Sudhakar S/O Sukhdev Ramteke And ... vs State Of Maharashtra
2004 Latest Caselaw 324 Bom

JUDGMENT

A.H. Joshi, J.

1. The appellants are the accused who were tried for the offence punishable under Section 376(g) and under Section 323 read with Section 34 of the Indian Penal Code, furtherance to First Information Report dated 29-7-2001 by the learned First Ad hoc Addl. Sessions Judge, Bhandara. The Trial resulted into conviction of all the accused under both the sections for which they were charged and were sentenced to suffer R. I. for 10 years each for the offence under Section 376(2)(g) of Indian Penal Code and a fine of Rs. 2000/- with R. I. for 2 months in default of payment of fine. Separate sentence for offence under Section 323 of Indian Penal Code with fine of Rs. 500/- is also awarded. This is the judgment which is challenged in the present appeal.

2. The story as is revealed from the First Information Report is that the Prosecutrix Satyasheela had visited the village Shahapur, the place of her cousin Tarabai. According to her, three accused persons Sudhakar Sukhdeo Ramteke, Sunil Udebhan Chauhan and Parmeshwar Sukhdeo Ramteke committed on her acts of rape at three different places first being at the house of Mayabai Meshram, second in a shop and third in the house of Sudhakar. The acts of rape narrated by the prosecutrix are in the sequence namely the first by Sudhakar singly while second by all the accused and third by Parmeshwar singly. The duration of the incidents that has been reported is after 00.45 hours and some time thereafter. The police complaint has been lodged during day time i.e. following noon. The Victim was referred to the Medical Examination and the police called for Medical Report in the form of question and answer. The questions referred to police are at Exh. 28 and the Medical report is at Exh. 40. While the Out Door Patient note about the examination and prescriptions given by the Duty Medical Officer is at Exh. 41. The questions referred to the Medical examination were

1. Are injuries of commission of sexual intercourse visible on her vagina?

Answer is in the negative.

2. Is sexual intercourse committed with Satyasheela Uke?

Answer is as follows:

"No evidence of external injuries over entganializ with pain during vaginal examination and tenderness in vagina is seen positive. Evidence of abrasions over back, evidence of abrasions over both Elbows and evidence of contusion over gluteal region right side and tenderness over left costochondral Region. No evidence of external injuries over the left entragenitals."

3. The prosecution filed a chargesheet consequent upon completion of the investigation and the learned Sessions Judge has framed the charge in relation to the offence under Section 376(2)(g) as well as under Section 323 read with Section 34 of the Indian Penal Code. The case proceeds in the background that the prosecutrix is a married woman of 32 years of age, having two children, while the accused are of the age of 29, 26 and 22 years respectively. There exists evidence of sexual intercourse and the case, therefore, centers around the proof of consent for the sexual intercourse.

4. The entire case, therefore, centers around the oral evidence of the prosecutrix Satyasheela who is the witness No. 5. Satyasheela the prosecutrix has narrated in her testimony about the incident prior to which, in her deposition, she narrated the background of having visited the place of Tarabai Ramteke. As a background of commission of first assault or rape, committed by accused Sudhakar Ramteke, the prosecutrix has deposed in para 3rd of her deposition, the versions which quoted in verbatim is as follows:

"Accused Sudhakar and Parmeshwhar came back at about 11 p.m. They could not see Budha. They had taken Meal. Sudhakar advised to go for search of Budha and also requested me and his mother to come along with him. Sunil Chauhan is the son of my another maternal aunt. Accused Parmeshwar left the house after meal. Myself, accused Sudhakar Ramteke. Sunil Chauhan and my maternal aunt Tarabai Ramteke went out of the search of Budha. I came to Bus Stand of Shahapur on High Way from the house. This distance is about 1/2 km. Accused Sudhakar advised his mother and Sunil Chauhan to go another direction for the search of Budha. I was asked to wait on the same place. The Tarabai and Sunil Chauhan went out from the said spot, accused Sudhakar caught hold me and lifted on his waist. I was taken by accused Sudhakar near the pan shop, near Gandhi Putala. He pressed my mouth by his hand and also neck. He had taken out my underwear by another hand and also taken out his penis from his panth. He did sexual intercourse and rape on me."

Insofar as the second incident of rape is concerned which is followed by the first, the prosecutrix has revealed in the same paragraph which reads as follows :

"When my maternal aunt inquired about me, accused Sunil Chauhan told us that myself and Sudhakar Ramteke went in search of Budha and advised Tarabai to go back to home. Tarabai went to home. Accused Sudhakar and Sunil caught hold my both hands and taken me in one house. I had given jerk to my hand and it was twisted. Accused Sudhakar caught hold me tiedly and asked Sunil Chauhan to open the door of the house. Accused Sunil had give a call and two persons opened the door. Accused Parmeshwar was amongst them two. Accused Sunil and Sudhakar had taken me inside the hall, accused Sunil and accused Parmeshwar and third person waited in the hall. Accused Sudhakar Ramteke took me in another room. Accused Sudhakar removed all clothes from my person and did sexual intercourse with me for a long time. I became cool. Accused Sudhakar spread the liquor on my face. Accused Sunil came in the room and did sexual intercourse with me when I was naked. I requested them that I am their maternal sister and their act of sexual intercourse with me is not good. When Sunil was with me in the room, accused Sudhakar came and inquired whether he had finished his intercourse or not. The accused Sunil replied that he did cool me. Accused had given kicks on my waist, fist blow on my chest and on my forehead. Thereafter, I was brought and placed in the chair, in door. That time no clothes were on my clothes. Accused Parmeshwar had given me drink water. Accused Sudhakar told to accused Parmeshwar and Sunil to take me to home."

The third incident of rape followed by second is revealed by the prosecutrix in para 4 which is again quoted for ready reference to have reference to the text in verbatim as below :

"They placed the clothes on my person. I was not able to walk. Accused Sunil and Parmeshwar caught hold my both hands. On the way, accused Parmeshwar told to Sunil Chauhan to go back to his home and he will take me at his home. Accused Sunil Chauhan went back to his home. On the way, accused Parmeshwar had taken me in one bath room and did rape on me by removing underwear. I was brought to home by accused Parmeshwar."

5. On accepting version of the prosecutrix as has been narrated first event of rape is of an individual act of Sudhakar and other accused persons had not come in picture.

6. The spot panchanama of the second occasion or place of rape is at Exh. 9. The details of the location have not come in the testimony of the prosecutrix, however, are appearing in the panchanama revealing that it is in a shop having no shutter, which admeasures 8' x 8' and is a part of a row of shops of Gram Panchayat. The distance between three places of rape is within a span of around half km. and movement of the accused for all acts is done openly by lifting her on the waist by the accused No. 1, in the vernacular version, lifting of the waist is written as translated is that "by making her sit on one side of the waist".

7. The manner in which the narration is given by the prosecutrix reveals that her movement being done openly and the point of time, she had complained about the act of rape is only by revealing her pains to Tarabai her maternal aunt and she did not any time prior thereto either resists or made efforts to escape or seeking assistance by acts, such as either by running away or shouting, crying etc. On the other hand, she slept at the residence of Tarabai, late hours in the morning and according to the prosecutrix, as she revealed the act of rape to Tarabai, the accused Sudhakar again beat her with kicks which assault was again intervened by Tarabai. In the version of the prosecutrix, this later event as narrated in the deposition of prosecutrix in person reads as follows :

"My maternal aunt Tarabai and her husband went in the house. I was taken by them in the house I started weeping. My maternal aunt Tarabai did inquiry that why I am weeping. I told her that her sons did rape on me she also started weeping. I had shown the injuries on my person of beating by accused persons. She robbed a pain bom on my forehead, back and other body and asked to sleep. In the morning I was slept because tire. All accused persons came to house. Accused Sudhakar Ramteke beat me by kick that why I had narrated the incident to his mother. His mother Tarabai intervened. Thereafter, Tarabai had brought me on the bus stand and given me a seat in one auto riksha I came to Bhandara."

8. The medical evidence and particular positive evidence as to tenderness of the vaginal portion positively proves the multiple acts of intercourse. By cross examining the Medical Officer, it has also been suggested that on every occasion of rape, necessary consequence need not be for producing or living injuries on the vaginal portion. It is however, established that all acts of multiple intercourse tenderness would exist.

9. All that seems to be proved in the present case is that trio of the accused or someone had multiple sexual intercourse with the victim.

10. The only question which can lead the case either to the conviction or acquittal is the consent of the victim in the background of presumption that has been raised by Section 114-A of the Evidence Act and the consequences have to follow. I however the consent is established, the accused cannot be convicted of the offence for which they were charged.

11. In compliance with the essential ingredients of Section 114-A, the testimony of the prosecutrix whether she has said in her concluding statement that the accused have committed rape on her satisfies the technicality of Section 114-A. Upon such statement, the Court is required to presume that there was no consent in existence and the case may have to be examined based on these footings.

12. On the face of the prosecutrix, having said before the Court that she did not consent, now all what is required is to examine the collective effect of the evidence of the prosecutrix and the Medical examination together. The reply to question No. 2 given by the Medical Officer in Exh. 40 is as to the injuries consequent upon rape and it is in the negative. Though the doctor has stated in the evidence that injury is not necessary consequent on every act of rape, ultimately, it is one amongst essential ingredients which are the possible events which would be generated in the event, it is a case of rape and not a sexual intercourse by consent.

13. Ultimately, consent is a question of fact and the state of mind of the victim as could be gathered from the circumstances around at the time of the incident and the conduct and behaviour of the victim at the relevant time will have to be taken into consideration. Resistance by whatever type and efforts of preventing the incident by every possible measure alone or the clues which either attribute the consent to the victim or safely bring her out from any such attribution.

14. In the present case, though there are many lacunae appearing in the FIR, the oral statement before the police and the statement before the Court certainly leaves a room for doubt as to the witness being tutered and trained. However, without touching to the aspect of the matter, the conduct of the victim leads to a positive conclusion that certainly the act of sexual intercourse with the accused was led by consent and not by force.

15. The first act of rape which is attributed to Sudhakar accused No. 1 is certainly an act which is by the said accused individually committed and other accused have no nexus whatsoever. The entry of other accused persons in the scene which is shown latter does not in any eventuality attribute any intention, attachment or any other intention which ties all accused together for involvement in common intention of committing the act of act covering the offence punishable under Section 376(2)(g) of the Indian Penal Code. In an effort to strengthen the case, it seems that the prosecutrix has narrated the incidents with details and on her own act created the background of grave suspicion than creating preponderance of positive act of rape. Admittedly, barring physical force of holding by her hand, there is no other force or threat that prosecutrix has pleaded. The totality of the evidence, therefore, leads to the conclusion that the intercourse was not an act of rape, but was a sexual intercourse with the consent of the prosecutrix.

16. Learned Asstt. Public Prosecutor relied upon a judgment reported in 1990 Cri.L.J. page 1179 decided by Justice V.G. Gyani of M. P. High Court states that consent of the prosecutrix being compelled to do so under the threat at the point of knife could still bring the case under Section 376, Indian Penal Code. The ratio contained in this judgment has no application to present case, since in the present case, it is not the case of the prosecution that the prosecutrix gave the consent under threat whatsoever, on the other hand, the prosecution has relied on simpliciter story of applying physical force from the first as well as second and third occasion. The judgment relied upon by the prosecution, therefore, is of no help for the prosecution.

17. Learned Public Prosecutor also further relied upon the judgment of the Hon'ble Supreme Court, reported in 1950 Cri.L.J. page 1344, Rafiq v. State of U. P. to demonstrate that necessity of corroboration is a condition for judicial reliance on the testimony of the prosecutrix. Learned P. P. therefore, tried to argue that in the present case, on the face of unambiguous version of the prosecutrix that she did not give consent for the act of sexual intercourse, it was not necessary that any corroboration was required and her version warranted safe reliance. In the present case, it is not the plea of the appellants that the prosecutrix ought not be relied and that the evidence led by her must be supported by independent evidence or by corroboration. On the other hand, the appellants have in very clear terms stressed that the some collective effect of the testimony of the prosecutrix and the medical evidence reveals no amount of involvement of force whatsoever. The injuries on the person of the prosecutrix are on her own version subsequent to the act of rape, inflicted by the accused No. 1 due to prosecutrix's having revealed their sins to the mother of the accused No. 1. Therefore, this Judgment also does not have any bearing in the present case and does not support the case of the prosecution.

As further observed in para 7 of the Judgment referred to above, the manner in which the victim has openly moved with the accused persons though she pleaded involuntariness therein, there are strong circumstances which are mutilating against the veracity of the victim and it is very difficult to assume that all her movements were without her consent. The prosecution story gets further fatal infirmity when Tarabai who atleast is the witness of the assault and act of beating and their initiation of the association of the accused No. 1 with the victim had begun from her place, is not examined even to strengthen the circumstances and to prove the assault due to revealing to her the acts of rape. In the result, equally grave suspicion is raised in relation to the later part of the charge under Section 323 of the Indian Penal Code.

18. While the intention of law makers while introducing the amendment and providing severe punishment by incorporating Sub-clause (b) in Section 376(2) as well while introducing Section 114-A of the Evidence Act also requires to be respected, the potential risk that follows is that any error in reaching the conclusion as to the lack of consent results in the conviction. The text of presumption as to lack of consent cannot be said to operate to a fixed yardstick or rigid rule where bare testimony of the prosecutrix in the form of her statement before the Court that she did not give consent would lead to raise an arithmetical equation of leading the Court to conclude in favour of conviction and award the sentence. The statement of victim, therefore, required to be assessed by considering the entirety of evidence that may be come before the Court. The manner in which the victim openly moved around clearly impeaches the testimony of the prosecutrix that she did not consent for the intercourse. The presumption raised in Section 114-A of the Evidence Act, does not preclude the Court from assessing the entirety of the evidence that comes before the Court. Be that as it may, the presumption raised under Section 114-A is laying down rigid yardsticks that no other conclusion is possible and that the accused have by evidence other than one which has come before the Court through the presumption to prove to the contrary, it would lead to the conclusion that never intended by the said section.

19. In the light of the above discussion hereinabove, I have no hesitation to reach to a conclusion that even by taking assistance of Section 114A of the Evidence Act, the prosecution has failed to prove the act of sexual intercourse attributed to the accused persons constitutes a Gang rape as well, that was without the consent of the prosecutrix.

20. With the conclusion, that I have reached, the judgment and order under appeal of conviction and sentence requires to be reversed and set aside. I, therefore, pass the following order.

1. Appeal is allowed.

2. The conviction and sentence under both the Sections 376(2)(g) as well as under Section 323 read with Section 34 of the Indian Penal Code is set aside.

3. The accused be released unless requires in any other case.