1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.268 OF 2004 Kalidas M. Shinde R/o. At & P – Deur, Tal: Koregaon, Dist. Satara At present lodged in Satara Prison ...Appellant(Org.Accd.No.2). v. The State of Maharashtra ...Respondents. Mr.S.P.Kadam,adv. For the Appellant. Ms.M.H.Mhatre, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : JULY 1, 2010 ORAL JUDGMENT: 1 The appellant, who was accused no.2 in Sessions Case No.18/03 before the Sessions Court, Satara, has challenged the judgment and order dated 8.12.2003 whereby he was convicted for the offences punishable under Sections 376 and 506 read with Section 34 of the I.P.C. and was sentenced to R.I. for 10 years and to pay a fine of Rs.2,000/- for the offences punishable under Section 376 of the I.P.C. and to undergo R.I. for 5 years and to pay a fine of Rs.500/- for the offence punishable under section 506 of the I.P.C. 2 Prosecution case in brief is that prosecutrix was a girl, aged about 14 years, resident of Deur Taluka: Koregaon, District: Satara. She used 2 to live alongwith her mother Housabai and two brothers. During the period of Diwali 2002, prosecutrix had quarrel with her mother because her mother had suspicion that prosecutrix had an affair with a boy namely Amol Kharat. Prosecutrix had told the accused no.1 Sumal Bhima Kharat about that quarrel. On 9.11.2002, when the prosecutrix was about to proceed to the field of one Dharmaji Kadam for planting onions, accused no.1 Sumal approached her and asked her not to go to field and to accompany her to Vathar, from where they could go to Jat, maternal home of accused no.1. Accused no.1 persuaded her to accompany on the ground that her mother always used to quarrel with her. In view of this, prosecutrix accompanied accused no.1 to Vathar station from where she was taken to village Pimpode Budruk and from there they returned to Mal or open space of village Deur as the accused no.1 wanted to collect some money to go to Jat. During that night, they stayed in a hut at Deur. On 10.11.02, prosecutrix was taken to Ambavade by rickshaw by the accused no.1 and from there to Satara by S.T. Bus. On 11.11.02 accused no.1 took the prosecutrix to her mother's house. On the next day at about 3.00 p.m. accused no.2, who is also resident of village Deur, arrived at the house of the mother of the accused no.1 where the prosecutrix was staying with her. In the evening after dinner, 3 accused no.1 asked the prosecutrix to sleep with the accused no.2 in the house and then she closed the door from outside. Accused no.1 and her mother went away to sleep outside. According to the prosecution after that , accused no.2 closed the mouth of the prosecutrix and threatened to kill her and had sexual intercourse with her. On the next day in the evening again accused no.2 had sexual intercourse with her. Prosecutrix told the accused no.1 but she also threatened to kill if the prosecutrix would disclose this incident to anybody. On 14.11.2002 at about 8 p.m. both the accused and the prosecutrix returned to Deur and the prosecutrix informed about the incident to her mother as well as uncle. On 15.11.2002, she lodged the report Ex.15 at Vathar police station. On the same day, prosecutrix was referred for medical examination at the Primary Health Centre, Vathar. On 16.11.2002, accused no.2 was also referred for medical examination. Clothes of the prosecutrix as well as the accused no.2 were seized. Blood samples and vaginal smear of the prosecutrix were collected and the articles were referred to the C.A. After investigation, charge-sheet was filed. 3 Charges were framed against the accused no.1 under Section 363, 366 of the I.P.C. Accused no.2 was charged for the offence punishable under Sections 376 and both the accused were charged for the offences 4 punishable under section 506 read with section 34 of the I.P.C. They pleaded not guilty. On behalf of the prosecution, only two witnesses, ie., the prosecutrix and the medical officer Dr. Shankar D. Jadhav were examined. After hearing the evidence of both the parties, trial Court convicted accused no.1 for the offences punishable under Sections 366 and also under Section 506 r/w section 34 of the I.P.C. and awarded sentence. Accused no.2 was convicted and sentenced as stated earlier. 4 The learned counsel for the appellant vehemently contended that in the present case, except the bare word of the prosecutrix, there is no evidence to substantiate the charge of the rape or threats. He also contended that there is nothing to show that prosecutrix was aged less than 16 years at the time of incident; On the other hand, the learned APP vehemently contended that corroboration to the testimony of the prosecutrix is not at all required if her evidence is trust worthy and that conviction can be based on the sole testimony of the prosecutrix. 5 Prosecutrix deposed about the prosecution story as stated earlier. According to her, her age was 14 years at the time of incident. Prosecution failed to examine mother of the prosecutrix as a witness before the Court. Prosecution also failed to produce any document about the date of birth of the prosecutrix. Neither her birth certificate from the 5 birth and death register of the village was brought on record nor any record from the school, where she had admittedly studied upto 5th standard, was produced before the Court. No witness was examined to prove her date of birth, though record about date of her birth could be produced and also some of her relatives could be examined to prove her date of birth and her age at the time of incident. Record reveals she was referred for medical examination to Vathar Primary Health Centre. P.W. 2 Dr. Shankar D. Jadhav, medical officer and a gynecologist Dr. R.M.Shinde had examined her and both had issued separate certificates. Evidence of Dr. Shankar Jadhav shows that he found no external injuries on the body. He obtained X ray reports and found that age of the patient was below 18 years. In the cross-examination, he admitted that the prosecutrix was physically fully grown. According to him, elbow joint, knee joint and iliaccrest joint were not yet fused. According to him, fusion takes place after the age of 18 years. However, taking into consideration development of the girl, she appears to be age of 17 and half years. 6 Dr.R.M.Shinde, who had examined the prosecutrix to find out the evidence about the alleged rape, issued a certificate on the basis of detailed examination but she was not examined by the prosecution. 6 Therefore, that medical certificate also could not be proved and admitted in evidence. P.W.2 Dr. Shankar, who claims that he was present at the time of examination by Dr.R.M.Shinde, deposed that private part of the prosecutrix allowed two fingers. He also deposed that when two fingers are allowed woman is habituated to sexual intercourse. This admission by Dr. Jadhav is material because of certain facts on record. According to the prosecution story and as per admission of the prosecutrix in the cross-examination, her mother was suspicious about her affair with another boy Amol Kharat and because of that her mother had quarrel with her during the period of Diwali. However, she denied that she had any affair with the said Amol. As per evidence of the prosecutrix, accused no.2 had sexual intercourse with her firstly in the night on 12.11.2002 and again in the evening of 13.11.2002. However, medical evidence shows that she appeared to be habituated to the sexual intercourse. Medical evidence is in conflict with the deposition of the prosecutrix in this respect. She also admitted in the cross-examination that on 14.11.2002 she returned to her house and from the F.I.R., it appears that she had returned alongwith both the accused. On the same day, according to her admission, she was taken to the police station but she did not disclose about the rape on that day in spite of specific 7 enquiry by the police from her. At that time, she was not even asked to undergo medical examination. Then they returned from the police station to their house. The police papers, which were submitted with the chargesheet but were not proved by the prosecution, disclose that on 15.11.2002 brother of the prosecutrix and some other persons requested police that she should be referred to the medical examination and because of that request police decided to refer her to the medical examination. She admitted that on 15.11.2002, they again went to the police station and, there she came to know that she was to be medically examined and she was also required to disclose name of the person with whom she had sexual intercourse. She also admitted that her uncle Bhimrao Pawar is working in the police department and he had asked her to lodge the report with the police. After that she disclosed the name of the accused no.2 as the person, who had committed rape on her. From these admissions, it appears that even though on 14.11.2002 she was taken to the police station, she did not disclose that anybody had committed rape on her. However, it appears that she was being pressurised to lodge F.I.R. and to disclose name of the person and then she gave name of the accused no.2 as culprit. It indicates that she wasnot willing to undergo medical examination or to disclose the name 8 of person, with whom she had sexual intercourse. 7 Police papers also reveal that the police had referred the accused no.2 for the examination to find out whether he was fit to have sexual intercourse, particularly because of some back injury which he had suffered about 5 years prior to the incident. However, no evidence was brought on record in this respect. Even the Investigating Officer was not examined by the prosecution to clarify several important aspects of the matter. According to the prosecution, clothes of the accused as well as prosecutrix were seized under panchanama. Their clothes, blood samples and vaginal smear of the prosecutrix were collected and referred to C.A. However, as the I.O. was not examined, prosecution failed to prove that any of these articles were referred to C.A. and that C.A. Report corroborated the prosecution story. 8 In view of the facts and circumstances noted above, it is clear that except bare words of the prosecutrix that on 12th and 13th November, 2002, accused no.2 had committed rape on her, there is not an iota of evidence to substantiate her contention. On the other hand, evidence of P.W.2 Dr. Shankar reveals that she was habituated to sexual intercourse and she was also aged about 17 and half years. If she was habituated to sexual intercourse as per the medical evidence, it appears 9 that she was trying to hide certain facts and this becomes important particularly because during the Diwali prior to this incident, she had quarrel with her mother on the very ground that according to her mother, she was having some affair with Amol Kharat and because of that quarrel with mother, she had agreed to leave the house of her mother and to accompany the accused no.1. 9 It is now well settled position of law that prosecutrix in rape case is victim of the offence and, therefore, she can not be treated as accomplice and, therefore, if the evidence of the prosecutrix is found trust worthy, conviction can be based on the sole testimony of the prosecutrix without any corroboration from any independent source. However, if the evidence of the prosecutrix does not appear to be trust worthy, Court may look for some independent evidence, just to find assurance that her evidence about the rape is true and that assurance may be in the form of medical evidence or the C.A.reports. In the present case, for the reasons best known to the prosecution Dr. R.M.Shinde, who had examined her in detail was not examined. Investigating Officer was also not examined to prove that her clothes, blood samples and vaginal smear were referred to C.A. and no attempt was made to prove C.A.Reports. Thus, there is no medical evidence or C.A.report to 10 corroborate the testimony of the prosecutrix. 10 The learned APP relied on certain authorities from the Supreme Court wherein the Court held that conviction in rape case could be based on the sole testimony of the prosecutrix. In the case of State of Rajasthan v Biram Lal (2005) 10 Supreme Court Cases 714, prosecutrix was a widow and mother of three children. Her evidence was found to be reliable and was also found corroborated by the evidence of other witnesses. Medical evidence was not produced. However, the Supreme Court held that merely because medical evidence was not available, evidence of the prosecutrix, which was otherwise found trustworthy and which was supported by the other witnesses, could not be disbelieved and, therefore, accused was held liable to be convicted for the offence punishable under Section 376 of the I.P.C. In paragraph 15, Their Lordships observed as follows: “We, therefore, find it difficult to sustain the order of acquittal passed by the High Court in respect of the offence under Section 376 IPC. It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, 11 then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction. In the instant case, we find that the evidence of the prosecutrix is worthy of credit and implicitly reliable. The other evidence adduced by the prosecution, in fact, provides the necessary corroboration, even if that was considered necessary. The High Court on a clear misreading of the evidence on record, acquitted the respondent of the charge under section 376 IPC while upholding his conviction under Section 450 IPC.” From these observations, it is clear that whether Court should look for some corroboration from independent source depends on the quality of the evidence of the prosecutrix. If the Court is satisfied with the evidence of the prosecutrix free from blemish and implicitly reliable, conviction can be based on the sole testimony of the prosecutrix but in appropriate case, Court may look for corroboration from the independent source or from the circumstantial case before recording the order of conviction. 11 The learned APP also placed reliance upon S.Ramakrishna v. State (2009) 1 Supreme Court Cases 133. It appears that in that case though the Doctor had opined that the rape was not committed on reading the evidence of Doctor, it became clear that he had stated that the sexual intercourse had occurred. Apart from that presence of human 12 semen and protozoa also established allegations of rape. The learned APP also relied upon Moti Lal v. State of Madhya Pradesh (2008) 11 Supreme Court Cases 20. In that case, prosecutrix was relied as her evidence was supported by several circumstances. Pieces of the broken bangles were found at the place of the incident. Semen stains were found on her underwear and the underwear of the accused. The Supreme Court upheld conviction and sentence after reiterating principles about appreciation of the evidence of the prosecution in such cases. In the present case, as noted above neither the medical evidence is placed before the Court nor any C.A.Report is available to prove that sexual intercourse had taken place with the accused. 12 As the facts of each case are to be appreciated on its own merits. In the present case, prosecutrix appears to be habituated to sexual intercourse and possibly that was the reason why she had quarrel with her mother much before the present incident had occurred. Prosecutrix was hiding that fact. On the first day when she was taken to the police station, she was not willing to disclose that she was raped or she had sexual intercourse with anybody. It appears that on the next day, she was pressurized to lodge F.I.R. by her uncle, who was in the police department. Not only this her brother and other relatives also specifically 13 requested police in writing that she should be examined medically to find out whether she was raped. It appears that after all such pressure, she agreed to lodge report and she named the accused no.2 as culprit. In the present case, when the I.O. had referred the accused for the medical examination to find out whether he was fit to have sexual intercourse, non-examination of the I.O. and non production of such medical evidence also goes against the prosecution. Due to non-examination of the I.O. , accused was deprived of right to cross-examine him and to bring true facts on record. It is settled position of law that in criminal trial, burden lies on the prosecution to prove the offence beyond the reasonable doubt and if there are reasonable doubts, benefit of same would go to the accused. Even though conviction can be based on the sole testimony of the prosecutrix in such cases still in the given circumstances Court can look for an assurance that her evidence is true but unfortunately in the present case, no evidence is produced before the Court to give assurance about her reliability. On the contrary, several important facts have not come before the Court due to non-examination of the important witnesses. In view of these circumstances, I find that it is fit case to give benefit of doubt to the accused. The learned trial Court did not consider any of these aspects before convicting accused for the 14 offence of rape and threats. Therefore, in my considered opinion, conviction can not be sustained. 13 For the aforesaid reasons, appeal is allowed. Impugned order of conviction and sentence are hereby set aside. Appellant/accused no.2 Kalidas Mahadeo Shinde is hereby acquitted of the charges under Sections 376 and 506 of the I.P.C. He be set at liberty forthwith, if not required in any other case. (J.H. BHATIA,J.)