High Court

Legal Reasoning

-1- Cri.Apeal.1078.2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 1078 OF 2023Aditya S/o. Anup Dhanve,Age : 35 years, Occu. : Service, R/o. Kagdives, Near Balbhim College, Beed.… Appellant. VersusThe State of Maharashtra … Respondent.…Mr. Rahul P. Mote, Advocate for AppellantMr. N. D. Batule, APP for Respondent – State...CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 10 APRIL, 2024PRONOUNCED ON : 16 APRIL, 2024JUDGMENT : 1.Original accused, who stood convicted by learnedAdditional Sessions Judge-2, Beed for offence punishable undersections 376 and 506 of Indian Penal Code (IPC) in Sessions CaseNo. 74 of 2019 by judgment and order dated 03.10.2023, is takingexception to the same by filing instant appeal. FACTS LEADING TO TRIAL ARE AS UNDER2.On report of prosecutrix dated 26.02.2019, City PoliceStation Beed registered Crime No.32 of 2019, wherein it wasreported that, after spending one year with husband, she had come -2- Cri.Apeal.1078.2023to stay with her parents. On 26.02.2019, when she went out tourinate, accused came from behind and forcibly dragged her andhad forcible sexual intercourse, and thereafter, issued threats tokill, if she reports the incident to anyone. On reaching home, shereported her parents and they all approached police. PW7 Babasaheb Dahiphale, who was entrusted withinvestigation, after gathering evidence, charge-sheeted accused. On trial, learned Additional Sessions Judge, Beedaccepted the case of prosecution as proved and handed down thejudgment of conviction. Resultantly, instant appeal. SUBMISSIONSOn behalf of Appellant :3.Criticizing the prosecution case as false and fabricated,it is submitted that, version of prosecutrix is patently unbelievable.That, there was no forceful act or without consent. Rather act wasconsensual one. In support of such contention, learned counseltook this court through the cross of PW2 victim. He pointed outthat, contents of FIR and statement given before learnedMagistrate are not consistent, thereby creating doubt on thecredibility of her testimony.4.He next submitted that, alleged occurrence has taken -3- Cri.Apeal.1078.2023place just near the house of prosecutrix, which is located in theresidential area. That, there was no alarm, resistance or shouts forhelp, even when parents are also in house. Resultantly, it is hissubmission that, it is impossible to commit rape on full-grownmarried lady. He further pointed out that though there areallegations of dragging, medical experts has not noticed any injuryor abrasion or dragging marks. Resultantly, he submits that, suchcircumstances belies the story of prosecution about forceful rape. 5.It is his next submission that, apparently neithermedical evidence nor forensic evidence supports the prosecution.That, as such there is no corroboration to the testimony of victimand it being doubtful, it is his submission that, case of prosecutionought not to have accepted. Thus, he prays to interfere by allowingthe appeal and by setting aside the impugned judgment. On behalf of Respondent – State :6.Supporting the conviction, learned APP pointed outthat, there is prompt reporting. That, alleged incident has takenplace in the night. Victim had immediately reported to her parentsand approached police in the morning and lodged report. That,there is no reason to disbelieve version of victim, who is marriedlady. That, there is no reason for false implication. Learned APP -4- Cri.Apeal.1078.2023pointed out that there is medical evidence suggesting three injuriesbeing caused on the person of victim within 12 hours, which arethus fresh. Therefore, version of prosecutrix having remainedunshaken in cross, learned trial court rightly convicted theaccused and thus he submits to dismiss the appeal for want ofmerits. GIST OF THE PROSECUTION EVIDENCE IN TRIAL COURT PW1 Subhash, pancha to spot panchanama deposedabout spot being shown by victim and panchanama (Exh.16) isdrawn in his presence. PW2 victim deposed about her marriage to be of 2016.That, since one year she had shifted with her parents. According toher, on 26.02.2019, around 1:00 a.m., she went outside the houseto urinate. While she was returning back, accused came from thegalli, pressed her mouth, dragged her in another galli, stripped herand against her wish had sexual intercourse. According to her,thereafter he issued threats to kill. She came back and reportedher parents and solely approached police and lodged report, whichshe identified to be at Exh.20. PW3 Deepak, pancha to seizure of clothes did notsupport prosecution. -5- Cri.Apeal.1078.2023 PW4 Father, stated that, after marriage his daughterstayed with her husband for a year and thereafter came to residewith him. He knew accused, who resides in third lane. According tohim, incident took place in last week of February 2019. He does notremember exact date. He was sleeping in the house, around 1:30a.m., his daughter approached him, woke him up and informedabout the occurrence regarding forcibly raped when she went forurination and solely approached police. PW5 Dr. Prakash Shivanikar, Medical Officer, whoexamined victim and issued opinion. PW6 Dr. Abhishek Jadhav, another doctor, whoexamined accused and issued certificate at Exh.48. PW7 ASI Dahiphale is the Investigating Officer. PW8 Mother, stated that, when her daughter afterleaving her husband had come to stay with them, that night, shehad been for urination, and after returning, she told about accusedforcibly raping her. PW9 PSI Jadhav, second Investigating Officer, whocharge-sheeted accused.7.Fundamental defence of appellant is of sexual act to be -6- Cri.Apeal.1078.2023not forceful, rather to be consensual one. Having taken suchdefence, evidence on record, more particularly, of victim andmedical evidence assumes significance. ANALYSIS8.On carefully studying the testimony of victim (PW2), itseems that, after leaving her husband she had come back to herparent’s home. On the night of 26.02.2019, she claims that, whenshe went to urinate and while she was returning back home,accused caught her, dragged her and raped, and thereafter, issuedthreats. She is categorical about informing her parents andthereafter approaching police. Report by her seems to be at around6:00 a.m.. Therefore, considering the time of occurrence, FIR ispromptly lodged. 9.Case put-forth by learned counsel for appellant is that,contents of FIR and statement under section 164 of Cr.P.C. are atvariance. It is pointed out that, there is reference of “gumja”(lengthy handkerchief) for gagging, whereas in her substantiveevidence she has not described about the said cloth. Secondly, inFIR it is not reported that accused was drunk. Therefore, for suchreason, her testimony is unworthy of credence. It is also tried to besubmitted that, in statement under section 164 of Cr.P.C., sheadmits about marriage proposal by accused. That, there are clear -7- Cri.Apeal.1078.2023suggestions about affair, though denied. But, it is submitted that,such defence shows that, act was consensual and not forceful andmoreover, victim was twice married earlier.10.On comparing FIR, statement under section 164 ofCr.P.C. and substantive evidence, it does seem that aspect of use ofhandkerchief is not stated in FIR or in substantive evidence. Shehas merely deposed about her mouth being pressed. However, it isto be borne in mind that, she is a victim of sexual assault andtherefore, she might not have deposed about use of such article.Anyway not mentioning about such article is not crucial as what iscrucial is act of rape. That part has not been dislodged and she hasstood steadfast on that point. In fact, there is no serious cross onthe aspect of catching hold and dragging. Similarly, failure todepose about two earlier marriages and merely stating onemarriage itself would not be sufficient to disbelieve her entireversion. She has flatly denied all suggestions about previousacquaintance, previous relations, previous meetings and insistenceat her end to marry and therefore false implication. In fact, thereis nothing in the cross to doubt her version about she going forurination shortly after midnight and she being taken forcibly andraped by issuing threats. -8- Cri.Apeal.1078.202311.Second attack about no dragging marks in medicalexamination or no marks of forceful sexual intercourse, also has noforce. Doctor has narrated the nature and size of injuries notedduring prompt examination done on 26.02.2019 itself. Injuries arereported to be within 12 hours. Therefore, there are injuriessuggesting occurrence. Obviously, she being previously married,there may not be injuries to the private parts. Law is fairly settledthat absence of injuries is no good ground to rule out frame.Further, law is also fairly settled that, evidence of prosecutrix ifinspires confidence, even in absence of corroboration or injuries,her case can be accepted. The moment victim of rape allegesforceful rape, the element of consent gets eclipsed. Here, as statedabove, there is prompt lodgment of complaint followed byregistration of crime. Parents to whom there was immediatedisclosure have also testified about hearing from their daughter onthe same night regarding act of accused and they took her to thepolice. Consequently, here, there is both prompt lodgment of FIRand medical evidence is apparently lending support to the victim’sversion. 12.Perused the judgment under challenge. Learned trialcourt has tested and appreciated the evidence in the light of legalrequirements. The view taken is apparently just and proper. No -9- Cri.Apeal.1078.2023perversity or infirmity is brought to the notice in such appreciationso as to interfere or overturn the findings. No case being made outand there being no merit in the appeal, I proceed to pass thefollowing order :- ORDERThe criminal appeal stands dismissed. (ABHAY S. WAGHWASE, J.) Tandale