Raghunath vs State of Maharashtra

V.M. Deshpande, J.—Being dissatisfied with the judgment and order of conviction passed by Sessions Judge, Chandrapur in Sessions Case No. 88/2012, the appellant is before this Court.

By the judgment and order of conviction, the learned Sessions Judge, Chandrapur convicted the appellant for the offence punishable under Sections 376 and 506 of the IPC.

On account of his conviction for the offence punishable under Section 376 IPC, he is directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- and in default to suffer rigorous imprisonment for one year.

His conviction for the offence punishable under Section 506 of IPC resulted into passing of sentence for a period of six months.

However, both the sentences were directed to run concurrently.

The facts, which are necessary for the decision of the present appeal are narrated hereunder.

Pw4-Dayaram Khewale was attached to Police Station Bramhapuri as Assistant Sub Inspector. On 11.06.2012, he was a Day Officer. At 2.30 p.m. on the said date, the PW1-victim came to the Police Station and he recorded her report as per her say. The said report is at Exh.-10. Since the report was disclosing commission of cognizable offence, a crime was registered against the appellant vide Crime No. 62/2012 for the offence punishable under Section 376, 506 of the IPC. Printed FIR is at Exh.-11.

PW1-victim came to the Police Station and lodged her oral report Exh.-10. According to the report, her marriage took place with Amar Kurzekar in the year 2009. Her husband is son of the appellant. From the date of the marriage, she resides in her matrimonial house.

The family of the first informant/victim consisted of her husband-Amar Kurzekar, her mother in law Vatsalabai and the appellant, who is her father in law. Every member of the family engaged themselves in labour work.

The prosecution case further proceeds that on 10.06.2012, her mother in law went to Mouja Chapra in the house of her relative. The appellant went to hotel for work. At 9 O''clock, her husband Amar went to work on his truck duty. The prosecutrix was alone in the house. At 12.00 noon, the appellant came for lunch. After his lunch, he again went to his work.

In the evening, after preparing meal, the prosecutrix was sitting alone in the courtyard. That time, at 7.30 p.m. the appellant came to the house. The prosecutrix prepared the plate for the appellant and, thereafter, she came and sat in the house courtyard.

The FIR further proceeds that that time, the appellant came near her. He caught hold hand and dragged her inside the house and, thereafter, tried to establish physical relationship with her. The said attempt of the appellant was resisted by the prosecutrix and, thereafter, he removed his clothes, removed the clothes of the prosecutrix and committed rape on her. In between 8.30 to 9.00 p.m. Amar, husband of the prosecutrix, came that time, the appellant freed the prosecutrix. The matter was disclosed by the prosecutrix to her husband. Thereafter, she made phone call to her relatives and, thereafter, the matter was reported to the police.

After registration of crime, Dayaram Khewale-PW4 handed over the investigation to Prakah Tunkalwar-PW3. After getting charge of the investigation, he referred the victim for her medical examination to the Rural Hospital, Bramhapuri by giving requisition letter-Exh.-21. He visited the spot of the incident and the spot panchanama was drawn in presence of panchas. He also gave requisition to Tahsildar for preparation of map of the spot (Exh.-22). Accordingly, a map was prepared and the Circle Officer, Bramhapuri vide letter Exh.-23 supplied it to the Investigating Officer.

Under seizure memo Exh.-12, clothes of the prosecutrix were seized. During her medical examination, the samples such as blood sample, vaginal swab, pubic hair, nail of the prosecutrix were collected by the Medical officer and were seized under the seizure memo Exh.-14.

On 11.06.2012, the appellant was arrested under the arrest memo Exh.-24. He was also sent for medical examination. The samples of the appellant collected by the Medical officer were seized under the seizure memo Exh.-26. The undergarments of the appellant were also seized as per the seizure panchanama Exh.-27. He also recorded statement of witnesses. The seized articles and the samples were sent to the chemical analyzer under requisition Exh.-28. After completion of the investigation, the charge-sheet was presented before the Court of law.

After passing the necessary committal order, the case was registered as Sessions Case No. 38/2012. The learned Sessions Judge, Chandrapur, under Exh.-17 framed the charge against the appellant for the offence punishable under Section 376 and 506 of the IPC.

The appellant abjured his guilt and claimed for his trial.

In order to bring home guilt of the appellant, four witnesses were examined. They are; PW1-Victim, PW2-Mangesh Marghade, brother of the victim who accompanied her at the time of lodging of the FIR, PW3-Prakash Tunkalwar, the Investigating Officer and PW4-Dayaram Khewale, who has registered the FIR.

Most of the documents relied upon by the prosecution are admitted by the appellant during the course of trial.

After full dress trial, the learned Sessions Judge convicted the appellant, as observed in the opening paragraph of this judgment.

I have heard Shri Y.B. Mandpe, learned counsel for the appellant and Mr. A.K. Bangadkar, learned A.P.P. for the State. With the able assistance of both the counsel, I have gone through the record and proceedings and also notes of the evidence.

From the FIR and from the evidence of the victim, it is clear that at the relevant time, the victim was sitting in the courtyard and that time, the appellant caught her hand and dragged her inside the house. It is established on record that the house of the prosecutrix is surrounded by various houses of the neighbours.

In the rural India, no father in law will catch hold the hand of his daughter in law since the relations between the father in law and daughter in law are not treated as jovial one.

Thus, when hand of the prosecutrix was caught hold by the appellant and when she was dragged inside the house against her wish, that time it must have struck the mind of the prosecutrix that the intentions of her father in law are not good. It would be useful to refer the evidence of the prosecutrix herself in which she has admitted during her cross-examination that,

"My house is situated in a crowded locality. At the time of incident, ladies were at their house. It is correct to say that the noise of shouts from my house can be heard by them. I do not raise shout when the accused caught hold of my hand at the courtyard."

Thus, in spite of the fact that the house of the prosecutrix is surrounded by neighbours, she has not raised any voice or gave a call to any of the neighbours for help. This appears to be the most unnatural.

Further, the prosecutrix herself has admitted in her cross-examination that at the time of actual occurrence of commission of rape, the main door of her house was open. It would be useful to reproduce the said paragraph wherein she has stated that,

"It is correct to say that at the time of incident, main door was open and curtain was hanging. The accused removed his lungi by both hands. At that time, I did not try to run away."

If evidence of the prosecutrix is to be believed that the appellant established sexual intercourse against her will, when she was dragged inside the house which is situated in a crowded locality. Keeping mum on the part of the prosecutrix not only appears to be unnatural but it creates doubt over the truthfulness of the prosecution case.

Further, according to the prosecution, when she attempted to resist the heinous act of her father in law that time her bangles were broken and she sustained injuries because of broken bangles. She claims that she pointed out the injury to the Doctor. She claimed in her evidence that when the police had been to her house at that time she had shown a piece of broken bangle.

However, the aforesaid claim of the prosecutrix is found to be incorrect. She was examined by the Doctor and her injury certificate is at Exh.-32. No injuries of any kind were noticed on her body including on her private part. The injury certificate Exh.-32 is very specific that at the time of her examination, no external injury marks were seen over her body.

Further, PW3-Investigating Officer has stated that,

"On the spot of incident, broken pieces of bangles were not found."

Thus, it is crystal clear that the version of the prosecutrix is not supported by other evidence.

The undergarment of the prosecutrix were sent to the forensic lab. The Chemical Analyzer''s report is available on record. It shows that no semen has been or detected on her undergarment.

According to the learned A.P.P. from the cross-examination of the prosecution witnesses, it was the case of the appellant that the prosecutrix was a consenting party. However, in his statement under Section 313 Cr.P.C. he has not taken that defence and, therefore, he submitted that the judgment and order of conviction has to be maintained.

In criminal case, the burden firmly rests on the shoulders of the prosecution. The prosecution has to prove its case beyond reasonable doubt. The prosecution case cannot succeed because different defences are taken during the course of the trial.

Further, from the evidence of the prosecutrix herself, her husband came when the father in law was in compromising position. At that time, though she reported to her husband, he gave a beating to her. Therefore, she ran out of the house and met with Shakuntala Vaidya and Shalu Uhade. Thereafter, they took her to her grandmother-Janabai. Thus, after the incident, she immediately met three ladies in spite of that if her examination-in-chief is seen, she has sated that,

"I did not narrate incident to grandmother or to those two ladies."

The report was lodged on the second day when she gave call to her brother PW2-Mangesh. He has arrived after he received a phone call from PW1-Victim. There is no explanation available in the prosecution case regarding not making a phone call to PW2-Mangesh, brother of the victim. Thus, the delay remained to be unexplained.

The totality of the aforesaid evaluation of the prosecution case, in my view, fails to bring home the guilt of the appellant beyond reasonable doubt. Therefore, the appellant is entitled to the benefit of doubt.

The upshot of the aforesaid discussion leads me to pass the following order.

"(i) Criminal Appeal No. 281/2013 is allowed.

(ii) Judgment and order dated 15.04.2013 in Sessions Case No. 88/2012 passed by Sessions Judge, Chandrapur, is hereby quashed and set aside.

(iii) The appellant-Raghunath Atmaram Kurzekar is acquitted of an offence punishable under Sections 376 and 506 of the Indian Penal Code.

(iv) The appellant, who is in jail, shall be released forthwith, if not required in any other case.

(v) Fine amount, if any paid by the appellant, shall be refunded to him.