Sk Rustum Sk Dada vs State Of Maha
2016 Latest Caselaw 3521 Bom

Appeal and it has also been argued on his behalf

that the trial Court did not appreciate the

evidence properly. Trial Court failed to consider

the evidence of prosecutrix that she did not

sustain any injury to her body or private part at

the time of commission of alleged incident. If it

was to be found that intercourse took place then

it should be treated as by consent. There was no

evidence that the victim had resisted. Absence of

injury on the body of the victim showed that her

evidence that she was forced and dragged to the

Gotha on hard and rocky soil, was not acceptable.

The evidence could not be accepted that the victim

was forcibly raped. The evidence showed that the

spot was such that it was visible from the house

of the victim as well as other neighbours and thus

it could not be accepted that nobody saw the

incident of forcibly taking the victim to the

Gotha. There was enmity between the uncle of the

Accused and parents of the Victim regarding the

tenanted premises and arrears of rent and thus the

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Accused had been falsely implicated. The evidence

of doctor does not prove that act of rape was

committed.

6. It has been argued by the learned counsel

for the Appellant-Accused that document Exhibit 29

regarding examination of the Victim was produced

by the doctor at the time of evidence and the

doctor stated that he had kept the concerned

document with him. Thus, according to the counsel

it was not produced from official record.

Although, the doctor claimed that there was

evidence of fresh tear of hymen, the examination

certificate Exhibit 31 did not tick either of the

columns regarding fresh or old tear. According to

the counsel, the doctor relied on his memory to

say that it was fresh tear. Referring to the C.A.

reports, learned counsel submitted that the same

showed that the under-garment had blood stain but

the under-garment appeared to have been washed.

Thus, according to him there was no sufficient

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evidence to hold the Accused guilty. The Gotha and

the spot where the Victim had gone for toilet,

were in different directions. According to him the

spot was not isolated spot and it was in range of

shout and still the Victim wanted it to be

believed that she shouted but nobody got

attracted. Referring to the evidence, the counsel

submitted that evidence claims that she was

dragged to some distance but still wanted it to be

accepted that she did not suffer any injury. It

has been argued that in cross-examination the

Victim, at one stage, accepted that when the

Accused held her hands she sat. She then claims

that she was dragged and taken but still the

medical evidence did not show that she suffered

any injury on her body.

7. Learned counsel for the Appellant-Accused

referred to (I) the case of Valliappa Harijan vs.

State of Goa, 1997 Cri.L.J. 1484, (II) the case of

Narender Kumar vs. State (NCT of Delhi), AIR 2012

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SC 2281(1), (III) the case of Rajoo and Others vs.

State of M.P. AIR 2009 SC 858, (IV) the case of

the State of Maharashtra vs. Shri. Subhash Sitaram

Sangare, 2001 All M.R. (Cri) 1541, (V) the case of

State of Sikkim vs. Pem Dorjee Sherpa, 2015

CRI.L.J. 2507, (VI) the case of the State of

Gujarat vs. Popatbhai Bhalabhai alias Bharabhai

Bharwad, 2014 CRI. L.J. 107, (VII) the case of

State of Gujarat vs. Dhirajlal Naranbhai Patel and

Another, 2014 CRI. L.J. 2058, (VIII) the case of

Joseph vs. State of Kerala, 2000 ALL M.R. (Cri)

1920, to submit that if the evidence of the

prosecutrix is appreciated regarding the manner in

which the offence was committed, then it is

unlikely that she would not have had any physical

injury on her person. According to the counsel the

Judgments, referred above, show that where the

victims were forcibly taken and rape was

committed, the Hon'ble Supreme Court and different

High Courts have observed that in such

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contingencies the injuries on the person are

expected. According to the counsel in the present

set of facts also the Victim deserved to be

disbelieved regarding her evidence that she was

forcibly dragged and taken and rape was committed

on her.

8. Learned counsel for the Appellant-Accused

further argued referring to the case of Suresh

Yellaji Yerewar vs. State of Maharashtra, 2003 ALL

M.R. (Cri) 2014 and the observations in para 5 of

that Judgment where the mere circumstance that the

hymen was found ruptured was not used against the

accused as the report of doctor had not mentioned

color to decide age of rupture of vagina. It has

been also argued that the Judgment found that in

that matter also the finding was that washed

blood on the underclothes of adult girl could not

be circumstance in favour of prosecution as the

finding of such blood could be due to variety of

reasons. For such reasons, the learned counsel for

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the Appellant-Accused vehemently submitted that

that Accused needs to be acquitted.

9. Per contra, the learned A.P.P. submitted

that although the mother of Victim was old tenant

in the concerned Wada, there was no material to

show that there was any eviction proceeding.

According to him, the Victim was un-shattered in

the cross-examination and there was other evidence

also like her immediately telling the incident to

her sister, mother and brother. The details of the

spot showed that from the house of the Victim even

if the Gotha or cattle-shed was visible, the

vision was obstructed and what happens behind the

Gotha could not be accepted to be visible. There

were also trees in between. The house and Gotha

were at considerable distance as in between there

was road and then open space and then Gotha was

there. According to the A.P.P., the water tank was

behind the Gotha and the incident of dragging took

place from near the water tank and the evidence

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shows that actual dragging was only for a distance

of about 10 ft. and the Victim may not have

suffered injury. According to the A.P.P., it is

unacceptable that just to avoid eviction from

house, the parents would put forward the Victim,

an unmarried girl to make such allegations, which

would jeopardize her future marital prospects. The

A.P.P. referred to C.A. reports to show that blood

and semen had been found on the clothes of Victim

and doctor also found injury to her fourchette.

According to the A.P.P., the fact that there was

injury to the private part of the Victim showed

that she had been forcibly raped. The learned

A.P.P. submitted that the Judgments relied on by

the learned counsel for the Appellant-Accused are

based on their own facts and the present matter

will have to be considered on its own facts to

appreciate the evidence. Learned A.P.P. relied on

the case of Aman Kumar and another vs. State of

Haryana, AIR 2004 SC 1497(1) to submit that the

evidence of the prosecutrix stands on higher

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pedestal than even injured witness. The learned

A.P.P. submitted that the trial Court has rightly

appreciated the evidence and convicted the

Accused.

10. Before discussing the oral and

documentary evidence of the present matter, it

would be appropriate to refer to the Rulings

relied on by the learned counsel for the

Appellant-Accused:

a) The Judgment in the matter of Valliappa

Harijan vs. State of Goa, cited supra, shows that

there was no injury on the private part of the

prosecutrix. In that matter, the prosecutrix had,

in her complaint, claimed that she was forcibly

thrown down and made to lie on towel and that her

hands had been tied with creeper trees. The

Division Bench of this Court appreciated the facts

of that matter to conclude that it could not be

found that there had been resistance.

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b) In the matter of Narender Kumar vs.

State, cited supra, the Hon'ble Supreme Court

discussed the evidence and in para 15 of the

Judgment considered the picture which emerged on

considering the evidence and further discussed the

observations of the Supreme Court in various

earlier Judgments and taking note of the settled

legal propositions, found that it could not be

held in that matter that the prosecutrix was not

knowing the appellant prior to the incident and if

her evidence was to be read and considered in

totality of circumstances, the same did not

inspire confidence. The Hon'ble Supreme Court gave

benefit of doubt to the appellant therein.

c) In the matter of Rajoo and others vs.

State of M.P., cited supra, the prosecutrix had

alleged rape by 13 persons. In the facts of that

matter, the Hon'ble Supreme Court found that the

prosecutrix had been involved earlier in some kind

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of improper activity. It took note of the fact

that although rape was alleged by 13 persons, no

injury was found on the person of prosecutrix. In

the facts of that matter, the Hon'ble Supreme

Court found, on examination of entire evidence,

that it would be difficult to conclusively show

the involvement of each of the accused beyond

reasonable doubt. It was observed that truth and

falsehood were so inextricably intertwined, that

it was impossible to discern where one ends and

the other begins.

d) In the matter of the State of Maharashtra

vs. Shri. Subhash Sitaram Sangare, cited supra,

Division Bench of this High Court, in para 8 of

the Judgment, considered the evidence of

prosecutrix in that matter. It was noticed that

the victim and accused were known to each other

since child-hood; there was no resistance from

prosecutrix as per her own deposition; there was

no abrasion or scratches on any part of her body

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nor there was injury to her private parts; that

her clothes were not torn and that she was not

crying when she went home. For such reasons, it

was found that the prosecutrix was a consenting

party.

e) In the matter of Joseph vs. State of

Kerala, cited supra, the Hon'ble Supreme Court

dealt with matter where the accused had taken the

victim from the Convent by representing himself to

be husband of one of the sisters of the victim and

on next day the dead body of the victim was found

near the Railway line. In addition to Section 302

of IPC, the accused was found guilty of offence

under Section 376 of IPC. The conviction came to

be maintained under Sections 302 and 392 of IPC by

the Hon'ble Supreme Court but for offence under

Section 376 of IPC, it was observed that the

victim was grown up lady and if there would have

been forcible sexual intercourse, some injuries

would have been found on the vagina/private parts

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of the body or some other parts indicative of any

such use of force and it would be too much to

assume that there would have been no injuries

whatsoever on the body, on this count. The Hon'ble

Supreme Court also observed that though injuries

on the body is not always a must or sine qua non

to prove a charge of rape, having regard to the

case of prosecution, in that matter, that the

victim had been subjected to brutal rape and

forced sexual intercourse, this aspect of the

matter can not be completely lost sight of.

Considering these and other reasons the accused

was given benefit in that matter as regards

offence under Section 376 of IPC.

. I have gone through the Rulings. The

rulings contain reasonings based on the facts of

the matters therein. Present matter needs to be

appreciated on its own facts.

11. In order to appreciate the evidence of

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the prosecutrix - Victim, it would be appropriate

to first keep in view the alleged spot and its

surroundings where the incident is said to have

taken place.

(a). In this regard firstly reference needs to

be made to the Spot Panchnama Exhibit 14. PW-3

Ravi Saudagar, the Panch turned hostile. However,

PW-4 Samson Bhingardive supported the prosecution

and the Panchnama came to be proved. If the Spot

Panchnama Exhibit 14 is seen, the picture that

emerges shows that it is a Gotha or cattle-shed in

the cantonment area of Aurangabad behind one

Visava Hotel. The Gotha faces East and there is a

gate with two planks. To the North of that gate at

about 100 ft. the water tank for buffaloes to

drink water was situated. Entering the Gotha what

appeared was that there were stone walls on all

the four sides of Gotha having height of 10 ft.

The Southern and Western wall had tin-shed where

buffaloes were tied. In the corner of Northern and

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Eastern wall, there was a constructed room in

front of which there was a tin-shed. The Victim

took the Panchas in the Gotha and entering the

gate she pointed out towards the left and taking

them near the Southern wall, she pointed out

"Gavanit" i.e. channel created for putting fodder

for animals to eat, as the place where the rape

took place. The place was of "Vairanachi" i.e.

fodder and was in the use and thus no special

marks could be seen at the spot. The said Gotha

was of a diameter of 100 ft. X 100 ft. As per the

Spot Panchnama, to the East of the Gotha, there

was open space and thereafter house of the

complainant; to the West there was a lane and

beyond that school of one Bagade Bai; to the South

there was open space and beyond that wall of

Little Flower High School and towards the North

there was machine room for cutting fodder and

thereafter open space.

(b). The oral evidence gives further details

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of the spot mentioned above. The evidence of PW-1,

mother of the Victim, shows that the Gotha where

incident took place is beyond open side after

crossing road which is opposite their house. This

witness stated that from the windows of her house

and the houses of persons residing nearby the

Gotha is visible and between the Gotha and their

house, there is no other structure. The witness

stated that beyond the road which is behind her

house, there is Milind College and to the South of

her house there was a big building and thereafter

a school. The witness stated that the road which

is in front of her house runs towards Idgah and

colony. The Victim herself (PW-2) has also

stated that the Gotha is to the West of her house

and there is a narrow road in front of her house.

The Marathi version of this witness shows that

from such road in front of her house vehicles are

passing. She deposed that beyond such road, there

is open space and then there is Gotha of the

accused. There are ten tenants residing in the

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Wada where she lived. This witness stated that the

water reservoir was towards the Eastern side of

the Gotha and it was outside the Gotha. Her

evidence is that the entrance of the Gotha was

about 20 ft. wide.

(c). Thus reading the Spot Panchnama with the

evidence of Victim shows that the Gotha which was

facing towards East where Wada of Victim

was situated, had a gate which was about

20 ft. broad and having two planks and from the

gate the water tank was about 100 ft. towards

North. The Gotha which was about 100 ft. X 100 ft.

had gate appearing to be in the middle and from

there the water tank was about 100 ft. towards

North.

(d). Further details regarding the Gotha can

be seen from the evidence of Panch PW-4 Samson. He

deposed that there are walls around Gotha but roof

is not fully covered by tin sheets. His evidence

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shows that the ground between the water tank or

reservoir till the entrance of the Gotha was

"rocky". Then the evidence of PW-6 Vitthal Pawar,

the P.I. who prepared Spot Panchnama, shows that

Gotha was partly covered with tins and below the

tin-shed the buffaloes were tied. His evidence

shows that ground inside the Gotha was "rough".

(e).

The above discussion shows picture of a

Gotha with rough insides and even the open space

from the gate of the Gotha till the water

reservoir was rocky place. Although it appears

that there were open spaces around the Gotha, it

appears to be surrounded by lane towards the West

and a small road between the Gotha and the house

of the Victim which admittedly had vehicles

passing. The Victim PW-2 claimed that at such

place she had gone for answering call of nature in

the open. The time of incident is stated about

3.45 p.m. Her cross-examination shows that she had

gone towards the Northern side from her house for

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answering call of nature where there were standing

trees.

12. Keeping such spot of incident in view and

the timing of the incident, now it would be

appropriate to refer to the oral evidence of the

Victim regarding the incident.

13.

The Victim gave her evidence in January

2003. The incident is of 20th February 2000. She

was about 20 years old at the concerned time. She

claimed that at the concerned time she was

studying in Milind College of Science in B.Sc.

first year. The Medical Examination Form of the

Victim Exhibit 31 shows that her general body

built was "fair" with height 152 c.m.s and weight

39 K.g.s.

14. Keeping the spot and built of the Victim

in view, the evidence of the Victim needs to be

considered. I am referring to her evidence

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regarding incident from Marathi version as I find

the English version at places to be incorrect or

not correctly translated. The Victim deposed that

at about 3.30 p.m. she had gone for toilet in the

open near the bushes. Her sister PW-5 at that time

was at home while the mother had gone to the

market. According to her, after toilet she was

returning home and walking with her head down. The

water tank falls on the way. The Accused was

behind the water tank and he called out to her to

come there. According to her, she refused. At that

time the Accused came near her and held her hand.

She was holding the water tin of toilet. The tin

was thrown away and the Accused dragged and

dragged her to the Gotha of buffaloes and inside

the Gotha he took her towards left (which would be

towards South of the Gotha). Her evidence is that

she was trying to shout and at that time the

Accused closed her mouth by hand. The evidence is

that the Accused put her down and lay on her. She

was resisting. He pushed her Kurta upwards and

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removed her Salwar and he also removed her under-

wear. Her evidence is that the Accused then

removed his pant and under-wear. The trial Judge

recorded that at the time of such evidence the

witness was crying. The Victim then deposed that

the Accused did everything with her and did

intercourse. She added that the Accused did dirty

job with her. He was fully lying on her person.

She claims that he was lying on her for 5-10

minutes. The evidence is that, thereafter the

Accused gave her, her clothes and she wore the

same. She deposed that complete intercourse was

done. She claimed that after the intercourse, she

could not get up and she had problem in her

private parts. She some how got up and wore her

clothes and went home.

15. Cross-examination of the Victim shows

that when the Accused caught her hands, she did

not shout. She claimed that she sat on the ground

and from the ground "Ghasardat - Ghasardat" i.e.

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continuously dragging, she was taken to the Gotha

by the Accused. Then she slightly changed her

version to say that from the spot from where she

was dragged, she was dragged for only 10 - 15

paces. The cross-examiner asked the Victim but she

claimed that, when she was dragged she did not

suffer any scratches. She further deposed that

when she was being dragged and taken, she shouted

but nobody came running for her help. She deposed

that when the Accused was taking out her clothes,

she had torn the shirt of the Accused. The cross-

examiner asked the Victim and she stated that she

neither clawed him nor bit him. She was asked

again and she still claimed that at the time of

execution of such incident she still did not

suffer any injury. She deposed that even her

private parts did not suffer any injury.

16. I have purposely referred to the details

of the incident from the evidence of the Victim,

as I want to appreciate whether her oral evidence

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inspires confidence when I keep the spot and its

surroundings and the Victim in view (which I have

already discussed). It is quite clear that the

water tank from where the incident is supposed to

have started, was about 100 ft. from the gate of

the Gotha which tank was towards the Northern

side. As per the version of the Victim, after she

was taken inside the Gotha, she was taken towards

the South, which would further add the distance.

The Victim claims that she was dragged over a

distance of more than 100 ft. from near the water

tank to inside the Gotha towards one end. I have

already pointed out that the ground between the

water reservoir and the entrance of the Gotha was

rocky. The evidence also shows that the ground

inside the Gotha was also rough. Although in the

F.I.R. the Victim had mentioned that in the course

of incident her "Odhani" had got torn, in evidence

she gave no such details. Details of the actual

spot shown in the Panchnama where rape was

allegedly done, was also not some bed or a soft

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place. It was a place where the fodder is said to

be put so that the buffaloes can eat the same.

This is not a case where the Victim is suddenly

caught unaware in the room and forcibly put down

on normal floor of a room or bed and is violated.

This is a matter where the Victim claims to have

been dragged for over 100 ft. on rough ground and

claims to have been violated on rough surface

inside the Gotha. If the evidence of PW-7 Dr.

Prakash is perused, he refers to only finding of

one abrasion at fourchette. Though repeatedly

asked, the Victim still wanted to be believed that

in the course of such incident as she was

claiming, she did not suffer any injury to her

person. Although the doctor claimed that there was

abrasion at fourchette, the Victim herself

insisted that she did not suffer any injury even

to her private parts. It shows how negligible the

abrasion at the fourchette was, which the doctor

noted.

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17. Keeping the spot, the built of the Victim

in view, I find it very difficult to accept that

intercourse, if any, could be said to have been

forcibly committed. It just does not stand to

reason as to how forcibly the Victim could have

been dragged over more than 100 ft. and she

neither suffered any injury on her person nor

attracted any attention from anybody around. It

was not an isolated forest area. It was a spot

which, although had open spaces, had small road

towards East and a lane towards the West of the

Gotha. The timing was also of the afternoon. With

school and hotel around and road and lane passing

at short distance having traffic, it is surprising

that nobody was attracted. If there was

resistance, it would not be easy to simply drag a

Victim for more than 100 ft. without attracting

attention of anybody. The Victim claims to have

shouted or tried to shout. The details given by

her regarding removal of her clothes by the

Accused and removal of his own clothes by the

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Accused, would require the Accused using both his

hands and it is simply difficult to accept that at

such times neither the Accused is physically

pushed nor the Victim tries to get away or shout

so as to attract attention, or claw or bite the

Accused. There is no evidence that the Accused

physically beat the Victim or put her under any

threat or intimidation. Keeping these various

factors in view, I am finding it difficult in this

matter to take the Victim on her words. I am aware

of the Judgment of the Hon'ble Supreme Court in

the matter of Aman Kumar and another vs. State of

Haryana, cited supra, that the evidence of the

prosecutrix stands at higher pedestal than the

injured witness. However, in the present matter I

am finding it difficult to accept version of

prosecutrix on its face value. Thus, it would be

necessary to see if there is any other evidence

direct or circumstantial, which could lend

assurance to her testimony.

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18. Regarding the circumstantial evidence,

there is evidence of PW-5, sister of Victim to

whom the Victim claims to have told the incident.

PW-5 claims that when the Victim came back home,

she was crying and she told her that the Accused

had raped her. According to this witness, the

Odhani of the Victim had been torn. She claimed

that the Odhani, Article 4 which was before the

Court, was the same Odhani. In fact this PW-5 went

one step ahead and claimed that Pajama and shirt

of the Victim had also been torn, something which

the Victim did not claim in her evidence and also

in the F.I.R. which she had filed at Exhibit 12.

Then there is evidence of PW-1, the mother of

Victim, who also claims that when she returned

from the market at about 4.30 p.m., she found the

Victim crying and when asked, the Victim told her

that the Accused had dragged her forcibly in

buffalo Wada and raped her. The cross-examination

of PW-5, the sister of the Victim shows that when

the Victim was telling the story of the incident

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of rape, the residents of their Wada came around.

They included one Shashikant Shinde, Arun Waghmare

and Nade. Thus, although the circumstance tried to

be shown is that immediately after the incident

the Victim told about the same to her people at

home and even to the nearby residents, no other

witness is examined except the mother and sister

of the Victim. Although, the Odhani is claimed to

have been torn, the Victim in evidence did not

claim that the Odhani got torn in the course of

the execution of the incident. Although, in the

F.I.R. it was claimed that at the time of

incident, the clothes which the Victim was wearing

got soiled in mud as she was dragged to the Gotha,

the seizure Panchanama of clothes Exhibit 18 did

not record any such fact. The mud on the spot and

the soiling of the clothes in mud is also not

matched.

19. It is to be noted that the incident is

claimed to have taken place at about 3.45 p.m. and

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it is claimed that the mother came home after half

an hour and after some time the brother came and

then the Victim had gone to the Police Station to

file F.I.R. The F.I.R. Exhibit 12 shows that it

was registered by 6.30 p.m. Thus, the evidence

tried to be shown is that almost immediately after

the incident, the Victim had gone to the Police

Station and filed F.I.R. The seizure of clothes of

Victim, Panchanama Exhibit 18 proved by PW-4

Samson shows that clothes (allegedly) worn at the

time of incident were produced by the Victim and

Police seized the same between 6.45 p.m. - 7.30

p.m. on the same day of 20th February, 2000. Thus,

the F.I.R. was registered at 6.30 p.m., and at

6.45 p.m. the Victim had produced the clothes

which were seized. It would show that while going

to Police Station, she carried along the said

clothes. If Exhibit 18 is appreciated, it would

appear that after the incident the Victim changed

her clothes and the clothes worn at the time of

incident were taken along to the Police Station

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where the same were seized immediately on filing

of the F.I.R. Panchanama Exhibit 18 shows seizure

of the Salwar with blood stains. The Kurta was

also said to be having blood stains on the front

lower side and was old and dirty. The underwear

was stated to be having blood stains in the center

and to be old and in use. The original of

Exhibit 18 when perused, shows that while

recording description of the underwear,

subsequently the words have been squeezed in to

show that in addition to blood stains there were

also stains of "semen". The Odhani seized was

recorded as in torn condition. Although, this

seizure Panchanama Exhibit 18 claims that it was

recorded between 6.45 p.m. - 7.30 p.m., the

evidence of PW-6 Investigating Officer P.I.

Vitthal Pawar claims that he seized the clothes of

the Victim only after she came back from the

hospital. Now, the evidence of Dr. Prakash PW-7

read with the Form of Examination of Victim

Exhibit 31 shows that she was examined by the

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doctor at 10.30 p.m. Thus, the oral evidence of

the Investigating Officer does not match with the

seizure Panchanama read with the evidence of the

doctor.

20. Keeping the seizure of clothes Panchanama

Exhibit 18 in view, when I have examined the

letter Exhibit 23 sent by Police to the C.A. along

with the articles seized and considered C.A.

report Exhibit 24, I find that the C.A. recorded

that the underwear had stains of blood and

appeared to be washed. Thus, if the incident had

occurred at about 3.45 p.m. or 4.00 p.m. and by

6.45 p.m. the Victim had given seizure of such

clothes to the Police, when the underwear got

washed and when it got dried is not clear. If the

same had been washed, the seizure Panchanama

Exhibit 18 did not note that it appeared to be wet

or any such thing. If the underwear had to be

washed, it does not appear that the other clothes

were washed, which also it is claimed, suffered

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