Bombay High Court
Laxman Jaywantrao Gurhale vs The State Of Mah on 8 October, 2024
2024:BHC-AUG:24085
CriAppeal-300-2005
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 300 OF 2005
Laxman Jaywantrao Gurhale,
Age : 23 Years, Occu Agriculture,
R/o. Jajnur, Tq. Nillanga,
District Latur. ... Appellant
[Orig. Accused]
Versus
The State of Maharashtra ... Respondent
.....
Mr. Mayur V. Salunke h/f Mr. V. D. Salunke, Advocate for the
Appellant.
Mr. S. K. Shirse, APP for the Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 03.10.2024
Pronounced on : 08.10.2024
JUDGMENT :
1. In the instant appeal, there is challenge to judgment and order
dated 21.04.2005 passed by learned Adhoc Additional Sessions
Judge, Nilanga, District Latur in Sessions Case No. 23 of 2004,
recording guilt of the appellant for offence under Sections 376 and
341 of the Indian Penal Code [IPC].
CriAppeal-300-2005
PROSECUTION CASE IN BRIEF
2. Victim, a 19 years old girl, gave statement that while she was
going to the field to collect fodder at around 2.00 p.m., present
appellant Laxman intercepted her way, took her in the crops,
undressed her, got himself undressed and had sexual intercourse and
thereafter left. Out of fear, victim did not report the incident to her
parents. After 4 to 5 months, she started experiencing pain in
abdomen and even missed her menses. Mother took her to doctor and
during such examination, it was revealed that she was pregnant.
When mother questioned about it, she reported act of accused. On her
above statement, Gandhi Chowk Police Station, Latur registered crime
which was investigated by PW8, and on gathering sufficient evidence,
accused was chargesheeted.
3. At trial before learned Adhoc Additional Sessions Judge,
Nilanga, vide Sessions Case No. 23 of 2004, on appreciation of
prosecution evidence, learned trial Judge accepted the prosecution
story as proved and sentenced appellant to suffer seven years rigorous
imprisonment for offence under Section 376 IPC and simple
imprisonment for one month for offence under Section 341 of IPC.
The instant appeal is the offshoot of above judgment.
CriAppeal-300-2005
EVIDENCE BEFORE TRIAL COURT
4. The role and status of the witnesses examined by prosecution in
support of its case, and the sum and substance of their evidence can
be summarized as under :
PW1 Mother of victim, who is examined at Exhibit 18, deposed that
she took daughter for medical examination due to bleeding
from urine and swelling to extremities. That time at Latur,
doctor disclosed that her daughter was pregnant, and on
being questioned, her daughter reported that appellant
obstructed her and committed forceful sexual intercourse in a
field.
PW2 Father deposed that daughter was taken to the hospital on
account of bleeding. There, doctor disclosed that his daughter
was pregnant and therefore she was taken to Ambajogai for
operation.
PW3 Victim gave evidence as under :
"one month of after last Diwali, I had gone to the field for
fetching fodder and it was 2 p.m. At that time accused
Laxman obstructed me and pressed my mouth. Accused then
took me in a hybrid crop. The accused removed my all
clothes. He has also removed his all clothes. Accused laid
down me and thereafter he inserted his penis into my vagina.
Some white sticky substance fall on my vagina. Thereafter the
accused left the spot."
CriAppeal-300-2005
PW4 Pancha to spot panchanama Exhibit 25.
PW5 Dr. Datar, Medical Officer at Civil Hospital Latur, deposed
that sonography report of victim revealed vesicular mole and
she reported it to Gandhi Chowk Police Station vide
communication Exhibit 27.
PW6 Dr. Watre, another medical expert at Woman's Hospital Latur,
testified bout admission of victim, she being examined and
even this medical expert reached to an opinion that there was
vesicular mole with peri-metastasis right lung with huge
cardiomegaly with severe anemia, and patient referred to
Ambajogai. She identified certificate Exhibit 31.
PW7 Dr. Vaidya, Medical Officer at SRT Medical Hospital
Ambajogai, also conducted sonography and diagnosed
vesicular mole. He performed operation, collected sample of
mole for CA and samples were forwarded to police.
PW8 PSI Rathod was the Investigating Officer [IO].
SUBMISSIONS
On behalf of the appellant:
5. Pointing to the above evidence, learned counsel for the
appellant took exception to the findings and conclusion by putting
forth a case that at the first count, there is inordinate delay in
CriAppeal-300-2005
reporting the occurrence, i.e. of almost five months. That, testimony
of victim is full of material omissions, variances and improvements.
He submitted that, there is nothing to show that there was any
forceful act. He emphatically pointed out that scientific evidence and
medical evidence i.e. DNA report rules out involvement of appellant.
That, here, very spot of scene of occurrence was not established.
Consequently, prosecution version was weak and palpably feeble on
all counts. He also questioned the entire trial for not offering
opportunity to answer the questions put under Section 313 of Cr.P.C.
on material count. He also puts forth case of false implication due to
political rivalry. In the alternative, he submitted that even otherwise,
the act was explicitly consensual one as there was no resistance,
raising alarm or prompt reporting.
On behalf of the State:
6. Supporting the judgment, learned APP would submit that
victim was forcibly raped while she was going alone to the field.
Victim has narrated the sequence of events. Learned APP submitted
that out of fear of parents and further getting defamed, victim did not
report. Only when on complaint of abdominal pain she was taken to
hospital, at such time her pregnancy was revealed but she
CriAppeal-300-2005
immediately disclosed act of accused to her mother. That, victim was
required to undergo medical procedure and only after recovery, she
gave statement. Thus, according to learned APP, there is reason for
delay. He also further submitted that in cases of such nature, delay
cannot be given undue importance, as there are several reasons for
victims of such crime to not to report immediately.
7. Learned APP further submitted that three doctors had examined
victim. Her pregnancy was confirmed by conducting tests like
sonography. Victim has named appellant for committing forcible
sexual intercourse after which her menses had stopped. That, he was
thus solely responsible for the conception. Act amounts to rape and
therefore, according to learned APP, learned trial court's findings and
conclusion cannot be faulted at.
8. Here, though as many as 8 witnesses are examined, evidence of
victim, her parents and medical experts is of relevance. Admitted
position is that reporting is after five to six months of alleged
occurrence. Only upon medical examination as a result of abdominal
pain, pregnancy was revealed, and thereafter victim reported alleged
incidence at the hands of appellant.
CriAppeal-300-2005
9. Now the question which needs to be ascertained and addressed
is whether offence under Sections 376 and 341, for which guilt is
recorded, is proved beyond reasonable doubt. Testimony of victim as
regards to occurrence is reproduced in aforesaid para. On carefully
scrutinizing and appreciating the same, the victim is shown to be 19
years of age. She has alleged that one month prior to Diwali, which
generally falls at the end of October or beginning of November, while
she was going to the field to collect fodder, appellant allegedly
obstructed her way and took her in the hybrid crop. She claims that
he removed her all clothes, then he removed his own clothes, made
her lie down and then had sexual intercourse by inserting his organ in
her private part. Then she deposed that he left. She too wore her
clothes and then went to collect the fodder.
10. Her such testimony categorically shows that there was no
resistance or oppose by her while being taken to the crop. She had
not resisted or attempted to run while he disrobed her. She does not
seem to have attempted to escape from the spot while he himself was
getting undressed. She has not uttered in her substantive evidence
that the act was against her wish, forceful and without her consent.
The manner of testimony clearly shows that there was no resistance
put up by her.
CriAppeal-300-2005
11. It is true that it is also settled law that mere passive submission
also cannot be held as consent. But here, as discussed above, after the
act, she went to collect the fodder, for which she claims to have
proceeded that day, and had not reported her parents till a period of
four to five months was over. Only on experiencing pain, she
complained to that extent and when being treated, her pregnancy was
diagnosed and only thereafter, when being questioned by mother, she
reported alleged act of accused. As pointed out, delay is admittedly
immense. Report is only upon pregnancy being revealed and not
earlier to it.
12. Therefore, with such quality of evidence, it is difficult to accept
version of prosecution that there was act of forceful coitus or against
her wish. Had it been so, she would have at least reported the
incident immediately to her parents. But that has not happened. Her
version that due to fear, she did not report, also suggests something
else. As discussed above, the manner of testimony shows that in spite
of being a young girl, she had not raised alarm, put up resistance, nor
attempted to escape while accused was undressing himself. She has
not uttered a word about any sort of threat by accused before
committing the act. For said reasons, it would be unjust to draw
inference that she was forcibly ravished.
CriAppeal-300-2005
13. Three doctors had occasion to examine the victim. They all are
consistent about she being diagnosed of vesicular mole. PW5 Dr.
Datar, while under cross, has defined the said medical term by stating
that, it is a type of fertilization and a kind of pregnancy which is
possible in case of sexual intercourse. Neither of the medical experts
i.e. PW5, PW6 and PW7 deposed about history of forceful sexual
intercourse.
14. PW7 Dr. Vaidya, an expert in gynecology, conducted operation
on the victim on 17.05.2004 and claims to have taken sample of
mole, tissue and fluid for CA and he deposed in para 2 that, it was
handed over to police constable B.No. 1102 of Nilanga police station
at 10.00 p.m. i.e. on 17.05.2004. Exhibit 36 shows that samples were
referred to Forensic Science Lab, Kalina, Mumbai for establishing
paternity.
15. Exhibit 11 seems to be result of analysis of blood vial of victim.
Exhibit 12 seems to be blood of accused. Both the samples were
collected for DNA. At Exhibit 14 is the result of DNA analysis and its
interpretation and opinion, which is as under :
CriAppeal-300-2005
Interpretation -
1) For all the 15 different genetic systems and gender
specific Amelogenin locus analyzed with the PCR, the
victim girl Ms. XYZ matched both the sets of parental
alleles, which are present in the tissue sample.
2) As the tissue sample shows exactly similar pattern of
alleles with victim girl XYZ, there is no possibility of
contribution of paternal alleles in the tissue sample from
accused Mr. Laxman.
Opinion -
The tissue sample forwarded for DNA analysis (Exh.1)
has originated from Victim girl XYZ herself and it is not a
part of fetal tissue.
Therefore, as pointed out, DNA analysis apparently rules out
and eliminates involvement of Laxman.
16. Another ground of attack launched by learned counsel for
appellant here is that, incriminating material pertaining to DNA and
its report was not brought to the notice of accused while answering
under Section 313 Cr.P.C., and it amounts to severe infraction and
thereby entire trial gets vitiated.
CriAppeal-300-2005
17. In the line of above defence, if statement of accused under
Section 313 of Cr.P.C. is visited, it is noticed that as many as 26
questions are posed. There is pointed question by virtue of question
no.18 that, on 17.05.2004, after operation, PW7 Dr. Vaidya, a
medical expert, did collect vesicular mole and blood of victim for DNA
examination and dispatched it to Kalina, Mumbai. Therefore, her,
though point is raised by virtue of ground (M), in the light of above
discussion, question regarding DNA was apparently put to the accused
to which he has answered it in negative.
18. However, to sum up, here, prosecution version comes under
shadow of doubt primarily for immense delay for over 5 to 6 months
caused in reporting the incidence. Only on detection of pregnancy,
PW3 victim disclosed involvement of accused. Her testimony
discussed and analyzed above creates doubt as to whether the act
itself was forceful and against her wish. In spite of being to taken to
Dr. Shinde of Nilanga, who is apparently not examined, and
pregnancy was noticed, at that point of time also there is no
disclosure of involvement of accused. Rather it is emerging from
victim's evidence that more than one month thereafter, she was taken
to Latur and Doctor at Latur summoned police, and thereafter she has
disclosed before police vide statement dated 12.05.2004. Her
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evidence is that after said act of accused, her menses had stopped,
and she claims to have conceived from the said act, but DNA analysis
does not support her version, as appellant is ruled out to have
contributed to the conception.
19. Therefore, on complete re-appreciation, for above reasons, in
the considered opinion of this Court, with such quality of evidence,
case of prosecution comes under shadow of doubt and therefore, case
not being proved beyond reasonable doubt, and more particularly
when victim's testimony about she being forcibly raped not inspiring
confidence, benefit of doubt is required to be extended to the
accused.
20. Perused the judgment under challenge. In para 17 of the
judgment, learned trial court has accepted prosecution version by
observing that, victim and parents being illiterate labourers and
residing in rural area, and due to fear, as victim did not disclose, the
delay in reporting is bonafide. This court has already noted that there
is no element of fear as victim's testimony is silent about any threats
issued by appellant. Above aspect has not been correctly appreciated
while condoning delay.
CriAppeal-300-2005
21. Similarly, as regards findings of trial court on the point of DNA,
it is noticed that PW5, PW6 and PW7 are all in unequivocal terms
reporting about diagnosis of vesicular mole. Vesicular mole in medical
terms is said to be a non cancerous tumor that develops in the uterus
as a result of "non-viable pregnancy". This term "non-viable
pregnancy" means a pregnancy where the fetus has no chance of
survival. Again, if we carefully examine evidence of PW7 who
operated victim, in examination-in-chief para 2 he deposed about
taking sample of mole of tissues and besicular fluid for CA and the
same was forwarded to Forensic Science Lab at Kalina for the purpose
of establishing paternity, and this is revealed from Exhibit 36.
Therefore, DNA analysis was particularly got done to ascertain
paternity.
Under such circumstances, when DNA report does not support
prosecution, learned trial court in its judgment para 20 and 21 erred
in accepting the DNA analysis holding that there were mere tissues
forwarded for DNA and no fetal tissue. In fact, sample of vesicular
mole itself was drawn for paternity.
CriAppeal-300-2005
Consequently, learned trial court's findings are apparently
erroneous. In view of the above discussion, the appellant succeeds.
Accordingly, I proceed to pass the following order :
ORDER
I. The appeal is allowed.
II. The conviction awarded to the appellant Laxman Jaywantrao
Gurhale, by learned Adhoc Additional Sessions Judge, Nilanga,
District Latur in Sessions Case No. 23 of 2004 under Sections
376 and 341 of IPC on 21.04.2005 stands quashed and set aside.
III. The appellant stands acquitted of the offence punishable under
Sections 376 and 341 of IPC.
IV. The bail bonds of the appellant stand cancelled.
V. Fine amount deposited, if any, be refunded to the appellant after
the statutory period.
[ABHAY S. WAGHWASE, J.]
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