( 1 ) criap405.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 405 OF 1998 Gurujitsing Samshersing Chug .. Appellant Age. 24 years, Occ. Nil, presently residing at Gurumukh Pyare Punjabi Suite Center, Gurudwara Gate No.1, Nanded, Tal. Nanded, District Nanded. Versus 1. The State of Maharashtra .. Respondents 2. Smt. Gurujitkaur w/o. Mohansing Gulati, Age. 38 years, Occ. Household, R/o. Punjabi Colony, Shrirampur, Tal. Shrirampur, Dist. Ahmednagar. Mr. R.N. Dhorde, Advocate for the appellant. Mr. K.S. Patil, A.P.P. for respondent No.1/State. None for respondent No.2. CORAM : R.Y. GANOO, J. DATED : 16.12.2011 ORAL JUDGMENT :- 1. The appellant faced trial in Sessions Case No. ( 2 ) criap405.98 127 of 1994, in the Court of learned IInd Additional Sessions Judge, Shrirampur, Dist. Ahmednagar. Learned Additional Sessions Judge at the end of the trial convicted the appellant for the offence punishable under section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000/-. It was also ordered that in default of payment of fine, the appellant shall undergo rigorous imprisonment for one year. The fine amount was to be utilized for payment to the mother of the prosecutrix. 2. Being aggrieved by the judgment and order dated 7th September, 2011, as aforesaid, the appellant has filed this appeal. The prosecution case, in gist, is as under :- 3. P.W.3-Gurjitkaur is the mother of Paramjitkaur, who is said to be victim of the occurrence. Said P.W.3- ( 3 ) criap405.98 Gurjitkaur resided at Punjabi Colony, Shrirampur alongwith her husband, Paramjitkaur and P.W.8- Jaswantsingh. The incident in question is alleged to have taken place on 26th December, 1993, between 3.30 p.m. to 4.00 p.m. in the residential house situated at Punjabi Colony, as mentioned above. According to the prosecution, P.W.3-Gurjitsingh had gone to the house of her mother-in-law on 26th December, 1993 alongwith Paramjitkaur. At one point of time P.W.3-Gurjitkaur asked Paramjitkaur to go to her house and get shawl and sweater. It is claimed that key was secured from P.W.8- Jaswantsingh and given to Paramjitkaur. Paramjitkaur did not return for a long time and that is why P.W.3- Gurjitkaur went to her house alongwith Jaswantsingh-P.W. 8. She with the help of her son Jaswantsingh-P.W.8 and Vicky managed to seek entry in the house as the house was not opened by Paramjitkaur, despite giving repeated calls. According to the prosecution, P.W.3-Gurjitkaur entered the house, she could not notice Paramjitkaur in ( 4 ) criap405.98 the house and ultimately she went to bathroom and at the bathroom she observed present appellant and Paramjitkaur. According to the prosecution, she had seen Paramjitkaur tying her nicker. Paramjitkaur is said to have reported to her mother P.W.3-Gurjitkaur that the appellant had sexual intercourse with her against her wishes. When questioned, the appellant tendered apology. 4. After this incident P.W.3-Gurjitkaur alongwith her son P.W.8-Jaswantsingh tried to contact police. However, according to her, the complaint was not received by the police. The news about sexual assault on Paramjitkaur received due publicity in the newspaper and that is how ultimately police were required to record the F.I.R. The F.I.R. came to be filed by Mr. Yashwant S. Jadhav, the Investigating Officer. It is at Exh.45. In the course of investigation, scene of offence panchanama was conducted at Exh.16. The clothes of Paramjitkaur were taken charge of under Panchanama Exh.12. Dr. ( 5 ) criap405.98 Shivendrakumar Singhal-P.W.11 examined her as regards her health. 5. The charge came to be framed against the appellant under section 376 of the I.P.C. on 31.07.1998. The appellant pleaded not guilty and claimed to be tried. 6. In the course of trial number of witnesses came to be examined on behalf of the prosecution. Their details are as under :- a) Mr. Shripat L. Pawar, Revenue Circle Inspector, who had prepared map of scene of offence. Said map is at Exh.10. b) P.W.2-Mr. Suresh M. Maid – Clothes of Paramjitkaur were taken charge of under panchanama Exh.12, which was conducted in the presence of this person and he acted as panch. c) P.W.3-Mr. Gurjitkaur is mother of Paramjitkaur. d) P.W.4-Mr. Rajendrasingh Gulati acted as panch concerning scene of offence panchanama Exh.16. e) Smt. Suniti N. Tulpule-P.W.5 was examined to prove the date of birth of Paramjitkaur. f) Mr. Khandu S. Bhosale-P.W.6 was examined as he ( 6 ) criap405.98 had acted as a panch to take charge of dead body of male near Belapur Railway Station. It is to be noted that this dead body was that of father of Paramjitkaur. This fact has no bearing on the point involved in the appeal. g) P.W.7-Mr. V.B. Deshmukh is editor of newspaper known as Sarvmat. The news item published concerning the alleged incident qua Paramjitkaur is at Exh.26. h) P.W.8-Mr. Jaswantsingh is brother of Paramjitkaur. i) P.W.9-Mr. Sayyad Ansar Shahabuddin Sayyad is an employee of Shrirampur Municipality. He was examined to prove entries in the brith register of his office qua Paramjitkaur. j) P.W.10-Dr. Anilkumar U. Masurkar, then attached to St. Lukes Hospital, Shrirampur, was examined to bring on record birth register maintained by his hospital where Paramjitkaur was born. k) P.W.11-Dr. Shivendrakumar Singhal had examined Paramjitkaur on 01.01.1994. He gave a report of his observation which is at Exh.41. l) Mr. Yashwant S. Jadhav was the Investigating Officer who had filed F.I.R. at Exh.45 concerning the alleged incident. 7. At the outset, it is required to be mentioned that Paramjitkaur died on 18th March, 1994, and that is how she could not be examined as a witness on behalf of ( 7 ) criap405.98 the prosecution. 8. For the purpose of deciding guilt of the accused, out of so many witnesses, who have been examined, the evidence of four witnesses would be relevant and they are P.W.3-Gurjitkaur–mother of Paramjitkaur, P.W.8-Jaswantsingh–brother of Paramjitkaur, P.W.11-Dr.Shivendrakumar Singhal, who had examined Paramjitkaur on 31st December, 1993 and P.W.12 Mr. Jadhav, the Investigating Officer. 9. The case of the prosecution mainly rested on the evidence of P.W.1-Gurjitkaur and evidence of P.W.8- Jaswantsingh. 10. I have with the assistance of learned advocates on both sides perused evidence of P.W.3-Gurjitkaur. In the examination-in-chief said P.W.3-Gurjitkaur states as to how she entered the house, as to how she observed the ( 8 ) criap405.98 present appellant and Paramjitkaur in the bathroom and in particular how present appellant tendered apology to her and requested that she should be excused. If one were to consider the evidence of P.W.3-Gurjitkaur as stated in examination-in-chief, one would get impression that she is narrating the events which had taken place in a very truthful manner. However, after going through the evidence in cross-examination, it is apparent that she has come out with large number of improvements in her examination-in-chief. This is being stated because on number of points she was confronted with her statement and she had to admit in the cross-examination that whatever she has stated in examination-in-chief, which appears to be material against present appellant, is not stated in her statement before P.W.12-Yashwant Jadhav, the Investigating Officer who had recorded her statement. 11. I have with the assistance of learned Advocate Mr. Dhorde, perused the evidence of P.W.12-Yashwant ( 9 ) criap405.98 Jadhav. Through the cross-examination of Mr. Jadhav-P.W. 12, the omissions have been proved. Some of them are as under :- i) I have not stated in my statement before police that my daughter Paramjitkaur met me in order to demand kay when she found that the house was locked and thereafter, she once again sent towards the house. I cannot say any reasons to the said fact is not mentioned in my statement before police. ii) It is not true to suggest that I have not stated in my statement before police that when I entered in the house I shouted as, “Paramjitkaur, Paramjitkaur”. I cannot assign any reasons to why the police have not recorded the said fact in my statement before them. It is not true to suggest that I have not stated in my statement before that when I entered the house I started searching and I felt that my daughter Paramjitkaur might be in the bath-room and therefore, I went towards her. I cannot assign any reason as to why the said fact is not mentioned in my statement before police. iii) It is not true to suggest that I have not stated in my statement before police, I heard the sound of accused while saying to my daughter that she should tie the cord of her nicker. I cannot assign any reason as to why the said fact is not mentioned in my statement before police. iv) It is not true to suggest that I have not stated in my statement before police that my daughter ( 10 ) criap405.98 told me that i.e. sexual intercourse and also sodomy i.e. accused and sexual intercourse from front side and from backside. I cannot assign any reason as to why, said fact is not mentioned in my statement before police. v) It is not true to suggest that I have not stated in my statement before police that my daughter had frightened. I cannot assign any reason as to why the said fact is not mentioned in my statement before police. vi) It is not true to suggest that I have not stated in my statement before police that I saw private part of my daughter. I cannot assign any reason as to why the fact is not mentioned in my statement before police. vii) It is not true to suggest that I have not stated in my statement before police that there was bleeding and my daughter was having pains. I cannot state any reason as to why said fact is not mentioned in my statement before police. 12. Looking to the evidence of P.W.3-Gurjitkaur and in particular in the light of various omissions, the word of P.W.3-Gurjitkaur will have to be discarded. P.W.3- Gurjitkaur’s evidence is not trustworthy. 13. I have also perused the evidence of P.W.8- Jaswantsingh-brother of victim girl. The evidence of ( 11 ) criap405.98 this P.W.8-Jaswantsingh is also required to be discarded. P.W.8-Jaswantsingh has come out with improvements. The omissions obtained on record through cross-examination of this witness have been duly proved through P.W.12-Mr. Jadhav. Some of the omissions are as under :- i) It is not true to suggest that I have not stated in my statement before police that my mother shouted as Paramjeet, Paramjeet. I can’t assign any reason as to why the same fact is not mentioned in my statement before police. ii) It is not true to suggest that I have not stated in my statement that eventhough my mother shouted as Paramjeet, Paramjeet, there was no reply. I can’t assign any reason as to why said fact is not mentioned in my statement before police. iii) It is not true to suggest that I have not specifically stated in my statement before police that myself and my mother saw my sister while tying the cord of Salwar. iv) It is not true to suggest that I have not specifically stated in my statement that in my presence my mother asked my sister-Paramjeet and she told her that accused committed rape on her. I can’t assign any reason as to why the said fact is not mentioned in my statement before police. ( 12 ) criap405.98 14. On consideration of evidence of Jaswantsingh- P.W.8, I hold that his evidence cannot be accepted as trustworthy on account of omissions, which I have been brought on record. 15. There is no other witness who has come forward to state about the incident. As mentioned earlier, the the prosecution could not take help of evidence of Paramjitkaur as she had expired on 18.03.1994. 16. In addition to the aforesaid material, it was necessary to appreciate evidence of P.W.11-Dr. Shivendrakumar Singhal, who was then working as Professor in the Rural Medical College, Prawara Nagar and also working as Head of Department of Forensic Medicine at Pravara Rural Hospital, Loni. At the time of examination of Paramjitkaur on 1st January, 1994. P.W.11-Dr. Shivendrakumar has had a detailed talk with father of Paramjitkaur, P.W.3-Gurjitkaur and Paramjitkaur. He has ( 13 ) criap405.98 in his evidence given details as to what talk he had, which of-course cannot be used by the State for the purposes of deciding guilt of the appellant. In paragraph 10 of the notes of evidence, he has mentioned as many as 11 points, which he noticed after examination of Paramjitkaur. “(1) She was conscious, co-operative, well oriented, averagely built. (2) Her clothes were clean, intact, there were no tears or stains and she stated that the clothes which were on her person during the incident were seized by police. (3) On her body there were no injuries, scratch marks, no struggle marks, no stains or no abnormal smell. (4) Examination of her private part i.e. genital revealed that external genital was normal. There was no sign of struggle or violence, there was no injury or scratches, there were no blood stains or seminal stains, pubic hairs were normal and there was no matting and the perineum was normal. (5) Per speculam examination of the vagina revealed that examination could be done with the smallest speculum hymen was torn tears partly healed, edges inflammed and there was no bleeding on touch of hymen. Vaginitis was ( 14 ) criap405.98 present. Vagina was inflammed. (6) P/V examination of vagina revealed that uterus was of normal size. Uterus reroverted fornices clear. (7) Microscopic examination of vaginal smear revealed presence of pus cells, RBC present. Vaginal cells present and no spermatozoa were seen. (8) Rectal examination revealed that there were no scratches, no injuries, anal opening was tight and there was no evidence of sodomy. (9) I examined her clinically and radiologically in order to determine her age and I came to the conclusion that she was between 13 to 15 years. (10) I examined her for mental derangement and could not find anything positive. She was normal. She was able to understand. (11) I determined her blood group. It was O positive.” 17. After recording these 11 points he has come to the conclusion that there was evidence of sexual intercourse with the girl Paramjitkaur and that the said sexual intercourse was done about 5-10 days back. He has also recorded that there was no clinical evidence to show ( 15 ) criap405.98 that the girl was mentally retarded. 18. Dr. Shivendrakumar-P.W.11 has come to the conclusion that Paramjitkaur had sexual intercourse. Learned Advocate Mr. Dhorde submitted that it appears that said opinion was expressed by the doctor on account of talk which he had with the parents of Paramjitkaur and Paramjitkaur. Learned advocate Mr. Dhorde had submitted that even if P.W.11-Dr. Shivendrakumar had observed that Paramjitkaur had sexual intercourse during last 5-10 days, that observation in his submission is not supported by occular testimony of Gurjitkaur-P.W.3 and Jaswantsingh-P.W.8. He, therefore, submitted opinion expressed by Dr. Shivendrakumar-P.W.11 cannot be used against appellant. I am in agreement with the submission advanced by learned advocate Mr. Dhorde in the aforesaid terms. If the observations on point Nos.1 to 10 are perused, it will clearly go to show that the final observations that Paramjitkaur had sexual intercourse ( 16 ) criap405.98 will have to be looked with serious doubt. 19. Some evidence was brought on record through P.W. 5-Smt. Suniti Tulpule, about age of Paramjitkaur. In my view the question as to the age of Paramjitkaur at the relevant time is not material now on account of observations made earlier by which it is observed by me that evidence of P.W.3-Gurjitkaur and P.W.8-Jaswantsingh is required to be discarded. 20. The clothes said to have been used by Paramjitkaur, namely, Kurta, Salwar and Jangya were seized in the course of investigation through panchanama and P.W.2-Suresh Maid had acted as punch. These clothes were sent for examination with reference to presence of blood and semen. Said report is at Exh.47. No blood is detected on Kurta and Salwar. Blood is detected in the middle portion of Jangya and no semen is detected at these clothes. The blood detected on Jangya is of human. ( 17 ) criap405.98 Learned advocate Mr.Dhorde submitted that the clothes of Paramjitkaur were seized under Panchanama Exh.12 on 31st December, 1993, i.e. about 5 days from the date of occurrence and that factor would go against the prosecution. Learned Advocate Mr. Dhorde had submitted that it is pertinent to note that no semen is found on the Jangya worn by Paramjitkaur. He submitted that merely because blood is found on the Jangya of Paramjitkaur said evidence cannot be used against the appellant as one does not know as to for what reason the bloodstains could be found on the Jangya after 5-6 days. According to him, there could be many reasons for finding bloodstains on the Jangya of female, namely, Paramjitkaur. Mr. Dhorde, learned advocate had submitted that finding of blood of Jangya cannot be used against the appellant I accept the submission without any hesitation. 21. It is noticed that in the course of ( 18 ) criap405.98 investigation, sample pertaining to pubic hairs of the appellant was sent to the Medical Officer, Municipal Corporation, Shrirampur. The C.A. report in regard to this is at Exh.7, being report dated 29th March, 1994. No semen is detected on the pubic hairs. Learned Advocate Mr. Dhorde rightly pointed out that absence of semen on pubic heirs is a factor which should go in favour of the appellant. 22. After having considered the evidence on record as mentioned aforesaid and having rejected the evidence of P.W.3-Gurjitkaur and P.W.8-Jaswantsingh, I am inclined to observe that the appellant has been able to make out case for his acquittal, as the prosecution has failed to prove the guilt of the appellant beyond shadow of reasonable doubt. 23. There is some reference in the evidence about police not recording the complaint at the first instance ( 19 ) criap405.98 and then taking action after news item was published at “Sarvmat”. I do not wish to dilate on this as I have discarded the evidence of witnesses on behalf of prosecution. 24. For the reasons mentioned aforesaid, I am inclined to observe that the appeal should be allowed. Consequently the following order is passed to dispose of the appeal :- 25. The appeal is allowed. The appellant is acquitted of charge under section 376 of the Indian Penal Code. The judgment and order dated 23.12.1998, passed by the learned II Additional Sessions Judge, Shrirampur, thereby convicting the appellant under section 376 of the I.P.C. and sentencing him to suffer rigorous imprisonment for a period of seven years and payment of fine of Rs. 10,000/- is set aside. The bail bonds of the appellant stand cancelled. If the appellant has deposited fine of ( 20 ) criap405.98 Rs. 10,000/-, concerned Court with whom fine amount has been deposited, shall refund said amount to the appellant. [R.Y. GANOO, J.] snk/2011/DEC11/criap405.98