Dipak S/O. Ambadas Gaikwad and Another Vs. the State of Maharashtra - Court Judgment

Oral Judgment:

1. Both the appellants have been convicted by learned Additional Sessions Judge, Amravati by his order dated 18th September, 2012 for the offences punishable under Sections 366A and 376(2)(g) of the Indian Penal Code. The appellants have been sentenced to suffer rigorous imprisonment for seven years for the former offence and rigorous imprisonment for ten years for the later offence. Appellant Dipak Gaikwad in Appeal No. 502 of 2012 and appellant Raja @ Rajesh Gawai in Appeal No.521 of 2012 will be referred as “appellant No.1” and “appellant No.2”, respectively, hereinafter. Both the appeals are being decided by a common judgment and order as they arise out of one and the same judgment and order passed by the Additional Sessions Judge.

2. The appellants and the complainant/ victim Puja Thakur are residents of same locality of Amravati town and are very well-known to each other. The incident in question had occurred on 12th December, 2010 at about 20.00 to 20.30 hrs. It was reported to police at about 22.00 hrs. The complainant was examined by Medical Officer on the same night. The First Information Report was registered on the complaint made by the complainant for the offence punishable under Section 376(2)(g) of the Indian Penal Code. However, after completion of investigation chargesheet was filed for the offences punishable under Sections 366A and 376(2)(g) of the Indian Penal Code. Complainant Ms Puja had alleged in her oral report before police that she was 11 years old at the time of incident and that she was studying in 4^th Standard. Her elder sister Roshni was married and she was staying in the same locality. The complainant had gone to visit her sister at about 7.30 p.m. on 12th December, 2010. She was returning home at about 8.00 p.m. The appellants had accosted her when she was near government quarters of Irvin Hospital near Adarsh Primary School. Both the appellants wanted the complainant to accompany them. The complainant, however, refused to oblige them. Appellant No.1 caught hold of the complainant. The complainant wanted to shout, however, appellant No.2 inflicted fist blow on the back of the complainant. She was dragged towards the hospital of Dr. Belsare and was taken to a lane. It is alleged that she was taken on the upper portion of a septic tank. It is further alleged that appellant No.1 Dipak Gaikwad caught hold of her hand and appellant No.2 Raja Gawai, after removing his own clothes and the clothes of the complainant, had sexual intercourse with the complainant. Thereafter appellant No.2 caught hold of the complainant and appellant No.1 had sexual intercourse with the complainant. Both the appellants, after wearing their clothes, left the spot. The complainant had also worn her clothes and returned home. She went to the house of her sister and narrated the incident to her sister. Thereafter she narrated the incident to her mother. The matter was reported to police and the complainant was sent for medical examination. The Medical Officer reported that there was no injury on the private part or any other part of person of the complainant. Vagina was normal. Hymen was torn, but the tear was old. The vagina admitted two fingers easily. The Medical Officer was unable to give any definite opinion about the sexual intercourse.

3. During the course of further investigation, the appellants were arrested and their wearing apparel were seized by the police. The innerwear of the complainant i.e. panty was also seized by the police. Panchnama of the spot was drawn and the statements of the witnesses were recorded. After completion of investigation chargesheet was filed in the Court of Magistrate. The case was committed to the Court of Session for disposal according to law as both the offences were triable by the Court of Session. Chemical Analyzer's reports were not received till the date of filing of the chargesheet. It is seen from the record and proceedings and judgment of the trial Court that the reports of Chemical Analyzer were not received till disposal of the case.

4. As such the whole case was based on the evidence of witnesses and particularly the evidence of P.W.1. The learned trial Court had on 3^rd February, 2012 framed a charge against both the appellants for the offences punishable under Sections 366A and 376(2)(g) of the Indian Penal Code. Both the appellants had pleaded not guilty to the charge and had claimed to be tried. The prosecution had examined in all eight witnesses. P.W. 1 is complainant herself, P.W. 2 is her mother, P.W.3 is her sister and P.W. 4 is Headmistress of the school where the complainant was taking education. P.W. 5 is Medical Officer who had examined P.W.1. P.W. 6 is panch witness of the spot panchnama and P.W. 7 is Police Officer who registered the first information report and P.W. 8 is the Investigating Officer.

5. P.W. 5 Dr. Ujjwala Mohod had stated that P.W. 1 was examined by her on 13rd December, 2010. During the course of examination she found that her hymen was torn and that the tear was old one. The vagina admitted two fingers easily and P.W. 1 was found to be capable of doing sexual intercourse. The Medical Officer was unable to give any exact opinion about penetration or intercourse. Samples of blood and pubic hair of P.W. 1 were collected and handed over to police.

6. Evidence of P.W. 2 (mother of P.W.1) and P.W.3 (sister of P.W.1) may not be required to be discussed inasmuch as it is the evidence in the nature of hearsay. There evidence at the most could have been considered to look into the conduct of P.W.1.

7. Since evidence of P.W. 1 (as can be seen in the succeeding paragraphs) is found to be highly doubtful, I do not find it necessary to discuss the evidence of P.W. Nos. 2 and 3. P.W. 1 had narrated the incident in her examination in chief. She had stated that the incident had occurred about two years before the date of recording of her evidence. It was around 8.00 pm. She was asked by her mother to buy sugar from a grocery shop. She was accosted by the appellants while she was proceeding to the shop. Appellants caught hold of her hands. Appellant No.2 Raja Gawai was holding a knife. It is alleged that both the appellants had forcibly took her towards the hospital of Dr. Belsare. A fist blow was inflicted on her back and she was taken to a lane. It was dark at that time. P.W. 1 further stated that appellant No.2 Raja Gawai removed her clothes and had sexual intercourse with her. Thereafter appellant No.1 had sexual intercourse with P.W. 1. It is stated by her that both the appellants, after wearing their apparels, had left the spot. P.W. 1 had also worn her clothes and had gone to the house of her sister Roshni. She had narrated the incident to her sister and thereafter they had gone to complainant's home. The incident was narrated to her mother by P.W.1. P.W. 1, her sister and her mother started searching for the appellants. Both the appellants were seen near Irvin Square. The matter was reported to police and first information report was registered. The oral report is at Exh.11 and printed first information report is at Exh.12. She has stated in her cross-examination that the locality from where P.W. 1 was dragged to slab of the septic tank was the locality frequently visited by various persons and was not a lonely place. The learned trial Court, however, had dismissed the arguments that P.W. 1 could not have taken to the place where rape was committed on her without they being noticed by anybody. It is submitted by learned counsel Mr. Dahat that the appellants have been implicated in a false case as mother of the complainant was getting lot of irritation due to the conduct of the appellants.

8. The evidence of P.W. 1 will have to be appreciated keeping in view the evidence of P.W. 5 Medical Officer. The Medical Officer has clearly stated in her evidence that she did not notice injury of any nature on any part of the person of P.W.1. Learned Additional Public Prosecutor Mr. Rode has submitted that though no injury was found on the private parts or any other part of the person of P.W. 1, the Court was not prevented from recording judgment of conviction if the evidence of the prosecutrix was found to be believable. As a matter of principle, there cannot be a dispute that the conviction for the offence punishable under Section 376 can be recorded on the basis of oral evidence of the prosecutrix only even though there is no medical evidence. However, to arrive at such a conclusion, it is necessary that the evidence of the prosecutrix shall be believable. In the present case, since the medical evidence does not assist the prosecution in any manner the whole case depends upon the evidence of P.W.1. As already stated and as observed by the Hon'ble Supreme Court that such a case is to be decided on the factual matrix. There cannot be any straightjacket formula to accept or reject the evidence of the prosecutrix in absence of the medical evidence. The Hon'ble Supreme Court in the case of Lalliramv. State of M.P., reported at (2008) 10 SCC 69 has stated in paragraphs 11 and 12 as under:

“11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra Vs. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration.(See Aman Kumar v. State of Haryana).

12. As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial.”

In the present case, P.W. 1 has stated that when she was going to the shop to buy sugar she was accosted by the appellants. Appellant No.2 had a knife in his hand. It is further stated by her that the appellant had inflicted a fist blow on her back and she was taken to the place where she was subjected to rape. In her cross-examination, she had stated that she was dragged by the appellants for a distance of about 150 feet towards the bridge. It is further stated that she was shouting at that time and was trying to escape. It is also stated that her hair were caught hold of by the appellants when she was being dragged. If the incident of dragging had occurred in the manner stated by P.W.1, the nearby people need to have noticed the same as the place was frequented by many persons till 10.00 pm. The pulling of hair could have been reflected in the medical report also. The dragging to P.W. 1 for a distance of 150 feet should have resulted in bruises and abrasions on her person. The Medical Officer did not find any such bruises or abrasions. Secondly, the alleged rape was committed on the slab of a septic tank which, admittedly, was a rough surface. The Police Officer, who had investigated the case, has admitted in his cross-examination that the septic tank was made of concrete. As such, had the incident occurred in the manner stated by P.W. 1 and if the force was used against her and if she had resisted the attempt she would have definitely sustained some injuries on her back. The absence of injuries on any part of her body make the case doubtful. In my considered opinion, P.W. 1 is most unreliable witness and the judgment arrived at by the learned trial Court on the basis of her evidence was incorrect. In view of my above findings the question of consideration of the age of P.W. 1 does not arise. However, for the sake of clarity of the judgment, it is necessary to be stated here that P.W. 1 has stated that she was 11 years old at the time of the incident. It is noted that the Medical Officer had taken sample of pubic hair. Apart from this, the school leaving certificate produced by P.W. 4 Bhavna Dattatraya Pasarkar, who was working as in-charge Headmistress of Laxmikant Pasarkar Vidyalaya, show that the date of birth of P.W. 1 was 28th June, 1996. As such, according to the school leaving certificate she was 14 ½ years old at the time of the incident. In my opinion, this evidence also cannot be accepted to determine the age of the complainant. The prosecution had not led any evidence as to how this date of birth was recorded in the school record. The school record is admissible as a piece of evidence. However, whether the contents of the school record, in this case date of birth, were true or not has to be established on the basis of other evidence. The other evidence could be in the form of birth registration certificate, oral evidence of either of the parents of the girl or any other evidence which proves correctness of the date of birth recorded in the admission register. Proof of entry in the admission register will prove that a particular date of birth was recorded. However, the correctness of the same cannot be established mere by proof of the entry. P.W. 4 in her cross-examination has stated that birth registration certificate was not available in the school record. As such, there is no material in the evidence as to on what basis the date of birth of P.W. 1 was recorded as 28th June, 1996.

9. As such the prosecution has failed to prove the age of P.W. 1. The prosecution has also failed to prove that the incident had occurred in the manner narrated by P.W. 1. In this regard, a part of cross-examination of P.W. 1 need to be discussed here. P.W. 1 in her statement before police had stated that her hand was caught hold of by appellant No.1 in the square situated near Adarsh Primary School and that there was a scuffle between them. P.W. 1 has denied in her cross-examination that appellant No.1 had caught hold of her hand in the square situated near Adarsh Primary School. When her attention was drawn to her police statement in which it was recorded that both the appellants were sitting near Adarsh School and that appellant No.1 had caught hold of her, she stated that such statement was not given by her to the police. She, however, was unable to give any reason as to why such a statement was recorded by the police. The Police Officer who had recorded her statement has stated that portion marked 'A' in her statement was recorded as per her own narration. That portion was, therefore, exhibited as Exh.39. As such, this is a material contradiction in the evidence given in the Court and previous statement of P.W. 1. This contradiction gives clear impression that the incident had not occurred in the manner stated by the P.W.1. The medical evidence supports this view. In brief, the evidence of P.W. 1 is not believable as the examination-in-chief itself gives an impression that it was a manipulated evidence. Even superficial injuries were not found on the person of P.W.1. She was taken to hospital immediately after the first information report i.e. even less than six hours of the incident. In the circumstances, had the incident occurred in the manner narrated by P.W. 1 and had she been dragged for 150 feet there would have been a lot of injuries on her person.

10. No doubt, in a given case, the Court may search for motive of the complainant to lodge such a serious false complaint. However, if the evidence itself is found to be highly doubtful, it is not necessary for the Court to search for reason for making such serious false allegations against the accused. As such, both the charges must fail. In fact, in my considered opinion, the charge under Section 366A of the Indian Penal Code was applied wrongly, as it was not applicable to the facts and circumstances of the case. In any event, the evidence does not prove any of the charges levelled against the applicant. Both the appellants are entitled to be acquitted of both the charges. Hence, I pass the following order.

i) Both the appeals are allowed.

ii) The judgment and order passed by learned Additional Sessions Judge, Amravati on 18th September, 2012 in Sessions Trial No. 52 of 2011 is set aside.

iii) Both the appellants are acquitted of the offences punishable under Sections 366A and 376(2)(g) of the Indian Penal Code. They shall be released from prison if not required in any other case.

iv) Fine, if paid, be refunded to the appellants.

Both the appeals, accordingly, stand disposed of.