2007 ALL MR (Cri) 2767
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

K.J. ROHEE AND S.R. DONGAONKAR, JJ.

State Of Maharashtra Vs. Rameshwar Shridhar Jaware & Anr.

Criminal Appeal No.214 of 1993

27th August, 2007

Petitioner Counsel: Mr. D. B. PATEL
Respondent Counsel: Mr. N. S. BADHE

(A) Evidence Act (1872), S.3 - Penal Code (1860), S.376 - Rape case - Appreciation of evidence - Testimony of prosecutrix - Cannot be treated as gospel truth - Evidence of prosecutrix can be relied upon in sex offences even if it is uncorroborated, but provided it is found wholesome and trustworthy.

In the present case, the circumstances prevailing in the village clearly makes out a case that in the cases of that village on allegations of rape, the evidence of prosecutrix cannot be treated as gospel truth. In the present case, as rightly pointed out by the learned appellate Judge, evidence of prosecutrix requires corroboration. Her uncorroborated testimony cannot be relied upon for basing the conviction. The cases cited by the learned A.P.P are distinguishable on facts. It is true that the evidence of prosecutrix can be relied upon in the sex offences even if it is uncorroborated, but provided it is found wholesome trustworthy. Here is the case where material evidence i.e. medical evidence and C.A.'s report tend to shed doubts on the prosecution case. The possibility of false accusation cannot be ruled out. The evidence of the prosecution witnesses is riddled with contradictions & omissions and top of all, she though claimed that she has resisted the forcible rape by the respondents, no remarkable injuries were found on her person. All this makes the Court to hold that the view taken by the learned appellate Judge cannot be said to be perverse. 2007 ALL SCR 961 - Ref. to. [Para 23]

(B) Criminal P.C. (1973), S.378 - Appeal against acquittal - Two views possible - One view taken by lower Court to acquit the accused, not altogether unreasonable and improbable - Judgment of acquittal not to be overturned - Appeal against acquittal, dismissed. 2007 ALL SCR 961 - Rel. on. (Para 24)

Cases Cited:
Sheikh Zakir Vs. State of Bihar, AIR 1983 SC 911 [Para 10]
State of Maharashtra Vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 [Para 10]
Chandrappa Vs. State of Karnataka, 2007 ALL SCR 961 : 2007(2) Crimes 103 (S.C.) [Para 12]


JUDGMENT

S. R. DONGAONKAR, J.:- Challenge of the appellant State in this appeal is to the judgment of the learned Sessions Judge, Buldana, in Criminal Appeal No.9/1990, by which he allowed the appeal preferred by the respondents who were held guilty by the Assistant Sessions Judge, Buldana, for the offences punishable under Section 376 and 354 r/w Section 34 of Indian Penal Code, each of them being sentenced to suffer R.I. for 7 years and to pay fine of Rs.1,000/- each, in default R.I. for 6 months, in Sessions Case No. 61/1988, and acquitted them of the charge.

2. The prosecution case in nutshell is that, prosecutrix PW-5 Ku. Savita d/o. Narhari Jaware is the resident of village Antri. She has a sister by name Manda, PW-8. She has a maternal aunt by name Sou. Kasturabai w/o. Mukinda Jaware PW-6. Police Patil of the said village is PW-7 Ganpat Devman Mahajan. On the day of incident i.e. on 12.11.1987, prosecutrix Ku. Savita, was asked to go to the field of her father at Antri to protect the crops. At that time she was aged about 16 years. The time was about 7 a.m. Her father had gone to village Motala. Her mother had gone to the other field. Prosecutrix went to the said field known as "Ambewali". field with a dog. When she reached to the field, it was at about 7.30 a.m. She tied her dog to Beri tree and she sat below the Bel tree. She started reading 'Gajanan Stotra', as it was her fast day. There was standing crop of cotton in the field. It is alleged that accused no. 1 i.e. respondent no.1. Rameshwar Shridhar Jaware, who was aged about 22 years, came in the filed. He asked her whether there was anybody in the field. She told that she was alone. Thereafter accused no.2 i.e. Respondent No.2 . Eknath Onkar Jaware, aged about 21 years also came to the field. He told that his bullocks had entered in the standing crops of cotton in her field, so he was going to catch the bullocks. All of a sudden, respondent no.1 caught hold her hands and dragged her towards the standing crops of cotton. She was crying and questioning him as to why she was being dragged. At that time Respondent No.2 came running there. They both, then, dragged her despite her resistance. They took her to the crops of cotton. They made her to lie down forcibly. Respondent no.2 by his both hands pressed her mouth and put his leg on her neck. He pressed her breast. Respondent no.1 removed her inner pant by lifting Maxi. Respondent no.1 also removed his inner pant and he committed forcible intercourse with her. She suffered severe pain. Respondent no.1 threatened her for not telling about the incident to anybody. He also threatened her saying that if she tells about the incident to anybody, it would not be good. There was bleeding. Respondent no.1 then hurriedly took his clothes and fled away, so also respondent no.2. According to her, respondent no.1 had committed rape on her by penetrating his penis into her vagina. Because of this, she had suffered severe pain. It is alleged that there were stains of blood and semen on her Maxi & inner pant. She went to her house weeping along with her dog. Her elder sister Manda, PW-8 was there. She narrated the incident to her on her questioning as to why she was weeping. Thereafter her mother who had gone to 'Tikkewali' field and her father who had gone to Motala, were called. It is alleged that, at the relevant time i.e. while committing the offence, respondent no.1 was wearing Manila, full-pant and inner pant and respondent no.2 was wearing full-shirt and trouser. Her aunt Sou. Kasturabai PW-6 came there. The incident was narrated to her also. After reaching of the father of the prosecutrix PW-5 Ku. Savita, they went to Police Patil PW-7 Ganpat Mahajan. He was apprised about the incident and thereafter they i.e. prosecutrix Ku.Savita, her father, her aunt Sou. Kasturabai and Police Patil started going to police Station. On the way, Police Patil PW-7 Ganpat Mahajan asked PW-6 Kasturabai to verify the fact of rape and whether there were any signs of rape on the person or on the clothes of the prosecutrix Ku.Savita. They went in the field by name 'Mala'. PW-6 Kasutrabai verified that her inner pant & Maxi had blood stains and white semen stains. Then they went to Police Station Borakhedi.

3. Prosecutrix PW-5 Ku. Savita lodged report in Police Station as per Exh. 41. The offence under Section 376, 354 of the Indian Penal Code was registered against the respondents. PW-10 PSI Bhimrao Wankhede conducted the investigation. The prosecutrix was referred for medical examination. PW-1 Dr. Dilip Kulkarni examined her at about 6.45 p.m. on that day and issued a certificate of his findings vide Exh.22. He had also collected the samples of vaginal smear, pubic hair. He also seized the clothes of the prosecutrix. Upon x-ray examination, he had issued the certificate to the Investigating Officer, Exh.23, opining that the age of the prosecutrix at the relevant time was 16-18 years 3 years. It may be stated that during the course of investigation, after arrest, both the respondents were also referred for medical examination. Accordingly PW-2 Dr. Ashok Surushe examined them and issued certificates of his findings which are at Exh.27 & Exh.29. During investigation, the spot panchanama was prepared in presence of PW-9 Pralhad Suradkar as per Exh.52. The clothes of the prosecutrix Ku. Savita were also seized as per Seizure Panchanama Exh. 34 in his presence. After due investigation and on receipt of C.A. Report Exh.24, the respondents were charge-sheeted for the aforesaid offences.

4. The trial was held before the Assistant Sessions Judge, Buldana, in Sessions Case No. 61 of 1988. The respondents pleaded not guilty.

5. The prosecution has examined the aforesaid witnesses to establish the guilt of the accused/respondents, besides PW-3 Headmaster, Maroti Ingle, who had produced the school leaving certificate of the prosecutrix to prove her date of birth as per Exh.30 and PW-4, HC Rane, who had carried out some part of investigation.

6. The respondents abjured the guilt and examined 4 witnesses in defence. Their defence mainly is that in the said village there is habit of lodging false reports of "rape". Police Patil is also facing a case of rape and he is instrumental to lodge some such false reports. It is also their defence that due to inimical terms between the prosecution witnesses and the respondents & their relatives, a false case has been reported against the respondents. DW-1 Prakash Khiste has been examined to prove the blood group of Respondent No.1 Rameshwar. DW-2 Watsalabai Bundhe has been examined to show that she had also filed a criminal case against Raghunath Suradkar and Pundlik Mandar about the rape and that was a false case. She has also been examined to show that prosecutrix Ku. Savita is debaucherus girl. DW-3 Ramdas Haramkar has been examined to show the bad terms between the prosecution witnesses and the respondents' relatives. DW-4 Retd. ASI Keshaorao Patil has been examined to prove the report lodged by the prosecutrix Ku. Savita, mainly to prove that he had written the report as per her say.

7. The learned trial Judge, after hearing the parties, came to the conclusion that prosecutrix Ku. Savita has led trustworthy evidence and she is an artless village woman whose testimony inspires confidence and she cannot make out a false charge of rape against the respondents. He also found that the defence evidence is a concocted story and in no case the prosecutrix Ku. Savita would implicate the respondents falsely in the charge of rape; which has thrown her chastity to question. He after considering the evidence on record held that the evidence of prosecutrix Ku. Savita is reliable and the conviction is sustainable; even without any corroboration to her evidence. He, therefore, held respondents guilty of the offences charged and convicted & sentenced them, however, he did not award any separate sentence against the respondents for the offence under Section 354 of Indian Penal Code.

8. The respondents challenged this judgment of conviction and sentence in the Court of Sessions Judge, Buldana. Learned Sessions Judge, Buldana, after elaborate assessment of the evidence on record, found that the case against the respondents is not sustainable, inasmuch as the evidence of prosecutrix Ku. Savita is not reliable. The same is riddled with many omissions and contradictions. The story of the prosecution, as alleged by prosecutrix Ku. Savita, is improbable considering the totality of the circumstances which he has mentioned point-wise. He also considered the fact that there was total discrepant version as regards Maxi, Parkar (Petticoat) and the uniform of the prosecutrix. There was clear doubt as to which clothes she was wearing at the time of incident. He found that the medical evidence is not corroborating the evidence of prosecutrix Ku. Savita; not only that, it is in total contradiction with the theory propounded by the prosecution. He found that the judgment of the learned trial Judge was totally incorrect and it was based on wrong assumption that prosecutrix Ku. Savita would not lie or lodge any false complaint. He specifically found that, in the circumstances of the case, her evidence requires corroboration, there was no such corroboration available, the prosecution case raises several doubts and therefore, her testimony cannot be believed as trustworthy for basing the conviction. Accordingly, he allowed the appeal and acquitted the respondents.

9. This judgment of acquittal of the respondents has been challenged in this appeal.

10. Learned A.P.P. Mr. D. B. Patel, for appellant State while taking exception to the impugned judgment and relying on the observations of the Apex Court in AIR 1983 SC 911 [Sheikh Zakir Vs. State of Bihar] & AIR 1990 SC 658 [State of Maharashtra Vs. Chandraprakash Kewalchand Jain], contended that the evidence of prosecutrix Ku. Savita is trustworthy, she was a rustic girl of the village and she could not have levelled false charge against the respondents. The evidence of the prosecutrix cannot be treated as an evidence of accomplice and when she had immediately informed about the incident to her sister and her aunt, no further corroboration was required. In any case, her evidence is supported by the evidence of Police Patil and also the medical evidence on record. Therefore, it is submitted that the appellate judgment is totally incorrect and liable to be set aside and the judgment rendered by the learned trial Judge convicting the respondents of the aforesaid offences be confirmed.

11. Learned counsel Shri. N. S. Badhe, for the respondents, has supported the judgment of the learned appellate Judge and contended that the learned Sessions Judge in appeal has considered every aspect of the case in proper perspective and therefore, it is not liable to be interfered with. According to him, the circumstances of the case are such that the evidence of prosecutrix Ku. Savita requires corroboration and it would be hazardous to base conviction on her uncorroborated testimony. It is his submission that in the said village there is a habit of lodging false complaints of "rape" against various persons and the same is established by the defence evidence particularly DW-2 Wastalabai. In fact, the Police Patil PW-7 Ganpat Mahajan is himself facing a rape charge and therefore, the evidence of prosecutrix Ku. Savita should not be considered as trustworthy, more so because it is riddled with so many improbabilities and also because the medical evidence is contrary to what she has stated about the incident. He has submitted that the learned trial Judge has superficially found the evidence of prosecutrix Ku. Savita reliable and trustworthy for basing the conviction. According to him the difference between the Maxi & Parkar and the cloth pieces seized by the police from the person of the prosecutrix Ku. Savita clearly makes out a case of false accusation against the respondent, if not, a doubt is created about the reliability of her evidence and therefore, the judgment rendered by the learned Appellate Judge is correct and is not liable to be interfered with in the limited scope of interference with the judgment of acquittal by this court.

12. As this court is dealing with the judgment of acquittal in appeal, the observations of Apex Court in 2007(2) Crimes 103 (S.C.) : [2007 ALL SCR 961] [Chandrappa & ors. Vs. State of Karnataka] in para 35 can be referred, which are thus-

35. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds, 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc., are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person has to be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

5) 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."

13. Here is the case where the learned trial Judge has found the respondents guilty of the offence charged on the basis of the testimony of the prosecutrix Ku. Savita, holding it to be reliable. The learned appellate Judge held otherwise and acquitted the respondents. The question, therefore, would be whether the view taken by the learned Appellate Judge is totally incorrect or perverse to the record. If such inference is not possible, then this would be a case of two views possible, one taken by the learned appellate Judge to acquit the respondents.

14. On perusal of the reasons recorded by the learned appellate Judge, for coming to the findings that the evidence of prosecutrix Ku. Savit is not that much trustworthy for basing conviction, it would be seen that they are apparently borne out from the record.

15. It is necessary to note that the incident is of morning when the villagers usually go for their agricultural works, as the prosecutrix Ku. Savita has herself stated. From the spot panchanama, it does appear that there were standing crops of cotton on the spot of incident and in fact, prosecutrix Ku. Savita stated that she had gone to the field for protecting the crops. It is pertinent to note that PW-8 Manda, elder sister of the prosecutrix, has admitted that it was weekly Bazar day and there is a public way by the side of the spot. Therefore, for a moment, even if the possibility of independent witnesses not being there at the time of incident is considered, still it is not brought on record that respondents are so brazen that they would commit such a heinous offence at the relevant time even when there was possibility of their being exposed and being caught red-handed.

16. It is, in this context, the evidence of PW-7 Police Patil, Ganpat Mahajan has to be seen. In his evidence, particularly in cross-examination, he has stated that Lilabai r/o Antri had prosecuted him for the offence under Section 354 of Indian Penal Code wherein he was acquitted. At present offence under Section 376 of Indian Penal Code is registered against him. He has further stated in cross-examination that, it is true that there are 4 to 5 cases of rape happened in the village Antri and only 2 rape cases were sent to the Court and the accused in those cases are acquitted. He has in further cross-examination stated that he knew Raghunath Suradkar and he was prosecuted for the offence under Section 376 of Indian Penal Code when he was Sarpanch. His evidence tends to show that the allegations of committing rape are made in that village even against the Police Patil and Sarpanch. This is not to say that for that prosecutrix Ku. Savita has to be disbelieved. But then, it would not be unreasonable to expect corroboration to her evidence on material particulars.

17. DW-2 Watsalabai had also deposed about the habit of lodging false report and in fact she stated that Police Patil informed her to make a false allegations against Raghunath Suradkar and Pundlik Mandar about committing rape on her. She has also stated that her husband had advised her that they are required to reside in the village, therefore, she had filed false rape case against them. What is more she has stated is that Police Patil had informed her to break her bangles and a lantern and thereafter her saree was taken away and brought the same after containing some stains of semen and thereafter she, Police Patil and other villagers had gone to the police station and she was required to put thumb print on her complaint. If such is the evidence led by a woman of the village, it is rather must to find out whether the prosecutrix Savita is reliable or not and whether her evidence is corroborated from some independent source.

18. This takes us to consider the medical evidence on record. PW-1 Dr. Dilip Kulkarni who had examined the prosecutrix has stated in his report thus-

"(3) Injuries : i) Abrasion of 2 in no. (Lt.) elbow dorsal aspect / 1 cm and 1/2 cm. long

ii) Abrasion on (Rt) elbow dorsal aspect, 2 in nos.3 mm and 5 mm in length.

No injuries or scratches seen as thigh, breast, back and private parts.

Private parts : No matting of pubic hairs. No semen stains noted. No foreign body seen on hairs or in private part.

Vulva and Vag. orifis stained with blood & hairs around vulva matted. On P/S, no injuries seen over cerix vaginal walls, blood oozing through OS' + P/v at AV AF NS Ex clear chetle intact, hymens ruptured. No recent sign.

rupture of hymen, blood present in vagina & around the vulval orifis.

(6) Pubic hairs matted with blood & stains trimned are collected for chemical analysis.

(7) Swab from labia minora and vagina with post Fx taken on glassed slides, fixed & sealed for Chemical analysis

(8) Blood sample taken for grouping & Ph. typing and sealed.

(9) Pieces of clothes from Parkar & underpant are taken in bottle, sealed for Chemical analysis.

(10) X-ray of writ St. AP both hand, elbow are advised for conformation of age.

Report regarding age of Pt. will be given after examination.."

It is rather surprising and shocking that in the said certificate he has not mentioned as to whether there were signs of any recent intercourse. But the fact remains that the injuries stated by him are abrasion on dorsal aspect of the hands. He has specifically stated that there were no injuries or scratches seen on thigh, breast, back and private parts. The case of the prosecution is that she was dragged first by Respondent No.1 Rameshwar and then by both respondents in the field of cotton crops. She was made to lie down, respondent no.2 pressed her mouth and respondent no. 1 committed forcible intercourse with her after removing her inner wear and also his own and all the time she was resisting. She is a girl of about 16 to 18 years. She is from village. It is difficult to believe that had she resisted, she would have suffered only two small injuries that too of a very little dimensions on the dorsal sides of her arms.

19. The learned appellate Judge has found that the medical evidence does not support the prosecution case in any way. In fact it appears to be against the theory of forcible rape or intercourse with the prosecutrix.

20. It is also found by him that as per evidence of prosecutrix Ku. Savita, there was complete sexual intercourse with emission. But then the C.A.'s Report does not show the existence of semen in the vaginal smear and the clothes. C.A.'s Report (Exh.24) clearly mentions that neither semen nor spermatozoa was detected on the slides of swab from vulva, pubic hairs and articles 1, 2, 5, 8 & 11. It is clear that had there been complete intercourse as alleged by the prosecutrix Ku. Savita, some semen & spermatozoa would have been found on these slides. Therefore, the medical evidence as well as the report of C.A. runs contrary to the evidence of the prosecutrix.

21. The learned appellate Judge has pointed out several discrepancies in the evidence of prosecutrix Ku. Savita and other witnesses including Police Patil. It is rather difficult to say that all these observations made by him are incorrect or perverse, though to some of them we are unable to concur. But fact remains that this is not a case of 'no corroboration' to the evidence of the prosecutrix, but it is a case of medical evidence being contrary to her story. The learned A.P.P. is unable to explain as to how such evidence can be reconciled with the theory of the prosecutrix that there was forcible complete intercourse despite her resistance in a field of cotton crops without resulting into any injuries on her rest of the body.

22. In the instant case, we had called for the clothes of the prosecutrix Ku. Savita, to verify as to whether it was Maxi or Petticoat seized from her by the Medical Officer who had examined her. Unfortunately, no clothes could be made available and the reports were received that no such property like Maxi is available in the police station or in the trial Court. There is lot of difference between the clothes; Maxi and the petticoat. It is necessary to note in this context that prosecutrix Ku. Savita in her evidence has stated that at the time of incident, she had a Maxi on her person and there were stains of blood & semen on her Maxi and the inner pant. It is also pertinent to note that the clothes on her person were taken by the Medical Officer, PW-1 Dr. Dilip Kulkarni. He has stated that she was wearing petticoat. He also stated that she was wearing inner pant of greenish colour with strip, which was soaked with blood stains and other stains, the same was preserved for analysis. He also stated that she was wearing Manila and blouse of white colour. As there is no case of the prosecutrix Ku. Savita that Manila and Blouse were removed, it is reasonable, to expect that the said Manila and Blouse of white colour would have been stained with mud or earth, but no such things are borne out from the record. As already stated above, the clothes were not produced, though they were called and therefore, it is not possible for us to verify as to whether the said Manila or blouse were stained with any mud or earth. As already pointed out above, C.A.'s. report and medical evidence do not corroborate the testimony of prosecutrix Ku. Savita, on the contrary that evidence tend to cast doubt on the prosecution version.

23. The circumstances prevailing in the said village clearly makes out a case that in the cases of that village on allegations of rape, the evidence of prosecutrix cannot be treated as gospel truth. In the present case, as rightly pointed out by the learned appellate Judge, evidence of prosecutrix Ku. Savita requires corroboration. Her uncorroborated testimony cannot be relied upon for basing the conviction. The cases cited by the learned A.P.P are distinguishable on facts. It is true that the evidence of prosecutrix can be relied upon in the sex offences even if it is uncorroborated, but provided it is found wholesome trustworthy. Here is the case where material evidence i.e. medical evidence and C.A.'s report tend to shed doubts on the prosecution case. The possibility of false accusation cannot be ruled out. The evidence of the prosecution witnesses is riddled with contradictions & omissions and top of all, she though claimed that she has resisted the forcible rape by the respondents, no remarkable injuries were found on her person. All this makes us to hold that the view taken by the learned appellate Judge cannot be said to be perverse.

24. Even if, it is assumed for a moment that the view taken by the learned trial Judge is probable; this would be a case of two views possible, one view taken by the learned appellate Judge to acquit the respondents, which is not altogether unreasonable and improbable. In these circumstances, the observations of the Apex Court, referred above, require us not to over-turn the appellate judgment of acquittal of the respondents. As such, the appeal is dismissed.

Appeal dismissed.