Bombay High Court
Akash Gopinath Kale vs The State Of Maharashtra on 2 May, 2024
2024:BHC-AUG:9241
CriAppeal-737-2023
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 737 OF 2023
Akash s/o Gopinath Kale
Age : 18 years, Occupation Education,
R/o. Sarangpur, Taluka Gangapur,
District Aurangabad. ... Appellant
[Orig. Accused]
Versus
1. The State of Maharashtra
Through Police Station Pachod,
Taluka Paithan, District Aurangabad.
2. X Y Z. ... Respondents
.....
Mr. S. B. Bhapkar, Advocate for the Appellant.
Mrs. Ashlesha S. Deshmukh, APP for Respondent No.1-State.
Ms. Pratibha Suryawanshi, Advocate for Respondent No.2
(appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 10.04.2024
Pronounced on : 02.05.2024
JUDGMENT :
1. The correctness, legality and maintainability of judgment and
order of conviction passed by learned Special Judge (POCSO),
Aurangabad in Special Case (POCSO) No. 171 of 2017 dated
02.08.2023, recording guilt for offence under Section 376(2) of the
Indian Penal Code [IPC], is challenged herein by the convict.
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PROSECUTION STORY IN SHORT IS AS UNDER
2. Victim had come to stay with her aunt PW5 as there was a
proposal for her marriage. Accused no.1, who was prospective groom,
and other accused i.e. his family members, as well as brother of victim
had come to see victim. She found accused to be of dark complexion
and therefore she rejected the proposal and it was accordingly
conveyed. By that time it was late evening and therefore accused
persons, who are already in relation, requested to spend night for
want of conveyance to go back. Their such request was accepted and
they decided to spend the night at the place of maternal aunt of
victim i.e. PW5. According to prosecution, around midnight time,
accused nos. 1 to 4 lifted victim while she was sleeping and took her
to the field. PW5 was obstructed and prevented by accused nos. 5, 6
and 7. While accused nos. 2, 3 and 4 held the victim, accused no.1
present appellant raped victim. Victim narrated the occurrence to
PW5 who brought her home. Next day they approached police and on
the statement of victim, crime was registered.
After registration of crime, case was investigated and on
completion of investigation, accused were charge-sheeted and tried
before learned Special Judge, Aurangabad, who, on appreciating the
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oral and documentary evidence, held the charge proved against
accused no.1 for offence punishable under Section 376(2) IPC and
against accused nos. 2, 3 and 4 for offence punishable under Section
341 r/w 34 of IPC. Accused nos. 5, 6 and 7 are acquitted from all
offences.
Precisely the above judgment of conviction has been challenged
by accused no.1 Akash by filing instant appeal.
SUBMISSIONS
On behalf of the appellant :
3. Learned counsel for the appellant would point out that this is
apparent case of false implication. According to him, there was no
such occurrence as is alleged by the informant. He pointed out that at
the threshold, prosecution is unable to establish exactly when alleged
incident took place. He further submitted that there is no independent
evidence suggesting even arrival of accused persons to the house of
PW5. He pointed out that even prosecution was unable to
demonstrate exactly on which day and which night alleged incident
took place i.e. whether it took place on 09.07.2017 or 10.08.2017.
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4. Learned counsel pointed out that, PW5 aunt was keen in
performing marriage of victim with her own son and hence, there is
false implication on a concocted and fabricated story, and victim is
tutored to lodge false report to frame the accused. There was no
incident of rape.
5. Learned counsel further submitted that apart from several
lapses which are fatal in nature, very Investigating Officer did not step
into the witness box. It is his submission that because of non
examination of Investigating Officer, accused has been prejudiced. He
further pointed out that material witnesses like grandmother, other
children of PW5, a person who was alleged approached by PW5
before visiting police station, are not examined.
6. He further pointed out that it is difficult to accept that a full
grown girl could be lifted from the house and taken to a field and
then raped without injuries, either internal or external.
7. He further submitted that though accused were charge-sheeted
for commission of offence under the provisions of POCSO Act,
prosecution miserably failed to establish that victim was minor on the
alleged day and so there is acquittal from said charge.
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8. It is next submitted that, this is a peculiar case where there can
be no credence laid on testimony of victim, or her aunt PW5. He
pointed out that even medical evidence is mere opinion and
examining doctor is not sure about offence of rape to be committed.
According to him, even forensic evidence is lacking in the instant
case, in which there are allegations of rape.
9. He pointed out that, mere victim and her aunt are examined.
Panchas have not supported, Investigating Officer did not step into
the witness box and under such circumstances, he vociferously and
forcefully submitted that, case of prosecution was apparently weak
and as such, learned trial court ought not to have accepted the
prosecution case and ought not to have recorded guilt. Hence, he
prays to set aside the impugned judgment and order.
On behalf the the State :
10. In answer to above, learned APP pointed out that evidence of
prosecutrix has remained unshaken. Merely because she rejected the
marriage proposal, accused persons had lifted her from the house of
PW5 and she was raped. Testimonies of prosecutrix and her aunt PW5
are consistent. Learned APP pointed out that victim was incapacitated
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by accused nos. 2, 3 and 4 and they facilitated the rape at the hands
of accused no.1. Therefore, there may not be injuries, more
particularly when she was lifted and taken out of the house. That, her
evidence has remained undisturbed and unshaken. Learned APP
pointed to the opinion issued by PW4 doctor. She hasten to add that
absence of injuries itself is not sufficient to discard the credible
evidence of victim. That learned trial court has correctly appreciated
the evidence of PW1, PW4 and PW5 and has correctly applied the
settled law while recording guilt. Lastly she submits that there is no
merit in the appeal and so she prays to dismiss the same.
On behalf of respondent no.2 victim :
11. Learned counsel for the victim also supported the judgment
pointing out that occurrence has been proved through victim's
testimony. The same inspires confidence. There is no reason for false
implication. That, statements of victim as well as her aunt were
recorded under Section 164 of Cr.P.C. Their versions are consistent.
Medical evidence clearly suggests rape. Therefore, there being cogent,
reliable and convincing evidence, learned trial court rightly recorded
guilt and she too prays to dismiss the appeal for want of merits.
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STATUS OF THE PROSECUTION WITNESSES
12. Prosecution has examined following five witnesses in support of
their case.
PW1 is the victim/informant.
PW2 Chand Pasha is the pancha to spot panchanama, but he did
not support.
PW3 Amol is the pancha to recording of statement of victim. He
also did not support.
PW4 Dr. Rasika Mahajan is the doctor who examined victim and
issued opinion.
PW5 Aunt of victim.
Apart from above oral testimonies, prosecution relied on FIR,
statements under Section 164 Cr.P.C., panchanamas, medical report
and C.A. report.
13. Being first appellate court, and in view of settled law, this court
is called upon to re-examine, re-appreciate and re-analyze the entire
oral and documentary evidence.
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14 Heard.
15. Alleging false implication, learned counsel for the appellant put
forth following grounds, thereby challenging the judgment under
challenge;
i. Prosecution failed to establish exactly when alleged incident took
place, i.e. either on 09.07.2017 or 10.08.2017.
ii. No distinct evidence about visit of accused to informant's place.
iii. Apart from tutored testimony of victim, her version is failing to
inspire confidence.
iv. Prosecution failing to cogently establish age of victim.
v. Belated FIR.
vi. Material witnesses like grandmother and cousins of victim not
examined.
vii. Scene of occurrence panchanama not proved.
viii. No forensic and scientific evidence corroborating prosecution
version.
ix. Inconsistent version of victim and informant.
x. Investigating Officer not examined coupled with defective and
faulty investigation.
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xi. Implication of accused by PW5 informant with sole intention of
performing marriage of victim with her own son.
16. The gist of prosecution story is that, accused no.1-appellant had
come to see victim as a prospective bride. She refused and rejected
the marriage proposal. That night itself, according to prosecution,
victim was initially kidnapped by accused nos. 1 to 4 and taken to the
field, while accused nos. 5 to 7 obstructed PW5 from going to her
rescue. In the field, when accused nos. 2 to 4 held victim, accused
appellant forcibly raped her. Hence the charge.
In the light of above respective cases and grounds of challenge,
the evidence is put to careful scrutiny.
17. Before analyzing the evidence, it needs to be stated that,
though there were charges for commission of offence under the
POCSO Act, learned trial Judge has acquitted all seven accused from
charge under Sections 4, 6, 7, 8 and 17 of POCSO Act. In the
judgment, learned trial court has taken up issue of age of victim,
kidnapping and commission of offence under Sections 4, 6, 8 and 17
of POCSO Act in para 10 to 14 of its judgment, and has held that
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prosecution has failed to prove that at the time of incident victim was
a child, and thereby answered point nos. 1, 2 and 5 to 8 in negative.
Resultantly, only accused no.1 appellant is held guilty for
offence under Section 376(2) of IPC, whereas accused nos. 2 to 4 only
are convicted for offence under Section 341 r/w 34 IPC. Consequently
accused nos. 5 to 7 are let off from all offences.
In this appeal, accused no.1 alone has taken exception to the
judgment by filing instant appeal.
18. Evidence of victim is at Exhibit 65. The sum and substance of
her version in witness box is that, she resides with her grandmother at
Dhangaon Takli. She had come to her maternal uncle's place at Mard
Gevrai. That time, her brother Bashya, sister-in-law Patika, her
brother Krishna, appellant Akash, his mother Meerabai and father
Gopinath and their son-in-law Vishwanath (i.e. accused persons) had
come to the place of her aunt to see her. She was to be shown to
accused Akash for prospective marriage. Her aunt PW5 asked victim
whether she liked the boy i.e. accused. She testified that she disliked
him as he was of dark complexion and it was accordingly conveyed by
her aunt to the accused persons and she had asked accused persons to
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leave, upon which accused said that it being night time, and as they
would not get conveyance to return back, they intended to stay that
night there itself, and accordingly they stayed. Further, according to
her, while she was sleeping around 10.00 p.m. after taking dinner,
around 12.00 midnight accused Krishna, appellant Akash, accused
Bashya i.e. her real brother and accused Patika i.e. her sister-in-law
lifted her and took her to the field. Her aunt intervened but accused
Vishwanath, Gopinath and Meerabai came in the way and prevented
her. After taking her to the field, appellant Akash forced himself on
her while accused Patika caught her by her hair and accused Krishna
held her hands. Appellant forcibly removed her sari, slept on her, and
forcibly raped her and all accused went away. She gave call to her
aunt who came crying. Her aunt lifted her and took her to the house,
gave her medicine for fever. On the next morning, phone call was
made to grandmother, who came and they approached Pachod Police
Station and lodged report which she identified to be at Exhibit 66.
That, she was referred to GHATI hospital, her statement was recorded
before learned Magistrate Court, Paithan and she identified the same
to be at Exhibit 67. According to her, thereafter she was shifted to bal
sudhar gruh (borstal).
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Victim is subjected to extensive cross which commences from
para 4 onwards. She is unable to state when she lost her mother and
since when she was put up with her grandmother. She stated that she
stayed at her maternal uncle's place for 15 days. She denied love
relations with Dixit i.e. son of informant, but admitted that she was
married to him later on and she had a baby boy from him. She
admitted that her aunt filed complaint against her brother Bashya and
father. Omission is brought in para 5 regarding beating to her aunt.
She had denied all suggestions about falsely deposing regarding
accused persons coming to see her, she being asked about her
decision, she disliking appellant and conveying it through aunt,
accused persons requesting to stay that night for want of conveyance
it being night time and they stayed and spent that night, and she
being taken out of the house to the field and raped.
19. At Exhibit 67 is the statement of victim under Section 164
Cr.P.C. recorded before learned Magistrate, Paithan. The same seems
to be recorded on 10.11.2017 i.e. almost after three months of the
alleged occurrence. The mandate of prompt recording of statement
under Section 164 Cr.P.C. has been apparently frustrated by the
investigating machinery. Be it so.
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20. Now, on visiting testimony of PW5 informant, i.e. maternal
aunt of victim, she is found to have deposed at Exhibit 105 that victim
was staying with grandmother who is her mother-in-law. Victim was
brought to her place and accused persons had come to her house for
settling marriage of victim and accused no.1 Akash. She claims that
she questioned victim whether she liked appellant. Victim told that
she does not like appellant. She accordingly informed it to accused
persons and asked them to go back. It was evening time and accused
said that they would stay during night and go back in the morning.
Between 11.00 p.m. to 12.00 midnight, appellant Akash, Krishna and
Patika lifted victim and took her out of the house. Vishwanath,
Meerabai and Gopinath caught hold of her. Appellant and others had
taken victim to field of Dharma Dhakne. She went to the field.
Accused ran away. She lifted victim and brought her and inquired,
upon which victim told that Krishna caught her hand, Patika hold her
head and appellant raped her. Message was passed to grandmother.
Thereafter they all approached police.
In cross, informant has admitted that they are all in relation.
She admitted that Dixit is her son and that victim is her daughter-in-
law. Marriage of her son and victim has been performed. She denied
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false implication. She denied that as she had to perform marriage of
her son with victim, she made victim lodge false complaint and
implicate accused persons.
21. Investigating machinery has got statement of PW5 also
recorded under Section 164 of Cr.P.C. But as like that of victim, it is
recorded on 10.11.2017 in spite of FIR being of 10.08.2017. Before
learned Magistrate, aunt deposed about victim being taken to the
jungle, and not field of Dharma Dhakne, regarding which she has
deposed in substantive evidence.
22. Now medical evidence also needs to be analyzed. PW4, who is
examined at Exhibit 98, deposed about victim being brought to
GMCH Aurangabad at 2.10 p.m. on 11.08.2017. She claims to have
recorded history of sexual assault. She deposed that history given was
that, on 10.08.2017 when she was sleeping at about 2.00 a.m.,
appellant took her to the farm and had forcible intercourse with her.
On physical examination, this witness noticed contusion injuries on
legs and on genital examination, notice hymnal rupture at 6 O'clock
and 8 O'clock position. She collected samples.
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In cross, medical witness denied history being reported by PW5
and not victim. However, she admitted that injuries noticed on the leg
are possible on account of fall on stone.
ANALYSIS
23. It is emerging that victim was put with PW5 that night. In
witness box, she deposed that after dinner, she was sleeping around
10.00 p.m. with her aunt PW5 and her children. Around 12.00
midnight, accuse Krishna, Akash, her real brother Bashya and her
sister-in-law Patika lifted her from the house and took her to the field.
When her aunt PW5 came to her rescue, she was prevented by
accused nos. 5, 6 and 7. Said field is owned by Dhakane. At how
much distance is the said field from the house where victim slept, has
not come on record. It is her evidence that Patika held her head,
Krishna caught her hands and present appellant, after removing her
clothes, raped her, left her there and they went away. In cross she has
denied all suggestions.
24. PW5 is found to be deposing that she went to look for victim.
When exactly she went, has not been stated by her. She merely claims
that she went towards victim, where victim narrated the incident and
then she claims that she alone lifted victim and brought her home.
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Even she does not state where was the said field exactly located and
how far was it from her house. Question arises is when victim is lying
in the field, how PW5 knew that she was lying at a particular spot,
because her evidence is that she went to the field and accused ran
away. What had happened to accused nos. 5, 6 and 7, who had held
her captive, is not getting clear.
In cross, she admitted that victim is her daughter-in-law and
her son Dixit is married to victim, but she denied that as she had to
perform marriage of her son with victim, she made complainant lodge
false complaint and falsely implicated them. This witness PW5, whose
statement is recorded after three months of the occurrence before
learned Magistrate, as discussed earlier, seems to have informed that
victim was taken by accused to the jungle. She did not inform about
taking victim to field of Dharma Dhakane, which is the spot she
herself named in her substantive evidence.
25. It is also noticed that in report lodged with police, victim had
stated about she being taken to the orchid of sweet lime. As stated
above, PW5 informed learned Magistrate that victim was taken to
jungle, but spot panchanama Exhibit 86 shows tur crop standing in
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the said field. Such material shows that there is variance on exact
scene of occurrence. Victim and PW5 are not lending support to each
other. It is also noticed that investigating machinery has not bothered
to draw spot panchanama of the very house of PW5 from where
victim was allegedly kidnapped. Spot panchanama shows spot field
surrounded by fields of other farmers. None of them are examined.
Immediate neighbour of PW5 is also not examined. Therefore, above
is the only evidence of victim and PW5.
26. Medical evidence discussed above, shows that opinion has been
issued about "there are signs of use of force, however, sexual
intercourse cannot be ruled out". Such opinion is thus not concrete, as
mere possibility has been expressed. In cross doctor has admitted that
injuries noticed on the leg are possible on account of fall on stone. No
injuries are noticed by medical expert on the back of victim.
Except above evidence of PW1 victim, PW5 aunt, there is no
other evidence in support of arrival of accused persons to village of
PW5.
27. Now let us deal with the grounds in appeal. The fundamental
ground, questioning the prosecution story of rape, raised before this
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Court is that, prosecution is not sure as to exactly on which date
alleged incident took place. Learned counsel for appellant would
strenuously submit that prosecution's own evidence shows two
distinct dates of occurrence. In support of such contention, he invited
attention of the Court to the very FIR recorded at the instance of
victim PW1. On carefully going through the same, it is noticed that it
is in question-answer form. The same is at Exhibit 66. Date over said
FIR is apparently 10.08.2017.
It is noticed that the PSO who recorded the FIR has put pointed
question by virtue of question no. 13 which, in translated version, is
as under:
Que. No.13:- Yesterday dated 09.07.2017 in the evening
what had happened?
Ans. :- Brother Bashya, sister-in-law Patika, her brother
Krishna, Akash, his mother Meerabai, father Gopinath and
their son-in-law Vishwanath r/o Vaijapur had come to see
her.
While answering question no. 18 as to "then what did you do?",
she has answered :
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Myself, maternal aunt, son of aunt, namely, Sharad,
daughter Rani took meals and at 10.00 p.m. they all went
to sleep in the shed near aunt.
While answering question no. 20 as to "what happened in the
night?", she answered :
Around 12.00 midnight, Krishna Patika, Akash, her brother
Bashya lifted her from the house. That time her aunt
intervened and so Gopinath, Meerabai, Vishwanath caught
her aunt, four of them lifted her and took her to orchid of
sweet lime.
To further questions she answered that she was raped by
accused appellant.
Therefore, above contents of FIR categorically show that
alleged occurrence has taken place in the night of 09.07.2017 but
date on FIR, is 10.08.2017. It is not known as to what is the date on
the copy which was dispatched to concerned jurisdictional Magistrate
as required under Section 157 of Cr.P.C. Surprisingly, it is pertinent to
note that very PSO or police personnel, who allegedly recorded the
above report is not examined by prosecution in the trial court. In the
considered opinion of this Court, at that point of time, when
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provisions of POCSO Act were invoked by investigating machinery,
then mandatory guidelines contemplated under the said statute were
expected to be followed. But, this seems to have not been done.
Similarly, witnesses Ashabai Kale, whose name appears on the FIR
and is shown to be from women cell, as well as the lady constable
LPC 968 S. B. Bharate are also not examined by prosecution for the
best reasons known to it. None seems to have noticed that there is
variance in the date, i.e. either occurrence is of 09.07.2017 or on the
date of FIR dated 10.08.2017. If it is 10.08.2017, then as submitted
before this Court by learned counsel for accused appellant, there is
obviously delay of a month in lodging report.
28. Though before this Court strenuous efforts are made by both
APP as well as learned counsel for victim to attribute date to
typographical mistake, on visiting Exhibit 51, which is the charge, the
following material is found to be emerging. It is the charge which is
framed and explained and made known to the accused to record their
plea. The contents of Exhibit 51 are as follows :
"That on 09.07.2017 at about 12.00 hours in
midnight in the house of Nandabai Raju Chavan at mauje
Georai Marda, Tq. Paithan, District Aurangabad, kidnapped
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victim, about 14 years old from lawful guardianship of her
parents and thereby committed an offence punishable
under Section 363 r/w 34 of the Indian Penal Code, and
within my cognizance.
That you accused no.1 on above date, time and place
committed rape on victim and at that time she was under
sixteen years of age and thereby committed an offence
punishable under Section 376(2)(i) of the Indian Penal
Code and within my cognizance.
That you all accused on above date, time and place in
furtherance of your common intention wrongfully
restrained victim and thereby committed an offence
punishable under section 341 r/w 34 of the Indian Penal
Code and within my cognizance.
That you accused on the above date and place
committed penetrative sexual assault upon victim and
thereby committed offence punishable under Section 3(a)
r/w 4 of POCSO Act, 2012, and within my cognizance.
That you on the above date and place committed
aggravated penetrative sexual assault on victim and thereby
committed an offence punishable under Section 5 r/w 6 of
POCSO Act, 2012, and within my cognizance.
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That you on the above date, time and place
committed sexual assault upon victim and thereby
committed offence punishable under Section 7 r/w 8 of
POCSO Act, 2012, and within my cognizance.
That you on the above date, time and place accused
no. 2 to 7 committed abetment to accused no.1 for doing
above said offences and thereby committed an offence
punishable under section 17 of the POCSO Act, 2012, and
within my cognizance."
29. Consequently, in FIR as well as charge, occurrence is shown to
have taken place on 09.07.2017, but crime is registered on
10.08.2017. Hence, there is force in the submissions put forth before
this Court that prosecution is unsure as to on which date alleged
incident took place.
30. Second ground of attack is that material witnesses are not
examined. There is substance in said submission also. There is no
distinct evidence about visit of accused to the house of PW5 except of
version of PW5 and prosecutrix. Grandmother of victim with whom
she was staying and who was summoned on the next day, is not
examined. Children of PW5 who were sleeping with victim, are also
not examined to strengthen the testimony. Field owner in whose field
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incident took place i.e. Dharma Dhakane is also not examined.
Therefore, there is no independent evidence apart from victim and
PW5, in spite of it being a case of rape.
31. Equally important ground raised before this Court is failure to
examine very Investigating Officer. Case advanced is of prejudice
being caused to the appellant on account of non examination of
Investigating Officer. According to him, it is not mere major lapse,
rather it has also caused serious prejudice to the accused. There is
confusion and doubt over date of actual occurrence as well as actual
spot of incident. Resultantly, it is his submission that prosecution case
itself has come under serious doubt.
It is true that, here, in this case, very Investigating Officer who
carried investigation has not been examined by the prosecution for
the best reasons knows to it. No plausible reason about non
examination of Investigating Officer or reason for his non availability
is put forth. It is true that law is fairly settled that mere lapses or
defects in prosecution case does not erode the prosecution story.
However, once plea of prejudice is put forth, then court is called upon
to be on guard and ascertain whether there is substance in such
allegation.
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In the considered opinion of this Court, considering the grave
nature of offence and severity of the crime, evidence of Investigating
Officer was essential, more particularly, when there are two dates of
occurrence emerging from the very prosecution evidence as discussed
in aforesaid para. Offence of rape is a grave offence and punishment
provided is minimum 07 years. Of late, by virtue of amendment in
POCSO Act, quantum of sentence has gone beyond two decades. For
the more reason, in cases of such nature and case of defence being
put to prejudice, Investigating Officer was a necessary witness.
32. In the case Birinder Rai v. State of Bihar ; AIR 2005 SC 1284
the Hon'ble Apex Court observed that, "the investigating officer was
not examined in this case and that has resulted in prejudice to the
accused".
Similar views are echoed in the case of Baldev Singh v. State
of Haryana ; 2015 (17) SCC 554, wherein it has been held that,
"Mere non examination of investigating officer does not in every
case cause prejudice to the accused or affects the credibility of
prosecution case", however it is further added, "Whether or not any
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prejudice has been caused to the accused is a question of fact to be
determined in each case."
Likewise in the case Habeeb Mohammed v. State of
Hyderabad ; AIR 1954 SC 51, the Hon'ble Apex Court pointed out
that, "it was the duty of the prosecution to examine all material
witnesses who could give an account of the narrative of the events in
which the prosecution is essentially based and that the question
depends on the circumstances of each case.
In the case of Jamuna Chaudhary v. State of Bhiar ; AIR 1974
SC 1822, it is held "The duty of investigating officer is not merely to
bolster up a prosecution case with such evidence as may enable the
Court to record a conviction but it is his duty to bring out the real
unvarnished truth".
Very recently the Hon'ble Apex Court in the case of Munna Lal
v. The State of Uttar Pradesh ; AIR 2023 SC 634, in para 39 observed
as under :
39. ..... The missing links could have been provided by
the Investigating Officer, who, again, did not enter the
witness box. Whether or not non-examination of a witness
has caused prejudice to the defence is essentially a question
of fact and an inference is required to be drawn having
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regard to the facts and circumstances obtaining in each
case."
33. Bearing in mind the above legal position and consequences of
non examination of Investigating Officer, if the facts of case in hand
are meticulously studied and tested, it is noticed that here, appellant
has specifically pointed out from the very evidence of prosecution that
there is variance in the actual date of occurrence. As stated above, in
FIR date of occurrence is reported as 09.07.2017. But FIR itself is
noted on 10.08.2017 i.e. after one month. Even in charge framed and
explained to the accused, date of occurrence is shown as 09.07.2017.
Therefore, as pointed out, there are variances regarding very actual
date of occurrence.
Secondly, in this case, victim and her aunt PW5 are giving
different versions about actual scene of occurrence, which is also
already discussed in foregoing para.
Thirdly, other incumbents of the house like grandmother of
victim and children of PW5, who were also in the company and said
to be sleeping near prosecutrix when she was allegedly lifted, as well
as the person to whom PW5 approached after reaching Aurangabad
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i.e. before approaching police, regarding whom prosecutrix has made
reference to, are not examined. They were all material witnesses.
Defence had come up with a case of false implication as PW5 was
keen in performing marriage of victim with her own son. She has
admitted that victim was married to her son. Therefore, above ground
of false implication to avoid marriage of present appellant with victim
cannot be brushed aside lightly.
34. For all above reasons, in the opinion of this Court, testimony of
Investigating Officer was very much essential. Defence is apparently
deprived of the opportunity to cross examine the Investigating Officer
who has chargesheeted accused, and prosecution has rather examined
only prosecutrix, her aunt and medical officer. The PSO who noted
date on the report and FIR as well as the Investigating Officer who
undertook investigation thereafter, were crucial witnesses. They both
being not examined, definitely defence has been put to prejudiced.
35. It is settled position that sole evidence of prosecutrix, if it
inspires confidence, can be straightway accepted without insisting for
corroboration from independent corner or even medical evidence.
However the rider is that prosecutrix's story should be free from
doubt and should be unblemished. The following are the rulings in
CriAppeal-737-2023
which the Hon'ble Apex Court refused to rely on the sole testimony of
prosecutrix.
In Dilip v. State of M. P. (2001) 9 SCC 452, it is held that, it is
well settled that the sole testimony of the prosecutrix could be acted
upon and made the basis of conviction without being corroborated in
material particulars. However, the rule about the admissibility of
corroboration should not be ignored by the courts in sexual offences.
In view of the infirmities present in the sole testimony of the
prosecutrix, which was contradicted by the medical evidence as well
as by the version given by PW3 (aunt) to whom the prosecutrix
narrated the incident soon after the commission of rape, it is held that
implicit reliance could not be placed upon her sole testimony.
Similar view is echoed in State of Rajasthan v. Kishanlal (2002)
5 SCC 424 ; Rai Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21 ;
Kaini Rajan v. State of Kerala (2013) 9 SCC 113 ; Munna v. State of
M.P. (2014) 10 SCC 254 and Manoharlal v. State of M.P. (2014) 15
SCC 587, wherein considering the infirmities in the version of
prosecutrix and doubting the veracity of prosecution case, finding the
same not inspiring confidence, it is held unsafe to convict accused
relying on uncorroborated version of prosecutrix.
CriAppeal-737-2023
36. It is also submitted that forensic evidence is not supporting. CA
reports at Exhibit 117 show that blood group of victim is "B" but no
semen is detected in Exhibit 4, 5, 6 and 7 i.e. pubic hair, vulval swab,
vaginal swab and vaginal smear. It is to be noted that victim was
produced before Medical Officer, regarding occurrence taking place at
midnight of 10.08.2017, at 2.10 p.m. of 11.08.2017 as per
examination-in-chief of the Medical Officer. Clothes of victim like sari,
petticoat and blouse, are forwarded to analyzer on 22.08.2017, in
spite of clothes shown to be seized on 11.08.2017 during house
search panchanama, i.e. exactly after 11 days of seizure. Result on
analysis is that there is neither blood nor semen detected on any of
the clothes of victim or even clothes of accused. Likewise, samples of
accused which are shown to be dispatched on 19.08.2017, are
negative as regards to exhibit 3 and 2 i.e. pubic hair and nail
clippings. Hence, even scientific evidence is not lending support to the
prosecution.
37. To sum up, for above reasons, here, there is serious doubt
about actual date of occurrence. Spot is not cogently proved. There is
variance in the testimony of prosecutrix and her aunt as regards to
actual date of incidence is concerned. Owner of the field where actual
incident took place is not examined. Panchanama of the spot house
CriAppeal-737-2023
from where prosecutrix was allegedly picked up is not at all drawn.
There is no evidence about arrival of accused to the place of PW5.
Medical evidence is not concrete and firm. Material witnesses like
other incumbents of the house are not examined. For all above
reasons, case of prosecution being not free from doubt, it is a case of
benefit of doubt.
38. Studied the judgment passed by learned trial court which is
taken exception to. In the considered opinion of this Court, learned
trial court straightway relied on the testimony of prosecutrix and her
aunt. This Court has not noticed any discussion regarding variances in
the actual date of occurrence, spot, non examination of material
witnesses and above all, impact of non examination of Investigating
Officer. Therefore, such judgment cannot be allowed to be sustained.
Case of prosecution is full of doubts and therefore, case not being
proved beyond reasonable doubt, this is a fit case for extending
benefit of doubt. Hence, I proceed to pass the following order :
ORDER
I. The appeal is allowed.
CriAppeal-737-2023
II. The conviction awarded to the appellant Akash s/o Gopinath
Kale, by learned Special Judge (POCSO), Aurangabad in Spl.
Case (POCSO) No. 171 of 2017 under Section 376 (2) of IPC on
02.08.2023 stands quashed and set aside.
III. The appellant stand acquitted of the offence punishable under
Section 376 (2) of IPC.
IV. He be set at liberty, if not required in any other case.
V. Fine amount deposited, if any, be refunded to the appellant after
the statutory period.
VI. It is clarified that there is no change as regards the order
regarding disposal of muddemal.
VII. Fees of learned Advocate Ms. Pratibha Suryawanshi, appointed
to represent the cause of respondent no.2, is quantified at
Rs.10,000/- [Rupees ten thousand only] to be paid by the High
Court Legal Services Sub-Committee, Aurangabad.
[ABHAY S. WAGHWASE, J.]
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