2009 ALL MR (Cri) 1439
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
V.R. KINGAONKAR, J.
Madhukar Narayan Kotambe Vs. State Of Maharashtra
Criminal Appeal No.572 of 2008
31st March, 2009
Petitioner Counsel: Mr. A. K. GAWALI
Respondent Counsel: Mr. V. H. DIGHE
(A) Penal Code (1860), S.376 - Evidence Act (1872), S.3 - Appreciation of evidence - Rape case - Evidence of prosecutrix - In case of offence of rape, normally, the evidence of the prosecutrix stands on par with evidence of an injured witness. 2006 ALL MR (Cri) 2356 (S.C.) - Rel. on. (Para 16)
(B) Penal Code (1860), S.376 - Evidence Act (1872), S.3 - Appreciation of evidence - Rape case - Testimony of prosecutrix - Conviction can be founded on testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration - Evidence of prosecutrix stands on par with evidence of an injured witness. AIR 2009 S.C. 711 - Rel. on. (Paras 16, 17)
State of Tamil Nadu Vs. Ravi @ Nehru, 2006 ALL MR (Cri) 2356 (S.C.)=AIR 2006 SC 2659 [Para 16]
State of H.P. Vs. Asha Ram, 2006 ALL MR (Cri) 281 (S.C.)=AIR 2006 S.C. 381 [Para 16]
State of U.P. Vs. Manoj Kumar Pandey, AIR 2009 S.C. 711 [Para 16]
JUDGMENT :- Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, in Sessions Case No. 17 of 2006 whereby the appellant has been convicted for offences punishable under sections 376 and 506 of the I.P. Code and sentenced to suffer rigorous imprisonment for seven (7) years and to pay fine of Rs.3,000/-, in default to suffer rigorous imprisonment for six (6) months on first count and to suffer rigorous imprisonment for one (1) year and to pay fine of Rs.250/-, in default to suffer rigorous imprisonment for one (1) month on the second count with direction that both the substantive sentences shall run concurrently.
The prosecutrix (PW-3 Sangeeta) and her husband resided in a farmhouse situated in their agricultural land which is at a distance of about 1 km. from locality of village Sawargaon. On February 5th, 2006, her husband had gone to a nearby village, namely, Hanumant Jawalgaon to attend a religious function. Therefore, she and her children were only members in the house during the night falling between February 5th and 6th, 2006. After the day's work in the agricultural field, she went to bed. Her children, including teenaged daughter - Jaishree (PW-4), were also in the slumber, inside the small house. At about 10/10.30 p.m., the appellant knocked the door and called her out. He threatened that if she would not come out, her house would be set ablaze and she would die alongwith the children. She became awoke. She asked him why she shall open the door. He told her that first, she shall open the door and then he will tell her. She identified him by his voice as the appellant - Madhukar. She and her daughter went out of the house. He then started pulling her away with ill-intention. Her daughter (PW Jaishree) attempted to intervene but he threatened her to go inside the house. He asked the prosecutrix to latch the house from outside. She then put up the chain to the entrance door. The appellant fell her down and tried to molest her. She resisted and scuffled with him. The appellant threatened that she will be done to death and silenced her. He thereafter pulled up her saree and committed forcible sexual intercourse with her. He stayed there for a shortwhile. He threatened her that if she will tell the incident to anybody then he would return and beat her. He later on left the place.
3. The prosecutrix did not immediately disclose the incident to her husband after his return on the next day. Her brother was called. She subsequently narrated the incident to her husband and brother. Her husband told her that they would be defamed in the village if the incident would be reported to the police. However, after three (3) days, they went to the police station and lodged F.I.R. (Exh-29). The police referred her for clinical examination. A spot panchanama was drawn at the small farmhouse in the same noon. Her petticoat was also recovered. The appellant was arrested and was sent to undergo clinical examination. On the basis of the material gathered during course of investigation, he was charge-sheeted for offences punishable under sections 376 and 506 of the I.P. Code.
4. To the charge (Exh-17), the appellant pleaded not guilty. His defence is of simple denial. It was suggested that due to personal tiff with her husband, the prosecutrix and her husband got him framed in a false case.
5. At the trial, the prosecution examined as many as seven (7) witnesses and also relied upon certain documents. The appellant did not lead any defence evidence. The learned Sessions Judge held that versions of the prosecutrix and her daughter duly proved the charge levelled against the appellant. The learned Sessions Judge, therefore, convicted and sentenced the appellant as described hereinbefore.
7. At the outset, it is pertinent to note that this is a case in which the prosecutrix (PW-3 Sangeeta) is a married woman. There is no dispute about the fact that she and her family members use to reside in a small house situated in their agricultural land. The appellant was known to her being a co-villager. There is no medical evidence to corroborate the version of the prosecutrix in respect of the alleged incident of rape. There is delay of atleast three (3) days in lodging the F.I.R. The prosecutrix is a young married woman aged about 30/32 years. She is rustic, illiterate and belongs to poor strata of the society. In view of the delay in lodging of the F.I.R. and the fact that she is a married woman, the corroboration by medical evidence is not expected. Her daughter Jaishree (PW-4) was then aged about 14 years and one of the son was aged about eight (8) years.
8. Clinching question is whether the version of the prosecutrix may be implicitly relied upon. The version of the prosecutrix (PW-3 Sangeeta) purports to show that in the relevant night, she and her children were sleeping inside the house. She narrated that somebody pelted stone at the house. She states that the appellant was calling her out of the house and threatened that he will set fire to the house. Her version reveals that due to the threats of the appellant, she opened the door and went outside the house. Her version further shows that PW Jaishree also went outside the house alongwith her. According to her, the appellant asked her daughter to go back inside the house and thereafter, closed the door from outside. Her version purports to show that the appellant, thereafter, committed sexual intercourse with her in front of the entrance door. She deposed that she tried to resist him. Her version reveals that the appellant asked her not to tell the incident to anyone and lateron, left the place. Her husband was not at home during the said night. On next day morning, her husband returned from outstation. She disclosed the incident to him. Her brother by name Mahadeo Shivpuje was also called. She narrated the incident to her brother. According to her, for couple of days, she did not approach the police because her husband told her that it would cause their defamation in the village if the incident would be reported to the police. In other words, she and her husband took time to decide whether the incident be reported to the police. Her version reveals that she narrated the incident to the police. Her version was reduced into writing vide the FIR (Exh-29). She was thereafter referred to undergo clinical examination at the Rural Hospital, Ahmedpur.
9. Mr. Gawli would submit that version of the prosecutrix is not worthy of credence. He would point out that the delay was not properly explained by the prosecutrix because reason for the delay as shown in the FIR is different from what she has deposed before the Court. He points out from cross-examination of the prosecutrix that the FIR was lodged by her as per instructions of her husband and brother. It is argued that in absence of medical corroboration, the prosecutrix cannot be believed, when no injury was found on her person to infer that she was subjected to sexual intercourse by falling her in front of the house on rough surface. It is pointed out that no marks of nail or scratches were found on person of the appellant to infer physical resistance put up by the prosecutrix. The learned counsel submits that the prosecution story is quite improbable and particularly when the appellant and husband of the prosecutrix had a tiff on account of cultivation of an agricultural land owned by Mangalbai, who happens to be wife of her husband's cousin. The learned counsel would, therefore, submit that the appellant deserves benefit of reasonable doubt in the given circumstances.
10. Cross-examination of the prosecutrix reveals that the appellant used to cultivate an agricultural land owned by Mangalbai on crop sharing (batai) basis. She admits that presently, her husband is cultivating the said land on batai basis. Said Mangalbai is the wife of her husband's cousin. She admits that her husband used to manage domestic affairs of said Mangalbai because his cousin is a simpleton person. She further admits, unequivocally, that her husband is having illicit relations with said Mangalbai. She admits that the appellant had witnessed their illicit relations and had disclosed such fact to the villagers. These admissions of the prosecutrix would show that she is a candid and straightforward woman. It is not made clear as to since when the appellant was required to give up cultivation of the agricultural land of Mangalbai and how the husband of the prosecutrix developed personal grudge to such an extent that through his wife, he decided to frame the appellant in a false case. There appears no proximity of time in the disclosure made by the appellant about illicit relations between her husband and said Mangalbai and the time when the FIR (Exh-29) was lodged. The appellant was aggrieved because the agricultural land was taken over by husband of the prosecutrix. It cannot be said that her husband developed extreme enmity or illwill against the appellant just before giving the F.I.R. because of disclosure about his sexual relations with said Mangalbai by him to the villagers. In any case, ordinarily, it is difficult to believe that at the cost of further stigma, such a false charge could have been slapped on the appellant through the prosecutrix.
11. The version of the prosecutrix reveals that due to load-shedding, the electricity supply was unavailable at the material time. She claims to have identified the appellant by his voice. She deposed that her daughter - Jaishree was weeping when the appellant gave the threats. Her version purports to show that when she reported the incident to her husband, he called her brother from nearby village Bawalgaon. Her brother visited her house in the evening of the next day. She admits that she did not bite the appellant while offering resistance nor pushed him away. However, she explained that due to the fear, she was unable to resist in such a manner. Her version purports to show that the appellant used to visit her house alongwith her husband and, therefore, she could recognize him by his voice. She admits that she was instructed by her husband and brother as to what was to be stated before the police. As stated before, the admissions of the prosecutrix go to show that she is rustic, illiterate and straightforward woman. She did not suppress the fact that her husband was having illicit relations with his cousin's wife, namely, Mangalbai.
12. Coming to the version of PW4 Jaishree, it may be gathered that she awoke in the relevant night after hearing sound of the jerks given to the entrance door. She heard that someone was calling her mother outside. She noticed that her mother was not opening the door inspite the calls. Her evidence purports to show that when her mother went outside the house, she also went out alongwith her. She states that the appellant was present in front of the entrance door of the house. He had put on a banian and half pant. He threatened her to go inside and keep quiet. So, under spell of fear, she went inside and closed the door. Her version purports to show that after sometime, the door was opened and then she noticed that the appellant had put on his clothes and had left the place. Her version reveals that the appellant asked them to keep quiet while he was leaving and her mother urged him not to return again. She states that on next day of the incident, she had informed her maternal uncle on phone that her mother was beaten up by the appellant. She admits that due to load shedding, the electricity supply was unavailable at the place. She states that after the incident, her mother (prosecutrix) was residing at village Mawalgaon for many a days and had gone to the police station from that village. Thus, the prosecutrix was scared to reside in the farmhouse and had, therefore, gone to reside at outstation after the incident. This fact is brought on record during cross-examination of PW Jaishree.
13. The version of PW Jaishree corroborates the fact that the appellant had gone to the house of the prosecutrix in the relevant night. It is also explicit that he had called out the prosecutrix and asked PW Jaishree to go inside the house and keep quiet. Obviously, a part of the version of the prosecutrix is duly corroborated by version of PW Jaishree. It is true, no doubt, that there are some discrepancies here and there in the versions of these two (2) witnesses. One cannot be oblivious of the fact that the witnesses were called upon to enter the witness box after more than a year. The minor discrepancies found in their versions cannot be blown out of proportion. There is no substratum to say that PW Jaishree is a tutored witness. She is a teenaged girl. It is obvious that she could gather as to why the appellant had called her mother outside the house and, therefore, she also went out of the house. She noticed that he was in an inebriated condition. The poor girl went back inside the house due to his threats.
14. Though version of PW6 Rehman has no direct bearing on the question of culpability, yet, his testimony is relevant to infer that the appellant intended to go to house of the prosecutrix in the relevant night. He states that at about 10 p.m., the appellant told him that he was going towards house of Balaji i.e. husband of the prosecutrix for assaulting the prosecutrix. He deposed that he declined to accompany the appellant and thereafter, the appellant went towards the house of Balaji. His version reveals that house of the appellant is in the proximity of his house at a distance of only 10 feet away. He admits that he used to watch she-goats of the prosecutrix for many years. There is omission in his police statement about information given by the appellant that he wanted to go to house of husband of the prosecutrix for assaulting her. It is probable, no doubt, that PW Rehman exaggerated some part of his version. At the same time, it cannot be overlooked that he is neighbour of the appellant and has no substantial reason to falsely implicate the latter in such a serious crime.
15. The remaining evidence of the prosecution need not be discussed in detail. The version of PW-5 Nazir reveals that the police prepared spot panchanama (Exh-32) in the noon of February 9th, 2006. The spot panchanama shows that the house of the prosecutrix is situated in agricultural land bearing Survey No.507. The recitals of the spot panchanama would show that entrance door of the house is on eastern side. It was pointed out that the incident occurred in the courtyard of the house. The petticoat produced by the prosecutrix was recovered under the said panchanama. The version of PW-1 Dr. Babasaheb Nagargoje reveals that the appellant was clinically examined on 11th February, 2006 at the Rural Hospital, Ahmedpur. He corroborates the medical certificate (Exh-25). He did not notice any injury on person of the appellant during the medical examination. His version has remained unchallenged. So also, version of PW-2 Dr. Vishnu Padature indicates that the prosecutrix was medically examined on 9th February, 2006 at about 5 p.m. by him at the Rural Hospital, Ahmedpur. He did not find any injury on her person including injury to the private part. He noticed that the secondary sexual characters of the prosecutrix were well developed and she was in the age group of 25 to 30 years. He corroborates the medical certificate (Exh-27). the version of PW-7 PSI Marekar goes to show the steps taken during course of the investigation. He attached the underwear of the appellant vide seizure panchanama (Exh-36). He forwarded the muddemal articles to the office of Chemical Analyst, Aurangabad. There is no material, however, to correlate the seizure of the petticoat of the prosecutrix with the incident of rape. It is not expected also in as much as the seizure was effected on 4th day of the incident. By that time, the petticoat might have been washed by her.
16. In case of offence of rape, normally, the evidence of the prosecutrix stands on par with evidence of an injured witness. The Apex Court in "State of Tamil Nadu Vs. Ravi @ Nehru" 2006 AIR SCW 3623 : AIR 2006 SC 2659 : [2006 ALL MR (Cri) 2356 (S.C.)], observed that just as a witness who has sustained an injury is the best witness in the sense that he is unlikely to exculpate the real offender, the evidence of the sex offender is entitled to great weight, absence of corroboration notwithstanding. Similarly, in "State of H.P. Vs. Asha Ram" (AIR 2006 S.C. 381 : [2006 ALL MR (Cri) 281 (S.C.)]), the Apex Court held that minor contradictions and insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable case of the prosecution. It is held that conviction can be founded on testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The Apex Court in "State of U.P. Vs. Manoj Kumar Pandey" (AIR 2009 S.C. 711), held that normal rule that the prosecution has to explain delay and lack of prejudice does not per se apply to rape cases. The Apex Court observed :
"The approach of the trial court and the High Court is clearly unsustainable. Merely because the victim was more than 16 years of age as held by the trial court that cannot be a ground to hold that she was consenting party. No evidence was led to show such consent. Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This has been the consistent view of this Court...."
17. It need not be reiterated that the prosecutrix explained the delay in lodging of the FIR. It was only after arrival of her brother that she mustered courage to go to the Police Station. Her conduct is significant. She had gone out of the village for a considerable period after the incident. Her evidence reveals that she was under spell of criminal intimidation of the appellant and, therefore, could not decide whether the report should be lodged. Added to this, her husband initially dissuaded her by saying that they would be defamed in the village if such a report was lodged. The married woman had no business to falsely implicate the appellant in such a serious crime. The illicit sexual relationship between her husband and said Mangalbai was not a secret and its disclosure by the appellant in the village locality could not be the motive to frame him. Nor it is shown as to when he had made such disclosure in the village and how was it immediate motive for his false implication. What emerges from the record is that the appellant had information that the prosecutrix and her children were the only persons in the farmhouse during the relevant night. So, he went there to take undue advantage of the situation. The versions of the prosecutrix and her daughter go to prove, unmistakably, his presence at the spot of the incident during the relevant night. Consequently, the version of the prosecutrix cannot be lightly brushed aside. In my opinion, the learned Sessions Judge rightly held that the appellant committed sexual intercourse with the prosecutrix, against her will, and thereby committed the offence punishable under section 376 of the I.P. Code. So also, it is proved that he committed the offence of criminal intimidation as punishable under section 506 of the I.P. Code.
18. For the reasons aforestated, there appears no merit in the appeal. The impugned judgment of conviction and sentence will have to be, therefore, confirmed. Hence, the appeal is dismissed. The impugned judgment of conviction and sentence is confirmed.