1 Cri.Appeal.No. 427.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 427 OF 2009 Uttreshwar S/o Babu Kendre Age 22 years, Occupation Agriculture R/o Dongar- Pimpla,Ta. Ambajogai, District Beed. ...Appellant Original Accused V E R S U S The State of Maharashtra (Copy to be served on APP of Bombay High Court Bench at Aurangabad) ...Respondent ... Mrs. S.S.Jadhav, Advocate for appellants. Mr. N.H.Borade, A.P.P. for respondent-State. ... CORAM : A.V. NIRGUDE, J. DATED : 12TH APRIL, 2010 ORAL JUDGMENT : 1] This appeal is filed against the Judgment and order passed by the learned Additional Sessions Judge-2, Ambajogai, in Sessions Case No.49 of 2007 convicting the appellant for the offence punishable under section 376 and 448 of the Indian Penal Code and sentencing him to suffer R.I. for seven years and to pay a fine of Rs.5000/- in default of payment of fine he shall suffer further R.I. for six months and to suffer R.I for six months and to pay a fine of Rs.500/-, in default of fine he shall suffer further R.I. for one month for the offence punishable under Section 448 of the Indian Penal Code. 2] The prosecution case in short can be said as under- 2 Cri.Appeal.No. 427.2009 . On 27th August, 2006 at about 11.00 p.m., the appellant committed rape on the Prosecution Witness No.1 Ashwini, age 20 years, in presence of her husband (P.W.2-Mahadeo). The prosecution case also discloses that before committing of rape, the appellant threatened P.W.2 Mahadeo on the point of knife and asked him to keep quiet. After committing rape, the appellant left the spot and again threatened the couple of dire consequences, if they disclosed this fact to any one. On the next day morning, the parents of the P.W.2 Mahadeo arrived. All of them, then went to village shepwadi, where they met their relatives and thereafter on 30th August, 2006 at about 2.30 p.m. the complaint was lodged. The investigation was carried out and charge-sheet came to be filed. 3] The defence of the appellant was of total denial. The learned Judge of the lower Court recorded deposition of P.W.1-complainant- Ashwini, P.W.2 Mahadeo, husband of the complainant, P.W.3- Baburao father of P.W.2 Mahadeo, and P.W. Nos.4- Pramod, P.W.5- Babasaheb and 6-Madhukar are the panch witnesses, who turned hostile and did not support the prosecution case. P.W.8-Dr.Vandana was the Medical Officer, who examined P.W.1-complainant. P.W.7- Sayed Sadiq was the Investigating Officer. 4] Having gone through the judgment of the Court below, after perusal of evidence on record, following two questions arose for my consideration. 1] Whether prosecution has explained delay that had occurred in lodging of the complaint? 2] Even if, the delay is explained and explanation is accepted, whether the prosecution case as depicted by P.W.1 prosecutrix and P.W.2 Mahadeo, is believable? 3 Cri.Appeal.No. 427.2009 5] It is common ground that the marriage of P.W.1-complainant and P.W.2 Mahadeo had taken place in the month of May, 2006 and P.W.1 had came to reside with her husband, about a month prior to the incident. She said, after her marriage, she firstly reside with her husband's joint family at the village. She said, thereafter, she and her husband came to reside in the agricultural field, before 12 days prior to the incident. They used the cattle shed as their residence. This cattle shed, according to her, was made of tin shed roof and thatch wall. It is situated at a distance of two and half K.M. away from the village. She knew the appellant since prior to the incident. She said, she had seen him grazing his she-goats in the nearby agricultural field. She was also aware about the residence of the appellant, in the adjoining field belonging to one Jivraj, where Jivraj too had a cattle shed. She further said that, at about 5.00 p.m. on that day her husband returned to cattle shed and both of them had dinner at about 7.00 to 8.00 p.m. She then said that, since her husband was not well, he went to sleep little away from her on the ground, whereas she occupied the cot inside the cattle shed. She said, at about 11.00 p.m. the appellant came, he threatened her husband showing knife and asked him not to make noise. She said, he then came towards her and removed blanket form her person. She said, at that time, she woke up. She then said, he removed his clothes and then he committed rape on her. . On this aspect, her husband P.W.2 Mahadeo has narrated more or less similar story. He said, on that night he was sleeping on ground near his cow. His wife slept on cot inside the tin shed. He said, the appellant came there, he threatened him that if he made noise he would kill him and his wife showing a knife. He also threatened him not to enter the tin shed else he would kill his wife. He said, he then saw the appellant entered into tin shed and then ravished her 4 Cri.Appeal.No. 427.2009 sexually. He improved his wife's version by saying that appellant inserted handkerchief in her mouth and thereby gaged her. 6] Both these witnesses admitted that they did not raise any alarm during the incident or immediately after incident. Both of them admitted that they did not seek any help from the people residing in the neighbourhood. They neither went to village after the incident to report it to their family members or to the villagers. They kept quiet until next day, when P.W.2's parents came. After they came, they narrated the incident to them. P.W.1-complainant did not inform this ghastly incident to her parents or to her maternal Aunt, who admittedly is resident of same village. I think the entire evidence of the prosecution witness No. 1-complainant and P.W.2 Mahadeo is unbelievable. There is nothing on record to show that the prosecution witness No.2-Mahadeo is weak and feeble person and was unable to put up a fight. It is very difficult to believe his case that he kept quiet, when appellant threatened him of dire consequence, if he made noise, and with this threat he proceeded to ravish his wife. He admitted while ravishing P.W.1-complainant, the appellant was not holding the knife in his hand. He also stated that the act of ravishing was going on for few minutes and so there was ample opportunity for him launch his counter attack. Yet he did not assault or attack the appellant, while he was sufficiently vulnerable. It is unbelievable that in such situation P.W.2-Mahadeo would simply keep watching the appellant having forcible sexual intercourse with his wife. He could have certainly picked up stone or stick and could have attacked him. It is further very difficult to believe that after the appellant had sex with the P.W.1-complainant, he would have picked up his knife and would have threatened the couple once again of dire consequences and would leave quietly. While he was going away, P.W.2-Mahadeo could have attacked him from behind. In presence of P.W.2 Mahadeo the 5 Cri.Appeal.No. 427.2009 incident of rape was virtually impossible. Had Complainant been alone in her cattle shed, there was possibility of incident taking place in the manner, in which she had described it, but that is not the prosecution case at all. The evidence of Complainant is not supported with any other corroborative evidence. She with certainty stated that, after the intercourse the appellant ejaculated and his semen spilled on her person and her clothes. There is nothing on record to show that these clothes were washed and yet the C.A. report Exh.57 did not show the presence of semen on her clothes. I would not give much importance to the fact that the Medical Officer did not find any injury on the person of the victim. As said above, if entire evidence is discarded, there was no question that she has suffered any injury. Besides this, both the depositions of P.W.1 complainant and P.W.2 Mahadeo also suffered from material omissions. 7] Even evidence of the prosecution witness No. 3-Baburao is not worthy of reliance. He is an elderly person. When he received the information of rape on his own daughter-in-law, what could have been his reaction? He could have immediately rushed to the Police Station or Police Patil of the village. He could have called his relatives from village Shepwadi, instead of going there. It has come on record that, one of his relatives from village Shepwadi is serving in Police Department. He could have sent a message and called him and thereafter without further delay he could have lodged the FIR. The entire case of the prosecution is thus unbelievable. 8] All three prosecution witnesses No 1-complainant, P.W.2-husband of complainant and father of P.W.3 offer no explanation as to why on next date i.e. on 28th August, 2006, they did not go to Police Station to lodge the complaint. Assuming that, they thought it necessary first to 6 Cri.Appeal.No. 427.2009 consult their relatives, who were residing at Shepwadi, they did not offer any explanation as to why they did not lodge the complaint on 29th August,2006, after having consultation with their relatives at Shepwadi, on 28th August,2006. As said above, the FIR was lodged belatedly on 30th August, 2006 at 2.30 p.m. This delay in lodging of the FIR in my view is fatal to the prosecution case. 9] The learned Judge of the lower Court accepted the depositions of the P.W.1-Complainant and P.W.2 Mahadeo as gospel truth. The learned Judge of lower Court erred in holding that the Complainant was only 16 years old girl, when she herself told her age as 20 years, at the time of recording her deposition. The topic of age of the Complainant, it seems, abruptly came on record through the medico legal Certificate Exh.60 and deposition of P.W.8-Medical officer Dr. Vandana. She deposed, after examination of the Complainant she sent her for radiological examination to ascertain her age and then certified that the age of the Complainant was more than 14 years, but less than 16 years. This was never the prosecution case in the beginning. The learned Judge of the trial Court gave importance to this fact and opined that the Complainant is straight forward rustic illiterate lady, who would not speak lie. The learned Judge opined that the prosecution witness No.2 did not act in defence probably, because he was too scared. The appreciation of the evidence by the learned Judge of the trial Court is erroneous. The appeal should therefore succeed. The appellant is therefore entitled to acquittal. The appeal is allowed. O R D E R 1] The appeal is allowed. 7 Cri.Appeal.No. 427.2009 2] The impugned Judgment and order passed by the learned Sessions Judge-2, Ambajogai, dated 19th August, 2009, in Sessions Case No. 49 of 2007, convicting the appellant under sections 376 and 448 of the Indian Penal Code is set aside and the appellant is acquitted. 3] The appellant-Uttreshwar Babu Kendre shall be released from custody, if he is otherwise not required in any other case. 4] The fine amount, if deposited by the appellant-accused be refunded to him. Sd/- [ A.V.NIRGUDE, J.] MTK/ok