.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.660 OF 2005 Dnyaneshwar Deoram Patil, ] Age : 20 yrs., ] R/at : R.G.P. Nagar, Satana,] Tal.Satana, Dist.Nashik, ] Presently at Nashik Central ] Jail. ] ..APPELLANT [Orig.Accused No.2] Versus State of Maharashtra ] Through P.S.O., ] Satana Police Station, ] Tal.Satana, Dist.Nashik. ] ..RESPONDENT. .... Mr.N.R.Bubna, Adv. for the Appellant. Mr.Y.S.Shinde, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 21st April, 2008. DATED : 21st April, 2008. DATED : 21st April, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant-orig.accused No.2 has challenged the judgment and order dated 26.4.2005 passed by the learned 1st Ad-hoc Additional Sessions Judge, Malegaon in Sessions Case No.70 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant-orig.accused No.2 for the offences under Sections 376(2)(g), 363 r.w. 34 IPC and under Section 3(1)(xi) of the Scheduled Castes and .(2). Scheduled Tribes (Prevention of Atrocities) Act, 1989 r.w. 34 of IPC. For the offence under Section 376(2)(g) of IPC the appellant was sentenced to RI for five years and fine of Rs.1000/-, I.D., R.I. for three months. For the offence under Section 363 of IPC the appellant was sentenced to RI for two years and fine of Rs.1000/-, I.D., R.I. for one month. For the offence under Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellant was sentenced to RI for six months and fine of Rs.500/-, I.D., R.I. for one month. 2. The prosecution case briefly stated is as under : . Prosecutrix was residing in Kalu Nanaji Nagar at Satana with her parents and other family members. At the time of the offence she was 15 years old. She belonged to ‘Matang’ community, which is a scheduled caste community. On 13.4.2004 at about 12:00 mid night, the prosecutrix wanted to answer the call of nature. Hence the prosecutrix went to the open land .(3). covered by ‘Rui’ trees. Suddenly two boys came near the prosecutrix. They lifted and took her to ‘Shri Ganesh’ bungalow which is situated in the neighbourhood. There the boys took the prosecutrix into the kitchen of the bungalow. The prosecutrix became unconscious and she did not know what has happened thereafter. She regained consciousness in the Government Hospital at Satana. There was pain in her private part and abdomen. Hence she inferred that the two accused had sexual intercourse with her when she was unconscious and thereafter the accused ran away. As the prosecutrix did not return back her parents and relatives searched for her. They peeped into the bungalow and they saw the prosecutrix lying unconscious in the kitchen of the bungalow. Thereafter, they admitted the prosecutrix in the Government Hospital at Satana. Complaint came to be lodged on 14.4.2004. 3. Charge came to be framed against the appellant under Sections 363 r.w. 34 IPC, 366-A r.w. 34 IPC, 376 (2)(g) IPC as well as for the offence under Section 3(1)(xi) and 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of .(4). Atrocities) Act, 1989. The accused pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant-orig.accused No.2, as stated in para-1 above. Hence this appeal. 4. I have heard Mr.Bubna the learned Counsel for the Appellant-orig.accused No.2 and Mr.Shinde, the learned APP for the State. I have also perused the impugned judgment and order as well as the record pertaining to the present case. After giving my anxious consideration to the matter, I am of the opinion that this Appeal deserves to be allowed. 5. The conviction of the appellant has been based mainly on the evidence of the prosecutrix i.e. PW-1. As far as the age of the prosecutrix is concerned, from the evidence on record, especially Exh.49, it is seen that the date of birth of the prosecutrix is 10.3.1988. The incident in question has taken place in the night .(5). between 13.4.2004 and 14.4.2004. Thus, at the time of the incident, the prosecutrix was over 16 years of age. The prosecutrix in her evidence has stated that on 13.4.2004 at about 12:00 mid night, she wanted to answer the call of nature. Hence she went to the open land covered by ‘Rui’ trees. Suddenly two boys came near her. They lifted her and took her to ‘Shri Ganesh’ bungalow. There the boys took the prosecutrix into the kitchen of the bungalow. In the light in bungalow, the prosecutrix saw the faces of the accused persons. The prosecutrix became unconscious and she did not know what happened thereafter. She regained consciousness in the Government Hospital at Satana. There was pain in her private part and abdomen, hence she inferred that the two accused had sexual intercourse with her when she was unconscious and thereafter the accused ran away. As the prosecutrix did not return, her parents and relatives searched for her. They peeped into the bungalow and they saw the prosecutrix lying unconscious in the kitchen of the said bungalow. Thereafter, they admitted the prosecutrix in the Government Hospital at Satana. .(6). 6. PW-6 Dr.Deore examined the prosecutrix on 14.4.2004. He did not notice any injury on the body of the prosecutrix. There were no injuries to the genitals. Infact, the Doctor found old hymenal tears and no fresh injury on any part of the body including the private part was noticed by the Doctor. Thus as far as medical evidence is concerned, it does not corroborate that the prosecutrix was forcibly carried away by the two accused persons and thereafter they have committed rape on her. It is pertinent to note that the prosecutrix herself does not specifically state that both the accused persons committed forcible sexual intercourse on her. What the prosecutrix has stated is that after she was taken to the bungalow, she became unconscious and she regained consciousness in the hospital. As there was pain in her stomach and private part, she inferred that rape was committed on her by the accused persons. In this connection, I would like to advert to the evidence of PW-6 Dr.Deore. Dr.Deore does not mention that when Swati was brought to the hospital she was unconscious. Nor do the medical papers of the hospital show that Swati was unconscious when she was admitted in the hospital. .(7). It is an admitted fact that the prosecutrix was menstruating at the relevant time and Dr.Deore has stated that pain in the abdomen and private part is possible on account of menstruation. Another aspect I would like to advert to is that no semen was found on the clothes of the prosecutrix or on her body. The Chemical Analyser’s report does not support the case of the prosecution. 7. On perusal of the evidence of the prosecutrix, it is seen that, according to her the two accused persons were unknown. The prosecutrix does not state that the two accused persons were known to her prior to the incident. No witness has stated that the accused persons were known persons. Infact the prosecutrix has also stated that behind her house there are no lights and, therefore, on the spot there was darkness. The prosecutrix has admitted that upto the bungalow there was no light. No doubt the prosecutrix has stated in her examination-in-chief that she saw the faces of the accused persons in the bulb light. However as far as this aspect is concerned, it has been found to be an improvement. .(8). 8. Moreover, there was latrine attached to the house of the prosecutrix. The prosecutrix has stated that this latrine was adjoining the wall of her house towards western side. The prosecutrix has stated that the said latrine belongs to them. In such case it is not understood as to why at mid-night the prosecutrix went away from her house in open area in the dark to answer the call of nature. It has come in the evidence of the prosecutrix that there are houses by the side of the house of the prosecutrix and women namely Bharatibai and Baglanbai reside next to her house. The house of Balasaheb who is the brother-in-law of the prosecutrix was also next to the house of the prosecutrix. If the prosecutrix has raised shouts, then the shouts would have been surely heard by Bharatibai, Baglanbai and Balasaheb and other persons near the house of the prosecutrix. The prosecutrix has admitted that she had not tried to scratch these persons or tear or pull their clothes. She did not try to bite the hands of the persons who lifted her. The prosecutrix claims that till they reach ‘Shri Ganesh’ bungalow she tried to rescue herself. If according to the prosecutrix she had tried to rescue herself, there .(9). would have been some injuries on the body of the accused persons or on the body of the prosecutrix. According to the prosecutrix there is only injury to her head and hand and the said injury was not caused by the accused persons or on account of her trying to rescue herself, but, the said injury was caused due to fall. 9. The learned APP has submitted that the evidence of the prosecutrix is corroborated by the evidence of her brother-in-law PW-5 Balasaheb. He has stated that two persons had lifted Swati and taken her away when she had gone to answer the call of nature. Swati had gone out of the house and she did not return back and hence they searched for Swati. When they reached near Shri Ganesh bungalow two persons came out of bungalow and ran away on motorcycle. He saw them while running. One window of the bungalow was broken. Trough the broken window, they saw that Swati was lying in an unconscious state in the kitchen. Thereafter they took Swati to the hospital. Swati told them that two persons have committed rape on her. As far as statement of this witness in examination-in-chief is concerned that he saw two .(10). persons coming out of Shri Ganesh bungalow and running away on motorcycle, the said statement has been found to be an improvement. The witness has stated about this fact for the first time in the Court and he has not stated the said fact before the police when his statement was recorded. This witness has admitted that it is correct that he did not see the incident of rape himself therefore he could not tell as to whether rape was committed by one person or two persons. 10. Few relevant facts emerged from the evidence of the prosecutrix. The first is that the accused persons were not known to her. In such case identification parade of the accused persons ought to have been held. However no Test Identification Parade has been held in the present case. Hence, identification by the prosecutrix of these persons directly in the Court cannot be relied upon. 11. That there was no light for the prosecutrix to observe the two accused persons. Infact the prosecutrix has also stated that behind her house there are no lights and, therefore, on the spot .(11). there was darkness. The prosecutrix has admitted that upto the bungalow there was no light. No doubt the prosecutrix has stated in her examination-in-chief that she saw the faces of the accused persons in the bulb light. However as far as this aspect is concerned, it has been found to be an improvement. Though there was latrine attached to the house of the prosecutrix, at mid night she had chosen to go at a distance from her house in an open area to answer the call of nature. The prosecutrix has not given any explanation for this unnatural conduct on her part. The prosecutrix has admitted that she did not try to scratch these two persons or to tear or pull their clothes. She did not bite them when they lifted her. She claims that she tried to rescue herself till they reached the bungalow, yet it is found that there are no injuries on her body or that of the accused persons. Besides this, Bharatibai, Baglanbai as well as Balasaheb were residing near her house. If at all the prosecutrix had made an attempt to rescue herself and raise shouts as claimed by her, these witness would have heard her shouts. It is also come on record that many persons are residing close to the .(12). bungalow, yet no one has heard the prosecutrix’s shouts for help. All these facts raise some doubt in the mind regarding the credibility of the prosecutrix. 12. The main fact is that the prosecutrix has only inferred that the accused persons committed rape on her, on account of pain in her stomach and private part. The prosecutrix has not specifically stated that the accused persons had committed rape on her. Last but not least important factor is that the medical evidence does not substantiate the case of rape. The C.A. report also does not support the prosecution. 13. In view of the above facts, I am of the opinion that the conviction of the appellant deserves to be set-aside. 14. In the result, the appeal is allowed. The judgment and order of conviction and sentence dated 26th April, 2005 passed by the learned 1st Ad-hoc Additional Sessions Judge, Malegaon, District Nashik in Sessions Case No.70 of 2004 is set aside. The appellant- Dnyaneshwar Deoram .(13). Patil is acquitted of the offence punishable under Sections 376(2)(g), 363 r/w. 34 of IPC and under Section 3(1)(xi) r/w. 34 of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989. The appellant is in jail. He be set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)