State of Maharashtra Vs. Ravindranath Arjunsingh and ors. - Court Judgment

Excerpt:
criminal - physical assault - section 375 of indian penal code, 1860 - physical assault of girl - medical examination of victim did not reveal single scratch as result of force on her - victim's testimony does not inspire sufficient degree of confidence in view of deficiencies and infirmities attached to evidence - prosecutrix falsified by her own evidence - on ground of several infirmities of victim's testimony it becomes unsafe to accept her case - order of acquittal recorded by trial court confirmed. - - he has also felt that the story given out by the girl does not inspire sufficient degree of confidence and he was of the opinion that in view of the infirmities attached to her evidence, it was rather unsafe to accept her testimony unless and until it was materially corroborated. since the reasons are being endorsed, it is not necessary to elaborate all the reasons over again. if that be so and if the premises as emerging from the panchnama and other evidence clearly make out a case that there were several people and residential quarters as also restaurants which were open at that time then in the first instance the happening of the alleged incident as described by the girl is itself improbable and secondly it is difficult to accept that no one could have noticed the presence of these people and thirdly it is highly improbable that the girl could not meet anyone even on the way back to the house of kalabai. this item in our opinion therefore, is comparatively quite relevant, and is a strong pointer against the credibility of the girl. as stated, her immediate conduct in observing silence and not disclosing anything to kalabai and her daughter rita is a strong pointer. however, this aspect need not detain us as on the merits of the girl's testimony in the context of several infirmities it becomes extremely unsafe to accept her case. the net result would be that the appeal must fail.v.s. kotwal, j.1. a young girl of 19 years had abandoned her parental home on the ground that her father was harassing her as he was addicted to drink. she was formerly working as a maid-servant with a person residing in bandra locality of this metropolis. she had to leave that job also and thus remained unemployed for quite some time. after leaving her father's house she went to stay with one kalabai (p.w. 2) with whom she was acquainted through her daughter rita. on humanitarian ground kalabai offered her shelter. kalabai was a fruit vendor and was residing in kurla area in a small hut. the schedule of the girl appears to be that she used to leave the hut some time in the morning in search of some job and being frustrated she used to return every night and used to try her luck on the next day. this went on for nearly 15 days.2. the alleged incident accrued on november 19, 1980 at about 9 or 10 p.m. in the vicinity which is not far away from the house of kalabai. according to the girl saidabanu (p.w. 1) who is prosecutrix in the instant case. she had left kalabai's house in the morning and had gone to bandra area in search of a job. the providence did not favour her on that day also. she came down to kurla travelling by local train at about 8 or 8-30 p.m and was on way to kalabai's house, which is located at a short distance. while she was at a short distance from the kalabai's house she noticed five young boys gathered at the corner of lane. she did not pay much attention to them for a short time and she continued to walk ahead. however, she soon realised that those five boys were following her. thereafter, according to her, accused no. 1 intercepted her and asked her to go with him she refused. at that point of time accused no. 2 came close to her and whipped out a knife and under the threat of knife she was forced to accompany accused nos. 1 and 2. the other boys who are accused nos. 3 and 4 soon joined them. a construction was in progress in that vicinity. she was then forcibly taken on the terrace which is located on the fourth floor, and from the terrace she was pushed inside a room which was apparently a kitchen. according to the prosecutrix, accused no. 1 then molested her and committed sexual intercourse forcibly putting her down on the floor. at that time accused no. 2 was standing outside while three other accused were at some distance. after completing the said act accused no. 1 released her and went out. her attempt to run away was frustrated as accused no. 2 entered the scene and he had also forcible sexual intercourse with her. after satisfying his lust accused no. 2 also went out. she wanted to take that opportunity and therefore, she started to run away from that place. she was however, accosted by accused nos. 3 to 5 near the hall and she was pushed inside the hall. according to the witness, each of the three accused had sexual intercourse with her one after another in the said hall. after the said incident was over, all the five accused again brought her down on the road descending the same staircase. accused no. 1 then offered to entertain her for dinner in a restaurant which she refused. thereafter accused no. 2 asked her to meet him on the next day at a scheduled place near the restaurant to which she agreed. thereafter she went towards the house of kalabai while the said miscreants went towards opposite direction. at the material time they saw the watchmen shri pande, who was on duty where the construction was going on and accused no. 1 had a talk with him.3. the prosecutrix went to the house of kalabai but did not disclose anything to her. instead, she is claimed to have gone to the kurla police station and on the same night she lodged her complaint, which was treated as first information report, exhibit 6 on the basis of which the offence was registered. according to the girl she was knowing the accused nos. 1 and 2 by names as they were residing near the locality of her father's house for nearly 10 years. she, therefore, gave the names of accused nos. 1 and 2 on the basis of which these two accused one after another came to be arrested. the panchnama of the scene of offence, viz. terrace, kitchen and the hall of the said construction work was recorded. thereafter the clothes on the person of the prosecutrix were attached. on the next morning she was medically examined by dr. brihamane (p.w. 3). he carried the clinical examination as also subjected her to x-ray test in order to ascertain her age. a slide of vaginal smear was taken which was ultimately forwarded to the chemical analyser. in due course other three accused also came to be arrested. a test identification parade was held by the executive magistrate shri shinde (p.w. 6) since the girl was not knowing accused nos. 3 to 5 previously. a memorandum was recorded in that behalf, as per exhibit 20. five accused were also medically examined by dr. brihamane and their medical certificates were duly issued. all the articles were then despatched to the chemical analyser. on receipt of the said report and on completing the investigation, the police charge-sheeted five accused in the court of the learned additional chief metropolitan magistrate at kurla whereafter on commitment they were facing a trial in sessions case no. 136 of 1981 before the learned additional sessions judge, greater bombay, for an offence under section 376 simpliciter as also section 376 read with section 34 and or section 114 of the penal code on the allegations that all the five of them committed rape on the said prosecutrix on that night.4. total denial is the defence of the accused so far as the main incident is concerned. a suggestion was, however, made that the girl had borrowed some amount from the accused nos. 1 and 2 and when she was confronted for the return of the said amount she thought of hatching a plan to falsely implicate the accused and that is how false complaint has been lodged. they have denied their complicity in the alleged incident in any manner.5. the learned additional sessions judge on a careful analysis of entire evidence felt that there are several infirmities in the prosecution evidence, which he has detailed in his judgment. he has also felt that the story given out by the girl does not inspire sufficient degree of confidence and he was of the opinion that in view of the infirmities attached to her evidence, it was rather unsafe to accept her testimony unless and until it was materially corroborated. in that category he considered those items of corroboration relied upon by the prosecution but felt that either those have not been proved or those are not of clinching nature. he, however, found that the medical evidence completely destroys the prosecution case. in consonance with these findings, he recorded an order of acquittal in favour of all the accused and it is this order that is being impugned in this appeal on behalf of the state.6. shri gangakhedkar, the learned public prosecutor, strenuously contended that in the first instance, there is no cogent and valid reason as to why the sole testimony of the prosecutrix should not be accepted without insisting on any corroboration and in the alternative he relied on certain circumstances, which according to him would furnish enough corroboration to that testimony. secondly it was contended that the order of acquittal is erroneous. this was countered by the learned counsel for the defence and they have adopted more or less the same reasons assigned by the learned trial judge.7. we have been taken through the entire evidence with the assistance of the learned counsel for both the sides and even after reassessment of entire evidence, we hardly find any reason to depart from the findings of the learned judge. since the reasons are being endorsed, it is not necessary to elaborate all the reasons over again. a few aspects, however, may be restated.8. in the first instance, the girl's testimony does not inspire sufficient degree of confidence in view of obvious deficiencies and infirmities attached to that evidence. a few of such deficiencies can be catalogued. the first is that the girl has tried seriously to make out a case that it was a secluded spot where she was taken and ultimately molested. even on the way, according to her, she could not meet anyone as the road was not frequented by the people. this is completely falsified by the panchnama of the scene of offence, which gives the surroundings of the locality, as also by the positive evidence of kalabai p.w. 2. the sum and substance of this evidence would unmistakably show that the spot in question is surrounded by several other localities, which include a hutment area, some shops, some bidi and pan stalls, restaurant as also factories. there is a nala close-by and the people residing in that locality used to pass by that nala right upto mid-night. the girl claims to have been residing in that locality for quite some time and therefore, as rightly observed by the learned trial judge her anxiety to deny the knowledge is obviously motivated with the desire to impress upon the court that even if she had shouted no one could have gone to her rescue and that the accused had deliberately selected that secluded spot. she is completely falsified and her assertion in that behalf is obviously deliberate. if that be so and if the premises as emerging from the panchnama and other evidence clearly make out a case that there were several people and residential quarters as also restaurants which were open at that time then in the first instance the happening of the alleged incident as described by the girl is itself improbable and secondly it is difficult to accept that no one could have noticed the presence of these people and thirdly it is highly improbable that the girl could not meet anyone even on the way back to the house of kalabai.9. the girl in all solemnity asserts that when accused no. 1 asked her to come with him and even when accused no. 2 is alleged to have whipped out a knife she did not realise the potential danger of the situation as she has admitted in clear terms that she did not suspect even remotely about the evil design of the accused. she just meekly followed them upto the said construction. she did not resist nor did she try to raise any shouts. her mental attitude that she did not realise a danger is again motivated with the desire to suit her convenience. these people walked a sizable distance before they reached the construction. thereafter she is supposed to have ascended the staircase along with them without any protest or resistance, though it is not claimed by the prosecutrix that during all this period knife was pointed at her or she was gagged. they had to climb four storeys of the building which must have consumed an appreciable time. this again sounds extremely improbable.10. as regards her description as to how she was subjected to the alleged, revelation when she was molested by five persons one after another that also sounds rather abnormal and difficult to be accepted. according to her, she was forcibly taken to the terrace and thereafter to the kitchen. accused no. 1 forced her down on the floor and committed the act. then was the turn of accused no. 2. during all this time even on her own admission she was vigorously resisting and protesting and physically trying to shift her position repeatedly. it was admitted that the floor had hard substance. accused no. 2 according to her, was indulging in the said act for merely 15 minutes. after the act of accused nos. 1 and 2 was over it is not as if that she had practically surrendered and had physically exhausted because, according to her, not only she was resisting till the end but as soon as accused nos. 1 and 2 went out, she immediately got up and started running away whereafter she was accosted by accused nos. 3 to 5 and further acts were committed in the hall by these three accused persons one after another. according to her, during all this period also she was vigorously physically resisting and she was not passive agent as such. all the five accused are alleged to have full intercourse with her and she accepts that there was discharge of semen in the vagina.11. after this incident she has meekly came down on the road along with these five accused as it is not claimed that she was forced to descend the staircase and it appears that she merely walked with them. at that time also she did nothing to protest. the further conduct is very material. according to her own admission when all of them were on the road these accused persons offered to entertain her for a dinner which obviously she refused. the conduct of the accused that after committing these acts on the stranger or an unwilling person they would offer to take her to the restaurant would obviously be artificial and even unacceptable for more than one reason. in the first instance, it is difficult that the accused would be willing to even entertain her for a dinner, when they had already molested her and secondly in taking her to a restaurant the accused would be running great risk as the girl could get an opportunity to inform any one in the said restaurant and lastly the accused would not have any moral courage to take the victim to the restaurant. further aspect is very material inasmuch as on her own admission, while departing accused no. 2 asked her to meet him on the next day at the said restaurant to which she meekly agreed. thereafter she was allowed to go towards the house of kalabai while these accused went to the opposite direction. the learned trial judge has rightly observed that the entire story, as narrated, does not inspire enough degree of confidence.12. the matter, however, does not rest there inasmuch as there are some positive elements, which obviously tend to destroy the prosecution case. the first is, apart from inherent improbabilities in the case when she went to kalabai's house, on her own admission she did not disclose anything to kalabai but on the contrary kalabai's evidence shows that the girl was looking normal and was not disturbed at all and she did not disclose anything about the incident. it is futile to contend that there was any valid reason not to confide in kalabai because kalabai was a lady who had offered her shelter when she was in an embarrassing situation and when kalabai was a person of confidence and it that be so the first and foremost re-action should have been to disclose everything to kalabai the moment she went to her house. the witness did nothing of that sort.13. the other infirmity which in our opinion has a serious dimension is reflected through the medical evidence. dr. brihamane (p.w. 3) examined the girl early on the next morning. as regards the age of the girl the prosecution concedes that she was certainly not below 19 years of age and as such that aspect of the medical evidence need not be gone into. the medical officer has categorically stated that on a careful examination clinical or otherwise he did not notice even a scratch on her person. he has elaborated and accepted that there was neither any swelling on the vagina or on labia majora and minora nor was there any sign disclosed on her person including thigh or back. the accused also were examined on the next day and correspondingly no injuries were detected on their person nor any nail marks were seen. though the medical officer was lukewarm when he was put a question as to whether a forcible molestation by five persons one after another during long duration would cause some injuries especially when the victim was resisting all along, he accepted the possibility though not in firm words. however, the tenor of his evidence makes it clear that he also expected some marks on the person of the prosecutrix if she was molested by five persons as described by her.14. yet another difficulty has been created, which is the creation of the prosecutrix herself and which in our opinion goes a long way to destory the prosecution case when she makes out even a false case which she felt convenient to suit her purpose. thus when she was examined by medical officer he found an old tear of hymen and which according to the medical officer had not come into existence recently. he has also clarified that it was an old scar. he has also clarified that this was an old healed tear since the healing process taken not less than three days. he thus opined categorically that it was an old healed scar which must have occurred long back. he has also accepted that orifice permitted an insertion of two fingers and which again is a criteria to suggest that the girl was used to sexual intercourse. the sum and substance of the medical evidence makes it further clear that even if there was some incident as claimed by the girl then both these features about permitting two fingers and tear of hymen would not have been there. he has positively opined that there were no symptoms of forcible sexual intercourse noticed by him. this is to be read in the contest of positive assertion of the girl that it was her first experience when she was subjected to forcible intercourse meaning thereby that according to her she had no sexual intercourse previously at all. this tall claim has been falsified by the medical evidence and the learned trial judge has rightly commented upon. this is again to be read in the context of defence suggestion that the girl was habituated to sexual intercourse and was of dubious character and that is how the father was fade up with her and that is how again she was forced to abandon father's house. even though one may not go to the extent of accepting the defence suggestion still the bare fact remains that the tall claim of the girl is falsified by the medical evidence and what is of more significance and germane is that she has been falsified by the evidence as to how the possibility of any sexual intercourse forcibly on her person on that night is very rare. this item in our opinion therefore, is comparatively quite relevant, and is a strong pointer against the credibility of the girl.15. it is also brought on record that vaginal smear was taken on slide and it was forwarded to the chemical analyser, who opined that no spermatozoa was detected. this would be again destructive of her claim that all the five persons had a full intercourse including discharge of semen, she does not claim that she attempted to have a wash or a bath and in fact she had no time before she was examined by the medical officer. this again is a pointer to cause a serious doubt about the credibility of her case. it is then brought on record that one of the accused was suffering from veneral disease as was apparent from the medical evidence. the medical officer has accepted that if such a person has a seminal discharge then the victim would also show a corresponding symptoms of such a disease having been communicated to her through the said discharge. that query was also made to the chemical analyser and report makes it clear that no germ of any type was noted on the vaginal smear. as observed, no corresponding symptoms were noticed on the person of any of the accused, who were examined on the next day.16. there is yet another circumstance which requires atleast a cursory mention. according to the girl's testimony, a watchman by name pande was on duty at that time on the construction work and not only that while they were descending the staircase accused no. 1 wished this watchman and thereafter they went away meaning thereby that she wants us to believe that the watchmen was in the vicinity of these accused persons when she was taken to the terrace. she is again falsified by the evidence when according to the watchman, he denied such incident. we do not find any tangible material to discredit the witness on its own merits. thus the prosecutrix is falsified by her own evidence and the other side of the coin is that it is very difficult to accept that the accused would be bold enough to commit the said offence right under the nose of the said watchman. 17. the prosecution no doubt relied on certain items of corroboration. the first is that some semen stains were noticed on the peticoat which was on the person of the prosecutrix and that is so certified by the chemical analyser. however, the learned judge has rightly observed that there is apparent discrepancy as to how and when this peticoat was attached. according to the girl, it was attached at 10 or 10-30 a.m. and she asserts in the cross-examination on that line whereas according to the police-sub inspector it was attached on the same night when she was brought back to the police station after recording the panchnama of scene of offence. the learned trial judge has, therefore, rightly not placed much reliance on the said evidence. this also pales in the background as we have observed that it is difficult to accept the claim of the girl that she had no sexual intercourse on any prior occasion. there is yet another aspect which becomes relevant as it is accepted that though the girl was with the police for quite some time the saree and blouse on her person were attached on the next evening and there is no valid reason for the same though no doubt it is not indicated by the prosecution that there were no marks on the said apparels. the prosecution then sought to place reliance on the circumstances that there was some dust on the terrace, kitchen and hall as the construction was in progress and when the clothes of the accused and the victims were attached, those indicated having been smeared with the particles of dust and the report indicates that those might have the common origin. we are afraid, the item of this type is hardly clinching since the dust of this type can be available anywhere as dust can be parted on the clothes. thus this circumstance also cannot be of much assistance to the prosecution. the next circumstance relied upon by the prosecution is in the shape of conduct of the girl in going to the police station on the same night and lodging f.i.r. at exhibit 6 which according to the prosecution contains necessary details affording corroboration to her testimony. in the first instance, this by itself would not be the governing factor and in any event it cannot over shadow the other infirmities which are pointed out. as stated, her immediate conduct in observing silence and not disclosing anything to kalabai and her daughter rita is a strong pointer. if that be so, and if she was in a mood to go to the police station, then there was no valid reason as to why she did not take kalabai in confidence. if the evidence of the girl on its own core cannot be accepted then the bare fact that she went to the police station and lodged the complaint on the same night would not change the complexion more so if the story as narrated by her appears to be unacceptable and if that be so then such an unacceptable story cannot be converted as acceptable merely by lodging of the complaint on that night. as pointed out by the defence several omissions are brought on record vis-a-vis that topic which are described by the learned trial judge and therefore those need not be restated shri gangakhedkar, the learned public prosecutor, has lastly posed a question as to why the girl should make a false charge against the accused. in our opinion, this question would pale in the background once it is found that the prosecution case on its own merits is unacceptable. if that be so then assuming that the defence is unable to explain that aspect it would not change the complexion in any manner. the defence suggested that she had taken some amount from the accused and to avoid payment she has made a false charge. the neighbour one nirmala (p.w. 4) has stated that some boys had come to kalabai's house and were asking about the whereabouts of the prosecutrix as they had some work. this statement is not challenged by the prosecution and therefore, it does indicate that there might be some transaction as suggested by the defence. however, this aspect need not detain us as on the merits of the girl's testimony in the context of several infirmities it becomes extremely unsafe to accept her case. the alternate case as to whether it was a forcible act committed by these accused or whether it was by consent also need to be resolved in view of the basic infirmities in the prosecution case.18. it is true that in an appeal against the order of acquittal the whole field of re assessment may be available for appellate court. nonetheless, the reasons assigned by the learned trial judge require to be seriously considered especially when he had an additional advantage of observing the demeanour of the witnesses. even apart, even on fresh assessment of the evidence we are unable to find any reason for departing from the findings of the learned trial judge. the net result would be that the appeal must fail.19. the appeal is dismissed.20. the order of acquittal recorded by the trial judge in favour of the respondents-accused is confirmed. bail bonds of accused nos. 1, 2 and 5 are cancelled. accused nos. 3 and 4 are directed to be released forthwith if not required for any other purpose.