Criminal Appeal No.569 of 2006

11th January, 2008

Petitioner Counsel: Mr. SAHIL BHANGDE
Respondent Counsel: Mr. ANAND FULZELE

Cases Cited:
Rehman Vs. State of U.P., AIR 1972 SC 110 [Para 9]
Tukaram Vs. State of Maharashtra, AIR 1979 SC 185 [Para 9]
Suresh Vs. State of Maharashtra, 2004(2) Crimes 329 [Para 9,21]

JUDGMENT

JUDGMENT :- This is an appeal against the judgment of conviction and sentence rendered by 13th Ad-hoc Addl. Sessions Judge, Nagpur, dated 29.1.2005, in Sessions Trial No. 14/2004. The appellant was sentenced to suffer R.I. for 7 years and to pay fine of Rs.500/-, i/d to suffer R.I. for 3 months for the offence punishable under Section 376 of the I.P.C.

2. The appellant was prosecuted for the aforesaid offence on the allegations that the incident had occurred on 20.1.2002 in the house of appellant at Gardeo Mohalla, Mouda. The girl (prosecutrix) was then staying with the complainant Pushpa Bondare (PW-1). It is alleged that on the day of incident, the said prosecutrix was about 10 years old. She is mentally retarded girl. In the noon time, the said PW-1 Pushpa was returning from river. She saw the accused driving out the victim i.e. prosecutrix from the backside of his house. It is alleged that the said prosecutrix wanted to go to home but the appellant was not allowing her. So, the complainant PW-1 Pushpa asked her as to why she was crying. It is alleged that she told her that the accused had taken her to his house on the pretext of giving her some sweets. Thereafter he removed her nicker and committed forcible sexual intercourse with her. She also allegedly told her that appellant threw away her nicker. It is also alleged that at that time victim's private part was bleeding and her nicker was stained with blood. Thereafter she lodged report to Police Station Mouda as the victim was staying with her and because her father had gone out for work, so also her mother had gone to her mother's place at Kamptee. The said report, being Exh.9, was treated as F.I.R. by P.W-9 HC Ramprasad and he registered offence Crime No. 21/2002 under Section 376 of the I.P.C. The victim was sent for medical examination. During investigation, PW-9 HC Ramprasad prepared spot panchanama which is at Exh.14. Victim was sent to Indira Gandhi Medical College & Hospital at Nagpur for medical examination. One Dr. Minal Holkar examined her. She issued the medical certificate as regards her medical examination Exh. 28. It may be mentioned that at the time of evidence, this Dr. Minal Holkar was not available, as such the said report was sought to be proved through P.W-7 Dr. Nivedita Kulkarni, Professor and Lecturer of Gynecology of that college. She was knowing the hand writing of that Dr. Minal Holkar. The witnesses to the spot panchanama are PW-2 Tukaram and PW-3 Dilip Daikohad. PW-4 is the victim. PW-5 L.P.C. Sangita Ajmire had taken the said PW-4 to the Medical College, Nagpur, as per requisition of the P.S.O. During investigation, the samples of vaginal swab and blood were taken and the same was sent to the Chemical Analyzer. The report of C.A. was received. After due investigation, accused/appellant came to be charge-sheeted for the offence under Section 376 of the I.P.C.

3. On committal of the case, the learned Trial Judge framed the charge for the aforesaid offence to which the appellant pleaded not guilty. His defence is that of total denial and of false implication because there was dispute between PW-1 Pushpa and he himself.

4. In order to bring home the guilt of the accused, the prosecution has examined in all 12 witnesses. PW-1 Pushpa Bondare (Exh.8) is the complainant. According to her, when she was returning to home, she noticed victim being driven out of the house of the appellant from backside and when she inquired with her, she disclosed about the incident and later on she lodged report to police station as per Exh.9. PW-2 Tukaram Shende and PW-3 Dilip Daikohde are the witnesses to the spot panchanama (Exh.14). PW-4 is the victim of the alleged offence, however, she could not be examined in the Court because she could not answer any question except stating her name. The learned trial Judge has recorded that as her behaviour was that of mentally retarded person and she was under treatment, her evidence could not be recorded. PW-5 L.P.C. Sangita Ajmire is the Lady Police Constable who had taken victim to the Government Medical College for her medical examination. She has deposed about taking of blood sample and vaginal swab, which was seized as per Ex.22 of the I.O. PW-6 Dr. Harsha Pande is the Medical Officer of Mouda who had on requisition examined the appellant on 8.10.2003. She has also collected the blood and semen samples of the appellant. She opined that the appellant was capable of committing sexual intercourse. PW-7 Dr. Nivedita Kulkarni is the Professor & Incharge of Gynecology Department, who has deposed about the medical certificate Exh. 28; to be in the hand writing of Dr. Minal Holkar, who had examined the victim at the relevant time. PW-8 P.I. Vilas Deshmukh had arrested the appellant on 8.10.2002. The arrest panchanama being at Exh. 34. He also sent him for medical examination, upon which Doctor took the samples of his semen and blood as stated above. The said samples were sent to C.A. The C.A. report Exh.41 was received. PW-9 HC Ramprasad had registered the offence upon the report of PW-1 Pushpa under Section 376 of the I.P.C. He also prepared spot panchanama Exh.14. PW-10 A.P.I. Rupchand has done some part of the investigation. He has specifically stated that victim is mentally retarded child and therefore, though he tried to record her statement, the said victim could not give any statement. He also deposed about the non arrest of the accused because he was absconding. PW-11 Govindrao Somkuwar, A.P.I. had recorded the report of PW-1 Pushpa. PW-12 Dr. Govind Bang is the practicing Psychiatrist, who had examined victim on 13.3.2001 and 17.4.2001. He had found her to be mentally retarded and therefore, he had prescribed some medicines to her. He has also stated that at the relevant time she was aged about 9 years and she was unable to explain herself properly. With this evidence on record, the prosecution sought to establish the guilt of the accused.

5. The accused though claimed that he was falsely implicated because of dispute between PW-1 Pushpa and himself, he did not adduce any evidence in his defence.

6. Learned trial Judge found that the evidence led by the prosecution is reliable. According to him, though there was delay in lodging the report, the same was properly explained and therefore, it corroborated the evidence of PW-1 Pushpa. He also found that the evidence of PW-7 Dr. Nivedita Kulkarni is acceptable for proving the medical examination of the prosecutrix. He further held that non-examination of prosecutrix does not affect the prosecution case. Taking overall view of the matter, in support of the prosecution, he held the appellant guilty of the offence punishable under Section 376 and as such he imposed the sentence of 7 years and fine of Rs. 500/- upon him.

7. This judgment of conviction and sentence is under challenge in this appeal.

8. Learned counsel for the appellant, Shri. Bhangde, has submitted that the evidence led by the prosecution is not sufficiently reliable for bringing home the guilt of the accused beyond reasonable doubts. According to him, the victim could not have made any statement to PW-1 Pushpa regarding the alleged incident. Further, according to him, in view of the admission of PW-1 Pushpa that there was dispute between appellant and the said Pushpa, there was possibility that of his false implication. Further, according to him, there are material omissions in the say of PW-1 Pushpa. The report is quite delayed. The delay is not explained, as such the prosecution case is doubtful. According to him, the medical certificate in respect of the medical examination of the victim is not properly proved. Mere exhibiting of that certificate will not establish the factum of medical examination and facts mentioned therein. According to him, C.A's. report does not support the theory of rape. As regards the evidence of PW-12 Dr., Bang, Psychiatrist, it is his submission that no specific questions were put to the appellant during his statement u/s.313 of Cr.P.C. as regards his evidence. According to him, the evidence led by the prosecution is shaky and does not lead to the conclusion of the guilt of the appellant beyond reasonable doubts.

9. Learned counsel for the appellant has relied on the observations of the Apex Court in AIR 1972 SC 110 [Rehman Vs. State of U.P.] to contend that the circumstantial evidence must conclusively establish the circumstances by which no other inference except the guilt could be drawn. According to him, the subsequent conduct of the accused i.e. absconding by itself is not conclusive of the inference of guilt of accused or of guilty conscious. He also relied on the judgment of the Apex Court in AIR 1979 SC 185 [Tukaram and another Vs. State of Maharashtra] wherein the circumstances were held to negative the existence of fear and the story of passive submission. The learned counsel has further pressed into service the observations of this Court in 2004(2) Crimes 329 [Suresh Vs. State of Maharashtra] wherein the following are the observations in Para 9 and 10 of the said judgment.

"9. That brings us to third circumstance relating to the injury found on the body of Sunita. No doubt, hymen of Sunita was found ruptured. However, in the cross-examination the doctor gave the following admissions:

If there is a rupture in hymen then, reddishness and tenderness to vagina appears. These symptoms are not mentioned in certificate Exh.19.

Colour is essential factor to decide the age of rupture of vagina. I have not mentioned the colour in my report. There are so many factors such as itching, fingering for the rupture of hymen in vagina. If lady is ravished by forcible intercourse, then the injuries (external) on her person must appear. In my report Exh.19 I did not find the external injuries on the body of Sunita.

10. The last circumstance was regarding finding of blood on the underclothes of Sunita. The Chemical Analyzer has recorded that underclothes appear to have been washed. Admittedly no semen was found either on the pubic hair, underclothes or vaginal swab of Sunita. In my view finding of washed blood on the underclothes of adult girl by itself cannot be said to be a major circumstance in favour of the prosecution as the finding of such blood could be due to variety of reasons including menstruation."

10. As against this, learned A.P.P. Shri. Fulzele, has submitted that the prosecution has established the case against the appellant beyond reasonable doubts. According to him, though victim's parents did not lodge any report, there is a report lodged by PW-1 Pushpa on record and she has narrated what prosecutrix had told her immediately after the incident. According to him, the medical report clearly establishes the factum of rape on the prosecutrix. He further submitted that the report was delayed because PW-1 Pushpa was asked to come to the police station on the next day and therefore, the delay is satisfactorily explained. As such, according to him, the learned trial Judge has taken the right view of the matter and therefore, the appeal should be dismissed.

11. Before proceeding further, it is necessary to bear in mind that in the present case, the evidence of the alleged victim of rape is not available. It is necessary to note that PW-4 could not be examined as she was unable to answer any question, except stating her name and therefore, there is no evidence of the victim of rape on record.

12. PW-1 Pushpa has supported the case of the prosecution, saying that the victim had told her everything about what had happened. She specifically deposed that when asked to the victim as to what had happened, victim told her that accused had removed her nicker and committed sexual intercourse with her. She also stated that accused threw away her nicker and at that time her private part was bleeding. She specifically stated that she made inquiry with the accused about the incident, but he did not tell anything. She deposed about the lodging of report as per Exh.9 and registration of F.I.R. as per Exh.10. In cross-examination, she was confronted with several omissions which are material one. To quote a few, in her report she mentioned time of 1 p.m. when she was returning from the river. She stated to police that appellant was driving out PW-4 from the backside of his house, but that was not written in the report. The fact that accused/appellant was not allowing the victim to come home and was driving away in different direction is an omission. The fact that she stated to the police that private part of the victim was bleeding is also an omission. In the cross-examination, she has stated that it was true that she has been prosecuted by the parents of the accused in the Court of Magistrate at Ramtek, though she denied the suggestion that she had a quarrel with accused/appellant about two years back and therefore, she had filed false report against the accused. In latter part of her cross- examination, it has come on record that police station is half furlong away from her house. According to her, incident had occurred on 20.1.2002 at about 11 a.m. and she had given the report on the next day. She has tried to explain, saying that she had been to police station on 20.1.2002 and the police sent her back. It is difficult to believe that when she had gone to the police station in a day time and offence was under Section 376 of the I.P.C. the police would have asked her to come again on the next day. In my opinion, the delay in lodging the report on the next day when the police station was just in the vicinity, cannot be said to be properly explained.

13. The learned trial Judge has held that the delay in lodging report is properly explained. It is difficult to agree with him for the reasons mentioned above.

14. This takes me to consider the medical evidence on record. It is clear that the Medical Officer, who had issued the certificate Exh.28 regarding medical examination of the victim, is not examined. Her certificate was sought to be proved through P.W.7 Dr. Nivedita Kulkarni, who was acquainted with her handwriting. She has proved the said certificate in which following are the contents.

Identification Marks of the victim.

1. Mole over left forehead.

2. Mole over right shoulder

Examination Report.

Blood stain over undergarment+,

Hymen torn,

Fresh tear present,

No active blooding at present,

Tenderness++

Impression

1. Hymen torn, sexual intercourse may have occurred.

2. She is capable of sexual intercourse.

3. Vaginal swab sent (A), Blood sample (B).

4. No pubic hair

5. Refer to psychiatrist for opinion as she appeared mentally retarded.

15. According to her, hymen was torn and sexual intercourse may have occurred. Admittedly victim was examined on the following day of the incident. In the cross examination, she specifically stated that, it is true that she had not examined the patient (victim). She also stated that it was true that sexual intercourse is not the only cause of tearing of hymen. She further stated that discharge card of the victim was not prepared by her. Thus, it would be seen that she did not examine the victim at the relevant time, nor had seen her at that time. Therefore, the evidence of the medical officer who had examined the prosecutrix (victim) could not be tested by way of cross examination, which, in the circumstances of the case, was must, particularly when the victim could not lead her own evidence. More so because in this case though victim seems to have been admitted in Hospital for treatment, no medical officer who had attended her, was examined by the prosecution.

16. Turning to the other evidence on record, C.A. report Exh.39 as regards vaginal swab and the blood, reads as under;

Neither semen nor spermatozoa are detected on Exhibit 1, Exhibit 2 is haemolysed, hence unsuitable for grouping.

17. Further, another C.A. Report Exh.40 which is in respect of examination of Frock and Jangya of the victim, shows that no blood was detected on frock and no semen was detected on frock & jangya. Though Exh.2 is reported to be stained with blood (Jangya) in the middle portion, it was found to be washed. In these circumstances, it would be seen that there is no specific link of the accused to the alleged commission of the offence.

18. The learned trial Judge has relied on the medical evidence, but as the medical officer who had examined the victim was not available for cross-examination, the evidence of PW-7 Dr. Kulkarni cannot be said to lead to the positive inference and the proof of the findings in the medical certificate recorded by said Dr. Minal Holkar. Merely because she was knowing her hand writing and the signature, that fact by itself, in absence of her cross-examination, cannot be said to be sufficient to establish the findings recorded in the said certificate, as its truthfulness could not be tested by way of cross-examination.

19. Learned trial Judge has relied on the submission of the prosecution that PW-1 Pushpa was asked to come on the following day when she had been to the Police Station on 20.2.2002 and therefore, the lodging of report on 21.1.2002 is properly explained. It is difficult to agree with this observation, when the distance of the police station from the house of PW-1 Pushpa was not far away. No specific reason has been pointed out by the I.O. or by police witness PW-11 Govindrao to show that, on 20.1.2002 the offence could not be registered for any concrete reason, or PW-1 Pushpa could not come to P.S. even in the evening, though spot of incident is only at about 1 km., from P.S.

20. It is true that in the present case, the victim is mentally retarded person. The medical certificate shows that her hymen was found torn. Some blood stains were found on her nicker. But in view of the facts mentioned above, it is not possible to say that the prosecution has established the guilt of the accused beyond reasonable doubts. It can not be forgotten that the suspicion how so ever strong cannot take place of proof and no judicial decision can rest on mere suspicion. The prosecution story "may be true" and "must be true", there is inevitably a long distance to travel and the whole of this distance must be covered by legal reliable and unimpeachable evidence. It is also necessary to bear in mind that, no judge can take a fact as proved unless there is a legal proof. The moral conviction cannot be said to be a legal conviction unless it is supported by unimpeachable and legally admissible evidence on record.

21. The observations of this Court in 2004(2) Crimes 329 [Suresh Vs. State of Maharashtra] do support the defence of the appellant.

22. In the circumstances of the case, though the allegations against the appellant appear to be quite serious, it is not possible to hold that the prosecution has established the guilt beyond reasonable doubts. As such the appeal has to be allowed.

23. The appeal is allowed. The impugned judgment of conviction and sentence rendered by the learned 13th Ad-hoc Additional Sessions Judge, Nagpur, in Sessions Trial No.14/2004 is hereby set aside and the accused is acquitted of the charge for the offence under Section 376 of the I.P.C. His conviction and sentence are set aside. He is set at liberty forthwith. The fine amount, if any, paid by the appellant be refunded to him.

Appeal allowed.