The State Of Maharashtra vs Arvind Kashinath Bondekarr
2017 Latest Caselaw 7854 Bom

                                       1        Appeal 400 of 2002

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 400 of 2002


     The State of Maharashtra
     Through the Police Station Officer
     Jamner Police Station,
     District Jalgaon.                  ..          Appellant.

             Versus

     Arvind Kashinath Bondekar
     Age 52 years,
     Occupation : Medical Practitioner
     R/o Jamner, Pachora Road,
     Taluka Jamner, District Jalgaon.  .. Respondent.

                                ----
     Shri. S.D. Ghayal, Additional Public Prosecutor, for
     appellant.

     Shri. R.N. Dhorde, Senior Counsel, instructed by Shri. V.D.
     Gunale, Advocate, for the respondent.
                                 ----

                                Coram:     T.V. NALAWADE &
                                           A.M. DHAVALE, JJ.

                               Date:     6 October 2017


     JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed against the judgment and

order of Sessions Case No.96/1997 which was pending in

the Court of the learned Additional Sessions Judge,

2 Appeal 400 of 2002

Jalgaon. The respondent-accused is acquitted of the

offences punishable under sections 376, 354, 509, 506 of

the Indian Penal Code and so the decision is challenged by

the State. Both the sides are heard.

2) In short, the facts leading to the institution of

the appeal can be stated as under :

The prosecutrix is a married woman and she was 28

years of age at the relevant time. She and her husband

are residents of Pimparkheda, Tahsil Jamner. She has

three issues. In the past she had received treatment in the

hospital of the accused which is situated at Jamner. Wife

of the accused is also practising as doctor in the same

hospital.

3) The prosecutrix was suffering from abdominal

pain and so in the past she along with her husband had

visited the hospital of the accused. For few days the

treatment was taken by taking medicines prescribed by

the wife of the accused but there was no relief to the

prosecutrix. She and her husband went to the hospital of

3 Appeal 400 of 2002

the accused on 30-1-1997. This time the accused

examined the prosecutrix. As the accused is a renowned

practitioner the prosecutrix had decided to take treatment

from him. After clinical examination and after giving some

medicines, the accused advised the prosecutrix to remain

in the hospital for few days as indoor patient for receiving

treatment. She was admitted and she was kept in special

room where there were three cots but she was the only

patient in the said room. Saline was used for giving

treatment and intermittently the accused and his wife

kept on checking the prosecutrix. The husband of the

prosecutrix kept on visiting the hospital and visited the

hospital till night 2 to 3 times and ultimately at 10 to

10.30 p.m. the husband left the hospital.

4) After leaving of the husband, the prosecutrix

complained to the staff of the hospital that she had again

pains in abdomen. The staff informed that the accused and

his wife had left for village Pahur to attend one function.

After some time, the accused and his wife returned from

Pahur and then it was disclosed to the doctors that the

prosecutrix had pains in abdomen. Both the accused and

4 Appeal 400 of 2002

his wife examined the prosecutrix and prescribed some

medicines.

5) After some time, the accused alone returned to

the aforesaid room. One staff member was present near

the prosecutrix and to her the accused gave direction to

leave the room. After some time, the accused again

returned and he was alone. The other patients were

sleeping at that time and the main door of the hospital

was also closed by putting lock on it. The accused all of a

sudden fell on the prosecutrix to have sexual intercourse

with her. When the prosecutrix attempted to resist he

gave threat and then after removing the blouse of the

prosecutrix and taking the saree to upward direction he

took sexual intercourse with the prosecutrix forcibly.

During the incident, he said that he had developed liking

for the prosecutrix. There was ejaculation and due to that

the petticoat of the prosecutrix became wet. After that the

accused again gave threat and he also promised to

transfer a plot in her name and left the place. The

prosecutrix became frightened and she remained inside

of the room as her husband was not there.

                                                5           Appeal 400 of 2002

     6)               Husband          of   the    prosecutrix          came        to    the

hospital at 1.30 a.m. on 31-1-1997. The prosecutrix

narrated the incident to the husband. The husband said

that he would bring his friend Dattu and he left the

hospital. At about 6.00 a.m. the husband of the

prosecutrix and said Dattu came to the hospital and they

took the prosecutrix to police station. The prosecutrix

gave report to police and the crime came to be registered

at 6.30 a.m. of 31-1-1997 for the aforesaid offences. The

prosecutrix was referred for medical examination. Her

clothes were taken over under panchanama.

7) The accused came to be arrested on the same

day. His clothes like banyan and underpant were first

taken over and he was referred for medical examination.

During the course of investigation the other clothes like

paijama and shirt came to be recovered and they were

seized under panchanama. Spot panchanama was

prepared on the same day and the articles like bedding

and blanket which were on the cot of the prosecutrix from

the aforesaid room were taken over.

                                          6          Appeal 400 of 2002

     8)               During   the    course   of    investigation          police

recorded statements of the staff members of the hospital

and also of some patients who were admitted as indoor

patient and of their relatives. Statements of friends of the

accused and the husband of the prosecutrix to whom the

incident was disclosed were also recorded. As the accused

disclosed that he was at Pahur, statements of some

doctors who had attended the function at Pahur came to

be recorded. After completion of the investigation charge-

sheet came to be filed for the aforesaid offences. Charge

was framed and plea was recorded. The accused pleaded

not guilty.

9) The prosecution examined in all 11 witnesses to

prove the offences. Defence examined two witnesses. In

the statement under section 313 of the Code of Criminal

Procedure the accused admitted that the prosecutrix was

indoor patient on the night between 30 and 31 January

1997 in his hospital. He denied the allegations and he

contended that he had left for Pahur at 8.30 p.m. on that

date and he had returned at about 11.30 p.m. He

contended that he had not come down from the first floor

7 Appeal 400 of 2002

where he was living in that hospital and false allegations

are made against him.

10) Evidence of the prosecutrix shows that the

accused and his wife were known to her and in the past

she had received treatment from the wife of the accused.

She has deposed that on the day of the incident she had

come to the hospital along with her husband and she had

received the treatment from the doctor. She has given

evidence that she was examined by the accused and then

she was admitted in the hospital and she was kept in the

aforesaid room where there was only the prosecutrix as

patient.

11) The prosecutrix has given evidence that on

that night at 10 to 10.30 p.m. the accused returned from

Pahur along with his wife. She has deposed that saline

was already removed from her body and one female

servant was attending her. She has deposed that the

female servant was asked to remain out of the room by the

doctor and then the accused entered the room and he

slept on her. She has deposed that the accused then said

8 Appeal 400 of 2002

that he had developed liking for her and even when she

resisted he took sexual intercourse with her. She has

deposed that threat was given by the accused not to

disclose the incident to anybody and promise was given to

transfer a plot in her name.

12) The prosecution has given evidence that her

husband was not present in the hospital as he had gone to

attend a programme and he returned to the hospital at

1.30 a.m. on 31-1-1997. She has deposed that she

narrated the incident to her husband and then the

husband left to bring his friend Dattu and after arrival of

the husband and Dattu in the morning they left the

hospital for police station where she gave report which is

at Exhibit 23. She has deposed that her clothes like saree,

petticoat, blouse, brassiere were taken over by police.

She has deposed that at that time the accused was

wearing clothes like pant and half shirt.

13) To corroborate the testimony of the prosecutrix,

the prosecution has examined Dr. Jaju (PW 10). He has

given evidence that he examined the prosecutrix at 1.00

9 Appeal 400 of 2002

p.m. on 31-1-1997. He has deposed that he did not notice

any external injury on the body of the prosecutrix

including on breast and thighs or genital region. He did

not notice injury to vulva. He has deposed that he

collected vaginal swab and pubic hair and also blood

sample for sending them to C.A. office. Exhibit 51, a

certificate issued by this witness is duly proved in his

evidence and it is consistent with his oral evidence. In the

examination-in-chief itself he gave evidence on the basis

of clinical examination and the C.A. report which is at

Exhibit 52 that he did not notice any circumstance in

support of rape (sexual intercourse). As the doctor did not

support the prosecution he was not cross-examined at

length by the Advocate of the accused. In the cross-

examination, he has deposed that he had no occasion to

see the sperms, if any, on the petticoat of the prosecutrix

as he had not noticed and examined the clothes of the

prosecutrix. This evidence is relevant at least to some

extent as it is the version of the prosecutrix that there was

ejaculation. No semen was detected on her body and

pubic hair.

                                         10          Appeal 400 of 2002

     14)              Dr. Sampat (PW 7) examined the accused on

the same day but at about 4.00 p.m. He has given

evidence that on examination he found that there was no

external injury all over the body of the accused and there

was no injury on penis. However, he has deposed that

smegma was absent. His evidence shows that the accused

can take sexual intercourse. His evidence shows that the

accused could not produce semen at that time so saline

swab from his penis was taken. The age of the accused

was 48 years at the relevant time. The certificate issued

by this witness is duly proved in his evidence at Exhibit

43. The aforesaid things collected by the doctor were sent

to C.A. office including the blood sample. The C.A. report

shows that on pubic hair no sperm or blood was detected.

Thus there is one circumstance like absence of smegma

on which argument is advanced by the learned APP

against the accused.

15) It is true that it takes about 24 hours to develop

smegma after sexual intercourse. If the incident had taken

place at 10.30 p.m. or between 10.30 and 11.00 p.m. on

30-1-1997, after that there was the possibility of accused

11 Appeal 400 of 2002

having sexual intercourse with his wife as he is a married

man and there was also possibility of washing and taking

bath by the accused in the morning of 31-1-1997. In any

case the circumstance like absence of smegma was not

specifically put to the accused in the statement of the

accused recorded under section 313 of the Cr.P.C. When

the prosecution intends to use such circumstance it is

necessary to put that circumstance to the accused. In any

case, due to the period which had elapsed from the

alleged time of the incident and the other possibilities

already quoted, no weight at all can be given to the

circumstance of absence of smegma.

16) There is evidence of panch witness on seizure

of the clothes of the accused, the clothes of the

prosecutrix, the seizure of articles from the room, the spot

panchanama, and also on sending of the articles to the

C.A. office. There are C.A. reports in respect of the

articles which were sent to C.A. office. The C.A. reports

show that the prosecutrix was having blood of "A" group.

However, no sperms were detected on pubic hair collected

by the doctor when the prosecutrix was examined. The

12 Appeal 400 of 2002

blood of the accused was of "O" group. Human blood and

semen of blood group of "A" was detected on the petticoat

of the prosecutrix. No blood or semen was detected on

any of the clothes of the accused. Thus the blood group of

the accused was "O" and semen of "A" group was

detected on the petticoat of the prosecutrix. Blood group

of the husband of the prosecutrix is not available. The

forensic evidence is not corroborating the version of the

prosecutrix and on the contrary it has created one

inconsistent circumstance.

17) It is true that for convicting the accused for

offence of rape, it is not necessary to prove that there was

ejaculation or there was complete penetration of penis

into private part of the prosecutrix. However, specific

case of the prosecutrix on that cannot be ignored. It is

true that evidence of the prosecutrix needs to be treated

as the evidence of injured witness. On this point, learned

Additional Public Prosecutor has placed reliance on some

reported cases which are being discussed subsequently.

There is no dispute over the proposition. Due to the

aforesaid circumstances like inconsistent circumstance

13 Appeal 400 of 2002

mentioned in the C.A. report and due to other

circumstances which have also created some suspicion,

the close scrutiny of the evidence of the prosecutrix is

required.

18) In support of the evidence of the prosecutrix

there is evidence of her husband and of Dattu. These two

witnesses have given evidence on the so called disclosures

made by the prosecutrix to them. The incident is

described in the F.I.R. and the contents of the F.I.R. so far

as the incident is concerned are consistent with the oral

version of the prosecutrix.

19) The spot panchanama is proved in the evidence

of panch witness Pandurang (PW 6). This evidence is not

seriously disputed by defence. This evidence and some

admissions given by prosecutrix show that adjacent to the

room where the incident allegedly took place there is

general ward. This general ward has no door. One lady

was due to deliver a child and so more than ten relatives

of that lady were present near the general ward. Some

ladies were there as delivery was to take place. Further,

14 Appeal 400 of 2002

the staff members of the hospital were also present as

they were expected to remain present near the general

ward and also the special ward. In the cross-examination,

the prosecutrix has deposed that she shouted for help

when the accused started using force to have sexual

intercourse. In ordinary course also if the prosecutrix

wanted assistance she would have shouted for help and

anybody would have rushed to the room even by

presuming that she was suffering from something and she

wanted help.

20) The investigating agency did record statements

of some patients who were there in the general ward and

the relatives of the patients. Even statements of the staff

members of the hospital were recorded who were deputed

to do duty on that night. The evidence of the prosecutrix

itself shows that one female servant was there in her room

who was virtually driven out by the doctor before

committing the offence. Nobody from these persons is

examined by the prosecution. No explanation is there for

withholding that evidence from the prosecution and in

view of the facts and circumstances of this case, this

15 Appeal 400 of 2002

Court holds that adverse inference needs to be drawn

against the prosecution.

21) In the cross-examination, the prosecutrix (PW

1) has deposed that after the incident was over, she came

out of the room and she sat near the cabin of the accused

where one staff member, Chandrabhaga was sleeping. She

has deposed that she had talk with Chandrabhaga and

also a lady relative of the patient who was there in the

general ward for delivery. Her evidence shows that it was

casual talk and she did not disclose the incident to them

on that night. It can be said that this conduct of the

prosecutrix of having a casual talk with others after the

incident cannot be ignored and it itself creates

improbability about the incident.

22) The prosecutrix (PW 1) has deposed that her

husband came to hospital at 1.30 a.m. on 31-1-1997 and

then she narrated the incident to him. In the cross-

examination the husband of the prosecutrix, Pandhari (PW

4) has admitted that main door of the hospital was closed

and lock was put on it and he kept standing in front of the

16 Appeal 400 of 2002

hospital. Though he has deposed that he had come to the

hospital and then he had talk with the prosecutrix during

which she disclosed the incident, there is no corroboration

to such version of both the prosecutrix and her husband.

Staff members could have been examined or at least other

patients or relatives of other patients could have been

examined to prove that the husband had entered the

hospital on that night at 1.30 a.m. and the main door of

the hospital was opened.

23) The prosecutrix has given evidence that when

she narrated the incident to her husband, the husband

said that he would bring his friend Dattu and then her

husband left the hospital. She has deposed that her

husband then returned to the hospital with his friend

Dattu and they left for police station at about 6.00 a.m.

Cross-examination of the prosecutrix and her husband

shows that they did not try to enquire with the doctor and

the husband of the prosecutrix did not try to enquire with

others as to how and why they did not intervene. The

report of the prosecutrix was registered at 6.30 a.m. on

31-1-1997 and this circumstance shows that the report

17 Appeal 400 of 2002

was not given immediately when there was opportunity

and the report was given late at least by 7 hours. This

conduct of the prosecutrix and her husband was not

natural. Their evidence does not show that they were

afraid of the doctor. Due to these circumstances and the

circumstance of giving the F.I.R. late cannot be ignored in

this case and that itself has created more suspicion about

the case of the prosecution.

24) The aforesaid circumstances have created

probability that the prosecutrix did not shout on that

night. It creates probability that the prosecutrix had not

offered resistance. These circumstances create probability

that no incident at all had taken place as described by the

prosecutrix.

25) The accused has given evidence to prove the

defence of alibi by examining two witnesses like Dr.

Ramdas (DW 1) and Dr. Vijay (DW 2). They have given

evidence that on 30-1-1997 all of them including the

accused and his wife had gone to Pahur to attend birthday

ceremony of Dr. Somkuwar. They have deposed that they

18 Appeal 400 of 2002

reached Pahur after about half an hour and they were at

Pahur till 11.00 p.m. They have deposed that they

returned from Pahur and they reached Jamner at 11.30 or

at 11.15 p.m. Their evidence shows that the distance

between Jamner and Pahur is about 15 kilometers. It

needs to be mentioned here that the prosecution is not

disputing that the accused and his wife had gone to Pahur

on that night. The evidence of the prosecutrix shows that

when her husband had left the hospital at 10.30 p.m., at

that time neither the accused nor his wife was present in

the hospital. The evidence of the prosecutrix shows that

she complained that she had pains in abdomen but it was

informed to her that the accused and his wife had gone to

Pahur. These circumstances and further evidence of the

prosecutrix that the accused and his wife had returned

together and they had taken round of all the wards on that

night create probability that the incident had not taken

place at the time of 10.30 p.m. as described by the

prosecutrix. These circumstances along with other

circumstances already discussed give strength to the

defence of alibi also. Though the burden to prove alibi is

on the accused as provided in section 11 read with section

19 Appeal 400 of 2002

103 of the Evidence Act, in view of the aforesaid

circumstances this Court has no hesitation to hold that the

required probability is created in the present matter.

26) The learned Additional Public Prosecutor has

placed reliance on some observations made by Delhi High

Court in the judgment of Appeal No.792/2001 (Suresh v.

State of Delhi). In this case the High Court has discussed

a circumstance like absence of smegma. This

circumstance is already discussed by this Court. On this

point learned Senior Counsel for the respondent accused

has placed reliance on AIR 2009 SC 1966 (State of

Punjab v. Hari Singh). The relevant facts and

circumstances of the present case are already discussed

and this Court has already held that absence of smegma in

this case is not a circumstance which can be used in

corroboration to the version of the prosecutrix.

27) The learned Additional Public Prosecutor has

placed reliance on the observations made by the Apex

Court in the cases reported as (1) (2009) 16 SCC 69

(Rajinder v. State of H.P.); and, (2) (1996) 2 SCC 384

20 Appeal 400 of 2002

(State of Punjab v. Gurmit Singh) . Facts and

circumstances of each and every criminal case are always

different. In the cases cited by the learned APP, the Apex

Court has laid down that the evidence of the prosecutrix

stands almost at par with that of the evidence of injured

witness and to some extent it is more reliable. The Apex

Court has further laid down that in such cases the

evidence as a whole needs to be considered and it is

necessary for the Court to ascertain whether the version

given by the prosecutrix is probable in nature. There is no

dispute over the proposition. Relevant facts and

circumstances are already discussed. It is true that

conviction can be based on uncorroborated testimony of

the prosecutrix but such testimony should inspire

confidence in judicial mind and it should be of such a

nature that the Court must certify that the testimony is

wholly reliable. If the Court finds that it is difficult to

accept the truthfulness of the version of the prosecutrix,

due to the circumstances like contradictions in her

evidence and inconsistencies with other circumstances

including medical evidence and the report of forensic

science laboratory the Court may find that the version of

21 Appeal 400 of 2002

the prosecutrix is not truthful and in that case benefit of

doubt can be given to the accused [reliance is placed on

(1) 2001 (3) Crimes 393 (SC) (Surjan & Ors v. State of

M.P.); and, (2) 2001(4) Crimes 105 (SC) (Dilip & Anr. v.

State of M.P.].

28) Learned Senior Counsel for the respondent -

accused has placed reliance on the cases reported as (1)

2015 ALL MR (Cri) 4511 (S.C.) (Ram Sunder Sen Vs.

Narender @ Bode Singh Patel); and, (2) (2016) 10 SCC

506 (Raja vs. State of Karnataka) . It is already observed

that facts and circumstances of each and every criminal

case are always different. The law laid down by the Apex

Court on the evidentiary value of the evidence of

prosecutrix in such a case is already quoted and there is

no dispute over the propositions quoted. In view of the

facts and circumstances of the present matter this Court

holds that it cannot be said that the version of the

prosecutrix is truthful. So conviction cannot be based in

such a serious case on such version. This Court holds that

the trial Court has not committed any error in not

believing the prosecutrix and giving benefit of doubt to

22 Appeal 400 of 2002

the accused-respondent. No case is made for interference

in the appeal. In the result, the appeal stands dismissed.

The bail bonds of the accused shall remain in force for a

period of three months for giving opportunity to the State

to challenge the decision of this Court.

            Sd/-                                 Sd/-
     (A.M. DHAVALE J.)                   (T.V. NALAWADE, J.)



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