1 APEAL 476 OF 1993 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 476 OF 1993. Waman @ Chindhu Laxman Gore, adult, Occn. Agriculturist, resident of village Satgaon, Tal. Shahapur, District:Thane. .. Appellant Original accused. -versus The State of Maharashtra .. Respondent. Mr. Ashish Sawant with Mr. A.R. Kapadnis holding for the Mr. S.R.Chitnis, Appellant. Mrs. P. P. Shinde, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 15th March, 2011 Oral Judgment 1. The appellant who has been convicted by the learned Additional Sessions Judge, Thane, for the offence punishable under Section 376, of the Indian Penal Code and sentenced to suffer R.I. for 7 years with fine of Rs.7,000/- or in default R.I for two years, and for offence under Section 506 (second part) of the Indian Penal Code, sentenced to suffer R.I. for two years with fine of Rs.2,000/- or in default R.I. for six months, questions his conviction and sentence by filing present appeal. 2 APEAL 476 OF 1993 2. The facts which are material for deciding this appeal are as under:- The appellant was allegedly cultivating the field of Sarpanch Shivaji, on crop sale basis. On 17th December, 1991, the appellant was in the field of Shivaji alongwith four other persons including his own wife, were doing harvesting operations. The prosecutrix allegedly came there to collect firewood. The appellant is alleged to have told her that a log of dry firewood was lying near fencing and that she may take it. Therefore, the prosecutrix went towards fencing, the appellant is alleged to have followed her, embraced her from behind and then after undressing her committed forcible sexual intercourse upon her. She immediately went home and reported the matter to her mother in law and sister in law. Then she, alongwith her mother in law, approached police station, Kinhawali and reported the incident. Her husband also came late around mid night to the police station itself from his duty as driver. On a report by the prosecutrix, offence was registered and she was sent for medical examination. The appellant also surrendered before the police and was likewise subjected to medical examination. The clothes of both the prosecutrix as well as appellant were seized. Police performed the panchnama of spot and sent the incriminating articles to Forensic Science Library, recorded statement of witnesses and on completion of investigation 3 APEAL 476 OF 1993 filed chargesheet in the Court of J.M.F.C Shahapur. Learned Magistrate committed case to the Court of Sessions. Learned Additional Sessions Judge to whom case was made over charged the appellant of the offences punishable under Section 376 and 506 of the Indian Penal Code. Since the appellant pleaded not guilty and claimed to be tried, he was put on trial at which the prosecution examined in all 9 witnesses in order to bring home the guilt of the appellant. 3. Upon consideration of the prosecution evidence, in the light of defence of false implication, learned Additional Sessions Judge, held the appellant guilty and convicted the appellant and sentenced him as aforementioned. Aggrieved thereby the appellant has preferred this appeal. 4. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. 5. With the help of both the learned counsel, I have gone through the record. The prosecutrix who was examined as P.W.1., had stated in her deposition that on the day of incident after 4.00’O clock, she had gone to the field of Sarpanch Shivaji for collecting firewood. She stated that the appellant arrived there and asked her whether she had seen his bullock to which she replied in negative. The appellant then told the prosecutrix that dry firewood was lying near fencing and he asked her to collect it. Accordingly the prosecutrix went towards the fencing where the appellant 4 APEAL 476 OF 1993 embraced her from behind and silenced her threatening her that he would cut her into pieces with her own sickle. He then made her to fall on the ground and by removing her undergarments and undressing himself to the extent necessary committed forcible sexual intercourse upon her. She returned home, narrated the incident to her mother in law and then with the mother in law went to the police station and gave report which is at Exhibit 9. In the cross examination, she admitted that the place where she had gone to collect firewood belonged to Sarpanch. She stated that there was some village rule that anybody collecting firewood from somebody else’s place, was fined by the Gram Panchayat, but if dry firewood is brought, there is no such punishment. She stated in her cross examination that apart from herself, Vitthal Babu Vishe, Vitthal Pandurang Vishe, Mahadu Hari Vishe as also the wife of appellant were at the paddy field of Sarpanch and were harvesting the field. 6. The evidence of P.W.2, her mother in law Nirmalabai, P.W.3 Sister in law, Chhaya, corroborates the evidence of prosecutrix about the events after the incident. P.W.4, Vasant is the husband of prosecutrix, who had arrived quite late after the incident. He too is consistent with the version of his family members. P.W.5, Vitthal Babu Vishe, P.W. 6 Vitthal Pandurang Vishe as also P.W.7 Mahadu Hari Vishe, who were persons present in the field have turned hostile and 5 APEAL 476 OF 1993 refused to support the prosecution case the appellant had left them at the crucial moment when he is alleged to have committed sexual assault on the prosecutrix, and stated in unison that the appellant was with them through-out. P.W.8, Gangaram Nalwade, Assistant Police Inspector, and P.W.9. Madhav Patil, Police Inspector conducted investigation . 7. Though the Medical Officer was not examined, medical certificates of the appellant as well as victim have been admitted in evidence and are at Exhibits 16 and 15 respectively. There are no marks of violence on the person of prosecutrix and there were no seminal stains on vagina or external genitals. Those certificates are not supportive of any rape having been committed. 8. The report from the Forensic Science Laboratory, in respect of articles seized at Exhibit 18, shows that the victim’s petticoat and underwear had some semen and blood stains which were washed. No blood or semen was detected on the underwear of the appellant. Blood group of the semen of appellant and blood group of prosecutrix were, however, not determined. Learned counsel for the appellant submits that the presence of semen and blood stains on the garments of the prosecutrix need not lead to an inference that there was rape, since she is married woman and those semen stains may originate from the intercourse with her husband as well. Therefore, even C.A. report is not helpful in connecting the 6 APEAL 476 OF 1993 appellant to the crime. 9. Therefore, the only evidence which is required to be analyzed is that of prosecutrix. Learned Trial Judge has held that there was no reason for the prosecutrix to falsely name the appellant as perpetrator of rape upon her because the prosecutrix possibly felt that the appellant had seen her collecting firewood and would report and therefore, retaliated by filing report with the police is far fetched and therefore, learned trial Judge did not accept this. All the same, if according to prosecutrix she had resisted at the incident in agricultural field, some marks of violence would have seen on her person. There is not even scratch on her body. Learned counsel for the appellant pointed out that the prosecutrix was armed with sickle. It is not that the appellant was armed with sickle. Therefore, since prosecutrix was having sickle with her, she could have saved herself. In any case, the absence of any injury on the person of prosecutrix, when she claims to have resisted with all her might casts doubt on her story that she was raped, particularly in the context of the fact that she admits that even the wife of the appellant, among others, was also in the same field harvesting paddy crop. Therefore, if there were other persons in the same field and place was also near a public road, then it is difficult to believe that the prosecutrix was raped in broad day light un-noticed when she claims to have resisted. 7 APEAL 476 OF 1993 10. In view of this, learned Trial Judge ought to have extended the benefit of doubt to the appellant. The appeal is, therefore, allowed. The conviction of the appellant for the offences under Section 376, 506 (second part) of the Indian Penal Code and sentence imposed upon him, is set aside. He is acquitted of the said offence. Fine amount if paid by the appellant be refunded to the appellant. If any warrant has been issued against appellant, that need not be executed in view of this judgment. (R. C. CHAVAN, J.)