Rajesh S/O Kewalramji Chute vs State Of Maharashtra Through Pso ...
2017 Latest Caselaw 8771 Bom

 apeal269 of 12.odt                        1




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


                    CRIMINAL APPEAL NO. 269 OF 2012


 Rajesh s/o. Kewalramji Chute,
 Aged 29 years, occupation : Cultivation,
 R/o. : Mahagaon, Police Station : Sakoli,
 Tahsil Sakoli, District Bhandara,                                   ...APPELLANT


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


 The State of Maharashtra,
 Through Police Station Officer
 Police Station Sakoli,
 District Bhandara                                                    ...RESPONDENT
 -------------------------------------------------------------------------------------------
          Mr. Amit M. Kukday, learned counsel for the Appellant.
          Mr. P.S. Tembhare, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------
                                             CORAM       
                                                          :ROHIT B. DEO, J.

DATE :21.11.2017

ORAL JUDGMENT:

Exception is taken to the judgment and order dated

6.6.2012, in Sessions Trial 52 of 2010, delivered by the Sessions

Judge, Bhandara, by and under which, the appellant (hereinafter

referred to as "the accused") is convicted for offence punishable

under section 376 of the Indian Penal Code ("IPC") and is

sentenced to suffer rigorous imprisonment for three years and is

further convicted for offence punishable under section 506 of the

IPC and is sentenced to payment of fine of Rs. 2000/-.

2 Heard Shri. Amit Kukday, the learned counsel for the

accused and Shri. P.S. Thembhare, the learned Additional Public

Prosecutor for the respondent / State.

3 The learned counsel for the accused submits that the

evidence of the prosecutrix, who is examined as PW 1, is not

implicitly reliable and confidence inspiring. The learned counsel

for the accused Shri. Amit Kukday, would submit that the evidence

of the prosecutrix ought to have been tested more cautiously in

view of the admitted bad blood between the prosecutrix and the

accused. It is also not in serious dispute that the accused is

residing with his parents and is in possession of the major portion

of the agricultural land and that the brother of the accused

(husband of the prosecutrix) and the prosecutrix are cultivating

only 1 acre of the ancestral agricultural land and are residing

separately. In this backdrop, that no injuries are visible on the

person of the prosecutrix including the genitalia, no signs of injury

are found in the medical examination of the accused, no signs of

forcible sexual intercourse were seen in the spot panchanama, like

broken pieces of bangles, the inherent improbability clouding the

version of the prosecutrix that at 12.00 noon in a crowded locality,

the brother in law of the prosecutrix dragged her to his residence,

threatened her of physical harm and then ravished her for 10 to 15

minutes, are all cumulative circumstances which would suggest

that the defence of false implication is more than probabilised on

the touchstone of preponderance of probabilities.

4 Per contra, Shri. P. S. Tembhare, the learned

Additional Public Prosecutor would submit, inter-alia relying on

the judgment of the Apex Court in Vijay alias Chinee ..vs.. State

of Madhya Pradesh, (2010) 8 Supreme Court Cases 191 that

absence of injuries on the person or on the private parts of the

prosecutrix is not decisive and the possibility of forcible sexual

intercourse is not excluded ipso facto by the absence of injuries on

the person of the prosecutrix, particularly if the prosecutrix is a

married woman. My attention is invited to the following

observations in the said judgment:-

Injury on the person of the prosecutrix "25. In Gurucharan Singh v. State of Haryana this Court has held that : (SCC p. 753, para 8) the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix

is minor and would merely suggest want of violent resistance on the part of the prosecutrix. Further absence of violence or stiff resistance in the present case may as well suggest helpless surrender to the inevitable due to sheer timidity. In any event, her consent would not take the case out of the definition of rape".

"26. In Devinder Singh v. State of H.P. a similar issue was considered by this Court and the Court took into consideration the relevant evidence wherein rape was alleged to have been committed by five persons. No injury was found on the body of the prosecutrix. There was no matting on the pubic hair with discharge and no injury was found in the genital areas. However, it was found that the prosecutrix was used to sexual intercourse. This Court held that the fact that no injury was found on her body only goes to show that she did not put up resistance".

The learned Additional Public Prosecutor, Shri. P.S.

Tembhare would further submit, that the prosecutrix has deposed

that she was threatened which explains the absence of resistance

and therefore, the absence of injury on the person of the

prosecutrix. The evidence of the prosecutrix is more than amply

corroborated by the evidence of PW 3 - Devidas Bramhankar and

PW 4 - Homraj Chute, is the submission.

5 The learned Additional Public Prosecutor, Shri. P.S.

Tembhare would submit, that even in the absence of

corroboration, conviction can rest on the sole testimony of the

prosecutrix.

6 In all fairness, Shri. Amit Kukdey, the learned counsel

for the accused has no demur with the settled position of law that

the conviction can rest on the uncorroborated sole testimony of

the prosecutrix. However, Shri Amit Kukdey contends that this

Court is not obligated to seek corroboration only if the evidence of

the prosecutrix is found to be implicitly reliable and trustworthy.

The prosecutrix is certainly not an accomplice for this count to

seek corroboration which would be adding insult to the injury.

However, it is not as if the version of the prosecutrix must be

accepted as gospel truth, is the submission of the learned counsel

for the accused.

7 I have given my anxious consideration to the evidence

on record, the submissions canvassed by the learned counsels and

the reasoning of the learned Sessions Judge.

8 Concededly, the prosecutrix is the wife of the elder

brother of the accused. It is brought on record that the prosecutrix

had lodged a police complaint against the accused. The

circumstances in which the police complaint was lodged is blurred,

however, it appears to be a position not seriously disputed that

there is a vertical divide in the family, the accused and his parents

residing separately and cultivating the major chunk of the family

land with the help of cattle and elder brother of the accused and

the prosecutrix residing separately and cultivating a relatively

small holding of agricultural land, admeasuring 1 acre.

9 It is the case of the prosecution, as is unfolded during

the course of trial, that on the date of incident, the husband of the

prosecutrix and the in laws were away from village Mahalgaon to

attend a marriage and the prosecutrix was alone in the house. The

prosecutrix looked after the household work till 9.00 a.m., then

went to the field, gave water to the bullocks, and then took them

to the cattle shed. When the prosecutrix was tying the second

bullock, the accused came in the cattle shed, dragged the

prosecutrix by her hair, pressed her mouth, took her in his house

and after bringing her down on the cot sexually ravished her. The

prosecutrix deposes that she was threatened by the accused that

she will be killed if she resists. The accused undressed the

prosecutrix, undressed himself and then sexually violated her

private part, is the deposition.

10 According to the prosecutrix, she was driven out from

the house by the accused who inflicted a fist blow on her head, the

prosecutrix then went to the house of her uncle Devidas

Bramhankar - PW 3 and narrated the incident. The prosecutrix

states in the examination in chief that after narrating the incident

to PW 3 - Devidas Bramhankar, she alone went to the Police

Station Sakoli and lodged report which was reduced in writing

(Exh. 17). The prosecutrix then states that she was referred to the

Bhandara Hospital for medical examination. She showed the spot

to the police and her clothes were seized. The prosecutrix then

states that Devidas Bramhankar - PW 3 had informed her husband

about the incident telephonically. In the next breath, she retracts

and states that it was Homraj Chute - PW 4, who informed her

husband about the incident and that she had called on Homraj

Chute.

It is brought on record in the cross examination of PW 1 that

the agricultural land is recorded in the name of her brother in law

and the total land admeasures 5 acres. Prosecutrix admits that

after the accused was sent to judicial custody, 1 acre land was

given to her husband. She further admits that prior to the said

giving of land, her father in law did not hand over possession of

any land to her husband. She admits that prior to two years of the

alleged incident, there was a physical altercation between accused

and her husband and that a police report against accused was

lodged by the husband of the prosecutrix and the prosecution is

pending in the Sakoli Court. It is also extracted that the husband

of the prosecutrix was cultivating the land of Gajubai, grand

mother of the husband of the prosecutrix and the accused and

since there was a quarrel between Gajubai and the husband of the

prosecutrix, the arrangement was terminated and Gajubai is

allowing others to cultivate the land on 'batai' basis.

It is admitted that the land is cultivated with the help of

tractor and that the prosecutrix and her husband do not own cattle

like bullocks, she-buffaloes and cows and that all the cattle are in

possession of the accused. It is elicited in the cross-examination of

the prosecutrix that there are several houses which are situated

adjacent to the house of the accused and there is also borewell in

the courtyard of the accused which is accessed by the neighbours

to fetch water. The attempt is to demonstrate that the version of

the prosecutrix that during the morning or afternoon time, she

was dragged by her heir to the residence of the accused and then

forcibly ravished for 10 to 15 minutes is an inherently incredible

story which must necessarily receive corroboration.

 11               PW   2   -   Mukundaji   Chute,   is   the   husband   of   the

 prosecutrix.     However,   the   evidence   of   PW   2   corroborates   the

evidence of the prosecutrix only to the extent that he speaks of

having received a call from the prosecutrix, who borrowed the

mobile of PW 4, informing PW 2 that she was forcibly ravished by

the accused. The husband of the prosecutrix, states that since he

was out of station, he is not in a position to state as to whether the

version of the prosecutrix is true or false. PW 3 - Devidas

Bramhankar, speaks of the prosecutrix having narrated the

incident and then of he having followed the prosecutrix on bicycle

to the Police Station. PW 3 admits that the prosecutrix and her

husband do not have cordial relations with the accused and the

parents of the accused and the husband of the prosecutrix. PW 4 -

Homraj states that he handed over his mobile to the prosecutrix on

21.5.2010 after 12 O'clock in the afternoon which was used by the

prosecutrix to talk with her husband. Investigating Officer -

Bishambar Pallewar is examined as PW 9, who admits that there

were no pieces of broken bangles in the cattle shed. The cattle

shed was open at two sides, is the deposition. It is brought on

record that the Investigating Officer is not aware whether he has

recorded the statements of the parents of the accused or those of

the neighbours of the complainant and the accused.

12 I am inclined to accept the submission of the learned

counsel for the accused Shri. Amit Kukdey that there are too many

gray areas in the prosecution case for this Court to permit the

conviction to rest on the sole evidence of the prosecutrix. Firstly,

the defence has successfully brought on record that the

relationship between the prosecutrix and her husband on one

hand and the accused and parents of the accused and the husband

of the prosecutrix, on the other, is strained. The instances of

physical altercations, police reports and the pending prosecution

are elicited in the cross-examination of the prosecutrix. The

allegation that the accused threatened the prosecutrix with a knife

or a knife like object is obviously a figment of the prosecutrix's

imagination. No such object is seized from the accused. According

to the prosecutrix, the incident occurred at 11.45 a.m. or 12.00

noon, she was dragged by her hair with mouth gagged from the

cattle shed to the house of the accused and then forcibly ravished

for 10 to 15 minutes. The learned Additional Public Prosecutor is

right in contending that ipso facto, the absence of injury will not

exclude forcible sexual intercourse if the victim is a married

woman. But then, since the prosecutrix alleges that she was

forcibly dragged, gagged, brought down on the cot and ravished

for 10 to 15 minutes by younger brother of her husband, the

absence of injury on the person of the prosecutrix and on the

person of the accused, is not consistent with such version. The

version of the prosecutrix that she was threatened by knife or knife

like object and that accused threatened to kill her if she resisted, is

doubtful to say the least. The spot panchanama and the

admissions extracted in the evidence of the prosecutrix would

reveal that both, the cattle shed (which is open on both sides) and

the distance between cattle shed and the house of the accused is

open to public gaze. I find it extremely difficult to believe the

version of the prosecutrix that she was dragged from cattle shed in

the manner in which she has alleged and that the accused was in a

position to sexually ravish the prosecutrix for 10 to 15 minutes,

with the prosecutrix having no opportunity to raise an alarm or to

seek help from the neighbours and other villagers who concededly

used the borewell in the courtyard of the accused to fetch water.

The learned Additional Public Prosecutor Shri. P.S. Tembhare, in

all fairness, does not dispute the submission that there is no

scientific evidence on record to connect the accused with the

incident. The clothes of the prosecutrix and the accused were

seized and sent for Chemical Analyzer. But then, the report of the

Chemical Analyzer does not take the case of the prosecution any

further.

13 The evidence of the prosecutrix, as observed earlier, is

not at all confidence inspiring. It would be apposite to refer to the

following observations of the Apex Court, in Sadashiv Ramrao

Hadbe..vs..State of Maharashtra and Another, (2006) 10 SCC

92.

"7. The doctor, who examined the prosecutrix at about 3 p.m., did not find any injury on her body. There was only swelling on the upper lip but the prosecutrix had no case that this swelling on the upper lip was caused during the course of the incident. There were no injuries on her private parts and the doctor who had examined her was unable to give any opinion about the sexual intercourse allegedly taken place. It is important to note that vaginal swab was collected by the doctor and it was sent for chemical examination. Exhibit 43 is the pathological report and it shows that Microscopic examination of the Vagina swab showed desquamated cervical cells and few Co-oxalate crystals and fluid but no spermatozoa was found. The Swab of Vagina was taken on the same day and if any sexual intercourse had taken place in all probabilities, the vaginal swab would have contained

some spermatozoa. The absence of these sperms cast a serious doubt on the prosecution version".

"8. It may also be noticed that the appellant was medically examined on the same day by PW-10. In his evidence, he stated that smegma was present around the corono-glandis. He further deposed that his examination negatived sexual intercourse and for collection of smegma around corono-glandis a period of 24 hours is required. This scientific evidence also did not support the prosecution. Had there been a vigourous sexual act as alleged by the prosecutrix there could not have been the presence of smegma on his private part".

"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen".

"10. In the present case there were so many persons in the clinic and it is highly improbable that the appellant

would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbablise the prosecution version".

I consider it absolutely unsafe and hazardous to let the

conviction rest on the evidence of the prosecutrix.

The judgment and order impugned is set aside. The accused

is acquitted of the offence punishable under Sections 376 and 506

of the Indian Penal Code. Fine paid by the accused, if any, be

refunded. The bail bond of the accused shall stand discharged.

The appeal is allowed. Fees of the counsel for the accused are

quantified at Rs. 5,000/-.

JUDGE

RS Belkhede