1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.399 OF 1998 Premnath s/o Vishvanath Kokate, Age 35 years, Occ. Agriculture, r/o Salgara (Maddi), Tq. Tuljapur, Dist. Osmanabad APPELLANT VERSUS The State of Maharashtra RESPONDENT Shri. M.D.Shinde, Advocate for the appellant Shri. K.S.Patil, Advocate for the respondent CORAM : R.Y.GANOO, J. DATE : 24.11.2011 JUDGMENT : 1. The appellant faced trial under section 376 of the Indian Penal Code in Sessions Case No. 55/96 in the Court of learned Sessions Judge, Osmanabad. The learned Sessions Judge, Osmanabad, by judgment and order dated 19.11.1998 convicted the appellant under section 376 of Indian Penal Code and sentenced the appellant to suffer 2 rigorous imprisonment for 3 years and to pay fine of Rs.500/-. It was also ordered that in default of payment of fine, the appellant should undergo rigorous imprisonment for 3 months. It was also ordered that out of fine amount, a sum of Rs.300/- be paid to the complainant Nirmala w/o Ambadas Rankhamb by way of compensation. This order and judgment dated 19.11.1998 is challenged by this appeal by the original accused. 2. The prosecution case in gist is as under. P.w.no.1 Nirmala is a labourer and is required to go near percolation tank to attend to her job. According to prosecution, in the morning of 06.03.1995, she left her house situated in village Salgara (Maddi), Tq. Tuljapur to go to percolation tank. According to the prosecution, on the said date she had gone alone. According to the prosecution, as Nirmala reached nearby the field of Vitthal Sidram, the appellant caught her and had sexual intercourse with her in the bed of nala against her wishes. He then left towards his village. 3 Nirmala attended her work and in the evening she went to the house of Limbaji Kokate, brother of the appellant to inform him. Limbaji was not present at home but Limbaji's wife Gajarabai was present. Nirmala narrated the incident of rape near nala to Gajarabai. Gajarabai assured her that she would inform her husband about the sexual assault on Nirmala. On 06.03.1995, Nirmala did not file any police complaint. She went to bed in the space out of her hut alongwith her son. According to prosecution, at midnight, the appellant approached Nirmala and much against her wishes committed sexual intercourse with her. Nirmala thereafter approached the police at Naldurg in the morning of 08.03.1995 and lodged F.I.R. The said F.I.R. is at Exh.12. Police Head Constable Mr. Suresh Pawar recorded the said F.I.R. and registered crime vide F.I.R. no.40/95 under section 376 of Indian Penal Code against the appellant. Investigation was conducted. Statements of witnesses were recorded. Scene of offence panchanama in regard to two places where the sexual intercourse alleged to have 4 been committed by the appellant were recorded being exhs. 13 and 23. Nirmala was sent for medical examination on 09.03.1995. The doctor attached to General Hospital, Osmanabad examined her and gave a report immediately on 09.03.1995 in the evening. The petticoat and saree of Nirmala were seized under panchanama exh.21 on 09.03.1995. Those articles were sent to C.A., who gave his report dated 06.07.1995. He reported that on petticoat semen is found and no blood stains were found. On saree, no semen or blood stains were found. Vaginal swab as well as pubic hairs were also sent to C.A. and no semen was found on these articles. These samples were taken on 09.03.1995 i.e. two days after the incidents. 3. After carrying out necessary investigation, chargesheet came to be filed and the case was committed to the Court of Sessions. The learned Sessions Judge, Osmanabad framed charge against the appellant on 30.06.1998 at Ex.6 under section 376 of the Indian Penal 5 Code for having committed an offence of rape on 06.03.1995 as well as in the night of 07.03.1995. The appellant pleaded not guilty and claimed to be tried. 4. The prosecution examined following witnesses. 1. P.w.no.1 Nirmala Rankhamb, the complainant 2. P.w.no.2 Pradip Rankhamb is a young son of Nirmala p.w.no.1 who is said to have seen the incident of rape which had taken place in the night of 07.03.1995. 3. P.w.no.3 is Mohan Ghuge, a panch regarding seizure of petticoat and saree. 4. P.w.no.4 Anant Patil is a panch regarding scene of offence at exh.13. 5. P.w.no.5 Suresh Pawar is Police Head Constable B.No. 739, who recorded F.I.R. at exh.12 and registered crime vide C.R.No.40/95. 6. P.w.no.6 Navnath Dhole is a P.S.I. who carried 6 out investigation and filed chargesheet. 5. I have heard Shri.M.D.Shinde, learned Advocate for the appellant and Shri.K.S.Patil, learned A.P.P. for the State. Shri.Shinde, learned Advocate for the appellant took me through entire record. He pointed out that Nirmala P.w.no.1 and appellant were residing very close to each other and were on friendly terms. According to him, evidence of Nirmala shows that she had consented for sexual intercourse on both the occasions. Learned Advocate Shri. Shinde submitted that though according to Nirmala, first incident is alleged to have taken place on 06.03.1995, no F.I.R. was filed on the very day and F.I.R. came to be filed on 08.03.1995. According to him, there is delay in filing F.I.R. Shri. Shinde, learned Advocate for the appellant had taken me through the notes of evidence of Nirmala and had submitted that first incident is said to have taken place in open space i.e. in the bed of nala. According to him, it is improbable that a person would have sexual 7 intercourse in such a public place. He, therefore, submitted that it is impossible that appellant indulged in the sexual intercourse on 6.3.1995. In so far as incident of 07.03.1995 is concerned, he had submitted that it is improbable that in the night, the appellant would go to the house of victim and indulge in a sexual intercourse. Learned Advocate Shri. Shinde had submitted that Nirmala, in consultation with her husband, had created false story and had falsely implicated the appellant. Shri. Shinde, learned Advocate had submitted that though the prosecution claims that Pradeep was an eye witness to the incident of night of 07.03.1995, said Pradeep is not narrating in clear terms as to what he had seen and he is narrating what was told by his mother to him. According to him, the mother of Pradeep created a story and told Pradeep accordingly to prove her case. He submitted that evidence of Pradeep p.w.2 should be discarded. 6. Shri. Shinde, learned Advocate submitted that 8 no blood stain is found on the clothes of Nirmala which falsifies the case of the prosecution. He further submitted that the appellant was not subjected to medical examination and this is an important lacuna in the investigation and to that extent benefit of doubt should go to the appellant. 7. Shri. Shinde, learned Advocate further submitted that the doctor who examined Nirmala has not been examined and therefore, medical certificate issued by doctor attached to General Hospital, Osmanabad should not be treated as a document properly proved and therefore, medical certificate issued by the General Hospital, Osmanabad, should not be accepted. The learned Advocate for the appellant, therefore, submitted that on consideration of his submissions, this Court should acquit the appellant. 8. Shri. K.S.Patil, learned A.P.P. for the State opposed the submissions. He pointed out that words of 9 Nirmala have gone unchallenged so far as overt acts of having sexual intercourse with Nirmala by the appellant are concerned. He submitted that there is no effective cross examination to dislodge the evidence of Nirmala as regards allegations of sexual intercourse. He further submitted that Limbaji's wife was informed about the incident and that is how Nirmala thought it fit to attend to the matter. He pointed out that Nirmala has stated in the cross examination that she was afraid of the appellant and therefore, she did not lodge F.I.R. with the police on 06.03.1995. Learned A.P.P. Shri. Patil had submitted that after the incident of 07.03.1995, Nirmala came forward and lodged F.I.R. He, therefore, submitted that conduct of Nirmala should be treated as a conduct of a lady who was subjected to sexual assault. He submitted that Nirmala must have taken some time to get out of shock. Learned A.P.P. Shri. Patil submitted that words of Nirmala should be accepted in any case as regards incident of 07.03.1995 as the learned Sessions Judge, Osmanabad, has 10 disbelieved the incident of 06.03.1995. Learned A.P.P. Shri. Patil had submitted that finding of semen on petticoat of Nirmala is a circumstance against the appellant as the clothes were taken charge on 09.03.1995 itself. He submitted that though blood stains were not found on petticoat and saree, that does not affect the case of the prosecution. In so far as the evidence of P.w.no.2 Pradeep, learned A.P.P. Shri. Patil had submitted that at the time when the evidence was recorded he was a boy of 13 years. Said evidence was recorded in November, 1998. The incident had taken place in 1995 which means at the time when the incident had taken place he was a boy of 10 years. He pointed out that evidence of Pradeep goes to show that the appellant was present at the night of 07.03.1995 in the house of Nirmala. He further submitted that being the mother, Nirmala was initially finding it difficult to tell Pradeep, a boy of 10 years as to what happened. Ultimately Nirmala told Pradeep a gist of the incident in a very modest manner i.e. to say she told Pradeep 11 that the appellant had removed her saree and had sat on her body. P.w.no.2 Pradeep had seen Nirmala weeping. According to Shri. Patil, learned A.P.P. this factor goes against the appellant. 9. Learned A.P.P. Shri. Patil had, therefore, submitted that looking to entire case and appreciating the evidence in the light of his submissions, this Court should accept the case of the prosecution. He further submitted that the findings given by the learned Sessions Judge, Osmanabad that the appellant committed rape on Nirmala should also be accepted by this Court. He, therefore, submitted that the impugned order dated 19.11.1998 should be confirmed by this Court. 10. After having considered the rival submissions, I am inclined to dismiss the appeal and confirm the judgment and order dated 19.11.1998 passed by the learned Sessions Judge, Osmanabad. 12 11. Firstly coming to the evidence of Nirmala. Nirmala may be staying nearby the appellant but there is nothing to show that she had consented for sexual intercourse. Her evidence shows that she was subjected sexual intercourse much against her wishes. In the entire evidence of Nirmala, there is no material to disbelieve her evidence and no omissions or contradictions have been brought on record to disbelieve the evidence given by her. Nirmala visited the house of Limbaji and narrated the first incident. She did not go to the police station on 06.03.1995 because she was scared and this explanation was found in the examination in chief. When the incident of 07.03.1995 took place, Nirmala went to police station on 08.03.1995 and lodged F.I.R. It is pertinent to note that Nirmala is a married lady and had 2 children. In such a situation, there is no question of Nirmala coming out with a false case solely to implicate the appellant. A married lady would not stake her married life by filing a false complaint. In my view, word of Nirmala has to be 13 accepted and it is required to be observed that prosecution has been able to prove that the appellant committed rape on Nirmala. 12. It is true that the medical examination of Nirmala was conducted by the Doctor at General Hospital, Osmanabad. Medical certificate has been marked as exh.15 and the concerned Doctor has not been examined. The said document is marked without any objection. It is true that Medical Officer has not been examined but as the medical certificate has been marked, same can be read. It is true that the medical certificate does not show any sign of Nirmala having suffered injuries however that by itself is not sufficient to discard the oral testimony of Nirmala p.w.no.1. I have already indicated that Nirmala is a married lady and that she showed courage to go to police soon after the incident of 07.03.1995 had taken place. Hence, though the medical certificate does not show any signs of injury to Nirmala that by itself does not mean that Nirmala had 14 consented for sexual intercourse. 13. The petticoat seized on 09.03.1995 shows semen stains and it is detected as human. Finding of the semen stains on the petticoat is a factor in favour of the prosecution. No semen stains are found on saree. This would not be against prosecution. Finding of semen on petticoat is a factor which supports the case of the prosecution and to that extent, the learned Sessions Judge was right in coming to the conclusion that the appellant had committed sexual intercourse on Nirmala without her consent. 14. I have perused the evidence of Suresh, a police constable, who had recorded F.I.R. Some effort was made by the appellant to bring on record two omissions regarding Nirmala having gone to the field alone and appellant had come from the field to Vitthal Sidram. Since learned Sessions Judge discarded the incident of 06.03.1995 these omissions pertain to the said incident, 15 these omissions have no relevance so far as this appellant is concerned. 15. In view of aforesaid discussion, I am inclined to observe that the stand of the appellant that he should be acquitted cannot be accepted. The learned Sessions Judge has considered the entire evidence and has come to the conclusion that the appellant committed sexual intercourse with Nirmala at least on one occasion i.e. in the night of 07.03.1995. This incident having been proved, the learned Sessions Judge was right in convicting the appellant under section 376 of Indian Penal Code. 16. The learned Advocate Shri. Shinde for the appellant had submitted that if the Court comes to the conclusion that appeal is required to be dismissed, he had prayed for mercy for the appellant. He had submitted that the incident is of 1995 and therefore, lenient view be taken. The learned A.P.P. for the State 16 opposed this prayer. After considering the arguments on the question of sentence, I am inclined to observe that as it is the learned Sessions Judge has shown mercy on the applicant, I do not think that this Court should reduce the sentence imposed upon the appellant. To that extent the argument advanced on behalf of appellant is rejected. For the reasons mentioned aforesaid, following order is passed to dispose of this appeal. ORDER 1. The appeal is dismissed. 2. The judgment and order dated 19.11.1998 passed by the learned Sessions Judge, Osmanabad in Sessions Case No. 55/96 thereby convicting the appellant under section 376 of Indian Penal Code and sentencing the appellant for imprisonment as well as fine as set out in the order dated 19.11.1998 is confirmed. 17 3. As of today, the appellant is on bail. Since the order of sentence is confirmed and since the appellant will have to undergo imprisonment, the appellant shall surrender to his bail. Bail bonds of the appellant stand cancelled. The appellant shall surrender to his bail on or before 22.12.2011. If he fails to surrender on or before 22.12.2011, the learned Sessions Judge, Osmanabad, shall issue appropriate warrant to arrest the appellant to undergo unserved imprisonment. (R.Y.GANOO, J.) vsm/criappeal399.98