Bombay High Court
Sandip Pandurang Kadam vs The State Of Maharashtra on 11 September, 2017
Bench: P.R. Bora
1 CRI.APPEAL 327/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.327 OF 2016
Sandip s/o Pandurang Kadam
Age: 27 Yrs., occu. Agril.
R/o Chincholi, Tq. Tuljapur,
District Osmanabad. = APPELLANT
VERSUS
The State of Maharashtra
Through its Police Station,
Tuljapur, Tq. Tuljapur,
District Osmamanabad. = RESPONDENT
-----
Mr.S.S.Choudhari, Advocate for Appellant;
Mr.S.P.Tiwari, APP for Respondent
-----
CORAM : P.R.BORA, J.
RESERVED ON : 14
th
August, 2017
PRONOUNCED ON: 11
th
September,2017
JUDGMENT:
1) Present appeal is filed against the
Judgment and order passed by learned Additional
Sessions Judge at Osmanabad in Sessions Case
No.9/2015 decided on 6th May, 2016. Vide the
impugned judgment, the appellant has been
convicted for an offence punishable under Section
376 of the Indian Penal Code and has been
2 CRI.APPEAL 327/2016
sentenced to suffer rigorous imprisonment for
seven years and to pay a fine of Rs.1,000/-, in
default to suffer further R.I. for three months.
2) On 10th September, 2014, a report was
lodged against the appellant at police station
Tuljapur by the prosecutrix. It was alleged by
the prosecutrix that on 10.9.2014, when she was
proceeding towards her field, on the way to her
field, she was obstructed by the appellant-
accused and thereafter was raped by him. It was
alleged by the prosecutrix that though she
opposed and tried to give alarm, her mouth was
gagged by the appellant and thereafter he
committed forcible intercourse with her. The
prosecutrix immediately rushed in the nearby
field to one Surekha Nana Kadam, who, according
to her version, was her maternal aunt and
narrated the incident to her. The said incident
was thereafter narrated by the prosecutrix to her
in-laws and also to her husband and then on the
same day, she lodged the report against the
3 CRI.APPEAL 327/2016
appellant.
3) On such report being lodged, crime was
registered against the appellant, vide Crime No.
185/2014 and the investigation was conducted by
the police station Tuljapur. The prosecutrix was
immediately sent for chemical examination.
Thereafter spot panchanama was prepared. The
clothes of the prosecutrix, which were on her
person at the relevant time of the occurrence of
the alleged incident, were seized. The accused
was arrested on the next day of the incident. He
was also sent for his medical examination. His
blood and semen samples were collected. The
clothes seized from the person of the prosecutrix
as well as the accused and the blood and semen
samples were sent for the chemical analysis.
After receiving the report from the Chemical
Analyzer, it was confirmed that the semen, which
was noticed on the petticoat of the prosecutrix,
was of the accused - appellant. The statements
of the necessary witnesses were recorded by the
4 CRI.APPEAL 327/2016
Investigating Officer and after completing the
investigation, charge sheet was filed in the
court of Judicial Magistrate First Class,
Tuljapur, Since the offence was exclusively
triable by the Court of Sessions, the learned
Magistrate committed the said case to the Court
of Session, whereupon it was registered as
Sessions Case No.9/2015. The learned Sessions
Judge framed the charge under Section 376 of IPC
against the appellant and explained it to him in
vernacular. The appellant did not plead guilty
and claimed to be tried.
4) In order to prove guilt of the accused,
total nine witnesses were examined by the
prosecution. The defence of the accused was that
of false implication. The statement of the
accused was recorded under Section 313 of Cr.P.C.
The accused also examined one witness in his
defense. On her assessment of the oral and
documentary evidence on record, the Additional
Sessions Judge held the appellant guilty for
5 CRI.APPEAL 327/2016
offence under Section 376 of the Indian Penal
Code and after hearing the accused on the point
of punishment, sentenced him to suffer rigorous
imprisonment for seven years with fine of Rs.
1,000/-, in default to under further R.I. for
three months. Aggrieved by, the accused has
preferred the present appeal.
5) Shri S.S.Choudhari, learned Counsel
appearing for the appellant - accused, criticized
the impugned judgment on various grounds. The
learned Counsel submitted that the trial court
has utterly failed in appreciating that there was
no conclusive evidence to show that the accused
committed intercourse with the prosecutrix
without her consent. The learned Counsel
submitted that the chemical analyzer's report in
respect of vaginal swab collected after the
alleged incident of rape, demonstrates that no
semen was detected therein. The learned Counsel
submitted that this was clearly indicating that
no intercourse had taken place as alleged by the
6 CRI.APPEAL 327/2016
prosecutrix. The learned Counsel further
submitted that the medical report in respect of
the accused revealed that no injury was noticed
on his person or to his genitals. The learned
Counsel submitted that had it been the case of
the forcible intercourse as alleged by the
prosecutrix, there must have been some injury on
the person of the accused and also to his
genitals.
6) The learned Counsel further submitted
that it was the case of the prosecution that the
accused committed rape on the prosecutrix at the
muddy place. The learned Counsel submitted that
the clothes seized from person of the prosecutrix
nowhere reveal that any mud stain was noticed
thereon. The learned Counsel further submitted
that as per the case of the prosecution itself,
at the relevant time, the prosecutrix was
carrying two sickles with her. The learned
Counsel submitted that it appears improbable that
in spite of having two sickles with her, the
7 CRI.APPEAL 327/2016
prosecutrix would not use the said sickles even
in case of forcible intercourse with her by the
appellant accused.
7) Learned Counsel further submitted that
the prosecution has utterly failed in proving
that the appellant had forcible intercourse with
the prosecutrix without her consent and as such,
no conviction could have been recorded by the
learned Sessions Judge. The learned Counsel,
therefore, prayed for setting aside the impugned
judgment of conviction and consequently to acquit
the appellant of the charge levelled against him
under Section 376 of IPC.
8) Shri S.P.Tiwari, learned APP appearing
for the State supported the impugned judgment.
The learned APP submitted that the FIR of the
alleged incident was promptly lodged. The
prosecutrix has testified the facts before the
court, as are revealing from the FIR lodged by
her. The evidence of the prosecutrix has been
8 CRI.APPEAL 327/2016
fully corroborated by the other witnesses. The
report of the Chemical Analyzer and the medical
evidence on record also fully support the case of
the prosecution. In the circumstances, according
to learned APP, the Sessions Court has rightly
held the appellant guilty of the commission of
rape on the prosecutrix. The learned APP further
submitted that the defense put forth of the
accused of consensual sex has been rightly
rejected by the learned Sessions Court. The
learned APP, therefore, prayed for dismissal of
the appeal.
9) I have carefully considered the
submissions advanced by the learned Counsel
appearing for the appellant and learned APP
appearing for the State. I have also perused the
impugned judgment and the entire evidence on
record.
10) It is the case of the prosecution that
the appellant caught hold of the prosecutrix when
9 CRI.APPEAL 327/2016
she was proceeding towards her field and then
gagging her mouth so that she should not shout,
committed forcible intercourse with her. The FIR
lodged by the prosecutrix reveals that in an
attempt by the accused of having forcible
intercourse with her, the semen of the accused
fell on her petticoat. As has been deposed by
the prosecutrix in her testimony before the
court, the accused thereafter fled from the spot
and she went to Surekha Kadam, i.e. her maternal
aunt (PW 3) and narrated her the incident. It is
the further case of the prosecution that PW 3 -
Surekha Kadam then called mother-in-law of the
prosecutrix, to whom also the alleged incident
was narrated by the prosecutrix and the
prosecutrix was then taken to home by her mother
in law. As per the further case of the
prosecution, thereafter, the prosecutrix,
accompanied by her in-laws, went to police
station Tuljapur and lodged the report against
the accused.
10 CRI.APPEAL 327/2016
11) As against the story of prosecution, it
is the case of the accused that the prosecutrix
instigated him to have sexual intercourse with
her, however, before they could have sexual
intercourse, the maternal aunt of the prosecutrix
saw them in the said compromising position and
thereafter the prosecutrix, on insistence from
her in-laws, lodged a false case against him,
alleging that he had forcible intercourse with
the prosecutrix without her consent.
12) The prosecution evidence has to be
scrutinized in light of the allegations made by
the prosecutrix and the defense as has been
raised by the accused. As has been testified by
the prosecutrix before the Court, at about 2 p.m.
when she was proceeding towards their field
having two sickles in her hand, near the well of
one Gautam, the accused caught hold of her left
hand and when she started shouting, kept his
right hand on her mouth, then threw her on the
earth, torn her petticoat and inserted his penis
11 CRI.APPEAL 327/2016
in her vagina. The prosecutrix has further stated
that the semen of the accused fell on her
petticoat. It was further deposed by the
prosecutrix that she assaulted the accused by
giving blows on his face and then the accused
fled from the spot. It has further come in her
evidence that then she went to Surekha Kadam (PW
3) and narrated her the incident. The
prosecutrix has further deposed that then she
narrated the incident to her mother in law as
well as to all of her family members. She has
further deposed that thereafter they went to
police station Tualjapur and she lodged the
complaint against the accused. In her evidence,
before the court, she admitted the contents of
the report lodged by her to the police and also
her signature over the said report. The said
report is at Exh.15.
13) PW 3 - Surekha in her evidence before
the court, has deposed that at about 1 noon of
the day of incident, she heard the shouting from
12 CRI.APPEAL 327/2016
the well of Kalyan Kadam, however, as the
crushing machine was in operation, she did not
give any attention to the said shouts. Surekha
has further deposed that thereafter the
prosecutrix rushed to her and disclosed to her
that the accused, by gagging her mouth, committed
rape on her. PW 3 has further deposed that the
prosecutrix also disclosed to her that she
assaulted the accused by fist blows. It has also
come in the evidence of PW 3 that then she called
mother in law of the prosecutrix and the
prosecutrix narrated the entire incident to her
mother in law. PW 3 Surekha further deposed that
the prosecutrix and her mother in law then went
to their house.
14) PW 4 - Shardabai Tukaram Kulkarni, is
mother in law of the prosecutrix. She has
deposed before the Court that on the day of the
incident, she had asked the prosecutrix to go
home and bring sickles therefrom. She has
further deposed that the prosecutrix narrated her
13 CRI.APPEAL 327/2016
the entire incident. She has then deposed that,
she took the prosecutrix to home and thereafter
she lodged the report against the accused.
15) In so far as charge against the accused
that he had forcible intercourse with the
prosecutrix without her consent is concerned, the
evidence of the prosecutrix would only be
material. Evidence of PW 3 and PW 4 is relevant
to the extent that the prosecutrix, at the first
instance, disclosed the alleged incident to PW 3
Surekha and thereafter to PW 4 - Shardabai. A
deeper scrutiny, therefore, has to be made of the
evidence of the prosecutrix.
16) As noted by me herein above, the defense
of the accused is that he and the prosecutrix
attempted to do sexual intercourse with consent.
The learned Additional Sessions Judge, has,
however, rejected the theory of consent,
observing that there is no such evidence or
circumstance brought on record by the accused so
14 CRI.APPEAL 327/2016
as to accept the defense so raised by him.
17) Perusal of the impugned judgment reveals
that the learned Additional Sessions Judge has
heavily relied upon the Chemical Analyzer's
reports and the medical evidence brought on
record by the prosecution. It is true that the
semen, which was detected on the petticoat of the
prosecutrix, which, she was allegedly wearing at
the time of happening of the alleged incident, is
proved to be of blood group `B', which is
admittedly the blood-group of the accused.
However, after having considered the entire
material on record, it does not appear to me that
detection of the semen of the blood-group of the
accused on the petticoat of the prosecutrix,
cannot be a strong circumstance in the present
case for holding the accused guilty of the
offence of rape. In the FIR lodged by the
prosecutrix, it was the case of the prosecutrix
that the semen of the accused fell on her
petticoat. In her testimony before the Court
15 CRI.APPEAL 327/2016
also, she reiterated the said fact. The fact
that his semen fell on the petticoat of the
prosecutrix has also not been denied by the
accused. However, he has denied that he had
sexual intercourse with the prosecutrix. From
the tenor of the cross-examination, it can be
gathered that it was the case of the accused that
it was the prosecutrix, who instigated him to
have sexual intercourse with her, but, before
they could have the sexual intercourse, they were
noticed by PW 3 - Surekha in the said
compromising position and in that attempt, his
semen fell on the petticoat of the prosecutrix.
18) In the instant case, according to me, it
is not that material whether or not the accused
had the penetrative intercourse with the
prosecutrix. It was sought to be canvased by
Shri Choudhari, learned counsel for the
appellant, that no semen was detected in the
vaginal swab collected of the prosecutrix after
the alleged occurrence. According to Shri
16 CRI.APPEAL 327/2016
Choudhari, it supports the contention of the
accused that he did not have intercourse with the
prosecutrix. However, I am not convinced with
the point so canvassed by the learned counsel.
It is not necessary that at the time of
intercourse, there must be seminal discharge in
the vagina though she has deposed that the
accused inserted his penis in her vagina. It is
also not the case of the prosecutrix that the
semen of the accused was discharged in her
vagina. On the contrary, in the FIR itself, it
is the specific contention of the prosecutrix
that the semen of the accused fell on her
petticoat and not in her vagina. In the
circumstance, merely because no semen is detected
in vaginal swab of the prosecutrix, it is unsafe
to draw any such inference that the accused did
not have intercourse with the prosecutrix.
19) The material issue is whether the
accused had the intercourse with the prosecutrix
forcibly and without her consent? It is not in
17 CRI.APPEAL 327/2016
dispute that when the accused allegedly caught
hold of the left hand of the prosecutrix, she was
having two sickles with her. As has been
admitted by the prosecutrix, the sickles were
having sharp pointed surface at inner side.
Neither in the FIR nor in her testimony before
the court, it is disclosed by the prosecutrix as
to in which hand, she was holding the said two
sickles when the accused allegedly held her left
hand. The entire prosecution evidence is further
silent on the point as to what happened to the
said two sickles after the accused allegedly held
the left hand of the prosecutrix. Only when in
the cross-examination, a suggestion was given to
the prosecutrix that it was possible for her to
assault the accused by the sickles in her hand
that she has denied the said suggestion and has
further explained that both the sickles in her
hand fell down.
20) PW 8 - Pradip Pawar, the Investigating
Officer, in his cross-examination, has admitted
18 CRI.APPEAL 327/2016
that he did not make any investigation as about
the said two sickles. It appears improbable that
the prosecutrix would not disclose as to what
happened to the sickles in her hand when the
alleged incident happened.
21) It is not the case of the prosecutrix in
the FIR lodged by her that when the accused held
her left hand, the sickles fell down on the
earth. It is worth to reproduce herein below the
relevant portion in the FIR so lodged by the
prosecutrix, which reads thus, -
"vkt rk- 10-09-2014 jksthps 12-00 ok- lqekjkl ek>k
uojk ?kjkps toG vlysY;k 'ksrke/;s dkans yko.;klkBh fu?kwu
xsyk- R;kposGh eh o lklwckbZ vls vks<;kP;ktoG vlysY;k
'ksrke/;s eqx rksM.;klkBh xsyks- 'ksrke/;s iksgkspwu vkEgh nks?
kht.kh v/kkZ&ikm.k rkl gkrkus eqx rksMys- gkrkus eqx rksM.ks
yodj mjdr ulY;kus lklwckbZus eyk ?kjkdMs tkmu foGk
vk.k.;kl lkafxrys- R;kaP;k lkax.;kuqlkj eh ?kjkdMs xsyks
o ?kjkrwu nksu foGs ?ksmu 'ksrkdMs ijr tkr vlrkuk vankts
02-15 ok- lqekjkl okVse/;s vlysY;k dY;k.k dne ;kaps
iDD;k foghjhtoG vkys vlrk ikBhekxwu ,dkus ek>k Mkok
gkr /kjyk- eh ?kkc:.k ekxs ikfgys vlrk vkeP;k
Hkkodhrhy lanhi ikaMqjax dne ;kus ek>k gkr /kjyk gksrk- eh
19 CRI.APPEAL 327/2016
vkjMkvksjM d: ykxys rj R;kus R;kpk mtok gkr ek>s
rksaMkoj Bsoyk o eyk [kkyh ikMys-"
In her testimony before the Court, the
prosecutrix has deposed as under, -
"....That time one person came
behind from me and caught hold of my
left hand. So, I saw that he was
Sandip Kadam. I started shouting.
So, he kept his right hand on my
mouth. Then he thrown me on
floor....."
As has been deposed by the prosecutrix, the
accused had come from her behind and hold her
left hand. As further deposed by her when she
saw as to who was the said person, she identified
the said person to be Sandip Kadam, i.e. the
accused. She has further deposed that then she
started shouting and because she started
shouting, the accused kept his right hand on her
mouth and then threw her on the floor. Thus, it
is not the case of the prosecutrix that when the
accused caught hold of her left hand, the sickles
20 CRI.APPEAL 327/2016
in her hand fell down. On the contrary, as per
the averments in the FIR as well as from her
testimony before the Court, when a person coming
from her behind held her left hand, she saw to
her backside as to who was the said person and on
seeing the said person identified him to be the
accused. Had the sickles in her hand really
fallen down at that time, the said fact must have
been disclosed by the prosecutrix at the very
first instance, i.e. at the time of lodging the
FIR. As noted herein above, the FIR is silent on
the issue. Even if it is accepted that in the
FIR it may not be possible to incorporate each
and every information, it appears quite
improbable and unnatural that the prosecutrix
would not disclose in her testimony before the
Court about the same. When the prosecutrix could
provide all other particulars in detail, it
cannot be accepted that she will forget to
disclose as to what happened to the sickles in
her hand. The explanation of the prosecutrix has
come on record as about the said sickles only
21 CRI.APPEAL 327/2016
when it was suggested to her in the cross-
examination that she could have made assault on
the accused by the said sickles in her hand.
22) It is further significant to note that,
though, it was the specific case of the
prosecutrix that at the time when the alleged
incident happened, she was having two sickles
with her, the Investigating Officer has not made
any investigation as about the said sickles. In
fact, the first question ought to have crept in
the mind of the investigating officer as to what
happened to the sickles in the hands of the
prosecutrix and why she did not use the said
sickles in her defense to avoid the alleged
forcible intercourse on her by the accused.
23) From the entire aforesaid evidence,
reasonable doubts are certainly created about the
allegations made by the prosecutrix against the
accused that he had forcible intercourse with her
without her consent. From the facts which have
22 CRI.APPEAL 327/2016
come on record, the explanation given by the
prosecutrix that the sickles fell down on the
earth appears difficult to be accepted. I
reiterate that the aforesaid fact was so material
that it must have been disclosed at the first
instance by the prosecutrix and if that was
missed at the time of giving FIR, there was no
reason for not to disclose the said fact in the
evidence before the Court. There is substance in
the argument made by the learned Counsel for the
accused that in spite of the sickles in the hands
of the prosecutrix when she did not make any use
of the said sickles to defend herself from the
alleged rape by the accused, a reasonable
inference emerges that if at all any such attempt
was made by the accused, the same was not opposed
by the prosecutrix leading to a further possible
inference that the attempted sexual intercourse
was consensual.
24) There are certain other circumstances
also, which have created reasonable doubts about
23 CRI.APPEAL 327/2016
the allegation made by the prosecutrix that the
accused forcibly had intercourse with her without
her consent. It is the case of the prosecutrix
that after her left hand was held by somebody, to
whom later on she has identified to be the
accused, she started shouting. She has further
deposed that the accused, therefore, gagged her
mouth by his right hand and then committed rape
on her. It has to be stated that as has been
deposed by the prosecutrix some more acts had
taken place after the accused gagged her mouth;
that the accused threw her down, that he tore the
petticoat of the prosecutrix, that he drew out
his penis and eventually inserted it in vagina of
the prosecutrix. It appears improbable and
unnatural that the accused could have done the
aforesaid acts by his left hand, simultaneously
holding his right hand tight over the mouth of
the prosecutrix so that she should not again
shout. Even if it is accepted that when
prosecutrix initially shouted, her mouth was
gagged by the accused. from the facts, as are
24 CRI.APPEAL 327/2016
further deposed by the prosecutrix, there is
reason to believe that the prosecutrix was having
every opportunity to again give alarms and thus,
she could have made the attempt by the accused
unsuccessful.
25) Further, as has come on record through
evidence of the prosecutrix herself as well as PW
3 - Surekha and PW 4 Shardabai, the spot where
the alleged incident is said to have occurred, is
surrounded by the fields and in the said fields,
the persons were carrying out the agricultural
operations when the alleged incident happened.
Admittedly, it was the time of afternoon. It
appears somewhat improbable that having a
knowledge that in the adjoining fields the
agricultural operations are going on and several
persons are present in the said fields, somebody
would dare to commit sexual intercourse with any
woman without her consent.
26) Further, as has come on record, the spot
25 CRI.APPEAL 327/2016
where the prosecutrix is alleged to have been
raped by the accused was wet. However,
admittedly, no mud or mud-stains are noticed on
saree of the prosecutrix. The spot panchaname
clearly depicts that the alleged spot was wet
leading to an inference that if somebody commits
rape at the said place, wet mud would certainly
get attached to the saree of the victim. The
Investigating Officer has also admitted that the
spot of incident was wet. However, no mud or
mud-stains are noticed on saree of the
prosecutrix. Reasonable doubt is, therefore,
created about the happening of the alleged
incident at the said spot. It has to be stated
that the spot was shown by the prosecutrix
herself.
27) As has deposed by the prosecutrix in her
cross-examination, she was wearing bangles when
the alleged incident happened and the pieces of
said bangles fell on the spot of occurrence,
indicating thereby that in an attempt by the
26 CRI.APPEAL 327/2016
accused to have forcible intercourse with the
prosecutrix, the bangles in her hands were broken
and pieces thereof were spread over on the spot.
In light of the fact so stated by the
prosecutrix, if the spot panchanama is perused,
it does not show existence of the pieces of
broken bangles on the spot. The fact that pieces
of bangles were not found at the spot of
occurrence also creates a reasonable doubt about
the fact deposed by the prosecutrix and also
about the occurrence of the alleged incident at
the said spot.
28) When it is the case of the prosecutrix
that in the alleged incident her bangles were
broken some injury may be minor, at least an
abrasion must have been caused to the
prosecutrix. Admittedly, no such injury is
noticed on person of the prosecutrix. This
circumstance also creates reasonable doubt about
the allegation made by the prosecutrix against
the accused.
27 CRI.APPEAL 327/2016
29) Non-existence of any notable injury on
person of the prosecutrix and no injury on person
of the accused is another circumstance, which has
also created serious doubts about the case of the
prosecution. As I noted earlier, the medical
evidence has weighed in the mind of the learned
Additional Sessions Judge in reaching to the
conclusion that the accused committed rape on the
prosecutrix. It has come in the evidence of PW 5
- Dr.Kiran Ghadge that in the medical examination
by her of the prosecutrix, after occurrence of
the alleged incident, three abrasions noticed on
the chest of the prosecutrix, which were fresh.
As has been further deposed by Dr. Kiran, three
abrasions were noticed on the chest of the victim
were indicative of the struggle of the
prosecutrix against the sexual intercourse.
Based on the said evidence of Dr.Kiran, the
learned Additional Sessions Judge has recorded a
finding that the prosecutrix was raped. In light
of the evidence of PW 5 - Dr.Kiran, if the
testimony of the prosecutrix before the court is
28 CRI.APPEAL 327/2016
perused, the prosecutrix has not stated that any
such injury was caused to her because of the
alleged incident of rape or that the same was
caused by the accused while committing rape on
her. No much weightage, therefore, can be given
to the opinion so given by the Medical Officer.
Merely on the basis of the said evidence, it is
very unsafe to hold that the prosecutrix was
raped. In the case of forcible intercourse,
there is some resistance from the prosecutrix,
injuries would be necessarily on the back and not
only on the chest. Non-existence of any injury
on person of the accused is another circumstance,
leading to an inference that there was no
resistance from the prosecutrix.
30) In the cross-examination, the
prosecutrix has stated that she hauled shirt of
the accused and, therefore, the shirt was torn.
However, if the seizure panchanama in respect of
the clothes of the accused is perused, it nowhere
demonstrates that the shirt which was seized from
29 CRI.APPEAL 327/2016
person of the accused was torn at any place. The
prosecutrix in her evidence before the court has
identified the said seized shirt to be the same
shirt allegedly worn by the accused at the time
of the alleged occurrence. In the circumstance,
the fact stated by the prosecutrix that she
hauled the shirt of the accused and, therefore,
it was torn has proved to be false.
31) The fact that the accused torn her
petticoat was not stated by prosecutrix in the
FIR lodged by and has come on record, for the
first time in her testimony before the Court.
The fact that she hauled the shirt of the accused
and, therefore, it was torn was also not stated
by her either in the FIR or in her examination in
chief before the Court. Only when certain
suggestions were given indicating that she had
instigated the accused to have sex with her that
she added that she pulled the shirt of the
accused and, therefore, it was torn, probably to
suggest that she was not consenting party, but
30 CRI.APPEAL 327/2016
was resisting the attempt.
32) In the statement given by the accused
under Section 313 of Code of Criminal Procedure,
he has specifically said that near the well the
maternal aunt of the prosecutrix called mother in
law and husband of the prosecutrix at the spot
and all of them condemned the prosecutrix and
abused her and the husband of the prosecutrix
went to the extent of beating her. The accused
has further stated that then his father was also
called on the spot and money was demanded from
him.
33) I am conscious of the fact that the
statement given by the accused under Section 313
of Cr.P.C. cannot be a conclusive cause for
either his acquittal or his conviction. However,
if the facts stated by the accused in such a
statement are corroborated by any other evidence
on record, the facts so corroborated can be
certainly used for recording the conclusion
31 CRI.APPEAL 327/2016
accordingly. Viewed the statement of the accused
with this angle, the fact as has been stated by
him that the husband of the prosecutrix was
called on the spot of occurrence has been
corroborated by PW 3 - Surekha as well as PW 4 -
Shardabai. In the cross-examination of PW 3 -
Surekha, she has admitted that the husband of the
prosecutrix had reached on the spot of occurrence
though she has denied the further suggestion that
he made an assault on the prosecutrix. PW 4 -
Shardabai, however, has also accepted in her
cross-examination that her son Vishwas i.e.
husband of the prosecutrix reached on the spot
immediately. Shardabai has further admitted that
he became angry towards his wife, i.e. the
prosecutrix. The facts as have come on record
through the statement of the accused and through
the oral testimony of PW 3 and 4, will have to be
conjointly considered.
34) The fact which has come on record
through cross-examination of PW 4 - Shardabai
32 CRI.APPEAL 327/2016
that the husband of the prosecutrix had become
angry with assumes importance. In given
circumstances, no husband is likely to become
angry with his wife. On the contrary, he would
have all sympathy, compassion towards his wife
and he would first try to console her. As was
rightly argued by the learned Counsel for the
appellant, the fact that the husband of the
prosecutrix condemned her, has to be considered
and understood in premise of the statement of the
accused under Section 313 of the Code that the
prosecutrix instigated him to have sex with her.
In the circumstance, the defence of the accused
that he and the prosecutrix attempted to do
sexual intercourse with consent is difficult to
be ruled out.
35) After having considered the entire
prosecution evidence, I find it difficult to
agree with the conclusion recorded by the learned
Additional Sessions Judge holding the accused
guilty for the offence under Section 376 of IPC.
33 CRI.APPEAL 327/2016
I reiterate that there are plural circumstances,
which I have discussed in detail herein above,
which create reasonable doubts about the case of
the prosecution. From the evidence which has
come on record it is difficult to record any such
concrete conclusion that the accused had sexual
intercourse with the prosecutrix without her
consent. In absence of any unimpeachable
evidence against the accused, he deserves to be
given benefit of doubt and hence deserves to be
acquitted of the charge levelled against him
under Section 376 of IPC.
36) For the reasons stated above, following
order is passed, -
ORDER
i) The order of conviction passed
by the learned Additional Sessions
Judge, Osmanabad in Sessions Case
No.9/2015 is quashed and set aside;
ii) The appellant - accused stands
34 CRI.APPEAL 327/2016
acquitted of the offence under Section
376 of IPC. He be released forthwith, if
not required in any other case or crime;
iii) The Criminal Appeal thus stands
allowed in the aforesaid terms.
(P.R.BORA)
JUDGE
bdv/
fldr 14.8.17
