Bombay High Court
Pravin @ Khanna Pavlas Waidande vs The State Of Maharashtra on 5 January, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
2024:BHC-AS:666
204-apeal-996-2017-655-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.996 OF 2017
WITH
CRIMINAL APPLICATION NO.1071 OF 2018
WITH
INTERIM APPLICATION NO.608 OF 2019
WITH
CRIMINAL APPLICATION NO.1328 OF 2019
WITH
CRIMINAL APPLICATION NO.1233 OF 2017
Abhijit @ Rohit Chandrakant Pawar,
Age : 22 years,
Now at K.C.P. Kalamba- 416 007. ...Appellant
versus
The State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO.655 OF 2016
WITH
INTERIM APPLICATION NO.4652 OF 2022
Pravin @ Khanna Pavlas Waidande,
Age : 27 years, Occ. : Self Employed,
R/o.Peth, Tal.Walwa, District Sangli.
(At present Kolhapur Central Prison, Kalamba) ...Appellant
versus
The State of Maharashtra ...Respondent
....
Mr.Sachin Chavan i/by Mr.Devidas J. Jadhav, Advocate for Appellant in
Appeal No.996 of 2017.
Ms.Nasreen Ayubi with Mrs.Megha Bajoria, Advocate for Appellant in
Appeal No.655 of 2016.
Ms.P.N.Dabholkar, APP, for the Respondent - State.
....
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CORAM : PRAKASH D. NAIK, J.
DATE OF RESERVING JUDGMENT : 7th JUNE 2023
DATE OF PRONOUNCING JUDGMENT : 5th JANUARY 2024.
JUDGMENT :
1. The Appellants were charged for offences punishable
under Sections 363, 366-A, 342, 376(d), 506 read with Section 34
of Indian Penal Code (for short "IPC").
2. Vide Judgment and and order dated 23.08.2016
passed by the learned District Judge-1 & Additional Sessions Judge,
Islampur in Sessions Case No.30 of 2015 Appellants were convicted
for offences under Sections 376(D), 363, 366-A, 342, 323 & 506
read with Section 34 of IPC. For conviction under Section 376(d)
of IPC the Appellants were sentenced to suffer rigorous
imprisonment for 20 years and to pay fine of Rs.5,000/- each. No
separate sentence was given for offences under Sections 363, 366-
A, 342, 323 and 506 of IPC. The Appellants were acquitted of the
offences under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (for short "POCSO Act").
3. The case of the prosecution is as follows:
i) The victim girl aged 15 years is resident of Peth
Bhimnagar, Taluka Walwa, District Sangli. The Appellants
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and the third accused (Juvenile in Conflict with Law) were
the residents of Bhimnagar, Peth.
ii) On 20.03.2015 at about 8.45 p.m. the victim had
visited medical shop for purchasing medicine for her married
sister Pooja, who had visited her house. She purchased
medicine from medical shop. While she was returning home,
the accused No.1- Abhijit @ Rohit Chandrakant Pawar came
towards her on motorcycle and offered her lift on motorcycle
upto her house. Victim told him that there is street light and
persons were available on the road and she had no fear to go
to her house. Accused No.2 spoke to someone. Within short
time, Pravin @ Khanna Waidande (Accused No.1) came
there. It was around 9.00 p.m. Accused No.1 caught the
victim near her waist and lifted her on motorcycle of
Accused No.2. He sat on the backside of motorcycle. He
pressed her mouth. She was taken in a field. She was
subjected to sexual intercourse by the accused.
iii) The victim was thereafter taken on motorcycle upto
Samaj Mandir. She was threatened that if she informs
anybody about the incident she and her family members
would be killed. The victim did not narrate the incident to
any family members.
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iv) Due to pain in her private part, she narrated the
incident to her friend and informed her that the accused had
forcible sexual intercourse with her. Victim's friend narrated
the incident to her mother. The victim also narrated the
incident to her mother. Complaint was lodged with the
Police on 17.04.2015. Crime No.89 of 2015 was registered.
Investigation was conducted. Charge-sheet was filed.
4. Charge was framed for offences under Sections 363,
366-A, 342, 376(D), 323, 506 r/w Section 34 of IPC and Section 6
of the POCSO Act.
5. Prosecution examined 10 witnesses. PW-1 Ganesh
Shivajirao Patil is the panch witness for spot panchanama. PW-2
Kajal Mohan Waidande is friend of victim girl. PW-3 is victim girl.
PW-4 Rafik Nashir Inamdar is the panch witness to the
memorandum statement made by the accused. PW-5 Dr. Prakash
Mahadeo More is the Medical Officer. He examined the accused.
PW-6 Dr. Vishnu Shankar Shinde is the Medical Officer. He
examined victim girl. PW-7 Pralhad Pandurang Mali is the panch
witness for seizure of motorcycle. PW-8 Shamrao Vitthal Teware is
the panch witness for recovery of clothes. PW-9 Dadasaheb Dinkar
Mane is panch witness for seizure of clothes of victim girl. PW-10
Sanjay Dinkar Patil is the Investigation Officer.
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6. The trial Court relied upon the evidence of the victim
and other witnesses and gave a finding that the accused had
committed the offence of rape. However, the Court opined that the
prosecution has failed to prove the case beyond reasonable doubt
that the victim was minor at the time of incident. Both the accused
were acquitted for offence under Section 6 of the POCSO Act.
While giving such finding, it was observed that as per victim's
version her date of birth is 27.10.1999. Incident took place on
20.03.2015. Birth extract of victim issued by Municipal
Corporation was filed on record on 06.08.2016. On perusal of
birth extract it appears that victim's father Sunil Shripati Babar is
resident of Peth, however, name as Sunil Bhagwan Babar, resident
of Gowandi, Mumbai is mentioned in the certificate. Investigating
Officer is unable to mention how this document is produced on
record, competent person from Municipal Corporation is not
examined to prove this document. Thus, birth certificate relied
upon by the prosecution is doubtful.
7. Learned Advocate Mr. Sachin Chavan appearing for the
Appellant in Criminal Appeal No.996 of 2017 submitted as under:
i) There is delay in lodging the First Information Report
(for short "FIR").
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ii) The allegations of kidnapping is false.
iii) There is no evidence of protest by victim.
iv) Four person cannot travel on motorcycle and hence
theory of the victim that she was made to sit on motorcycle
by three persons and taken to the place of incident is
unbelievable. There is no independent evidence to support
the prosecution case.
v) The shop keeper from where the victim had purchased
medicine has not been examined. The mother and aunt of
the victim were not examined.
vi) Age of the victim is not proved.
vii) The appellants are acquitted for offence under Section
6 of the POCSO Act.
viii) C.A. Report do not support the prosecution case.
Medical evidence does not corroborate the version of victim.
There were no injuries on the person and private part of the
victim. There is reference of old tear. Age of old tear is not
disclosed. Although the victim refers to injury, there is no
evidence of injuries on the person of the victim. The
Appellants are falsely implicated in this case. No semen was
found on the clothes. Recovery of articles is doubtful.
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Conviction relied upon by the prosecution is hit by Section
26 of the of the Evidence Act.
8. Learned Advocate Ms.Nasreen Ayubi and Mrs.Megha
Bajoria, appearing for the Appellant in Criminal Appeal No.655 of
2016 adopted the submissions of the Advocate for the Appellant
appearing in the other Appeal. It is submitted that the Appellant is
falsely implicated in this case. There was dispute between the
parties. The prosecution has failed to prove that the victim was
minor. Delay in lodging FIR has not been explained. It is not
established that the victim was subjected to forcible sexual
intercourse. It is difficult to believe that victim was forced to sit on
the motorcycle and kidnapped from the road. The prosecution case
suffers from serious discrepancies and benefit of doubt ought to be
given to the accused.
9. Learned Advocate Mr. Sachin Chavan has relied upon
following decisions:
i) Dola Alias Dolagobinda Pradhan and Another V/s.
State of Odisha1.
ii) Lalliram & Anr V/s. State of Madhya Pradesh2.
iii) Sham Singh V/s. State of Haryana3.
1 (2018) 18 SCC 695
2 (2008) 10 SCC 69
3 (2018) SCC 34
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iv) Santosh Prasad Alias Santosh Kumar Vs. State of
Bihar4.
v) Vijayan V/s. State of Kerala5.
10. Learned A.P.P. submitted that this is a case of gang
rape. Delay is not fatal. The victim was subjected to forcible
sexual intercourse by accused. She was under fear. She was
threatened. After suffering from pain, information was given to her
friend, who disclosed it to the mother of victim. The evidence of
victim is sufficient to establish the charge against the accused. Her
version inspires confidence. Corroboration of the version of victim
is not required by any other evidence. Evidence of PW-1, PW-2,
PW-7 & PW-10 is vital and important. The victim has narrated the
incident of sexual assault in detail. Her version does not create any
doubt. Her testimony inspires confidence.
11. Learned A.P.P. Ms.P.N.Dabholkar has relied upon
following decisions:
i) Aslam V/s. State of Uttar Pradesh6.
ii) Raghvendra Kumar Vs. Prabal Kumar and Others7.
iii) State of Uttar Pradesh V/s. Chhotey Lal8.
4 (2020) 3 SCC 443
5 (2008) 14 SCC 763
6 (2014) 13 SCC 350
7 (2014) 13 SCC 354
8 (2011) 2 SCC 550
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iv) Dola alias Dolagobinda Pradhan and Anr. V/s. State of
Odisha9.
12. Since the prosecution has not been able to prove that
the victim was minor at the time of alleged incident, the trial Court
has acquitted the accused for offence under Section 6 of the
POCSO Act. Thus, the question which falls for consideration as to
whether the prosecution has proved its case beyond doubt in
respect to the offences for which the Appellants are convicted.
13. PW-1 Ganesh Shivajirao Patil had acted as panch
witness for spot panchanama. Shamrao Teware was the other
panch witness. According to him the victim girl pointed out place
on road from where she was kidnapped. She also pointed out the
spot where she was subjected to sexual assault. Pieces of bangle
and one nicker was found at the spot. The victim has admitted that
the articles belong to her. In the cross examination he stated that
complaint was read over to him and the other panch at the time of
preparing panchanama. The victim did not narrate anything before
them. Roads are crowded during Yatra period. Mankeshwar and
Khandoba Yatra were in February - 2015.
9 (2018) 18 SCC 695
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14. PW-2 Kajal Mohan Waidande is the friend of victim
girl. She deposed that the victim had disclosed her that during the
period of Yatra she had gone to the shop for purchasing medicine
for her sister Pooja. Accused No.2 came there on motorcycle. He
told her that he would give her lift upto house. She told him that
she does not have fear and she will go alone to her house by road.
At that time accused No.1 and Sagar came there. She was made to
sit on motorcycle and taken to field Mankeshwar temple. She was
subjected to sexual intercourse by the accused. The accused had
threatened to kill her and family members. Her mother called her
sister from Mumbai. Parents of the victim are illiterate. Complaint
was given about the incident. Statement was recorded. In the
cross examination she stated that Mankeshwar temple and
Khandoba temple Yatra is organized at large scale at Peth. Huge
crowd is generally gathered for 'Sasan Kathya Programme' at that
time. From all sides of the village, people are gathered. The victim
told her that one day prior to Yatra she was kidnapped by accused.
Pilgrim date was 20.02.2015. She was kidnapped on 19.02.2015.
She had mentioned before the police that the victim told her about
threats given to her by the accused. The said fact is not appearing
in her statement. From 19.02.2015 to 13.04.2015 she was in
contact with the victim. She had narrated the incident to her
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mother by the victim.
15. PW-3 is the victim girl. She deposed that she is residing
with her parents and brother. Her date of birth is 27.10.1999.
Accused Pravin @ Khanna Waidande (Accused No.1) is residing in
adjacent lane from her house. Accused No.2 Abhijit @ Rohit Pawar
and Sagar Pawar are also residing close to house of accused No.2.
On 20.03.2015 at about 9.00 p.m. she was going to the shop for
purchasing medicine as her sister was suffering from illness.
Accused No.2 came there on motorcycle. He said that he will take
her towards her house. She refused. Sagar Pawar came there.
Accused No.1 Pravin @ Khanna Waidande came there. Sagar lifted
her and compelled her to sit on motorcycle behind accused No.2.
Sagar pressed his hand on her mouth. Accused No.1 occupied seat
behind Sagar on motorcycle. They took the motorcycle from
outside road towards the field. Sagar assaulted her. She was
pushed on the ground. Accused committed sexual intercourse.
All of them took her on motorcycle and came upto Samaj Mandir.
Accused No.2 threatened her not to disclose the incident to any
person or else he would kill her family members. Due to pain she
disclosed the incident to Kajal (PW-2). Kajal advised her to inform
the incident to her mother. She informed about the incident to her
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mother. Her mother called the relative. They went to Police
Station. Complaint was lodged. She pointed out the place of
incident. She was produced before the Medical Officer. She was
examined by him. Accused No.1 is residing in backside lane of her
house. Accused No.2 is residing with her parents. Sagar Pawar is
also residing nearby her house. Her sister Pooja had come to
attend Yatra. In her complaint date of pilgrim was wrongly
mentioned as 20.03.2013. In her complaint it is stated that the
incident took place on the day of pilgrim. She did not mention
before police that accused No.2 was standing near Anush Electrical
Shop. She tried to oppose when she was forcibly kept on her
motorcycle but her mouth was pressed. Mankeshwar temple is at
South side. Motorcycle was taken from outside road towards field.
Mankeshwar temple is away from passage from which motorcycle
was taken by accused. Injury was sustained on her private part
during incident. She had not washed her clothes which was given
to Police.
16. PW-4 Rafik Nashir Inamdar has acted as panch
witness. He has stated that the accused No.2 was at police station.
He has stated that he was ready to point out his clothes. Statement
was recorded. Memorandum of statement of accused was
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recorded. The accused pointed out his house. He pointed his
clothes kept in bed. Panchanama was prepared. He was not cross
examined.
17. PW-5 Dr. Prakash Mahadeo More is the Medical Officer.
According to him he had examined Accused No.2. He gave history
that on 20.03.2015 Sagar Pawar and Khanna Waidande had come
near Montessori School at 7.00 p.m. They asked him to drive
motorcycle. All of them came to village Peth. They took the victim
towards the field by road from medical store. Sagar and Accused
No.1 took the victim inside the field. After half an hour they
returned. Victim was dropped near the temple. Certificate was
issued by him after examining the accused. According to him no
injuries were found on the private part of the accused. As per C.A.
report no semen was detected on pubic hairs.
18. PW-6 Dr. Vishnu Shankar Shinde is the Medical Officer.
He examined the victim. He deposed that victim was produced
before him on 17.04.2015 by lady police constable. Her mother and
maternal aunt were also present with her. She gave history that
she had gone for purchasing medicine. The accused kidnapped her.
She was taken to the field. All of them raped her. On examination
he did not find evidence of injury seen over vulva region. No acute
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p/v bleeding was present. No injury marks were seen anteriorly or
posteriorly. The witness further stated that he had examined
accused No.1 on 18.04.2015. He had given history about the
victim being taken to field and subjected to sexual intercourse. No
injuries were found on his body. He issued certificate. In the cross
examination he stated that female doctor was not available in their
hospital. Hymen old tear ++ means tear was of large size. In
answer to question No.2 of second page of Exhibit-49 he has
mentioned old tear +. This means there was tear of hymen.
19. PW-7 Pralhad Pandurang Mali has deposed that he
acted as panch for seizure of Motorcycle. The motorcycle was
pointed out by accused No.1.
20. PW-8 Shamrao Vithal Teware is the panch witness for
the clothes of accused. According to him memorandum statement
was recorded. Accused pointed out the clothes kept in a bag in
iron cup-board. Clothes were recovered. Clothes were seized by
the Police. Clothes were recovered at the instance of accused No.1.
21. PW-9 Dadasaheb Dinkar Mane was the panch witness
for seizure of clothes of victim girl. He was declared hostile. He
was cross examined by the prosecutor. He admitted his signature
on the panchanama.
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22. PW-10 Sanjay Dinkar Patil is the Investigating Officer.
According to him the victim came to the Police Station. She gave
complaint. Her mother was present. The victim produced her
clothes. Seizure panchanama was recorded. She was produced
before the Medical Officer. Statements of victim and other
witnesses were recorded. Accused No.1 was arrested. He visited
place of incident. He recorded statement of medical shop keeper
Pradeep Mali. Sagar Pawar was produced before the juvenile
Court. Motorcycle was recovered at the instance of Accused No.1.
Clothes were recovered at the instance of accused. He collected
medical certificate. Clothes of victim were seized. Statement of
victim was recorded under Section 164 of Cr.P.C. After completing
investigation, charge-sheet was filed. In the cross examination it
was stated that Bonafide certificate of the victim's school is not
collected. Birth certificate of victim is collected by Police. He does
not know by which constable the document was collected. In the
certificate victim's father's name is mentioned as Sunil Bhagwan
Babar. Portion Mark A recorded in the statement of Asha before
him is written by him as narrated by her. Portion recorded in the
statement of Kajal Waidande is also narrated by her. Incident took
place on 20.03.2015. There was no pilgrim on that day. For
clarification about the date of incident, supplementary statements
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of witnesses were not recorded by him. Area of medical shop,
temple area and other places in the village are crowd during that
period. No inquiry was made by him to ascertain whether accused
had threatened victim when she was attending her school after
incident. Inquiry was not made by him to ascertain whether victim
was attending school after incident. He has not recorded statement
of Pooja (sister of victim). He has not collected bangles used by the
victim as a sample. Bangle pieces were sent to C.A. but not
received back.
23. From the evidence on record it is apparent that the
alleged incident had occurred on 20.03.2015. The FIR was
registered on 17.04.2015. The alleged incident had occurred at
around 9.00 p.m. According to victim, the Appellants and the third
person Juvenile in Conflict with Law had forcibly made the victim
to sit on motorcycle and she was taken to the field where all of
them had subjected her to sexual assault. She did not narrate the
incident immediately to any person. Subsequently she had
disclosed it to PW-2. Thereafter disclosure was made to the mother
of victim. Complaint was lodged. The evidence also discloses that
there was Yatra in the village. On account of Yatra there was crowd
and several persons had visited the village. The victim has alleged
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that she had gone to medical store for purchasing medicine for her
married sister Pooja, who had come to her house for attending
Yatra. The prosecution has not examined mother, sister (pooja)
and the medical store keeper. The defence of the accused is that
the victim's theory that she was forcibly made to sit on motorcycle
and taken to the field creates doubt. She did not protest or shout.
Medical evidence does not support the ocular evidence of the
victim.
24. The prosecution case proceeded on the basis that the
victim is minor. Charge was framed for offence under Section 6 of
the POCSO Act. On account of lack of evidence to show that the
victim was minor. The trial Court has opined that the prosecution
has failed to prove the age of victim and acquitted the accused
under Section 6 of the POCSO Act.
25. In the case of Dola Alias Dolagobinda Pradhan and
Another V/s. State of Odisha (supra) the Appellant was convicted
for offence under Section 376 of IPC. The Court analysed the
evidence of the victim and observed that the scene of offence is
busy area wherein number of buses ply, many shops and residential
houses exist and a school is situated. Although the victim had
admitted that she sustained bleeding injuries on her hand because
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of the shattering of eight bangles worn by her on her right hand
and seven bangles on her left hand, and had marks of violence
present on her body, the medical record do not support the said
version. There were no injuries on the person of the victim. There
was no internal injury on any part of the body and no injury was
found on the vulva, pelvis and vagina. There were no signs of
injury on thighs. Except for one bruise on cheek, there was no
other injury was found on the victim which is clear from the
medical report. FSL report disclosed that semen was not detected
on the petticoat since the petticoat did not contain any seminal
stain, which was hard for the Court to believe that sexual assault
had taken on the victim, more particularly when the other material
does not support the case of the prosecution and when it is not the
case of the prosecution that the victim had changed her dress or
that she had washed her clothes. The spot where the alleged rape
had been committed and the spot from where the victim was
forcibly physically lifted by the accused were not deserted places.
As in the normal course of a day, numerous passers-by and vehicles
ply there. It is unlikely that no one had noticed the victim being
lifted and subjected to forcible sexual intercourse. The Apex Court
then observed that the evidence of victim is unreliable and
untrustworthy. She is not credible witness.
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26. In the case of Lalliram & Another V/s. State of Madhya
Pradesh (supra) the Appellants had challenged the Judgment of
conviction before the Apex Court. The Appellants were convicted
for offence under Section 376 of IPC. It was observed that the trial
Court had found discrepancies in the version of witnesses and
though the victim was raped by several persons at several times,
there was no injury noticed and doctor has categorically stated that
there was no sign of rape. The Apex Court observed that injury is
not sine qua non for deciding whether rape has been committed.
But it has to be decided on the factual matrix of each case. If the
Court finds it difficult to accept the version of prosecutrix on the
face value, it may search for evidence direct or circumstantial.
27. In Sham Singh V/s. State of Haryana (supra) the Apex
Court was dealing with an appeal arising out of Judgment of
conviction for offence under Section 376 of IPC. The contention of
the Appellant was that the High Court was justified in assuming
that the injuries sustained by victim may have healed at the time of
medicolegal examination and the FSL report. There was no enmity
between the family of the accused and the victim. The medical
evidence disclosed that the victim was aged around 15 years at the
time of incident. The doctor observed the absence of hymen. The
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age of tear of the hymen was not mentioned. The tear was old.
The vaginal swab and the Salwar worn by the victim during the
course of the incident were sent by the doctor to forensic sciences
laboratory for chemical examination but not presence of semen was
found on any of these exhibits. However, the doctor has opined
that the possibility of sexual assault upon the victim cannot be
ruled out, though she did not specify as to whether the sexual
assault was in the recent past. The Court observed that some of the
vital witnesses were examined by prosecution which also weakens
the case of the prosecution. On analysing the evidence it was
opined that there is every possibility of false implication of the
accused to take revenge.
28. In the case of Santosh Prasad Alias Santosh Kumar V/s.
State of Bihar (Supra) the Appellant was aggrieved by the
Judgment of the High Court dismissing his Appeal against the
conviction for offence under Section 376 of IPC. The contention of
Appellant/Convict was that the medical report does not support the
case of the prosecutrix/prosecution. The evidence of the
prosecutrix is not supported by the medical evidence since no stains
of semen or blood were found on the clothes of the victim. The
prosecution had not examined material independent witness. As
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per the doctor's medical report/injury report indicate that no injury
was found on the person of the victim and private parts. The apex
Court held that it cannot be disputed that there can be conviction
on the evidence of the prosecutrix. However, the evidence must be
reliable and trustworthy. The Court found discrepancies in the
evidence of the prosecutrix and allowed appeal by setting aside the
judgment of conviction.
29. In the case of the Aslam V/s. State of Uttar Pradesh
(supra) on which strong reliance is placed by learned A.P.P., the
Hon'ble Supreme Court was dealing with the appeals challenging
the conviction under Section 376 of IPC. It was alleged that the
victim was raped by both the accused. The incident was
immediately reported to Pradhan of the village. The victim lodged
the FIR on the next day. The trial Court had reached the conclusion
that the testimony of victim inspires confidence and rejected the
case of defence. It was held that analysis of evidence of witnesses
and in particular the prosecutrix shows that the evidence of said
witnesses is not only reliable but also trustworthy. If upon
consideration of prosecution case in its entirely, testimony of
prosecutrix inspires confidence in the mind of Court, necessity of
corroboration of her evidence may be excluded. The Apex Court
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noted that that the trial Court keeping in view evidence of the
victim has come to the conclusion that the accused persons have
committed the offence under Section 376 of IPC which view has
been affirmed by the High Court after re-appreciating the entire
evidence and both the Courts have not committed any error which
clause for interference by the Apex Court.
30. Another decision relied upon by the learned A.P.P. in
the case of State of Uttar Pradesh V/s. Chhotey Lal (Supra) wherein
the appeal was preferred by the State challenging the Judgment of
the High Court acquitting the accused by reversing the Judgment of
conviction. The apex Court observed that a woman who is victim
of sexual assault is not an accomplice to the crime. Her evidence
cannot be tested with suspicion as that of an accomplice. As a
matter of fact, the evidence of the prosecutrix is similar to the
evidence of an injured complainant or witness. The testimony of
prosecutrix, if found to be reliable, by itself, may be sufficient to
convict the culprit and no corroboration of her evidence is
necessary. In prosecutions of rape, the law does not require
corroboration. The evidence of the prosecutrix may sustain a
conviction. It is only by way of abundant caution that Court may
look for some corroboration so as to satisfy its conscience and rule
out any false accusations.
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31. The evidence of prosecutrix discloses that on
20.03.2015 at about 9.00 p.m. she was going to the shop for
purchasing medicine as her sister Pooja was suffering from illness.
She came out of the shop after purchasing the medicine. At that
time all the three accused made her to sit on motorcycle under
force and took her to the spot of incident. One of them pressed his
hand and her mouth. The facts narrated by the victim make it
evident that four persons were sitting on the motorcycle. She has
stated that the motorcycle was taken from outside road towards
field. Victim had declined offer by the accused to drop her on
motorcycle on the ground that there was electricity on the road and
she had no fear of going home by walking. It is not the case of the
prosecution that the spot from where the victim was forcibly
kidnapped is secluded. The victim then alleged that she was
forcibly subjected to sexual assault by the accused persons.
Thereafter all the accused took her on motorcycle and came up to
Samaj Mandir in her area. She disclosed the incident to her friend
Kajal belatedly and on her advise she informed the incident to her
mother. Mother of victim called the maternal aunt of the victim
Asha from Mumbai. The victim, her mother, Asha and Kajal went
to Police Station. The victim has not disclosed as to when she has
narrated the incident to Kajal. Prosecution has not examined
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mother of victim, maternal aunt of victim and the medical store
keeper from where she has purchased the medicine. The complaint
was lodged on 17.04.2015. Thus, although the incident had
occurred on 20.03.2015, the complaint was lodged on 17.04.2015.
From her evidence it is evident that the accused are known to her.
Their residence is in same area. Her father is working in shop of
Sunil Nage. She admitted that father did not come with her to
Police Station. Her sister Pooja had come to her house for pilgrim.
Statement of Pooja is not recorded by Police. According to her, in
her complaint date of pilgrim is wrongly mentioned as 20.03.2015.
She admitted that in her complaint it is mentioned that the incident
took place on the day of pilgrim. It is not correctly written.
Photographs of pilgrim are filed with Exhibit-42. She admitted that
these photographs are regarding pilgrim ceremony of village.
Nobody obstructed the accused when they drove motorcycle
towards field. She denied the suggestion that mother of the
Juvenile in Conflict with Law had quarrelled with her mother. She
stated that injury was sustained to her private part during incident.
Minor injuries were sustained on her back, neck and chest. She
used to go with Kajal in dilapidated bungalow for study. During
festival she used bangles. She had not washed clothes which were
handed over to Police.
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32. In the FIR dated 17.04.2015 Exhibit - 36 it was stated
that the Yatra of Village had commenced on 20.03.2015. The
incident had occurred on 20.03.2015. She disclosed the incident to
Kajal two to three days prior to lodging complaint.
33. In the context of the evidence of prosecutrix it would
be appropriate to analyze the evidence of PW-2 Kajal Waidande and
PW-6 Dr. Vishnu Shankar Shinde, who examined the victim.
34. PW-2 Kajal Waidande has stated that the prosecutrix
had told her that during Yatra she had gone to shop for purchasing
medicine to her sister Pooja. She narrated the incident of sexual
assault by the accused to her. Her evidence corroborates the fact
that the alleged incident had occurred during Yatra. She admitted
that the house of victim is close to her house. Thus, although the
incident had occurred on 20.03.2015, the victim did not narrate
the said incident to PW-2 for substantial period of time. PW-2 has
admitted that the Mankeshwar and Khandoba Temple Yatra is
organized at large scale at Peth. Huge crowd is generally gathered
for Sasan Kathya programme. From all sides of village pilgrim with
Sasan Kathya had gathered at Peth. Main square/point is close to
Grampanchayat Office. Pooja programme is performed near that
place. Procession is taken through out the village with band/banjo.
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Police Constables are also posted for Bandobasta on that day. The
evidence of this witness would indicate that at the time of incident
there was likelihood of huge crowd in the village. It is difficult to
accept that the victim could not protest in any manner while she
was being kidnapped on motorcycle by the accused. The victim
also did not disclose the incident to PW-2 immediately, although
she is residing in his neighborhood and close friend of victim.
PW-2 tried to change the complexion of the case by stating that the
victim had told her that she was kidnapped one day prior to Yatra.
Pilgrim date was 20.02.2015. She was kidnapped on 19.02.2015.
This version is contrary to the deposition of victim. The date of
incident mentioned by the victim is of 20.02.2015. In the
statement before the Police there is no reference of threats issued to
the victim.
35. PW-6 Dr. Vishnu Shankar Shinde has stated that on
examination of victim he did not find evidence of injury over vulva
region. There was no acute bleeding. No injury marks were seen
over body anteriorly or posteriorly. Although the prosecution tried
to contend that the victim was examined after several days from
the date of incident, it cannot be said that there would be no injury
of whatsoever nature on the private part of the victim or injuries on
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anteriorly or posteriorly. Considering the alleged nature of sexual
assault committed by the accused, from the evidence of this witness
it can be seen that the witness tried to explain age of hymenal tear.
He has stated that tear was of large size. He has referred to old
tear. That would mean tear of hymen. There is no explanation that
old tear could be related to the incident of sexual assault in the
present case. Medical Certificate of the victim mentions that there
was no injuries seen over vulva region. No acute p/v bleeding
present. No injuries seen over body anteriorly or posteriorly. No
injury was seen over breast. Vaginal admits 2 fingers. Hymen old
tear ++. For answer to the queries by the Police it is stated that
there are no signs of squeal and there are no injuries of vagina.
36. The circumstances referred to herein above creates
doubt about the veracity of the evidence of the victim. The
prosecution has not been able to prove its case beyond reasonable
doubt.
37. There is no corroborative evidence to support the
version of the victim. Apart from the fact that the medical evidence
runs counter to the ocular evidence of the victim, the forensic
evidence does not support prosecution. The victim has admitted
that she had not wash her clothes. The clothes were handed over
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to the Investigating Agency. The clothes of the accused are also
seized. C.A. report are on record. The clothes of victim viz. Nicker,
Kurta and Salwar were sent for forensic examination. There is no
detection of semen on the clothes. Human blood was found on
nicker. ABO group was inconclusive. Human blood was found on
Salwar Pant and ABO group was inconclusive. Examination of
clothes of accused No.2 does not show presence of semen. The
shirt, underwear and full pant of the said accused was examined
and no blood was found. Clothes of accused No.1 were also
forwarded for forensic examination. No semen was detected. No
blood was found on shirt, full pant and underwear.
38. The Investigating Officer has deposed that he had
recorded statement of shop keeper. He was not examined. No
independent witnesses has been examined by the prosecution.
Pieces of bangle were seized under panchanama which was
allegedly owned by the victim on the day of incident. No injuries
were found on her hand. Pieces were sent for examination to C.A.
but report has not received back.
39. The prosecution also relied upon the alleged conviction
made by the accused to the medical officer allegedly admitting that
the victim was sexually assaulted. It is pertinent to note that the
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accused was arrested. He was in custody of Police. He was
produced for medical examination for custody of Police. He was
examined by the medical officer. Statement, if any made by the
accused to the medical officer would be hit by Section 26 of the
Evidence Act.
40. It is well settled that the version of prosecutrix if
believed and found to be credible and consistent, the same would
form the basis of conviction. Corroboration is not a sine qua non
for a conviction in a rape case. However, if the evidence of the
prosecutrix suffers from discrepancies and found unworthy of
credence, the benefit of doubt could be given to the accused.
41. In the case of Sadashiv Ramrao Hadbe Vs. State of
Maharashtra10 it was reiterated that the sole testimony of the
prosecutrix could be relied upon if it inspires confidence of the
Court. If the version given by the prosecutrix is unsupported by
any medical evidence or the whole surrounding circumstances are
highly improbable and belie the case set up by the prosecutrix, the
Courts shall be extremely careful in accepting the sole testimony of
the prosecutrix when the entire case is improbable and unlikely to
happen.
10 (2007) 1 SCC (Cri.) 161
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42. In the case of Raju Vs. State of M.P.11 it is observed
that the accused must also be protected against the possibility of
false implication, particularly where a large number of accused are
involved.
43. In Pratap Misra Vs. State of Orissa12 it was observed
that the allegations of rape by many persons and several times but
no injury is noticed that certainly is an important factor and if the
prosecutrix's version is credible, then no corroboration is necessary.
But if the prosecutrix's version is not credible then there would be
need for corroboration.
44. In the case of Aman Kumar Vs. State of Haryana13 it is
observed that if the Court finds is difficult to accept the version of a
prosecutrix on the face value, it may search for evidence direct or
circumstantial.
45. In Krishan Kumar Malik Vs. State of Hariyana 14 it is
observed and held by Hon'ble Supreme Court that no doubt, it is
true that to hold accused guilty for commission of an offence of
rape, the solitary evidence of the prosecutrix is sufficient provided
the same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling quality.
11 (2009) 3 SCC (Cri.) 751
12 1977 SCC (Cri.) 447
13 (2004 SCC (Cri.) 1266
14 (2011) 3 SCC (Cri.) 61
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46. In the case of Rai Sandeep Vs. State (NCT of Delhi) 15
the Hon'ble Supreme Court had an occasion to consider who can be
said to be a "sterling witness". In that context it was observed that
the "sterling witness" should be of a very high quality and caliber
whose version should, therefore, be unassailable. The Court
considering the version of such witness should be in a position to
accept it for its face value without any hesitation. To test the quality
of such a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant would be
the consistency of the statement right from the starting point till
the end, namely, at the time when the witness makes the initial
statement and ultimately before the Court. It should be natural and
consistent with the case of the prosecution qua the accused.
47. The evidence of the prosecutrix does not inspire
confidence. It is doubtful. It is not corroborated by medical
evidence. It is shaky. It is not corroborated by any independent
witness. Considering these circumstances, the accused are entitled
for benefit of doubt. The conviction of the accused is required to
be set aside.
15 (2012) 8 SCC 21
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ORDER
i) Criminal Appeal Nos.996 of 2017 and 655 of 2016 are
allowed and disposed of.
ii) Impugned Judgment and and order dated 23.08.2016
passed by learned District Judge -1 & Additional Sessions
Judge, Islampur in Sessions Case No.30 of 2015 is set aside
and both the Appellants are acquitted of all the charges.
iii) The Appellants be set at liberty forthwith unless
required in any other case.
iv) In view of disposal of both the Appeals, all Criminal
Applications and Interim Applications are disposed of.
(PRAKASH D. NAIK, J.)
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