The State of Maharashtra v. Kisan Laxman Dhepe & Ors.

Judgment

2. VERSUS Kisan Laxman Dhepe, Age : 35 years, Occu. Agri., R/o Lakhangaon, Tq. Washi, District Osmanabad. Bapu @ Bapurao Nivratti Sonwane, Age : 30 years, Occu. and residence as above. RESPONDENTS ..... Mrs. S.D. Shelke, A.P.P. for the appellant/State. Mr. S.G. Chapalgaonkar, advocate for the respondents. ..... CORAM : A.V. POTDAR, J. DATED : 22nd JUNE, 2012 ORAL JUDGEMENT :

1. By the present appeal, the State has questioned the correctness and legality of the acquittal of the respondents in Sessions Case No. 38 of 2001, for an offence punishable under section 376, 341 and 506 read with section 34 of the I.P. Code, (2) criapl433-01 vide judgement and order dated 12th July, 2001 rendered by the learned Adhoc Assistant Sessions Judge, Osmanabad.

2. Such of the facts as are necessary for the decision of this appeal can be summarized as follows: (a) The prosecutrix (her name is not disclosed in this judgement as per the guidelines provided by the Apex Court) was working as maidservant in the house of one Sudam Lakhe (PW4). The prosecutrix, as maidservant, was cooking food in the afternoon as well as during the evening/night hours for PW4 Sudam. In the night of 17th October, 2000, she was returning to her home after finishing the household work at the house of PW4 Sudam. On way back to her residence, the respondents to this appeal were alleged to have lifted her forcibly, took her in the field of one Suresh Patil, where she was denuded and sexually ravished by both the respondents turn by turn till 3 a.m. in the morning and then she was released. At that time, she was threatened with dire consequences that if she discloses the incident to anybody, then (3) criapl433-01 she will be killed. In the early hours, she returned to her house, narrated the incident to her husband, but because of the threats given by the respondents, she could not lodge the complaint or disclose the incident to anybody. Her employer, namely, PW4 Sudam approached to her at her residence, as she had not reported on her duty on the next day and at that time, the prosecutrix disclosed the incident to him. However, as she was unable to walk, they could not approach to the police. On the third day, the prosecutrix and said PW4 Sudam approached to Outpost, Para where they reported the incident to one Suresh Jagannath Randive, a Police Head Constable attached to the Outpost, Para. The incident narrated by the prosecutrix was reduced into writing (Exh-28) and then alongwith the said report, the victim was referred to Kallam Police Station and was produced before the P.S.I., namely, Pundlik Kondaji Badakh. On the basis of said report, PSI Badakh registered the crime at CR No. 206/2000 for an offence punishable under section 376 (2) (g), 323, 506 read with section 34 of the I.P. Code. He took over the investigation of the said crime. (4) criapl433-01 (b) Following to the registration of the offence, in presence of panch witnesses, PSI Badakh (PW9) took charge of the clothes on the person of the prosecutrix (articles No. 1 to 3) under a panchanama (Exh-40), after she was allowed to change her clothes, as, according to the prosecutrix, those were the clothes on her person at the time of incident. Then on the said day, the prosecutrix pointed out the spot of incident, which is situated in the field of one Suresh Patil. In the presence of prosecution witness, namely, Ramesh Pandharinath Patil (PW5) and one Bhagwat Lakhe, he drew the spot panchanama (Exh-32) of the spot shown by the prosecutrix. From the spot, two metal bangles were seized which were claimed by the prosecutrix as her bangles. (c) Immediately thereafter, the prosecutrix was referred for her medical examination to the Civil Hospital, Osmanabad alongwith a request letter (Exh-43). Dr. Kaushali Vilas Rokade (PW1), a Medical Officer examined the prosecutrix and issued medical certificate about the examination of the prosecutrix (5) criapl433-01 (Exh-17). On the basis of clinical and radiological examination of the prosecutrix, PW1 Dr. Kaushali issued a certificate (Exh-18). On medical examination of the prosecutrix, Dr. Kaushali noticed only one abrasion on the back of the prosecutrix, admeasuring 1 cm x 1 cm. and scab formation had taken place on the wound. PW1 Dr. Kaushali opined that on clinical examination and radiological finding, the patient (prosecutrix) is habitual to intercourse and hence, exact opinion cannot be given as to whether she (prosecutrix) was raped recently. About the age of the prosecutrix, PW1 Dr. Kaushali certified that on clinical and radiological examination of the prosecutrix, her age was about 18 years. (d) On the same day, PSI Badakh(PW9) recorded the statements of witnesses - PW4 Sudam Lakhe, Bajirao Dhepe, Saheba Shinde, Maruti Thorbole and others. On 21st October, 2000, he arrested both the respondents. Thereafter, the clothes of the respondent No. 1 Kisan (articles No. 5 to 8) and the clothes of respondent No. 2 Bapu (article No. 9 and article No. 11) were seized in presence of witness (6) criapl433-01 Digambar Vithal Lakhe (PW6) under panchanama (Exh-34). After arrest of the respondents, on 23rd October, 2000, they were referred for their medical examination in the Government Hospital, Kallam alongwith a letter of request (Exh-44). PW2 Dr. Madhukar Tukaram Suryawanshi, a Medical Officer attached to Rural Hospital, Kallam examined the respondents and issued medical certificates at Exh-23 and Exh-25. On medical examination of both the respondents, it is opined by the Medical Officer that both the respondents are capable of performing the sexual intercourse. on their physical medical examination, he noticed that there is no evidence of matting of pubic hairs due to semen. No evidence of presence of foreign hairs around the genitals was found. No evidence of blood or semen stains on the genitals was found. No evidence of smegma was seen. No scratch or laceration on penis or tear of frenulum was found. In substance, no evidence of sexual intercourse in the recent past by the respondents was found or any mark of violence was found on the person of both the respondents. (7) criapl433-01 (e) During the medical examination of the prosecutrix as well as that of the respondents, directions were given to the concerned Medical Officer to collect the sample of blood of the prosecutrix as well as the respondents. Directions were also given to the Medical Officer to collect the sample of pubic hairs of the prosecutrix so also of the respondents. It was also directed to the Medical Officer examining the prosecutrix to collect the vaginal swab of the prosecutrix. All these samples collected by the concerned Medical Officers were sent to the Chemical Analyzer for medical test alongwith a forwarding letter (Exh-45). In due course, the reports of the Chemical Analyzer (Exh-46 to Exh-49) were received. On completion of investigation, chargesheet was filed against the respondents in the

Court of Judicial Magistrate (First Class), Kallam on 11th December, 2000. In due course, the trial was committed to the Court of Sessions at Osmanabad. (f) On committal of the trial to the Court of Sessions, the learned trial court framed a charge against the respondents at Exh-6 for an offence (8) criapl433-01 punishable under section 376 (2) (g), 341, 506 (II) read with section 34 of the I.P. Code. Both the respondents abjured to the charge framed against them. (g) During the trial, to substantiate the charge levelled against the respondents, the prosecution examined in all nine witnesses, including two Medical Officers examining the prosecutrix and the respondents, the prosecutrix herself as PW3, Sudam Lakhe as PW4, four panch witnesses to different panchanamas, Police Constable attached to Outpost, Para as PW6 and the Investigating Officer Pundlik Badakh as PW9. The defence of the respondents was of total denial. As the medical evidence is negatived and the reports of the Chemical Analyzer also do not corroborate the version of the prosecutrix, and relying mainly on the admissions given by the prosecutrix and PW4 Sudam Lakhe, the learned trial court acquitted both the respondents of all the charges, vide the impugned judgement, legality and correctness of which is questioned in this appeal by the State. (9) criapl433-01

3. The learned A.P.P., appearing for the State, would urge across the Bar that the learned trial court failed to appreciate the evidence of the prosecutrix which discloses the acts committed by the respondents which constitute an offence of rape, offence of wrongful confinement and also an offence of threats to the prosecutrix, which evidence remained unshaken in her cross-examination. Learned A.P.P. would further urge that the learned trial court failed to appreciate that in rape cases, it is always not essence or mandate that the testimony of the prosecutrix requires corroboration and even the conviction can be based on the sole testimony of the prosecutrix, as, according to her, the offence of rape, a heinous offence is always committed in isolation and not in public. Under the premise, the evidence of the prosecutrix needs to be accepted. Learned A.P.P. would further urge that the version of the prosecutrix that the respondents lifted her, took her to the field of Suresh Patil is corroborated by the testimony of Sudam Lakhe (PW4), which is discarded by the court below and committed an error (10) criapl433-01 while acquitting the respondents. She would further urge that the learned trial court has unwarrantedly discarded the medical evidence, even then the medical evidence is supporting the version of the prosecutrix. On all these counts, she would urge that the conclusions drawn by the learned trial court while acquitting the respondents are erroneous and the judgement of the acquittal be set aside by allowing the present appeal.

4. Per contra, learned counsel Mr. S.G. Chapalgaonkar, appearing for the respondents, supports the impugned judgement of acquittal rendered by the court below.

5. In the light of these submissions across the Bar, first it is necessary to consider the medical evidence and the reports of Chemical Analyzer (Exh-46, Exh-47, Exh-48 and Exh-49). The C.A. report at Exh-46 is in respect of blood of respondent No. 2 Bapu. On examination of the blood and semen, it is opined that blood of respondent is of blood group "O". It is opined that no semen was detected on the pubic hairs. Exhibit-47 is a report in respect of (11) criapl433-01 respondent No. 1 Kisan wherein no semen is detected on the pubic hairs while the blood of blood group of respondent Kisan is detected as of "B" group. As against this, report at Exhibit-48 is in respect of blood of blood group and vaginal swab of the prosecutrix, examined by the Chemical Analyzer. The blood group of the prosecutrix is found to be of "A" group. No semen was detected in the vaginal swab collected by the Medical Officer during her medical examination. So also no semen was detected on the pubic hairs. Exhibit-49 is the C.A. report in respect of the clothes of the respondents. This report shows that neither blood nor semen was detected on the clothes of the respondents. It is to be noted that as per the evidence of the prosecutrix, she was denuded by the respondents; however, there were clothes on their person. In the premise, the inference and conclusion drawn by the trial court that the C.A. report is no-way going to help the prosecution, cannot be faulted with.

6. Now it is necessary to consider evidence of PW1 Dr. Kaushali Rokade and the certificate issued by (12) criapl433-01 her in respect of medical examination of the prosecutrix at Exh-17 and the certificate in respect of age of the prosecutrix at Exh-18. She has opined the age of the prosecutrix as about 18 years, which fact is not disputed by the respondents. Hence, no comments are required about the certificate at Exh-18. As regards the certificate at Exh-17, read with the substantive evidence of Dr. Kaushali, it discloses that only one injury was noticed on the back admeasuring 1 cm x 1 cm scab formation on the wound. No other external injuries were noticed by Dr. Kaushali (PW1). This evidence is required to be considered in the light of evidence given by the prosecutrix herself.

7. The prosecutrix has stated in her evidence that on the day of incident, she had worked at the house of PW4 Sudam Lakhe till 9 p.m. Thereafter, she cleaned the utensils and started for her residence. On her way, she was intercepted by both the respondents, as they were following her. They gagged her mouth, physically lifted her and took her to the standing Toor crop in the agricultural land of one (13) criapl433-01 Suresh Patil. She has further stated that she was denuded by the respondents. Her mouth was gagged with her saree. First, the first respondent partly removed his clothes after she was forced to lie down in the agricultural field. Her hands were held by the second respondent and she was sexually forcibly ravished by the first respondent. Thereafter, the second respondent committed rape on her and at that time, her hands were held by the first respondent. Both the respondents repeatedly committed rape on her, one after another, upto 3 a.m. and thereafter, she was released. At that time, she was threatened by the respondents not to disclose the incident to anybody; else she will be killed. Thereafter, the respondents left the spot. After she put the clothes on her person, she returned to her house. Her husband was present in the house to whom she narrated the incident. She also disclosed that the respondents threatened her not to disclose the incident to anybody otherwise she will have to suffer the dire consequences. She has further stated that she remained in her house for two days and thereafter, went to Para Outpost. She narrated the incident to (14) criapl433-01 the policeman present at Outpost, Para who scribed it. Thereafter she was taken to Kallam Police Station where her clothes were seized and she was referred for her medical examination. She has further stated that on the next day, she pointed out the spot where she was ravished by the respondents, to the police from Kallam Police Station. . The prosecutrix was cross-examined at length. In her cross-examination, the geographical situation of the spot of incident is brought on record. It is brought on record that the house of Sudam Lakhe (PW4) is situated in the cattle-shed, which is situated in the hutment area. One Saheba Shinde from Pardhi community was selling the liquor in that cattle-shed and there used to be always rush or presence of people at the said liquor shop during the night hours. She has further stated that initially, after she was lifted by the respondents, she gave shouts for help, but lateron as her mouth was gagged, she was unable to give the shouts. The place where the incident occurred was of rough surface in the agricultural field. She has stated that in the said (15) criapl433-01 incident, she sustained scratches on her back, on her leg, on her hands. She has further stated that due to act of the respondents, she sustained bleeding injuries over her breast and blood was oozing from those injuries. She has further stated that due to gagging of her mouth by saree, she has also sustained injuries on her leaps. She has also stated that there are severe injuries on her private parts and there was bleeding injuries on the private parts. She has also stated that the respondents also sustained injuries due to brushing of the standing crop in the field. The blood was also oozing from the injuries sustained by the respondents.

8. This evidence of the prosecutrix about the acts which she has stated, is discarded by the court below on the ground that in her medical examination, of which the certificate is at Exh-17, No injury on any part of the person of the prosecutrix is found, except injury admeasuring 1 cm x 1 cm on her back. Thus, the evidence given by the prosecutrix about the act committed by the respondents suffers from lack of medical evidence. Apart from it, the evidence of (16) criapl433-01 prosecution witness No. 2 Dr. Madhukar, who has examined both the respondents immediately after their arrest when they were referred for their medical examination to the Rural Hospital, Kallam, for which he has issued the medical certificates at Exh-23, Exh-24 and Exh-25. Thus, it is rightly concluded by the court below that the version given by the prosecutrix is not supported by the medical evidence or by the report of the expert i.e. C.A. reports at Exh-46 to Exh-49. Thus, this court does not find any fault with the finding recorded by the court below that the testimony of the prosecutrix is not supported by the medical evidence and also by the evidence given by the expert.

9. At this juncture, I feel it necessary to advert to the observations of the Division Bench of this court in the matter of "Sitaram vs. the State of Maharashtra", reported in 1974 CRI.L.J. page-82, wherein in paragraph No. 12, the law as regards credibility of the testimony of the prosecutrix in cases of sexual offences, the question of acting upon the same as a basis for a finding of guilt, and the (17) criapl433-01 necessity of corroboration to the same, is summarized in the following manner :- "12. The law as regards the credibility of the testimony of the prosecutrix in cases of sexual offences, the question of acting upon the same as a basis for a finding of guilt, and the necessity of corroboration to the same, may be stated as follows; (i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge: (ii) There may be circumstances in a given case which might make it safe to dispense with such corroboration; (iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities or defects, in a manner so as to make it either unsafe or impossible to base a finding of guilt on the same. Some of the salient factors of this type may briefly be stated as follows: (a) circumstances showing on the Part of the prosecutrix an animus against the accused; (b) where the question of want of consent is material, circumstances tending to show consent; e. g., absence of material showing an attempt at resistance : absence of any marks of struggle; (18) criapl433-01 (c) attempts at improvement or exaggeration in the version as attempted by the prosecution: (d) elements of artificiality or unnaturalness in the story as attempted by the prosecutrix: (e) conduct on the part of the prosecutrix. inconsistency with the credibility of the version, e. g.. omission to make a disclosure at the earliest opportunity : and (f) absence of signs of rape in the findings of the medical examination or on chemical analysis."

10. Before considering these observations of the Division Bench, further evidence of the prosecutrix in the present case will also play a vital role, wherein the prosecutrix has deposed that after she reached at her residence in the early hours of the following day and narrated the incident as to what wrong had happened with her, she had made a bold statement that even though she had not returned in the night to her house, no enquiry was made by her husband either by contacting PW4 Sudam in whose house she was working or tried to take her search during the night hours. It is observed by the court below on (19) criapl433-01 this count that apart from the conduct of the prosecutrix, the conduct of her husband by not making any enquiry when his wife (prosecutrix) had not returned in the night to the residence or attempted to take her search, is beyond the human nature and improbable conduct and on this count also, the evidence of the prosecution witnesses is required to be discarded.

11. In her further cross-examination, the prosecutrix has admitted that there is political rivalry between the two groups in the village. The first respondent had contested the election in 2000 and got elected against the relative of the employer of the prosecutrix and on that count, there was dispute between the two groups in the village. Apart from it, in further cross-examination, she has given certain fatal admissions. She has stated that on the day of incident at about 8.30 p.m., both the respondents met her as they were going to their field for providing water to the crops in their field. At that time, they were holding a charged torch with them. The respondents went to their field, started (20) criapl433-01 electric motor and were returning back. On their way, when they reached near the hutment area, she alongwith Sudam were going from the hutment area, at that time, the light of the torch in the hand of first respondent was inadvertently lighted towards the prosecutrix and PW4 Sudam. On this count, quarrel took place between Sudam and the respondents. During that quarrel, scuffle also took place between the duo. At that time, she intervened. During the said intervention, due to push by the second respondent, she fell on her back and sustained injury on her back. Thus, in her cross-examination itself, how the injury sustained by the prosecutrix, as noticed by PW1 Dr. Kaushali, was explained by the prosecutrix herself. On this count, it is held by the trial court that the injury found on the person of the prosecutrix was explained by the respondents from the evidence of prosecutrix herself. It is further brought on record that at that time, in her presence, her employer PW4 Sudam threatened these respondents that they will be involved in a false criminal case. She has given a bold admission that before the complaint was lodged in the Police (21) criapl433-01 Station, there was discussion amongst her employer Sudam, Ramesh Patil and Suresh Patil and members of the rival party and after discussion, the complaint was lodged in the Police Station.

12. In this context, evidence of PW4 Sudam is required to be considered. He has also stated that on the day of incident, the prosecutrix worked at his residence till 9 p.m. and then she proceeded to her house. On her way back, he heard the shouts of the prosecutrix. On hearing the shouts, he came outside his house and noticed that the respondents had lifted the prosecutrix and carried her towards field of Suresh Patil. Then he did nothing as he got frightened and had a fear that the respondents may assault him. He has further stated that on the next day, he had been to the house of the prosecutrix where he learnt as to what had happened with the prosecutrix, but he had not taken her for medical treatment but on the third day, he accompanied the prosecutrix to the Police Station to lodge the complaint. In his cross-examination, he has admitted that he was residing in the cattle-shed in the (22) criapl433-01 hutment area. It is brought on record that near the den/liquor shop run by Saheba Shinde where there used to be always presence of the customers in the said liquor shop. He has stated that after he noticed that the respondents lifted and carried the prosecutrix to the field of Suresh Patil, he closed the door of his house and went to bed as usual. He has not taken her for medical treatment. In his further cross-examination in paragraph No. 6, he corroborated the admissions given by the prosecutrix in her cross-examination that on the day of incident at 8.30 p.m., both he himself and the prosecutrix were proceeding to the hutment area and at that time, the respondents were proceeding to their field to provide water to the crops in their fields. At that time, as the torch light of the torch in the hand of the first respondent was put on them, quarrel took place between them and the respondents. During that quarrel, as the prosecutrix intervened, she sustained injury on her back and thereafter, he and the prosecutrix annoyed against the respondents and threatened them that he will involve them in a false criminal case. (23) criapl433-01

13. On the basis of this evidence, it is observed by the learned trial court that if at 8.30 p.m., the prosecutrix and PW4 Sudam were proceeding to their hut, then within a short span of 25 minutes, how could she cook the food and how could she provide the food and how she completed the entire household work and start to return back at 9 p.m. to her house. It is further observed by the trial court that soon before the alleged incident, a quarrel had taken place between the prosecutrix and her employer on one side and the respondents on the other. At that time, the employer PW4 Sudam and the prosecutrix showed guts not only to have scuffle with the respondents but to threaten them. Considering this aspect, it has been inferred by the learned trial court that PW4 Sudam, the employer of the prosecutrix would not play the role of a silent spectator if he had heard the shouts of the prosecutrix for help. Due to fear, he closed the door of his house and went to his bed. This conduct of PW4 Sudam - employer of the prosecutrix appears to be improbable. It is further observed by the learned trial court that if the (24) criapl433-01 employer of the prosecutrix was aware that the respondents were to quarrel with him and the prosecutrix when they were proceeding to their house, then the employer - PW4 Sudam would not have allowed the prosecutrix to go alone to her house, but certainly, he would have accompanied the prosecutrix to drop her to her residence. Thus, the conduct of the prosecutrix as well as her employer - PW4 Sudam appears to be improbable.

14. A passing reference is given by the learned trial court about the observations of the Division Bench of this Court in the matter of "Sitaram vs. the State of Maharashtra" (supra); however, the details of the judgement in the said case have not been given in the impugned judgement. As observed in clause (a) of sub-para (iii) of para 12 of the said judgement, there may be factors in a case, such as the circumstances showing on the part of the prosecutrix an animus against the accused, tending to show that the testimony of the prosecutrix suffers from infirmities or defects, in a manner so as to make it either unsafe or impossible to base a finding of (25) criapl433-01 guilt on the same. The factor as stated in clause (c) of the reported case about the attempts or improvement or exaggeration in the version as attempted by the prosecution, finds place in the exaggeration in the injuries, which is not supported by the medical evidence in the present case. Indeed, it amounts to elements of artificiality or unnaturalness in the story as attempted by the prosecution and the conduct of not only the prosecutrix but her husband about not enquiring about the whereabouts of the prosecutrix and her employer instead of helping her, playing a role of silent spectator speaks a lot. For all these reasons, the observations of the learned trial court that the sole testimony of the prosecutrix cannot be believed in absence of independent corroboration and in absence of positive medical evidence, the only inference that that can be drawn is that such testimony needs to be discarded. The learned trial court has rightly discarded the testimony of the prosecutrix and PW4 Sudam while acquitting the respondents from the offence charged. In substance, the view taken by the learned trial court is probable one. I do not find (26) criapl433-01 any perversity in the findings recorded by the court below, which requires interference by this court in its appellate jurisdiction.

15. In the circumstances, the appeal sans any merit. Hence, the appeal is dismissed. Consequently, the bail bonds of both the respondents stand cancelled. Sd/- [A.V. POTDAR, J.] npj/criapl433-01