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Judgment
Joshi A.H., J.—This is a State appeal against acquittal. The accused were tried for offence of gang rape punishable u/s 376 (g), Indian Penal Code.
Heard learned APP Mr. M.J. Khan for the appellant-State and learned Advocate Mr. P.B. Patil for respondents-accused persons and perused the record.
Prosecution has relied upon different witnesses, i.e., parents of prosecutrix Manisha, and the victim - Manisha, apart from the shopkeeper who had sold condoms to the accused persons, the Medical Officer etc.
PW 1 - Manisha narrates entire incident which tends to prove the alleged gang rape.
In the cross-examination, effort has been made to create a doubt in PW 1 -Manisha''s testimony on account of delay in lodging the report and a possibility of her statement being totally false. PW 1 has deposed that she was gagged and was unable to shout, and narrated the story of use of condoms by the accused in the process of committing rape.
Prosecution has proved sale of condoms to the accused by examining the shopkeeper.
The story of rape was sought to be corroborated by the prosecution by the testimony of PW 6 - Dr. Sanjay Kolte, Medical Officer. Examination-in-Chief of Medical Officer contained in para 1 reads as follows:-
On 6-1-09 I was working as medical officer at Civil Hospital, Buldana. That day at about 4 a.m., I examined Manisha Shrikrishna Ubale, aged 22 years, brought by LPC, Buldana, on the allegations of rape, and I had issued certificate of my observation. Same is now shown to me.
It bears my signature. Its contents are correct.
It is marked at Exh.45. No evidence of injuries were seen anywhere on her body.
It was not possible to comment as to if alternate rape has been occurred or not.
Old hymen tear was seen. She was habituated for intercourse.
[Quoted from page No. 94 of R & P. of Sessions Trial No. 42 of 1999. Sub-paragraphing is done for convenience].
Though Medical Officer had testified that there was no evidence of rape due to absence of anything in that regard on the private part of the prosecutrix and absence of other injuries on the body of prosecutrix, in the cross-examination, Medical Officer in specific terms stated as follows: -
2................................................I had taken vaginal swab. C.A. report is now shown to me, and the report is nil.
Appearance of semen on vaginal swab is a positive evidence of intercourse.
As C.A. report is negative regarding presence of semen in the vaginal swab, it can be said that there was no intercourse in immediate past without any contraceptive.
Otherwise also this is a doubtful case of rape. I have seen the packet of Deluxe contraceptive. Its each packet contains only one contraceptive. Any contraceptive may get torn while using it. When the victim was referred for medical examination, I was not informed that condoms were used in the incident.
In case the contraceptive has torn, C.A. Report will also be positive......
[Quoted from back of page No. 94 of R & P of Sessions Trial No. 42 of 1999. Sub-paragraphing is done for convenience].
Prosecution has not brought on record evidence to prove that two used condoms found at the place of offence were sent for chemical analysis. The remains of body fluids on both sides of condoms could have been the best piece of evidence to prove its use by the accused for intercourse with the prosecutrix.
It is obvious that due to use of condoms vaginal swab could have been negative, however, as two condoms were seen in torn condition, the vaginal swab could have shown positive result.
It is not made clear by the prosecution as to what prevented it from getting done the chemical analysis of the remains of body fluids on the condoms.
The testing of condoms in a laboratory was extremely necessary in the background that medical evidence rendered a picture which was totally inconsistent with the story couched by the prosecutrix.
In the result, while on one hand, the statement of prosecutrix could be believed in absence of medical evidence as well, it would not be easy to believe the prosecutrix contrary to medical evidence.
The case would stand on a different footing when rape is sought to be proved solely by testimony of prosecutrix "in absence of medical evidence" as against the case of testimony of prosecutrix contradicted by medical evidence.
It would, therefore, be impossible to believe the prosecutrix, whose testimony, seen in isolation, seems to be consistent however, circumstances, namely while she was laid down on ground over a pant, raped by accused persons one after the other, no resistance, whatsoever, is offered and no marks of resistance or other injuries are evident from her body or private parts, bring her version under a grave shadow of doubt.
On the other hand, medical opinion is that prosecutrix is used to sexual intercourse. The story of gang rape, therefore, comes under doubt. It would, thus, be gravely risky to convict somebody on a doubt. In the given situation, no interference is warranted in appeal against acquittal.