State Of Maharashtra vs Amar Chandansingh Rathod

(PER: ROHIT W. JOSHI, J.)

The present appeal is preferred by the State in order to challenge the impugned judgment and order dated 23.11.2011 passed by the learned Special Judge under the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, Pandharkawada in Special Case No.11 of 2006. By the said judgment, the learned Special Judge has acquitted the respondent/accused of the offences punishable under Section 376 of the Indian Penal Code (hereinafter referred to as “the IPC” for the sake of brevity) and Section 3(1)(x) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, (hereinafter be referred to as “the Atrocities Act”, for the sake of brevity).

The case of prosecution is that the accused had committed forcible sexual intercourse with the victim, who was a minor aged about 7 years on 21.04.2006 at about 2:00 p.m., when the victim and other children were playing in front of the shop of the accused. According to the prosecution, on the said date, the victim and other children were playing in front of the shop of the accused, the accused caught hold of the victim’s hand and dragged her inside his house and closed the door. It is stated that while doing so, he asked the other children to go away. As per the case of prosecution the three neighbours, namely, Gangabai Khandare, Anusayabai Meshram and Bayabai Anawelwar, saw accused carrying the victim inside his house. It is the case of prosecution that the accused committed forcible sexual intercourse with the victim in his house, as a consequence of which the victim sustained bleeding injury on her private part and bite injuries on her breast. According to the prosecution story, the younger brother of the victim narrated the incident of the accused forcibly dragging the victim to his house to their mother and accordingly, the mother rushed to the house of the accused and saw the victim coming out weeping from the house of the accused. On learning about the alleged act of forcible sexual intercourse, the mother of the victim lodged report with the concerned police station on 22.04.2006, i.e. on the next day of the alleged incident upon which offence vide Crime No.81/06 came to be registered against the accused. Blood stained frock of the victim was seized by preparing seizure panchanama. The victim was sent for medical examination at Sub District Hospital, Pandharkawada. The blood and semen samples of the accused were also seized. Since the victim belongs to Scheduled Caste, apart from Section 376 of the IPC, offence under Section 3(i)(x) of the Atrocities Act was also registered. The learned Special Judge framed charge and conducted trial in the matter.

The prosecution examined the victim (P.W. 1), her mother/complainant (P.W. 2), panch witnesses and police authorities as their witnesses. The prosecution did not examine the doctor who conducted medical examination of the victim or any other doctor. Likewise, younger brother of the victim and the three ladies named above, in whose presence the victim was allegedly taken by the accused to his house, are also not examined.

The learned Special Court has recorded that the prosecution failed to examine the neighbours who had allegedly seen the accused carrying the victim towards his residential house and also did not examine younger brother of the victim, who was allegedly playing with her while she was dragged by the accused to his residence. It is recorded that non-examination of the said witnesses is fatal to the prosecution case. The learned Special Judge has recorded that according to the victim, she did not narrate the alleged incident to her mother, however, on the next day, while bathing her, the mother found bite marks on her breast and, upon inquiry being made with respect to the same, the victim divulged her ordeal to the mother. The learned Special Court has recorded that as against this, the mother, who is the complainant stated that while she had been to the house of accused, the victim was weeping on the cot, although she did not tell anything about the alleged incident at that time and only after returning home, she narrated the entire incident to her. The learned Special Court has found the version of victim and her mother to be mutually inconsistent. The learned Special Court also noticed that in the report, the mother did not mention that she had been to the house of accused and found that the victim was weeping.

These inconsistencies have been taken into consideration by the learned Special Court in arriving at a conclusion that the alleged incident could not be proved, particularly, since the doctor, who has conducted medical examination was not examined. The learned Special Court has also taken into consideration the Chemical Analyser’s Report at Exhibit 58, which pertains to the clothes of the victim (her frock and underwear) as well as underwear of the accused. The report indicates that there were no blood or semen stains on clothes of either the victim or the accused. The learned Special Court has recorded that the case of prosecution that the blood oozing from private part of the victim was wiped by her using her frock is, therefore, not established. The learned Special Court has also recorded that relations between the family of the victim and accused were strained due to municipal elections. Reference is made to cross-examination of the victim, where admissions are elicited in relation to scuffle between her father and family members of the accused prior to municipal elections.

We have perused the judgment delivered by the learned Special Court, as also, the depositions of witnesses along with the exhibited documents, with the able assistance of the learned APP and learned advocate for the respondent.

The learned APP would contend that there is sufficient evidence on record, even in the absence of the deposition of doctor, to infer that the incident complained of had indeed occurred. The learned APP contends that the principle that sole testimony of the victim is enough to sustain a conviction under Section 376 of the IPC has not been properly considered by the learned Special Court. He also argues that, the version of minor victim is supported by the evidence of her mother and further that minor discrepancies in the evidence should not have weighed with the learned Special Court in acquitting the accused.

Per contra, learned Advocate for the respondent Mr. Bhuibhar supports the judgment contending that strong adverse inference needs to be drawn against the prosecution for not examining younger brother of the victim and the three neighbours in whose presence the victim was allegedly dragged by accused to his house. He further argues that even the doctor is not examined and, as such, the prosecution has failed to establish the alleged incident. Apart from this, the learned advocate contends that the learned Special Court has meticulously marshalled the evidence and has dealt with the material inconsistencies and inherent contradictions in the oral evidence and has rightly disbelieved the prosecution case, particularly having regard to the fact that there is past animosity between the family of the victim and the accused.

It is not in dispute that the doctor who has examined the victim is not examined as witness. The record indicates that summons were issued to the doctor, however, she did not remain present for recording her deposition. However, no further steps appear to have been taken to secure her presence, and ultimately, her deposition is not recorded.

According to the prosecution story, the victim was allegedly dragged from the portion in front of the shop of the accused to his residence in presence of victim’s younger brother and three ladies residing in neighbourhood. The prosecution has not examined the younger brother of the victim and the three ladies to prove the said fact.

The above aspect of non-examination of the said individuals needs to be viewed in the backdrop that according to the victim, she had narrated the incident to her mother on the same day, whereas the mother, who has lodged the complaint has stated that the victim narrated the incident to her on the next day, when the mother noticed bite marks on the victim’s breast while bathing her. According to the mother, when her son narrated that the victim was forcibly taken by the accused to his residence, she rushed to the residence of the accused and found that the victim was crying on the bed in the residential house of the accused.

It must also be stated that even if the evidence of the victim is ignored, the version of the mother itself has two separate versions regarding the victim narrating the incident to her. She has stated that the victim narrated the incident on the same day after she was brought back to her house from the house of the accused and the second version is that the victim narrated the incident on the next day when the bite marks on her breast were noticed while the mother was bathing her. It is surprising that the mother did not notice bloodstains on the frock of the victim at that time, since according to the prosecution’s case the victim had wiped the blood oozing from private part by the frock which she was wearing.

The contradiction in the versions of minor victim and mother is a material contradiction. Even if the version of victim, who has allegedly suffered the ordeal and was deposing at a very tender age is ignored, it is difficult to accept that the mother did not notice the bloodstains on the frock of her child. The mother has stated that she had been to the residential house of the accused and had reached the place where the cot was placed and found her daughter weeping on the cot. If the alleged incident had occurred and the blood from private parts was wiped by the victim by her frock, the mother would obviously notice it and it is also obvious that she would suspect the same foul play. It must be noted that Exhibit 58, which is the Chemical Analyser’s Report pertaining to clothes of the victim, does not indicate that her frock or underwear had bloodstains. As per the Chemical Analyser’s Report, semen stains were also not detected on the underwear of the accused. The evidence also points out to previous animosity between the families.

In the light of above, what transpires is that the version of the victim and her mother do not go hand in hand, the prosecution has not examined independent witnesses who were admittedly available to prove that the victim was forcibly taken by the accused to his house. The doctor is not examined to prove the medical papers; and there is evidence with respect to animosity between the families.

All these aspects have been properly taken into consideration by the learned Special Court in arriving at a conclusion that the prosecution has failed to establish the alleged incident. The judgment by the learned Special Court is a well reasoned judgment, which does not warrant any interference. In the result, Criminal Appeal is dismissed.