Criminal Appeal Nos. 308 of 1999

19th October, 2015.

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. A.K. BANGADKAR

Cases Cited:
Tara Singh. Vs. The State, AIR (38) 1951 SC 441 [Para 5]
Kamlabai Gorakh Koli & Ors. Vs State of Maharashtra, 2011 ALL MR (Cri) 1406 [Para 5,8]

JUDGMENT

JUDGMENT :- The appellant was convicted by the Additional Sessions Judge, Yavatmal on 18.08.1999 in Sessions Trial No.41/1991 whereby the appellant was convicted for the offence punishable under Section 376 of the IPC and was directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs.200/, in default of payment of fine, to undergo further rigorous imprisonment for three months.

2. The prosecution case reads thus:

On 09.02.1991, Madhukar Bijawe (PW8) was attached to Police Station, Yavatmal (Rural). He was incharge of Station Diary. That time, the prosecutrix (PW1) came to the Police Station and lodged her oral report. The report is at Exh.22. Printed FIR is at Exh.-14. The report is dated 09.02.1991. According to the FIR, the prosecutrix was working as Watchman in the agricultural field of Ramchandra Rathod (PW5). She used to stay in the field itself. On 08.02.1991, she was in the agricultural field and after finishing her meals, she was warming herself. That time, at about 10 O'clock in the night, the present appellant and juvenile accused-Raju came there. They also sat near her at the warming fire. In the meanwhile, the juvenile accused Raju pushed her due to which she fell down. Thereafter, the present appellant came near her, removed his clothes so also her clothes and had forcible sexual intercourse with her. It is stated in the FIR that she experienced something warm in her vagina. Not only that, the FIR is very specific that the appellant discharged his semen in her vagina. Thereafter, according to the FIR, the juvenile accused Raju also committed forcible sexual intercourse with her. Then they took away Rs.100/-from her. Since the oral report was disclosing commission of cognizable offence, Madhukar (PW8) registered offence vide Crime No.16/91 for the offence punishable under Sections 392, 376 and 506 of the IPC. He immediately sent the prosecutrix to Women's Hospital, Yavatmal for medical examination by giving a requisition letter Exh.42.

Janrao Chaudhary (PW9) took the investigation from Madhukar (PW8). He visited the spot of occurrence on 10.02.1991 in presence of the panchas. The spot panchanama (Exh.25) was drawn in presence of panchas. The spot was shown by the prosecutrix. That time, he also seized clothes of the prosecutrix, which were on her person at the time of commission of offence. Seizure memo is at Exh.46. He also recorded statement of the prosecutrix as well as Ramchandra Rathod (PW5). On the very same day, the appellant as well as juvenile accused Raju were arrested.

The appellant was also referred for medical examination. He was sent to General Hospital, Yavatmal. The Medico Legal Certificate is at Exh.38. He also seized clothes of the appellant under Exh.47. He also seized samples pertaining semen, blood, vaginal swab, pubic hair etc. of the prosecutrix as well as of the appellant. Seizure memo in respect of the prosecutrix is at Exh.28 whereas seizure memo pertaining the appellant is at Exh.29. After completion of investigation, final report was presented by the Investigating Officer in the court of law. The case was committed to the Court of Sessions as both the offences were exclusively triable by the Court of Sessions.

3. Charge was framed against the appellant under Exh.8 in Sessions Trial No.41/91 for the offence punishable under Section 376 read with Section 34 and under Section 392 read with Section 34 of the IPC. The appellant abjured his guilt and claimed for his trial. In order to bring home guilt of the appellant, in all nine witnesses were examined by the prosecution.

After a full dress trial, the learned Judge of the Court below acquitted the appellant of the offence punishable under Section 392 of the IPC. However, convicted him for the offence punishable under Section 376 of the IPC. Against the acquittal of the appellant of the offence under Section 392 of the IPC, the State has not preferred any appeal.

4. Heard Mr. R. M. Daga, Advocate for appellant and Mr.A. K. Bangadkar, A.P.P. for the State. Both the learned counsel articulated their respective submissions. The gist of the submissions of the learned counsel for the appellant is as under:

(i) There is a delay in lodging the FIR.

(ii) No injuries were found on the person of prosecutrix.

(iii) The conduct of the prosecutrix is unnatural in not reporting the matter to her son who resides in the village itself.

(iv) The Chemical Analyser's report, which is used against the appellant, was not properly put to him during examination under Section 313 Cr. P. C.

(v) He has submitted that since there is no cogent and consistent evidence adduced by the prosecution, the defence of the appellant appears to be probable one.

5. In order to buttress his submissions, insofar as not putting the Chemical Analyzer's report when the appellant was examined under Section 313 Cr.P.C., he relied on the pronouncement of the apex Court reported in Tara Singh.vs.The State; AIR (38) 1951 SC 441, and Kamlabai Gorakh Koli & Ors. ..vs..State of Maharashtra; 2011 ALL M.R. (Cri) 1406.

Per contra, Mr. Bangadkar, learned A.P.P. submitted that the evidence of the prosecutrix cannot be doubted. There was no reason for her to falsely implicate the appellant.

6. Incidentally, I would like to refer to the age of the prosecutrix. At the time of her evidence, which was recorded on 02.08.1999. She stated that her age is 70 years. Her evidence was recorded after a period of 8 years. Thus, she must have been aged about 62 years at the time of occurrence. Even in the FIR, she has stated her age to be 60 years. At the time of arrest, the prosecution papers show that age of the appellant was 22 years.

After conviction, the appellant filed the present appeal and also filed an application for suspension of jail sentence and for bail. The Division Bench of this Court passed an order on 03.12.1999 to test as to whether the appellant is suffering from any psychic problem and, therefore, he was directed to be examined by the Psychiatrist. By order dated 23.12.1999 passed by the Division Bench of this Court, the appellant was referred to the Psychiatrist and the psychiatrist noticed that he was not suffering from any such problem. The reference by the Division Bench of this Court was for obvious reason that since the appellant is a boy of aged about 22 years, committed rape on a woman of 62 years.

Be that as it may. The Court has to see whether the prosecution is successful to prove the case against the appellant. Though, nine witnesses are examined, the relevant would be the prosecutrix herself (PW1), Ramchandra (PW5) and Dr. Mahendra (PW7) since all other witnesses are panch witnesses.

7. The evidence of the prosecutrix (PW1) would reveal that she was subjected to the physical atrocities at the hands of the two males against her will. The incident has occurred in an agricultural field. Dr. Mahendra (PW7), is the doctor, who has examined the prosecutrix. He noticed no external injuries on the body. According to him, in the event of sexual intercourse in the agricultural field having hard surface, there is possibility of injuries on the body. However, he noticed no external injuries on the body of the victim.

According to the Doctor, injury nos. 3 and 4 on the private part of the prosecutrix are suggestive of recent intercourse. However, he himself has admitted that the said injuries are also possible if any hard object is inserted in the private part. Thus, the evidence of the Doctor in that behalf is doubtful.

Further, in the FIR itself, the prosecutrix in clear terms has stated that the appellant has discharged his semen in her vagina. The slide of vaginal swab was sent to the chemical analyzer. The Chemical Analyzer's report is at Exh.-51. It shows that the spermatozoa are detected on Exh.6, which is two slides wrapped in paper in respect of the prosecutrix. In that behalf, it would be useful to refer to the question that was put to the appellant, when he was examined under Section 313 of the Cr.P.C. Question No.34 reads thus:

Q.34:- It has further come in his evidence that he had sent the relevant samples collected by the concerned medical officer at the time of your medical examination and the medical examination of the prosecutrix Sonubai to C.A. Nagpur vide requisition Exh.P49 and Exh.P51 is the C.A. Report. What have you to say about it?

Ans.: I do not know.

8. In that behalf, it is straneously urged before me by the learned counsel for the appellant that the said piece cannot be used against the present appellant for securing his conviction because the learned Judge of the Court below has put a general question to the appellant. In that behalf, he relied upon the Division Bench judgment of this Court in Kamalbai Gorakh Koli & Ors. (supra). It would be useful to reproduce paragraph 14 of the said judgment, which reads thus:

"14. The learned Assistant Public Prosecutor has further placed reliance on the judgment of Supreme Court in B.Shashikala v. State of Andhra Pradesh, AIR 2004 SUPREME COURT 1610. In the said judgment before the Supreme Court the Medical Officer had asked questions to the deceased in Hindi and thereafter translated them in English and the Magistrate had accordingly recorded the same as dying declaration. The Supreme Court found that the doctor and the Magistrate were knowing workable Hindi though they could not read, write or speak. In such circumstances, therefore, the Supreme Court held that there was no infirmity in the dying declaration. In the present case there is no evidence whatsoever that P.W.2 Arun Patil and P.W.4 Yashwant Patil were knowing Ahirani and there is no endorsement or certification that the dying declaration is true translation in Marathi from Ahirani. This according to us is another infirmity which impels us to reject the two dying declarations at Exh.22 and Exh.30. The learned Assistant Public Prosecutor points out to us that the report of the Chemical Analyzer at Exh.45 clearly shows the presence of kerosene on the clothes of the accused. Apart from the fact that there is no contemporaneous evidence in respect of sealing of the clothes, the contents of the report of the Chemical Analyzer at Exh.45 have not been put the accused in their statement recorded under Section 313 of the Code of Criminal Procedure. All that is put to the accused in their statement under section 313 of the Code is reproduced below:

"15. It has further come in her evidence that he has sent the muddemal to Chemical Analyzer and the Chemical Analyzer's report is at Exh.45. What you have to say?

Ans : It is false."

The contents of the report of the Chemical Analyzer have not been put to the accused and, therefore, their failure to account for presence of kerosene would not in any manner strengthen the prosecution case. Further the report of the Chemical Analyzer does not show as to on which part of the clothing kerosene was detected. If undisputedly kerosene was found on the floor as P.W.3 had tripped the container of kerosene, presence of kerosene on the clothes of the accused would be natural as they are residing in the same house. So also presence of the accused at the time when deceased Motanbai caught fire is also natural, in the sense that their presence is not unnatural and would not necessarily lead to an inference about their complicity in the crime."

From the aforesaid reproduction, it is clear that the case at hand and the aforesaid reported case is somewhat similar. Though, the Chemical Analyzer's report is put to the appellant, however, the contents of the report of the Chemical Analyzer were not put to the appellant. In that view of the matter, I am bound by the dictum laid down by the Division Bench of this Court in that behalf. Thus, the incriminating material Exh.51 has to be kept aside out of consideration since the opportunity was not given to the appellant to explain the same.

9. From the evidence of the prosecutrix, it is clear that the son of the prosecutrix is resident of the very same village. However, she did not disclose the said incident to her son. Further, through cross-examination,it is brought on record that the agricultural field of Ramchandra (PW5), whereat the prosecutrix is working as watchman, is surrounded by the agricultural fields of one Pachkore, Pardeshi and Agaldhare. It is also brought on record that servant of Pachkore was residing in the hut of the said field as well as servant of Pardeshi was also residing in the field of Pardeshi. Thus, it was available to the prosecutrix to narrate the incident immediately to these persons. However, it appears that she waited for Ramchandra (PW5). According to her evidence, after 1 or 2 hours, Ramchandra came to the agricultural field. According to the prosecutrix, the incident took place at about 10 to 10.30 p.m. However, if the evidence of Ramchandra (PW5) is minutely perused, it would reveal that after taking dinner, he came back to the agricultural field at about 7 to 8 p.m. That time, he noticed prosecutrix was weeping. That time, the incident was narrated to him. Thus, there is discrepancy in respect of this vital aspect. Further, according to the prosecution case, Ramchandra (PW5) accompanied the prosecutrix for lodging of the FIR. As per the evidence of Ramchandra (PW5), they came to Police Station on the next day at 10.00 a.m. and lodged the report and, thereafter, they came to the Government Hospital for medical examination of the prosecutrix. However, if the report Exh.22 is perused, then it reveals that on the left hand open space, it is stated that the offence was registered at 18.10 hours on 09.02.1991. Further, Exh.36, Medical Certificate of Prosecutrix shows that she was examined at 6.00 p.m. Thus, it is crystal clear that the report was not lodged immediately, though they reached Yavatmal in the morning on 09.02.1991. Lodging of the FIR immediately completely rules out the possibility of false implication. The unexplained delay does not rule out exaggeration and concoction.

There is no explanation of whatsoever in nature for lodging the FIR in the evening of 09.02.1991 though in the morning of 09.02.1991, the prosecutrix and Ramchandra reached Yavatmal City. In that behalf, I find considerable force in the submission of the learned counsel for the appellant that the defence of false implication, as can be seen from answer to question no.36, to be probable one.

10. In that view of the matter, judgment and order of conviction cannot stand to the scrutiny of law. Hence, following order is passed.

ORDER

(i) Criminal Appeal No.308/1999 is allowed.

(ii) Judgment and order of conviction dated 18.08.1999 passed by Additional Sessions Judge, Yavatmal in Sessions Trial No.41/1991, convicting the appellant-Ramesh s/o Suryabhan Rathod for an offence punishable under Section 376 of the IPC is hereby quashed and set aside.

(iii) The appellant is acquitted of the offence punishable under Section 376 of the IPC.

(iv) Fine amount, if any paid by the appellant be refunded to him. Bail Bonds of the appellant stand cancelled.

Ordered accourdingly.