1 Cri.Appeal No 316.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 316 OF 2009 1] Mukund S/o Baburao Jadhav Age 27 years, Occupation Agriculture R/o Karajgaon, Ta. Ausa, District Latur. 2] Pandit S/o Keshav Jadhav Age 35 years, Occupation Agriculture R/o Karajgaon, Ta. Ausa, District Latur. ...Appellants Original Accused Nos.1 and 2 V E R S U S 1] The State of Maharashtra (Copy to be served on APP of Bombay High Court Bench at Aurangabad) 2] Mrs. Sunita W/o Mahesh Surywanshi, Age 34 years, Occupation Agriculture and household R/o Karajgaon, Ta. Ausa, District Latur. ...Respondents Mrs. S.S.Jadhav, Advocate for appellants. Mr. N.H.Borade, A.P.P. for respondent-State. ... CORAM : A.V.NIRGUDE, J. DATED : 6th APRIL, 2010 ORAL JUDGEMENT : 1] This Appeal is filed against the Judgment and order passed by the learned Sessions Judge, Latur, on 16th June 2009, in 2 Cri.Appeal No 316.09 Sessions Case No. 66 of 1998, convicting the appellants under section 376 (2) (g) of the Indian Penal Code, and sentencing them to suffer rigorous imprisonment for 10 years each, and to pay a fine of Rs.5000/- each, (in default of payment of fine further rigorous imprisonment for a period of three months); convicting the appellants, under section 504 read with section 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for six months each and to pay a fine of Rs.1000/- each, (in default of payment of fine, further rigorous imprisonment for a period of one month). 2] The Prosecution case can in short narrated as under- . The prosecutrix a grown person aged about 25 yr. (Prosecution Witness No.2) after attending her Court work at Ausa, District Latur, boarded a Bus at 7.30 p.m. on 12th May,1998, to come back to her village. The appellants and others, who are residents of her own village also boarded the same Bus. At 8.00 p.m. she, the appellants and others got down from the Bus and after few minutes the appellants attacked her, ravished her, one after other. They even abused her in filthy language. At about 9.00 p.m. the prosecutrix reached to her house, narrated the incident to her mother and in the morning, on the next day, she went to the office of Superintendent of Police at Latur and lodged her complaint with him. He, then sent her to Police Station in the City of Latur, where as per her statement the offence was registered, and thereafter the case was transferred to Ausa Police Station, within the local limits of which the offence had taken place. Investigation was completed and charge-sheet was filed. . During the course of investigation the police recorded spot panchnama and found pieces of broken bangles, broken button and hair-pin etc. at the scene of occurrence. The prosecutrix was 3 Cri.Appeal No 316.09 sent for medical examination, but the Medical Officer opined that no signs of violence or sexual intercourse, in recent past were noticed on her person. During the investigation the clothes of prosecutrix, which she used at the time of incident were seized. So also, after arrest of the appellants, their clothes, which they allegedly used at the time of commission of offence were seized, during the course of investigation. The clothes were packed, sealed separately and were sent for chemical analysis. The chemical Analyser did not find any blood or semen stains on the clothes. 3] The prosecution case is based on evidence of seven witnesses. The prosecution witness No.2 -the prosecutirx narrated the incident in short is as under- . She said, after attending the Court work she came at Ausa Bus Stand to go to her village. She said, she waited for bus till 7.00 p.m. When she boarded the Bus, she saw the appellants and other villagers were boarding the Bus. She said, the bus reached at "Karajgaon approach road" at about 8.00 to 8.30 p.m. She said, she got down from the Bus and other persons including the appellants too got down. Three other persons, who belonged to her village started walking towards the village. She was following them. She said, the appellants were following her. She said, the persons who were walking ahead of her, walked briskly and went ahead of her. She said, after crossing a distance of about 1 K.M, the appellant No.1 gave her call. The village was still about one and half K.M. away from that spot. She said, she stopped. She said, the appellants came near her, and the appellant no.1 asked her, as to why she had filed the Civil Suit against him. She replied that, he should refund her money and she would withdraw the suit. She said, both the appellants abused her and then attacked her. The appellant no.1, she said, caught her hand and 4 Cri.Appeal No 316.09 immediately thereafter the appellant no.2 also caught her other hand. She said, then they dragged her for about 20 to 25 feet away from the road and took her in a ditch. When she tried to raise alarm they gaged her mouth with pallu of her saree. They made her lay on the ground, and then one by one they raped her. She said, she tried to resist the attack, but in vain. She said, one by one appellants were pressing her mouth and head pinning her down. She said, after this incident, she went to her house and she narrated the incident to her mother. She said, her mother suggested her to go to Police Station and lodge her complaint in the morning. She said, she on the next day, at about 10.00 a.m. went to Ausa and from there, she went to Latur the district head quarter. She said, she went to the office of Superintendent of Police, at about 11.30 a.m. She said, she gave an application to the Superintendent of Police about the incident. She said, the Superintendent of Police then sent her to Shivajinagar Police Station along with a lady constable. She said, her statement (FIR Exh.15) was recorded at the Police station as per her narration. She said, thereafter, the police referred her for medical examination. Thereafter, she said, she was sent to Ausa Police Station along with a constable. At about 9.00 to 9.30 p.m. she said, they reached at Ausa Police Station. Thereafter, during that night she was taken to her own house, where she produced her clothes, which were seized by the police under panchnama. She said, on the next day morning, she showed the spot of incident to the Police and police prepared the spot panchnama. 4] In support of her case, prosecution also examined the mother of prosecutrix namely Rukhminibai (P.W.3), who stated that her daughter Sunita reached at home, on that night at about 9.00 to 9.30 p.m.. She said, she noticed her daughter’s hair was 5 Cri.Appeal No 316.09 disheveled, her bangles were broken and button of her blouse were detached. She said, her daughter came and started weeping and then she told her about the incident. She said, she asked her daughter to go to the Police Station, on the next day, in the morning. In the next day morning, her daughter went to Police station. 5] In addition to this witness, the prosecution also placed reliance on P.W.5 Bhalchandra, who stated that, on that day he too boarded the same S.T.Bus to go to his village. He said, he had seen the prosecutrix-Sunita and other villagers including the appellants boarding the Bus. He said, he got down from the bus near his village, and saw Sunita was following him, walking towards village. 6] There is no difficulty in accepting the fact that, on that day prosecutrix-Sunita, P.W.5 Bhalchandra and the appellants travelled in the Bus, which took them to Karajgaon approach road at about 8.00p.m. The story of the prosecution, as to what had happened thereafter, is not believable at all. 7] I am aware that, it is well settled that a prosecutrix complaining about the offence of rape is not an accomplice to the crime and there is no need of corroboration to her testimony. A prosecutrix even stands at higher pedestal than an injured witness. However, if the evidence of the prosecutrix is found unbelievable and untrustworthy on its face value, the Court should search for evidence, direct or circumstantial which would lend credibility to her testimony. 8] The first serious flaw in the prosecution case is several variances in the narrations of the prosecutirx, her mother Rukhminibai (P.W.3). As said above, both the witnesses indicated 6 Cri.Appeal No 316.09 that the prosecutrix was alone, when she boarded Bus at Ausa, for coming to Karajgaon approach road. But the cross examiner for the defence could bring on record the contradiction in the deposition of Rukhminibai (P.W.3). Due to proving of the contradictions, following narration given by her to the police emerges and can be narrated as under- 9] On that day, she said even she (P. W. 3 Rukhminibai) had gone to Ausa. She said, at about 6.30 p.m. she came to Ausa Bus Stand, where, she found prosecutrix-Sunita waiting for Bus. Both of them, then waited for Bus till 7.30 p.m. Both of them, then boarded the Bus, the appellants and other villagers of village Karajgaon also boarded the Bus. At about 8.00 p.m. Bus reached at Karajgaon approach road. P.W.3 Rukhminibai alongwith her grand-son-Pawan then rushed quickly towards the village, leaving behind the prosecutrix Sunita, who was walking slowly towards the village. She said the Prosecutrix reached house at about 9.00 pm. She said she (P.W.3 Rukhminbai) asked her to take food. The prosecutrix told her that she was not quite hungry, but took some meal and went to sleep. On the next day in the morning, after having tea, prosecutrix left her house saying that, she was going to Latur to meet her sister Ashabai. 10] This contradictory statement of P.W.3 Rukhminibai not only creates serious doubt about prosecution case, specially the version of the prosecutrix. The proscutrix had no reason to conceal the fact that, she and her mother boarded the Bus together and reached Karajgaon approached road together. 11] Even assuming that, both these women reached the Bus stop of Karajgaon approach road together and P.W.3 Rukhminbai went ahead of the others. I am assuming that, the prosecutrix could not walk as fast as of her mother could and lagged behind 7 Cri.Appeal No 316.09 her. I am assuming further that thereafter the prosecturix was gang raped by the appellants. Still it is rather unthinkable that on reaching home the prosecutrix would not disclose this incident to her mother. Assuming that the prosecutirx was in shock of the trauma, her appearance would have certainly alarmed her mother, or for that matter her other family member, (whose name was mentioned as a witness) namely her father. He would have certainly asked her, as to what had happened with her and then she would have narrated the incident to them. But, the contradictions mentioned above, clearly shows that on reaching home rather belatedly at 9.00 p.m. Prosecutrix did not utter a word about the incident. Not only this, but she went to sleep quietly. In the morning, she got up as usual and left her house telling her mother that, she would go to Latur to meet her sister. Till then, the prosecutrix did not disclose the incident of rape even to her mother, and for that matter no one else. This aspect of the case makes entire case of these two witnesses unreliable and untrustworthy. 12] The learned Judge of the lower Court despite of proving contradictions (portion marked “B”) at Exh.27 still asserted in the judgment that the evidence of Rukhminibai had gone unchallenged when she said that after arrival of her daughter in the house during that night she enquired to her and her daughter informed her about the act of the rape. This finding of the learned Judge of the lower court is completely erroneous because the contradiction has destroyed her deposition before the Court in respect of incident that occurred during night after the prosecutrix reached home. 13] Second important aspect of the prosecution case is finding of the chemical Analyser [at Exh.35]. This is Chemical Analysis Report of clothes of prosecutrix, as well as the clothes of the 8 Cri.Appeal No 316.09 appellants. It is the prosecution case that, these clothes were used by the parties to the case, at the time of commission of the offence. The prosecution, while narrating the incident clearly mentioned that, before rape both the appellants had removed their trouser and under-wears. However, she did not say that her clothes were also removed before sexual attack. Having regard to the fact that as many as two adult persons had committed rape on the prosecutrix and having regard to the fact that, after rape, immediately she went to her house, there was strong possibility of her clothes getting soiled with semen. At least her sari would get soiled with semen of either of the appellants. Absence of semen marks on her clothes, in my view makes her case very suspicious. In this backdrop am inclined to give importance to the fact that, the Medical officer did not find any signs of violence on the person of the prosecutrix or any signs of rape on her private part. In situation like this, the woman would get scared and would succumb to such sexual attack without offering serious resistance. It has come on record that, the prosecutrix, at the time of incident was quite old having child, so there was no possibility of any injury to her vagina, due to forceful penetration. But, absence of semen marks on her own clothes would shatter credibility of her evidence. 14] Only remaining circumstance that goes to support her case is fact that, on the next day the police visited the spot of incident, in presence of panch witnesses they recovered broken pieces of bangles, broken button and hair-pin there. During her deposition, the prosecutrix was not shown these articles seized from the scene of offence and she did not get an opportunity to identify them. In absence of such identification this circumstance does not come to the help of the prosecution case. 9 Cri.Appeal No 316.09 15] There is one more circumstance which would further derogate the prosecution case. The prosecutrix admitted in the cross examination that, she knew the appellants since prior to the incident. She further admitted that she had lent hand loan of Rs. 22,000/- to the appellant no.1. She further admitted that, the appellant no.1 had agreed to execute a sale deed of his agricultural land in her favour, if he would fail to repay the loan amount. She then admitted that, she had filed suit for recovery of the amount against the appellant no.1. He had received summons of the suit, about eight days prior to the incident. She further admitted that, she thought that the appellant no.1 was a good man and she believed his assurance that he would repay the loan amount. This admission clearly establishes that, the relations between the prosecutrix and the appellant no.1 went sour, due to alleged default committed by the appellant no.1, in repayment of the amount and at the time of incident animosity prevailed between them. There is possibility that due to such strained relation the prosecutrix might have lodged her complaint. In view of this defect, in the prosecution case, I am not inclined to believe the prosecutrix, when she alleged rape against the appellants. 16] On considering evidence of the prosecution, the story of rape is a apparently a concoction and the appellants are entitled to benefit of doubt. The appellants are therefore entitled to acquittal. The appeal stands allowed. O R D E R 1] The appeal is allowed. 2] The impugned Judgment and order passed by the learned Sessions Judge, Latur, dated 16th June 2009, in Sessions Case No. 66 of 1998, convicting the appellants under section 376(2)(g) and under section 504 read with section 34 of the Indian Penal Code is set aside. 10 Cri.Appeal No 316.09 3] The appellants No.1-Mukund S/o Baburao Jadhav, (2) Pandit S/o Keshav Jadhav are acquitted of the offence punishable under section 376(2)(g) and under section 504 read with section 34 of the Indian Penal Code. 4] The appellants No.1-Mukund S/o Baburao Jadhav,(2) Pandit S/o Keshav Jadhav shall be released from custody, if they are otherwise not required in any other case. 5] The fine amount, if deposited by the appellants-accused be refunded to them. Sd/- [A.V.NIRGUDE, J.] MTK/Ok