State of Maharashtra v. Subhash s/o. Haribhau Bagale
2008-02-05
A.B.CHAUDHARI, A.P.LAVANDE
body2008
DigiLaw.ai
A. P. LA VANDE, J.:- By this appeal, the appellant takes exception to the judgment and order dated 19/6/1996 passed by the Additional Sessions Judge. Achalpur in Sessions Trial No.7611991 acquitting the respondent of offence punishable under Section 376 of the Indian Penal Code. 2. Briefly, the case of prosecution is as under: In 1989 the prosecutrix was residing at village Kurankhed along with her mother Rajusabai (PW-2), sister Pramila and brother. The accused was residing in the house just opposite the house of the prosecutrix. On 14.4.1989 there was holiday in view of “Dr. Babasaheb Ambedkar Jayanti” and, therefore, the prosecutrix did not go to the school and she was at home. Her mother along with another daughter had gone out since the plots were being disbursed to the people in the locality on that day. There was nobody at home except the prosecutrix. Some time between 11.30 a.m. and 12.00. a.m. the accused came to the house of the prosecutrix and inquired whether her brother was in the house or not, to which the prosecutrix replied that he was not at home. Thereafter the accused demanded a glass of water and the prosecutrix brought a glass of water for the accused. The accused, all of a sudden caught her hands, dragged her inside the house, removed her nicker and committed rape after pressing her mouth. At the relevant time the prosecutrix was 11 years old. When the prosecutrix was being raped, her mother Rajusabai came back to the house and saw the accused committing rape on the prosecutrix. She called Naresh Kakad (PW 4) who was passing from the road at that time. Thereafter she made hue and cry on account of which the accused left the spot. Naresh noticed that the accused with towel on his person leaving the house. In the mean time, maternal uncle of the prosecutrix came to the house. Rajusabai went to the Police Patil Kishor Deshmukh (PW 3) who came to her house. Thereafter the prosecutrix, her maternal uncle and Rajusabai went to the Chandur Bazar Police Station and lodged oral report (Ex.ll) at 4.15 p. m. Thereafter investigation was taken up. The spot panchanama (Ex.24) was conducted and nicker and soil mixed with semen stains from the spot were seized under panchanama (Ex.34). The prosecutrix was referred for medical examination and she was examined by Dr. Anjali (PW 9).
The spot panchanama (Ex.24) was conducted and nicker and soil mixed with semen stains from the spot were seized under panchanama (Ex.34). The prosecutrix was referred for medical examination and she was examined by Dr. Anjali (PW 9). The accused was arrested and. he was also referred for medical examination. The articles seized were sent for analysis. After completion of the investigation charge-sheet was filed against the accused for offence punishable under Section 376 of the Indian Penal Code. The case was committed to the Sessions Court. In Sessions Case No.76/91 charge under Section 376 of the Indian Penal Code was framed against the accused who claimed to be tried. The prosecution examined 11 witnesses and produced several documents. The defence of the accused was of total denial. In addition, it was his defence that the prosecutrix had love affair with her cousin brother Sanjay and since the accused had seen both of them in compromising position, he was falsely implicated in the crime. The Trial Court, upon appreciation of the evidence led by the prosecution, held that the prosecution was not able to prove beyond reasonable doubt the offence of rape against the accused. The Trial Court refused to place reliance upon the testimonies of prosecutrix, her mother and Naresh who claimed that he had seen the accused leaving the house of prosecutrix with towel on his person. 3. We have heard Mr. Mirza, learned A. P. P. for the appellant and Mr. Rawlani, learned counsel for the respondent and perused the records. 4. Mr. Mirza, learned A.P.P. for the appellant submitted that the reasons given by the Trial Court for disbelieving the versions given by prosecutrix Daxita (PW 1), Rajusabai (PW 2) and Naresh (PW 4) are untenable in law since their evidence is natural and, therefore, inspires confidence. According to Mr. Mirza, the evidence of these three witnesses is substantially corroborated by medical evidence. He further submitted that the findings recorded by the Trial Court for acquitting the respondent are perverse and, therefore, interference is warranted in this appeal against acquittal. 5. Per contra. Mr. Rawlani, learned counsel for the respondent supported the impugned judgment and order and submitted that the reasons given by the Trial Court for not accepting the testimonies of above referred three witnesses are sound and no fault can be found with the findings given by the Trial Court.
5. Per contra. Mr. Rawlani, learned counsel for the respondent supported the impugned judgment and order and submitted that the reasons given by the Trial Court for not accepting the testimonies of above referred three witnesses are sound and no fault can be found with the findings given by the Trial Court. The learned counsel further submitted that the findings given by the Trial Court cannot be said to be perverse and the view taken by the Trial Court is possible view and, therefore, no interference is called for with the order of acquittal passed by the Trial Court. In support of his submissions, learned counsel relied upon the judgment of this Court in State of Maharashtra Vs. Rameshwar Sridhar Jaware and another. 6. No doubt, the prosecutrix (PW 1) and her mother Rajusabai (PW 2) have deposed in consonance with the prosecution case as set out in the charge-sheet. The Trial Court has refused to place implicit reliance upon the testimony of the prosecutrix on the following grounds: (i) The house of the accused is opposite the house of prosecutrix just separated by 10 feet road and admittedly not only two families were not in visiting terms because there were strained relations between them; (ii) The version of the prosecutrix that the accused demanded glass of water and after the same was offered, he dragged her inside the house is improbable since the spot panchanama does not disclose presence of any water or any glass; (iii) The evidence of prosecutrix does not disclose that she made any hue and cry since there is no evidence that anybody heard any hue and cry of the prosecutrix; (iv) The version of the prosecutrix that the accused removed her nicker after pressing her mouth is improbable, more particularly, in the absence of any resistance from the prosecutrix; (v) The medical examination does not establish the injuries on the body of the person except abrasions on the chest which according to the prosecutrix herself were not caused by the accused; (vi) C.A. report does not establish the presence of semen on the spot or on the clothes of the prosecutrix; and (vii) No spermatozoa were detected in vaginal swab of the prosecutrix. 7.
7. The Trial Court also refused to place reliance on the testimony of Rajusabai (PW 2) on the ground that her conduct in not catching the accused is unnatural and her presence on the spot was doubtful since she claims to have returned at about 12.30 p.m. The Trial Court also did not place reliance on the testimony of PW 4 Naresh since his conduct was not natural. 8. Upon re-appreciation of entire evidence led by the prosecution, we are unable to hold that the prosecution has been able to prove offence punishable under Section 376 of the Indian Penal Code beyond reasonable doubt against the accused. The reasons given by the Trial Court which have been enumerated above for not placing implicit reliance upon the testimony of the prosecutrix cannot be said to be untenable in law. The version of the prosecutrix that the accused committed sexual intercourse with her is not corroborated by medical evidence. The evidence of Dr. Anjali (PW 9) who examined the prosecutrix at 7.15 p. m. on the same day, discloses that she found old torn of hymen but she did not find any fresh injury on the private part. Thus the evidence of the prosecutrix is falsified by the Medical evidence Moreover as stated above, no semen was found in the earth mixed which the prosecution claims to have sent for chemical analysis. Thus, the version given by the prosecutrix is not only unnatural but also does not find corroboration from medical evidence or C.A. report. 9. Insofar as the evidence of Rajusabai (PW 2) is concerned, we have serious doubt about her version that she was an eyewitness to the incident of rape. Since the version of prosecutrix herself about the rape is difficult to be accepted naturally, the version of Rajusabai that she witnessed the incident is difficult to be accepted. It is pertinent to note that Rajusabai herself claims that she returned from the place where she had gone for allotment of plot at about 12.30 p. m. Having regard to the time mentioned by Rajusabai, we find it difficult to accept that she witnessed any incident which she claims to have seen. The finding given by the Trial Court that the conduct of Rajusabai in not catching the accused was unnatural is not sound.
The finding given by the Trial Court that the conduct of Rajusabai in not catching the accused was unnatural is not sound. But the fact remains that it is difficult to accept her testimony once the version of prosecutrix herself is not accepted about the incident of rape. For the same reason, the evidence of Naresh (PW 4) who claims to have come after being called by Rajusabai also does not inspire confidence. 10. Insofar as medical examination of the accused is concerned, the same also does not advance the case of the prosecution. Dr. Arvind Kulkarni (PW 8) who had examined the accused on 15.4.1989 at 5.30 p.m., establishes that there was absence of smegma. This part of the evidence does not advance the prosecution case inasmuch as the accused was examined after 24 hours of the alleged rape committed by him and as such his examination for the presence of smegma loses importance. Moreover, the prosecution evidence also establishes that no spermatozoa were detected in the vaginal swab, which was collected after the prosecutrix was medically examined by the doctor. 11. Thus, upon re-appreciation of the prosecution evidence, we are of the considered opinion that no case has been made out by the prosecution for interference with the impugned judgment and order of acquittal. It is well settled that unless there are compelling and substantial reasons, the Appellate Court should not interfere with an order of acquittal although the Appellate Court is entitled to re-appreciate entire evidence led during the trial. In State of M.P. Vs. Sanjay Rai, (2004)10 SCC 570 : [2004 ALL MR (Cri) 1500 (S.C.)], the Apex Court has reiterated the principle that only for compelling and substantial reasons and to prevent miscarriage of justice, an Appellate Court can interfere with an order of acquittal and that in case two views are possible on evidence adduced, one as to guilt and other as to innocence, that view which is favourable to the accused is to be accepted. Having regard to these principle we find that the view taken by the Trial Court is possible view and therefore we are not inclined to interfere with the order of acquittal. 12. For the reasons stated above, the appeal stands dismissed. Bail Bond executed by the respondent stands discharged. Appeal dismissed.