Skip to content


Hiraman S/O Dhondu Bawane Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 191 of 1979
Judge
Reported in1982(2)BomCR187
ActsIndian Penal Code (IPC), 1860 - Sections 376; Evidence Act, 1872
AppellantHiraman S/O Dhondu Bawane
RespondentState of Maharashtra
Appellant AdvocateV.S. Sirpurkar, Adv.
Respondent AdvocateB.P. Jaiswal, A.G.P.
DispositionAppeal allowed
Excerpt:
.....on the sari were of group a as well as group o. 3). the map clearly shows that on the site of the house of the prosecutrix are the immediate adjoining houses of devaji bawane and nanaji bawane. they are her cousin fathers-in-law and they are on good terms with her. it may be quite reasonable and proper that he may participate in the exchange of words and abuses, but it would be too much to expect that his wife would allow the husband in her presence to proceed to the prosecutrix for committing a sexual act and that too when the children of the prosecutrix as well as of the accused were nearby. 12. from the discussion above, i am clearly of the opinion that to the story of the forcible struggle and intercourse narrated by the prosecutrix there is no factual corroboration coming forth..........she states that her bangles were broken during the struggle with the accused, we find from the medical report of the prosecutrix that there were no marks of injury on her wrist. so also when she says that she was forcibly led on the ground and she had struggled by moving her feet, no marks of injury were seen on the back side of her person in the medical examination. she also stated in para 4 of her cross-examination that while struggling her legs had connected with the bamboo matting of the chapri, but she has no sustained any injury. at one stage she says that since the accused had pressed her hands against the grounds, she could not scratch him while at another stage she says that while the accused was having sexual intercourse he had placed his hands on her shoulder. the absence.....
Judgment:

S.W. Puranik, J.

1. By this appeal, the appellant seeks to quash the order of conviction passed against him under section 376 Indian Penal Code and sentence of one year and fine of Rs. 100/- awarded to him by the Sessions Judge, Chandrapur. The appellant was tried prosecuted for the offence of rape before the Sessions Judge, Chandrapur vide Sessions Case No. 7/79 and the Sessions Judge held him guilty for the same offence and convicted as above by his judgment dated 26-6-1979 passed in Sessions Case No. 7/79.

2. The prosecution case in brief was that one Parwati w/o Baburao resides at village Tembhurwani along with her husband and two minor daughters and a son. The said house has a partially closed Verandha known as Chapri and in front of it there is an open court-yard. On the other side of the court-yard, is the house of the accused Hiraman. It is alleged that on 1-12-1978 in the afternoon at about 12 noon, prosecutrix was in her house along with her two minor daughters. Her husband had gone to village Dewada and her son had gone for work. Parwati was doing some household work in the house. Her chicken fowl had strayed into the compound of the accused and the wife of the accused, therefore, pelted a small stone at the fowl. Over this incident, there was some exchange of words between Parwati, the prosecutrix and the wife of the accused. It seems that the accused was then present in the house. On hearing the exchange of words, the accused got enraged and came out of the house and started abusing the prosecutrix threatening that he would take out blood from her vagina. He then removed his paijama and went towards the court-yard of the prosecutrix only in an underpant. He then lifted Parwati and took her in the Chapri of her house. It is alleged that the prosecutrix struggled and in that her bangles were broken. It is further the case of the prosecution that the accused led her on the floor of the Chapri, removed his underpant and forcibly had sexual intercourse with her. The prosecutrix struggled as well as shouted, but unfortunately no neighbours came to her help. The appellant accused after intercourse left the place and went home. The prosecutrix got up and upon tiding her clothes she went to the house of Madhukar Wadhai the Sarpanch, but he was not present in his house. She returned and waited till her husband returned home at about 6 p.m. She narrated the incident to him. The husband then went to the village Chichabodi to inform the Police Patil. The Police Patil asked them to report the matter to Police Station, Rajura. Since it was late in the night and the Police Station was 13 kilometres away from her village, the prosecutrix and her husband went to Rajura Police Station the next day. Her first information report was lodged at 3 P.M. on 2-12-1978 vide Ex. 16. P.S.I. Jadhav registered her case and sent her to the Medical Officer Dr. Mohammed Shafi for her examination. The Medical Certificate in respect of the prosecutrix is at Ex. 7. The appellant accused was also sent for medical examination to the same doctor who issued a certificate (Ex. 8). On 3-12-1978 the Investigating Officer P.S.I. Jadhav went to the scene of offence and conducted a spot panchanama vide Ex. 10. He also collected bangle pieces from the court-yard of the prosecutrix. The Sari and torn blouse on the person of Parwati was also seized vide seizure memo Ex. 11. The Sari and the public hair of the prosecutrix collected by the Medical Officer were sent to Chemical Analyser through Motilal Police Constable (P.W. 6). The blood samples extracted from the person of the accused Hiraman and from the person of the husband of the prosecutrix Baburao were also collected and sent to the Chemical Analyser through Police Constable Mohamad Afzal (P.W. 7). The report of the Chemical Analyser was received vide Exs. 28 and 29. The report Ex. 28 disclosed that the Sari of the prosecutrix had stains of human blood and human semen. Chemical Analyser's report Ex. 29 showed that the stains of semen on the Sari were of two blood groups A and O. It also showed that the blood group of the husband of the prosecutrix is 'A'. However, the blood group of the accused could not be determined. After this investigation, the charge-sheet was put up. At the trial, the prosecution examined 8 witnesses. The trial Court examined the accused under section 313. His defence was of total denial. The learned Sessions Judge after the trial and on hearing the Counsel came to the conclusion that the offence under section 376 Indian Penal Code has been proved beyond reasonable doubt and convicted the appellant accused as already stated above.

3. Shri V.S. Sirpurkar, the learned Counsel for the appellant assailed the impugned judgment on several counts. His main contentions were that the sole testimony of the prosecutrix in regard to the incident ought not to have been relied upon by the Sessions Judge particularly when there was no independent corroboration. He also pointed out that the first information report has been lodged on the next day at 3 p.m. even though there was sufficient time to lodge the report on the very day of the incident. There is no corroboration to the version of the prosecutrix that the incident was narrated to the husband and immediately thereafter the husband narrated the incident to the Police Patil. The husband of the prosecutrix as well as the Police Patil of village Chichabodi were not examined by the prosecution. He also pointed out that the prosecutrix had not mentioned in the first information report anything about the exchange of words between the prosecutrix and the wife of the accused and the reason why the accused came out of his house and raped her. The Counsel for the appellant also pointed out that the Sari on the person of the prosecutrix was seized on 3rd December i.e. after 2 days. He also criticised the truth worthiness of the Chemical Analyser's report which shows the presence of semen stains on the Sari whereas Dr. Mohammad Shafi - the Medical Officer who examined the prosecutrix immediately after the report was registered stated that there were no semen stains on the Sari or on the private parts. According to the Counsel, therefore, for want of independent corroboration, the solitary testimony of the prosecutrix could not be relied upon and the appellant deserves to be acquitted.

4. Shri B.P. Jaiswal, Additional Government Pleader supported the impugned judgment. He urged that in a village in winter days, there are no persons in the house because it is an agriculture harvest season. The prosecutrix, therefore, could not get any help from her neighbours. The Addl. Govt. Pleader also submitted that the version of the prosecutrix is natural inasmuch as her husband had returned late in the evening and thereafter it was not possible to reach Rajura Police Station which is 13 Kilometres away and hence the first information report was delayed. According to him, the delay is reasonably explained. He contended that the absence of injuries on the person of the prosecutrix cannot be made much use of by the defence because each case will depend on facts and circumstances of that case and the injuries that may or may not be caused will depend on the amount of force used at the time of the commission of the offence. Lastly he submitted that the fact that the Sari from the person of the prosecutrix was seized and forwarded to Chemical Analyser and the Chemical Analyser's report confirms the existence of semen stains which are partly of the blood group of the husband of the prosecutrix and partly of blood group 'O', a reasonable inference can be drawn that the accused had committed intercourse with the prosecutrix. He, therefore, supported the conviction.

5. No doubt, it is true that if the trial Court is satisfied on the uncorroborated testimony of the prosecutrix a conviction can be based on the same. However, it is not a general rule but a rule of prudence. The Court will always take such evidence with due caution. The Court will always be looking for independent corroboration from several angles such as the immediate conduct of the prosecutrix, the presence or probability of the neighbours who would support one part or the other of the prosecution case and medical examination of the prosecutrix as well as the presence of semen on the private parts of the prosecutrix and her garments. It is easy to inflict a charge of rape on a person, but the burden is heavy on the prosecution to establish the same by the cogent evidence.

6. In the instant case, we find that the first information report at Ex. 16 merely narrates that on the given date and time the accused came to the court-yard of the prosecutrix, lifted her by force and took her to her Chapri. She shouted that Hiraman is outraging her modesty, but nobody from the village ran down to her. The accused Hiraman united her Kasta and committed sexual intercourse with her using force. During the grappling right sleeve of her blouse was torn and bangles around the wrist were broken. He went away after committing sexual intercourse. This is the narration of the events by the prosecutrix in her first information report (Ex. 16). In her deposition before the Court, however, she has stated about her fowl straying into the court-yard of the accused and a wordy exchange between herself and the wife of the accused. She has also narrated about the threat given by the accused when he came out of his house that he will extract blood from her vagina. It appears that it was a material fact which ought to have been narrated in the first information report. In her cross-examination the prosecutrix was specifically asked whether she had stated to the police about the quarrel on account of the fowl and she stated that she had told the police about the same but cannot say way it is not so mentioned in the first information report. This is a material commission.

7. As far as the actual incident is concerned, even though she has given verbatim account as stated earlier in the first information report, we find that there is no independent corroboration to several factual aspect of the said version. For example when she states that her bangles were broken during the struggle with the accused, we find from the medical report of the prosecutrix that there were no marks of injury on her wrist. So also when she says that she was forcibly led on the ground and she had struggled by moving her feet, no marks of injury were seen on the back side of her person in the medical examination. She also stated in para 4 of her cross-examination that while struggling her legs had connected with the Bamboo matting of the Chapri, but she has no sustained any injury. At one stage she says that since the accused had pressed her hands against the grounds, she could not scratch him while at another stage she says that while the accused was having sexual intercourse he had placed his hands on her shoulder. The absence of injuries on the person of the prosecutrix could have been explained, had it been her case that out of fear or apprehension of danger or injury she had surrendered weekly to the assault on her modesty. In this case, however, the positive case of the prosecutrix is that all the time she was struggling with her legs and she was forcibly placed on the ground that her legs were hitting the Bomboo matting of the Chapri. In such circumstances, it would be natural to expect some contusion and abrasion on the person of the prosecutrix. Thus there is no independent corroboration from the medical examination of the prosecutrix. The medical report is also silent about any injury to her private parts. Not only that according to Dr. Mohamed Shafi (P.W. 1) there were no stains of semen or blood observed on her Sari and no semen stains on public hairs. There was no matting of public hairs and further the Medical Officer states that there was no ejaculation as told to him by the prosecutrix. The accused Hiraman was also examined by this very doctor and he states that on examination he found no external signs of the struggle on any part of the body of the accused and on examination of the private parts, he found no injuries to prepuce or glans penis. The doctor has opined that in this case both the prosecutrix as well as the appellant were probably accustomed to sexual intercourse, and therefore, in the case of rape there is a probability that no injuries would be seen. This is as far as the medical opinion is concerned. As already stated above, when there is a positive case of the prosecutrix about the forcible intercourse and violent struggle on her part, it would be natural to expect some contusions and abrasion on her person.

8. It is seen that there is also no corroboration with regard to the fact that there was any semen discharge at the time of the intercourse resulting in semen stains upon the Sari of the prosecutrix. The Medical Officer (P.W. 1) has admitted in his cross-examination that the prosecutrix had told him during her examination that there was no ejaculation. He had seen the Sari worn by the prosecutrix at the time of medical examination and he did not find any semen stains on the Sari. He further makes a positive statement that the prosecutrix told him that it was the same Sari worn by her at the time of the incident. On the other hand, the prosecutrix Parwati (P.W. 4) makes a positive statement as follows :---

'The accused had lifted me tightly and carried me into my shed. That shed had an opening at the door and it was closed to all other sides. Beyond the Chapri there is my kitchen. I was struggling while the accused was forcibly carrying me. I was also shouting. The accused then held my hands and felled me down on the ground. He removed the fold of my Sari at the back with his left hand. I was struggling all the while. He then forcibly had sexual intercourse with me. He penetrated his penis into my vagina. I struggled by moving my leg speedly. He gave 5 or 6 strikes by penetrating the penis. His semen dropped on my Sari. He then went away.'

In her further examination she states;

'I was wearing bangles at the time of the incident. They were broken in the court-yard when he was holding me and I was struggling to get myself-released.'

In paragraph 3 she states;

'I was wearing the same Sari when the Medical Officer examined me. There was drop of semen on the Sari. I had shown the semen stain on my Sari to the Medical Officer.'

In her cross-examination para 6, she states :---

'I had shown my Sari to the Police Station Officer and stated about the semen mark on my Sari.'

9. Thus, we have two contradictory versions before us one of the prosecutrix and the other of the Medical Officer regarding the presence of the semen on the Sari of the prosecutrix. It is also seen that the Sari of the prosecutrix was not seized immediately at the time the first information report was lodged on 2-12-1978. But on the other hand Ex. 11, the seizure Panchanama, shows that the Sari of the prosecutrix was seized at 5.30 p.m. on 3-12-1978 and some semen marks were seen on the same. Thus the seizure memo itself becomes suspicious as the Medical Officer had examined the Sari earlier on 2-12-1978 when he had not noticed any semen marks. Even otherwise, the blood groups of the semen stains were got analysed by the Chemical Analyser vide C.A. Report Ex. 28 and it says that the semen stains on the Sari were of group A as well as group O. The blood group of the husband of the prosecutrix is also analysed vide Ex. 29 which is blood group A, but the blood group of the accused could not be determined. Therefore, this circumstance also cannot be said to be incriminating one against the accused.

10. The prosecution had examined Maya-the minor daughter of the prosecutrix as P.W. 5. She was not administered oath because of her tender age and her evidence was recorded without administering oath. She, however, merely referred to the quarrel because of the pelting of the stone by the wife of the accused at the fowl and later on she could not narrate anything further and her testimony or evidence was dropped.

11. The prosecution has produced a map of the scene of offence vide Ex. 14 drawn by the village Patwari (P.W. 3). The map clearly shows that on the site of the house of the prosecutrix are the immediate adjoining houses of Devaji Bawane and Nanaji Bawane. She also admits in her cross-examination, para 4 that the houses of Dewaji and Nanaji are behind her house. They are her cousin fathers-in-law and they are on good terms with her. She also stated that Devaji has three sons who reside with him and in all 4 or 5 persons stay with him. While Nanaji resides with his three sons in his house. Thus, it is clear that at the material time even assuming that the agriculturists were busy in the sowing operations of the wheat and linseed, some one or the other is bound to remain present in the house. If in fact the prosecutrix had shouted for help some lady members form the immediate neighbours would have definitely rushed to her rescue. The Investigating Officer had stated that he had recorded the statements of the neighbours during investigation. None of them are cited. The Investigating Officer also does not say that it transpired during investigation that none of the neighbours were present at the material time in their house. It is also not explained as to why, when the prosecutrix went to the house of the Sarpanch immediately after the incident and returned back she did not meet anyone in the village to communicate and seek help. Moreover, the very narration of the incident shows that the prosecutrix in the first instance had a wordy exchange with the wife of the accused. Then it does not appeal to reason that in the wife's presence the accused would proceed to attack on the modesty of the prosecutrix. It may be quite reasonable and proper that he may participate in the exchange of words and abuses, but it would be too much to expect that his wife would allow the husband in her presence to proceed to the prosecutrix for committing a sexual act and that too when the children of the prosecutrix as well as of the accused were nearby. This version of the prosecution appears to be highly improbable.

12. From the discussion above, I am clearly of the opinion that to the story of the forcible struggle and intercourse narrated by the prosecutrix there is no factual corroboration coming forth from the delayed first information report or from the medical examination of the prosecutrix and the accused and also from the seizure of the Sari and the Chemical Analyser's report. The story also appears to be improbable because of her immediate conduct in not contacting any person in the village for help. Even assuming that the prosecutrix waited till the evening for her husband's return, the prosecutrix has not explained as to why the report was lodged at 3 p.m. on the next day. The Police Station Rajura is 13 Kilometers i.e. about 7 miles from the scene of offence. All these infirmities in the prosecution case, therefore, clearly indicate that a false case has been concocted against the accused for one reason or the other. In the minimum, the prosecution was expected to examine the husband of the prosecutrix and the Police Patil who were informed of the incident the same evening. That has also not been done. In view of the circumstances, therefore, I have no alternative but to come to the conclusion that the learned Sessions Judge was wrong in accepting the testimony of the prosecutrix without any independent corroboration. The appellant, therefore, deserves to be acquitted. Hence the following order.

13. Criminal Appeal No. 191/79 is allowed. The conviction and sentence imposed upon the appellant under section 376 Indian Penal Code by the impugned order is quashed and set aside. The appellant be set at liberty forthwith. His bail bonds shall stand discharged. Fine if paid be refunded.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //