1 cri.appeal 988-2008.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 988 OF 2008 Satish Madhukar Shinde ) Age 34 years, Occ:Agriculturist ) R/o Dhorale, Tal. Barshi, ) District: Solapur ) ...Appellant. Vs. 1)The State of Maharashtra, ) 2) Swati Shandryu Kale, ) Age-23 years, Occ: Nil ) R/o village Korphale, Tal. Barshi, ) District-Solapur. ) ---- Mr.Ujwal Agandsurve for the Appellant. Mr.P.S. Hingorani, APP for the State. ----- CORAM : M.L. TAHALIYANI, J. DATE : DECEMBER 16, 2011. JUDGMENT:- 1. The appellant impugns the judgment and order dated 26th November, 2007 in Sessions Case No.66 of 2007 of Solapur Sessions Division. The appellant, by the impugned judgment and order, is 2 cri.appeal 988-2008.sxw convicted for the offence punishable under Section 376 of I.P.C. and is sentenced to suffer R.I. for seven years and to pay a fine of Rs.3000/-, and in default to undergo R.I. for six months. He is further convicted for the offence punishable under Section 506 of I.P.C. and is sentenced to suffer R.I. for one year and to pay a fine of Rs.500/- and in default to undergo R.I. for three months. 2. The appellant is in jail from the date of his arrest. He was arrested on 6th December, 2006 in connection with Crime No.53 of 2006 registered on the complaint of the complainant Swati Bhosale (her maiden name-Swati Kale). The F.I.R. was registered on 4th May, 2006. The alleged incident had occurred on 2nd May, 2006. 3. The appellant is maternal uncle of the victim/complainant who has been examined as PW-1. His is step brother of mother of the victim. Chandrakant is real brother of mother of the victim. The appellant and his step brother Chandraknt were staying at village- Dhorle, Taluka-Barshi. The victim is resident of village Korphale, Taluka-Barshi. 3 cri.appeal 988-2008.sxw 4. The victim was staying at village Korphale along with her parents and two brothers. The parents of the victim were not at home at the time of incident. One day prior to the incident, the father of the victim had given a slap to the victim as she was not taking interest in household work. 5. It is the case of the prosecution that the victim was unhappy because of the punishment given by her father. She had, therefore, decided to go to her maternal uncle Chandrakant at village Dhorale. She, accordingly, gave telephonic message to the appellant and requested him to convey the message to Chandrakant. The appellant, however, told the victim that she could come at the junction Bhogawati from which she would be picked up by the victim on his motorcycle. It is alleged that the appellant picked up the victim from the said junction and on their way to village Vairag, he committed rape on victim girl by the side of road. Thereafter, he brought the victim to her maternal uncle Chandrakant. It is the case of prosecution that the victim (PW-2) had narrated the incident to her maternal uncle Chandrakant and his wife Chhaya (PW-10). Chandrakant and his wife 4 cri.appeal 988-2008.sxw Chhya had decided to wait for the parents of the victim-PW-2. The parents of PW-2 had gone to Solapur to take part in identification parade in connection with some case. When the parents of PW-2 had returned, they did not find their daughter at home and inquiry revealed that she had gone to her maternal uncle. They also came to know about the incident. Other relatives also learnt about the incident of alleged rape committed by the appellant. Matter was reported to the Police. 6. Police registered an F.I.R. and initiated investigation. During the course of the investigation, spot panchanama was drawn. Clothes of the victim PW-2 and appellant were seized. PW-2 was medically examined by the female Medical Officer. Clothes and vaginal swab were sent to the Chemical Analyzer. The reports of the Chemical Analyzer were received by the Police. Statements of the witnesses including Chandrakant and Chhya were recorded. After completion of the investigation, a chargesheet was filed in the Court of Magistrate. 5 cri.appeal 988-2008.sxw 7. After committal of the case to the Court of Sessions, it was decided by the learned Ad-Hoc Addl. Judge, Solapur by the impugned judgment and order. 8. The appellant contested the charges framed by the Trial Court during the course of trial. The prosecution has examined in all 14 witnesses in support its case. The important witnesses, as far as the incident in question and the other circumstance are concerned, are PW-1-father of the victim, PW-2 the victim herself and PW-3 the Medical Officer Dr. Pramila, PW-5 mother of the victim, PW-10 Chhaya Chandrakant Shinde, and the Investigating Officer. 9. As far as the seizure of the clothes of the victim and the accused and the reports of the Chemical Analyzer are concerned, there is no serious dispute about the same. The learned counsel appearing for the appellant has also not seriously disputed that the appellant was below eighteen years of age at the time of incident. The evidence of PW-3 Dr. Pramila is also not seriously disputed. It was submitted that the evidence of PW-2 the victim girl cannot be 6 cri.appeal 988-2008.sxw believed. It was contended that her evidence is totally unreliable and the circumstances indicate that the case has been manipulated against the appellant. 10. My attention was drawn to the evidence of the Medical Officer PW-3 and it was submitted that the evidence of the Medical Officer clearly indicates that there was no penetration at all. The evidence does not support the testimony of PW-3. Mr. Hingorani, the learned A.P.P., however, submits that though the medical evidence does not show that there was sexual intercourse with the victim, there is no reason to disbelieve the evidence of PW-2. It is submitted by the learned A.P.P. that the law is very well established that the conviction for the offence of rape can be based on the basis of sole testimony prosecutrix only if the same inspires confidence. It is submitted that only because the medical evidence does not support the prosecution, the testimony of the prosecutrix cannot be thrown unless there are inherent improbabilities in the said evidence. 11. In my considered view, the whole case depends on the evidence of PW Nos.2 and 3. As far as PW-1 father PW-5 mother are 7 cri.appeal 988-2008.sxw concerned, it is admitted position that they were not in the village on the date of incident. It is also admitted position that they had reached their village on the next day of the incident. They came to know about the incident at the house of Chandrakant. Chandrakant has not been examined. Chanrakant’s wife Chhaya has not supported the prosecution case at all. The wife of Chandrkant has been examined as PW-10. This witness has stated that mother of the victim girl was real sister of her husband Chandrakant. The appellant was step brother of her husband. There was no telephone connection at the house of Chandrakant. However, the appellant had telephone connection at his residence at village Dhorale. This witness was not aware of telephone call being received by the appellant from the victim. She has also denied that the victim Swati was brought to their house by the appellant. She had denied that she started whipping and narrated the incident to her husband. 12. PW-10 Chhya was declared hostile and was permitted to be cross-examined by the learned Prosecutor. During the course of cross-examination, she has denied all the suggestions made by the Prosecutor. I have gone through her cross-examination and I do 8 cri.appeal 988-2008.sxw not think that there is any material in the cross-examination which needs discussion in the present judgment. It is noted that in her previous statement before the Police, she had stated about the arrival of victim girl at their house and the narration of incident by her. The portion of the earlier statement is denied to have been stated by the witness during the course of cross-examination. However, the Police Officer who had recorded her statement had stated that the said portion was correctly recorded as stated by PW-10. However, by some contradiction in the earlier statement, the prosecution may not get support to their case. In fact the prosecution should have examined Chandrakant as the victim girl wanted to go to his place and he was real brother of mother of the victim. There is no explanation as to why Chandrakant has not been examined as prosecution witness. 13. Without going into the quality of evidence with regard to seizure of the clothes of the victim and the appellant, I may directly go to the reports of the Chemical Analyzer. The learned Counsel for the appellant has also not contested the seizure of the clothes of the victim and the appellant. The report of the Chemical Analyzer did not help the prosecution case in any manner. 9 cri.appeal 988-2008.sxw 14. The conjoint reading of the letters and the reports of the Chemical Analyzer i.e. Exhibits ‘20’ and ‘21’ shows that no semen was detected on pubic hair of the victim Swati. Semen was also not detected in urethral swab and vaginal canal. It is seen from the report that human blood was detected on salvar-kameez and nicker of the victim. Human blood was also detected on Odhani of the victim. 15. The evidence of PW-2 victim girl has to be examined in the light of report of the Chemical Analyzer. PW-2 has stated in her evidence that she gave phone call to the appellant to convey her message to Chandrakant that she wanted to go to the place of Chandrakant on account of her dispute with her father. She had further stated that she was picked up by the appellant at Bhogawati Sahakari Sakhar Karkhana junction, Bhogawati Bus stop for being taken to the village Dhorle at her maternal uncle Chandrakant’s place. She had further stated that instead of going to village Dhorale, the appellant had first gone to the shop of Babu Pawar to buy liquor. Liquor was not available in the shop of Babu Pawar. Thereafter, he drove motorcycle to village Vairag. He stopped his motorcycle on the 10 cri.appeal 988-2008.sxw way and took PW-2 by the side of road and committed rape on her. It is stated by PW-2 that she resisted but the appellant pressed her mouth so that she could not shout. The appellant had inserted his private part in the private part of PW-2. There was some discharge from private part of the appellant. Thereafter, the appellant had dressed himself and allowed PW-2 also to dress. It is stated that the appellant had threatened PW-2 that she should not disclose this incident to anybody otherwise she would be killed. Thereafter she was taken to her maternal uncle Chandrakant’s place. She narrated the incident to Chandrakant. They waited for arrival of parents of PW-2. It appears that in the meantime paternal aunt PW-6 also reached from Mumbai and matter was reported to the Police. 16. Admittedly, the matter was reported to Police after two days. However, delay by itself should should not be fatal to the prosecution case. The parents of the victim girl were out of station on the date of incident. Delay of two days, therefore, is not abnormal delay in the present circumstances of the case. It has come in the cross-examination that there was some dispute in respect of sale proceeds of the property of mother of the appellant. It was suggested 11 cri.appeal 988-2008.sxw on behalf of the appellant that the appellant has been implicated in the false case due to the said dispute. 17. If the evidence of PW-3 Medical Officer Dr. Pramila is examined carefully, it can be concluded safely that PW-3 was not sure whether sexual intercourse had been committed with PW-2 Swati. PW-3 has stated in her evidence that vaginal examination admits one finger and vaginal canal was normal. It was submitted by Mr. Hingorani, learned A.P.P. that he did not insist that the absence of hymen should be taken as an indication that PW-2 was subjected to sexual intercourse. However, it was vehemently submitted by Mr. Hingorani that evidence of the Medical Officer cannot go against the prosecution in as much as three days had already elapsed from the date of incident and injuries, if any, must have healed. In the ordinary course, this argument could have been accepted. It is correct that the injuries caused to the children of tender age heal up very fast and it is also possible in some cases that the Medical Officer may not get the evidence of injuries. However, if the story of PW-2 is to be believed then even after healing of injuries, there should have been tags in the vaginal canal. PW-2 has nowhere stated that there was pain or 12 cri.appeal 988-2008.sxw swelling of her private part. She has also not stated that there was any bleeding from her vagina. Despite this evidence, report of the Chemical Analyzer indicates that blood was found on Salvar-kameez of PW-2. The prosecution has not been able to explain as to why the blood was found on the clothes of the victim when there is no evidence at all to show that there was bleeding from private part of the victim or she was injured during the course of rape because of resistance. Nor there is any evidence to suggest that she had sustained bleeding injuries on any other part of her body. 18. Though PW-2 has stated that there was discharge from the private part of the appellant, none of her clothes were found stained with semen. Semen could have been detected even after three days of the incident. PW-3 has stated that sexual intercourse might have been committed with PW-2. 19. It is thus clear that the Medical Officer was not sure whether there was sexual intercourse or penetration of any organ in the vagina of PW-2. The reports of Chemical Analyzer go contrary to the prosecution case. The reports do not support the evidence of PW-2. The reports of Chemical Analyzer on the contrary falsify the 13 cri.appeal 988-2008.sxw evidence of PW-2. The falsity of evidence of PW-2 is multiplied by the evidence of PW-6 wife of Chandrakant. The doubt becomes serious when court finds that Chandrakant has not been examined for which there is no reasonable explanation. As such there are serious doubts about the genuineness of the prosecution case. It is highly risky to rely upon the evidence of PW-2 in view of the other evidence brought on record. 20. In my considered view, the evidence of PW-2 needs to be discarded. The evidence of other witnesses pertaining to the seizure of clothes and carrying the articles to the FSL does not require discussion in view of the fact that the seizure of clothes and the reports of Chemical Analyzer have not been disputed. 21. For all these reasons, I have come to the conclusion that the judgment and order of the learned Trial Court suffers from serious infirmity. The evidence is not properly appreciated. The judgment and order, therefore, needs to be set aside, and the appeal needs to be allowed. 14 cri.appeal 988-2008.sxw 22. (i) Criminal Appeal is allowed. (ii) The judgment and order of the learned Trial Court in Sessions Case No.66/2007 dated 26.11.2007 convicting the appellant for the offence punishable u/ss 376 and 506 of I.P.C. is set aside. (iii) The appellant is acquitted of the offences punishable u/ss 376 and 506 of I.P.C. (iv) The appellant is in jail. He be released forthwith, if not required in any other case. (v) Fine, if any, paid by the appellant be refunded to him. (vi) The property be disposed of in accordance with the order passed by the learned Trial Court. 23. Criminal Appeal No.988 of 2009 is disposed of accordingly. 15 cri.appeal 988-2008.sxw 24. In view of disposal of the Criminal Appeal, the Criminal Application No.438/2011 for grant of bail does not survive and is accordingly disposed of. (M.L. TAHALIYANI, J)