Yuvraj S/O Prabata Pawar And Anr vs The State Of Maharashtra
2021 Latest Caselaw 15506 Bom

                                                Criminal Appeal No.8/2017 with
                                                  Criminal Appeal No.387/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                 CRIMINAL APPEAL NO.8 OF 2017 WITH
                CRIMINAL APPLICATION NO.3877 OF 2019


 Yuvraj s/o Parbata Pawar
 age 25 years, Occu. Education,
 R/o Village Amdura,
 Taluka Mudkhed, District Nanded
 (At present in Nanded District Prison,
 Nanded, Taluka and District Nanded        ... APPELLANT
                                     (Original Accused No.1.)
       VERSUS

 1)       The State of Maharashtra
          through the Police Station,
          Mudkhed, Taluka Mudkhed,
          District Nanded.

 2)       Varsha Babarao Pawar,
          Age 26 years, Occu. Housewife,
          R/o Amdura, Taluka Mudkhed,
          District Naneded                           ... RESPONDENTS

                               .......
 Shri R.S. Deshmukh, Senior Counsel for the appellant
 Shri S.P. Sonpawale, A.P.P. for respondent No.1 - State
                               .......

                                      WITH

                CRIMINAL APPEAL NO.387 OF 2020 WITH
                CRIMINAL APPLICATION NO.1179 OF 2020


 Sudarshan s/o Govindrao Pawar
 age 21 years, Occu. Education,
 R/o Amdura, Taluka Mudkhed,
 District Nanded                                      ... APPELLANT
                                                (Original Accused No.2.)




::: Uploaded on - 28/10/2021                         ::: Downloaded on - 29/10/2021 08:36:16 :::
                                                Criminal Appeal No.8/2017 with
                                                 Criminal Appeal No.387/2020
                                     :: 2 ::


          VERSUS

 The State of Maharashtra
 through the Police Inspector,
 Mudkhed Police Station,
 District Nanded.                              ... RESPONDENT

                               .......
 Shri Satish A. Gaikwad, Advocate for the appellant
 Shri S.P. Sonpawale, A.P.P. for respondent - State
                               .......


                               CORAM :         R. G. AVACHAT, J.

                   Date of reserving judgment : 3rd July, 2021
                   Date of reserving judgment : 28th October, 2021


 JUDGMENT:

Both these appeals are directed against the

judgment and order dated 21/11/2016, passed by the

Sessions Judge, Nanded in Sessions Case No.4/2015. The

appellants herein have been convicted for the offences

punishable under Section 376(D) (gang rape), Section 354(A)

(1)(i) read with Section 354(A)(2) and 354-B of the Indian

Penal Code and Section 506 read with Section 34 of the

Indian Penal Code and, therefore, sentenced to suffer rigorous

imprisonment for 20 years and to pay fine of Rs.2000/- each

for the offence punishable under Section 376(D); and for

offence punishable under Section 506, they have been

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sentenced to suffer rigorous imprisonment for two years and

to pay fine of Rs.1000/- each. In default of payment of fine,

they have been directed to undergo rigorous imprisonment for

three months and simple imprisonment for one month

respectively. No separate sentence has been awarded for the

offences punishable under Section 354(A)(1)(i) read with

Section 354(A)(2) and 354-B of the Indian Penal Code .

2. Facts giving rise to the present appeals are as

follows :

The prosecutrix is resident of village Amdura,

Taluka Mudkhed, District Nanded. On 14/10/2013 by 4.00

p.m., she had been to panand road in the village for relieving

herself. She sat under a tamarind tree for the purpose. Both

the appellants came from behind. One of them covered her

mouth with his hand. The other held her hand. They dragged

her to a sugarcane field of one Anandrao Pawar. Yuvraj (A/1)

fished out a knife and asked her not to raise shouts. He made

her fall on the ground, gave his cell phone to Sudarshan (A/2)

and asked him to shoot sex scene. Accused No.1 thereupon

committed sexual intercourse with her. He then gave he

threat of making the video viral. The prosecutrix came her

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home. She made a call to her uncle, Prabhakar (P.W.3)

(husband of maternal aunt) and informed him about the

incident. He came her home. The husband of prosecutrix

was away at Mudkhed. He too was informed. He returned

home. The prosecutrix, her husband Babarao (P.W.8) and

Prabhakar (P.W.3) went to the police station. The prosecutrix

lodged the F.I.R. (Exh.27).

3. The Police Station Officer registered the crime vide

C.R. No.68/2014 for the offence punishable under Sections

376(D), 354(A)(1)(i) read with Sections 354(A)(2), 354-B,

323, 506, 294 read with Section 34 of the Indian Penal Code

and Section 66-E of the Information and Technology Act.

Clothes on the person of the prosecutrix at the time of the

offence and one anklet were delivered to the police officer.

She was thereafter medically examined. On the next

morning, the investigating officer Ashok Patil (P.W.13) went to

the village. He drew scene of offence panchanama. A knicker

and an anklet came to be seized from the scene of offence.

Statements of persons acquainted with the facts and

circumstances of the case were recorded. The appellants

came to be arrested. Their cell phones were taken charge of.

A knife came to be seized pursuant to a disclosure statement

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made by accused No.1 - Yuvraj. Seized articles were sent for

Forensic Science Laboratory, Aurangabad. On completion of

the investigation, the appellants were proceeded against by

filing charge sheet in the Court of Judicial Magistrate, First

Class, Mudkhed. The learned Judicial Magistrate, First Class,

Mudkhed committed the case to the Court of Sessions.

4. The learned Sessions Judge framed the charge

(Exh.9) against both these appellants for offences punishable

under Sections 376(D), 354(A)(1)(i) read with Sections

354(A)(2), 354-B, 323, 506, 294 read with Section 34 of the

Indian Penal Code and Section 66-E of the Information and

Technology Act. The appellants pleaded not guilty. To bring

home the charge, the prosecution examined 14 witnesses and

tendered in evidence various documents. It is the case of the

appellants that they have been falsely implicated on account

of a political rivalry with the husband of the prosecutrix. It is

their case that, there were two groups in the village. A fight

had ensued in two groups over appointment of a President of

Tanta Mukti Samiti (Disputes Resolution Committee). A

murder took place over the same. The husband of the

prosecutrix and over 30 persons of his group were behind the

bars. They had requested the appellant Yuvraj and his

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brothers to give evidence in their favour. Since they refused,

a false F.I.R. came to be lodged to take revenge.

5. Heard. Learned counsel for both the appellants

would submit that, the medical evidence does not reinforce

the testimony of the prosecutrix. Her husband was informed

the appellants to have had outraged her modesty. A written

F.I.R. was lodged. The prosecutrix and her relations had a

deliberation before lodging of the F.I.R. The Trial Court,

therefore, ought not to have relied on uncorroborated

testimony of the prosecutrix. Learned counsel, therefore,

urged for allowing the appeal.

6. The learned A.P.P., on the other hand, reiterated

the reasons given by the Trial Court in support of the

impugned judgment. He took this Court to the relevant

evidence on record to ultimately submit that, the conviction

could be based on the sole testimony of the prosecutrix. He,

therefore, urged for dismissal of the appeals.

7. The incident took place by 4.00 p.m. on

13/10/2014. The prosecutrix had been towards the field of

one Ananda Pawar. She had been there to answer nature's

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call. She sat under a tamarind tree to relieve herself. Both

the appellants approached her from behind. One of them

covered her mouth. The other held her hand. Both of them

took her in the sugarcane field. The appellant Yuvraj made

her fall on the ground. He then handed over his cell phone to

appellant Sudarshan and asked him to shoot the scene.

Yuvraj fished out a knife and gave threat at its point to the

prosecutrix. He asked her to keep quiet and then committed

rape of her. All these facts have been narrated by the

prosecutrix in her examination-in-chief. It is further in her

evidence that, she came home, contacted her uncle

Prabhakar on cell phone. He came. She shared her ordeal

with the uncle. Her husband was away at Mudkhed. He too

was informed. He came home within an hour. The

prosecutrix, her uncle and husband then went to the police

station. She lodged there the F.I.R. Exh.27.

8. The prosecutrix was subjected to extensive cross-

examination. She denied to have falsely implicated both the

appellants on the ground of village politics. It has, however,

come in her evidence that she knew appellant Yuvraj since

after her marriage. Both Purbhaji Pawar, the Director of

Sugar Factory and one Datta Gangaram Pawar hail from the

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very village. There was a quarrel over the post of President

of Tanta Mukti Committee. Many persons from the village

were arrested. Her husband had also been in jail in that

connection. About 30 persons from a group to which her

husband belongs, were behind the bars. She, however,

categorically denied the suggestion that her husband and

Purbhaji were expecting the appellant Yuvraj to give evidence

on their side in the court of law. Since he did not, false F.I.R.

is said to have been lodged.

9. It is further in her evidence that, on the next

morning, the police had come to the village. Scene of offence

panchanama Exh.29 was drawn. An anklet and a knicker

came to be seized from the site. She further testified that,

she had put up a resistance against the sexual advance made

by appellant Yuvraj. She even pushed him behind. As she

was made to lie on the ground, she suffered abrasions to her

neck and back as well. It is further in her evidence that, it

was time for farmers to return home from their respective

fields by the time the incident took place. According to her,

there was no one around or in the nearby of the scene of

offence.

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10. Both Prabhakar (P.W.3) and husband (P.W.8) of

the prosecutrix gave evidence consistent with the evidence of

the prosecutrix. It is in evidence of P.W.3 Prabhakar that he

received phone call of prosecutrix on his cell phone. He

immediately rushed to the village and came to know about

the incident. She related him entire incidence. It is further in

his evidence that he gave a phone call to her husband. He

too came home from Mukhed. The prosecutrix related him

what had happened with her. It is in evidence of Babarao

(P.W.8), husband of the prosecutrix that, he was away at

Mudkhed for attending a public meeting of Shri Ashok

Chavan. He had been there taking some of the villagers in

his tempo. In response to call from Prabhakar, he rushed

back to the village to learn from his wife (prosecutrix) her

ordeal. He accompanied his wife to the police station.

11. P.W.2 Bishansingh is a panch witness to the scene

of offence panchanama (Exh.29). He gave his evidence in

support of the prosecution. It is in his evidence that, the

knicker and anklet came to be seized from the site.

12. P.W.4 Ramdas was a witness to the disclosure

statement made by the appellant Yuvraj and consequent

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recovery of a knife pursuant thereto. By his evidence, it has

been proved that the appellant made a disclosure statement

to have concealed the knife at a particular place. He took out

the same.

13. P.W.5 Ananda is resident of the very village. He

deposed to have had seen the prosecutrix proceeding towards

Panand Road with a pot in her hand. He found her returned

from the field. She was seen dejected. Nothing could be

elicited from his cross-examination.

14. P.W.6 Datta Pawar would run a flour mill in the

village. It is in his evidence that, the appellant Sudarshan

had come to his flour mill with grains to have it grind. He saw

the prosecutrix went towards the field and appellant

Sudarshan followed her.

15. P.W.7 Lakdoji Pawar is the resident of the village.

It is in his evidence that, the appellant Sudarshan met him in

the village by little past 3.00 p.m. He took his cell phone and

went aside. He talked on cell phone and then returned it to

him (P.W.7). He gave his cell phone Number as 9860305931.

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16. P.W.10 Gangareddi Potalgaonkar is the Circle

Officer (Revenue), who prepared the sketch of the scene of

offence. P.W.11 Madhav Mahabale is a Police naik who had

carried the seized articles to Forensic science Laboratory,

Aurangabad. P.W.12 Milind Kolwadkar was a Nodal Officer

with Bharati Airtel. He placed on record the Call Data Records

(CDRs). P.W.13 Ashok Patil and P.W.14 Vishal Nande did the

investigation of the crime. The medical evidence would be

adverted to later on.

17. In case of Radhu Vs. State of Madhya Pradesh

[ (2007) 12 SCC 57 ], the Apex Court observed :-

"A finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix and her testimony should not be rejected on the basis of minor discrepancies and contradictions - It is further held, absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor can be construed as evidence of consent, nor the opinion of a doctor that there was no evidence of any sexual intercourse or rape sufficient to disbelieve the victim - However, courts should, at the same time, bear in mind that false charges of rape are not uncommon, and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability - Whether there was rape or not would depend ultimately on the facts and circumstances of each case.

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Minor injuries found on her body, by themselves not sufficient to establish rape, wrongful confinement or hurt, where evidence of prosecutrix was not found trustworthy and there was no corroboration - Failure by defence to prove motive for false implication, inconsequential."

18. In case of Om Prakash Vs. State of U.P. [ (2006) 9

SCC 787 ], the Apex Court observed :-

"It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scathing her own prestige and honour.

The Courts while dealing with such cases should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires

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confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case . . . ."

19. The offence punishable under Section 376(D) of

the Indian Penal Code is punishable with imprisonment for a

term which shall not be less than 20 years. The offence is

serious one. More the severe offence, stricter be the proof.

In case of Paramjeet Singh Alias Pamma Vs. State of

Uttarakhand [ (2010) 10 SCC 439 ], the Apex Court

observed:-

"11. In Sarwan Singh Rattan Singh v. State of Punjab [ AIR 1957 SC 637 ], this Court observed :-

"12. . . . . considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted."

12. Thus, the law on the point may be summarised to the effect that in a criminal trial

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involving a serious offence of a brutal nature, the Court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the Court that its case has been proved beyond reasonable doubt."

20. Here the prosecutrix gave her evidence very much

consistent with the F.I.R. (Exh.27). The F.I.R. was lodged

within a few hours of the alleged offence. The offence took

place in a sugarcane field when the prosecutrix had been

there to relieve herself. She gave the details as to how both

the appellants approached her and appellant Yuvraj sexually

ravished her. Appellant Sudarshan is said to have video-

recorded the sexual assault. On his arrest, the cell phone

was taken charge of. It was sent to CSFL. No recorded

version, however, found therein. Both the prosecutrix and

her husband in their examination-in-chief testified that the

prosecutrix lodged an oral report (F.I.R.). She, however,

corrected herself in cross-examination to state that she

herself wrote down the F.I.R. Whereas the endorsement

appearing on the side margin of the F.I.R. does indicate that

the informant submitted a written First Information Report.

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Admittedly, the prosecutrix was accompanied by her husband

and uncle Prabhakar to the police station. Both of them had

been with her for little over two hours before submitting a

written F.I.R. Admittedly, there are two groups in the village.

The husband of the prosecutrix belongs to one of the groups.

Over appointment of President of Tanta Mukti Committee,

there was a fight. Murder took place. The husband of the

prosecutrix was in jail for about six months. It is true that,

the prosecutrix and her husband denied the appellant Yuvraj

to have been requested to give evidence in support of the

husband of the prosecutrix. The fact remains that, there

were two groups in the village. The husband of the

prosecutrix was in jail for little over six months. Moreover,

P.W.3 Prabhakar, the uncle of the prosecutrix had informed

her husband that her modesty was outraged by the appellant.

It is true that he was not expected to inform her husband

about his wife having been ravished sexually. The fact,

however, remains that, her husband was told that the

appellants had outraged modesty of his wife. It is not that

the prosecutrix is being branded as a lier. The medical

evidence does not support her claim. Admittedly, on

registration of the crime, the prosecutrix was medically

examined. It is in evidence of P.W.9 Dr. Santosh Bhosle that

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on her examination, the prosecutrix was found well oriented

as to time, place and person. She had changed her clothes

and taken bath at home. The prosecutrix, however, did not

state in her evidence to have had taken a bath after the

incident. P.W.9 Dr. Santosh Bhosle found the following

injuries on her person:-

(1) Linear abrasion of size 1 cm x 0.1 cm present over lower right side of back (situated on) 3 cm lateral to spine and 11 cm from inferior angle of scapula. It was reddish in colour, simple in nature.

(2) Linear abrasion of size 1 cm x 0.2 cm present over lower right back (situated on) 3 cm lateral to spine 15 cm from inferior angle of scapula. Reddish in colour, simple in nature.

(3) Abrasion of size 2 cm x 1 cm present over right scapula region 2 cm from midline with brownish tab, simple in nature.

21. On genital examination, found no loose matted

hair present. No injuries to labia minora. Multiple old healed

tears were present on hymen. Samples of vaginal swab and

smeared blood, pubic hair, nail clips were collected.

P.W.9 Dr. Bhosle further stated that, the victim

was examined nine hours after the incident. There were no

fresh injuries over genitals. There were two linear abrasions

over lower right on backside (as mentioned above). Age of

aforesaid injury Nos.1 and 2 were fresh and injury No.3 was 2

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to 3 days old. The opinion was reserved till receiving the

report of forensic science laboratory. Accordingly, the

examination report in 6 pages (in prescribed proforma) was

prepared. It is in the handwriting of Dr. Pampatwar. The

doctor further stated that report is signed by him and Dr.

Pampatwar.

22. The doctor further stated that, after receiving the

C.A. reports, he had gone through the same. Those C.A.

reports are on record at Exhibits 46, 47 and 48 respectively.

After going through the said C.A. reports, the doctor gave

final opinion that the findings as to sexual assault neither

confirmed nor refuted.

23. It is further in the evidence of Dr. Bhosle that, the

injuries found on the person of the prosecutrix were simple in

nature. Only one of the injuries was fresh. While she was

medically examined, in his opinion, sexual assault was not

confirmed. It was not possible for him to give opinion on her

medical examination. Her vaginal swab was obtained. The

C.A. report Exh.47 indicates that, no semen was detected on

her pubic hair, vaginal swab and smear slide. As such, the

medical examination report does not reinforce the prosecution

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case. It is reiterated that, the offence is punishable with

imprisonment of not less than 20 years. The appellants have

already been behind the bars for little over 7 years. The

offence has to be proved beyond reasonable doubt. The

seizure of knife pursuant to disclosure statement made by

appellant Yuvraj and taking charge of knicker and anklet from

the scene of offence are of little consequence. There is

nothing to suggest that the very knife was used by the

appellant Yuvraj to threaten the prosecutrix. The F.I.R. is

silent to state that, knicker and anklet were left at the scene.

24. As such, it is a case based on the sole testimony

of prosecutrix. Learned counsel for the appellants were,

therefore, justified in submitting that some incident might

have happened but blown out of proportion. They may or

may not be right in their submissions. This Court is left with

the evidence in the nature of testimony of the prosecutrix not

supported by medical evidence. The facts and circumstances

referred to hereinabove lead this Court to conclude that,

based on the sole testimony of the prosecutrix without there

being any corroboration, either by medical evidence or

otherwise, it would be unsafe to confirm the judgment of

conviction and the order sentencing the appellants to

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imprisonment for a period of 20 years. The benefit of doubt

deserves to be extended to the appellants, who were of the

age of 21 and 20 at the relevant time.

25. In the result, both the Criminal Appeals are

allowed. Conviction and sentence recorded by learned

Sessions Judge, Nanded in Sessions Case No.4/2015 is set

aside. The appellants are acquitted of offences punishable

under Sections 376(D), 354(A)(1)(i), 354(A)(2), 354-B, 506

read with Section 34 of the Indian Penal Code. The

appellants be set at liberty forthwith if not required in any

other case. Fine amount, if paid, be refunded to them.

In view of the above, Criminal Application

No.3877/2019 and 1179/2020 are disposed of.

( R. G. AVACHAT ) JUDGE

fmp/-