JUDGMENT A.H. Joshi, J.
1. The appellant herein along with one more accuse Dhanpal S/o Hiraman Mate was tried under Section 376 of the Indian Penal Code in Sessions Case No. 33 of 1994 by the IInd Additional Sessions Judge, Bhandara.
2. The appellant who is accused No. 1 was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo R.I., for seven years and to pay a fine of Rs. 5,000/- in default S. I., for one year.
3. The Judgmnt of conviction is based on: (a) acceptance of testimony of PW-I the prosecutrix Archana, and considering her version being corroborated by the statement of her mother Kusum to whom the prosecutirx had punctually disclosed sexual assault on her; (b) The PW-2 who was co-prosectirx can be believed in so far as the assault on PW-I is concerned though Sangita was not believed in so far as the charge of outraging modesiy levellled against the accused No. 2.
4. The reasons as to why the Trial Judge disbelieved Sangita, however, neglected affirmative statement made by her which would have otherwise favoured the accused No. 1 can be gathered from the contents of para 12 and 13 which paras are referred and quoted in this Judgment for ready reference:
12... During the cross examination of Sangita I observed that she answered most of the question in the questions in affirmative saying "Hoji", without knowing the consequences of it. In her cross-examination she conceded that after coming to the house she did not go again to the house of accused Bhagwan. She also conceded that when she had gone to the house of Archana in the afternoon parents, brothers and sisters of Archana were present at the house of Archana. From the following answers it would also reveal that Sangita replied carelessly or due to tender age she might not be able to know the consequences of her replies.
13 ...Thus the evidence of Sangita is self contradictory. Though the testimony of Sangita raises doubt about truthfulness of her version, one thing is clear that Archana and Sangita were playing under neem tree on the day of incident and at that time both accused had come there. In the oral report Exh. 26, which was lodged immediately on the next day after the night, it is mentioned that Archana was playing with Sangita in front of the house of Narayan Mate, and at that time Bhagwan Mate and brother of Rajendra (accused No. 2 had come there. Archana was taken by the accused No. 1 to his house. Therefore, the evidence of Archana on this point cannot be discarded. As. regards other evidence about the accused No. 2 Dhanpal there is no corroboration to her testimonmy from any independent evidence. Her testimony could not be believed. (Page 127 and 128 of paper book)
5. The learned Trial Judge has thus, found that on one hand Sangita's evidence was not sufficient to convict the accused No. 2, however, was not liable to be discarded as far as the charge against the accused No. 1 is concerned.
6. The learned Advocate for the appellant raised grounds claiming serious exceptions to the Judgment contending that:--
(1) that the conduct of Archana was not natural;
(2) once the version of Sangita in cross examination was discarded because she had disowned the support to prosecution witness without understanding as to what she was telling before the Court, it was gravely risky to rely upon this witness for any purpose including for corroboration;
(3) the version of prosecutrix in absence of medical evidence on the facts of the case cannot be sufficient, particularly when, the suggestions as to enmity of the family of accused with that of the complainant were given;
(4) the manner in which the statement of eye witness Santosh was upset has not been properly considered;
(5) the fact that the evidence of semen could not be related to the accused; while what was evidenced was only swelling, (6) In the C.A' s report, as well as by Doctor, blood stains which are not found, creates a grave doubt about the prosecution story;
(7) the finding by the learned Sessions Judge in pat a 15 in the form of a 'postulate within the Indian Territory' namely : "It is unconceiveable that the parent would invest on their daughter a false story of rape. In Indian sitting society, generally victims of sexual assault and her relatives are not keen to bring the culprit to books and when the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated. In view of the probabilities it is not possible to accept the suggestion that the false story has been concocted in order to implicate the accused falsely." (Page 130 of Paper Book) does not seem to have the value of a postulate as a fact recognisable by Judicial notice.
7. This Court has undertaken scrutiny of evidence and Upon testing the submissions, this Court has to see if the oral evidence of prosecutrix as to commission of rape upon her is corroborated by oral evidence, though the fact of rape could be proved, even only oral evidence of victim and in the even of nan availability of medical evidence.
8. The prosecutrix has deposed that she was taken initially by holding her hand and later on by lifting her through the lane where number of houses exist. Evidence shows that she either did not raise shouts or call for help. Even the prosecutrix claims that she was dragged and forcible rape was committed, however, in evidence forcible sexual marks of assaults on sexual organs are not seen.
9. The medical evidence is saying that there are no injuries on her private part as well the doctor opined that the sexual intercourse has not taken place much less whether it was in the nature of forcible act of sexual assault.
10. It is also seen that the Chemical Analyser's report is not supporting and corroborating the story brought by the prosecutrix.
11. The collective effect of what is found from the evidence is that the conviction and sentence is not based on facts positively proved. The quality of evidence that has come on record creates a grave doubt about involvement of the accused in the offence and entire story becomes doubtful instead of positively proving facts whatsoever in support of prosecution. The accused is, therefore, entitled to the benefit of doubt,
12. The fact that eye witness has been wrongly discarded, it weighs in favour of the accused. In the result, the Judgment and order of conviction and sentence is liable to be reversed. The Judgment and order of conviction and sentence is set aside.