Apeal-489-05 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.489 OF 2005 Rattan Suka Lilke, Age 27 Years, Occup.: Service, R/a. Gaonshigaon, Trimbakeshwar, Tal. Trimbakeshwar, Dist. Nashik. ... Appellant Versus State of Maharashtra, Thru’ Trimbakeshwar Police Station, Tal. Trimbakeshwar, Dist. Nashik ... Respondent Mr. M.S. Karnik for the Appellant. Smt. V.R. Bhosale, APP, for the Respondent-State. CORAM : A.M. THIPSAY, J. DATE : 23 RD SEPTEMBER, 2011. ORAL JUDGMENT {PER A.M. THIPSAY, J.} : 1. The Appellant was the original Accused No.2 in Sessions Case No.211 of 2002, which was tried by the Additional Sessions Judge, Nashik. The learned Additional Sessions Judge convicted the Appellant of an offence punishable under Section 366 of the Indian Penal Code read with Section 34 of the Indian Penal Code and also of an offence punishable under Section Apeal-489-05 2 Dixit 376(2)(g) of the Indian Penal Code. The learned Additional Sessions Judge sentenced the Appellant to suffer R.I. for three years and to pay a fine of Rs.300/- with respect to the offence punishable under Section 366 of the IPC, read with Section 34 of the IPC, and R.I. for 10 years and fine of Rs.500/- with respect to the offence punishable under Section 376(2)(g) of the IPC. The Appellant, being aggrieved by the said judgment and order of conviction and sentence, has appealed to this Court. 2. I have heard Mr. M.S. Karnik, the learned Counsel for the Appellant, and Smt. V.R. Bhosale, the learned APP for the Respondent-State. I have been taken through the evidence adduced before the trial Court. I have also been taken through the impugned judgment and order. 3. The case of the prosecution before the trial Court was as follows :- . The prosecutrix, (name not mentioned in order to ensure non- disclosure of identity), who was at the material time unmarried, was residing with her parents. The father of the prosecutrix was an agriculturist and the family of the prosecutrix used to work in the fields. That, on 19th Apeal-489-05 3 Dixit October, 2010, the parents of the prosecutrix had gone to the field. However, as the prosecutrix was suffering from headache, she had not gone with them and had remained at the residence. That, at about 3:00 p.m. to 4:00 p.m., the headache stopped and as the prosecutrix felt alright, she started going to the field. That, when the prosecutrix had reached near the field of one Rangnath Thamake, which is situate at some distance from the field of the family of prosecutrix, the original Accused No.1 Rajaram Kalu Namede came there in a jeep. The prosecutrix knew him, he being the resident of the same village as that of the prosecutrix, namely, Ganeshgaon. The said original Accused No.1 caught hold of the hand of the prosecutrix and took her inside the jeep. The prosecutrix asked him to leave her hand, but the original Accused No.1 did not release the hand. That, he started taking the jeep to the side of Ozarkhed Road. While on the way, the Appellant came from the opposite direction in a tempo. That, the Appellant stopped the tempo by the side of the road and got into the jeep. The Appellant started driving the jeep. The original Accused No.1 then put his hand around the body of the prosecutrix by coming on the back side seat. He touched the breast of the prosecutrix with his hand, causing scratches on her body. The jeep reached to Ozarkhed Bari. The Appellant stopped the Apeal-489-05 4 Dixit jeep. The Appellant went out of the jeep and waited by the side of the jeep. The original Accused No.1 then removed his clothes, removed the clothes of the prosecutrix and had sexual intercourse with the prosecutrix, though the prosecutrix had tried to push him and to remove him from her person. The original Accused No.1 had threatened her that if she would disclose about the incident to anyone, then he would kill her. Thereafter, the original Accused No.1 dropped the prosecutrix near a bridge Shivangaon Farshi. At that time, the original Accused No.1 again threatened the prosecutrix. . The prosecutrix then went to her home. Her parents returned from the field at about 7:00 p.m. On the next day, the prosecutrix told about the incident to her parents. . The matter was thereafter reported to the Police. Subhashchandra Shivajirao Borse (PW-5), attached to Trimbakeshwar Police Station at that time, recorded the statement of the prosecutrix and treated the same as the First Information Report (Exhibit-26). On the basis thereof, a case in respect of offences punishable under Sections 366 IPC, 376 IPC and 506 of the IPC was registered against the original Accused No.1 and the Appellant. Apeal-489-05 5 Dixit . In the course of investigation, the prosecutrix was referred for medical examination. She was examined by Dr. Madhukar Yashwant Shankpal (PW-1) who was attached to the Civil Hospital, Nashik. On the next day, she was examined by Dr. Kanchan Narayan Wanere (PW-4), a Gynaecologist. . During the trial, totally five witnesses were examined for the prosecution, four of whom have been already referred to above. Balu Ambu Dahale, father of the prosecutrix, was examined as Witness No.3 for the prosecution. 4. It is contended by Mr. M.S. Karnik, the learned Counsel for the Appellant, that there was no evidence to hold the Appellant guilty. He also submitted that, even as regards the original Accused No.1, there was no satisfactory evidence. He submitted that the evidence on record at-least creates a doubt that the prosecutrix was probably a consenting party, and that the original Accused No.1 was also entitled for the benefit of such doubt. He further submitted that, in any case, there was no basis for holding the Appellant guilty of the alleged offences. Apeal-489-05 6 Dixit 5. It is to be understood that it is not the case of the prosecution that the Appellant had raped the prosecutrix. It is not the case of the prosecution that the Appellant had abducted the prosecutrix. The case of the prosecution is that the prosecutrix was abducted by the original Accused No. 1 in order that she might be forced or seduced to illicit intercourse, and that the prosecutrix was, thereafter, raped by the original Accused No.1, in furtherance of the common intention of the said original Accused No.1 and the Appellant. 6. On a consideration of the evidence adduced, the trial Court came to the conclusion that, not only the original Accused No.1, but the Appellant was also guilty of an offence punishable under Section 366 of the IPC, read with Section 34 thereof, as he had shared such a common intention with the original Accused No.1. The trial Court also observed that since the Appellant had stood by the side of the jeep when the prosecutrix was being raped by the original Accused No.1 and since the Appellant was guarding the place, the Appellant was guilty also of an offence punishable under Section 376(2) (g) of the IPC. Apeal-489-05 7 Dixit 7. On the basis of the facts alleged, the proper charge against the Appellant would have been of abetting the offences in question by the original Accused No.1, rather than accusing that the acts in question were done by the original Accused No.1 and the Appellant in furtherance of the common intention of both of them. 8. Before proceeding further, it must be recorded that the original Accused No.1 had also preferred an Appeal from his conviction and sentence (Criminal Appeal No.545 of 2005), which came to be decided by me on 16th September, 2011. The learned Advocate for the original Accused No.1 – the Appellant in the said Appeal – did not contest the said Appeal on merits of the conviction, but kept his submission confined to the sentences imposed upon the said original Accused No.1. All that was urged was that a lenient view of the matter with respect to the sentence be taken. In view of this concession made by the Advocate for the Appellant in the said Appeal, a closer examination of the evidence adduced before the trial Court for ascertaining the correctness of the conclusion of guilt arrived at by the trial Court, was not thought necessary and it was not meticulously examined Apeal-489-05 8 Dixit whether the finding of the guilt recorded by the trial Court was proper and legal. The Appeal was disposed of by maintaining the conviction, in view of the concession made by the Advocate for the Appellant, and by reducing the substantive sentence imposed upon the said original Accused No.1 with respect to the offence punishable under Section 376(2)(g) of the IPC for the reasons mentioned in the order disposing of the said Appeal. 9. The question is whether because the conviction of the original Accused No.1 with respect to the aforesaid offences was not disturbed in the Appeal filed by him before this Court, the present Appellant is also precluded from canvassing that no case had been made out even against the original Accused No.1. In my opinion, the Appellant would not be precluded from making such a submission for the reason that the said Appeal filed by the original Accused No.1 was decided on the basis of the concession made by the Advocate appearing for the original Accused No.1. It is not that the arguments which are now sought to be advanced on behalf of the present Appellant were advanced during the course of hearing of the said Appeal, and that such arguments were not found acceptable to this Court. The issue regarding the guilt of the said original Accused No.1 was examined only Apeal-489-05 9 Dixit superficially, in view of the concession made by his Advocate, and, therefore, there would be nothing wrong if the present Appellant is allowed to make submissions with respect to the evidence against the original Accused No.1 also. Obviously, whether the charges against the said original Accused No.1 have been proved or not would be extremely relevant in the context of the conviction of the present Appellant and the Appellant should be allowed to raise those issues in the process of challenging the correctness of his own conviction, as has been recorded by the trial Court. 10. In this case, admittedly, the prosecutrix is above 18 years of age. It is for this reason that the offence punishable under Section 363 of the IPC, in respect of which originally a charge was framed, appears to have been given up. 11. Mr. Karnik, the learned Advocate for the Appellant, urged that the evidence of the prosecutrix suggests that she was a consenting party to the act of sexual intercourse. He submitted that it was not possible for the original Accused No.1 to forcibly drag her inside the jeep single handedly. He also submitted that while the original Accused No.1 was driving the jeep, Apeal-489-05 10 Dixit he could not have held the prosecutrix, and that the prosecutrix had enough opportunity to shout or raise cries. He also submitted that, admittedly, the jeep driven by the original Accused No.1 had stopped for some time before the Appellant got down from the tempo, which he was driving, and stepped into the jeep, and that the prosecutrix had an opportunity to escape at that time. According to him, the prosecutrix had not offered any resistance at all, and that the facts that are revealed from the evidence indicate it to be a case of consent. 12. I have carefully considered the evidence of the prosecutrix and the medical evidence in this context. Indeed, it appears to be difficult to me that the original Accused No.1 would be able to drag the prosecutrix inside the jeep single handedly. If the prosecutrix would offer resistance, it would not be easy for the original Accused No.1 to be able to drag her inside the jeep without causing certain injuries to the prosecutrix as well as to himself. 13. It must be observed here that, that act of sexual intercourse took place between the prosecutrix and the original Accused No.1 on or about 19th October, 2002, cannot be doubted. The medical examination of the Apeal-489-05 11 Dixit prosecutrix indicated that there was a fresh rupture to the hymen and, in my opinion, this corroborates version of the prosecutrix so far as the act of sexual intercourse is concerned. One has to proceed, therefore, on the basis that the act of sexual intercourse between the prosecutrix and the original Accused No.1, indeed, took place. However, there are certain aspects of the matter which create a doubt as to whether the sexual intercourse in question had taken place against the will of the prosecutrix or without her consent. 14. It may be recalled that the prosecutrix did not go to work in the field along with her parents by claiming that she was suffering from headache. According to her, she felt alright at about 3:00 p.m. to 4:00 p.m. whereafter she decided to go to the field, and that the incident took place while she was so proceeding. Thus, according to her version, the meeting between the original Accused No.1 and her was purely accidental and a matter of chance. 15. The injuries that were sustained by the prosecutrix were as follows :- Apeal-489-05 12 Dixit “(i). Nail scratch injury on right side of neck; (ii). Multiple abrasions on back, right side of size 1 x 1 cm.; (iii). Abrasion on right side of back size 5 x 6 cms. (iv). Bruising plus on the chest of the size 0.5 x 1 cm.” 16. It can be noticed that all these injuries are minor and do not show the signs of any resistance put up by the prosecutrix, either at the time of dragging her inside the jeep, or during the act of sexual intercourse. Interestingly, according to Dr. Madhukar Shankpal (PW-1), the history of injuries at Sr. Nos.1, 2 and 3 above, as given by the prosecutrix to him, was that they were by beating of her father. It is only the Injury No.4 that the prosecutrix claimed to have been caused by the original Accused No.1. 17. There is some discrepancy in the evidence of the prosecutrix and the evidence of her father Balu (PW-3) as to when the incident in question was allegedly reported by the prosecutrix to her parents. In her evidence, the prosecutrix claims that she reported the incident to her parents on the next day, and that, thereafter, she went to the Police Station. However, when the First Information Report was shown to her, she admitted that she had been to the Police Station after three days from the incident. According to Balu Apeal-489-05 13 Dixit (PW-3) - father of the prosecutrix - the prosecutrix disclosed the incident to him on the same day on which it took place, which, according to him, was a Saturday. According to him, however, the matter was reported to the Police on Wednesday. The delay in reporting the matter to the Police is not satisfactorily explained either by the prosecutrix or by her father Balu (PW-3). 18. There is also a denial of the fact, that the prosecutrix was beaten by her father Balu (PW-3), by both of them. However, in my opinion, the evidence of Dr. Madhukar Shankpal (PW-1) that the prosecutrix had given the history of some injuries found on her person as sustained by beatings of her father, has to be accepted. The evidence of Dr. Madhukar Shankpal (PW-1) is supported by the contemporaneous record which is in the nature of entries made by him in the case papers (Exhibit-23) and it is inconceivable that the Doctor would make such false entries without any reason. Once it is accepted that the prosecutrix had given such history of certain injuries to the Doctor, when she was medically examined, the fact that now she as well as her father are denying that she was ever beaten by her father gives rise to a suspicion that the beating may have something to Apeal-489-05 14 Dixit do with the alleged incident. One may observe that such beating, if related to the alleged incident, would be more in consonance with the possibility of the belief on the part of the Balu (PW-3) – father of the prosecutrix – that there was a consensual sexual intercourse, rather than the prosecutrix being a victim of rape. It is quite possible that it is for this reason that the prosecutrix and her father find it convenient to deny that the prosecutrix was beaten by her father. 19. The evidence of Dr. Kanchan Wanere (PW-4), a Gynaecologist, that the medical examination revealed the case of forceful intercourse does not, in my opinion, advance the theory of rape. This witness has stated that, on examination of the private parts of the victim, she found the valva, vagina and perineum to be normal. She has also stated that there were signs of fresh hymeneal rupture, and that on P.V. examination, tenderness was found present in vagina. When she was asked to clarify what she meant by ‘forceful intercourse’, she stated that, according to her, forceful intercourse means ‘intercourse against the will of the patient’. 20. I am not able to accept the opinion of this witness that the medical Apeal-489-05 15 Dixit examination showed the case to be one of rape. Undoubtedly, it showed the case of sexual intercourse, but that would be quite distinct from claiming that it was a case of rape. This witness has opined that the intercourse had taken place for the first time and the prosecutrix was not habituated to sexual intercourse. In that case, the injuries, as noticed by this witness, were bound to be caused even in case of consensual sexual intercourse. The term ‘forceful’ was, apparently, used to indicate use of some force, but to claim from this, that it would show absence of consent on the part of the woman, would not be correct, particularly because according to the witness it was a case of first sexual intercourse by the victim. 21. The injuries, as were found on the person of the prosecutrix by Dr. Madhukar Shankpal (PW-1) and Dr. Kanchan Wanere (PW-4), are not incompatible with the case of sexual intercourse by consent. 22. A number of other contentions are also raised by Mr. Karnik, the learned Advocate for the Appellant, in support of his claim that there was no satisfactory evidence even against the original Accused No.1. However, in view of the fact that the Appeal filed by the original Accused No.1 has been Apeal-489-05 16 Dixit disposed of without disturbing the conclusion arrived at by the trial Court with regard to his guilt – albeit on concession made by the Counsel – I do not wish to go any deeper into this aspect. What needs to be observed in the context of the present Appeal is, however, that there is no evidence that any resistance put forth by the prosecutrix. The trial Court has relied upon the presumption under Section 114-A of the Evidence Act to hold the charge of rape as against the original Accused No.1 proved. As aforesaid, no probe into that aspect of the matter in the present Appeal is warranted and certainly in this Appeal, this Court would not be required to evaluate the evidence against the original Accused No.1 so as to pronounce a verdict as regards the guilt or innocence of the said accused. The aforesaid discussion with respect to the possibility of the sexual intercourse between the prosecutrix and the original Accused No.1 being consensual became necessary only incidentally, as the contention of the Appellant is that he had no idea of the intention, if any, of the original Accused No.1 to have forcible sexual intercourse with the prosecutrix. 23. The question that needs to be decided in the present Appeal is whether the present Appellant can be said to have shared any common Apeal-489-05 17 Dixit intention between the said original Accused No.1 and him, or, in the alternative, whether the present Appellant can be said to have abetted the commission of the offences in question by the original Accused No.1. In the context of the arguments advanced by Mr. Karnik, the learned Counsel for the Appellant, what requires to be examined is whether there is evidence to indicate that the Appellant was aware of the intention of the original Accused No.1 to rape the prosecutrix. 24. It may be recalled that, according to the prosecutrix, she met the original Accused No.1 accidentally. That, she had stayed at home because of headache and, that, when she felt alright, she decided to go out. Obviously, if the things had happened this way, then, that she would be found at that particular place could not have been known to the Appellant. Thus, the first relevant aspect would be that the Appellant met the prosecutrix and the original Accused No.1 accidentally and he could not have had any idea - if the version of the prosecutrix is accepted - that he would be meeting the original Accused No.1 and the prosecutrix. 25. Admittedly, when the prosecutrix was allegedly dragged inside the Apeal-489-05 18 Dixit jeep by the original Accused No.1, the Appellant was not present. The jeep was being driven by the original Accused No.1. It is only after the original Accused No.1 had taken the prosecutrix in the jeep to a certain distance, that the Appellant came in picture. The Appellant was said to be sitting in his tempo, which was standing by the side of the road, when the original Accused No.1 and the prosecutrix were proceeding in the jeep. Obviously, the presence of the Appellant on the spot was accidental. If it is to be suggested that the meeting of the prosecutrix and the original Accused No.1 and, further, their meeting the Appellant was pre-planned, it would change the complexion of the case entirely and would indicate that the prosecutrix was a consenting party. Thus, looked at from any angle, it has to be accepted that the Appellant met the prosecutrix and the original Accused No.1 accidentally. 26. According to the prosecutrix, after the original Accused No.1 had stopped his jeep on seeing the tempo of the Appellant, the Appellant got down from his tempo and got inside the jeep. The prosecutrix has then stated that the Appellant started driving the jeep. The prosecutrix does not state that any talk took place between the original Accused No.1 and the Apeal-489-05 19 Dixit Appellant, but it is obvious that there must have been some talk between the Appellant and the original Accused No.1, without which the Appellant could not have got inside the jeep and started driving the same. It appears to me that, that the prosecutrix has avoided stating what talk took place between the original Accused No.1 and the Appellant, is also quite significant. 27. It also appears that the prosecutrix was probably sitting in the jeep on the back seat, even while the original Accused No.1 was driving the same, though, at some place, the prosecutrix has suggested that she was sitting on the front seat itself before the Appellant came in the jeep. Any way, the place where the original Accused No.1 and the prosecutrix were sitting is not very significant, in as much as, according to the prosecutrix, after the Appellant sat in the jeep and started driving it, the original Accused No.1 came on the back seat and started touching the body of the prosecutrix. The prosecutrix does not state that she protested against such advances of the original Accused No.1. Apeal-489-05 20 Dixit 28. The prosecutrix then states that the Appellant stopped the jeep – again without stating that the original Accused No.1 asked him to stop the jeep, or that any talk between the original Accused No.1 and the Appellant took place. It is not possible to accept that there would be no conversation between the original Accused