1 176.10 Cri.Revn. Appln. IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION No. 176 OF 2010 Dilawar Ganibhai Sayyad, Age 47 years, Occu. Labour, R/o Somayya Farm Lakh Shivar, Tq. Rahuri, Dist. Ahmednagar APPELLANT VERSUS The State of Maharashtra RESPONDENT ..... Ms. Shobha Adkine, Advocate for appellant (appointed) Shri N.H. Borade, APP for respondent / State ..... CORAM : U.D. SALVI, J. DATED : 2 nd & 13 th December, 2011. PER COURT : 1. This Criminal Revision Application questions the legality and propriety of the judgment and order dated 17-04-2010 passed by the learned Additional sessions Judge, Shrirampur, District Ahmednagar in Criminal Appeal No. 14/2010. 2. Criminal Appeal No. 14/2010 arose out of judgment and order convicting the applicant/ accused under Section 376 and 506 of Indian Penal Code, 1860 in Sessions Case No. 27/2009. Learned Adhoc Assistant Sessions Judge, Shrirampur, District 2 176.10 Cri.Revn. Appln. Ahmednagar on convicting the applicant/accused under Section 376 and 506 of Indian Penal Code, 1860 sentenced him to suffer R.I. for seven years and to pay fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month on first count, and further to suffer R.I. for a period of one month and to pay fine of Rs. 100/- and in default to suffer simple imprisonment for 15 days on second count. 3. The prosecutrix, a 55 year old married lady from Village Songaon Taluka Rahuri, District Ahmednagar, lodged a complaint against the applicant/ accused on 8-12-2007 with Taluka Police Station, Shrirampur. She alleged that the applicant/accused approached her at her residence at Songaon around 4.00 p.m. on 06-07-2007 and invited her to programme of “Kandori” at his village at Village Ladgaon, and thereupon she accompanied the applicant on a bicycle and left her residence around 5.00 pm. She stated that on the way near Village Ladgaon, the applicant/ accused took her to bushes and raped her despite her pleading that she is like his mother. She revealed that applicant/ accused pressed her neck and made her fall down forcibly. She further revealed that she was mortally threatened by the applicant/ accused, if she disclosed the said fact to anybody; and thereafter she was taken to his residence at Ladgaon, where she had disclosed this fact to his wife and 3 176.10 Cri.Revn. Appln. mother, and on next day she also disclosed this fact to one Vajir, and thereafter her family members were informed about the said developments and she had lodged the complaint before the Police thereafter. 4. The prosecutrix was referred to Civil Hospital, Ahmednagar, after registration of Crime at Crime No. I 25/2007 under Section 376 and 504 of Indian Penal Code, 1860 with Taluka Police Station, Shrirampur. During the investigation her clothes were seized and spot panchanama recording the circumstances at the spot of offence as revealed by the complainant was made. Seized articles were sent for forensic investigation and on completion of investigation the accused was charge sheeted in the Court of Judicial Magistrate, First Class, Shrirampur. 5. In due course, the case was committed to the Courts of Sessions and the applicant/ accused was tried by the learned Adhoc Assistant sessions Judge, Shrirampur, District Ahmednagar. The prosecution examined seven witnesses including the prosecutrix and Vajir who was instrumental in taking the prosecutrix to the police. The prosecutrix deposed that the accused pressed her neck and made her fall down, and, thereafter, committed forcible intercourse near the thorny bushes on the way to Ladgaon 4 176.10 Cri.Revn. Appln. around 11.00 p.m., and yet she had not sustained any injury on her neck. She deposed that she had left her residence around 5.00 p.m., when her husband was at the residence. She also revealed in her cross-examination that she was not on visiting terms with the applicant/ accused. Evidence of PW-2 Azam Patel; Panch to the scene of offence Panchanama (Exh. 13), revealed in his evidence that spot of incidence shown by prosecutrix was near the thorny bushes and surface at the spot was rough, and no signs of any occurrence of untoward incident could be noted at the spot. Seizure of Petticoat and knicker articles A & B respectively from the prosecutrix under the seizure memo (Exh. 15) on 08-12-2007 was testified by Afsana Abdul Shaikh. 6. In medical evidence, PW-4-Dr. Sudha Kamble revealed that no injury on the person of the prosecutrix was found in the medical examination conducted by her on 8-12-2007. She deposed that for getting opinion regarding rape, the prosecutrix was transferred to higher center for examination by gynecologist. 7. PW-5-Vajir Shaikh deposed that on 08-12-2007, the prosecutrix and her husband came to his residence when he was on duty, and on getting a call from his son he came to his residence and learnt from the prosecutrix the story of the crime 5 176.10 Cri.Revn. Appln. committed by the accused, and at the instance of the prosecutrix he had taken her to the police, where she had lodged the complaint. 8. PW-6-Arun Janorkar, Police Inspector deposed that the prosecutrix came to Shrirampur Taluka Police Station and had lodged a complaint against the applicant/ accused, whereupon the crime was registered and the investigation was commenced. He gave account of the investigation carried out by him at the spot of incident, and of the seizure of clothes of the prosecutrix under seizure Panchanama (Exh. 15). Virtually, PW-6-Arun Janorkar conducted the material Investigation. PW-7 Chandrakant Kshtriya took over investigation from PW-6-Arun Janorkar and got the accused medically examined. 9. The applicant/ accused denied his involvement in the crime and revealed in his statement under Section 313 of Criminal Procedure Code, 1973 that during quarrel with the prosecutrix he was threatened by the prosecutrix to involve him in a case, and accordingly, he was falsely implicated in the case. A question, therefore, arises that in given circumstances whether it was proper for the learned trial Court to have believed the sole testimony of the 6 176.10 Cri.Revn. Appln. prosecutrix? particularly in absence of any medical evidence in support of the prosecutrix. 10. Evidence of prosecutrix reveals certain facts the cognizance of which ought to have been taken by the Courts below. Firstly, the prosecutrix had revealed that though the accused was brother of her son-in-law she was not on visiting terms with him and there was a quarrel between them at the house of her daughter. She also revealed that on the day of the incident, when the accused came to her house, her husband was in the house. Secondly, her evidence reveals that the accused had taken her to thorny bushes, asked her to sleep with him and at that time she had resisted him curiously enough the prosecution had not examined any one either from her house hold or from village Ladgaon to say that at the material time the accused and prosecutrix were either seen together at Ladgaon or were seen leaving leaving Songaon. It was unlikely for woman of her age and marital status to leave alone for ‘Kanduri’ programme with whom she was not on visiting terms. Particularly in response to spot invitation given by the accused to visit the ‘Kanduri’ programme and when, her evidence reveals, message for attending programme used to be received a day before such programme. With this evidence on record, it was improper for the learned trial Court not 7 176.10 Cri.Revn. Appln. to seek any corroboration to the testimony of the prosecutrix. In absence of corroboration to the testimony of the prosecutrix, the possibility of false implication of the appellant/ accused, with whom the relations were not cordial, is not completely ruled out. The prosecutrix even disclosed in her cross-examination that when she went to the Police Station for lodging First Information Report, PW-5 Vajir Shaikh had named the accused and First Information report was narrated by PW-5-Vajir and her husband. This disclosure further compounded the issue in favour of the appellant/ accused and made the corroboration imperative in the present case. 11. In view of the aforesaid discussion, this Criminal Revision Application needs to be allowed, hence order. I] Judgment and Order dated 09-02-2010 passed by the learned Adhoc Assistant Sessions Judge, Shrirampur, District Ahmednagar in Sessions Case No. 27/2009 as well as Judgment and order dated 17-04-2010 passed by the Additional Sessions Judge, Shrirampur, Dist. Ahmednagar in Criminal Appeal No. 14/2010 are set aside. The applicant/ accused is ordered to be set at liberty unless required in any other case. Fine amount, if any, paid be refunded. 8 176.10 Cri.Revn. Appln. . Fess of Rs. 3,000/- (Rs. Three thousand only ) be paid to learned Advocate Ms. Shobha Adkine appointed for giving legal aid to the applicant/ accused. ( U.D. SALVI, J. ) SDM* December-11