Shri. Naval Jatan More vs The State Of Maharashtra & Anr
2016 Latest Caselaw 2660 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.372 OF 2015




                                                 
     Shri Naval Jatan More,
     Age-49 years, Occu:Agriculture,
     R/o-Satare, Tq-Sindkheda,
     Dist-Dhule.




                                         
                                     ...APPELLANT 

            VERSUS             
                             
     1) The State of Maharashtra,   
                            
     2) Smt. Surekha Anil Bhil,
        Age-27 years, Occu:Household,
        R/o-Pimpral, Tq-Sindkheda,
        Dist-Dhule.   
      

                                     ...RESPONDENTS
   



                          ...
        Mr. Shrikant S. Patil Advocate for  Appellant.
        Mr. A.M. Phule, A.P.P. for Respondent No.1. 
                          ...       





                   CORAM:   A.I.S. CHEEMA, J.

        DATE OF RESERVING JUDGMENT  : 4TH MAY,2016.  





        DATE OF PRONOUNCING JUDGMENT: 9TH JUNE, 2016.
                                      

     JUDGMENT :

1. This Jail Appeal is by Appellant-

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original accused (hereafter referred as "accused")

against his conviction in Sessions Case No.121 of

2013, awarded by Additional Sessions Judge, Dhule

on 26th December 2014. The accused has been

convicted to ten years rigorous imprisonment under

Section 376 of the Indian Penal Code, 1860 ("IPC"

in brief), and fine of Rs.5000/- and in default to

suffer further simple imprisonment for two months.

He has also been convicted under Section 201 of

IPC to rigorous imprisonment of three years and

fine of Rs.1000/- and in default, to suffer

further simple imprisonment for ten days. Under

Section 506 of the IPC, he has been convicted to

suffer rigorous imprisonment for two years. All

the sentences were directed to run concurrently

and the fine amount, if realized, has been

directed to be paid to the prosecutrix as

compensation. Thus, this Appeal.

2. In a nut-shell, the case of prosecution

can be stated to be as follows:-

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(A) Prosecutrix in this matter is a rustic

villager of Pimpral, Tq-Sindkheda. I will refer to

her as "victim". To conceal her identity, I will

refer to her husband by merely using the word

"husband". The victim filed First Information

Report (FIR) with Sindkheda Police Station on 10th

April 2013 at 7.30 p.m. and Crime No.33 of 2013

came to be registered under Section 376, 506 of

IPC. The victim reported that:

. She reported that along with her husband

and mother-in-law she was residing at Pimpral and

doing agricultural labour work. Inspite of passage

of one year after marriage, she did not conceive

and her husband told her that wife of one of his

friend Vinod Damu Bhil was also not conceiving and

they had gone to Naval Jatan More (Bhil) (Bhagat)

(accused) residing at Satare, Tq-Sindkheda and the

said Naval Maharaj (reference is to accused) gave

one bath to the wife and she was blessed by a son.

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The husband stated that they will also go to

Satare to said Naval Maharaj and meet him and she

can be given bath. Consequently, she and her

husband, both went on the eve of Dandi Pournima to

Satare and she was given first bath by said Naval

Maharaj. Thereafter they were called at the time

of Holi, at which time second bath was given. They

were then told to come on 9th April 2013. They came

back to Pimpral.

. FIR states that on 9th April 2013, the

victim along with her husband reached Satare in

the evening by 6.00 p.m. They went to the hut,

which is near Navnath Maharaj Temple. There, the

accused along with his family was present. They

had food there and slept at 10.00 p.m. The couple

slept on a cot outside the hut. Thereafter on 10 th

April 2013 in the early morning at about 4.00 a.m.

on the say of accused, victim and her husband got

up. The accused was standing near the victim and

he gave a lemon in her hand and asked her husband

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to wait there itself and that he will go and give

bath to the victim. Thereafter the accused started

walking ahead and the victim followed him. They

reached nearby field where there was a drum and

accused filled up a bucket of water and took her

to well which is near the hillock. At about

4.30 a.m., the accused took the lemon from her

hand and asked her to lie down on the ground and

asked her if she wants a son or daughter. She

stated that she wants a son. Thereafter accused

removed his undergarment and told her not to shout

or else he would throw her in the well. Then he

pushed her saree upward and slept on her person

and committed intercourse. He had kept his hands

on her mouth and forcibly committed intercourse.

Thereafter he poured water, which was in the

bucket, on her head and told her that if she tells

the incident to anybody, she and her husband would

be killed by him. Then he asked her to go near the

field to the place where water drum was there and

asked her to take bath. The victim got afraid and

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went near the drum and took bath and washed the

clothes she was wearing and wore another saree

which she had brought along. Then they came back

near the hut which is near the Navnath Maharaj

Temple. The accused then asked the couple to go

home and come back again on Monday. FIR mentions

that the couple then started to come back. They

started to go to Lamkani village and reached there

at 10.00 a.m. when she started crying loudly and

the husband asked the reason. She told him that

Naval Maharaj (accused) had forcibly committed

rape on her and that he had threatened her that he

will not let her and her husband remain alive if

the incident is told to anybody. They then went to

Pimpral and the incident was told to the mother-

in-law and others like Latabai Sajan Bhil, Revba

Totaram Bagul etc. (as mentioned in FIR). They had

then come to the police station to file the FIR.

(B). The FIR (Exhibit 15) as above was

registered by A.P.I. Arjun Patle (PW-5). Arjun

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Patle then went to the spot and early morning did

Panchnama. At the spot, he found pieces of bangles

and lemon, which was lying there. The Spot

Panchnama Exhibit 31 was recorded. Going back to

the police station, the clothes of the victim were

seized vide Panchnama Exhibit 9. The victim was

referred to the hospital. The accused came to be

arrested. Further investigation was done by P.I.

Deoram Gaoli (PW-4). The said P.I. recorded

statements of witnesses. The accused gave

discovery of the clothes he was wearing at the

time of incident and the same were seized vide

Memorandum of Panchnamas Exhibit 29 and 30. The

accused was also got medically examined. The

medical certificate of accused (Exhibit 8) and the

medical certificate of the examination of victim

(Exhibit 7) were obtained. After investigation,

charge-sheet came to be filed.

3. Against the accused, earlier charge was

framed under Section 376 and 506 of IPC. After

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partly recording the examination-in-chief of the

victim, the charge came to be altered to add

offence under Section 201 of IPC also relating to

destruction of evidence. The accused pleaded not

guilty. His defence is of denial. It is also

suggested to the witnesses that there was a

quarrel between the accused and the husband of

victim regarding payment of money and thus false

case has been filed.

4. Before the trial Court, evidence of five

witnesses came to be recorded and the trial Court,

after considering the evidence, found the accused

guilty as mentioned above and convicted and

sentenced as recorded.

5. The Appellant - accused has filed this

Appeal contending, and the learned counsel for the

accused has argued that for the conviction there

were no sufficient and cogent reasons recorded by

the trial Court. The husband has also not been

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examined by the prosecution. The victim accepted

that there was a quarrel between her husband and

the accused over the fees of Bhagat and her

evidence shows that except that, no other incident

took place on the said day. The victim accepted

that she was not aware what was written in the

FIR. In the medical evidence, it was found that

the victim was habituated to intercourse and there

was no injury to her private part. In the other

evidence, no blood stains or stains of semen were

found either on the clothes of the accused or on

the clothes of the victim. PW-3 Revba Bagul, the

neighbour examined, could not have personal

knowledge of the incident. PW-3 Revba admitted

that the husband had told that he was abused and

assaulted by the accused. It has been argued by

the learned counsel that there is no incriminating

evidence other than oral version of the victim.

The doctor gave evidence that the rape may have

taken place or may not have taken place. For such

reasons, according to the learned counsel, the

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accused is entitled to benefit of doubt and he

should be acquitted.

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

that there was no reason to disbelieve PW-1 -

victim. She belongs to rural area and is

illiterate labourer working in the fields. Her

evidence needs to be appreciated keeping these

facts in view. According to the A.P.P., it is

unlikely that such a rustic woman from rural

background or her husband would simply implicate

the accused only because there was some quarrel

regarding the fees of Bhagat. It is stated that

the accused was taking disadvantage of illiteracy

of the rustic women and purported as if he can

help them to conceive. The rape has been

established and the conviction needs to be

maintained.

7. It is now necessary to consider the

evidence to see if the prosecution proved the

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offence beyond reasonable doubts and if the

conviction and sentence as awarded, is liable to

be maintained or requires to be interfered with.

8. Crucial evidence is that of the victim

herself. She deposed as PW-1. Her evidence is that

she was residing with her in-laws and brother of

her husband together. Her marriage had taken place

1 ¼ year before the incident but she did not have

any issue and she wanted a child. Her husband also

wanted that they should have children. Friend of

her husband, namely, Vinod told them that there is

good Bhagat and if contacted to him, the wives

conceive. The friend told that Bhagat gives bath

to ladies and thereafter ladies conceive. The name

of Bhagat was told to the husband by the friend.

9. Victim stated that in view of such

information from the friend of the husband, she

and her husband went to the village Satare at the

hut of said Bhagat. It would be appropriate to

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keep in view the location of the said hut. The

evidence of the victim shows that the said hut is

situated outside the village. There is a hillock

and well near the hut. There is temple of Navnath

Maharaj near the hut. Her cross-examination shows

that the temple of God Navnath is at the outskirts

of the village Satare where the accused used to

sit. She admitted in the cross-examination that

accused used to perform all his religious

activities at the said place. The Spot Panchnama,

which came to be admitted, shows that the hut was

in the field belonging to the accused, which field

was situated behind the temple of Navnath Maharaj.

The victim had showed the Panchas the hut and from

there the spot in field which was behind the hut

and where the plastic drum was kept on the way

towards the hillock from where the bucket of water

had been filled. The victim showed that the well

was further ahead and she took the Panchas to the

said spot. From the spot, broken bangles of red

colour were found as well as lemon was seized.

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10. It is thus clear that it was an isolated

spot where the hut was situated and at some

distance, on the way towards the hillock, there

was a water drum kept. This was behind the said

hut. Further away, there was a well near the

hillock where the actual incident took place.

11.

Evidence of the victim shows that they

had gone to such hut of the victim, firstly at the

time of Dandi Pournima when he gave bath to her.

Second occasion was at the time of Holi when they

were called and again the accused had given bath

to her. They were then called on the date of 9th

which was the third visit. Victim stated that on

such 9th date, they reached Satare village in the

evening and went to the hut of the accused. She

identified the accused in the Court. Her evidence

is that she and her husband stayed at the hut of

the accused and took dinner there and slept in the

hut of the accused. She deposed that the accused

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got up about 4.00 a.m. and told her husband to

stay at the hut itself and that he was taking her

for bath. At that time, accused gave lemon to her.

Then the accused was walking ahead and she was

following him. The accused took out water from the

drum in bucket and took her near the well.

Regarding the incident, the victim then deposed

that the accused caught her and made her to lie on

the ground and removed his undergarments and

pushed up her saree. She deposed that he

threatened that if she shouts, he would throw her

in the well and would kill her husband. She

deposed that accused pressed her mouth and the

evidence further shows that he committed

intercourse. Her evidence is that after such act,

accused poured water from the bucket over her

person and sent her near the drum of water and

directed her to take bath and to wash the clothes.

She deposed that she accordingly took bath and

washed the clothes and then she was taken to the

hut. The evidence is that the accused committed

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the act against her wish and she was feeling

ashamed. The accused then told the husband to

bring her back on Saturday. She deposed that she

and her husband then left by foot and came to the

village Satare. It is deposed that she was weeping

and her husband asked the reason and she told the

incident. The evidence then discloses that the FIR

came to be filed. She deposed that the FIR was

recorded as per her say and the contents were

correct and she had signed it. The document was

proved at Exhibit 15. The evidence shows that she

was got medically examined and her clothes were

also seized, which she identified in the Court.

12. The victim is corroborated, regarding her

subsequent conduct, by PW-3 Revba Bagul. Amongst

other names, the name of Revba finds reflection in

the FIR Exhibit 15. PW-3 Revba deposed that the

victim resides opposite his house and on 10 th April

2013 he found that she was weeping in her house

and they all gathered in her house and on inquiry,

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they came to know about the incident. His evidence

shows details of what the victim told regarding

the incident. The victim told the people who had

gathered, that the accused had committed rape on

her and she wanted to file complaint against the

said Maharaj (accused) in police station but she

is afraid and so they all should accompany her. He

deposed that they went along with victim and she

gave details of the incident to the police and

police recorded her complaint as per her say.

13. Thus, although the husband of the victim

has not been examined by the prosecution, the

victim finds corroboration to her immediate

subsequent conduct after the incident, as to how

the FIR came to be filed.

14. There is no dispute regarding the fact

that when PW-2 Dr. Shital Deore examined the

victim on 11th April 2013, she did not find any

injury to her private parts. The victim was also

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found to be habituated to sexual intercourse. But

then she is a married woman. The C.A. Reports of

the clothes of the victim also did not reveal any

semen or blood. Blood and semen were not found on

the clothes of the accused also. Memorandum of

Seizure Panchnamas Exhibit 29 and 30 relating to

seizure of clothes of the accused were admitted by

the accused. The clothes of the accused were

seized after some days on 16th April 2013. The

accused, who made the victim to take bath as well

as wash her clothes, must have washed his own

clothes also and naturally chemical analysis did

not reveal any traces of semen. Looking to the

details of the incident, if blood was not found,

that would also not be surprising. The doctor

herself deposed that if the person takes bath

after sexual intercourse, the stains of semen will

be washed away and the semen in vagina would also

be washed away if the bath is taken in lying down

position. Naturally the doctor deposed that rape

might have been or might not have been committed

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on the victim. She accepted that if there was

slightest opposition, there could be possibility

of injury to the private part.

15. Learned counsel for the accused has

argued that all the above evidence would show that

there was no resistance. However, I find that on

the face of evidence, the victim was gullible

rustic villager who, within one year of marriage,

became so anxious for children and on the say of

husband came up to the accused as if he was some

Bhagat who would solve their problems. Merely by

such evidence, consent cannot be presumed. There

is evidence of the victim that the accused had

threatened her to throw in the well and to kill

her husband and had even pressed her mouth while

committing the intercourse. The accused himself

poured water on her person and further made her to

take bath and wash her clothes. Because of all

this, naturally the evidence of semen, if it fell

on the clothes, would get washed away. Accused

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appears to be aware as to what is the benefit in

his favour of taking bath by woman after such

intercourse is committed.

16. It is interesting to read the cross-

examination of the victim. She gave certain

admissions to the counsel for the accused, benefit

of which is being tried to be taken by the

accused. The trial Court discussed the cross-

examination of the victim in Para 17 of its

Judgment. Trial Court firstly referred to the fact

that the evidence of the victim was required to be

adjourned mid-way due to alteration of the charge

and as medical officer was not yet examined, and

final opinion regarding rape had not been received

after C.A. Report had come and the accused came up

with some plea for adjournment. Consequently,

there was time gap and the examination-in-chief

which was recorded on 16th August 2014, was

completed on 18th October 2014 when the cross-

examination was also recorded. The trial Court has

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discussed the admissions given by the victim, but

still did not agree with the counsel for the

accused to read the evidence in a manner which

would say that there was only quarrel on the day

concerned and no rape took place.

17. I will now refer to the cross-examination

of the victim.

a) In the cross-examination, victim admitted

that it was true that prior to the incident, 4-5

times she had visited the house of Bhagat for

taking treatment for infertility and always her

husband used to accompany her. She visited 3 times

or 4-5 times, would not be of material

consequence.

b) She admitted that every time the accused

used to take Rs.300/- to Rs.400/- from her husband

for treatment charges. She further admitted that

even after 4-5 visits to the accused, she did not

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conceive and on the day of incident also the

accused had asked them to come after one month.

She accepted that accused poured one plate of

water on her person and asked the husband to pay

Rs.300/- and because of which there was quarrel

between her husband and accused and they assaulted

each other.

.

The FIR Exhibit 15 shows that the husband

had been told by his friend that by just one bath

wife of his friend had conceived. If this fact is

kept in view, it is natural that the husband of

victim may have got annoyed when, after a couple

of visits and payments on each occasion also, the

accused was asking that the victim should be

brought back again. This may have led to some

quarrel. PW-3 Revba has also deposed in cross-

examination that on the concerned day the husband

told him that the said Bhagat had assaulted and

abused him. Even if such cross-examination is kept

in view, it would be undisputed fact that accused

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was indeed calling women for giving bath,

misguiding people that by his giving of bath the

woman would conceive. Even if such quarrel did

take place, it is not at all appealing that such

victim and her husband from rural background,

would go to such an extent so as to make

allegations which would cause the victim to be

looked down upon in the society even if she was

not at fault. The Hon'ble Supreme Court in such

context in the matter of Bharwada Bhoginbhai

Hirjibhai vs. State of Gujarat, (1983) 3 Supreme

Court Cases 217, observed in Para 10 as under:-

"10. By and large these factors are not relevant to India, and the Indian

conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just

enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or

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two and that too possibly from amongst the

urban elites. Because (1) A girl or a woman in the tradition-bound non- permissive society of India would be

extremely reluctant even to admit that any incident which is likely to reflect on her chastity had even occurred. (2) She would be conscious of the danger of being

ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the

risk of losing the love and respect of her own husband and near relatives, and of her

matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult

to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture

and suffering to herself. (7) The fear of being taunted by others will always haunt

her. (8) She would feel extremely embarrassed in relating the incident to to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large

sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also

the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some

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way responsible for the incident

regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court,

to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."

. The Hon'ble Supreme Court observed that

in view of such factors victims and relatives are

not too keen to bring the culprit to books and

when in the face of these factors the crime is

brought to light there is a built-in assurance

that the charge is genuine rather than fabricated.

Thus no undue weight can be given to the quarrel

on count of fees as alleged.

(c) Although in the cross-examination of the

victim, she accepted that the accused poured one

plate water over her person and thereafter

demanded Rs.300/- from her husband, this cannot be

read to mean, (as the accused wants) that only one

plate of water was poured on her person. The

cross-examiner after taking admission regarding

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the quarrel and the husband getting annoyed, put

to the victim and she accepted that on that day

only this much incident had taken place and

thereafter they had returned. It is then being

argued that it would show that the accused had

only poured a plate of water on the person of the

victim and asked for fees and so the quarrel took

place and only that much incident occurred. I do

not wish to close my eyes to the fact that the

victim is a rustic farm labourer from rural area.

Although she has written her name below the FIR,

it can be hardly said to be a signature and it is

mere writing of her name by her and the manner in

which the name is written, shows that she may or

may not be literate and one does not know if she

can write any further. Even if she were literate

to some extent, by such cross-examination, one

cannot read between the lines to say that there is

admission that there was no rape. No question was

put to the victim referring to her examination-in-

chief that what she had stated that she was raped

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was not true. Without denying the specific

evidence in the examination-in-chief giving

various details as to how she came to be raped,

such conclusions from cross-examination cannot be

drawn by reading between the lines that rape did

not take place. It would be construing the

evidence wrongly if such effort is made.

(d)

In the cross-examination the victim

further admitted that "it is true that my husband

disclosed all the facts to police, police wrote

down it and then the police obtained my signature

on the complaint". The accused is trying to take

advantage of this to claim that it was the husband

who gave such FIR and not the victim.

. Firstly, I find that it is a compound

sentence which was put to this rustic witness. One

does not know as to on which part of the question,

stress was laid so as to distract the witness to

concede admission. Apart from this, it may have

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happened that the husband may also have disclosed

the facts. It does not mean that the victim

accepts that she did not tell the facts. The later

part of the sentence was naturally undisputed that

the police did write down and did obtain her

signature on the complaint. The attention of the

witness may have been on this part.

(e)

Similarly, the admission of the victim

that on the day of her evidence she was not aware

as to what was written in the complaint, would

only be a memory test. This is so specially when

the complaint is not being read over to her at the

time of cross-examination.

18. For such reasons, I agree with the trial

Court with its observations in Para 17 of the

Judgment that in the cross-examination of the

victim there is no specific suggestion given to

her as to why she has stated in her examination-

in-chief regarding the incident and that only

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general suggestions were given to the victim that

nothing else happened on the day of incident.

Trial Court noted that the victim has not

specifically stated that the details of incident

which were deposed by her on oath are false or

that she had deposed those contents on the say of

her husband. Regarding the FIR, trial Court found

that the victim was also corroborated by PW-3

Revba who had stated that he had also gone along

with the victim and at the police station the

victim had given details of the incident to the

police.

19. For reasons discussed above, I do not

find that there is any substance in this Appeal.

Considering the evidence which is available on the

record, and the reasons recorded by the trial

Court, there is no doubt that the offence against

the accused has been established beyond reasonable

doubts. The accused has been rightly convicted.

The sentences as passed are also in order.

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20. There is no substance in the Appeal. The

Appeal is dismissed.

[A.I.S. CHEEMA, J.]

asb/MAY16