Dashrath Babu Waghmode vs The State of Maharashtra

Sadhana S. Jadhav, J—Appellant herein is convicted for offence punishable under section 376(1) of Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 2000/- in default to undergo rigorous imprisonment for one year in Sessions Case No. 18 of 1993 passed by 4th Additional Sessions Judge, Solapur vide Judgment and Order dated 25/01/1994. Hence, this appeal.

Such of the facts which are necessary for the decision of this appeal are as follows.

That on 02/06/1992, Pandurang Gurav lodged a report at Tembhurni Police Station alleging therein that on 31/05/1992 his wife Padmawati had been to the agricultural land for fetching fodder. After she returned, she was shivering and crying. Upon enquiry, Padmawati informed her mother-in-law that when she was returning home and was passing through land of Shankar Lokare, Dashrath Waghmode i.e. present appellant had followed her from behind. He had attempted to strangulate her and had dragged her up to a distance and thereafter, he had ravished her. She further informed that she had informed the ladies about the said incident. First informant had disclosed the incident to the police patil of the village. First informant had then gone to the house of appellant to question him as to why he had acted in a heinous manner. That appellant and his brother Ankush had abused and threatened first informant. Thereafter, first informant had approached Advocate Ankush Bhanavse and other respectable members of the village and a meeting was held in front of house of first informant. It is alleged that present appellant was called in the said meeting, he had raised hue and cry in the said meeting, threatened the villagers and left the spot. First informant was therefore, constrained to lodged the report about the said incident dated 31/06/1992 to the police. Investigation was set in motion. Accused was arrested. After completion of investigation, charge-sheet was filed on 07/09/1992. Case was committed to the Court of Sessions and registered as Sessions Case No. 18 of 1993. Charge was framed against accused on 13/07/1993. Prosecution examined 11 witnesses to bring home the guilt of the accused.

P. W. 1 Dr. Salil Patil was Medical Officer attached to Primary Health Centre at Tembhurni. He has deposed before the Court that on 03/06/1992, he had examined present appellant. He found 10 scratch marks over inguinal region both sides. There was scaly formation. Injuries were not fresh. There were scratch marks over the right side of the cheek as well as on the right upper eye lid and back side. There were no injuries on his private part. According to P. W. 1, injuries could be caused by scratching. The said injuries were 2 to 3 days old. He has produced the case papers on record which is at Exhibit 13. P. W. 1 has admitted in the cross-examination that he had not issued certificate. That he had not mentioned the age of the injuries in the case papers.

P. W. 2 Raju Bhanuwase was panch for spot panchanama and seizure panchanama. He has not supported the prosecution and has been declared hostile.

P. W. 3 Malhari Bhanawase is the panch for spot panchanama. He has deposed before the Court that on 03/06/1992, he was called by the police to act as a panch. In the field of Hanumanth Jagtap, he had noticed that land was trampled. That Padmawati had shown the said spot. He has proved the contents of the spot panchanama which is at Exhibit 14. It is elicited in the cross-examination that his son Ankush is Advocate and that they reside jointly in Gavthan. It is also admitted that his house is in close proximity to the house of prosecutrix.

P. W. 4 Mahaling Vibhute is the panch for seizure of clothes of accused. He has proved the contents of the seizure panchanama which is at Exhibit 21. It is admitted in the cross-examination that since many years, he is working as panch. He has deposed as a panch in all Sessions Courts at Solapur and Madha.

P. W. 5 Pandurdang Gurav is the first informant who happens to be husband of prosecutrix. He has deposed before the Court in accordance with F.I.R. He has proved the contents of F.I.R. which is marked at Exhibit 23. In the cross-examination, P. W. 5 has admitted that the house of the accused is in lane no. 3 whereas his own house is in land no. 1. The witness has denied friendship with the accused and has also denied that his wife used to accompany the accused to the market of Tembhurni. P. W. 5 has stated in the cross-examination that his financial condition is good. There are inherent omissions brought about in the cross-examination. The witness has deposed before the Court that he had disclosed to the police that his mother had narrated the incident to him, however, the said narration does not find place in Exhibit 23. Similarly, according to P. W. 5, he had disclosed to the police that he had been to the police station on 31/05/1992, but his report was not recorded. On the following two days, Kotwal had called him and he had been to the police station wherein according to him, he was told that unless accused was arrested, his report could not be taken. These are material omissions which go to the root of the matter. False implication on political grounds is denied by the witness.

P. W. 6 is prosecutrix. She has deposed before the Court that on 31/05/1992, at about 4.30 p.m., she had left the house for bringing grass. She had been to the field of Jagtap. That she was uprooting the grass in the field, when the accused came to the spot and restrained her from uprooting the grass. According to her, she told the accused that she would not uproot the grass and hence, she started collecting the uprooted grass. When she was in a bending position, accused had held her from behind. He had pulled her in the sugarcane crop in the field. He had not paid any heed to her cries. That he had gagged her mouth. That he had ravished her against her wish and thereafter, he went towards field of Shankar Lokare. According to her, she had also disclosed about the incident to Lochanabai and Awalabai, Sarpanch and Advocate Bhanuse and some other persons who had gathered in front of her house. She had disclosed the incident to her mother-in-law. On the same day, in the evening, accused was brought to her house. At that time, accused had questioned as to why he was brought in front of the house. Thereafter, accused is alleged to have admitted the commission of the said act and had fled from the spot. It is pertinent to note that in the cross-examination, prosecutrix has stated that her husband begs alms. She has further deposed that she has a daughter who is 10 years old. That she had uprooted small quantity of grass which would be sufficient for one cow. According to her, she had presumed that accused is employed by Jagtap and therefore, did not question his authority of restraining her from uprooting the grass.

P. W. 7 Anandibai Gurav happens to be mother-in-law of prosecutrix. According to the prosecution, she is the first person to whom prosecutrix had disclosed the incident. She has deposed before the Court that in the evening at about 7.00 p.m., people had gathered in front of her house, but due to poor eye sight, she did not know who were those persons. She has also deposed that accused was called to her house and he admitted to have committed the said act. In the cross-examination, she has admitted that prosecutrix had disclosed the incident to her and her son Pandurang at the same time. Witness was confronted with her previous statement. There are inherent omissions and contradictions in the evidence of P. W. 7.

P. W. 8 Gorakh Mule happens to be police patil of the village. He has deposed before the Cout that on the day of incident at about 7.00 p.m., when he was returning home, Pandurang met him on the way and informed him that Dashrath Waghmode has committed rape on his wife. That P. W. 8 had told Pandurang that after due enquiry, report would be lodged at the police station. He has admitted in the cross-examination that he has not informed the police station about the narration given to him by Pandurang. He has not taken entry of the said narration in his register. He has admitted that he had been to the house of Pandurang on the next day but did not make any enquiry with the wife of Pandurang. That on the next day, Panduang had handed over a letter to him which was issued by L.C.B. Office, Solapur. It is pertinent to note that said letter is not on record.

P. W. 9 Sunil Gurav is the cousin of Pandurang. He also resides in the same locality. The witness is declared hostile.

P. W. 10 Gangaram Shirsat is the carrier of the articles to the office of C.A.

P. W. 11 Chandrakant Salunke was officiating as P.S.I. in charge of Tembhurni Police Station. He has deposed before the Court that on 02/06/1992, he recorded the statement of prosecutrix. On that day, accused was not at home. He has further deposed that there was error in the description of the name of the owner of the land, where the incident had occurred and therefore, he recorded supplementary statement of Pandurang. On 03/06/1992, he arrested the accused at Thakarwadi, Tal. Indapur. On 05/06/1992, P. W. 11 had proceeded on leave and therefore, the charge was handed over to P.S.I. Jagtap. On 11/06/1992, investigation was once again entrusted to P. W. 11. P. W. 11 has proved the omissions and contradictions of the witnesses. He has specifically admitted in the cross-examination that Pandurang did not make grievance before him that on 31/05/1992, at about 11.00 p.m. when he had been to the police station at Tembhurni, police had abused him and told him that his report would not be taken.

It is true that in a case under section 376 of Indian Penal Code, evidence of prosecutrix would be sufficient to convict the accused, provided it inspires confidence and is corroborated by other material. In the present case, certificate of examination issued by General Hospital, Solapur shows that prosecutrix was examined by doctor on 03/06/1992. History of incident was narrated by the victim. Column no. 8 shows that history of alleged rape on 31/05/1992. There were no external injuries on the person of victim. Similarly, column no. 3 also does not show any external injuries. The opinion of doctor is as follows:

(i) No evidence of rape committed observed

(ii) No evidence of external injury over genital

(iii) Lab investigation sent to Chemical Analyser.

The certificate is issued on 03/06/1992. On 03/06/1992, appellant was also examined at Primary Health Centre. He was taken to the hospital by the police with alleged history of rape done on a female on 31/05/1992 at 6.00 p.m. The certificate which is at Exhibit 13 shows no injury mark over private parts. Scratch marks and scaly formation. P. W. 1 has proved the certificate. There is no reason to disagree with opinion of P. W. 1.

It is specifically the defence of the accused that in fact, prosecutrix and accused were acquainted with each other. That they had relations and on that particular day, only because some passers by had seen prosecutrix along with the accused, she has concocted the story of rape in her own defence. In the statement under section 313 of Code of Criminal Procedure, 1973, accused has specifically contended that Pandurang happens to be his friend. That Pandurang used to send his wife along with him to the Bazar and at other places. That prosecutrix had informed him that she is not satisfied with her husband and that she does not like him and therefore, they had developed a close relationship. It is also contended that Pandurang had taken hand loan from the accused and that he had no intention to repay the same and therefore, he had forced his wife to concoct the case of rape. Accused has further contended that there are two rival groups in the village. The complainant belongs to the group of Advocate Bhanuse. That the rival group has taken recourse to initiate criminal proceedings only to satisfy the political vendetta. As far as abrasions on his person are concerned, accused has explained those injuries by stating that the thieves had come in the village and that he had a scuffle with the thieves and in the said scuffle, he had sustained the said abrasions.

In a case of circumstantial evidence, the defence of the accused has to be considered at par with the evidence of prosecution witnesses. Any false explanation may give an additional link to establish the guilt of the accused. In the present case, evidence of prosecutrix would be of vital importance and in the eventuality that her substantive evidence appears to be truthful and inspires confidence of the Court, there is no reason to look for corroborative evidence. It is the case of the prosecution that prosecutrix had informed her mother-in-law about the said incident. Her husband had called upon the accused to question him as to why he had committed the said act. The Court cannot be oblivious of the fact that the house of the accused and prosecutrix are in close proximity. The complainant i.e. husband of prosecutrix happens to be well acquainted with the accused. P. W. 5 complainant has stated in his examination-in-chief that he begs alms and also repairs cycle punctures. At the same time, in para 11 of the cross-examination, he has admitted that his financial condition is good. In the eventuality that his financial condition is good, there is no reason for him to beg alms. The defence of the accused has to be considered in light of this contradiction. Accused has specifically stated that he has been falsely implicated only with the intention to waive repayment of the hand loan. Moreover, the F.I.R. is lodged belatedly. Complainant had informed about the incident first to L.C.B. Solapur and then it was remanded for investigation to Tembhurni Police Station. Cross-examination of P. W. 9 also needs to be taken into consideration, although he has been declared hostile. There is a specific evidence on record to show that prosecution witness had been to the house of Advocate Bhanavse even before reporting the matter to the police station.

In the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and Another, (2006) 10 SCC 92 , Hon''ble Apex Court has observed that :

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind 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 court shall not act on the solitary evidence of 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."

In view of this, appellant herein deserves to be acquitted.

ORDER

(i) Appeal is allowed.

(ii) The Judgment and Order dated 25/01/1994 in Sessions Case No. 18 of 1993 passed by 4th Additional Sessions Judge, Solapur is hereby quashed and set aside.

(iii) Appellant is acquitted for offence punishable under section 376 (1) of Indian Penal Code.

(iv) Fine amount, if paid, be refunded.

(v) Appellant be released forthwith, if not required in any other offence.

(vi) Appeal stands disposed of.