Laxman Vitthal Mate vs State Of Mah. Thr. Pso Ps Nandura ...
2021 Latest Caselaw 726 Bom

  901Cri.appeal409.2020.odt                                                 1


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


                       CRIMINAL APPEAL NO. 409 OF 2020

  Laxman Vitthal Mate,
  Aged about 32 years.
  Occ. Agriculturist,
  R/o. Yerali Gothnavar,
  Tq. Nandura, Dist. Buldhana
                                                                 ...APPELLANT

                                       // VERSUS //


  The State of Maharashtra through
  Police Station Officer, Police Station Nandura,
  Tq. Nandura, District Buldhana
                                               ...RESPONDENT
  ___________________________________________________________

  Shri S.V. Sirpurkar, Advocate for the appellant.
  Shri H.D. Dubey, A.P.P. for respondent - State.
  ___________________________________________________________


                               CORAM   :   PUSHPA V. GANEDIWALA, J.
                                           JANUARY 13, 2021.


  JUDGMENT :

This is an appeal against judgment of conviction passed

by the Sessions Court, Malkapur, District Buldhana in Sessions Case

No. 21/2016 dated 15/09/2020, in Crime No. 110/2017 for the

offence punishable under Sections 376(2)(f), 376(2)(n), 376-C(a),

452 and 506 of the Indian Penal Code, registered at police station

Nandura, Tq. Nandura, Dist. Buldhana.

2. The prosecution case in brief is that the informant is the

mother of the prosecutrix. She was residing separately at Surat

from her husband, who was residing at Lahori. The prosecutrix

initially was residing with her mother at Surat, however, prior to

one and half year of the incident, she was brought to her father's

place for the purpose of marriage. The appellant/accused is the

uncle of the prosecutrix i.e. elder brother of her father. He was

residing separately. He used to visit her father's house frequently.

3. It is alleged that the appellant/accused used to create

terror in the house and used to beat her father and used to establish

physical relations with the prosecutrix whenever there was nobody

in the house. It is further the case of the prosecution that for one

year, the appellant/accused used to do forcible sexual intercourse

with her by tying her hands, mouth and legs. Consequently, she

conceived, and she disclosed the misdeeds of uncle to her father and

grandmother. Immediately, her marriage was performed with one

Ganesh Wanere, with whom talks for her marriage was going on.

After marriage, when she had been to her mother's place, she

narrated the incident to her mother, and at the instance of her

mother and her maternal uncle, the present crime came to be

registered.

4. During investigation, spot panchnama was prepared.

The statements of witnesses were recorded. The prosecutrix and

the appellant/accused were sent for medical examination. The

blood samples of the prosecutrix and the accused were sent for DNA

report. After investigation, charge-sheet came to be filed in the

Court of Magistrate, who in its turn, committed the case to the

Sessions Court.

5. The Sessions Court framed charge against the

appellant/accused for the offence punishable under Sections

376(2), 376(2)(n)(f), 376(2)(n), 452 and 506 of the Indian Penal

Code. The charge was read over and explained to the

appellant/accused in vernacular, to which he pleaded not guilty and

claimed to be tried. His defence is of total denial.

6. To substantiate the charge against the

appellant/accused, the prosecution examined in all 16 witnesses

and also brought on record the necessary documents. The trial

Court recorded statement of the appellant/accused under Section

313 of the Code of Criminal Procedure, and after hearing both the

sides, the trial Court found the appellant/accused guilty of the crime

and convicted him for the aforesaid offences and sentenced him as

above. This judgment of conviction is impugned in this appeal.

7. Shri Sirpurkar, learned counsel appearing for the

appellant/accused, submitted that a careful and meaningful reading

of the testimony of the prosecutrix, who is a major girl of age 19

years, would reveal that it is a case of consensual physical

relationship. That it is unbelievable that for one year, the appellant/

accused used to come during night at her father's place, and by

tying her hands, legs and mouth, he kept forceful physical relations.

That there were ample opportunities available with her to disclose

about the same to her neighbors and also to her maternal aunt and

uncle, while she had been to their place for eight days.

8. Apart from doubting the veracity of the testimony of

the prosecutrix, the learned counsel also submitted that the father

and grand mother of the prosecutrix were not examined. There was

no constant fear from the side of the appellant/accused, as

admittedly, he was not residing in the same house.

9. He further submitted that her father and grand mother

would have been the most relevant and natural witnesses, it being a

genuine case of rape. The main contention of learned counsel is

that she being major, she had consented for the sexual relationship.

The appellant/accused in his additional written statement, also said

the same fact. The story, as alleged by the prosecution, according to

the learned counsel, is totally unbelievable, improbable and

doubtful and therefore, he submitted that the appellant/accused

deserves benefit of doubt. Learned counsel for the

appellant/accused urged to acquit the appellant/accused.

10. As against this, the learned Additional Public

Prosecutor for the State, while supporting the judgment and order

of conviction passed against the appellant/accused by the trial

Court, submitted that the sole testimony of the prosecutrix is

sufficient to convict the appellant/accused. The prosecutrix has

vividly described the act of forcible sexual intercourse by nobody

else but the real uncle of the prosecutrix by giving threats of life.

She also stated that the uncle of the prosecutrix exploited her for

one year and the helpless prosecutrix could not report the incident

due to threats given to her. The learned Additional Public

Prosecutor, therefore, urges for dismissal of the appeal as the

prosecution could prove its case beyond reasonable doubts by

examining 16 witnesses.

11. I have considered the submissions made on behalf of

both the sides. I have also perused the record with the assistance of

learned both the counsel.

12. At the outset, the age of the prosecutrix as 19 years, is

not disputed. It is also not disputed that at the relevant time, the

appellant/accused was not residing at her father's place and he was

residing separately. Out of 16 witnesses, PW-1 - the prosecutrix is

the only material witness. Smt. Parvati Mate (PW-2), the mother of

the prosecutrix, examined on the point that the prosecutrix

informed her about her pregnancy and rape by the

appellant/accused. Other witnesses are in the nature of Medical

Officer, Panch and police. The testimony of the prosecutrix is a

decisive factor in this case and hence, it is necessary to first examine

her testimony.

13. The prosecutrix deposed that the appellant/accused is

her uncle. Her father is residing at Yerali and her mother is residing

at Surat. Initially, she was residing with her mother. She was

brought at her father's place for her marriage purpose just prior to

one and half year of the incident. With regard to the incident, she

deposed that the appellant/accused used to come to her house at

night and used to tie her hands, legs and mouth and thereafter used

to take out her niker and used to do intercourse with her. That he

had threatened her not to disclose it to anybody or else he will kill

her by knife.

14. She further deposed that because of threats given to her

by the appellant/accused, she did not disclose the same to anybody.

When she missed her menstrual cycle, she informed her father and

grand mother. They gave her understanding that it happens

sometimes and took her at the hospital at Nandura. After

examination, doctor informed about her pregnancy.

15. On the next day, she was taken to Surat, where the

mother of the prosecutrix resides. She informed her mother about

the appellant/accused and her pregnancy. Thereafter, they lodged

report (Exh. 2). On the basis of this report, crime (Exh. 13) came to

be registered.

16. In her cross-examination, she had admitted that when

she was staying at her father's house, once she had been to her

maternal uncle's for eight days. She also admitted that she fell ill at

her maternal uncle's house and her aunt left her at Yerali. She also

admitted that the discussion about her marriage with Ganesh

Wanere was going on since two years and on the date of her

engagement with Ganesh Wanere, her marriage was solemnized

hurriedly, as she was pregnant.

17. Apart from the testimony of the prosecutrix, there is no

other supporting material which could be brought on record to

believe the testimony of the prosecutrix. As rightly submitted by

Shri Sirpurkar, learned counsel for the appellant/accused that

though for one year, the alleged frequent act of forceful sexual

intercourse was done by the appellant/accused, it is surprising that

the prosecutrix did not inform to the neighbors, her maternal uncle

and aunt, when admittedly, she stayed in their house for eight days,

during the period of one year.

18. Had it been a case of one incident or two, it would have

been believed, but it is a continuous one. The alleged incident is

stated to be going on over a period of one year, and admittedly, the

prosecutrix was not in the control of the appellant/accused for

24 x 7. She states that he used to come frequently in the night and

used to do forceful physical intercourse, still she did not inform it to

anybody because of threats, appears to be unbelievable and

improbable.

19. The appellant/accused is convicted for R.I. of ten years.

In the opinion of this Court, if the offence is serious one and the

minimum sentence of imprisonment for the same is ten years, the

evidence before the Court should be of sterling quality and

believable beyond reasonable doubts.

20. In the instant case, on careful and meaningful

examination of the testimony of the prosecutrix, her story of

forceful physical intercourse by the appellant/accused, frequently

during the period of one year, is unbelievable. The case appears to

be of consensual sexual relationship. Her father and grand mother

would have been the best witnesses and their evidence would have

been the best evidence before the trial Court, however, the

prosecution failed to examine these witnesses.

21. In view of the nature of evidence brought before this

Court, the appellant / accused is entitled to have benefit of doubt.

The prosecution has failed to prove that the appellant/accused had

forceful sexual intercourse with the prosecutrix during the period of

one year when she was at her father's house. This Court allow the

appeal by quashing and setting aside the judgment and order of

conviction passed by Sessions Court, Malkapur, District Buldhana in

Sessions Case No. 21/2016 dated 15/09/2020 and accordingly the

same is quashed and set aside. The appellant/accused, who is in jail

since 26/12/2016, shall be released forthwith if he is not required

in any other case.

22. The muddemal shall be disposed of, if any, being

worthless. Fine if paid be refunded to the appellant/accused

23. The criminal appeal is accordingly allowed and

disposed of.

JUDGE D.S.Baldwa