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2016 Supreme(Bom) 724
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
A.I.S. CHEEMA, J.
Sk. Rustum –Appellant
VERSUS
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO.141 OF 2003
Decided On : 1-07-2016
For the Appellant :Shri V.D. Sapkal, Advocate
For the Respondent: Shri K.D. Mundhe, A.P.P.
The central legal point established in the judgment is the requirement for sufficient and credible evidence to prove guilt beyond a reasonable doubt in cases of alleged sexual offences.
Headnote:
Accused - Rape - Indian Penal Code, 1860, Section 376 - Summary: The court acquitted the accused of the offence of rape under Section 376 of the Indian Penal Code, 1860, based on the lack of physical evidence and inconsistencies in the victim's testimony.
Fact of the Case:
The victim, a 19-year-old girl, filed an FIR alleging that she was forcibly raped by the accused near her house. The trial court convicted the accused based on the victim's testimony and medical evidence.
Finding of the Court:
The court found the victim's testimony unconvincing due to the lack of physical injuries despite the alleged forcible rape and the absence of corroborating evidence. The court also noted inconsistencies in the victim's testimony and the circumstantial evidence, leading to the acquittal of the accused.
Issues: The main issue was the credibility of the victim's testimony and the sufficiency of evidence to prove the accused's guilt beyond a reasonable doubt.
Ratio Decidendi: The court's decision was based on the lack of physical evidence, inconsistencies in the victim's testimony, and the absence of corroborating evidence, leading to the acquittal of the accused.
Final Decision: The court acquitted the accused of the offence of rape under Section 376 of the Indian Penal Code, 1860, and ordered the return of any paid fine and cancellation of the appellant's bail bonds.
1. The Appellant original Accused (hereafter referred as "Accused") has been convicted by the IInd Adhoc Additional Sessions Judge, Aurangabad in Sessions Case No.58 of 2002 on 28th January 2003, under Section 376 of the Indian Penal Code, 1860 ("IPC" in brief) and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rupees Two Thousand. In default he has been directed to suffer rigorous imprisonment for three months. Aggrieved by the conviction and sentence, present Appeal has been filed.
2. I will refer to the prosecutrix (examined as PW2) and her mother (examined as PW1) and sister (examined as PW5) as "victim", "mother of victim" and "sister of victim" respectively to conceal their identity.
3. The case of prosecution, in brief, is as follows::::
A) The victim resides in Gavalipura in Cantonment area of Aurangabad. The mother of victim is tenant of one Shaikh Mohammad Shaikh Ismail (also referred as "Shaikh Dada"). On 20th February 2000 victim filed F.I.R. at about 6.30 p.m. with Cantonment Police Station. Crime No.29 of 2000 was registered. The F.I.R. stated that victim, 19 years old, was taking education and residing in Ismail Gavalipura, behind Visava Hotel in Cantonment and her caste is "Mang". F.I.R. mentions regarding who are her family members and that she is studying in B.Sc. first year. She stated that on that day of 20th February 2000 at about 3.30 p.m. she went in the open area near her house where there were bushes, for toilet. After toilet she was returning home and was passing from near water tank which is for buffaloes to drink water. The Accused was hiding behind the said water tank and called out the victim to come near him. She declined and at that time the Accused came near her and held her hands and threw her water tin of toilet which she was carrying and started pulling her. She sat down. Then he dragged her to the cattleshed of buffaloes. There was nobody and he took her to left side in the Wada i.e. Cattleshed. At that place the floor was of mud. When she shouted, he put his hand on her mouth. When she was lying on the ground, he put one hand under her head and lay on her person and by one hand pushed her Kurti upwards and pulling the string of her Salwar, pushed it down and removed her undergarments and removing his own pant and undergarment, he lay on her person. The F.I.R. gives details of Accused committing intercourse on her and that she suffered pain and started shouting. It is mentioned that the Accused, at that time, pressed her mouth and the victim was trying to put it aside, in which process her Odhani tore. She was trying to push him aside, but the Accused did not get up and completed the act. Thereafter he left her and gave her clothes and wearing his own clothes, he went away. The Victim was crying and wore her clothes and she had blood from her private part which came on her undergarment, Salwar and Kurti. As she was dragged to the spot, there was mud on her clothes also. F.I.R. mentioned particulars about her clothes and it is stated that she went home crying and told the incident to her younger sister, aged about 14 years. She sat crying and after half an hour her mother came and mother was also told the incident. Then her brother came, to whom the mother told the incident. Thereafter with her mother and brother she came to the Police Station and was filing the F.I.R. B) The offence was registered of in F.I.R. as above and P.I. Vitthal Pawar (PW6) took up the investigation. The victim was referred to Ghati Hospital at Aurangabad and her medical examination was got done. Dr. Prakash Shivnikar (PW7) carried out her medical examination. Her blood sample, sample of pubic hair, nail clippings, vaginal swab were also taken. The Investigating Officer also seized the clothes of the victim vide Panchanama (Exhibit 18), on 20th February, 2000 at about 6.45 p.m. The medical examination was done at about 10.30 p.m. on 20th February, 2000. Spot Panchanama was carried o
