State Of Maharashtra vs Dnyaneshwar S/O Pandurang ...
2005 Latest Caselaw 1237 Bom

JUDGMENT

R.C. Chavan, J.

1. Taking exception to the respondent's acquittal for offences punishable under Section 376 of the Penal Code and Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 recorded by the learned Special Judge, Amravati, the State has preferred this appeal.

2. Facts, which led to prosecution of the respondent, are as under :

3. The respondent, upper caste - Hindu, is resident of Village Deori-Nipani, within the jurisdiction of Police Station Walgaon. One Varsha Chandrabhan Meshram, a young girl, aged 14 years, belonging to the Scheduled Caste, also hails from the same Village. On 20-9-1994, at about 8 p.m., Varsha had gone to public water tap to fetch water. Accused Dnyaneshwar was waiting for her in a lane. He dragged her and pressed her lips to prevent her from shouting. Near the house of one Dattak, he removed her inner wear and raped her. Her father was shouting for her and hence the accused and the prosecutrix left their underwears at the spot. The accused took the prosecutrix to his house and forbade her from disclosing the incident to anyone. She hid herself.

4. Her father Chandrabhan had given a report to the police on the same night. Next morning, the police found the victim and sent her for medical examination. The police also arrested the accused and sent him for medical examination. The police performed panchanama of spot, recorded statements of witnesses, sent the incriminating articles to the Forensic Science Laboratory and on completion of the investigation, charge-sheeted the accused before the learned Judicial Magistrate First Class, Amravati, who committed the case to the Court of Special Judge at Amravati.

5. The Special Judge and the Sessions Judge, Amravati, charged the respondent/accused of the offences punishable under Section 376 of the Penal Code and Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty and hence was put on trial. In its attempt to bring home the guilt of the accused, the prosecution examined in all seven witnesses. The accused took a defence of denial as regards forcible sexual intercourse and stated that in fact the prosecutrix had followed him that night and told him that she would marry him, whereafter he heard the shouts of her father and then went to his own house. After considering the prosecution evidence in the light of defence raised, the learned Special Judge acquitted the respondent of the offences charged. Aggrieved thereby, the State has preferred this appeal.

6. We have heard Shri Yengal, the learned Additional Public Prosecutor for the State. None was present to represent the respondent, who had been duly served and had engaged Advocates Shri Navlani and Purohit to represent him. With the able assistance of the learned Additional Public Prosecutor, we have examined the entire evidence on record in order to find out whether the learned Special Judge erred in acquitting the respondent.

7. The charge in respect of offences punishable under the various Clauses of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was indeed uncalled for. Merely because the victim belongs to Scheduled Caste or the accused is upper caste Hindu, it does not follow that the offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 would be made out. It is not the allegation of the prosecution that the accused committed the offences because the victim belonged to the Scheduled Caste. It was simply a case of two young persons committing an indiscretion. Therefore, the learned Special Judge rightly held that the charges in respect of offences punishable under Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were not proved.

8. PW 7 Dr. Sheela Lotkar was working as Medical Officer at Duffrin Hospital, Amravati, at the relevant time. She stated that on 21-9-1994, she examined the prosecutrix and found that hymen was intact and that there was a lacerated wound over fourchette. Vagina admitted one finger easily. She found that the prosecutrix was capable of having a sexual intercourse and that there were positive signs of forceful intercourse. She has used the word "forceful" and not "forcible", which may not be entirely insignificant. There was no mark of injury over the body of Varsha and there was no bleeding. In response of requisition Exhibit 36, it seems that the vaginal slide and blood sample were taken.

9. PW 3 Dr. Mundhe had examined accused Dnyaneshwar and found that Dyaneshwar was capable of coitus and had abrasion over his knee joint, contusion over upper 1/3rd" of left leg and abrasion over the left shoulder. He had taken samples of semen blood and pubic hair of the accused.

10. PW 6 PSI Shende, the Investigating Officer, sent the sample along with the garments of the prosecutrix and accused, which had been seized in presence of PW 5 Ramsing vide panchanamas Exhibits 28 and 29, to the Forensic Science Laboratory. The report of the Laboratory at Exhibit 32 would show that the blood group of the accused is "A" and so is the group of his semen. The torn skirt of the prosecutrix had stain of semen of group "A". Thus, this evidence would indicate the possibility of the prosecutrix and the accused having a sexual intercourse at the relevant time.

11. Prosecutrix Varsha was examined as PW 1. She had stated that she was 15 years old when the deposition began. In cross-examination, she stated that she did not know her birth date, but approximately she may be 18 years old. She stated that Sangita Sukhdeve and Sunita from her Village were of her age and both Sangita and Sunita were married.

12. PW 2 Kailash, Varsha's brother, stated that his age was 14 years when his statement was recorded by police and Varsha was about 4 years elder than him. This would bring the age of Varsha to about 18 years. His father Chandrabhan, who was examined as PW 4, stated that he was 19 years old at the time of his marriage about 19 years ago. Varsha was born about three years after the marriage. Thus, Varsha ought to be 16 years old according to this calculation.

13. PW 7 Dr. Sheela Lotkar had also examined the prosecutrix in order to find out her age and had certified that Varsha was above 14 years and below 16 years of age at the relevant time. She had proved her certificate to that effect. However, she admitted in her cross-examination that fusion of bones differs from region to region and also depends upon the development of the body. She stated that Varsha came from labour community and had a short stature and admitted that there could be a margin of error of three years on either ways.

14. Thus, from this account of various witnesses, it cannot be held as conclusively proved that Varsha was below 16 years of age at the relevant time.

15. Varsha gave a very curious account of the incident, which took place very much near her house, which is surrounded by several other houses, as can be seen from the panchanama of spot proved by PW 5 Ramsing. She stated that when she was returning after taking water, the accused gagged her mouth and dragged her towards the house of one Sudam and near the wall of the house Dattak. He committed the rape after removing his as well as her knickers. The accused then took her to cattle-shed of one Ambabai and threatened that she should not disclose the incident to anyone. She stayed in the cattle-shed throughout the night. She stated that there is a lamp on the road near the tap in front of house of her grandfather Champatrao, which is just adjacent to her own house. She too admits that several houses are situated near the place where she was allegedly ravished.

16. She admitted that she knew one Devidas, but denied that Devidas had said anything about her marriage. She stated that when her mouth was closed, she bit the hand and, therefore, the accused had removed his hand from her mouth. She stated that her father was near the place where she was dragged and she could hear his shouts. She too claimed to have shouted, but nobody came to her rescue. This is incredible. If her father was also shouting and if her father was searching for her, he would have definitely found her. She stated that when she was being ravished, she was hearing the shouts of her father and she was near the wall for about half-an-hour and then came to cattle-shed to hide herself. She admitted that even though she was alone and the accused had already left, she did not go to her father. She denied the suggestion that the intercourse was committed with her consent.

17. It may be recalled that in her report at Exhibit 21, she had stated that when the accused was dragging her, her brother Kailash had seen the accused. Kailash (PW 2) too stated that accused Dnyaneshwar had dragged his sister, gagged her mouth and taken her towards the house of Sudam near the wall of one Dattak. He stated about this to his father. Thus, it is not that the prosecutrix had been pulled by the accused without anybody knowing of it. Kailash admits that he did not try to catch the accused.

18. PW 4 Chandrabhan also states that Kailash shouted telling him that that accused Dynaneshwar had taken Varsha. It is indeed surprising that though Varsha and Dnyaneshwar were very much in the vicinity of their houses, Chandrabhan, who was searching for them, could not find Varsha or Dnyaneshwar. Chandrabhan gave a detailed account of the situation of various houses in para 4 of his deposition, which shows that the alleged incident had taken place in the midst of a crowded locality. It is incredible that in such a locality, the young people, who were indulging in a sexual intercourse, could not be traced out though the father knew who was the culprit and when, according to his daughter, the act was going on for about half-an-hour. Contradicting his daughter, PW 4 Chandrabhan denied that he had called out the name of Varsha when he learnt of the incident from Kailash. He admitted that he has got assistance of Rs. 5,000/- from the Social Welfare Department on account of rape of his daughter, but denied the suggestion that he made a false report against accused Dnyaneshwar to get such assistance though his financial condition was admittedly not sound.

19. The Investigating Officer, PSI Shende, was examined as PW 6. His evidence does not add anything to the facts disclosed by other witnesses.

20. It may be seen from the evidence of PW 1 Varsha, PW 2 Kailash and their father PW 4 Chandrabhan that the entire story about accused taking the prosecutrix forcibly and committing rape upon her with the knowledge of the father and the brother and the inability of the father and the brother to locate the couple in the vicinity of their own houses, is incredible. Varsha, who had come of age, must have been a consenting party. Otherwise she would have raised a ruckus, which would have attracted all the neighbours, since it was not very late in the night, as Varsha states that the incident occurred at 8 p.m. only. Therefore, after quietly having an intercourse with the accused, it seems that Varsha was hiding in the cattle-shed of Ambabai from where she was picked up on the next day by her father and policemen. In view of this, the conclusion drawn by the learned Special Judge that the prosecution had not proved that the accused raped Varsha, has to be upheld.

21. Consequently, the appeal fails and is dismissed. Bail bonds, if any, furnished by the respondent shall stand cancelled.