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CriAppeal-143-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 143 OF 2004Sandip Eknath Ithape,Age : 28 years, Occupation Service,R/o Pimpalgaon-Pisa, Taluka Shrigonda,District Ahmednagar.… Appellant[Orig. Accused]VersusThe State of Maharashtra… Respondent…..Mr. Vikram R. Dhorde a/w Mr. S. P. Nimbalkar andMr. S. P. Dudhane, Advocate for the Appellant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 23.04.2024Pronounced on: 30.04.2024JUDGMENT : 1.Conviction recorded by learned Sessions Judge, Ahmednagar inSessions Case No. 171 of 2001 by order dated 25.02.2004 forcommission of offence punishable under Sections 376(G) and 506(1)of the Indian Penal Code [IPC] is taken exception to, by filing instantappeal. CriAppeal-143-2004-2- FACTS IN BRIEF2.Victim PW3 stayed with her parents at Kutalwadi inPimpalgaon Pisa Shivar. On 10.08.2001, around 4.00 p.m., when herparents had been to Rasaiwadgaon, taluka Shirur and her uncles hadbeen to agricultural work, she left the house to fetch water from ahand pump. While she was proceeding in front of the house of oneDada Kutal, juvenile accused Bharat caught hold of her, whereasaccused Sandip (appellant) pressed her mouth and she was pulled inthe house of said Dada Kutal. When she tried to raise alarm, she wasgagged. She was taken to the rear side room and there, first accusedSandip raped her and then juvenile Bharat took turn to rape her. Theythreatened to kill her if she informs anyone. 3.Victim’s uncle Babu, who happened to reach their while he wassearching for her, found her unconscious and she was taken tohospital. There, at hospital, her complaint Exhibit 27 was noted andthis was followed by registration of crime. 4.PW9 PSI Raskar, who was entrusted with the investigation,carried out the same and after gathering sufficient evidence, accusedcame to be chargesheeted and accused Bharat, being minor, was CriAppeal-143-2004-3- referred to the Juvenile Court. Accused Sandip was made to face trialbefore learned Sessions Judge, who, on appreciating oral anddocumentary evidence adduced by prosecution, accepted the case ofprosecution as proved and convicted accused Sandip for commissionof offence punishable under Sections 376(G) and 506(1) of IPC. Such judgment and order of conviction is now challenged byway of instant appeal.SUBMISSIONSOn behalf of the appellant :5.Pleading innocence and false implication, learned counsel forthe appellant would submit that, at the outset, here, prosecution hasmiserably failed to establish the charges beyond reasonable doubt. Hepointed out that except testimony of prosecutrix, there is noindependent evidence to hold charge proved. At the outset, he tookexception to the prosecution version about prosecutrix being a minor.He pointed out that there is no legally acceptable evidence in supportof age of the victim. According to him, solitary document relied byprosecution is a school extract, which is apparently not of the firstschool where victim undertook education. According to him, there is CriAppeal-143-2004-4- no distinct evidence like date of birth to hold victim a minor andtherefore, it is his submission that prosecution has utterly failed toshow that victim was minor, as is claimed by prosecution.6.He next submitted that it is impossible to accept the version ofvictim being dragged in the house which is surrounded by otherresidential houses and that too, in broad day light. He pointed outthat victim has not resisted or raised alarm. He further pointed outthat victim claims that she was gagged, but the piece of cloth is alsonot seized by the investigating machinery. According to him, there isno evidence whatsoever regarding victim being forcibly taken insidethe house by accused.7.He further pointed out that here, there are allegations offorceful sexual assault by two persons, but there is no external injuryand medical evidence falsifies such claim. On this count, he invitedattention of the Court to the medical evidence and pointed out thatcross of the medical expert belies the story of prosecution. His furthersubmission is that, though prosecutrix put up a case that she went outof the house to fetch water, according to learned counsel, said steelwater pot was not found on the way or in the vicinity of the spot.Rather it was found in the very house of victim and as such, he CriAppeal-143-2004-5- submitted that such circumstance itself belies the version ofprosecution. He further pointed out that even apart from nosupporting medical evidence, scientific evidence is also notconnecting accused with the said offence. 8.Lastly he submitted that the tenor of the cross and answersgiven by prosecution witnesses as well as answers given by accusedwhile answering under Section 313 of Cr.P.C., clearly show that itwas proposed to perform marriage of victim and accused. Therefore,there was close acquaintance. Resultantly, occurrence was not forciblerape and hence he questions the legality, maintainability andsustainability of the impugned judgment and order of conviction andfinally prays to set aside the same.On behalf of the State : 9.In answer to above, learned APP pointed out that apparently,victim was minor. PW7 Clerk of the school, who maintained record,has been examined by prosecution. Resultantly, it is her submissionthat prosecution has cogently established age of the victim. Pointingout to the cross of victim, learned APP submitted that case set up byaccused about love affair is flatly denied by victim. She pointed out CriAppeal-143-2004-6- that here, uncle Babu is the eye witness. He had been in search ofvictim who was found unconscious in the house of Dada Kutal. Shewas unconscious and while undergoing treatment, when she regainedconsciousness, she reported the occurrence and named accused andtherefore, immediately crime was registered. She pointed out thatclothes of victim, which were found to be in torn condition, fortifiesthe case of forceful rape. According to her, medical evidence is alsoclear and cogent. Thus, according to learned APP, considering thetestimony of victim coupled with medical evidence, charge of rape isproved. Victim categorically deposed that there were threats to killand therefore, required ingredients for attracting Section 506 IPCwere also available. For all above reasons, learned APP submits thatlearned trial Judge has correctly appreciated the available evidenceans has correctly applied the settled law. That, guilt is proved beyondreasonable doubt and therefore, having accepted the prosecutionversion as proved, learned trial court committed no error and solearned APP prays to dismiss the appeal for want of merits.GIST OF THE PROSECUTION EVIDENCE IN TRIAL COURT10.Prosecution has examined following 12 witnesses to establishits case: CriAppeal-143-2004-7- PW1 Rangnath is the pancha to seizure of clothes of victim and inhis evidence at Exhibit 22, he stated that father producedclothes and the same were seized by drawing panchanamaExhibit 23.PW2Machhindra has acted as pancha to spot panchanama which isthe house of Dada Kutal, and he identified panchanama drawnin his presence to be at Exhibit 25.PW3victim gave evidence at Exhibit 26 and sum and substance ofher evidence is that on 10.08.2001, when she went to fetchwater, accused Bharat and Sandip pulled her in the house ofDada Kudal. She was taken to the rear room and accusedSandip raped her, followed by accused Bharat. She stated thatshe was threatened if she discloses the incident to anyone. Sheclaims that she became unconscious and when she regainedconsciousness, she found herself in hospital. She stated that,that time police had also come there and she gave complaintExhibit 27, contents of which were identified by her.PW4Babu is the uncle of victim. It is his version that on10.08.2001, he learnt that his niece victim, who had left to fillwater from the hand pump, had not returned and therefore heset out for search. He saw door of the house of Dada Kutalmoving in spite of no one residing there. Therefore, onsuspicion, he went towards the house. According to him,accused Sandip opened the door and ran out. Thereafter, he CriAppeal-143-2004-8- entered the house and found Bharat hiding and he too ranaway without saying anything. After he entered second room,he saw a water pot lying there and victim lying on the groundin unconscious condition. Her clothes were in torn conditionand her undergarment was lying near her. He called oneKalawati and thereafter one doctor Santosh was called andvictim was taken in a jeep initially to Shrigonda police station,who directed to take her to Rural Hospital, Shrigonda andfrom there she was further directed to be shifted to CivilHospital where, after gaining consciousness, she gavestatement.PW5Baburao Jape, ASI, who recorded complaint Exhibit 27 byvisiting Civil Hospital.PW6Medical Officer, who examined accused.PW7Shinde is Clerk in the school where victim was admitted. Hegave date of birth of victim as per register to be 01.06.1986and entry of her name in register to be at serial no. 1161. Heidentified this document at Exhibit 33.PW8is the Medical Officer who examined victim on 11.08.2001and issued certificate Exhibit 36.PW9Police Sub Inspector Gopinath Raskar is the InvestigatingOfficer who narrated all the steps taken by him duringinvestigation. CriAppeal-143-2004-9- PW10Police Constable Gaikwad is the carrier of muddemal to C.A.PW11is the forensic expert.PW12Police Constable More is another carrier of muddemal. ANALYSIS11.On going through the prosecution evidence, it seems that theevidence of PW3 victim, PW4 her uncle and PW8 Medical Officer whoexamined victim is of significance.12.The testimony of victim PW3 at Exhibit 26 is put to scrutiny.Regarding occurrence, she has deposed that on 10.08.2001 around4.00 p.m., she went to fetch water from hand pump and while shewas proceeding in front of house of Dada Kutal, accused Bharat(juvenile) caught hold her left hand and thereafter present appellantpressed her mouth. Present appellant pulled her in the house of saidDada Kutal. She claims that she tried to shout but accused put cloth inher mouth. She was taken to the backside room. Appellant pushed heron the ground, lifted her gown and removed her undergarment whilejuvenile accused Bharat held her hands, appellant then undressedhimself, inserted his penis in her vagina. Victim stated that appellant CriAppeal-143-2004-10- had twice forcible sexual intercourse with her and thereafter he heldher hands and juvenile accused Bharat undressed himself and he tooraped her. She further deposed in para 3 that both accusedthreatened her that if she disclosed the incident to anybody, they willkill her. They gagged her after which she became unconscious. Whenshe regained consciousness in the Civil Hospital, her uncle andparents were near her. They inquired with her as to what happenedand she narrated the incident.On visiting her cross, it is found that initially questions are putabout place of education, about her brothers and sisters, as towhether father of accused is dead or alive. She answered that parentsof accused are from Kutal family. Relevant cross is at para 7 and 8.She answered that there is only one water hand pump in theKutalwadi. She denied that there are houses around the water pump.She answered that her house is adjacent to the house of Dada Kutal inthe same lane. In para 8 she answered that she failed in 10th standardand thereafter she did not attend school. In para 9, she stated that hermouth was pressed by use of palm and that she tried to raise shoutsafter removal of palm. She again volunteered that immediately clothwas inserted in her mouth. She answered that the cloth washandkerchief. She is asked what was the distance between two spots. CriAppeal-143-2004-11- She is asked whether she tried to take out the cloth from her mouth.She answered that she was dragged for 15 feet. She denied that therewere scratches on her knees, thighs, chin. She answered that she wasfrightened because her hands were held and pressed. She answeredthat incident lasted for 15 to 20 minutes and therefore she lostconsciousness. She flatly denied that her marriage was settled withaccused and an amount of Rs.31,000/- was given by way of dowry.She also denied that there was any love affair with accused or aboutmeeting him at lonely places. Rest all suggestions are denied by her.13.PW4 uncle of victim is also a crucial witness, because he claimsto have gone in search of victim and when he reached the house ofDada Kudal, there, he claims to have seen accused Sandip runningout of the house, whereas juvenile accused Bharat hiding himself andlater he also running out of the house. He claims that when heentered second room, he found victim lying unconscious. Hedescribed the condition of clothes to be torn and her undergarmentslying beside her. Therefore, he gave call to one Kalavati and victimwas shifted to two hospitals and at Civil Hospital, she regainedconsciousness and narrated the incident. He also reiterated that shetold that while she was proceeding towards water hand pump forfetching water, in front of house of Kutal, accused pressed her mouth CriAppeal-143-2004-12- and dragged her inside the house, pushed her on the ground and bothaccused raped her. He also, in cross, denied that marriage of victim was settledwith accused. He denied about lodging complaint at Shrigonda PoliceStation. He admitted about having talks with PSO on duty. He deniedabout he disclosing the incident to the Medical Officer or to police atCivil Hospital, Ahmednagar. He denied false implication.14.After these two witnesses, another star witness for prosecutionis PW8 Doctor who is examined at Exhibit 34. Doctor stated thatpatient was admitted on 11.08.2001 on the history of sexual assaultbetween 4.30 p.m. to 5.00 p.m. on 10.08.2001. It is contention ofDoctor that there were signs suggestive of recent sexual intercourse,but no signs of force. Doctor identified certificate issued Exhibit 36.Again after going through the C.A. report, she deposed that afterperusal of the same, in her opinion, there are signs of recent sexualintercourse but no signs of force. In recent sexual intercourse, rednessof vaginal wall is often noticed. In cross, she admitted that two fingers test suggestedhabituated to sexual intercourse. She admitted that hymen of the CriAppeal-143-2004-13- patient was old torn. Hypothetical questions are posed which neednot be taken into account.15.Therefore, what is emerging on meticulous examination ofvictim’s testimony is that on 10.08.2001, while she was going forfetching water, she has specifically stated that when she reached thehouse of Kutal, at that time, juvenile accused and present appellanttook her in the house of Kutal and she has specifically stated thatjuvenile accused first held her by her hands and her mouth waspressed preventing raising alarm. First, present appellant seems tohave raped her and thereafter juvenile allegedly raped her. She hascategorically stated that they both threatened to kill her if she reportsto anyone. Because of being raped one after the other, she fellunconscious. She gave statement in the hospital. In spite of beingsubjected to cross, her above evidence has not been disturbed norrendered doubtful. 16.Much stress is laid that there is no alarm, there are no marks ofinjury and medical evidence is about old hymnal tear. There is noforce in such submission. Victim was handled and taken forcibly tothe house by two persons. Therefore, obviously there may not bedragging marks. When she was incapacitated by one accused holding CriAppeal-143-2004-14- her, while other raped her, there may not be injuries. Thereforeabsence of external injuries is insignificant. Likewise, even if medicalevidence suggests old hymnal tear or opinion is about habituated tosexual intercourse, still it is not open for accused persons to takedefence or cover to say that there was consent. Victim has reiteratedthe deeds of accused immediately after she regained consciousness.She has specifically named them for raping her. Therefore, the act isapparently forceful. PW4 uncle, who took her to the hospital, islending support to the testimony of prosecutrix. Victim hascategorically denied about marriage being fixed or she to be havinglove affair with accused. This itself shows that whatever act hashappened, was against her wish. If at all there was love affair withaccused Sandip, then why juvenile accused forced himself upon her isthe crucial question. Even a person who is keen in marrying a girlmay not permit other person to indulge in such act in his presence.Therefore, the defence so raised here is improbable and hence havingno substance. In the light of above material, offence claimed is provedto have been committed. Appellant is the first person to rape victim.Evidence of prosecutrix does inspire confidence and therefore bothoffences i.e. under Sections 376(G) and 506(1) of IPC are apparentlymade out and all ingredients necessary to attract the offence arepatently available. CriAppeal-143-2004-15- 17.Learned trial Judge has correctly appreciated the evidenceavailable on record keeping in view the settled law. No perversity orillegality is brought to notice in appeal so as to interfere. Hence, Iproceed to pass the following order:ORDERThe appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.]18.On pronouncement of this judgment, learned counsel for theappellant prays for six weeks time to surrender so as to enable him toapproach the Hon’ble Apex Court.19.Learned APP strongly opposes the same.20.Considering the above request made by learned counsel for theappellant, six weeks time is granted for the appellant to surrender. [ABHAY S. WAGHWASE, J.]vre