Bombay High Court
Shankar S/O Babulal Yadav vs The State Of Mah. Thr. Pso Ps Ballarpur ... on 2 April, 2025
2025:BHC-NAG:90
1 appeal184.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 184 OF 2023
APPELLANT Shankar s/o Babulal Yadav,
Aged about 28 years, Occu: Labour,
R/o Railway Station Area, Ballarpur,
Tah. Ballarpur District Chandrapur.
-VERSUS-
RESPONDENTS 1] State of Maharashtra through,
Police Station Officer, Police Station
Ballarpur, District Chandrapur.
2] XYZ (VICTIM) in Crime No. 411/19
Registered at Police Station Ballarpur.
District Chandrapur.
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Mr. D.A. Sonwane, counsel (appointed) for appellant.
Mrs S.S. Dhote, APP for respondent/State.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE OF RESERVE : 20/03/2025
DATE OF DECISION : 02/04/2025
ORAL JUDGMENT :
1. By this appeal, the appellant has challenged the
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judgment and order of the sentence passed in Special Case
No. 122/2019, whereby the appellant/accused is convicted for the
offence punishable under Section 376(1) of the Indian Penal Code,
1860, and sentenced to suffer rigorous imprisonment for a period
of 10 years and to pay a fine of Rs. 2,000/-. In default of payment
of fine, simple imprisonment for six months. The appellant is
further convicted for the offence punishable under Section 506 of
the Indian Penal Code and sentenced to suffer rigorous
imprisonment for a period of one year and to pay a fine of
Rs. 500/-. In default of payment of fine, the appellant shall suffer
further simple imprisonment for a period of one month.
2. The brief facts of the prosecution case as emerges
from the police papers, and recorded evidence are as under;
On 08/05/2019, while the victim was returning home
after finishing her work at the hotel where she was employed. She
went for urination behind the Railway Quarters, at the relevant
time, the present accused reached there, caught hold of her hand,
and took her beyond the Railway Crossing. It is alleged that he
threatened her by holding a stick in his hand and subjected her for
forcible sexual intercourse and thereby committed an offence.
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3. On the basis of the said report, police have registered
the offence against the accused vide Crime No. 411/2019. On
registration of the crime, the wheels of the investigation started
rotating. During the investigation, the investigating officer has
referred the victim for medical examination. The investigating
officer has also visited the spot of the incident and drawn the spot
panchanama. From the spot panchanama, he seized the pair of
chappals of the victim and pieces of broken bangles. The
investigating officer also seized the clothes of both the victim and
the accused, along with their blood samples, and other samples.
After completion of the investigation, the charge-sheet is filed
against the accused. The learned Magistrate has committed the
case to the Court of Sessions, as the offence under Section 376 is
exclusively triable by the Sessions Court. The Sessions Court frame
the charge vide Exhibit No. 5.
4. In support of the prosecution case, the prosecution
has examined in all six witnesses, namely PW-1/victim (vide
Exhibit 20); PW-2 - Vikram Lokendra Lahore - Exhibit No. 27;
PW-3 - Dr. Asha Vasantrao Salve, (Medical Officer);
PW-4 Sureshkumar Prabhudas Vajpayee, Hotel Owner Exhibit 38;
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PW-5 - Achal Shantaram Kapur (Investigating Officer)- Exhibit 44
and PW-6 Dharmendra Tryambakrao Joshi (API)- Exhibit-57.
5. Besides oral evidence, the prosecution placed reliance
on chemical analyser reports - Exhibits 11 to 14 and 20; the report
lodged by Victim - Exhibit 21; FIR Exhibit 22; Medical Certificate
Exhibit 24; Forensic Medical Examination Report Exhibit 25; Spot
Panchanama Exhibit 29; Seizure Memos Exhibit 30 & 31;
Memorandum Statement of the Accused, Exhibit 32; and Discovery
Panchanama Exhibit 34; the requisition to the medical officer
Exhibit 45; letter to Chemical Analyser - Exhibit 47; Seizure Memo
Exhibits 52 to 53, and letter to Chemical Analyser Exhibit- 54 etc.
6. On the basis of the above oral as well as documentary
evidence, the prosecution claimed that it has proved its case
beyond reasonable doubt. The defence of the accused is of total
denial and false implication. All incriminating evidence is put to
the accused in order to obtain his explanation regarding the
evidence appearing against him by recording his statement under
Section 313 of Code of Criminal Procedure, 1973.
7. After recording the evidence and on appreciation of
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the same, learned Sessions Judge held the accused guilty and
convicted him as aforestated.
8. Being aggrieved and dissatisfied with the same, the
present appeal is preferred by the accused.
9. Heard learned counsel Mr. D.A. Sonwane for the
appellant, who is appointed through legal aid and learned APP for
the State.
10. Learned counsel for the appellant submitted that, to
prove the charge the prosecution mainly placed reliance on the
evidence of PW-1 Victim. As per her evidence, accused took her
and forcefully subjected her for the sexual assault on a hard
surface, specifically in the bushes, but not a single injury is
witnessed on her person. According to the victim, the alleged
incident has taken place near railway quarters. Her evidence
nowhere shows that she has resisted the act of the accused, either
by shouting or by any other means, which sufficiently shows that
the story narrated by the victim is not inspiring the confidence. In
view of that, the evidence of the victim requires to be discarded.
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11. He submitted that, as the evidence of the victim is not
inspiring the confidence, therefore independent corroboration was
required, on that ground, the accused is to be acquitted. He invited
my attention towards the spot panchanama and other evidence
and submitted that the evidence of the victim itself is doubtful and
therefore it is to be thrown away.
12. The learned APP supported the judgment of the
Sessions Judge and submitted that no independent corroboration
is required. The victim has narrated about the incident, which is
supported by the medical evidence, and there is no reason to come
forward to disbelieve the version of the victim. In view of that, the
appeal is devoid of merits and liable to be dismissed.
13. After hearing both sides and on perusal of the
evidence, the core question is whether the evidence of the victim is
sufficiently inspiring the confidence to prove the involvement of
the accused in the alleged incident, and no independent
corroboration is required.
14. To prove the charge, the prosecution mainly placed
reliance on the evidence of the victim examined vide Exhibit 20.
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As per her evidence, the accused is a beggar and staying at
Railway Station Ballarsha. Prior to one year, at about noontime,
while she was proceeding towards her home from the hotel and
attending to nature's call, at the relevant time, the accused came
there, dragged her into the bushes near the Railway Bridge, and
subjected her for the forceful sexual intercourse. Thereafter, she
reached the Hotel of Vajpayee where she was working, and
thereafter, she went to the police station and lodged the report, the
said report is at Exhibit 21 and the FIR is at Exhibit 22. She has
shown the spot of incidence. She was also referred for medical
examination, and her clothes, articles A to D, were seized, and a
pair of chappals was also seized from the spot of incidence.
15. During her cross-examination, it came on record that
she is serving in a Vajpayee Hotel, which is located near the Post
Office. The Railway Station is approximately 7 to 8 shops from the
Vajpayee Hotel. There is ladies urinal in Vajpayee Hotel and she
stays in Subhash Nagar, Ward. The spot, where she urinated, is far
away from her house. She further admits that the employees of
Railway by residing in railway quarters along with their families.
Several persons used to come and go on the road near the spot of
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incident. The accused caught her by one hand and she tried to
save herself by another hand. She has not made any attempt to
throw soil in the eyes of the accused. The distance between spot of
incident and the place where the accused spot her, is about 5 to 10
minutes. Further cross-examination, it has been established that
there is a water tank and pump house located near the site of the
incident. This area often serves as a gathering place for people,
who are frequently found seated there. She specifically admitted
that she never resisted the accused, while he was forcing her into
the sexual assault. As per her evidence, the alleged intercourse was
going on for half and hour with her, and accused discharged the
semen at the spot of incidence. She has not sustained any injuries
in the alleged incident. She does not taken bath, till her medical
examination was carried out.
16. To corroborate her version, the prosecution placed
reliance on the evidence of PW-3- the Medical Officer, who
deposed that on 08/05/2019, she was attached to Rural Hospital
Ballarsha as Medical Officer. The victim has narrated the history of
the alleged incident and stated that the accused took her forcibly
into bushes near Railway Yard and sexually assaulted her. On her
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physical examination, one abrasion was found on her neck. Except
the neck abrasion, there was no injury on her body, including
private parts. Her hymen was old and torn; no injury was found on
her private part, the medical report is shown at Exhibit-24.
During her cross-examination, she admitted that she
had not mentioned in report Exhibit-25 that the abrasion over the
neck of the victim was fresh or old. She further admits that, if the
forcible intercourse was committed on the spot, as shown in the
photographs, there is a possibility of abrasion on the body of the
victim. Thus, by this cross-examination, an attempt was made to
bring on record that no injury was found on the person of the
victim, which sufficiently shows that the evidence of the victim is
not trustworthy.
17. The PW-4 Sureshkumar Prabhudas Vajpayee, who is
the owner of the hotel wherein the victim was working, is
examined vide Exhibit-38, who testify that on 08/05/2019 at
about 9.00 a.m., the victim went to her home after recess of her
hotel. However, at about 11 p.m. she returned to the hotel, and
she was weeping and disclosed that she was subjected for the
sexual assault. He also admitted during cross-examination that
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there is a pump house near the spot. The rest of the
cross-examination is in the denial form.
18. According to the victim's testimony, the accused
discharged semen at the scene of the incident. To support this
claim, the prosecution examined PW-2 Vikram Lokendra Lohare, to
prove the spot panchanama. The panchanama documented that
the victim identified the location, where the police collected soil
samples with semen stains, a pair of chappals, and fragments of
bangles, all of which were recorded as evidence. As to the spot of
incidence, he is cross-examined, but he was unable to state
anything about the surrounding circumstances, which were
available at the spot of incidence. He also acted as a panch witness
during the seizure of the clothes, samples, and dupatta, which
were seized at the instance of the accused, and accordingly, the
panchanamas were drawn. As to the said seizure, no incriminating
facts are brought on record by the defence. The prosecution
examined PW-5 and PW-6, namely Achal Shantaram Kapur and
Dharmendra Trambakrao Joshi, both were the investigating
officers narrated the investigation carried out by them.
19. The evidence of the investigating officer- PW-5, also
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reveals that he seized soil, pieces of bangles, and a pair of
chappals from the spot. He forwarded all the articles for Chemical
Analyzer. The Chemical Analyzer reports are before the Court.
Exhibit No. 11 is the Chemical Analyzer report about analysis of
the clothes of the accused and Duptata of the victim. The analysis
shows that neither blood nor semen is detected on these articles.
Exhibits 12 and 14 are the analysis regarding the blood and
vaginal samples of the victim, and blood samples of the accused,
which are also negative. Exhibit No. 13 is the Chemical Analyzer
report concerning the analysis of the various articles namely soil
seized from the spot, pieces of bangles, a pair of chappals, and the
clothes of the victim, which is also yielded negative results.
20. It is well settled that the sole testimony of the victim
is sufficient to warrant a conviction in a rape case, when her
evidence is of high value and inspires the confidence. In rape
cases, the sole testimony of the victim is sufficient for conviction.
However, if the victim's account is not supported by medical
evidence or surrounding circumstances, corroboration is necessary.
What is most relevant is the victim's evidence, which should be
credible and inspire confidence.
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21. On appreciation of the evidence, the victim has come
with the case that when she was proceeding towards her home
and stopped at one place for urinal purposes, at that time, the
accused dragged her under the bushes near the railway bridge and
subjected her for forceful sexual assault. Her cross-examination
shows that the alleged spot of incident was behind the railway
quarters, where the employees of the railway resides along with
their families. She further admits that the spot of the incident is
situated near the road, which is used by several persons for
transportation. Her evidence further shows that she did not resist
the act of the accused while he was subjecting her for sexual
assault. This evidence requires to be appreciated in the light of the
spot panchanama. The recitals of the spot panchanama show that
the alleged spot of incidence was at a distance of 40 feet from the
railway quarters, and adjacent to the said railway quarters, there is
a locality by the name of Rani Laxibai Ward, and towards the east
of the spot of incidence, there is a forest.
22. Thus, the cross-examination of the victim as well as
the spot panchanama appears to show that near the spot of
incidence, there is a residential locality. The alleged incident,
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according to the prosecution, is at daytime in the morning. Thus,
when the incident has occurred in the morning time near the road
and near the residential locality, it is difficult to accept that none
has seen the present accused and the victim together at the spot of
incidence. Further evidence of the victim shows that she was
dragged by the accused and taken her to the bushes. Except the
abrasion on her neck, no other injury was found on her person.
The medical officer stated that only one injury was found, namely
an abrasion on the neck. The alleged incident, as per the
prosecution, took place on 08/05/2019. On the same day, she is
examined at about 6.00 p.m. within 7 to 8 hours of the incident.
No fresh tear was found on examination of the genitals of the
victim. The evidence of the medical officer shows that it was an
old tear observed during her examination. The age of the injury as
to the abrasion is also not mentioned by the Medical Officer. Thus,
there is no corroboration from the medical evidence either. It is
highly improbable and unacceptable that though she was dragged
by the accused by holding her hand, no redness or abrasion was
found on her person. As per the evidence of the victim, the alleged
incident has taken place in the bushes. However, not a single
injury is found on her person. The spot panchanama also shows
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that the alleged spot of incidence was situated behind the Railway
Quarter in a service lane.
23. Thus, considering the evidence of the victim, the spot
panchanama and medical evidence, which nowhere corroborate
the story of the victim as to the forceful sexual assault. As per the
evidence of the victim, the accused has discharged the semen at
the spot of the incident. The spot panchanama was drawn between
7 to 8 p.m on 08/05/2019. The police have collected the soil from
the spot of the incident, which was forwarded to Chemical
Analyzer. The Chemical Analyzer report is negative, as far as the
analysis of the soil is concerned. Thus, the evidence of the victim is
not corroborated by a single circumstance.
24. It is well established that in a rape case, the accused
can be convicted based solely on the victim's testimony, provided it
is credible and inspires confidence in the mind of the Court. If the
version given by the victim is unsupported by any medical
evidence or the whole surrounding circumstances, then the Court
shall not act on the solitary evidence of the victim. While
appreciating the evidence of the victim, the Court shall be
extremely careful in accepting the sole testimony of the victim
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when the entire case is improbable and unlikely to act.
25. Having carefully considered all the evidence of this
case, I am of the view that the evidence of the victim is not
inspiring the confidence, especially in light of the fact that the
alleged incident has exactly taken place behind the railway
quarters, where employees of the railway are residing, and the
alleged incident has occurred during the morning time. The
admissions given by the victim show that she has not resisted the
act of the accused. She has not made any hue and cry, though a
residential locality was nearby. The said spot of incident is also
near the room, which is used by the citizen for the transportation.
The injury found on the neck is not proved to be a fresh injury. The
hymenal tear, which were observed by the medical officer, were
old one when the victim was examined on the same day. Though
the victim deposed that the accused discharged the semen at the
spot of incident, but the chemical analyzer report negativated the
same. The victim further admitted that she had not bathed until
her medical examination was over. Her clothes were seized and
forwarded for chemical analysis, but the report of chemical
analyzer as to the examination of the clothes is also negative.
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26. Thus, in the present case, after appreciating the entire
evidence on record, it reveals that the evidence of the victim is not
inspiring the confidence and is also not corroborated by the
attending circumstances or the medical evidence. The evidence of
the victim should be natural and consistent with case of the
prosecution, as the evidence of the victim itself is doubtful and
shaky.
The learned Sessions Judge, wrongly relied upon the
same and convicted the accused. As the evidence of the victim is
not inspiring the confidence, and it is doubtful and not
corroborated either by an independent witness or by the
surrounding circumstances.
27. Considering the circumstances, the accused is entitled
for benefit of the doubt. In view of that, the appeal deserves to be
allowed. The conviction of the accused is required to be set aside.
Accordingly, I proceed to pass the following order;
a] The criminal appeal is allowed and disposed of.
b] The impugned judgment and order of sentence
passed in Sessions Case No. 122/2019 dated
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15/11/2021, convicting the accused, is hereby
quashed and set aside.
c] The accused shall be released forthwith if not
required in any other offence.
d] The fees of the appointed counsel be quantified as
per Rule.
[URMILA JOSHI-PHALKE, J.]
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