The State Of Maharashtra vs Rangnath Dagadu Shinde
2014 Latest Caselaw 162 Bom

                                                     91.1996 Cri.Appeal.odt
                                   1




                                                                     
                                          
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                             
               CRIMINAL APPEAL NO. 91 OF 1996




                                            
     The State of Maharashtra                       .. APPELLANT




                           
               VERSUS
               
     Rangnath Dagadu Shinde
     Age 40, r/o. Parewadi,
     Tq. & Dist. Ahmednagar                         .. RESPONDENT
              
                                                      [Orig. Accused]

                                   ...
     Mr. D.V.Tele, APP for Petitioner - State
     Mr. P.G.Patil, Advocate holding for Mr. R.N.Dhorde, Senior
      


     Counsel for Respondent
                                   ...
   



                            CORAM : S.S. SHINDE &
                                    N.W.SAMBRE, JJ.

RESERVED ON : 17.12.2014 PRONOUNCED ON: 22.12.2014

JUDGMENT [PER S.S.SHINDE, J.]:-

1] This Appeal is filed by the State, challenging

the Judgment and Order of acquittal dated 30.08.1995

passed by the Sessions Judge, Ahmednagar in Sessions

Case No. 177 of 1993, thereby acquitting the accused for

the offences punishable under Section 376 of I.P. Code and

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under Section 3 (i) (xi) and 3 (2) (v) of Scheduled Castes

and Scheduled Tribes [Prevention of Atrocities] Act, 1989.

2] The case of the prosecution, in brief, is as

under:

The complainant prosecutrix PW-2 Yenubai

Shankar Jagtap belongs to Mahar caste, which is a

Scheduled Caste, whereas the accused belongs to Maratha

caste, which is neither a Scheduled Caste nor a Scheduled

Tribe. Yenubai Shankar and her husband PW-5 Shankar

Laxman maintain themselves by begging alms and singing

Bhajans. They go to sing Bhajans on receiving invitations

for the same. The accused is a resident of Parewadi village,

which is situated near Pargaon where Yenubai and her

husband used to reside. At the time of the incident,

Yenubai and her husband were residing at Burudgaon in the

garden land of one person named Kulat. About 1 ½ years

back, on Monday accused had gone to Burudgaon and had

invited PW-2 Yenubai and her husband to sing Bhajans at

his residence at Parewadi on the next day that is on

Tuesday. Yenubai and her husband had accepted that

91.1996 Cri.Appeal.odt

invitation and had gone to the house of the accused at

Parewadi on Tuesday. They were singing Bhajans upto 12

mid-night and had stayed at the house of the accused on

that night. On the following day that is on Wednesday, the

accused had to go to Ahmednagar for fetching fodder by a

tempo and PW-5 had to bring his luggage from Burudgaon

to Pargaon, and so he had also accompanied the accused.

PW-5 Shankar, husband of Yenubai and the accused had

left together for Ahmednagar in the morning of Wednesday

but they had not returned home, that is to Parewadi on that

day. It was on the following day that is on Thursday, the

accused alone returned to his house at Parewadi at 6 p.m.,

and to the query made by PW-2 Yenubai he had replied

that, her husband had gone to his brother's house at

Wakodi and that her husband had given her his

'Pancha' [apparel]. That her husband had given her a

message that, she should attend Bhajans at Mehakari Phata

on Thursday night. Relying upon say of the accused on

Thursday at 8 p.m., Yenubai had left Parewadi for singing

Bhajan along with the accused. Both of them were

proceeding on foot and on the way to Mehakari Phata, they

had reached near a rivulet [Nalla]. The accused had then

caught hold of her right hand near the elbow and she had

91.1996 Cri.Appeal.odt

told him to not to do so. The accused had then said that,

he would rape her and after gagging her mough with his

cap, laying her on the ground the accused had raped her.

The accused had then said that, she should get to his house

with him, and PW-2 Yenubai had accordingly gone to his

house at Parewadi but on reaching near the house, she had

started shouting. Vatsalabai, the wife of the accused had

then woken up, and had asked her as to what had

happened, but without saying anything PW-2 Yenubai had

left, and she had then gone to Pargaon. She reached near

the village Chawdi at Pargaon at about 11 p.m. or 12

midnight, and had then called out her relations including

PW-4 Vishwanath Rambhau and others. PW-2 Yenubai had

then narrated this incident to PW-4 Vishwanath and other

relations who had gathered there, and all of them had then

gone to the house of the accused at Parewadi. They had

brought the accused to the village Chawdi of Pargaon and

had made him to sit there in the Chawdi on that night.

However, at about 5 a.m. the accused under the pretext of

going out for passing urine had fled from that place. PW-2

Yenubai had then gone to Ahmednagar Police Station and

had lodged her complaint Exh.18. She was sent for medical

examination. PW-1 Dr. Sonawane conducted the medical

91.1996 Cri.Appeal.odt

examination but found that, he was unable to give a

definite opinion about the occurrence of rape as Yenubai

Shankar was accustomed to sexual intercourse. Yenubai in

the course of investigation of an offence that came to be

registered on the basis of Exh.18, had taken the Police to

the place of offence where her chappal was lying and where

the beads of her necklace and broken pieces of her bangles

were found scattered. These articles were attached under

a panchnama. At the instance of Yenubai, the police had

also gone to the house of the accused, and had seized the

orange coloured pancha from the house under panchanama

Exh.27. The police had also attached clothes, that is saree

and blouse of Yenubai under panchanama Exh.23. On

12.04.1993, the accused was arrested and his clothes, that

is shirt and Dhoti was attached under panchanama Exh.30.

In the course of investigation, the Muddemal articles were

sent to C.A. and a report of C.A. [Exh.36] was received

showing that, there were 3 stains of human semen of blood

group 'B' on the saree [article No.6] of PW-2 Yenubai. Soon

after the investigation was complete, a charge sheet was

sent to the Court of Sessions.

91.1996 Cri.Appeal.odt

3] A charge at Exh.3 was then framed against the

accused and he has pleaded not guilty to the same.

4] The defence of the accused was that, he has

been falsely implicated by PW-2 Yenubai with the help of

her relations as he was formerly cultivating the land of her

relation PW-3 Uttam and there was a dispute over the

same, and that he is innocent.

5] The learned Additional Public Prosecutor

appearing for the State invited our attention to the

evidence of prosecution witnesses and submits that,

prosecution has led sufficient evidence on record so as to

establish the offence punishable under Section 376 of I.P.

Code, the evidence of prosecutrix is reliable and

corroborated by the version of other prosecution witnesses.

It is submitted that, the statement of the prosecutrix is

truthful, inspires confidence, and therefore, said can form

basis for conviction. It is submitted that, evidence of other

witnesses coupled with C.A. Report has not been properly

considered by the trial Court, therefore, the learned

91.1996 Cri.Appeal.odt

Additional Public Prosecutor submits that, appeal may be

allowed.

6] The learned counsel appearing for the

respondent i.e. original accused submits that, findings

recorded by the trial Court are in consonance with the

evidence brought on record, and therefore, this Court may

not interfere in the acquittal order.

7] The learned counsel appearing for the

respondent further submits that, in view of the evidence of

PW-1 Dr. Popat Sonawane, occurrence of recent intercourse

/ rape not proved. It is further submitted that, no external

injuries suggestive of force, much less rape found on the

prosecutrix. It is further submitted that, C.A. report

although shows semen stains of blood group 'B' found on

saree of prosecutrix, however, prosecution has failed to

prove that, blood group of accused is 'B'. Blood group of

husband PW-5, was also not proved.

8] It is further submitted that, evidence of PW-3

and PW-4 is hearsay evidence. PW-3 and PW-4 admittedly

91.1996 Cri.Appeal.odt

are related witnesses, in view of evidence of PW-2

prosecutrix. It is further submitted that, PW-3 is an

interested witness as having enmity with accused over land

dispute. It is further submitted that, spot panchanama and

recovery panchanama was not proved as PW-6 and PW-7

panch witness to spot panchanama and recovery of

'pancha' Exh.27 have turned hostile. It is further submitted

that, PW-8 panch to clothes seizure panchanama of the

accused , his testimony regarding blood on Dhoti of

accused is inconsistent with C.A. report, as no blood was

detected on Articles, Exh.3 and 4. It is further submitted

that, evidence of PW-8 is inconsequential as, as per medical

evidence, PW-2 - prosecutrix was accustomed to sexual

intercourse and it is not prosecution's case that hymen of

PW-2 / prosecutrix was ruptured and also no evidence of

external injury found on her. It is further submitted that,

evidence of PW-9 Investigating Officer regarding seizure of

pieces of bangles inconsistent with the testimony of PW-2 /

prosecutrix. It is further submitted that, as per testimony

of PW-2 prosecutrix she and her husband carried musical

instruments with them when they went to the house of the

accused for singing bhajan. However, allegedly while going

from house of accused to sing bhajan at Mehekari, she did

91.1996 Cri.Appeal.odt

not carry musical instruments. Material improvement in

testimony of PW-2 that, accused had told her that, she will

get musical instruments at the place of singing bhajans. It

is further submitted that, alleged incident took place near

temple which admittedly was at a calls distance, yet neither

the PW-2 - prosecutrix shouted during or after the incident.

It is further submitted that, after incident PW-2 prosecutrix

willfully accompanied accused back to village of accused.

As per testimony of PW-2 prosecutrix, she started shouting

after reaching house of accused. No eye witness much less

independent eye witness examined to prove said act. It is

further submitted that, PW-2 prosecutrix though aware of

existence of Police Chowky at Kaudgaon, which was at an

hour walking distance from Pargaon, yet she did not lodge

First Information Report on the date of alleged incident. It

is further submitted that, unexplained and inordinate delay

in lodging the First Information Report. First Information

Report admittedly lodged after due deliberation with

relatives.

9] The learned counsel appearing for the

respondent pressed into service exposition of the Hon'ble

91.1996 Cri.Appeal.odt

Supreme Court in the case of State of Andhra Pradesh

Vs. Jalapathi Subbarayudu and others1 and submits

that, the possible view has been taken by the trial Court,

and therefore, this Court may not interfere in the acquittal

order. The learned counsel appearing for the respondent

submitted that, in the case of Kaini Rajan Vs. State of

Kerala2 the Supreme Court held that, when facts and

it would

circumstances cast a doubt on veracity of prosecution case,

be unsafe to convict accused relying on

uncorroborated version of prosecutrix. The learned counsel

appearing for the respondent further pressed into service

exposition of the Supreme Court in the case of K.

Venkateshwarlu Vs. The State of Andhra Pradesh3

and submits that, "unless order of acquittal is perverse,

totally against weight of evidence and rendered in

complete breach of settled principles underlying criminal

jurisprudence - no interference is called for with it".

10] We have carefully considered the submissions

of the learned Additional Public Prosecutor and the learned

counsel appearing for the respondent - accused, with their

1. [2010] 15 SCC 472

2. [2013] 9 SCC 113

3. 2012 ALL SCR 2328

91.1996 Cri.Appeal.odt

able assistance we have carefully perused the entire

evidence so as to find out correctness of the findings

recorded by the trial Court. PW-2 - prosecutrix, in her

evidence in detailed narrated the alleged incident of the

rape by the respondent accused on her in the intervening

night of 8th April, 1993 to 9th April, 1993. In order to find out

whether the allegations of the alleged rape by the

prosecutrix corroborates with the medical evidence, it is

necessary to refer the evidence of PW-1 Dr.Popat Ananda

Sonawane. In his examination in chief, he stated that,

since January, 1991, he is working as a Medical Officer

attached to Civil Hospital, Ahmednagar. He further stated

that, on 09.04.1993, he was working as a Casualty Medical

Officer at the Civil Hospital from 8.00 a.m. to 8.00 p.m. On

that day, at about 11.45 a.m. one Yenubai Shankar Jagtap

was brought to the Civil Hospital by female Police Constable

Pawar bearing B. No.1722. Yenubai was sent under a Police

Yadi. He had then examined her. Yenubai Shankar had

then given history of rape on the earlier day at 8.00 p.m.

He had then examined her and had found the following:

1] There was no external injury over labia majora and interrior aspect of both thighs.

91.1996 Cri.Appeal.odt

2] Perspeculum examination the cervix and vagina were found to be healthy and no injury was

seen.

3] Per vaginal examination it was found that

uterous was retroverted and atrophic - admits two fingers easily.

11] He further stated in his opinion that, it was not

possible to give a definite opinion about the occurrence of

rape. As there was no sign of assault locally and no semen

was found. He further stated that, he had taken the swab

from posterior fornix and samples of pubic hair separately.

The patient appeared to be 40 years of age. He further

stated that, he issued certificate. Said certificate was

shown to him. He identified his signature. In his cross

examination, he stated that, the patient was accustomed to

the sexual intercourse. If a person is forcibly thrown down

on a rough ground, there would be abrasions. The

abrasions would necessarily take place.

If the allegations of the prosecutrix of

commission of rape by the respondent - accused are

considered in the light of evidence of PW-1, it is crystal

91.1996 Cri.Appeal.odt

clear that, medical evidence lends no support at all to the

theory of rape. The Trial Court has elaborately discussed

about the evidence of PW-1 and PW-2 prosecutrix and held

that, there is no corroboration to the evidence of

prosecutrix from the medical evidence. Upon independent

scrutiny of the medical evidence brought on record, we find

that, the findings recorded by the trial Court are in

consonance with the evidence brought on record, and there

is no perversity as such.

12] If the evidence of prosecutrix is considered in

its entirety, she stated that, near the place of alleged

incident, there is a temple of Shankar Bharati at a calls

distance and number of priests stay in that temple.

However, from reading evidence of the prosecutrix, it does

not appear that, she has raised any shouts. On the

contrary, her evidence shows that, after incident of rape

was over, accused had told her to accompany her to his

house, and she had so accompanied which again looks

improbable if the story of rape on her, is to be believed.

13] The evidence of PW-3 is to the effect that, he

91.1996 Cri.Appeal.odt

woke up from the sleep on hearing the shouts and he then

found that, Yenubai Shankar was shouting at about 11.30

p.m. or 12.00 midnight. He also stated in his evidence that,

other persons were also sleeping outside their houses and

had also got up and they had gathered there. However, it

appears that, PW-3 and PW-4 are in relations with the

prosecutrix and they are interested witnesses. The

prosecution has not examined other persons, who also

alleged to have heard prosecutrix shouts. The trial Court

upon appreciation of evidence of these witnesses held that,

those witnesses are interested witnesses. At the most

evidence of PW-3 and PW-4 according to prosecution case

is that, they heard prosecutrix's shouts. However, neither

they have seen nor witnessed actual incident. Perusal of

the evidence of the prosecutrix, she stated that, the house

of the accused is situated at a distance of half an hour walk

from Pargaon where she had gone on the night of the

incident and had woken up the persons, who were sleeping

near the village Chawdi. Therefore, it also appears

improbable that, by traveling half an hour distance after

alleged incident of rape, she went to the Parewadi and on

her shouts, persons were sleeping near Chawdi woke up.

91.1996 Cri.Appeal.odt

14] Coming to the C.A. Report that, saree bore 3

semen stains and the semen was of humb origin and of

blood group 'B', is of no use to the prosecution since the

prosecution has not led any evidence to show that, the

semen of the husband of prosecutrix namely Shankar

Laxman [PW-5] is of any other blood group than blood

group 'B', nor the prosecution has led evidence to show

that, the semen of the accused is of blood group 'B'.

15] Therefore, upon re-appreciation of the

evidence, we are of the considered view that, the findings

recorded by the Trial Court are in consonance with the

evidence brought on record. There is no perversity as such,

and therefore, the impugned order of acquittal deserves no

interference. The view taken by the trial Court is possible

view, hence Appeal is devoid of any merits, and hence,

same stands dismissed.

                 Sd/-                                 Sd/-

           [N.W.SAMBRE, J.]                 [S.S. SHINDE, J.]



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