Bombay High Court
Appa S/O Ramrao Gavate vs The State Of Maharashtra on 30 November, 2015
Bench: A.M. Thipsay
1-APPEAL-1129-2013-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1129 OF 2013
APPA S/o.RAMRAO GAVATE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Amit Munde, Advocate for the Appellant.
Ms.R.M.Gadhvi, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 30th NOVEMBER 2015.
JUDGMENT :
1 This appeal is directed against the judgment and order
dated 24th May 2013, delivered by the Ad-Hoc Additional Sessions
Judge, Pune, in Sessions Case No.299 of 2012, convicting the
appellant who was the sole accused in the said case of offences
punishable under Sections 376 of the IPC and 506 of the IPC. The
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learned Ad-Hoc Additional Sessions Judge sentenced the appellant
to suffer Rigorous Imprisonment for 7 years and to pay a fine of
Rs.5,000/- with respect to the offence punishable under Section
376 of the IPC, and to suffer Rigorous Imprisonment for 5 years
and to pay a fine of Rs.500/- with respect to the offence
punishable under Section 506 of the IPC. The learned Ad-Hoc
Additional Sessions Judge directed that the substantive sentences
would run concurrently. Being aggrieved by his conviction and
the sentence imposed upon him, the appellant has approached
this court by filing the present appeal.
2 I have heard Shri Amit Munde, the learned counsel for
the appellant. I have heard Ms.R.M.Gadhvi, the learned APP for
the State. With their assistance, I have gone through the record of
the trial court. I have carefully gone through the entire evidence
adduced during the trial, as also the impugned judgment.
3 The prosecution case, as put forth before the trial
court, may, in brief, be stated thus :
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The victim / prosecutrix (name not mentioned to
avoid disclosure of identity) is a married woman, aged about 33
years. She is mother of two children. The prosecutrix (PW1) and
her husband Shivaji Kapure (PW2), at the material time, were
doing labour work on the site of Kumar Builders, Sus Road,
Pashan, Pune. The appellant - a labour contractor, had provided
the work to the prosecutrix and her husband.
The prosecutrix used to work between 9 am to 6 pm. A tin
shed, adjacent to the site where the work was going on, had been
provided to the prosecutrix and her husband for their residence.
On 23rd December 2011, the appellant sent the husband of
the prosecutrix to some other site at Baner and the prosecutrix
was asked to work at Sus Road, Pashan, Pune. At about 12 noon,
the prosecutrix had gone inside the tin shed, which was provided
to her and her husband, for having water. When she was drinking
water, she felt that somebody had come from behind. She turned
around and noticed that, that the appellant was there. The
appellant gagged her mouth, fell her down and told her that he
would mark her 'double presence' and that, she should keep mum.
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The appellant also said that if the prosecutrix would shout, he
would kill her and throw her. The appellant, then, lifted the leg of
the prosecutrix, removed her undergarments and had intercourse
with her against her will. After he had completed the act, the
appellant left the place after threatening the prosecutrix that if she
would disclose the incident to anybody, he would kill her and her
husband.
The prosecutrix was suffering from pain and kept sitting
there itself. The prosecutrix thought that if her husband would
come to know about the incident, he would leave her, and she,
therefore, decided, not to disclose the incident to anybody. When
her husband came back, she did not tell him anything, but the
husband noticed a change in her behaviour, and took her in
confidence. It is, thereafter, that the prosecutrix, disclosed the
incident to her husband. The husband then said that they should
go and lodge a report with the police, and that, a report was
lodged against the appellant on 27th December 2011.
The appellant was arrested in the course of investigation. On
completion of investigation, a charge-sheet was filed alleging the
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commission of the aforesaid offences by the appellant, pursuant to
which, the appellant came to be prosecuted, convicted and
sentenced as aforesaid.
4 The prosecution examined six witnesses during the
trial. The first two witnesses are the prosecutrix (PW1) herself
and her husband Shivaji Kapure (PW2) respectively. The third
witness Dr.Gautami Pawar is a doctor, who at the material time,
was attached to Aundh Hospital, and had, on 29 th December 2011,
carried out medical examination of the appellant. The fourth
witness Dr.Vijaylaxmi D. is also a Medical Officer, who at the
material time, was attached to Sassoon Hospital, Pune. She had
examined the prosecutrix medically on 28th December 2011. The
fifth witness Babu Koli is a panch in respect of the seizure of the
clothes of the appellant on 28th December 2011. The sixth witness
Pratapsing Bahure, Sub-Inspector of Police, who was attached to
Chaturshungi Police Station at the material time, is the one who
had carried out investigation in the matter and had filed a charge-
sheet against the appellant.
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5 In her evidence, the prosecutrix narrated the incident.
It is revealed from her evidence that she and her husband were
working with the appellant about a month prior to the incident.
Her evidence also shows that she knew the appellant as he was
the labour contractor and used to call him Appa. She also states
that adjacent to the site where she and her husband used to work,
a tin shed for their residence had been provided. She also states
that on 23rd December 2011, she had been working at Sus Road,
Pashan, while her husband was provided work at Baner. She has
then described how the incident took place in the tin shed when
she had gone there for drinking water, at about 12 noon. She
also states about the threats given to her by the appellant to the
effect that if she would shout, he would kill her and throw her
away. She also states that when the appellant gave threats of
killing to her, she told him that her husband would also kill her,
and that, her 'izzat' would be lost. According to her, inspite of
such protest, the accused performed the act of sexual intercourse
without her consent.
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6 According to the prosecutrix, she did not disclose the
incident to her husband, as she was frightened. She disclosed the
incident to her husband only after 2-3 days. During this period,
she had not gone for work. According to her, it is only when her
husband had noticed that she was crying and had asked her
whether medical treatment was required to be given to her, that
she had disclosed the incident to her husband.
7 The evidence of Shivaji (PW2) shows that on 23 rd
December 2011, when he returned home from Baner, he noticed
that the behaviour of the prosecutrix was not normal. According
to him, the prosecutrix did not cook the dinner in the night and
was complaining of body pain. Shivaji did ask her as to what had
happened, but she did not disclose anything to him. It is only on
27th December 2011, that she disclosed the incident that had
taken place on 23rd December 2011 to Shivaji. Through Shivaji, a
copy of the attendance card issued in the name of the prosecutrix
and showing her attendance on 23rd December 2011 was
produced. In the cross-examination, it was suggested to him that
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on the day of incident, he and his wife i.e. the prosecutrix were
working at the same site, but this suggestion was denied by him.
It was also suggested that he and his wife were not working with
the builder - Kumar Builders, and that, the appellant was not
working there as a labour contractor. These suggestions were
denied by Shivaji as not true.
The evidence of the doctors - Dr.Gautami (PW3) and
Dr.Vijaylaxmi (PW4) is not very significant. Nothing which is of a
conclusive nature could be revealed in the medical examination,
either of the prosecutrix or of the appellant. The evidence of
Dr.Vijaylaxmi, however, shows that she had recorded detailed
history of the incident, as given to her by the prosecutrix, and
what, according to this witness, was narrated to her by the
prosecutrix is consistent with what had been mentioned in the
First Information Report (FIR) lodged by her and also the evidence
given by the prosecutrix in the court. The evidence of Babu Koli, a
panch in respect of the seizure of the clothes of the appellant by
the police on 28th December 2011, is also not very material.
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9 Pratapsing Bahure (PW6), the Investigating Officer,
states about having registered the report made by the prosecutrix
to him on 27th December 2011. His evidence shows that he
arrested the accused on 27th December 2011 i.e. on the date on
which the report was lodged. He has mentioned about the various
steps taken during investigation. In the cross-examination, it was
suggested to him that the prosecutrix had not named anyone as
the culprit, but this suggestion was denied by him. He
categorically stated that the prosecutrix had given the name of the
appellant as the offender. It was also suggested to him that the FIR
has not been taken down as per the narration of the prosecutrix
but had been written by this witness as per his 'whims' which was
denied by him. He admitted to have arrested the appellant from
the spot where the construction work was going on.
10 Mr.Munde, the learned counsel for the appellant,
submitted that the prosecutrix could not be relied upon.
According to him, even assuming that the act of sexual intercourse
had taken place between the prosecutrix and the appellant, the
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case was clearly of consent. He raised a number of contentions in
support of his claim that the story put forth by the prosecutrix was
not reliable. He submitted firstly, that, the prosecutrix had no
reason to go to her house for having water, when arrangements
had been made for drinking water on the site itself. This is based
on the admission given by the prosecutrix in the cross-
examination that at the workplace drinking water arrangement
was there. It is also pointed out in this context that the
investigation is not sincere and the Investigating Officer has
falsely denied that arrangement for drinking water for the workers
had been made on the site. I have considered the matter. Indeed,
the Investigating Officer appears to be wrong in that regard and it
is possible that he has given a wrong answer with the object of
providing an explanation of the conduct of the prosecutrix in
going to her residence for having water. However, I am unable to
hold that this renders the version of the prosecutrix unbelievable
or doubtful. Even if it is accepted that arrangements had been
made for providing drinking water to the workers on the site
itself, it would not mean that the workers would not go to their
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residence to have water. This is particularly so, because, the
residence of the prosecutrix was, apparently, just adjacent to the
place where the construction work was going on. Moreover, if this
point was to be highlighted, it was necessary to have questioned
the prosecutrix in the cross-examination as to why she had gone
to her residence for having water, when drinking water was
available at the site itself. Since the cross-examiner had chosen to
avoid putting such a question to the prosecutrix, not much
importance to the availability of drinking water at the site can be
given, so as to render the going of the prosecutrix to her residence
for having water, unlikely or unbelievable.
11 It is also contended by Mr.Munde that the residence of
the prosecutrix is not adjacent to the workplace, but about four
furlongs away from the work site. Indeed, in the cross-
examination of the prosecutrix, she has stated that the distance
between her residence and the work site was of more than four
furlongs. There is, however, some ambiguity in that regard. In
the examination-in-chief, the prosecutrix clearly stated that there
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was a tin shed residential house adjacent to the site, and that, she
had gone to the tin shed for drinking water, where the incident
took place. She has not categorically stated in her evidence that
the incident took place 'at her residence' and what she has stated
is that it took place 'in the tin shed.' Whether the residence, which
she says was more than four furlongs away from the work site, is
the same where the incident of rape took place, is not at all clear;
and this is simply assumed by the learned counsel for the
appellant. In this regard also, the cross-examiner has preferred to
be vague. In my opinion, it is not possible to accept that the
version of the prosecutrix is that the rape took place at her
residence situate more than four furlongs away from the work
site. If her evidence is carefully seen, it is clear that she speaks of
the same having taken place in the 'tin shed' adjacent to the 'work
site', though she has earlier described the tin shed as 'residential
house property.' Thus, what the prosecutrix has stated is that the
incident took place in the 'tin shed adjacent to the work site' and
that the 'tin shed' was 'residential.' She did say about her
residence being more than four furlongs away from the work site,
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but never said that the incident took place there. Since the cross-
examiner has avoided going deeper, and since the prosecutrix
never stated that the incident took place at her residence situate
about more than four furlongs away from the work site, it is not
possible to disbelieve the prosecutrix or discard her testimony as
unreliable on that count.
In support of his contention that the case could be of
voluntary sexual intercourse between two adults, the learned
counsel for the appellant highlighted the following from the
evidence of the prosecutrix :
"He has also given me threats if I will
shouted he kill me and throw away. While
he was removing my clothes he was giving
threats to me. I had told him my husband
will also kill me and my izzat (dignity) will
decline in the society."
According to the learned counsel, this shows that the prosecutrix
was actually afraid only of her husband and / or others knowing
about the incident and had no other objection for the appellant
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having intercourse with her. I find no substance in this
contention. According to me, the utterances of the prosecutrix
show an attempt on the part of the prosecutrix to plead with the
appellant for mercy and sympathy and persuade him not to
commit the act. It is not possible to hold that this suggests
consent on the part of the prosecutrix.
In a prosecution with respect to an offence punishable
under Section 376 of the IPC, the presumption contained in
Section 114A of the Evidence Act cannot be lost sight of. The
prosecutrix says that she did not consent to the act and in the
circumstances of the case, there is no reason to disbelieve her.
Her evidence is consistent. The delay in lodging the FIR has also
been properly explained by her. Considering the strata of the
society to which the prosecutrix and her husband belong, it was
quite natural for the prosecutrix to expect a hostile reaction from
her husband. In such a circumstance, it was quite natural on her
part to try to avoid disclosure of the incident. The disclosure
came to be made only when the husband observed some
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abnormalities in her behaviour, noticed her crying and questioned
her, whether she needed medical treatment. Apparently, the
disclosure was made only after the husband showed a concern for
her problems; and this sympathy shown by her husband to her,
apparently led to her gathering courage to disclose the incident to
her husband.
The appellant was in a dominating position as against
the prosecutrix. He was a labour contractor and had the authority
to remove the prosecutrix and / or her husband from the job.
Considering this, merely because the prosecutrix did not
physically resist the appellant and succumbed to the pressure
brought by him, she cannot be believed to be a consenting party.
On the contrary, her conduct, namely, of her not doing the usual
activities and not reporting for work after the incident, supports
her version. Incidentally, there has been no challenge in the cross-
examination to the claim that after the incident the prosecutrix
did not report for the duties.
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15 The learned counsel for the appellant lastly submitted
that the appellant was admittedly arrested from the spot after about
four days from the alleged incident, and the fact that he had not
absconded, itself indicates that the allegation alleged against him
was false. I am unable to agree. In my opinion, considering the
vulnerable position of the prosecutrix, who had expressed
apprehension about her husband reacting with hostility towards her
on knowing about the incident, and about loss of respect and
reputation in the society, the appellant never expected that the
prosecutrix would gather courage to report the matter to the police.
Since he did not apprehend any danger, he did not abscond. The
prosecutrix could gather the courage to lodge a report with the
police only because of the sympathetic behaviour of her husband in
taking her in confidence, after noticing her rather unusual
behaviour.
16 The learned trial Judge has placed reliance on the
evidence of the prosecutrix. The learned trial Judge had an
opportunity to see the prosecutrix and her husband in the witness
box and observe their demeanour. There is nothing in the evidence
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of the prosecutrix or that of her husband which would create a
doubt about the truth of the version of the prosecutrix. The
questions put to the prosecutrix and her husband in the cross-
examination are vague and evasive and not consistent with any one
or more particular theory/theories. The cross-examination of these
two witnesses has totally failed to shake the testimony of either of
them, or to create a doubt about the reliability of the same.
17 It is true that it is not possible to agree with the entire
reasoning of the learned trial Judge. It appears that the learned trial
Judge has placed reliance on some statements made in the spot
panchnama without the panch witnesses having been examined.
This was not proper. As a matter of fact, even if the panch would be
examined, the contents of the panchnama could not be read as
substantive evidence, and the substantive evidence would be the
oral evidence of such panch. However, the reliance placed on the
evidence of the prosecutrix, and the ultimate conclusion arrived at
by the learned trial Judge, appears to be proper and in accordance
with law.
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18 In my opinion, the prosecution had been successful in
establishing the guilt of the accused and the appellant has been
rightly convicted by the learned trial Judge.
19 The learned counsel for the appellant prays that the
sentences imposed upon the appellant be reduced. The learned
Judge has imposed only the sentence that is prescribed as
'minimum' for the offence punishable under Section 376 of the
IPC. As the sentence imposed for the other offence is lesser, and
would merge in the sentence provided for the offence punishable
under Section 376 of the IPC, the sentences having been directed
to run concurrently, no interference therewith is warranted.
20 The appeal is dismissed.
(ABHAY M. THIPSAY, J.)
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CERTIFICATE
Certified to be true and correct copy of the original
signed Judgment /Order.
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