1 Cri.AppealNo.401/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.401/1998. Shivaji s/o Rambhau Pawar Age: 30 Yrs., occu. Tailor, R/o Dasala, Ramnagar, Zopad Patti, Tq. Sailu, Dist. Parbhani. - APPELLANT (Orig.Accused) VERSUS The State of Maharashtra Through P.S.O. Sailu. - RESPONDENT ***** Mr.PF Patni, Advocate for Appellant; Mr.KS Patil, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 28th March, 2011. JUDGMENT: 1) Heard learned Counsel for the appellant/accused and learned APP for State. 2) The appellant/accused questions legality of order of conviction for an offence under Section 376 of Indian Penal Code and directing him to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- in Sessions trial No.68/1998, recorded by learned Additional 2 Cri.AppealNo.401/1998 Sessions Judge, Parbhani. 3) FACTS: i) The prosecutrix born on 10.7.1985, being a friend of Chingi, daughter of accused/appellant, accompanied her to stay overnight, as mother of said Chingi was out of station. ii) In the night of 24.9.1997, the victim was sleeping with said Chingi and her another brother. It was around 11.00 p.m., the accused/appellant raised apparels of the victim. She realized pricking touch while asleep, the victim suddenly got up to find the accused/appellant mounted on her. The accused threatened her not to shout and ensured to gag her. He removed her under-garment aside, sat on her thighs and committed forceful sex. The victim was weeping due to pains. In the meantime, her mother arrived in the said room, she gave two blows of Chappals to the accused. The prosecutrix narrated the incident to her parents in the night. (iii) On 25.9.1997, the matter could not be reported in time, however, F.I.R. Was belatedly lodged at 12.10 p.m. As police station is quite away. 3 Cri.AppealNo.401/1998 (iv) The victim was medically examined. Under-garments of the accused/apellant and the victim were taken charge, spot panchanama was drawn. After regular rituals and procedure, charge sheet was committed to the learned Sessions Judge at Parbhani. (v) The charge was recorded below Exhibit-2, explained to the accused on 4.8.1998. The accused denied the charge and claimed trial. His defence is of false implication due to previous enmity. 4) In order to establish guilt of the accused, prosecution has put in PW 1 -, the victim (her name is not disclosed in view of Section 228-A of IPC); PW 2 – Krishna Digambarrao Kauthekar;, Police Head Constable attached to Police Station, Sailu, who had received oral report of the victim recorded the same and the victim signed on the report at Exhibit-12, giving rise to the offence, vide Crime No.150/1997 under Section 376(2)(f) of Indian Penal Code. PW 3 is mother of the victim – Smt. Laxmibai Sahebrao Wagh, she narrated the events as to how she has separated/severed the accused, when he was seen in compromising position. PW 4 – Govind Paul was PSI, who carried investigation in the said crime. PW 5 – Shriram Sakharam Solanke, Head Master of 4 Cri.AppealNo.401/1998 the school, who produced School Leaving Certificate of the victim, certifying that as per the record, her date of birth was 10.7.1985, admitted to 5th Std. On 19.3.1995. 5) Chemical Analyzer's report at Exhibit-17 concerning vaginal swab of the victim was negative for semen, CA report concerning under- garments of the accused and victim also did not inform of presence of blood or semen, blood group could not be determined. 6) The learned Additional Sessions Judge, based conviction to the testimony of the prosecutrix, treating it to be inspiring confidence to have full credence. He did not doubt entry of PW 3 at odd hours at 11.00 p.m. to the house of the accused/appellant and accepted that it was she, because of whom, further mishap with the victim could be checked or averted. 7) The victim has narrated in precision that while she was asleep, having realized sensational pricking to her body, she woke and saw the accused, attempting to penetrate his private part in her private part. Her resistance ensured the accused to gag her. Her mother rushed, she slapped twice or thrice to the accused. Her mother had indeed kicked the door 5 Cri.AppealNo.401/1998 of the house of the accused, came inside pursuant to victim's yelling and shouts. 8) In Examination-in-chief, in paragraph 2, she refers not visiting police station on Wednesday owing to her maternal aunt and uncle to be the guests at her house. After their leaving on Thursday, she went to the police station with her mother to lodge a report (Exhibit-12). 9) These events of Tuesday, Wednesday and Thursday are not matching to the dates referred herein before. However, avoiding fuss, the fact remains, there was substantial delay in loding F.I.R and explanation of her maternal uncle at her village and attending them, is unconceivable, not supported from any corner. Had the incident taken place in the village in the night since it has a Police Patil, the victim or her mother could have safely informed the brutality to him. However, no plausible reasons are assigned by PW 3. 10) The Police Station of Sailu being at 17 to 18 mks f rom village Salado, it was in the fitnes of situation, to have first informed the Police Patil. The time killed appears to be used in weaving an actionable case against the appellant/accused. 6 Cri.AppealNo.401/1998 11) The victim wants everybody to believe that while she was sleeping in the room with Chingi and brother of accused at around 10 to 11 p.m., accused lifted her skirt, removed her jangly and was attempting to penetrate his penis in her vagina. Victim's shouts could not attract attention of close-sleeping Chingi or Ching's brother, this has gone unexplained. 12) PW 3 explained about her coming late night to the effect that she wanted to ensure whether her daughter had properly slept or not at the house of Chingi. This is an illusory reason. She resides with victim after around 10 to 12 houses between the house of the accused and her house. In the first part, she has stated to be residing at Srinagar while Salado is 1 km away. At the odd hours, it is unconceivable, accused had kept the door unlatched, which made PW 3 to kick the door, enter and slap the accused. There was illumination of electric bulb. 13) Narration of PW 1, the victim, as stated above, does not get support from the Chemical Analyzer's report or the medical examination. There was no symptom of any ravishness at any part of her body least her private part. One can ignore presence of foreign fluid as it is not 7 Cri.AppealNo.401/1998 sine qua non for offence of rape. However, that by itself could not dilute the gravity of the matter. Prudence demands that such shaky evidence of prosecutrix needs corroboration. Corroboration could be by examination of a neighbour to illustrate visit of the victim for the purpose of accompanying Chingi to sleep with her. Corroboration could even be from evidence of Police Patil as to whether he received any communication why he did not forward it or what is strength of villagers. The victim when asleep with Chingi, cannot be said to be facing helpless resignation in the face of inevitable compulsion to resist ravishment of the accused. She had primari occasion to rebel against the accused. It is not that her consent in the sexual abuse/assault is to be believed. Her consent has become immaterial since she was a minor oscillating between 10 to 12 years on the date of the alleged incident, having born on 10.7.1985. 14) In the matter of Dines alias Buddha Vs. State of Firsthand – 2006 2 CC (Cri.) 1 the Hon'ble Lordships have indicated that, - "in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be 8 Cri.AppealNo.401/1998 extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated." 15) In this case, the situation demands corroboration as wife of the accused and PW 3 were on cross-terms, the reason being daughter of accused was defamed by PW 3, due to which, she was reprimanded even abused by wife of accused. There were controversies of collecting stitching charges by the accused from PW 3. Though balance dues of stitching charges are denied by PW 3, but it gives a ring that all was not well between family of PW 3 and the accused. The accused was not sent for medical examination, however, that will not absolve of his potency as firstly it is not disputed; secondly he has a daughter Chingi and a son. Evidence of PW 1, the victim, taking from any angle, leans to be under the thumb of her mother PW 3 to toe her mother unmindful of ostracism or stigma to be faced. These aspects call for interference in the conviction recorded by the learned Additional Sessions Judge as referred above. 9 Cri.AppealNo.401/1998 16) In the result, The Criminal Appeal is allowed. The conviction and sentence is set a side, Fine, if any, deposited be paid over to the appellant/accused after sixty days. The bail bond stands cancelled, surety discharged. Notice of enhancement of sentence, in view of the above, has lost its significance. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ Authenticate copy (BD VADNERE,PS)