Criminal Appeal No. 348 of 2000

26th November, 2013

Petitioner Counsel: Mrs. K.S. JOSHI

JUDGMENT

A. B. CHAUDHARI, J. :- This appeal is filed by the State against judgment and order dated 26.09.2000 in Sessions Trial No. 11/1997 passed by 2nd Addl. Sessions Judge, Amravati by which the respondent nos. 1 and 2 were acquitted of the charge framed against them under section 376(g) of the I.P.C.

2. In support of the appeal against acquittal, Mrs. Joshi, learned A.P.P. for the State, vehemently argued that the evidence of PW1-Hamidabi has been wrongly rejected by the court below. Taking us through the evidence of PW1-Hamidabi, she argued that her evidence has remained unshaken and that being so, the trial court ought to have made an order of conviction for the offence of gang rape which is a serious offence. She then argued that the trial court refused to rely on the other evidence corroborating the evidence of PW1-Hamidabi. According to her, the evidence of PW1-Hamidabi being consistent and she being the victim, the same ought to have been accepted and conviction ought to have been recorded. She thus prayed for setting aside the judgment of the trial Court.

3. None appeared for the respondents. Since none appeared for the respondents, with the assistance of learned A.P.P. for the appellant-State, we have gone through the entire evidence that was tendered before the trial Court. We have heard learned A.P.P. for the State at length. We have perused the impugned judgment and order. It is true that there is evidence of PW1-Hamidabi, who stated on oath that she was gang raped by accused persons-respondents. The trial court, however, found numerous discrepancies in her evidence. In the first place, Hamidabi is woman of 40 years age and in the dead hours of night she claimed to have been in the field sleeping in the hut with some other servant. The other servant has not supported the prosecution case. Thus, there is no corroboration to her testimony. That part of her testimony was shattered in the cross-examination and therefore, the trial court decided not to rely upon her uncorroborated testimony. Instead of repeating the reasons, we reproduce the relevant paragraph of the judgment discussing the evidence of PW1-Hamidabi, which reads thus:

"12. ...According to the report Exh.-43, they were four in number when they came to the field and only one of them tried to take her away. When her servant Shamrao and Natthu rescued her, two out of the four gave beating by stick and then all of them took her to another field and other two also reached there. They all four struck her against the ground. Out of them one did her sari up and remaining three committed on her till 3 a.m. and then they ran away from there. From this report it is clear that they were four only in number and not five. Out of them only three committed rape on her. If according to her report, she was knowing the two including Chandrasingh, she was required to mention their names in her report that they had also committed rape on her. But she does not utter a single word as to what definite act these two persons did at that time of incident. There is nothing in her report that out of three who committed rape on her was any one of two accused before the Court or whether the person kept her sari up was one of them. From this case of the prosecution arising from the report it is clear that there is nothing as to which specific Act, the accused before the Court committed. No doubt giving the biting injury is alleged to have been done by the accused No.1 but it is not sufficient to involve him in an act of the rape, when even on knowing, his name nothing as he did in such act or rape, is stated in the report Exh.-43. Similar is her statement before the police. She said something about the accused No.1 but she does not utter a single word against the accused No.2 Mohan, even in the Court. She in clear words states that except accused No.1, other who committed rape on her is not present in the Court. This shows that the accused No.2 has no role at all in the alleged incident, or offence."

4. We have compared the reasons recorded in para 12 with the evidence of PW1-Hamidabi so also report Exh.-43. We do not find any perversity on the part of the trial Court in the matter of marshalling of her evidence. That apart, the apex Court has time and again set out the principles about interference by the High Court in the appeal against acquittal. We think, acting in consonance with the said principles and looking to the medical evidence so also for want of evidence about penetration, it would not be appropriate to interfere with the order of acquittal.

5. So far as medical evidence is concerned, we quote paragraphs 18 and 19 of the judgment of the trial Court in which medical evidence is discussed. Paras 18 and 19 read thus:

"18. Here in the present matter, the prosecutrix has merely stated that the rape has been committed on her but nowhere she explained what does the rape means or there had been a penetration.

19. Dr. Mrs. Kiran Kurhade, examined PW1-Hamidabi and opined in her report Exh.-57 that there is no internal injury. Semen is not seen over thigh. No opinion can be given regarding intercourse as the patient is a married woman. C.A. reports shows/discloses that the pettycoat seized from PW1 had few semen stains but neither Sari nor the blouse had any sort of semen or blood stains on the cotton swab or pubic hair of PW1 neither the pubic hair of accused No.1 or of accused No. 2 had semen or spermatozoa stains. There is no opinion regarding the blood group also. In this manner the evidence of the prosecutrix and that of medical officer and C.A. Report make the prosecution case doubtful as to whether there had been any sexual intercourse at all between the prosecutrix and the accused."

6. The medical evidence does not at all support the prosecution case, though the victim had lodged the report promptly with police station and thereafter was promptly sent for medical examination. The story of rape was, therefore, not at all proved by the prosecution.

7. In view of above, we do not find any merit in the instant appeal. Hence, we pass the following order.

ORDER

(i) Criminal Appeal No. 348/2000 is dismissed.

(ii) Bail bonds of the accused stand cancelled.

Appeal dismissed.