1 APEAL 965 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.965 OF 2010 Vithoba Maruti Kadam, age: 23 years, Occn. Agriculture, r/o Belunkhi, Tal. Jath Dist. Sangli .. Appellant. -versus 1. The State of Maharashtra 2. Vishwanath Jagannath Babar, r/oBelunkhi, Tal. Jath, District: Sangli. .. Respondents. Mr. Shekhar Ingawale, for the Appellant. Mrs. S. V. Sonawane, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 8th November, 2011 Oral Judgment 1. This appeal is directed against the judgment of learned Additional Sessions Judge, Sangli, convicting the appellant of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer R.I. for 7 years with fine of Rs.7,000/- or in default to undergo R.I. for 7 months. 2. Facts which are material for deciding this appeal 2 APEAL 965 OF 2010 are as under:- The first informant Vaishali Yadav, was married to a person serving at Jath about a year before the incident. Her parental house is at village Belunki, Tal. Jath, District.Sangli. She has an aunt, who used to reside with her parents. Her aunt was deaf and dumb and was also possibly mentally retarded. Vaishali had come to her parental house in the Deewali of 2007 and continued to stay with her parents because her mother sustained a fracture. On 22nd March, 2008 according to Vaishali, all members of her family except the victim, had gone for their work. She too, left the victim at home and went to visit one Akkatai. She returned home in the afternoon and found a bicycle and a pair of chappals. She saw the appellant, having intercourse with the victim. On her raising cries, appellant put on his clothes and sought to run away with the bicycle, but she managed to have the bicycle retained. On the next morning, after her father had returned on the previous night, she gave report to the police, since the victim herself could not have been given the report. The victim had been sent for medical examination. In course of investigation, police seized the clothes of the victim as well as appellant, they conducted panchnama of spot, recorded statement of witnesses, sent incriminating articles to Forensic Science Laboratory and on completion of investigation, filed a 3 APEAL 965 OF 2010 chargesheet in the court of Judicial Magistrate First Class, Jath, District: Sangli, who committed the case to the Court of Sessions at Sangli. 3. The learned Additional Sessions Judge, charged the appellant of offence punishable under Section 376 of the Indian Penal Code. Since the appellant pleaded not guilty. He was put on trial at which the prosecution examined in all five witnesses in its attempt to bring home the guilt of the appellant. 4. After considering the entire evidence in the light of defence of denial, learned Judge convicted and sentenced the appellant as indicated earlier. Aggrieved thereby the appellant has preferred this appeal. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the record. P.W-1, Vaishali – the first informant is victim’s niece, who states having actually seen the appellant having intercourse with the victim. P.W.2-Daulu Patil and Vaishali’s brother - P.W.3- Dadasaheb Babar, stated about extra judicial confession, allegedly made by the appellant to them after the incident. P.W.4 - Dr. Habib Nadaf has proved the Medico Legal 4 APEAL 965 OF 2010 Certificate in respect of victim. He had not actually examined the victim. Victim was examined by one Dr. Mrs. Kadam, who was not available for giving evidence. P.W.5- P.S.I.-Suresh Jagtap conducted investigation. 6. Learned counsel for the appellant submitted that the learned trial Judge should not have relied on the evidence of Vaishali – P.W.-1, P.,W. 2 Daulu Patil or P.W. 3 Dadasaheb. He pointed out that the medical evidence, ruled out any recent rape of the victim Exh.27, the certificate proved by Dr. Nadaf shows that there were no recent hymeneal tears. According to Dr. Nadaf when the opinion is that there is no recent hymeneal tear it means that the woman was habituated to sexual intercourse. As regards to age of abrasion, he stated that age of abrasion was not mentioned and such abrasion could be possible while doing work in the field. He had also stated in his cross examination even the deaf and dumb person can have sexual desire. Therefore, the evidence of P.W.4 Dr. Nadaf would rule out the possibility of the victim having been subjected to recent sexual assault. 7. Learned counsel next submitted that the evidence of P.W.-1 Vaishali herself is not free from doubt. He pointed out that Vaishali had stated that the houses of Daulu Patil and Akkatai Mali are at a distance of 150 feet from the place 5 APEAL 965 OF 2010 where the assault took place. The appellant Vithoba Kadam resides about one and half to two Kms from the victim’s place. Vaishali also stated that Vithoba was distantly related to them. Vaishali stated that though the victim was deaf, dumb and mentally retarded, she was doing her own pursuits and used to demand what she wanted by making gestures. She used to take cattle for grazing and also used to do household work if asked. In this context the evidence of PW.4 Dr. Nadaf, would have to be considered again. Dr. Nadaf had stated that in order to determine the percentage of mental retardedness, patient should be examined by an expert. The account of activities carried out by the victim given by P.W.1 Vaishali, indicates that the victim was not of such as could not at all communicate with the world at large. If she could do household work, could demand whatever she wanted, could take cattle for grazing, she could have been examined to gather as to what exactly happened rather than depending upon the evidence of Vaishali. 8. Learned counsel, for the appellant also pointed out that if the incident of such type had taken place in the afternoon, there is no reason why the report about incident was not given immediately and why informant chose to give report next morning. He pointed to the suggestion in cross examination of Vaishali that the appellant Vithoba too was 6 APEAL 965 OF 2010 dull and slow in behaviour. Vaishali denied suggestion that her family members had proposed marriage of victim with Vithoba. It is curious to note that P.W.1 Vaishali stated that she did not know whether Vithoba was dull or slow in behaviour and she had not outright denied that Vithoba was not slow or dull in behaviour . 9. Learned counsel for the appellant next submitted that the story of extra judicial confession to P.W.2 Daulu and P.W.3 Dadasaheb Babar is impossible to believe because P.W. 2 Daulu admitted in his cross examination that the appellant was not on visiting terms with him. Appellant never came for work with the witness or to help him. Appellant is not close relative of the witness and therefore, the learned counsel wondered as to why the appellant would choose to go and make extra judicial confession to Daulu. He stated that the entire story about extra judicial confession is contrived. P.W. 2 Daulu Patil, P.W.3 Dadasaheb stated that they were at the house of Daulu when the appellant came to report about the incident to them. According to P.W.1 Vaishali, the residence of Daulu is just 150 feet from the place where rape took place. It is difficult to imagine that when Vaishaili noticed the victim being raped and claimed to have raised hue and cry, despite being just 150 feet away from the spot, Daulu did not rush to the spot. Therefore, the story about extra judicial confession 7 APEAL 965 OF 2010 to P. W.2 and 3 as contended by the learned counsel for the appellant appears contrived. 10. Non examination of the victim herself, unreliable testimony of P.W.1 Vaishali and the contrived story about the extra judicial confession, coupled with the medical evidence as well as the fact of reports from the Chemical Analyzer not supporting the story of rape, should have led the learned Sessions Judge to extend the benefit of doubt to the appellant. 11. In view of this, the appeal is allowed. The conviction of the appellant for the offence punishable under Section 376 and sentence of R.I. for 7 years with fine of Rs. 7,000/- or in default R.I. for 7 months, is set aside and the appellant is acquitted. Fine if paid be refunded to the appellant. Appellant be set at liberty if not wanted in any other case. (R. C. CHAVAN, J.)