1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1285 OF 2003 Sukdeo Shantaram Dagale ] Age 32 years, ] R/at.More Mala, Near Ramwadi, ] Panchawati, Nashik. ] .. Appellant V/s. State of Maharashtra ] .. Respondents ALONGWITH CRIMINAL APPEAL NO.1287 OF 2003 Raju @ Raju Mama Trimbak Palve ] Age 28 years, ] Residing at More Mala, ] Near Ramwadi, ] Panchawati, Nashikh. ] .. Appellant V/s. State of Maharashtra ] .. Respondents Mr.Najmi Murtaza for the Appellant. Mr.D.P.Adsule, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : APRIL 21st , 2009. 2 ORAL JUDGMENT :- These are the appeals preferred by the Appellant original accused. The appeal No.1285 of 2004 preferred by accused No.2 and Appeal No.1287 of 2003 preferred by accused No.1. Both these criminal Appeals are disposed of by the common judgment as in both the Appeals same Judgment and order passed by the First Additional Sessions Judge Nashik dated 24th March, 2003 is challenged. Vide said conviction the order of sentence, both the Appellants were convicted under section 376(2)(g) of Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.500 in default to suffer further rigorous imprisonment for two months each. They were also convicted for the offence punishable under section 506 II and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.300/- in default to suffer further imprisonment for one month. Substantive sentences to run concurrently. 2. Being aggrieved by the said conviction respective criminal appeals came to be filed by both the original accused. 3. Heard rival submissions at length yesterday and also today and present matter is taken up for final Judgment and order disposing of both the criminal appeals. Prior to appreciating the rival 3 submissions and mainly on the point conviction on behalf of the Appellant by learned State appointed Advocate Mr.Najmi Murtuza, certain factual position and the material brought before the trial Court can be narrated as under : Prosecutorix P.W.8 and her husband Sanjay are the agricultural labour and not having sufficient means to meet the daily needs. They decided to shift to Nashik city from their village which is in the out skirts of Nashik. Accordingly, they obtained lift in a truck and got down at the area which is known as Canada Corner in the evening of 21st August, 2000. Thereafter, they visited house of Vithoba Palave P.W.7, relative of husband of Prosecutorix and after taking tea and taking some rest they left the house and had night halt in one nearby school. However, in the night they were removed from the school premises by the Watchman, and as such they came out and started their way out for reaching Nashik. On the way, in the morning of 22nd August, 2000, they met both the accused. According to the case of the prosecution accused No.1 is the son of maternal aunt of Sanjay and accused No.2 is the friend of accused No.1. On knowing that Prosecutorix and her husband Sanjay were going to Nashik in search of better livelihood, both the accused asked them to give help and as such accused No.2 took whatever baggages Prosecutorix and her husband had and proceeded ahead in an auto rickshaw while accused No.1 Prosecutorix and her husband Sanjay 4 started walking the distance towards the house of the accused. On the way, Sanjay had some ailment in his waist and remained behind where as the prosecutorix and accused No.1 proceeded ahead leaving him there on the road. They reached the house of accused No.1. Prosecutorix stayed at the house of accused No.1 for the entire day on 22nd January, 2000 till evening. In between, in the afternoon she had meals. In the evening the accused No.1 told her that she was called by her husband Sanjay in the nearby agricultural farm, popularly known as Nanacha Mala. Prosecutorix accompanied him and on their way to such farm, she was taken by the side of the river bank. By that time accused No.2 also arrived there, and both the accused dragged her and forcibly committed sexual intercourse one after another while closing her mouth with the hand so as not allow her to raise any shouts. After such forcible intercourse both the accused left the spot. Prosecutorix got up and walked her way to the house of accused No.1 and met her husband who was found present at the house. On enquiry as to where she was, she narrated the entire incident and forcibly sexual intercourse with her committed by both the accused and thereafter, it was decided to lodge a complaint with the police. At this juncture, it must be mentioned that there is nothing on record as during that period of Prosecutorix allegedly reaching the house of accused No.1 and meet her husband where were the accused persons and how prosecutorix and her husband reached the police station. However, it is still the case of the prosecution that at early hours of 5 23rd January, 2000 at about 2.30 a.m. or so complaint was lodged by Prosecutorix P.W.8 with the police and it was recorded by the Police Jamadar P.W.No.5. Again at this juncture, it must be mentioned that according to said P.W.5, Prosecutorix signed the compliant given by her and on the strength of the said complaint offence was registered against both the accused of committing a gang rape and threatening the Prosecutorix of killing. 4. Investigation was taken over by P.S.I.Kadam. It may be mentioned that said P.S.I.Kadam died during the pendency of the matter and as such he could not be examined and in his place a crime writer P.W.No.9 was examined. Accused were put under arrest during the investigation and their cloths were taken charge of under the panchanama and P.W.1 panch is examined, on such seizure of cloths and arrest of the accused. Spot panchanama was conducted and one chappal and one ribbon were recovered allegedly belonging to the prosecutorix. On this count of spot panchanma, P.W.2 and 3 were examined. At this juncture, it must be mentioned that both these panchas have turned hostile to the case of the prosecution. 5. Medical examination of prosecutorix and both the accused was conducted. It was done by P.W.4 Dr.Smt.Mangala Konkikar. She gave respective medical certificates as to the examination. During the investigation, seized muddemal articles i.e. cloths of the prosecutorix 6 and the cloths of the accused persons and also biological samples of prosecutorix and accused persons were sent to chemical analysis through P.W.6. 6. On completion of investigation charge sheet was filed against both the accused and after recording all the evidence of nine witnesses, and considering their substantive evidence as trustworthy and mainly believing the evidence of prosecutorix P.W.8 as authentic and trustworthy, Trial Court convicted both the accused and sentenced them as mentioned earlier. 7. The learned Advocate on behalf of the accused took various reservations on the evidence of prosecution which is before this Court. Again prior to referring to such defence, certain admitted position is required to be mentioned in order to have proper prospective of the material in order to ascertain the guilt or otherwise of the accused. 8. It is admitted position that accused No.1 Raju Palave is aged about 28 years and is having A blood group. Accused No.2 Sukhadev Dagale is aged about 32 years and having his blood group A. The prosecutorix aged about 20 years and is having A blood group. Admittedly no any blood group or the blood group of the semen of Sanjay, is mentioned, as not examined. It is also an 7 admitted position that the semen samples of both the accused show that the blood group of said semen samples could not be determined as results were inconclusive. So also the vaginal swab and vaginal smear of prosecutorix do not show any semen. It is also the factual position that the semen allegedly found on the peticoat of the prosecutorix is of A blood group. Where as the nail clipping of the prosecutorix do not show any traces of blood. This is significant when the case of the prosecution is that there are lenier abrassions and injury marks, four in number, on the back of accused No.1 and which might have been probably caused due to the nail scratches of the prosecutorix. It is also admitted position that here are no external or internal injuries on the private parts of the prosecutorix so also on any parts of her body. It is significant to note that specifically there is nothing mentioned in the medical certificate as to there were any abrassions or any injury marks on the back side of the body of the prosecutorix. This is significant when the case of the prosecution is that she was forcibly subjected to sexual intercourse by two persons i.e. both the accused one after another and that also on the open ground by the side of river on the river bank and which was the area having mud and water stagnant on the place. It is also factual position that the chemical analysis report is nil regarding detection of semen stains on the under garments of both the accused, though, the panchanama as to seizure of such cloths show that there were some stains like semen even on the cloths of the accused persons. 8 9. Now going to the arguments advanced on behalf of the accused, firstly, it is submitted that there is a reasonable doubt created a to the truthfulness of the contents of the complaint in as much as according to the prosecutorix though she lodged the complaint she did not sign and the signature was done by her husband. Where as according to P.W.5 the Police Jamadar who recorded the compliant, prosecutorix signed on it and it is at Exh.28 before the Court. As against this evidence, it is substantive evidence of the prosecutorix that she do not know writing. Bearing in mind this factual position, it is argued that it is doubtful whether really proseutorix has herself given the complainant as per the case of the prosecution when allegedly such compliant was given at the early hours of 2.30 a.m. on 23rd January, 2000, when the actual incident had occurred at about 5.00 p.m. or so on 22nd January, 2000. Again, on this aspect as to the F.I.R. cannot be taken as a gospel truth shelter of the ratio propounded by the following authority as taken on behalf of the accused. 1997 CRI..LJ 2377 State of Mahrashtra V/s. Ahmed Gulam Nabi Shaikh & Ors. Again on the above aspect attention of this court is drawn towards the substantive evidence of prosecutorix to the effect that her 9 husband is of bad character and he is habitual drinkand and was in jail for a day and that prior to the present incident of rape he had assaulted said prosecutorix, and also her father and he is in habit of assaulting the people in their locality and as such according to her the people were afraid of him. By pointing out said character of Sanjay, husband of prosecutorix, it is submitted that said Sanjay concocting a story as against the accused persons cannot be ruled out in order to falsely implicate them in the offence. 10. Subsequently, it is argued that the spot panchas have turned hostile and as the investigating office PSI Kadam has died and as such there is nothing to ascertain the truthfulness of the contents of such spot panchanama wherein allegedly the sleeper and one cloth ribbon were found and which were allegedly belonging to the prosecutorix. According to the accused, it is also one of the mitigating circumstances to the case of the prosecution, thus rendering the case of the prosecution improbable for various reasons including the reasons as to no external or internal injuries on the prosecutorix. 11. Again, on this aspect as to spot panchanama it is submitted that according to the case of the prosecution the area where alleged offence occurred is by the side of the river bank and was wet and as such there could have been possibility of finding any sign of struggle in the said area when allegedly two able bodied 10 persons had forcible sexual intercourse with the prosecutorix, however, there is nothing brought before the court to show that there was such struggle and certain markings on the spot. It is also argued that this is also one of the mitigating circumstances to the case of the prosecution. 12. Lastly, it is the emphasis placed on the factual position as narrated above regarding biological test conducted on the semen and vaginal swabs samples. It is further argued that if the case of the prosecution is to be accepted then, the medical examination of prosecutorix as well as of the accused persons was conducted when admittedly they had not taken the bath and as such there should have been finding of any semen in the vaginal swab of the prosecutorix. However, the medical evidence and the evidence of chemical analysis is contrary. 13. On carefully going through the substantive evidence of prosecution witness and mainly that of P.W.No.8 coupled with the substantive evidence of medical witness P.W.No.5 and considering the import of the documentary evidence as to chemical analysis report and medical certificate, in the opinion of this Court, there is definitely a doubt created whether the incident of rape had happened as narrated by P.W.No.8. No doubt, that always the evidence of a prosecutorix need not be corroborated by any independent evidence 11 and the conviction can sustained of the sole testimony of the prosecutorix if her evidence is of such a standard to rule out any other possibility and point out only to the happening of the incident of sexual offence which can be attributed to the accused persons. In the present matter, it must be said that the trial Court had given much weight to the testimony of P.W.No.8 and had curiously set aside the defence raised on behalf of the accused and mainly that of the First Information Report signed by Sajany and not by the prosecutorix. Again, it must be said that what is mentioned in the F.I.R. and what is stated by P.No.8 do not sound to reason and logic in as much as alleged by her after she was subjected to sexual intercourse by both the accused at about 5.00 p.m. on 22nd January, 2000, she went to the house of accused No.1 and there she allegedly found her husband Sanjay and narrated him the entire episode. Considering that accused No.1 was almost stranger to Prosecutorix as admittedly for the first time she was seeing him when she and her husband were on their way to go to Nashik, the alleged version as mentioned in the case of prosecution, does not sound to reason and logic, to the effect that when Sanjay developed some ailment in his waist, he remained behind and his young wife proceeded ahead alongwith accused No.1. Not only that she left behind her husband but she remained at the house of accused No.1 during the entire day on 22nd January, 2000 and only after accused No.1 asking her to accompany as called by her husband at Nanacha Mala, she accompanied him. All this conduct of 12 the prosecutorix do not inspire confidence and as such it must be said that there was necessity of some corroboration to her testimony by way of medical evidence or by way of A.C. report. In the present matter, such corroborative evidence is lacking, thus, putting this court on guards while scrutinizing the evidence of P.W.8 with great care and caution. 14. During the arguments learned A.P.P. for the state placed reliance on the following authority (2008) 2 SCC (Cri.)253 B.C.Deva @ Dyava v/s. State of Karnataka By pointing out the observations of the Hon’ble Apex Court in the said authority, it is submitted that when there being any supporting medical evidence which is not corroborating the version given by the prosecutorix, then on the sole testimony of the prosecutorix, the conviction can be upheld. It must be said that in the instant case before the Hon’ble Apex Court, there was another corroborative evidence of other witnesses and which was supporting the case of the prosecution as to said witnesses advised the prosecutorix to lodge the compliant. Moreover, subsequent conduct of the prosecutorix before the Apex Court was weighted with the court for conviction of the accused and such conduct was that after such gruesome sexual assault on the prosecutorix, she had taken a drastic step of jumping in 13 water tank with intention to commit suicide. Considering the factual position as narrated by P.W.No.8 in the present case as to conduct to accused No.1 after such sexual assault, prompts this court to hold that what is brought before the Court is not the true and correct factual position and as such in that event, the benefit of doubt must go in favour of the accused. 15. In view of the above, in the opinion of this Court, it must be said that the Trial Sessions Court has failed to appreciate the evidence of prosecution, holding both the accused guilty of the offence charged. In the result, it must be said that the prosecution has not reached to that standard of proof which is required to be establish the guilt of both the accused beyond reasonable doubt for the offence of gang rape and for the offence punishable under section 506 II of Indian Penal Code. In the result, present appeals must succeed and accordingly disposed of with following order : :: O R D E R :: i. Both the criminal Appeals are hereby allowed. The impugned Judgment and order dated 24th March, 2003, is set aside. 14 ii. Accused in criminal Appeal No.1285 of 2003 Sukdeo Shantaram Dagale and accused in criminal Appeal No.1287 of 2008 Raju @ Raju Mama Trimbak Palve, are hereby acquitted for the offence punishable under section 376 (2) (g) and under section 506(2) read with section 34 of Indian Penal Code and they be released form the Jail custody, if not required in any other case. iii. If fine amount is already paid, it shall be returned back to the Appellant/Accused. iv. Both the criminal Appeals are, accordingly, disposed of. (A.R. JOSHI, J.)