Bombay High Court
Khushal Janardan Pendam ( In Jail) vs The State Of Maharashtra, Through ... on 27 March, 2017
Bench: I.K. Jain
CRI. APPEAL NO.330.14.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.330 OF 2014
Khushal s/o Janardhan Pendam,
Aged about 20 years,
Occupation-Labour,
R/o. Anjansingi,
Tahsil and District-Amravati.
(Presently he is in Jail). .. APPELLANT
.. VERSUS ..
State of Maharashtra,
Through Police Station Officer,
Kurha, Tahsil-Tiosa,
District-Amravati. .. RESPONDENT
..........
None for the appellant,
Shri R.S. Nayak, Additional Public Prosecutor for respondent.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : MARCH 27, 2017.
ORAL JUDGMENT
By this appeal, appellant-original accused
challenges the judgment and order of conviction dated
6.4.2013 passed by the learned Additional Sessions Judge,
Amravati in Sessions Case No.162/2012.
2] By the said judgment and order, appellant has
been convicted of the offences punishable under Sections
452, 376 and 506-II of the Indian Penal Code and sentenced
as under :
Sr. Conviction Punishments
Nos. under sections
1. 376, IPC Rigorous imprisonment for seven
years and fine of Rs.5000/- in-
default Rigorous Imprisonment for
three months.
2. 452, IPC Rigorous imprisonment for four
years and fine of Rs.2000/- in-
default Rigorous Imprisonment for
two months.
3. 506-II, IPC Rigorous Imprisonment for four
years and fine of Rs.2000/- in-
default Rigorous Imprisonment for
two months
3] The prosecution case which can be revealed from
the chargesheet and connecting papers thereto may be
stated in brief as under :
(a) Prosecutrix was resident of Anjansingi,
Tahsil-Dhamangaon Railway, District-
Amravati. She was aged around 40 years
and married to Suresh Domne of Loni
Sawanga on 26.4.1992. The couple was
blessed with a male child.
(b) After marriage, prosecutrix cohabited
with her husband for two years.
Thereafter, due to matrimonial discord
she started residing separately at the
village of her parents. She was staying
alone.
(c) Incident occurred on 25.6.2012 between
3-3.30 am. Prosecutrix was sleeping on
a cot in her house. According to
prosecution, accused opened the latch
and entered the house of prosecutrix.
He woke her up. Then he pressed her
mouth and threatened her to life in case
she shouts. Thereafter, accused
committed forceful sexual intercourse
with the prosecutrix and fled away.
(d) Prosecutrix informed about the incident
to her neighbour Purushottam Tarale. In
the morning, she went to Police Station,
Kurha and lodged report. Crime
No.56/2012 came to be registered
against the accused. PI Shankar
Shimpikar (PW-6) took over
investigation, they visited the spot and
recorded spot panchanama. Prosecutrix
was sent for medical examination to the
General Hospital, Amravati. Investigating
Officer seized petticoat of prosecutrix
having semen stains. Statements of the
witnesses came to be recorded.
(e) On 28.6.2012, accused was arrested. He
was medically examined. The clothes of
accused were seized. Blood sample of
the prosecutrix and accused came to be
collected. Seized muddemal was sent to
Chemical Analyser. On completing
investigation chargesheet was submitted
to the Court of Judicial Magistrate, First
Class, Chandur Railway, who in turn,
committed the case for trial to the Court
of Sessions.
4] Charge of the alleged offence was explained to the
accused vide Exh.8. He pleaded not guilty and claimed to be
tried. His defence was of total denial and false implication.
5] To substantiate the guilt of accused, prosecution
examined in all six witnesses. Considering the evidence of
prosecutrix, other witnesses and submissions made on
behalf of parties, learned Additional Sessions Judge came to
the conclusion that prosecution has proved the guilt of
accused beyond reasonable doubt. In consequence thereof,
accused was convicted as stated in para 1 above. Hence,
this appeal.
6] With the assistance of learned Additional Public
Prosecutor, this court has gone through the evidence of
prosecution witnesses. On scrutiny of the evidence of
prosecutrix and negative medical evidence as well as
chemical analyser's report for the below mentioned reasons
this court finds that prosecution could not establish the guilt
of accused beyond reasonable doubt.
7] PW-1 prosecutrix is the star witness examined by
prosecution. She was married to Suresh Domne resident of
Loni Sawanga on 26.4.1992 and after two years of marriage
started residing separately from her husband. Regarding
incident, prosecutrix states that on 24.6.2012, she went to
sleep at 8.30 pm. She was alone in the house. Her
evidence shows that at around 3.00 am, accused opened
the latch of the door, entered the house, pressed her mouth,
threatened and then committed forcible sexual intercourse
with her. She admits that she did not shout at the time of
alleged act of sexual assault. According to prosecutrix, she
immediately informed about the incident to her neighbour
Purushottam Tarale. He is not examined. It can be seen
from her evidence that incident was also disclosed to
Sumitra Thakre, Sunil Warthi and Vitthalrao Dahake. All the
witnesses have been kept behind by the prosecution. In
these circumstances, principal question arises is whether
reliance can be placed on the sole testimony of the victim.
8] True, law is well settled that in a case of sexual
assault, even sole testimony of prosecutrix can be relied
upon, if the same is otherwise found to be trustworthy,
believable and inspires confidence. In the case on hand,
conduct of prosecutrix is relevant. She admits in cross-
examination that she did not shout for help. She also
admits that when accused ran away, she did not raise alarm.
She was at her house till she informs about the incident to
Purushottam Tarale between 4-4.30 am. The post conduct
of the victim makes the case of sexual assault doubtful.
9] Prosecutrix was referred for medical examination.
Dr. Advait Choudhary (PW-5) was attached to District
Women's Hospital, Amravati and he examined the victim. It
is stated by Dr. Choudhary that on examination of
prosecutrix on 25.6.2012, he did not notice recent sign
suggestive of recent intercourse. No injury on private part
of the victim was found. No sign suggestive of rape could
be noticed by the Medical Officer. Medical Report (Exh.30)
negatives the theory of sexual assault, as stated by the
prosecutrix.
10] It is significant to note that during investigation
petticoat of prosecutrix having semen stains was seized.
This petticoat was sent for examination to Chemical
Analyser. Chemical Analyser's report (Exh.13) clearly
indicates that neither blood nor semen was detected on the
said petticoat.
11] In the above premise, when prosecution chose not
to examine neighbourers to whom prosecutrix immediately
disclosed the incident, medical report is in negative, C.A.
report does not support the version of victim and her
conduct in not raising alarm and not shouting though she
had ample opportunity to raise alarm and to shout for help
make it clear that sole testimony of prosecutrix cannot be
relied upon to base a conviction. Appeal, therefore,
deserves to be allowed. Hence, the following order :
ORDER
(i) Criminal Appeal No.330 of 2014 is allowed.
(ii) Impugned judgment and order dated 6.4.2013
passed by the learned Additional Sessions Judge, Amravati
in Sessions Case No.162/2012 is quashed and set aside.
(iii) Appellant be set at liberty forthwith if not required
in any other case.
(iv) Fine amount, if any, shall be refunded to the
appellant.
(v) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
