1 CRI. APPEAL 400/2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 400/2012
Digambar s/o Pandurang Kadu,
Age : 40 years, Occu. Nil,
R/o Dukare Vasti, Satral
Tq. Rahuri, Dist. Ahmednagar.
...Appellant.
(Orig. Accused)
Versus
The State of Maharashtra
ig ...Respondent.
.....
Shri S.J. Salgare, Advocate for the appellant (Appointed).
Shri N.R. Shaikh, A.P.P. for State.
.....
CORAM : T.V. NALAWADE, J.
DATED : 25th October, 2012 JUDGMENT:-
1. The appeal is filed against the judgment and order of Sessions Case No. 45/2011 which was pending in the Court of Additional Sessions Judge, Ahmednagar. The trial Court has convicted and sentenced the appellant for offences punishable under section 376 and 506 of the Indian Penal Code. Both the sides are heard. Original record is perused.
2. In short, the facts leading to the institution of the appeal can be stated as follows.
::: Downloaded on - 09/06/2013 19:19:45 :::2 CRI. APPEAL 400/2012 The complainant Dadasaheb Dukare is the father of the prosecutrix. The accused and complainant are residents of village Satral Tq. Rahuri District Ahmednagar. The house of the accused is situated at the distance of around 250 feet from the house of the complainant. At the relevant time, the accused was aged about 40 years and the prosecutrix was aged about 15 years.
The prosecutrix is described as simpleton, little bit mentally retarded but she was studying in 6th standard in a School from Satral.
3. The incident took place on 29/11/2010. The prosecutrix left for the School at about 10.30 a.m.. She returned to home at 5.00 p.m. and then she informed to the complainant and her mother that at 3.00 p.m. which was recess time of the School, the accused had come to her School and he had collected her from the School after taking permission of the Headmistress of the School. She informed that the accused had informed the School that the grand mother of the prosecutrix was sick. The prosecutrix further disclosed that the accused then took her on his motor cycle to the field of one Chormunge and then in sugar cane crop, he committed rape on her. She disclosed that the accused had given threat of life to her and he had warned not to disclose the incident to anybody.
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4. A cousin brother of complainant had died recently and so the complainant was observing religious restraint (Sutak).
Due to this circumstance, the complainant did not approach police immediately. On 30/11/2010, Yogesh Chormunge and Arun Dukare of the village of complainant approached him and informed that they had seen the accused taking the prosecutrix to the sugar cane crop of Chormunge. They also informed that when they had made inquiry with the accused, the accused had avoided to give reply to them. Even after receiving such information, the complainant did not approach police due to the religious restraint which he was observing. He went to the Police station and gave report on 03/12/2010. Crime No. 362/2010 came to be registered in Rahuri Police Station for aforesaid offences.
5. On 03/12/2010 the Police referred prosecutrix for medical examination to rural hospital, Rahuri. The Doctor found that there was recent tear of hymen. On the same day, the complainant produced clothes of prosecutrix which she had on her person on the day of the incident. The complainant showed spot of the offence to the police. The panchanama of this incident came to be prepared. During the course of investigation, statements of some witnesses came to be recorded. The Police collected record from the School with regard to the age of prosecutrix and with regard to the incident of collecting prosecutrix ::: Downloaded on - 09/06/2013 19:19:45 ::: 4 CRI. APPEAL 400/2012 by accused from the School on 29/11/2010. Age of the prosecutrix was determined on the basis of radiological examination. The Doctor gave opinion that the age of prosecutrix was between 14 and 16 years. The accused came to be arrested and he came to be medically examined. The police forwarded the clothes of the prosecutrix, the underwear of the accused etc. to Chemical Analyser's office along with the blood samples. After completion of investigation, charge sheet came to be filed for aforesaid offences.
6. In the trial Court, the prosecution has examined the complainant, the prosecutrix, two Doctors who had examined the prosecutrix, two staff members of the School, panch witness and two police officers. The trial Court has believed all these witnesses. The accused took defence of total denial. He contended that due to some property dispute, he is falsely implicated in the case. Various points on the basis of facts and also law, were raised in this proceeding.
7. Though it is the case of the prosecution that the prosecutrix is little bit mentally retarded, there is no remark about demeanour of the prosecutrix made in the record of deposition by the Court. In the charge sheet, the name of prosecutrix was not given as witness. Even statement under section 161 of the Code ::: Downloaded on - 09/06/2013 19:19:45 ::: 5 CRI. APPEAL 400/2012 of Criminal Procedure was not recorded by the Investigating Agency. Such statement was never recorded. The State filed application under section 311 of the Code of Criminal Procedure and sought permission of the Court to examine the prosecutrix.
By allowing the application, the Court permitted the State to examine the prosecutrix as a witness.
8. Doctor Unde (P.W. 9) has given evidence that he examined prosecutrix on 10/12/2010 when she was brought to his hospital by the complainant. He has deposed that on examination he found that the prosecutrix is suffering from mild to moderate mental retardation. He has deposed that such patient can develop language, communication and social skills with some occupational skills. He has deposed that the prosecutrix can be described as simpleton person. However, the evidence of Doctor shows that if any incident happens to a person like prosecutrix, such person can narrate and communicate the incident. In the cross examination, the Doctor has specifically admitted that the prosecutrix was communicating with him very well. The certificate prepared by this Doctor is at Exh. 45.
9. Inspite of the aforesaid evidence of Dr. Unde, the statement of the prosecutrix was never recorded by the Investigating Officer. It can be said that initially the prosecution ::: Downloaded on - 09/06/2013 19:19:45 ::: 6 CRI. APPEAL 400/2012 wanted to give evidence of only complainant on the basis of the alleged disclosure made by the prosecutrix the complainant. In the present case, the complaint itself came to be given to Police late by four days. The deposition of the prosecutrix came to be recorded on 11/01/2012 i.e. after more than one year of the incident. The prosecutrix has given her age as 15 years and medical evidence shows that her age was between 14 and 16 years. No birth certificate is produced. These circumstances need to be kept in mind at the time of appreciation of the evidence of the prosecutrix.
10. The prosecutrix (P.W.4) has given evidence that she knew the accused from prior to date of the incident, as the house of the accused is adjacent to her house. She has deposed that she used to call accused as Mama (Maternal uncle). She has deposed that on that day, the accused came to her School at about 3.00 p.m. and collected her from School by informing that her grand mother was sick. She has deposed that the accused then took her on motor cycle with him to the field of Chormunge.
She has deposed that in the field, the accused removed her clothes and committed rape on her. She has deposed that after this, the accused took her to the road and left her on the road.
She has deposed that when she reached home, she narrated the incident to her parents. She has given evidence that her medical ::: Downloaded on - 09/06/2013 19:19:45 ::: 7 CRI. APPEAL 400/2012 examination was done subsequently. Her evidence does not show that any person from village had seen her in the company of the accused after leaving of the School by her.
11. In the cross examination, the prosecutrix was specifically asked as to what Balatkar (Marathi word for rape) means. She was asked to state what exactly accused had done with her. She could not describe the incident and she simply said that "she can not state". The other evidence in the cross examination of the prosecutrix, which amounts to admissions given to the suggestions, is quoted as under.
(i) True to say that before coming to Court, my father tutored me as to what to speak in Court.
(ii) For the first time I am stating in the Court that Digambar committed rape on me.
(iii) True to say that on the say of my parents and relatives, I am stating that rape is committed on me.
(iv) On the say of my parents, I am deposing in the Court today.
12. The inability of the prosecutrix to describe incident and the aforesaid admissions given by the prosecutrix can not be ignored in view of peculiar circumstances of this case. They have created reasonable doubt about entire story of the prosecution.
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13. The prosecutrix (P.W. 4) has deposed that her School is situated at walking distance of ten minutes from her residential place. The evidence is given by prosecution witnesses that at about 3.00 p.m. the accused collected prosecutrix from her School. Dadasaheb (P.W. 1) the father of the prosecutrix has given evidence that the prosecutrix returned to home at 5.00 p.m..
It is already mentioned that the prosecutrix has not given evidence that anybody had seen her in the company of accused near field of Chormunge or on the road on that day. Though the complainant, father of prosecutrix has given evidence that two persons like Yogesh Chormunge and Arun Dukare gave him information on the next day that they had seen the prosecutrix with the accused, these two witnesses are not examined. All these circumstances are very important as the statement of the prosecutrix was never recorded under section 161 of the Code of Criminal Procedure by Police.
14. The complainant (P.W. 1) has given evidence that on that day the prosecutrix disclosed the incident to him after 5.00 p.m. when he made inquiry with her. Some additional evidence is given by complainant by saying that prosecutrix had informed that the rape was going on for ½ hour. The complainant has given evidence that as he was observing religious restraint (Sutak) due to death of his cousin brother, he did not go to police on ::: Downloaded on - 09/06/2013 19:19:45 ::: 9 CRI. APPEAL 400/2012 29/11/2010. No specific evidence is given about custom in the community or his family about following of religious restraint and there is no independent witness on this circumstance. As the complaint was ultimately given on third day of the next month, it was necessary for the complainant to say as to for how many days such religious restraint is observed in his family or community. The complainant has given evidence that on the next day Yogesh Chormunge and Arun Dukre came to him and gave information against accused. On that day also, the complainant did not approach police. The report at Exh. 22 is proved in the evidence of complainant and it is consistent on the point of alleged disclosure made by the prosecutrix to the complainant.
15. The evidence of Dadasaheb (P.W. 1) does not show that his wife examined prosecutrix physically to ascertain the truth on 29/11/2010. No evidence is given that the clothes of the prosecutrix were examined by the wife of Dadasaheb (P.W. 1).
He has admitted that he did not tell about incident to any villager.
He has given evidence that he was visiting village after the incident. He has given evidence that the prosecutrix kept attending School after this day and she attended School on 30/11/2010 also. Such evidence is given by prosecutrix also.
Thus, conduct of the complainant (P.W. 1) and prosecutrix (P.W.
No. 4) was not normal. The conduct shows that they were
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following their daily routines and they were not observing any religious restraint. As the delay of four days was caused in giving report to police, the said conduct can not be ignored. This Court has no hesitation to hold that delay is not sufficiently explained.
The aforesaid circumstances are ignored by the trial Court. In a case of rape, the delay caused in giving report is serious circumstance and it needs to be given due consideration. The evidence which can be collected immediately after the incident gets destroyed if there is such delay. This point is being considered at other place also by this Court. This point is important as immediate examination of the accused can also prove innocence.
16. It is not the case of the complainant Dadasaheb (P.W.
No. 1) that he visited spot of offence to ascertain the truth. No evidence is given by prosecutrix that she showed spot to anybody.
The evidence of Shivaji Dukare(P.W. 2), panch witness on the spot panchanama shows that complainant showed spot. The panchanama is at Exh. 24. After considering document at Exh.
No. 24, it can be said that there was nothing incriminating on the spot. However, the witness has tried to say that the place shown by Dadasaheb (P.W. 1) was appearing as "damaged place". From the contents of Exh. 24, it can not be said that place was cleared for committing rape.
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17. The prosecution has given evidence that clothes of the prosecutrix and the accused were seized and they were sent to Chemical Analyser's office. Chemical Analyser's report at Exh.
No. 58 shows that neither blood nor semen were detected on the clothes of both these persons.
18. The Head Mistress of School, Jayshree Nanaware (P.W. 5) and supervisor of the School Shri Kolapkar (P.W. 6) have given evidence that on that day at 3.00 p.m. the accused collected prosecutrix from School by saying that her grand mother was sick.
The accused was known to the School. School register was brought by the witnesses to the Court and copy of entry about incident of collection of prosecutrix is produced on the record at Exh. 32. To this witness, suggestions are given to show that the entry of the name of the accused was made subsequently and entry does not bear signature of the accused. It is true that as against most of the entries there are signatures of the persons who had collected ward. As against this entry, there is signature of the prosecutrix. However, in the cross examination of the prosecutrix, suggestion was given by defence counsel that on that day the prosecutrix is collected by accused from School but she was reached to her locality immediately. Even if this circumstance is held to be proved, it was necessary for the prosecution to prove that offence of rape was committed on that day. Only on the ::: Downloaded on - 09/06/2013 19:19:45 ::: 12 CRI. APPEAL 400/2012 basis of such circumstance, it can not be inferred that on 29/11/2010 the offence was committed.
19. Dr. Vairagar (P.W. 8), Medical Officer of Rural hospital examined the prosecutrix on 03/12/2010. He has given evidence that he found tear of hymen and the tear was posteriorly at 6.00 O' clock position. The Doctor has given opinion on the basis of this tear that "there was definite evidence of recent sexual intercourse". Only due to the word "recent" used in his opinion it needs to be presumed that Doctor wanted to say that rupture was recent. No specific evidence is given about the age of this rupture, tear. As the word "recent" is used, there is probability that Doctor wanted to say that it was within 24 hours. Thus, probability is created by medical evidence that tear to the hymen was caused within 24 hours prior to the examination. This medical evidence is not consistent with the aforesaid direct evidence. This circumstance also needs to be considered seriously as the delay of four days was caused in giving report to the Police.
20. In view of definition of rape given in Section 375 of the Indian Penal Code, it can be said that even slight penetration which does not result in an injury to hymen is sufficient to prove offence of rape. The victim of rape case is not accomplice and so ::: Downloaded on - 09/06/2013 19:19:45 ::: 13 CRI. APPEAL 400/2012 in rape case insistence of corroboration is generally not compulsory in the eye of law. On this point, the case reported as 2004 Cri.L.J. 1399 (Aman Kumar and another Vs. State of Haryana) Supreme Court was cited. The Apex Court has discussed definition of rape in this case and also the necessity of corroboration. In the present case, there are following circumstances due to which this Court holds that the corroboration was necessary to the version of prosecutrix. The circumstances are like (i) delay of four days caused in giving F.I.R.. (ii) Subsequent conduct of prosecutrix and complainant of following daily routine, (iii) the non recording of the statement of prosecutrix by Investigating Officer under section 161 of the Code of Criminal Procedure, (iv) the admission given by the prosecutrix that she is tutored by parents and relatives to say that rape is committed against her, (v) inconsistency in medical evidence and direct evidence (vi) absence of other circumstantial evidence which could have become available in this case, and (vii) inability of prosecutrix to describe the incident. So, in view of facts and circumstances of this case, this Court holds that corroboration was necessary.
21. Complainant Dadasaheb (P.W. 1) has admitted that the accused is a social worker. Head Mistress of the School of the prosecutrix (P.W. 5) has given evidence that the accused had ::: Downloaded on - 09/06/2013 19:19:45 ::: 14 CRI. APPEAL 400/2012 donated 11 School uniforms of girls to the School. The prosecutrix (P.W.4) has admitted that brother of the accused had sold their land to the relatives of the complainant but the accused was not ready to sell his land. She has admitted that the accused has dispute with Chormunge. The incident allegedly took place in the field of Chormunge and name of one more Chormunge, Yogesh Chormunge is given who had allegedly supplied some information to the father of prosecutrix. These circumstances show that there were reasons for false implication of the accused and such probability cannot be ruled out.
22. In rape case, prompt F.I.R. is expected as many kinds of medical evidence can become available when there is prompt F.I.R..
In the case like present one, following kinds of evidence can certainly be collected, if the F.I.R. is prompt.
(i) Marks of violence, resistance on the persons of accused or prosecutrix.
(ii) Marks of violence at the genitals.
(iii) Presence of blood or semen stains on the clothes of prosecutrix or accused.
(iv) Presence of spermatozoa in or near vagina.
(v) On examination of accused, the presence of smegma as negativing rape.
(vi) Signs of loss of virginity.
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This Court has made sufficient discussion about the circumstance of rupture of hymen. For collecting other aforesaid kinds of evidence, prompt F.I.R. was necessary in this case. Due to absence of such corroboration and peculiar facts and circumstances of this case, it is not possible to believe both the prosecutrix and her father. This Court holds that benefit of doubt needs to be given to the accused.
23. One more important point is involved in this case. The evidence of the prosecutrix and the Doctor shows that it was possible for investigating officer to record statement of prosecutrix under section 161 of the code of Criminal Procedure. But he avoided to do so. When there was no reason for not recording the statement of prosecutrix, to create record of her version, some explanation was expected from prosecution. Such explanation is not available. On this point, for the appellant reliance was placed on a case reported as 1984 (2) Crimes (X) page 698 Allahabad High Court (Bhola and others Vs. State). In this case, Allahabad High Court has discussed one Supreme Court case and one case of Privy council and they are AIR 1954 S.C. Page 700 (Purushottam Jethanand Vs State of Kutch) and AIR 1947 Privy Council 67 (Kottaya Vs. Emperor).
Allahabad High Court has observed that it needs to be presumed that prejudice is caused to the defence when the statement of material ::: Downloaded on - 09/06/2013 19:19:45 ::: 16 CRI. APPEAL 400/2012 witness is not recorded by Investigating Officer u/s 161 of the Code of Criminal Procedure.
24. Aforesaid point needs to be considered from different angles. Section 173(2) (c) of Cr.P.C. shows that in the charge sheet the names of persons who appeared to be acquainted in circumstances of the case need to be mentioned. These persons can be examined as prosecution witnesses. Section 173(5) (b) of Cr.P.C.
shows that along with report / charge sheet the Investigating Officer must produce the statement recorded u/s 161 of Cr.P.C. of all persons whom prosecution proposes to examine as its witnesses.
The procedure of inquiry laid in Section 202 of Cr.P.C. in a case which is triable by Sessions Court also shows that even in a private complaint Judicial Magistrate (First Class) is required to take care and see that all the witnesses of the complainant are examined on oath before him during such inquiry. It can be said that these provisions of Cr.P.C. are fair and proper provisions to have fair play in Criminal justice system.
25. In the case reported as AIR 1974 Supreme Court page 463 (Raghunandan Vs. State of U.P.) The Apex Court has held that the bar of Section 162 of Cr.P.C. is applicable to the parties but it does not impair special powers of Court u/s 165 of Evidence Act.
::: Downloaded on - 09/06/2013 19:19:45 :::17 CRI. APPEAL 400/2012 Thus the record of police statements can help the Court to ascertain the truth and also the reliability of the witnesses.
26. Aforesaid provisions show that the object of the provisions is not only to give accused fullest information in possession of the prosecution but also make record available to Court for ascertaining truth. In Section 162 of the Code of Criminal Procedure shows that on one hand protection is given to the accused from the use of such record as evidence and on the other hand right is given to the accused to use this material during cross examination of prosecution witnesses. By contradicting the witness in relation to previous statement, the defence can show that the witness was either tutored or witness is deposing falsely.
27. When statements under section 161 of Cr.P.C. are recorded after inordinate delay and the delay is not explained, the delay can create suspicion and lead to inference that version of the witness was after thought or the witness was tutored. Thus, on one hand such record helps the prosecution to preserve the versions of the witnesses and on the other, if the record is not created immediately, inference against the prosecution witnesses can be drawn.
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28. If the right given to the defence of the cross examination is considered, it can be said that when there is no such previous version available to the defence, the defence gets hampered. In the case reported as AIR 1976 Supreme Court page 560 (Badri Vs. State), the Apex Court has laid down that if the defence has no opportunity to cross examine witness on material point with reference to his earlier statement made to Police, his evidence can not be used to corroborate the other witnesses. Thus, in one way the absence of such record affects case of the prosecution also.
29. In the case reported as Sunita Devi Vs. State of Bihar and another reported in (2005) 1 Supreme Court Cases 608 at para 27, Apex Court has laid down that non-supply of such material does not necessarily cause prejudice to the accused and the Court has to give definite finding about the prejudice or otherwise. On this point reliance was placed by learned A.P.P. on a case reported in 2003 Cri.L.J. 456 (Alamgir Vs. State). In this case, the Apex Court has observed that in view of Section 3 of the Evidence Act, the evidence which is otherwise credit worthy, can not be discarded merely because it was not available in statement of witness u/s 161 of Cr.P.C.. In the case reported as AIR 1945 Nagpur page 1 Baliram Tikaram Marathe and others Vs. Emperor the High Court has observed that in serious case, it is, as a rule, desirable to take down ::: Downloaded on - 09/06/2013 19:19:45 ::: 19 CRI. APPEAL 400/2012 the whole statement of every person which gives more information. It is further observed that the accused has right to get copy of it.
30. In view of the aforesaid position of law and the facts and circumstances of this case, this Court holds that prejudice has been caused to the defence due to absence of the statement of the prosecutrix u/s 161 of Cr.P.C.. This is again additional circumstance against the State. For all these reasons, this Court holds that the judgment and order passed by Sessions Court needs to be set aside to give benefit of doubt to the appellant / accused. In the result, following order.
ORDER
1. Appeal is allowed. The judgment and order of Sessions Case No. 45/2011 which was pending in the Court of Additional Sessions Judge, Ahmednagar, convicting and sentencing the accused-appellant for offences punishable under Sections 376 and 506 of the Indian Penal Code is hereby set aside. The accused stands acquitted of both the offences.
2. The fine amount, if any, deposited by the accused is to be refunded to him.
3. If accused-appellant is not required in any other case, he is to be released forthwith from the jail.
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4. Fees of the advocate appointed for the accused- appellant is quantified at Rs.4000/- [Rs. Four thousand only].
( T.V. NALAWADE J. ) ts k/ ::: Downloaded on - 09/06/2013 19:19:45 :::