1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 181 OF 1999 Nana s/o Punjaba Landge, Aged 39 years, Occupation Agriculture Labourer, Resident of 15, Chari, Rahata, Taluka Kopargaon, District Ahmednagar Applicant V E R S U S The State of Maharashtra, Through P.S.O. Rahata Police Station, Taluka Kopargaon, District Ahmednagar Respondent Mr. S.S.Choudhari, Advocate for the applicant Mr. S.G. Nandedkar, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 6th September, 2010 JUDGMENT 1. This Criminal Revision Application is filed against the Judgment and order of dismissal of the appeal passed by the learned Additional Sessions Judge, Kopargaon, dated 25th May, 1999, in Criminal Appeal No. 26 of 1992. The applicant was the appellant before the lower Appellate Court. The appellant was charge-sheeted for the offences punishable under Sections 376, 506 of the Indian Penal Code and under Section 135 of the Bombay Police Act and was convicted by the learned II Assistant Sessions Judge, Ahmednagar for the offence punishable under S.376 IPC. 2. Facts: The complainant Alka and her husband Satish, on 15th March, 1998, at about 09.30 a.m., went to the agricultural field of one Dadasaheb to take away leftover sugarcane leaves. At that time, even the applicant was collecting the leftover sugarcane leaves. The complainant and her husband collected cart load of leaves and 2 loaded them in a bullock-cart. Satish left with the bullock-cart to his residence and he was to come back for more leaves. The complainant continued the work of collecting the leaves. In the mean time she went to drink water at the well, and while returning from the well, the applicant accosted her and then forcibly took her to sugarcane crop gagging her mouth, and then, brandishing a knife, compelled the complainant to submit herself for his sexual advances. There, he pulled her down between the rows of the sugarcane crop and had sexual intercourse with her. While this was going on, the complainant raised alarm. Hearing her alarm, Baby, the wife of the applicant, came there and saw the incident. She protested. The applicant silenced her with a threat. Thereafter, the complainant came back to the open area where she was collecting the leaves. Soon thereafter, her husband came there. He found her weeping and her clothes were torn. She narrated this incident to him. They then went back to their house. After due consultation with the family members, the complainant, ultimately, at about 07.00 p. m. on that day, lodged her complainant with the police. Soon thereafter, the complainant’s clothes were seized and she was subjected to medical examination. The applicant was also arrested during the same evening and he was also sent for medical examination after his clothes were seized. 3. The Sessions Case was then tried before the II Assistant Sessions Judge, Ahmednagar, and after recording evidence of twelve witnesses, the learned Judge, believing the evidence of the complainant, convicted the applicant under Section 376 of the Indian Penal Code and sentenced him to suffer three years rigorous imprisonment and to pay a fine of Rs.500/- etc. 4. The applicant challenged this Judgment before the learned Additional Sessions Judge by filing an appeal. After hearing both the sides, the learned Additional Sessions Judge dismissed the appeal. 3 5. The deposition of the complainant was believed by the Courts below though nothing incriminating was found on her medical examination. As said above, the complainant was subjected to medical examination soon after the incident. But, the Medical Officer stated in his deposition and also in the certificate that he did not find any signs of rape on the person of the complainant. He further noticed that no injuries were found on the person of the complainant and neither there was any swelling or inflammation on her private part. He admitted that if the woman is subjected to sexual intercourse in the manner which is alleged in this case, she could have sustained some minor abrasions, bruises on her back and also on her private part. This part of the prosecution case being vulnerable while the matter was before the lower Courts, the applicant tried to take advantage of it. Even before me, the learned Advocate appearing for the appellant contended that in absence of medical evidence, the testimony of the complainant should not be believed. In order to substantiate his submission, he placed reliance on a Judgment of Supreme Court in the case of Devinder singh and others Versus State of Himachal Pradesh reported in AIR 2003 S.C. 3365. The reported case was of gang rape. Four persons allegedly raped the complainant, but after more than six days, the complaint was lodged. After the complaint was lodged, the complainant was sent to Medical Officer and he found no marks of injury on her person. On facts, the Supreme Court disbelieved the prosecution case. I am afraid, the appellant can not place reliance on this judgment. But, the Courts below dealt with this aspect very deftly. The learned Judge of the Appeal Court rightly rejected this argument saying that considering the physique of the assailant (he had seen the appellant in his court) and having regard to the fact that he belonged to her husband’s brotherhood, the complainant probably was so shaken and frightened that she had no courage to fight back. The learned Judges also took 4 note of the fact that at the scene of offence, broken pieces of bangles of the victim and broken buttons of her blouse were also found. I find no error in the manner in which the learned Judges of the lower Court appreciated this aspect of the case. In addition to this, both the Courts below took note of the fact that the husband of the complainant when came to her immediately after the incident noticed her torn clothes. The state of clothes of the complainant clearly established her case of rape. 6. The defence of the applicant all throughout was that the complainant falsely implicated him in this case, because some enmity had developed between the family of her husband and his cousins including the applicant. The Courts below dealt with this aspect and held that there was no possibility of the complainant’s making such serious allegation against the applicant on such a remote and trivial issue. Much capital was sought to be made out from the admitted fact that the complainant and her husband first went to their family members, had consultation for few hours before lodging the complaint. It was suggested that they hatched a conspiracy during that time. The learned Judge of the Appeal Court dealt with this aspect appropriately. He mentioned that the act of the complainant and her husband of consulting their elders in the family was quite natural. The learned Judge of the lower Appeal Court observed “.......I find that this is the natural way when certain married woman is sexually violated. Caution is taken. It is not a question of the woman herself. There is also reputation of both the families i. e. maternal and paternal side. Before approaching the police, it is always discussed what would be the repercussion of the filing of the report to the police.”... “A woman, who is brought up in a traditional family will be reluctant to take dishonour on her person(sic) by making such allegations against a person, who is from brotherhood of her husband, who also resides in the fields. It may be kept in mind that these all persons are from agricultural labour family. They have to face each other everyday at any odd time. The 5 prosecutrix would have to brave the whole world. She is likely to loose respect from her near and dear. Considering all these factors, I rule out possibility of any false implication of the accused person.” ... “Over and above, it is not suggested by the defence that the prosecutrix is a woman of less virtues”. I fully endorse the view expressed above. 7. The learned Advocate appearing for the applicant is quite critical of the manner in which the learned Judges of the lower Courts appreciated the evidence on the record. He asserted that the learned Judges of the lower Courts erred in placing reliance on almost uncorroborated evidence of the complainant. He suggested that in absence of medical evidence, they should have disbelieved her evidence. The learned Advocate appearing for the appellant placed reliance on the Division Bench Judgment of our High Court in the case of Anmol versus State of Maharashtra reported in 1999 Cri.L.J. 4239. The facts of the reported case were quite different. It was gang rape, and the report was made almost after four days. Though the trial Court believed the testimony of the complainant / victim, the learned Judges of the Division Bench did not believe it. The reasons are mostly on facts. It was held that in absence of corroboration to her testimony, it was unsafe to convict the accused. In a case of rape, corroboration to the evidence of the victim is not always necessary. It depends on the facts of each case. As stated above, since the learned Judges of the Courts below believed the uncorroborated testimony of the complainant / victim, and in view of the sound reasons, they recorded, for placing reliance on her testimony, I am inclined not to disturb the findings of the Courts below and I am inclined to rely on the Judgment referred to above. However, this aspect of the matter was also discussed by the learned Judge of the Appeal Court. He emphasized in his Judgment that the law permits conviction on the basis of sole testimony. The learned Judges of the lower Courts also placed reliance on a very important circumstance. Viz. After the incident, the prosecution sent samples of 6 the applicant’s blood and semen for chemical analysis and it was found that his blood group is “B”. The clothes of the complainant were also found stained with semen of blood group “B”. The learned Judge of the Appeal Court rightly observed that though this circumstance was not a conclusive proof, but is an adverse circumstances and can be used against the applicant. The Revision should therefore fail. Revision stands dismissed. The applicant shall surrender to his bail forthwith. Since the applicant is not present before the Court despite directions to that effect, issue arrest warrant against the applicant. (A.V. NIRGUDE, J.) SRM/CRA/181/99/ok