Criminal Appeal No.777 of 2004

7th June, 2018.

Petitioner Counsel: Mr. AKHTAR NAWAB ANSARI
Respondent Counsel: Mr. I.J. DAMLE

Cases Cited:
State of Punjab Vs. Gurmit Singh and ors, (1996) 2 SCC 384 [Para 13]
State of H.P. Vs. Sanjay Kumar alias Sunny, 2017 ALL SCR (Cri) 1=2017(3) Mh.L.J. (Cri.) (S.C.) 68 [Para 15]
Aman Kumar and anr. Vs. State of Haryana, (2004) 4 SCC 379 [Para 16]
Jugendra Singh Vs. State of Uttar Pradesh, 2012 ALL SCR 1739=(2012) 6 SCC 297 [Para 17]

JUDGMENT

JUDGMENT :- The instant Appeal has been directed against the judgment and order dated 08.12.2004 passed by learned 1st Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Trial No. 11/1997 convicting the appellants/accused for the offence punishable under Section 376 (2) (g) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years each and a fine of Rs.1000/- each, in default to suffer R.I. for three months, each.

2. The facts of case as it is unfolded during the course of trial is succinctly narrated as under :-

The prosecutrix-(PW1) was residing at vilage Amirza along with her mother and two brothers. At the time of the incident, she was aged about 17-years old studying in IX the standard. The appellants 1 and 2 too were the residents of Amirza. It is the case of prosecution that there were love-affair between prosecutrix and appellant no.1-Maroti Nilekar, however appellant no.1 did not marry with her and got married with some other girl. The appellant no.2-Shamrao was the friend of appellant no.1. On the date of incident i.e. 1.11.1996 the mother of prosecutrix had gone for reaping the paddy crop in the field. She asked the prosecutrix to bring fodder for cattle. Therefore, at about 4.00 pm after school hours,the prosecutrix went to the field to bring fodder for cattle. At the relevant time, at about 5.00 pm when the prosecutrix was returning home by taking fodder, the appellant nos.1 and 2 pulled the bundle of grass which the prosecutrix was carrying and beat her. They caught hold of her hands and dragged her towards the land belonging to the field of one Maroti. The appellants threatened her with dire consequences by saying that if she would raise an alarm they would kill her. Thereafter appellant no.1- Maroti removed her knicker and threw it away. Appellant no.2 Shamrao closed her eyes and gagged her mouth with his hands. Appellant-Maroti then made her to fall down and committed forcible sexual intercourse with her. Appellant-Shamrao at that time pressed her breasts. Thereafter both the appellants fled away. The prosecutrix returned home with the fodder. On reaching home, she narrated the incident to her mother. The persons from the village of the prosecutrix brought her to the hospital in a tractor. The prosecutrix was taken to the hospital. Her complaint (Exh.34) was recorded by the police at General Hospital, Gadchiroli.

3. On the basis of the said complaint, PSI Devki Ukey (PW5) registered the offence vide C.R.No.192/1996. PW5 collected the medical certificate of the prosecutrix (Exh.48). PW 5 then arrested the appellants on the next day i.e. 2.11.1996 and sent Maroti for medical examination. The medical report of the appellant was collected (Exh.50). On 4.11.1996 PW5 visited the place of the incident and recorded the spot panchnama (Exh.37). From the place of incident, PW5 took charge of broken pieces of bangles and the knicker. Those articles were separately taken charge by PW5 under Panchnama (Exh.38). PW 5 then recorded the statements of the witnesses. PW 5 sent the seized articles to C.A. office and secured the C.A. report (Exh.55). After completion of investigation PW 5-Devaki Ukey submitted charge-sheet against the appellants in the Court of Learned JMFC. The case was committed to the court of Sessions. The learned trial Judge framed the charge against the appellants. On appreciation of evidence led before the learned Special Judge and after hearing both the sides, he convicted the appellants as aforesaid.

4. Shri Akhtar Nawab, learned counsel for the appellants vociferously argued that the learned Special Judge had failed to consider that there was a love affair between the prosecutrix and the appellant no.1-Maroti. Furthermore, the learned Judge did not consider the aspect that the medical evidence did not support the case of the prosecutrix. According to him, even the place of incident is not properly explained by the prosecutrix. He contended that the learned Special Judge has failed to consider the evidence led by the prosecution in its right perspective and has erroneously convicted the appellants.

5. Per contra, the learned APP, Mr I.J. Damle, vehemently argued that the prosecutrix was a young girl, aged about 16 years and was residing with her mother and brothers. Her mother was already separated from her father and her step-father was no more at the time of the incident. He stated that the defence has brought on record that prosecutrix was having love affair with appellant-Maroti, still the fact remains that appellant Maruti had refused to marry with her and got married with some other girl. The learned APP further submitted that even assuming that the prosecutrix was having love-affair with the appellant-Maroti prior to his marriage, the manner in which the incident had taken place, one cannot presume that it was a consensual sex. He invited my attention to the fact that while appellant Maroti was committing forcible sexual intercourse with the prosecutrix, appellant no.2- Shamrao caught hold of her hands and closed her eyes by pressing his hands. He further submitted that appellant-Shamrao also participated in the said act by pressing the breasts of the prosecutrix. Learned APP contended that the presence of the appellants at the place of incident and the roles attributed to them have not been shattered in the cross-examination. Thus, the learned APP supported the impugned judgment and order.

6. I have gone through the rival contentions of both sides and also gone through the record carefully. In order to substantiate its case, the prosecution has heavily relied upon the testimony of the prosecutrix-PW 1, mother of the prosecutrix, PW 3-Shakuntala and Panch witness-PW 2-Vistari Shedmake.

7. The testimony of PW1-prosecutrix shows that on the date of incident, she had gone to the field to bring the grass for cattle. At about 4.00 pm., while she was returning towards her house, she saw both the appellants standing by the side of the road. Both the appellants pushed the bundle of grass which she was carrying on her head and there was scuffle between the prosecutrix and the appellants. The appellants then brought her in the field; they made her to fall down. Appellant -Maroti threatened to kill the prosecutrix if she raised any alarm. Then Shamrao caught hold of her and closed her eyes by putting his hands. Appellant-Maroti then removed her knicker and committed forcible sexual intercourse with her. When she tried to resist appellant-Maroti from committing the said act, appellant Shamrao caught hold her with force and, therefore, she was unable to prevent the act of appellant-Maroti. After appellant-Maroti committed sexual intercourse with her, both the appellants fled away from the place of the incident. The prosecutrix then returned to her house and she fell down in front of her house. She was then brought to the hospital at Gadchiroli in a tractor. Her report was recorded by PSI Devaki Ukey (PW5) at Exh.34. PW1-prosecutrix stated that the medical officer examined her in the said hospital. She herself pointed out the place of the incident to the police and accordingly the police recorded the spot panchnama. The police took charge of her torn skirt and body-frock under Panchnama (Exh.35). PW1 categorically stated that at the time of recording the spot panchnma her knicker and broken pieces of bangles were found on the spot. She clarified that the bangles were broken when there was a scuffle between her and the appellants. She further stated that the appellant-Shamrao assisted appellant no.1-Maroti in committing rape on her.

8. During the cross-examination, it was put up to the prosecutrix that there was a love affair between between her and appellant-Maroti and they were intending to marry with each other. However, she denied the said suggestion. PW1 denied that she had stated before the police that previously she was having a love affair with appellant-Maroti and they were intending to marry with each other, but the mother of Maroti learnt about it and she performed the marriage of appellant-Maroti with one Shobha and since then she was not talking with them. Although the prosecutrix denied the said suggestion given to her, still the said suggestion also indicates that the prosecutrix was not in talking terms with appellant-Maroti. With regard to the place of incident, it was suggested to PW1 that both the appellants were cultivating the land of one Hamidbhai and they both were present in the said field. She further admitted that Pappu who was brother of Hamidbhai ,was having a separate field and field of Hamidbhai was adjacent to the village. It appears that the defence had made an effort to show that the incident had taken place in some different field. However the case was not put up properly to the witness and the testimony of witness was not shaken in the cross-examination, so far as the place of the incident is concerned. It was also suggested to her that there were 4 to 5 panshops and some houses near the bus stop; however no nexus was shown between the bus-stop and place of the incident. So also, it is not clear as to what was the distance between Bus stop and the place of the incident i.e. Field of Pappu. In fact, the prosecutrix has simply stated that while she was returning home after collecting grass, the incident had taken place. According to her, she was dragged in the field. She has not specified as to in which field exactly the incident had taken place. However, the spot panchnama is clear on this aspect. Hence, there is no ambiguity with regard to the place of incident. At this juncture, it would be appropriate to mention that the knicker of the prosecutrix was taken charge from the place of incident.

9. In this context, PW2-Vistari testified that on 4.11.1996 he was called by the Police to act as a Panch. Panchnama was prepared at the place of the incident. The place was shown by the prosecutrix. The broken bangles and knicker were found at the place of the incident. The police prepared the spot panchnama (Exh.37); the police took charge of the broken bangles and the knicker vide panchnama (Exh.38). The testimony of PW2 is not shaken in the cross-examination. The spot Panchnama (Exh.37) indicates that the place of incident was in the field of one Pappu Nathani situated within the boundary of Mouza Amirza village. The said field was at a distance of about 3 kms. From the village. The panchnama shows that broken pieces of bangles as well as knicker were seen at the place of incident. Those articles were lying in the field of standing paddy crop and the grass was seen to be trampled. Thus the testimony of PW2 corroborates with the testimony of PW1 on the aspect of place of incident and that the pieces of bangles and knicker were lying at the place of the incident.

10. From the meticulous scrutiny of the testimony of PW1-prosecutrix, it is manifest that both the appellants were very much present at the place of incident and the roles attributed to them by the prosecutrix are not at all shattered in the cross-examination. Even assuming that there was a love affair between the prosecutrix and appellant-Maroti prior to his marriage and he performed marriage with other girl, it does not necessarily mean that the prosecutrix would falsely implicate both the appellants in such a heinous crime. The prosecutrix was a young girl aged about 17 years old and at such a tender age she would not ruin her reputation by falsely implicating the appellants in such a heinous crime by putting her reputation at stake. No enmity as such was brought on record between the prosecutrix and appellant no.2-Shamrao. There was no reason for the prosecutrix to level false accusation against the appellant no.2 Shamrao. Moreover, if at all she had any grudge against appellant-Maroti as he had not performed marriage with her, although they were having love affair, she would have at the most implicated appellant no.1-Maruti only. There was no reason for her to falsely implicate the appellant no.2-Shamrao in the present case. Nothing intangible was found in the searching examination of PW1. Her testimony inspires confidence and she is found to be a reliable and trustworthy witness.

11. PW 3-Smt.Shakuntala, who is the mother of the prosecutrix, deposed that on the date of incident, she told her daughter to bring grass for the cattle and she proceeded to the field for cutting paddy crop. At about 5.00 pm she returned back from the field. She saw her daughter lying near the door of the house. She was in a semi-conscious condition. The women from the adjoining houses had gathered at that place. She noticed that the bangles of her daughter were broken and her clothes had become dirty. She offered water to her. Her daughter was not talking at that time. She brought her daughter to the hospital by a tractor. She was medically treated in the hospital. Her daughter informed her that when she had gone to bring grass, the appellants had beaten her and committed rape on her. The report of PW1 was recorded by the police. An improvement was pointed out in her cross-examination to the effect that the bangles of her daughter were broken and her clothes had become dirty. The said improvement is not a material omission and it does not go to the root of the case. The testimony of PW3-Shakuntala is not shaken at all in her cross-examination particularly with regard to the fact that she noticed her daughter near her house in a semi conscious condition and she had taken her daughter to the hospital. Thus, the testimony of PW3- Shankuntala corroborates with the testimony of PW1-prosecutrix on material particulars. The testimony of prosecutrix-PW 1 is in consonance with the contents in the FIR (Exh. 34). There are no material discrepancies, improvements or embellishments in the version of PW1 as well as PW 3. Thus PW 1 and PW3 are found to be reliable witnesses and their testimony inspires confidence.

12. The neighbour i.e. PW 4-Dhrupadabai did not support the prosecution case and she denied that the prosecutix informed her that appellant-Maroti committed rape on her and appellant-Shamrao caught hold of her at that time. PW4 denied that when PW1 reached her house she fell down in front of her house and at that time she was in pains. She denied that thereafter her mother came and took her to the hospital.

13. As far as the medical evidence is concerned, the medical evidence shows that hymen of PW1 was found to be ruptured, however, there was no fresh and bleeding injury over her hymen. No doubt, the medical evidence does not support the case of the prosecution. Significantly, the CA report also does not throw any light on the aspect of finding bleeding injury or semen stains on the clothes of the prosecutrix. In this context, it is to be noted that the sole testimony of the prosecutrix can be relied upon as she is found to be a truthful witness. Even though the medical evidence does not support the case of prosecutrix, the accused persons do not have a licence to commit a forcible sexual intercourse with the prosecutrix even if she is a prostitute. In the case of State of Punjab vs. Gurmit Singh and others, reported in (1996) 2 SCC 384, the Hon'ble Apex Court has held that, "where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of "loose moral character" is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted any anyone and everyone."

14. As regards the investigation conducted by the Investigating Officer PW 5-Devaki Ukey, is concerned, she recorded the statement of the prosecutrix on the same day in the hospital. PW5 Devki Ukey deposed that when the prosecutrix was brought to the Police Station at about 10 pm, she was unconscious. She was immediately taken to the hospital and she accompanied the prosecutrix to the hospital. Thus, the testimony of PW5 corroborates with the testimony of PW3 that the prosecutrix was found lying on the ground and she was in a semi conscious condition when he noticed her. It is, however, worth noting that the investigating agency has not produced the articles lying on the spot, viz. the knicker of prosecutrix and bangles which were taken charge from her. In this context, the learned Advocate for the appellants pointed out that in the instant case, the articles were not shown to the prosecutrix as well as other witnesses and as such, it weakens the case of the prosecution. I do not find any substance in the contention of the learned Advocate for the appellants as only because the Investigating Officer has failed to show these articles to the witnesses, this would not make the prosecution case weak or doubtful as such. The requisition letter (Exh.54) indicates that the articles were sent to the CA office on 12.11.1996. The CA report (Exh.54) shows that on 13.11.1996 the articles were received by the C.A. However it is not clear whether those articles were collected by the investigating agency or produced before the court. There is no evidence in that regard. However, the prosecutrix should not suffer for the lapses in investigation or if the prosecution has not taken due care to produce the clothes of the prosecutrix in the court and get it identified from the witnesses. In any case, since the CA report does not reveal any semen stains on the clothes of the prosecutrix, the non-production of articles in the Court does not demolish the prosecution case in any manner.

15. In case of State of H.P. v. Sanjay Kumar alias Sunny reported in 2017(3) Mh.L.J. (Cri.) (S.C.) 68 : [2017 ALL SCR (Cri) 1], the Hon'ble apex Court has held in paragraph 31 as under :-

"31. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborate in material particulars, as in case of an accomplice to crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance."

16. In case of Aman Kumar and another v. State of Haryana, reported in (2004) 4 SCC 379, the Hon'ble apex Court has held as under :-

"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional."

17. In case of Jugendra Singh v. State of Uttar Pradesh, reported in (2012) 6 SCC 297 : [2012 ALL SCR 1739], the Hon'ble apex Court in paragraphs 41, 42, 43 and 49 has held as under :-

"41. In State of U.P. v. M.K. Anthony (1985) 1 SCC 505 this Court has observed (SCC p. 331, para 15) that in case of "[m]inor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole".

43. In Appabhai v. State of Gujarat (1988 Supp SCC 24) this Court has ruled thus :(SCC pp.246-47, para 13).

"13. ... The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witlessness altogether if they were otherwise trustworthy.

18. On overall assessment of the case of the prosecution, it is found that the learned Special Judge has rightly assessed the evidence on record and has scrutinized it in its right perspective and come to the conclusion that the prosecution has proved its case beyond reasonable doubt. In view thereof, no interference is called for in the impugned judgment and order. Hence the following order :

Order

(i) Criminal Appeal No. 777/2004 is dismissed.

(ii) The judgment and order of conviction and sentence dated 08.12.2004 delivered by the learned 1st Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Trial No. 11/1997 is maintained.

(iii) The appellants are on bail. Their bail bonds stand cancelled. They are directed to surrender before the learned Additional Sessions Judge, Gadchiroli to undergo the remaining period of sentence. If they do not surrender within a period of four weeks from today, the learned trial Court is directed to take appropriate action in accordance with law.

(iv) Muddemal property be dealt with as directed by trial Court after the appeal period is over.

Appeal dismissed.