Criminal Appeal No.666 of 2005

20th April, 2007

Petitioner Counsel: Mr. N. A. BADAR
Respondent Counsel: Mr. A. D. SONAK

JUDGMENT

JUDGMENT :- This appeal is preferred by the accused who were convicted under Sections 376(2)(g) and 392 of the Indian Penal Code. They were sentenced to imprisonment for a period of three years for having committed an offence under Section 392 of I.P. Code and 10 years' for having committed offence under Section 376(2)(g) of I.P. Code.

2. The facts giving rise to this prosecution are as under :-

Prosecutrix was at the relevant time taking education in IInd year B.Com. in Gundewar College at Nagpur. She was in love with one Shrikant Katole, who is her neighbour. He runs a grocery shop. On 8-4-2002 she left home for a tuition class and thereafter went to the College to obtain and admission Card for forthcoming examination. While she was in the College, it is alleged that, Shrikant came there on his motor-cycle. She told him that she has not as yet finished her work and he may wait for her at Sadar Bus stop. Around 10.00 O'clock, after finishing her work, she came to Sadar Bus stop. Both of them, on the motor cycle of Shrikant, left for Khindsi near Ramtek. They reached there around 2 O'clock. Shrikant parked his motor cycle on the stand and both were sitting by the side of the boating Center. They went up the hill and were sitting beneath a tree. Two strangers came there. One person was armed with a spear and other one had a knife. When they came near two, they asked them to wait there else they would be killed. They got frightened and fell down while running. One of them caught the complainant and other one caught Shrikant. They took them under the tree and tied the legs of Shrikant with her chunari and hands with a handkerchief. They also tied his mouth by a scarf and they took out cash of Rs.150/- from the pocket of Shrikant. They also asked prosecutrix to handover her gold ear tops and nose rings. She handed over them both the things. Thereafter, armed person by brandishing weapon took her behind a big stone. That person asked her to remove her clothes. She refused. He again gave a threat with knife that if she does not, Shrikant would be done to death. She, therefore, removed her clothes and that person had a sexual intercourse with her. After he had finished, he called his accomplice. He too, at the point of weapon, had sexual intercourse with her. Thereafter, both complainant had Shrikant shouted for help. The guards at Boat Center came there. On seeing them, both of them fled away with the knife and the weapon. The guards chased them. The complainant and Shrikant went near the Boat Center and narrated the incident to the owner. These two persons were apprehended and they were made to sit at the boat center. They disclosed their names as Ashok Khobragade and Umesh Meshram. Police came and took away these two persons in custody. The complainant went to the police and lodged report.

3. Police recovered the robbed money as well as articles from both the accused. They also recovered the weapons from both the accused. Complainant was sent for medical examination so too both accused. The vaginal swab and pubic hair were sent for chemical analysis and clothes of accused as well as prosecutrix were also sent for chemical analysis. After completion of the investigation, a charge-sheet came to be filed against both the accused.

4. The accused pleaded not guilty and claimed to be tried. The learned Sessions Judge recorded the evidence and found both the accused guilty of offences under Sections 392 and 376 of the Indian Penal Code and convicted them. Being aggrieved by that order of conviction, this appeal has been preferred.

5. I have heard Mr. N. A. Badar, the learned Counsel for the appellants/accused and Shri. A. D. Sonak, Additional Public Prosecutor for the State.

6. As many as fifteen witnesses have been examined by the prosecution. Out of these, P.W.9 is the prosecutrix and P.W.10 Shrikant is her boy-friend. He is also an eye-witness. P.Ws.1 to 5 and 8 to 12 had not, however, supported the case of prosecution at all.

7. P.W.9 prosecutrix has stated that P.W.10 Shrikant is her neighbour and on the day of incident she had gone on a motor cycle with Shrikant to Khindsi - A Holiday Resort. She states that around 1.30 p.m. they had reached Khindsi and both of them were sitting beside a road to Khindsi tank. She states that while they were chitchatting, the accused came there and accused No.1 had a sword and no.2 had a knife. She also stated that on seeing them coming, she and Shrikant started running away and she fell down and accused no.1 caught hold of Shrikant and no.2 caught hold of her. She states further that both the accused threatened her and Shrikant and accused no.1 demanded her golden ear ring and nose ring and abused Shrikant. They also removed the pant and shirt of Shrikant. She states further that the accused then tied the hands and legs of Shrikant by means of scarf and then accused no.1 took her away at some distance. Accused No.2 was, however, near Shrikant. She further states that accused no.1 asked her to remove her paijama. When she refused, accused no.1 himself removed her knicker. She further states that accused removed his under-wear and clothes and had sexual intercourse with her without her consent. Further she goes on the depose that then accused No.1 went near Shrikant and accused No.2 came near her. He too asked her to remove her clothes. He forcibly pulled down the clothes on her person and he too had sexual intercourse with her without her consent. She states further that she then started shouting when guards at the boating center came there but the accused fled away. She further states that they were taken to the office of the boating center. The accused were chased and caught at the distance of 7 kms. and were brought to the boating center. She further states that she then lodged report with the police. She identified the gold ear tops and nose ring which were shown to her in the court. This is her evidence. There are material reasons why her evidence does not inspire confidence about her being sexually assaulted. She states that prior to incident, she never had sexual intercourse. The evidence of Medical Officer Dr. Rekha (P.W.6), however, clearly shows that the prosecutrix is habituated to intercourse. It is, therefore, obvious that although she has had intercourse on number of occasions, she was telling lies before the court that was the first occasion. Although, in examination-in-chief she says that she and Shrikant were sitting chitchatting, she admits in cross-examination that when the accused came there she was having sexual intercourse with boy-friend-Shrikant. Even Shrikant (P.W.10) admits that he and the prosecutrix were having sexual intercourse when the accused came there. It is, therefore, apparent that the accused had seen both having sexual intercourse and that must have put both of them in embarrassing position. According to her, therefore, not only the accused had sexual intercourse with her but even Shrikant had. Thus, according to her statement, three persons have had sexual intercourse with her one after the other. The incident, according to her, had taken place between 2 to 2.30 p.m. She was directly taken from there to the Police Station and she was medically examined on the same day within period of six hours. Her vaginal swab and pubic hair were collected immediately. C.A. Report (Exh.76) shows that neither semen nor spermatozoa was detected on pubic hair or on the cotton swab. At least, there also ought to be some mark on her private part. There is not even slightest injury on her private part. The Medical Officer specifically observes that there is no swelling on the vagina. Now, even if there are injuries on her body, it is admitted by her that while she was trying to run away, she fell down and suffered injuries. The injuries were result of that fall, as is stated by Dr. Rekha. Although, P.W.10 Shrikant had tried to corroborate the theory as stated by her, his evidence about sexual assault has to be rejected due to his own admission. P.W.10 Shrikant admits that his eyes were covered by the accused with a scarf and even in F.I.R. (Exh.42) it is clearly stated that the eyes of Shrikant were covered with the scarf. There is, therefore, no question of Shrikant watching alleged sexual assault on prosecutrix. His evidence, therefore, on that count, is of no use. It appears to me that to save their own skin, both of them set up a theory of sexual assault on prosecutrix. I find that the evidence about sexual assault certainly falls short of bringing home guilt to both accused.

8. The next charge against the accused is, one under Section 392 of I.P. Code. It is stated by P.W.9 prosecutrix that accused had at the point of knife taken her gold ear tops, nose stone and sum of Rs.150/- from the pocket of P.W.10 Shrikant. Except a bare suggestion of denial, there is no cross-examination on the point. It is the case of the prosecution that the accused persons were immediately apprehended by the guards although those guards do not supported the case of the prosecution. P.Ws.9 and 10 do support the case that accused had run away and apprehended, and, even evidence of Head Constable Ramprasad (P.W.14) is that he has received information on telephone that two persons have been caught hold and they have been detained at boating center. He states that he had gone there and he took them in custody and he had seized from accused No.1 Umesh a spear and had drawn panchanama vide Exh.58. He has also stated that he had seized the currency notes and the gold ear tops and gold nose ring from accused No.2 - Sonu and had drawn panchanama (Exh.59). This evidence of head constable Ramprasad clearly shows that the accused were apprehended immediately. If the cross-examination of P.W.9 and P.W.10 Shrikant is seen, except a bare suggestion of denial, there is no cross-examination worth the name. As stated above, Head Constable Ramprasad had proved the seizure of knife and spear from accused No.1 and gold ring and cash amount from accused No.2 vide Exh.59. It is also suggested to the witness simply that nothing was seized from the possession of the accused and that suggestion has been denied. Since, as said earlier, there is no cross-examination to Head Constable Ramprasad, I do not find any reason not to place reliance on him. It may be mentioned here that the incident had taken place in the noon around 2 to 3 p.m. and these gold ornaments and cash amount were seized from the possession of the accused immediately thereafter i.e. within an hour or two. It is for this reason, I find that there is no difficulty in relying on the testimony of Head Constable Ramprasad. P.Ws.9 and 10 have identified the articles seized, in the Court. Since the articles are identified and they are proved to have been seized by police from possession of accused and since there is positive evidence of P.Ws.9 and 10 that the accused persons had robbed them of gold ornaments and cash amount, I find that the learned Sessions Judge has rightly held both the accused guilty of offence under section 392 of I.P. Code. In the circumstances, the appeal partly succeeds. The conviction of the accused under Section 376(2)(g) of I.P. Code is set aside. They stand acquitted of the offence under Section 376(2)(g) of I.P. Code. Their conviction under Section 392 of I.P. Code is, however, confirmed. The sentence under Section 392 of I.P. Code is also confirmed.

Appeal partly allowed.