[PER S.S. SHINDE, J.]
1. At the outset it is required to be noted that since the allegations leveled by the victim against the respondent are in respect of the alleged sexual assault, therefore, identity of accusedrespondent and the victim girl needs to be concealed. The accusedrespondent and victim girl is referred to as XYZ and ABC, respectively. Registry to maintain the record accordingly.
2. This appeal is preferred by the State challenging the judgment and order dated 25.08.2000 passed by the Additional Sessions Judge, Nashik, thereby acquitting the accused for the offence punishable under Section 376 of Indian Penal Code, 1860 (for short ‘IPC’).
3. The prosecution story in short can be summarized as under:-
The Respondent-Original Accused at the relevant time was residing at the upper foor of the house of complainant’s father-in-law namely Dwarkanath Joshi. The victim at the relevant time aged about 5 years, was residing with her grant father. On 07.03.1997, at about 6.30 pm., the victim girl asked for another pant (nicker) as she wanted to change her pant. Complainant i.e. mother of the victim girl saw blood stains on the nicker of victim girl. The complainant also witnessed blood on the thighs of victim girl. She asked the victim what is happened with her The victim girl told her that XYZ, who was staying at the upper foor of their house, took her in nearby wada at upper foor in one room and in that wada he removed her nicker and got her lie on the cot. Thereafter, said accused inserted his penis in her vagina. Complainant narrated her incident to her father-in-law and mother-in-law Vimal. She took victim at the hospital of Dr. Bedmutha. Dr. Bedmutha examined her and asked her to take at the hospital of Dr. Sangita Bafna. Therefore, she took her at the hospital of Dr. Bafna. Dr. Bafna examined her and admitted her in the hospital. As the mental condition of the complainant was not proper and health of the victim girl was not good, the complainant could not inform the incident to the police station. Complainant lodged the complaint in the police station on the next date i.e. on 08.03.1997. On that complaint offence was registered. The victim was taken to the civil hospital. She was examined by medical offcer. Spot panchnama was prepared. The accused was arrested. Nicker of victim and the clothes of the accused person were seized. Statements of the witnesses were recorded. Seized articles were sent to chemical analyzer and after completion of investigation chargesheet was submitted to the court of JMFC, Nashik, who in turn committed the case to the Court of Sessions.
Charge was framed against the accused to which he pleaded not guilty and claimed to be tried. His defence is of total denial. After a full fedged trial, the trial Court acquitted the accused for the offence punishable under Section 376 of IPC. Hence, this appeal.
4. Learned APP appearing for appellant-State invites attention of this Court to the evidence of prosecution witnesses and in particular evidence of Rajashree (PW8), the victim (PW9), Jaisingh Choudhary (PW5) and Kiran Waichale (PW6), and submits that there is no reason to disbelieve the prosecution case and in particular evidence of aforesaid witnesses which gets corroboration from the medical evidence on record. He invites our attention to the certifcate given by PW4 at Exhibit-19 dated 10.04.1997 wherein it is mentioned that the pulse and blood pressure of victim girl was high, blood on middle portion of thighs, hymen was ruptured and there was forceful intercourse within 4 to 6 hours. He further invites our attention to the contents of Exhibit-24 i.e. the certifcate given by PW7 and PW10 and submits that as mentioned in the said certifcate that hymeneal ring infamed, hymen swollen, vaginal examination not possible and there is sign of forceful intercourse attempted. He further invites our attention to the CA report and submits that result of analysis shows blood stains on clothes of victim and accused as well as bedsheet, semen stains and blood mixed semen stains on victims undergarment and semen stains also on bedsheet. He submits that the evidence of PW8 and PW9 are consistent that, there was sexual intercourse. Their version is corroborated from the medical certifcate at Exhibit-19 and Exhibit24. He submits that the trial Court has failed to appreciate CA report, so also the fact that the accused did not explain about blood stain on his clothes and also evidence of last seen and extra judicial confession given by the accused.
5. On the other hand, Mr. Shetye assisted by Ms. Priyanka Chavan, advocates appearing for respondent-accused invites our attention to the fndings recorded by the trial Court, so also the written notes of arguments placed on record and submits that the fndings recorded by the trial Court are in consonance with the evidence on record and plausible view has been taken by the trial Court. It is submitted that once the plausible view has been taken by the trial Court, there is no reason for the appellate Court to cause interference in the fndings of acquittal recorded by the trial Court. In support of aforesaid contention he placed reliance on the following reported judgments, Ghurey Lal V. State of Uttar Pradesh (2008) 10 SCC 450 , [LQ/SC/2008/1556] Muralidhar & Anr. V. State of Karnataka (2014) 5 SCC 730 , [LQ/SC/2014/391] Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225 [LQ/SC/1996/924] . He further submits that merely the accused and victim were found going together, the accused cannot be convicted only on that ground. In support of said contention, learned counsel placed reliance on the ratio laid down in the case of State of Haryana Vs. Ved Prakash (1994 Cri. L.J. 140) , Rahim Baig Vs. State of Uttar Pradesh (1972 Cri. LJ 1260) . Therefore, he submits that the appeal fled by the State is devoid of any merits and same may be dismissed.
6. In order to prove its case the prosecution did examine in all 11 witnesses. The main witnesses of the prosecution are Rajashree (PW8), the victim (PW9) and Dr. Bafna (PW4) who examined the PW9. The other witnesses are panch witnesses.
7. Rajashree (PW8) in her deposition before the Court stated that she was present in the house on 07.03.1997 along with her in-laws. At about 6.30 pm her daughter (PW9) came to house. She told her that she wants to change her nicker. Rajashree (PW8) saw blood stains on her nicker, thighs and private parts. Therefore, PW8 asked PW9 that what had happened. PW9 told PW8 that she was taken by accused at laundry for giving clothes. Thereafter, she was taken in the neighbouring wada on second foor. She was made to sleep on cot and accused removed her nicker, inserted her pipi i.e. penis in her private part. PW8 informed this fact to her in-laws. They took PW9 to the hospital of Dr. Bedmutha. Dr. Bedmutha examined PW9 and asked to take her to Dr. Bafna. Dr. Bedmutha had telephonic conversation with Dr. Bafna. Dr. Bafna examined PW9 and admitted her in the hospital. PW8, her father-in-law and her father went to the police station, and lodged the complaint on 08.03.1997.
8. In her cross examination PW8 denied the suggestion that there were no blood stains on the nicker when PW9 was taken to the civil hospital. The nicker was given to the police when police came to the hospital of Dr. Bafna. She went to the police station on 08.03.1997 at about 11.00 to 11.30 am to lodged the complaint. She stated that before going to the police station she went to the hospital of Dr. Bafna. Dr Bafna was telling her to lodge the complaint to the police. It is stated that since her daughter (PW9) was not feeling well there was delay in lodging the complaint. She further stated that the accused is residing in their house at the upper foor. She did not visit the spot of incident after narration of the alleged incident by PW9. She further stated that one person was taking classes in her house (wada), but she does not know his name was Mr. Deore. She further stated that mother of accused is cousin sister of father-in-law i.e. Dwarkanath. The mother of accused is suffering from polio. On the date of incident, accused, his handicapped mother and others were residing in their house (wada). It appears that the defence gave suggestion during the recording of evidence about whether rent from the accused is recovered or not. She stated that she does not know about recovery of rent from the accused. She further deposed that, she does not know that one Mr. Deore had fled criminal prosecution against her husband and father-in-law. It appears that, during cross examination a suggestion was given to PW8 that the house members of PW8 are asking for vacant possession of the premises given on rent to the accused prior to the said incident. However, she denied the said suggestion, but admitted that after the alleged incident, accused went away along with his articles.
9. At the relevant time PW9 was minor, aged about 8 years. The prosecution examined PW9. It appears that after putting certain questions to PW9, the trial Court commenced the examination-in-chief of said witness.
10. PW9 deposed before the Court that she know the accused. He was residing at the upper foor on their house. Now he is not residing their. Accused took her at laundry for giving clothes for press. It was noon time, after giving clothes, she was taken to the neighbouring house on upper foor by the accused. There was cot. The accused got her lie on the bed. He removed her nicker. He took out his penis and inserted in her vagina. Thereafter, he brought her at her house. Accused went to his house. PW9 asked her mother to give another nicker, so as to change her nicker. There was blood on her nicker. Her mother took her at the hospital of Dr. Bedmutha. Thereafter, she was taken to another hospital. She identifed the nicker. Doctor examined her. The incident was narrated by her to her mother in the hospital. Again she was taken to the civil hospital.
11. During her cross examination she stated that there was one cot on upper foor. The spot of incident is in other lane. She never went to the spot of incident prior to the said incident. Other persons were residing in the house in which the incident had occurred. Her school time was in the morning. On the said date, she had not been to the school. Said incident took place at the morning school closing time. She stated that, she asked her mother to give another nicker at the evening time. She further deposed that it did not happen that in the meantime from noon to evening she was playing. She did not take mother or police at the spot of incident. The police did not make inquiry with her.
12. Upon conjoint reading of deposition of PW8 and PW9, both of them have not stated about what happened in between the time of alleged incident and till evening on said date. Secondly, there was suggestion given by the defence to PW8 that PW8 and her family members wanted to evict the accused from the house, therefore, false case has been fled against the accused. There is no satisfactory explanation given about why, immediately the complaint was not lodged. In the examination-in-chief PW9 stated that, she asked her mother to give another nicker to change earlier nicker. However, at what time she asked her mother to give another nicker is not clearly brought on record. In the cross examination she stated that, she asked her mother to give another nicker at the evening time. She also stated that she did not go to the school on the relevant date. There appears to be clear doubt about the prosecution case about time of alleged incident inasmuch as PW9 stated that, the time of incident was at the time of morning school closing without indicating specifc time.
13. The evidence of both the witnesses needs to be tested in the light of medical evidence. PW8 in her examination-in-chief deposed that she took PW9 to the nearest hospital of Dr. Bedmutha. Dr. Bedmutha examined PW9 and asked PW8 to take her to the hospital of Dr. Bafna. It is the contention of PW8 that Dr. Bedmutha had talked with Dr. Bafna on telephone, then she along with PW9 went to the hospital of Dr. Bafna, and she examined her and admitted in the hospital, and thereafter, she along with her fatherin-law went to the police station and lodged the complaint. At this juncture it would be appropriate to discuss the evidence of Dr. Bedmutha (PW1), to whom PW9 was taken by PW8 to the hospital of PW1, for medical examination/checkup. Dr. Bedmutha was examined as PW1 by the prosecution. He deposed before the Court that one Dwarkanath Joshi and his family are residing near his hospital. On 07.03.1997, at evening time, Dwarkanath and PW8 along with PW9 came to his hospital. PW8 is the daughter-in-law of Dwarkanath. They informed him to examine PW9 medically. They told that accused committed rape on her. He (PW1) saw blood on vagina of the girl and advised them to go to the civil hospital. He saw blood on both thighs and underwear. He also advised to show her to child specialist. He issued a chit in the name of Dr. Sangita Bafna. The said chit is placed on Court record. He admits the contents of said chit at Exhibit-12.
14. In his cross examination he stated that in his chit at Exhibit-12 he has not mentioned about blood on thighs and underwear and also on vagina of PW9. He has also not mentioned the name of hospital in the said chit. He has not maintained any record about the examination of PW9. Surprisingly, he deposed that he has not examined the said girl. He further stated that he has not seen any injury on the person of said girl.
15. As already observed he was frst doctor to whom PW9 (victim) was taken by PW8 and her father-in-law. We have carefully perused the contents of Exhibit-12 i.e. the chit written by PW1 to Dr. Bafna wherein nothing has been mentioned about the blood on thighs and underwear and vagina of PW9. Neither, name of the hospital is written on the said chit. PW1 has completely demolished the prosecution case by deposing that he has not examined the PW9 (victim) and further he has not seen any injury on the person of PW9.
16. The prosecution has examined Dr. Bafna. In her deposition before the Court she stated that on 07.03.1997 at about 7.30 pm when she was present in her hospital at that time one Joshi, his wife, his daughter-in-law brought one girl in her hospital. They brought one letter from Dr. Bedmutha. She denied the contents of said letter at Exhibit-12 before the Court. She stated that the said letter was given by her to police. She stated that the age of the girl was around 5 to 7 years. She was seen in frightened condition. Parents told Dr. Bafna the history about the mischief happened with the said girl, and requested her to examine PW9. Further, PW4 told PW8 and her relatives that it is not her feld and advised the relatives of PW9 to taker her to the Gynecologist in civil hospital. However, relatives insisted Dr. Bafna to examine the PW9, and she agreed to examine her on humanitarian ground. She told the relatives of PW9 to inform the police about the said incident. However, relatives insisted not to inform the said incident to the police. They told her that they will take decision to inform the police after arrival of their relatives. Thereafter, PW4 examined PW9 and admitted her in the hospital. PW9 was in the hospital till the next day. She stated that her pulse and blood pressure was high. On local examination middle portion of thighs were blood stained. Her nicker was also blood stained and her hymen was ruptured. According to her opinion on examination of PW9, she stated that rape might have been attempted within 4 to 6 hours, and accordingly she issued certifcate signed by her which is at Exhibit19 in the notes of evidence.
17. PW4 was extensively cross examined by the defence. During her cross examination she stated that the PW9 was discharged at about 11.30 to 12 pm on the next day. She did not remember whether the police came in the hospital when the girl was admitted in the hospital on 08.03.1997. She gave information to the police. Police came to her hospital. She further stated that now she does not remember the exact date. She deposed that the police recorded her statement and on that date only she supplied all the information to the police. Her statement was recorded on 10.04.1997. After going through the police statement, she stated that on 08.03.1997 police came in her hospital and thereafter, she discharged the said girl. She stated that police came in the hospital in the morning time on 08.03.1997. On said date police made inquiry with her. Police reduced the said information given by PW4 into writing. During her cross examination she further admitted that injury and infammation are two different things and she has not done per-vagina test and he has seen it only externally.
Upon perusal of deposition of PW4, her evidence does not inspire confdence inasmuch as when she deposed that the police visited her hospital on 08.03.1997, there was no reason for the police to record her statement on 10.04.1997. At the earliest i.e. on 08.03.1997 the statement of PW4 ought to have been recorded by the police. The delay in recording the statement of PW4 by the police, certainly creates doubt about the credibility of her evidence before the Court.
18. The prosecution further examined Dr. Sidharth Shelke (PW7). He deposed before the Court that at the relevant time he was working as a medical offcer in civil hospital, Nashik. On 08.03.1997 he was on duty as casualty medical offcer from 9.00 am to 9.00 pm. Police produced PW9 along with police memo for medical examination. He examined PW9 at about 8.10 pm on 08.03.1997. At the relevant time she was aged about 5 years. He further deposed that there was history of alleged rape. However, general behaviour of said girl was normal. Weight of PW9 at the relevant time was 15 kg. Body built was good. Teeth were normal. Hairs not developed and general features were not developed.
He further deposed that on the same date accused was produced for medical examination along with covering letter at Exhibit-25. He examined the accused. He stated that his general behaviour was normal. He did not notice any injury on the body of accused. He collected samples of semen, blood, pubic hair, and nail clippings for chemical analysis.
19. During his cross examination he stated that there is possibility of injury on the penis if there is forceful attempt of rape on the child aged about 5 years. However, he did not fnd any injury on the penis or on the private parts of the accused. He further stated that minor injuries are possible on the person of prosecutrix if there is forceful rape on the girl aged about 5 years. Injuries on private part are possible and externally noticeable if there is forceful rape on a girl aged about 5 years. He stated that he did not notice any external injury on the person of PW9. He used to examined children. Due to disease or infection, infammation is possible. Infection is possible in small girl due to unhygenic condition particularly school going girl.
20. The evidence of PW7 unequivocally indicates that, there was no injury on the person of accused or there was no other injury on the body of accused. If the prosecution case is to be believed, in that case if the accused had forceful sexual assault on PW9, then some injuries ought to have been appeared on her penis or private parts. However, PW7 in clear words stated that, no such injuries on the person of accused were found during his medical examination. He has also stated that infammation is possible in school going girls due to unhygienic condition. He did not stated in his evidence about any injuries on thighs, vagina of PW9.
21. We have carefully perused the contents of Exhibit-24 and found that there is nothing to indicate that PW7 noticed any substantial sign on medical examination of PW9, to support the case of the prosecution that accused had made attempt of forceful rape on PW9. On the contrary, it appears that PW7 examined the accused and did not fnd any injury on his penis or any other injury on his body.
22. It appears that the prosecution further examined Dr. Kawade as (PW10), who was serving as Medical Offcer, Civil Hospital, Nashik at the relevant time. She stated that she examined PW9 gynecologically and found that on examination of genitals libia was infamed, hymeneal ring was infamed, hymnal was swollen. Vaginal examination was not possible because of infammation. Vaginal smear was taken only from outside, because of high infammation it was not possible to take smear from inside. In her opinion forceful intercourse has been attempted, within 24 hours. Accordingly, she prepared certifcate at Exhibit-24. However, in her cross examination she stated that she had not seen hymen was ruptured. She stated that hymen was intact. Swelling and infammation are two different terms. In her certifcate swelling is not mentioned. She admitted that separate notes about examination of PW9 were not taken. She further stated that in her certifcate she did not mention that vaginal smear was taken from outside. Her attention was invited to the contents of certifcate wherein she had written word might have been attempted, in reply she stated that it is probability of attempt only.
23. If the evidence of all the doctors/medical offcers is compared with each other and read in its entirety, it does not inspire confdence and said evidence is not useful to corroborate the version of PW8 and PW9. At the cost of repetition the evidence of doctors is contradictory and the frst doctor i.e. Dr. Bedmutha to whom PW8 and her family members had approached has completely demolished the prosecution case by stating in his cross examination that he did not notice any blood stain or injury on examination of PW9. There is nothing to suggest that PW1 was declared hostile. When PW8 took PW9 to PW1 there was no reason to PW8 to not to inform the police the said incident. In fact such incident which had taken place as per the prosecution case in the house where other persons are residing, there was no reason to wait for lodging the complaint till the next date. Natural reaction of mother of PW9 and family members would have been to immediately lodged the complaint with the police upon narration of said incident by PW9.
24. We have also seen the evidence of laundry owner wherein he has only stated that accused and PW9 came to his laundry. However, it appears that the police recorded his statement belatedly on 11.03.1997 i.e. 4 to 5 days after the alleged incident had taken place. Importantly, the statement of Dr. Bafna to whom PW9 was taken by PW8 on the advise of PW1 was recorded by the police on 10.04.1997. It is clear that her statement was recorded after one month of alleged incident.
25. The prosecution had examined Bhalchandra Deokute (PW3) who was the panch for the seizure of clothes of accused. He deposed before the Court that he did not seen the accused in the police station. He was told about seizure of clothes of the accused. One Shirt, one pant and underwear was shown to him. Police prepared and he signed on it. Other panch Satish also signed on the said panchnama. He admits in his cross examination that he did not put any mark on the clothes. The article shown to him before the Court did not bear any mark put by him. He has not seen any injury on the person of accused, since he has not seen the accused at the time of panchnama. He further deposed that the seized clothes are in the possession of police. Therefore, it is clear from his deposition that the accused was not present in the police station and his clothes were seized by the police and only the clothes were shown to PW3. It appears that necessary procedure for seizure of clothes of the accused was not followed by the police. There is also discrepancies in the evidence of prosecution witnesses about how many cots were there at the place of incident. It has also come in the evidence of PW8 that at the relevant time mother of accused was suffering from ‘polio’ and she was not in a position to walk. The certifcate at Exhibit-26 mentions that ‘Smegma present’. The presence of smegma upon examination of penis of accused is one of the sign that, he might have not committed forceful intercourse in view of ‘smegma’ was present on his penis. Otherwise in case of forceful intercourse, smegma would not have been present on the private part of the accused.
26. To sum up, it is admitted in the cross examination by PW8 that, when the police made inquiry about the incident with the PW9, she did not narrate the incident to the police in the hospital of Dr. Bafna and thereafter there was no inquiry made by the police with the prosecutirx. PW8 also admitted in the cross examination that she did not visit the spot/room wherein the alleged incident had taken place and further the mother of the accused at the relevant time was suffering from polio and she is cousin of father-in-law of PW8. Though, she has denied the suggestion that her family members asked for vacant possession from the accused, nevertheless the said question was asked by the defence in her cross examination. In the natural course PW9 (victim) ought to have shown spot of incident to PW8, and PW9 ought to have visited the said spot of incident. Importantly, the prosecution has not examined father-in-law, who was accompanying PW8 and PW9 at the relevant time in the hospitals and was present at the time of fling complaint with the police.
27. As already observed Dr. Bedmutha (PW1) had admitted in the cross examination that, in his chit at Exhibit-12 he has not mentioned about the blood stains on thighs, underwear or vagina, nor the history and he has not maintained record of examination of PW9, and further he did not examined the PW9. He further stated that he had not seen any injury on the person of PW9. Dr. Bafna (PW4) stated in her cross examination that, she is unable to remember when the police came in the hospital when the girl was admitted. She further stated that she gave information to the police on 08.03.1997 and the police came to her hospital, then she does not remember the exact date, and she stated that when her statement was recorded on that day she supplied all the information to the police. However, she stated that her statement was recorded on 10.04.1997, and after going through the statement she stated that on 08.03.1997 police came in the hospital and, thereafter, she discharged the PW9. It is surprising to note that when the police visited the hospital of PW4 on 08.03.1997 there was no reason for the police for not recording her statement on that day, and recording her statement belatedly on 10.04.1997 i.e. after about a month from the date of incident creates serious doubt about credibility of the prosecution case. Upon careful perusal of certifcate issued by him at Exhibit-19 it is crystal clear that the said certifcate is dated 10.04.1997. In her cross examination she stated that injury and infammation are two different things and she had not done pervagina test. She had only seen it externally. So far, Dr. Shelke (PW7) is concerned, he deposed that he found general behaviour of PW9 normal during medical examination. The medical certifcate of prosecutrix at Exhibit-24 shows that the medical examination was done at 8.30 pm and medical examination of accused (Exhibit-26) shows that the accused was examined at 6.10 pm.
28. Jaisingh Choudhary (PW5) in his examination-in-chief stated that on 07.03.1997 the accused and the prosecutrix came to the laundry at 6.30 pm and during cross examination he stated that on the same date at about 7.30 the police came to the laundry and made inquiry with him and recorded his statement and the accused was with the police when they came to his laundry. When the complaint itself was lodged on 07.03.1997, the question of visiting police to the laundry would not arise. As already observed the statement of PW5 was recorded on 10.03.1997 i.e. after three days after the alleged incident.
29. Kiran Walchale (PW6) stated in his deposition that, accused made extra judicial confession before him. The prosecution has utterly failed to prove the credibility of such extra judicial confessions made by the accused before PW6. It is abundantly clear from evidence of PW6 that his relation was not such that the accused could show confdence in him and admit the alleged incident before him. There was no occasion to make such statement by the accused before PW6. It appears that statement of PW6 was recorded belatedly on 11.03.1997. The CA report at Exhibit-34 in relation to the fve sealed parcels contains articles which were collected on 08.03.1997 vide panchnama at Exhibits- 13, 15 and 17. Article-5 (bedsheet) seized under spot panchnama (Exhibit-3) did not show any stains. It appears from the CA report that the report at Exhibit-24 i.e. the prosecutirx medical certifcate shows that the results are inconclusive.
30. On the whole, it appears that the entire chain of biological evidence from the point of seizure, collection of samples, its preservation, deposition and preservation in FSL and till the time it reaches in the hand of analyst has not been proved beyond a reasonable doubt by unimpeachable evidence.
31. The accused in his statement recorded under Section 313 of Cr.P.C, brought on record that since last 5-6 years, they i.e. complainant’s family started giving trouble, and was demanding vacant possession and that they were saying that they will remove accused from the house in any condition.
32. We have discussed the entire evidence brought on record by the prosecution so as to fnd out whether the fndings recorded by the trial Court and conclusion reached is in consonance with the evidence on record or the fndings are perverse. We are of the view that the fndings recorded by the trial Court are in consonance with the evidence brought on record and there is no perversity as such. The trial Court has taken a possible view on the basis of evidence on record, and therefore, there is no reason for this Court to cause interference in the fndings of acquittal recorded by the trial Court, in the year 2000.
33. In that view of the matter, we are of the opinion that the appeal fled by the appellant-State is devoid of any merits and same deserves to be dismissed. Accordingly, the appeal stands dismissed.
