V.R. Kingaonkar, J.@mdashChallenge in this appeal is to Judgment of learned Additional Sessions Judge, Shrirampur, in Sessions Case No.22 of 2005. By the impugned Judgment, appellant is convicted for offence punishable u/s 376 of the I.P.C. and sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay fine of Rs.5,000/- (Rs. Five thousand) in default, to suffer rigorous imprisonment for 1 (one) year.
2. The prosecutrix is a married woman. The appellant is maternal cousin of her husband. The prosecutrix resides with her husband and in-laws in a common house at village Tambewadi (Mandve). The incident giving rise to the prosecution occurred on 16th January 2005 at about 2.00 p.m. The prosecutrix - Adika was alone in the house. Her husband had gone to a nearby village. Her in-laws and other members of the family had gone out of station to attend a marriage.
3. The prosecution case is that at about 2.00 p.m., the appellant entered house of the prosecutrix. He latched the entrance door. The prosecutrix was then cutting leaves and plumes of sugarcane for grazing cows. She asked him as to why he closed the door and latched it. She tried to open the door. He firmly caught hold of her both the hands. She loudly shouted in name of aunt, by name, Duma-akka. The appellant threatened to kill her on her shouting anymore. He took her to the bed and put her on the mattress. He pressed her mouth by one hand. He thereafter furled her saree upwards, pushed the nicker down, got removed chain of his pant and thereafter ravished her. He threatened her that she would be killed if she would disclose the incident to anyone else.
4. The prosecutrix narrated the incident to her husband when he returned home in the evening. The in-laws were informed about the incident at about 10.00 p.m. when they returned home after attending a marriage at outstation. She and her husband approached Loni Police Station in the same night. Her report was reduced into writing. She was referred for clinical examination to Rural Hospital, Loni. The Medical Officer collected sample of nails, blood and pubic hair and also collected vaginal swab. Her nicker and petticoat were seized by the Police under a panchnama. A spot panchnama was drawn at the residential house. The appellant was arrested. After certain further investigation, he was charge-sheeted for committing offence of rape.
5. A charge (Exh.4) was framed and duly explained to the appellant. The appellant pleaded not guilty to the charge. The appellant denied that he committed forcible sexual intercourse with the prosecutrix by putting her to fear of death. His defence was of her consent. According to him, she gave him signal and invited to her house in the relevant noon. He had developed sexual relationship with her. He admits to have committed sexual intercourse with her in the relevant noon. However, he asserted that it was with her consent that the sexual intercourse was committed and there was no element of threat given. Hence, he urged to acquit him of the charge.
6. At the trial, the prosecution examined in all 7 (seven) witnesses including the prosecutrix, in support of its case. The learned Additional Sessions Judge came to the conclusion that the prosecutrix was put under fear of death and the sexual intercourse was committed by the appellant without her consent. The learned Additional Sessions Judge dislodged the defence of consent of the prosecutrix and, therefore, held that the charge is proved against the appellant. He was accordingly convicted and sentenced as stated at the outset.
7. Mr. Chatterji would submit that the defence of consensual sexual intercourse is duly proved in view of circumstances and conduct of the prosecutrix. He invited my attention to the fact that the prosecutrix was armed with axe while she was cutting leaves and plumes of sugarcane stumps. He pointed out that the appellant was on visiting terms to the house of the prosecutrix. He argued that the incident was blown out of proportion only because the appellant was seen coming out of the house of the prosecutrix by PW-2-Machindra. It is argued that because the sexual relationship could be exposed, the appellant has been falsely framed in the alleged crime of rape. As against this, learned A.P.P. Mrs. Khekale supports the impugned Judgment.
8. Before I proceed to scrutinise the evidence, some admitted facts may be emphasised. The rough sketch of the spot of incident (Exh.45) reveals that entrance door of the house of the prosecutrix is in West-South corner. The incident occurred in the Southern room. There is another room on Northern side of the house. On the Northern side, there is a house of one Paraji Dhone. There are houses of Anna Dhone and Sakharam Dhone in the proximity of the house of the prosecutrix. The prosecutrix was pregnant of about six months at the relevant time. She was alone in the house during the relevant noon. The door of the house was open when the appellant entered. The appellant is maternal cousin of her husband and hence, she was knowing him. It has come on record that he frequently used to visit her house. The bold defence of the appellant is that since before the incident, he had developed affair with her. The fact that he committed sexual intercourse with her in the relevant noon is undisputed. Obviously, the evidence regarding recovery of her nicker, petticoat, sample of pubic hair etc. would be of no much significance. The testimony of the prosecutrix and the attending circumstances would be of vital importance to determine the question of complicity.
9. It is in the above backdrop that the medical evidence tendered by PW-3-Dr.Chandarani may be first looked into. Her evidence purports to show that the prosecutrix was clinically examined on 17.1.2005 at about 10.00 a.m. She noticed slight valva oedema on labia majora of the prosecutrix. The testimony of PW-Dr. Chandarani corroborates recitals of the medical certificate (Exh.No.25). The testimony of PW-Dr. Chandarani reveals that no definite opinion regarding allegation of rape could be given. She noticed that the prosecutrix was habituated to sexual intercourse and was pregnant with six months omeniorative. No external injury was found on person of the prosecutrix. Dr. Chandarani opined:
Exactly it cannot be said that the rape had occurred.
As per the opinion expressed on the medical certificate, she admits that there was no injury on labia minora. She admits, unequivocally, that the signs are possible in case of intercourse by consent. No secretion was found. Needless to say, no external injury or any other injury was found on person of the prosecutrix to hold that she had put up resistance during course of the incident. The medical opinion of PW-Dr. Chandarani is of no much avail to the prosecution.
10. There is also medical evidence tendered by PW-4-Dr.Rajendra. He examined the appellant on the next day of the alleged incident i.e. 17.1.2005 at Rural Hospital, Loni. He corroborates recitals of the medical certificate (Exh.28). His version reveals that no external injury was found on person of the appellant. He admits that if forcible sexual intercourse (rape) is committed on a pregnant woman then it causes injuries to her. The pregnant woman cannot be easily made to lie down on a mattress when the bulge of the belly is such that bending without difficulty is rather unusual.
11. Coming to the version of PW-2-Machindra, it can be said that he attended the panchnama (Exh.20), prepared at the time of arresting the appellant. In his presence, an underwear, a white pant and a baniyan of the appellant were attached by the Police. He is brother-in-law of the husband of the prosecutrix. His version reveals that the prosecutrix was carrying pregnancy of six months at the relevant time. He states that on 16.1.2005, he returned home at about 12.30 p.m., took lunch and went to a house of Carpenter for some work. His version reveals that since the Carpenter was not at the place of workshop, he proceeded back home via house of the prosecutrix. He states that he saw the appellant coming out of house of the prosecutrix at about 2.15 p.m. The appellant had left the place in his presence. In the relevant evening, husband of the prosecutrix came to him and narrated that the prosecutrix was raped by the appellant. His cross-examination would show that husband of the prosecutrix had an engagement with cousin of wife of the appellant but that engagement had broken. He admits that on day of the incident, when he saw the appellant coming out of the Southern side door of the house of the prosecutrix, she was alone inside the house and other family members had gone out of station. He denied the suggestion that the prosecutrix saw him and got closed the door. He also denied the suggestion that when husband of the prosecutrix returned to the village, then he informed that he had seen the appellant coming out of the house and expressed suspicion that the appellant might have illicit relations with the prosecutrix. It is an admitted fact that PW-Machindra accompanied husband of the prosecutrix to house of the latter. His Police statement reveals that he had often noticed that the appellant used to visit house of the prosecutrix.
12. The version of PW-Machindra would establish the fact that the appellant used to frequently visit house of the prosecutrix. The fact that PW-Machindra saw the appellant while coming out of the house of the prosecutrix when she was alone in the house, is also significant. For, PW-Machindra had the knowledge that all her family members had gone out of station on that day. He is close relative of her husband being the brother-in-law. In a small village the visit of a young man like the appellant to house of the lonely married woman could not have been kept as a secret by PW-Machindra. This is a glaring fact, which one cannot overlook while appreciating the evidence of the prosecutrix. Added to this, the medical opinion also does not show any sign of forcible sexual intercourse.
13. This takes me to scrutinise evidence of PW-5 Sou. Adika (prosecutrix). Her testimony reveals that about 10 (ten) months prior she married PW-6-Shivaji Dhone. They used to reside in the common house with his parents and brother. She states that the appellant is son of paternal aunt of her husband-PW-Shivaji. Her evidence reveals that the appellant used to visit her house being relative of her husband and, therefore, she knew him. Her testimony purports to show that her in-laws, nephew and brother-in-law had gone to attend a marriage ceremony at outstation. They had left the village at about 10.00 a.m. on the same day. At about mid-day, her husband left the house to attend a fair at village Khamba-Warwandi. Her evidence reveals that the appellant saw her husband leaving the house at about 12.00 noon. Her evidence further shows that at about 2.00 p.m., while she was engaged in cutting leaves and plumes of sugarcane for grazing cows, the appellant came to her house. He latched the door from inside. As he latched the door from inside, she got up and asked him why the door was closed. She attempted to open the door but the appellant held her by both the hands. She narrated as to how she was put on a cot and was ravished. Her version purports to show that in the evening, she narrated the incident to her husband. She corroborated recitals of the F.I.R.(Exh.34). She states that she loudly called a neighbour by name, Duma-akka (Dumabai Shinde) but then the appellant threatened to kill if she would shout anymore. Her cross-examination reveals that the appellant might have visited her house 20/25 times during the relevant period. She admits that there are houses of Satwaji Kolse, Vishwanath Waditke, Machindra Ainor, Babasaheb Paraji Dhone and others in the proximity of her house. She further admits that she was cutting sugarcane plumes and stumps with help of axe. She is educated upto 6th Standard. There is a bore-well and hand-pump in the proximity of a water tank, situated on Northern side of her house. She admits that Sakharam Dhone is uncle of her husband and resides in the neighbourhood. The house of Duma-akka (Dumabai Shinde) is on the Western side of her house. She admits that she did not raise any hue and cry after the appellant had left her house. She made no attempt to resist the appellant though both her hands were free. Her nails were grown up yet she did not resist by scratching on his face.
14. Clinching question is as to whether the appellant had put the prosecutrix to fear of death and, therefore, she meekly surrendered for the sexual intercourse. Except her bald version, there is nothing on record to show that he threatened her to kill if she would shout for help. One cannot be oblivious of the fact that she was armed with an axe when the appellant latched the door from inside. He was unarmed. Obviously, after raising the axe, she could have shouted for help. She kept aside the axe when he entered the house. She did not shout for help when he was leaving alone. There was no substantial reason for her to believe that the appellant would kill her, particularly when he was unarmed. It is probable that PW-Machindra saw the appellant while leaving the house and the prosecutrix too saw this from her house. It is probable that she reasonably apprehended that PW-Machindra would disclose the fact to her husband that the appellant had visited her house in the noon and hence, the story of the sexual intercourse under threats given by the appellant was prepared. It need not be reiterated that not only that there was absence of any mark of violence on her person but as per medical opinion of PW-Dr.Rajendra, forcible intercourse amounting to rape on a pregnant woman causes injury to her. It is in the background of absence of any injury found on her person and the attending circumstances that the defence raised by the appellant seems to be probable.
15. The testimony of PW-6-Shivaji reveals that on the day of incident, the appellant met him at some distance from the house around mid-day. He states that the appellant enquired with him as to where he was going and then he informed the appellant that he was going to attend a fair at village Khamba-Warwandi. His version reveals that when he returned home at about 6.00 p.m., the prosecutrix was weeping. She narrated to him that the appellant had visited the house at about 2.00 p.m. and ravished her. She also told him that the appellant threatened that she would be killed if she would disclose the incident to anyone. He states that sometimes the appellant used to visit his house. He denied the suggestion that PW-Machindra told him that character of the prosecutrix was not good and she had relations with the appellant. He states that sugarcane stumps were in the Southern side room near the cot where the incident allegedly took place. The version of PW-1 Gangadhar and PW-7-A.P.I.Prakash relate to steps taken during the course of investigation. The clothes of the prosecutrix were seized under a panchnama (Exh.17). It is admitted by PW-A.S.I. Prakash that no injury was found on person of appellant at the time of his arrest. The remaining evidence of the prosecution is of no much significance.
16. Mr. Chatterji seeks to rely on
Moreover, her statement in the course of investigation that on earlier occasions she had been paid Rs.50/- by the appellant and that she had tea with them on the day of occurrence as well, creates a serious doubt about the truthfulness of the version of the prosecutrix and we find it unsafe to rely upon her testimony to convict the appellant. Not only this, the case of the prosecution even otherwise does not appear to be credible and it appears that the father of the prosecutrix, P.W.2 on discovering that the prosecutrix was involved with the appellant, after due deliberations, lodged a report implicating the appellant.
17. There cannot be duality of opinion that conviction can be based on sole testimony of the prosecutrix. Her testimony has to be normally accepted without corroboration. For, ordinarily, a married woman has no reason to falsely implicate accused after scathing her own prestige and honour. Still, however, conduct of the prosecutrix and the attending circumstances ought to be given due importance. The accused is not required to prove his defence upto the hilt. It suffices if the defence is probabalised by him from the circumstances and conduct of the prosecutrix. The prosecutrix did not resist notwithstanding the fact that she was armed with an axe. Throughout the day she did not disclose the incident to anyone of close relative in the village. She was aware that the appellant was unarmed yet she did not offer any resistance to him.
18. Considering the totality of the circumstances and the evidence on record, I have no hesitation in holding that the appellant has probabalised his defence of consensual sexual intercourse with the prosecutrix in the relevant noon. In any case, he deserves benefit of reasonable doubt in view of the medical evidence, attending circumstances, conduct of the prosecutrix and probability that disclosure by PW-Machindra gave rise to the alleged story of sexual intercourse under fear of death. The impugned Judgment is, therefore, unsustainable.
19. In the result, the appeal is allowed. The impugned Judgment of conviction and sentence, for offence punishable u/s 376 of the I.P.C. is set aside. The appellant be set free, if not required in any other matter. The fine paid, if any, be refunded to him.
