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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 40 OF 2006
Dhanraj s/o Maroti Thakre,
Aged about 47 years,
Occupation - Service,
R/o Botona, Tahsil - Karanja,
District - Wardha. .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Ashti Police Station, District - Wardha. .... RESPONDENT
______________________________________________________________
Shri J.D. Bastian, Advocate for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 20
DECEMBER, 2017
th
ORAL JUDGMENT :
The appellant is aggrieved by the judgment and order dated 18-1-2006 passed by the learned 4th Ad hoc Additional Sessions Judge, Wardha in Sessions Trial 77/2005, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offences punishable under Sections 448 and 376 of the Indian Penal ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 2 apeal40.06 Code ( "IPC" for short) and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs.500/- for offence punishable under Section 448 of the IPC and to suffer rigorous imprisonment for a period of seven years and to payment of fine of Rs.5,000/- for offence punishable under Section 376 of the IPC.
2. Heard Shri J.D. Bastian, learned Counsel for the accused and Shri P.S. Tembhare, learned Additional Public Prosecutor for the respondent.
3. Shri J.D. Bastian, learned Counsel for the accused submits that the evidence on record is grossly insufficient to establish the offence under Sections 448 and 376 of the IPC beyond reasonable doubt. The evidence of P.W.3 prosecutrix and P.W. 4 Prakash, who is the husband of the prosecutrix and is examined as an eyewitness is not confidence inspiring and is marred by inter se consistencies, is the submission. The version of the prosecutrix is falsified by the medical evidence and the report of the Chemical Analyzer is not produced on record, is the submission. The defence that the accused is falsely implicated due to some dispute relating to the wages due and payable to the husband of the prosecutrix is more than probablised, is the ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 3 apeal40.06 submission.
4. Per contra, Shri P.S. Tembhare, learned Additional Public Prosecutor submits that the evidence of the prosecutrix is more than corroborated by the evidence of P.W.4 Prakash, who has seen the accused sexually assaulting the prosecutrix. The learned Additional Public Prosecutor submits that the prosecutrix is a married woman with children and absence of injury on the genitalia would not be decisive or conclusive. The judgment and order impugned needs no interference, is the submission.
5. The accused is not disputing that he visited the house of the prosecutrix on 12-2-2005. The defence of the accused as is discernible from the trend and tenor of the cross-examination and the answer given in response to question 24 in the statement recorded under Section 313 of the Criminal Procedure Code is that he visited the house of the prosecutrix on the day of the incident to summon her husband for daily wage work. An altercation with the prosecutrix ensued, the issue was the payment of wages to the husband of the prosecutrix. The accused claims to have been falsely implicated due to the said dispute leading to the altercation on the day of the incident. ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 :::
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6. Shri P.S. Tembhare, learned Additional Public Prosecutor submits that it is a settled position of law that the prosecutrix in sexual offence is not an accomplice. Seeking corroboration from the prosecutrix is akin to adding insult to the injury. The evidence of the prosecutrix can be the sole basis of conviction. He would submit that the evidence of the prosecutrix is corroborated by the evidence of her husband Prakash (P.W.4) who has seen the accused ravishing the prosecutrix. The position of law that conviction can rest on the sole and uncorroborated testimony of the prosecutrix is, as rightly contended by the learned Additional Public Prosecutor, too well settled to merit a lengthy discussion or debate. However, it is equally well settled that the evidence of the witnesses including the prosecutrix must be implicitly reliable, trustworthy and confidence inspiring, particularly when a version or a narrative attributing use of force and violence to the accused is rendered suspect by, or rather lack of, medical evidence. The medical evidence concededly does not take the case of the prosecution any further. The report of the Chemical Analyzer is not produced on record for reasons known only to the prosecution. This Court would be justified in drawing an appropriate inference since the failure of the prosecution to produce on record the report of the Chemical Analyzer is inexplicable. Let me now analysis ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 5 apeal40.06 the evidence of the prosecutrix and that of her husband Prakash to satisfy the conscious of the Court that there is no alternate hypothesis which is incompatible with the guilt of the accused.
7. The prosecutrix lodged oral report at Police Station Ashti on 13-2-2005 at 12.05, the gist of which is that on 12-2-2005 at 11-00 a.m. the accused came to the house of the prosecutrix, the prosecutrix demanded money towards the work done by her husband, the accused assured that money would be given in two to four days, taking advantage that the prosecutrix was alone, the accused entered her house, forcibly brought the prosecutrix down, pressed her mouth and sexually ravished her. The husband of the prosecutrix, who had forgotten his axe unexpectedly came to the house to collect the axe and saw the accused committing sexual intercourse. The prosecutrix shouted and the accused fled away. The oral report is at Exhibit 43 on the record of the trial Court and the printed report is at Exhibit 44. The prosecutrix is examined as P.W.3.
8. The version before the Court is that at 11-00 a.m. on the day of the incident the accused entered her house and started pulling and manhandling the prosecutrix, the accused brought her down to the ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 6 apeal40.06 floor, sat on her chest, pressed her mouth by one hand and committed forcible sexual intercourse. The prosecutrix states that in the interregnum, her husband returned and saw the accused committing sexual intercourse. The accused fled away after the arrival of the husband of the prosecutrix. The prosecutrix shouted and neighbours gathered at the house. The explanation given by the prosecutrix for not lodging the oral report on the day of the incident is that villagers did not allow the prosecutrix and her husband to lodge the report and offered money as inducement. She states that on the next day her father had come to her house and she alongwith her husband and father went to the Ashti Police Station to lodge the report.
It is true that delay in lodging the first information report, if satisfactorily explained, is not fatal. Delay in lodging first information report in incident involving sexual assault or atrocity on woman must be viewed in the perspective of the social norms and mores of Indian society, and the traumatic condition in which the victim and the family members find themselves. However, while the delay in lodging the first information report by the prosecutrix may not per se dent the credibility of the evidence, the explanation given by the prosecutrix and the husband of the prosecutrix is at total variance with each other.
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 :::
7 apeal40.06 The explanation given by the prosecution for the delay in lodging the report is that the villagers did not allow the prosecutrix and her husband to lodge the report. Au contraire, the husband of the prosecutrix P.W. 4 - Prakash makes no reference to the role played by the villagers much less the inducement offered. P.W. 4 has an entirely different version and explanation for the delay in lodging the report. P.W. 4 states that on the next day of the incident, he alongwith the prosecutrix proceeded to lodge the report and the son of the accused asked him and the prosecutrix not to lodge the report.
9. The learned counsel for the accused Shri. J.D. Bastian, would contend that the evidence of the prosecutrix and her husband Prakash is not confidence inspiring and the version that the prosecutrix was subjected to forcible sexual intercourse is inherently incredible. The incident occurred in the house of the prosecutrix which is a small one room house situated in a centrally located place in the village. The relatives of the prosecutrix reside in the vicinity of the house. A road passes in front of the house of the prosecutrix which is frequented by villagers. The incident occurred between 10.00 am to 11.00 am and the prosecutrix admits that the road is then frequented by villagers ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 8 apeal40.06 leaving for their work. The prosecutrix admits that she used to keep the door of the house open. P.W. 4 Prakash admits that when he went to fetch axe, the door of the house was open.
10. The prosecution version that the accused subjected the prosecutrix to forcible sexual intercourse between 10.00 to 11.00 a.m. in the one room house, with the door open and facing the busy road with the villagers leaving for the respective work, is extremely doubtful. The version of the prosecutrix that the accused entered the house, man handled her, made her fall down and sat on her chest, gagged her, lifted her clothes up and committed forcible sexual intercourse, is suspect. The medical evidence is incompatible with a violent and aggressive sexual assault. The absence of injury on the genitalia may not be decisive. But then, considering the manner in which the prosecutrix claims to have been assaulted, some tell-tale signs of external injuries caused due to the accused man handling the prosecutrix, bringing her down on the ground and then sitting on her chest and subjecting her to forcible sexual intercourse after gagging her mouth, normally ought to have been seen.
The absence of any visible sign suggesting that the prosecutrix was subjected to sexual violence or ought that she resisted, viewed in ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 9 apeal40.06 isolation may not decisively dent the credibility of the prosecution witnesses. However, the lack of medical evidence apart, I have observed supra, such a violent ravishment in the one room house with door open to a road well frequented and between 10.00 to 11.00 a.m., is most improbable.
11. The prosecution evidence is marred by too many inter-se inconsistencies and discrepancies for this Court to consider the evidence reliable and trustworthy. The testimony of the husband of the prosecutrix Prakash (P.W. 4) that he disclosed the incident to his elder brother Uttam is not corroborated by Uttam who did not support the prosecution and categorically denied to have been narrated the incident by Prakash. P.W.4 Prakash states that when he entered the house, he saw the accused subjecting the prosecutrix to forcible sexual intercourse. P.W. 4 Prakash states that the accused had removed his full pant and underwear up to the knee and was gagging the prosecutrix by one hand. The accused inflicted two slaps on P.W. 4 and fled, is the deposition. In the cross-examination, Prakash states that when he reached near the house he noticed calmness and the prosecutrix was demanding money of her wages from the accused. The admission extracted from P.W. 4 Prakash that when he entered the ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 10 apeal40.06 house, the prosecutrix was demanding money from the accused is significant and is near fatal to the credibility of the version of PW 4 in the examination in chief that when he entered the house he saw the accused subjecting the prosecutrix to forcible sexual intercourse. The statement that the accused inflicted two slap blow is brought on record as an omission, similarly, the statement that the son of the accused did not allow P.W. 4 Prakash to lodge the report is again an omission.
12. The Investigating Officer seized the sample of blood and pubic hair of the accused vide seizure panchanama Exh. 32 which samples were admittedly sent to the Forensic Science Laboratory, Nagpur for chemical analysis. The sample of blood, pubic hair and vaginal swap of the prosecutrix were collected and seized vide Exh. 29 and forwarded to the said Forensic Science Laboratory for chemical analysis. However, for reasons known only to the prosecution, the report which may have been submitted by the Chemical Analyzer is not produced on record. The learned Additional Public Prosecutor Shri. P.S. Tembhare invites my attention to the Medico Legal Certificate Exh. 49 dated 9.4.2005 and contends that since the report states that the accused failed to produce semen for examination, the failure of the prosecution to produce the Chemical Analyzer's report is of little ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 ::: 11 apeal40.06 relevance or significance. It is difficult to appreciate the said submission. It may be that the accused did not produce semen for examination, but then the sample of vaginal swap and public hair of the prosecutrix were admittedly sent for analysis alongwith the sample of the pubic hair of the accused. The report of the Chemical Analyzer, notwithstanding that the sample of the semen of the accused was not available for analysis, could have thrown some corroborative light on the veracity of the assertion by the prosecutrix that she was subjected to forcible sexual intercourse.
13. The defence of the accused is of false implication. Payment of wages for work done by the husband of prosecutrix was the bone of contention according to the accused. This defence is probabilized on the touchstone of preponderance of probabilities. It is trite law that if the defence succeeds in demonstrating a reasonable hypothesis suggesting the innocence of the accused, the benefit of the doubt which the alternate hypothesis creates must necessarily go to the accused. I am inclined to grand the benefit of the doubt to the accused and to hold that the prosecution has not proved beyond reasonable doubt, the offence punishable under section 448 and 376 of the IPC. ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 :::
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14. The judgment and order impugned is set aside and the accused is acquitted of the offence punishable under section 448 and 376 of the IPC.
15. The bail bond of the accused shall stand discharged and fine paid by the accused, if any, shall be refunded.
16. The appeal is allowed.
JUDGE adgokar/belkhede ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:17:19 :::