1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 78 OF 1998 Suraj s/o. Mohan Tadavi, Age Major, Occu. Agriculture, R/o. Chunchale, Tq. Yawal, Dist. Yawal ....Appellant. Versus The State of Maharashtra ....Respondent. Shri. P.B. Patil, Advocate (appointed) for the appellant. Shri. K.M. Suryawanshi, A.P.P. for the State/respondent. CORAM : P.R. BORKAR, J. DATE : 6th January, 2010 ORAL JUDGMENT : 1. This is an appeal preferred by an accused, who is convicted of offence punishable under section 376 of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for three months and also convicted of an offences punishable under sections 447 and 506 of Indian Penal Code and respectively sentenced to suffer rigorous imprisonment for three months and one year by the learned 2 IInd Additional Sessions Judge, Jalgaon in Sessions Case No. 82/1997, decided on 16.1.1998. 2. It is the case of the prosecution that on 12.7.1996, the prosecutrix, who was examined as P.W. 5, lodged complaint at Yawal Police Station that on that day at about 10.00 a.m. she had gone to work in her land. She was pregnant for eight months. At about 3.00 p.m. she was to take food under Neem tree and while she was taking food, the present appellant came from the land of Ramdas Bhika Chaudhari and started inquiring with her about the ownerships of neighbouring lands and he stated that he wanted to have sexual intercourse with her. Prosecutrix asked him, whether was he not ashamed and started shouting. But nobody was present nearby. The appellant started scuffling with the prosecutrix, tore her blouse, held her breasts. In the process her bangles were broken. The appellant threatened her that in case she shouts, he would kill her. Thereafter, the appellant first carried the prosecutrix to banana garden. But, since the crop was watered, he brought prosecutrix back to the Neem tree and committed sexual intercourse forcefully. At that time, the appellant saw Shankar Lotu Patil coming from another land and then the appellant took his axe and ran away. Thereafter, prosecutrix went to her husband, who was working in another land and told him the incident. Both approached the Police Patil of the village and all the three went to the Yawal Police Station, where the complaint was lodged and the crime was registered. 3 3. The prosecution in all examined seven witnesses and relying on their evidence, the order of conviction and sentence is passed which is challenged in this appeal. 4. The main witness is prosecutrix, who was examined on oath at Exh. 19 and she stated the story as narrated above. She stated that while she was working, the accused came and inquired about the ownerships of neighbouring lands and expressed desire to have sexual intercourse with her. When prosecutrix asked him, whether he was not ashamed of. The accused lifted her and took her to banana garden, but since the land was wet, he took her back under the Neem tree and committed rape forcefully. Prosecutrix also stated that the appellant had an axe with him. He saw Shankar Lotu Patil coming and therefore, ran away. Thereafter, she went in the field, where her husband was working and narrated the incident to him. Thereafter, they went to Police-Patil and narrated about the incident. She lodged complaint at Yawal Police Station. She proved her complaint. Her cross examination shows that she was 8 months pregnant at the time of incident. It was suggested that since she was pregnant, she had not gone to work, but the suggestion was denied. In cross examination, prosecutrix stated that she did not resist the appellant when he committed rape and she also did not try to resist the appellant with nails. 4 It is argued before this Court that the evidence of P.W. 2 Dr. Kalyan Khan shows that there was no external injury on the accused person. However, the accused person was examined on 27.1.1997 whereas the incident had occurred on 12.7.1996 and therefore, no external injuries were found on the person of the accused after so much lapse of time. Infact, it is the prosecution case that accused was absconding for five months after the incident and that is one of the circumstances against him. 5. The evidence of Dr. Kalyan Khan, who had examined the prosecutrix on 13.7.1996, shows that no external injury was found on the body of the prosecutrix. She was admittedly married and had given birth to a daughter and was pregnant for second time. It is argued before me that the absence of any injury on the prosecutrix shows that there might be consent. However, the learned Additional Sessions Judge has dealt with this aspect in detail in para 13 and stated that prosecutrix being a married lady, habituated to intercourse and when there was no resistance on her part, there was no possibility of any external injury on her body or on her private part. The learned Additional Sessions Judge also observed that when the prosecutrix was carrying 8 months pregnancy, in such advance stage of pregnancy, a lady will not take the risk of resistance, considering her physical limitation. It has also come in the evidence of prosecutrix that appellant was carrying an axe and therefore, there was possibility of fear of injury in the mind of 5 prosecutrix in case of resistance and in these circumstances, it is observed that absence of injuries on the body of the prosecutrix is not enough to infer consent on her part. 6. Another circumstance in favour of prosecution which corroborates the prosecution case is the evidence of P.W. 3 Ganesh Bari. He stated that clothes of prosecutrix were seized in his presence by police under panchanama, Exh. 14 dated 12.7.1996. He had seen the stains on the petticoat of prosecutrix. The said panchanama also shows that the two original buttons of the said blouse were missing. The stains were also seen on the petticoat. The Investigation Officer has stated that the petticoat was sent to chemical analyser and C.A. report is at Exh. 24. The said C.A. report shows that the petticoat did bear few semen stains ranging from about 0.5 to 3.00 c.m. They were of human semen, though blood group could not be detected. This is a good piece of corroborative evidence. It is true that as per C.A. report, Exh. 27, there were no semen on pubic hair or vaginal swab. 7. P.W. 4 Gopalsingh proved the panchanama of the place of offence which was carried out on 13.7.1996. At the place shown by the accused bangle pieces were found at a distance of 5 to 7 ft. from the incident. Those bangle pieces were attached under panchanama, Exh. 16. So presence of bangle pieces is corroborative piece of evidence, which was relied upon by the trial Court. In cross examination, it was suggested by 6 the defence that the field of the accused is adjacent to the field of the husband of the prosecutrix and husband of the prosecutrix was removing wooden fencing and there were quarrels. All the suggestions were denied by the prosecutrix as well as her husband. In his statement under section 313, Criminal Procedure Code, the accused has stated that the distance between his field and the field of the prosecutrix's husband was 40 ft. So there must be land of someone in between them. It is also argued before me that Shankar Lotu Patil is not examined as witness, though it is stated that on seeing Shankar Lotu Patil, the accused ran away. The police papers show that police have recorded the statement of Shankar Lotu Patil. It is argued before this Court that since Shankar Lotu Patil has not seen the incident of rape and since he was not actual witness to the commission of rape, his non-examination will not make any difference. The basic question is, why the evidence of prosecutrix should be disbelieved. Her evidence is corroborated by her husband, who is examined and his evidence is also consistent. There is also immediate complaint. Absolutely, there is no satisfactory reason why the accused should be roped in the false case, if the incident had not occurred. 8. The Trial Court has found the evidence of prosecutrix reliable and trustworthy and I see no reason to take a different view. Several cases have been cited by both the sides. I may refer to Section 114 -A of the Evidence Act which lays down that whenever a rape is committed on 7 women, knowing her to be pregnant, which is a case falling under section 376 (2) (e) and where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. The said presumption is applicable to the facts of the present case. In this case, I find that the evidence of prosecutrix is reliable and trustworthy. She has proved that the accused had sexual intercourse with her. Her pregnancy was in advance stage. This clearly supports that she would not be a consenting party. A suggestion was given to the prosecutrix in the cross-examination that prosecutrix on her own went behind the appellant, but since Shankar Lotu Patil saw her and since she was pregnant, she felt ashamed and lodged the false complaint. Said suggestion is denied by the prosecutrix. We can safely presume that that such suggestions are given by the advocate on instructions given by his client. So presence of the accused at the place of incident was admitted by the appellant indirectly. 9. The learned advocate Shri. P.B. Patil has cited the case of Anmol Shridhar Gharade and others Vs. State of Maharashtra, 1999 (1) Mh.L.J. 692. In that case, it is laid down by the Division Bench of this Court that it is well settled that the testimony of prosecutrix in a case of rape, if acceptable, truthful and reliable can be utilized without corroboration. In the facts of the case before Their Lordships, even the testimony of 8 prosecutrix not only suffered from infirmities, but it was not supported even by Medical evidence and did not inspire confidence. The second case cited is of Chimaji @ Babasaheb Dada Shinde Vs. State of Maharashtra, 2008 M.C.R. 647. In that case, as para 5 of the judgment indicated that the accused has come with the positive case that it was the prosecutrix who gave him signal and invited to her house at the relevant time. He had developed sexual relationship with her and he also admitted to have committed sexual intercourse with her. Thus, according to him, it was with consent. For the reasons which were discussed in para 12 to 14, the Court has come to the conclusion that it must be a case of consent. The facts of the present case are totally different as indicated earlier. Another case cited on behalf of the appellant is the case of Lalchand Cheddilal Yadav Vs. State of Maharashtra, 2000 (3) Mh.L.J. 439. It is submitted for the proposition that if the material witness is not examined by the prosecution, adverse inference should be drawn. It is argued that adverse inference should be drawn as Shankar Lotu Patil was not examined in this case. But as discussed by the trial Court, Shankar Lotu Patil was seen coming by the appellant and appellant ran away. It was not the case of the prosecution that Shankar Lotu Patil had seen the commission of crime. Moreover, the statement of Shankar Lotu Patil is recorded by police. It is enclosed with the chargesheet. The prosecution cannot be blamed for not examining him when he is not witness to the crime. 9 10. The learned A.P.P. has cited the case of State of Himachal Pradesh Vs. Mange Ram, A.I.R. 2000 SUPREME COURT 2799. It was held in that case that there was submission of the body under the fear of terror and under such circumstances, prosecutrix could not be said to be consenting party. Consent is to be ascertained on careful study of all relevant circumstances. In that case prosecutrix was below 16 years and the evidence of the prosecutrix was corroborated by medical evidence and therefore, the acquittal of the accused on the ground that there was consent on the part of prosecutrix was set aside. 11. Here in this case I may refer to the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat, A.I.R. 1983 Supreme Court 753. Therein, it is observed that corroboration is not the sine qua non for a conviction in a rape case. In the Indian Setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. The Court further asked why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. It is observed that to do so is to justify the charge of male chauvinism in male dominated society. It is observed that on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to 10 great weight, absence of corroboration notwithstanding. It is also observed in para 11 that 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 except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualifications : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. It is not even case of accused that Shankar Lotu Patil has seen the prosecutrix in a compromising position. 12. In these circumstances, in my opinion this is not a case where any interference with the order of conviction and sentence passed by the trial Court is warranted. In the result, appeal is dismissed. The order of conviction and sentence passed by the trial Court is confirmed. The accused to surrender to his bail to undergo the remaining sentence forthwith. I quantify Rs. 3000/- as fees payable to Advocate Shri. P.B. Patil, who is appointed by the Court to represent the appellant. [ P.R. BORKAR, J. ] ssc/criapl78.98