1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI. APPLICATION (APPA) NO.137 OF 2011 IN CRI. APPEAL NO. ______/2011 (State of Maharashtra ..vs.. Shankar s/o Vishnu Pakhare) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri T.A. Mirza, APP for the applicant-State. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : 15-06- 2011 . The applicant-State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 03-12-2010 passed by the learned Additional Sessions Judge, Khamgaon in Special Atrocity Case No.3/2010, whereby the respondent-original accused came to be acquitted of the offences punishable under Sections 376, 354, 452, 506 of the Indian Penal Code and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case briefly stated is as under :- Prior to 10/11 days of 07-12-2009, the prosecutrix (P.W.1) had gone to the field of Narayan Jamav along with her aunt Laxmibai and grandmother Saraswati for plucking cotton. While plucking cotton the prosecutrix lagged behind the other women. At about 2-00 p.m. to 2.30 p.m. the respondent Shankar came from behind the prosecutrix and by holding her hands dragged her to the field owned by Trambak Bawane. The respondent then forcibly undressed the prosecutrix and also removed his 2 clothes and committed forcible sexual intercourse with the prosecutrix. The respondent had pressed the mouth of the prosecutrix so that she would not raise shouts. After the incident of sexual intercourse, the respondent snapped photographs of the prosecutrix on his cell phone and threatened that if she discloses anything about the incident to anyone, he would chop the legs of her father. Thereafter prosecutrix dressed herself and went to pluck cotton. She did not disclose about the incident to her parents on account of fear that she would be defamed. On 17-12-2009 at about 11-00 p.m. while the prosecutrix was all alone in the house, the respondent entered in the house of prosecutrix with a ill-intention in his mind. He caught both the hands of the prosecutrix and started undressing her. The prosecutrix raised shouts. Her Uncle Bhanudas came on hearing the shouts and slapped the respondent. The respondent then went abusing and threatening that he would show the photographs snapped on his cell phone to the villagers. The prosecutrix then went to Police Station Shegaon along with her father and uncle Bhanudas and lodged First Information Report. Thereafter investigation commenced. The prosecutrix was sent for medical examination. After completion of investigation, the charge- sheet came to be filed. 3. Charge came to be framed against the respondent for the offences punishable under Sections 376, 354, 452, 506 of the Indian Penal Code and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The respondent pleaded not guilty to the said charge and claimed to be tried. The defence is that of total denial and false implication. After going through the evidence adduced 3 in this case, the learned Sessions Judge acquitted the respondent as stated in paragraph 1 above, hence, this application for leave to file appeal. 4. We have heard the learned Assistant Public Prosecutor for the applicant-State. We have perused the judgment and order passed by the learned Sessions Judge as well as evidence in this case. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that no case is made out for granting leave to file appeal. 5. The prosecutrix (P.W.1) is the star witness in this case. The prosecutrix has deposed that on the day of the incident, she had gone to the field of Narayan Jamav to pluck cotton balls. Her aunt Laxmi and grandmother Saraswatibai were with her. There were three other women who were also doing labour work in the field and Kaminibai (P.W.7) who was also present, was monitoring the work. The prosecutrix further deposed that while she was plucking cotton balls, she lagged behind, while her aunt and grandmother went ahead. At about 2-00 p.m. to 2.30 p.m. respondent-Shankar came from behind. He caught her hands and dragged her to the field of Trambak Bawane. The respondent-accused undressed her in the said field and removed his clothes and committed sexual intercourse with her. He also snapped her photographs on his cell phone and threatened the prosecutrix not to disclose anything about the incident to anyone otherwise he would show the photographs to others and chop legs of her father. She further deposed that the respondent had pressed her mouth so that she should not raise shouts. After the aforesaid incident, the prosecutrix again came to the field of Narayan Jamav to pluck cotton balls, at that time, she 4 was questioned by the women working in the field, as she was frightened she replied that she had gone to answer call of nature. 6. The evidence of the prosecutrix clearly shows that when she was plucking cotton, her aunt Laxmi and her grandmother Saraswatibai were very much present in the field. So also other women and Kaminibai (P.W.7) were also present in that field. In such case if as per the deposition of the prosecutrix the respondent had come to the field and caught hold of her hands and dragged her to the adjacent field of Trambak Bawane, it is not possible that the other ladies would not have seen the respondent while dragging the prosecutrix away. It is rather surprising to note as to how the respondent could dare to forcibly drag the prosecutrix away when the women working in the field were not far away from the prosecutrix. It is also surprising to note as to why the prosecutrix did not raise shouts when she was being dragged by the respondent. Had the prosecutrix raised shouts for help then certainly the attention of the other ladies in the field would have been attracted and they would have rushed to rescue or save the prosecutrix from the clutches of the respondent. Moreover, the incident has occurred in broad- day-light where there were six other women working in the field. It is just not possible that they would not have noticed the respondent forcibly dragging the prosecutrix. Looking to all these facts the veracity of the prosecutrix appears to be doubtful. 7. It is also to be noted that the prosecutrix has given different versions in her statements recorded by the police. The statements of the prosecutrix were recorded on 17-12-2009, 20-12-2009 and 06-1-2010. In one statement, 5 the prosecutrix states that the incident of rape took place in the field of Narayan Jamav whereas in the other she states that it took place in the field of Trambak Bawane. Thus, there arises doubt as to where the alleged incident had actually taken place. There are also material improvements in the evidence of prosecutrix. In her examination-in-chief, she has stated that after the incident had took place, she came back to the field to pluck cotton, at that time she was questioned by the women working in the field, as she was frightened she replied that she had gone to answer call of nature. This is new story put forth by the prosecutrix. Another glaring omission is that in her deposition the prosecutrix has stated that the respondent threatened her if she disclosed about the incident to anyone then he would show the photographs snapped by him on his cell phone to others. These omissions also cause a serious dent in her testimony. 8. The prosecutrix has admitted that she did not raise shouts when she was being dragged to the field of Trambak Bawane. She also admitted that she did not raise shouts when her clothes were removed by the respondent. The reason given by the prosecutrix is that the respondent had pressed her mouth and therefore, she could not raise shouts. It is admitted by the prosecutrix in her cross- examination that the accused had pressed her mouth right from the beginning till she returned to the field after the incident. It appears improbable that a person could forcibly drag the prosecutrix away by holding both her hands as well as press her mouth at the same time. It also appears highly improbable that a person could remove the clothes from the person of the prosecutrix and at the same time keep her mouth pressed. It also appears improbable that a person 6 could snap photographs of the prosecutrix on the cell phone and still manage to keep her mouth pressed. It is rather hard to digest that a person would be able to keep the mouth of the prosecutrix pressed throughout. Hence, the story put forth by the prosecutrix that her mouth was kept pressed throughout by the accused hence she could not raise shouts appears to be improbable and not believable. Besides this we find many contradictions and improvements in the evidence of the prosecutrix. 9. It has come in the cross-examination of the prosecutrix that the respondent had felled her down in the field and then committed forcible sexual intercourse, according to her, she had put up resistance and she had received injuries on her back. It is further brought on record in the cross-examination that she had shown her injuries to the doctor in the hospital. At this juncture, it would be advantageous to refer to the evidence of P.W.9-Dr. Vaishali who had examined the prosecutrix after she was referred by the police. P.W.9-Dr. Vaishali has stated that she took detail history from the prosecutrix and also stated in her examination-in-chief that the prosecutrix had disclosed that the respondent had committed sexual intercourse with her on 17-12-2009. The medical examination certificate Ex.41 makes it clear that the Medical Officer P.W.9-Dr. Vaishali did not find any injury on the body of the prosecutrix. Hence, the evidence of the prosecutrix that injuries were caused to her during the incident of sexual intercourse and that she had shown the injuries to the doctor falls to the ground. 10. From the evidence of the prosecutrix it becomes clear that she did not raise shouts nor did she resist the respondent nor has she disclosed about the incident to 7 anyone for a period of 10/11 days till the report dated 17-12-2009 came to be lodged. From the facts of this case total silence on the part of the prosecutrix either shows that such incident as alleged by the prosecutrix had never taken place or that she was a consenting party and she has been forced by her relatives to lodge a fake complaint. This becomes even more apparent from the fact that in the First Information Report lodged by the prosecutrix a number of words have been used. The prosecutrix in her cross- examination was asked the meaning of these words, which appeared in the First Information Report allegedly lodged by her, however the prosecutrix stated that she did not know the meaning of the aforesaid words. This again creates doubt as to who was the person to give contents of the report, as it does not appear to be the prosecutrix who has stated the contents in the First Information Report. 11. The prosecutrix in her cross-examination has denied that she was habituated to sexual intercourse prior to the incident in question. However, P.W.9-Dr. Vaishali after examining the prosecutrix found hymen old torn and vagina admits two fingers interiorly and posterierly. The said findings of the Medical Officer do show that the prosecutrix was habituated to sexual intercourse. This again shows that the incident is a case of consent. 12. As far as the age of the prosecutrix is concerned, according to the prosecution, the prosecutrix was a minor aged 15 years three months on the day of incident. The question of age of the prosecutrix in cases under Section 376 of the Indian Penal Code is always of paramount importance. It is particularly so in this case because according to the medical evidence prosecutrix was found to have been used to sexual intercourse and the rupture of the hymen was old. 8 Each case has to be determined on the touch stone of the factual matrix thereof, hence, we have carefully examined the evidence in this case to find out whether it can reliably be said that the prosecutrix was indeed as minor and whether it is a case of rape or a case of consent. 13. For the purpose of offence under Section 376 of the Indian Penal Code, it would be an offence of rape if the same is committed with or without consent when the prosecutrix is under 16 years of age. In relation to age the prosecution has examined the Medical Officer P.W.9 Dr. Vaishali and P.W.17-Hemant Deshmukh. The Medical Officer P.W.9-Dr. Vaishali has stated that ossification test is subject to plus or minus by two on either side. Thus from the medical evidence it cannot be said that the prosecutrix was below 16 years of age at the relevant time. P.W.17-Deshmukh was serving as Secretary of Gram-panchayat Karmoda, Tahsil- Sangrampur. He prepared birth certificate as per the record maintained by the Gram-panchayat Karmoda and issued certificate Ex.81. The date of birth shown in the certificate of the prosecutrix is 18-2-1994. The alleged incident of rape is said to be taken place on 10/11 days prior to 17-12-2009. We take it that the incident of alleged rape took place on 7-12-2009 which would mean that the prosecutrix was about 15 years and 3 and half months old at the time of incident. However, it is pertinent to note that P.W.17 was unable to state on whose information the date of birth of the prosecutrix was taken. Moreover, there is overwriting in the relevant entry, in such case it is difficult to place reliance on this certificate. 9 14. On going through the evidence, we find that there is no reliable material on record to show that at the time of incident the prosecutrix was 16 years of age. Looking the conduct of the prosecutrix and other circumstances which have emerged in this case, it clearly appears to be a case of consent. It appears that when the respondent entered the house on 17-12-2009, her Uncle P.W.2-Bhanudas caught him. Thereafter a false case has been registered against the respondent. The learned Sessions Judge has taken into consideration these aspects as well as other aspects in this case and thereafter acquitted the respondent-accused. We may make useful reference to a decision of the Supreme Court in State of Uttar Pradesh .vs. Dinesh (2009) 3 Scale, 345 wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 15. Looking to the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view, hence, the application for leave to file appeal is rejected, consequently the appeal is dismissed. JUDGE JUDGE pma