Criminal Appeal No.83 of 2002

16th January, 2003

Petitioner Counsel: Shri. M. B. NAIDU
Respondent Counsel: Shri. K. S. DHOTE

Cases Cited:
Tukaram Vs. State of Maharashtra, AIR 1979 SC 185 [Para 11]

JUDGMENT

JUDGMENT:- Heard Shri. Naidu, Advocate for the appellant and Shri. Dhote, APP for the respondent.

2. This appeal is filed for quashing and setting aside the judgment and order dated 30.1.2002 passed by the First Additional Sessions Judge, Gondia, in Sessions Trial No.7 of 1998, convicting the present appellant (hereinafter referred to as "accused") for an offence punishable under Section 376 of Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer Rigorous Imprisonment for two years.

3. The brief facts of the prosecution which appear from the record are as under:

(a) The prosecutrix Imlabai Rahangdale was at the time of incident a married woman aged about 26 years with two children. On the date and time of incident, she was residing in her house at village Nagpur, Taluqa - Amgaon, along with her son and daughter.

(b) According to Imlabai on the date of incident i.e. on 13.11.1997, she was alone in the house along with her children as her husband was at Nagpur. After dinner she and her children went to bed. That about 9.00 PM, the accused came to her house, got hold of her person and committed forcible rape on her. Then her brother-in-law i.e. Ambar Rahangdale came there. Her brother-in-law caught hold of the accused but the accused freed himself and ran away.

(c) On 14.11.1997, at about 9.00 AM, the prosecutrix - Imlabai filed a complaint with the Amgaon Police Station and a crime under Section 376 of I.P.C. is registered against the present accused.

(d) On 14.11.1997, the prosecutrix - Imlabai was sent to the Medical Officer for examination by the Police but on her examination, no injury was found on any part of her body including private parts.

(e) In the report dated 15.11.1997, doctor opined that no definite opinion can be given about the prosecutrix being subjected to sexual intercourse.

(f) On 15.11.1997, the clothes of Imlabai including her Jangiya and Petticoat were seized under Panchnama Ex.41.

(g) On 16.11.1997, the accused was arrested and his clothes including his Jangiya were seized under Panchnama.

(h) Under a covering letter dated 26.11.1997, the seized articles and certain other articles like the blood of the accused as well as of prosecutrix, pubic hairs and smear, semen slides blood samples were sent to the Chemical Analyser. The Chemical Analyser report indicated that the semen of blood group "A" was found on the Jangiya of accused and similarly semen of blood group "A" was found on the Jangiya of prosecutrix.

(i) After completion of investigation, the charge-sheet came to be filed.

4. In the trial, the prosecution examined as many as 10 witnesses and on appreciation of evidence and the statement of the accused, the impugned judgment and order convicting and sentencing the accused as aforesaid came to be passed.

5. I have perused the judgment and record of the case. The present case is a case where the Medical examination of the prosecutrix - Imlabai has not produced any evidence to support the case of forcible intercourse. Admittedly, there are no injuries on the body of Imlabai and the doctor has categorically opined that he was not in a position to give opinion as to whether she was raped. Apart from the medical evidence, the Chemical Analyser's report indicates that semen of blood group 'A' was found on the underwear of the accused as well as of the complainant - Imlabai. Though normally speaking this would corroborate the story of Imlabai which I will deal with shortly, I find that the sealing of these articles purported to be seized under two separate panchnamas have not been properly proved. To prove these panchnamas, a common panch Mangru Rahangdale was examined as P.W.9. However, the said Mangru did not support the prosecution and stated that the police obtained his signature on the panchnamas and that he did not know the contents of the panchnamas. He was, therefore, declared hostile. The panchnamas were thereafter got proved through the evidence of Investigation Officer P.W. 10-Vasanta Natthuji Gadhave, ASI. A perusal of both these panchnamas also indicates that there was no reference to sealing of these articles. From the record it is clear that these articles were lying in the police station from the date of the seizure till 26.11.1997 i.e. for more than a week before these were sent to the Chemical Analyser. No doubt the report of the Chemical Analyser indicates that he had received several sealed bundles and bottles, it is, however, not clear from the record as to when and how these articles were sealed. Insofar as the underwear of the accused is concerned, the finding of semen stain on the underwear of the young person may not have very great probative value. Insofar as the underwear of the prosecutrix is concerned, the probative value of such evidence would stand reduced in the absence of evidence to show that the same were properly sealed at the time of panchnama.

6. This brings to the prosecution case as deposed to by the prosecutrix - Imlabai. I have noted that in her evidence, she has only stated that the accused came to her house at 9.00 PM, caught her person and committed forcible rape on her. She has not stated in her substantive evidence that she raised or attempted to raise any hue and cry or resisted the accused person. In her substantive evidence, she has also not stated that the accused has threatened her with dire consequences if she raise a hue and cry. She has also not stated as to how the accused came inside that house, specially when her case was that the accused arrived after she had gone to bed. It would normally be expected that a woman sleeping with two children would lock her house from inside before she went to sleep. A glance at the spot panchnama would indicate that the place where she went to sleep was in the Chhappar which is shown to be on the first floor above the staircase in the house. Access to such a place could only have been obtained by a person through the door of the house which would normally have been locked inside when the inmates have gone to bed. In her F.I.R. the prosecutrix has talked about the accused giving threats to her by saying that if she would shout, he would kill her. In the FIR she stated that she was frightened and out of fear she did not shout and did not call anybody and when she was about to call someone, her brother-in-law Ambar and one Deoram Kukudkar caught hold of the accused. However, in her substantive evidence, the prosecutrix does not say anything about any threat given by the accused and since no such material was brought on record, the defence chose not to cross-examine on this aspect of the matter. In her substantive evidence, the prosecutrix stated that at the time of incident, her brother-in-law - Ambar came there and caught hold of the accused on the loft (Patan).

7. The prosecution has examined the brother-in-law - Ambar Rahangdale as PW 3. He has deposed in his evidence that on hearing some shouting, he went to the house of the complainant and he found a slipper and shawl in the house. According to him, the complainant then told him that somebody entered in the house and committed rape on her. Since the complainant - Imlabai told him that somebody committed rape on her, he checked the loft of the house and found the accused on the loft. He caught hold of the accused but the accused rescued himself and ran away. At that time, Deoram and Bhagwandas came there. This version of witness P.W. 3 Ambar to the effect that the complainant told him that somebody entered in the house and committed rape on her is a proved omission in the police statement of Ambar. It may be recalled here that in her substantive evidence she does not talk about shouting or raising hue and cry. It cannot be forgotten that the two children of Imlabai were said to be sleeping next to her. Unfortunately, the age of the children has not been brought by the prosecution on record. But on the reading of evidence of Ambar, it appears that he visited the house of the complainant and on finding certain articles belonging to the accused, found the accused hiding in the loft.

8. The prosecution has examined one Jaisheela Rahangdale as PW 5, who has given a completely different version. He claims to know the accused and states that on the day of incident at about 12 night, when he was returning from the house of Pushram Guruji after watching T.V. on way, he saw accused entering in the house of Imlabai. This version is inconsistent with the prosecution case that the accused has come to the house of Imlabai at 9.00 PM. Obviously at 12 midnight, this witness could not have seen the accused entering into the house of Imlabai. The witness further states that he called his father i.e. Ramlal and along with his father he visited to the house of Imlabai and that he burnt a lamp and they saw the accused on the loft. According to him, his father Ramlal pulled down the accused from the loft and gave him two slaps and thereafter the accused ran away. This witness neither refers to the presence of Ambar nor to the presence of Deoram, who according to the prosecutrix came and caught hold of the accused. The father of this witness by name Ramlal has not been examined by the prosecution, therefore, it is clear that the version given by this witness is in complete variance with the version of the prosecutrix as well as P.W. 3 - Ambar.

9. The prosecution has then examined one Bhagwandas Diwanji Motghare as PW 6. This witness has given a third version in which he has stated that on hearing the shouting, he visited the house of Imlabai. Imlabai told him that the accused committed rape on her. He found Chappal, Shawl and Gamchha of the accused in the house of Imlabai and saw the accused while running away from the house. However, in the cross-examination, this witness stated that when he entered in the house of Imlabai, he saw Imlabai was wearing an underwear. At the time, no one was along with her. He contends that thereafter he called Jaisheela, Ambar. This version given by this witness is completely in variance with Imlabai and Ambar. Both Imlabai and Ambar do not refer to the presence of Bhagwandas at all. Even Jaisheela does not refer to the presence of Bhagwandas. If Bhagwandas had come before Jaisheela and Ambar and had seen the accused running away, then obviously, Ambar could not have caught hold of the accused and the father of Jaisheela by name Ramlal could not have pulled down the accused from the loft and given him two slaps.

10. In the overall circumstances of the case, I find that the evidence indicates that the accused had access into the house of the prosecutrix. Normally speaking if the accused had been discovered, he would have fled from the premises through the door. The fact that he was hiding on the loft would be indicative of the fact that he probably felt confident that his presence on the loft will not be disclosed atleast by the complainant - Imlabai. It is another matter that on seeing his articles in the house, a search was made of the loft and he was found.

11. It is well settled that all the ingredients of Section 375 of I.P.C. should be brought home by the prosecution beyond reasonable doubt. One of such ingredients is that intercourse occurred without the consent of the woman who was alleged to have been raped. In the case of Tukaram Vs. State of Maharashtra, reported in AIR 1979 SC 185, the apex Court while dealing with the case of rape, observed as under :

"Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of S.375 of the I.P.C. were present in the case of the sexual intercourse attributed to Ganpat appellant."

12. In my view, though the accused had come with the defence of total denial, that by itself will not affect the duty and requirement of prosecution to prove all the ingredients of the offence as in a criminal case. Such onus would never shift except when a presumption applies. I find that in such a case the possibility of consent cannot be ruled out and an element of doubt creeps into the case of the prosecution whether the act of sexual intercourse was forcible and without the consent of Imlabai. The benefit of such doubt will have to go to the accused.

13. In the result, Criminal Appeal is allowed. The impugned judgment and order passed by the First Additional Sessions Judge, Gondia, in Sessions Trial No.7 of 1998 is quashed and set aside and the appellant is absolved of all charges. The fine, if any, be refunded.

Appeal allowed.