Bhagaji S/O. Santu Hase vs The State Of Maharashtra
2022 Latest Caselaw 1135 Bom

                                                        Cri. Appeal No.204/2018
                                       :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.204 OF 2018


 Bhagaji s/o Santu Hase,
 Age 57 years, Occu. Agri.
 R/o Rajapur, Tq. Sangamner,
 District Ahmednagar                                  ... APPELLANT

          VERSUS

 The State of Maharashtra,
 through Police Inspector,
 Sangamner Police Station,
 Sangamner, Tq. Sangamner,
 Dist. Ahmednagar                                     ... RESPONDENT

                                .......
 Shri A.N. Nagargoje, Advocate for appellant
 Shri R.B. Bagul, A.P.P. for respondent - State
                                .......

                                  CORAM :        R. G. AVACHAT, J.

                           Date of reserving judgment : 31st January, 2022
                           Date of pronouncing judgment : 1st February, 2022
 JUDGMENT :

The challenge in this appeal is to the judgment of

conviction and sentence, passed by Additional Sessions Judge,

Sangamner in Sessions Case, being Case No.55/2011, dated

14/2/2018. The appellant was convicted for the offence

punishable under Section 376 of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for ten years and

to pay fine of Rs.10,000/-. In default of payment of fine, he

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is to undergo rigorous imprisonment for six months.

2. Facts giving rise to the present prosecution are as

under :-

P.W.1 "A" - informant, was a student of 12th

Standard in the year 2011. He would reside along with his

parents and two sisters at village Shirur (name changed),

Taluka Sangamner, District Ahmednagar. On 14/10/2011, the

informant had been to the college from 7.00 to 10.00 in the

morning. When he returned home, his mother and sister had

been to Sangamner Court for attending Court case. His

brother Nitin was away in the school. Father was not at

home. The prosecutrix Sunita (name changed) is the

informant's sister. She is deaf, dumb and mentally challenged

as well. She used to be at home. The informant

accompanied his aunt - Anita (name changed) (P.W.2), the

wife of informant's real uncle, to the field to see the work of

digging borewell. The prosecutrix alone was at home. The

informant returned home by 4.00 p.m. While he entered the

kitchen room for taking water, he saw the appellant engaged

in sexual intercourse with the prosecutrix. On having seen

the informant, the appellant got up. He tied his Dhoti,

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tendered apology to the informant and then left. The

prosecutrix too put on her Salwar. The informant then went

to his aunt Anita (P.W.2) and related her of the incident. She

in turn asked him to fetch his mother from Sangamner. The

distance between Shirur and Sangamner is about 4 - 5 Kms.

The informant went to Sangamner on motorbike and came

with his mother and sister. Uncle Rajendra was also informed

on cell phone. He too came from Umbraj, Taluka Junnar. On

his arrival, they went to Sangamner Police Station. The

informant lodged the First Information Report (F.I.R.)

(Exh.27) against the appellant herein.

3. Crime vide C.R. No.163/2011 was registered for

offence punishable under Section 376 of the Indian Penal

Code. The prosecutrix was medically screened. The appellant

came to be arrested. He too was medically examined. Blood

samples of both of them were obtained. Statements of

persons acquainted with the facts and circumstances of the

case were recorded. On completion of the investigation, the

appellant was proceeded against by filing a charge sheet in

the Court of Judicial Magistrate, First Class (J.M.F.C.),

Sangamner. The J.M.F.C., in turn, committed the case to the

Court of Sessions for trial in accordance with law. The learned

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Additional Sessions framed the charge (Exh.8). The appellant

pleaded not guilty. His defence is of false implication.

4. The prosecution examined 6 witnesses to establish

the charge. Certain documents also came to be tendered in

evidence. On appreciation of the evidence in the case, the

learned Additional Sessions Judge convicted the appellant as

stated above. Hence the present appeal.

5. Learned counsel for the appellant would submit

that, the prosecutrix has not been examined. Her medical

examination report and C.A. reports as well run counter to the

prosecution case. Anita (P.W.2), aunt of the informant has

played a decisive role in falsely implicating the appellant

herein. There is evidence to suggest that the relations

between the appellant and Anita have not been good. Court

cases have been pending between them. According to

learned counsel, the sole testimony of the informant without

there being any corroboration ought not to have been acted

upon to convict the appellant. He, therefore, urged for

allowing the appeal.

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

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submit that, the informant was a 19 year old innocent boy.

He is an eye witness. The prosecutrix could not be examined

due to her mental retardness. The appellant could not satisfy

his own lust since the informant came midway. The medical

examination report would, therefore, necessarily be neutral.

According to him, penetration howsoever slight, is sufficient to

constitute the offence of rape. He, therefore, urged for

dismissal of the appeal.

7. Considered the submissions advanced. Perused

the evidence in the case. Although the prosecution has

examined 6 witnesses to establish the charge, the relevant

evidence is that of the informant and his aunt Anita (P.W.2).

8. Let us appreciate the evidence. It is in the

evidence of the informant that, on the given date, he returned

home from the College by 11.00 in the morning. His mother

and one of the sisters were away at Sangamner for attending

Court case. Younger brother was away in the school. His

father too was not at home. The prosecutrix was alone at

home. The informant had accompanied his aunt Anita (P.W.2)

to the field to see the borewell work. It is further in his

evidence that, he returned home by 4.00 p.m. As he entered

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the kitchen for a glass of water, he saw the appellant engaged

in sexual intercourse with the prosecutrix. On having seen

him, the appellant got up and tied his Dhoti. He then left

after tendering an apology to the informant. The prosecutrix

too put on her Salwar. The informant then went to his aunt

Anita (P.W.2) and informed her. On her advice, he went to

Sangamner and brought her mother and sister back home.

His uncle and father were also informed. On their arrival, the

informant went to the police station. He lodged the F.I.R.

thereat at Exh.27.

9. From the cross-examination of the informant, it

has come on record that, he has good relations with the

appellant. The appellant is cousin uncle of the informant.

The informant would reside in the back side of the appellant's

house. The informant was categorical to claim ignorance

about no good relationship between the appellant and his

aunt Anita (P.W.2). He also claimed ignorance about

pendency of Court cases between the two. He, however,

categorically denied to have lodged a false report.

10. The testimony of the informant was sought to be

corroborated by the evidence of his mother and aunt (P.W.3

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and P.W.2 respectively). Both these witnesses testified about

having informed by the informant of the incidence.

11. Admittedly, the prosecutrix is deaf, dumb and

mentally challenged. Her disability certificate is on record at

Exh.28. The same indicates her to have been 90% mentally

retarded. She was, therefore, not examined. The question is,

whether, based on the sole testimony of the informant, the

conviction could be sustained in the peculiar facts and

circumstances of the case.

12. On registration of the F.I.R., the prosecutrix was

medically examined. P.W.5 Dr. Bhaskar found no injury over

her body and external genetalia. On per vaginal examination,

he noticed that, hymen was having old healed tear. There

was no fresh tear or bleeding noted. No injury bleeding noted

in the vagina. He took her vaginal swab, blood in plain bulb.

Pubic hair and nails were also obtained. On medical screening

of the prosecutrix, he came to the conclusion that there was

no recent sexual intercourse. The samples collected were

preserved for chemical analysis. The samples were handed

over to the police. The C.A. reports (Exhs.17 to 19) were

tendered in evidence. The C.A. reports indicate that the

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vaginal swab of the victim was not containing semen or

seminal fluid. On the basis thereof, he endorsed his earlier

conclusion that the prosecutrix was not subjected to sexual

intercourse in the recent past.

13. As such, the medical evidence ruled out the case

of the prosecution. True, for constituting an offence of rape,

penetration howsoever slight, is sufficient. It is also true that,

on sudden appearance of the informant the appellant is said

to have not accomplished his act of sexual intercourse. In

view of this Court, had there really been penetration, there

could have been semen or seminal fluid on the vaginal swab.

There is one more reason for this Court to hold the sole

testimony of the informant to be insufficient to bring home

the guilt. Admittedly, the informant's father has one brother

by name Balasaheb. The aunt Anita (P.W.2) is Balasaheb's

wife. Partition of the family property has already been

effected between the informant's father and Balasaheb. P.W.2

Anita, aunt of the informant has categorically admitted that

her husband had filed a civil suit against the appellant herein.

The decision in the suit went in appellant's favour. She had

also lodged a criminal case against the appellant and his wife.

At the time of the crime in question, the said criminal case

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was pending. The appellant and his wife have been acquitted

thereof. She did not have good relations with the appellant.

14. The evidence undoubtedly indicates that, after

having seen the alleged incidence, the informant first

approached P.W.2 Anita (aunt). Thereafter he brought his

mother from Sangamner. His uncle also came and thereafter

he along with his father and aunt went to the police station

and lodged the F.I.R. The informant is none other than a

nephew of P.W.2 Anita. It is just difficult to imagine that the

informant was not in the know about no good relationship

between the appellant and his aunt Anita (P.W.2). The

informant was in the company of his aunt just some time

before and post incidence as well. Possibility of the informant

having been influenced by his aunt to state something more

about the alleged incident cannot be ruled out. As such, the

sole testimony of the informant does not inspire confidence.

The offence is serious one. The appellant was 50 plus at the

relevant time. Based on such quality of evidence, the learned

Additional Sessions Judge ought not to have convicted the

appellant. In view of this Court, the appellant deserves to be

given benefit of doubt.

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15. In the result, the appeal succeeds. Hence the

order :

ORDER

(i) The Criminal Appeal is allowed.

(ii) The impugned order of conviction and sentence passed

by learned Additional Sessions Judge, Sangamner in Sessions

Case No.55/2011, dated 14/2/2018 is hereby quashed and

set aside. The appellant is acquitted of the offence punishable

under Section 376 of the Indian Penal Code. The appellant be

set at liberty forthwith, if not required in any other case. Fine

amount, if paid, be returned to the appellant.

( R. G. AVACHAT ) JUDGE

fmp/-