Manohar Dudhram Chouke & Another vs State Of Maharashtra
2017 Latest Caselaw 6448 Bom

                                                    1                             Judg. 220817 apeal 361.03.odt 

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                      NAGPUR BENCH : NAGPUR.

                                             Criminal Appeal No.361 of 2003

                  1]         Manohar Dudharam Chouke,
                             Aged 25 years, R/o. Potgaon,

                  2]         Satyawan Hiraman Dadmal,
                             Aged 19 years, R/o.-Potgaon, 
                             District Gadchiroli.                                         ....  Appellants.

                                                              -Versus-

                 The State of Maharashtra,
                 through P.S.O. Desaiganj, District Gadchiroli.              ....  Respondent.
                 --------------------------------------------------------------------------------------------------
                 Mr.  K.S. Narwade, Counsel for appellants.
                 Mr.  S.B. Bissa, Additional Public Prosecutor for State.
                 --------------------------------------------------------------------------------------------------
                                                                  Coram : Mrs. Swapna Joshi, J.

nd Dated : 22 August, 2017.

ORAL JUDGMENT

This appeal has been preferred against the judgment and order

delivered by the 2nd Ad-hoc Additional Sessions Judge, Gadchiroli on

30-01-2003 in Sessions Case No.33 of 1996, thereby appellant/accused

no.1- Manohar Chouke was convicted for the offences punishable under

Section 341 r/w Section 34 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for one month and to pay a fine of Rs. 200/-,

in default, to suffer further simple imprisonment for seven days.

2 Judg. 220817 apeal 361.03.odt

Appellant/accused no.1-Manohar Chouke was further convicted for

the offence punishable under Section 376 of the Indian Penal Code and

was sentenced to suffer rigorous imprisonment for seven years and to pay

a fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for

three months.

Appellant/accused no.2-Sataywan Dadmal was convicted for the

offence punishable under Section 376 r/w Section 109 of the Indian Penal

Code and he was sentenced to suffer rigorous imprisonment for seven

years and to pay a fine of Rs.1000/-, in default, to suffer further rigorous

imprisonment for three months. The learned trial Judge further directed

that the punishment awarded in above sections shall run concurrently.

2] I have heard Mr. K.S. Narwade, the learned Counsel for the

appellants and Mr. S.B. Bissa, the learned Additional Public Prosecutor for

the respondent-State. I have carefully gone through the record of the

case.

3] The prosecution case, in nutshell, as under :-

The complainant who is the alleged victim of rape is the resident of

village Potgaon. Both the appellants are also the residents of the same

village. On the date of incident i.e. on 18-10-1995, at about 11.00 am, the

prosecutrix had gone to the stream which was situated near the village

Potgaon in order to wash clothes. After washing the clothes at about 12

hours, the prosecutrix was returning towards her village by taking the

washed clothes. When she was on the way, near the bushes the

appellant no.2 Satywan suddenly came on the road from the bushes and

3 Judg. 220817 apeal 361.03.odt

he returned back to the forest area. Thereafter, the appellant no.1 came

on the road and said "give me". At that time, the prosecutrix shouted

and said that she would inform her brother. The appellant threw the

clothes which the prosecutrix was carrying and gagged her mouth by

thrusting a towel in her mouth and he lifted her and took her in the bushes.

The appellant no.1 removed the Saree of the prosecutrix and committed

forcible sexual intercourse with her. At that time, the appellant no.2

caught hold the legs of the prosecutrix. During the said incident, the

bangles which were in the hands of the prosecutrix and her necklace

'Garsoli' were broken. The bids from her necklace were also scattered at

the place of incident. The blouse of the prosecutrix was also torn during

the said incident. After committing the forcible sexual intercourse on the

prosecutrix, both the appellants fled away from that place. The

prosecutrix returned to her house and disclosed the said incident to her

brothers Bali and Raju Raut (PW-3). PW-2 proceeded towards the spot in

order to search the appellants, however, they were not traced. The

prosecutrix then proceeded to the Police Station and lodged her

complaint (Exhibit-24). On the basis of the said complaint, PSI Bapuji

Goirsavale (PW-6) registered the offence. PW-6 carried out the

investigation. He recorded the spot panchanama (Exhibit-27). He

referred the prosecutrix for medical examination. He also referred the

appellant no.1 for medical examination. The clothes of the prosecutrix

were taken charge under seizure panchanama so also the clothes of the

appellant/accused no.1 were also taken charge under separate

4 Judg. 220817 apeal 361.03.odt

panchanama. From the place of incident, the broken bangles and the

bids of necklace were collected by the investigating agency. The clothes

of the victim as well as the appellant/accused no.1 were referred to the

Chemical Analyzer for its analysis (C.A. report at Ex-36). After completion

of the investigation the charge-sheet was filed. The charge was framed by

the learned trial Judge. After appreciating & analyzing the evidence

before the Court, the learned trial Judge has convicted both the accused-

appellants as aforesaid.

4] The learned Counsel for the appellants/accused vehemently argued

that the judgment passed by the learned trial judge is illegal and persevere

inasmuch as the learned trial Judge has overlooked the discrepancies in

the testimony of the witnesses and the fact that medical evidence does not

support the prosecution case. He further submitted that the sole

testimony of the prosecutrix need not be believed as it is not corroborated

by any other evidence. He submitted that as there was rivalry between

the brother of the prosecutrix and the appellants, a false case has been

foisted by the prosecutrix against the appellants/accused.

5] The learned Additional Public Prosecutor for the respondent-State

submitted that the learned trial Judge has rightly convicted the accused as

there is no rule of law that the sole testimony of the prosecutrix could not

be relied upon.

6] In order to appreciate the rival contentions of both the sides, it

would be necessary to go through the testimony of the prosecution

witnesses.

                                                     5                             Judg. 220817 apeal 361.03.odt 

             7]       The prosecution has placed heavy reliance upon the testimony of 

prosecutrix (PW-2). PW-2 deposed that she had gone for washing the

clothes near the stream situated near her village. While returning back, at

about 12 o'clock in the afternoon, she noticed both the accused on the

way. Appellant/accused no.1-Manohar restrained her. He lifted her and

took her behind the bushes. Appellants/accused nos. 1 and 2 asked her

to allow him for to commit sexual intercourse. She refused for the same

and raised an alarm. On this, accused no.1 gagged her mouth by means

of towel. Appellant/accused no.1 made her to fall down into the bushes.

Appellant/accused no.2- Satyawan caught hold of her legs and then the

appellant/accused no.1 raped her. Due to the said act of the

appellant/accused no.2, her necklace (Garsoli) was broken and the bids

of the said necklace were scattered on the ground. Her blouse was also

torn. After the said act was over, both the appellants/accused fled away

from that place. After the incident, by taking washed clothes, the

prosecutrix proceeded to her house. As she was weeping, one Balu

Raut met her near the house and she disclosed the incident to him.

Thereafter, the prosecutrix returned to her house. She narrated the

episode of the unfortunate incident to her brother Raju Raut (PW-3).

Raju proceeded to the place of incident to search the accused persons,

however, they were not found there. Thereafter, the prosecutrix

proceeded to the Police Station and lodged her complaint (Exhibit-22).

During the cross examination it was suggested to the prosecutrix that, on

the date of incident, in the evening, there was quarrel between

6 Judg. 220817 apeal 361.03.odt

appellant/accused no.1- Manohar and her brother Raju. The said

suggestion was denied by the prosecutrix and she further denied that due

to the said quarrel she had lodged a false complaint against the accused

persons. It was also further suggested to the prosecutrix that she lodged

the complaint as per the instructions of Girsavale Saheb. The prosecutrix

also denied the same. The testimony of the prosecutrix is not shaken in

cross examination. The contents in the FIR Ex.-24 were in consonance

with the testimony of PW-4. Her testimony was found to be trustworthy

and not shrouded with any doubt. The testimony of the prosecutrix is

supported by the evidence of her brother Raju Raut (PW-3).

8] PW-3 deposed that, on 18-10-1995, his sister returned home from

the stream with washed clothes. At that time, the prosecutrix informed to

him that appellant/accused no.1-Manohar had forcibly committed sexual

intercourse with her and at that time accused no.2 caught hold of her.

On hearing this, PW-3 along with Baliram proceeded to the place of

incident. They went to the bushes in the forest, which was at a distance

of half kilometer from their village. His sister (prosecutrix) also

accompanied them. They noticed the articles i.e bangles and bids of

necklace at that place. Appellant/accused no.1-Manohar and

appellant/accused no.2- Satyawan were present in another field. As soon

as they saw PW-3 and Baliram they fled away from that place. Thereafter,

PW-3 along with prosecutrix proceeded to the Police Station. Prosecutrix

lodged complaint against the appellant/accused persons. It was

suggested to PW-3 during the cross examination that on the date of

7 Judg. 220817 apeal 361.03.odt

incident quarrel took place between him and appellant/accused no.1-

Manohar and appellant/accused no.2-Satyawan. However, PW-3 denied

the said suggestion. It was further suggested to PW-3 that

appellant/accused no.1- Manohar had gone to the Police Station for

lodging report against them however as they came to know about the said

fact, a false report was lodged by them against the appellant/accused due

to fear of the prosecution against him. The testimony of PW-3

corroborates with the testimony of PW-2 on material aspect and nothing

adverse is elicited during his cross examination. PW-1 has narrated the

incident to her brother immediately after the incident.

9] The prosecution further examined panch witness Dayaram (PW-4)

in whose presence the spot panchanama was drawn. He stated that the

place of incident was at a distance of about 500 to 700 feet from the

stream. PW-4 has categorically stated that the broken pieces of bangles

and a broken neckless were found on the spot. Those were taken charge

by the Police under panchanama (Exhibit-27).

10] As far as the medical evidence is concerned, the prosecution has

relied upon the medical certificate dated 21-10-1995 of PW-2 (Exhibit-19).

The medical certificate (Exhibit-19) depicts that the hymen of the

prosecutrix admitted 2/ 3 fingers and the vaginal canal was roomy. As

per the opinion of the medical officer, the girl was habituated to sexual

intercourse as there were no injuries on her body. No doubt the medical

certificate does not throw any light on the aspect of forcible sexual

intercourse as such. However in this regard it may be mentioned here that

8 Judg. 220817 apeal 361.03.odt

even assuming that PW-1 was habituated to sexual intercourse, however

that does not give any licence to the appellants to commit rape on her.

11] The Medical certificate (Exhibit-20) dated 21-10-1995 of the

accused indicates that the appellant/accused was capable of performing

sexual intercourse. Smegma was present on corona glands. The Medical

Officer noticed that abrasion over infra scapullar region was present,

oblique in direction scar present, size 2x ¼ inch and the age of injury was

72 hours old. The presence of injuries on his body indicate that

appellant/accuse no.1 had received injuries during the course of forcible

sexual intercourse.

12] On careful scrutiny of the testimony of prosecution witnesses, it is

observed that the testimony of all the witnesses is not shaken and

remained unshattered in cross examination on vital aspect. The

suggestion given by the defence about the quarrel between

appellant/accused no.1-Manohar and PW-2 and PW-3 does not find to be

any way related to the lodging of complaint against the accused persons,

as per the suggestion and even as per the testimony of Keshao (DW-1).

The quarrel had taken place on the date of incident in the evening hours

whereas the alleged incident of rape had taken place in the afternoon at

about 12 o'clock in the noon. Apart from the suggestion that there was a

quarrel between PW-2 and PW-3 and accused no.1, there is absolutely no

evidence on record to show that there was convincing reason for the said

quarrel. Under normal circumstances, a victim of rape would not level

false accusation of rape, by putting her reputation at stake. Moreover,

9 Judg. 220817 apeal 361.03.odt

there was no reason for the prosecutrix to level a false allegation of

abetment to commit rape against the appellant/accused no.2.

13] So far as the lodging of the complaint is concerned, in my opinion,

there was no delay as such in lodging complaint as the alleged incident

had taken place around 12 o'clock in the noon, thereafter, the prosecutrix

returned to her house which is situated at a distance of about half a

kilometer from the place of incident. She immediately disclosed the

incident to her brother (PW-3). Thereafter, they came back to the place of

incident. As soon as the prosecutrix has pointed out the place of incident

to her brother, they saw both the appellants/accused near the place of

incident. The moment the appellant/accused saw PW-3 and prosecutrix,

they fled away from that place. Thereafter, during the same night the

prosecutrix along with her brother proceeded to the Police Station and

the complaint came to be lodged.

14] In case of Tulsidas Kanolkar vs. State of Goa, reported in

(2003) 8 SCC 590. it is held by the Hon'ble apex Court that the delay in

lodging of the first information report cannot be used as a ritualistic

formula for discarding the prosecution case and doubting its authenticity.

15] In case of State of Punjab vs. Gurmit Singh and others, reported

in (1996) 2 SCC 384, it was observed by the Hon'ble apex Court that, the

Courts cannot overlook the fact that in sexual offences delay in the

lodging of the FIR can be due to variety of reasons particularly the

reluctance of the prosecutrix or her family members to go to the police

station and complain about the incident which concerns the reputation of

10 Judg. 220817 apeal 361.03.odt

the prosecutrix and the honour of her family. It is only after giving it a

cool thought that a complaint of sexual offence is generally lodged.

16] As far as the medical evidence is concerned no doubt the medical

evidence does not in any manner indicate that the prosecutrix was raped.

However, only because the medical evidence does not support the

prosecution case, it cannot construed that no sexual intercourse had

taken place with the prosecutrix at that point of time, as alleged by her. It

is well settled that even the sole testimony of the prosecutrix without any

corroboration of medical evidence can be relied upon if is found to be

cogent, clear and trustworthy.

17] It is significant to note that the medical certificate of the accused

(Exhibit-20) indicates that the accused was capable of performing sexual

intercourse. Abrasion over infra scapular region was present, oblique in

direction scar present, size 2x ¼ inch and the age of injury was 72 hours

old. The accused failed to explain as to how he had received such

abrasion on his body. It appears that at the time of incident, the accused

received such injuries on his body. So far as the finding of Smegma on

corona glands, it is of less important as it looses its importance after 24

hours of the performance of sexual act.

18] In case of Aman Kumar and another vs. State of Haryana,

reported in (2004) 4 SCC 379, Hon'ble apex Court has held as under :-

"5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a

11 Judg. 220817 apeal 361.03.odt

higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice."

19] In the instant case also, when the prosecutrix, after washing the

clothes was returning towards her village by taking the washed clothes,

the accused found her alone on the street. Taking disadvantage of the

said fact, the appellant/accused persons committed rape on her. So far

as the appellant/accused no.2 is concerned, he has abetted the said

offence, by facilitating the commission of rape, by catching the legs of the

prosecutrix. In view of the facts and circumstances, it can be safely said

that the prosecution has proved its case beyond reasonable doubt. The

State has not preferred any appeal for enhancement of punishment. The

learned trial Judge has rightly convicted the accused no.1 for the offence

punishable under Section 341 r/w Section 34 and Section 376 of IPC and

appellant/accused no.2 for the offence punishable under Section 376 r/w

Section 109 of the IPC.

20] At this stage, Mr. Narwade the learned Counsel for the appellants,

requested for four weeks time for surrendering the appellants before the

trial Court. The request made by the learned Counsel for the appellants is

granted, as the appeal is pending in this Court since long.

                                                     12                             Judg. 220817 apeal 361.03.odt 

             21]      In   view   of   the   facts   and   circumstances,   the   following   order   is 

             passed:-

                                                                    O r d e r

                      (a)       Criminal Appeal No. 361 of 2003 is dismissed.

                      (b)       The judgment and order dated  30-01-2003 delivered 

                                by   learned   2nd  Adhoc   Additional   Sessions   Judge,  

                                Gadchiroli   in Sessions Case No.33 of 1996 stands  

                                confirmed. 

                      (c)       The   sentence   of   appellant/accused   no.1-Manohar  

Chouke for the offence punishable under Section 341

read with Section 34 and Section 376 of IPC and the

sentence of appellant/accused no.2-Satyawan

Dadmal for the offence punishable under Section 376

read with Section 109 of the IPC is maintained.

(d) The appellants are on bail. Their bail bonds stand

cancelled. They are directed to surrender before

the learned Adhoc Sessions Judge, Gadchiroli to

undergo the remaining period of sentence. If they do

not surrender within a period of four weeks from

today, the learned trial Court is directed to take

appropriate action in accordance with law.

(e) Muddemal property be dealt with as directed by

trial Court after the appeal period is over.

Deshmukh                                                                                                   JUDGE