1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLICATION NO. 3926 OF 2009 (FOR LEAVE TO APPEAL) IN CRI. APPEAL NO. OF 2009 (AGAINST THE ORDER OF ACQUITTAL) The State of Maharashtra ..Applicant Vs. Sanjay @ Sandip Siddu Patil ..Respondent .... Mr.H.J.Dedhia APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JUNE 15, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant State of Maharashtra has challenged the judgment and order dated 15.4.2009 passed by the learned Additional Sessions Judge, Sangli in Sessions Case No. 69 of 2008. By the said judgment and order, the learned Sessions Judge acquitted the Respondent-original accused of the offence under Sections 376 and 506 2 of IPC and also under Section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2 The prosecution case briefly stated is as under: The prosecutrix was resident of Jigjevani. She was working in the fields on the tractor of the respondent-accused. About 10 days prior to the incident she had a dispute with her husband hence, without informing her husband, she went to the house of her parents at village Hadalsang. Her husband followed her there. The tractor owner i.e. respondent-accused and one supervisor Karbatti came to the house of her parents and requested them to come to Ingali for work. Thereafter, her parents intervened and the matter was compromised. Hence, they went back to village Jigjevani. The next morning, she, her husband and the accused sat on the motor cycle of the accused and left from village Jigjevani to go Ingali for work. Accused halted his motor cycle near village Walsang and stated that there was low pressure of air in the tyre of the motorcycle. At that time, one motor cycle came there with one rider on the motorcycle. Accused told her husband that he should go on motor cycle of that person and he would bring the prosecutrix on his motor cycle. Thereafter, her husband proceeded on the other motor cycle to Jat. The prosecutrix and the accused also proceeded to Jat. In 3 between Walsang and village Kodgyal, the accused halted motorcycle for passing urine. He returned back and pulled hand of the prosecutrix. Thereafter, the accused committed rape on her. He threatened the prosecutrix not to disclose the incident to anyone. Thereafter, the accused asked the prosecutrix to sit on motorcycle. However, she did not sit on his motor cycle and went with him on foot upto village Walsang. There she went to the S.T. stand. Accused came there and forcibly kept an amount of Rs.150/- in her hand i.e. one currency note of Rs.100/- and the other of Rs.50/-. In the meanwhile, one bus came to the bus stand. The accused told her that she should go by the said bus. By the said bus, she came to Jat S.T. stand where she met her husband. Thereafter, along with her husband, she went to village Ingali. She worked at Ingali for few days. After a few days she disclosed this incident to her husband. Then she lodged the FIR on 2.3.2008. Thereafter, investigation commenced and the charge sheet came to be filed. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned District Judge-3 and Additional Sessions Judge, Sangli. We have also perused the evidence which was produced by the learned 4 APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Judge does not call for any interference. 4 The husband of the prosecutrix has not been examined. Hence, the case is dependent on the sole evidence of the prosecutrix. No doubt, a conviction for rape can be sustained only on the evidence of prosecutrix and her evidence does not require any corroboration. However, the evidence of the prosecutrix should be such as to inspire confidence. On perusal of the evidence of the prosecutrix, we find that it does not inspire confidence. The alleged incident took place on 26.2.2008 and admittedly, the FIR is lodged on 2.3.2008. We find that the delay in the present case has not been satisfactorily explained. We may refer to the evidence of PW 3 Atul Kamble who is the President of Bahujan Samaj Party of Jat. He is also village sarpanch of village Jat. Witness Songe who is a close relative of the prosecutrix, is a member of this party. Atul Kamble has admitted that the complainant and her relatives met him before filing the complaint and he advised the complainant as to how she should go about lodging her complaint. The complainant has admitted that after she told the incident to her husband, her husband and her brother told her that they will discuss the matter 5 with the members of the group and they will decide about the proposed action. It is pertinent to note that the prosecutrix did not know Marathi, hence, witness Songe translated her complaint into Marathi. He has admitted that complaint is lodged after much discussion. Even the complainant has admitted that her husband and brother told her that they will discuss the matter with the members of the group and thereafter, they will decide about the proposed action. Thus, it is apparent that the FIR was lodged after much discussion and consultation and deliberation which makes it suspect. 5 We also find the conduct of the prosecutrix to be very unnatural. Immediately after the incident, she met many villagers at the bus stand at Walsang, however, she did not disclose anything to anybody. It is her case that at Walsang accused had tried to forcibly give her Rs.150/-. She did not want to take the money but the accused forced the money into her hand. At that time, the conductor of the bus was present. So also the other passengers were present. But she did not make any complaint to anyone in respect of the accused. After the incident, she has met her husband at Jat bus stand. She also admitted that she has not revealed anything to her husband. She has admitted that after the incident, she continued working for 4 to 5 days i.e. on 6 tractor of accused. The prosecutrix has also admitted that she was working on the tractor of the accused for 4 to 5 days after she informed her brother about the incident. It is highly unnatural that after an incident of rape takes place, the prosecutrix would return to work on the tractor of the very same person who committed rape on her. It is further unnatural that though she has stated about the incident to her brother, her brother also allowed her to work on the tractor of the accused for 4 to 5 days thereafter. We find this conduct to be absolutely unnatural Looking to the evidence of the prosecutrix and the other evidence on record, we find that her evidence is not such as can be safely relied upon. 6 The prosecutrix has stated that after her husband and brother told her they will discuss and thereafter decide proposed action, her husband was beaten by the accused, hence, no discussion was held. She states that without telling anything to her husband, accused beat her husband with sticks. 2-3 days after beating her husband, she went to Police Station Chadchan, Taluka Indi and she told Chudchan police station about beating to her husband as well as the incident of alleged rape. The evidence of witness Shivaji Patil shows that on 27.2.2008 he went along with accused to Shirol police station and 7 obtained phone number of Chadchan police station and thereafter a phone call was made by the accused to Chadchan police station where he learnt that a complaint was lodged for beating and hence, they were called to police station to settle the matter. The complaint filed at Chadchan police station shows that it was a complaint of beating only. There is no reference at all to any rape being committed on the prosecutrix in the complaint before the Chadchan police station. If actually rape had been committed it would have been mentioned in the complaint at Chadchan. Non-mention of this fact also renders the evidence of the prosecutrix as suspect. 7 The defence of the respondent in the present case is that he and his supervisor Kamble were called to village Jigjevani and hence, he went there. The villagers demanded an amount from him. He refused to give the same and thereafter, a false case came to be lodged against him. It is further the defence of the accused that he has been falsely implicated in order to grab the amount of Rs.50,000/- given to the prosecutrix and her husband by way of an advance by the accused. The defence of the accused stands supported by the evidence of the prosecutrix. The evidence of the prosecutrix shows that during the season of 2007-08 she worked on the tractor of the accused. In the year 8 2007, the construction work of her house was going. She and her husband had taken an amount of Rs.25,000/- each, as an advance from the accused. Till the time of the incident, she and her husband had done work to the tune of Rs.10,000/- to Rs.15,000/-. Thereafter she and her husband did not go to work with accused. The evidence of witness Shivaji Patil shows that he and accused went to Chadchan police station but they did not see the husband of the complainant at Chadchan, they went to Jigjevani where husband of the complainant was residing. As per the say of the husband of the complainant, on 28.2.2008 the accused and Karbatti went to Jigjevani on motorcycle of accused and they discussed the matter with the husband of the complainant and her relatives. They demanded Rs.10,000/- to settle the matter. Accused told them that he had already given an amount of Rs. 50,000/- as advance to the complainant and her husband, hence, he refused to give any further amount to them. Thereafter, the accused, Karbatti and Shivaji Patil returned to Jigjevani. The evidence of this witness as well as Karbatti shows that complainant and her husband did not come to work nor they returned back the amount taken by them. Thus, the admissions given by the prosecutrix, evidence of Shivaji and the other evidence on record support the defence taken by the accused. 9 9. It is also pertinent to note that accused went to Chadchan police station in respect of the complaint lodged against him at the said police station. If at all, he had committed offence of rape, he would apprehend that the complaint would contain the allegations of rape, hence, in such case, he would not go to the police station as if it was a case of rape, he would have been arrested at the police station itself. In such case, he would avoid going to Chadchan police station. The fact he went to Chadchan police station shows that he did not apprehend any complaint of rape but at the most, he apprehended complaint of beating to husband of the prosecutrix. So also if the accused had committed an offence of rape, he would not have dared to go to the village of the prosecutrix to discuss the matter with her relatives. This shows that he has in fact not committed any offence of rape. 10 The prosecution has relied on the evidence of finding of broken glass bangles at the spot in order to prove its case that the incident of rape had taken place at that spot. The prosecution has relied on the evidence of witness Atul Kamble that pieces of glass bangles were seized from the spot. As far as this aspect is concerned, the prosecutrix has admitted that after the incident, she had not gone to the spot. Hence, the moot question is who showed the spot to the police? It 10 is also to be noted that the prosecutrix admitted that after 15 days she went to the police station. Police asked her to give bangles and accordingly, she gave four glass bangles. Two bangles were broken. These broken pieces of bangles were kept in one packet and the other bangles were kept in another packet. Thus, when the prosecutrix herself has admitted that she was not present at the time of spot panchanma, it is not known as to who pointed out the spot and when the prosecutrix herself has stated that she produced four bangles before the police in the police station itself, the seizure of pieces of bangles at the time of spot panchnama, is extremely doubtful. 11 There is one more circumstance which falsifies the evidence of the prosecutrix. The case of the prosecutrix is that she came to village Walsang from there, she took a S.T. Bus to go to village Jat for which she paid amount of Rs.20/- to the conductor towards the S.T. bus fare. However, the evidence shows that S.T. bus fare from Walsang to Jat was Rs.8/- only. This shows that story narrated by the prosecutrix is not trustworthy. It is to be noted that her evidence is recorded within six months from the date of occurrence. Despite this fact, she has given an incorrect S.T. fare. 11 12 It may be stated here that as far as the medical examination of the prosecutrix and the accused is concerned, nothing incriminating has been brought on record by the prosecution. Same is the case with the C.A. Report of the clothes of the prosecutrix and the accused. 13 As far as the offence under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, there is no evidence on record that the accused was not a member of a Scheduled Caste or Schedule Tribe. The necessary ingredients for offence under this provision of the Atrocities Act are that the complainant should belong to a Scheduled Caste or Scheduled Tribe and accused should not belong to any Scheduled Caste or Scheduled Tribe. The evidence is totally silent regarding the case of the accused. In such case, it cannot be said that an offence under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, has been made out. In addition, we have already discussed above the reasons as to why we do not find that the evidence of the prosecutrix inspires confidence. 14 Looking to the evidence on record, we are of the opinion that the view taken by the learned Judge is a reasonable and possible view, 12 hence, no interference is called for. 15 Application for leave to file appeal, is rejected. Consequently, the appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]