1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 75 OF 2010 Ganesh Laxman Korde, age 25 yars, occ.education, r/o Kordewadi, Taluka Kaij, District Beed ...Appellant (original accused no.1) VERSUS The State of Maharashtra, through police station Kaij, Tq. Kaij, District Beed ...Respondent (original complainant) ..... Shri R.K.Jadhavar, advocate along with Shri M.A.Tandale, advocate for the appellant Shri S.D.Kaldate, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 28.6.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 09.7.2010 2 J U D G M E N T : 1 The challenge in this appeal is to the conviction and sentence inflicted upon the appellant/original accused no.1 by way of judgment and order dated 21.1.2010, rendered by learned Special Judge, Ambajogai, in Special Case No. 2 of 2007, convicting the appellant under Section 376 of the Indian Penal Code and directing him to suffer R.I. for seven years and to pay fine of Rs. 3,000/-, in default to suffer R.I. for three months and also convicting him under Section 452 of the Indian Penal Code and directing him to suffer R.I. for two years and to pay fine of Rs. 1,000/-, in default to suffer R.I. for one month, and also convicting him under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and directing him to suffer R.I. for three years and to pay fine of Rs. 1,000/-, in default to suffer R.I. for one month, and all the afore said substantive sentences were to run concurrently. 2 The factual matrix of the prosecution case can be summarised as under :- It is the case of prosecution that PW1 Vanita, who is the 3 prosecutrix, minor at the relevant time i.e. in June, 2006, was residing at Kordewadi, Taluka Kaij along with her family members, and on 10.6.2006, her parents as well as her brother and his wife had gone to village Vida for weekly bazar and PW1 Vanita and her younger sister Anita were at home. They had gone to the well of Sheshrao Patil for washing the clothes and returned back to home at about 2.30 p.m. and sister Anita went out of the house to dry the clothes; whereas victim Vanita was watching T.V. in the house. It is alleged that at this juncture the appellant/original accused Ganesh Korde entered into her house and started pressing her neck and also threatened her as well as he removed his clothes i.e. pant and nicker and removed Vanita’s nicker and accused Ganesh inserted his penis into Vanita’s vagina, and accordingly committed rape upon her, resulting into bleeding from her private part and blood stains fell on her nicker. Thereafter accused Ganesh went away. 3 It is also the case of prosecution that victim Vanita’s parents, brother and sister-in-law returned back to home in the evening on 10.6.2006 and thereupon she informed them about the occurrence of the afore said incident of committal of rape upon her by accused. Hence, all of them, along with PW3 Ashok Bansi Yadav 4 proceeded to the police station, Kaij to lodge the complaint, but on the way near bridge, accused Ganesh, Anil Korde and other five persons stopped them and threatened them and assaulted them and accordingly obstructed them from proceeding to police station, Kaij to lodge the complaint, and therefore, they returned back. Hence, it is the case of prosecution that after lapse of about two days i.e. on 13.6.2006, PW1 Vanita i.e. prosecutrix went to police station, Kaij and lodged the complaint against the accused and same was registered under C.R.No. 134 of 2006 for the offences punishable under Sections 376, 341, 143, 452, 506 and 34 of the Indian Penal Code and also under Sections 3 (2)(v) and 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 4 It is further the case of prosecution that PW4 Additional S.P. – Pralhad Balaji Sonwane was working as Dy.S.P. at Kaij in June, 2006 and in the night of 13.6.2006 C.R. No. 134 of 2006 came to be registered by the complainant Vanita in respect of rape and rioting and accused were Savarna; whereas complainant was of Mahar caste. Hence, PW4 Pralhad went to Kordewadi along with staff and searched for the accused, but could not trace them out. He drew the panchanama Exh.30. Moreover, he also seized the clothes 5 of the prosecutrix under panchanama Exh.29 on 13.6.2006, as well as he drew panchanama of scene of offence Exh.28. During the course of investigation, PW4 Pralhad also recorded the statements of witnesses, as well as recorded supplementary statement of prosecutrix on 14.6.2006. He also arrested, three accused persons on 14.6.2006, the accused/appellant herein on 17.6.2006 and remaining two accused persons on 20.6.2006. On the same day clothes of appellant herein i.e. Ganesh and accused no.2 Anil were seized under seizure panchanamas Exhs. 30 and 31 respectively. On 14.6.2006, statements of PW2 Sushilabai Waghmare i.e. mother of victim and others were recorded. The caste certificate of the complainant was obtained, which is produced at Exh.37, as well as caste certificates of the accused persons were obtained by the investigating officer on 3.11.2006 and same are produced at Exhs. 39 to 44 respectively. 5 The prosecution case also recites that the victim was sent for medical examination and her medical certificate was received on 26.6.2006 and PW4 Pralhad made inquiry with the Medical Officer and answers given by said Medical Officer are produced at Exh. 38. On 14.12.2006 PW4 Dy.S.P. Pralhad sent the seized articles to the 6 Chemical Analyser’s office for examination purpose along with forwarding letter Exh.45. Accordingly, Chemical Analyser’s reports thereof were received from the office of the Chemical Analyser, Aurangabad, which are produced at Exhs. 46 to 48 respectively. Thus, after completion of investigation, PW4 Pralhad filed the charge sheet against the accused persons in the court of learned Judicial Magistrate, First Class, Kaij. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Kaij committed the said case to the Court of Sessions, Beed on 22.5.2007 for trial. Accordingly, charge came to be framed against the accused persons at Exh. 6 on 15.10.2007 and the accused pleaded not guilty and claimed to be tried. 6 To substantiate the charges levelled against the accused persons, the prosecution examined in as much as four witnesses, as mentioned below. PW1 Vanita Tejas Gaikwad, prosecutrix-victim. PW2 Sushilabai Bajrang Waghmare, mother of the victim. 7 PW3 Ashok Bansi Yadav, turned hostile. PW4 Pralhad Balaji Sonwane, Dy.S.P. i.e. investigating officer. 7 The defence of the accused was of total denial and it was suggested during the cross-examination conducted by accused that PW3 Ashok Bansi Yadav had illicit relations with the victim Vanita, and therefore, the accused has been implicated in this case falsely, with the aid and assistance of PW3 Ashok Yadav, and accordingly, the accused claimed to be innocent. 8 After scrutinizing and appreciating the evidence adduced and produced by the prosecution on record, learned Trial Judge convicted and sentenced the appellant/accused no.1 herein as afore stated; whereas learned Trial Judge acquitted accused nos. 2 to 6 from the charges levelled against them. Being aggrieved and dissatisfied by the said judgment and order inflicting conviction and sentence upon the appellant, the appellant has preferred the present appeal praying for quashment thereof. 9 In order to deal with the submissions advanced by the 8 learned counsel for the appellant as well as learned Additional Public Prosecutor for the respondent, it is necessary to advert to the evidence adduced and produced by the prosecution on record, to bring home the guilt against the accused. In the said context, coming to the testimony of PW1 Vanita i.e. prosecutrix, she has stated that she was residing along with her parents, brother and his wife and sister together at Yeota, Taluka Kaij, District Beed and she belongs to Mahar caste. She also stated that on 10.6.2006 her parents and her brother and his wife had gone to weekly bazar and her younger sister Anita was at home. Hence, she and Anita had gone to the well of Sheshrao Patil for washing clothes and returned back at about 2.30 p.m. on the same day. Thereafter Anita went out of the house to dry the said clothes; whereas victim Vanita was alone in the house, who was watching Television. 10 At this juncture, accused Ganesh Korde entered into her house and tried to force her and he started pressing her neck and also threatened her, as well as removed his clothes including pant and nicker and removed the nicker of Vanita and accused Ganesh inserted his penis into her Vagina causing bleeding from her Vagina and thereby blood stains fell on her nicker. Thereafter accused 9 Ganesh went away. She also stated that caste of Ganesh is Dhangar. According to PW1 Vanita, her parents returned back to home and she narrated the afore said occurrence of incident to them. Hence, they proceeded to police station to file the complaint along with PW3 Ashok Yadav. However, when they reached near bridge of the village, accused Ganesh Korde and Anil Korde and other six persons threatened them and asked them not to proceed to police station. Hence, they returned back. She further stated that after lapse of about two days, they went to police station and lodged the complaint (Exh. 26). She further stated that at the time of incident, her age was 15 years and she was sent for medical examination, as well as her clothes were seized by the police personnel. 11 During cross-examination, she stated that she was not knowing the accused Ganesh Korde prior to the occurrence of the incident and he never came to their house and she saw the accused when he was entering into their house through door. She stated that she did not ask the accused why he had come. She further stated that when accused Ganesh came near to her, she asked him why he had come and he started to catch her and thereafter she tried to run away. She further stated that accused caught her and fell on the 10 ground, but no scuffle took place between them. She also stated that after falling her on the ground, the accused Ganesh started removing her clothes, but at that time her both hands and both legs were free. In the said context, she stated that when accused was removing her clothes, she was lying closing her eyes. Hence, suggestion was given that she did not oppose the accused to remove her clothes, but same was denied by her. She also admitted that after going aside the accused Ganesh removed his pant and shirt. She also volunteered that she opposed the accused Ganesh. However, she admitted that two hours time was lapsed from entering into her house and leaving her house. Suggestion was given in the cross-examination that PW3 Ashok Yadav used to visit their house frequently, but same was denied by her. She also stated that Ashok Yadav had no acquaintance with her brother. It was also suggested to her that said Ashok Yadav had illicit relations with her, but same was denied by her. Suggestion was also given to her that present false complaint has been filed against the accused at the instance of said Ashok Yadav, but same was denied by her. She also denied that she deposed falsely that at the time of incident, her age was 15 years. 11 12 Having the comprehensive view of the testimony of PW1 Vanita, although PW1 Vanita stated in her deposition that the accused Ganesh inserted his penis into her Vagina after removing clothes of both of them, there was bleeding from her vagina and blood stains fell on her nicker, but pertinently the said proposition has not been corroborated by the Chemical Analyser’s report and the Chemical Analyser’s report Exh. 45/C reflects that no blood was detected on nicker i.e. Exh.7, as well as no semen was detected thereon. It is also significant to note that PW1 Vanita stated in her cross-examination that she was not knowing Ganesh Korde prior to the occurrence of the incident, then the question arises how name of the appellant/accused has been reflected in the complaint lodged by PW1 Vanita. Pertinently, thereafter she stated that she saw the accused Ganesh entering into her house, apparently a stranger, since PW1 Vanita stated that she was not knowing him, and therefore, in the natural course of events, she would have asked him why he had come, but PW1 Vanita stated that she did not ask accused Ganesh why he had come. Thereafter she stated in the cross-examination that when accused Ganesh came near to her, then she asked why he came and she tried to run away, but stated that no scuffle took place between them. She further stated that after 12 falling her on the ground, accused Ganesh started removing his clothes and although her hands and legs were free, she simply was lying closing her eyes. Hence, in the natural course of events, victim could have resisted and a scuffle would have taken place between her and accused, as well as when accused was removing her clothes, although her hands and legs were free, she simply lied down closing her eyes, which appears to be unnatural conduct. Besides that, it is also material to note that she stated that accused was in her house for the period of two hours and she has nowhere given explanation about the presence of the accused for such substantial period of two hours. In view of the afore said infirmities, the testimony of PW1 Vanita i.e. the prosecutrix comes under the cloud of suspicion. 13 That takes me to the testimony of PW2 Sushilabai i.e. the mother of victim, who stated that she has got two daughters, namely Vanita and Anita, and on the day of incident, she had gone to weekly bazar at Village Vida along with her children and her husband had gone for grazing she-goats; whereas Anita and Vanita were present in the house. They had gone for washing clothes She also stated that they returned back (from bazar) in the evening. She also stated that 13 Vanita told her that incident took place at about 2.00 p.m. when they returned after washing the clothes and when Anita was out side the house for drying the clothes and when victim Vanita alone was present in the house. She further stated that Vanita told her that accused Ganesh came there and thereafter Vanita started crying, but Ganesh committed rape upon her. She further stated that thereafter they proceeded by jeep to police station, but when they reached near the river, accused Ganesh and his friends pelted stones on jeep, and accordingly, accused Ganesh obstructed them from going to the police station and threatened them, and hence, they returned back. She further stated that thereafter they went to the police station and lodged the complaint. During cross-examination, she stated that age difference between Vanita and Anita was of two years. Suggestion was given to her that she deposed falsely that Vanita told her that accused Ganesh came and committed rape upon her, but same was denied by her. It was also suggested to her that they filed false complaint against the accused at the instance of PW3 Ashok Yadav, but same was also denied by her. 14 Considering the testimony of PW2 Sushilabai, it is apparent that her version is dependent upon the incident narrated to 14 her by victim Vanita. Moreover, no specific date and time of alleged committal of rape on her by accused Ganesh has been mentioned therein, and therefore, it is not clear whether victim Vanita narrated the incident to PW2 Sushilabai immediately after occurrence thereof. Further She stated that age difference between Vanita and Anita was of two years. Accordingly, the testimony of PW2 Sushilabai cannot be of any much aid and assistance to the case of prosecution. 15 That takes me to the testimony of PW4 Dy.S.P. Pralhad Sonawane, who has investigated present C.R.No. 134 of 2006 and during investigation he visited Kordewadi along with staff and searched for the accused, as well as drew panchanama Exh.30 and seized the clothes of the prosecutrix under panchanama Exh.29, and also drew the panchanama of the scene of offence Exh. 28 on 13.6.2006. Thereafter on 14.6.2006 he recorded statements of eight witnesses and also recorded supplementary statement of prosecutrix and arrested three accused on 15.6.2006 and arrested appellant herein on 17.6.2006 and seized his clothes. Further on 20.6.2006 he arrested remaining two accused. He produced the caste certificate of the complainant at Exh.37. He also stated that he received the medical examination certificate of victim on 26.6.2006, and therefor 15 he made some query with the Medical Officer and answer given by the said Medical Officer is produced at Exh.38, as well as caste certificates of the accused persons are produced at Exhs. 39 to 44 respectively. He further sent the seized articles to the office of Chemical Analyser on 14.12.2006 along with forwarding letter Exh. 45, and the Chemical Analyser's reports thereof are produced at Exhs. 46 to 48 respectively. Moreover, he also sent blood sample of the accused/appellant for examination purpose on 2.8.2006 and after completion of investigation filed the charge sheet. During cross- examination, he stated that blood sample of the accused was taken in the hospital at Kaij and same was sent to the office of Chemical Analyser for examination purpose. He also stated that he did the age determination test of the prosecutrix, but does not remember the name of the hospital where it was done. Suggestion was given to him that at the time of incident age of the prosecutrix was more than 18 years, but same was denied by him. 16 Accordingly, considering the testimony of PW4 Dy.S.P. Pralhad Sonawane, he carried out the investigation under C.R.No. 134 of 2006, including recording of the statements of witnesses and drew panchanamas as afore said and arrested the accused persons 16 and sent the seized articles to the office of the Chemical Analyser for examination purpose. Moreover, he also sent the victim for medical examination purpose and made inquiry with the Medical Officer and answer given by the Medical Officer is produced at Exh. 38. In that context, he stated in the cross-examination that he did the age determination test of the prosecutrix, but does not remember the name of the hospital thereof, and therefore, suggestion was given to him that prosecutrix was more than 18 years of age at the time of occurrence of the incident, but same was denied by him, and it is the endeavour of the appellant to establish that the prosecutrix was more than 18 years old at the time of occurrence of the incident. 17 On the afore said background, the learned counsel for the appellant submitted that burden lies upon the prosecution to prove that complainant is a minor girl, but the prosecution failed to produce on record any record of her age and school leaving certificate, and accordingly, there is no positive proof of the age of the prosecutrix. It is also the contention of the learned counsel for the appellant that contents of the medical certificate produced at Exh.38 have not been proved and the age mentioned therein is without conducting ossification test upon the victim. In the said context, the learned 17 counsel for the appellant canvassed that PW2 Sushilabai has stated in her cross-examination that there was two years difference in the ages of Vanita i.e. victim and Anita and school leaving certificate of Anita is produced on record along with Exh. 54, which discloses her date of birth as 20.7.1989, and since PW2 Sushilabai stated in her deposition that there was difference of two years between the ages of Vanita i.e. victim and Anita, the birth of victim Vanita must have taken place in the year 1987 i.e. two years prior to the date of birth of Anita and since the date of incident is 10.6.2006, the age of Vanita i.e. victim on the date of incident must be of about 19 years i.e. above 18 years, and accordingly, prosecutrix was not minor on the date of incident, as canvassed by the prosecution. 18 Learned counsel for the appellant also urged that the victim Vanita never stated in her deposition that the accused closed the door after entering into her house and in the natural course of events, had the accused entered into the house of prosecutrix, he would have certainly closed the door from inside before committing the act of rape upon the victim. It is also submitted that the alleged incident occurred in the broad day light i.e. at 2.30 p.m. on 10.6.2006, but it is curious to note that nobody from the nearby 18 vicinity has been examined by the prosecution as independent witness for corroboration and the said inaction on the part of the prosecutrix diminishes the credibility of the prosecution case. 19 It is further canvassed by the learned counsel for the appellant that although the incident occurred on 10.6.2006, the first information report came to be lodged after three days of the incident i.e. on 13.6.2006 and the said three days delay in lodging the first information report has not been explained by the prosecution satisfactorily, and even assuming for the sake of assumption without admission that the accused obstructed the complainant and her parents from lodging the first information report on 10.6.2006, nothing prevented the complainant to lodge the complaint on the next day i.e. on 11.6.2006, but so did not happen and the complaint came to be lodged on 13.6.2006 and no plausible explanation therefor has been given by the prosecution in that respect. 20 Besides that, the learned counsel for the appellant also submitted that the prosecution has failed to produce any medical evidence on record, including the medical examination certificate of the victim, although the victim was medically examined, to connect 19 the appellant with the alleged crime. Moreover, according to the learned counsel for the appellant, there is nothing on record to prove and establish that the appellant committed any offence under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 21 To substantiate the contentions of the appellant, learned counsel for the appellant relied upon the observations made in the case of State of Maharashtra vs Rameshwar Shridhar Jaware and Anr., reported at 2008 Cri.L.J. 675, as under :- “ 23. The circumstances prevailing in the said village clearly makes out a case that in the cases of that village on allegations of rape, the evidence of prosecutrix cannot be treated as gospel truth. IN the present case, as rightly pointed out by the learned appellate Judge, evidence of prosecutrix Ku.Savita requires corroboration. Her uncorroborated testimony cannot be relied upon for basing the conviction. The cases cited by the learned A.P.P. are distinguishable on facts. It is true that the evidence of prosecutrix can be relied upon in the sex offences even if it is uncorroborated, but provided it is found wholesome trustworthy. Here is the case where material evidence i.e. medical evidence and CAs report tend to shed doubts on the prosecution case. The possibility of 20 false accusation cannot be ruled out. The evidence of the prosecution witnesses is riddled with contradictions and omissions and top of all, she though claimed that she has resisted the forcible rape by the respondents, no remarkable injuries were found on her person. All this makes us to hold that the view taken by the learned appellate Judge cannot be said to be perverse. “ 22 The learned counsel for the appellant also relied upon the following observations made by Hon'ble Supreme Court in the case of Abbas Ahmad Chouhdary vs State of