High Court
Legal Reasoning
CriAppeal-300-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 300 OF 2005Laxman Jaywantrao Gurhale,Age : 23 Years, Occu Agriculture,R/o. Jajnur, Tq. Nillanga,District Latur.… Appellant[Orig. Accused]VersusThe State of Maharashtra… Respondent…..Mr. Mayur V. Salunke h/f Mr. V. D. Salunke, Advocate for theAppellant.Mr. S. K. Shirse, APP for the Respondent-State...… CORAM :ABHAY S. WAGHWASE, J. Reserved on: 03.10.2024Pronounced on: 08.10.2024JUDGMENT : 1.In the instant appeal, there is challenge to judgment and orderdated 21.04.2005 passed by learned Adhoc Additional SessionsJudge, Nilanga, District Latur in Sessions Case No. 23 of 2004,recording guilt of the appellant for offence under Sections 376 and341 of the Indian Penal Code [IPC]. CriAppeal-300-2005-2- PROSECUTION CASE IN BRIEF2.Victim, a 19 years old girl, gave statement that while she wasgoing to the field to collect fodder at around 2.00 p.m., presentappellant Laxman intercepted her way, took her in the crops,undressed her, got himself undressed and had sexual intercourse andthereafter left. Out of fear, victim did not report the incident to herparents. After 4 to 5 months, she started experiencing pain inabdomen and even missed her menses. Mother took her to doctor andduring such examination, it was revealed that she was pregnant.When mother questioned about it, she reported act of accused. On herabove statement, Gandhi Chowk Police Station, Latur registered crimewhich was investigated by PW8, and on gathering sufficient evidence,accused was chargesheeted. 3.At trial before learned Adhoc Additional Sessions Judge,Nilanga, vide Sessions Case No. 23 of 2004, on appreciation ofprosecution evidence, learned trial Judge accepted the prosecutionstory as proved and sentenced appellant to suffer seven years rigorousimprisonment for offence under Section 376 IPC and simpleimprisonment for one month for offence under Section 341 of IPC.The instant appeal is the offshoot of above judgment. CriAppeal-300-2005-3- EVIDENCE BEFORE TRIAL COURT4.The role and status of the witnesses examined by prosecution insupport of its case, and the sum and substance of their evidence canbe summarized as under :PW1 Mother of victim, who is examined at Exhibit 18, deposed thatshe took daughter for medical examination due to bleedingfrom urine and swelling to extremities. That time at Latur,doctor disclosed that her daughter was pregnant, and onbeing questioned, her daughter reported that appellantobstructed her and committed forceful sexual intercourse in afield.PW2Father deposed that daughter was taken to the hospital onaccount of bleeding. There, doctor disclosed that his daughterwas pregnant and therefore she was taken to Ambajogai foroperation.PW3Victim gave evidence as under :“one month of after last Diwali, I had gone to the field forfetching fodder and it was 2 p.m. At that time accusedLaxman obstructed me and pressed my mouth. Accused thentook me in a hybrid crop. The accused removed my allclothes. He has also removed his all clothes. Accused laiddown me and thereafter he inserted his penis into my vagina.Some white sticky substance fall on my vagina. Thereafter theaccused left the spot.” CriAppeal-300-2005-4- PW4Pancha to spot panchanama Exhibit 25.PW5Dr. Datar, Medical Officer at Civil Hospital Latur, deposedthat sonography report of victim revealed vesicular mole andshe reported it to Gandhi Chowk Police Station videcommunication Exhibit 27.PW6Dr. Watre, another medical expert at Woman’s Hospital Latur,testified bout admission of victim, she being examined andeven this medical expert reached to an opinion that there wasvesicular mole with peri-metastasis right lung with hugecardiomegaly with severe anemia, and patient referred toAmbajogai. She identified certificate Exhibit 31.PW7Dr. Vaidya, Medical Officer at SRT Medical HospitalAmbajogai, also conducted sonography and diagnosedvesicular mole. He performed operation, collected sample ofmole for CA and samples were forwarded to police. PW8PSI Rathod was the Investigating Officer [IO].SUBMISSIONSOn behalf of the appellant:5.Pointing to the above evidence, learned counsel for theappellant took exception to the findings and conclusion by puttingforth a case that at the first count, there is inordinate delay in CriAppeal-300-2005-5- reporting the occurrence, i.e. of almost five months. That, testimonyof victim is full of material omissions, variances and improvements.He submitted that, there is nothing to show that there was anyforceful act. He emphatically pointed out that scientific evidence andmedical evidence i.e. DNA report rules out involvement of appellant.That, here, very spot of scene of occurrence was not established.Consequently, prosecution version was weak and palpably feeble onall counts. He also questioned the entire trial for not offeringopportunity to answer the questions put under Section 313 of Cr.P.C.on material count. He also puts forth case of false implication due topolitical rivalry. In the alternative, he submitted that even otherwise,the act was explicitly consensual one as there was no resistance,raising alarm or prompt reporting. On behalf of the State:6.Supporting the judgment, learned APP would submit thatvictim was forcibly raped while she was going alone to the field.Victim has narrated the sequence of events. Learned APP submittedthat out of fear of parents and further getting defamed, victim did notreport. Only when on complaint of abdominal pain she was taken tohospital, at such time her pregnancy was revealed but she CriAppeal-300-2005-6- immediately disclosed act of accused to her mother. That, victim wasrequired to undergo medical procedure and only after recovery, shegave statement. Thus, according to learned APP, there is reason fordelay. He also further submitted that in cases of such nature, delaycannot be given undue importance, as there are several reasons forvictims of such crime to not to report immediately. 7.Learned APP further submitted that three doctors had examinedvictim. Her pregnancy was confirmed by conducting tests likesonography. Victim has named appellant for committing forciblesexual intercourse after which her menses had stopped. That, he wasthus solely responsible for the conception. Act amounts to rape andtherefore, according to learned APP, learned trial court’s findings andconclusion cannot be faulted at.8.Here, though as many as 8 witnesses are examined, evidence ofvictim, her parents and medical experts is of relevance. Admittedposition is that reporting is after five to six months of allegedoccurrence. Only upon medical examination as a result of abdominalpain, pregnancy was revealed, and thereafter victim reported allegedincidence at the hands of appellant. CriAppeal-300-2005-7- 9.Now the question which needs to be ascertained and addressedis whether offence under Sections 376 and 341, for which guilt isrecorded, is proved beyond reasonable doubt. Testimony of victim asregards to occurrence is reproduced in aforesaid para. On carefullyscrutinizing and appreciating the same, the victim is shown to be 19years of age. She has alleged that one month prior to Diwali, whichgenerally falls at the end of October or beginning of November, whileshe was going to the field to collect fodder, appellant allegedlyobstructed her way and took her in the hybrid crop. She claims thathe removed her all clothes, then he removed his own clothes, madeher lie down and then had sexual intercourse by inserting his organ inher private part. Then she deposed that he left. She too wore herclothes and then went to collect the fodder. 10.Her such testimony categorically shows that there was noresistance or oppose by her while being taken to the crop. She hadnot resisted or attempted to run while he disrobed her. She does notseem to have attempted to escape from the spot while he himself wasgetting undressed. She has not uttered in her substantive evidencethat the act was against her wish, forceful and without her consent.The manner of testimony clearly shows that there was no resistanceput up by her. CriAppeal-300-2005-8- 11.It is true that it is also settled law that mere passive submissionalso cannot be held as consent. But here, as discussed above, after theact, she went to collect the fodder, for which she claims to haveproceeded that day, and had not reported her parents till a period offour to five months was over. Only on experiencing pain, shecomplained to that extent and when being treated, her pregnancy wasdiagnosed and only thereafter, when being questioned by mother, shereported alleged act of accused. As pointed out, delay is admittedlyimmense. Report is only upon pregnancy being revealed and notearlier to it. 12.Therefore, with such quality of evidence, it is difficult to acceptversion of prosecution that there was act of forceful coitus or againsther wish. Had it been so, she would have at least reported theincident immediately to her parents. But that has not happened. Herversion that due to fear, she did not report, also suggests somethingelse. As discussed above, the manner of testimony shows that in spiteof being a young girl, she had not raised alarm, put up resistance, norattempted to escape while accused was undressing himself. She hasnot uttered a word about any sort of threat by accused beforecommitting the act. For said reasons, it would be unjust to drawinference that she was forcibly ravished. CriAppeal-300-2005-9- 13.Three doctors had occasion to examine the victim. They all areconsistent about she being diagnosed of vesicular mole. PW5 Dr.Datar, while under cross, has defined the said medical term by statingthat, it is a type of fertilization and a kind of pregnancy which ispossible in case of sexual intercourse. Neither of the medical expertsi.e. PW5, PW6 and PW7 deposed about history of forceful sexualintercourse. 14.PW7 Dr. Vaidya, an expert in gynecology, conducted operationon the victim on 17.05.2004 and claims to have taken sample ofmole, tissue and fluid for CA and he deposed in para 2 that, it washanded over to police constable B.No. 1102 of Nilanga police stationat 10.00 p.m. i.e. on 17.05.2004. Exhibit 36 shows that samples werereferred to Forensic Science Lab, Kalina, Mumbai for establishingpaternity. 15.Exhibit 11 seems to be result of analysis of blood vial of victim.Exhibit 12 seems to be blood of accused. Both the samples werecollected for DNA. At Exhibit 14 is the result of DNA analysis and itsinterpretation and opinion, which is as under :
Legal Reasoning
CriAppeal-300-2005-10- Interpretation -1)For all the 15 different genetic systems and genderspecific Amelogenin locus analyzed with the PCR, thevictim girl Ms. XYZ matched both the sets of parentalalleles, which are present in the tissue sample.2)As the tissue sample shows exactly similar pattern ofalleles with victim girl XYZ, there is no possibility ofcontribution of paternal alleles in the tissue sample fromaccused Mr. Laxman.Opinion -The tissue sample forwarded for DNA analysis (Exh.1)has originated from Victim girl XYZ herself and it is not apart of fetal tissue.Therefore, as pointed out, DNA analysis apparently rules outand eliminates involvement of Laxman. 16.Another ground of attack launched by learned counsel forappellant here is that, incriminating material pertaining to DNA andits report was not brought to the notice of accused while answeringunder Section 313 Cr.P.C., and it amounts to severe infraction andthereby entire trial gets vitiated. CriAppeal-300-2005-11- 17.In the line of above defence, if statement of accused underSection 313 of Cr.P.C. is visited, it is noticed that as many as 26questions are posed. There is pointed question by virtue of questionno.18 that, on 17.05.2004, after operation, PW7 Dr. Vaidya, amedical expert, did collect vesicular mole and blood of victim for DNAexamination and dispatched it to Kalina, Mumbai. Therefore, her,though point is raised by virtue of ground (M), in the light of abovediscussion, question regarding DNA was apparently put to the accusedto which he has answered it in negative.18.However, to sum up, here, prosecution version comes undershadow of doubt primarily for immense delay for over 5 to 6 monthscaused in reporting the incidence. Only on detection of pregnancy,PW3 victim disclosed involvement of accused. Her testimonydiscussed and analyzed above creates doubt as to whether the actitself was forceful and against her wish. In spite of being to taken toDr. Shinde of Nilanga, who is apparently not examined, andpregnancy was noticed, at that point of time also there is nodisclosure of involvement of accused. Rather it is emerging fromvictim’s evidence that more than one month thereafter, she was takento Latur and Doctor at Latur summoned police, and thereafter she hasdisclosed before police vide statement dated 12.05.2004. Her CriAppeal-300-2005-12- evidence is that after said act of accused, her menses had stopped,and she claims to have conceived from the said act, but DNA analysisdoes not support her version, as appellant is ruled out to havecontributed to the conception. 19.Therefore, on complete re-appreciation, for above reasons, inthe considered opinion of this Court, with such quality of evidence,case of prosecution comes under shadow of doubt and therefore, casenot being proved beyond reasonable doubt, and more particularlywhen victim’s testimony about she being forcibly raped not inspiringconfidence, benefit of doubt is required to be extended to theaccused.20.Perused the judgment under challenge. In para 17 of thejudgment, learned trial court has accepted prosecution version byobserving that, victim and parents being illiterate labourers andresiding in rural area, and due to fear, as victim did not disclose, thedelay in reporting is bonafide. This court has already noted that thereis no element of fear as victim’s testimony is silent about any threatsissued by appellant. Above aspect has not been correctly appreciatedwhile condoning delay. CriAppeal-300-2005-13- 21.Similarly, as regards findings of trial court on the point of DNA,it is noticed that PW5, PW6 and PW7 are all in unequivocal termsreporting about diagnosis of vesicular mole. Vesicular mole in medicalterms is said to be a non cancerous tumor that develops in the uterusas a result of “non-viable pregnancy”. This term “non-viablepregnancy” means a pregnancy where the fetus has no chance ofsurvival. Again, if we carefully examine evidence of PW7 whooperated victim, in examination-in-chief para 2 he deposed abouttaking sample of mole of tissues and besicular fluid for CA and thesame was forwarded to Forensic Science Lab at Kalina for the purposeof establishing paternity, and this is revealed from Exhibit 36.Therefore, DNA analysis was particularly got done to ascertainpaternity. Under such circumstances, when DNA report does not supportprosecution, learned trial court in its judgment para 20 and 21 erredin accepting the DNA analysis holding that there were mere tissuesforwarded for DNA and no fetal tissue. In fact, sample of vesicularmole itself was drawn for paternity.
Decision
CriAppeal-300-2005-14- Consequently, learned trial court’s findings are apparentlyerroneous. In view of the above discussion, the appellant succeeds.Accordingly, I proceed to pass the following order :ORDERI.The appeal is allowed.II.The conviction awarded to the appellant Laxman JaywantraoGurhale, by learned Adhoc Additional Sessions Judge, Nilanga,District Latur in Sessions Case No. 23 of 2004 under Sections376 and 341 of IPC on 21.04.2005 stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 376 and 341 of IPC.IV.The bail bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period. [ABHAY S. WAGHWASE, J.]vre