Someshwar s/o Baburao Kuthe vs The State of Maharashtra

V.M. Deshpande, J.(Oral)—Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge Bhandara, dated 30th of August, 2014 in Special Criminal (Atrocity) Case No. 13 of 2011, the appellant is before this Court.

The appellant was convicted and sentenced for the offence punishable under Section 376 (1) of the Indian Penal Code and for that he was directed to suffer rigorous imprisonment for ten years and to pay a fine of and in default of payment of fine to suffer rigorous imprisonment for three months.

The appellant was also convicted for the offence punishable under Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and for that he was directed to suffer imprisonment for life and to pay a fine of and in default of payment of fine to suffer rigorous imprisonment for four months.

When this matter was placed before us for final hearing, the learned counsel for the appellant remained absent. We have heard Shri N.B. Jawade, the learned Additional Public Prosecutor for the State. With his able assistance, we have gone through the notes of evidence and record and proceedings of the case. According to the learned Additional Public Prosecutor, the evidence of prosecutrix is conclusive in its nature warranting no interference from this Court and therefore, prayed for dismissal of the appeal.

The First Information Report is lodged on 19th of September, 2011. It is lodged by prosecutrix herself. She is examined as prosecution witness No. 1 in the Sessions Case. Undisputedly, prosecutrix belongs to a caste which is a Scheduled Caste whereas the appellant belongs to Kunbi caste which is not a Scheduled Caste.

The First Information Report (Exh.27) on the basis of which Crime No. 85 of 2011 was registered at Police Station Lakhandur (printed FIR Exh.28) states that the prosecutrix who is aged about 20 years resides with her parents at village Sarandi. On the day of the incident at 8.30 in the morning, she had been to her agricultural field. That time, the appellant who is also resident of village Sarandi kept the bundle of grass on Dhura (which divides two agricultural fields). It is further stated in the First Information Report that when the prosecutrix was proceeding for her house, on said Dhura, that time the appellant accosted her and demanded sexual favour which was denied by the prosecutrix. Upon that, by force she was fallen down. That time prosecutrix raised alarm therefore her mouth was gagged by the appellant. Thereafter, the appellant removed the clothes of the prosecutrix and committed sexual assault on her. The First Information Report further states that at that time she bite to the hand of the appellant. After sexual assault was over he gave threats to the prosecutrix. He asked her to go to her house therefore she proceeded for her house. That time she noticed the bicycle of the appellant standing there which was smashed by her. She was weeping, that time two unknown persons were going from there by motor-cycle. She disclosed the incident to them. At that time one Sukhram Fulzele (PW 3) and one another resident of village Sarandi came there and thereafter she was reached to her house. She disclosed the incident to her mother and thereafter the incident was reported. The crime was investigated by Prashant Khaire (PW 8), Police Officer. He prepared spot panchanama (Exh.38). He also seized the bicycle of the appellant from the spot under seizure Memo (Exh.40). He also seized clothes of the prosecutrix under seizure Memo (Exh.12). Arrest of the appellant was caused under arrest Memo (Exh.49). His clothes were also seized. He also sent prosecutrix for her medical examination to the Government Hospital, Lakhandur. Vaginal swab of the prosecutrix and her blood samples were also handed over to the Investigating Officer by the Medical Officer. The appellant was also medically examined. The muddemal property was sent to the Chemical Analyzer for its chemical analysis.

Dr. Ujwala Borkar (PW 9) was working as a Medical Officer at Rural Hospital, Lakhandur. She received requisition from Police Station Lakhandur on 19th of September, 2011 for medical examination of the prosecutrix. She noticed no evidence of external injuries over her body. On her local examination, Dr. Ujwala noticed that there was vaginal discharge, however, there was no evidence of bleeding and the hymen was torn and one finger could have been easily introduced in her vagina without any difficulty which, according to Dr. Ujwala, shows that the prosecutrix was habituated with the sexual intercourse. She has proved the medical examination report, which is at Exh.59.

The entire case of the prosecution revolves around the testimony of prosecutrix. It is a well settled that if the testimony of prosecutrix is found to be trustworthy and if it inspires confidence, the said can be the basis for conviction. Keeping in mind this principle, the Court will have to scrutinise the evidence of the prosecutrix.

The prosecutrix is a major girl. She works in the agricultural field and the arrest panchanama (Exh.49) shows that the built of the appellant is medium lMikrG.

According to the First Information Report, by force she was fallen down on the ground and when the appellant was in the process of making sexual intercourse she had a bite to the hand of the appellant. Even her evidence shows in that behalf as under:-

"eh R;kosGh vkjksihyk pkok lq)k ?ksryk gksrk"

The evidence of Prashant Khaire (PW 8), Investigation Officer, shows that after the arrest of the appellant he was sent for medical examination. Appellant was also medically examined by PW 9 Dr. Ujwala Borkar. Her evidence shows that when the appellant was medically examined she could not notice any external injuries on his body nor any injury marks were found on his private part. The injury certificate so given by doctor is at Exh.60.

From the aforesaid, the assertion made by the prosecutrix in the First Informational Report about the biting which was reiterated by her from the witness box stands falsified in view of evidence of Dr. Ujawala Borkar and her notings in medical certificate (Exh.60)

The prosecutrix is assertive in the First Information Report that after she was being directed by the appellant to proceed to her house and when she came on the road that time she noticed the bicycle of the appellant standing there and therefore she smashed it. That is also reiterated by her in her examination-in-chief itself as under :-

"vkjksihph lk;dy jksMoj ek>s lk;dy toG mHkh gksrh eh R;kph lk;dy vkiBr gksrh0"

The Cycle of the appellant is seized under Seizure Memo (Exh.40). The said Seizure Memo is completely silent that the cycle was damaged nor the Investigating Officer states about its condition. If really the prosecutrix had smashed the bicycle of the appellant then there should be evidence to that effect on the said bicycle which unfortunately is not.

The spot Panchanama is at Exh.38. The relevant portion in the spot panchanama reads as under :-

"lnj tkxsoj ekuokP;k >VkiVhP;k [kk.kk [kw.kk fnlr vkgs0 lnj [kkaMhe/;s mRrjsl ik;kps fu''kku o nf{kusl moZfjr ''kfjjkpk Hkkx ?kwleGGsY;k fLFkrhr fnlr vkgs0"

From the aforesaid, one could visualise the degree of resistance. If such high degree of resistance was offered by the prosecutrix, inevitably there ought to have been some type of injuries on the person of the prosecutrix as well as on the person of the appellant. However, as noticed above, Dr. Ujwala Borkar has specifically stated in her evidence that when she examined both prosecutrix and the appellant she noticed no external injuries.

Further, the nail clippings of the prosecutrix were taken and they were sent to the Chemical Analyzer. C.A.report (Exh.22) shows that neither blood nor tissue matter were detected in the nail clippings of the prosecutrix. In that view of the matter, the following portion appearing in the evidence of Dr. Ujwala Borkar (PW 9) is required to be mentioned herein below.

"It is true that one finger easily introducing vagina of patient means that she was habituated with sexual intercourse. It is true that hymen torn was not fresh but old one. It is true that thus I have mentioned that there was no bleeding. It is true that if such a girl is ravished by able bodied person against her will, she will receive injury mark and abrasion over her body and over private part also. It is true that in my report at Exh.59 and Exh.60 I have not mentioned any such mark or injuries over body of Ku. Priti and Someshwar. If a girl is forcibly felled down on Dhura she will receive the injury over her back. It is true that I did not find any injuries over the body of Ku. Priti. I also did not find any injuries over the body of Someshwar Kuthe when I examined him. It is true that when girl is ravished without a consent there will be struggle mark over labia majora and will not be struggle marks in the case of consent. It is true that no struggle marks were found on labia majora of Ku. Priti. It is true that I did not find any struggle marks over the private part of Someshwar."

In our view, the aforesaid clearly destroys the basic fabric of the prosecution case.

Not only that, in her evidence prosecutrix has stated as under :-

"gs Eg.k.ks [kjs vkgs dh vkt iksyhlkauh eyk d;k lk{k n;k;ph vkgs gs letkowu lkafxrys o R;kaps lkax.ksizek.ks eh lk{k fnyh0"

From the aforesaid, it is crystal clear that the prosecutrix is under the thumb of Police. In our view that shows that the prosecution is a tutored witness. Therefore, in our view, her sole testimony cannot be said to be one, which inspires confidence. Further, there is no corroboration from the attending circumstances to the evidence of prosecutrix as observed in preceding paragraphs. Even the scientific evidence in the nature of the Chemical Analyzer report (Exh.22) shows the absence of any semen in the vaginal swab and pubic hairs of the prosecutrix nor the C.A.report (Exh.20) noticed any blood or semen stains on her clothes or on the clothes of the appellant.

Though the other witnesses are examined by the prosecution, those are of no use since their evidence is only in respect of reaching the prosecutrix to her house.

Once we noticed that the evidence of prosecutrix is not trustworthy and does not inspire confidence and further found to be belied by the medical evidence, in our view, we will have to record finding that the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant and therefore the appellant is required to be acquitted of the offence punishable under Section 376 of the Indian Penal Code.

Once Court reaches to the conclusion that the prosecution has failed to prove the charge of rape, his conviction under Section 3(2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 cannot stand to the scrutiny of law. Consequently, we pass the following order.

ORDER

The appeal is allowed.

The order of conviction and sentence is set aside. The appellant is acquitted of the offences for which he was charged and convicted.

The appellant is directed to be set at liberty if not required in any other Crime.