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2004 Supreme(Bom) 409
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Joshi A.H., J.
Sudhakar Sukhdev Ramteke others .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 359 of 2002, decided on 17-3-2004.
Advocates appeared :
M.R. Daga, for appellants.
Mandpe A.P.P., for State/respondent.
Headnote:Indian Penal Code, 1860 — Sections 376(2)(g) and 323/34 — Three appellants convicted for having committed rape on three occasions in a night at three different places on prosecutrix — Appeal — Question as to consent of victim in the background of presumption u/s. 114A of Evidence Act — Court has to examine the collective effect of evidence of prosecutrix and Medical examination together — Consent was a question of fact and that state of mind of victim as could be gathered from circumstances around the time of incident and conduct and behaviour of victim — Conduct of victim led to a positive conclusion that act of sexual intercourse was led by consent and not by force — Conviction was liable to be set aside.
Held: The first act of rape which is attributed to Sudhaker accused No. 1 is certainly an act which is by the said accused individually committed and other accused have no nexus whatsoever. The entry of other accused persons in the scene which is shown latter does not in any eventuality attribute any intention, attachment or any other intention which ties all accused together for involvement in common intention of committing the act of act covering the offence punishable under Section 376 (2)(g) of the Indian Penal Code. In an effort to strengthen the case, it seems that the prosecutrix has narrated the incidents with details and on her own act created the background of grave suspicion than creating prepon-derance of positive act of rape. Admit-tedly, barring physical force of holding by her hand, there is no other force or threat that prosecutrix has pleaded. The totality of the evidence, therefore, leads to the conclusion that the intercourse was not an act of rape, but was a sexual inter-course with the consent of the prosecu-trix. (Para 15)
While the intention of law makers while introducing the amendment and providing severe punishment by incor-porating sub clause (b) in Section 376(2) as well while introducing Section 114-A of the Evidence Act also requires to be respected, the potential risk that follows is that any error in reaching the conclu-sion as to the lack of consent results in the conviction. The text of presumption as to lack of consent cannot be said to operate to a fixed yardstick or rigid rule where bare testimony of the prosecutrix in the form of her statement before the Court that she did not give consent would lead to raise an arithmetical equation of leading the Court to conclude in favour of conviction and award the sentence. The statement of victim, therefore, requi-red to be assessed by considering the entirety of evidence that may come before the Court. The manner in which the victim openly moved around clearly impeaches the testimony of the prose-cutrix that she did not consent for the intercourse. The presumption raised in Section 114-A of the Evidence Act, does not preclude the Court from assessing the entirety of the evidence that comes before the Court. Be that as it may, the presumption raised under Section 114-A is laying down rigid yardsticks that no other conclusion is possible and that
the accused have by evidence other than one which has come before the Court through the presumption to prove to the contrary, it would lead to the conclusion that never intended by the said Section. (Para 18)
2. The story as is revealed from the First Information Report is that the Prosecutrix Satyasheela had visited the village Shahapur, the place of he cousin Tarabai. According to her, three accused persons Sudhakar Sukhdeo Ramteke, Sunil Udebhan Chauhan and Parmeshwar Sukhdeo Ramteke committed on her acts of rape at three different places first being at the house of Mayabai Meshram, second in a shop and third in the house of Sudhakar. The acts of rape narrated by the prosecutrix are in the sequence namely the first by Sudhakar singly while second by all the accused and third by Parmeshwar singly. The duration of the incidents that has been reported is after 00.45 hours and some time thereafter. The police complaint has been lodged during day time i.e. following noon. The victim was referred to the Medical Examination and the police called for Medical Report in the form of question and answer. The question referred to police are at Exh. 28 and the Medical Report is at Exh. 40. While the out door patient note about the examination and prescriptions given by the duty Medical Officer is at Exh. 41. The questions referred to the Medical examination were
1. Are injuries of commission of sexual intercourse visible on her vagina?
Answer is in the negative.
2. Is sexual intercourse committed with Satyaheela UKe?
Answer is as follows:
"No evidence of external injuries over entganializ with pain during vaginal examination and tenderness in vagina is seen positive. Evidence of abrasions over back, evidence of abrasions over both Elbows and evidence of contusion over gluteal region right side and tenderness over left costochondral Region. No evidence of external injuries over the left entragenitals."
3. The prosecution filed a charge-sheet consequent upon completion of the investigation and the learned Session Judge has framed the charge in relation to the offence under section 376(2)(g) as well as under section 323 r/w section 34 of the Indian Penal Code. The case proceeds in the background that the prosecutrix is a married woman of 32 years of age having two children, while the accused are of the age of 29, 26 22 years respectively. There exists evidence of sexual intercourse and the case, therefore, centres around the proof of consent for the sexual intercourse.
4. The entire case, therefore, centres around the oral evidence of the prosecutrix Satyasheela who is the witness No. 5 Satyasheela the prosecutrix has narrated in her testimony about the incident prior to which, in her deposition she narrated the background of having visited the place of Tarabai Ramteke. As a background of commission of first assault or rape, committed by accused Sudhakar Ramteke, the prosecutrix has deposed in para 3rd of her deposition the versions which quoted in verbatim is as follows:
"Accused Sudhakar and Pameshwhar came back at about 11 p.m.. They could not see Budha. They had taken meal. Sudhakar advised to go for search of Budha and also requested me and his mother to come along with him. Sunil Chauhan is the son of my another maternal aunt. Accused Permeshwar left the house after meal. Myself accused Sudhakar Ramteke. Sunil Chauhan and my maternal aunt Tarabai Ramteke went out of the search of Budha. I came to bus stand
