Criminal Appeal No. 201 of 1988 · Bombay High Court

This appeal preferred State section 378(1) Code Criminal Procedure, 1973, challenging Judgment 21st November 1987 passed learned Additional Sessions Judge, Thane, Respondents acquitted offences punishable section 376 Indian Penal Code. This a demonstrates a neglect investigating agency : 2 : Medical Officer. This illustrates sensitivity Police machinery Medical officers State Government dealing with a case of a serious offence against a woman.

The prosecution prosecutrix Mangala Gopal Chaudhari residing village Mahape, Taluka District Thane. In April 1985 working a servant Shri Patwardhan a resident residential colony National Organic Chemical Industries (hereinafter referred NOCIL Colony) situated Thane Belapur Road, Taluka District Thane. Ltd. The prosecutrix residing a village Mahape. Though married Gopal Chaudhari sick. residing alone. From 24th April 1985 On 26th April 1985

5.00 p.m. room, Accused No.2 employer Shri Patwardhan called immediately. According Prosecution, Accused No.2 residing house. Prosecutrix Accused No.2 recovers sickness. morning 27th April 1985 Prosecutrix Shri Patwardhan resume The On : 3 : day. In evening 27th April 1985 Accused No.2 Prosecutrix informed called Harishchandra Patil Accused Prosecutrix Harishchandra Patil. Therefore, Prosecutrix

9.30 p.m. S.T. proceed Savita Harishchandra Patil. At Accused bicycle Prosecutrix called Savita. The Accused Prosecutrix a Savita Patil residing Nocil Colony therefore, Prosecutrix should accompany them. However, Prosecutrix informed bus. According her, Accused addressed sister requested accompany them. According Prosecutrix darkness S.T.bus stop. The Prosecutrix refused accompany Accused. The Accused bicycle

arms. caught Prosecutrix Both dragged Prosecutrix Prosecutrix quiet. Accused forcibly Prosecutrix godown space. When Prosecutrix alarm, Accused No.2 The a : 4 : hand. Accused No.2 caught Accused No.1 removed clothes person. Thereafter Accused No.1 pushed Prosecutrix ground committed her. According Prosecutrix Accused No.2 holding hands. Her Accused No.1 thereafter Accused No.2 therefore, Accused No.2 commit her. Thereafter Accused allowed brought S.T.stop. There Accused threatened disclosed incident one, inform leader Ganesh Naik Prosecutrix a morals thereafter removed residential accommodation. The Prosecutrix started towards S.T. accused followed her. The Accused No.2 Prosecutrix intends Prosecutrix night. When Prosecutrix reached room, Accused again tried to molest her she would raise hue and cry. Therefore, both the Accused went away.

The Prosecutrix narrated incident morning landlady. Her landlady advised Prosecutrix : 5 : Sarpanch employer. Accordingly Prosecutrix, Savita Patil, narrated incident her. The Savita Patil advised Prosecutrix narrate incident Patwardhan. When reached Shri Patwardhan, already duty. She narrated incident Mrs. Patwardhan’s Paternal Security Officer NOCIL factory. Therefore, Prosecutrix reached security factory Ramesh Patil present narrated incident Shri Ramesh Patil. The Ramesh Patil called Accused No.1, NOCIL company explanation. Accused No.1 denied anything. Shri Ramesh Patil message Rabale Police Station Head Constable attached Rabale Police Station security gate. The Ramesh Patil narrated incident Head Constable thereafter Ramesh Patil Prosecutrix Police Station in a Jeep. Accordingly F.I.R. was recorded at the Police Station.

The the Accused appears Prosecutrix acquainted Accused No.2 wanted Accused No.2. Their Accused No.1 aborted attempt : 6 : Prosecutrix and therefore, the Prosecutrix falsely implicated both the Accused in the case.

The prosecution examined Prosecutrix (P.W.1), Savita Harishchandra Patil (P.W.2), Panch witness Ramesh Tukaram Jadhav (P.W.3), Medical Officer Dr.M.C.Nagare (P.W.4), Investigating officer Shri Laxman Ananta Patil (P.W.5). The prosecution produced relied upon various reports of the Chemical Analyser to which reference will be made at a later stage.

The learned A.P.P. Shri Thakur appearing Appellant-State submitted learned Sessions Judge discarded testimony prosecutrix. He submitted hardly material omission contradiction evidence Prosecutrix conviction testimony Prosecutrix. He submitted considering nature evidence situation Prosecutrix placed evidence discarded discrepancies contradictions. submitted considering case, He hardly recording F.I.R. He through evidence impugned Judgment Order. He criticized various findings : 7 : recorded learned Sessions Judge. He critical approach learned Sessions Judge. Shri Thakur also relied on various Judgments of the Apex Court to which reference will be made later on.

Shri Gole appearing Respondents supported impugned Judgment Order. He submitted though a conviction section IPC testimony Prosecutrix, submitted 376 case, evidence Prosecutrix unreliable medical evidence support version Prosecutrix. He submitted appeal against acquittal merely because possible evidence record, findings recorded by the learned Sessions Judge cannot be disturbed.

We carefully considered submissions learned Counsel appearing parties. We perused evidence documents admitted evidence learned Sessions Judge. We perused impugned Judgment Order. P.W.1 narrated incident prosecution narrated earlier paragraph Nos 2

3. cross-examined detail Advocate She : 8 : Accused. In cross-examination Prosecutrix stated dragged S.T.bus incident fallen ground. She stated process dragging sustained injury leg, knee. In examination-in-chief stated clothes removed, cross-examination clothes removed. She stated stated petticoat account surface incident. Certain omissions brought record cross-examination. The Accused Prosecutrix intending Accused No.2 was opposed by the Accused No.1 was put to her and she denied the correctness thereof.

P.W.2 Savita Harishchandra Patil landlady Prosecutrix. She deposed Prosecutrix earlier residing husband a period months. She stated husband Prosecutrix deserted thereafter residing days. Subsequently started residing hutment Mahape. She narrated 29th April 1985

8.00 a.m. Prosecutrix started weeping. The Prosecutrix : 9 : incident earlier night. The witness stated Prosecutrix NOCIL colony Shri Ramesh Patil present Prosecutrix narrated entire incident. She stated Ramesh Patil Police sending a Police arrived colony Prosecutrix Police Station. In cross-examination a question husband Prosecutrix directly Rabale Police Station. Her that since the accused were working in NOCIL company they decided to go to the gate of NOCIL colony.

P.W.3 Ramesh Tukaram Jadhav a witness offence panchanama. In cross-examination stated pieces bangles distance compound MIDC. He stated a distance 20 Western Side Mahape S.T.stop two houses and in one of the houses there is a grocery shop.

P.W.4 Dr.Mahendra Nagare deposed injuries person Prosecutrix. He stated a gynaecologist relevant working Medical Officer Civil Hospital : 10 : Thane. He stated examined prosecutrix noticed prosecutrix habituated sexual intercourse difficult ascertain whether forceful intercourse recent past. He stated reveal sexual intercourse. He deposed that there were following injuries on the person of the prosecutrix:

1. Abrasion - contusion mandible 1-1/2" x 1/4", accused object.

2. Abrasion dorsum 1/2".

3. Laceration medial a wrist 1". 4. Four small scratch marks over dorsum of left elbow. In cross-examination stated victim ground back, buttocks, thighs touching surface expected sustain injuries body. He, however, deposed a married habituated person, sexual intercourse a single necessary injuries to her external genitals and internal part i.e. vagina.

P.W.5 investigating officer Laxman Ananda Patil. : 11 : He admitted complaint Exh.19 prosecutrix stated 29th April 1985 Savita Harishchandra Patil narrated incident her. The witness recorded supplementary statement prosecutrix. He stated enquire whether on 29th April 1985 Ramesh had given telephonic message to Rabale Police Station before sending a jeep.

The documentary evidence medical certificate Exh.25 29th April 1985 issued Medical Officer Dr.Mahendra Nagare. He certified injuries person prosecutrix. The documentary evidence Chemical Analyser’s reports. The report Exh.32 respect sample, sample Accused No.1. The report sample sample determined detected hair. Exh.32 report Chemical Analyser respect sample, sample Accused No.2. The findings Chemical Analyser identical. Exh.30 Chemical Analyser’s report respect articles. article pettycoat prosecutrix. The The report article 8 cms. diameter middle, : 12 : 3 cms., stains 1 cm. diameter situated middle portion stains B. The report further states that no semen stains were found on the undergarments of the accused.

The learned Counsel appearing Respondents submission regarding inordinate lodging F.I.R. The incident p.m. 27th April

1985. It prosecutrix accused accompanied

9.30 residence incident. After undergoing insult Prosecutrix expected travel Rabale Police Station alone. She completely shattered time. Immediately morning erstwhile landlady, advised employer. She thereafter attempted employer. She thereafter proceeded P.W.2 Savita NOCIL company security Shri Ramesh Patil thereafter FIR lodged. In a nature, offence allegedly committed section 376 night, prosecutrix IPC, living hut, nothing unnatural Police Station : 13 : report matter earlier landlady employer. Considering especially natural course conduct position prosecutrix placed the delay in recording the F.I.R. is not at all fatal by any stretch of imagination.

The Prosecutrix stated S.T.Stop compound MIDC she was dragged Accused. She stated dragged katcha process dragging sustained injuries legs, elbow, knee. She stated committed back, buttocks, touching ground rubbed ground. She stated offence hard. She stated committed her, trying Accused No.1 though caught Accused No.2. She admitted sustain injury hands. examination-in-chief clothes body were removed. However, In cross-examination she has made a contradictory statement. : 14 :

Looking incident a surface was considering statement Prosecutrix back, thigh, buttocks roughed against surface during incident, should injury body. However, evidence P.W.4 Dr.Nagare discloses injuries person. The injury abrasion mandible, second injury a abrasion dorsum elbow, injury a laceration injury a scartch elbow. fourth The Prosecutrix admitted dragged offence sustained injury and feet. The evidence of P.W.4 discloses that there were no injuries on her back, buttocks, and legs.

"B". Semen stains detected places portion petticoat Prosecutrix. All strains a person having Unfortunately report Chemical Analyser says that the blood group of the Accused could not be determined.

Time Apex Court offence section 376 IPC evidence : 15 : victim sexual assault corroboration conviction founded testimony alone. For compelling reasons Court assurance statement satisfy judicial conscious. Apex Court contradictions insignificant discrepancies statement Prosecutrix could not be a ground for throwing out an otherwise reliable prosecution case.

Considering entire evidence record, opinion discrepancies The contradictions evidence Prosecutrix cannot insignificant minor. Therefore, required assurance statement satisfy judicial conscious. However, material record assurance gathered. The crucial aspect Medical Officer injuries back, buttocks legs. body, Looking nature incident alleged, injuries atleast abrasions found. In report Chemical Analyser concerned, assurance derived evidence Accused "B". Shri Ramesh Patil Prosecutrix narrated incident instance : 16 : Police called examined. There the Medical Officer P.W.4 negligence Investigating machinery. We adverted to that in the subsequent paragraphs of our judgment.

Suffice present difficult convict Accused testimony Prosecutrix evidence record assurance derived support statement Prosecutrix. The Apex Court recently defect investigation irregularity investigation necessarily rejection prosecution otherwise proved. In present deficiencies irregularities investigation matter nature impossible assurance version Prosecutrix. Moreover appeal against acquittal interference permitted merely because conclusion possible evidence record. The learned Sessions Judge a possible Accused established. Merely because another conclusion which ground to interfere in an appeal against acquittal. : 17 : Thus the result of the Appeal becomes inevitable.

Before Judgment, a anguish record certain disturbing aspect matter. The Courts repeatedly recorded particular increase. Very little concern normally honour a women. The present remarkable indifference Medical Officer investigating machinery towards victim sexual crime. In connection necessary medical certificate issued Medical Officer Civil Hospital Thane. already referred evidence We stated injuries person accused evidence injuries back, buttucks, thighs victim. The medical certificate exhibited record issued P.W.4 indifferent callous manner Medical Officer a Government Hospital treated victim of a sex crime. The said certificate reads thus: : 18 : "Impression:- . Since Patient experience habitual sexual intercourse, difficult predict whether forceful sexual intercourse the recent past or not. However, she does not show signs of fresh sexual intercourse. Patient shows following external injuries.

April May The Investigating Officer stated 1985 itself Accused apprehended. By 29th 1st 1985 statements witnesses recorded. He stated forwarded samples accused Chemical Analyser 9th May

1985. The document Exh.28 Accused 29th Medical Officer, Civil Hospital, Thane April 1985 obvious samples collected day. It surprising samples Chemical Analyser 8 days. The Chemical Analyser July submitted report 31st

1985. In report stated samples samples accused cannot determined. The inconclusive result Chemical Analyser account unexplained abnormal investigating machinery Chemical Analyser’s office. As a result inconclusive report Chemical Analyser circumstances establishing accused : 21 : established. We understand Investigating Officer required 8 forward samples Chemical Analyser Chemical Analyser took 67 days thereafter for analysing the samples.

This cases where unsafe convict accused testimony Prosecutrix. Therefore, unless assurance The duty. evidence record, Court cannot convict Accused. In present case, medical evidence assurance version Prosecutrix. reason the Medical Officer Detection Accused important factor. In behalf failure investigating machinery Chemical Analyser’s office. In essence medical examination victim offence investigation. If investigating machinery sensitivity required in such cases, the result of the prosecution will become inevitable.

Blood samples accused were Investigating Officer Chemical Analyser determination group. The samples a : 22 : always Chemical Analyser taking benefit section 293 Cr.P.C. report proved without examining expert. That investigating machinery cannot available machinery. In present case, samples collected the Medical Officer Civil Hospital a District place. Apart sending samples Chemical Analyser, Investigating Officer a report Pathologist available Civil Hospital. report proved examining Pathologist. Instead Investigating Officer waited a period 9 dispatch samples Chemical Analyser. If Investigating Officer sensitivity crime, insisted Prosecutrix should examined a doctor immediately available Civil Hospital. In victim crime, advisable victim examined a doctor available immediately. We suggesting Investigating Officer should victim examined a doctor available. If Government Health Centre Cottage Hospital/Civil Hospital doctor immediately available, competent enough Investigating Officer examine patient, Hospital authorities should The : 23 : ensure a victim examined doctor. We necessary Medical Officer concerned should ascertain nature alleged properly examine victim keeping playing a important investigation crime. The Medical Officer concerned must make a detailed examination of the victim and note the following particulars: Developed/ not Developed. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) Age Height. Weight. General body built. Secondary sex characters Examination of clothes: Whether there are semen or blood stains. Examination of evidence of any violence on the body. Injuries on Breasts/cheek/lips/thighs/Genitals and other parts of the body. Examination of private parts Vulva, Vagina, Hymen, perinium, fourchette. Matting of pubic heir due to semen. Presence of seminal stains on the genitals. Result of P.V.examination if such examination is possible. The Medical Officer ensure sample victim ascertaining group. Moreover wherever necessary : 24 : pathological examination. He should vaginal smeer for examination. It is for the Director of Health to issue necessary directions in that behalf.

Before judgment, necessary certain observations learned Sessions Judge. The learned Sessions Judge meticulously referred Prosecutrix statement examination-in-chief cross-examination. The learned Judge referred discrepancy contradiction evidence. We a matter discrepancy contradiction defeat prosecution case. We cannot ignorant inherent limitations ability Prosecutrix depose precisely incident result affecting dignity honour. We cannot oblivious social conditions country victim offences courageous enough tell everything which has happened with meticulous precision before the Court of law.

The learned Sessions Judge conclusion inordinate lodging complaint. Looking seriousness offence this, delay. The : 25 : question examined whether a explained prosecution. The learned Sessions Judge should considered explanation prosecution meticulously carefully. The learned Sessions Judge considered Prosecutrix approached Police Station late in the night especially when she was staying alone in her hut.

The learned Judge referred stains under-garments accused No.2. The learned Judge should appreciated F.I.R. lodged 12 incident. There a between incident clothes person Accused seized. After incident Accused back. There possibility Accused wearing clothes wearing incident. Considering facts, learned Judge importance stains under-garments Accused. We that the entire approach of the learned Sessions Judge was not correct.

The Appeal liable dismissed : 26 : accordingly dismissed. Bail bonds of the Respondents stands cancelled.

We direct a Judgment forwarded office Secretary Public Health Department consider observations in paragraph No.24 of this Judgment and take appropriate action. (Smt. Ranjana Desai, J.) (Abbay S.Oka, J.)