Khemraj S/O Bhayyalal Sharnagat vs State Of Maharashtra
2004 Latest Caselaw 623 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard Mr. Paliwal, learned advocate for the appellant and Mr. Lanjewar, the learned A. P. P. for the respondent-state.This is an appeal preferred by Khemraj Bhaiyyalal Sharnagat, challenging the judgment and conviction passed by the Ad hoc Assistant Sessions Judge, Bhandara on 3rd August, 2001 convicting him for offence under Section 376(2)(g) of Indian Penal Code and sentencing him to R. I. for 10 years and to pay fine of Rs. 5,000/-, in default to undergo further R. I. For one year.

2. As per the prosecution case the incident which gave rise to this prosecution against the appellant took place on 28th February, 1998 at the house of one Tirwantabai (P.W. 8) who happened to be the maternal aunt of prosecutrix-Muktabai (P.W. 6). On the date of occurrence, the prosecutrix in the evening was in the house, when her maternal aunt - Tirwantabai had gone to the field and her husband had-gone to Bazar. Bablu Sharnagat who was co-accused along with appellant was known to the prosecutrix inasmuch as he was maternal brother of her friend Usha Bopche. In the evening on that day around 5.00 p.m. Deceased-accused Bablu accompanied by the present appellant came to the house where the prosecutrix alone was doing the work and deceased Bablu asked for water while his companion i.e. present appellant asked the prosecutrix to give nut and tobacco. The prosecutrix refused to give them water, nut and tobacco. The appellant and deceased Bablu went near her and caught hold her and when she tried to run away due to fear, it was Bablu who pushed her and fell her down and then after holding her legs, the appellant having caught hold her hands, lifted her and brought her in the Varanda of the house and then from there she was brought in the inner room of the house, where deceased - Bablu had sexual intercourse with the prosecutrix after removing her clothes and at that time the appellant is said to have facilitated the deceased ~ Bablu by holding both the hands of the prosecutrix. The appellant is said to have pressed the breasts of the prosecutrix. The prosecutrix was left in the house and both the accused persons went away. After sometime one Dr. Titarmare, who was passing by the road saw the prosecutrix weeping and therefore, inquired with her, when she narrated to him the incident that has taken place. The maternal aunt - Tirwantabai, her husband Brijlal and mother of prosecutrix came from Chulhad and the prosecutrix then narrated the incident to them and lodged report in police station on the next day i.e. 1-3-1998 vide Exhibit 27. On the basis of that report first information report Exhibit 28 was drawn and offence was registered against deceased-accused Bablu and the appellant. The prosecutrix was sent for medical examination. Dr. Rekha Dhakate (P.W. 7) who was Medical Officer, Government Hospital Tumsar examined the prosecutrix on 1-3-1998 around 2.00 p.m. and found on P. V. Examination that her hymen was ruptured and menstruation bleeding was present. She also noticed one abrasion mark on the right thigh medially 3 cm. x 1/10 cm., she opined that no opinion about intercourse could be given as she was under menstruation period. In respect of this findings the Doctor Rekha Dhakale issued certificate - Exhibit 30. Blood sample, semen sample and pubic hair of the prosecutrix were taken and same were handed over to the police constable who brought the prosecutrix for medical examination. During the course of investigation the police came to know that accompanying person of the accused -Bablu was Khemraj i.e. the present appellant and therefore, the offence against him was registered. He was arrested and sent for medical examination. The cloths of the prosecutrix which she was wearing at the time of incident also were seized by the police in the presence of the panchas and the property seized was sent to Chemical Analyser for analysis. After completing the investigation, the charge sheet was submitted against the accused in the court of Judicial Magistrate First Class who in turn committed the case to the court of Ad-hoc Assistant Sessions Judge. The learned Sessions Court framed the charge against both the accused to which they pleaded not guilty and claimed to be tried. The accused - Bablu died during the pendency of the trial. The prosecution in support of its case examined in all 9 witnesses including Urkuda Mirase (P.W. 3) who acted as panch, on identification panchanama Exhibit 21, prosecutrix - Muktabai (P.W. 6) who admittedly gave oral report - Exhibit 27 at Police Station, Sihora on the basis of which first information report - Exhibit 28 was drawn, Dr. Rekha Dhakate (P.W. 7) Medical Officer who examined the prosecutrix, Tirwantabai Thakare (P.W. 8), maternal aunt of the prosecutrix and Asaram Khobragade (P.W. 9) the Police Constable who conducted investigation in the crime. The appellant was examined by the trial Court under Section 313 of Criminal Procedure Code. He denied the circumstances appearing against him, particularly the act committed by him to facilitate the accused - Bablu to commit sexual assault on the prosecutrix and his presence at the time of alleged occurrence. The trial Court accepting the evidence of the prosecutrix coupled with the medical evidence came to conclusion that deceased accused - Bablu committed sexual intercourse on prosecutrix and that the appellant also was present at that time and he assisted to accused - Bablu to commit sexual assault on the prosecutrix, she was brought in the house by lifting her and then the appellant by holding her hands and also pressing her breast when accused Bablu performed the act of sexual intercourse. Consequently, the appellant was found guilty for the offence under Section 376(2)(g), Indian Penal Code and accordingly he was sentenced as stated earlier. Hence this appeal.

3. I have heard learned counsel for the appellant Mr. Paliwal and Mr. Lanjewar, learned A.P.P. for the state - respondent. With their assistance I have gone through the evidence on record so also the judgment of the trial Court. Before coming to the submissions of the learned counsel for the parties, let us examine the evidence on record to see whether the prosecution has proved the factum of commission of sexual intercourse by deceased - accused Bablu. It is necessary to decide that issue as the involvement of the present appellant in commission of crime is much dependent on that. The prosecutrix in her evidence has clinchingly stated as to what happened at the time of occurrence when she was in the house. It has come in her evidence that the accused persons brought her in the house literally lifting her and then accused - Bablu committed sexual intercourse with her. It is pertinent to note that the evidence of prosecutrix on the point of sexual intercourse committed by the accused Bablu has not been controverted by the present appellant at the trial. There is no reason to discard her testimony. Nothing has been shown before the trial Court to discard the testimony of the prosecutrix. It is a matter of record that after the incident took place, the prosecutrix disclosed to maternal aunt and her mother and then on the next day she was brought to the police station, where she lodged report Exhibit 27. In that report, which we read with the assistance of the learned counsel for the appellant, she has categorically stated that accused Bablu had sexual intercourse against her wish and despite of all possible resistance by her. She has stated about the injury she has sustained as a result of she having been thrown on the floor of the house after she was brought in the house by lifting her by deceased Bablu - accused and the appellant. It is pertinent to note that whatever the prosecutrix has stated in her evidence before the court in all respects gains assurance by the report Exhibit 27. It is a matter of record that the prosecutrix was on the same day examined by Dr. Rekha Dhakate and in the certificate Exhibit 30 issued by her she has stated her categorical findings on examining the prosecutrix. The learned counsel for the appellant tried to point out that there are interpolations in the certificate issued by the Doctor suggesting that deliberate attempt has been made to incorporate the finding without any opinion as to the sexual intercourse was given intercourse. I do not think that in spite of the fact that there is interpolation and scoring in the certificate Exhibit 30, the evidence of the Doctor about his finding on examining the prosecutrix immediately on 1-3-1998 in the hospital in any way impaired. Apart from that for the Medical Officer, there was absolutely no reason to give false certificate. That apart the factum of commission of rape as has been deposed by the prosecutrix is further corroborated through evidence of Tirwantabai - maternal aunt of the prosecutrix. It is no doubt true that this witness Tirwantabai has not supported the prosecution, and therefore, she was declared hostile. But then her evidence as to the fact of sexual intercourse committed by the deceased - accused - Bablu was as stated by her in her examination in chief remained undisturbed. That is not challenged by the present appellant though the appellant had opportunity to cross examine the witnesses. It is true that witness - Tirwantabai was not an eye witness to the incident of commission of offence, but what she stated in her evidence, about disclosure by the prosecutrix, that accused - Bablu outraged her modesty which she clarified further saying that outraging of modesty means of the sexual intercourse, lends assurance to the claim of the prosecutrix. There is no reason to discard this statement of the witness - Tirwantabai. Though she did not support the prosecution on other particulars. Regarding presence of the present appellant at the time of occurrence. In my opinion the present appellant having not controverted the claim of the prosecutrix as well as witness -Tirwantabai, about commission of rape by accused - Bablu, it is very difficult to accept the submissions as to learned counsel for the appellant Mr. Paliwal who tried to make out an infirmity in the evidence on the point of sexual intercourse/rape committed by the accused - Bablu. It is true that though the sample of blood, semen and vaginal swab was taken, the prosecution is deprived of the report of Chemical Analyser in that regard. That is so to say that evidence circumstantial as it could be, is lacking. But in my opinion that by itself does not bring out any infirmity in the prosecution case much less in the version of the prosecutrix about the commission of rape on her by accused - Bablu.

4. The trial Court found the appellant guilty for the commission of rape only on the basis of the evidence against him that he was present and he assisted and facilitated accused Bablu while he committed sexual intercourse on the prosecutrix. This finding of the trial Court holding appellant guilty for offence with which he was charged has been challenged by the appellant. In this context Mr. Paliwal learned counsel for the appellant submitted that the version of prosecutrix before the court is inconsistent with the recitals of the report Exhibit 27 which she lodged in the police station. It was claimed by the prosecution that the prosecutrix was not knowing the appellant, much less his name that is why in the report Exhibit 27 it is stated that the person who was accompanying to the accused for assisting Bablu and facilitating him to perform sexual intercourse. This certainly indicated that when the report was lodged by the prosecutrix on 1-3-1998, she was not knowing as to who was the person who had accompanied the accused - Bablu at the time of occurrence. As against that the prosecutrix in her evidence has straightway stated that it was the accused - Khemraj who accompanied the accused - Bablu and both of them have ravished her. The learned counsel also pointed out from the first information report Exhibit 28 which drawn on the basis of the report Exhibit 27, given by the prosecutrix on 8-3-1998 shows that accused - Bablu along with a companion whose name she was not knowing came there in the house. Reading these recitals in the F.I.R. it again goes to show that the prosecutrix was not knowing the name of the person who accompanied Bablu. But surprisingly, as pointed out by the learned counsel for the appellant in column No. 7 of the First Information Report Exhibit 28, the name of the appellant finds place as accused No. 2. The investigating officer has to explain about this inconsistency. The learned counsel, therefore submitted that in the absence of any explanation coming forth from the prosecution, it has to be said that the prosecutrix as stated in the r6port Exhibit 27 was certainly not knowing the appellant and his name. The learned counsel further pointed out that when the appellant was in custody on 2-3-1998, investigating officer has conducted panchanama identification - Exhibit 21 in the presence of the witness - Pirkhan Pathan (P.W. 2) showing that the appellant was identified by the prosecutrix on she seeing the appellant in the jail. It is pointed out by the learned counsel that in all probabilities this identification of the accused is of no avail and even on the evidence of witness Pikhan Pathan the factum of identification is not at all proved by the prosecution. The learned counsel took us through the evidence of witness - Pirkhan Pathan. In his evidence he has stated about the drawing of panchanama Exhibit 21 as identification panchnama. But in his evidence he has not uttered even a word that in his presence the prosecutrix identified the appellant. Who was in the jail. The identification is fictitious as it appears to be was held in the police station. The learned counsel Mr. Paliwal was right in submission when he pointed out from the guidelines incorporated in the Criminal Manual regarding identification parade, showing that parade should be arranged by an officer who is not a police officer and that the parade should not be held in police station and further that parade should be held in presence of the independent person by the Magistrate. It is, needless to say that even if the identification as described in the panchnama Exhibit 21 is to be called as identification parade, that identification of the appellant, it is absolutely violating the guidelines given in the Criminal Manual. Apart from that the factum of identification cannot be established in this manner. Showing the person who is accused involved in the case to the witness who is to be identified, admittedly the accused appellant was in jail and witness - prosecutrix is alleged to have identified him when he was shown to her in police lock up. In fact cardinal principle in holding identification parade is that the person who is to be identified is not to be shown to the person who has to identify. That is why it is said time and again that the person conducting the identification parade should take the precaution that the accused who is to be identified is not seen by the person who has to identify. Therefore, in the facts and circumstances of the case before us when the appellant was shown to the prosecutrix, identification of the appellant is meaningless. That apart, if we read the evidence of prosecutrix, she has no way stated that she identified the appellant when he was shown to her in police lock up. In fact her evidence is on the basis that she was all the while knowing the appellant right from prior to the occurrence which is again a fact in contradiction vis-a-vis report she lodged.

5. The learned counsel for the appellant then submitted that witness - Dr. Titirmare who according to the prosecutrix happened to passed by the house of her maternal aunt and on seeing prosecutrix weeping he inquired with her and she disclosed him that rape was committed on her by the accused - Bablu and his companion. In that context it was absolutely necessary for the prosecution to examine Dr. Titirmare as witness. There is no explanation offered by the prosecution as to why Dr. Titirmare is not examined. To crown this all as submitted by the counsel for the appellant that, the Investigating Officer has not recorded even the statement of Dr. Titirmare nor he has been cited as witness. In my opinion, this lacuna deliberate as it could be, brings out inherent infirmity in the claim of the prosecutrix that the appellant was present at the time of occurrence.

6. The learned counsel for the appellant has pointed from the evidence of prosecutrix that her version about the presence and role played by the appellant is inconsistent. As regards the acts alleged to have been committed by the appellant vis-a-vis prosecutrix at the time when accused Bablu was raping her, the prosecutrix herself admitted that she has not disclosed about the same in her statement recorded by the police. She claimed to have stated to the police that the accused Khemraj had caught hold her from her back and also pressed her mouth and that the accused persons had sticks with them, but she could not assign any reason why in her statement recorded by the police no such statement appears. It is needless to say that if we read evidence of prosecutrix vis-a-vis her report which she lodged in the police station and other evidence on record, the prosecutrix has made improvements in her evidence before the Court to indicate involvement of the appellant. When the factum of the identification of the appellant as claimed by the prosecutrix, is not established by the prosecution, then there is no other evidence showing presence of the appellant at the time of occurrence along with accused Bablu. Thus* it has to be said that the prosecutrix has admittedly failed to prove that accused/appellant was the person who was present at the time of occurrence and he did any act of either outraging modesty of the prosecutrix or facilitating the accused - Bablu who brought the prosecutrix in the house and committed rape on her. Therefore, the prosecution has utterly failed to establish involvement of the appellant as also commission of any act showing the participation of commission of sexual assault on the prosecutrix with the accused - Bablu. Finding recorded by the trial Court holding the appellant guilty for the offence with which he was charged is certainly erroneous and based on no evidence. It appears that because the factum of sexual assault by deceased accused - Bablu went unchallenged and has not been controverted by the appellant; the trial Court has found the appellant also guilty for the offence of committing rape on prosecutrix. In this view of the matter in my considered opinion conviction and sentence awarded by the trial Court against the appellant cannot sustain. The judgment of the trial Court convicting and sentencing the appellant has to be set aside. The appeal deserves to be allowed. Hence the order.

ORDER

7. The appeal is allowed. The conviction and sentence passed against the appellant by the trial Court by its judgment dated 3-8-2001 is set aside. The appellant is acquitted of the offence with which he was charged. The appellant should be set at free and released from jail if not required in any other offence.