Bombay High Court
Arvind vs Hanumant Datal on 22 December, 2011
Bench: Shrihari P. Davare
(1) Cri. Appeal No. 229 of 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 229 OF 2010
1 Arvind s/o Bhagwant Datal,
age 21 years, occ. Business,
r/o Bokangaon,
Tq. And Dist. Latur ...Appellant
(Accused)
VERSUS
1 The State of Maharashtra,
through S.H.O. Police Station,
Latur (Rural), Latur,
2 Mohini d/o Hanumant Datal,
age 14 years, r/o Bokangaon,
Tq. And Dist. Latur,
through guardian
Hanumant Datal, age major,
r/o Bokangaon,
Tq. And Dist. Latur ...Respondents
.....
Smt. S.S.Jadhav, advocate h/f
Shri V.T.Sakolkar, advocate for appellant
Shri S.G.Nandedkar, A.P.P. for respondent no.1
Shri S.S.Manale, advocate for respondent no.2
.....
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(2) Cri. Appeal No. 229 of 2010
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 01.12.2011
DATE OF PRONOUNCING
THE JUDGMENT : 22.12.2011
JUDGMENT :
1 Challenge in this appeal is to the judgment and order, dated
11.6.2010, rendered by the learned Additional Sessions Judge, Latur, in
Sessions Case No. 74 of 2009, thereby convicting the appellant i.e.
original accused for the offence punishable under Section 376 of the
Indian Penal Code and sentencing him to suffer R.I. for 7 years and to pay
fine of Rs.20,000/-, in default to suffer further R.I. of 1 year, and also
convicting him for the offence punishable under Section 342 of the Indian Penal
Code and sentencing him to suffer R.I. for 1 year and to pay fine of Rs.500/-, in
default to suffer further R.I. of 15 days, and also directing that the fine amount
be paid to the victim Mohini Hanumant Datal as compensation under Section
357 (1) of the Code of Criminal Procedure.
2 The factual conspectus and shorn of details of the prosecution
case is as follows :-
The accused faced the trial for the charges under Sections 376 and 342 of
(3) Cri. Appeal No. 229 of 2010
the Indian Penal Code for committing rape on a minor girl, namely Mohini, aged
about 13 years, in his Kirana shop by wrongfully confining her therein.
3 It is alleged that on 3.1.2009 at about 5.00 p.m. the complainant,
namely Ranjana Hanumant Datal i.e. mother of victim Mohini and her husband
had gone to the agricultural field for labour work and when the complainant
returned to home, her neighbourer, namely PW7 Damayanti Shinde informed her
that her daughter Mohini was washing the blood stained nicker and frock.
Hence, the complainant made inquiry with her and she disclosed that the
accused, namely Arvind committed rape upon her when she went to his shop to
purchase the snacks. On inquiry, victim Mohini also stated that when she went to
purchase snacks to the shop of the accused, he caught hold of her and pulled
her into his shop and closed the door and committed intercourse upon her
forcibly. Thereafter, the complainant along with her daughter went to Latur
(Rural) police station. PW8 P.I. Ashok Patil was attached to Latur (Rural) police
station on 4.1.2009 and the complainant Ranjana met him and she lodged the
complaint, which was reduced into writing by him as per her narration, which is
produced at Exh. 19 and the offence was registered against the accused on
4.1.2009 at about 1.15 a.m. under C.R. No. 2 of 2009 for the offences
punishable under Sections 342 and 376 of the Indian Penal Code. Thereafter he
sent victim Mohini for medical examination along with letter (Exh. 38), and went
to the village of the complainant along with the victim and seized blood stained
and white stained clothes of the victim in presence of the panchas under the
seizure panchanama (Exh. 27). Thereafter, the victim showed the spot of the
(4) Cri. Appeal No. 229 of 2010
incident i.e. the shop of the accused and also pointed out the exact spot where
rape was committed upon her therein and on inspection of the said spot, blood
stains were found, which were taken on cotton swab and seized the same under
the spot panchanama (Exh. 21). Moreover, the photographs of the said spot
were taken, which were marked Article 'A'. Thereafter, the statements of
witnesses were recorded.
4 It is also case of the prosecution that the accused was absconding.
He came to be arrested on 7.1.2009 by PW8 PI Ashok Patil and he was referred
for medical examination along with letter (Exh.43) and his blood and semen
samples were collected thereafter. Moreover, the clothes of the accused were
recovered at his instance under the memorandum panchanama (Exh.27) and
recovery panchanama (Exh.29) respectively and same were identified by the
victim girl.
5 It is further the case of the prosecution that thereafter all the seized
articles were sent to the Chemical Analyser for examination purpose along with
the forwarding letter (Exh.42) and pursuant to the said letter, the Chemical
Analyser's reports were received, which are produced at Exhs. 44 to 48. The
opinion of the Medical Officer was called for by letter (Exh.25). Moreover,
Damase Jamal Shaikh collected certificate from the Grampanchayat regarding
the house and the shop of the father of the accused. Accordingly, after
completion of investigation, A.P.I. Damase filed the charge sheet against the
accused before the Chief Judicial Magistrate, Latur and as the offence was
(5) Cri. Appeal No. 229 of 2010
exclusively triable by the court of Sessions, the learned Chief Judicial Magistrate
committed the said case to the Court of Sessions, Latur by order, dated
30.7.2009.
6 Accordingly, learned Additional Sessions Judge, Latur framed the
charge against the accused below Exh.12 on 30.11.2009 for the offences
punishable under Sections 376 and 342 of the Indian Penal Code. However, the
accused pleaded not guilty to the said charge and claimed to be tried.
7 To substantiate the case of the prosecution, the prosecution has
examined, as many as eight witnesses, as mentioned below :-
PW1 - Ranjana Datal, complainant, who proved the F.I.R. (Exh.19)
PW2 - Narsing Datal, panch to spot panchanama (Exh.21), turned hostile.
PW3 - Dr. Aruna Maske Patil, who proved the medical certificate (Exh.24)
and also examined the victim and issued certificate.
PW4 - Prabhakar Datal, panch to seizure panchanama of clothes
of prosecutrix (Exh.27), as well as to the seizure panchanama of
cotton swab (Exh.21), and panch to memorandum panchanama
(Exh.28) and also recovery panchanama of clothes of accused (Exh.29)
PW5 - Mohini Datal, prosecutrix and victim
PW6 - Pradip Patil, the person who informed the prosecutrix that she
was ravished.
(6) Cri. Appeal No. 229 of 2010
PW7 - Damayanti Shinde, neighbourer of victim, before whom she
disclosed that she was ravished.
PW8 - P.I. Ashok Patil, investigating officer.
8 The defence of the accused is of total denial. His statement under
Section 313 of the Code of Criminal Procedure was recorded and he has
specifically stated that his family is qualified and financially sound, but
complainant's family is poor and also there are two groups in their village i.e. one
is of accused and the other is of one advocate Datal, to whom husband of
complainant is attached and also demanded Rs.2,00,000/-, but he has not
fulfilled their demands, and therefore, due to rivalry in the said groups and non-
payment of Rs. Two Lacs, the complainant implicated the accused in the present
case by lodging the false report. However, the accused neither examined him
on oath, nor examined any defence witness to substantiate the said defence.
After assessing the oral and documentary evidence as well as medical evidence,
and after considering the rival submissions advanced by the learned counsel for
the parties, the learned Trial Court convicted the accused for the offences
punishable under Sections 376 and 342 of the Indian Penal Code and sentenced
him as mentioned herein above. Being aggrieved and dissatisfied by the said
judgment and order of conviction, dated 11.6.2010, the appellant has preferred
the present appeal assailing the same and urged for quashment thereof.
9 In order to deal with the submissions advanced by the learned
counsel for the parties, it is necessary to advert to the material evidence
(7) Cri. Appeal No. 229 of 2010
adduced/produced by the prosecution and in the said context, coming to the
deposition of PW1 Ranjana Hanumant Datal i.e. the complainant, wherein she
stated that Mohini is her daughter and at the time of incident she was in 6 th
standard. She also stated that on 3.1.2009 her husband had gone to the field for
agricultural work and she also had gone for agricultural work in another field and
her two daughters were at home. At about 5.30 p.m., she returned back to the
home and thereupon PW7 Damyanti Shinde informed her that nicker and frock
of her daughter was stained with blood. Hence, after coming to home, she asked
daughter Mohini about the same and thereupon she stated that she had gone to
the shop of accused Arvind Datal to purchase snacks, but he pulled her by
holding her inside and committed rape upon her. She also stated that she tried
to shout at that time, but the accused kept his hand on her mouth. He further
stated that one Sidram Datal was present out side the said shop at the said time.
She further stated that thereafter she returned to the house by crying.
Accordingly, PW1 Ranjana lodged the complaint against the accused, which is
produced at Exh. 19.
10 During cross-examination, she stated that there is long distance
between her house and the house of the accused, since her house is situated at
one side of the village, whereas the house of the accused is situated at another
side of the village. She also stated that there were about 3 to 4 grocery shops
between the shop of the accused and her house, and the shops of Kantappa
Belur and Bhimrao Datal are near her house. She further stated that the parents
of accused reside in his house, as well as there is a house of his brother hood.
(8) Cri. Appeal No. 229 of 2010
She further stated that the shop of the accused is about 4 x 8 feet and at the
eastern side of the said shop there is a house and at western side of it there is a
road. She further stated that at southern side of said shop, there is a house of
Sopan Shinde and at the northern side of it there is a house of one Murlidhar
Datal. She further stated that adjacent to the house of Murlidhar Datal, there is
one Anganwadi, Samajmandir, Narsing Mandir and Maruti Mandir, and there is
also a tree having structure around it for sitting and about 50 to 60 persons
gather there. Moreover, in the front of the shop of the accused, there is a house
of one Swamibai and there used to be regular traffic on the road in front of the
shop. Accordingly, she gave the topography of the said shop, as well as gave its
description that there were four doors of the said shop of the accused, which is
having full of grocery articles and there was only space for keeping chair.
11 She further stated that the accused being Datal, he belonged to her
brotherhood and she was her nephew by relation. Suggestion was given to her
that about 1½ month prior to the incident, there was quarrel between the
accused and her husband on account of grazing of cattle in his field, but same
was denied by her. As regards the raising alarm by victim Mohini during the
occurrence of the incident, she did state to police in her complaint that when her
daughter tried to shout, the accused kept his hand on her mouth, but could not
assign any reason for non-mention thereof in the complaint, amounting to
omission in her statement and improvement in her testimony.
12 She further stated that there are two groups in her village, one is
(9) Cri. Appeal No. 229 of 2010
headed by advocate Datal and another headed by Madhukar Patil and
Madhukar Patil is maternal uncle of the accused and he was the Chairman of the
Society since last 15 years and party of Datal was always defeated in the
election. Hence, suggestion was given to her that due to the said election
disputes, she had filed false case against the accused, but same was denied by
her. She further stated that her husband used to sit with Datal advocate.
Suggestion was also given to her daughter is of extraordinary nature, but same
was denied by her. She further stated that Bablu Swami is from her vicinity.
Moreover, it was also suggested to her that there were illicit relations of her
daughter with Bablu Swami, but same was denied by her. It was also suggested
to her that the accused has not committed rape on her daughter and she filed
false case against the accused, but same was denied by her. It was further
suggested to her that for withdrawing the case, she demanded Rs. Two Lacs,
but same was denied by her.
13 Coming to the testimony of PW5 Mohini prosecutrix, she stated that
on 3.1.2009 her parents had gone to the field and she and her sister were at
home; whereas her brother had gone away to play. At this stage at about 5.00
p.m. she had gone to the shop of Arvind to purchase snacks (khara) and one
Shriram was present there. However, the accused sent him out of the shop.
Thereafter PW5 Mohini gave Rs.2/- to the accused to purchase snacks. At this
juncture, accused Arvind pulled her inside shop by holding her hand. Thereupon,
she attempted to shout, but the accused put his hand on her mouth and closed
the door of the shop and removed her nicker and caused her to lie down and
(10) Cri. Appeal No. 229 of 2010
thereafter removed his underwear and inserted his penis in her private part, and
thereby she felt pain. She also stated that he threatened her that he would kill
her if she told the said incident to anybody. She further stated that she started
bleeding on her private part and some blood had fallen in the shop. She further
stated that while she was returning to her house, three people were sitting
beneath the tree on the platform, who included Pradip Patil, Balaji Datal and
Shrimant Datal. She told them about the said incident and thereafter returned to
her house and informed her sister about the said incident. Accordingly, her
sister informed the same to PW7 Damyanti Shinde, who was coming from the
field. At that time, PW5 Mohini was washing her clothes having blood stains
thereon. Thereupon, Damayanti asked her what had happened. Thereafter, she
informed her about the incident. Thereafter, when her parents returned from the
field, PW7 Damyanti told them about the said incident. Thereafter, at about 9.00
p.m. on the same day, she went to police station along with her parents and
police personnel made inquiry with her and took her to the doctor and doctor
examined her. She further stated that she knew the accused Arvind and
identified him in the court. She also identified her clothes i.e. frock and nicker
from muddemal property, which were worn by her at the time of incident.
14 During cross-examination, she stated that her house is situated at
one corner of the village, whereas the house of the accused is situated at
another corner of the village and she admitted that the shops of Kantappa Belure
and Bhimrao Datal are near her house. As regards topography of the shop, she
stated that there was wooden counter of 3 feet in the said shop and one person
(11) Cri. Appeal No. 229 of 2010
cannot go by crossing that counter and the shop of the accused is situated in his
house. She further stated that 2-3 families were residing in the house of the
accused Arvind and the said persons always used to come and go from the
main door of the house and the shop is situated adjacent to the said main door.
She also stated that there was one small door for entering into the said house
from the shop and the persons coming and going used to be visible from the
said door. She further stated that there is house of one Swami Madam in front of
the shop of the accused and the said shop is visible from the said shop of
Swamibai and the house of Swamibai is also visible from the said shop. She
stated that the said shop was having one iron shutter and the doors were of
wood planks. She further stated that the said shop of the accused was situated
in the crowded area and there used to be regular customers. As regards the
occurrence of the incident, she stated that accused Arvind pulled her by right
hand holding her left hand. She further stated that when accused caught hold of
her, she shouted, but he kept his hand on her mouth She further stated that shop
of the accused is fully loaded with grocery articles. As regards alleged rape
committed upon the victim, she stated that the accused removed her nicker by
his left hand and at that time his right hand was on her mouth. She further
stated that he also removed his jangya and inserted his penis and moved for
2-3 times. It was suggested to her that the clothes seized by police personnel
did not belong to her, but same was denied by her. She further stated that the
house of Damyanti was situated adjacent to her house, but denied that she had
not told about the incident to her. It was further suggested to her that when she
went to purchase snacks, other customers were also present there, but same
(12) Cri. Appeal No. 229 of 2010
was denied by her. As regards the presence of Shriram in the said shop,
omission in her statement and improvement in her testimony was brought on
record. Suggestion was given to her that there was quarrel between the father of
the accused and her father on account of grazing cattle, but same was denied
by her. It was also suggested to her that her parents were trying to compromise
the matter, but same was denied by her. It was further suggested to her that in
order to harass the accused they lodged the false complaint on the say of people
from the group of her father, but same was denied by her. However, she
categorically stated that the accused Arvind is her cousin brother.
That takes me to the testimony of PW6 Pradit Patil, who has stated
that he knows accused Arvind and victim Mohini and on 3.1.2009 at about 5.00
to 5.30 p.m. he was sitting on the platform under the tree along with Shrimant
Datal and Balaji Datal. At that time, he saw daughter of Hanumant Datal, namely
Mohini coming there crying. Hence, they asked her why she was crying.
Thereupon, she informed that she had gone to the shop of accused Arvind to
purchase snacks, but he pulled her in the shop and committed rape on her. PW6
Pradip Patil further stated that he saw blood lying on her legs. Hence, he sent
her in the house and they went towards the shop of the accused. However, the
accused had ran away by keeping the shop open. He also identified the accused
before the court.
16 In the cross-examination, he stated that accused belongs to his
brotherhood. He also stated that on 3.1.2009 there might be Sunday and it was
(13) Cri. Appeal No. 229 of 2010
the market day in Latur. Hence, suggestion was given to him that he was present
at Latur and not at the village, but same was denied by him. He also stated that
he does not know whether there were two groups in the village, out of which one
is headed by Madhukar Patil and another is headed by advocate Datal. He also
denied that accused Arvind Datal is nephew of Madhukar Patil. He further stated
that he is not concerned with any group of the political party. He further stated
that he is not aware whether in the election persons from the group of Madhukar
Patil was elected. He also denied that the accused and his father are from rival
group, and therefore, he deposed against them falsely. Accordingly, it is the case
of Pradip Patil that he is the first person to whom victim Mohini informed the
occurrence of the incident that she was ravished by the accused.
17 Coming to the deposition of PW7 Damayanti Shinde, who stated
that she knows victim Mohini as well as accused Arvind. She also stated that
about one year back at about 5.00 to 5.30 p.m. victim Mohini and her sister
Pushpa called her and informed that something happened to Mohini and Mohini
was in bathroom washing something. Then she asked Mohini what had
happened. Thereafter she disclosed her that Arvind committed rape on her.
Thereafter she returned to her house. Thereafter mother of Mohini i.e.
complainant Ranjana came from agricultural field and PW7 Damayanti informed
her about the incident. In the cross-examination, she stated that her daughter in
law was present in her house on the relevant day. She also stated that police
personnel recorded her statement as per their own mind. She also denied that
she is deposing falsely that Mohini told her that accused committed rape on her.
(14) Cri. Appeal No. 229 of 2010
Accordingly, PW7 Damayanti is also the neighbourer of victim Mohini, whom
victim Mohini and her sister Pushpa narrated the occurrence of the incident of
committal of rape by the accused on her.
18 Coming to the testimony of PW4 Prabhakar Datal, who is the
panch witness, in whose presence clothes of the prosecutrix were seized under
seizure panchanama (Exh.27) on 4.1.2009, as well as cotton swab was seized
under seizure panchanama (Exh.21), and in whose presence accused made
voluntary statement under memorandum panchanama (Exh.28) and thereafter
the clothes were seized under recovery panchanama (Exh.29) at the instance of
the accused on 9.1.2009. He stated in his deposition that on 4.1.2009 he acted
as panch at the request of police personnel and another panch PW2 Narsing
Datal was along with him and they went to the house of Mohini along with police
and seized one frock and nicker of the victim in their presence under seizure
panchanama (Exh.27). Thereafter he went to the shop of the accused Arvind
along with the police and victim Mohini and some blood was lying in the said
shop and police personnel collected the said blood by cotton swab in plastic bag
and same was seized under panchanama (Exh.21). He further stated that on
9.1.2009 he was called to the police station and at that time one Balaji Datal was
present there and accused Arvind made voluntary statement, which was
recorded under memorandum panchanama (Exh.28). Thereafter, the police
personnel seized one bag of clothes at the instance of the accused under
seizure panchanama (Exh.29). He also identified the accused as well as seized
articles in the court. During cross-examination he stated that panchanama (Exh.
(15) Cri. Appeal No. 229 of 2010
27) was prepared between 7.00 to 7.30 a.m. However, he was unable to tell the
Grampanchayat number of the shop of the accused. Hence, suggestion was
given to him that police personnel wrote the panchanama as per their wish and
he signed thereon, but same was denied by him. He also stated that
panchanama (Exh.21) was prepared on 4th January, but he was unable to state
whether blood stains were dry or wet. It was also suggested to him that he was
not present at the time of any panchanama and he signed the panchanamas
only to harass the accused, but same was denied by him. He further stated that
he does not know which clothes were worn by the accused on the relevant day.
Suggestion was given to him that nothing was seized in his presence, but same
was denied by him. He also stated that one nicker and one frock only were
seized in his presence. He stated that he does not know whether the clothes
were clean or not and that he does not know whether there were any stains on
the clothes of the accused.
19 That takes me to the deposition of PW3 Dr. Aruna Mhaske Patil,
who stated that she was working as Medical Officer in Civil Hospital, Latur at the
relevant time and on 4.1.2009 victim Mohini Hanumant Datal was referred to her
for medical examination by rural police. Accordingly, she examined her at 4.30
a.m. and found that her height was 4 feet 8 inches and weight was 27 kilograms
and her general body built was moderate and number of teeth were 14 and her
secondary sex character was not well developed. She also stated that there was
there was no evidence of external injury on her person, as well as private parts
were not well developed. She further stated that there was clotting of pubic hair
(16) Cri. Appeal No. 229 of 2010
due to semen, as well as presence of hairs on and around the genitals were
absent. Moreover, she also stated that seminal and blood stains were also
absent. Moreover, hymen was intact and there was no tear. As regards
menstruial history, she stated that Mohini had not attained monarrcha. She
further stated that pubic hair, nails and vaginal swab and blood samples were
collected for sending to the Chemical Analyser for examination purpose. She
further stated that victim was examined radiologically for ascertaining her age
and her X-rays were taken. Accordingly, she issued medical certificate (Exh.24)
and according to opinion of Radiologist, victim was between 9 to 14 years of age.
She further stated that she had received letter from police station, Latur (Rural)
for opinion, which is produced at Exh. 25. Accordingly, she stated that she
submitted report in Inward Section of the hospital, but she stated that she does
not know whether police collected the same or not. According to her, if there is
any injury, it does not last for 10 to 12 hours and if though hymen was not
ruptured and there was no tear, yet bleeding is possible due to menstruation.
20 Accordingly, from the medical evidence of Dr. Aruna Mhaske Patil,
it is amply clear that there is no evidence of external injury on the person of the
victim, and there was no clotting of pubic hair due to semen, as well as
presence of semenal and blood stains were absent and hymen was intact and
there was no tear. Moreover, as regards menustrial history, she stated that she
had not attained the monarrcha, as well as she ascertained radiologically her
age which was between 9 to 14 years. She also stated that to decide the
symptoms of rape, medical evidence or scientific evidence is not required.
(17) Cri. Appeal No. 229 of 2010
21 On the background of the afore said evidence adduced/produced
by the prosecution, learned counsel for the appellant canvassed that the
prosecution could not prove the spot panchanama (Exh.21) through the
independent witness, since PW2 Narsing Datal, panch witness turned hostile to
the case of prosecution and did not support it.
22 It is also submitted by learned counsel for the appellant that PW1
Ranjana Datal i.e. the complainant, who is mother of the victim Mohini is neither
the witness to the occurrence of alleged incident of rape upon the victim, nor the
first person to whom the victim Mohini disclosed about the occurrence of the
incident i.e. rape upon her by the accused. Moreover, it is submitted that PW1
Ranjana lodged the complaint on the basis of the information received from PW7
Damayanti Shinde, and consequent disclosure made by victim Mohini after
making inquiry with her, and therefore, it is submitted that the first information
report lodged by the said first informant Ranjana cannot be construed as first
hand information in respect of the alleged offence and same cannot be treated
as first information report in true sense. It is also submitted that there is variance
between the testimony of PW1 complainant Ranjana and the contents of the first
information report, dated 4.1.2009 (Exh.19) lodged by her and as regards raising
the alarm by victim Mohini at the time of alleged rape by the accused, there
appears to be omission in the police statement and improvement in her
testimony that when her daughter tried to shout at that time the accused kept his
hand on her mouth.
(18) Cri. Appeal No. 229 of 2010
23 It is further canvassed by learned counsel for the appellant that
PW1 Ranjana, who is the complainant, is the mother of the victim Mohini and the
alleged incident occurred at about 5.00 to 5.30 p.m. on 3.1.2009 and she
returned home at 6.00 p.m. on the same day i.e. within half an hour and in the
natural course of events, when rape takes place upon the daughter, the mother
would become aggressive and furious and would take immediate steps to book
the culprit, but said reaction does not appear from the testimony of PW1
Ranjana. Here, it is pertinent to note that the accused came to be arrested after
substantial lapse i.e. on 7.1.2009, and her reaction, which is silent and low
profile, is not digestible, which creates suspicion and creates doubt about the
committal of rape upon her daughter, namely victim Mohini.
24 Learned counsel for the appellant further canvassed that the
alleged incident of rape upon the victim Mohini took place at about 5.00 p.m. on
3.1.2009, which was the evening time and it has come in her evidence that in the
shop of the accused, there is wooden counter of 3 feet and one person cannot
go by crossing that counter, and therefore, it is difficult to digest the theory put
forth by the victim that when she went to the shop of the accused to purchase
snacks, the accused pulled her by holding her hand in his shop. Moreover, it has
also come in the evidence that the shop of the accused is situated in his house
itself and 2-3 families were residing in his house and persons used to always
come and go from the main door of the said shop as well as the said shop is
adjacent to the main door and person coming and going through its door was
(19) Cri. Appeal No. 229 of 2010
visible as well as there is house of one Swamibai in front of the shop of the
accused and the said shop is visible from the house of said Swamibai as well as
the house of Swamibai is visible from the said shop. It has also come in the
evidence that there was cement platform under the tree and 50 to 60 persons
always used to sit there and said tree is at the distance of 15 to 20 feet from the
shop and house of Swamibai is situated at a distance of 10 feet from the shop of
the accused. Moreover, it has also come in the evidence that shop of the
accused was having crowded and regular customers. Pertinently, it has come in
the evidence that when the accused allegedly caught hold the hand of the victim,
she shouted. Hence, considering the said evidence, learned counsel for the
appellant canvassed that when the accused allegedly caught hold of hand of the
victim and pulled her, she shouted, and since the said shop is situated in the
crowded locality on the main road, as mentioned herein above, the shouts of the
victim Mohini certainly could have been heard by the nearby persons, but so did
not happen, as well as the shop of the accused was visible from the house of
Swamibai, which was situated at 10 feet distance, but still nobody witnessed the
said incident of pulling the victim by the accused in his shop, as alleged by the
victim, which is not digestible.
25 Further it is canvassed by the learned counsel for he appellant that
even the shop of the accused is situated in his house and 2-3 families were
residing therein, as stated by the victim herself in her cross-examination and
persons used to come and go from the main door of the house and the shop is
adjacent to the said main door, and hence, it is submitted that in this scenario,
(20) Cri. Appeal No. 229 of 2010
occurrence of the incident of rape upon the victim by the accused is next to
impossible.
26 Moreover, it is also submitted that PW3 Dr. Aruna Mhaske Patil
examined the victim Mohini immediately on the next day of the occurrence of the
incident i.e. 4.1.2009 and she has categorically stated in her deposition that there
was no evidence of external injury on her person and there was no clotting of
blood and semen on the pubic hair, as well as presence of semenal and blood
stains on her person. It is also stated that hymen of the victim was intact and
there was no tear.
27 Hence, basing upon the said evidence, learned counsel for the
appellant canvassed that the said evidence is self-speaking and there was no
external injury on the person of the victim and the medical examination of the
victim does not indicate any violence against her and even there was no
presence of semenal and blood stains on her person. Hence, it is argued by
learned Counsel for appellant, that due to absence of medical evidence, there is
nothing to corroborate the bare words of prosecutrix in respect of alleged act of
rape, and accordingly, prosecution has failed to prove the alleged offence, and
consequently, has failed to prove beyond reasonable doubt that the victim was
ravished by the appellant.
28 Moreover, it is submitted that the vaginal swab and blood sample of
the victim was collected and same were sent to the Chemical Analyser for
(21) Cri. Appeal No. 229 of 2010
examination purpose, as well as the frock and nicker of the victim were also
seized and same were sent to the Chemical Analyser for examination purpose.
However, no semen was detected on the said frock and the vaginal swab as per
Chemical Analyser's report, dated 13.7.2009 (Exh.44), as well as no semen was
detected on the vaginal swab and public hair of victim Mohini, as per the report
of the Chemical Analyser, dated 3.7.2009 (Exh.46).
29 In the said context, it is also argued by the learned Counsel for the
appellant, that the incident allegedly took place on 3rd January 2009, and the
appellant was arrested for the said offence on 7-1-2009, and the articles were
allegedly seized on 4-1-2009 and on 9-1-2009, which were sent to Chemical
Analyser's office for examination purpose along with forwarding letter Exhibit 42
on 13-1-2009, but the prosecution has failed to prove due and proper custody of
the seized articles from 4-1-2009 and 9-1-2009 to 13-1-2009, and therefore,
possibility of tampering of the said articles during the said period cannot be ruled
out. It is also canvassed by the learned Counsel for the appellant, that
pertinently, the prosecution has not examined the carrier who allegedly carried
the seized articles to Chemical Analyser's office for examination purpose and
handed over same to the Chemical Analyser's office, and non-examination of
said carrier also hampers the case of the prosecution, and further submitted that
nexus cannot be established between the alleged seized articles and concerned
Chemical Analyser's reports at Exhibits 44 to 48, respectively, and consequently,
appellant cannot be tacked therewith, and further consequently, appellant cannot
be connected with the alleged crime.
(22) Cri. Appeal No. 229 of 2010
30 To substantiate the contention of the appellant, learned Counsel for
the appellant also relied upon the following judicial pronouncements of this
Court:
(a) Judgment of learned Single Judge of this Court, In the case of Suresh
Govinda Nagdeve & another Vs. State of Maharashtra, reported in 2008(1)
Bom.C.R.(Cri.) 847, wherein this Court has observed thus :
"14. It is pertinent to note that it is the case of the
prosecution that the prosecutrix went to the house where
she narrated the incident to her mother and thereafter the
neighbourers came there and the prosecutrix narrated the
incident to the neighbourers including PW-4 Bholaram and
PW-6 Babu. PW-4 Bholaram and PW-6 Babu have stated
that they heard PW-1 Sangita's weeping and when asked,
she told that the appellants and Durga have spoiled her. It
is the case of PW-3 Sangita that when these neighbourers
came, Sangita narrated the incident to the neighbourers.
The details of what prosecutrix had told to these witnesses
have not been deposed by them.
15. It is a strange case where initially the mother of the
prosecutrix PW-3 Sangita did not accompany her to the
hospital, therefore, she could not be examined in the
morning. The learned trial Judge has and perhaps rightly
criticized the conduct of the I.O. in conducting the
investigation in not making this PW-3 Sangita to accompany
the prosecutrix Sangharsha to the hospital.
31. Suffice it to say that evidence on record though
raises a strong suspicion against the appellant, the same is
(23) Cri. Appeal No. 229 of 2010
not sufficient for convicting the appellants. It cannot be
forgotten that the suspicion howsoever strong cannot take
place of proof and no judicial decision can rest on mere
suspicion. The prosecution story 'may be true' and 'must be
true' there is inevitably a long distance to travel and the
whole of this distance must be covered by legal reliable and
unimpeachable evidence. It is also necessary to bear in
mind that, no Judge can take any fact as proved unless
there is a legal proof. The moral conviction cannot be a
legal conviction unless it is supported by unimpeachable
and legally admissible evidence on record.
32. In my opinion, therefore, it is not possible to say that
the view taken by the learned trial Judge is the only view
that can be taken on the basis of the evidence led by the
prosecution. The other view is equally possible. In these
circumstances, it cannot be said that the prosecution has
established the case against the appellants beyond
reasonable doubts. As such the appeal needs to be
allowed."
(b) Judgment of learned Single Judge of this Court, in the case of
Mohammed Farooq Abdul Rauf Vs. The State of Maharashtra, reported in
2009(3) Bom.C.R.(Cri.) 562, wherein this Court has observed thus :
"14. The evidence led in this case do not inspire full
confidence to believe it as natural or truthful. The evidence
referred above created doubt about genuineness of the
version of the prosecutrix and her mother - Baby (P.W.5)
whose evidence was also of hearsay nature. The
prosecutrix had admittedly attended the School on the day
of incident and, therefore, trial Court ought to have
considered the conspectus of the evidence creating
reasonable doubts about the genuineness of accusation
(24) Cri. Appeal No. 229 of 2010
against appellant. The Public Prosecutor concerned did not
re-examine the prosecutrix or her mother regarding the
admission in cross-examination that prosecutrix attended
the School on the day of the incident. The admission gives
rise to a serious doubt as to whether the incident of rape
really happened on that day, at noon time, if victim girl had
admittedly attended her School for the day.
15. It is common knowledge as well as normal rule that
uncorroborated testimony of prosecutrix is accepted to nail
a rapist, but the Court cannot shut its eye on probability of
false, motivated accusation due to dispute between the
complainant's family members and the appellant prior to the
alleged incident. A doubt therefore do not arise in the facts
and circumstances as to whether prosecutrix was
persuaded by her mother, father etc., close relative like a
gullible or obedient daughter to make false charge of rape
against appellant for to avenge closing of a disputed right of
way of appellant through the field of the appellant to the
temple of deity "Marimal" situated in the field of the
appellant. The evidence of prosecutrix and her mother
when read as a whole, is intermingled with doubts,
discrepancies, shortcomings, and does not inspire full
confidence. The evidence in its totality does not warrant a
safe finding of guilt.
16. This Court in (Suresh Govindra Nagdive and another
Vs. State of Maharashtra) 1, reported in 2008(1) Bom.C.R.
(Cri.) 847 (N.B.) : 2008 DGLS (Cri.) soft 2032 : 2008 Cri.L.J.
2943 (Bombay High Court) observed in para 12 "It is
necessary to bear in mind that although no corroboration to
the evidence of the prosecutrix is necessary, still it has to be
reliable for basing conviction. If there is any doubt about its
reliability and trustworthiness, such evidence cannot be
treated as a basis for conviction of the accused."
(25) Cri. Appeal No. 229 of 2010
31 Accordingly, learned Counsel for the appellant submitted that the
evidence on record is not reliable and trustworthy to base the conviction against
the appellant and the logical culmination of the facts and law entails the benefit
of doubt to the appellant, and further submitted that the appellant deserves for
the benefit of doubt, and hence, Criminal Appeal be allowed by setting aside the
conviction and sentence inflicted upon the appellant.
32 Besides, learned Counsel for the appellant invited my attention to
the fact that the complainant, namely, Ranjana Datal i.e. mother of the victim
Mohini, has filed her affidavit which is marked as document "X-3" for
identification purpose, as well as victim Mohini Datal has also filed affidavit which
is marked as document "X-2" for identification purpose, as well father of the
victim, namely, Hanmant Datal has also filed affidavit which is marked as
document "X-1" for identification pupose, and the contents of the said affidavits
categorically make clear that Mohini i.e. prosecutrix was not raped at all by the
appellant and the complaint came to be filed against the appellant out of
misunderstanding and political pressure, as well as, it is also surfaced through
the said affidavits that the appellant is cousin brother of victim Mohini, and there
are cordial relations between the parties and they desire to settle the matter, and
hence, learned Counsel for the appellant further urged that the said affidavits be
taken into consideration and present appeal be allowed.
33 Mr. S.G. Nandedkar, learned Additional Public Prosecutor for the
respondent / State, countered the said arguments and opposed the present
(26) Cri. Appeal No. 229 of 2010
appeal vehemently, and submitted that the prosecution has examined as many
as eight witnesses to substantiate the charges levelled against the appellant and
the evidence of the victim Mohini i.e. PW 5 is specific and categorical which
involves the appellant into the crime. Learned APP also pointed out that the PW
5 prosecutrix Mohini has narrated occurrence of the incident of rape with minor
details and her testimony has not been demolished in the cross examination. In
fact, it is pointed out by the learned APP, that it has categorically come in the
cross examination of the prosecutrix that the accused inserted his penis and
moved for 2 - 3 times which clarifies the position that the appellant had
committed rape upon the victim Mohini and the said very contents in the cross
examination of the prosecutrix shatters the case of the appellant. Learned APP
further submitted that there is no necessity of any corroboration to the solitary
testimony of prosecutrix since it is reliable and trustworthy and conviction against
the appellant can be safely based upon her version.
34 Besides, as regards seized articles and Chemical Analyser's
reports, learned APP pointed out that the nicker of the appellant was sent to
Chemical Analyser's office for examination purpose at Exhibit "H" which was
stained with blood of Group "B", which is the blood group of the prosecutrix as
per Chemical Analyser's report Exhibit 46, as well as, blood group of appellant
as per Chemical Analyser's report Exhibit 47, which leads to the position that the
said nicker bore blood either of victim or of appellant, but the appellant has not
given any explanation therefor.
(27) Cri. Appeal No. 229 of 2010
35 Moreover, it is asserted by the learned APP that the testimony of
P.W.6 Pradip Patil, to whom the prosecutrix informed firstly that she was ravished
by the appellant, as well as, deposition of P.W.7 Damayanti Shinde, to whom the
victim narrated the incident of rape committed by the appellant upon her, have
not been shaken in the cross examination and the said testimonies are relevant
and material since they are the testimonies of the witnesses after occurrence of
the incident of rape, and the said testimonies connect the appellant with the
crime.
36 Besides, as regards the affidavits filed by the prosecutrix Mohini,
her mother complainant Ranjana, and her father Hanmant, learned APP
submitted that the said affidavits are afterthought, concocted and have been filed
with ulterior motive, and hence, such affidavits filed by the witnesses / persons
after conviction imposed upon the appellant by the competent court, cannot be
relied upon and same need not be taken into consideration. Accordingly,
learned APP supported the impugned judgment and submitted that the present
Appeal bears no substance and the same is devoid of any merits, and hence,
urged that the same be dismissed.
37 I have perused the oral, documentary, as well as, medical evidence
adduced / produced by the prosecution, as well as, perused the impugned
judgment dated 11-6-2010, and considered the submissions advanced by the
learned Counsel for the parties, anxiously, as well as, perused the judicial
pronouncements relied upon by the learned Counsel for the appellant, carefully,
(28) Cri. Appeal No. 229 of 2010
and at the outset, it is necessary to borne in mind that there is solitary testimony
of the prosecutrix Mohini, on record, which narrates occurrence of the alleged
incident of rape, and there is no other oral evidence on record in that respect.
Moreover, P.W.1 Ranjana Datal i.e. complainant, who is mother of the victim
Mohini, is neither witness to the alleged incident of rape upon victim nor the first
person to whom victim Mohini disclosed about occurrence of the incident i.e.
rape upon her by the accused. It is also material to note that P.W.1 Ranjana
lodged the complaint on the basis of the information received from P.W.7
Damayanti Shinde, and consequent disclosure made by the victim Mohini after
enquiry with her, and apparently, there is substance in the submission made by
the learned Counsel for the appellant, that the first information report lodged by
the first informant Ranjana Datal cannot be construed as first hand information in
respect of the alleged offence and the same cannot be treated as first
information report in true sense. Moreover, it is also significant to note that there
is variance between the testimony of P.W.1 complainant Ranjana and the
contents of the first information report dated 4-1-2009 (Exhibit 19) lodged by her,
and as regards raising the alarm by victim Mohini at the time of alleged rape by
the accused, since there is omission in Police statement and improvement in her
testimony in that respect, that when her daughter tried to shout at that time the
accused kept his hand on her mouth.
38 Moreover, there is also substance in the submission advanced by
the learned Counsel for the appellant, that when P.W.1 Ranjana returned at
home at about 6.00 p.m. on 3-1-2009 i.e. within half an hour from the alleged
(29) Cri. Appeal No. 229 of 2010
incident of rape upon her daughter, in the natural course of events, she would
become furious and aggressive and would take immediate steps to book the
culprit, but her reaction, from her testimony, appears to be silent and of low
profile which certainly creates doubt about the committal of rape upon her
daughter, namely, Mohini, by the accused - appellant.
39 Moreover, even the possibility of occurrence of incident of rape
upon prosecutrix Mohini, by the accused in his shop, as alleged by her, appears
to be remote since the alleged incident of rape upon the victim Mohini took place
at about 5.00 p.m. on 3-1-2009 i.e. evening time, as it has come in her evidence
that the shop of the accused is situated in his house itself and 2 - 3 families were
residing in his house and persons used to always come and go from the main
door of the said shop, as well as, the said shop is adjacent to the main door and
person coming and going through its door was visible as well as there is house
of one Swamibai in front of shop of the accused and the said shop is visible from
the house of said Swamibai as well as the house of Swamibai is visible from the
said shop, and also it has come in her evidence that there was cement platform
under the tree and about 50 - 60 persons always used to sit there and the said
tree is at the distance of 15 to 20 feet from the shop of the accused, as well as, it
has come in evidence that the shop of the accused used to be crowded by
regular customers, and since the prosecutrix in her deposition stated that the
accused allegedly held hand of the victim and pulled her, she shouted, and since
the said shop is situated in the crowded locality o the main road, shouts of the
victim Mohini certainly could have been heard by the nearby persons, but so did
(30) Cri. Appeal No. 229 of 2010
not happen, and since the shop of the accused was visible from the house of
Swamibai, which was situated at about 10 feet distance, but nobody witnessed
the said incident of pulling the victim by the accused in his shop, as alleged by
her.
40 Moreover, P.W.5 prosecutrix Mohini has stated in her deposition
that she had gone to the shop of the accused for purchasing snacks, but she has
stated in her cross examination that her house is at one corner and shop of the
accused is at another corner, and further pertinently stated that shops of one
Kantappa Belure and Bhimrao Datal are nearby to her house. Hence, in the
natural course of events, if the victim Mohini desired to purchase snacks, she
would have gone to nearby shops of Kantappa Belure and Bhimrao Datal
therefor and not to the shop of the accused which was situated at the another
corner, and therefore, visit of the victim Mohini to the shop of the accused, to
purchase snacks on the date of the incident also appears to be doubtful.
Moreover, P.W.5 prosecutrix Mohini has stated in her deposition that when she
had gone to the shop of the accused to purchase snacks, one Shriram was
present there and accused sent him out of the shop. The said very aspect of
sending Shriram out of the shop amounted to omission in her Police statement
and improvement in her testimony, and hence, the prosecution could not negate
the presence of Shriram in the shop of the accused, and hence, possibility of
commital of rape by the accused upon victim Mohini in his shop, in the presence
of said Shriram, is not digestible.
(31) Cri. Appeal No. 229 of 2010
41 As regards the medical evidence, P.W.3 Dr. Aruna Maske Patil has
specifically stated in her deposition that there was no evidence of external injury
on the person of victim Mohini and there was no clotting of blood and semen on
the pubic hair, as well as, presence of blood stains on her person. It is also
significant to note that hymen of the victim was intact and there was no tear, as
well as, it has come in evidence that there were no external injuries to her private
part. Hence, there is substance in the submission canvassed by the learned
Counsel for the appellant, that the said evidence is self-speaking and the
medical examination of the prosecutrix Mohini does not indicate any violence
against her and even there was no presence of semenal and blood stains on her
person, and accordingly, there is nothing to corroborate the bare words of the
prosecutrix in respect of alleged act of rape. Moreover, sight cannot be lost of the
opinion expressed by P.W. 3 Dr. Aruna Maske Patil, that bleeding is possible due
to menstruation even though hymen was not ruptured and there was no tear, and
hence, same is the explanation for the blood stains on the spot of the incident.
In substance, there is no corroboration of medical evidence to the bare testimony
of the prosecutrix in respect of the alleged act of rape upon her.
42 As regards the evidence of Forensic Science Laboratory reports,
allegedly the incident occurred on 3rd January 2009, and accused came to be
arrested on 7th January 2009, and the clothes of the accused and other articles
were seized on 4-1-2009 and on 9-1-2009 which were sent to Chemical
Analyser's office for examination purpose along with forwarding letter Exhibit 42
on 13-1-2009, and apparently, there is no cogent evidence on record to prove
(32) Cri. Appeal No. 229 of 2010
and establish that the seized articles were in safe and proper custody from
4-1-2009 and 9-1-2009 to 13-1-2009, and further the prosecution has not
examined the carrier who allegedly handed over the seized articles to the
Chemical Analyser's office for examination purpose, and hence, apparently,
there is substance in the submission canvassed by the learned Counsel for the
appellant, that the possibility of tampering of the seized articles during the period
from 4-1-2009 and 9-1-2009 to 13-1-2009 cannot be ruled out, and hence, the
concerned Chemical Analyser's reports out of Exhibits 44 to 48 cannot be tacked
with the said seized articles, and further consequently, said corroborative piece
of evidence of Chemical Analyser's reports cannot be construed as incriminating
evidence against the accused to connect him with alleged crime. Moreover,
admittedly, vaginal swab and blood sample of the victim was collected and the
same were sent to the Chemical Analyser for examination purpose, as well as,
frock and nicker of the victim were seized and same were sent to the Chemical
Analyser for examination purpose, but no semen was detected on the said frock
and the vaginal swab as per Chemical Analyser's report, dated 13-7-2009
(Exhibit 44), as well as no semen was detected on the vaginal swab and pubic
hair of victim Mohini, as per Chemical Analyser's report dated 3-7-2009 (Exhibit
46). In substance, there is no corroboration of the Forensic Science Laboratory
reports to the bare and solitary testimony of the prosecutrix P.W.5 Mohini.
43 This Court in the case of Mohammed Farooq Abdul Rauf Vs. The
State of Maharashtra (supra), has observed in paragraphs 15 and 16 thereof, "It
is common knowledge as well as normal rule that uncorroborated testimony of
(33) Cri. Appeal No. 229 of 2010
prosecutrix is accepted to nail a rapist, but the Court cannot shit its eye on
probability of false, motivated accusation due to dispute between the
complainant's family members and the appellant prior to the alleged incident.
The evidence of prosecutrix and her mother when read as a whole, is
intermingled with doubts, discrepancies, shortcomings, and does not inspire full
confidence. The evidence in its totality does not warrant a safe finding of guilt."
Further, the Court has relied upon the observations of this Court, in the case of
Suresh Govinda Nagadeve & another Vs. The State of Maharashtra (supra), "It is
necessary to bear in mind that although no corroboration to the evidence of the
prosecutrix is necessary, still it has to be reliable for basing conviction. If there is
any doubt about its reliability and trustworthiness, such evidence cannot be
treated as a basis for conviction of the accused."
44 In the instant case, admittedly, there is no corroboration to the
evidence of prosecutrix, but after having scanned the said evidence, as well as,
the medical and Forensic Science Laboratory evidence, it does not appear to be
reliable and trustworthy for basing conviction against the appellant / accused,
since there are discrepancies, deformities and lacunae therein, and further there
is absence of sufficient corroboration of medical evidence, as well as, Forensic
Science evidence, and hence, it is highly dangerous to base the conviction on
the solitary testimony of the prosecutrix which is not reliable and trustworthy, and
hence, I am inclined to accept the submissions advanced by the learned
Counsel for the appellant, and therefore, present Appeal deserves to be allowed.
(34) Cri. Appeal No. 229 of 2010
45 Apart from that, it is material to note that the complainant Ranjana
Datal has filed her affidavit at document "X-3", as well as, victim Mohini has also
filed her affidavit at document "X-2", and also, father of victim, namely, Hanmant
Dnyanoba Datal has filed his affidavit at document "X-1", in the present appeal,
and the contents of the affidavit of complainant Ranjana Datal categorically
disclose that, in fact, the appellant, namely, Arvind s/o. Bhagwan Datal had not
committed rape upon her daughter, namely, Mohini and age of the victim at that
time was 11 years, and even she was not aware about the meaning of rape, and
since her nearby friends informed her that rape was committed upon her, she
narrated about the same to her mother i.e. complainant, as well as, nearby
persons also made uproar about committal of rape upon victim, and hence, the
complainant filed the complaint against the accused in respect of committal of
rape upon her daughter, basing upon narrations of the nearby persons, and also,
due to political pressure. The affidavit also discloses that the accused is cousin
brother of the victim Mohini and she deposed against the accused before the
court due to the pressure of villagers, as well as, political pressure. The said
affidavit further discloses that the victim Mohini is now aged 15 years presently
and she has specifically informed the complainant that the accused has not
committed rape upon her. The contents of the said affidavit also reflect that the
alleged offence was not committed by the accused, as well as, there are cordial
relations between the parties, who desire to settle the matter considering future
of the victim Mohini.
46 Moreover, the affidavit of the victim Mohini also discloses that her
(35) Cri. Appeal No. 229 of 2010
age was about 13 years at the time of alleged incident of rape and even she was
not aware about meaning of rape and accused Arvind has not committed rape
upon her and she has committed bona fide mistake by lodging false complaint
against the accused, and also by giving false deposition against him. The said
affidavit also surfaces that the accused is her cousin brother. It also reflects that
when her mother filed complaint against the accused on 3-1-2009, she was
studying in 6th standard and her age was of 11 years and even she was not
aware about definition of 'rape', as well as meaning of 'rape', and she narrated
before the Police personnel about the same as tutored by her parents. The said
affidavit also states that even she was not aware about the meaning of 'private
part', and she was ignorant about the same and she deposed before the court, in
that respect, due to the pressure of the villagers. The said affidavit further states
that although she was not aware about meaning of 'rape', she has stated about
committal of rape before the Police personnel and due to apprehension of Police
personnel, she was constrained to depose on the same line before the court,
ignorantly. The said affidavit further recites that now her age is of 15 years and
she made efforts to know the meaning of 'rape', and now she knows the
meaning of 'rape', and after introspection, understood that the accused never
committed rape upon her. It is also stated in the said affidavit that there was
pressure of villagers, as well as, political pressure upon her and her family and
she was tutored to depose against the accused.
47 The said affidavit further recites that on 3-1-2009, no rape was
committed upon her by the accused nor she had gone to the shop of the
(36) Cri. Appeal No. 229 of 2010
accused on the said date. The shop of the accused is situated in crowded
locality and Gavchawadi is situated in front of shop of the accused. It is also
stated in the said affidavit, that the accused, who is her brother, is innocent and
she has stated truth in the said affidavit and she has committed mistake due to
ignorance and he has not at all committed rape upon her, and therefore, he
deserves to be acquitted.
48 Moreover, affidavit of the father of the victim, namely, Hanmant
Datal, is also in consonance with the aforesaid both the affidavits of the
complainant as well as victim, and the contents of the said affidavits, very
particularly, affidavit of the complainant Ranjana and affidavit of the victim
Mohini, absolve the appellant from the alleged guilt and the contents of the said
affidavits are self-explicit and self-speaking and same cannot be overlooked and
cannot be ignored.
49 Having comprehensive view of the matter, it is amply clear that the
evidence on record is not sufficient to base the conviction against the appellant
and the appellant deserves for the benefit of doubt. Moreover, after re-
appreciating the evidence on record, it is not possible to say that the view taken
by the learned trial Judge is only view that can be taken on the basis of the
evidence led by the prosecution. The other view is equally possible. In these
circumstances, it cannot be said that the prosecution has established the
charges levelled against the appellant beyond reasonable doubt, and hence,
present Appeal deserves to be allowed, and conviction and sentence imposed
(37) Cri. Appeal No. 229 of 2010
upon the appellant requires to be quashed and set aside.
50 In the result, present appeal is allowed and conviction and
sentence imposed upon the appellant, by way of judgment and order, dated
11.6.2010, rendered by learned Additional Sessions Judge, Latur, in Sessions
Case No. 74 of 2009, for the offences punishable under Sections 376 and 342 of
the Indian Penal Code, stands quashed and set aside. The appellant is in jail
and he be released forthwith, if not required in any other case. Fine amount, if
any paid by the appellant, be refunded to him. Appeal is disposed of
accordingly.
(SHRIHARI P. DAVARE),
JUDGE.
bgp/kapp229
