Ankush Madhukara Barad vs State of Maharashtra

The present appeal under Section 374 of the Code of Criminal Procedure (Cr.P.C.) is directed by the appellant/convict against the judgment and order dated 21/10/2023, passed by the learned Extra Joint District and Additional Sessions Judge, Akola, in Sessions Trial No.98 of 2020, thereby the present appellant/accused has been convicted for the offences punishable under Sections 376(2)(j)(l), 323 and 506 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for 10 years for the offence punishable under Section 376(2)(j)(l), with a fine of Rs.5,000/-, rigorous imprisonment for 1 year with a fine of Rs.1,000/- for the offence punishable under Section 323 and rigorous imprisonment for 6 months with a fine of Rs.500/- for the offence punishable under Section 506 of the IPC, in connection with Crime No.303 of 2020 registered on 03/08/2020 with Police Station Channi, District Akola.

In nutshell, the prosecution story is that PW-1, the informant/ victim's mother, lodged an FIR with Channi Police Station alleging that, on 03/08/2020 at about 4.30 p.m., her victim daughter had been to the cattle shed to feed fodder to the cow, but she did not return for quite some time. Hence, she visited the cattle shed and found that her victim daughter was lying on the ground and the appellant/accused was sitting beside her and, at that time, the appellant threatened her to commit suicide if the incident was disclosed to anyone and fled away. The informant also noticed that the Salwar (Paijama) of the victim was relieved up to the knees. On enquiry, her victim daughter disclosed that, when she visited the cattle shed, the appellant/accused entered the cattle shed and relieved the string of her Salwar and committed rape upon her. The appellant/accused slapped her on her cheek, pressed her neck and issued life threats. On the basis of the said FIR, Crime No.303 of 2020 was registered with Police Station Channi, Akola, against the appellant/accused for the offences punishable under Sections 376(2)(j)(l), 323 and 506 of the IPC.

PW-5, the Investigating Officer, visited the spot of the incident and drew the spot panchnama and arrested the appellant under an arrest panchnama. The victim was referred for medical examination to the Government Women Hospital, Akola, and the appellant-accused was referred to the Government Hospital, Akola. During the course of medical examination, the Medical Officers collected the requisite samples, which were sent for forensic examination to the FSL, Amravati. The Investigating Officer recorded the statements of the witnesses and, on completion of the investigation, filed the charge-sheet against the appellant. The Investigating Officer collected the forensic examination reports and produced the same on record.

On 27/08/2021, the learned Extra Joint District and Additional Sessions Judge, Akola, framed the Charge at Exh.3 for the offences punishable under Sections 376(2)(j) and (l), 323 and 506 of the IPC. The accused pleaded not guilty and claimed to be tried. Accordingly, the plea of the accused was recorded at Exh.4.

In order to prove the charge, the prosecution has examined the following witnesses:

Besides the oral evidence, the prosecution proved documentary evidence, including the FIR at Exh.11, printed FIR at Exh.12, statements under Section 164 of the Cr.P.C. of the informant and the victim at Exhs.13 and 21, respectively, the request letter for deputation of panchas at Exh.15, spot panchnama at Exh.16, seizure panchnama of the victim's clothes at Exh.23, seizure of blood and nail clippings of the accused at Exh.24, seizure panchnama of the accused's clothes at Exh.25, request letter for medical examination of the victim (PW-3) at Exh.30, medical examination report of the victim at Exh.31, collection of necessary samples of the victim, including nail clippings, foreign material, blood sample, pubic hair, vulva swab and vaginal swab, etc. at Exh.31-A, arrest panchnama of the accused at Exh.45, request letter referring the accused for medical examination at Exh.46, medical examination report of the accused at Exh.47, Form-B at Exh.47-A, duty pass at Exh.48, requisition letter referring the victim for medical examination at Exh.49, duty pass at Exh.49-A, requisition letters for recording the statements of the informant and the victim at Exhs.51 and 52, requisition letter for forwarding the collected samples for chemical examination at Exh.53, chemical examination reports at Exhs.54, 55 and 56, along with other relevant documents.

After conclusion of the trial, the learned Trial Court recorded the statement of the accused under Section 313 of the Cr.P.C. at Exh.67. The defence of the accused is of total denial and false implication in the crime. After hearing the parties, the learned Trial Court passed the impugned judgment and order dated 21/10/2023, thereby convicting the appellant/accused for the offences punishable under Sections 376(2)(j)(l), 323 and 506 of the Indian Penal Code. He was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 376(2)(j)(l), rigorous imprisonment for 1 year and to pay a fine of Rs.1,000/- for the offence punishable under Section 323, and rigorous imprisonment for 6 months and to pay a fine of Rs.500/-for the offence punishable under Section 506 of the IPC, in connection with Crime No.303 of 2020 registered on 03/08/2020 with Police Station Channi, District Akola. Hence, the present appeal has been preferred by the appellant/accused No.2 challenging his conviction.

Heard Mr. Ajay Londhe, learned Counsel appearing for the appellant, and Mr. G.S. Umale, learned Additional Public Prosecutor for the State, at length. I have gone through the evidence, documentary material and the impugned judgment and order. The following points arise for my consideration and my findings thereon, with reasons, are recorded as under:

The point nos. 1 to 4 are interlinked and, therefore, they are being considered and decided together for the sake of convenience.

Before appreciating the testimony of the witnesses and the documentary evidence, it would be appropriate to consider the provisions of Sections 376(1) and 376(2)(j) to (l) of the IPC, which deal with aggravated forms of the offence of rape, including rape committed upon a woman suffering from mental disability. Therefore, the prosecution was under an obligation to establish that the appellant-accused committed rape upon the victim (PW-3), who was incapable of giving consent on account of her mental disability.

Mr. Londhe, learned Counsel appearing for the appellant, filed written notes of arguments and also advanced oral submissions at considerable length. He canvassed that the prosecution failed to bring incriminating material on record to establish the guilt of the appellant-accused for committing rape upon the victim (PW-3), voluntarily causing hurt, and criminally intimidating the victim (PW-3) by issuing life threats. He further canvassed that the statement of the victim (PW-3) was recorded on 12/09/2020, whereas the victim's statement under Section 164 of the Cr.P.C. was recorded on 22/09/2020, i.e., within a span of ten days. However, the statement of the victim recorded under Section 164 of the Cr.P.C. [Exh.21] does not disclose that she had named the accused.

It is submitted that, while recording the victim's statement under Section 161 of the Cr.P.C., she stated to have narrated the entire incident, however, in cross-examination, the informant (PW-1) admitted that the victim (PW-3) was not able to speak or disclose anything. In such circumstances, there was no possibility of recording the statement of the victim (PW-3) as per her say under Section 161 of the Code of Criminal Procedure. Therefore, the entire story of the prosecution is based on the allegation that the victim had been to the cattle shed of the neighbour for giving fodder and to fetch water, however, the Investigating Officer has not recorded the statement of the owner of the cattle shed. Therefore, the entire trial vitiates.

It is further canvassed that, as per the medical evidence, no signs of sexual violence were found on the private parts of the victim (PW-3). The Medical Officer (PW-4) admitted in her cross-examination that no injuries were found on the private parts of the victim. Further, the Medical Officer (PW-4) admitted that the injuries found on the person of the victim (PW-3) could be possible by falling down on the ground. The Medical Officer did not notice any injury of sexual violence on the body of the victim (PW-3). Further, the Medical Officer (PW-4) admitted in her cross-examination that she was not able to give any confirmed opinion regarding sexual violence. Therefore, the prosecution failed to bring any material on record to prove the guilt of the accused for the offences punishable under Sections 376(2)(j) and (l), 323 and 506 of the IPC. Therefore, the learned Trial Court could have acquitted the appellant/accused by extending the benefit of doubt. Therefore, prayed for quashing and setting aside the impugned judgment and order.

The learned Counsel appearing for the appellant further canvassed that, as per the evidence of the informant (PW-1), the victim (PW-3) was married and her husband left the victim because of her mental condition. The informant (PW-1) is illiterate and unable to read and write. In cross-examination, the informant (PW-1) admitted that she had put her thumb impression on the FIR. Further, material omissions are brought on record that, while lodging her report Exh.11, PW-1, the victim's mother, stated that the accused had pressed the neck of the victim and blood was coming out from her mouth. The clothes of the victim (PW-3) were removed up to the knees. However, the said fact is not recorded in the oral report [Exh.11]. Therefore, the material omission creates a doubt about the occurrence of the incident, hence, the appellant is entitled to acquittal by extending the benefit of doubt.

It is further canvassed that PW-2 Sunil Ramrao Mahalle, who is the panch witness to the spot panchnama Exh.16, admitted in his cross-examination that he had no written direction from his superior officer to stand as a panch witness. As per the evidence of PW-2, the panchnama Exh.16 was prepared while sitting in the victim's house. But as per the recital of Exh.16 panchnama, it was drawn on 04/08/2020 at about 11:00 to 11:30 a.m. Therefore, there is a delay in drawing the spot panchnama Exh.16, which creates a doubt about the occurrence of the crime. Further, though the incident allegedly occurred in the cattle shed, the spot panchnama [Exh.16] was drawn while sitting in the house of the victim. Therefore, the prosecution failed to prove the spot panchnama Exh.16, hence, the prosecution case vitiates.

The learned Counsel appearing for the appellant further submits that the victim (PW-3) is a tutored witness because the victim (PW-3) has not stated anything against the appellant/accused and she admitted in her cross-examination that her mother, the informant (PW-1), narrated the incident to the police and the same was reduced into writing. Further, the victim (PW-3) admitted in her cross-examination that her mother, the informant (PW-1), had prompted her while recording her statement. Therefore, the evidence of the victim (PW-3) is liable to be discarded.

The learned Counsel appearing for the appellant further canvassed that the Medical Officer (PW-4) recorded the history of sexual assault as narrated by the victim (PW-3). However, as per the evidence of the Medical Officer (PW-4), no injuries were found on the genital part or on the backside of the body of the victim. Further, the Medical Officer (PW-4) admitted that the injuries on the leg and thumb could be possible if a person fell on a hard surface while doing work in the cattle shed. Further, the opinion given by the Medical Officer is not conclusive about the sexual assault. Therefore, the prosecution miserably failed to prove the offences punishable under Sections 376(2)(j) and (l), 323 and 506 of the IPC.

The learned Counsel appearing for the appellant further canvassed that the Investigating Officer (PW-6), Anita Ingle deposed at Exh.57 that she had recorded the statement of the victim (PW-3) after 45 days, but no explanation has been offered for recording the delayed statement and collecting the disability certificate of the victim. Though the Investigating Officer (PW-6), PSI Anita Ingle, allegedly collected the disability certificate Exh.58, PW-6 has not drawn a seizure panchnama in respect of the disability certificate Exh.58. Therefore, the prosecution failed to prove that PW-3, the victim, was suffering from mental disability, hence, no offence under Section 376(2)(j) and (l) of the IPC is proved.

The learned Counsel appearing for the appellant further canvassed that, though the prosecution examined PW-7 Dhanshree Sanjaywar, the Lady Police Constable, who had carried the samples of the victim, she has not explained what samples were collected by her. PW-7 admitted in her cross-examination that, on the same day, the compliance report was submitted to the concerned authority, but she admitted about committing a mistake regarding the date of the compliance report. Therefore, the evidence of PW-7 does not support the prosecution case and creates a doubt regarding the collection of the blood sample and clothes of the victim. Therefore, the learned Trial Court ought to have given the benefit of doubt to the appellant-accused and could have acquitted him.

The learned Counsel appearing for the appellant-accused further submits that the prosecution examined PW-8, Medical Officer, who psychiatrically examined the victim (PW-3) and issued Disability Certificate Exh.65. However, PW-8 admitted in his cross-examination that the victim (PW-3)/patient was having normal behaviour and the IQ of the victim (PW-3) was 70%, but the said fact was not mentioned in the report [Exh.65]. Therefore, the victim (PW-3) is competent to give evidence and she is not a disabled person.

In support of this submission, the learned Counsel appearing for the appellant placed reliance on the case of Pandharinath vs. State of Maharashtra – AIR 2010 SC 1453, wherein it has been held that there was no charge under Section 376 read with Section 511 of the IPC. However, under Section 222 of the Cr.P.C., when a person is charged for an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

Per contra, the learned A.P.P. supported the findings of the learned Trial Court. It is canvassed that the informant (PW-1) deposed at Exh.10 as per the narration in the FIR/Oral Report Exh.11. The incident occurred on 03/08/2020 at about 16:30 hours (4:30 p.m.), but the FIR was lodged on 03/08/2020 at about 23:20 hours, which was after a lapse of seven hours. Therefore, there is no delay, because the husband of the informant (PW-1) had died about 14 years prior and she was not accompanied by anyone to visit the police station immediately to lodge the report. Further, the statements of the informant (PW-1) and the victim (PW-3) are recorded under Section 164 of the Cr.P.C. at Exhs.13 and 21, respectively, wherein both the witnesses stated that the appellant-accused had removed the lower clothes of the victim (PW-3) and committed sexual intercourse with her. However, soon after the informant (PW-1) visited there, the accused issued a life threat and fled away.

The learned A.P.P. further canvassed that the victim (PW-3) was referred for medical examination to the Government District Women Hospital, Akola, and after medical examination, the Medical Officer (PW-4) found a small injury on the lower lip and contusion on the left arm and finger of the victim. Further, there were signs of sexual violence on the victim as per Medical Report Exh.31. Further, necessary samples of the victim were collected and referred to the FSL.

PW-5 deposed at Exh.44 that she collected the FSL Reports Exhs.54, 55 and 56, which corroborate the Medical Reports of the victim as per Exh.31 as well as the accused Exh.47. Therefore, the prosecution has sufficiently discharged its burden and proved that the appellant-accused committed rape upon the victim (PW-3), who was incapable of giving consent on account of her mental disability. Therefore, the findings recorded by the learned Trial Court are based on the evidence available on record, hence, prayed for dismissal of the appeal.

Having regard to the submissions canvassed on behalf of both sides, I have gone through the record. The informant (PW-1), the mother of the victim, deposed at Exh.10 about the occurrence of the incident on the day of Rakshabandhan, when her daughter, the victim (PW-3), had gone to the cattle shed to fetch fodder, but she did not return for a long time. Hence, she visited the cattle shed, wherein she found that her daughter/victim (PW-3) was lying on the ground and her neck was pressed by the accused, the clothes of the victim-daughter were removed up to the knees and the zip of the accused's pant was open. When the informant (PW-1) asked the accused about the crime, the accused told her to commit suicide by hanging if she beat him and the informant (PW-1) would land in jail. Thereafter, the accused fled away. Thereafter, on inquiry, her daughter, the victim (PW-3), disclosed to her (PW-1) that the accused removed her clothes and committed sexual intercourse with her. Thereafter, she visited the police station and lodged the report [Exh.11], on the basis of which the printed FIR Exh.12 came to be registered.

The informant (PW-1) further stated that Exh.13, her statement under Section 164 of the Cr.P.C., was recorded. In cross-examination, the informant (PW-1) admitted that she is illiterate and unable to read and write. The informant (PW-1) denied the suggestion regarding tutoring by the A.P.P. Though the defence tried to bring omissions on record by way of cross-examination to the extent of pressing the neck of the victim (PW-3) and blood coming out from the mouth of the victim, as well as the clothes of the victim being removed up to her knees.

The victim (PW-3) deposed at Exh.20 that she knows the accused Ankush Barad. The incident took place on the day of the Rakshabandhan festival, when she visited the cattle shed to fetch fodder for the cow. She further deposed that, when she was feeding fodder, the accused arrived there and laid her on the ground. The accused inserted his penis into her vagina and pressed her neck. Hence, she received an injury to her left hand and, in the meanwhile, her mother (PW-1) arrived there. Therefore, she sustained small injuries on her face due to the fists and blows given by the accused. The victim (PW-3) further deposed that her mother (PW-1) arrived and raised a hue and cry. She was also referred to the Government Hospital at Akola for medical examination, and her clothes were seized, i.e. Article Nos.5, 6 and 7, namely, red-coloured top, salwar, nicker, etc.

In cross-examination, the victim (PW-3) admitted that her mother had narrated the incident to the police and it was reduced into writing accordingly. Her statement was recorded at her house and her mother narrated the same to the police, but she denied that her mother had tutored her while giving evidence.

In order to prove the sexual assault, the victim (PW-3) was referred for medical examination at Government Women Hospital (Lady Hardinge), Akola. The Medical Officer (PW-4), Dr. Ashwin Vasant Sarnaik, medically examined the victim (PW-3) and, after noting the history of sexual assault, found that the clothes of the victim were not changed. The clothes of the victim were seized by the Investigating Officer. On clinical examination, she found a small injury on the lower lip and contusion on the left arm and finger of the victim. On local examination of the victim, PW-4 opined that sexual violence on the victim cannot be ruled out. Accordingly, the Medical Report [Exh.31] was issued. The Medical Officer (PW-4) also collected nail clippings, scalp hair, blood samples, pubic hair, vaginal swab and other forensic material, etc. under Exh.31, and the same were referred for forensic examination under requisition letter [Exh.53]. After receipt of the forensic reports, the same were placed on record at Exhs.54, 55 and 56.

As per the evidence of PW-5 Ramrao Rathod, the Investigating Officer had also sent the appellant-accused for medical examination under requisition letter Exh.46. The Medical Officer medically examined the accused and submitted the report [Exh.47], wherein the Medical Officer opined that the accused was capable of performing sexual intercourse. His blood sample, nail clippings and pubic hair were also collected. The prosecution proved the forensic expert report at Exh.54 in respect of the examination of the seized clothes of the victim, and the chemical analysis result is affirmative regarding the finding of two blood stains measuring 0.2 cm to 2 cm in diameter, spread on the front inner side of the panty of the victim. The said blood stains were of “B” group, which was the blood group of the victim (PW-3). As per the FSL report [Exh.55], pertaining to the victim and the examination of the forensic items of the victim, the blood group of the victim was found to be “B” and blood stains of Group “B” were found on the victim's clothes.

As per the forensic expert report [Exh.56], no semen was detected on the pubic hair of the accused and no tissues were detected on the nail clippings of the accused. Needless to say, after going through the evidence of the informant (PW-1) as well as the evidence of the victim (PW-3), it does not suggest that the present appellant had discharged semen. Whereas, the case of the prosecution is that the accused inserted his penis into the vagina of the victim (PW-3) and, soon after the informant (PW-1) visited there, the accused separated from the victim (PW-3). The informant (PW-1) deposed that the victim (PW-3) had visited the cattle shed to fetch fodder for the cow, but she did not return for a long time, hence, she visited there and saw her daughter, the victim (PW-3), lying on the ground and her neck was pressed by the accused. The clothes of the victim (PW-3) were removed up to the knees and the pant's zip of the accused was open.

The victim (PW-3) deposed that, when she had visited the cattle shed to feed fodder to the cow, at that time, the accused arrived there and made her fall on the ground. Thereafter, he inserted his penis into her vagina and pressed her neck. She received an injury to her left hand and, in the meanwhile, her mother, the informant (PW-1), arrived there. She sustained a small injury on her face due to the fist blow given by the accused. Thereafter, the accused fled away. Therefore, the evidence of the informant (PW-1) and victim (PW-3) corroborates with the medico-legal examination report Exh.31, wherein the Medical Officer found the absence of semen and the presence of injury on the lower lip and left thumb of the victim. The PW-4 Medical Officer opined, after clinical findings, about sexual violence.

PW-8 Dr. Manish Namdeorao Thakre, Associate Professor, Psychiatric Department, GMCH, Nagpur, deposed at Exh.64 that the patient (PW-3) was referred by PW-6-PSI Ms. Anita Ingle under a requisition letter for psychiatric examination of the victim (PW-3). On medical examination, he found that the victim (PW-3) was having intellectual disability and, after conducting the IQ test, he assessed her IQ at 61%. The normal IQ is generally above 70%. The patient was having an IQ of 61%, hence, the victim falls within the category of mild intellectual functioning, and he issued Certificate Exh.65. Though the defence cross-examined PW-8, nothing has been solicited to disprove that the victim (PW-3) was not suffering from intellectual disability or that she was having an IQ of more than 70%. Therefore, it is prima facie proved that the victim (PW-3) was incapable of giving her consent and she was suffering from mental disability. And, as such, the accused has committed rape upon a mentally disabled person, which certainly comes within the ambit of Sections 376(2)(j) and (l) of the IPC.

Needless to say, it has come in the cross-examination of the informant (PW-1) that the victim (PW-3) was married, but her husband had left her due to her mental condition. The prosecution as well as the accused has not disputed that, on the day of the alleged offence, the victim (PW-3) was about 28 years old and she was bodily developed. Since the victim (PW-3) was married, hence, there is every possibility of rupture of the hymen due to consummation of matrimonial relations between her and her husband.

On reassessment of the evidence of the prosecution witnesses as well as the evidence of the Medical Officer (PW-4), it appears that no semen was detected on the clothes of the victim, but injuries were found on the lower lip and left thumb. The Medical Officer (PW-4), on clinical examination, opined that sexual violence against the victim (PW-3) cannot be ruled out. Since the evidence of the victim (PW-3) or the informant (PW-1) does not suggest that the victim (PW-3) resisted the accused because of her mental condition, hence, there is every possibility that no injuries were noticed by the Medical Officer (PW-4) on the genital parts of the victim (PW-3). It is a well-settled principle of law that merely because no injuries are found on the private parts of the victim (PW-3), it cannot be held that there was no sexual penetration on the part of the accused.

The testimony of the victim (PW-3) proves that the accused inserted his penis inside the vagina of the victim (PW-3), but PW-3 has not deposed that the accused had discharged semen. Therefore, as per the provisions of Section 375 of the IPC, penetration is sufficient to constitute rape and it is not necessary for discharge of semen by the accused.

In Chaman Lal vs. State of H.P. - (2020) 17 SCC 69, the Hon'ble Supreme Court held as under:

38 In Harichandra Vasudeo Vaity vs. State of Maharashtra, 2007 All M R (Cri.) 140, the Division Bench of this Court held that merely absence of semen is not by itself sufficient to disprove rape where penetration is otherwise proved through the medical evidence. In Onkar Timaji Shende vs. State of Maharashtra, 2016 All MR (Cri) 1523 - 2015 Law Text (Bom) (09) 138, this Court held that, to constitute an offence of rape, penetration is sufficient. The medical evidence of the prosecutrix clearly establishes penetration in her private part. In that view of the matter and looking to the consistency in the version of the prosecutrix, the submission of the appellant will have to be rejected that the appellant has only played with the private part of the prosecutrix with his fingers and no penetration of his private part was done.

In the case in hand, the appellant-accused has failed to rebut the prosecution case or to discredit the testimony of the prosecution witnesses. The appellant-accused has not brought any material on record to show any ground for his false implication at the hands of the informant. Thus, the prosecution has proved the offences punishable under Sections 376(2)(j) and (l), 323 and 506 of the IPC beyond reasonable doubt. Thus, the prosecution has successfully proved that the appellant-accused committed rape upon the mentally retarded victim (PW-3).

On 21/10/2023, the learned Extra Joint District Judge and Additional Sessions Judge, Akola, passed the impugned judgment and order holding the accused guilty of the offences punishable under Sections 376(2)(j) and (l), 323 and 506 of the IPC and sentenced him to suffer rigorous imprisonment for a maximum period of 10 years for the said offences, along with fine. The appellant-accused has failed to bring any substantial material on record and no grounds have been set out to interfere with the findings recorded by the learned Trial Court. Accordingly, Point Nos.1 to 4 are answered in the affirmative.

Section 376(2) provides punishment of imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life for committing the offence punishable under Section 376(2)(a) to (n). In the case in hand, the learned Trial Court has held the accused guilty and awarded the minimum sentence of 10 years, which appears justifiable, and no interference is called for to disturb the findings recorded by the learned Trial Court.

In view of the above discussion, there is no substance in the appeal, hence, the appeal stands dismissed. Record and proceedings be remitted back to the Trial Court.