IMPORTANT POINT
Where in an offence of rape, quality of evidence on record created a grave doubt about involvement of accused in offence and entire story became doubtful instead of positively proving facts whatsoever in support of prosecution, then accused was held entitled to benefit of doubt.

JUDGMENT

A.H. Joshi, J.— The appellant herein along with one more accused Dhanpal S/o Hiraman Mate was tried under section 376 of the Indian Penal Code in Sessions Case No. 33 of 1994 by the IInd Additional Sessions Judge, Bhandara.

The appellant who is accused No. l was convicted under Section 376, of the Indian Penal Code and was sentenced to undergo R.I., for seven years and to pay a fine of Rs. 5,000/- in default S. I., for one year.

2.The judgment of conviction is based on: (a) acceptance of testimony of PW-1 the prosecutrix Archana. and considering her version being corroborated by the statement of her mother Kusum to whom the prosecutrix had punctually disclosed sexual assault on her, (b) The PW-2 who was co-prosecutrix can be

believed in so far as the assault on

PW-1 is concerned though Sangita was not believed in so far as the charge of

outraging modesty levelled against the accused No.2.

3.The reasons as to why the Trial Judge disbelieved Sangita, however, neglected affirmative statement made by her which would have otherwise favoured the accused No. l can be gathered from the contents of paras 12 and 13 which paras are referred and quoted in this judgment for ready reference.

“12 ..... During the cross examination of Sangita I observed that she answered most of the question in the questions in affirmative saying “Hoji”, without knowing the consequences of it. In her cross-examination she conceded that after coming to

the house she did not go

again to the house of accused Bhagwan. She also conceded that when she had gone to the house of Archana in the afternoon parents, brothers and sisters of Archana were present at the house of Archana. From the following answers it would also reveal that Sangita replied carelessly or due to tender age she might not be able to know the consequences of her replies.

13....Thus the evidence of Sangita is self contradictory. Though the testimony of Sangita raises doubt about truthfulness of her version, one thing is clear that Archana and Sangita were playing under neem tree on the day of incident and at that time both accused had come there. In the oral report Exh. 26, which was lodged immediately on the next day after the night, it is mentioned that Archana was playing with Sangita in front of the house of Narayan Mate, and at that time Bhagwan Mate and brother of Rajendra (accused No. 2) had come there. Archana was taken by the accused No. 1 to his house Therefore, the evidence of Archana on this point cannot be discarded. As regards other, evidence about the accused No.2 Dhanpal there is no corroboration to her testimoney from any independent evidence. Her testimony could not be believed.” {Page 127 and 128 of paper book).

4.The learned Trial Judge has thus, found that on one hand Sangita’s evidence was not sufficient to convict the accused No.2. however, was not liable to be discarded as far as the charge against the accused No. 1 is concerned.

5.The learned Advocate for the appellant raised grounds claiming serious exceptions to the judgment contending that:—

(1)that the conduct of Archana was not natural;

(2)once the version of Sangita in cross examination was discarded because she had disowned the support to prosecution witness without understanding as to what she was telling before the Court, it was gravely risky to rely upon this witness for any purpose including for corroboration:

(3)the version of prosecutrix in absence of medical evidence on the facts of the case cannot be sufficient, particularly when, the suggestions as to enmity of the family of accused with that of the complainant were given; .

(4)the manner in which the statement of eye witness Santosh was upset has not been properly considered;

(5)the fact that the evidence of semen could not be related to the accused; while what was evidenced was only swelling.

(6)In the. C.A’s report, as well as by Doctor, blood stains which are not found, creates a grave doubt about the prosecution story;

(7)the finding by the lea