Bombay High Court
Ganpat Khanderao Wabale vs The State Of Maharashtra on 1 April, 2016
Bench: S.S. Jadhav
1 24.685.96 apeal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 685 OF 1996
Ganpat Khanderao Wabale
R/o Mudale, Tal. Baramati, Dist. Pune. .....Appellant
V/s.
The State of Maharashtra ....Respondent
Mr. Rahul S. Kate Advocate for Appellant
Mrs. A. A. Mane APP for the State.
CORAM : SMT. SADHANA S. JADHAV, J.
DATED : APRIL 1, 2016.
JUDGMENT:
Appellant herein is convicted of offence punishable under section 376
of Indian Penal Code and sentenced to suffer rigorous imprisonment for 7
years and fine of Rs. 5000/- in default to suffer further rigorous imprisonment
for one month, he is also convicted for offence punishable under section 3
(i) (xi) of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 and sentenced to suffer rigorous imprisonment for
6 months and fine of Rs. 300/- in default to suffer further rigorous
imprisonment for one month by 2nd Additional Sessions Judge, Satara
vide Judgment and Order dated 01/11/1996. Hence, this appeal.
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2) Such of the facts necessary for the decision of this appeal are as
follows.
3) On 13/05/1995, prosecutrix Ms. 'X' lodged a report at Karad City
Police Station alleging therein that on 12/05/1995 at about 4.00 a.m.,
she had left her house for answering nature's call. While she was
returning to her house, appellant herein has come from her behind and
gagged her mouth. That he had lifted her and carried her near the
banks of Koyna river and under the Babool tree she was ravished by the
appellant. That he had brandished the knife and therefore, she was
scared. She was with the appellant till 9.00 p.m. At about 9.00 p.m.,
she had escaped from his clutches, returned home and informed her
parents about the incident. According to her, appellant had lifted her
and had ravished her against her wish. On the basis of her report,
crime no. 109 of 1995 was registered against the appellant for offence
punishable under sections 376, 363 & 366 of Indian Penal Code and
section 3 (i) (xi) of Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989. After completion of investigation, charge-sheet
was filed on 11/06/1995. The case was committed to the Court of
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Sessions and registered as Sessions Case No. 111 of 1995. Prosecution
examined 9 witnesses to bring home the guilt of the accused.
4) Case rests upon the evidence of the prosecutrix and the medical
evidence. Prosecutrix is examined as P.W. 5. She has deposed before the
court that she belongs to Scheduled Caste, Mahar community. She was
working at jaggery unit on daily wages. Her parents and her maternal
uncle and aunt were also residing with her. On the day of the incident
i.e. on 12/05/1995 at about 4.30 a.m., she went to answer nature's call
at a distance of 100 - 200 ft. from her house. When she was returning
home, accused had come from behind and gagged her mouth with
Lungi, he had lifted her and carried her towards Koyna river. That in
the bushes, under the Babool tree he had ravished her. She had
attempted to rescue herself from his clutches, however, but to no avail.
He was holding a knife in his hand and had threatened her of dire
consequences. She was lying at the spot of incident up to 9.00 p.m.
Thereafter, under the pretext of urination, she had escaped from his
clutches, she returned home. She disclosed to the parents about the
incident. In the same night along with her parents she had gone to see
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Lala Yadav who was the owner of the sugarcane crusher. Lala Yadav
informed them that since it is night time, they should report about the
incident on the next day, hence, she lodged a report on the next day.
She has proved contents of F.I.R. to be true and correct. F.I.R. is marked
at Exhibit 18. In the cross-examination, she has denied the suggestion
that she was having intimacy with Vitthal Vishwanath Gund. She has
denied the suggestion that accused had knowledge of the intimacy
between her and Vitthal and therefore, she has implicated him. She has
admitted in the cross-examination that the place where she had been to
answer nature's call was hardly at distance of 100- 200 ft from her
house. It is also admitted that between 4.00 to 7.00 accused had not
committed sexual intercourse with her. According to her, residents of
that area were visiting the same place to answer nature's call. Place of
incident is situated at distance of 1 ft from Jaggery Unit. It is also
admitted that people from Kasegaon also used to come to the same
place for fetching water.
5) There are inherent omissions and contradictions in the
substantive evidence of P.W. 5 which go to the root of the matter and
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stand proved. It is pertinent to note that medical evidence which is at
Exhibit 11 would show that Medical Officer could not give a definite
opinion as to whether the victim was subjected to sexual intercourse
recently. There were no external injuries on her person. The most
important fact is that the age of the prosecutrix has not been proved by
the prosecution, not only that there is no documentary evidence but
there is nothing on record to indicate as to whether any ossification test
was conducted. At the time of examining the victim doctor had not
recorded her age or any description in respect of physical constitution.
Besides the bear words of the prosecutrix, there is nothing on record to
even remotely indicate that the victim was a minor at the time of
incident.
6) P. W. 6 Vaijeyanta Kamble happens to be mother of the victim.
According to her, on the date of incident, her daughter had gone to
answer nature's call at about 4.00 a.m., and had not returned. Her
parents had searched for her up to 9.00 p.m., however, at 9.00 p.m.,
victim returned home and she was weeping. She had allegedly
disclosed the trauma which she had gone through. That they had
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approached Lala Yadav. He told them that there was no conveyance to
go to Karad for lodging report and therefore, he had advised them to
go on the next day.
7) In the cross-examination P. W. 6 has categorically admitted that
Vitthal Gund was working on the same jaggery unit. He was working in
the sugarcane field. It is also admitted that the first shift at the jaggery
unit commences at 4.00 a.m., in the morning and second shift starts at
about 10.00 a.m. in the morning. That at about 4.00 a.m., female
workers working on the said unit used to go for answering nature's call
at the same place. That there was a foot way to go to the place for
answering nature's call. It is also admitted that since 6.00 a.m. in the
morning, people from Kasegaon used to come to Panawatha, i.e. the
place where the incident had taken, to fetch water. Even in the day
time people used to come through the same foot way at the banks of
Koyna river. She has also admitted that villagers used to take their
cattle to the same place. Cattle are left free in the said area for grazing.
Irrigation water scheme is near the scene of offence. That a small boat
is available for the passengers to go from village Yeravala to Kasegaon.
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Two workers are working on that small boat. Lala Yadav possesses a
tractor for carrying sugarcane and also he is the owner of a jeep. It is
also admitted that accused was working on the jaggery unit as well as
in the sugarcane field. That the accused was attending the first shift at
4.00 a.m. and used to work late in the night till 10.00 p.m.
8) It is pertinent to note that accused has admitted medical evidence
under section 294 of Code of Criminal Procedure, 1973 and hence,
doctor is not examined.
9) P. W. 7 Lala Yadav is the owner of jaggery unit. He has reiterated
the narration of P.W. 6. It is elicited in the cross-examination that P.W. 7
used to go to the jaggery unit at 7.00 - 8.00 a.m. On the day of
incident, parents of prosecutrix had informed him about the missing of
their daughter. He had come to the unit at 7.00 - 8.00 a.m. and the
accused was present at the unit. This very aspect goes to the root of the
matter. The contention of the prosecutrix that she was in the custody of
the accused from 4.00 a.m. to 9.00 p.m. is falsified. It is not the case of
the prosecution that the prosecutrix was detained or confined. P.W. 7
has categorically stated that accused was present at the unit at about
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7.00 a.m.
10) P.W. 9 Ramesh Yadav is Investigating Officer. He was attached to
Karad City Police Station as P.S.I. He had conducted the investigation in
accordance with Law. In the cross-examination he has admitted that he
had scribed the complaint as per the narration of P.W. 5 He has proved
the omissions and contradictions in the evidence of P.W. 5. Medical
evidence is at Exhibit 11. C.A. report is at Exhibit 33. C.A. report shows
that clothes were washed. That no semen was detected on Exhibits 1,
2, 3 & 4 i.e. clothes of prosecutrix as well as of the accused. Blood
group could not be determined.
11) In the statement under section 313 of Code of Criminal
Procedure, 1973, in answer to question no. 32, accused has submitted
before the court that prosecutrix had love affair with Vitthal Gund.
That he was witness of the same and therefore, she had concocted a
false story and filed false complaint against appellant. He has further
stated that he had come to the said place to earn livelihood and that he
has been falsely implicated.
12) Learned counsel for the appellant submits that in a case under
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Prevention of Atrocities Act, investigation is to be carried out by an
Officer not below the rank of Deputy Superintendent of Police,
however, in the present case, the whole case is investigated by P.S.I. of
Karad City Police Station and therefore, the same would be fatal to the
prosecution.
13) Upon perusal of the evidence adduced by the prosecution, it is
clear that story as narrated by prosecutrix does not inspire confidence
of the Court for following reasons.
(i) Scene of offence as disclosed by the prosecutrix is densely
populated.
(ii) In the morning at 4.00 a.m., labourers are working at
the jaggery unit.
(iii) According to prosecutrix she was in the custody of accused
till 9.00 p.m.
(iv) The said area is frequented by the villagers of two villages.
(v) P.W. 7 has categorically stated that accused was present at
the jaggery unit at about 7.00 a.m.
(vi) P.W. 7 has not been declared hostile. It is admission which is
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accepted by the prosecution.
(vii) That there is no medical evidence to even remotely indicate
that victim was subjected to sexual intercourse on 12/05/1995.
14) In the case of Sadashiv Ramrao Hadbe vs State of Maharashtra
And another reported in (2006) 10 SCC 92 Hon'ble Apex Court has
observed that :-
"It is true that in a rape case the accused could be convicted on
the sole testimony of the prosecutrix, if it is capable of inspiring of
confidence in the mind of the court. If the version given by the
prosecutrix is unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and belie the
case set up by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts shall be extremely
careful in accepting the sole testimony of the prosecutrix when
the entire case is improbable and unlikely to happen."
15) In factual aspect also, there is similarity in both the cases.
16) For the above mentioned reasons, appeal deserves to be allowed.
O R D E R
(i) Appeal is allowed.
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(ii) The Judgment and Order dated 01/11/1996 passed by 2nd
Additional Sessions Judge Satara in Sessions Case No. 111 of 1995 is
hereby quashed and set aside.
(iii) Appellant is acquitted of offence punishable under section 376 of
Indian Penal Code and section 3 (i) (xi) of Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989.
(iv) Bail bonds of appellant stand cancelled.
(v)
Fine amount, if paid, be refunded to the appellant.
(vi) Appeal stands disposed of.
(SMT. SADHANA S. JADHAV, J.)
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