1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPEAL NO. 429 OF 2006 Chimankumar Purshottam Kusrate .. Appellant Versus State of Maharashtra .. Respondent Mr. R. R. Mahagaonkar, for the Appellant Mr. Rajesh More AGP, for the Respondents-State CORAM: MRS. MRIDULA BHATKAR, J. DATED:13th April, 2009 J U D G E M E N T Through Jail 1. This appeal is filed against the Order passed by the Second Adhoc Sesions Judge, Kalyan dated 17.1.2006, convicting the accused for seven years RI with fine of Rs.3000/- for the offence punishable under Sections 376 & 506 of the Indian Penal Code. 2. Facts of the Appeal : The incident of rape has taken place on 28.6.2004 in a Pump room by the side of Public Urinal at Kalyan ST Stand at 3.15 in the afternoon. The prosecutrix and accused both were working as a Sweeper on daily wages at ST Stand, Kalyan. On the day of the incident, the accused called 2 victim for lunch so she went in the pump room to bring the tiffin. The accused closed the doors of the pump room and committed rape on her. At that time, one boy of 15 to 16 years old was sleeping in the room and though he protested, the accused committed rape. The victim came out weeping, narrated the incident to his other co-sweepers Ramakant and Sangita. Thereafter, she went to the Police Chowiki, gave FIR and an offence was registered against the accused. The victim was sent to medical examination. The accused was tried under Section 376 and 506 of I.P.C. for the offence of rape and was convicted. 3. Learned Counsel for the accused has submitted that in the present case the accused is falsely involved. The evidence of the prosecution is full of lacunae and inconsistency. He has further submitted that the learned Trial Judge should have appreciated that the case stands on uncorroborated evidence of the accused that the witnesses i.e. co-sweepers, Sangeeta, Ramakant and Mukadam- Baburao did not support the case of the prosecution. He has submitted that the boy- Santosh, who was present at the time of incident of rape, was not examined by the prosecution. 4. The learned prosecutor for the State has argued that it is settled law that conviction can sustain on the sole evidence of prosecutrix. In the present case, the prosecutrix has given the detailed description of the rape. She has also deposed in the cross 3 examination that she could not shout because of the threat of electric shock given by the accused. 5. The Hon'ble Supreme Court, in number of rulings have unequivocally laid down the law of appreciation of the evidence of the prosecutirx that the sole uncorroborated evidence of the prosecutrix can be accepted and conviction can be given, if her evidence inspires confidence. While appreciating the uncorroborated evidence of the prosecutrix, the Trial Court has to bear in mind the rider of “truthful version of the prosecutrix” placed by the Supreme Court. It is necessary for the Judge to visualize how the incident would have been occurred and also test its truthfulness on the basis of parameters of worldly wisdom and practical notions of the probabilities. 6. In the present case, the prosecutrix was a married lady of 26 years old who was aware of the sexual interactions between man and woman. As per her version, when accused bolted the door from inside, one boy of 15-16 years old was present. She has given admission in the cross examination that said boy resisted the accused and there was physical fight between the accused and that boy. There was scuffle between the accused and the boy for five minutes. In the examination in chief, the prosecutrix stated that the boy was sleeping in the pump room and he questioned the accused about his sexual advances. The accused told him to keep quiet and to sleep. It is unimaginable that when the scuffle was going on, the victim, kept quiet and 4 even did not try to run away by taking advantage of the scuffle. The statement of that boy- Santosh is not recorded by the Police. There is nothing on record to show that the Police have tried their level best to find out that boy. There is nothing on record as to why the statement of that boy was not recorded by the police. The said boy, who was alleged to be an eye witness, was not examined by the police. The other two witnesses to whom the victim made immediate disclosure of the incident did not support the case of the prosecution. Thus, there was ample available corroborative evidence. However, the case of the prosecution stands only on the evidence of the prosecutrix which found hopelessly credible. 7. The prosecutrix had said that she could not resist because of the threat of electric shock given by the accused to her. However, this factor of threat is also to be tested on the touchstone of substantive evidence and the quality of the evidence of the witnesses. In rape cases, a helpless women is an easy prey of the lust of the man, yet, the fact is to be kept in mind that human being may lie. She should pass the test of strict proof of facts which any other witness has to clear. 8. The prosecutrix has said that after commission of the rape she wore sari and went out and told Mukadam Mane and other co-sweepers about the incident. On the point of immediate disclosure, the prosecution cross examined three witnesses who 5 were working at Pump room near Kalyan ST Stand. They all turned hostile. On this back ground, it is necessary to highlight the manner in which the statements of these witnesses under Section 161 of Cr. P. C. were recorded. In all the three statements , marked portions on the point of narration of the incident told by the prosecutrix to these witnesses are ditto. No victim of rape will give details, to the persons whom she met immediately, of how actual sexual intercourse was performed. The victim will say that she was raped or sexually abused. She may give the detail description to the Police officer, if such query is made by the police officer, for the purpose of registration of offence, at the time of recording of her statement. If statements recorded under Section 161 of Cr. P. C. disclose such detailed and word to word identical and narration of the incident of sexual intercourse as told by the prosecutrix to the witnesses, the very fact of recording of statements by the Police of such witnesses is doubtful. 9. The prosecution has not given any explanation as to why the evidence of Santosh was not tendered. However, the learned Judge drew the inference on surmises and imagination which, at certain point, tents to be perverse. With this, I am of the view that this conviction holds no merit and it is a case of acquittal. In the result, the Appeal is allowed. Accused be released forthwith. 6 ( MRIDULA BHATKAR, J.) jpc/-