Bombay High Court
Digambar vs The State Of Maharashtra on 25 October, 2012
Bench: T.V. Nalawade
1 CRI. APPEAL 400/2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 400/2012
Digambar s/o Pandurang Kadu,
Age : 40 years, Occu. Nil,
R/o Dukare Vasti, Satral
Tq. Rahuri, Dist. Ahmednagar.
...Appellant.
(Orig. Accused)
Versus
The State of Maharashtra
ig ...Respondent.
.....
Shri S.J. Salgare, Advocate for the appellant (Appointed).
Shri N.R. Shaikh, A.P.P. for State.
.....
CORAM : T.V. NALAWADE, J.
DATED : 25th October, 2012
JUDGMENT:-
1. The appeal is filed against the judgment and order of
Sessions Case No. 45/2011 which was pending in the Court of
Additional Sessions Judge, Ahmednagar. The trial Court has
convicted and sentenced the appellant for offences punishable
under section 376 and 506 of the Indian Penal Code. Both the
sides are heard. Original record is perused.
2. In short, the facts leading to the institution of the
appeal can be stated as follows.
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The complainant Dadasaheb Dukare is the father of the
prosecutrix. The accused and complainant are residents of village
Satral Tq. Rahuri District Ahmednagar. The house of the accused
is situated at the distance of around 250 feet from the house of
the complainant. At the relevant time, the accused was aged
about 40 years and the prosecutrix was aged about 15 years.
The prosecutrix is described as simpleton, little bit mentally
retarded but she was studying in 6th standard in a School from
Satral.
3. The incident took place on 29/11/2010. The prosecutrix left
for the School at about 10.30 a.m.. She returned to home at 5.00
p.m. and then she informed to the complainant and her mother
that at 3.00 p.m. which was recess time of the School, the
accused had come to her School and he had collected her from
the School after taking permission of the Headmistress of the
School. She informed that the accused had informed the School
that the grand mother of the prosecutrix was sick. The prosecutrix
further disclosed that the accused then took her on his motor
cycle to the field of one Chormunge and then in sugar cane crop,
he committed rape on her. She disclosed that the accused had
given threat of life to her and he had warned not to disclose the
incident to anybody.
3 CRI. APPEAL 400/2012
4. A cousin brother of complainant had died recently and
so the complainant was observing religious restraint (Sutak).
Due to this circumstance, the complainant did not approach
police immediately. On 30/11/2010, Yogesh Chormunge and Arun
Dukare of the village of complainant approached him and
informed that they had seen the accused taking the prosecutrix to
the sugar cane crop of Chormunge. They also informed that
when they had made inquiry with the accused, the accused had
avoided to give reply to them. Even after receiving such
information, the complainant did not approach police due to the
religious restraint which he was observing. He went to the Police
station and gave report on 03/12/2010. Crime No. 362/2010 came
to be registered in Rahuri Police Station for aforesaid offences.
5. On 03/12/2010 the Police referred prosecutrix for
medical examination to rural hospital, Rahuri. The Doctor found
that there was recent tear of hymen. On the same day, the
complainant produced clothes of prosecutrix which she had on her
person on the day of the incident. The complainant showed spot
of the offence to the police. The panchanama of this incident
came to be prepared. During the course of investigation,
statements of some witnesses came to be recorded. The Police
collected record from the School with regard to the age of
prosecutrix and with regard to the incident of collecting prosecutrix
4 CRI. APPEAL 400/2012
by accused from the School on 29/11/2010. Age of the prosecutrix
was determined on the basis of radiological examination. The
Doctor gave opinion that the age of prosecutrix was between 14
and 16 years. The accused came to be arrested and he came to
be medically examined. The police forwarded the clothes of the
prosecutrix, the underwear of the accused etc. to Chemical
Analyser's office along with the blood samples. After completion
of investigation, charge sheet came to be filed for aforesaid
offences.
6. In the trial Court, the prosecution has examined the
complainant, the prosecutrix, two Doctors who had examined the
prosecutrix, two staff members of the School, panch witness and
two police officers. The trial Court has believed all these
witnesses. The accused took defence of total denial. He
contended that due to some property dispute, he is falsely
implicated in the case. Various points on the basis of facts and
also law, were raised in this proceeding.
7. Though it is the case of the prosecution that the
prosecutrix is little bit mentally retarded, there is no remark about
demeanour of the prosecutrix made in the record of deposition by
the Court. In the charge sheet, the name of prosecutrix was not
given as witness. Even statement under section 161 of the Code
5 CRI. APPEAL 400/2012
of Criminal Procedure was not recorded by the Investigating
Agency. Such statement was never recorded. The State filed
application under section 311 of the Code of Criminal Procedure
and sought permission of the Court to examine the prosecutrix.
By allowing the application, the Court permitted the State to
examine the prosecutrix as a witness.
8. Doctor Unde (P.W. 9) has given evidence that he
examined prosecutrix on 10/12/2010 when she was brought to his
hospital by the complainant. He has deposed that on examination
he found that the prosecutrix is suffering from mild to moderate
mental retardation. He has deposed that such patient can
develop language, communication and social skills with some
occupational skills. He has deposed that the prosecutrix can be
described as simpleton person. However, the evidence of Doctor
shows that if any incident happens to a person like prosecutrix,
such person can narrate and communicate the incident. In the
cross examination, the Doctor has specifically admitted that the
prosecutrix was communicating with him very well. The certificate
prepared by this Doctor is at Exh. 45.
9. Inspite of the aforesaid evidence of Dr. Unde, the
statement of the prosecutrix was never recorded by the
Investigating Officer. It can be said that initially the prosecution
6 CRI. APPEAL 400/2012
wanted to give evidence of only complainant on the basis of the
alleged disclosure made by the prosecutrix the complainant. In
the present case, the complaint itself came to be given to Police
late by four days. The deposition of the prosecutrix came to be
recorded on 11/01/2012 i.e. after more than one year of the
incident. The prosecutrix has given her age as 15 years and
medical evidence shows that her age was between 14 and 16
years. No birth certificate is produced. These circumstances
need to be kept in mind at the time of appreciation of the evidence
of the prosecutrix.
10. The prosecutrix (P.W.4) has given evidence that she
knew the accused from prior to date of the incident, as the house
of the accused is adjacent to her house. She has deposed that
she used to call accused as Mama (Maternal uncle). She has
deposed that on that day, the accused came to her School at
about 3.00 p.m. and collected her from School by informing that
her grand mother was sick. She has deposed that the accused
then took her on motor cycle with him to the field of Chormunge.
She has deposed that in the field, the accused removed her
clothes and committed rape on her. She has deposed that after
this, the accused took her to the road and left her on the road.
She has deposed that when she reached home, she narrated the
incident to her parents. She has given evidence that her medical
7 CRI. APPEAL 400/2012
examination was done subsequently. Her evidence does not show
that any person from village had seen her in the company of the
accused after leaving of the School by her.
11. In the cross examination, the prosecutrix was
specifically asked as to what Balatkar (Marathi word for rape)
means. She was asked to state what exactly accused had done
with her. She could not describe the incident and she simply said
that "she can not state". The other evidence in the cross
examination of the prosecutrix, which amounts to admissions
given to the suggestions, is quoted as under.
(i) True to say that before coming to Court, my father tutored
me as to what to speak in Court.
(ii) For the first time I am stating in the Court that Digambar
committed rape on me.
(iii) True to say that on the say of my parents and relatives, I
am stating that rape is committed on me.
(iv) On the say of my parents, I am deposing in the Court today.
12. The inability of the prosecutrix to describe incident
and the aforesaid admissions given by the prosecutrix can not be
ignored in view of peculiar circumstances of this case. They have
created reasonable doubt about entire story of the prosecution.
8 CRI. APPEAL 400/2012
13. The prosecutrix (P.W. 4) has deposed that her School
is situated at walking distance of ten minutes from her residential
place. The evidence is given by prosecution witnesses that at
about 3.00 p.m. the accused collected prosecutrix from her
School. Dadasaheb (P.W. 1) the father of the prosecutrix has
given evidence that the prosecutrix returned to home at 5.00 p.m..
It is already mentioned that the prosecutrix has not given evidence
that anybody had seen her in the company of accused near field
of Chormunge or on the road on that day. Though the
complainant, father of prosecutrix has given evidence that two
persons like Yogesh Chormunge and Arun Dukare gave him
information on the next day that they had seen the prosecutrix
with the accused, these two witnesses are not examined. All
these circumstances are very important as the statement of the
prosecutrix was never recorded under section 161 of the Code of
Criminal Procedure by Police.
14. The complainant (P.W. 1) has given evidence that on
that day the prosecutrix disclosed the incident to him after 5.00
p.m. when he made inquiry with her. Some additional evidence is
given by complainant by saying that prosecutrix had informed that
the rape was going on for ½ hour. The complainant has given
evidence that as he was observing religious restraint (Sutak) due
to death of his cousin brother, he did not go to police on
9 CRI. APPEAL 400/2012
29/11/2010. No specific evidence is given about custom in the
community or his family about following of religious restraint and
there is no independent witness on this circumstance. As the
complaint was ultimately given on third day of the next month, it
was necessary for the complainant to say as to for how many
days such religious restraint is observed in his family or
community. The complainant has given evidence that on the next
day Yogesh Chormunge and Arun Dukre came to him and gave
information against accused. On that day also, the complainant
did not approach police. The report at Exh. 22 is proved in the
evidence of complainant and it is consistent on the point of
alleged disclosure made by the prosecutrix to the complainant.
15. The evidence of Dadasaheb (P.W. 1) does not show
that his wife examined prosecutrix physically to ascertain the truth
on 29/11/2010. No evidence is given that the clothes of the
prosecutrix were examined by the wife of Dadasaheb (P.W. 1).
He has admitted that he did not tell about incident to any villager.
He has given evidence that he was visiting village after the
incident. He has given evidence that the prosecutrix kept
attending School after this day and she attended School on
30/11/2010 also. Such evidence is given by prosecutrix also.
Thus, conduct of the complainant (P.W. 1) and prosecutrix (P.W.
No. 4) was not normal. The conduct shows that they were
10 CRI. APPEAL 400/2012
following their daily routines and they were not observing any
religious restraint. As the delay of four days was caused in giving
report to police, the said conduct can not be ignored. This Court
has no hesitation to hold that delay is not sufficiently explained.
The aforesaid circumstances are ignored by the trial Court. In a
case of rape, the delay caused in giving report is serious
circumstance and it needs to be given due consideration. The
evidence which can be collected immediately after the incident
gets destroyed if there is such delay. This point is being
considered at other place also by this Court. This point is
important as immediate examination of the accused can also
prove innocence.
16. It is not the case of the complainant Dadasaheb (P.W.
No. 1) that he visited spot of offence to ascertain the truth. No
evidence is given by prosecutrix that she showed spot to anybody.
The evidence of Shivaji Dukare(P.W. 2), panch witness on the
spot panchanama shows that complainant showed spot. The
panchanama is at Exh. 24. After considering document at Exh.
No. 24, it can be said that there was nothing incriminating on the
spot. However, the witness has tried to say that the place shown
by Dadasaheb (P.W. 1) was appearing as "damaged place". From
the contents of Exh. 24, it can not be said that place was cleared
for committing rape.
11 CRI. APPEAL 400/2012
17. The prosecution has given evidence that clothes of
the prosecutrix and the accused were seized and they were sent
to Chemical Analyser's office. Chemical Analyser's report at Exh.
No. 58 shows that neither blood nor semen were detected on the
clothes of both these persons.
18. The Head Mistress of School, Jayshree Nanaware
(P.W. 5) and supervisor of the School Shri Kolapkar (P.W. 6) have
given evidence that on that day at 3.00 p.m. the accused collected
prosecutrix from School by saying that her grand mother was sick.
The accused was known to the School. School register was
brought by the witnesses to the Court and copy of entry about
incident of collection of prosecutrix is produced on the record at
Exh. 32. To this witness, suggestions are given to show that the
entry of the name of the accused was made subsequently and
entry does not bear signature of the accused. It is true that as
against most of the entries there are signatures of the persons
who had collected ward. As against this entry, there is signature
of the prosecutrix. However, in the cross examination of the
prosecutrix, suggestion was given by defence counsel that on that
day the prosecutrix is collected by accused from School but she
was reached to her locality immediately. Even if this circumstance
is held to be proved, it was necessary for the prosecution to prove
that offence of rape was committed on that day. Only on the
12 CRI. APPEAL 400/2012
basis of such circumstance, it can not be inferred that on
29/11/2010 the offence was committed.
19. Dr. Vairagar (P.W. 8), Medical Officer of Rural
hospital examined the prosecutrix on 03/12/2010. He has given
evidence that he found tear of hymen and the tear was posteriorly
at 6.00 O' clock position. The Doctor has given opinion on the
basis of this tear that "there was definite evidence of recent sexual
intercourse". Only due to the word "recent" used in his opinion it
needs to be presumed that Doctor wanted to say that rupture was
recent. No specific evidence is given about the age of this
rupture, tear. As the word "recent" is used, there is probability
that Doctor wanted to say that it was within 24 hours. Thus,
probability is created by medical evidence that tear to the hymen
was caused within 24 hours prior to the examination. This
medical evidence is not consistent with the aforesaid direct
evidence. This circumstance also needs to be considered
seriously as the delay of four days was caused in giving report to
the Police.
20. In view of definition of rape given in Section 375 of
the Indian Penal Code, it can be said that even slight penetration
which does not result in an injury to hymen is sufficient to prove
offence of rape. The victim of rape case is not accomplice and so
13 CRI. APPEAL 400/2012
in rape case insistence of corroboration is generally not
compulsory in the eye of law. On this point, the case reported as
2004 Cri.L.J. 1399 (Aman Kumar and another Vs. State of
Haryana) Supreme Court was cited. The Apex Court has
discussed definition of rape in this case and also the necessity of
corroboration. In the present case, there are following
circumstances due to which this Court holds that the corroboration
was necessary to the version of prosecutrix. The circumstances
are like (i) delay of four days caused in giving F.I.R.. (ii)
Subsequent conduct of prosecutrix and complainant of following
daily routine, (iii) the non recording of the statement of prosecutrix
by Investigating Officer under section 161 of the Code of Criminal
Procedure, (iv) the admission given by the prosecutrix that she is
tutored by parents and relatives to say that rape is committed
against her, (v) inconsistency in medical evidence and direct
evidence (vi) absence of other circumstantial evidence which
could have become available in this case, and (vii) inability of
prosecutrix to describe the incident. So, in view of facts and
circumstances of this case, this Court holds that corroboration
was necessary.
21. Complainant Dadasaheb (P.W. 1) has admitted that the
accused is a social worker. Head Mistress of the School of the
prosecutrix (P.W. 5) has given evidence that the accused had
14 CRI. APPEAL 400/2012
donated 11 School uniforms of girls to the School. The prosecutrix
(P.W.4) has admitted that brother of the accused had sold their land
to the relatives of the complainant but the accused was not ready to
sell his land. She has admitted that the accused has dispute with
Chormunge. The incident allegedly took place in the field of
Chormunge and name of one more Chormunge, Yogesh Chormunge
is given who had allegedly supplied some information to the father of
prosecutrix. These circumstances show that there were reasons for
false implication of the accused and such probability cannot be ruled
out.
22. In rape case, prompt F.I.R. is expected as many kinds of
medical evidence can become available when there is prompt F.I.R..
In the case like present one, following kinds of evidence can certainly
be collected, if the F.I.R. is prompt.
(i) Marks of violence, resistance on the persons of accused or
prosecutrix.
(ii) Marks of violence at the genitals.
(iii) Presence of blood or semen stains on the clothes of
prosecutrix or accused.
(iv) Presence of spermatozoa in or near vagina.
(v) On examination of accused, the presence of smegma as
negativing rape.
(vi) Signs of loss of virginity.
15 CRI. APPEAL 400/2012
This Court has made sufficient discussion about the circumstance of
rupture of hymen. For collecting other aforesaid kinds of evidence,
prompt F.I.R. was necessary in this case. Due to absence of such
corroboration and peculiar facts and circumstances of this case, it is
not possible to believe both the prosecutrix and her father. This Court
holds that benefit of doubt needs to be given to the accused.
23.
One more important point is involved in this case. The
evidence of the prosecutrix and the Doctor shows that it was possible
for investigating officer to record statement of prosecutrix under
section 161 of the code of Criminal Procedure. But he avoided to do
so. When there was no reason for not recording the statement of
prosecutrix, to create record of her version, some explanation was
expected from prosecution. Such explanation is not available. On
this point, for the appellant reliance was placed on a case reported as
1984 (2) Crimes (X) page 698 Allahabad High Court (Bhola and
others Vs. State). In this case, Allahabad High Court has discussed
one Supreme Court case and one case of Privy council and they are
AIR 1954 S.C. Page 700 (Purushottam Jethanand Vs State of
Kutch) and AIR 1947 Privy Council 67 (Kottaya Vs. Emperor).
Allahabad High Court has observed that it needs to be presumed that
prejudice is caused to the defence when the statement of material
16 CRI. APPEAL 400/2012
witness is not recorded by Investigating Officer u/s 161 of the Code of
Criminal Procedure.
24. Aforesaid point needs to be considered from different
angles. Section 173(2) (c) of Cr.P.C. shows that in the charge sheet
the names of persons who appeared to be acquainted in
circumstances of the case need to be mentioned. These persons can
be examined as prosecution witnesses. Section 173(5) (b) of Cr.P.C.
shows that along with report / charge sheet the Investigating Officer
must produce the statement recorded u/s 161 of Cr.P.C. of all
persons whom prosecution proposes to examine as its witnesses.
The procedure of inquiry laid in Section 202 of Cr.P.C. in a case
which is triable by Sessions Court also shows that even in a private
complaint Judicial Magistrate (First Class) is required to take care and
see that all the witnesses of the complainant are examined on oath
before him during such inquiry. It can be said that these provisions of
Cr.P.C. are fair and proper provisions to have fair play in Criminal
justice system.
25. In the case reported as AIR 1974 Supreme Court page
463 (Raghunandan Vs. State of U.P.) The Apex Court has held that
the bar of Section 162 of Cr.P.C. is applicable to the parties but it
does not impair special powers of Court u/s 165 of Evidence Act.
17 CRI. APPEAL 400/2012
Thus the record of police statements can help the Court to ascertain
the truth and also the reliability of the witnesses.
26. Aforesaid provisions show that the object of the
provisions is not only to give accused fullest information in
possession of the prosecution but also make record available to Court
for ascertaining truth. In Section 162 of the Code of Criminal
Procedure shows that on one hand protection is given to the accused
from the use of such record as evidence and on the other hand right
is given to the accused to use this material during cross examination
of prosecution witnesses. By contradicting the witness in relation to
previous statement, the defence can show that the witness was either
tutored or witness is deposing falsely.
27. When statements under section 161 of Cr.P.C. are
recorded after inordinate delay and the delay is not explained, the
delay can create suspicion and lead to inference that version of the
witness was after thought or the witness was tutored. Thus, on one
hand such record helps the prosecution to preserve the versions of
the witnesses and on the other, if the record is not created
immediately, inference against the prosecution witnesses can be
drawn.
18 CRI. APPEAL 400/2012
28. If the right given to the defence of the cross examination
is considered, it can be said that when there is no such previous
version available to the defence, the defence gets hampered. In the
case reported as AIR 1976 Supreme Court page 560 (Badri Vs.
State), the Apex Court has laid down that if the defence has no
opportunity to cross examine witness on material point with reference
to his earlier statement made to Police, his evidence can not be used
to corroborate the other witnesses. Thus, in one way the absence of
such record affects case of the prosecution also.
29. In the case reported as Sunita Devi Vs. State of Bihar
and another reported in (2005) 1 Supreme Court Cases 608 at para
27, Apex Court has laid down that non-supply of such material does
not necessarily cause prejudice to the accused and the Court has to
give definite finding about the prejudice or otherwise. On this point
reliance was placed by learned A.P.P. on a case reported in 2003
Cri.L.J. 456 (Alamgir Vs. State). In this case, the Apex Court has
observed that in view of Section 3 of the Evidence Act, the evidence
which is otherwise credit worthy, can not be discarded merely
because it was not available in statement of witness u/s 161 of
Cr.P.C.. In the case reported as AIR 1945 Nagpur page 1 Baliram
Tikaram Marathe and others Vs. Emperor the High Court has
observed that in serious case, it is, as a rule, desirable to take down
19 CRI. APPEAL 400/2012
the whole statement of every person which gives more information. It
is further observed that the accused has right to get copy of it.
30. In view of the aforesaid position of law and the facts and
circumstances of this case, this Court holds that prejudice has been
caused to the defence due to absence of the statement of the
prosecutrix u/s 161 of Cr.P.C.. This is again additional circumstance
against the State. For all these reasons, this Court holds that the
judgment and order passed by Sessions Court needs to be set aside
to give benefit of doubt to the appellant / accused. In the result,
following order.
ORDER
1. Appeal is allowed. The judgment and order of
Sessions Case No. 45/2011 which was pending in the
Court of Additional Sessions Judge, Ahmednagar,
convicting and sentencing the accused-appellant for
offences punishable under Sections 376 and 506 of the
Indian Penal Code is hereby set aside. The accused
stands acquitted of both the offences.
2. The fine amount, if any, deposited by the
accused is to be refunded to him.
3. If accused-appellant is not required in any other
case, he is to be released forthwith from the jail.
20 CRI. APPEAL 400/2012
4. Fees of the advocate appointed for the accused-
appellant is quantified at Rs.4000/- [Rs. Four thousand
only].
( T.V. NALAWADE J. )
ts k/
