1 Cri. Appeal No. 161 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 161 OF 1999 Bhimsen s/o Nagu Jadhav, aged 46 years, Occupation Labour, Resident of Baba Nagar, Latur, Taluka and District Latur Appellant V E R S U S The State of Maharashtra Respondent Mr. S.S. Choudhari, Advocate for the appellant Mr. S.G. Nandedkar, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 1st December, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the Extra Joint Sessions Judge, Latur, dated 8th April, 1999, in Sessions Case No. 166 of 1997, convicting the appellant for the offences punishable under Sections 376, 506 of the Indian Penal Code. The learned Judge sentenced the appellant to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.3,000/- for the offence punishable under Section 376 of the Indian Penal Code and sentenced him further to suffer rigorous imprisonment of one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 506 of the Indian Penal Code with default clauses. 2. The appellant is accused of committing rape on his own daughter-in-law, who was about 17-18 years old at the time of incident. It is alleged that on 18th February, 1997, the appellant took the complainant at a secluded place, and at about 10.30 or so, he committed rape on her at the point of a knife. 3. The learned Advocate appearing for the appellant contended 2 Cri. Appeal No. 161 of 1999 that this is a case of word against word and the circumstances would compel the Court to disbelieve the case of the complainant. In order to appreciate his submission, I would now refer to the substantive evidence of the prosecution witnesses. 4. In this case, there were eight prosecution witnesses, out of which, the prosecution witness No. 2 Lalita, the complainant; her sister Sangita, the prosecution witness No.3; the medical officer, the prosecution witness No. 5; panch for the scene of offence panchnama, the prosecution witness No.7 and the Investigation Officer, the prosecution witness No. 8, are important. 5. Lalita, the complainant – prosecution witness No. 2 stated in her deposition that the incident took place on 18th February, 1997. She said, her marriage had taken place with the appellant’s son Ashok about one year prior to the incident. She said, on that day, her husband had gone to Aurangabad. She said, in the morning, she herself, her father-in-law, her sister Sangita and her sister-in-law Maya were present in the house. At about 09.00 a.m., the appellant asked her to accompany him for his work at village Harangul (Village Harangul is a place in the vicinity of Latur town). She said, she accompanied the appellant on foot up to Dayanand College. She said, thereafter, the appellant hired an auto-rikshaw and they went further up to Harangul Naka. She said, they alighted from the rikshaw and then walked on a kachha road for about 25 feet. She said, she noticed a ditch behind bushes of a shrub, which is popularly known in the area as ‘Beshram’. She said, she asked the appellant as to why he had brought her towards the ditch. To this, she said, the appellant then expressed his desire to have sex with her. She said, she refused to go with him and tried to leave, but, she said, the appellant caught hold of her hair and pulled her down. She said, the appellant touched her breasts, and then, when she further resisted, he shows her a knife and threatened that if she raised cry, he would stab her. She said, 3 Cri. Appeal No. 161 of 1999 thereafter, he raped her. She said, during the incident, her blouse buttons got detached and fell on the spot. She said, her clothes also got torned because of the scuffle. She said, some time thereafter, the appellant stood up and threatened her that if she disclosed this fact to any one, he would kill her. She said, thereafter, the appellant took her back to their house. She said, her sister Sangita was present in the house. (Sangita, her sister was married to her husband’s brother). She said, she disclosed this fact to Sangita and Maya (her another sister-in-law). She said, her mother had gone to Osmanabad on that day. She said, her mother came back after 2-3 days and then she disclosed this incident to her mother and brother. She said, thereafter, they reported the incident to the police. As said above, after lodging of the complaint, the offence was registered and the investigation carried out. The police seized her clothes during the investigation and sent them for chemical analysis. The police also sent her for medical examination. 6. The prosecution witness No. 3 Sangita, the sister of the complainant, supported her case, when she said that on the very day, after the complainant came back at about 12.30 noon, she narrated the incident to her. However, the prosecution witness No. 5 Dr. Shanta did not at all support the complainant’s case. She said, she found no marks of violence on the complainant’s person. This occurred probably because Dr. Shanta could examine the complainant on 21st February i. e. after three days of the incident. The Chemical Analyst’s report also showed no blood or semen on the clothes of the complainant. The prosecution neither could recover the knife which the appellant allegedly used at the time of the incident to threaten the complainant. 7. The question is, whether the deposition of the complainant is believable, and, whether her sole testimony without corroboration should be used for convicting the appellant? As said above, the 4 Cri. Appeal No. 161 of 1999 incident, according to the complainant, took place at broad day light at about 10.30-11.00 a.m. It occurred near a public road. One must therefore examine, whether the spot was suitable for the appellant to commit this ghastly crime. Whether the spot was secluded enough, is the pertinent question. The complainant stated that after she and the appellant alighted from the auto-rikshaw, they walked towards the ditch. The Auto-Rikshaw left them at Harangul Naka. Obviously, since the auto-rikshaw could ply till that spot, this area was close to Latur town, probably in the outskirts of the town. The prosecution witness No. 6, the spot panch stated in his deposition that the spot, which the complainant showed to them, was a ditch with surrounding shrubs. He said, the spot was at the distance of 200’ from the Government hostel. The prosecution witness No. 7 Bansi, another panch of spot panchnama stated that the spot was at about 200’ away from Latur–Barshi road. He also reiterated that it was a ditch. The witnesses stated that the spot was situated in a barren land. In the scene of offence panchnama, it is mentioned that the spot was situated at about 200’ towards west from the new hostel of Government polytechnic. But, the prosecution could not bring on record that the spot is not visible from the public road or from the polytechnic hostel. The complainant in cross-examination stated that at the time of incident, she and the appellant were in the ditch for about two hours, and during that time, the appellant was lying over her body. Assuming that the complainant did not have proper sense of time, it can be assumed that she is trying to say that for quite some time the appellant had indulged in sexual activity. Having regard to this, it looks rather improbable that no pedestrian or a passerby was able to see what was going on in the ditch near the road. It is also rather improbable that at broad day light an offence like rape could be committed near a road which is situated in the outskirts of the town 5 Cri. Appeal No. 161 of 1999 and no one could see it. It is also improbable that despite of the complainant’s shouts for help, none came to her rescue. Thus, the basic allegation of rape looks rather flimsy and unbelievable. 8. But, let me assume for some time that incident took place as the complainant narrated. It was a violent act. It took place in open place on rough surface, yet the complainant suffered no injury whatsoever on her person. Despite of the fact that the complainant narrated the incident to her sister, she could not go to police for about next 2 ½ days. The explanation offered by the prosecution for the delay in lodging of the complaint is that, because the complainant’s mother was not in town, the lodging of the complaint got delayed, is not at all acceptable. The complainant was not alone. She was with her sister Sangita. Both of them could have certainly made complaint of this to any other elderly member of her family from maternal side or for that matter who could have offered them help. The third and equally important circumstance is the failure of prosecution to seize the knife which the appellant allegedly used at the time of the incident. All these circumstances make the prosecution case further weak. However, the learned Judge of the trial Court believed the version of the complainant on the ground that a girl in her position would not have made a complaint of this nature risking of loosing love and respect of her husband and her relatives. He also placed reliance on the Judgment of the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 Supreme Court 753), in which the Supreme Court has held that corroboration for evidence of prosecutrix is not necessary for conviction in a rape case. The reliance on the Judgment of the Supreme Court, referred to above, is not really appropriate in the set of fact of this case. No doubt, if the case is otherwise believable, the Court should not insist on corroboration. In the same Judgment, the Supreme Court observed as under : 6 Cri. Appeal No. 161 of 1999 “If the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities-factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration.” So, the basic requirement in any case of rape is that the evidence of the victim should not suffer from basic infirmity and the probabilities to rule out the occurrence should not be in existence. In this case, the first and foremost circumstances which makes the case improbable is the spot where the incident took place. The spot was close to a public road and also close to a College hostel. As said above, the spot was not said to be invisible from the road and the nearby college hostel. At such a spot, such an incident is not likely to occur. This, as said above, is the first improbable factor of this case. The other factors are already referred to above, such as; delay in lodging of the complaint, lack of injuries on the person of the victim and the failure of the prosecution to discover the weapon used at the time of the incident. I am, therefore, not inclined to agree with the learned Judge of the lower Court. I am inclined to give benefit of doubt to the appellant. ORDER a. The appeal is allowed. b. The appellant is acquitted of the offence punishable under Sections 376, 506 of the Indian Penal Code. c. The fine amount, if any, deposited by the appellant be refunded to him. d. His bail bonds are cancelled. ( A.V. NIRGUDE, J. ) SRM/criapl/166/99/1/12/10/ok 7 Cri. Appeal No. 161 of 1999