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2005 DIGILAW 1069 (BOM)

STATE OF MAHARASHTRA v. MAHENDRA PUNDLIK RAMTEKE

2005-08-19

J.N.PATEL, R.C.CHAVAN

body2005
Judgment R. C. CHAVAN, J. ( 1 ) TAKING exception to respondents acquittal of the offences punishable under sections 376, 354 and 342 of the Penal Code by the learned 2nd Additional Sessions Judge, Chandrapur, the State has appealed. ( 2 ) THE respondent came to be prosecuted on the allegation that on 2nd february, 1990, when a 14 years old girl came to his dispensary with some complaints, the respondent restrained her, outraged her modesty and committed rape upon her. She reported the matter to her mother whereafter she was taken to police Station. The police registered an offence and caused the victim to be medically examined. The clothes of the victim as well as the respondent were seized. The respondent was arrested and on completion of investigation, chargesheet was sent to the learned Chief Judicial Magistrate, Chandrapur. ( 3 ) THE learned Chief Judicial Magistrate committed the case to the Court of session on finding that the accused had committed an offence triable exclusively by the Court of Session. The learned 2nd Additional Sessions Judge to whom the case was made over, charged the respondent of the offences punishable under sections 342, 354 and 376 of the Penal Code. The respondent pleaded not guilty and hence was put on trial. In its attempt to bring home the guilt of the respondent/accused, the prosecution examined four witnesses and the accused examined his wife in defence. Upon consideration of the prosecution evidence in the light of the defence raised, the learned Additional Sessions Judge held that the offences are not proved and, therefore, proceeded to acquit the respondent. Aggrieved thereby, the State has filed this appeal. ( 4 ) WE have heard Shri A. G. Mujumdar, the learned Additional Public prosecutor for the appellant/state and have also considered the grounds raised in the memo of a appeal. We have also heard Shri A. R. Sambre, the learned advocate for the respondent/accused. The learned APP submitted that the version of prosecutrix Suchita ought to have been believed by the learned Trial judge, since it received circumstantial corroboration from the other evidence on record. He, therefore, urged that the appeal ought to be allowed and the respondent ought to be convicted of the offence of rape. The learned APP submitted that the version of prosecutrix Suchita ought to have been believed by the learned Trial judge, since it received circumstantial corroboration from the other evidence on record. He, therefore, urged that the appeal ought to be allowed and the respondent ought to be convicted of the offence of rape. ( 5 ) WE have carefully considered the contentions raised by the learned APP for the appellant/state and the arguments, to repel these contentions, advanced by the learned Advocate for the respondent/accused. It may be seen from the prosecution case that Suchita, the victim, was about 14 years old at the time of incident. The evidence of radiological examination has been rendered by the prosecution at Exhibit 26 and the certificate of birth is also filed at Exhibit 29. Thus, Suchita might have attained puberty when the incident occurred on 2nd february, 1990. Suchita states that she had some complaints like pain in hands and legs and, therefore, her mother asked her to visit Dr. Ramteke. It is interesting to note that even PW 2 Viju, the mother of the victim, states that her daughter complained only about the pain in her hands and back, but when suchita went to Dr. Ramteke, she claims to have told to the doctor that she had a white vaginal discharge. It is curious that Suchita did not feel like confiding with her mother about her gynaecological problem, but had blurt out the same to the accused after reaching the dispensary. ( 6 ) DR. Ramteke, the accused, admits having subjected Suchita to medical examination. He states that he had called his wife, asked her to bring a torch and then closed the door of the dispensary, since there are houses in front side. He claims to have taken the girl in lithotomy position and examined her vagina with the help of the torch. He states that since he could not see the condition properly, he asked his wife to switch off the light in the room and examined the victims vagina in the torch light. He observed tenderness and after examination, asked his wife to switch on the light. He states that since he had no instrument to examine her vagina, he conducted the examination using his fingers. He then prescribed necessary medicines, whereafter the victims mother came to the dispensary. He observed tenderness and after examination, asked his wife to switch on the light. He states that since he had no instrument to examine her vagina, he conducted the examination using his fingers. He then prescribed necessary medicines, whereafter the victims mother came to the dispensary. ( 7 ) PW 2 Viju, the mother of the victim, also admits in her cross- examination that when she went to the dispensary, the accused, his wife and her daughter were sitting in the dispensary. Thus, the presence of DW 1 Kalpana, the wife of the accused, is admitted by even PW 2 Viju, the mother of the victim. ( 8 ) THE accuseds claim that he had to close the door and switch off the light, will have to be examined in the background of the position of the spot - graphically depicted in the map at Exhibit 28. It seems that the dispensary is in one room abutting the bed room of the house of the accused. There is a lane on one side and entrance to the dispensary on the other. There is indeed a sofa set in the dispensary on which the examination was allegedly conducted. Considering the situation of the dispensary, the closure of door while examining the victim is not entirely unnatural. ( 9 ) PW 1 Suchita states that when she had narrated her complaints to the doctor, her brother Naradatta also came to the dispensary. It is indeed curious that if Naradatta had some problem and was required to consult the same doctor for treatment, he should have gone along with his sister. It is also curious that naradatta was not examined by the prosecution, though he had gone when possibly the victim was being allegedly ravished. ( 10 ) PW 1 Suchita states that the accused examined her and made her to sit on his thighs, took out his penis and put it in her vagina and kept it like that for about ten minutes. She states that the accused had made her to sit on his thighs with both her legs on one side. In the report at Exhibit 8, she had stated that the accused had inserted his fingers in her vagina, which caused some pain and burning sensation. He asked her to wait for some time as the act was on the verge of completion. In the report at Exhibit 8, she had stated that the accused had inserted his fingers in her vagina, which caused some pain and burning sensation. He asked her to wait for some time as the act was on the verge of completion. Thereafter he again separated her legs and made her to sit on his thighs and started inserting his penis. She claimed that she asked him to release her, but he asked her to wait for some time as the act was on the verge of completion. This too is really strange. The victim could have refused to sit on his penis and could have rushed out or raised cries, since, according to her, the house of the accused was adjacent to the dispensary. ( 11 ) THE truth of the story comes out in para 10 of the cross-examination of his witness, where she admitted that the accused made her to sit on his thighs and checked her, gave tablets and then she went out. This is all she had told to her mother PW 2 Viju, as may be seen from the examination-in-chief of PW 2 Viju. ( 12 ) PW 4 Dr. Varsha Betal had examined the victim on being referred by police. Her certificate is at Exhibit 12, which shows that there was no injury on inner side of thigh or vagina. No bleeding was seen. Hymen was irregularly torn. Vagina admitted one finger tightly with difficulty. Dr. Varsha Betal concluded that the victim was unfit for sexual intercourse. In view of this, the entire story about the accused inserting his penis in the victims vagina, appears doubtful. ( 13 ) THE other witness examined by the prosecution is PW 3 Dhanraj, who was at the relevant time working as PSI and was incharge of the investigation. He states having seized incriminating articles and sent them to the Forensic Science laboratory. The report from the Laboratory is at Exhibit 11. The learned APP emphatically drew our attention to the fact that the semen stains were found on the victims panty. But the blood group of semen could not be detected. No blood was detected on the panty. He states having seized incriminating articles and sent them to the Forensic Science laboratory. The report from the Laboratory is at Exhibit 11. The learned APP emphatically drew our attention to the fact that the semen stains were found on the victims panty. But the blood group of semen could not be detected. No blood was detected on the panty. The learned Advocate for the respondent/accused submitted that finding of semen stains on the panty of the victim is not required to be explained by the respondent/accused so long as it is not shown that the semen belonged to the respondent/accused. ( 14 ) PW 2 Viju had admitted that a report was given against one Vilas ramteke and not the accused. Though she stated that she did not know whether vilas Ramteke was arrested or not, PW 1 Suchita stated that Vilas Ramteke was arrested on the same day on her say and that of her mother and was detained throughout the night. The learned Advocate for the respondent/accused submitted that the case was filed because the respondent had rejected a proposal for marriage from the sister of one Advocate Rajendra Alone, who is the cousin of victim Suchita. The learned Advocate for the respondent/accused submitted that this was the reason for falsely implicating the respondent. ( 15 ) UPON consideration of the entire evidence in the light of the arguments advanced, we find that the possibility of semen stains being of someone else and not the respondent/accused, cannot be ruled out. The possibility of the respondent/accused being unnecessarily implicated is too stark, particularly in the light of the following facts : (1) a girl, who had just attained puberty, does not disclose to her mother her gynaecological problems; (2) she was sent alone to the dispensary of the young male doctor by her mother; (3) she immediately complained to the doctor about her vaginal discharge, rather than problems of her hands and backache, which she had narrated to her mother; (4) her brother naradatta, who is said to have come to the dispensary when the victim had narrated her problem to the doctor, was not examined; (5) PW 4 Dr. Varsha Betal finds the victim to be unfit for sexual intercourse and does not find any bleeding from the vagina and also finds that the vagina admits only one finger with difficulty ruling out insertion of penis; (6) the victim does not disclose to her mother that the accused had inserted his penis in the vagina and (7) one Vilas ramteke having been admittedly detained that night by police on complaint by suchita. If, according to the victim, she had made a complaint of gynaecological problem to the doctor, there will be no question of her modesty being outraged due to examination of private parts. There will be no question of any wrongful restraint or confinement, because the victim could have gone outside, or if forcibly restrained, raised cries to attract the attention of the persons nearby. Therefore, we find that the view taken by the learned Trial Judge is perfectly plausible and does not call for any interference from this Court. ( 16 ) CONSEQUENTLY, we dismiss the appeal and direct that the bail bonds, if any, furnished by the respondent/accused shall stand cancelled. Appeal dismissed.