(1) CRI.APPEAL-440.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.440 OF 2010 Ashok @ Ashruba Manohar Pawar, Age : 25 years, Occu.: Driver, R/o. Pimpalgaon (Dola), Tq. Kallam, Dist. Osmanabad APPELLANT VERSUS The State of Maharashtra Through, P.P. High Court, Bench at Aurangabad RESPONDENT ..... Mr. M.D. Shinde, Advocate for the Appellant. Mr. V.H. Dighe, A.P.P. for the respondent/State. ..... CORAM : K.U. CHANDIWAL, J. DATED : 14TH MARCH, 2011 ORAL JUDGMENT:- 1. Heard Mr. Shinde and learned A.P.P. Conviction recorded under section 376 of the Indian Penal Code in Sessions Case no. 43 of 2009 directing to undergo sentence of seven years and to pay fine of Rs.2000/-, is questioned by the accused-appellant. 2. The appeal was admitted on 1.12.2010. Paper-book is prepared. On 21.12.2010, while rejecting the bail application, this Court directed (2) CRI.APPEAL-440.2010 expeditious hearing of the appeal and appeal was to be heard finally on 18.1.2011. 3. The prosecution case proceeds as under:- The victim born on 1.6.1993 is younger sister of Bhagyashri, wife of accused-appellant. Marriage of Bhagyashri with accused was not approved by the family as accused and Bhagyashri eloped with their volition and settled in life. Since Bhagyashri on one of the incident was restrained from proceeding to matrimonial home, the appellant had approached Police seeking protection to send his wife for cohabitation. Police had called complainant, he was warned not to indulge in such practice. Bhagyashri joined the appellant. On this background, the incident dated 12.6.2006 having taken place in the hut/room of the complainant warrants attention. The dimension of the room are inadequate to accommodate a cot and other household material. It has a platform of 4 feet X 8 feet. Even if the room admeasures 8 feet X 18 feet, it had no proper flooring. At a distance of around 5 feet from the said room, there is a cattle shed wherein mother of the victim was (3) CRI.APPEAL-440.2010 carrying household activities while her brother was allegedly at the platform abutting the room. Even wife of the accused was allegedly at a nearby area. With the above situation, victim 13 years asserted that she was sexually abused by the appellant by calling in the room referred above under the pretext of giving a chit. She was gagged, made to lie beneath the cot and against her wish, the accused ravished her. The victim informs that due to gagging she could not rebel against the appellant. It was only after entry of her father in the room, she could throw away the accused who tried to conceal himself beneath the cot and only after being commanded, came out after wearing apparels. 4. In order to establish guilt against the accused, prosecution has put in nine (9) witnesses. At P.W.1 is victim/complainant. P.W.2 is her father Vishwanath. P.W.3 Dr. Satyaprem had examined the accused to establish that the accused is potent and capable to perform sex. P.W.4 at exhibit 26 is the Police Head Constable who recorded crime vide 109 of 2006. P.W. 5 Navnath is the Panch for the panchanama (4) CRI.APPEAL-440.2010 dated 13.6.2006 concerning place of occurrence or spot. He did not support the prosecution. P.W. 6 Nitin is another Panch concerning the spot. He too did not support the prosecution. P.W.7 Suresh Rajaram Kale carried investigation and filed chargesheet against the accused. P.W. 8 is Dr. Manju Shelke, the Medical Officer who has examined the victim and issued the certificate. P.W. 9 the Headmistress of the school proved birth certificate of the victim having born on 1.6.1993. The defence of the accused-appellant all throughout was a false implication. He did not commit any sin. The father- in-law Vishwanath (P.W.2) had vengeance against appellant on appellant's marrying Bhagyashri. Vishwanath anyhow desired severance of relations. All his attempts did not yield result as Bhagyashri was also firm in her unison in keeping company with the accused-appellant. However, the victim is used as a tool to get the appropriate results to ensure separation of Bhagyashri from appellant-accused as his wife. The accused-appellant in his written note before the learned Judge has also quoted events after his arrest, after his release concerning the burning (5) CRI.APPEAL-440.2010 of hut of Vishwanath. Vishwanath getting compensation from Government being accidental burn and still prosecuting the accused-appellant for offence under section 436 of the Indian Penal Code wherein the accused-appellant was acquitted. He points with pains that taking advantage of his status, Bhagyashri was even taken away and Vishwanath ensured that she got married to another person. 5. On the above backdrop of the factual matrix, crucial aspect would be revolving to the evidence of P.W.1 the victim and P.W.8 the Medical Officer. 6. Reading evidence of P.W.1, in context of spot panchanama and the topography of the room, it appears that she has told by her father to implicate the accused. Uneven floor did not make her suffer any abrasions at any part of her body. Scratches to the wall which are referred to in panchanama are not established. The oddness in the room, coupled with the location of the cot generate an impression that firstly the victim could not have sneaked beneath the cot without her protest. Secondly, if it is so, the accused considering the height of the cot could not (6) CRI.APPEAL-440.2010 have ravished her. The theory that is subsequently developed of the accused pulling the victim outside the cot to the extent of her lumbar region, is certainly a development to ensure that the theory of sex is properly established. 7. With all said and done, it is apparent if victim shouted, her mother was barely at a distance of 5 feet, could have noticed the same. That apart the platform, which was just abutting the room was occupied by her brother and the married sister (wife of appellant) was nearby. These aspects could not have been ignored by the learned Judge while appreciating and accepting the evidence of prosecutrix. Law on this point is clear. If evidence of prosecutrix inspires confidence no corroboration is required. The victim is 13 years, she could not be meticulous in narration of events with precision. Reading of FIR Exh.17, it is a embroid document conjointly prepared by outsider than victim. Survey of facts illustrate evidence of prosecutrix lacks coherence to accept the events having been placed in the manner she has suggested (7) CRI.APPEAL-440.2010 and desires to be believed. 8. In the light of the evidence of the prosecutrix if deposition of Medical Officer is evaluated, at the first blush she was herself not conscious of any sexual ravishment to the victim. She did not notice anything which would suggest any act rebelling against the physique of the victim, then 13 years old barely 36 Kgs weight. The Chemical Analyzer's report to which much reference was given is silent to indicate presence of blood barring the same to be on salwar of the victim which was also wash stain. Presence of such blood stains could not be the aftermath of events but it could be due to the mensuration period that the victim has undergone. The Medical Officer P.W. 8 initially did not opine that there was any ravishment with the victim. It was for the first time when her evidence was recorded she disclosed that based on C.A. report in her opinion, it was a case of rape. Being cross-examined on the aspect of the C.A. report and medical examination of the victim, she had to accept that it was for the first time she says the victim could have (8) CRI.APPEAL-440.2010 been raped, however, her evidence is not coherent. 9. Taking survey of these aspects, the conviction recorded by the learned Sessions Judge could not be sustainable and hence it is quashed and set aside. The accused is acquitted of the charges levelled against him. He is in custody. He be released forthwith, if not required in any other case. Communicate. Sd/- [K.U. CHANDIWAL, J.] arp