State Of Maharashtra vs Shuddhodhan Kisanrao Sakhare & Ors.

(PER : ROHIT W. JOSHI, J.)

The State of Maharashtra has filed the present appeal in order to challenge the judgment and order dated 11/07/2008, passed by the learned 4^th Ad hoc Additional Sessions Judge, Amravati in Sessions Case No.29/2005, thereby acquitting the present respondents, who are accused in the said sessions case of the offence punishable under Section 376 (2) (g) of the Indian Penal Code (IPC). It will be pertinent to state that apart from the four accused persons, there was one other person involved in the offence. However, he being a minor, his case was proceeded separately in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. Apart from the present appeal, the prosecutrix has also filed Criminal Revision Application No.218/2008, challenging the aforesaid judgment and order. The revision was admitted and ordered to be heard with the present appeal vide order dated 12/08/2009.

The prosecutrix had lodged report with Police Station Chandur Railway on 13/11/2004 at around 12:10 a.m. that the present accused persons had committed forcible intercourse with her on 12/04/2004 between 6:00 p.m. to 8:00 p.m. near railway bye-pass on Kalamgaon to Chandur Railway road. It is the case of the prosecution that on 12/11/2004 at about 5:00 p.m. Sunil Wasnik, brother of the prosecutrix visited her house and informed her that her husband was not feeling well and that he had received a call informing that he is admitted in hospital at Chandur Railway and accordingly the prosecutrix and her brother left for Chandur Railway on a moped belonging to her brother. It is stated that the said vehicle broke down at Kalamgaon and therefore, the prosecutrix, as advised by her brother proceeded alone to Chandur Railway by an autorikshaw. The prosecutrix was seated on the backseat in the autorikshaw. It is stated that three other persons were sitting on the backseat and driver and one another person were sitting on driver seat. The prosecutrix has alleged that two of the persons who were sitting along with her on backseat were misbehaving with her, one of them was touching her cheeks and breasts and other was moving his hands around her thigh. She has stated that when the autorikshaw came near Shelu, it was stopped and the prosecutrix was taken to nearby agricultural land where all five occupants of the autorikshaw committed forcible sexual intercourse with her. She has stated that fearing for her life, she did not shout or raise any alarm. It is stated that when she reached the hospital by autorikshaw her brother was waiting for her and on a query made by the brother for the delay, the persons occupying the autorikshaw, stated that there was quarrel, which resulted in the delay. The prosecutrix has stated that initially she did not disclose about the incident to her brother but later on she shared the ordeal with him.

In this backdrop, the First Information Report (FIR) came to be registered in the midnight i.e. night intervening 12/04/2004 and 13/04/2004 at 12:10 a.m. The prosecutrix, who has lodged the report, has named all five accused persons in the report. According to the prosecution case, the brother of the prosecutrix knew the persons, who were occupying the autorikshaw and accordingly the names were mentioned in the report.

The prosecution has examined the prosecutrix as PW-1, her brother as PW-2, panch-witnesses of spot inspection as PW-3 and PW-4, panch-witness for seizure of bed-sheet on which rape stated to be committed as PW-5, the Doctor, who has conducted medical examination of the prosecutrix as PW-6 and the Investigating Officer as PW-7.

The learned Sessions Court has acquitted the accused observing that there was no evidence to establish that the husband of the prosecutrix was hospitalized at Chandur Railway, which was the purpose for her to travel to Chandur Railway; although the accused persons were not known to the prosecutrix, test identification parade was not conducted; there were no injuries on the private parts, buttocks, back etc. of the prosecutrix; medical evidence including the testimony of Doctor did not support the prosecution case of gang rape, the bed-sheet and a chit, on which the brother of prosecutrix had recorded number of autorikshaw were confiscated from the police station and panch-witnesses of spot panchanama did not support the prosecution case; as per Chemical Analyzer’s report there were no semen stains on bed-sheet, petticoat or underwear of the prosecutrix although she had stated that she had wiped the semen with the petticoat and that the general conduct of prosecutrix of not raising hue and cry when the accused persons were allegedly misbehaving her in the autorikshaw, created a doubt about the case set up by the prosecution.

Learned Additional Public Prosecutor for the appellant/State vehemently argues that the learned Sessions Court ought to have appreciated that sole testimony of the prosecutrix is sufficient to hold the accused persons guilty, if the evidence of prosecutrix inspires confidence. The learned Additional Public Prosecutor states that the prosecutrix had immediately within a period of around four hours from the time of incident, lodged a report with the Police Station. He argues that the learned Sessions Court ought to have accepted the explanation of the prosecutrix for not raising hue and cry since she was travelling alone with five accused persons and feared for her life. The learned Additional Public Prosecutor draws attention to the evidence of the Doctor and contends that the evidence clearly establishes that there was redness in the perineal area of the prosecutrix, which suggested that she was subjected to forcible sexual intercourse.

Per contra, learned Advocate for the respondents/accused supports the reasons recorded by the learned Sessions Court. He contends that the road on which autorikshaw was being allegedly plied is a busy road and as such the prosecutrix could have raised a hue and cry. He contends that the conduct of the prosecutrix is most unnatural and unbelievable. He further argues that it is inconceivable that although the forcible intercourse is stated to have been committed in a field, there are no injury marks on the back or buttocks of the prosecutrix. Likewise, he contends that the medical evidence also does not support the prosecution case of gang rape. It is also argued that the case appears to be one of false implication since according to PW – 5 the bed-sheet and the chit on which number was recorded by the brother of accused were shown to be recovered at the Police Station itself. The said bed-sheet is marked as Exh.4 in the Chemical Analyzer’s report. Perusal of the Chemical Analyzer’s report will indicate that there are no semen stains or blood stains on the said bed-sheet on which the alleged act is stated to have been committed. The learned Advocate contends that the learned Sessions Court has meticulously marshalled the entire evidence on record and has arrived at a just conclusion, which does not warrant any interference.

With the able assistance of both the learned Advocates, I have perused the judgment delivered by the learned Sessions Court along with the testimonies of witnesses and other exhibited documents. At the outset, it must be stated that perusal of the complaint and FIR will demonstrate that according to the prosecutrix she had wiped the semen with her petticoat after the incident occurred. The petticoat is seized by the prosecution. Perusal of the Chemical Analyzer’s report at Exh.41 indicates that there are no stains of semen either on the petticoat or on the underwear of the prosecutrix. The bed-sheet on which the prosecutrix was forced to lie while alleged act was committed also does not have any stains of semen. The Chemical Analyzer’s report will further indicate that except for two exhibits i.e. Exh.30 and 34 in the said report, clothes of other accused persons also do not have any semen stains. The learned Sessions Court has also recorded that even with respect to these two clothes at Exh.30 and 34, there is no evidence to suggest that semen stains are of the accused person.

It will not be appropriate to refer to the evidence of Doctor (PW-6). She has stated that the prosecutrix was brought for medical examination at Rural Hospital, Chandur Railway at around 1:45 p.m. on the next date i.e. 13/11/2004. According to her evidence, except for slight redness in the perineal region of the prosecutrix, no external injuries were noted on her person. In her cross-examination, she has stated that if 3 to 4 persons commit rape on a lady, then there will be injuries on her labia major and minora. She has also admitted that there can be several reasons for redness on the perineal region.

Perusal of her examination-in-chief and the report at Exh.88, which is proved by her, indicates that the prosecutrix was referred to District Women’s Hospital, Amravati for further examination. The medical report dated 15/11/2004 by the Women’s Hospital, Amavati is an admitted document. It is marked as Exh.80. It is stated in the said certificate that since the prosecutrix had 20 years of married life and had delivered three children, definite opinion as regards rape could not be given on her physical examination. It is, however, recorded that no external injuries were recorded on the person of the prosecutrix. The medical evidence does not support the case of forcible sexual intercourse.

The observation in the medical report with respect to redness in the perineal region does not support the case of rape. perineal is the region between anus and vagina. Redness in this region cannot lead to inference of rape. The Doctor has also stated that there can be several reasons of redness in perineal region.

It will also be pertinent to state that the physical examination of the accused persons, who were arrested on the next date, does not indicate any injuries on their person, such as, the scratch-marks on their back or other body part from which resistance on the part of the prosecutrix can be inferred. As recorded above, the cloths of the accused persons seized also do not bear any semen stains or blood stains. Two clothes on which semen stains are found also do not lead the prosecution any further for the reason that the Chemical Analyzer’s report does not establish that the said semen stains were of semen of any of the accused persons and also because the seizure panchanama is liable to be discarded, in view of evidence of panch witnesses.

It must also be stated that according to the brother of prosecutrix the persons sitting in the autorikshaw were known to him. Yet as per chit at Exh.71, which is stated to be scribed by him, he has recorded the RTO registration number of the autorikshaw and name ‘Laxmi’ on the chit. As per note at Exh.71 the said chit is seized from the brother of prosecutrix. However, according to PW-5, the panch-witness for seizure of the said chit, the same was seized from the prosecutrix. Perusal of the evidence of PW-5 will indicate that the bed-sheet and the chit were kept in the Police Station when he had been to the Police Station. He admitted that the prosecutrix and her brother were known to him and that when he visited the Police Station, the Police Authority had shown him bed-sheet and the chit and obtained his signature on the panchanama. He, however, stated that the panchanama was drawn in his presence. The evidence with respect to seizure of the bed-sheet also does not inspire confidence.

It is also interesting to note that as per version of prosecution, the bed-sheet in question is seized from the prosecutrix. This is the bed-sheet that was spread on the ground and the act of forcible intercourse was committed while the prosecutrix was lying on this bed-sheet. It is difficult to accept that the prosecutrix was not custodian of the said bed-sheet.

Perusal of evidence of PW-3 and PW-4 will demonstrate that they did not support the case of prosecution with respect to spot panchanama, seizure of clothes of prosecutrix and seizure of autorikshaw. The said witnesses were declared hostile and the Public Prosecutor conducted their cross-examination. However, nothing worthwhile could be elicited in their cross-examination to support the case of prosecution. Since the seizure is not proved, the Chemical Analyzer’s Report, which even otherwise does not support the case of prosecution since semen stains are not found either on the petticoat or on the underwear of prosecutrix, the observations with respect to existence of blood stains on the petticoat and underwear of the prosecutrix will also not be helpful to the prosecution.

It must also be stated that according to the prosecutrix the accused persons were not known to her. They were known to her brother. In order to bring the charge, the prosecution ought to have conducted test identification parade of the accused persons, which is not conducted. The learned Sessions Court has rightly held that it was necessary to conduct the test identification parade of the accused persons in the facts of the present case where the accused persons were not known to the prosecutrix.

It must also be stated that all five accused persons have named in the FIR itself although according to the prosecutrix the accused persons were not known to her. It is, however, stated that the accused person were known to her brother who was with her while she got into the autorikshaw. It is unnatural that although all the occupants of the autorikshaw including the driver of the autorikshaw were known to the brother of the prosecutrix, he recorded the registration number of the autorikshaw on a chit. It is also unnatural that the bed-sheet on which the prosecutrix was forced to lie while committing rape is seized from her custody.

The conduct of the prosecutrix in maintaining silence while the two occupants in the autorikshaw were allegedly misbehaving with her also discredits the case of prosecution. As per the version of prosecutrix, the said two persons were misbehaving with her while the autorikshaw was being plied on the road. There is no reason for not raising hue and cry to seek help when the prosecutrix was being misbehaved.

In view of the discussion above, this Court concurs with the view taken by the learned Sessions Court that the medical evidence does not establish the case of forcible sexual intercourse, the conduct of the prosecutrix not raising hue and cry while she was travelling in the autorikshaw and the accused persons were misbehaving with her does not inspire confidence. It is strange that although the rape is stated to be committed in an agricultural field, there are no injuries on the rear portion of the person of prosecutrix. Despite gang rape by five individuals there are no injuries on her private part. There appears to be no injuries on the person of the persons, who have allegedly committed gang rape which in the natural course of events would appear on account of resistance.

In view of the above, Criminal Appeal deserves to be dismissed and is dismissed accordingly.