Oral Judgment:
The applicant/appellant is convicted of the offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of rupees five hundred in default to suffer further rigorous imprisonment for one month. The appellant is accused of having committed rape on his own daughter viz. Madhuri Kamble. The appellant was staying with his wife, three daughters and a son at village Kotamba, Tahsil: Seloo, District : Wardha.
2. The victim/ prosecutrix was studying in 10th standard in the year 2009. The appellant had sexual intercourse with her on numerous occasions. The first ever occurrence had taken place in the month of October, 2009 when the appellant had taken her daughter to a place called 'Mahakali'. It is alleged that he had committed sexual intercourse with his daughter forcibly without her consent on the way to Mahakali. Thereafter he continued to indulge into occassional sexual intercourse with his daughter at home also. This fact was known to wife of the appellant and she had scolded the appellant on many occasions due to his unacceptable conduct. It is alleged that once he had forcible sexual intercourse with his daughter during night time also when she was sleeping with her grandmother. The appellant had allegedly lifted her from the place she was sleeping and had sexual intercourse with her. Ultimately, the matter was reported to police. The complainant was sent for medical examination. The Medical Officer reported that hymen was found ruptured and her vagina admitted two fingers easily. It was the opinion of the Medical Officer that the complainant was used to sexual intercourse. On completion of investigation chargesheet was filed in the Court of Magistrate and was later on committed to Sessions Court.
3. Charge was framed against the appellant for the offence punishable under Section 376 of the Indian Penal Code. He pleaded not guilty to the charge and claimed to be tried. His defence was that his daughter was of easy virtue and she had illicit relations with one Mr.Bhasme. The appellant did not like the illicit relations of his daughter with Bhasme. Wife of the appellant was, however, supporting their daughter. Therefore, there was difference of opinion between the appellant on one hand and daughter and mother on the other hand. It is also the case of the appellant that he was attempted to be killed by his wife and daughter and therefore, he was cooking for himself separately in the same premises. He was not eating the food cooked by his wife and daughter.
4. The prosecution had examined in all three witnesses in support of its case. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure.
5. P.W. 1 is complainant herself. P.W. 2 is her mother. The whole case of the prosecution was based on the evidence of P.W. Nos.1 and 2. P.W. 1 has stated in her evidence that the appellant had sexual intercourse with her against her will on many occasions. She had narrated the incident when she was subjected to sexual intercourse by the appellant on their way to the place known as Mahakali. She has also narrated the incident when she was lifted and was taken away from her grandmother and was subjected to sexual intercourse.
6. P.W. 2 has supported the evidence of P.W. 1. P.W. 2 has stated that P.W. 1 had narrated the incident to her and that there was a quarrel between P.W. 2 and the appellant. It is stated by P.W. 2 that the appellant had apologized for the alleged behaviour on his part and had requested P.W. 2 that she should not disclose this to the son of the appellant and P.W. 2.
7. After having gone through the evidence, the prime question which arises for determination is that as to whether the evidence of P.W. 1 could be believed that the appellant had sexual intercourse with her without her consent. In the first place, it is to be noted here that it is difficult to believe that P.W. 2 would tolerate such a behaviour on the part of the appellant. It is also difficult to accept that P.W. 2 would be satisfied with scolding the appellant despite the appellant committing repeated sexual intercourse with their daughter. In ordinary course, this is not acceptable. However, it is not uncommon that father or the person incharge of a female child are found sexually abusing the child in their custody. One can understand the hesitation on the part of the victim. However, it is difficult to understand as to why P.W. 2 should tolerate such a behaviour on the part of the appellant. On this count itself the evidence of P.W. 1 and 2 creates a reasonable doubt regarding genuineness of prosecution case. I have taken note of the fact that the grandmother of P.W. 1 and mother of the appellant was systematically kept away from the investigation and the trial. If the victim was once taken away from the grandmother and was subjected to sexual intercourse in the same premises, which is quite small, the grandmother would have been the best witness in support of the prosecution case. Grandmother of P.W. 1 would not have tolerated such a conduct on the part of her son.
8. Therefore, the evidence of P.W. Nos.1 and 2 has to be examined keeping in view the statement of the appellant under Section 313 of the Code of Criminal Procedure. The appellant has stated that P.W. 1 had illicit relations with one Bhasme which the appellant did not like. The appellant had also stated that P.W. Nos.1 and 2 had attempted to kill him and therefore, he started cooking separately. If the evidence of P.W. Nos.1 and 2 is examined in the light of statement of the appellant, there appears to be possibility of fabrication of the case by P.W. Nos.1 and 2 against the appellant. It is the submission made on behalf of the appellant that P.W. Nos.1 and 2 wanted the appellant to be away from them so that they can freely indulge into the activities which the appellant did not approve. The submission appears to have some substance inasmuch as the appellant in his statement under Section 313 of the Code of Criminal Procedure itself has stated that an attempt was made to kill him. Though, there is no evidence except the statement of the appellant that there was an attempt to eliminate him, the statement made by the appellant before the Court in the light of evidence of witnesses is sufficient to accept the contention of the appellant. The appellant was not under obligation to prove his case beyond all reasonable doubts. He was also not under obligation to put himself into witness box. It was sufficient if the appellant succeeded in probabilising his case on the basis of evidence of witnesses and his own statement. If the case put-forth by the appellant appeared to be probable, it deserved to be given due weight.
In the present case, after having carefully examined the evidence I have come to a conclusion that there was strong possibility of P.W. 1 having illicit relations with the person named by the appellant. The medical report indicates that she was used to sexual intercourse. In view of the fact that the appellant's case is found to be probable and it gets support from the medical evidence, the safer course open to the trial Court was to acquit the appellant. It was too risky to convict the appellant for such a serious charge on the basis of bare statement of P.W. 1. In view of the allegations made by the appellant, the judgment of the learned trial Court, therefore, cannot be sustained. The appeal needs to be allowed. Hence, I pass the following order.
9. The appeal is allowed. The judgment and order dated 20th June, 2011 in Sessions Case No.22/2011 passed by the learned Sessions Judge, Wardha, is set aside. The appellant is acquitted of the offence punishable under Section 376 of the Indian Penal Code. He shall be released from the prison forthwith, if not required in any other case. Fine, if paid by the appellant, shall be refunded to him.