Cri.appeal 177/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 177/1999 Satish s/o Dnyanoba Yadav, Age : 29 years, Occu. Agril., R/o Borphal, Tq. Ausa, Dist. Latur. ...Appellant. Versus The State of Maharashtra, through P.P. in High Court at Aurangabad. ....Respondent. Mr. S.V. Warad, Advocate for appellant. Mr. S.N. Kendre, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J. Date : 7th December, 2010. ORAL JUDGMENT :- 1 This appeal is filed against the judgment and order passed by the learned Extra Joint Sessions Judge, Latur in Sessions Case No. 106/1997 dated 16/04/1999 convicting the appellant for offences punishable under Section 324, 452 and 376 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- with default clause for offence punishable under Section 376 of I.P.C., sentencing him further to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- with default clause for offence punishable under Section 324 of I.P.C. and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/- for the offence punishable under Section 452 of Indian Penal code. Cri.appeal 177/1999 2 2 The prosecution alleged that during the night between 2nd and 3rd February, 1995 the appellant committed criminal trespass in the house of the complainant, voluntarily caused her injury and then raped her. 3 The prosecution in all examined seven witnesses. It also placed reliance on certain reports sent by the Chemical Analyzer. 4 The prosecution witness No. 4 Head Constable Gutte stated that on 03/02/1995 at about 5.15 a m. while he was the Police Station Officer of the Ausa Police Station, complainant Shamabai came to him and lodged the complaint. He stated that an offence punishable under Section 354, 452, 324 of Indian Penal Code was made out from the narration of the complaint and he registered the offence as Crime No. 11/1995. In the cross examination, he admitted that complainant Shamabai did not tell him that the appellant had committed rape on her. But he stated that he nonetheless sent Shamabai to Medical Officer for treatment. He then added that she came back to the Police station thereafter. 5 The prosecution witness No.6 P.S.I. Kadam stated that on 03/02/1995 while he was working as P.S.I. At Ausa Police Station, prosecution witness No. 7 constable Bhure handed over to him investigation of Crime No. 11/1995. He said, on the very day he attached the cloths of the complainant under a panchanama. He said, on the very day he even arrested the appellant. He said, he seized the cloths of the appellant also under a panchanama. He said, on 05/02/1995 he sent the cloths of the parties to the Chemical Analyzer. He said, on 09/02/1995 the appellant ran away from his custody. He said, on the basis of certain statement made by the complainant, he realized that an offence punishable under Section 376 I.P.C. should Cri.appeal 177/1999 3 also be levelled against the appellant and so after taking permission of the Court, he added offence punishable under Section 376 of Indian Penal Code against the appellant. He sent charge sheet against the appellant while, he was still absconding. 6 The prosecution witness No.1 the, complainant stated that during that night, she was sleeping in the cattle shed which was situated in front of her house along with her daughter. She said, no other person was present in her house during that night. She said, at about 2.30 a. m., someone pulled her sari. She said, realizing that her husband was not at home, she asked as to who it was. She said, the person then assaulted her and took a bite at her right wrist and pressed her throat. She said, the person then raped her. She said, after committing rape, the person started to run away. She said, she followed him and identified him as the appellant. She said, the appellant was wearing a scarf around his neck at that time. She said, she pulled the scarf but the appellant ran away. She said, she thereafter started raising cries. She said, hearing her noise, the prosecution witness No.2 Namdev came there. She said, she narrated the incident to Namdev. She then said, she went to her mother’s house which was in the vicinity. She said, she narrated the incident even to her mother. In the morning, she said, she went to the Police station and narrated the incident to the police. She said, although she informed the police that the appellant had raped her, the police did not mention the same in her complaint. She said, thereafter she was referred to a lady Medical Officer who examined her. 7 The prosecution witness No.2 Namdev however gives a different story. He said, during that night, he was sleeping in his house. He said, the complainant came to him at about 2.30 a.m. and Cri.appeal 177/1999 4 told him that the appellant had raped her. He said, he also noticed bleeding injury on the complainant’s right wrist. He said, after pacifying the complainant, he went to the father of the appellant. 8 The prosecution witness No.3 Dhrupada, the mother of the complainant supported the complainant’s version that during that night at about 2.30 am., her daughter Shamabai had come to her weeping. She also stated that her daughter told her that the appellant had raped her etc.. 9 The question is whether the case of the prosecution is believable. The prosecution did not examine the Medical Officer and therefore, there is no documentary evidence that the complainant had sustained injuries on her wrist etc.. On the face of it, the entire case appears to be an exaggeration. After reading the examination in chief of the complainant, I found that this could not have been a case of forcible sexual intercourse at all. The complainant does not say that the appellant used any weapon to threaten her, neither she explained as to how he made her to submit to his sexual advances and how he could ultimately succeeded in raping her. The complainant asserted that during this scuffle, the appellant bit her on her wrist. But she did not say that due to the biting, she got scared and then stopped her resistance. The complainant no doubt reached the Police Station soon after the incident but her complaint there is no mention of forcible sexual intercourse. The Complainant’s evidence is untrustworthy of reliance. There is no corroboration to her deposition coming from the prosecution witness No.2. This witness did not admit that soon after the incident, he himself went to the house of the complainant and saw her weeping and raising alarm. On the contrary, he stated that it was the complainant who had come to him. Cri.appeal 177/1999 5 10 The complainant has asserted that she had informed the police about the rape but the prosecution witness No.4 head constable Gutte who was responsible police officer holding the post of the P.S.O., did not hear her stating that the appellant had raped her. If head constable Gutte could jot down the complaint as per the complainant narration, he could not have omitted about the narration of forcible sexual intercourse. Admittedly, head constable Gutte is not made an accused in this case for having committed an offence under Section 201 of I.P.C. i.e. causing disappearance of evidence of offence to screen offender etc.. So, I am not inclined to believe the case of the complainant that she was subjected to forcible sexual intercourse during that night. The charge under Section 376 of I.P.C. thus would fail. 11 The next question is whether the charge under Section 354 and 324 of I.P.C. is proved against the appellant. Even to this, the answer appears to be in negative. This conclusion is drawn mainly because the prosecution failed to prove the medical certificate showing the injuries on the complainant’s person. In absence of such evidence, it is unsafe to convict the appellant under Section 324 of Indian Penal code. If the prosecution fails to prove that the complainant had committed the offence punishable under Section 324 of I.P.C. and the other charges levelled against the appellant namely committing criminal house trespass and outraging modesty would also fail. In view of this, the appeal should succeed. ORDER The appeal is allowed. The judgment and order convicting the appellant under Section 324, 452, 376 of I.P.C. Cri.appeal 177/1999 6 is set aside. The appellant is acquitted. His bail bond stands cancelled. (A.V. NIRGUDE, J.) ts k/ok