1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 3 OF 1999 Maheboob s/o Daud Patel, Aged 33 years, Occupation Labour work, Resident of Sakur, Taluka Sangamner, District Ahmednagar Appellant V E R S U S The State of Maharashtra Respondent Mr. S.B. Yawalkar, Advocate holding for Mr. V.J. Dixit, Senior Counsel for the appellant Mr. T.S. Lodhe, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 24th November, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the II Additional Sessions Judge, Shrirampur, dated 23rd December, 1998, in Sessions Case No. 325 of 1995, convicting the appellant for the offences punishable under Sections 376, 352, 342 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for six years and to pay a fine of Rs.5,000/- with a default clause for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for shorter durations for the rest of the offences with fine etc. The prosecution case is as under : 2. The appellant and the complainant Kalpanabai are residents of village Sakur, Taluka Sangamner, District Ahemadnagar. Complainant Kalpanabai and her husband Subhash have two children, aged 6 and 3 years, respectively. Complainant Kalpanabai was about 28 years old when the incident took place. On 16th September, 1995, at about 08.30 p.m., her husband left their house telling that he would go to 2 see a movie. Kalpanabai and her two children slept in the house. During the night, Kalpanabai heard noise of the latch of the door. She thought her husband had come. She opened the door, but found the appellant standing in front of the door. He pushed her inside the house and latched the door from inside. Thereafter, he pushed her further and fell her on ground. He pinned her down using one hand and with the other he removed his trouser and underwear. He then raped her. While he was doing so, she scratched his face near nose. She raised alarm, but in vain. The appellant left the house and at that time she noticed one Dyanoba walking on the road in front of her house. She narrated the incident to Dyanoba. He adviced her to lodge a complaint to police. After some time, her husband came. She narrated the incident to her husband and her husband adviced her to wait till morning. In the morning at about 08.00 a.m., the appellant again came in front of her house. Seeing him, the complainant’s husband asked him as to why he had raped his wife. To this, the appellant answered that they could take any action against him and threatened that if they did, they would face dire consequences. Thereafter, at abut 08.30 a.m., 4-5 persons belonging to the appellant’s caste came to the house of the complainant and tried to ask her to settle the case amicably, but in vain. The complaint was lodged thereafter at about 11.30 a.m. The offence was registered against the appellant. The complainant was sent for medical examination. On 18th September, 1995, the appellant was arrested and was also sent for medical examination. The Medical officer found abrasion on the face of the appellant. After completion of the investigation, the charge-sheet was filed. 3. The prosecution examined in all eight witnesses. Out of which, the prosecution witness No. 4 Kalpanabai, the victim, the prosecution witness No. 5 Subhash, her husband and the prosecution witness No. 7 Medical Officer are the material witnesses. As said above, 3 Kalpanabai more or less reiterated the prosecution case while narrating the incident before the Court. She said that on 16th September, 1995, at about 08.00 p.m., her husband left the house saying that he was going for watching a movie. She said, thereafter, she and her two children slept in the house at about 09.00 p.m. She said, she had latched the door of the house from inside. She said, she heard some noise of the latch of the door and she got up. She said, she opened the door thinking that her husband had come. She found that the appellant had come to her house. She said, he pushed her inside the house. The appellant entered in her house and closed the door with the help of latch from inside. She said, the appellant once again pushed her and she fell down on the ground. She said, the appellant put her right hand on her chest and lifted her saree and petticoat. She said, the appellant removed his pajama untying its cord. She said, the appellant then removed his underwear. She even mentioned that the appellant was wearing V.I.P. Brand underwear. She said, the appellant removed his clothes using his left hand, whereas he continued to press his right hand on her chest. She said, thereafter, the appellant has forcible sexual intercourse with her. She said, she tried to push away the appellant to avoid the intercourse, but, she said, the appellant overpowered her. She said, she scratched the appellant’s face during the resistance. She said, although this was going on, her children did not get up. She said, she disclosed the incident to her husband who came back after watching the movie. She said, her husband adviced her that they would go to the police station on the next day. The complainant further said, on the next day, she took bath. She then stated that in the morning she saw the appellant walking in front of her house, and at that time, she said, her husband asked the appellant as to why he had raped his wife. She said, the appellant threatened her husband that in case a complaint was lodged against 4 him, he would beat him. She said, thereafter, the appellant brought one Yunus Patel and his two sons. She said, they all told her to forget the incident and there should be compromise. She said, thereafter, they left her house. She said, she then came to Sangamner police station and filed the complaint. 4. The husband of the complainant supported the case of the complainant Kalpanabai and said that when he came back to his house in the night, he found his wife in disturbed condition, and on being asked, she narrated the incident to him. He said, in the morning, he accompanied his wife to the police station. The Medical Officer stated that on examining the complainant, he found no mark of injury on her person. He said, he found nothing abnormal in the complainant / victim’s condition. On the other hand, he said, on 18th September, 1995, he examined the appellant and found abrasion on his face. 5. The learned Judge of the lower Court believed the case of the prosecution, especially the deposition of the complainant and convicted the appellant. It is indeed a case of word against word. So, one must carefully scrutinize the evidence of the complainant to find out as to whether her case is believable. In my view, her deposition is not at all believable. She said that after 09.00 p.m. but before 12’ O Clock at about 11 – 11.30 p.m., she opened the door of the house believing that her husband had come. When she found that it was not her husband but an outsider, the appellant- standing in front of the door. She said, he pushed her on the ground. She said, she fell down on the ground and yet she sustained no injury to her person. The Medical Officer specifically stated that he found the complainant healthy, well built woman of 28 years of age. It is difficult for a normal person to push such person and to make her fall down on the ground without using considerable force. If the appellant had used such force, she would certainly sustain some injury on her back or 5 buttocks. The complainant’s version that the appellant continued to pin her down with his right hand and with the left hand he removed his clothes and then managed to insert his male organ in her vagina is rather unbelievable. On one hand, the complainant stated that she resisted the advances, but, she said, the appellant overpowered her. She did not say as to how the appellant overpowered her, except saying that he had put his right hand on her chest. She did not say that the appellant assaulted /slapped her or caused any violence to her. She neither stated that the appellant threatened her with the help of any weapon in his hand. So, according to her her assailant was neither having any arm in his hand nor he used any extra violence to frighten her or had put her in fear of instant harm to her or to her children nor he threatened her by any other mode and yet he could make her submit to his sexual advances. In addition to this she did not raise any alarm. Admittedly, her children did not get up neither the neighbours got up. The only thing that supports her case is that the Medical Officer found an abrasion over the face of the appellant on 18th September, 1995 when he examined the appellant. The presence of the injury on the face of the appellant supported the version of the complainant, when she said that she attempted to scratch the appellant’s face. However, there is considerable delay between the incident and the medical examination of the appellant. After about 1 ½ day, the appellant was examined by the Medical Officer. In the meantime, there was possibility that the appellant had sustained some injury on his face in some other incident. In any case, in the light of above discussion I am inclined to hold that her deposition ist untrustworthy. The presence of abrasion on the face of the appellant would not make much difference to the ultimate conclusion. I am not inclined to believe the deposition of the complainant at all. The appellant should therefore get benefit of doubt. 6 ORDER (a) The Appeal is allowed. (b) The Judgment and order passed by the II Additional Sessions Judge, Shrirampur, dated 23rd December, 1998, in Sessions Case No. 325 of 1995 stands set aside. (c) The appellant stands acquitted for the offences punishable under Sections 376, 352, 342 of the Indian Penal Code. (d) His bail bonds shall stand cancelled. (e) The fine amount, if any, deposited by the appellant, be refunded to him. ( A.V. NIRGUDE, J. ) srm/criapl/3/99/241110/ok