1 apeal 564.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.564 OF 2002
State of Maharashtra,
through P.S.O., P.S. Parshioni,
District Nagpur. .... APPELLANT
VERSUS
Maroti Kashiramji Raut,
Aged 33 years, Occ. - Service,
R/o P.S. Parshioni, District Nagpur. .... RESPONDENT
______________________________________________________________
Shri A.V. Palshikar, Addl.P.P. for the appellant,
Shri V.D. Muley, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 6 SEPTEMBER, 2017.
th ORAL JUDGMENT :
The State is in appeal challenging the judgment and order dated 24-6-2002 in Sessions Trial 250/1998, delivered by the learned 7th Additional Sessions Judge, Nagpur, acquitting the respondent (hereinafter referred to as the "accused") of offence punishable under Sections 376(2)(a)(i) and 506 of the Indian Penal Code. ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:20:36 :::
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2. The genesis of the prosecution case is, report lodged by the complainant Sunita Nimbone (Exhibit 17) at 17-30 hours on 23-1-1998. Sunita Nimbone stated in the report that since cattle owned by one Kanhaiya and one Jagan strayed in her field and ate the wheat crop, she lodged two police reports in January 1998. On 21-1-1998 when she visited the police station, the accused told her that she should not repeatedly visit the police station and that he (accused) will visit the spot and do the needful. The complainant further stated on 23-1-1998 at 1.00 p.m. the accused visited her residence in village Nayakund and asked her to summon her husband. The complainant asked the accused to do the needful. However, the accused insisted that the complainant should summon her husband. The complainant went to her field to fetch her husband. The accused came from behind the bush, tied her mouth with her saree, took her in a nullah, threatened to beat her and then raped her. The complainant shouted, on hearing her shouts her husband arrived at the spot and on hearing him the accused ran away. On the basis of the said report, offence punishable under Sections 376(2)((a)(i) and 506 of the Indian Penal Code was registered against the accused, statements of witnesses were recorded, the accused was arrested, investigations were undertaken and upon culmination of the investigation charge-sheet ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:20:36 ::: 3 apeal 564.02 was filed in the Court of Judicial Magistrate First Class, Ramtek who committed the case of the Sessions Court.
3. The learned Sessions Judge framed Charge (Exhibit 13), the accused pleaded not guilty and claimed to be tried. The defence of the accused is of total denial and false implication.
4. The prosecution examined eight witnesses including the complainant/prosecutrix and her husband. Shri A.V. Palshikar, learned Additional Public Prosecutor submits that the judgment of acquittal is clearly erroneous. The learned Sessions Judge fell in serious error in discarding the testimony of the prosecutrix, which according to the learned Additional Public Prosecutor is confidence inspiring. The learned Additional Public Prosecutor would submit that the testimony of the prosecutrix is corroborated by that of her husband. Per contra, Shri V.D. Muley, learned Counsel for the accused would submit that the evidence of the prosecutrix and her husband (P.W.3) is totally contrary to each other and cannot be reconciled. The learned Sessions Judge has taken a possible view and since the view is not perverse, this Court ought not to interfere in the judgment of acquittal.
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5. I have scrutinized the record carefully, and having done so, I am inclined to accept the submission of the learned Counsel for the accused that a possible and plausible view has been taken by the learned Sessions Judge and assuming that a second view could be taken, the appellate Court should refrain from substituting its view for the view taken in the judgment of acquittal. The prosecutrix (P.W.1) states that the accused tied her mouth by the end of her saree, took her in the nullah and committed rape. It is admitted that the spot is not plain and is covered with sand and small stones. The allegation is that the accused caught the prosecutrix, picked her up and then took her below at a distance of 25 to 30 feet in the nullah. The evidence of P.W.1 is not corroborated by the medical evidence. The prosecutrix was examined by Dr. Shamim Akhtar and perusal of the medical certificate Exhibit 23 would reveal that no signs of forcible sexual assault were noticed. No injuries or scratches were noticed on any part of the body of the prosecutrix. The accused was also medically examined, no injury or any other sign was visible in the medical examination. The prosecutrix states that on hearing her shouts, her husband P.W.3 came to the spot and enquired with the prosecutrix, upon which the prosecutrix told P.W.3 that the accused raped her. She states that P.W.3 asked her where was the accused and then the ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:20:36 ::: 5 apeal 564.02 prosecutrix pointed towards the accused who was running away. The version of P.W.3 is that he was informed by P.W.1 that the accused had raped, left the spot and then P.W.3 started chasing the accused by which time the accused had started his Luna and was on his way. Several omissions have been brought on record in the testimony of P.W.3, which are duly proved.
6. It is true that conviction can be based even on the uncorroborated testimony of the prosecutrix if the testimony is otherwise confidence inspiring. However, it is difficult to come to a conclusion that the testimony of P.W.1 is implicitly reliable. Her version that she was caught, picked up and carried to a place 25 to 30 feet below (nullah) and sexually assaulted, is not consistent with the medical evidence. The spot of the alleged incident is strewn with sand and small stones and is certainly not smooth. Forcible intercourse would have not in every probability left some physical signs like abrasions.
7. The learned Sessions Judge has recorded a finding, which is not shown to be perverse. I am not inclined to interfere in the judgment of acquittal of the learned 7 th Additional Sessions Judge, ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:20:36 ::: 6 apeal 564.02 Nagpur dated 24-6-2002 in Session Trial 250/1998. The appeal is rejected. Bail bond of the accused stands discharged.
The appeal is disposed of accordingly.
JUDGE adgokar ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:20:36 :::