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Judgment
The appellants are aggrieved by the judgment and order dated 27.8.2004, in Sessions Trial 6 of 2003, delivered by 2nd Adhoc Assistant Sessions judge, Gondia, by and under which the appellants (hereinafter referred to as "the accused") are convicted of offence punishable under section 376(2)(g) of the Indian Penal Code (" IPC " for short) and are sentenced suffer rigorous imprisonment for seven years and to payment of fine of
Rs. 1,000/-. The accused are further convicted of offence punishable under section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act ("Atrocities Act" for short) and are sentenced to suffer rigorous imprisonment for a year and to payment of fine of Rs. 500/-.
The appeal was called out for final hearing on
4.1.2018. The hearing was adjourned till 5.1.2018 since the learned counsel for the accused was absent. The learned counsel for the accused is again absent when the appeal is called out for hearing today. I propose to decide the appeal on merits and I have with the fair and able assistance of the learned Additional Public Prosecutor Shri N.H. Joshi, scrutinized the record and proceedings to satisfy the conscious of the Court that the prosecution has established the offence against the accused beyond reasonable doubt.
The First Information Report is lodged by PW 1 prosecutrix on 1.11.2003. The oral report is Exh. 10 on the record of the Trial Court and the printed First information Report is Exh.
15.
Concededly, the oral report is lodged by PW 1 prosecutrix after approximately seven months of the incident. It is not in dispute that the prosecutrix did not reveal the complicity of the accused to any person including her family till she lodged the report at Goregaon Police Station on 1.11.2003. It is not in dispute that the prosecutrix was in advanced stage of pregnancy when she lodged oral report and in due course gave birth to a male child. I may state, only to keep the record straight, that when the prayer for suspension of sentence and grant of bail was being considered by this Court, a oral submission was made on behalf of the accused that the paternity of the male child born to the prosecutrix be established by conducting a DNA test. This Court, vide order dated 1.12.2004 directed that a DNA test be conducted, the test was accordingly conducted and neither of the accused was found to be the father of the child born to the prosecutrix.
With the fair and able assistance of the learned Additional Public Prosecutor Shri N.H. Joshi, I have given my anxious consideration to the evidence on record, and having done so, I am not persuaded to uphold the judgment of conviction. I am satisfied, for reasons spelt out infra, that the prosecution has not established, much less beyond reasonable doubt, that the accused have committed offence either under section 376 (2) (g) of IPC or under section 3(1)(xi) of Atrocities Act. I have reached this finding de-hors the DNA test report and independently thereof on the basis of evidence on record. The conduct of the prosecutrix PW 1 in not disclosing the incident either to her brothers or to her parents when they returned to the village in "Akhadi" (June end) is most unnatural. The evidence of the prosecutrix, is even otherwise not confidence inspiring at all and is marred by too many omissions which partake the character of contradictions since the omissions touch significant and core aspects of the incident. The prosecutrix has deposed that during the Summer of 2003 at 5.00 p.m. she was returning home from purchasing snuff.
The accused were standing at the gate of the school, accused 1 caught hold of her hand and tied her mouth with the help of dupatta. The accused 2 caught hold of both the legs and she was dragged inside the school and taken to Balwadi (kinder garden)
inside the school. The accused 1 undressed the prosecutrix, accused 2 removed his own clothes and then ravished the prosecutrix. The accused 2 was then holding both the legs of the prosecutrix. The prosecutrix was then ravished by accused 2 and both the accused threatened her that if the incident is disclosed to her parents, she will be killed. The prosecutrix has deposed that the accused persons stayed in the school while she was returned to her house. She states that she did not disclose the incident to her younger brothers. Her parents and sister Jyoti had gone to some other village for earning livelihood. Her parents returned in June
2003. She did not disclose the incident to her parents. She realized that she had conceived and was taken to the BGW Hospital at Gondia. She then lodged the oral report. The prosecutrix is physically handicapped and her right hand and leg are affected by polio.
In the cross-examination, several omissions and improvements are brought on record which are duly proved in the cross examination of PW 5. The statement that her mouth was tied by dupatta, is a proved omission. The statement that the accused threatened that the prosecutrix will be murdered if the incident is disclosed to her parents, is again an omission. She admits that her father and the accused have a dispute as regards
sharing of the canal water. A suggestion is given to her that she used to roam about in the village with Prakash Mhaske, Suresh Muneshwar and Oma Shende, which is denied. The prosecutrix states that she did not know the aforesaid persons.
The only other material witnesses are PW 2 the mother of the prosecutrix and PW 3 the father of the prosecutrix.
PW 2 Sugandhabai states that the prosecutrix did not disclose to her the incident although she suspected that the prosecutrix was pregnant. According to PW 2 she was not aware of the involvement of the accused till the prosecutrix lodged the report.
In the cross examination, it is extracted that PW 2 was warned by Santosh Waghmare that her daughter - prosecutrix goes roaming in the village in the evening and that PW 2 berated the prosecutrix and asked her not to roam around. Several suggestions are given to PW 2 to bring on record motive for false implication which PW 2 has denied. The evidence of PW 3 does not take the case of the prosecution any further since like PW 2 he was absolutely unaware of the incident or the person responsible for the pregnancy of the prosecutrix.
It is true that the prosecutrix is physically handicapped since her right leg and hand are affected by polio.
However, except for a stray sentence in the evidence of her mother PW 2, there is nothing on record to suggest that the mental faculties of the prosecutrix are impaired or that she is not in a position to understand the implication and consequences of her actions. She appears to be well oriented and has given rational answers in the evidence before the Court. The conviction is predicated substantially, if not entirely, on the sole uncorroborated testimony of the prosecutrix. It is true that the conviction can rest on the sole uncorroborated testimony of the prosecutrix but then, the caveat is that the testimony must inspire confidence and must be implicitly reliable and trustworthy.
I have already observed that the conduct of the prosecutrix is not natural. Her evidence is marred by too many omissions, improvements and other embellishments. It would be extremely hazardous to base the conviction on the sole uncorroborated testimony of the prosecutrix.
The judgment and order impugned is set aside and the accused are acquitted of offence punishable under section 376(2)
(g) of the IPC and under section 3(1)(xi) of Atrocities Atrocities Act.
Bail bond of the accused shall stand discharged and fine paid by the accused, if any, shall be refunded.
The appeal is allowed.