Oral Judgment:
1. The appellants have been convicted of the offence punishable under Section 376(2)(g) of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.500/- each. They are also convicted of the offence punishable under Section 354 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for one year each and to pay a fine of Rs.500/- each. Appellant No.1 Subhash Ambhore has also been convicted for the offence punishable under Section 506 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.100/-. The victim of the offence of gang rape was P.W.1-Usha Lokhande and victim of the offence punishable under Section 354 of the Indian Penal Code was her friend P.W.2-Rekha Thakare. P.W.1 and P.W.2 both are residents of village Koldara, Tahsil-Malegaon, District-Washim. Both the appellants are also residents of the same village. As such the victims and the appellants were known to each other.
2. The incident in question had occurred during Ganpati Festival. There was a big festival in front of Samaj Mandir situated at village Koldara. On the date of incident i.e. on 12-9-2008 a Hindi movie was being screened on a big television screen. P.W.1 and P.W.2 both had gone to see the movie. They were enjoying festival at Samaj Mandir upto midnight. Suddenly there was discontinuation of electricity supply. P.W.1 and P.W.2, therefore, decided to return home. It is alleged that while P.W.1 and P.W.2 were returning home and were passing in front of house of one Shivram Shende, two juveniles in conflict with law namely Satish and Vinod gagged mouth of P.W.1 by means of handkerchief and lifted her. The appellants lifted P.W.2. Both the girls were taken to nearby cattle pond. P.W.2 anyhow could relieve herself from the clutches of the appellants and the juveniles in conflict with law and ran away. The appellants joined the juveniles in conflict with law Satish and Vinod. It is alleged that the juveniles in conflict with law and the appellants had forcible sexual intercourse with P.W.1 one after another in the cattle pond. It is also alleged that appellant No.1 Subhash was holding a knife and he had threatened P.W.1 that if she shouted, she would be killed. The incident lasted from midnight of 12-9-2008 till 2-00 a.m. of 13-9-2008. During the said period of two hours, P.W.1 was continuously weeping. She put on her clothes after the incident and went home. She did not disclose the incident to anybody. It is the case of prosecution that she did not disclose the incident to anybody because she was threatened by appellant No.1 that if she disclosed the incident to anybody, she would be killed. She felt pain in her abdomen on next day and therefore, started weeping. Thereafter she disclosed the incident to her mother. The parents and P.W.1 visited Police Patil and thereafter report was lodged at Malegaon Police Station. The First Information Report is at Exhibit 17.
3. During the course of investigation, P.W.1 was sent for medical examination. Panchanama of the spot was drawn. Statements of the witnesses including P.W.2 were recorded and after completion of investigation, charge-sheet was filed in the Court of Magistrate. It was committed to the Court of Sessions. Charge was framed at Exhibit 4 against both the appellants. At this stage, it may be mentioned here that the juveniles in conflict with law must have been produced before the competent authority under Juvenile Justice Act.
4. The prosecution had examined in all seven witnesses in support of its case. P.W.1-Usha was the victim of the offence. P.W.2-Rekha was friend of Usha. P.W.3-Mohd. Yusuf had reduced the First Information Report into writing at Malegaon Police Station. P.W.4-Bhagwan was present when the spot panchanama Exhibit 34 was drawn. P.W.5-Baliram was present when a knife was recovered by the police allegedly on the information given by appellant No.1 while he was in police custody. P.W.6-Dr. Deepa Kumawat had medically examined P.W.1. P.W.7-Vishnukant is the Police Officer who had conducted investigation of the case.
5. According to P.W.7, he had visited the spot immediately after registration of the First Information Report and spot panchanama of cattle pond of Gram-Panchayat Koldara was drawn as per Exhibit 34. During the course of spot panchanama, he found bangle pieces, one empty packet of condom, one used condom and one blouse hook. The articles found on the spot were seized under the panchanama. On the same day he had seized clothes of P.W.1 under panchanama Exhibit 19. He had recorded statements of the prosecutrix and her friend P.W.2. The appellants were arrested on the same day under arrest panchanama Exhibits 57 and 58. They were referred to Medical Officer. The medical examination reports of both the appellants were produced before the trial Court at Exhibits 59 and 60. Both the medical reports were admitted by the learned counsel for the appellants before the trial Court. It is stated in examination-in-chief of P.W. 7 that a statement was made by accused No.1 Subhash under Exhibit 42 and that he had produced a knife pursuant to the said statement, which was seized under panchanama Exhibit 43. This witness in his cross-examination has admitted that there was school near the cattle pond and there were lot of houses around the school. However, he did not make any enquiry from the residents of the said locality nor had he recorded any statement of the residents to verify whether they had heard the cries of P.W.1. The explanation was given by this witness that he did not find it necessary to record statements of residents of the locality.
6. P.W.1 has more or less stuck to her statement to the police. She has described in detail as to how she and her friend P.W.2 were lifted by the appellants and the juveniles in conflict with law and as to how she was taken to the cattle pond. She has also described in detail as to how one by one, four of them had sexual intercourse with her. As far as P.W.2 is concerned, she had gone to the house of one Shivram Shende after getting herself released from the clutches of the appellants and had described the incident to daughter-in-law of Shivram Shende. P.W.1 had met her on the next day and had informed her that she was subjected to sexual intercourse by the four boys.
7. P.W.3 ASI attached to Malegaon Police Station recorded the First Information Report of P.W.1. P.W.4 has identified his signature on spot panchanama Exhibit 34. He has also identified his signature on the seizure panchanama but he has clarified that nothing was seized by the police in his presence. This witness was declared hostile by the prosecution and was cross-examined. P.W.5 has supported the prosecution case that one knife was recovered at the instance of appellant No.1.
8. P.W.6-Dr. Deepa had examined P.W.1 and had issued a Medical Certificate Exhibit 51. P.W.6 has not given the details of examination in her evidence. However, same have been recorded in the Certificate Exhibit 51. It appears that the defence had not raised any objection for reading Exhibit 51 in evidence. No external injuries were found during the course of physical examination of P.W.1. In her examination-in-chief, this witness has stated that vagina admitted two fingers. Though hymen edges were found torn, there was no bleeding. There was no swelling on labia minora. During the course of cross-examination, this witness has admitted that P.W.1 was habituated to sexual intercourse. It was further admitted that the torn edges of hymen were old.
9. It is thus clear that the whole prosecution case is, in fact, mainly depended on the evidence of P.W1, P.W.6 and P.W.7. In the first place, it may be noted here that the cattle pond is a very rough and dirty area and therefore, the evidence of P.W.1 will have to be examined keeping in view the place of the alleged incident. Secondly, it is also to be noted here that the statements of neighbours were not recorded though P.W.1 has categorically stated in her evidence that she was continuously crying during the period between 12-00 midnight and 2-00 a.m. Thirdly, if the electricity supply was discontinued and if P.W.1 and P.W.2 both decided to go home, the other villagers also must have taken the same decision and must have not waited at Samaj Mandir without there being lights. Fourthly, there is no mention of use of condom by P.W.1 in her evidence. It is also to be taken into consideration that P.W.1 was habituated to sexual intercourse. Thus she had been indulging into sexual intercourse prior to the date of incident also.
10. At the outset, I find it necessary to mention here that if the incident in question had taken place without consent of P.W.1, it could not have lasted for two hours. If the incident lasted for two hours, it is indicative of the fact that the sexual intercourse with the appellants and juveniles in conflict with law was most probably by consent. As already stated by me, the cattle pond is dirty and rough area. If there was force on the part of four persons indulging into gang rape, P.W.1 would have definitely received injuries in the nature of abrasions and contusions on her back. The medical report indicates that there were no injuries. P.W.1 herself has also not stated that she had sustained external injuries on any part of her body. As such the conduct of P.W.1 gives a strong impression that the sex between P.W.1 and four boys was by consent.
11. In addition to this, the Court has taken note of the fact that the incident in question was not disclosed by P.W.1 to her parents after returning home. She had disclosed the incident to her mother on next day. The possibility of her mother getting information of the incident in question prior to narration of incident by P.W.1 could not be ruled out. It is, therefore, possible that on questioning by her mother, P.W.1 might have admitted the incident in question. The incident was reported to police only with a view to create an impression that P.W.1 was not a consenting party. In this regard, one may take note of the observations made by the Honble Supreme Court in the case of Jagannivasan.vs. State of Kerala, reported at 1995 Cri.L.J. 3229, with regard to conduct of the prosecutrix. Paragraph 5 of the said judgment can be reproduced as under:
œ5. We may proceed with the assumption that the sexual act did take place in the way suggested by the prosecution and that the appellant was involved in it. But, was it a case of consent? In order to determine that, we have to see the conduct of the prosecutrix. The peculiarity in that regard which creates doubt is that the prosecutrix kept quiet for six days and did not whisper a word about it to anyone. Her getting pain in her private parts six days later is unbelievable when no tenderness was found by the Doctor and no complaint of pain was made to her. There is evidence on the record that the appellant had been employed in Dubai and presumably had mastered a handsome income when compared to persons working in his home state. He was a bachelor and obviously an attractive catch for girls in his brotherhood to be bonded in matrimony. The fact that P.W.5, the woman who lived in the neighbourhood, was absent at the crucial time, whose room was used for the sex act, leads to the doubts that the meeting between the prosecutrix and the appellant was arranged by P.W.5 with the implicit consent of the parties. This P.W.5, was declared hostile by the prosecution. Another factor of significance is that on that day there were dances organized in the village to celebrate the Onam Festival and most of the populace had gone to witness such performance. There was thus less likelihood of their meeting being interfered with by curious onlookers. Thus, it cannot be ruled out that a suitable time for the meeting was chosen by the two when P.W.5, would conveniently be away and the visit of the prosecutrix and the appellant in her house would raise no suspicion. It is the case of the prosecution that after the sex act, the prosecutrix went to the dancing performance rather than go to her parents and inform them of the suggested crime committed on her. In these circumstances, we are of the view that it would be unsafe to rely on the word of the prosecutrix, given vent to after six days to the effect that she was subjected to rape or that sexual intercourse was committed without her consent. It would rather be safe to lean in favour of the appellant and accord him the benefit of doubt.?
12. I have already observed that there are strong indications in the evidence that the sex was by consent. After having gone through the judgment of the Honble Supreme Court cited supra, I am fortified in my view already expressed by me. In this regard, it is also equally important to be noted that it is not necessary for the accused to take a defence of consent at the initial stage itself. If he probabalise his case on basis of evidence on record that the sex was by consent, he is relieved of the burden imposed on him. The law on the point is very well settled that the defence is not supposed to prove its case beyond reasonable doubt. The defence gets relieved of its duty once it is able to probabalise its case. Even if the defence of the accused is weak, that by itself may not be a ground for conviction. In the present case, the examination-in-chief itself of P.W.1 itself, without reading the cross-examination, gives a strong impression that it was an act of sex by consent.
13. Apart from this, the Court has also taken note of the fact that the Investigating Officer had not recorded statement of daughter-in-law of Shivram Shende to whom P.W.2 had met after getting relieved herself from the clutches of the appellants. In the normal course, the daughter-in-law of Shivram Shende would have informed her family members. Without going into the reasons as to why did she not disclose this incident to other family members, the Court cannot ignore the fact that the Police Officer investigating the case did not bother to record the statement of daughterinlaw of Shivram Shende to verify that P.W.2 had really gone to the house of Shivram Shende. The Police Officer did not bother to record statement of residents who were staying in the houses adjoining the cattle pond. The Court has taken judicial notice of the fact that the cattle pond in the villages are normally within the village itself. They are not deserted places. Population of village Koldara was about 2000 only. As such cattle pond must be within the vicinity of many houses. If P.W.1 was crying for a period of two hours, the residents of the locality could have thrown light on this issue, had the Investigating Officer recorded their statements. The Investigating Officer had audacity to tell the trial Court that he did not find it necessary to record statements of the residents of the locality adjoining the cattle pond.
14. As such, in the present case, in fact the whole case was based on the evidence of P.W.1. The medical evidence did not support the testimony of P.W.1. The Police Officer even did not bother to find out as to whether other villagers had occasion to pass from near the cattle pond after discontinuation of electricity supply at Samaj Mandir. In view of this, I find it highly risky to put implicit trust on the evidence of P.W.1. In my considered opinion, the learned trial Judge should have rejected the evidence of P.W.1.
15. There is no explanation as to why P.W.1 was silent on the aspect of use of condom if a packet of condom and used condom was found on the spot. This is an additional fact which gives support to the arguments of the learned Counsel Mr. N. Samundre that the sex, if any, was by consent. As such it is abundantly clear that on the basis of evidence of such doubtful character, it was not safe on the part of the learned trial Judge to convict the appellants for the offence punishable under Section 376(2)(g) of the Indian Penal Code. Since the evidence of P.W.2 is also found doubtful, the conviction for the offence punishable under Section 354 read with Section 34 of the Indian Penal Code also cannot be sustained. Further, as the Court has come to the conclusion that the sex was by consent, the question of criminal intimidation on the part of appellant No.1 also did not arise.
16. The judgment and order of the learned trial Court needs to be set aside and the appellants need to be acquitted of all the charges of which they are convicted. Hence, I pass the following order.
The appeal is allowed.
The judgment and order of the learned Additional Sessions Judge, Washim dated 25-5-2011 in Sessions Trial No.91/2008 is set aside.
Both the appellants are acquitted of the offences punishable under Sections 376(2)(g) and 354 read with Section 34 of the Indian Penal Code.
Appellant No.1 is further acquitted of the offence punishable under Section 506 of the Indian Penal Code.
Both the appellants be released from the prison forthwith, if not required in any other case.
The appeal accordingly stands disposed of.