Oral Judgment:
1. None for the appellants. The appellants are in custody since the date of conviction. This Court, therefore, appoints learned counsel Mr. T.U. Tathod to appear on behalf of the appellants in Criminal Appeal Nos.436/2012 and 437/2012.
2. The appellants have been convicted for the offences punishable under Sections 363 read with Section 34, 506-II read with Section 34 and 376(2)(g) of the Indian Penal Code.
3. Complainant Smt. Nita Wasudeo Meshram aged about 40 years is resident of village Ghorad in Kalmeshwar tahsil of Nagpur district. Appellant in Criminal Appeal No.436 of 2013 is resident of village Ghorad and appellant in Criminal Appeal No.437 of 2012 is resident of Kalmeshwar. The complainant was working in the Company known as 'Issab India Limited' situated at M.I.D.C., Kalmeshwar. She had three children. A son aged about 18 years and daughters aged about 16 and 14 years, respectively. The incident had occurred on 23rd February, 2009. The complainant was returning from the job at about 6.30 p.m. It is alleged that the complainant was alone and was returning to her residential place by walk. The appellant in Criminal Appeal No.437/2012 Raju Gotmare (hereinafter called as 'appellant No.2') came behind her on a bicycle and forced her to sit on rear seat of the bicycle. In the meantime, the appellant in Criminal Appeal No.436/2012 (Baba Chambare) (hereinafter referred to as 'appellant No.1') came there and pelted stones on the complainant. It is alleged that both of them took her to a spot near a small river (nullah) and had forcible sexual intercourse with her one after another. They had assaulted her while committing sexual intercourse. It is alleged that she became unconscious during the course of intercourse and thereafter they took her near a well. There also the appellant No.1 had sexual intercourse with the complainant. Appellant No.2 had also attempted to rape the complainant but the complainant was tired. She was thereafter left near the school. She went home and started crying. Her children took her to Police Station where first information report was lodged.
4. After registration of the offence on the basis of the complaint made by the complainant, the police had visited the spot and spot panchnama was drawn. Broken bangles and other miscellaneous material was seized from the spot. The complainant was sent for medical examination. The appellants were arrested and they were also sent for medical examination. Clothes of the complainant were seized. Clothes of both the appellants were also seized and all the clothes were sent to Forensic Science Laboratory. After completion of investigation chargesheet was filed in the Court.
5. When the case came up before the trial Judge he framed charge for the offences punishable under Sections 366 read with Section 34, 506-II read with Section 34 and 376 (2)(g) of the Indian Penal Code. He also framed charge under 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellants had pleaded not guilty to all the charges. The appellants however, have been acquitted of the charge for the offence punishable under Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
6. The prosecution had examined in all eight witnesses in support of its case. P.W. 1 is complainant, P.W. 2 is Medical Officer who had examined both the appellants, P.W. 3 is female Medical Officer who had examined the complainant (P.W.1), P.W. 4 panch witness before whom panchnama of the spot was drawn and clothes of the complainant were seized, P.W. 5 is hostile panch witness and P.W. 6 is also hostile panch witness, P.W. 7 is Investigating Officer and P.W. 8 had recorded the first information report of P.W. 1.
7. If one goes through the whole evidence it will be seen that the prosecution case was mainly based on the evidence of P.W. 1, P.W. 3 and P.W.7. P.W. 1 in her evidence has stated that she was taken to the place of incident forcibly on a bicycle by appellant No.2. Appellant No.1 had followed them and he had been pelting stones on P.W.1. It is stated by this witness that she was taken to agricultural land near a river and both the appellant had forcible intercourse with her. It has come in her evidence that there was lot of resistance on her part but the appellants did not bother about the same. Appellant No.2 Baba Chambare had sexual intercourse with P.W. 1 on second occasion also near a well. I have gone through the cross-examination of this witness and I find that this witness had stated in her evidence that she had told the police that she was taken by the appellants on a bicycle forcibly. P.W.7 in his cross-examination has stated that no such statement was made by P.W. 1 before him.
8. Apart from the cross-examination of P.W. 1 what can be seen from the evidence of P.W. 1 in examination-in-chief is that the place was highly rough and there was lot of resistance on the part of P.W.1. Her blouse was torn which is indicative of the fact that she had resisted a lot. However, this evidence is not supported by P.W. 3. If one accepts the evidence of P.W.1, the injuries should have been found on the back of P.W. 1 by the Medical Officer, particularly when the Medical Officer was female Medical Officer. She must have thoroughly examined P.W. 1. It is noted that medical examination took place on the night of 23rd and 24th February, 2009 itself. P.W. 3 has stated that there were no internal or external genital injuries. One abrasion was found on right side thigh. No other external physical injuries were found. Samples of pubic hair, nail clippings, blood and vaginal swab were collected. The Medical Officer was unable to give any definite opinion though the alleged intercourse was just few hours before the medical examination.
9. Chemical Analyzer's report Exh.14 clearly states that no semen was found on the following articles i.e. saree, petticoat, knicker and blouse of P.W. 1, full-pants, shirts, underwears and banians of the appellants. If there was sexual intercourse by both the appellants and there was sexual intercourse again by one of the appellants in the field as well as near the well which was also rough area, P.W. 1 should have sustained multiple abrasions on her back and elbows and may be on buttocks. In view of absence of such injuries, evidence of P.W. 1 is doubtful. Since the semen was found neither on her clothes nor on the clothes of the appellants, though the clothes were seized immediately after the first information report, the evidence of P.W. 1 becomes more suspicious. It is stated by P.W. 1 that she wore the knicker immediately after the alleged intercourse. Therefore, few stains of semen should have been found on the knicker of the complainant and few stains of semen should have also been found on the undergarments of both the appellants. Evidence of P.W.1 that she was forced to sit on the back seat (carrier) of the bicycle of appellant No.2 Raju is not acceptable at all. Because appellant No.1 was not at the scene at that time. There was nothing on the rear seat of the bicycle which could prevent P.W. 1 from getting down from the bicycle and running away from the spot. This itself creates doubt about correctness of the evidence of P.W.1.
10. It was argued before the learned trial Court that there was a scheme of the Government under which financial help was provided to the victims of the sexual offences. Without going into details, in this regard, what can be seen from the above discussion is that the evidence of P.W. 1 is found to be highly doubtful in view of the evidence of P.W. 3 and major omissions in the first information report. Evidence of medical officer and the reports of Forensic Science Laboratory do not support the evidence of P.W. 1.
Hence, I pass the following order.
i. Both the appeals are allowed.
ii. Judgment and order passed by the Additional Sessions Judge, Nagpur dated 3rd March, 2012 in Sessions Case No.19 of 2009 is set aside.
iii. Both the appellants are acquitted of the offences punishable under Sections 366 read with Section 34 of the Indian Penal Code and Section 506-II read with Section 34 of the Indian Penal Code and Section 376 (2)(g) of the Indian Penal Code.
iv. They shall be released from the prison forthwith if not required in any other case.
v. Fine, if any, paid by the appellant shall be refunded to them. The appeals stand disposed of accordingly.
Fees of the learned counsel Mr. T.U. Tathod is quantified at Rs.Three Thousand for both the appeals.