1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.500 OF 2006 Sitaram Ramsukh Yadav ..Appellant Age : 52 yrs Residing at Santi Nagar Hutment Truck Terminal, Anjuman Nurul Masjid, Antop Hill, Mumbai – 37 V/s. The State of Maharashtra ..Respondent (At the instance of Antop Hill Police Station C.R.No.314/1998) Mr.J.S.Kini i/b.Mr.Kinjal Haria, Advocate, for appellant Ms.A.A.Mane, A.P.P, for the State CORAM : K.U.CHANDIWAL, J. DATE : 6TH AUGUST, 2008 ORAL JUDGMENT . The conviction of the appellant in Sessions Case No.1046 of 1998 dated 21st March, 2006 passed by the Additional Sessions Judge, Greater Bombay convicting him for the offence punishable under Section 376 of the Indian Penal Code for a period of seven years and to pay fine of Rs.2000/-, is subject of challenge in the present appeal. 2 2. The prosecutrix with her husband 15 days prior to the incident dated 24-09-1997/25-09-1997 came to reside in the room at Shanti Nagar Hutment, Antop Hill, Mumbai – 37 on a monthly payment of Rs.400/- on behalf of the accused. Her husband working in a pan shop, used to leave the house for work at about 2.00 P.M. and return back at about 6.00 A.M while the accused used to leave for his work at the same time and used to return at about 12.00 in the mid night. The accused was staying alone as his wife and children were staying at his native place while the prosecutrix apart from her husband was staying with her five years old son Amit. 3. On 24th September, 1997 husband of prosecutrix left for work at 2.00 P.M. The accused also left at the same time. In the evening/night prosecutrix and her son had their dinner and went to sleep. In the mid night accused came from his work, removed his Kurta and Dhoti and remain on Banian and under wear. The prosecutrix served food 3 to him. She asked the accused to leave room and sleep outside the room. The accused then closed door of the room. He sat besides the prosecutrix. She got up from the said place, however, the accused caught hold her hand and made her to lie down and committed forcible sexual intercourse with her. The accused then left the room. The prosecutrix did nothing but waited for husband who came at 6.00 A.M. She disclosed the incident to him which was followed by lodging police report at Wadala Police Station vide Crime Registration No.314/1997 at 10.15 A.M. The apparels of the victim were taken charge under Panchanama Exh.22 which were Green colour printed saree (Article 1) and Blue colour peticoat (Article 2). The Spot Panchanama (Exh.15) was drawn. On 25th September, 1997 P.W.2 PSI Ashok Ghadigaonkar arrested the accused. His clothes were taken charge under Panchanama (Exh.18). The victim and accused were medically examined. The Medical Certificates are at Exh.16 & Exh.17. The seized articles were sent to the office of C.A on 13th October, 1997 vide Exh.23. The C.A.report (Exh.24) was tendered 4 through P.W.2 in the Court. 4. Charge sheet was moved before 30th Metropolitan Magistrate, Kurla and the case was committed to the Court of Sessions. Charge below Exh.4 was explained to the accused in vernacular for the offence punishable under Section 376 of the Indian Penal Code. The defence of the accused is of total denial. 5. In order to establish the guilt against the accused the prosecution has examined the prosecutrix P.W.1 Smt.Urmila (Exh.13) and P.W.2 Ashok Dhanji Ghadigaonkar at Exh.21, the investigating officer. The Spot Panchanama at Exh.15, Medical Certificates at Exh.Nos.16 and 17 and Panchanama of clothes at Exh.18 were admitted by the defence when an application under Section 294 of the Criminal Procedure Code was moved below Exh.7. The officer did not record statements of adjoining dwellers. 6. The counsel for the appellant contended that 5 examination of only two witnesses should have been scanned above suspicion. The incident cited by the prosecution having taken place in the mid night commencing from 25th September, 1997 is not at all beyond shade of doubt. The learned Judge ought to have given importance to the circumstances as, as per prosecution she did not object the accused when he removed his Kurta and Dhoti. The observations of the learned Sessions Judge “the explanation given by the prosecutrix for not shouting at the time of the incident appears to be convincing”, is totally improper and incorrect. The findings that the prosecutrix being new comer in Bombay got scared and that could be the reason for not immediately disclosing the incident to her neighbours is totally incorrect. 7. It is well settled, as observed by the Honourable Lordships of the Supreme Court in the matter of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat, 1983 Cri.L.J.1096 (AIR 1983 SC 753) that a girl or woman in the tradition bound non permissive society of India would be extremely 6 reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracited by the society, including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and relatives and of her matrimonial home and happiness being shattered. 8. It is well settled that a prosecutrix of a sex offence cannot be put on par with an accomplice. Her sole evidence can be acted upon if it inspires confidence. However, the Court must be alive to an conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If for some reason the Court is not in favour to place implicit reliance on the testimony of the prosecutrix it may look for evidence for lending assurance to the testimony of prosecutrix. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix 7 does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her version. 9. The incident of sexual assault had taken place in the mid night of 24th/25th September, 1997. The place of incident as referred in Exh.15 Panchanama shows to be a hut admeasuring 10.9 x 7 feet with a height of 8 feet, with place for cleaning utensils and washing clothes. The locality of the hut is thickly populated. The lane in front of the hut is barely three feet. The adjoining neighbours are ladies. The accused used to keep all his belongings in the room. However, the victim did not raise any alarm from the movement when the accused removed his Dhoti and Kurta, till he shut door of room. She did not try to shout when the accused sat beside her and caught hold her hand. Even after the incident also she did not shout. Many people were sleeping at the material time outside their houses. People were passing even during the late night by the road/lane situate outside the hut. There were many houses in 8 front of the hut in question. There was a Telephone booth behind the hut. Inspite of all these factual situation in existence at the site, the prosecutrix wants everybody to believe that she did not object to the sexual abuse committed by the accused being new to the city. It is curious that, she accepts at the material time in the hut apart from her, her five years old son Amit was also sleeping. The prosecutrix did not disclose as to where the accused after committing the act had gone, as to whether he slept outside the room or sneak away. After the barbaric incident involving her prestige in the mid night the prosecutrix slept till her husband came and in the morning at 6.00 A.M then she narrated all the incident to him. Again, the incident narrated to her husband at 6.00 A.M had its impact on the mind of her husband by around 10.00 A.M he approached the concerned police of Vadala Police Station at 10.15 A.M to lodge F.I.R which is registered vide Crime Registration No.314 of 1997. These aspects in the matter logically sound a ring of a doubt. During the course of submissions it was pointed by defence 9 counsel that after the arrest and conviction of the accused the room/hut in question is exclusively occupied by the prosecutrix and her husband. It is, thus, obvious, the calculated plan and design for creating the entire episode of the sexual abuse by the accused, was for the purposes of grabbing hut of the accused in which plan apparently the prosecutrix has succeeded. 10. The prosecutrix was 25 years old at the material time with two children. She was used to have sex. Even, if one does not find any injury on her private parts, there is silence on her part as to why she did not resist the accsued that too, in tiny room admeasuring 10x7 feet where the shanty could have caused traumatic effects had she resisted the accused. The victim accepts that the adjoining people were sleeping in the lane in front of their houses still, she choose to bear the brunt and situation, without creating any rebellion approach against the accused. She even allowed the accused quietly to leave the room without bothering as to whether the accused has gone or whether he 10 slept outside the room. During the span incident by any calculation the prosecutrix had ample opportunities to invite attention of the neighbours and even to woke her son to get assistance but the reasons that she came to said hut only prior to 15 days, hence she did not raise voice or yelled, is unfortunately accepted by the learned Sessions Judge. 11. The surrounding situation of the hut, when there is no other cogent evidence to corroborate version of prosecutrix should have been taken note of while dealing with and appreciating evidence of prosecutrix's case. When the accused allegedly caught the victim she accepts, she did not shout which suggests something else than the sexual abuse against her will by the accused. The Medical Certificate of the accused at Exh.17 also does not show anything incriminating as to any injury to any part of his body. 12. P.W.2 Ashok Ghadigaonkar has produced four C.A.Reports at Exh.24 collectively. These relate 11 to reports about Vaginal smear on slides to be 'negative', Glans washing 'Normal' saline of the accused, presence of semen or vaginal fluid, 'to be negative'. Blood group of the accused Sitaram to be Blood group of 'A' while Blood the prosecutrix Urmila with the Blood group of 'O'. There is no doubt from any angle that while leading the evidence of P.W.2 these were the only four C.A.Reports were marked at Exh.24 collectively. The most startling and surprising aspect in the matter is, a C.A.Report to be dated 12th January, 1998 produced with list Exh.7 giving results of analysis of Saree, Peticoat, Nicker, Blouse and in particular human semen on the peticoat of the victim of 'A' grouping, is basically relied as corroborative piece by the learned Sessions Judge. She could not have exercised such discretion to read a unproved document without it being exhibited. The defence in response to the provisions of Section 294 of the Criminal Procedure Code did not accept said C.A.Report dated 12th January, 1998. Reliance, if any, placed by the learned Judge invoking the provisions of Section 12 293 of the Criminal Procedure Code is also erroneous as there are no such observations and findings recorded by the learned Judge. The unfortunate exercise of reading this document to convict the accused has added to a miserable situation. 13. That apart, under statutory provisions, Section 313 of the Criminal Procedure Code mandates the learned Sessions Judge to examine the accused in every enquiry or trial for the purposes of enabling the accused personally to explain situation appearing in the evidence against him, on this count it was obligatory on the part of the learned Sessions Judge, to invite attention of the accused to the C.A.Report dated 12th January, 1998 and to have sought his explanation as mandated under Section 313 of the Criminal Procedure Code. However, same is again lacking. This lapse has resulted in miscarriage of justice against the accused. 14. If the learned Sessions Judge could rely on 13 the C.A.Report dated 12th January, 1998 as Peticoat had semen stains of human origin, it was obligatory for the prosecution to have produce evidence from Rammilan, husband of the victim, to establish that he had different 'ABO' grouping than 'A'. Such non-examination has certainly resulted in prejudice to the accused/appellant. The findings of the learned Sessions Judge on this score in paragraph 46 that the defence could have suggested to the prosecutrix that before visiting police station the victim had sexual intercourse with her husband, are perverse. The learned Sessions Judge accepts, no doubt if the husband of the victim would have been examined, it would have strengthen the prosecution case, however, his non-examination does not in any way affect the prosecution case as the victim is found to be a reliable witness. 15. The learned defence counsel says, the findings of the learned Sessions Judge are sweeping without strong supporting evidence. Taking survey of entire evidence on its reappreciation, it is obvious charge under Section 376 of the Indian 14 Penal Code is not established. 16. Hence, order (i) The Judgment of conviction and sentence will not be sustainable and accordingly, it is set aside. Appeal is allowed. (ii) Accused be released forthwith, if not required in any other case. Inform the jail authorities immediately. (K.U.CHANDIWAL, J.)