Akash S/O Subhash Narayane And 2 ... vs State Of Mah., Thr. Pso P S ...
2021 Latest Caselaw 2034 Bom

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

                             CRIMINAL APPEAL NO.638 OF 2019

1. Akash S/o Subhash Narayane,
   Aged about : 23 years, Occ : Labour,
   R/o Rarva, Tahsil and District
   Yavatmal.

2. Vivek Bhagwan Wagde,
   Aged about : 24 years,
   Occ : Labour, R/o Rarva,
   Tahsil and District Yavatmal.

3. Firoz Dnyaneshwar Motghare,
   Aged about : 28 years, Occ : Labour,
   R/o Panzarepar, Tahsil Kuhi and
   District Nagpur.                                       ...     APPELLANTS
                                                                  (In Jail)

// V E R S U S //

State of Maharashtra,
Through Police Station Officer,
Police Station Wadgaon-Road,
District Yavatmal.                                        ...     RESPONDENT
-------------------------------------------------------------------------------------------
Shri P. S. Wathore, Advocate for appellants.
Shri T. A. Mirza, Additional Public Prosecutor for respondent-State.
-------------------------------------------------------------------------------------------

                                        CORAM : Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 01/02/2021.

ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)

1. Through this appeal, the appellants challenge the judgment

and the order dated 23.08.2019 passed by the Additional Sessions Judge,

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Yavatmal, in Sessions Trial No.75/2014 convicting and sentencing the

appellants in the manner stated hereinafter:

(i) The accused nos.1 and 2 - under Section 366 read with Section 34 of

the Indian Penal Code to undergo rigorous imprisonment of seven years and

to pay a fine of Rs.5,000/- each, in default to undergo further rigorous

imprisonment of one year;

(ii) The accused nos.1, 2 and 3 - under Section 376-D of the Indian Penal

Code to suffer rigorous imprisonment for 20 years and to pay a fine of

Rs.20,000/- each and in default to undergo further rigorous imprisonment

for one year.

2. The prosecution case in brief is that, the Informant - Victim,

aged about 20 years is residing in a rented room with her friend Sushma.

The Victim had love-affair with one Mayur Mun. After few days, she left the

rented room and started residing at Jamankar Nagar at the house of Rajesh

Yadav alongwith Damini. The Victim intended to perform marriage with

Mayur Mun. On 20.4.2014, the Victim came to know that Mayur consumed

poison and on that day at 7.30 p.m. the accused no.2 called the Victim and

told her to come near Anglo Hindi High School. The Victim, therefore, went

near the said school at 8.30 p.m. and asked the accused no.2 about status of

Mayur. The accused no.2 refused to tell anything to the Victim and told her

to sit on his motorcycle. After some distance, the accused no.1 also sat on

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the said motorcycle and all three went to Bhari. When the Victim told the

accused nos.1 and 2 that she wanted to go to her house, the accused no.1

caught hold her hand and laid her down. The accused no.1, thereafter

removed clothes of the Victim and committed rape on her. Thereafter, the

accused no.1 gagged her mouth and the accused no.2 committed rape on

her. Thereafter, at about 10.00 to 10.30 p.m., both the accused brought the

Victim forcefully at Parwa in the Zilla Parishad School and committed rape

on her. Thereafter, the accused no.3 came there and he also committed rape

on the Victim. The Victim shouted but, nobody was there to come and help

her. The accused nos.1 and 2 thereafter brought the Victim to Jamankar

Nagar on the motorcycle and dropped her there. They threatened the Victim

not to disclose the incident to anybody otherwise, they will kill her. The

Victim thereafter narrated the incident to one Raj Thakur and along with

him went to the Police Station and lodged report against the accused

persons, which was registered as Crime No.182 of 2014 under Sections 376-

D, 363 and 506 of the Indian Penal Code.

3. The Investigating Officer carried out the investigation,

arrested the accused and sent the Victim and the accused persons to the

hospital for medical examination. The Investigating Officer recorded

statement of the accused no.1, seized samples and clothes under

panchanama. The articles were sent for chemical analysis. After completion

of the investigation, he submitted charge-sheet against the accused in the

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Court of the Chief Judicial Magistrate.

4. Since the offence is punishable under Section 376-D of the

Indian Penal Code, which is exclusively triable by the Court of Sessions, the

case was committed to the Court of Sessions for trial under Section 209 of

the Code of Criminal Procedure.

5. The charges were framed against the accused persons under

Sections 366 read with Section 34 and Section 376-D read with Section 34 of

the Indian Penal Code. The accused pleaded not guilty to the charges and

claimed to be tried.

6. The prosecution examined five witnesses. The statements of

the accused under Section 313 of the Code of Criminal Procedure were

recorded. The defence of the accused was of total denial and false

implication.

7. The learned Sessions Judge, after considering the evidence

adduced by the prosecution and after hearing both sides, was pleased to

convict the accused in the manner, as stated in paragraph no.1 of the

judgment. Hence this appeal filed by the accused.

8. We have heard Shri P.S. Wathore, learned Advocate for the

appellants and Shri T.A.Mirza, learned Additional Public Prosecutor for the

respondent. We have carefully examined the impugned judgment and the

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material available on record.

9. At the outset, it is well settled legal proposition that once the

statement of the prosecutrix inspires confidence, conviction can be based

only on the solitary evidence of the prosecutrix and no corroboration would

be required, unless there are compelling reasons, which necessitates the

corroboration of her statement. The corroboration of the testimony of the

prosecutrix, as a condition for judicial reliance, is not a requirement of law,

but a guidance of prudence. Under the given facts and circumstances, minor

contradictions and/or insignificant discrepancies should not be a ground for

throwing out, otherwise reliable prosecution case. But, it is equally well

settled that where the evidence of the prosecutrix is found suffering from

serious infirmities and inconsistencies with other material, the prosecutrix

making deliberate improvements on the material point, with a view to rule

out consent on her part and there being no injury on her person, even

though, her version may be otherwise, no reliance can be placed on her

evidence. (See Suresh N. Bhusare and others Vs. State of Maharashtra

(1999) 1 SCC 220). However, even in a case of rape, onus is always on the

prosecution to prove affirmatively each ingredient of the offence it seeks to

establish and such onus never shifts. It is no part of the duty of defence to

explain as to how and why in the rape cases the Victim and other witnesses

have falsely implicated the accused. The prosecution case has to stand on its

own legs and cannot take support from the weakness of the case of defence.

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However great suspicion against the accused and, however, strong the moral

belief and conviction of the Court, unless the commission of offence by the

accused is established beyond reasonable doubt on the basis of legal

evidence and material on record, he cannot be convicted for the offence.

There is initial presumption of innocence of the accused and the prosecution

has to bring home the offence against the accused by reliable evidence. The

accused is entitled to benefit of any reasonable doubt. [See Tukaram &

Another Vs State of Maharashtra (1979) 2 SCC 143].

10. The instant case is required to be decided in the light of the

aforesaid settled legal propositions. We have appreciated the evidence on

record. As is evident from the record and as per initial statement (Ex.44),

which formed the basis of the F.I.R., the prosecutrix (PW 1) claimed that on

20.4.2014, she got to know that Mayur consumed poison. On the same day

at 7:30 p.m. Vikky called her at Anglo Hindi School on the pretext that he

wanted to tell about her boyfriend. The prosecutrix reached Anglo High

School at 8:30 p.m.. It is stated that Vikky told her to sit on his motorcycle

and thereafter Aakash who was standing at some distance also sat on the

motorcycle. It is stated that Vikky held her hand and laid her down and

Aakash committed sexual intercourse with her. Thereafter, Aakash gagged

mouth of the victim and Vikky performed forcible intercourse with her.

Thereafter at about 10.00 to 10.30 p.m. both the accused forcibly made her

to sit on their motorcycle and took her to the Zilla Parishad School at Parva.

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At Zilla Parishad school, Aakash and Vikky again raped her. Thereafter third

accused Firoz came there and raped the prosecutrix. She shouted but,

nobody came to rescue her.

11. Strange enough on 3.5.2014, in a supplementary statement,

the prosecutrix took somersault and set up entirely different story that Vikky

called her at Nehru Stadium ground. When the prosecutrix reached the

ground at about 8:30 p.m., Vikky told her that he wanted to convince her. It

is also stated by the prosecutrix that since she wanted to recharge her

mobile, she accompanied Vikky on her motorcycle. After travelling some

distance, Aakash also sat on the motorcycle and forced her to Bhari Shivar

agricultural land near well. It is stated that she was raped there 4-5 times. It

is also stated that they performed unnatural sex with her. It is also stated

that in the agricultural land they forcibly raped her for one hour. Thereafter

Aakash and Vikky took her on motorcycle to Zilla Parishad school and after

jumping from compound of the said school they forcibly raped her. The

accused Firoz came there after half an hour alongwith dinner. Firoz also

forcibly raped her and performed unnatural sex.

12. In our mind, a complete contradictory version of same

occurrence has been stated by the prosecutrix in her first statement dated

21.4.2014, which formed basis of the FIR and supplementary statement

dated 3.5.2014. The differences in two statements of the prosecutrix cannot

be considered as minor contradictions. In the FIR, she stated that occurrence

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of rape at Bhari but, in the supplementary statement, she stated the place of

incident to be agricultural land near well. In the testimony before the Court,

the prosecutrix has not stated anything about the place of incident near well.

In the initial statement, she stated that Aakash and Vikky raped her once

before taking her to Zilla Parishad School. But, in the supplementary

statement, she stated that Vikky and Aakash raped for 4-5 times before

taking her to school.

13. Moreover, Dr. Atul Padmawar (PW 4) did not find any

external injury on any part of body of the prosecutrix. Similarly, there is no

evidence with regard to injury to the prosecutrix. In the absence of injury

which leads to inference, in the facts of the present case, that she did not

raise any resistance when the appellants were stated to have committed

forcible sexual intercourse with her. It appears to be somewhat unnatural

that young girl would submit herself to forcible intercourse without

struggling particularly, when it is not the case of the prosecutrix that the

appellants were having any sort of weapon to scare her at the time of

commission of the alleged rape. Had she struggled at that time, there would

have been some scratches on her face or hands or arms of the appellant as

well as on her body. This is an important circumstance, which weakens the

allegation of rape. Complete absence of injury or scratches on the person of

the appellant and the prosecutrix would suggest that the intercourse was not

forcible and raises possibility of consent of the prosecutrix.

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14. One more factor, which raises doubt about credibility of the

case of the prosecutrix is that the prosecutrix in her deposition stated that

Vikky informed her that Mayur consumed poison at 2:30 to 3 p.m. on the

day of incident i.e. 20.4.2014. The statement of Mayur recorded by the

police under Section 161 of the Code of the Criminal Procedure shows that

when Mayur saw the prosecutrix alongwith two other boys on motorcycle at

8:30 p.m. on 20.4.2014, he consumed poison at 10:30 p.m. on the same day.

Therefore, the reason stated by the prosecutrix to accompany Vikky and

Aakash on motorcycle at 8.30 p.m. on 20.04.2014 raises doubt about her

version that the accused nos.1 and 2 Vikky and Aakash forcibly took her on

motorcycle and committed forcible intercourse on her.

15. Taking overall view of the matter that the prosecutrix

changed her version completely within few days after lodging the F.I.R. ; the

statement of Mayur recorded under Section 161 of the Code of Criminal

Procedure, which contradicts reason of prosecutrix to accompany the

accused nos.1 and 2, become strong circumstances to create serious doubt

about her integrity as witness in the Court. Therefore, in the facts of the

present case in absence of credible corroboration to the accusations of the

prosecutrix, the Trial Court was not justified in convicting the appellants for

the offences punishable under Sections 376-D, 363 and 506 read with

Section 34 of the Indian Penal Code. For the said reasons, we are satisfied

that the ocular account of the prosecutrix in the instant case is unworthy of

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belief. In our view, the Trial Court ought to have rejected ocular account of

the prosecutrix.

16. Accordingly, we hold that the impugned judgment and order

of the Trial Court convicting and sentencing the appellants is based on

surmises and conjectures warranting interference in the present appeal. We

therefore, pass the following order:

ORDER

(i) The judgment and order dated 23.08.2019 passed by the Additional Sessions Judge, Yavatmal in Sessions Trial No.75 of 2014 convicting the accused no.1 - Akash Subhash Narayane and the accused no.2 - Vivek Bhagwan Wagde for offence punishable under Section 366 read with Section 34 of the Indian Penal Code and the accused no.1 - Akash Subhash Narayane, accused no.2 - Vivek Bhagwan Wagde and accused no.3 - Firoz Dnyaneshwar Motghare for offence punishable under Section 376-D of the Indian Penal Code is set aside.

(ii) The accused nos.1 and 2 are acquitted of the charge of commission of offence punishable under Section 366 read with Section 34 of the Indian Penal Code.

(iii) The accused nos.1 to 3 are acquitted of the charge of commission of offence punishable under Section 376-D read with Section 34 of the Indian Penal Code.

(iv)        The muddemal property be disposed as per the order of Additional





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Sessions Judge, Yavatmal after the period of appeal.

The Criminal Appeal is allowed in the above terms.

                      JUDGE                            JUDGE


Ambulkar