Reserved on : 29.09.2025
Pronounced on: 01.10.2025
Judgment (Per Sandipkumar C. More, J.) :
1. The appellant, who is the original complainant and
victim in Sessions Case No.223 of 2017, has challenged the
acquittal of present respondent No.1/original accused from
the offence punishable under Sections 376, 323 and 506 of
the Indian Penal Code recorded by the learned trial Judge i.e.
Additional Sessions Judge, Ahmednagar vide judgment dated
05.09.2022 in the aforesaid sessions case.
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2. As per the prosecution case, the appellant/victim
resides with her husband, children and in-laws at
Jawainagar, Kukkadvedhe, Wambori, Taluka Rahuri, District
Ahmednagar. Her husband is engaged in catering work. On
19.06.2017 at about 12.30 p.m. the appellant had gone to
nearby streamlet of Gadakh Vasti situated at Kukkadvedhe
road, for collecting firewood. When she was cutting the fire
wood at the said place with the help of axe, respondent
No.1/accused, who is also a friend of her husband, came from
backside at about 2.00 p.m. and told her that her husband
had sent some amount to her. While the victim was taking
the said amount from him, he caught her right hand and
pulled her. Though the victim shouted, respondent No.1gave
2/3 slaps and threatened her for not to shout. Respondent
No.1 then made her to lie down and forcibly committed sexual
intercourse with her. Though the prosecutrix tried to shout,
but none came to help her. Thereafter respondent No.1
threatened not to disclose the incident to anybody, otherwise
he would kill her husband. Due to such threatening the
prosecutrix did not disclose the incident to anybody till
25.07.2017. However, on 25.07.2017 at about 6.30 p.m. when
the prosecutrix had gone to floor mill, respondent No.1, on the
way, asked her as to when she would be available for him.
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Prosecutrix got frightened and after taking floor, went to the
house. When her husband came home at about 7.30 p.m.
she narrated the incident to her husband. Accordingly, on
next day i.e. on 26.07.2017 prosecutrix alongwith her
husband went to Rahuri police station and lodged report
about the incident.
3. On the basis of report, C.R. No. 271/2017 was
registered against respondent No.1 for the offence under
Sections 376, 323 and 504 of I.P.C. Investigating Officer
Savita Sadavarte (PW-6) carried out the investigation and on
completion of investigation, respondent No.1 was charge-
sheeted for the aforesaid offence. Learned trial Judge
conducted the trial by examining in all six witnesses.
However, ultimately learned trial Judge acquitted respondent
No.1 of the aforesaid charges. Feeling dissatisfied with such
acquittal, the prosecutrix has filed the present appeal.
4. Learned counsel for the appellant/victim
vehemently argued that the learned trial Judge has acquitted
the respondent No.1 mainly on the ground that there was
delay of 37 days in lodging report by the prosecutrix.
According to him, no lady would put her prestige at stake and
criappeal-848.2022.odt
she will definitely think for considerable period before lodging
report of such incident. He further added that though the
injuries while making struggle were not found on the person
of prosecutrix, but since there was delay of 37days, it was
difficult to find such injuries. According to him, prosecutrix
has given evidence as to how the incident had taken place
and medical evidence on record has also supported her
version. As such, he pointed out that even the sole testimony
of victim in absence of any other eye witness in the case of
rape, can be believed. He further pointed out that the delay
in lodging report by the prosecutrix is justified, since
respondent No.1 had given threat of killing her husband if she
discloses the incident to anybody.
5. On the contrary, learned counsel for respondent
No.1/accused strongly opposed the submissions made on
behalf of the appellant and supported the impugned
judgment of acquittal. According to him, the evidence of
prosecutrix does not inspire confidence since there are
material contradictions and omissions. He pointed out that
PW-5 Dr. Rajendra Vairagar in his examination-in-chief itself
has stated that though the victim had come to him with
history of sexual assault dated 19.06.2017 at about 2.00 p.m.,
criappeal-848.2022.odt
but on her examination, he did not find any symptoms of
forcible intercourse. Further, he has opined in the cross-
examination that after conducting semen test, blood group of
the accused can be determined. Learned counsel for
respondent No.1 further pointed out that the prosecutrix had
not even disclosed the incident for about 37 days to her own
husband or the close relative, which is definitely suspicious.
According to him, respondent No.1 did not attempt to abscond
even after disclosure of the alleged incident by the appellant
victim. He pointed out that the defence has brought on
record animosity between the husband of victim and
respondent No.1, and therefore, there was possibility of
implicating the respondent No.1 in false case at the hands of
victim on the say of her husband. According to him, even
after discloser of incident by the victim to her husband on
25.07.2017, the F.I.R. was not lodged promptly, but it was
lodged on the next day and statement of husband of victim
was recorded even after that i.e. on 27.07.2017. Thus, he
submitted that the entire case of prosecution is doubtful and
there are two views possible and therefore the view favourable
to the accused, as taken by the learned trial Judge for
acquitting him of the charge levelled against him, is proper.
He also relied on the judgments Apex Court in the cases of
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Ghurey Lal vs State of Uttar Pradesh reported in (2008) 10
Supreme Court Cases 450 and Murlidhar @ Gidda and
another vs State of Karnataka reported in (2014) 5 Supreme
Court Cases 730.
6. Heard rival submissions. Also perused the
documents on record alongwith record and proceeding of
Sessions Case No. 223 of 2017.
7. Admittedly, the prosecution has examined in all
six witnesses out of which PW-1 is the victim herself. Though
she narrated the incident in her evidence as per the
prosecution story, but as per her cross-examination the spot
of incident was situated 4 kms away from her house and
there were houses of other persons while going there. It is
extremely important to note that though she stated about the
incriminating act of respondent No.1, but the delay of 37 days
in lodging the report of incident has remained unexplained.
Though she stated that respondent No.1 had threatened her
to kill her husband and therefore she remained silent, but
she could have narrated the incident to her husband or any of
her close relative. It is not the case of prosecution that her
husband was out of station for all these 37 days. Moreover, it
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has also come in her cross-examination that Police Patil was
residing at a distance of only 2 kms from her house and there
was police outpost of Wambori where police constables were
available overnight. Thus, it seems strange that the
prosecutrix neither disclosed the incident for about 37days to
anybody nor she tried to get help from the police machinery.
This is highly unnatural on the part of the prosecutrix.
Further, the victim has also improvised her version while
deposing before the Court by adding new allegations, such as,
she was given threat to kill, she was dragged 15 ft and raised
hue and cry. These the facts were not stated by her at the
time of recording her statement. Under such circumstances,
such addition definitely proved fatal to her story.
8. The evidence on record led by PW-5 Dr. Rajendra
Vairagar clearly indicates that there was no positive sign of
forcible intercourse. Though the learned counsel for the
appellant pointed out the opinion of medical officer that
possibility of sexual intercourse could not be ruled out, but it
is to be noted that the appellant is married and habituated to
sexual intercourse. What is required in this case, is the
evidence of forcible intercourse, which is certainly missing.
Scientific evidence in form of C.A. reports which are at
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Exhs.45 to 47, is also not supporting to the case of
prosecution, since no blood was found on the clothes of victim
as per C.A. report Exh.45. Moreover, no blood or semen was
detected on the samples of victim, such as, nail clippings,
swab from labia majora or labia minora, vaganial swab,
cervical swab, vaginal smear, etc., suggestive of forcible sexual
intercourse. Only a spot of semen was found on her petticoat,
but that also cannot be identified as that of respondent No.1.
Therefore, mere presence of semen spot on the petticoat of
prosecutrix cannot be considered as incriminating
circumstance against respondent No.1. Moreover, neither
semen nor vaginal fluid was detected on the samples of
respondent No.1, such as, pubic hair, scalp hair, etc. Thus,
there is no supporting material on record to show that the
testimony of appellant/victim inspires confidence.
9. It is to be noted that the evidence of husband of
victim is in the category of hearsay evidence and that too
there was no immediate discloser of the incident by the
appellant to him. Admittedly, conviction in rape cases can be
based on the sole testimony of victim if it inspires confidence.
However, in the instant case, the delay of 37 days in lodging
report is definitely fatal to the prosecution case. Moreover,
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the victim has also improvised facts while deposing before the
Court by adding certain things which are not stated by her
before the police or Magistrate.
10. The Hon'ble Apex Court in the case of Ghurey Lal
vs State of U.P. (supra) has laid down certain guidelines by
discussing various earlier judgments, as to how the evidence
in rape cases is to be appreciated and in what circumstances
acquittal recorded by trial court can be disturbed. We would
like to reproduce the same as below.
"70. In light of the above, the High Court and other
appellate courts should follow the well settled
principles crystallized by number of judgments if it
is going to overrule or otherwise disturb the trial
court's acquittal:
1. The appellate court may only overrule or
otherwise disturb the trial court's acquittal if it has
"very substantial and compelling reasons" for doing
so. A number of instances arise in which the
appellate court would have "very substantial and
compelling reasons" to discard the trial court's
decision. "Very substantial and compelling reasons"
exist when:
i) The trial court's conclusion with regard to
the facts is palpably wrong;
ii) The trial court's decision was based on an
erroneous view of law;
iii) The trial court's judgment is likely to result
in "grave miscarriage of justice";
criappeal-848.2022.odt
iv) The entire approach of the trial court in
dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly
unjust and unreasonable;
vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declarations/report
of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not
exhaustive.
2. The Appellate Court must always give
proper weight and consideration to the findings of
the trial court.
3. If two reasonable views can be reached - one
that leads to acquittal, the other to conviction - the
High Courts/appellate courts must rule in favour of
the accused.
71. Had the well settled principles been followed
by the High Court, the accused would have been set
free long ago. Though the appellate court's power is
wide and extensive, it must be used with great care
and caution".
Further, the Hon'ble Apex Court in the case of
Murlidhar vs State of Karnataka (supra) has also observed in
para 12 as follows :
"12. The approach of the appellate court in the appeal
against acquittal has been dealt with by this Court in
Tulsiram Kanu, Madan Mohan Singh4, Atley, Aher
Raja Khima, Balbir Singh, M.G. Agarwa, Noor Khan,
Khedu Mohton, Shivaji Sahabrao Bobade, Lekha
Yadav, Khem Karan, Bishan Singh, Umedbhai
criappeal-848.2022.odt
Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar,
Madan Lal, Sambasivan, Bhagwan Singh, Harijana
Thirupala, C. Antony, K. Gopalakrishna, Sanjay
Thakran and Chandrappa. It is not necessary to deal
with these cases individually. Suffice it to say that
this Court has consistently held that in dealing with
appeals against acquittal, the appellate court must
bear in mind the following:
(i) There is presumption of innocence in favour of an
accused person and such presumption is
strengthened by the order of acquittal passed in his
favour by the trial court,
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal,
(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against convictions
but the appellate court is generally loath in
disturbing the finding of fact recorded by the trial
court. It is so because the trial court had an
advantage of seeing the demeanor of the witnesses. If
the trial court takes a reasonable view of the facts of
the case, interference by the appellate court with the
judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably
wrong or based on erroneous view of the law or if
such conclusions are allowed to stand, they are likely
to result in grave injustice, the reluctance on the part
of the appellate court in interfering with such
conclusions is fully justified, and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is
inclined to take a different view, interference with the
judgment of acquittal is not justified if the view taken
by the trial court is a possible view. The evenly
balanced views of the evidence must not result in the
interference by the appellate court in the judgment of
the trial court".
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11. On going through the aforesaid observations, it
appears that the Hon'ble Apex Court has consistently held
that if two views are possible, then the one favouring acquittal
of accused, must be chosen. In the instant case, it appears
that evidence of prosecutrix does not inspire confidence. It is
not supported by medical opinion and what is material to
uphold the acquittal, is the delay of 37days in lodging F.I.R.
which remained unexplained. The defence raised by
respondent No.1/accused is also a probable one, supported
by legal principles. Therefore, we are of the opinion that the
learned trial Judge, after proper appreciation of the evidence
on record, has rightly chosen possible view which does not
require any interference. There is no merit in the appeal.
Hence, the appeal stands dismissed.
(MEHROZ K. PATHAN) (SANDIPKUMAR C. MORE)
JUDGE JUDGE
VD_Dhirde
