Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
S. R. DONGAONKAR, J.
Suresh s/o Govinda Nagdeve - APPELLANTS
VERSUS
State of Maharashtra - RESPONDENT
CRIMINAL APPEAL NO. 205 OF 2006
Decided on : 14.01.2008
Penal Code, 1860 - Section 376-Rape case-FIR lodged immediately after alleged incident-Medical evidence not supports prosecution’s case-Merely lodging of FIR soon after alleged incident that by itself not sufficient for inference of guilt of appellants/accused.-The trial Judge has taken a view that in the circumstances of the case, the evidence of the prosecutrix can be accepted for basing the conviction. He also found that age of the prosecutrix is proved to be below 16 years and therefore there is no question of consent. It is apparent that the case of the appellant is that of false implication, it is not a case of the sexual intercourse with consent. Therefore the question of consent would be inconsequential in the present case. Only question would be whether the forcible rape by the appellants has been established. In my opinion though there is some ground to say that the FIR lodged immediately after the alleged incident, in the circumstances of the case when medical evidence in respect of medical examination of the prosecution does not support the prosecution case merely because the report appears to be kidged siib after the alleged incident that fact by itself will not be sufficient for the inference of guilt of the appellant.
Penal Code, 1860 - Section 376(2)(g)-Evidence Act, 1872, Section 3-Conviction and sentence under-Corroboration of evidence of prosecutrix not necessary-Yet evidence of prosecutrix must be reliable to record conviction-Any suspicion about its reliability and trustworthiness-Renders such evidence not acceptable to record conviction of accused.-It is necessary to bear in mind that although no corroboration to the evidence of the prosecutrix is necessary still it has to be reliable for basing conviction. If there is any doubts about its reliability and trustworthiness, such evidence cannot be treated as a basis for conviction of the accused.
Penal Code, 1860 - Section 376(2)(g)-Conviction and sentence under-Gang rape-No evidence showing any relevant injury-Medical report silent as regards sexual intercourse whether it has taken place or not-Uncorroborated testimony of prosecutrix cannot be relied upon to record conviction.-Once again turning to the evidence of PW 7. Dr. Sayas Kendra, he has found on internal examination that hymen was absent. He also found that there was no evidence of injury over the vagina and vulva. The rape by 3 persons with no history of earlier sexual intercourse would definitely cause some injury to her private parts. The absence of hymen has also not been explained by the said Medical Officer. Had the incident of forceable rape been the first incident of sexual intercourse, there would have been definitely a fresh tear of the hymen. When there are no relevant injuries and when the Medical Officer is unable to opine as regards sexual intercourse whether it has taken place or not, it is difficult and unsafe to accept the uncorroborated testimony of the prosecutrix for basing conviction.
1. The appellant No. 1 Suresh and appellant No. 2 Hivraj are taking exception to the judgment and order of conviction & sentence recorded by the learned First Ad-hoc Additional Sessions Judge, Gondia, dated 29.03.2006 in Sessions Trial No. 72/2004 by which he has convicted these appellants for the offence punishable under Section 376 (2)(g) of the I.P.C., and appellant No. 2 Hivraj being convicted for the offence punishable under Section 506(II) of the I.P.C. in addition. They were sentenced to suffer R.I. for 7 years and to pay fine of Rs. 2000/-in default to suffer R.I. for 6 months for the offence under Section 376(2)(g) of the I.P.C.
2. Brief facts leading to the prosecution of the appellants were that; they are resident of Boda, Tah. Tiroda, District Gondia. Prosecutrix Sangharsha PW-1 is a minor girl aged about 15 years. At the time of incident, her father was serving in Mahindra & Mahindra Automotive concern at Nagpur. She along with her mother PW-3 Sangita, brother, sister and grant father were residing at Boda. Her grand father owned agricultural land at the same place. The same is situated at a short distance from their residential house. The house of present appellant no. 1 faces the house of the prosecutrix. Both are acquainted with each other. Prosecutrix Sangharsha used to call him as 'Ajoba' (grand-pa) with respect. There is one juvenile offender by name Durga who is also alleged to have committed this offence. He was working as labourer with (accused no. 2) appellant no.2 Hivraj who resides at Sejgaon. On 1.10.2004, father of the prosecutrix had asked appellant Suresh to hire oil-engine for irrigating his land, as his oil engine was out of order. After giving such instructions, her father had gone to Nagpur to attend his duties. On 1.10.2004 i.e. the date of incident, the appellant Suresh and the juvenile offender Durga (against whom the charge sheet was submitted before the Juvenile Court) hired the oil engine and at about 10 p.m. the same was installed in the field of the prosecutrix Sangharsha. Appellant no. 2 Hivraj was engaged to operate the said engine for irrigation purpose. At about 10.30 p.m, prosecutrix Sangharsha (PW-1) , her mother PW-3 Sangita, sister Priyadarshana, brother Vyankesh and Dakshina, wife of appellant no. 1, went to the field. At about 11 p.m., oil engine started working. At that time prosecutrix Sangharsha and the juvenile offender Durga got wet. They went to their houses and returned after changing the clothes. Little after midnight at about 1.30 a.m., appellant Suresh requested PW-3 Sangita to bring tea. Thereafter Dakshina, her younger brother etc., went to the home. Appellant Suresh also asked prosecutrix Sangharsha to show the area of the field to be irrigated. Thereafter, as the mother of the prosecutrix etc., had gone to the house, the present appellants and the juvenile offender Durga and the prosecutrix Sangharasha remained in the field. At about 2 a.m., prosecutrix showed the field area to juvenile offender Durga. Appellant no. 2 Hivraj came there, so also appellant no. 1 Suresh. Prosecutrix Sangharsha thereafter went to another Dhura. It is alleged that appellant no. 2 Hivraj followed her. It is alleged that, all of a sudden, appellant no. 2 Hivraj embraced prosecutrix and started pressing her breast. She raised hue & cry. Appellant no. 2 Hivraj gagged her mouth. At that time juvenile offender Durga came to the spot. Prosecutrix Sangharsha requested him to rescue her, but, it is alleged, she was asked to keep quiet. Appellant Hivraj threatened her of dire consequences, even to chop off by Tangya and bury her in Nallah. It is alleged that she was held firmly when juvenile offender Durga removed her slack and underwear. Appellant Hivraj firmly held her on his thigh while juvenile offender Durga raped her. It is also alleged that he bit on her breast. Prosecutrix Sangharsha tried to raise cry, however, appellant Hivraj gagged her mouth. Then appellant Suresh raped her
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
