The State Of Maharashtra vs Suresh Shankar Jadhav
2007 Latest Caselaw 502 Bom

JUDGMENT

S.R. Sathe, J.

1 The State of Maharashtra has preferred this appeal against the judgment and order passed by the Court of the 2nd Additional Sessions Judge, Satara in Sessions Case No. 188 of 1988 whereby the accused was acquitted of the offences punishable under Section 376 of IPC and Section 57 of Bombay Children Act.

2 Brief facts giving rise to this appeal are as under:

The prosecutrix who is the minor girl of about 13 years was residing at village Gursale along with her parents, sister and brother. On 11-8-1987 the prosecutrix, her elder sister and brother i.e. prosecution witness No. 8 had gone to Balubai temple of Umbarde. The prosecutrix and her brother had gone there on bicycle while her elder sister had gone there by truck. After offering prayer in the temple when they were returning accused met them at the said place. As accused was also residing at Gursale and knowing to the prosecutrix as well as her brother, the brother requested him to take prosecutrix on his bicycle so that he would be in a position to carry his other sister. Accordingly, prosecutrix and accused started on bicycle. The prosecutrix was sitting on front rod of the bicycle. The brother of the prosecutrix was carrying his other sister. As the brother was ridding cycle slowly and whenever road was uneven he used to get down from the bicycle, he remained behind and accused went ahead. In stead of dropping the prosecutrix near the hill or near the village the accused took the prosecutrix to his house. However, when he reached near the house he found that it was locked. He, therefore, asked the prosecutrix to wait there and then he went and brought the key. It is alleged that accused had told the prosecutrix that he would give ground-nut to her. On so saying the accused took the prosecutrix inside the room and latched the door and threw her down on the flour on empty gunny bag and then accused forcibly lifted petticoat (parkar) of the prosecutrix and committed rape on her. Immediately thereafter accused got up and put on lungi. By that time the brother of prosecutrix reached there. When he gave a call accused opened the door. The bother noticed that at that time prosecutrix was putting her dress properly. The brother of the prosecutrix immediately took her to their home. Prosecutrix then narrated the incident to her mother. She, therefore, went to the field of the accused and told about the incident to the father of the accused. He, promised that he will look into the matter. However, the prosecutrix and her mother immediately went to Vaduj and there prosecutrix lodged the complaint Exh. 23.

3 On the basis of the complaint given by the prosecutrix crime was registered at C.R. No. 78 of 1987 against the accused for the offence punishable under Section 376 of IPC. The Police then visited the place of offence and drew panchanama of the place of offence. They also attached the clothes of the prosecutrix and then prosecutrix was sent to Civil Hospital, Satara for her medical examination. Police also recorded the statements of some witnesses and attached the cycle of the accused. When Police came to know that accused is hiding himself in the cattle shed of Waman Bhairu Pawar near Aundh, Police immediately went to the said place and arrested the accused. They also attached the clothes which were on the person of the accused. Police also sent the accused for medical examination. Police then sent the attached property viz. the empty gunny bag which was found at the place of offence, clothes of the prosecutrix etc. to C.A.. After completion of the investigation the Police filed charge sheet against the accused in the Court of the Judicial Magistrate, F.C., Vaduj for the offence mentioned above.

4 Finding that the accused was charge sheeted for the offence which was exclusively triable by the Court of Sessions, the leaned Judicial Magistrate, F.C., Vaduj committed the case to Sessions Court at Satara.

5 The 2nd Additional Sessions Judge, Satara framed charge Exh. 3 against the accused for the offence punishable under Section 376 of IPC and Section 57 of Bombay Children Act. The charge was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. The defense of the accused is of total denial. It is his contention that at the instance of one Bajrang Pawar a false case has been lodged against him.

6 In order to prove the charge leveled against the accused the prosecution examined as many as 12 witnesses consisting of:

i. Hamidkhan Makubul Pharas, Circle Officer, PW 1, Exh. 8

ii. S.A. Jadhav, panch witness, PW 2, Exh. 10, who acted as panch for place of offence,

iii. A. Mulani, panch witness, PW 3, Exh. 12, who acted as panch for attachment of clothes of the accused;

iv. C.K. Mane, another panch witness, PW 4, Exh. 14,

v. Gorakh Jadhav, panch witness, PW 5, Exh. 17 who has acted as panch for attachment of cycle of the accused;

vi. S.G. Shigle, panch witness, PW 6, Exh. 19, who acted as panch for the arrest of accused,

vii. M.V. Chinchkar, prosecutrix, PW 7, Exh. 22.

viii. Mahesh Chinchakar, brother of prosecutrix, PW 8, Exh. 24,

ix. Dr. Kumar Khade, PW 9, Exh. 25 who was then working as Medical officer at Primary Health Centre, Vaduj,

x. K.U. Chinchkar, mother of prosecutrix, PW 10, Exh. 29,

xi. Dr. Ashok J. Pawar, PW 11, Exh. 30, who examined the prosecutrix, and

xii. PSI A.G. Gawade, Investigating Officer, PW 12, Exh. 36.

7. The prosecution produced sketch of place of offence Exh. 9, panchanama of place of offence Exh. 1, panchanama of clothes of the accused Exh. 15, panchanama of attachment of bicycle of the accused Exh. 18, arrest panchanama of accused Exh. 20. Complaint lodged by the prosecutrix Exh. 23, Medical Certificate issued by Dr. Pawar Exh. 31, C.A. Report Exh. 41.

8. After considering the evidence adduced by the prosecution and finding that in the medical certificate issued by Dr. Ashok Pawar, it was mentioned that there was no evidence of rape, no external injuries over body of the prosecutrix, no injury over vulva, hymen found intact, no injuries to vagina, the learned trial Judge came to the conclusion that the oral testimony of the prosecutrix is totally against the medical evidence and as such the same is not reliable. He therefore, acquitted the accused of the offences with which he was charged.

9 Being aggrieved by the judgment of acquittal the State of Maharashtra has filed the present appeal. Though the present appeal was on board for long time on 2 occasions none appeared on behalf of the defence. So, in the interest of justice the matter was adjourned twice. Even on 13-2-2007, when the matter was fixed for hearing the learned Advocate for the accused remained absent. Hence relying on the judgment in a case Boni Singh v. State of U.P. 1996 Cr.L.J. 3491, we heard the learned A.P.P. for the State. He has taken us through the entire evidence as well as the judgment passed by the learned trial Judge.

10 The leaned A.P.P. submitted three points, Firstly, he submitted that the learned trial Judge has not properly appreciated the evidence on record and acquitted the accused because there was discrepancy in the medical evidence and the ocular evidence of the prosecutrix. However, according to him merely because the medical evidence was not sufficient it was not proper on the part of the learned trial Judge to acquit the accused. Secondly, he canvassed before us that the learned trial Judge has failed to take into consideration the circumstantial evidence in the form of attachment of blood stained clothes of the prosecutrix as well as the accused and the C.A. report. Lastly, he submitted that even if it is assumed that there was no sufficient proof regarding actual rape still there was enough evidence to show that the accused at the relevant time made an attempt to commit rape. So, he should have been at least convicted for the offence punishable under Section 376 read with Section 511 of IPC.

11. It is not in dispute that the prosecturix was residing at village Gursale along with her parents. It is also an admitted fact that at the relevant time the prosecutrix was about the age of 12/13 years. It is also not in dispute that accused was known to the prosecutrix as well as her brother prior to the incident in question. However, it is the defence of the accused that on the day of incident he had not at all gone to the temple of Balubai and the story given by the prosecutrix that the accused brought her from the temple on his bicycle is a concocted story. So, we have to scan the evidence on record and find out whether the version of the prosecturix is proved beyond reasonable doubt.

12. The prosecutrix has stated in her deposition Exh. 22 that her birth date is 20-1-1976 and at the relevant time she was studying in 5th standard. She has further stated that on the day of incident in the morning she had gone to the temple on the bicycle of her brother and accused met them at the said place and brother of prosecutrix requested the accused to carry the prosecutrix on his bicycle so that he could carry his other sister on his bicycle. She has also stated that accordingly she sat on the front rod of the bicycle of the accused and then accused took her to their village but in stead of dropping her at the border of the village as directed by the brother of the prosecutrix, the accused took the bicycle at his house and finding that his house was locked he asked the prosecutrix to wait at the said place and then he brought the key and took the prosecutix inside the room on the pretext that he would give her ground-nut for eating. She has further stated that when she entered the room the accused latched the door from inside and then he made her to lie on the empty gunny bag which was lying in the room and then he lifted her petticoat (parkar) and sat her on body, he also pulled down her knickers and then removed his pant and committed rape on her within 2/3 minutes. She has also stated that as a result of the same there was bleeding from her private part and there was also whitish liquid on her private part. Her clothes were also stained with blood. However the accused wiped out the blood by using paper and then he threw the said paper near the door. Immediately thereafter the accused released her and opened the door. When she was wearing her clothes her brother came at the said place. When accused opened the door the brother of the prosecutrix asked him about the prosecutrix and he told him that she is eating ground nut in the house. By that time prosecutrix came out by wearing her clothes and then her brother took her to their home. She has also stated that her brother entered home from front door while she went inside home from the back door. On reaching at home she started weeping. Her mother made query and then she narrated the entire incident to her mother. Thereafter her mother went to the field of the accused and told about the incident to the father of the accused and he promised that he will look into the matter. However, thereafter the prosecutrix and her mother went to Vaduj Police station and there she narrated the entire incident to the Police and Police registered her complaint Exh. 23. If we see her cross examination we find that her evidence is not at all shaken or shattered in the cross examination. Mere suggestion has been put to her that entire story given by her is false and that the accused has been involved falsely at the instance of one Bajrang Pawar. However, the said suggestion is categorically denied by the prosecutrix. No omissions and contradictions have been brought on record during her cross examination. She has specifically stated that the clothes i.e. Article Nos. 6 and 8 before the Court were on the person of the accused.

13. The version of the prosecutrix is corroborated to some extent by her brother.Admittedly, there is no eye witness to the incident and thee cannot be any eye witness in such type of cases. However, the brother of the prosecutrix has stated that he had sent the prosecutrix along with the accused but when he returned home he found that the prosecutrix had not come, naturally he went to the house of the accused and at that time when he gave a call to the accused he came out by wearing a Lungi and told him that prosecutrix was eating ground nuts in the house but he found that the prosecutrix was wearing her clothes, hence he asked her as to what happened but she did not reply and started weeping. He therefore immediately took her on his bicycle and then went to their home. He has also stated that when he made query to the prosecutrix she did not tell anything but subsequently she narrated the entire incident to the mother. It is worth to note that this witness is also thoroughly cross examined but no omissions or contradictions are brought on record in his evidence. All that is suggested to him is that a false case has been lodged against the accused at the instance of Bajrang Pawar and Ramchandra Kulkarni. However, the said suggestion has been categorically denied by this witness.

14. The prosecution has also examined the mother of prosecutrix at Exh. 29. She has also stated that prosecutrix returned home with her brother and at that time she was weeping and when she made enquiry she told her that accused committed rape on her at his house. She has also stated that she therefore immediately went to the father of the accused and told him about the incident and he promised that he would look into the matter. She has further stated that she immediately thereafter took the prosecutrix by ST bus to Vaduj and then prosecutrix lodged the complaint with Police.

15. If we see the said complaint Exh. 23 we find that the same has been registered on 11-8-1987 at 7-30 p.m. The evidence of mother of the prosecutrix is also not shaken or shattered in the cross examination. Nothing has been brought on record which would indicate that the above mentioned witnesses have prepared a cock and bull story. We cannot ignore the fact that this is not a case where the accused was previously not known to the complainant or her family. There is absolutely nothing on record to show that the prosecutrix or her family members were having any grudge or grievance against the accused. On the contrary we find that the brother of the prosecturix had in fact requested the accused to take the prosecutrix on his bicycle to the village. This itself shows that the brother had never thought that the accused would commit any such thing. So, when there is nothing to indicate that the prosecutrix or their family members were having any dispute with the accused, it cannot be said that the prosecutrix would try to implicate the accused falsely and that too in such a matter where the question of her own character and dignity is involved. No girl or woman would go to such an extent and make false and baseless allegations against any person and say that the said person has committed rape on her. No parents would also make any such false statement which would put the entire future carrier and character of their daughter at stake. The prosecutrix has narrated the entire incident to her mother immediately. So, this prompt disclosure clearly indicates that her version is true and correct.

16. It is pertinent to note that prosecutrix has not stopped by making complaint to her mother but thereafter she immediately went to Vaduj Police station and lodged the complaint. This prompt lodging of FIR also lends support to the prosecution version.

17. It is true that in a case of rape it is always essential to find out whether the medical evidence supports the case of rape. However, unfortunately in the instant case we find that the medical evidence does not support the prosecution in any manner. Dr. Ashok Pawar has examined the prosecutrix on 11-8-1987 at night and he has categorically stated that prosecutrix had told him that she took bath and changed the clothes afterward. He has stated that he did not find any injury on the vagina of the prosecutrix nor there were any signs or bleeding or discharge of semen. There were no injuries on the private part of prosecutrix. Vulva was normal. No external injuries were noticed. Hymen was intact. According to him there was no proof or evidence regarding penetration. So, he opined that there was no evidence regarding rape. If we accept the evidence of Dr.Ashok Pawar as it is, then, it only shows that there was no actual penetration and as a result of the same the hymen was intact. The question may arise as to how the prosecutrix has stated that there was bleeding. While considering this aspect it must be noted that Dr.Pawar has stated that blood may come out from mucous membrane. So, even if actual penetration was not complete a forcible attempt in that respect might have caused bleeding. It is true that the prosecutrix has made some exagression and has stated that there was profused bleeding but we cannot ignore the fact that the prosecutrix is a minor girl. When certain questions were put in the cross examination as to whether there was heavy bleeding etc. she might have thought that if she would reply in the negative her entire story would be disbelieved and as a result of the same she might have said that there was profused bleeding. But merely because some such exaggerated statements have been made by her, that by itself is not sufficient to discard her testimony totally. It is pertinent to note that the prosecutrix has categorically stated that her knickers was pulled down by the accused and thereafter accused had removed his pant and had laid on her body and according to her he committed rape and there was bleeding through her vagina. She has also stated that there was whitish discharge on the vagina which was wiped out by the accused with a piece of paper. According to her all this had happened within 2/3 minutes. So, it appears that accused certainly made an attempt to have sexual intercourse with her. Ultimately, he might not have been successful in penetrating his organ but evidence on record shows that there was discharge of semen.

18. The evidence of prosecution is also corroborated by some circumstantial evidence. It has come on record that immediately after the incident Police tried to find out the accused at his house but he was not traced there and on the next day i.e. on 29th they came to know that accused is in the cattle shed of one Waman Bhairu Pawar near Aundh, So, Police went there along with panchas and accused was found at the said place. Police therefore drew the arrest panchanama and then accused was brought to village Gursale Gramanchayat office and clothes which were on the person of the accused were attached. The said clothes had some blood stains. The said clothes have been identified by the prosecutrix. It is pertinent to note that said clothes as well as the clothes of the prosecutix were sent to C.A. and C.A. has opined that blood of "B" group was found on the said articles i.e. Exh. Nos. 3, 4, 5, 6 and 7. It must be noted that as per C.A. Report Exh. 41 the blood group of the accused is "A". No explanation is given by the accused as to how the blood of "B" group was found on the clothes of the accused i.e. On pant Exh. 6 and underpant exh. 7. So, this certainly indicates that the accused made an attempt to commit rape and as stated by Doctor while doing so it might have caused minor negligible injury to the private part of the prosecutrix and as a result of the same there were some blood stains. Panch witness Sudhakar Jadhav Exh. 10 has stated that at the time of panchanama of place of offence two pieces of papers were found at that place. When the same were sent to C.A., he noticed semen and blood stains on it which tally with the blood group of accused and prosecutrix respectively. Prosecutrix has categorically stated that at the relevant time accused wiped the blood and whitesh liquid which was on her private part to one piece of paper and threw it near door. So, prosecution evidence in this behalf certainly connects the accused with the alleged crime. So, merely because the prosecutrix has stated that accused committed rape on her but there is no medical evidence to prove penetration it cannot be said that the entire version of the prosecutrix is not trust worthy. On the contrary, having regard to all the facts and circumstances and the immediate disclosure of the prosecutrix to her mother as well as to Police leads us to the conclusion that the statement of the prosecutrix to the effect that at the relevant time accused pulled down her knickers and after removing his pant the accused laid on her body and then there was some bleeding from her private part and there was some whitesh liquid on her private part is trustworthy. There is absolutely no reason to disbelieve the same. Thus, we have no hesitation to hold that in order to satisfy his lust accused made an attempt to commit rape on prosecutrix. The acts committed by the accused also amount to an offence under Section 57 of the Bombay Children Act. The said Section read as under:

Section 57 : Whoever seduces or indulges in immoral behaviour with a girl under the age of eighteen years shall, on conviction, be punished with imprisonment of either description for a term which may extend to two years or with fine which may extend to one thousand rupees or with both.

19. We are fully conscious of the fact that while considering an appeal against the acquittal the court has to take into consideration as to whether the view taken by the trial Judge is a possible view or not. However, in the instant case we find that the learned trial Judge has wrongly discarded the entire testimony of the prosecutrix, her brother and mother merely on the ground that medical evidence has not supported the theory of rape. But the learned trial Judge has failed to consider the fact that medical evidence was silent as to whether an attempt to commit rape was made or not. The absence of medical evidence regarding rape, ipso facto was not sufficient to discard the entire version of the prosecutrix. The learned trial Judge totally failed to consider the case of an attempt to commit rape and consequently wrongly acquitted the accused. We are, therefore of the view that facts and circumstances of the case and evidence on record certainly warrant interference in the finding of acquittal recorded by the learned trial Judge.

20. We, therefore, pass the following order.

ORDER

i. The appeal is partly allowed.

ii. The order of acquitting the accused for the offence punishable under Section 376 of IPC is upheld. However, the accused is convicted for the offence punishable under Section 376 read with Section 511 of IPC and is sentenced to suffer r/I for 5 years and to pay fine of Rs. 3,000/-in default to suffer r/i for 3 months.

iii The accused is also convicted for the offence punishable under Section 57 of Bombay Children Act and is sentenced to suffer r/i for 2 years and to pay fine of Rs. 1,000/-in default to suffer r/o for one month.

iv. Both the substantive sentences to run concurrently.

v. The accused is entitled to get set of for the period of detention undergone by him in connection with this case.

vi. The accused to surrender bail within 8 weeks from today, failing which the trial Court to take necessary steps to arrest the accused and sent him jail to undergo the above mentioned sentence.