Sewanand Kusan Borkar vs The State Of Mah
2017 Latest Caselaw 6530 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.231 OF 2002


 Sewanand s/o. Kusan Borkar
 aged about 22 years,
 R/o. Kawalewada,
 Police Station Tumsar,
 District Bhandara                                          ....... APPELLANT


                                   ...V E R S U S...

         
 The State of Maharashtra,
 Through Police Station Officer,
 Tumsar, Tahsil Tumsar,
 District Bhandara.                                         ......RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. N.M. Gulhane, counsel for appellant.
 Mrs. Mayuri Deshmukh, Addl. Public Prosecutor for respondent.
 -------------------------------------------------------------------------------------------

                                           CORAM:            ROHIT B. DEO, J. 

                                           DATE:                th
                                                             24    AUGUST, 2017.


 ORAL JUDGMENT

 1                The appellant seeks to assail the judgment and order

dated 5.4.2002, delivered by the Additional Sessions Judge,

Bhandara, in Sessions Trial 82 of 1996, by and under which

appellant (hereinafter referred to as the accused) is convicted for

offence punishable under sections 376 and 506 of the Indian Penal

Code and is sentenced to suffer rigorous imprisonment for a

period of 5 years and to additional payment of fine of Rs. 2500/-

for offence punishable under section 376 of the Indian Penal Code

and to suffer rigorous imprisonment for a period of six months and

to additional pay fine of Rs. 500/- for offence punishable under

section 506 of Indian Penal Code.

2 Heard learned counsel Mr. N.M.Gulhane for the

accused and learned Mrs. Mayuri Deshmukh for the State.

3 The gist of the prosecution case is that:-

The prosecutrix Champabai of village Mayakepar, Tahsil

Tirodi, District Balaghat alongwith her mother Kamlabai and

younger brother Kaushal visited village Kawlewada, Tahsil

Tumsur, District Bhandara, to attend the marriage of the daughter

of PW3 Laxmichand. The prosecutrix stayed at the house of her

maternal aunt. The accused, who is resident of the village

Kawalewada and was a regular visitor to the house of the maternal

aunt of the prosecutrix befriended the prosecutrix. In the night of

2.5.1999, when the prosecutrix was asleep in the courtyard of the

house of her maternal aunt, alongwith other relatives, the accused

pressed her mouth and dragged her to an orange orchard, forced

her to lay down, undressed her and had a sexual intercourse. The

case of the prosecution is that the prosecutrix was forced to

succumb due to the threats issued by the accused. The

prosecution further alleges that the accused also told the

prosecutrix that should she conceive, the accused shall marry her.

The prosecution case is that the prosecutrix was in a position to

shout only after the accused completed the sexual intercourse.

The prosecutrix shouted for help, some persons rushed to the spot.

Hemant who is examined as PW 2 attempted to apprehend the

accused, who however, gave a jerk and fled from the spot. The

prosecutrix was escorted back to the house of the maternal aunt

where she narrated the incident to her mother. The Police Patil of

Kawalewada was informed on the next morning who advised the

prosecutrix to lodge police report at Gobarwahi police out post.

The prosecutrix was apprehensive of fearful of social stigma and

defamation and left for her village without lodging report. The

prosecutrix narrated the incident to her father and only thereafter

the report was lodged by the prosecutrix at Gobarwahi out post on

11.5.1996.

4 Pursuant to the registration of the offence under

Sections 376, 417 and 506 of Indian Penal Code, the accused was

arrested, one handkerchief and photograph of the accused was

seized from the prosecutrix who produced the same before the

police. The clothes of the prosecutrix and the accused were also

seized and the prosecutrix was referred for medical examination.

The statement of witnesses were recorded and completion of

investigation culminated into charge-sheet being filed before the

Judicial Magistrate, First Class, Tumsar, who committed the case

to the Sessions Court.

5 Learned Sessions Judge framed charge at exh. 12,

accused pleaded not guilty and claimed to be tried. The defence

of the accused as is revealed from the statement recorded under

section 313 of the Criminal Procedure Code, is of total denial and

false implication.

6 Shri. Gulhane, learned counsel for the accused would

urge, that the testimony of the prosecutrix is absolutely

unbelievable and that it would be hazardous and unsafe to base

the conviction on her uncorroborated testimony. He would urge,

that the learned Sessions Judge has rightly recorded a finding that

in the absence of corroborative medical evidence and ocular

testimony throwing light on the alleged incident of sexual

exploitation the testimony of the prosecutrix is uncorroborated.

Shri. Gulhane would urge, that having recorded a finding that the

testimony of the prosecutrix is uncorroborated, the learned

Sessions Judge fell in serious error in holding the testimony to be

reliable and confidence inspiring and convicting the accused on

the basis of her uncorroborated testimony. The learned counsel

would urge, that it is an undisputed position on record that the

prosecutrix did not suffer any injury. The medical practitioner

who examined the prosecutrix is not examined. However, the

injury certificate which was exhibited on admission does not

record any visible mark suggesting injury or forcible sexual

intercourse. The learned counsel would urge, that even according

to the prosecution the prosecutrix was sleeping in the courtyard

alongwith many relatives. The allegation that the accused could

have gagged the mouth of the prosecutrix, lifted her and taken her

to an orange orchard 250 to 300 fts away from the courtyard,

without the prosecutrix not having an opportunity to seek help or

without their being any commotion, is inherently incredible. He

would further urge, that even according to the prosecution when

PW 2 & three others, who are not examined, went to the orange

orchard allegedly after hearing the shout for help, the prosecutrix

and the accused were standing near a tree. The learned counsel

would submit, that even if the entire evidence is taken as face

value, the evidence is suggestive of a consensual sexual

relationship and not of rape.

7 The learned Addl. Public Prosecutor, Smt. Deshmukh

would submit that the judgment impugned does not suffer from

any infirmity on facts and in law and the testimony of the

prosecutrix is consistent and reliable. The testimony of the

prosecutrix is, according to the learned APP, confidence inspiring,

and the learned Addl. Public Prosecutor would therefore, urge

that, it is a settled position of law that the conviction can be based

on the uncorroborated testimony of the prosecutrix, if the

testimony is otherwise, found reliable and trustworthy. The

position of law to which my attention is invited is too deeply

entrenched to warrant any debate. However, I am not persuaded

to hold that the uncorroborated testimony of the prosecutrix is

confidence inspiring. I am not persuaded to agree with the

learned Sessions Judge that the accused should be deprived of

liberty on the basis of such testimony which is neither

corroborated by any ocular evidence or by medical evidence and

which even otherwise appears to be inherently incredible.

8 The prosecutrix is examined as PW1. She states that

between 12.00 to 1.00 am, the accused came near her, pressed her

mouth with hand, lifted her and took her to the nearby orange

orchard. She states that she was made to lay down, threatened

and raped. She states that she shouted only after the accused

stood up. In the cross examination, it is brought on record that

the handkerchief and photographs of the accused were with the

prosecutrix and that she produced the handkerchief and the

photographs of the accused during the investigation. It is further

brought on record, that she accompanied the accused on his

bicycle to a nearby village Ashti to attend the marriage ceremony

of one Sattyaraj and she and the accused returned to village

Kawalewada in the night. PW1 denies the suggestion that the

accused is falsely implicated since he did not fulfill her desire to

marry the accused. PW2 Hemant claims to have awakened due to

thirst and to have heard shouts from the orange garden. He states

that he called Sattu, Ramesh and Manik ( Sattu, Ramesh and

Manik have not been examined) and all the four approached the

orange garden and found the accused and the prosecutrix standing

near one orange tree. PW2 noticed that the full pant of the

accused and the nicker of the prosecutrix were on the ground. He

claims to have attempted to apprehend the accused. However, the

accused lifted the full pant, gave a jerk to the hand of PW2 and

fled away, is the version of PW2. These are the only material

witnesses examined by the prosecution to throw light on the

incident.

9 A holistic consideration of the prosecution evidence

would suggest a strong possibility and probability that the sexual

intercourse, if at all, was consensual, and it is not inconceivable

that upon being discovered, the prosecutrix felt compelled to claim

that she was raped. De hors of such possibility and probability, in

the absence of any evidence, whatsoever, much less medical

evidence, to corroborate the sole testimony of the prosecutrix, I

am not persuaded to hold that the version that the prosecutrix was

lifted or dragged to the orange orchard and raped without any

person coming to know of the heinous sexual assault, is confidence

inspiring in the factual matrix of the case.

I, would therefore, set aside the impugned judgment and

order dated 5.4.2002 delivered by the Additional Sessions Judge,

Bhandara, in Sessions Trial 82 of 1996 and acquit the accused of

offences punishable under sections 376, 506 of the Indian Penal

Code.

Appeal is allowed.

Bail Bond stand discharged.

Fine paid by the accused, if any, be refunded to accused.

Appeal is disposed of accordingly.

JUDGE

Belkhede, PA