AI Structured Summary
Not yet generated for this judgment
Judgment
Challenge is to the judgment and order dated 22-5-2003 rendered by the learned Additional Sessions Judge, Gadchiroli in Sessions Trial 77/1994, by and under which the appellant-accused is
convicted for offence punishable under Section 376 of the Indian Penal Code (" IPC " for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.5,000/-.
Heard Shri R.M. Daga, learned Counsel for the accused and Shri N.H. Joshi, learned Additional Public Prosecutor for the respondent.
The genesis of the prosecution lies in the oral report dated 15-10-1993 lodged by P.W.1 Penta Kunbhi alleging that the accused subjected his wife (P.W.2) to forcible sexually intercourse between 10-00 to 11-00 p.m. on 14-10-1993. On the basis of the said report (Exhibit 7) and printed first information report (Exhibit 8) offence punishable under Section 376 of the IPC was registered against the accused. Investigation ensued and upon completion thereof charge-sheet was submitted in the Court of Judicial Magistrate First Class, Sironcha, who committed the proceeding to the Sessions Court. The learned Sessions Judge framed charge (Exhibit 2). The accused pleaded not guilty and claimed to be tried. The defence of the accused, as is discernible from the trend and tenor of the cross-examination and the answers given in response to questions put in the examination under Section 313 of the Criminal Procedure Code is of false implication.
Shri R.M. Daga, learned Counsel for the accused would submit that the prosecution version is highly improbable and indeed incredible. The accused is alleged to have subjected the prosecutrix to forcible sexual intercourse although her husband P.W.1 was sleeping on a cot at a distance of one foot. Shri R.M. Daga, learned Counsel would submit that the prosecution witnesses have admitted that the report was lodged only because the accused threatened to lodge a police report alleging that the accused was unnecessarily beaten by P.W.1. The defence that while leaving the house (hutment) to answer the nature's call, accidentally the accused stepped on the person of the prosecutrix, she shouted, P.W.1 awoke and inflicted two to three slaps to the accused who threatened to lodge a police report and in retaliation oral report (Exhibit 7) was lodged, is more than probablised on the touchstone of probabilities, is the submission. Shri R.M. Daga, learned Counsel invites my attention to answers the questions 76 and 79 in the statement under Section 313 of the Criminal Procedure Code, which read thus :
"Q.76. Why the witnesses are deposing against you ?
Ans. I awake my both colleagues from the sleep with intent to go to urinal purposes. Rajayya was standing there. I was going for urinal purposes. There was darkness. My leg fell on leg of somebody else in the darkness. I heard the noise of talking & shouting of a lady in Telgu language. Then, husband of Masi awake from the sleep. Her husband gave me two slaps. Then, we came outside his house. I told to her husband that why he beat me and what is my fault ? While going for urinal, my leg fell on her leg. I told him that I am going to Police Station to lodge report. Then, we three persons went to Police Station.
Q.79 Do you want to say anything else ?
Ans. When we went to the police station, police raised the guns as it is Naxalite Area. We lodged oral report in the police station. One Bhaurao Police Constable attached to that police station was my friend. On the next day at about 11-00 a.m. Masi, her husband and ? others came to the police station. There was one Sarpanch who was her father-in-law. That Sarpanch told that I lodged report against them,
therefore, now they will lodge report against us. Then, they lodged report in the police station. Then, I was arrested."
Shri R.M. Daga, learned Counsel would further submit that the failure of the prosecution to examine the investigating officer has caused an obvious prejudice to the accused. The learned Sessions Judge has held the failure of the accused to bring on record the report lodged at the police station as an incriminating circumstance. Shri R.M. Daga, learned Counsel would submit that firstly, in the teeth of the admission by the witnesses that they lodged the report in view of the report lodged by the accused, and but for the report lodged by the accused the prosecution witnesses would not have reported the incident, the failure to bring on record the contents of the report lodged by the accused are of little significance. Secondly, if the contents of the oral report are indeed of significance, as is observed by the learned Sessions Judge, the accused are put to prejudice due to the non-examination of the investigating officer, is the submission.
Scrutiny of the evidence would reveal that the submission of Shri R.M. Daga, learned Counsel that the report (Exhibit 7) was lodged by P.W.1, is lodged as a counter-blast, is not without substance.
P.W.1-Penta, who lodged the report, admits thus in the cross-examination :
"Accused went to the police station saying that he is going to lodge report about beating. It is true that I feel that police will take action against me on the report of the accused, therefore, in morning, I lodged report."
In view of the admission reproduced supra, the evidence of P.W.1 and P.W.2 must be tested with extreme caution. The version of the prosecutrix is that her husband P.W.1 would not have lodged the report, had the accused not lodged the report. The prosecutrix admits in so many words that it was only because the accused threatened that he would be lodging a report that the prosecutrix and her husband lodged the oral report (Exhibit 7). Concededly, other than the evidence of P.W.1 and P.W.2 the only incriminating circumstance according to the learned Sessions Judge is an injury noticed on the penis of the accused.
It would be apposite first to consider the evidence of the prosecutrix (P.W.2). She states that the accused and his two associates visited one Gudda Kulmethe, they had dinner at Gudda's house, since
proper sleeping arrangement was not available at the house of Gudda, the accused and his two associates came to the house of the prosecutrix to spend the night. The accused and his two associates slept on one cot in one room, the husband slept on a cot in the other and the prosecutrix slept on the ground in another room. At 12-00 p.m., the accused came near the prosecutrix, caught hold of both hands and pressed her mouth, removed her petticoat and subjected her to sexual intercourse. The prosecutrix awoke, caught hold of the hair of the accused and shouted. The accused got up from the person of the prosecutrix, her husband awoke and gave two slaps to the accused.
The accused disclosed to her husband that the accused was committing sexual intercourse with her. The prosecutrix states that since she was menstruating, she was sure that the person committing the sexual intercourse was not her husband and it was then that she caught hold of the hair of the person and called her husband. She states that when her husband awoke, she was holding the accused by the hair. She states that it was after her husband awoke that the lamp was lit and it was noticed that the person was committing the sexual intercourse was accused. She states that after her husband beat the accused, he
(accused) went to the police station. The prosecutrix and P.W.1 went to the police station in the morning and lodged the report.
In the cross-examination, P.W.2 states that she and her husband were sleeping in the same room at a distance of five feet from each other. She at later stage states that her husband (P.W.1) was sleeping at a distance of 1 foot from her. She states in the cross-examination that a person moved her saree upwards and penetrated his penis in her vagina twice. It was after the two penetrations that she awoke, is the deposition. She reiterates that when her husband awoke, she had caught hold of the hair of the accused.
The admission extracted that it was only in view of the accused lodging the report that she and her husband lodged the report, is noted supra.
P.W.1, the husband of the prosecutrix, is the informant.
According to P.W.1, his house comprises two rooms, the accused and his two associates slept on wooden cot and he slept on a separate wooden cot. The prosecutrix slept on the ground in another room besides the partition. P.W.1 states that the incident occurred at 11-00 p.m., since his wife shouted, he went near her and saw the accused present near the prosecutrix. P.W.1 inflicted two to three slaps to the
accused, is the deposition. He states that P.W.2 disclosed that the accused came near her, caught hold of her hands, legs and pressed her mouth and committed sexual intercourse forcibly. P.W.1 states that the accused and his two associates went to the police station.
The evidence of P.W.1 and the evidence of P.W.2 is not consistent inasmuch as according to P.W.1, when he awoke and went near P.W.2, the accused was present near P.W.2. P.W.1 does not support the version of P.W.2 that she was holding the accused by hair when her husband (P.W.1) came near her. In the cross-examination, P.W.1 admits that the distance between the cot on which he was sleeping and his wife (P.W.2) was one foot.
P.W.1 admits that since he felt that the police will take action on the report of the accused, he lodged the report in the morning. Concededly, the prosecution case substantially, if not entirely, hinges on the evidence of P.W.1 and P.W.2. The forensic evidence on record does not take the case of the prosecution any further. The learned Sessions Judge has recorded a finding that the injury noticed on the penis on the accused, in the absence of any explanation, is suggestive of rape. The doctor, who examined the accused was not examined as a witness, since the medical certificate
(Exhibit 15) was admitted by the accused. Injury 3, which is referred by the learned Sessions Judge as a strong piece of evidence, is described thus :
"Scab over right side of penis in unstretched condition of skin length with profuse behind glans in mid length of few size having scab of blackish red colour and is hard.
Duration before 48 hours.
Healing period in normal course 6-7 days."
Scab is a development during the wound healing reconstruction face. The wound itself may be caused in several diverse circumstances. The injury, ultimately would only serve as a corroborative piece of evidence and if the evidence of P.W.2 prosecutrix is not found by this Court to be implicitly reliable or if the version of the prosecution is found to be incredible and unbelievable, as is vehemently argued by Shri R.M. Daga the said injury would cease to be of any significance, particularly since the duration of the injury is opined to be before 48 hours. The accused was medically examined at 5-30 p.m. on 16-10-1993 within 41.30 hours of the alleged incident.
P.W.1 is concededly not a witness to the entire incident.
According to P.W.1, when he went near P.W.2 hearing her shouts, the accused was standing near his wife (P.W.2). P.W.2 states in the cross-examination that it was only after the second penetration of the penis in her vagina that she awoke. She states that when she awoke, she caught the hair of the accused and called her husband. The version of P.W.2 is that the accused caught hold of her both hands, pressed her mouth and removed her clothes. However, it is her categorical assertion that it was only after the second penetration that she awoke.
Shri R.M. Daga, learned Counsel is justified in the submission that the version of the prosecutrix is doubtful and indeed is rather unbelievable.
Firstly, that the accused, concededly the stranger to the family, would have the temerity to rape a woman whose husband is sleeping a foot away, is a version which must be tested with caution. That the prosecutrix did not awake although her clothes were removed, mouth was pressed and hands were pressed and she awoke only after the second penetration of the penis in the vagina, is a version which borders on unbelievable. The defence of the accused that he was not oriented since it was dark and as he was not aware of the topography, he stepped on the person of the prosecutrix, was beaten up and when he and his two associates left to lodge the report at police station, the
report (Exhibit 7) was lodged in retaliation, is, in my opinion, probablised on the touchstone of preponderance of probabilities.
In my opinion, the prosecution has not proved the offence beyond reasonable doubt. Suspicion even a grave suspicion cannot be the basis of conviction. The accused is entitled to the benefit of the doubt.
The judgment and order impugned is set aside. The accused is acquitted of the offence punishable under Section 376 of the
IPC.
The bail bond of the accused shall stand discharged. The fine paid by the accused, if any, shall be refunded to him.
The appeal is allowed and disposed of.