Bombay High Court
Santosh S/O Shankarrao Kulsange ( ... vs State Of Mah. Thr. Pso on 19 September, 2017
Bench: Swapna Joshi
1 Judg 190917 apeal 509.09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.509 of 2009
Santosh Shankarrao Kulsange,
aged about 24 years, Occ.- Labourer,
R/o.-Vanoja, Post Chikhli, Tah. Ralegaon,
District Yavatmal (In Jail). .... Appellant.
-Versus-
State of Maharashtra,
through P.S.O. Hinganghat Police Station,
District Wardha. .... Respondent.
--------------------------------------------------------------------------------------------------
Mr. R.M. Patwardhan, Counsel (appointed) for appellant.
Mr. N.H. Joshi, Additional Public Prosecutor for respondent/State.
--------------------------------------------------------------------------------------------------
Coram : Mrs. Swapna Joshi, J.
th
Dated : 19
September, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant (hereinafter
will be referred as 'the accused') against the judgment and order passed
by the learned Adhoc Assistant Sessions Judge-2, Wardha in Sessions
Trial No.91 of 2008 delivered on 20-04-2009, whereby the learned trial
Judge had convicted the accused for the offence punishable under
Sections 376 r/w 511 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for four years and to pay a fine of Rs.1000/-, in
default, to suffer simple imprisonment for three months.
2 Judg 190917 apeal 509.09.odt
2] I have heard Mr. R.M. Patwardhan, the learned counsel
(appointed) for the appellant and Mr. N.H. Joshi, the learned Additional
Public Prosecutor for the respondent/State. With their assistance, I have
carefully gone through the record of the prosecution case.
3] The facts leading to prefer this appeal can be summarised as
under :-
The prosecutrix was aged about 16 years old and she was
th
studying in 9 standard at Indira Gandhi Middle School, Wadner, at the
time of incident. The prosecutrix was staying in a hostel of K.T. Mahajan
at Wadner. During vacation, as there were holidays on account of the
th
examination of 10 Standard scheduled in the month of March, 2008, the
prosecutrix came to Hinganghat from Wadner. The mother of the
prosecutrix was residing at Samudrapur. The prosecutrix came to
Hinganghat on 30-03-2008. She met with her friends Sonu and Chanda.
Thereafter, the prosecutrix along with her friend Sonu went to the house
of Sonu. At bout 4.00 pm, the accused came there. He snatched the
bag of the prosecutrix from Sonu and proposed the prosecutrix to come
with him to his village. He threatened her, if she would not accompany
him, he would end his life or kill her. The prosecutrix, however, did not
accompany with him and she stayed in the house of Sonu. On the next
day at 9.00 am the accused again visited the house of Sonu. He
requested to accompany him. At that time the accused repeated the same
things. Then the accused took the prosecutrix to Hinganghat bus stop.
The accused then took her to Pipara to the house of his sister. The
3 Judg 190917 apeal 509.09.odt
prosecutrix went to sleep at 9 pm in the house of the sister of the accused
in the inside room. The sister of the accused and her husband were
sleeping in the front room. The accused was watching television. At
about 1.00 pm, it is alleged that the accused came to the room where the
prosecutrix was sleeping. He woke her up and started outraging her
modesty. He removed her clothes so also he removed his clothes and he
lied down on the body of the prosecutrix and committed forcible sexual
intercourse with her. The prosecutrix then shouted. On hearing her
shouts, the sister of the accused and her husband rushed to the said
room. The prosecutrix narrated the incident to the sister of the accused.
Her husband slapped the accused. Thereafter, the prosecutrix went to
sleep with the sister of the accused. On the next day, the elder brother of
the accused came to that place, as he learnt about the incident. He
brought the prosecutrix to Hinganghat. At that place the mother of the
prosecutrix was also called by the elder brother of the accused. The
prosecutrix disclosed the incident to her mother. Thereafter, the
prosecutrix along with her mother went to her village. On 04-04-2008, the
prosecutrix along with her brother proceeded to Hinganghat Police Station
and lodged her complaint (Exhibit-13).
4] At the relevant time PSI Patil attached to Police Station
Hinganghat. He recoded the complaint of prosecutrix. On the basis of the
said complaint, PW-7-Pramod Duratkar registered the offence vide Crime
No.92 of 2008. PW-8-PSI Yogesh arrested the accused. He visited the
place of incident and prepared spot Panchanama (Exhibit-35). The police
4 Judg 190917 apeal 509.09.odt
took charge of the clothes of the victim and collected the blood sample,
vaginal swab and pubic hair of the prosecutrix (Exhibit-15). He also
collected the semen sample and pubic hair of the accused Including the
clothes of the accused (Exhibit-37). He referred the prosecutrix and the
accused for medical examination. The seized articles were sent to CA
office. The police recorded the statements of the concerned witnesses
and after completion of the investigation, chargesheet was submitted in
the Court of learned JMFC. The case was committed to the Court of
Sessions. The learned trial Judge framed the charge. The accused
pleaded not guilty to the charges levelled against him and claimed to be
tried. On conducting the trial, on appreciation of the evidence and
hearing both the sides, the learned trial Judge convicted the accused as
aforesaid. Hence, this appeal.
5] Mr. R.M. Patwardhan, the learned Counsel (appointed) for
the appellant, vehemently argued that the learned trial Judge had failed
to consider the aspect of age of the prosecutrix as the age of the
prosecutrix has not been proved by the prosecution below 16 years,
beyond reasonable doubt and the medical evidence falsifies the case of
the prosecutrix that she has been raped by the accused. The learned
Counsel for the appellant further submitted that the learned trial Judge has
acquitted the accused under Sections 363 and 366 of the IPC, which
indicates that the accused did not kidnap the prosecutrix and take her to
his sister's place. According to Mr. Patwardhan, since the said offence
has not been proved by the prosecution and in the absence of the any
5 Judg 190917 apeal 509.09.odt
medical evidence, the learned trial judge has erroneously convicted the
accused under Sections 376 r/w 511 of IPC.
6] Mr. N.H. Joshi, the learned APP contended that, the learned
trial Judge has rightly convicted the accused on scrutinizing the testimony
of the victim.
7] On considering the rival contentions of both the sides, it
would be advantageous to go through the sole testimony of the prosecutrix
on the point of attempt to commit rape.
8] At this juncture, it would be advantageous to verify the age of
the prosecutrix, on the date of the incident which had allegedly taken
place on 30-03-2008. The prosecution has in order to prove the age of
the prosecutrix has relied upon the testimony of PW-9-Smt. Ujjawala,
Head Mistress of Indira Gandhi Secondary School, Wadner. PW-9-
Ujjawala has deposed on the basis of the school resister which she had
produced in the Court. According to her, the entry about the prosecutrix
was at serial no.1413 and as per the said register, the date of birth of the
prosecutrix was 18-08-1992 (Exhibit-49). On the basis of the said entry,
PW-9-Smt.Ujjawala issued certificate with regard to the date of birth of
the prosecutrix (Exhibit-48). During the cross examination PW-9-
Smt. Ujjawala admitted that the entry with regard to the date of birth of
the prosecutrix was taken in the school register on the basis of her
previous school leaving certificate. According to PW-9-Ujjawala, the
th
prosecutrix was studying in another school upto 8 standard. PW-9-
Smt.Ujjawala fairly stated that she had not demanded any other proof
6 Judg 190917 apeal 509.09.odt
from the parents of the prosecutrix with regard to her actual date of
birth. So also she did not get it confirmed from the previous school,
about the date of birth of the prosecutrix.
9] A meticulous examination of the evidence of PW-9-
Smt.Ujjawala indicates that the entry in the school register with regard to
the date of birth of the prosecutrix was taken on the basis of the previous
school leaving certificate. The prosecution has not bought on record the
previous school leaving certificate of the prosecutrix. Similarly, there is no
evidence on record to show that the previous school leaving certificate
was prepared on the basis of the entry in the school register, with regard
to the date of birth of the prosecutrix was obtained on the basis of the
birth certificate of the prosecutrix issued by the competent authority or on
the basis of the affidavit filed by the parents of the prosecutrix, at the time
of admitting the prosecutrix in the previous school. Significantly PW-2
mother of prosecutrix categorically stated that she had not reported about
the birth of her daughter to grampanchayat. In view thereof there is no
question of producing the birth certificate by PW-2 in the school of her
daughter. Thus, the prosecution has not proved beyond reasonable doubt
the date of birth of the prosecutrix. As the date of birth 18-08-1992 was
not correctly recorded by PW-9-Smt. Ujjawala, on the basis of the said
birth certificate or an affidavit filed by either of the parents of the
prosecutrix, it is to be inferred that the age of the prosecutrix has not been
proved by the prosecution beyond reasonable doubt. The learned trial
judge has not considered the above said aspect while deciding the point
7 Judg 190917 apeal 509.09.odt
of age of the prosecutrix.
10] It is well-settled law that the victim of rape is not an accomplice and
there is no rule of law that her testimony cannot be acted upon without
corroboration in material particulars. She stands on higher pedestal then
an injured witness. Keeping in mind the settled law, the testimony of the
prosecution is to be scrutinized.
11] So far as the testimony of the prosecutrix (PW-1) is
concerned, according to PW-1, she was knowing the accused as he was
residing near the house of her friend Sonu at Hinganghat. At the relevant
th
time, she was studying in 10 standard at Indira Gandhi Madhyamic
Sanstha, Wadner. On 30-03-2008 the mother of PW-1 reached her upto
Jam by bus and from Jam she went to Hinganghat. She then met her
friend Sonu. Sonu took her at her house. At about 4 pm accused came
there. He snatched her bag from Sonu. Accused proposed her to go
with him to his village otherwise he would end his life or kill her. PW-1 did
not accompany the accused to his village. However, she halted in the
house of her friend Sonu. In the next morning at 9.00 am, again accused
came to the house of Sonu and he repeated the same thing. Therefore,
PW-1 got frightened. The accused then took PW-1 to Hinganghat bus
stand, from there he took her to Pipara to the house of his sister. At about
9.00 pm. PW-1 went to sleep in the house of the sister of the accused.
The sister of the accused and her husband were sleeping in the front
room. The accused was watching television. At about 1.00 am accused
came to the place where PW-1 was sleeping. He removed her clothes so
8 Judg 190917 apeal 509.09.odt
also he removed his clothes. Then he lied down on her body and
committed forcible sexual intercourse with her, due to which she suffered
pain in her private part and it started bleeding from her private part. The
prosecutrix cried. On hearing her cries, the sister of the accused and
her husband came to that room. PW-1 then narrated the incident to
them. The husband of the accused slapped the accused. PW-1 then
went to sleep with the sister of accused. On the next day the elder
brother of the accused came to that place and he took the prosecutrix to
the Government Hospital at Hinganghat. He also called her mother at
that place. Accordingly her mother took to PW-1 at her place.
12] On 04-04-2008, the complaint was lodged by PW-1 at
Hinganghat. PW-1 explained that she was worried about the reputation of
her family hence she did not lodge the complaint immediately. PW-1 was
then referred for medical examination. During the cross examination
PW-1 stated that she started the menstruation since last three years.
Significantly, in the cross examination PW-1 admitted that at the time of
incident she was undergoing menstruation period. It was suggested to
PW-1 that since she was instigating the accused to marry with her and as
the accused refused for the same, she has lodged a false compliant
against him.
13] At this juncture it is necessary to go through the medical
evidence of the prosecutrix. PW-5-Dr. Nanda, the Medical Officer has
examined the prosecutrix on 04-04-2008. She found that her hymen was
intact. In her opinion, the prosecutrix was not subjected to sexual
9 Judg 190917 apeal 509.09.odt
intercourse. PW-5-Dr. Nanda further opined that, if there is a slight
penetration, hymen cannot be raptured and in that situation there cannot
be evidence of intercourse. She, however, clarified that there was no
history of slight penetration, in the present case. PW-5-Dr. Nanda, issued
medical certificate of the prosecutrix at Exhibit-20 which shows that the
prosecurix was not subjected to sexual intercourse & no scratches were
noticed on the body of the prosecutrix. Thus so far as the medical
evidence is concerned, there is absolutely no evidence on record to show
that the prosecutrix was subjected to sexual intercourse on the date of the
incident.
14] It is worthwhile to note that the age of the prosecutrix was
not proved as she was below the age of 16 years at the time of the
incident. In that case it can be said that the prosucutrix was on the verge
of attaining the majority and she had knowledge of what is good and what
is bad for her. The prosecutrix admittedly accompanied accused from
the house of her friend Sonu to the house of the sister of the accused,
who was completely unknown to her. The prosecutrix also stayed in the
house of the sister of the accused. According to PW-1, when she was
alone sleeping in her room, the accused came there at about 1 am and
he started outraging her modesty. The accused then removed his clothes
so also he removed her clothes. It is not at all the case of the prosecutrix
that at that point of time she screamed particularly when the accused
tried to outrage her modesty. The prosecutrix did not state that the
accused threatened her at that point of time. According to the prosecutrix,
10 Judg 190917 apeal 509.09.odt
the accused lied down on her body and committed forcible sexual
intercourse with her and therefore she suffered pain on her private part
and started bleeding. Significantly, the medical evidence is silent on this
aspect.
15] The testimony of PW-2-Durga, who is the mother of
prosecutrix shows that on 30-03-2008 her daughter wanted to go from
Hinganghat to Wadner to attend her examination. She reached upto
Jam and from Jam her daughter proceeded to Hinganghat. After two
days one Moreshwar came to her and told her that accused took her
daughter with him. PW-2-Durga then proceeded to Hinganghat. The
prosecutrix was in the hospital at Hinganghat. On enquiry, the prosecutrix
told her that the accused committed sexual intercourse with her in the
house of his sister. PW-2 stated that as she was scared, she did not lodge
the report immediately. However later on her daughter lodged the
complaint against the accused. As discussed above the age of the
prosecutrix is not found to be below the age of 16 years old. There is
nothing to disbelieve the testimony of PW-2-Durga.
16] Thus the testimony of prosecutrix is not found to be a reliable
one and she was not found to be below the age of 16 years at the time of
incident. The medical evidence also does not support the prosecution.
Thus there is no convincing evidence on record to show that the accused
attempted to commit rape on the prosecutrix. The entire story of the
prosecution under the show of doubt. The learned trial judge has not
considered all these aspects and has erroneously come to the conclusion
11 Judg 190917 apeal 509.09.odt
that the accused committed sexual intercourse with the prosecutrix.
17] In view of above, it is held that the prosecution has failed to
prove its case beyond reasonable doubt. In these circumstances, the
benefit of doubt is to be given to the appellant/accused. The learned trial
Court has not properly evaluated the evidence led by the prosecution. In
view thereof, the judgment and order passed by the learned trial Judge,
needs to be quashed and set aside. Hence, the following order:-
O r d e r
(a) Criminal Appeal No.509 of 2003 is allowed.
(b) The judgment and order passed by the learned
Adhoc Assistant Sessions Judge-2, Wardha in
Sessions Trial No.91 of 2008 on 20-04-2009, is
quashed and set aside.
(c) The appellant is acquitted of the offence under
Section 376 r/w 511 of I.P.C.
(d) The bail bond furnished by the appellant stands
cancelled.
(e) The fine amount, if any, deposited by the appellant be
refunded to him, if not withdrawn.
(f) Fees of learned Counsel (appointed) for the appellant
shall be quantified at Rs. 5000/-.
JUDGE
Deshmukh
