S.S. Shinde, J.@mdashThis Appeal is filed by the State, challenging the Judgment and Order of acquittal dated 30.08.1995 passed by the Sessions Judge, Ahmednagar in Sessions Case No. 177 of 1993, thereby acquitting the accused for the offences punishable under Section 376 of I.P. Code and under Section 3(i)(xi) and 3(2)(v) of Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989.
2. The case of the prosecution, in brief, is as under:
The complainant prosecutrix PW-2 Yenubai Shankar Jagtap belongs to Mahar caste, which is a Scheduled Caste, whereas the accused belongs to Maratha caste, which is neither a Scheduled Caste nor a Scheduled Tribe. Yenubai Shankar and her husband PW-5 Shankar Laxman maintain themselves by begging alms and singing Bhajans. They go to sing Bhajans on receiving invitations for the same. The accused is a resident of Parewadi village, which is situated near Pargaon where Yenubai and her husband used to reside. At the time of the incident, Yenubai and her husband were residing at Burudgaon in the garden land of one person named Kulat. About 1 1/2 years back, on Monday accused had gone to Burudgaon and had invited PW-2 Yenubai and her husband to sing Bhajans at his residence at Parewadi on the next day that is on Tuesday. Yenubai and her husband had accepted that invitation and had gone to the house of the accused at Parewadi on Tuesday. They were singing Bhajans upto 12 mid-night and had stayed at the house of the accused on that night. On the following day that is on Wednesday, the accused had to go to Ahmednagar for fetching fodder by a tempo and PW-5 had to bring his luggage from Burudgaon to Pargaon, and so he had also accompanied the accused. PW-5 Shankar, husband of Yenubai and the accused had left together for Ahmednagar in the morning of Wednesday but they had not returned home, that is to Parewadi on that day. It was on the following day that is on Thursday, the accused alone returned to his house at Parewadi at 6 p.m., and to the query made by PW-2 Yenubai he had replied that, her husband had gone to his brother''s house at Wakodi and that her husband had given her his ''Pancha'' [apparel]. That her husband had given her a message that, she should attend Bhajans at Mehakari Phata on Thursday night. Relying upon say of the accused on Thursday at 8 p.m., Yenubai had left Parewadi for singing Bhajan along with the accused. Both of them were proceeding on foot and on the way to Mehakari Phata, they had reached near a rivulet [Nalla]. The accused had then caught hold of her right hand near the elbow and she had told him to not to do so. The accused had then said that, he would rape her and after gagging her mouth with his cap, laying her on the ground the accused had raped her. The accused had then said that, she should get to his house with him, and PW-2 Yenubai had accordingly gone to his house at Parewadi but on reaching near the house, she had started shouting. Vatsalabai, the wife of the accused had then woken up, and had asked her as to what had happened, but without saying anything PW-2 Yenubai had left, and she had then gone to Pargaon. She reached near the village Chawdi at Pargaon at about 11 p.m. or 12 midnight, and had then called out her relations including PW-4 Vishwanath Rambhau and others. PW-2 Yenubai had then narrated this incident to PW-4 Vishwanath and other relations who had gathered there, and all of them had then gone to the house of the accused at Parewadi. They had brought the accused to the village Chawdi of Pargaon and had made him to sit there in the Chawdi on that night. However, at about 5 a.m. the accused under the pretext of going out for passing urine had fled from that place. PW-2 Yenubai had then gone to Ahmednagar Police Station and had lodged her complaint Exh.18. She was sent for medical examination. PW-1 Dr. Sonawane conducted the medical examination but found that, he was unable to give a definite opinion about the occurrence of rape as Yenubai Shankar was accustomed to sexual intercourse. Yenubai in the course of investigation of an offence that came to be registered on the basis of Exh.18, had taken the Police to the place of offence where her chappal was lying and where the beads of her necklace and broken pieces of her bangles were found scattered. These articles were attached under a panchnama. At the instance of Yenubai, the police had also gone to the house of the accused, and had seized the orange coloured pancha from the house under panchanama Exh.27. The police had also attached clothes, that is saree and blouse of Yenubai under panchanama Exh.23. On 12.04.1993, the accused was arrested and his clothes, that is shirt and Dhoti was attached under panchanama Exh.30. In the course of investigation, the Muddemal articles were sent to C.A. and a report of C.A. [Exh.36] was received showing that, there were 3 stains of human semen of blood group ''B'' on the saree [article No. 6] of PW-2 Yenubai. Soon after the investigation was complete, a charge sheet was sent to the Court of Sessions.
3. A charge at Exh.3 was then framed against the accused and he has pleaded not guilty to the same.
4. The defence of the accused was that, he has been falsely implicated by PW-2 Yenubai with the help of her relations as he was formerly cultivating the land of her relation PW-3 Uttam and there was a dispute over the same, and that he is innocent.
5. The learned Additional Public Prosecutor appearing for the State invited our attention to the evidence of prosecution witnesses and submits that, prosecution has led sufficient evidence on record so as to establish the offence punishable under Section 376 of I.P. Code, the evidence of prosecutrix is reliable and corroborated by the version of other prosecution witnesses. It is submitted that, the statement of the prosecutrix is truthful, inspires confidence, and therefore, said can form basis for conviction. It is submitted that, evidence of other witnesses coupled with C.A. Report has not been properly considered by the trial Court, therefore, the learned Additional Public Prosecutor submits that, appeal may be allowed.
6. The learned counsel appearing for the respondent i.e. original accused submits that, findings recorded by the trial Court are in consonance with the evidence brought on record, and therefore, this Court may not interfere in the acquittal order.
7. The learned counsel appearing for the respondent further submits that, in view of the evidence of PW-1 Dr. Popat Sonawane, occurrence of recent intercourse / rape not proved. It is further submitted that, no external injuries suggestive of force, much less rape found on the prosecutrix. It is further submitted that, C.A. report although shows semen stains of blood group ''B'' found on saree of prosecutrix, however, prosecution has failed to prove that, blood group of accused is ''B''. Blood group of husband PW-5, was also not proved.
8. It is further submitted that, evidence of PW-3 and PW-4 is hearsay evidence. PW-3 and PW-4 admittedly are related witnesses, in view of evidence of PW-2 prosecutrix. It is further submitted that, PW-3 is an interested witness as having enmity with accused over land dispute. It is further submitted that, spot panchanama and recovery panchanama was not proved as PW-6 and PW-7 panch witness to spot panchanama and recovery of ''pancha'' Exh.27 have turned hostile. It is further submitted that, PW-8 panch to clothes seizure panchanama of the accused, his testimony regarding blood on Dhoti of accused is inconsistent with C.A. report, as no blood was detected on Articles, Exh.3 and 4. It is further submitted that, evidence of PW-8 is inconsequential as, as per medical evidence, PW-2 - prosecutrix was accustomed to sexual intercourse and it is not prosecution''s case that hymen of PW-2 / prosecutrix was ruptured and also no evidence of external injury found on her. It is further submitted that, evidence of PW-9 Investigating Officer regarding seizure of pieces of bangles inconsistent with the testimony of PW-2 / prosecutrix. It is further submitted that, as per testimony of PW-2 prosecutrix she and her husband carried musical instruments with them when they went to the house of the accused for singing bhajan. However, allegedly while going from house of accused to sing bhajan at Mehekari, she did not carry musical instruments. Material improvement in testimony of PW-2 that, accused had told her that, she will get musical instruments at the place of singing bhajans. It is further submitted that, alleged incident took place near temple which admittedly was at a calls distance, yet neither the PW-2 - prosecutrix shouted during or after the incident. It is further submitted that, after incident PW-2 prosecutrix willfully accompanied accused back to village of accused. As per testimony of PW-2 prosecutrix, she started shouting after reaching house of accused. No eye witness much less independent eye witness examined to prove said act. It is further submitted that, PW-2 prosecutrix though aware of existence of Police Chowky at Kaudgaon, which was at an hour walking distance from Pargaon, yet she did not lodge First Information Report on the date of alleged incident. It is further submitted that, unexplained and inordinate delay in lodging the First Information Report. First Information Report admittedly lodged after due deliberation with relatives.
9. The learned counsel appearing for the respondent pressed into service exposition of the Hon''ble Supreme Court in the case of
10. We have carefully considered the submissions of the learned Additional Public Prosecutor and the learned counsel appearing for the respondent - accused, with their able assistance we have carefully perused the entire evidence so as to find out correctness of the findings recorded by the trial Court. PW-2 - prosecutrix, in her evidence in detailed narrated the alleged incident of the rape by the respondent accused on her in the intervening night of 8th April, 1993 to 9th April, 1993. In order to find out whether the allegations of the alleged rape by the prosecutrix corroborates with the medical evidence, it is necessary to refer the evidence of PW-1 Dr.Popat Ananda Sonawane. In his examination in chief, he stated that, since January, 1991, he is working as a Medical Officer attached to Civil Hospital, Ahmednagar. He further stated that, on 09.04.1993, he was working as a Casualty Medical Officer at the Civil Hospital from 8.00 a.m. to 8.00 p.m. On that day, at about 11.45 a.m. one Yenubai Shankar Jagtap was brought to the Civil Hospital by female Police Constable Pawar bearing B. No. 1722. Yenubai was sent under a Police Yadi. He had then examined her. Yenubai Shankar had then given history of rape on the earlier day at 8.00 p.m. He had then examined her and had found the following:
1] There was no external injury over labia majora and interrior aspect of both thighs.
2] Perspeculum examination the cervix and vagina were found to be healthy and no injury was seen.
3] Per vaginal examination it was found that uterous was retroverted and atrophic - admits two fingers easily.
11. He further stated in his opinion that, it was not possible to give a definite opinion about the occurrence of rape. As there was no sign of assault locally and no semen was found. He further stated that, he had taken the swab from posterior fornix and samples of pubic hair separately. The patient appeared to be 40 years of age. He further stated that, he issued certificate. Said certificate was shown to him. He identified his signature. In his cross examination, he stated that, the patient was accustomed to the sexual intercourse. If a person is forcibly thrown down on a rough ground, there would be abrasions. The abrasions would necessarily take place.
If the allegations of the prosecutrix of commission of rape by the respondent - accused are considered in the light of evidence of PW-1, it is crystal clear that, medical evidence lends no support at all to the theory of rape. The Trial Court has elaborately discussed about the evidence of PW-1 and PW-2 prosecutrix and held that, there is no corroboration to the evidence of prosecutrix from the medical evidence. Upon independent scrutiny of the medical evidence brought on record, we find that, the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such.
12. If the evidence of prosecutrix is considered in its entirety, she stated that, near the place of alleged incident, there is a temple of Shankar Bharati at a calls distance and number of priests stay in that temple. However, from reading evidence of the prosecutrix, it does not appear that, she has raised any shouts. On the contrary, her evidence shows that, after incident of rape was over, accused had told her to accompany her to his house, and she had so accompanied which again looks improbable if the story of rape on her, is to be believed.
13. The evidence of PW-3 is to the effect that, he woke up from the sleep on hearing the shouts and he then found that, Yenubai Shankar was shouting at about 11.30 p.m. or 12.00 midnight. He also stated in his evidence that, other persons were also sleeping outside their houses and had also got up and they had gathered there. However, it appears that, PW-3 and PW-4 are in relations with the prosecutrix and they are interested witnesses. The prosecution has not examined other persons, who also alleged to have heard prosecutrix shouts. The trial Court upon appreciation of evidence of these witnesses held that, those witnesses are interested witnesses. At the most evidence of PW-3 and PW-4 according to prosecution case is that, they heard prosecutrix''s shouts. However, neither they have seen nor witnessed actual incident. Perusal of the evidence of the prosecutrix, she stated that, the house of the accused is situated at a distance of half an hour walk from Pargaon where she had gone on the night of the incident and had woken up the persons, who were sleeping near the village Chawdi. Therefore, it also appears improbable that, by traveling half an hour distance after alleged incident of rape, she went to the Parewadi and on her shouts, persons were sleeping near Chawdi woke up.
14. Coming to the C.A. Report that, saree bore 3 semen stains and the semen was of thumb origin and of blood group ''B'', is of no use to the prosecution since the prosecution has not led any evidence to show that, the semen of the husband of prosecutrix namely Shankar Laxman [PW-5] is of any other blood group than blood group ''B'', nor the prosecution has led evidence to show that, the semen of the accused is of blood group ''B''.
15. Therefore, upon re-appreciation of the evidence, we are of the considered view that, the findings recorded by the Trial Court are in consonance with the evidence brought on record. There is no perversity as such, and therefore, the impugned order of acquittal deserves no interference. The view taken by the trial Court is possible view, hence Appeal is devoid of any merits, and hence, same stands dismissed.
