Bombay HC acquits a MAN in IPC 397 and 451 after the completion of the sentence imposed by Trail Court.
“Though, in the ordinary circumstances, a woman is not
likely to make a false allegation of rape, when she is caught or is
suspected of having had sexual intercourse with someone outside the
wedlock, she is quite likely to try to protect her character, by claiming that what was done, was without her consent. Such a possibility is quite clear in the facts and circumstances of the present case, where the story of the victim when judged by the ordinary yardstick, appears to be quite improbable.”………..Justice Thipsay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1041 OF 2005
YOGESH JANARDHAN SHINDE )
Aged 25 years, Indian Inhabitant, residing at )
Hanuman Nagar, Ulhasnagar No.1. )
Accused is presently lodged in Nasik Road Jail. )…APPELLANT
THE STATE OF MAHARASHTRA )
(Through P.S.O. Ulhasnagar Police Station )…RESPONDENT
None for the Appellant.
Ms.R.M.Gadhvi APP for the State.
DATE : 11th APRIL, 2012.
ORAL JUDGMENT :
The appellant was prosecuted on the allegations of having
committed offences punishable under Sections 450, 376 and 506 of
Indian Penal Code (IPC). The Learned 1st Adhoc Additional Sessions
Judge, Kalyan, who tried him, found him guilty of offences punishable
under Sections 451 and 376 of IPC. The Learned 1st Adhoc Additional
Sessions Judge, sentenced the appellant to undergo Rigorous
Imprisonment for six months and to pay a fine of Rs.500/, with respect to the offence punishable under Section 451 of the IPC and to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.2,000/, with respect to the offence punishable under Section 376 of IPC. There was another accused who was also prosecuted in the said case along with the appellant, but the Learned 1st Adhoc Additional Sessions Judge, found him not guilty and acquitted him. The appellant, being aggrieved by his conviction and the sentences imposed on him, has approached this court by filing the present appeal.
2 When the appeal came up for hearing, it was revealed that
the appellant was released from prison after having served the
sentences imposed upon him. Nevertheless, the appeal having been
admitted, was required to be decided on merits.
3 When the appeal appeared on board for hearing on 2.4.2012, nobody appeared for the appellant. On 9.4.2012, to which date the matter was adjourned, also, nobody appeared for the appellant. The matter was then kept on 10.4.2012, when also, nobody appeared and then ultimately, when it appeared on board today, though nobody appeared for the appellant, it was decided to dispose of the appeal, after hearing Smt.R.M.Gadhvi, the learned APP for the Sate.
4 With the assistance of the learned APP, I have gone through
the entire evidence adduced during trial and perused the record of the case. I have gone through the impugned judgment and order.
5 The prosecution case, as was put forth before the trial
court, was in brief as follows :
The victim (name not mentioned to avoid disclosure of
identity) is a married woman. She used to reside at Ulhas Nagar with
her husband, in front of the house of one Smt.Rambhadevi (PW1).
The appellant and the other accused were also residing in the same
locality and near the room, where the victim was residing with her
That on 2.6.1999, in the night, the victim was sleeping in
her room. Her husband was also sleeping in the room. That at about
2.00 a.m., the appellant entered in her room. He caught the victim and
pressed her mouth. Thereafter, the appellant and the original accused
no.2 Raju, lifted her and took her out of the house. The victim was
taken to the back side of her house, where she was raped by the
appellant. The victim started weeping and returned to her room, after
the act was over. The appellant and the other accused had already run
away towards their respective houses. The victim informed whatever
had happened to her husband. It is thereafter, that the matter was
reported to the police, in the morning. The statement of the victim was
treated as First Information Report (FIR) (Exhibit 45), on the basis of
which investigation commenced. The appellant and the other accused
came to be arrested and prosecuted as aforesaid.
6 The prosecution examined seven witnesses during the trial.
The first witness is Smt.Rambhadevi, neighbour of the appellant as well
as the victim. The second witness is the victim herself. The third
witness Satish Chandra is a panch, in respect of the arrest panchnama
(Exhibit 47), but he did not support the case of the prosecution and
was declared hostile. His evidence is of no assistance to the
prosecution. The fourth witness, Dr.Sunita, is the one who had
examined the victim on 2.6.1999. The fifth witness Shaligram
Sonawane is a panch in respect of the panchnama (Exhibit 55), which
relates to the recovery of a knife (Article 12), pursuant to the
information disclosed by the appellant. The sixth witness witness
Dr.Rajan Pore is the Medical Officer, who had examined the appellant
on 2.6.1999. The seventh witness Mallikarjun Hajare, Sub Inspector of
Police, attached to Ulhas Nagar Police Station at the material time, is
the Investigating Officer.
7 It is clear that the case of the prosecution basically rests on
the testimony of the victim. Her husband, though a witness, was not
examined, during the trial.
8 Before considering the testimony of the victim, the other
evidence adduced against the appellant, may be discussed in brief :
Smt.Rambhadevi (PW1) was expected to say that she had
seen the appellant having a knife and entering in the house of the
victim, with the other accused present outside the house. She was also
expected to say that the appellant had taken the victim out of her
house. However, Smt.Rambhadevi did n ot support the case of the
prosecution. She was declared hostile and the APP’s efforts, to secure
some evidence in favour of the prosecution from her by putting leading
questions to her, have not been successful.
9 The evidence of Dr.Sunita (PW4) shows that an abrasion
(scratch) on ‘right iliac crest’ measuring 3 cm. x 2 cm. was found on the
body of the victim. No other injuries on her body were noticed. This
witness was unable to give an opinion that the victim had been
subjected to any forcible sexual intercourse.
10 The evidence of Shaligram Sonawane (PW5) shows that on
6.6.1999, he had been to Ulhas Nagar Police Station, for his own work,
when ‘Hazare Saheb’ (PW7) called him and showed him two persons,
one of whom was the appellant and asked him, whether they were
from his Ward. This witness claimed that he knew the appellant. He
then states that there were some writings made at the Police station
and that the appellant disclosed certain information to P.S.I. Hazare,
pursuant to which, the police and the panchas were led to the house of
the appellant, from where a knife was recovered. In the cross
examination, he admitted that he had no talk with the appellant at that
time, in the police station. He also admitted that the appellant did not
talk anything to any Police Officer or policeman. He also admitted that
the Memorandum Panchnama (Exhibit 54) had already been written,
when he went to the Police station. He also admitted that he did not
go with the appellant on the back side of his house, from where the
knife was supposedly recovered.
11 In his evidence, Dr.Rajan (PW6) said that on examination
of the appellant, he did not find any external injuries on his body. He
found the appellant capable of performing sexual intercourse.
12 The evidence of P.S.I. Hazare (PW7) speaks about all steps
taken by him during investigation. It shows that the appellant was
arrested on 2.6.1999 itself. P.S.I. Hazare also states about seizure of
certain incriminating articles and of sending them to the Director of
Forensic Science Laboratory, Mumbai, for analysis and opinion. He
speaks about the seizure of the knife on 6.6.1999.
13 Thus, the evidence makes he following clear. First, that
except a scratch, the victim had not sustained any injuries, whatsoever.
Secondly, even the appellant had not sustained any injuries,
14 The evidence of the victim/prosecutrix may now be examined.
According to the prosecutrix, the appellant had entered inside her room
at 2.00 a.m., when her husband was also sleeping in the said room;
and that, the appellant had caught her, pressed her mouth, lifted her
with the help of the other accused and had taken her out of the room.
Then, she was taken to the backside of her house, where she was
raped. In her evidence, she did not make any mention about the
appellant having a knife with him, or having threatened her by using a
knife. From this, the recovery of the knife, allegedly at the instance of
the appellant, is rendered meaningless. It may, however, be observed,
that even otherwise the evidence in that regard, cannot be considered
15 In the cross examination, it was brought on record that
certain matters spoken about her in her evidence, had not been
mentioned by her in the FIR (Exhibit 45). However, it is unnecessary to
discuss those aspects. What needs to be discussed is the probability of
the version of the victim/prosecutrix being true and in that context,
certain admissions elicited from her in the cross examination, need to
be kept in mind.
16 The victim admitted in the cross examination that at the
material time, she and her husband had slept on a ‘khat’ in the house.
Though she denied the suggestion, that her evidence that the appellant
and the other accused had lifted her and taken her out of the house was
false, the fact remains, that it would be extremely difficult to accept
that the victim could be taken away forcibly from her room, when her
husband was sleeping besides her. In the cross examination, the victim
said that the appellant made her sleep on the ground and also admitted
that there were stones at the place of occurrence. If this would be so,
then the prosecutrix was expected to have, atleast some more scratches
on her person. But, as aforesaid, the medical evidence does not show
the presence of any injuries, except a scratch on right iliac crest.
17 The victim also admitted in the cross examination that
when she returned back to her house, her husband was standing and
waiting for her at the house. She also admitted that as seen as she saw
her husband, she started weeping. She also admitted that she wept for
the first time at the time of the incident, on seeing her husband. She
also admitted that one could hear the shouts made at the place of
occurrence, at her house. She also admitted that there were other
houses, adjoining her house, and there were hutments adjoining the
place of occurrence and that people were residing in those hutments.
It also becomes clear from the cross examination that the victim knows
the appellant very well, in as much as, she has said that the appellant
was, at the material time, residing in his house along with his parents,
brothers and sisters.
18 Considering the entire evidence, though it is not possible
to hold that nothing had happened in the night in question and that the
victim has invented a false and got up story, the possibility of the victim
being a consenting party to the act of sexual intercourse, which might
have taken place between the appellant and her, cannot be overlooked.
The story put forth by the victim is improbable in several respects. First
of all, it is difficult to accept that the victim could be picked up against
her wish, while she was sleeping by the side of her husband on a khat.
It is difficult to imagine that someone would dare to enter the room in
which the victim was sleeping with her husband and would dare to pick
her up from the side of her husband and successfully take her away to a
nearby place, which again was surrendered by several hutments with
people living there. The story that because her mouth was pressed,
she could not shout, cannot be accepted easily, as certainly the
prosecutrix could have drawn the attention of her husband, when she
was allegedly being picked up and certainly all the adjoining
neighbours and hutment dwellers, when she was taken to the backside
of her house. It would not be easy for any person to rape a grown up
and married woman under these circumstances and if the woman
would offer resistance. There are also no marks of any injuries on the
body of the victim, showing any attempt of resistance on her part.
19 The significant aspect of the matter however is, when the
victim came home, her husband was awake and had been waiting for
her. This is an admitted position. The victim naturally owed an
explanation to her husband, as to where she had gone in those night
hours, without informing him. Once the victim sensed the likelihood of
her husband questioning her on this aspect and detecting that she had
gone out with the appellant or for the purpose of meeting him, it was
quite natural for her to allege rape, so that the husband might not take
her as a consenting party.
20 Though, in the ordinary circumstances, a woman is not
likely to make a false allegation of rape, when she is caught or is
suspected of having had sexual intercourse with someone outside the
wedlock, she is quite likely to try to protect her character, by claiming
that what was done, was without her consent. Such a possibility is
quite clear in the facts and circumstances of the present case, where the
story of the victim when judged by the ordinary yardstick, appears to
be quite improbable.
21 Thus, even if it is assumed that sexual intercourse had
indeed taken place between the appellant and the victim, as alleged by
her, the possibility of the victim being a consenting party to the said act,
cannot be overruled. Certainly, atleast a doubt that the sexual
intercourse, if any, between the appellant and the victim was
consensual, arises upon a consideration of the entire evidence. The
appellant was entitled for the benefit of such reasonable doubt and
should have been acquitted. The appreciation of evidence, as done by
the trial court, is not proper or legal. The impugned order therefore
needs to be interfered with, in the interest of justice.
22 The appeal is allowed.
The impugned judgment and the order of conviction is set
The appellant stands acquitted.
Fine if paid, to be refunded to him.
The appeal stands disposed of in aforesaid terms.