apeal512of2014.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.512 OF 2014
Shri Sadashio s/o. Rengo Kotangale,
Aged 57 years, Occupation : Labour,
R/o. Tudmapuri,
Tahsil - Sakoli, District Bhandara ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Police Station Sakoli,
Tahsil Sakoli, District Bhandara ...RESPONDENT
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Mr. Akash Gupta, counsel (appointed) for the Appellant.
Mr. A.V. Palshikar, Additional Public Prosecutor for the
Respondent.
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CORAM
:ROHIT B. DEO, J.
DATE :05.12.2017 ORAL JUDGMENT:
Challenge is to the judgment and order dated 7.10.2014, passed by the Additional Sessions Judge, Bhandara, in Sessions Trial 82 of 2012, by and under which, the appellant (hereinafter referred to as "the accused") is convicted of offence punishable under section 376 of the Indian Penal Code ("IPC" for ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 2 short) and is sentenced to suffer rigorous imprisonment for a period of 7 years and to payment of fine of Rs. 1000/- and is further convicted of offence punishable under section 326 of IPC and is sentenced to suffer rigorous imprisonment for a period of 3 years and to payment of fine of Rs.500/-.
2 Heard Shri. Akash Gupta, the learned counsel for the appellant and Shri. A.V. Palshikar, the learned Additional Public Prosecutor for the respondent / State.
3 The learned counsel for the accused Shri. Akash Gupta submits, that the judgment and order impugned militates against the weight of evidence on record. The prosecution has not proved, much less beyond reasonable doubt, that the prosecutrix was subjected to forcible sexual intercourse, is the submission. The learned counsel would submit that the evidence of the prosecutrix is inconsistent with the medical evidence and is not corroborated, au contraire, is rendered suspect, by the spot panchanama and the evidence of the Investigating Officer. The learned counsel for the accused would further submit, that the finding recorded by the learned Sessions judge that the accused caused grievous hurt to the prosecutrix by pouring corrosive ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 3 substance (acid) into the vagina is not consistent with the oral and circumstantial evidence on record. The learned counsel for the accused Shri. Akash Gupta would urge, arguendo and in the alternate, that even if the entire evidence is accepted at face value, the offence made out would at the most be under section 354 and 324 of IPC.
4 Per contra, Shri A.V. Palshikar, the learned Additional Public Prosecutor would support the judgment and order impugned. The marshalling of evidence and the findings recorded, are both an unexceptionable, is the submission. 5 The gist of the prosecution case, as can be culled out from the oral report lodged by the prosecutrix on 13.8.2012 at 5.00 pm, is thus:
The prosecutrix states in the oral report, which is marked Exh. 38, on the record of the trial Court, that she is a widow and earns livelihood by cultivating ½ acre agricultural land, which was the ancestral property of her late husband. The prosecutrix has two sons namely Padmakar and Ratnakar who are engaged in manual labour at Nagpur and whose visits to the village are few and far in between. The prosecutrix lives alone in the village. ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 4
The prosecutrix states in the oral report that on 13.8.2012 between 10.00 to 10.30 a.m. she went to her agricultural field to cut grass, she cut the grass and tied and stacked the bales. Between 1.00 to 1.30 p.m. when she went to the adjoining canal to answer nature's call, she was accosted by the accused, the prosecutrix stood up and asked the accused as to why he had come. The accused replied "rq>h xkaM yky djrks", lifted the prosecutrix on shoulders, carried her to the bushes, made her lay on the grass, threatened to kill the prosecutrix and then committed forcible sexual intercourse twice. The prosecutrix further states in the report that after ravishing her, the accused took out a bottle from pocket and poured some liquid on the private part of the prosecutrix, the prosecutrix cried out in pain due to the burning sensation. The accused again threatened the prosecutrix with physical harm and fled.
The oral report was reduced to writing and the printed First Information Report is Exh. 39. On the basis of the report, offence punishable under section 376 and 506 of IPC was registered, the accused was arrested on 13.8.2012, both the prosecutrix and the accused were medically examined and the reports obtained. The spot panchanama was prepared on 14.8.2012, the clothes wore by the prosecutrix were seized on 15.8.2012, presumably while the ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 5 prosecutrix was admitted to the Government Medical Collage, Nagpur. The prosecutrix was discharged from the Government Medical Collage on 30.8.2012 and on the premise that an offence punishable under section 326 of IPC is made out, the accused was additionally charged under section 326 of IPC and upon completion of investigation chargesheet was submitted in the Court of Judicial Magistrate First Class, Sakoli who committed the case to the Sessions Court.
6 The learned Sessions Judge framed charge vide Exh. 12 under section 504 or 509, 506, 376 and 326 of IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused, as is discernible from the trend and tenor of the cross examination, the statement recorded under section 313 of the Code of Criminal Procedure and the evidence of the sole defence witness, is of false implication. The defence is, that the prosecutrix and the accused were in a relationship. The prosecutrix was pressurizing the accused to transfer the agricultural land of the accused in favour of the son / sons of the prosecutrix. The accused was not inclined to oblige and wished to transfer the agricultural land in favour of his daughter. The defence is that refusal to oblige the prosecutrix is a motive for ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 6 false implication.
7 The prosecutrix is examined as PW 1. The evidence of the prosecutrix is brief and is criticized by the learned counsel for the accused as "conveniently cryptic". The prosecutrix has deposed that on 13.8.2012 she went to answer the nature's call near the canal, she saw the accused approaching and asked the accused as to why he had come, the response was the use of abusive expression "rq>h xkaM yky djk;yk vkyks", the accused lifted the prosecutrix on his shoulder, took the prosecutrix to the bushes and committed sexual intercourse twice. The accused put some liquid on the vagina after sexual intercourse. She felt burning sensation and shouted, the accused threatened to kill the prosecutrix and then fled, is the deposition.
The prosecutrix has then deposed that she entered the canal to dilute the burning sensation, came to her house and alongwith her son went to the Police Station and lodged the report. The prosecutrix states that she was admitted at the Medical Collage and Hospital, Nagpur for 20 days and her saree and blouse were seized by the police.
The statement that the prosecutrix entered into the water of the canal to dilute the burning sensation, was subjected ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 7 to some debate. Shri Akash Gupta, the learned counsel for the accused contends that the said statement or rather version that the prosecutrix entered the water of canal to dilute the burning sensation is conspicuously absent in the oral report. The statement of the prosecutrix recorded under section 161 of the Code of Criminal Procedure on 7.9.2012 , in which statement the said version crops up, is recorded belatedly and the only inference is that the Investigating Officer was marking his time to give the investigation a particular shape or direction. Reliance is placed amongst others, on the enunciation of law by the Hon'ble Apex Court in Ganesh Bhawan Patel Vs. State of Maharashtra, (1978) 4 SCC 371 and in particular on the following observations.
"15. As noted by the trial Court, one unusual feature which projects its shadow on the evidence of Pws Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161, Cr. P.C. were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 8 recording the statements of eye-witnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye- witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case."
8 The learned Additional Public Prosecutor Shri. A.V. Palshikar would contend that the delay in recording a statement, particularly the statement of prosecutrix or victim of sexual offence, would not per se dilute the credibility of the version. In rebuttal, the learned counsel for the accused contends that while there cannot be any quarrel with the proposition of law that delay in recording the statement may not be per se fatal or destructive of the credibility of the evidence, the fact that the delay remains unexplained, would render the version of the prosecutrix suspect.
The submission of the learned counsel for the accused is that the story or version of the prosecutrix of having entered the water of the canal (Nala) is introduced since the prosecution was ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 9 seeking for a possible or plausible explanation for the absence of semen in the genitalia of the prosecutrix.
9 The learned counsel for the accused is justified in contending that the evidence of the prosecutrix that she was subjected to forcible sexual intercourse is not consistent with the medical evidence. In the searching cross-examination, the prosecutrix states that the accused made the first attempt to commit sexual intercourse between boundary of the field and the boundary of canal, which attempt was unsuccessful. The accused then committed sexual intercourse at the same spot in his second attempt, is the deposition. The first attempt and the second successful attempt took 15 minutes, is the deposition. The sexual assault, over an extended period, after forcing the prosecutrix to lay on dry grass, would have left some visible tell tale signs on the person of the accused, which are however, not seen in the medico legal examination although extensive injuries are noticed on the genitalia of the prosecutrix which are caused by corrosive substance. The absence of visible marks on the person of the prosecutrix indicating resistance, although the prosecutrix claims to have been subjected to forcible sexual intercourse twice over a period of 15 minutes is inconsistent with the medical evidence. ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 10 10 The medical evidence, is however consistent with the evidence of the prosecutrix that the accused poured some corrosive substance on her vagina. However, the absence of semen and absence of injury on the person of the prosecutrix other than the injuries caused by the corrosive substance and absence of injuries on the person of the accused would be one circumstance inconsistent with the version of forcible intercourse. The evidence of the prosecutrix, is even otherwise not confidence inspiring to the extent she alleges forcible sexual intercourse. There are too many gray areas and the incident is blurred. The spot panchanama does not corroborate the evidence of the prosecutrix. Au contraire the evidence of the prosecutrix is rendered suspect in view of the recitals in the spot panchanama. The evidence of the prosecutrix is that she was subjected to sexual intercourse twice, and on both the occasions the spot was between the boundary of the field and the boundary of the canal. The spot panchanama describes the location of the spot as on either sides of canal, to wit western and the eastern banks of the canal. The spot panchanama is quite obviously inconsistent and discrepant with the ocular evidence of the prosecutrix. The evidence of prosecutrix that after she was subjected to sexual intercourse, she entered the ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 11 water of the canal to reduce or dilute the burning sensation must be discarded. Firstly, the said version is rendered extremely suspect since the statement recorded under section 161 of the Code of Criminal Procedure of the prosecutrix is recorded belatedly on 7.9.2012 and there is no explanation for the delay forthcoming. The evidence of the prosecutrix and the Investigating Officer - Ganesh Gawade, who is examined as PW 7 is also discrepant to the extent the prosecutrix states that the level of the water in the canal was thy high while the Investigating Officer states that the water level could have been 4 inches, although, he adds a caveat that the level could be different at different places.
The spot of the incident is concededly near the field of the prosecutrix, which is situated between agricultural fields of Pundlik Gharmare and Girdhari Chandewar. The incident occurred in the noon hours and the defence has brought on record that the agricultural operations were then ongoing. The prosecution has not examined, for reasons best known to the prosecution, the owners of the adjoining fields on either side of the field of the prosecutrix although one of them is cited as a witness. The prosecutrix had ample opportunity to raise an alarm and to seek the assistance of the persons who in normal ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 12 circumstances would be working in the nearby agricultural fields. The prosecutrix, did have the opportunity, if not to resist, to rescue herself since the entire incident took more than 15 minutes, even according to the prosecutrix. The graphic and to certain extent vivid and disturbing description which is extracted in the cross examination of the prosecutrix would suggest that although the pouring of the corrosive substance in the vagina, which act could have been done in a matter of seconds or minutes, is not per se unbelievable, the version of the prosecutrix that she was subjected to forcible sexual intercourse is inherently unbelievable. The version that the prosecutrix was threatened and therefore, suffered the ravishment without making any attempt either to raise an alarm or to plainly flee away, is doubtful. 11 Be it noted, that the prosecutrix has not even whispered that she was in physically restrained per se. The cryptic statement in the examination in chief is that accused lifted the prosecutrix on his shoulder, took her to the bushes, made her lay down in the grass and committed sexual intercourse twice and the accused threatened to kill the prosecutrix only after completion of the sexual intercourse.
::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 13 12 Having given anxious consideration to the evidence on record, I am not persuaded to uphold the conviction of the accused under section 376 of the IPC. However, the evidence on record is cogent and clinching enough to prove that the accused outraged the modesty of the prosecutrix and poured some corrosive substance on her vagina. The prosecutrix has indeed exaggerated and over implicated the accused. But then, the entire testimony of the prosecutrix cannot be brushed under the carpet and the chaff must be separated from the grain. The evidence of the prosecutrix that the accused poured corrosive substance on the vagina is more than amply corroborated by the detection of medical evidence. The seizure of the saree and the detection of Nitric acid residue thereon in the chemical analysis is subjected to severe criticism by the learned counsel for the accused. The seizure of the saree on 15.8.2012, when, concededly, the prosecutrix was undergoing treatment at the Government Medical College, Nagpur, is not per se disputed. However, the submission of the learned counsel is that there is absolutely no evidence on record to satisfy the conscious of the Court that the saree seized on 15.8.2012 was duly sealed and between the seizure and the forwarding of the saree to the Chemical Analyzer on 27.8.2012, the possibility of any tampering or manipulation is implicitly ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 14 excluded. The submission is that the report of the Chemical Analyzer which notices Nitric acid residue on the saree is of little significance since no evidence is adduced to rule out the possibility of tampering of the article seized. The submission of the learned counsel is not without substance. However, even keeping out of consideration the said incriminating piece of evidence, I am more than satisfied that the evidence of the prosecutrix that accused poured corrosive substance on her vagina deserves acceptance. 13 The defence witness, who is son in law of the accused, and who has deposed that the prosecutrix attended the office of the Sub-Registrar of documents alongwith her son on the day of the incident and there was an altercation between the accused on one hand and the prosecutrix on the other since the accused was desirous of executing sale deed in favour of his daughter (wife of the defence witness) must be discarded for more reasons than one. The defence witness states in the examination in chief that the prosecutrix alongwith her son and the accused were present at the office of the Sub-Registrar at Deori. Concededly, the agricultural field of the accused is situated within the jurisdiction of the Sub- Registrar of documents Sakoli. The son of the prosecutrix Ratnakar Dademal was examined as PW 2. The defence version is ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 15 however, not put to the son of the prosecutrix. While it is true, as is contended by the learned counsel for the accused, that the evidence of the defence witness can not be viewed with suspicion and defence witnesses are entitled to be treated at par with prosecution witnesses as far as appreciation of evidence is concerned, (see - Dudh Nath Pande Vs. State of Uttar Pradesh, AIR 1981 SC 911), I am not inclined to hold that the evidence of the defence witness is trustworthy or confidence inspiring or that the defence is probabilized even on the touchstone of preponderance of probabilities.
14 The learned counsel Shri. Ashish Gupta contends that the offence can at the most be under section 324 of IPC since the injury suffered does not fall in any of the eight categories enumerated under section 328 of the Code of Criminal Procedure. The Investigating Officer admits that he had invoked section 326 of IPC on the premise that the prosecutrix was admitted in the hospital for more than 20 days. Unfortunately, this is also an assumption of the learned Sessions Judge which appears to be contrary to record. The medical record including the discharge card would show that the prosecutrix was admitted in the hospital on 14.8.2012 and discharged on 30.8.2012. The learned counsel ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 16 for the accused is justified in contending that the offence made out against the accused would fall not under section 326 but under section 324 of IPC.
15 It is axiomatic, that in the process of pouring corrosive substance on the vagina of the prosecutrix, the modesty of the prosecutrix was outraged. While the prosecutrix has not proved that the prosecutrix was subjected to forcible sexual intercourse, the offence punishable under section 354 of the IPC is more than established and established beyond reasonable doubt.
In the light of the discussion supra, I am inclined to allow the appeal partly. While the accused is acquitted of offence punishable under section 376 of IPC, he is convicted of offence punishable under section 354 of IPC and is sentenced to suffer rigorous imprisonment for a period of three years and to payment of fine as directed by the trial Court. The conviction under section 326 of IPC is scaled down to conviction under section 324 of IPC and the accused is sentenced to suffer rigorous imprisonment for three years and to payment of fine as directed by the trial Court. Accused shall be entitled to set of under section 428 of the Code of Criminal Procedure. The accused is in jail in view of order dated ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 ::: apeal512of2014.odt 17 20.11.2017. He shall remain in jail for the remainder of the sentence. Appeal is partly allowed in the aforesaid terms. The fees of the learned counsel for the accused is quantified at Rs. 5,000/-.
JUDGE RS Belkhede ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 02:58:14 :::