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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
ROHIT B. DEO, J.
Raju Jaishriram Telgote (Langda) - Appellant
Versus
State of Maharashtra, through Police Station Officer - Respondent
Criminal Appeal No.586 of 2017
Decided On : 30-07-2019
Indian Penal Code,1860 – Section 376(2)(I),452,450 – Criminal Procedure Code,1973 – Section 162,313 and 173 (5) -Offence of rape - Mentally challenged victim PW 3- lodged report at Police Station, alleging that the mentally challenged daughter of her deceased brother-in-law and his deceased wife was subjected to forcible sexual intercourse by the accused - PW 3 states in report that she is a housewife and is married - Elder brother of her husband and his wife expired leaving behind victim, aged 30 years and son, who are mentally challenged - PW 3 states that she has been looking after two mentally challenged children since last two years and is in a position to understand their language and signs - PW 3 states that she along with her husband, son and sister-in-law left for Bhopal and two mentally challenged children were at home - While PW 3, she received a call from her neighbour who conveyed that victim is constantly crying and that PW 3 and others should return home - PW 3 and her family members returned - PW 3 made enquiries with the victim who was crying unceasingly and was sleeping - PW 3 then states that victim disclosed by sign language that after PW 3 and others left for Bhopal, accused entered house while the victim was sleeping, accused pressed her chest, removed her clothes and slept on her person - PW 3 asked the victim what was done by accused and the victim indicated by signs that she was subjected to forcible sexual intercourse and her chest was pressed - Victim further disclosed by signs that she was suffering pain in private parts - Whether there is any acceptable explanation offered by the prosecution for not recording statement of victim under Section 161 of the Code, but in vain – Held, court satisfied that the evidence of victim is not of such sterling quality as would obviate the need to seek corroboration or assurance of short of corroboration - Court further satisfied that there is no evidence on record of any significant corroborative value - Neither the scientific evidence nor medical evidence implicates the accused - Material witnesses are not examined - Investigating Officer admits that he did not come across any witness who saw accused entering the house of the victim or exiting therefrom - Accused is admittedly lame and considering that house of victim is situated in busy and crowded area with residences, shops and temples in the neighbourhood, that nobody saw the accused approaching the house of the victim or exiting therefrom is significant - In the absence of corroboration, it would be absolutely unsafe to base conviction on the evidence of victim, particularly in view of the admitted failure omission of the Investigating Officer to record her statement during investigation - Learned Counsel for the accused is justified in submitting that the prosecution has failed to bridge the gulf between suspicion and proof and that the benefit of the doubt must undoubtedly go to the accused - Judgment of conviction rendered by the learned Additional Sessions Judge, in Sessions Case is set aside – Order accordingly.
JUDGMENT :
This appeal questions the judgment dated 05-4-2017 rendered by the learned Additional Sessions Judge, Akot in Sessions Case 64/2015, whereby the appellant is convicted for offence punishable under Section 376(2)(l) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.25,000/-, in default to suffer rigorous imprisonment for one year, and is further convicted for offence punishable under Section 450 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months.
2. The prosecution case :
(i) PW 3-Shubhangi Lanke lodged report dated 25-7-2015 (Exhibit 49) at Police Station, Akot City alleging that the mentally challenged daughter of her deceased brother-in-law Arun Lanke and his deceased wife Manda Lanke was subjected to forcible sexual intercourse by the accused.
(ii) PW 3 states in the report that she is a housewife and is married to Sharad Lanke. The elder brother of her husband and his wife expired leaving behind the victim, aged 30 years and son Shashank, who are mentally challenged.
(iii) PW 3 states that she has been looking after the two mentally challenged children since last two years and is in a position to understand their language and signs.
(iv) PW 3 states that on 18-7-2015 she alongwith her husband Sharad Lanke, son and sister-in-law left Akot for Bhopal and the two mentally challenged children were at home. While PW 3 was in Bhopal, at 1.30 p.m. on 23-7-2015, she received a call from her neighbour Smt. Sunita Hemant Kashikar who conveyed that the victim is constantly crying and that PW 3 and others should return home. PW 3 and her family members returned to Akot at 11.00 p.m. on 24-7-2015. PW 3 made enquiries with the victim who was crying unceasingly and was sleeping.
(v) PW 3 then states that at 5.00 p.m. on 25-7-2015 the victim disclosed by sign language that after PW 3 and others left for Bhopal, the accused entered the house while the victim was sleeping, the accused pressed her chest, removed her clothes and slept on her person. PW 3 asked the victim what was done by the accused and the victim indicated by signs that she was subjected to forcible sexual intercourse and her chest was pressed. The victim further disclosed by signs that she was suffering pain in private parts.
(vi) On the basis of report Exhibit 49, Crime 105/2015 was registered vide printed first information report (Exhibit 50) for offence punishable under Sections 452 and 376(2)(l) of the Indian Penal Code.
(vii) Investigation ensued. The Investigating Officer visited the spot and prepared spot panchanama. The victim was medically examined. The accused was arrested. Biological samples were collected and sent for chemical analysis. Statements of witnesses were recorded and on completion of investigation chargesheet was filed in the Court of jurisdictional Magistrate who committed the proceedings to the Sessions Court.
(viii) The learned Sessions Judge framed charge (Exhibit 6) under Sections 450 and 376(2)(l) of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law.
(ix) The prosecution examined four witnesses. PW 1 is the victim. PW 2-Manoj Ratan is the witness to the spot and seizure panchanama. PW 3-Shubhangi Lanke is the informant. PW 4-Manlavi is the Investigating Officer.
(x) The accused did not step into the witness box nor was any witness examined in defence.
(xi) In response to question 24 in the statement recorded under Section 313 of the Criminal Procedure Code (“Code” for short), the accused stated thus :
“Since 2006 to 2015 I was doing the work of cleaning and household in Aditya Agencies. A rod is put in my leg and therefore, I cannot sit and attend natures call by sitting. Hence, I was given the work of cleaning so also the household work like bringing vegetables, milk, flour, medicines, wash the vehicles
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