:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 807 OF 1990 CRIMINAL APPEAL NO. 807 OF 1990 CRIMINAL APPEAL NO. 807 OF 1990 Dilip Pandurang Kadam ] aged about 31 years ] Occupation : Agriculture & ] Business, Resident of Shirale ]..Appellant Kadamwadi, Taluka Shirala ](Ori.Accused 1) versus State of Maharashtra ] ..Respondents Mr. Ashok Mundargi with Mr. Prakash Naik for the Appellant - Original Accused No.1. Dr. F. R. Shaikh, APP for the Respondents - State. WITH WITH WITH CRIMINAL APPEAL NO. 30 OF 1990 CRIMINAL APPEAL NO. 30 OF 1990 CRIMINAL APPEAL NO. 30 OF 1990 State of Maharashtra ]..Appellant versus 1. Dilip Pandurang Kadam ] age 31, Occ: Agri and ] Business ] 2. Dinkar Dhondi Kadam ] age 38, Occ:Agriculture ] 3. Dattatraya Dhondi Kadam ] age 38, Occ: Agriculture] 4. Hanmant Dhondi Kadam ] age 28, Occ: Agriculture] 5. Mahipati Dhondi Kadam ] age 27, Occ:Agriculture ] 6. Sou. Shalan Dattatraya ] Kadam, age 26 ] Occ: Household work ] 7. Sou. Shamal Dinkar Kadam] age 32, Occ: Agriculture] 8. Sou. Kusum Krishna Patil] :2: age 22, Occ:Agriculture ] 9. Smt. Putalabai Maruti ] Kadam, age 70 ] Occ: Agriculture ] 10. Pandurang Maruti Kadam ] age 53, Occ:Agriculture ]..Respondents All R/o. Shirala - ](Ori. Accused Kadamwadi, Tal:Shirala ] Nos. 1 to 10) Dist: Sangli ] Dr. F. R. Shaikh, APP for the State. Mr. S. A. Pawar for the Respondent Nos. 1 to 10. WITH WITH WITH CRIMINAL REVISION APPLICATION NO. 4 OF 1991 CRIMINAL REVISION APPLICATION NO. 4 OF 1991 CRIMINAL REVISION APPLICATION NO. 4 OF 1991 Sau. Mangal Vilas Pawar ] R/o. At and Post Shirala - ]..Appellant Kadamweadi, Taluka Shirala ](Ori.Complainant/ Dist : Sangli ] Informant) versus 1. Dilip Pandurang Kadam ] age 31, Occ: Agri and ] Business ] 2. Dinkar Dhondi Kadam ] age 38, Occ:Agriculture ] 3. Dattatraya Dhondi Kadam ] age 38, Occ: Agriculture] 4. Hanmant Dhondi Kadam ] age 28, Occ: Agriculture] 5. Mahipati Dhondi Kadam ] age 27, Occ:Agriculture ] 6. Sou. Shalan Dattatraya ] Kadam, age 26 ] Occ: Household work ] 7. Sou. Shamal Dinkar Kadam] age 32, Occ: Agriculture] 8. Sou. Kusum Krishna Patil] age 22, Occ:Agriculture ] 9. Smt. Putalabai Maruti ] Kadam, age 70 ] Occ: Agriculture ] 10. Pandurang Maruti Kadam ] age 53, Occ:Agriculture ]..Respondents All R/o. Shirala - ](Ori. Accused Kadamwadi, Tal:Shirala ] Nos. 1 to 10) Dist : Sangli ] 11. The State of Maharashtra]..Respondents :3: Mr. Prabhu i/b. A.V. Bandiwadekar for Appellant. Mr. Ashok Mundargi with Mr. S.A. Pawar for Respondent No.1. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & S. R. SATHE, JJ. S. R. SATHE, JJ. S. R. SATHE, JJ. DATE : 29TH MARCH, 2007. DATE : 29TH MARCH, 2007. DATE : 29TH MARCH, 2007. ORAL JUDGMENT : ( Per. D. G. DESHPANDE, J.) : ORAL JUDGMENT : ( Per. D. G. DESHPANDE, J.) : ORAL JUDGMENT : ( Per. D. G. DESHPANDE, J.) : 1. Criminal Appeal No. 807 of 1990 is filed by the appellant - original accused No.1 against his conviction under the Arms and Explosives Act, 1959. Criminal Appeal No. 30 of 1991 is filed by the State against acquittal of all the accused from offences of rioting, unlawful assembly, assault and rape. Criminal Revision Application No. 4 of 1991 is filed by the complainant - victim Sou. Mangal Vilas Pawar against acquittal of all the accused from all the aforesaid offences. 2. Sexual offences, namely, rape, in particular, are considered very grave and serious by the society and the jurisprudence that is developed in this regard by plethora of judgments of Supreme Court and various High Courts lay down that the courts are expected to deal with the cases of sexual assault against women with utmost sensitivity. Such :4: cases need to be dealt with sternly and severely. 3. A socially sensitized Judge is a better statutory armour in cases of crime against woman than long clauses of penal provisions, containing complex exceptions and provisos, are the observations of the Supreme Court in (2006) 3 SCC (2006) 3 SCC (2006) 3 SCC 771 Dinesh alias Buddha vs. State of Rajasthan, 771 Dinesh alias Buddha vs. State of Rajasthan, 771 Dinesh alias Buddha vs. State of Rajasthan, preceded by other observations that sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim. . The rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis, as noted by this court in the case of Bodhisattwa Gautam vs. Subhra Chakraborty :5: 4. Then, in this background and with this approach the rape cases are to be dealt with by the judiciary. It is because of this approach that Supreme Court in (1996) 2 SCC 384 State of Punjab (1996) 2 SCC 384 State of Punjab (1996) 2 SCC 384 State of Punjab vs. Gurmit Singh & ors. vs. Gurmit Singh & ors. vs. Gurmit Singh & ors. observed that the court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases, amounts to adding insult to injury. Why should the evidence of a girl or a woman who complaints of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? 5. Further in rape cases the court pose a query to the accused that why a women at the stake of her reputation, dignity and chastity should try to involve anybody with all these allegations of rape. In most of the cases the accused have no answer to these questions and if that is so the cases result in conviction (depending of course on the facts of each individual case). :6: 6. But this approach of the apex court followed by the other High Courts including this court in cases of rape gets shattered if the facts of the present case are seen. The compassion shown to the victims of rape by the apex court and other courts cannot be said to be of universal application in each and every case because this is a case where complainant Smt. Mangal Vilas Pawar has gone to the extent of levelling false, concocted and scurrilous allegations not only of assault, use of weapons such as rifle or gun but also of rape against accused No.1 Dilip Pandurang Kadam. She has done this only for the sake of asserting the ownership and possession of land which was already sold by her husband. We are aware that one swallow does not make a summer and all victims of rape are not of the type of Smt. Mangal Vilas Pawar. But this case clearly shows that a woman like Smt. Mangal Vilas Pawar can go to the extent of taking her chastity and womanhood for the purpose of property and go to the extent of making allegations of rape. 7. We are aware that in rape cases the name of the prosecutrix should not be disclosed or made public but this is a case where in our considered :7: opinion such a protection cannot be made available to the prosecutrix Mangal because her entire story which was found by the trial court to be false, bogus and concocted, is also found by us, to be false, bogus and concocted. She has proved that she does not deserve the sympathy of the court and does not deserve any relaxation of the rules of evidence for proving her reckless allegations of rape by accused No.1 Dilip in broad day light in the agricultural land where the accused was accompanied by his old grand mother Putalabai Maruti Kadam - accused No.9 aged about 70 years at the time of incident, his paternal aunt accused No.7 Shamal Dinkar Kadam aged about 32 years at the time of incident plus 3-4 family members and male relatives and where 3-4 other females and males were present in the agricultural land. We do not wish to say that this case is sufficient to shatter the general image of women all over the country. Our observations are strictly restricted to the conduct of the complainant - Mangal in this case only. But this case should be an exception which the court should take into consideration while dealing with cases of rape and the exception is that women can even at the stake of their dignity, honour, :8: reputation and chastity go to the extent of levelling false accusations of rape for the sake of ulterior motives. Now, with this preface let us go to the facts of the case. The reasoning and judgment of the trial court, the evidence of the parties and the submissions made before us by the learned APP and counsel for the victim Mangal, and counsel for the accused and accused No. 1 Dilip Kadam, in their respective matters. 8. Complainant / Prosecutrix and victim in this case is Mangal Vilas Pawar, 24 years of age on the date of the incident. She is P.W. 9. Her mother Anandibai P.W. 10 is about 55 years of age on the date of the incident. According to the prosecution, the incident took place in the agricultural land bearing Gat No. 145/2 situate at Village Shirala-Kadamwadi. According to the complainant - Mangal this is the land of her husband Vilas Pawar and her husband was the owner and they were in possession of the land on the date of the incident and even prior thereto. 9. Vilas Pawar husband of Mangal was serving in Irrigation Department as a clerk and used to daily :9: commute from Village Shirala to the site of his job. He was unable to manage personally with cultivation of the lands and therefore this land and other lands were being cultivated by Sambhaji s/o. Shivram Kadam, Mahadeo s/o. Shivram Kadam and their mother Vithabai d/o. Shivram Kadam as partners in the cultivation with the said Vilas Pawar i.e. with husband of complainant Mangal or Mangal. 10. According to the prosecution on 8.4.1987 Vilas Pawar went to attend his work but did not returned home. Complainant Mangal waited for 2-3 days, made enquiry at the office and then learnt from the Village Talathi that Vilas has executed Agreement of Sale in respect of two of the family lands and also executed Sale Deed. 11. Then Mangal on 11.4.1987 gave report to the police that her husband is missing, he must have been abducted and the sale deeds were obtained by him by fraud or coercion. He also alleged that her husband was addicted to liquor. Thereafter dispute started between Mangal and accused No. 1 Dilip Pandurang Kadam and accused No. 10 Pandurang Maruti Kadam on the other side. Mangal asserting ownership :10: and possession of those two lands and accused No. 2 Dinkar and accused No. 10 Pandurang contending that Vilas Pawar has executed sale deed in their favour in respect of those lands. Then accused No. 1 Dilip gave a report against Mangal for intrusion on their purchased land, due to which Mangal and others came to be arrested. 12. The incident of rape and assault etc. has occurred on 20.9.1987. Even at that time Mangal was asserting that the lands were in her possession, she had sown a certain variety of groundnut in that. Her claim was strongly refuted and denied by the accused. They had filed suit for injunction some time earlier against Mangal and the date of appearance in that suit was the next day which was next to the date of the incident. 13. On 20.9.1987 according to the prosecution Mangal went to the field along with her mother Anandibai. She found that accused Nos. 3 and 4 were carrying on some agricultural operations in the ground nut crop when Dattatraya - accused no.3 saw Mangal and her mother Anandibai, he went to village Shirala and soon returned with accused No.1 - Dilip, :11: accused No.2 Dinkar, accused No.5 Mahipati, accused No. 6 Sou. Shalan, accused No. 7 Sou. Shamal, accused No. 8 Sou. Kusum, accused no. 9 Smt. Putlabai etc. Accused was armed with gun, they obstructed Mangal and her mother and questioned them about their right in the land. They asked both these women to go away and accused No.1 Dilip gave threats of killing with gun. Mangal however refused to go and she continued her operations in the field. Then according to Mangal, all 9 accused started beating complainant Mangal and her mother Anandibai. Clothes of Mangal and her mother Anandibai were removed and they were made nude or naked in the open field, photographer was called and snaps were taken. Then accused No.1 Dilip ravished Mangal. Again photographs were taken. Then Mangal and her mother were beaten and the gun was used by accused No.1 to threaten Mangal and her mother Anandibai. Thereafter Mangal and her mother Anandibai went to Sangli. They reported the incident to the City police Station. They were referred for medical examination and then different offences came to be registered against all these accused. Investigation was started, panchnama was prepared, Mangal and her mother were examined. Clothes of Mangal were :12: seized, clothes of accused No.1 were taken, gun and stick were recovered muddemal property was sent to C.A. Photographs were also seized and then the charge sheet came to be filed against the accused. 14. Defence of the accused to all the charges was that they have been falsely implicated in this case. According to them, Vilas Pawar - the husband of Mangal has falsely implicated them in this case. According to them Vilas Pawar - husband of Mangal has voluntarily and out of his free own will, executed Sale Deed in their favour in April, 1987 and since that day they were in possession and they continued to possess and no force, fraud or coercion was practised on Vilas Pawar. Their names also came to be subsequently mutated in respect of these fields by the Revenue officers after giving notice to Mangal and Vilas or either of them. On the day of the incident Mangal had tried to forcibly exert her right in the field. There was Maramari between some female accused and Mangal and her mother Anandibai. Both sides received minor injuries and no incident of rape or beating by weapons or use of gun for threatening took place, but Mangal lodged a totally false report not only to tarnish the image :13: of the accused No.1 and the accused but to see that they are behind the bars for indefinite period because of the seriousness of the allegations. 15. The trial court found that the entire case of Mangal was false, bogus and concocted and therefore the trial court acquitted the accused of all the charges except holding accused No.1 guilty under section 3 r/w. 25 of the Arms and Explosives Act, 1959, and sentencing him to R.I. for one year and fine of Rs.1,000/- in default R.I. for six months. It is in this background that accused No.1 Dilip filed Appeal against conviction vide Criminal Appeal No. 807 of 1990. Mangal has filed Criminal Revision Application No. 4 of 1991 against acquittal of all the accused, and the State has filed Criminal Appeal No. 30 of 1991 against acquittal of all the accused. 16. We heard the learned APP for the State, Counsel for Mangal and Counsel for accused No.1 Dilip and other accused in their respective matters, at length. We were taken through the entire evidence and judgment. Photographs as stated above of Mangal and her mother Anandibai taken through the :14: so-called rape or assault were not before us, therefore by special order the photographs were called from the trial court and they were shown to the advocate for the accused and to the prosecution. 17. Counsel for the acquitted accused and convicted accused No.1 Dilip contended that the entire case of Mangal is false, bogus and concocted, on each count and on each charge and the trial court’s order of acquittal is fully justified. It was also pointed out that when the trial court has rejected the prosecution case on 90 out of 100 points, then the court was not justified in convicting Accused No.1- Dilip for use of gun for the purpose of giving threats. Therefore, according to them accused No.1 Dilip was entitled for acquittal. 18. On the other hand, the learned APP and Counsel for the Mangal contended that the approach of the trial court is perverse. The trial court has not at all considered the seriousness of the charges levelled and has not considered the conduct of the parties and has come to a wrong conclusion of acquittal and therefore acquittal was required to be :15: set aside and other accused were liable to be convicted for all the offences and accused No.1 Dilip was liable to be sentenced for a major offence of rape. We have given our anxious consideration to the submissions made by the respective counsels. 19. In order to properly appreciate the case of the prosecution and evidence of Mangal and her mother Anandibai, it is better to classify the incident and situation as under:- (i) Mangal claims that her husband was missing and during that period accused No.1 Dilip and accused No. 10 Pandurang obtained, by coercion or fraud a sale deed in respect of two lands in dispute. She also claims that inspite of the sale deed and/or agreement of sale she continued to be in possession of the land and was cultivating it in partnership and she had sown certain varieties of groundnut. (ii) Mangal claims that on the date of the incident i.e. 20.9.1987 she had gone to the disputed land with her mother and other :16: ladies in exercise of her right of ownership and possession (ownership being of her husband) and at that time all the accused came there armed with weapon and accused No.1 was having gun. (iii) Mangal claims that all the accused beat her and her mother Anandibai in the said agricultural land. (iv) Mangal claims that the accused removed the clothes of her body and on the person of her mother Anandibai and made them nude and took photographs or caused them to be taken. (v) Mangal claims thereafter in presence of all the accused and others, accused No.1 Dilip raped her. (vi) Mangal claims that she was apprehensive that Shirala Police will not take her report properly and therefore she directly went to Sangli City Police Station and lodged her complaint. :17: 20. So far as the point No. (i) i.e. Mangal Mangal Mangal claims that her husband was missing and during that claims that her husband was missing and during that claims that her husband was missing and during that period accused No.1 Dilip and accused No. 10 period accused No.1 Dilip and accused No. 10 period accused No.1 Dilip and accused No. 10 Pandurang obtained, by coercion or fraud a sale deed Pandurang obtained, by coercion or fraud a sale deed Pandurang obtained, by coercion or fraud a sale deed in respect of two lands in dispute. She also claims in respect of two lands in dispute. She also claims in respect of two lands in dispute. She also claims that inspite of the sale deed and/or agreement of that inspite of the sale deed and/or agreement of that inspite of the sale deed and/or agreement of sale she continued to be in possession of the land sale she continued to be in possession of the land sale she continued to be in possession of the land and was cultivating it in partnership and she had and was cultivating it in partnership and she had and was cultivating it in partnership and she had sown certain varieties of groundnut, sown certain varieties of groundnut, sown certain varieties of groundnut, is concerned, prosecution did not examine Vilas Pawar - husband of Mangal. He would have been a best person to tell whether he was kidnapped or abducted by the accused and whether they exerted force, pressure or coercion upon him and obtained the sale deeds of two properties by practising fraud. It was only the husband Vilas Pawar who had personal knowledge of the circumstances and the reason for which he executed the sale deed in favour of the accused. He would have also thrown light upon the consideration received by him from the accused from the sale of two lands and he would have been the best person to support Mangal whether possession was handed over pursuant to the sale deed and if not handed over inspite of the sale deed why it was not handed over and why anybody would enter into sale deed, :18: consideration and not received possession of the agricultural land. This aspect of the prosecution case is totally unproved, no explanation is given why Vilas was not examined. Similarly, according to Mangal these fields were being cultivated by her through partnership. None of those persons who were the partners in cultivation were examined by the prosecution. Further this so-called FIR lodged about missing of her husband and is executing sale deed or agreement for sale in favour of the accused is not produced on record. Mangal had further admitted that she had received notices from accused No.1 and one Mahadev about the sale deed. 21. According to Mangal when her husband was handed over to her, she learnt that PSI Dhumal and ASI Naikwadi beat her husband and compelled her to write a statement as per their directions and that her husband has made an application to the Circle Inspector, Islampur, that accused No. 2 Dinkar and one Mahadev obtained sale deed by force. 22. If this is so, examination of Vilas was most vital and essential. Admittedly, Vilas has not been examined. No satisfactory explanation is offered in :19: this regard by the prosecution and therefore adverse inference has to be drawn against prosecution and against Mangal and it has to be held that the entire story of husband missing, executing sale deed by force or fraud; he is being assaulted by the police officers and he has lodged complaint to the Circle Inspector about the sale deed, is false. Further, Mangal or her husband does not appear to have filed any suit till the date of recording evidence of Mangal and Anandibai for cancellation of those documents. There is nothing on record in this regard. 23. So far as point No.(ii) i.e. Mangal claims Mangal claims Mangal claims that on the date of the incident i.e. 20.9.1987 she that on the date of the incident i.e. 20.9.1987 she that on the date of the incident i.e. 20.9.1987 she had gone to the disputed land with her mother and had gone to the disputed land with her mother and had gone to the disputed land with her mother and other ladies in exercise of her right of ownership other ladies in exercise of her right of ownership other ladies in exercise of her right of ownership and possession (ownership that being of her husband) and possession (ownership that being of her husband) and possession (ownership