrix was against it, the possibility of false implication of the respondent in the present case, cannot be ruled out.
17. It is well-settled principle of law that testimony of prosecutrix stands at par with that of injured witness and sole testimony of the prosecutrix can be relied upon, provided it is found to be cogent, reliable and trustworthy. It should inspire confidence and appear to be credible. However, in the instant case, the testimony of the prosecutrix does not inspire confidence. The prosecutrix failed to disclose the incident to those two ladies when there was best available opportunity to her to narrate the incident to them. Both the witnesses were silent about the disclosure of incident by the prosecutrix when they allegedly brought her to the house from the forest where she was ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 ::: CRI.APPEAL.640.02 9 allegedly found. Even the medical evidence does not support the version of prosecutrix.
18. By now, the law is well-settled in respect of the appeal against acquittal. Merely because, the other view is possible, that itself is not sufficient for the Appellate Court to record a different finding, though the Appellate Court has full power to re-appreciate the entire prosecution case. For exercising the appellate power in the Appeal against acquittal the judgment appealed against, has to be perverse one or the view taken by the Court below is impermissible on the basis of the evidence that is brought on record. In my view, the learned Judge of the Court below has correctly appreciated the facts brought on record by the prosecution. On re-appreciation of the entire prosecution case, I am of the view that, nothing is brought on record to upset the finding and order of acquittal passed by the learned Judge of the Court below. Consequently, the Appeal fails and is dismissed.
JUDGE sahare ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:52:32 :::