Dhanraj Maroti Thakre vs State Of Mah.Thr.Pso Wardha
2017 Latest Caselaw 9837 Bom

                                         1                                         apeal40.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 40 OF 2006


 Dhanraj s/o Maroti Thakre, 
 Aged about 47 years, 
 Occupation - Service, 
 R/o Botona, Tahsil - Karanja, 
 District - Wardha.                                              ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through Police Station Officer, 
 Ashti Police Station, District - Wardha.                        ....       RESPONDENT


 ______________________________________________________________

               Shri J.D. Bastian, Advocate for the appellant, 
   Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM :     ROHIT B. DEO, J.

                             DATED  :      20
                                                 DECEMBER, 2017
                                              th



 ORAL JUDGMENT : 

The appellant is aggrieved by the judgment and order

dated 18-1-2006 passed by the learned 4th Ad hoc Additional Sessions

Judge, Wardha in Sessions Trial 77/2005, by and under which the

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

offences punishable under Sections 448 and 376 of the Indian Penal

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Code ( "IPC" for short) and is sentenced to suffer rigorous

imprisonment for six months and to payment of fine of Rs.500/- for

offence punishable under Section 448 of the IPC and to suffer rigorous

imprisonment for a period of seven years and to payment of fine of

Rs.5,000/- for offence punishable under Section 376 of the IPC.

2. Heard Shri J.D. Bastian, learned Counsel for the accused

and Shri P.S. Tembhare, learned Additional Public Prosecutor for the

respondent.

3. Shri J.D. Bastian, learned Counsel for the accused submits

that the evidence on record is grossly insufficient to establish the

offence under Sections 448 and 376 of the IPC beyond reasonable

doubt. The evidence of P.W.3 prosecutrix and P.W. 4 Prakash, who is

the husband of the prosecutrix and is examined as an eyewitness is not

confidence inspiring and is marred by inter se consistencies, is the

submission. The version of the prosecutrix is falsified by the medical

evidence and the report of the Chemical Analyzer is not produced on

record, is the submission. The defence that the accused is falsely

implicated due to some dispute relating to the wages due and payable

to the husband of the prosecutrix is more than probablised, is the

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submission.

4. Per contra, Shri P.S. Tembhare, learned Additional Public

Prosecutor submits that the evidence of the prosecutrix is more than

corroborated by the evidence of P.W.4 Prakash, who has seen the

accused sexually assaulting the prosecutrix. The learned Additional

Public Prosecutor submits that the prosecutrix is a married woman with

children and absence of injury on the genitalia would not be decisive or

conclusive. The judgment and order impugned needs no interference,

is the submission.

5. The accused is not disputing that he visited the house of

the prosecutrix on 12-2-2005. The defence of the accused as is

discernible from the trend and tenor of the cross-examination and the

answer given in response to question 24 in the statement recorded

under Section 313 of the Criminal Procedure Code is that he visited the

house of the prosecutrix on the day of the incident to summon her

husband for daily wage work. An altercation with the prosecutrix

ensued, the issue was the payment of wages to the husband of the

prosecutrix. The accused claims to have been falsely implicated due to

the said dispute leading to the altercation on the day of the incident.

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6. Shri P.S. Tembhare, learned Additional Public Prosecutor

submits that it is a settled position of law that the prosecutrix in sexual

offence is not an accomplice. Seeking corroboration from the

prosecutrix is akin to adding insult to the injury. The evidence of the

prosecutrix can be the sole basis of conviction. He would submit that

the evidence of the prosecutrix is corroborated by the evidence of her

husband Prakash (P.W.4) who has seen the accused ravishing the

prosecutrix. The position of law that conviction can rest on the sole

and uncorroborated testimony of the prosecutrix is, as rightly

contended by the learned Additional Public Prosecutor, too well settled

to merit a lengthy discussion or debate. However, it is equally well

settled that the evidence of the witnesses including the prosecutrix

must be implicitly reliable, trustworthy and confidence inspiring,

particularly when a version or a narrative attributing use of force and

violence to the accused is rendered suspect by, or rather lack of,

medical evidence. The medical evidence concededly does not take the

case of the prosecution any further. The report of the Chemical

Analyzer is not produced on record for reasons known only to the

prosecution. This Court would be justified in drawing an appropriate

inference since the failure of the prosecution to produce on record the

report of the Chemical Analyzer is inexplicable. Let me now analysis

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the evidence of the prosecutrix and that of her husband Prakash to

satisfy the conscious of the Court that there is no alternate hypothesis

which is incompatible with the guilt of the accused.

7. The prosecutrix lodged oral report at Police Station Ashti

on 13-2-2005 at 12.05, the gist of which is that on 12-2-2005 at 11-00

a.m. the accused came to the house of the prosecutrix, the prosecutrix

demanded money towards the work done by her husband, the accused

assured that money would be given in two to four days, taking

advantage that the prosecutrix was alone, the accused entered her

house, forcibly brought the prosecutrix down, pressed her mouth and

sexually ravished her. The husband of the prosecutrix, who had

forgotten his axe unexpectedly came to the house to collect the axe and

saw the accused committing sexual intercourse. The prosecutrix

shouted and the accused fled away. The oral report is at Exhibit 43 on

the record of the trial Court and the printed report is at Exhibit 44.

The prosecutrix is examined as P.W.3.

8. The version before the Court is that at 11-00 a.m. on the

day of the incident the accused entered her house and started pulling

and manhandling the prosecutrix, the accused brought her down to the

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floor, sat on her chest, pressed her mouth by one hand and committed

forcible sexual intercourse. The prosecutrix states that in the

interregnum, her husband returned and saw the accused committing

sexual intercourse. The accused fled away after the arrival of the

husband of the prosecutrix. The prosecutrix shouted and neighbours

gathered at the house. The explanation given by the prosecutrix for

not lodging the oral report on the day of the incident is that villagers

did not allow the prosecutrix and her husband to lodge the report and

offered money as inducement. She states that on the next day her

father had come to her house and she alongwith her husband and

father went to the Ashti Police Station to lodge the report.

It is true that delay in lodging the first information report,

if satisfactorily explained, is not fatal. Delay in lodging first

information report in incident involving sexual assault or atrocity on

woman must be viewed in the perspective of the social norms and

mores of Indian society, and the traumatic condition in which the

victim and the family members find themselves. However, while the

delay in lodging the first information report by the prosecutrix may not

per se dent the credibility of the evidence, the explanation given by the

prosecutrix and the husband of the prosecutrix is at total variance with

each other.

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The explanation given by the prosecution for the delay in

lodging the report is that the villagers did not allow the prosecutrix and

her husband to lodge the report. Au contraire, the husband of the

prosecutrix P.W. 4 - Prakash makes no reference to the role played by

the villagers much less the inducement offered. P.W. 4 has an entirely

different version and explanation for the delay in lodging the report.

P.W. 4 states that on the next day of the incident, he alongwith the

prosecutrix proceeded to lodge the report and the son of the accused

asked him and the prosecutrix not to lodge the report.

9. The learned counsel for the accused Shri. J.D. Bastian,

would contend that the evidence of the prosecutrix and her husband

Prakash is not confidence inspiring and the version that the prosecutrix

was subjected to forcible sexual intercourse is inherently incredible.

The incident occurred in the house of the prosecutrix which is a small

one room house situated in a centrally located place in the village. The

relatives of the prosecutrix reside in the vicinity of the house. A road

passes in front of the house of the prosecutrix which is frequented by

villagers. The incident occurred between 10.00 am to 11.00 am and

the prosecutrix admits that the road is then frequented by villagers

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leaving for their work. The prosecutrix admits that she used to keep

the door of the house open. P.W. 4 Prakash admits that when he went

to fetch axe, the door of the house was open.

10. The prosecution version that the accused subjected the

prosecutrix to forcible sexual intercourse between 10.00 to 11.00 a.m.

in the one room house, with the door open and facing the busy road

with the villagers leaving for the respective work, is extremely doubtful.

The version of the prosecutrix that the accused entered the house, man

handled her, made her fall down and sat on her chest, gagged her,

lifted her clothes up and committed forcible sexual intercourse, is

suspect. The medical evidence is incompatible with a violent and

aggressive sexual assault. The absence of injury on the genitalia may

not be decisive. But then, considering the manner in which the

prosecutrix claims to have been assaulted, some tell-tale signs of

external injuries caused due to the accused man handling the

prosecutrix, bringing her down on the ground and then sitting on her

chest and subjecting her to forcible sexual intercourse after gagging her

mouth, normally ought to have been seen.

The absence of any visible sign suggesting that the prosecutrix

was subjected to sexual violence or ought that she resisted, viewed in

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isolation may not decisively dent the credibility of the prosecution

witnesses. However, the lack of medical evidence apart, I have

observed supra, such a violent ravishment in the one room house with

door open to a road well frequented and between 10.00 to 11.00 a.m.,

is most improbable.

11. The prosecution evidence is marred by too many inter-se

inconsistencies and discrepancies for this Court to consider the

evidence reliable and trustworthy. The testimony of the husband of the

prosecutrix Prakash (P.W. 4) that he disclosed the incident to his elder

brother Uttam is not corroborated by Uttam who did not support the

prosecution and categorically denied to have been narrated the

incident by Prakash. P.W.4 Prakash states that when he entered the

house, he saw the accused subjecting the prosecutrix to forcible sexual

intercourse. P.W. 4 Prakash states that the accused had removed his

full pant and underwear up to the knee and was gagging the

prosecutrix by one hand. The accused inflicted two slaps on P.W. 4

and fled, is the deposition. In the cross-examination, Prakash states

that when he reached near the house he noticed calmness and the

prosecutrix was demanding money of her wages from the accused. The

admission extracted from P.W. 4 Prakash that when he entered the

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house, the prosecutrix was demanding money from the accused is

significant and is near fatal to the credibility of the version of PW 4 in

the examination in chief that when he entered the house he saw the

accused subjecting the prosecutrix to forcible sexual intercourse. The

statement that the accused inflicted two slap blow is brought on record

as an omission, similarly, the statement that the son of the accused did

not allow P.W. 4 Prakash to lodge the report is again an omission.

12. The Investigating Officer seized the sample of blood and

pubic hair of the accused vide seizure panchanama Exh. 32 which

samples were admittedly sent to the Forensic Science Laboratory,

Nagpur for chemical analysis. The sample of blood, pubic hair and

vaginal swap of the prosecutrix were collected and seized vide Exh. 29

and forwarded to the said Forensic Science Laboratory for chemical

analysis. However, for reasons known only to the prosecution, the

report which may have been submitted by the Chemical Analyzer is not

produced on record. The learned Additional Public Prosecutor Shri.

P.S. Tembhare invites my attention to the Medico Legal Certificate Exh.

49 dated 9.4.2005 and contends that since the report states that the

accused failed to produce semen for examination, the failure of the

prosecution to produce the Chemical Analyzer's report is of little

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relevance or significance. It is difficult to appreciate the said

submission. It may be that the accused did not produce semen for

examination, but then the sample of vaginal swap and public hair of

the prosecutrix were admittedly sent for analysis alongwith the sample

of the pubic hair of the accused. The report of the Chemical Analyzer,

notwithstanding that the sample of the semen of the accused was not

available for analysis, could have thrown some corroborative light on

the veracity of the assertion by the prosecutrix that she was subjected

to forcible sexual intercourse.

13. The defence of the accused is of false implication.

Payment of wages for work done by the husband of prosecutrix was the

bone of contention according to the accused. This defence is

probabilized on the touchstone of preponderance of probabilities. It is

trite law that if the defence succeeds in demonstrating a reasonable

hypothesis suggesting the innocence of the accused, the benefit of the

doubt which the alternate hypothesis creates must necessarily go to the

accused. I am inclined to grand the benefit of the doubt to the accused

and to hold that the prosecution has not proved beyond reasonable

doubt, the offence punishable under section 448 and 376 of the IPC.

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14. The judgment and order impugned is set aside and the accused is

acquitted of the offence punishable under section 448 and 376 of the

IPC.

15. The bail bond of the accused shall stand discharged and fine paid

by the accused, if any, shall be refunded.

16. The appeal is allowed.

JUDGE

adgokar/belkhede