Bombay High Court
Kailash S/O Chindhuji Pachare (In ... vs The State Of Maharashtra, Through ... on 23 January, 2018
Bench: Vasanti A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.52/2016
APPELLANT : Kailash s/o Chindhuji Pachare
Aged about 41 years, Occ. :
Cultivators, R/o Rehaki,
Tahsil - Seloo, District - Wardha.
...VERSUS...
RESPONDENT : The State of Maharashtra through
P.S.O. Seloo, District - Wardha.
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Shri N.H. Samundre, Counsel for appellant
Shri S.S. Doifode, Addl. P.P. for respondent
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 23/01/2018
ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. The appellant/accused has filed the present appeal
challenging the judgment and order dated 6/4/2015 passed by the
learned Sessions Judge, Wardha in Special (Child) Case No.26/2014
whereby he was convicted for the offence punishable under Section 376
(2) (f) of Indian Penal Code and sentenced to suffer rigorous
imprisonment for life and to pay a fine of Rs.1,000/- (Rupees One
Thousand Only), in default he shall suffer further simple imprisonment
for three months. The accused was convicted for the offence punishable
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under Section 506 of Indian Penal Code and sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs.1,000/- (Rupees One
Thousand Only), in default he shall further suffer simple imprisonment
for fifteen days. The accused was also convicted for the offence under
Section 5 of the Protection of Children From Sexual Offences Act, 2012
punishable under Section 6 of the said Act and sentenced to suffer
rigorous imprisonment for life and to pay a fine of Rs.1,000/- (Rupees
One Thousand Only), in default he shall suffer further simple
imprisonment for three months. All sentences shall run concurrently with
a direction to the District Legal Services Authority, Wardha for
compensation to P.W.2 - victim under Section 357 (A) of the Code of
Criminal Procedure.
The brief facts of the case are as under : -
2. It is the case of the prosecution that before two months of
the incident the accused was working in the field of Rajesh Shukla at
village Sawargaon on yearly basis. The prosecutrix, her mother and
brother were doing daily wages work in the field of others. It is the case of
the prosecution that the accused used to demand sexual intercourse with
prosecutrix. It is the case of the prosecution that one day when her
mother and brother were not present he forcibly committed intercourse
with her and threatened her that if she disclosed the incident to anybody
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he will kill her. The prosecutrix therefore did not disclose the said
incident to anybody. It is further alleged that in the month of October,
2013 they left the field of Rajesh Shukla and started residing in the field
of one Ghumde of village Rehaki. Her father was working on monthly
wages. Her father used to send her mother and brother for doing labour
work in the field of others and demanding sexual intercourse with her.
According to the prosecution, after two days of Diwali, her father took her
to the house of her aunt, namely, Parvatabai Pachare at village Ghosad. At
that time, her aunt was not present in the house. Nobody was present in
the house and therefore, his father took the advantage of the same and
committed forcible intercourse with her and gave threat not to disclose
anybody and thereafter taken her to the house at Rehaki. The prosecutrix
thereafter disclosed the said fact to her mother. According to her, her
father used to assault her mother and brother and asked her to sleep with
him at night time.
3. The prosecutrix further came with a case that before 3-4
days, i.e., on Saturday at about 6:00 a.m. when her mother along with her
brother went for taking money and one Mamaji Ambazare went for
nature's call she herself and her father were present in the house. The
accused took advantage of the same and demanded sexual intercourse
with her. The prosecutrix told him that she was in menstrual period but
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he told her to show him and removed her nicker and torn her salwar and
committed forcible sexual intercourse with her. According to the
prosecution when Mamaji Ambazare and her mother came to the house,
she disclosed the incident to her mother. It is the case of the prosecution
that the accused committed forcible intercourse thrice with the
prosecutrix and always used to demand for sexual intercourse.
4. The prosecutrix filed the complaint in the police station
Seloo on 31/12/2013. The offence was registered vide Crime
No.186/2013 under Section 376 (2), 506 of Indian Penal Code and under
Section 6 of the Protection of Children From Sexual Offences Act, 2012.
5. During the course of investigation, the police drawn spot
panchanama. The accused was arrested and while in police custody at his
instance police seized his clothes under seizure panchanama. The
prosecution also seized clothes of the prosecutrix under panchanama.
During the course of investigation police collected vaginal swab, pubic
hair and taken blood sample of the prosecutrix under panchanama. The
prosecutrix was referred for medical examination and medical certificate
was drawn from the Doctor. During the investigation, the police recorded
the statement of the witnesses. The police sent the seized property for
chemical analysis and obtained the chemical analyzer's reports. After
completion of necessary investigation in the matter the police filed the
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charge-sheet against the accused for the offence punishable under
Section 376 (2), 506 of Indian Penal Code and Section 6 of the Prevention
of Children From sexual Offences Act, 2012.
6. The accused appeared before the learned Sessions Judge
and charge came to be framed against him for the aforesaid offences.
After recording the evidence in the matter as well as statement of the
accused under Section 313 of the Code of Criminal Procedure and after
hearing both the sides the learned Sessions Judge, Wardha has convicted
the accused for the aforesaid offences and sentenced the accused as
above.
7. Feeling aggrieved by the said judgment and order dated
6/4/2015 passed by the learned Sessions Judge, Wardha in Special
(Child) Case No.26/2014, the appellant/accused has filed this appeal
amongst the other grounds mentioned in the appeal memo.
8. We have heard Shri Samundre, the learned Counsel for the
accused and Shri Doifode, the learned Additional Public Prosecutor for the
respondent at length. Shri Samundre, the learned Counsel for the
appellant has submitted that false allegations are made by the prosecutrix
against the appellant. Her evidence is not believable at all. She has not
raised voice when the alleged incidents took place. There is no disclosure
of first two incidents to anybody. The conduct of the prosecutrix is to be
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seen. No injury is found on the private part of the prosecutrix. The fact
that the hymen was ruptured does not mean that the medical evidence
supports her version. The hymen can be ruptured by various reasons. The
evidence of the prosecutrix does not inspire confidence of the Court and
therefore cannot be believed. The evidence of other witnesses are also not
corroborative and is inconsistent to each other. The defence of the
accused is probable one. He is falsely implicated in the offence for the
reason as there was a dispute between himself and his brothers-in-law on
the basis of field property and marriage of his daughter. The appellant has
taken specific defence while recording his statement under Section 313 of
the Code of Criminal Procedure. However, the learned Sessions Judge has
not considered the same. He further submitted that the initial burden is
on the prosecution to establish the case beyond any doubt. The said
burden is not discharged by the prosecution. The chemical analyzer's
reports on record also do not support the prosecution story. The learned
Sessions Judge therefore wrongly convicted the accused for the offences
charged. The appellant is the father of the prosecutrix and therefore he
cannot commit such offence. The accused therefore be acquitted for the
offences charged.
9. Shri Doifode, the learned Additional Public Prosecutor has
submitted that the prosecutrix has narrated the incident. The medical
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evidence is also corroborative. The sole testimony of the prosecutrix could
be relied upon. The witnesses are rustic witnesses and therefore, their
version is required to be considered in that context. The prosecutrix has
disclosed the third incident to her mother and brother. The prosecutrix
cannot implicate her father in the offence on false ground as alleged by
the accused. The learned Sessions Judge has rightly considered the
evidence on record and convicted the accused for the offences charged.
No interference of this Court is called for in the impugned judgment and
order. The criminal appeal therefore be dismissed.
10. Considering the submissions of both sides, we have gone
through the evidence of the witnesses on record with the help of the
learned Counsel for the parties. The prosecution has relied upon the oral
as well as documentary evidence. So far as oral evidence is concerned, the
prosecution has strongly relied upon the evidence of P.W. 2 - Ku Laxmi
d/o Kailash Pachare. P.W.2 - Ku. Laxmi deposed that she is educated up
to 4th standard and she can read and write. Her date of birth is
19/6/1996. In the evidence she deposed that firstly they were working in
the field of Rajesh Shukla and residing in the cattle-shed. Prior to ten
months when they were residing at Sawargaon when her mother and
brother went for agricultural work her father was at house. He was under
intoxication. He caught hold of her hair and pressed her breast and pulled
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her towards himself. When she shouted, her brother came there. She
further deposed that her brother took lunch and she went along with him.
Thereafter her mother and brother went on agricultural work. When she
was in the house, her father pressed her breast and pulled her and
undressed her and forcibly ravished her without her consent. She further
deposed that thereafter they went to the field of Ghumde at Rehaki for
residence in the month of October, 2013. Her father used to make
obscene acts with her. According to the prosecutrix, for the purpose of
Diwali they went to Seloo Ghorad at the house of father's sister Shobha.
On the next day of Diwali she was alone in the house, her father pressed
her breast and ravished her against her consent and after three days they
have proceeded to Rehaki. She also deposed that she narrated the
incident to her mother on the way. When she reached at Rehaki, her
mother enquired her father but her father assaulted to her mother. She
further deposed that in the last year in the month of December on
Saturday her father sent her mother and brother to Ghumde. They
proceeded at 6:00 a.m. At that time, she was alone in the house. Her
father consumed liquor and demanded water to her and she provided the
water. At that time, he undressed her and torn her clothes and caught
hold of her hair and laid her on the ground and forcibly ravished her
against her consent. After some time her mother and brother came but
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her father was not in the house and she narrated the incident to her
mother. She further deposed that thereafter they informed the incident to
maternal uncle Vinod on telephone and called him immediately. She also
deposed that her two uncles and their wives came on the next day, she
narrated the incident to them and thereafter they lodged the complaint in
the police station. Police registered the offence.
11. The prosecutrix was cross-examined by the accused. In the
cross-examination, she stated that at present she is residing at Chana
Takli with her maternal uncle. She came to the Court today along with
her maternal uncle. She also stated that when complaint was lodged her
maternal uncle Shri Vinod Dayare was present. It was suggested to her
that her maternal uncle wanted to marry her with his nephew but she
denied. It was suggested to her that when they were residing at
Sawargaon her maternal uncle had brought proposal for her marriage but
she denied. She admitted that his mother is having agricultural land. She
denied the suggestion that her maternal uncle wanted to sell that
agricultural land and obtain the signature of her mother, but his father
asked her not to sign. In the cross-examination, it is brought on record
that she has not stated in the report that her father was under
intoxication. She was unable to assign any reason why the said fact is not
mentioned in the report by the police. She has also not stated in the
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report that at that time her brother arrived. It was suggested to her that
there was no rape committed on her when they were living at Sawargaon
but she denied. In the cross-examination, it is brought on record that in
the report she has stated that at the time of Diwali they went to her
paternal aunt Parvatabai but before the Court she has stated the house of
Shobha. It was suggested to her that the accused never committed rape at
the house of her aunt but she denied. In the cross-examination she has
admitted that on 28/12/2013 her uncle has visited her house. She also
admitted that at about 9:00 a.m. her mother and brother had gone to
Ghumde for asking money. She also stated that at that time her father
went for latrine. However, she denied that her father returned along with
her maternal uncle after latrine. She also admitted that she never stated
anything about the incident to her mother. It was suggested to her that
since her father was objecting to sell the agricultural land of her mother
and therefore on the say of maternal uncle she falsely implicated her
father but she denied.
12. If the entire evidence of the prosecutrix is considered, it
appears that her evidence is full of omissions and contradictions. She
never deposed that her father was under intoxication and used to demand
sexual intercourse with her. Her evidence is also not consistent with the
report (Exh.14). So far as the incident of rape is concerned, no specific
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date or time is mentioned nor it appears to be disclosed to anybody by
her. No voice was raised by her at the time of first incident. As regards
second incident, there is material difference in the report and evidence. At
one stage in the report she mentioned that after two days of Diwali they
went to the house of maternal aunt Parvatabai Pachare and in the
evidence she deposed that for the purpose of Diwali they went to Seloo at
the house of her father's sister Shobha and the alleged incident took place
on the next day of Diwali. Though she deposed that when they proceeded
to Rehaki she narrated the incident to her mother, but her evidence itself
is contradictory and cannot be believed. As regards the third incident,
there is also material contradiction in her evidence. She alleged that the
incident took place at about 6:00 a.m. when her mother went for bringing
money towards Ghumde and one Mamaji Ambazare went for nature's call.
In the cross-examination it is brought on record that her mother and
brother went to Ghumde for asking money at about 9:00 a.m. and her
father was also went for latrine. She has given admission that she has not
stated anything about the incident to her mother. The third incident is
also not believable at all. Her testimony does not inspires confidence of
the Court to be relied upon. The possibility cannot be ruled out that she
must have been deposed falsely at the instance of her maternal uncle.
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13. The medical evidence is relied upon by the prosecution.
P.W.9 - Dr. Krushna Shende deposed that he examined the prosecutrix.
After examination, he did not find any injuries on her person, vagina
admitted two fingers easily and hymen was ruptured at multiple sides. He
issued medical certificate vide Exh.35 and opined that there was sexual
intercourse. He was cross-examined by the accused. In the cross-
examination, he stated that in the medical history the victim had stated
that sexual intercourse took place in the afternoon.
14. From the perusal of the medical certificate (Exh.35), it
appears that there was no injury on the person of the prosecutrix , vagina
admits two fingers easily and hymen was ruptured at multiple sides.
Considering the medical evidence on record, only thing to be considered
is that the hymen was ruptured. No injury was found. The fact that hymen
was raptured itself does not mean that sexual intercourse took place.
There are several reasons for rupture of the hymen. The medical evidence
does not prove that sexual intercourse took place.
15. P.W.1 - Ashok Raghtate is the witness on spot panchanama
(Exh.9) and memorandum and seizure panchanama (Exh.10 and 11). He
has not supported the prosecution and turned hostile. P.W.5 - Nilesh
Natthuji Ghumde is the panch witness on panchanama Exh.9, 10 and 11.
As per his version, he deposed that the police drawn spot panchanama in
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his presence and seized the clothes of the prosecutrix. Police also seized
the clothes of the accused vide panchanama Exh.11. So far as
memorandum statement is concerned, he has not stated that the accused
will produce the same. On the contrary, it appears that the clothes worn
by the accused were seized. The prosecution by examining P.W.10 -
Pravin Madhukarrao Kale, the Investigating Officer has proved the spot
panchanama as well as seizure panchanama. As per the said panchanamas
the spot is shown at village Rehaki in the field of one Ghumde. The said
spot is "Gotha" in the field. There were scratches on the date when it was
drawn. The date is shown as 31/12/2013, but there is overwriting on that
document. As per the spot panchanama the clothes of the prosecutrix
were shown to be seized under the said panchanama. The clothes of the
accused were seized under panchanama (Exh.11) as per the disclosure
statement made by the accused while in police custody. The panch
witness on this panchanama has not supported the Investigating Officer
though he stated that the accused while in custody made a statement that
he will produce the clothes. The Investigating Officer has deposed that the
accused made a statement that he will produce the clothes and the same
were seized under panchanama. At the most, the seizure of the clothes of
the accused under panchanama (Exh.11) is proved. The seized clothes of
the prosecutrix as well as accused were sent to the chemical analyzer for
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analysis and the chemical analyzer's reports are at Exh.64 and 65.
16. P.W.8 - Prem Laxman Chhatre is a pancha witness on
panchanama (Exh.31 and 32). The police seized the vaginal swab, pubic
hair and blood sample of the victim vide panchanama Exh.31 and pubic
hair, blood sample and nail clippings of the accused vide panchanama
Exh.32. Though suggestion was given to this witness that nothing is
seized by the police, however, he denied the same.
17. As per the chemical analyzer's report (Exh.64) the blood
phial, pubic hair and nail clippings of the accused were analyzed. No
semen was detected on Exh.2, i.e., pubic hair, neither blood nor tissue
matter is detected at Exh.3, i.e., nail clipping and blood group of accused
was "B".
18. As per chemical analyzer's report (Exh.65) the blood, pubic
hair and vaginal swab of the prosecutrix were analyzed. No semen is
detected on Exh.2 and 3, i.e., pubic hair and vaginal swab and Exh.1 is of
blood Group "O". As per the chemical analyzer's report (Exh.66) the
clothes of the prosexutrix were analyzed. No blood was detected on
Exh.1,2,3,4 and 5, no semen was detected on Exh.1,2,3,4,5, and 6, nicker
(Exh.6) was stained with blood and middle portion of the nicker appears
to be washed and same is of blood Group "O". However, the said
circumstance also is not helpful to the prosecution for linking the accused
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with the offences charged.
19. P.W.3 - Darshan Kailas Pachare is the brother of the
prosecutrix. In the evidence, he deposed that her sister told him that
accused committed rape on her. According to him, his father used to send
him and his mother for work and then used to commit rape on the
prosecutrix. He also stated that at the time of Diwali he himself, his sister
and mother along with his father went to Ghorad to the house of his
paternal uncle and there also accused committed rape on the prosecutrix
and she told him about the same. He also deposed that they telephoned to
maternal uncle and informed the incident and his maternal uncle came to
Ghorad on 31/12/2013 and then complaint was lodged. He was cross-
examined at length. In the cross-examination, he stated that at present he
is residing with his maternal uncle and today he came to the Court with
his maternal uncle. In the cross-examination, he stated that he has four
aunts but he does not know whether Parvatabai his aunt is residing at
Ghorad. It was suggested to him that he is deposing false as per the
instructions given by his maternal uncle but he denied. If the evidence of
this witness is appreciated in proper perspective his evidence is not useful
for the prosecution for proving the fact that his sister disclosed the
incident to him. Moreover, the last incident as deposed is happened at
Ghorad and maternal uncle also came there on 31/12/2013 and
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thereafter complaint was lodged. The possibility cannot be ruled out that
he is deposing under the instructions of his maternal uncle. He has not
stated anything about the alleged incident. His evidence is vague and in
general nature and is not at all helpful for prosecution.
20. P.W.7 - Durga Kailash Pachare is the mother of the
prosecutrix. In her evidence, she stated that her husband used to send her
and her son outside for work and used to keep the victim in the house.
She also deposed that the victim Laxmi used to tell her that accused used
to remove her clothes and have a physical relation with her and used to
threaten her. She also deposed that in Diwali of last year they had gone to
Ghorad to meet her sister-in-law and they had stayed at Ghorad for few
days. At that time, the victim told her and accused slept near her on the
cot and pressed her throat and thereafter they returned to Rehaki in
search of work. She stated that they were living in the cattle-shed of one
Rajesh Shukla at village Sawargaon. Thereafter, they started residing in
the village Rehaki since last year in the field of Nathuji Ghumade and in
Diwali of last year they went to the house of her sister-in-law Shobha and
stayed there for three days. She stated that she tried to give an
understanding to the accused, but he assaulted her physically. She also
stated that the maternal uncle Vinod Dayare was called on telephone,
thereafter Vinod Dayare, Kailash Dayare and Lata Dayare came to Rehaki
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and the incident was narrated to them and thereafter the complaint was
lodged. She was cross-examined at length. In the cross-examination she
deposed that Vinod and Kailas Dayare are her cousin brothers. In the
cross-examination she stated that she has brother by name Zavru and he
has a son by name Akash. However, she denied that her brothers wanted
that the victim should be married to Akash. It was suggested to her that
the accused did not approve for the same therefore they falsely implicated
the accused but she denied. It was suggested to her that on the say of her
brothers, she filed false report and falsely implicated the accused but she
denied. In the cross-examination, she stated that her daughter did not tell
her anything about the earlier incidents prior to telling her about the
incident of Ghorad.
21. The evidence of this witness if appreciated in proper
perspective, it appears that as regards first incident, there was no
disclosure. As regards the second incident, she is stating different story
that when they were residing at Ghorad, the victim told her that the
accused slept near her on cot and pressed her throat which was not
deposed by the prosecutrix. As regards the third incident, she has not
stated about the said incident and general allegations are made that the
incident took place at Rehaki last year on Saturday and the same was
narrated to her. If at all the incident took place, she must have been
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stated at least time and place of the incident. The version of this witness is
also not cogent one to link the accused with the offence.
22. P.W.4 - Vinod Yadavraoji Dayare is maternal uncle of the
victim. As per version of this witness, the incident took place on
30/12/2013 and on that day the victim called him at Rehaki on
telephone. He also deposed that the victim told him that her father
committed rape on her. He went there on the next day along with his
brother and his wife. They brought the victim, her mother and brother to
Seloo under the pretext of going to market and the victim narrated the
incident to the wife of his brother and thereafter they went to the police
station and lodged report. He was cross-examined at length. In the cross-
examination he stated that the mother of the victim is not his real sister.
He also stated that he did not visit the house of victim's mother at any
time. He has also shown ignorance that he does not know whether mother
of victim used to visit uncle's house or not. It was suggested to him that
for selling a land he wanted the signature of the mother and accused was
against the selling of the land but he denied. It was suggested to him that
the victim never telephoned him and he never went to the house of victim
at Rehaki but he denied. It was suggested to him that the accused was not
giving signature and therefore he brought the victim to her mother and
brother to Seloo. It was suggested to him that they were thinking of
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marrying victim with his nephew Akash but he denied. It was suggested to
him that he was angry with accused and therefore they falsely implicated
him in the offence but he denied. The evidence of this witness is
altogether different than the mother and brother of the victim. As per his
version, the victim narrated the incident to the wife of his brother on the
way when they were proceeded towards Seloo under the pretext of going
to market. The possibility cannot be ruled out that they have filed a false
complaint against the accused.
23. P.W.6 - Lata Kailash Dayare has deposed that the accused is
her brother-in-law. Victim is her niece. She also deposed that on
30/12/2013 she received phone call from Vinod and told that they were
called to the house of victim at Rehaki and on the next day she herself,
Vinod and her husband went there and at that time the victim told that
the accused committed rape on her and thereafter they went to the police
station and lodged report. In the cross-examination, she stated that the
mother of the victim is not her real sister-in-law. Her husband is the
cousin brother of Durga. It was suggested to her that they wanted to sell
the agricultural land and went to Rehaki but accused was not ready for
selling. It was suggested to her that false report is lodged but she denied.
Her evidence is also inconsistent with the evidence of Vinod. She stated
that the incident was disclosed in the house of victim but Vinod stated
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that she disclosed the incident on the way of going to Seloo. The evidence
of this witness is also not useful for the prosecution.
24. The accused in the statement recorded under Section 313 of
the Code of Criminal Procedure has admitted that he was residing along
with his wife and daughter in the cattle-shed of Rajesh Shukla. However,
he denied all other allegations made against him. In the statement
recorded under Section 313 of the Code of Criminal procedure he has
specifically stated that the victim is his daughter and he did not commit
such type of offence with her. The dispute arose between himself and his
brothers-in-law on the basis of field property and marriage of his
daughter, hence, they implicated him in this false case. No doubt the
accused has given suggestion to the prosecution witnesses on this count
also. No evidence is adduced by the accused in support of its defence.
However, the accused has shown his probable defence from the evidence
of the prosecution itself. Initial burden to establish the guilt is on the
prosecution. The prosecution has to prove the guilt of the accused beyond
all reasonable doubts. The burden of the accused to discharge his defence
is not as much strict as of the prosecution. The only probability is to be
considered. If the evidence of the prosecution witnesses is taken into
consideration their evidence is inconsistent to each other. Admittedly, the
mother of the victim is having agricultural land. The possibility cannot be
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ruled out that for selling the said land the brothers of the wife of the
accused have involved the accused in the false case. P.W.4 - Vinod Dayare
is not the real brother of the mother of the prosecutrix and is her cousin
brother. He had admitted in his cross-examination that he had never
visited the house of the accused and the mother of the prosecutrix at any
point of time earlier. He had also admitted in his cross-examination that
the mother of the prosecutrix had a share in the joint family field
property. In this background, it would be necessary to consider whether
the accused was implicated in a false case as it is suggested to the
prosecution witnesses that the accused was prohibiting the mother of the
prosecutrix from signing on the papers for sale of the agricultural land in
which she had a share on the say of Vinod Dayare. Also, there is a
possibility as is suggested to the prosecution witnesses that since Vinod
Dayare desired that the prosecutrix should be married to his nephew
Akash and since the accused did not accept the proposal, the accused was
falsely implicated in the crime by the prosecutrix and Shri Vinod Dayare.
The trial Court failed to consider that though Vinod Dayare had never
been to the house of the accused and the mother of the prosecutrix before
he was called by the prosecutrix on telephone after she was allegedly
raped by the accused on the third occasions, the prosecutrix and her
mother attended the Court along with Vinod Dayare and they admitted
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that they were residing in his house at that time. In the aforesaid
circumstances, the possibility that the accused was falsely implicated at
the instance of the cousin matrimonial uncle of the prosecutrix cannot be
ruled out. It is to be noted that at the time of filing of the complaint he
had accompanied with the prosecutrix and mother of the prosecutrix. The
learned Sessions Judge has not considered the defence of the accused and
relying on the testimony of the prosecutrix convicted the accused for the
offences charged.
25. The learned Sessions Judge has wrongly held that the
medical evidence and victim's evidence support the prosecution and held
the accused guilty. The learned Sessions Judge has not considered the
contradictory evidence on record, material omissions brought on record
and defence of the accused and wrongly came to the conclusion that the
prosecution has proved the guilt of the accused beyond reasonable doubt
for the offences charged. Mere fact that the victim is a daughter and is
minor of 16 years old is also no ground to hold him guilty. The version of
the prosecution is not consistent with her report and is exaggerated one
and it cannot be relied upon.
26. The learned Additional Public Prosecutor has relied upon
the ruling reported in 2017 (3) Mh.L.J. (Cri.) (S.C.) 68 (State of
H.P....Versus...Sanjay Kumar alias Sunny).
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In the above ruling, the Hon'ble Apex Court has held that
the testimony of a victim in cases of sexual offences is vital. Unless there
are compelling reasons which necessitate looking for corroboration of a
statement, Courts should find no difficulty to act on testimony of victim of
a sexual assault alone to convict accused. No doubt, her testimony has to
inspire confidence.
27. In the instant case, the evidence of the prosecutrix does not
inspire confidence of the Court to rely upon. Her version is not believable
at all and exaggerated one and is not consistent with her report, and
therefore, same cannot be relied upon. The above ruling therefore is not
helpful to the prosecution.
28. The learned Additional Public Prosecutor has also relied
upon ruling, reported in (2017) 2 Supreme Court Cases (Cri.) 673
(Mukesh and another...Versus...State (NCT of Delhi) and others.
In the above ruling, the Hon'ble Supreme Court has held
that the conviction can be based on sole testimony of prosecutrix. There is
no rule that the testimony of prosecutrix cannot be acted upon without
corroboration. Such corroboration is not a rule of law but a requirement
of prudence. The testimony of prosecutrix stands on a higher pedestal
than injured witness. The Court should examine the broader probabilities
and not get swayed by infirmities. No doubt where there are serious
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infirmities and inherent inconsistencies in evidence of prosecutrix
approach of Court would be to examine these as well. Otherwise, Court
should not attach undue importance to minor inconsistencies. Due to
efflux of time there is bound to be minor contradictions and
inconsistencies. Minor inconsistencies in testimony of witnesses is often a
hallmark of truth of testimony.
29. No one can dispute the above ratio laid down by the Hon'ble
Apex Court. However, considering the facts of the present case and after
appreciating the evidence of the prosecutrix by other angle it does not
inspire confidence of the Court and therefore, the same cannot be relied
upon.
30. It is well settled that in a case of rape like the other criminal
cases the onus is always on the prosecution to prove each ingredient of
the offence. The prosecution must discharge this burden of proof to bring
home the guilt of the accused and this onus never shifts. It is also well
settled that the conviction could be based on the sole testimony of the
prosecutrix, if it is implicitly reliable and there is a ring of truth in it.
Corroboration as a condition for judicial reliance on the testimony of a
prosecutrix is not requirement of law but a guidance of prudence under
given circumstances. In the instant case, we do not find that the evidence
of the prosecutrix inspires confidence. There are material omissions and
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glaring contradictions in the evidence of the prosecutrix and her mother
and brother. Each of them have a different story to tell about the
commission of the offence of rape on the prosecutrix on three occasions.
The evidence of the prosecutrix in her examination-in-chief and her cross-
examination also differs on material particulars. In these set of facts, it
would be extremely risky to base the conviction of the accused on the sole
testimony of the prosecutrix when it does not inspire confidence.
31. After hearing the learned Counsel for the parties and after
appreciating the evidence on record we are of the considered view that
the learned Additional Sessions Judge, Wardha committed error while
convicting the accused for the offences charged. The findings recorded by
the learned Sessions Judge, Wardha are not sustainable in law and liable
to be quashed and set aside. The impugned judgment and order dated
6/4/2015 convicting the accused for the offences punishable under
Section 376 (2) (f) and 506 of Indian Penal Code and for the offence
under Section 5 of the Protection of Children From Sexual Offences Act
punishable under Section 6 of the said Act is liable to be quashed and set
aside. The appeal filed by the appellant deserves to be allowed. Hence, we
pass the following order :-
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O R D E R
(i) Criminal Appeal No.52/2016 is allowed.
(ii) The impugned judgment and order dated 6/4/2015
passed by the Additional Sessions Judge, Wardha in Special (Child) Case
No.26/2014 is quashed and set aside. The accused - Kailash s/o
Chindhuji Pachare is acquitted of the offences punishable under
Sections 376 (2) (f) and 506 of Indian Penal Code as well as for the
offence under Section 5 of the Protection of Children From Sexual
Offences Act, 2012 punishable under Section 6 of the said Act.
(iii) Fine amount, if paid, by the accused be refunded to
him.
(iv) Since the accused is in jail, he be released forthwith, if
not required in any other crime or case.
(v) The seized Muddemal property being worthless be
destroyed after the appeal period is over.
JUDGE JUDGE
Wadkar
