JUDGMENT 1. Challenge in this appeal is to judgement rendered by learned 4th Additional Adhoc Sessions Judge, in Sessions Case No.187/2005, whereby appellant has been convicted for offence punishable U/s 376(1) of the I.P.C. and sentenced to suffer rigorous imprisonment for 10 (ten) years and to pay fine of Rs.10,000/- (Rupees ten thousand), in default to suffer rigorous imprisonment for 6 (six) months. Out of the amount of fine, if recovered, Rs.8,000/- are directed to be paid to the prosecutrix by way of compensation U/s 357(1) of the Cr.P.C. 2. The prosecution case, stated briefly, is that the prosecutrix is handicapped girl, aged about 18/19 years. She was residing with her father and brothers in a small house situated at village Pimprala, Tahsil Muktainagar. Her father used to remain out for his work through out the day. Her younger brother is a School going boy. Her both the lower extremities are impaired due to Polio. She cannot stand up and is required to crawl. She is mentally impaired due to the cerebral Palsy. Some 2/4 days prior to festival of Deepawali in 2004, the appellant entered her house while she was alone. He got closed the door from inside. She attempted to cry for help but was silenced by the appellant under threat to cause her death. He ravished her in that evening. He left the house without being noticed by the others. She was dumbstruck due to the sudden incident of rape. She, however, got mopped stains of blood from earthen flooring and controlled herself. She did not inform anything to her father due to fear of his angry reaction. The appellant thereafter, continued to visit her house on some occasions as and when she was alone at the house, and committed forcible sexual intercourse with her on 3/4 occasions. The appellant, in his such last attempt, entered her house in or about the noon of 20/22.7.2005, and repeated the act of sexual intercourse. He told her not to cry and create scene. He told her that she was not suffering at that time and hence, should keep quiet. He left the house by about 5 p.m. The prosecutrix narrated the incident, thereafter, to neighbours - Shobhabai and Rakhamabai. The said women disclosed about such acts of the appellant to her father. Thereafter, her father and brother took her to Muktainagar Police Station. He told her that she was not suffering at that time and hence, should keep quiet. He left the house by about 5 p.m. The prosecutrix narrated the incident, thereafter, to neighbours - Shobhabai and Rakhamabai. The said women disclosed about such acts of the appellant to her father. Thereafter, her father and brother took her to Muktainagar Police Station. The Police recorded her statement as F.I.R. She was referred for clinical examination. After certain investigation, the appellant was charge-sheeted for commission of offence punishable U/s 376(1) of the I.P.C. and U/s 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The appellant pleaded not guilty to the charge (Exh.2). His defence was one of simple denial. He asserted that he has been framed in a false case. 4. At trial, the prosecution examined 9 (nine) witnesses in support of its case. The prosecution also relied upon various documents, including the medical certifiate and F.I.R. 5. The learned Sessions Judge accepted case of the prosecution on the basis of the testimony of the prosecutrix. The learned Sessions Judge held that the appellant took disadvantage of the fact that the prosecutrix is crippled and used to remain lonely in the house. The learned Sessions Judge came to the conclusion that though, previously the prosecutrix maintained silence regarding her ravishment, yet, it was under spell of fear of angry reaction of her father. The learned Sessions Judge came to the conclusion that offence punishable U/s 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not proved against the appellant. However, it was held that the offence punishable U/s 376(1) of the I.P.C. is duly proved and, therefore, he came to be convicted and sentenced as stated before. 6. Mr.Chatterji, would submit that the prosecutrix may be physically crippled, yet, she was not mentally unfit to tolerate the alleged ravishment for number of times. He would submit that the prosecutrix did not disclose the incident of the sexual intercourse committed by the appellant because for long period the fact could not be noticed by the neighbours. He would further submit that having regard to the tenor of the language used in the F.I.R. (Exh.10), the prosecutrix could not be said to be a gullible girl. He would further submit that having regard to the tenor of the language used in the F.I.R. (Exh.10), the prosecutrix could not be said to be a gullible girl. She was accustomed to sexual intercourse and the terms used for the sexual organs in colloquial language. It is argued that the prosecution story is uncredit-worthy and liable to be discarded due to inherent improbability appearing from the allegations made by prosecutrix and the other witnesses. Mr.Chatterji would, therefore, urge to allow the appeal. As against this, learned A.P.P. Mr.Ghute Patil, supports the impugned judgment. 7. Before I embark upon scrutiny of the prosecution evidence, let it be noted that the prosecutrix hails from poor family. She has two brothers. Her elder brother by name Sunil was married few months before the alleged incident of last rape committed on her. Her married brother Sunil and his wife resided in the same house for about 2/3 months. Her two sisters are married. Thus, when the F.I.R. was lodged, the prosecutrix alone used to remain in the house during the relevant period between month of June and July 2005. Her younger brother is a school going boy. 8. In the above background, evidence of the prosecution may be scrutinised. First, I shall consider the medical evidence. The version of P.W.6 Dr.Girish reveals that he clinically examined the prosecutrix on 22.7.2005 at Rural Hospital, Muktainagar. He noticed that she was handicapped and suffering from post polio paralysis of both the lower limbs. Her secondary sexual characters were well developed. There was no injury on her person. The internal examination revealed that the hymen was torn and indicated old tears, destroyed completely and represented by several tissues. The vagina admitted two fingers without difficulty. As per opinion of P.W. Dr.Girish, the prosecutrix was accustomed to intercourse. He issued medical certificate (Exh.26) in accordance with his observations. His version reveals that both hands of the prosecutrix were normal and sufficient to resist the act of rape. He had put some questions to the prosecutrix to verify her mental condition. He did not express any opinion as regards her mental disability. His opinion to the queries would show that the opinion of Psychiatrist was required to verify whether the prosecutrix was mentally retarded. He had put some questions to the prosecutrix to verify her mental condition. He did not express any opinion as regards her mental disability. His opinion to the queries would show that the opinion of Psychiatrist was required to verify whether the prosecutrix was mentally retarded. The letter (Exh.26) issued by P.W. Dr.Girish reveals that the prosecutrix was habituated to sexual intercourse and there was no mark of violence on her person. 9. The prosecution examined P.W.3 Shobhabai and P.W.4 Rakhamabai, in order to prove the fact that the prosecutrix disclosed to them about forcible sexual intercourse committed by the appellant in the relevant evening. They are residing in the neighbourhood of the prosecutrix. The testimony of P.W.Shobhabai reveals that she has no knowledge about the incident. She states that the prosecutrix told her in the evening that the appellant outraged her modesty. She was declared hostile and was subjected to cross-examination. She admits that the prosecutrix is handicapped and is unable to stand. She states that the prosecutrix is unable to speak fluently and is mentally retarded. She also admits that on the day of incident, when she returned home after finishing the day’s work in the field, she and other women including P.W. Rakhamabai were talking to each other. She states that on a Monday, the prosecutrix told her that the appellant had committed rape on her at about 5 p.m. However, she was unable to disclose which of the Monday out of 4/5 instances was the day on which such disclosure was made by the prosecutrix. Her version reveals that she told the prosecutrix to inform the incident to her father. She admits that prosecutrix never informed her about the incident and she herself did not disclose anything to father of the prosecutrix. Thus, it may be gathered that P.W. Shobhabai is not a reliable witness. Similarly, P.W. Rakhamabai only states that the prosecutrix told her that the appellant had caught her from back side and attempted to outrage her modesty. She admits that as per her information the prosecutrix committed the act of sexual intercourse with the appellant for four times. She also admits that she narrated the incident disclosed by the prosecutrix to her father i.e. P.W. Rajaram. According to her, on 3rd day of disclosure made by the prosecutrix about the incident, she narrated said fact to her father. She also admits that she narrated the incident disclosed by the prosecutrix to her father i.e. P.W. Rajaram. According to her, on 3rd day of disclosure made by the prosecutrix about the incident, she narrated said fact to her father. For those three days, she did not disclose the fact to anyone else. She admits, unequivocally, that the prosecutrix used to visit her house since childhood and she had good relations with P.W. Rajaram. She further admits that she was previously engaged in liquor business. She further admits that P.W. Rajaram, who is father of the prosecutrix, was also engaged in the liquor business. Needless to say, the witnesses have relationship from illicit trade of preparing/selling contraband liquor. 10. The testimony of P.W. Rakhmabai goes to show that about three (3) days after the last incident of alleged rape, disclosure was made to P.W. Rajaram. The delay in filing of the report is rather unexplained. The version of P.W.1 M (prosecutrix) reveals that somewhere in the week prior to Deepawali festival of 2004, the appellant ravished her. Her version purports to show that on 4/5 occasions, the appellant visited her house and repeated the act of sexual intercourse by use of force. The alleged act of rape was thus, repeated between November 2004 till last week of July 2005. It is alleged that in the period between November 2004 till July 2005, the appellant entered house of the prosecutrix at least on 4/5 occasions and committed sexual intercourse with her by use of force. 11. True, the prosecutrix is crippled and cannot stand up. However, her version reveals that she was engaged in cleaning the house and used to attend the regular domestic chores. The medical evidence also shows that her hands are not affected by attack of Polio and she could have resisted the appellant by using both the hands. The prosecutrix states that though she resisted, yet, he threatened to cause her death and, therefore, she did not make any attempt to further resist. She then disclosed the incident of rape to P.W. Shobhabai and P.W. Rakhamabai who narrated the same to her father. As stated before, the latters did not immediately disclose the fact of ravishment of the prosecutrix to P.W. Rajaram. The prosecutrix corroborates recitals of the F.I.R. (Exh.10). The recitals of the F.I.R. would show that crude language is used. She then disclosed the incident of rape to P.W. Shobhabai and P.W. Rakhamabai who narrated the same to her father. As stated before, the latters did not immediately disclose the fact of ravishment of the prosecutrix to P.W. Rajaram. The prosecutrix corroborates recitals of the F.I.R. (Exh.10). The recitals of the F.I.R. would show that crude language is used. The lewdity in describing the act of sexual intercourse would indicate that the prosecutrix was conversant with the said act. 12. The prosecutrix admits that between December 2004 till 18.7.2005, the appellant, as she reported to the Police, repeated the act of sexual intercourse on 4/5 times. The appellant belongs to Koli community whereas, the prosecutrix is member of Mahar community. She admits that there used to be frequent quarrels between members of Koli community and Mahar community. The version of the prosecutrix reveals that houses of P.W. Rakhamabai and one Alkabai are situated opposite to her house. Her house is within the locality and is surrounded by houses of other neighbours. She further admits that her brother Sunil and his wife resided with her family members for 2/3 months. According to her, they were residing with the family when for the first time she was ravished by the appellant in the month of November 2004. However, she did not disclose the said incident to the wife of her brother or to her elder brother. Assuming that she was scared of her father, there was no reason for her to withhold the information from her elder brother or at least from his wife. Instead of neighbours, she could have confided in to the family members of own family. However, she maintained long drawn silence since last week of December 2004 till last week of July 2005. The acts of sexual intercourse were being repeated occasionally yet, she was not willing to disclose the same to her father. This conduct of the prosecutrix is rather strange and would speak volumes. 13. Coming to the version of P.W.5 Rajaram, it may be gathered that he learnt from the neighbouring women that the prosecutrix was subjected to rape. He enquired with the prosecutrix and verified the fact from her. Thereafter, he took her to Police Station at Kurha. As stated before, P.W.Shobhabai does not subscribe to the prosecution case regarding her disclosure about the incident to P.W. Rajaram. He enquired with the prosecutrix and verified the fact from her. Thereafter, he took her to Police Station at Kurha. As stated before, P.W.Shobhabai does not subscribe to the prosecution case regarding her disclosure about the incident to P.W. Rajaram. The version of P.W. Rajaram reveals that the F.I.R. was lodged as per say of the prosecutrix. Thus, the prosecutrix was capable to narrating the entire episode. His version shows that P.W. Shobhabai and others disclosed the incident to him, and thereafter he and the prosecutrix lodged the F.I.R. 5/6 days later. There is no reason as to why for 5/6 days P.W. Rajaram kept silence over the incident which could disturb any father of a young girl. His version reveals that he did not state before the Police that the prosecutrix had not disclosed to him about the incident due to fear of his beating her. His version further reveals that marriage of his son Sunil was performed on 28.4.2005. Said Sunil used to reside with him alongwith his wife for some period. As stated before, the prosecutrix could have disclosed about the forcible sexual intercourse committed by the appellant to her elder brother Sunil or at least to his wife during the said period. That was not done. The remaining evidence of the prosecution comprises of steps taken during course of the investigation by P.W.9 S.D.P.O. Mohd.Nisar. It is not necessary to elaborately discuss the other evidence. 14. It is well settled that conviction can be founded on uncorroborated testimony of the prosecutrix subject to condition that her version is found reliable and worth credence. It is manifest from the sequence of events that for a long period of more than six (6) months, the prosecutrix maintained silence as regards the so-called forcible sexual intercourse committed by the appellant with her. It cannot be said that she did not understand import of her silence. She did not resist the appellant. The entry of the appellant in her house, which is surrounded by other houses, could not be clandestine for all 4/5 occasions. That apart, even when the last incident was reported to P.W. Rajaram then also for 5/6 days nothing was done. It cannot be overlooked that P.W. Rajaram and P.W. Rakhamabai were in the common business as bootleggers. The entry of the appellant in her house, which is surrounded by other houses, could not be clandestine for all 4/5 occasions. That apart, even when the last incident was reported to P.W. Rajaram then also for 5/6 days nothing was done. It cannot be overlooked that P.W. Rajaram and P.W. Rakhamabai were in the common business as bootleggers. Obviously, normally it was difficult for a stranger to regularly visit his house and commit sexual intercourse with the prosecutrix without being noticed by the neighbours and without entertaining fear of being caught. 15. At the first blush, it may appear that the appellant exploited the fact that the prosecutrix used to remain alone in the house and was crippled. The analysis of the circumstances and the testimony of the prosecutrix, however, go to show that she did not resist the appellant and meekly surrendered to his sexual advances because she was probably a consenting party. It does not stand to reason that she was mentally retarded and unable to understand what he was doing with her. The evidence on record seems to have been appreciated by the learned Adhoc Sessions Judge, probably on emotional level than taking a pragmatic view on the basis of attending circumstances. Considering the foregoing reasons, I find it difficult to place implicit reliance on the testimony of the prosecutrix. In any case, the appellant deserves benefit of reasonable doubt which emerges from the attending circumstances and undue delay caused in filing of the F.I.R. as well as of the long drawn silence of the prosecutrix and other witnesses for more than six (6) months. 16. For the reasons aforesaid, the impugned judgment rendered by learned 4th Adhoc Addl.Sessions Judge, Jalgaon, is unsustainable. Hence, the appeal is allowed. The impugned judgment is set aside. The appellant (Omkara S/o Ramchandra Zalte) is acquitted for the offence punishable U/s 376(1) of the I.P.C. He shall be released from Jail if not required in any other matter. The fine amount if paid be refunded him.