( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 105 OF 2010 Umesh Manik Jadhav, R/o Umbra, Tq. Kallamb, District Osmanabad. APPELLANT VERSUS The State of Maharashtra, through Police Station, Dhoki, Tq. Kallamb, Dist. Osmanabad. RESPONDENT .... Mr. Joydeep Chatterji, advocate holding for Mr. P.B. Gapat, advocate for the appellant. Mr. V.D. Godbharle, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 12th October, 2010] [DATE OF JUDGEMENT PRONOUNCED : 28th October, 2010] JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Adhoc Special Judge, Osmanabad, in Special (Atro.) Case No. 11/2009, whereby the appellant has been convicted for the offences punishable under section 342 and 376 of the I.P. Code. He has been sentenced to suffer rigorous imprisonment ( 2 ) for three (3) months and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for one (1) month on the first count and to suffer rigorous imprisonment for seven (7) years and to pay a fine of Rs. 3000/-, in default to suffer simple imprisonment for six (6)months on the second count. He came to be acquitted of the offence punishable under section 3 (1) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 2. The facts, which are not in dispute, are that father of the prosecutrix use to reside in Class-IV Employees' Government Quarters, situated at Ter (District Osmanabad). She had appeared for B.Sc. Ist year Examination from R.P. College, Osmanabad during the relevant period. She use to commute from Ter to Osmanabad for attending the college. Her father, namely, Shivaji Kondiram Mane is a Class-IV employee attached to Civil Hospital, Osmanabad. He and his family members and sister of the prosecutrix used to reside in a residential quarter situated on the ground floor of the building whereas the appellant was residing in residential quarter situated in the same building on the second floor. The appellant use to reside with his young wife - Sonali alias Ambika, who was on friendly terms with the prosecutrix. His ( 3 ) wife i.e. Sonali alias Ambika had been to house of her parents in order to appear for 12th standard examination, somewhere in the first week or few days before the alleged incident. The residential quarter of one Rani Bansode was then adjoining to the residential quarter of the appellant on the first floor of that building. 3. The prosecution case, stated briefly, is that on 14th March, 2009, the prosecutrix had gone to residential quarter of said Rani Bansode. She knocked the door of her residential quarter. There was no response and, therefore, she started returning back to her residence on the ground floor. The appellant saw her returning through the passage and asked her whether she had brought the clothes of his wife - Sonali alias Ambika from the native village. The prosecutrix told him that she did not bring her clothes and assured that she would fetch the clothes of Sonali alias Ambika on next day. The appellant asked her to come towards him for a minute and simultaneously increased volume of his T.V. set. She had no premonition of his ill-intentions. No sooner she went near him, the appellant pulled her inside his residential quarter and latched the door of the room from inside. Though the prosecutrix attempted to raise cry, yet, ( 4 ) due to increased volume of the T.V. set, her voice was not audible outside the residential quarter of the appellant. He pressed her mouth and forcibly took her inside the bedroom. He got removed her underwear. He also thereafter took out his under-pant by another hand. He kissed her and thereafter, forcibly inserted his male organ in her private part. He committed sexual intercourse with her twice between period of one (1) hour in between 8 p.m. and 9 p.m. Her father had gone to attend night shift duty at Osmanabad and, therefore, there was no-one to whom she could trust for help. The hapless young girl (PW2) put on the undergarment and started returning to her father's residential quarter. The appellant then threatened her that if she would disclose the incident to anyone else, he would eliminate her father. The prosecutrix was shocked due to the sudden incident and the serious threat to life of her father. She thought of her three (3) unmarried sisters and the probable impediment in their marriages if the incident would be narrated to anyone else. She kept silence for a considerable period. On 2nd May, 2009, her sister Kanchan noticed that the prosecutrix was standing on the terrace and was in melancholic mood. Her sister Kanchan, therefore, coaxed her to disclose the reason for her being under depression. The prosecutrix could not control herself ( 5 ) any further and narrated the incident to her sister - Kanchan. Subsequently, it was narrated to their father. Her father held discussion with a Municipal Councilor of Ambajogai and a relative. They decided to lodge a report at Dhoki Police Station. Accordingly, they took the prosecutrix to the Police Station and lodged the FIR. The police registered an offence vide Crime No. 55/2009. The prosecutrix was got medically examined. So also, her clothes were seized under a panchanama. The appellant was arrested and his clothes and undergarment came to be seized alongwith the bed-sheet, which was used on the day of incident. Consequent upon collection of necessary material during course of the investigation, the appellant was chargesheeted for the offence, punishable under section 342 and 376 of the I.P. Code and under section 3 (1) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 4. The appellant denied truth into the accusations. His defence was of alleged false implication for the reason that father of the prosecutrix was on cross terms with him because he was claiming the residential quarter which her father had illegally retained. Another defence raised by him was that he was on leave between 14th to 17th March, 2009 due ( 6 ) to contemplated delivery of his wife who was pregnant and both of them had gone to her parents' house at village Khamkarwadi. In other words, he adopted the defence of alibi. It was also suggested that the prosecutrix herself was a consenting party to the sexual intercourse. The appellant, therefore, sought acquittal from the charges levelled against him. 5. The prosecution examined in all eleven (11) witnesses in support of its case. The appellant examined three (3) witnesses in support of his defence, particularly, in respect of the plea of alibi. On appraisal of the material placed on record, the learned Special Judge held that the prosecutrix was wrongfully confined by the appellant in his residential quarter during the relevant period of about one (1) hour in the evening of 14th March, 2009 against her will and by use of criminal force. The learned Special Judge also held that the appellant committed sexual intercourse with the prosecutrix against her will and by use of force. The learned Special Judge, however, held that the criminal acts were not committed for the reason that the prosecutrix belonged to Scheduled Caste and also in the exercise of the appellant's position to dominate her will. In keeping with such findings, the appellant was held guilty for the offence punishable under ( 7 ) section 342 and 376 of the I.P. Code and was sentenced as mentioned earlier. 6. Mr. Chatterji would submit that the material on record is totally insufficient to prove the charge of alleged wrongful confinement of the prosecutrix and the rape on her. He would point out that the prosecutrix is of robust health and a young girl of good height (5' x 6") and, therefore, could have put up resistance if the appellant had attempted to commit the sexual intercourse against her will. He would submit that the delay of about 51 days in lodging the FIR is itself sufficient to infer falsity in the charges. He would further submit that the FIR was deliberately prepared by father of the prosecutrix with the help of the leaders of the Scheduled Caste community and, therefore, it is more probable that the appellant has been framed in a false case. He contended that version of the prosecutrix is not reliable and trustworthy and the other evidence on record is not at all worthy of consideration. Mr. Chatterji relied on a judgement of this Court in "Chimaji @ Babasaheb Dada Shende vs. State of Maharashtra & another" 2008 ALL MR (Cri) 672, in support of his argument that the appellant is entitled for benefit of reasonable doubt. He, therefore, urged to allow the appeal ( 8 ) and acquit the appellant. Per contra, the learned A.P.P. supports the impugned judgement of conviction and sentence. 7. There is no dispute about the fact that though the alleged incident is said to have occurred in the evening of 14th March, 2009, yet, the FIR (Exh-22) was lodged belatedly on 3rd May, 2009. The evidence of the prosecutrix (PW2) is of significance and the entire edifice of the prosecution would depend upon her version. If it is found that her version can be relied upon, then it is not necessary to seek independent corroboration. It is well settled that even uncorroborated testimony of the prosecutrix would be sufficient to reach conclusion of culpability of the accused. It is well settled that mere delay in filing of the FIR by itself is not a sufficient ground to dislodge the case of prosecution, particularly where the young girl attributes charge of rape to the accused. In "State of U.P. vs. Manoj Kumar Pandey" (AIR 2009 S.C. 711), the Apex Court held that normal rule pertaining to explicit explanation of delay does not per se apply to a rape case. The Apex Court observed : "The approach of the trial court and the High Court is clearly unsustainable. Merely because the victim ( 9 ) was more than 16 years of age as held by the trial court that cannot be a ground to hold that she was consenting party. No evidence was led to show such consent. Apart from the normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This has been the consistent view of this Court..." 8. It is well settled that the conviction can be based upon sole testimony of the prosecutrix (victim), since she cannot be treated as an accomplice in the crime. The Apex Court held in "State of H.P. vs. Asha Ram" (AIR 2006 S.C. 381) that minor contradictions and insignificant discrepancies in the statement of the prosecutrix should not be the ground for throwing out the otherwise reliable case of the prosecution. It is observed : ".....Conviction can be founded on testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration." ( 10 ) 9. True, the prosecutrix did not disclose the incident to her sister or father in the relevant evening or on the next day. The versions of PW3 Shivaji, who happens to be father of the prosecutrix, and PW5 Kanchan, who is the sister of the prosecutrix, are of no much relevance in so far as the incident of rape is concerned. The version of PW Shivaji is inadmissible being of hearsay nature, in so far as the information given to him by the prosecutrix and PW Kanchan is concerned. The conduct of the prosecutrix could be admissible only when the narration and naming of the appellant as rapist would have been immediately made by her, which can be regarded as part of the same transaction. The delay of about 51 days would indicate that the subsequent narration cannot be termed as part of the same transaction and, therefore, versions of both the above witnesses may be treated as inadmissible being of hearsay nature. 10. The only material part of version of PW Kanchan which can be considered as significant conduct of the prosecutrix is that on 1st or 2nd May, 2009, she noticed that the prosecutrix was standing on the parapet wall of the terrace of the building. Her evidence purports to show that ( 11 ) she suspected that something untoward would happen and, therefore, she had pulled the prosecutrix towards herself. When asked, the prosecutrix told her that she was committing suicide. On asking, she gave the reason for such a drastic step contemplated to be taken by her being the earlier incident of the rape. The only material part of the evidence tendered by PW Kanchan that can be culled out and acceptable, is in respect of the depressed state of the mind of the prosecutrix even after lapse of such a long period of 51 days. The learned advocate for the appellant would point out that PW Kanchan claimed that the disclosure was made by the prosecutrix in the evening of 1st May, 2009 whereas the prosecutrix herself narrated that she had disclosed the relevant facts to PW Kanchan in the evening of 2nd May, 2009 and, therefore, he would submit that neither of them can be implicitly believed. One cannot be oblivious of the fact that both the prosecutrix and PW Kanchan are young girls and were students. The minor discrepancies appearing from their versions in respect of date of such disclosure are insignificant. That cannot be a sufficient ground to dislodge the version of PW Kanchan. The fact that PW Kanchan mustered courage and narrated the incident to her father would show that the delay in lodging the FIR is adequately explained. The ( 12 ) version of the prosecutrix reveals that she was mentally disturbed and shocked due to the incident. It appears that she was also concerned with the marriage prospects of her three (3) sisters and, therefore, under the fear of defamation in the society, she was not inclined to tell the incident of rape to her family members. The incident of rape could have impacted her mind so much so that she was unable to decide whether immediate report should be lodged with the police or it ought to be avoided. The family background of the prosecutrix also is important while considering the question of delay. Her father is a class-IV employee. It has come on record that he (PW Shivaji) is in habit of liquor drinking. He use to attend the work as Class-IV servant in the District Hospital at Osmanabad and had retained two (2) residential quarters without any legal authorisation. It is amply clear that when the father of the prosecutrix use to remain home during day time, both the girls i.e. the prosecutrix and PW Kanchan use to be away from the residential quarter for attending the college. The family is poverty stricken. The prosecutrix is inexperienced young girl and was aged about 19/20 years at the relevant time. Under these circumstances, it is not unnatural that she was unable to make up her mind to lodge the FIR without getting support from her parents. ( 13 ) 11. A close scrutiny of the version of the prosecutrix (PW2) would make it amply clear that she had gone to house of the neighbour of the appellant in the relevant evening but could not get response though the door was knocked. It is but natural that the appellant was curious when he had heard that somebody was knocking door of the house of Rani Bansode. The statement of the prosecutrix shows that while describing the manner of sexual intercourse committed by the appellant, she was abashed even to utter the obscene words so as to describe the act and, therefore, gave the same in writing on a chit. This conduct of the prosecutrix shows her absence of consent to the sexual intercourse. It is true that there are some omissions and minor deviations in her statement. The delay in making disclosure about the incident is also one of the factors to be considered. Still, however, considering the shyness of the prosecutrix, her conduct of being found in melancholic mental condition when the disclosure was made to her sister and the attending circumstances would make it explicit that the delay was due to the probability of the defamation which might have been caused due to the disclosure of the incident. Nothing of much importance could be gathered from her cross-examination. It was suggested to her that she ( 14 ) was knowing about absence of the wife of the appellant at his house and, therefore, she had gone to the first floor of the building. In other words, it was suggested that she herself had gone to the house of the appellant in that evening. It was also suggested to her that she had consented for having sexual intercourse with the appellant. She denied the suggestion. The suggestion given to her may be reproduced as follows : "It is not correct to say that I had given consent to accused for having intercourse with me." 12. In fact, there are inconsistent defences raised by the appellant. He attempted to show that false FIR was lodged against him due to the dispute between himself and father of the prosecutrix about his demand for the residential quarter at the ground floor which was illegally retained by her father. Another limb of his defence is that he was not present at all and had gone to house of his inlaws during the relevant period, including the relevant evening, to attend the wife for her delivery. It is true that the prosecutrix admitted the fact that one of her relatives is a political leader of Ambajogai and had accompanied herself and her father ( 15 ) to the Police Station while lodging the FIR. This admission is tried to be blown out of proportion. The learned advocate for the appellant would submit that the father of the prosecutrix managed to lodge false FIR with the help of the political leader. It is difficult to countenance such argument. Nobody will deny that a poor Class-IV employee may have reason to apprehend the treatment of antipathy, prejudice and neglect at the Police Station. The presence of a Municipal Councilor, who was related to father of the prosecutrix, could have been sought in order to alleviate such fear in the mind of the prosecutrix and her father. 13. There is nothing on record to show that the father of the prosecutrix and the appellant were on inimical terms. The prestige of the prosecutrix and her family members was at stake. In normal course of human conduct, they would not have concocted a false case by making the prosecutrix as a pawn without there being substantial reason to avenge upon the appellant. Though a very long cross-examination was directed against the prosecutrix, yet, the same did not yield any tangible material to dislodge her version as regards the alleged incident of rape. ( 16 ) 14. The versions of other witnesses need not be elaborately discussed. The father and sister of the prosecutrix i.e. PW Shivaji and PW Kanchan narrated as to how they learnt about the incident of rape from the prosecutrix at belated stage. The medical evidence also is not of much significance in view of the fact that the prosecutrix was clinically examined after about 51 days of the alleged incident. The version of PW1 Dr. Jyoti purports to show that the prosecutrix gave history of the incident, implicating the appellant as the offender of the alleged rape and on her clinical examination, the hymen was found ruptured. It was further noticed that the vagina admitted one (1) finger easily. The seminal of posterior fornix of varina for locating spermatozoa was collected by a swab. Needless to say, the prosecutrix was found to have lost virginity. The learned advocate for the appellant points out that the prosecutrix, as per the version of PW Dr. Jyoti, is a tall girl of 5' 6" height. He argued that she could have resisted the sexual assault and could not have controlled by the appellant if really, there was force used against her. This is rather hypothetical argument. The inexperienced and poor girl might have been under scare due to sudden act of the appellant. She could not have reacted immediately by using ( 17 ) force in retaliation to resist the sexual assault. The appellant is also a robust young man and immediately, pounced on the prosecutrix after pulling her inside the room. The version of the prosecutrix shows that she attempted to cry but the appellant had raised volume of the T.V. set and, therefore, her voice had been dampened. The evidence of the prosecutrix further shows that the appellant threatened her to kill her father who was daily commuting from Ter to Osmanabad. In any case, the mere fact that there was no resistance on her part is of hardly any significance in the fact situation of the present case. 15. The testimony of PW6 Mustafa is of no much avail. He was examined as a panch witness of the panchanama regarding protection of the clothes of the appellant at instance of the latter. He did not corroborate the recitals of the panchanama (Exh-33). He was declared hostile. Nothing of much importance was gathered from his cross-examination. The version of PW7 Ramesh corroborates the spot panchanama (Exh-46). The spot panchanama gives fair description of the residential quarter which was in possession of the appellant at the relevant time. It appears that the police recovered of "T" shirt, a pant and other clothes of the appellant from his ( 18 ) residential quarter. The versions of PW8 Balasaheb Wade - PCB 1134 and PW9 Avinash Aghav, API attached to Dhoki Police Station are in the context of steps taken during the course of investigation. As stated earlier, the recovery of the clothes of the prosecutrix or the appellant and the opinion of the chemical analyser are not of much importance in view of the fact that there was considerable delay caused in taking the steps for collection of the clothes used by the appellant or the prosecutrix at the time of the alleged offence. So also, the version of PW10 Dy.S.P. Ajit Ranade pertains to the preparation of spot panchanama (Exh-46) and other steps taken during the course of investigation of the crime. He admits that during the investigation, he came to know that financial position of the prosecutrix was weak. It was suggested that in order to grab compensation available to the victims belonging to Scheduled Caste, such a false case is prepared. This defence is without any merit. It is not acceptable defence, particularly, when the prosecutrix did not disclose the incident immediately to the police or anyone and continue to suffer the heinous act of rape, so as to preserve the prestige of her parents in the esteem of the members of the community. The version of PW11 Yellappa Chaudhary, Dy.S.P. also relates to the steps taken during course of the ( 19 ) investigation. 16. The defence witnesses are DW1 Dr. Ku. Sushma Chandne and DW2 Abhijit Zade and DW3 Rafiq Ahmed. The version of DW Dr. Ku. Sushma purports to show that on 16-11-2009, father of the appellant had given an application under the Right to Information Act. She corroborates copy of the application (Exh-82). The electric motor of the residential quarter was reportedly closed. That information is also rather not of much significance because there is eye witness account available regarding use of the electricity and the T.V. set by the appellant. It also appears that the appellant had demanded the residential quarter on the ground floor. The other evidence adduced by the defence purports to show that he had proceeded on