Vijay @ Ajay Murlidhar Dalvi, C.No. 16362, Yerwada… — Criminal Trial and Appeal | Bombay HC (2018)

Vijay @ Ajay Murlidhar Dalvi, C.No. 16362, Yerwada… — Criminal Trial and Appeal | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.348 OF 2013

Vijay @ Ajay Murlidhar Dalvi,
Age-34 years, Occu:Prisoner,
No.C/16362, Confined in
Yerwada Central Prison,
Pune-6 Pin: 411 006

...APPELLANT

 VERSUS

The State of Maharashtra

...RESPONDENT

...

 Mr.M.B. Kolpe Advocate appointed for
 Appellant.

 Mr.D.R. Kale, A.P.P. for Respondent-State

...

CORAM: S.S. SHINDE AND
 V.K. JADHAV, JJ.

DATE OF RESERVING JUDGMENT : 14TH JUNE, 2018.

 DATE OF PRONOUNCING JUDGMENT: 22ND JUNE, 2018.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

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Judgment and order dated 26th February, 2013,
passed by the District Judge-1 and Additional
Sessions Judge, Ahmednagar in Sessions Case No.320
of 2011 thereby convicting the accused-Appellant

for the the offence of rape upon Ranjana Shelke,
punishable under Section 376 of the Indian Penal
Code (for short "I.P. Code") and sentencing him to
suffer rigorous imprisonment for ten years and to
pay fine of Rs.10,000/-, and in default of payment
of fine, to suffer further rigorous imprisonment
for three months. The trial Court also convicted
accused for the offence punishable under Section

392 of the I.P. Code and sentenced him to suffer
rigorous imprisonment for three years. The trial
Court also convicted accused for the offence
punishable under Section 452 of the I.P. Code and
sentenced him to suffer rigorous imprisonment for

three years. The trial Court further convicted
accused for the offence punishable under Section

506 of the I.P. Code and sentenced him to suffer
rigorous imprisonment for three years. The trial

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Court also convicted accused for the offence of
rape upon Kashibai Parbhane punishable under

Section 376 of the I.P. Code and sentenced him to
suffer rigorous imprisonment for ten years and to
pay fine of Rs.10,000/- and in default of payment
of fine, to suffer rigorous imprisonment for three
months. The trial Court further convicted accused
for the offence punishable under Section 452 of
the I.P. Code and sentenced him to suffer rigorous
imprisonment for three years. The trial Court also
convicted accused for the offence punishable under
Section 506 of the I.P. Code and sentenced him to

suffer rigorous imprisonment for three years. The
trial Court directed that both the sentences
awarded to the accused Vijay under Section 376 of
the I.P. Code shall run consecutively, however,
the sentences awarded under Section 392, 452 and
506 of I.P. Code shall run concurrently.

2.The Prosecution case, in brief, is as

under:

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A) Complainant Ranjana Shelke aged 50 years, was
residing along with her husband and daughter-in-
law in a small hut at village Gunwadi, Tq-Nagar.
Sahebrao shelke, husband of Ranjana Shelke was
working as a labourer. Ranjana Shelke was residing
along with her daughter-in-law Seema, but she had
gone to meet her parental house. On 9th August,
2011, husband of Ranjana Shelke i.e. Sahebrao
Shelke went to another village to meet his
daughter Yamuna and so Ranjana was alone in the
house. Ranjana Shelke worked during the day and in

the evening after taking her meals went to sleep
at about 8.30 p.m., after closing door of the hut
from inside. In the night at 10.00 p.m. Ranjana
saw that the accused Vijay @ Ajay Dalvi entered
inside her hut from the roof. On seeing the
accused Vijay Dalvi, Ranjana shouted at the
accused, but the accused told her to keep quiet.
Accused also told that he belongs to Pardhi
community and has come to commit theft. Accused

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Vijay then threatened Ranjana by wielding a knife
and asked her to take out gold ornaments as well
as cash. Out of fear, Ranjana took out cash of
Rs.5000/- and handed over the same to the accused.
Accused Vijay thereafter removed the electric bulb
inside the room and then threw Ranjana on the bed.
Ranjana protested, but accused Vijay gave a threat
to finish her. Accused thereafter removed saree of
Ranjana and thereafter committed rape upon her.
While returning back, accused gave a threat to
Ranjana not to disclose the incident to anybody
else he will set her hut on fire. Accused Vijay
then went away. Ranjana thereafter went to the
house of Balasaheb Shelke and narrated the entire
incident to Nanda Shelke as well as her sons. Son
of Ranjana, namely Santosh, one Raosaheb Shelke
and others then went to search for the accused,
but he could not be located. Ranjana Shelke then
went and lodged a report in Nagar Taluka Police
Station. On the basis of the same, offence came to
be registered vide Crime NO.141 of 2011 at Nagar

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Taluka Police Station under Sections 376, 392 and
457 of the I.P. Code.

B)During the same night, accused Vijay also
entered into another hut of Kashibai Parbhane,
aged 55 years, between 1.00 a.m. to 2.00 a.m., by
opening the latch of her house. Kashibai Parbhane
was sleeping alone in her hut. Kashibai Parbhane
also recognized the accused Vijay @ Ajay, but
accused threatened Kashibai by telling her that he
belongs to Pardhi community and he will kill her.
Accused Vijay threw her on the bed and removed her
saree. Accused thereafter also committed rape upon
Kashibai Parbhane. Kashibai Parbhane tried to
resist, but the accused gagged her mouth. After
committing rape, accused Vijay gave a threat to
Kashibai not to disclose the incident or else she
would be finished. Kashibai Parbhane then came out
of the house and narrated the incident to her

nephew Ganesh Parbhane. Kashibai Parbhane also

then went to the police station.

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C)After receipt of complaint, police

machinery started investigation. Police thereafter
visited earlier spot of incident i.e. hut of
Ranjana Shelke. Police then drew spot panchnama of
hut of Ranjana Shelke. Police also seized one bed-
sheet from the house of Ranjana Shelke. Police
thereafter went to the house of Kashibai Parbhana
and prepared spot panchnama regarding the spot of
second incident in the presence of panchas. Police
also seized clothes i.e. blouse and saree of the
informant Ranjana Shelke. Similarly, the police
also seized the saree of another victim Kashibai
Parbhane and prepared seizure panchnama. Police
thereafter sent both victims, Ranjana Shelke as
well as Kashibai Parbhane to the General Hospital
at Ahmednagar for medical examination. Medical

Officer attached to the General Hospital,
Ahmednagar then conducted medical examination of
Rajnaja and Kashibai. Medical Officer also
obtained sample of pubic hair and vaginal swab of

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both victims, Ranjana and Kashibai.

D)During the course of investigation,

accused Vijay also came to be arrested and arrest
panchnama came to be prepared in the presence of
panchas. Police also sent Vijay for medical
examination and obtained medical report relating
to accused Vijay. During investigation, the police
also seized the clothes of accused and seizure
panchnama came to be prepared. Police also
obtained the map of the spot of the incident.
Police thereafter sent the clothes as well as
other samples to the office of Chemical Analyzer
and report of Chemical Analyzer was duly received.
After completion of investigation, charge-sheet
came to be filed before the Court of J.M.F.C.,
Ahmednagar, who committed the case to the Court of
Session.

E)A charge for an offence punishable under
Section 376, 392, 324 and 452 of the I.P. Code was

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framed against the accused Vijay, and the same was
read over and explained to him. Accused pleaded
not guilty and claimed to be tried. The defence of
the accused is of total denial and false
implication.

3.After recording the evidence and

conducting full fledged trial, the trial Court
convicted the accused Vijay for the offence
punishable under Section 376, 392, 452, 506 of the
I.P. Code and sentenced him to suffer rigorous
imprisonment as afore-stated and to pay fine, and
in default of payment of fine, to suffer further
rigorous imprisonment as afore-stated.

4.Heard learned counsel appearing for the
Appellant and learned A.P.P. appearing for the

State, at length. With their able assistance, we
have carefully perused the entire notes of
evidence so as to find out whether the findings
recorded by the trial Court are in consonance with

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the evidence brought on record or otherwise.

5.The prosecution has examined in all 11
witnesses. PW-1 Yogesh Suryabhan Nagwade is a
panch witness to the spot panchnamas, Exh.20 in
respect of house of victim Ranjana, and Exh.21 in
respect of house of victim Kashibai. PW-2 Nilesh
Ashok Shelke is a panch witness to the seizure
panchnama Exhibit 23, regarding seizure of clothes
of victim Ranjanabai and seizure panchnama Exhibit
24 regarding seizure of clothes of another victim
Kashibai.

6.PW-3 Ranjana Sahebrao Shelke is an

informant. She deposed that her husband's name is
Sahebrao. She has three children viz. Krishna,
Santosh and Vishal. She herself and her husband

only are residing in the village. On the date of
incident, she was alone in her house. The incident

took place at about 10.00 p.m. in the night. She
had gone to sleep after taking meals and the

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electric bulb in the house was on. At that time
accused Viju Dalvi came from outside. She saw the
accused coming inside her house. Accused Viju
Dalvi then removed the electric bulb. She asked

the accused and the accused told her that he
belongs to Paradhi community. The accused also
said that he has come to commit theft. Accused
then demanded her gold articles and valuables and
also of her daughter-in-law. She told the accused
that she does not have any gold ornaments. Accused
Dalvi then demanded cash from her. She was having
cash of Rs.5,000/- with her. The accused Dalvi
then snatched the cash of Rs.5,000/- by
threatening her. Accused gave a threat that if she
would disclose about the incident she would kill
her.

.PW-3 Ranjana further deposed that accused

Dalvi committed rape upon her and also had pressed

her breasts. The accused was having a knife in his
hand and he threatened her not to disclose about

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the incident to anyone otherwise he will finish
her. The accused was wearing only an underpant and
no other clothes. The accused had entered into her
house by jumping over from the wall of back side.
The accused had come inside by jumping from the
roof through one space. Accused Dalvi returned
back by opening the door of her house. Accused
then also gave a threat that he will burn her hut
if she disclosed the incident to anyone. She then
went to her relatives. She further deposed that
she went to her nephew Balasaheb Kisan Shelke and
narrated the incident to him and others. Balasaheb

then made telephone calls to her sons and called
them. Her son Santosh then came from the field
where he was residing. Balasaheb and Santosh then
went to search accused Vijay in his locality, but
accused was not present in his house. His wife and
children were present. In the said process, it was
about 4.00 a.m. She went to the police station on

the next day. She then narrated the incident to
the police. She further deposed that complaint

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Exhibit 26 bears her thumb impression and the
contents of the same are correct.

. PW-3 Ranjana further deposed that she

cannot read or write as she had not gone to

school. She knows the accused Viju Dalvi, as he is
resident of her village. She knows Kashibai
Parbhane, as she is from her village. On the
earlier day she had come to know that similar
incident had taken place with Kashibai Parbhane
and the act was committed by accused Viju Daliv.
PW-3 Ranjana further deposed that she was then

sent to civil hospital where her medical
examination was conducted. She had given the
history about rape to the doctor. She then handed
over her clothes to the police in the police
station.

.During the course of cross-examination,

PW-3 Ranjana stated that she did not tell the name

of the person who had committed rape to the doctor

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as she was not asked. There are many houses near
her house. She further stated that her house is
not in good condition. She denied the suggestion
that now no one is residing in the house. She
admitted that adjacent to her house, there is a
temple and activities are going on in the temple
like Pooja, and people are sitting in the temple
till late night. Her house was having a thatched
roof. She further stated that accused is son in

law of one Mr. Kute, resident of her village. She

further admitted that accused Vijay Dalvi had
purchased land in her village from Parbhane.

Kashibai Parbhane is the cousin sister of said
Parbhane. The land purchased by the accused was
earlier mortgaged with Shankar Maina. She is
paying the necessary electric bills regarding
electric meter in the house. She denied that on

10th August, 2011 there was no electricity in her
house. She further stated that on 9th August, 2011

also there was electricity in the village. The
electric meter is in the name of her husband. Her

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family is below poverty line. She admitted that
thefts are taking place in her village and in many
cases of thefts the persons from Paradhi community
came to be arrested. She further stated that no
part of the thatched roof had fallen down due to
coming of the accused. Her husband had gone to the
house of their daughter in the month of Shrawan.
It was the first week of month of Shrawan. She
further admits that house of her nephew Balasaheb

Shelke is close to her house. Ganesh Parbhane was

Up-Sarpanch of her village at that time. Ganesh
Parbhane is nephew of Kashibai Parbhane. She
admits that brother of accused Vijay died prior to
the incident. She further admits that some persons
from her village had assaulted brother of the

accused and so he died. She admits that Ganesh
Parbhane, Uddhav Shelke, Raosaheb Shelke, Nilesh

Shelke and others were behind the same. She
further stated that the persons namely, Uddhav
Shelke, Ganesh Parbhane, Bapurao Shelke, Ashok
Unde, Nilesh Shelke and Kashibai were with her

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when she lodged the report.

.During the course of cross-examination,
PW-3 Ranjana further admitted that, some days
prior to the incident, election of Sarpanch and
Up-Sarpanch took place in her village. Father-in-
law of accused, namely, Kute had also contested
the said election. She further admits that accused
was also working for his father-in-law in the
election. Party of Ganesh Parbhane was opposing
his election. It was possible that scuffle had
taken place between the accused and Ganesh
Parbhane. She admits that she was working on
behalf of Ganesh Parbhane and following his
instructions as he is from her village.

.During the course of further cross-
examination of PW-3 Ranjana, an omission is
brought on record that she has not mentioned in

her complaint that after the incident she had gone
to the house of Balasaheb Shelke and narrated the

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incident to him. She admitted that in the absence

of electricity supply, she is making use of
Chimney in her house. She was unable to tell
whether Kashibai was not cohabiting with her
husband. She volunteered that she had no

connection with Kashibai. She did not know whether
Kashibai was residing in the village or not. She
was unable to tell whether the knife in the hands
of accused was Rampuri knife or was steel knife.

. During further cross-examination, PW-3
Ranjana stated that she did not try to go out of
the house by opening the door when the accused was
trying to remove the electric bulb. Further she
has denied all the suggestions put to her during
the course of cross-examination.

7.Thus, PW-3 Ranjana admits that Appellant

is from opposite party and his father-in-law,
namely, Kute was candidate for election of
Grampanchayat. She further admits that there was

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quarrel between the accused and one Ganesh, who
was Up-Sarpanch of Gram panchayat and was from the
opposite party. She also admits that some persons
from her village had assaulted brother of accused
and so he died, and persons like Ganesh Parbhane,
Uddhav Shelke, Raosaheb Shelke, Nilesh Shelke were
behind the same. She further admits that during
Grampanchayat elections, she was working for
Ganesh Parbhane, nephew of Kashibai. Thus, defence
has brought on record, that there was political
rivalry between the father-in-law of the accused
and the informant due to Grampanchayat election.

8.The prosecution has examined PW-5
Kashibai Bhausaheb Parbhane. She deposed that she
is residing alone at village Gunwadi. Her husband
has deserted her. Ganesh Parbhane is her nephew

and he resides in front of her house. Ganesh
Parbhane is working as a tailor. She had studied
up-to 7th standard and can read. Incident had
taken place on Tuesday, but she cannot tell the

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exact date. She had worked during the whole day
and had prepared the meal. After taking meals she
went to sleep at about 8.30 p.m. Between 1.00 a.m.
to 2.00 a.m. one person suddenly entered in her
hut by opening the latch by inserting his hand.
Subsequently he then caught hold of her neck and
gave a threat that he is from Pardhi community.
Subsequently, the said person tried to outrage her
modesty. She offered resistance. Subsequently, the

said person forcibly took out her clothes and
thereafter committed rape upon her. The said
person also gave a threat that if she tried to
resist, then he will kill her. There was light of
kerosene lamp in her house. Kerosene lamp was
working. She saw the accused in the light of
kerosene lamp. Accused then gave threat to her.
Accused also gave threat to her that in case she
tried to disclose the incident, then he will not
leave her alive. On the next day, she narrated the
incident to her nephew Ganesh. She can identify
the accused, if shown to her. Subsequently police

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had come to her village Gunwadi. She then went to
the police and narrated the incident. Her
statement was recorded by the police. She further
deposed that accused present in the dock is the
same person who has committed rape upon her. She
is able to see with spectacle for long distance.

.During the course of cross-examination,
PW-5 Kashibai admitted that Ganesh is Up-Sarpanch
of the village. She further admits that she is
residing in village Gunwadi since 10-15 years. She
stated that she did not know whether accused Vijay

was residing in the field. She did not know
whether the family of the accused had settled in
village Gunwadi. She further stated that she knows
Kute, the father-in-law of the accused Vijay.
After the incident, she did not immediately go to

the house of Ganesh Parbhane to narrate the
incident as she was disturbed and afraid. She had

reached the police station at about 8.00 a.m.
Police had recorded her statement between 8.00

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a.m. to 9.00 a.m. Her statement was recorded as

per her say. She further stated that she had a
talk with Ganesh Parbhane early in the morning.
She admits that in the night she had also not gone
to the house of any other person. She further
stated that, she had not stated to the Police that
she had narrated the incident to her nephew Ganesh
between 10.00 a.m. to 12.00 noon. She further
stated that portion marked "B" in her statement is
not correct. She was unable to assign any reason
as to why the Police had recorded portion marked
"A" and "B". She further denied all the

suggestions put to her by the defence. She admits
that she is not wearing spectacles while sleeping.
She stated that she cannot identify person from
long distance but she can identify the person from
short distance. She is having bifocal spectacles.

She does not require spectacles for seeing from
short distance.

9.Upon careful perusal of the oral

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testimony of both the victims i.e. PW-3 Ranjana
and PW-5 Kashibai, it is clear that they have
narrated almost same and similar incidents. Both
of them have stated that, during the night time
accused entered in their houses, he had told them
that he is from Pardhi community and had came
there to commit theft. Both of them have stated
that, though they have tried to resist, the
accused had committed rape upon them in the same
night by showing them knife. Upon careful perusal
of the first information report, it reveals that
the details of the incident happened with PW-3
Ranjana are stated, and at the end of the said
report there is mention that similar incident had
been happened with PW-5 Kashibai. Thus it is
crystal clear that in respect of the incident
happened with Kashibai there is no separate first
information report. Further, it is specifically
stated by victim Ranjana in the First Information

Report that, that she had made discussion with the
relatives and thereafter the report was lodged.

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Even PW-8 Nanda Balasaheb Shelke, relative of
victim Ranjana, had admitted in her cross-
examination that, before going to police station
to lodge the report all the relatives had
assembled together and there was discussion. Thus
the evidence on record reveals that before lodging
the first information report, all the relatives
had assembled together, thereafter there was
discussion wherein it was decided to lodge the
report, and then report was lodged. Thus, we find
considerable force in the argument advanced by
learned counsel appearing for the accused that

after due deliberation the first information
report was lodged with an intention to falsely
implicate the accused. It is highly improbable
that the accused entered in the house of the
informant from the roof of the house with an
intention to commit theft and disclosed his
identity to the informant.

10.Now we will consider the medical evidence

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brought on record by the prosecution. The
prosecution has examined PW-6 Dr. Jaya Amit
Sardesai. She deposed that she was working as
Medical Officer and attached to Civil Hospital,
Ahmednagar since the year 2006. On 10th August,
2011, she was on duty as Casualty Medical Officer
from 9.00 a.m. to 9.00 p.m. On that day at about
1.05 p.m. Ranjana Sahebrao Shelke was brought to

her for examination along with Police Yadi. Nagar
Taluka Police Station had made a request by letter
to carry out medical examination of Ranjana.
Accordingly, she conducted medical examination of

the said lady. The patient had given history of
assault. She collected the sample of pubic hair,
blood and vaginal swab. After examination she did

not notice any injury on the body of the victim.
After medical examination she sent the victim
Ranjana to Gynecologist expert. She also received
the Gynecological opinion. After receiving the
opinion of the Gynecologist, she prepared her own
report. She then prepared the medical certificate

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Exhibit-33. She further deposed that in case when
the victim of sexual assault is lady and her age
is 50 years, then the injury may be possible.

.PW-6 Dr. Jaya further deposed that, on
10th August, 2011, she examined another victim
Kashibai Parbhane. She then found history of
sexual assault. Secondary sexual character
developed, abrasion on the right breast. She
further deposed that, in medical examination no
abnormality detected. She has also collected
samples of pubic hair, vaginal swab and blood. She
then sent said samples for chemical analysis. She
then referred the victim Kashibai to the
Gynecologist for expert's opinion. After receipt
of the report from the Gynecologist, she has
prepared the medical certificate Exhibit-35.

.During the course of cross-examination,

PW-6 Dr. Jaya has stated that in medical

certificate Exhibit-33, the name of the police

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authority is not mentioned. She further stated
that, it is possible when rape takes place on the
victim and no bath is taken, then there can be
stains of semen on the clothes. She further stated
that it is possible that in case of forcible rape
external injuries or internal injuries may take
place. She admits that, during medical examination
carried out by her, she did not notice any injury
on the private part of victim Ranjana. She was
shown medical certificate Exhibit-35 in respect of
another victim Kashibai. She admitted that, she
did not notice any injury on the private part of
Kashibai during her medical examination. She had
sent the samples for the chemical analysis to the
Chemical Analyst. She further stated that, unless
the report of Chemical Analyst is received, no
clear opinion can be given whether the victim was
subjected to rape.

11.Thus upon careful perusal of the medical
evidence, it did not support the prosecution case.

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PW-6 Dr. Jaya has specifically stated that, she

did not found any injuries on the private part of
both the victims i.e. Ranjana and Kashibai. Dr.
Jaya has stated that it is possible that in a case
of forcible rape external or internal injuries may
take place. Therefore, the case of the prosecution
that accused had committed forcible sexual
intercourse with both the victims against their
wish, is not at all corroborated by the medical
evidence. Both the victims were grown up ladies
and when accused tried to commit rape upon them,
then it was expected that they would have strongly

resisted the accused and in that course, there
was every possibility that they would have
received at least some injuries. But medical
evidence shows that both the victims have not
received any internal or external injuries and
therefore, the prosecution case is not at all
believable. Though it is alleged by the informant

in the first information report that the accused

has bitten to the left chest of the informant,

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however there is no mention about the said injury
in the report of the doctor namely PW-6 Jaya, who
has medically examined the informant and issued
medical certificate. Though medical officer PW-6
Jaya has stated in the medical certificate that
there was abrasion on the right chest of PW-5
Kashibai, the same is minor injury and much
importance cannot be given to the same. Further,
it is to be noted that PW-5 Kashibai has never
mentioned in her oral testimony that during the
alleged incident, she had received any injury to
her chest.

12.The C.A. Report in respect of the samples
of clothes sent for chemical analysis of both the
victims and accused is at Exhibit 13/1. Exhibit-9
is underwear. It is stated in the C.A. report that
Exhibit-9 has one blood stain of about 2 c.m. in
diameter on middle portion, no semen is detected

on Exhibit-9. Exhibit-1 is bed-sheet, Exhibit-2 is
blouse, Exhibit-3 and 4 are Sarees, Exhibit-5 is

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petticoat,Exhibit-6isanotherblouse,
Exhibit-7 is full pant and Exhibit-8 is full
shirt. It is stated in the C.A. report that
neither blood nor semen is detected on Exhibits-
1, 2, 3, 4, 5, 6, 7 and 8. It is further stated in

the C.A. report that, species origin and ABO
Grouping result is inconclusive.

13.Exhibit 13/2 is C.A. report in respect of

samples of victim Ranjana. Exhibit-1 and 2 are

blood samples, Exhibit-3 is pubic hairs, Exhibit-4
is nails and Exhibit-5 is vaginal swab. It is
stated in the C.A. report that, neither blood nor
tissue matter is detected on Exhibit No.4, no
semen is detected on Exhibit Nos. 3 and 5, blood
group of Exhibit Nos. 1 and 2 cannot be determined
as the results are inconclusive, opinion regarding
presence of foreign hair in Exhibit No.3 cannot be
given as they are unsuitable for examination.

14.Exhibit 13/3 is C.A. report in respect of

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samples of victim Kashibai. Exhibit-1 and 2 are
blood samples, Exhibit-3 is pubic hairs, Exhibit-4
is nails and Exhibit-5 is vaginal swab. It is
stated in the C.A. report that, no semen is
detected on Exhibit Nos.3 and 5, neither blood nor
tissue matter is detected on Exhibit No.4, blood
group of Exhibit Nos.1 and 2 cannot be determined
as the results are inconclusive, opinion regarding
presence of foreign hair in Exhibit No.3 cannot be
given as they are unsuitable for examination.

15.Exhibit 13/4 is C.A. report in respect of

samples of accused Ajay @ Vijay. Exhibit-1 and 2
are blood samples, Exhibit-3 is chest hairs. It is
stated in the C.A. report that, neither semen nor
vaginal fluid is detected on Exhibit No.3, blood
group of Exhibit Nos.1 and 2 cannot be determined
as the results are inconclusive.

16.Thus, upon careful perusal of all the
C.A. reports, referred herein above, it is clear

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that no semen was detected on the samples of
pubic hairs as well as nails. The blood groups
were inconclusive, neither semen nor vaginal fluid
was detected on Exhibit No.3 - chest hairs of the
accused. Thus, the evidence in respect of C.A.
report is not at all conclusive to prove that
there was rape on the victims.

17.PW-4 Uddhav Dattatraya Shelke is uncle of

informant Ranjana. He deposed that Nandabai
(PW-8), wife of his cousin brother called him and
stated about the incident. Thereafter he visited

the house of Ranjana, who told him about the
incident. PW-7 Dr. Amit Balkrishna Gosawi deposed
that he was directed by the investigating officer
to give opinion by way of medical examination as
to whether accused was capable of doing sexual
intercourse. He further deposed that he gave
opinion that the accused is capable of doing
sexual intercourse and he may be having sexual
activities. PW-9 Maruti Asaram Thorat is police

cria348.13

naik of Nagar Taluka Police Station, who carried
the muddemal articles as well as the samples to
the office of Chemical Analyst at Nashik.

18.PW-10 Sachin Sitaram Sanap is an

investigating officer. He deposed about the manner
in which he has carried out the investigation of
the crime. During the course of cross-examination,
he has admitted that no cash amount came to be

recovered from the accused during the period of
police custody. He further admits that no knife
came to be recovered from the possession of
accused during investigation. He further admitted
that during the period of investigation in the
present crime, he was having good relations with
Sarpanch and Up-Sarpanch of village Gunwadi.

19.PW-11 is Machindra Rangnath Birangal,

head constable, Nagar Taluka Police Station. He

deposed that he has recorded the complaint lodged
by the informant Ranjana.

cria348.13

20.We have carefully examined the oral

evidence of PW-3 Ranjana and PW-5 Kashibai. The
same is not trustworthy to come to the definite
conclusion that the Appellant has committed the
offence of rape. As already observed, it is the
case of the prosecution that the Appellant had
committed forcible intercourse with both the
victims, however as per the medical evidence no
external or internal injuries were found on the
person of PW-3 Ranjana and PW-5 Kashibai. Though
in their oral testimonay, both the victims have

stated that accused forcibly entered in their
houses and committed rape upon them, the said
evidence suffers from serious contradictions,

omissions and improvements and makes it
unbelievable. As already observed, regarding the

alleged incident happened with PW-5 Kashibai, no
separate first information report was registered.

Therefore, oral evidence of PW-3 Ranjana and PW-5
Kashibai is not at all trustworthy and reliable.

cria348.13

The evidence brought on record reveals that there
was political rivalry between two groups in the
said village and the Appellant and the victims
belong to rival groups, and therefore the
possibility of false implication cannot be ruled
out. The factum of rape is not at all proved.
There is no corroboration to the testimony of PW-3
Ranjana and PW-5 Kashibai, and in absence of it to
rely upon only oral testimony of PW-3 and PW-5,
which suffers from contradictions and omissions,
would not be safe. Therefore, the prosecution has
failed to prove, beyond reasonable doubt, that the
accused had committed an offence under Section 376
of the I.P. Code.

21.The Supreme Court in the case of Dinesh
Jaiswal vs. State of M.P.1, in the facts of the
case, observed that, a young man alleged to have
entered house of victim, inflicted injuries on her
and raped her. Victim an elderly woman also said

12010 CRI. L.J. 1917

cria348.13

to have snatched weapon from accused and injured
accused on head. Prosecution witnesses though
close relatives, did not support the prosecution
case. Husband of victim had not entered the
witness box. The doctor was unable to confirm
factum of rape. The story of prosecution that
victim over powered accused who was young man, was
unbelievable. It is held that the conviction
cannot be based on sole testimony of prosecution
and the appeal was allowed. In the present case in

hand also, the story of the prosecution is
unbelievable. The doctor was unable to confirm the

factum of rape. It is the case of the prosecution
that though both the victims resisted, the
appellant has committed forcible intercourse,
however the medical evidence does not support the
case of the prosecution. No external or internal

injuries were found on the person of both the
victims. The C.A. reports are also not supporting

the case of the prosecution. Further, the
prosecution has failed to prove that the Appellant

cria348.13

has committed robbery.

22.Upon perusal of the entire evidence, it

is clear that the prosecution has utterly failed
to prove the offence under Section 392, 452 and
506 of the I.P. Code. Though it is alleged by the
informant Ranjana that accused had snatched
Rs.5000/- from her, there is no recovery of the
said amount at the instance of the Appellant. As
observed earlier, PW-10, investigating officer has
specifically admitted that no cash amount came to
be recovered from the accused during the period of
police custody. Thus, there is no iota of evidence
that the Appellant has committed robbery. Though

PW-3 Ranjana and PW-5 Kashibai alleged that
Appellant has committed house-trespass, there is
no corroborative evidence to support the said

allegations. Though it is the case of the
prosecution that accused, with the help of knife,
threatened PW-3 Ranjana and PW-5 Kashibai, as
observed earlier, the investigating officer PW-10

cria348.13

Sachin Sitaram Sanap, during the course of cross-
examination, admitted that no knife came to be
recovered from the possession of accused during
investigation.

23.The trial Court has not appreciated the
entire evidence brought on record in its proper
perspective and reached to a wrong conclusion. The
findings recorded by the trial Court are not in
consonance with the evidence brought on record.
The sentence awarded under Section 376 of the I.P.
Code in respect of Kashibai is contrary to the
settled principles of law, as no crime is
registered in respect of incident narrated by
Kashibai for offence punishable under Section 376
of the I.P. Code.

24.We have serious reservation about
awarding consecutive sentences for the offence
punishable under Section 376 of the I.P. Code for
the alleged commission of rape on PW-3 Ranjana and

cria348.13

PW-5 Kashibai by the learned trial Court in view

of the provisions of Section 31(2) of the Code of
Criminal Procedure.

25. In the light of discussion in foregoing
paragraphs, an inevitable conclusion is that the
Appellant is entitled for the benefit of doubt.
Hence, we pass the following order:

O R D E R

(I) The Criminal Appeal is allowed.

(II) The impugned Judgment and order
dated 26th February, 2013, passed by
theAdditionalSessionsJudge,

Ahmednagar in Sessions Case No.320 of
2011 convicting and sentencing the
Appellant for the offence of rape upon
Ranjana and for the offence of rape
upon Kashibai punishable under Section
376, 392, 452, 506 of the Indian Penal
Code, is quashed and set aside.

(III) The Appellant is acquitted of
the offence punishable under Section

cria348.13

376, 392, 452, 506 of the Indian Penal
Code.

(IV) Fine amount, if deposited as per
the impugned Judgment and order, be
refunded to the Appellant.

(V) The Appellant is in jail, he be
set at liberty forthwith, if not
required in any other case.

(VI) The Appellant shall furnish the
Personal Bonds of Rs.15,000/- and
surety of like amount under Section
437-A of the Code of Criminal
Procedure, before the concerned trial
Court at Ahmednagar.

(VII) We appreciate the sincere efforts
taken by learned counsel Mr. M.B. Kolpe
(appointed),appearingforthe
Appellant, and we quantify Rs.8,000/-
(Rupees Eight Thousand) towards his
fees and expenses.

[V.K. JADHAV, J.] [S.S. SHINDE, J.]
asb/JUL18