Prakash @ Omprakash Anandrao ... vs State Of Maharashtra
2017 Latest Caselaw 1658 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              NAGPUR BENCH : NAGPUR


                       CRIMINAL APPEAL NO.332  OF  2001


Prakash alias Omprakash Anandrao
Derkar, aged about 25 years, 
resident of Sarati, Tahsil Maregaon,
District Yavatmal.                                         ...            Appellant 

                 - Versus -

The State of Maharashtra, through 
the Police Station Officer, Police 
Station, Maregaon, District Yavatmal.                      ...              Respondent
                                   -----------------
Shri  Amol Mardikar, Advocate for appellant. 
Shri H.D. Dubey, Additional Public Prosecutor for respondent. 
                                   ----------------

                                          CORAM :   P.N. DESHMUKH, J.

DATED : APRIL 12, 2017

ORAL JUDGMENT :

This appeal takes exception to the judgment and order

dated 17/10/2001 passed by 2nd Additional Sessions Judge,

Yavatmal in Sessions Trial No.137/1995 whereby appellant

(hereinafter referred to as "accused") came to be convicted for the

offence punishable under Section 376 of Indian Penal Code and is

sentenced to suffer imprisonment for seven years and to pay fine of

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Rs.5000/- and in default of payment of fine, to suffer imprisonment

for six months.

2) The case of prosecution can be stated, in brief, as

follows :

On 7/9/1995 at about 8 p.m. prosecutrix, aged about 16

years, had proceeded towards outskirts of village at a place where

females visited for answering the nature's call. At that time, accused

came from her back side and on pressing her mouth, made her fall

on ground and committed sexual intercourse upon her. It is the case

of prosecution that at that time, P.W.2 Dnyaneshwar and P.W.3

Tulsiram, who were also proceeding to answer the nature's call,

heard shouts and in the source of torch light, found accused

committing sexual intercourse with prosecutrix near babhool tree.

Noticing the light, accused stood up and ran away from the spot and

in that process, lungi, which was on the person of accused, got

released from his person and fell down. P.W.2 Dnyaneshwar and

P.W.3 Tulsiram thereafter reached prosecutrix to her home where,

on enquiry made by P.W.4 Tulsabai, mother of prosecutrix, she

narrated incident to her and within short time thereafter, consumed

poisonous substance for which she was shifted to Rural Hospital,

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Maregaon during night intervening 7/9/1995 and 8/9/1995. Fact of

admission of prosecutrix for above reason was informed by Medical

Officer, Rural Hospital, Maregaon to Police Station Officer, Police

Station, Maregaon and thus, P.W.8 Baliram Dakhore, Investigating

Officer deputed Head Constable Mulmule (Buckle No.1072) to visit

Hospital to record statement of prosecutrix. However, since

prosecutrix was unconscious throughout night, no such statement

could be recorded.

3) On 8/9/1995 Investigating Officer on issuing requisition

(Exh. 47) to Medical Officer to ascertain physical condition of

prosecutrix, recorded her statement (Exh. 31) as she was stated to be

fit to make a statement and thus, recorded her statement vide

Exh. 31 on that day at 7.10 p.m. Before Investigating Officer

reached back to Police Station, P.W.1 Bhaskar, uncle of prosecutrix,

had visited Police Station at 6.35 p.m. and lodged his report

(Exh. 32). On the basis of statement (Exh. 31) made by prosecutrix,

offence punishable under Section 376 of Indian Penal Code came to

be registered vide Crime No. 36/1995 and was further investigated.

4) During the course of investigation, Investigating Officer

visited the spot and on drawing spot panchanama, seized one lungi,

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chappal and other incriminating articles vide panchanama (Exh. 40)

and issued requisition (Exh.47) to Medical Officer, Rural Hospital,

Maregaon to examine prosecutrix and certify if she was subjected to

sexual intercourse and also to ascertain probable age of prosecutrix.

Similar request was also made by issuing requisition (Exh. 26) to

Medical Officer, Women's Hospital, Yavatmal. On recording

statements of witnesses, accused came to be arrested on 9/9/1995

and his clothes were seized vide panchanama (Exh.42). On

11/9/1995 blood samples, slides, pubic hair and clothes of

prosecutrix came to be seized under panchanama (Exhs. 20 and 21)

while blood samples, semen and pubic hair of accused came to be

seized vide panchanama (Exh. 22). On collecting birth certificate of

prosecutrix, since investigation was complete, charge-sheet was filed

in the Court of Judicial Magistrate, First Class, Maregaon. In due

course of time, case was committed to the Court of learned Sessions

Judge for trial.

5) Charge was framed against accused and he pleaded not

guilty and claimed to be tried. The defence of accused is of denial

and false implication. It is the specific case of accused that as

prosecutrix was of bad character, nobody was willing to marry her

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and her parents were thus insisting accused to marry her. However,

since he did not fall prey to their pressure, he is falsely implicated in

the present case.

6) To establish charge levelled against accused, prosecution

in all examined nine witnesses and commenced its evidence by

examining P.W.1 Bhaskar, uncle of prosecutrix, who has proved his

report (Exh. 32), P.W.2 Dnyaneshwar and P.W.3 Tulsiram, alleged

eye witnesses, P.W.4 Tulsabai, mother of prosecutrix, P.W.5 Chagan,

panch on spot panchanama, P.W.6 Purushottam, panch on seizure

panchanama, P.W.7 Vijay in whose presence statement of

prosecutrix (Exh.31) was recorded, P.W.8 Baliram Dakhore,

Investigating Officer and concluded its evidence by examining P.W.9

Dr. Nandkishor Tugnayat.

7) Learned trial Judge on considering evidence, proved

documents on record and defence of accused convicted him as

aforesaid. Hence, this appeal.

8) Heard Shri Mardikar, learned Counsel for accused, and

Shri Dubey, learned Additional Public Prosecutor for respondent.

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9)               On   behalf   of   accused,   it   is   submitted   that   the   case   of

prosecution is full of doubts since its inception, i.e. since recording of

first information report as no explanation is put forth by prosecution

as to why no offence was registered on the basis of report (Exh. 32)

lodged by P.W.1 Bhaskar on 8/9/1995 at 6.35 p.m. nor any

explanation is put forth by prosecution for registering first

information report on the basis of statement of prosecutrix (Exh. 31)

though same was subsequently recorded at 7.10 p.m. on the same

date, i.e. on 8/9/1995. It is further contended that even no

explanation is put forth by prosecution for delay in recording

statement (Exh. 31) at 7.10 p.m. though from the evidence it has

come on record that prosecutrix came to her senses at 12 noon on

8/9/1995. With regard to timing on the statement (Exh. 31),

which is stated to be recorded at 7.10 o'clock in the morning, it is

submitted that case of prosecution is that till 12 noon on that day,

i.e. on 8/9/1995, prosecutrix was unconscious and as such, it was

impossible to record her statement on that day before 12 noon.

There is nothing to establish what steps were taken to record

statement of prosecutrix immediately after she regained senses.

10)              It   is   further   contended   that   evidence   of   so   called   eye





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witnesses is not reliable and convincing as according to evidence of

P.W.1 Bhaskar, both P.W.2 Dnyaneshwar and P.W.3 Tulsiram

informed about incident of rape upon prosecutrix by accused while

they were proceeding to Rural Hospital to admit prosecutrix as she

had consumed poison, while according to evidence of both these

eye witnesses, they had informed P.W.1 Bhaskar about the incident

after they had reached prosecutrix to her home. Evidence of eye

witnesses is also doubted contending that there is material omission

in their evidence regarding their informing P.W.1 Bhaskar about

rape by accused upon prosecutrix, which omission has been duly

proved by Investigating Officer. Similarly, it is contended that

there is absolutely no reason put forth by prosecution for P.W.1

Bhaskar not lodging report till 6.35 p.m. on 8/9/1995 though he

claims to be aware of the alleged incident of rape from P.W.2

Dnyaneshwar and P.W.3 Tulsiram on 7/9/1995 itself in the

night. It is further submitted that report (Exh. 32) came to be

lodged by P.W.1 Bhaskar only after consultation to falsely implicate

accused. It is also contended that according to case of prosecution,

accused was residing 5-6 houses away from the house of prosecutrix

and in spite of that, it is no case of prosecution that either P.W.1

Bhaskar, P.W.2 Dnyaneshwar or P.W.3 Tulsiram had

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visited his house to enquire him about the incident. Learned

Counsel by referring to evidence of eye witnesses has pointed out

certain contradictions, which will be duly considered while

evaluating the evidence on record.

11) By referring to the medical evidence, it is submitted that

prosecutrix was admittedly referred to Rural Hospital, Maregaon for

having consumed poison and not for her medical examination to

rule out possibility of her being subjected to rape and that it is only

after recording statement (Exh. 31), requisition was issued to

Medical Officer to examine her to ascertain if she was subjected to

sexual intercourse and also to ascertain approximate age of

prosecutrix. However, medical evidence does not establish case of

prosecution on any of above counts and it is pointed out that no

evidence establishing age of prosecutrix is brought on record except

for filing on record letter dated 14/9/1995 issued by Head Master of

one School indicating date of birth of prosecutrix as 12/8/1979.

However, nobody is examined to prove said document, which is

clear from the evidence of Investigating Officer.

12)              It is pointed out that admittedly prosecutrix could not be

examined   since   dead   pending  trial.    However,  learned  trial  Court





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wrongly relied her statement (Exh. 31) with the aid of Section 8 of

the Indian Evidence Act, 1872 and without considering the fact that

ample other evidence is not at all convincing, convicted accused and,

therefore, submitted that appeal be allowed.

13) Shri Dubey, learned Additional Public Prosecutor for

respondent, on the other hand, has supported the impugned

judgment and contended that there is ample evidence to establish as

to why no offence was registered on the basis of report (Exh. 32)

recorded at 6.35 p.m. on 8/9/1995 though it is first in point of time

than statement of prosecutrix recorded on the same day at 7.10 p.m.

(Exh. 31). It is contended that though from Exh. 31, time of

recording said document is mentioned as 7.10 o'clock, same has to

be read as 7.10 p.m. and not as 7.10 a.m. as such document cannot

come in existence prior to 12 noon on 8/9/1995 as prosecutrix

regained her senses at 12 noon on that day.

14) It is further contended that from the evidence of both the

eye witnesses, it is established that accused had committed sexual

intercourse with the prosecutrix as they have witnessed such act.

Moreover, presence of accused on the spot is established as lungi,

which was on his person, came to be seized from the spot and

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according to evidence of P.W.4 Tulsabai, she had seen accused

running having underwear and baniyan on his person. It is

submitted that above circumstances clearly establish involvement of

accused in the crime. It is pointed out that statement of prosecutrix

has been duly considered by learned trial Court with the aid of

Section 8 of the Indian Evidence Act, 1872 as according to evidence

of P.W.4 Tulsabai, prosecutrix disclosed about the incident to her

immediately on her reaching home. It is also contended that non

seizure of torch during the course of investigation by itself is not

fatal to prosecution case and for that purpose, has relied upon the

case of State of Orissa vs. Dibakar Naik and others {(2002) 5 SCC

323}. In order to rely upon statement of prosecutrix (Exh. 31),

learned Additional Public Prosecutor has placed reliance upon the

case of Indru vs. State of H.P. (1989 Cri.L.J. 2238) and submitted

that in view of above facts and evidence, appeal be dismissed.

15) In the light of submissions advanced by learned Counsel

for both the sides as aforesaid and considering the undisputed fact of

non examination of prosecutrix, since dead pending trial, evidence

involved in this appeal needs to be evaluated by keeping in mind

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settled legal position that non examination of victim in a particular

case by itself cannot be a ground for acquittal. However, at the same

time, it needs to be considered that there has to be sufficient other

evidence to establish criminal act of accused. As such, mere fact of

non-availability of victim for examination is not fatal to prosecution,

but to establish involvement of accused, it is necessary to minutely

scrutinise the evidence available on record, which in the appeal in

hand is of P.W.2 Dnyaneshwar and P.W.3 Tulsiram, who are heavily

relied by prosecution since they are claimed as eye witnesses to the

incident of rape and in that view of the matter, first it is found

necessary to consider their evidence.

16) Evidence of P.W.2 Dnyaneshwar reveals that at the time

of incident, i.e. at about 8.30 p.m., he along with P.W.3 Tulsiram

was proceeding to answer the nature's call at the outskirts of village

when they heard shouts "Dhava Dhava" of a girl and thus, ran

towards the side from which shouts were coming when they saw that

accused was committing sexual intercourse with prosecutrix and

seeing them, he ran away leaving his lungi and chappal on spot.

Evidence of P.W.3 Tulsiram on this point, when perused, reveals that

while he along with P.W.2 Dnyaneshwar was proceeding to answer

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the nature's call, on hearing shouts "Dhava Dhava", they ran with

torch in their hands and saw accused committing sexual intercourse

with prosecutrix. On their putting torch light, they saw accused to

have stood up and started running when his lungi fell down on the

spot. From the evidence of these two witnesses, it is noticed that

both are claiming that they were armed with torch at the time of

incident, which admittedly is not seized during the course of

investigation and P.W.2 Dnyaneshwar, in fact, has admitted that in

the moon-light it was not possible to see the incident. Similarly,

from the above-stated evidence, it is noted that according to P.W. 2

Dnyaneshwar, when he reached the spot he saw accused committing

sexual intercourse with prosecutrix while according to P.W.3

Tulsiram, in response to shouts, when they ran towards the spot and

lit the torch, in the torch light he saw accused to have stood up and

started running from the spot. P.W.2 Dnyaneshwar has also admitted

that though there was moon-light in the night, as they witnessed the

incident at a distance of 8-10 feet, torch light was necessary.

17) In the cross-examination, P.W.3 Tulsiram has specifically

denied that after hearing the shouts, he lighted his torch in the

direction of shouts. On denying this suggestion, it is found if P.W.2

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Tulsiram was not at all armed with torch, as natural conduct of this

witness, on hearing shouts in the night at lonely place, is to light the

torch if at all he is armed with such torch. However, he in plain

terms has denied that he did light the torch in spite of hearing the

shouts. Above fact is found substantiated when admittedly no torch

is seized from any of these two witnesses.

18) To rely upon P.W.2 Dnyaneshwar and P.W.3 Tulsiram as

witnesses to the incident, it is also necessary to consider evidence of

P.W.1 Bhaskar, who claims to have acquired knowledge of incident

of rape on prosecutrix from these two witnesses when he has

deposed that after P.W.2 Dnyaneshwar and P.W.3 Tulsiram brought

prosecutrix to her home and before she was taken to Rural Hospital

by them, P.W.2 Dnyaneshwar and P.W.3 Tulsiram told him that

accused forcibly committed rape on prosecutrix. However, this

piece of evidence appears to be material improvement made by

P.W.1 Bhaskar so as to establish presence of P.W.2 Dnyaneshwar and

P.W.3 Tulsiram as eye witnesses when in his cross-examination, he

claims to have stated said fact in his statement recorded by Police,

but is unable to assign any reason as to why it was not so recorded.

The defence has got said omission duly proved from the evidence of

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P.W.8 Baliram Dakhore, Investigating Officer when he has clearly

admitted that P.W.1 Bhaskar had not stated that P.W.2 Dnyaneshwar

and P.W.3 Tulsiram told him that accused committed rape on

prosecutrix Mangala.

19) Above evidence when is considered, it is doubtful to rely

upon the same to establish that P.W.2 Dnyaneshwar and P.W.3

Tulsiram had witnessed the incident and in that view of the matter,

there appears much substance when it is suggested to these two

witnesses that since prosecutrix was of loose character and since she

had illicit relations with some other person, they also had kept

watch upon her, which suggestions are denied by them. It was

further suggested to these witnesses that since accused was not

willing to marry prosecutrix while her parents wanted accused to

marry her, on consultation, accused came to be falsely involved in

the present crime.

20) The case of false implication of accused, in fact, is found

to be more probable as against case of prosecution establishing

involvement of accused in this crime, from the evidence of P.W.1

Bhaskar, it has further come on record that he learnt about incident

of rape upon prosecutrix from both eye witnesses on 7/9/1995 after

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9 p.m. As per his evidence, thereafter he along with both eye

witnesses took prosecutrix to Rural Hospital, Maregaon since she

had consumed poison and on 8/9/1995 lodged report (Exh. 32) as

parents of prosecutrix were under mental pressure. Before that, he

has deposed that on the same day, P.W.8 Baliram Dakhore,

Investigating Officer by visiting Hospital recorded statement of

prosecutrix (Exh. 31). Report by P.W.1 Bhaskar (Exh. 32) bears

timing as 6.35 p.m. dated 8/9/1995 while statement of prosecutrix

(Exh. 31) bears time as 7.10 o'clock on 8/9/1995. Considering the

time on Exh.31, it appears that Exh. 31 came to be recorded at

7.10 o'clock, which normally appears to be morning time, on

8/9/1995 as judicial note of this fact can be taken that according to

Police manual, Police officials observe time of 24 hours from 12 a.m.

to 12 p.m. As such, it is also found that time, which is mentioned

on report (Exh. 32), is 18.35 hours, which thus was lodged at

6.35 p.m. If timing mentioned on statement of prosecutrix (Exh. 31)

is to be taken as 7.10 o'clock in the morning, said document does not

inspire confidence to be true as according to the case of prosecution,

as has come on record from the evidence of P.W.8 API Baliram

Dakhore, on 8/9/1995 while he was present in the Police Station, he

received information from Medical Officer about admission of

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prosecutrix in the night and thus, deputed Head Constable Mulmule

to record her statement. However, her statement could not be

recorded as she was unconscious throughout night between

7/9/1995 and 8/9/1995. He has further deposed that on 8/9/1995

he again visited Hospital and issued requisition (Exh. 47) to Medical

Officer, upon which Medical Officer certified that patient was

conscious to make a statement and thus, recorded statement at 7.10

p.m. If evidence of P.W.8 Baliram Dakhore is to be believed

establishing recording of statement (Exh. 31), then there is no

explanation on the part of prosecution as to why no offence was

registered on the basis of report (Exh. 32) lodged by P.W.1 Bhaskar,

which is first in point of time on the same day, of which station

diary entry was taken at serial no. 17/1995 at 6.35 p.m. on

8/9/1995. The only explanation on this aspect as revealed from the

evidence of P.W.8 Baliram Dakhore, Investigating Officer is that after

recording statement of prosecutrix (Exh. 31) in the Hospital, he went

to Police Station where P.W.1 Bhaskar in the meantime had lodged

report (Exh. 32) at 6.35 p.m., which was received by Head Constable

Wamanrao (Buckle No.595), however, on the report of prosecutrix

Mangala (Exh. 31) Crime No. 39/1995 under Section 376 of Indian

Penal Code was registered. Considering evidence as aforesaid, there

17 apeal332.01

appears no explanation given as to what prevented Head Constable

Wamanrao to register offence on the basis of report lodged by P.W.1

Bhaskar.

21) Considering material discrepancies in the evidence of

P.W.2 Dnyaneshwar and P.W.3 Tulsiram as aforesaid, whose

evidence since creates sufficient doubt in the case of prosecution of

their intimating about incident of rape upon prosecutrix by accused

to P.W.1 Bhaskar whose evidence in turn appears to be by way of

material improvement, as omission, which go to the root of the case,

about P.W.1 Bhaskar getting information of incident from P.W.2

Dnyaneshwar and P.W.3 Tulsiram itself is doubtful when

Investigating Officer has admitted that in his statement recorded

during the course of investigation, P.W.1 Bhaskar had not stated

source of his receiving information of rape, case of prosecution

establishing involvement of accused is doubtful. Moreover, no torch

is seized in this case, which aspect appears to be necessary in view of

evidence of alleged eye witnesses, who have admitted that without

source of torch light, though there was moon-light in the night, it

was not possible for them to witness the incident or identify accused.

22)              Similarly, it is noted that prosecutrix was admittedly not





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admitted in the Hospital for being subjected to rape, but since she

had consumed poisonous substance. When she was in the Hospital,

requisition (Exh.26) was issued to Medical Officer for performing her

medical examination to rule out possibility if she was subjected to

sexual intercourse with a request to ascertain approximate age of

prosecutrix and from the medical report (Exh. 27) it is noted that no

injury marks were found present on the person of prosecutrix nor on

her private part though hymen was stated to be old torn. The

Medical Officer has opined that as there were no injury marks on the

person of prosecutrix and as she was found habitual to sexual

intercourse, no definite opinion of rape could be given. From the

medical report, it appears that prosecutrix was referred for x-rays of

her jaws, shoulder joints, wrist joints, elbow joints, knee joints, etc.

to ascertain approximate age by ossification test, however, there is

no such report on record.

23) In spite of Investigating Officer placing on record School

Certificate in respect of date of birth of prosecutrix, nobody from the

School is examined in support of this document. On this aspect,

evidence of P.W.4 Tulsabai, mother of prosecutrix, reveals that she

does not have any document establishing birth date of prosecutrix

19 apeal332.01

and as such, has stated that prosecutrix was admitted in the School

by her father and being illiterate, she is unable to state age of

prosecutrix and whether she was 17 or 18 years old at the time of

incident. Therefore, fact remains that there is no convincing evidence

to hold that prosecutrix was minor on the date of incident.

24) Lastly, with regard to alleged disclosure made by

prosecutrix to P.W.4 Tulsabai, when evidence of P.W.4 Tulsabai is

considered, it has come on record that on the day of incident,

at about 8 p.m. Mangala had gone to answer the nature's call and as

she did not return for considerable time, she was waiting for her

outside the house and saw prosecutrix coming along with P.W.2

Dnyaneshwar and P.W.3 Tulsiram. Her evidence does not establish

that if on arrival in the house, both these witnesses had disclosed

about incident to her since as per her statement, when prosecutrix

came along with P.W.2 Dnyaneshwar and P.W.3 Tulsiram, she took

her inside the house. She has further deposed that on her enquiring

with prosecutrix, she disclosed that she was subjected to rape.

25) In view of above limited evidence, learned trial Court by

applying Section 8 of Indian Evidence Act, 1872, considering

subsequent conduct of prosecutrix to be relevant, convicted accused

20 apeal332.01

without considering the fact that from the evidence of P.W.4

Tulsabai, it has come on record that it is on her enquiry with

prosecutrix, she disclosed the incident. In that view of the matter, it

cannot be said that prosecutrix on reaching home, at the first

available opportunity, made disclosure about incident to her mother

on her own. Provisions of Section 8 of Indian Evidence Act, 1872

would attract only if subsequent conduct of prosecutrix immediately

after the incident establishes that she made disclosure about it to

someone and only in that event, said conduct would be said to be

relevant. In the case of Indru (cited supra) relied by learned

Additional Public Prosecutor, subsequent conduct of prosecutrix was

found relevant in view of provisions of Section 8 of the Indian

Evidence Act, 1872 as in that case, shortly after the gruesome

incident, prosecutrix made disclosure to her mother narrating

circumstances and manner in which she was subjected to rape by

accused while as aforesaid in the case in hand, it is not the case of

prosecution that it is prosecutrix, who, on her own, made immediate

disclosure, but it is noted that it is only on enquiry made by mother

it was informed that she was raped, provisions of Section 8 of the

Indian Evidence Act, 1872 cannot be attracted.

                                            21                          apeal332.01

26)              In that view of the matter, since evidence discussed above

does not inspire confidence, no case can be said to be established by

prosecution against accused beyond reasonable doubt. Hence, the

appeal is liable to be allowed as per following order :

ORDER

The criminal appeal is allowed.

The impugned judgment and order dated 17/10/2001 passed by 2nd Additional Sessions Judge, Yavatmal in Sessions Trial No.137/1995 is quashed and set aside.

Fine amount, if any paid, be refunded back to appellant.

JUDGE

khj