1 Cri-Appeal-771 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.771 of 2007 Aannaso Shripal Bukade. ... ... Appellant (Orig. Accused) V/s. State of Maharashtra ... ... Respondent Mr.Surel Shah for Appellant. Mr.S.A. Shaikh, APP for State. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 27th April 2011 Date of pronouncing the judgment : 3rd May 2011 JUDGMENT : 1.The Appellant (original accused) has challenged his conviction and sentence under Section 376 of the Indian Penal Code (IPC) and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC & ST Act) in Sessions Case No.159 of 2006 by the learned Additional Sessions Judge-2, Kolhapur in his judgment dated 26th July 2007. 2.The case against the accused was that on 26th August 2006 at about 5 p.m. when the victim girl was going 2 Cri-Appeal-771 into the field for fetching drinking water the accused dragged her and committed rape on her and that he violated her under the SC & ST Act. The prosecution examined eight witnesses in support of the charge, the main being the prosecutrix and her mother as well the Medical Officer who examined the prosecutrix after the incident. The prosecution has also examined three panchas, one for recovery of clothes of the accused, the other for recovery of the clothes of the victim girl and another for spot panchanama. 3.The material evidence in this case is, therefore, of the prosecutrix corroborated by the Medical Report. She has been examined as PW2. Her evidence shows that on 26th August 2006 when she was going to the river with a pitcher for fetching drinking water the accused dragged her into the sugarcane crop and raped her. He fell on her and caused the penetration. She returned to her house and informed her mother. Her father came home at night. On the next day, the FIR was lodged. 4.Her cross-examination shows details about the incident. She has deposed that she shouted loudly. She has denied that there were many passersby. She has also deposed that after the accused took her into the field she did not try to run away but requested him not to do anything with her. Her cross-examination shows that he 3 Cri-Appeal-771 did not remove his clothes or her clothes. She has further deposed that he just pulled up her clothes above her waist and did that act. Further in the cross-examination she has confirmed that the accused did not take out his clothes. He took up his pant slightly. 5.She has deposed about certain injuries caused to her when he fell on her on the ground. These were scratches and abrasions on her hips, face, both hands, stomach and heals. She deposed that those injuries remained about eight days of the incident. The evidence of the doctor, who has been examined as P.W.8, shows the certificate issued by him. His evidence shows that two abrasions over the back intra scapular region which were reddish in colour, denoting that the injuries occurred within 24 hours of the examination. The examination was held on the night between 26th and 27th August 2006. The injuries were simple in nature caused by hard and blunt object. Aside from those injuries, there were no other injuries seen by the doctor, including the injuries in the genitals. The certificate of the doctor marked Exhibit-27 shows this aspect clearly. The further certificate of the doctor, after the Chemical Analyser s (C.A.) report also confirms the aforesaid injuries only. It further shows that the patient is habituated to sexual intercourse. Her 4 Cri-Appeal-771 evidence shows that she was married once. She lives with her parents away from their family. In such a scenario, the aforesaid certificate of the doctor assumes importance in showing lack of violation upon her person. 6.Drawing my attention to the contradictory and oral evidence and lack of any corroboration, Mr. Surel Shah on behalf of the Accused argued that the charge of rape has not been substantiated. The various injuries which she stated in her cross-examination are not found in the Medical Report. Her evidence, therefore, does not show the offence of rape committed upon her. 7.Her mother, who has been examined as P.W.2, has deposed how her daughter narrated the incident to her upon her return. Her husband returned at 10 p.m. when he was told about the incident. Her cross-examination shows that after her daughter deposed at 6 p.m. she called back her husband at 6.30 p.m. Further cross-examination shows that her husband had gone to see her half way as she had returned late. This evidence is directly contrary to her evidence in the examination-in-chief as also the evidence of the victim herself showing that her father came home at night. That evidence neither shows that he was called home early nor that he had gone to see her. Though that evidence is not directly 5 Cri-Appeal-771 related to the incident, it shows lack of credibility of the evidence. 8.The victim has stated that she had taken bath and washed her clothes. Hence recovery of her clothes becomes immaterial. Report of the C.A., Exhibit-32, does show blood and semen stains on her petticoat and the underpant of the accused. However, the blood group is inconclusive. No semen has been detected on other clothes. The C.A. report also, therefore, fails to support the victim s story. 9.So far as the charge under Section 3 of the SC & ST Act is concerned, the only evidence is the production of the caste certificate of the victim girl. That does not show any offence being committed upon her. Her deposition shows her caste as well as the caste of the accused. The evidence is wholly redundant in the absence of any overt act or intention of the accused shown by the victim. 10.The charge under the SC & ST Act is left completely unproved. The charge under Section 376 of the IPC is also not shown to be proved beyond reasonable doubt after seeing the evidence of the victim herself. 11.The impugned judgment has considered the credibility 6 Cri-Appeal-771 of the evidence of the victim. The learned Judge has found it to be acceptable and believable on the ground of lack of animosity against the accused. The learned Judge has also considered certain injuries suffered by her on her hips. That, however, is not substantiated by the medical certificate of the independent doctor. The learned Judge has considered that the mother has supported her case. However, the evidence of the mother with regard to the incident is purely hearsay as it was upon narration by the victim herself. Though her initial examination took place within an hour, the learned Judge seems to have placed no importance upon the evidence of the doctor that there were no visible injuries other than the aforesaid injuries on the two scapulars. He has laid much stress upon the fact that the injuries would be possible if some one falls on the back and is struck to the earth. The material fact is that the victim has had no injuries in the genital part and the report of the doctor shows that she was habituated to sexual intercourse. This was though she was married once . The learned Judge has also laid stress upon the C.A. report showing that it had a human blood which was washed. However, since the blood group is inconclusive, the blood of any of the garments cannot be attributed to the accused. Consequently, the conclusion of the learned Judge that the evidence of the victim, who is a rustic lady, is trustworthy and 7 Cri-Appeal-771 reliable corroborated by her mother s evidence and medical evidence and other evidence on record is seen to be insufficient to prove the aforesaid two charges against the accused beyond reasonable doubt. 12.Consequently, the appeal is allowed and the conviction under the impugned judgment of the learned Additional Sessions Judge-2, Kolhapur dated 26th July 2007 in Sessions Case No.159 of 2006 is set aside. The accused has been in custody since the date of the incident. He shall be released. (SMT.ROSHAN DALVI, J.)