Allowed

Santosh Dinanath Gupta v. the State of Maharashtra

Bombay HC16 Apr 2018APEAL/811/2013

Case brief

AI extract

What is this about?

Appeal against conviction for kidnapping and raping a minor girl, alleged to have been confined in a room for three days. The High Court found the prosecutrix's version inherently improbable and contrary to normal human conduct, uncorroborated by any witness, and unsupported by medical and forensic evidence, and acquitted the appellant.

What did the court decide?

Appeal allowed; impugned judgment and order of conviction quashed and set aside; appellant acquitted of offences under Sections 376, 366A, 342 and 506 IPC; fine, if paid, refunded.

Santosh Dinanath Gupta Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2018)

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(201)APEALNo.8112013(J)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.811 OF 2013

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Mr.Santosh Dinanath Gupta Aged 24 years, Occ. Autorickshaw driver Lovly Mutton Shop, Near HiraMoti Building, Gazdharband, Santacruz (West), Mumbai. (At present Thane Jail)

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... Appellant

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V/s.

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The State of Maharashtra (Through Goregaon Police Station Vide in C.R.No.201/2011)

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... Respondent

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Ms.Nasreen S.K.Ayubi, Appointed Advocate for the Appellant.

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Ms.Anamika Malhotra, APP for the Respondent/State.

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CORAM : A.M.BADAR J.

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DATED : 16^th APRIL 2018.

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ORAL JUDGMENT :

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1 The appellant/accused by this appeal, is challenging the Judgment and Order dated 22/05/2013 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.201 of 2011 thereby convicting the appellant/accused of offences punishable under Sections 376, 366A, 342 and 506 Part II of the Indian Penal Code. For the offence punishable under Sections 376

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of the IPC, the appellant/accused is sentenced to suffer rigorous imprisonment for ten years apart from imposition of fine of Rs.10,000/- and default sentence of rigorous imprisonment for two years. For the offence punishable under Section 366A of the IPC, he has been sentenced to suffer rigorous imprisonment for seven years apart from imposition of fine of Rs.5,000/- and default sentence of rigorous imprisonment for one year. For the offence punishable under Section 342 of the IPC, the appellant/accused is sentenced to suffer rigorous imprisonment for six months. For the offence punishable under Section 506 of the IPC, he has been sentenced to suffer rigorous imprisonment for two years apart from imposition of fine of Rs.3,000/- and default sentence of rigorous imprisonment for two months. The learned trial Court has directed all substantive sentences to run concurrently by the impugned Judgment and Order.

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2 Facts in nutshell leading to the prosecution of the appellant/accused can be summarized thus :

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(a) The prosecutrix/P.W.No.1 was residing at Mutton Galli in Gazdharband area Santacruz (West), Mumbai. She was residing along with her mother P.W.No.3 Jayashree, her father Praful and her two sisters and one brother. The appellant/accused Santosh is also resident of the same locality and he used to drive a auto rickshaw for earning his

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livelihood. Absconding accused Ranu is cousin of the appellant/accused and Mrs.Annu is wife of Ranu. The appellant/accused was on visiting terms with the prosecuting party. Members of the prosecuting party used to use services of the appellant/accused for reaching them to the house of their relatives by auto rickshaw of the appellant/accused.

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(b) In April 2011, as there was holidays to the schools, the prosecutrix/P.W.No.1 went to reside with her maternal grandmother P.W.No.5 Sonibai Solanki at Jawaharnagar, Goregaon (West), Mumbai. On 05/06/2011, while staying with her maternal grandmother P.W.No.5 Sonibai Solanki, the prosecutrix/P.W.No.1 had gone to purchase some articles at Jawaharnagar. At that time, the appellant/accused came and threatened the prosecutrix/P.W.No.1 to accompany him by stating that her mother had obtained hand loan of Rs.15000/- and if she accompany him, he will waive recovery of that hand loan or else the prosecutrix/P.W.No.1 will face dire consequences. Under this threat of the appellant/ accused, the prosecutrix/P.W.No.1 sat in the auto rickshaw of the appellant/accused which was also occupied by Ranu Gupta and his wife Mrs.Annu. The rickshaw was then taken to Mutton Galli, Gazdharband, where parental house of the prosecutrix/P.W.No.1 was situated. The prosecutrix/ P.W.No.1 was then taken to the house of absconding accused

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Ranu Gupta. She refused to have dinner provided by the appellant/accused. They all slept in that house.

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(c) On the next day i.e. on 06/06/2011, the prosecutrix/ P.W.No.1 was assaulted by the appellant/accused as well as the absconding accused and then she was locked inside the house. The appellant/accused and others left that room. At 3.00 p.m. of 06/06/2011, the appellant/accused returned to the room and offered meal to the prosecutrix/P.W.No.1. She refused to eat. Thereafter, the appellant/accused committed rape on her and left the room by again locking the prosecutrix/P.W.No.1 inside that room. He again returned at 9.30 p.m. carrying the packed dinner. However, the prosecutrix/P.W.No.1 refused to eat. Hence, the appellant/ accused again locked the room and went away.

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(d) On 07/06/2011, at 7.00 a.m., the appellant/accused again returned to the room and offered breakfast. The prosecutrix/ P.W.No.1 again refused to eat. She was thereafter again locked inside the house. The appellant/accused then returned to the room at about 2.30 p.m. and committed rape on the prosecutrix/P.W.No.1. Locking the prosecutrix/P.W.No.1 inside the room, the appellant/accused again left the room.

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(e) On 08/06/2011, at about 8.00 a.m. in the morning, the appellant/accused again came to the room. The prosecutrix/

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P.W.No.1 requested him to take her to the Goregaon area of Mumbai for having lunch. The appellant/accused, therefore, took her by the auto rickshaw towards Goregaon and at about 5.10 p.m., when auto rickshaw came near the Goregaon Railway station, the prosecutrix/P.W.No.1 alighted from that auto rickshaw and by taking another auto rickshaw went to Police Station, Goregaon and contacted Mrs.Pawan Pethe, Assistant Police Inspector and lodged the FIR (Exhibit 9), which has resulted in registration of Crime No.201 of 2011 for the offences punishable under Sections 366A, 376, 341, 323, 504, 506(II) read with Section 34 of the IPC against the appellant/accused as well as co-accused.

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(f) During the course of investigation, the prosecution has seized clothes of the prosecutrix/P.W.No.1 and she was referred to the Police Hospital, Nagpada, where P.W.No.7 Dr.Pratap Anand had medically examined her on 09/06/2011. She was also examined by P.W.No.8 Yusuf Abdulla Matcheswalla. The appellant/accused came to be arrested and on the basis of his disclosure statement, a bed-sheet came to be recovered from his auto rickshaw in presence of P.W.No.4 Ashok Shirke, panch witness. The spot came to be inspected in presence of P.W.No.2 Ganesh Maingade, panch witness and spot panchanama (Exhibit 13) came to be recorded on 09/06/2011. Certificate of date of birth of the prosecutrix/

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P.W.No.1 came to be collected and on completion of investigation, the appellant/accused came to be chargesheeted.

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(g) The learned trial Court framed charge for the offences punishable under Sections 366-A, 376, 342, 323, 504, 506(II) read with Section 34 of the IPC against the appellant/accused. He pleaded not guilty and claimed trial.

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(h) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all 11 witnesses. The prosecutrix came to be examined as P.W.No.1, whereas the report lodged by her is at Exhibit 9. Panch witness Ganesh Maingade is examined as P.W.No.2, whereas the spot panchanama is at Exhibit 13. Jayashree – mother of the prosecutrix examined as P.W.No.3. Exhibit 15 is the certificate of date of birth of the prosecutrix/P.W.No.1. P.W.No.4 Ashok Shirke is examined to prove Memorandum Statement and recovery panchanama (Exhibits 17 and 18) showing recovery of a bed sheet of the appellant/accused. Sonibai Solanki, maternal grand-mother of the prosecutrix/P.W.No.1 is examined as P.W.No.5. Panch witness Geeta Borkar is examined as P.W.No.6, whereas Exhibit 21 is the seizure panchanama of clothes of the prosecutrix. Dr.Pratap Anand is examined as P.W.No.7

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whereas Yusuf Abdulla Matcheswalla is examined as P.W.No.8. Mrs.Pawan Pethe is examined as P.W.No.9. Investigating Officer, Deepak Gujar, Police Inspector of Goregaon Police Station is examined as P.W.No.10. Asha Adwani, Sub Registrar under Registration of Births and Deaths Act, 1969 is examined as P.W.No.11. Exhibit 36 is the extract of the Birth Register.

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(i) The defence of the appellant/accused was that of total denial. He, however, did not enter into defence. According to the appellant/accused, he had given hand loan of Rs.15,000/- to the mother of the prosecutrix/P.W.No.1 and she has falsely implicated him in the instant case.

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(j) Upon hearing the parties, by the impugned Judgment and Order, the learned trial Court was pleased to convict the appellant/accused and sentenced him as indicated in the opening paragraph of this Judgment.

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3 I heard Ms.Ayubi, the learned Advocate from the Panel of Legal Aid of this Court appointed to represent the appellant/ accused at the cost of the State. She vehemently argued that evidence of the prosecutrix/P.W.No.1 is totally uncorroborated and the same is suffering from severe infirmities and lacunas. The prosecutrix/P.W.No.1 is not the witness of the truth and her

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evidence is inherently improbable. The learned Advocate drew my attention to the cross-examination of the prosecutrix/P.W.No.1 to point out that she was repeatedly leaving her house and wandering in the locality and thereafter approaching the Police Station to lodge report. The learned Advocate further argued that undisputedly mother of the prosecutrix had taken hand loan of Rs.15,000/- from the appellant/accused and for no reason the appellant/accused is falsely implicated in the crime in question.

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4 The learned Additional Public Prosecutor supported the impugned Judgment and Order by contending that the prosecutrix, who was a minor girl aged about 14 to 15 years came to be kidnapped from her lawful guardianship by the appellant/accused and, thereafter, she was subjected to rape by the appellant/accused. She was threatened and intimidated by the appellant/accused and evidence of the prosecutrix is gaining corroboration from the forensic evidence adduced by the prosecution.

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5 I have carefully considered the rival submissions and also perused the Record and Proceedings including depositions of witnesses and documentary evidence adduced by the prosecution.

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6 Principles of appreciation of evidence in rape cases as well as cases involving sexual offences are elaborated by the

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Honourable Apex Court in the matter of State of Punjab vs. Gurmeet Singh¹ and it is apposite to reproduce the relevant portion of that Judgment, which reads thus :

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“It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an

1 1996 Cr.L.J. 172.

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accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

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7 It is now well settled that a finding of guilt in cases of rape can be based on uncorroborated evidence of prosecutrix because very nature of such offence makes it difficult to get direct corroborating evidence. In such cases, minor discrepancies and contradictions in the evidence of the prosecutrix are required to be ignored and her evidence is required to be considered by keeping in mind the broader probabilities of the prosecution case. Evidence of the victim of the rape case is used to be normally accepted even if it is uncorroborated unless material on record requires drawing of an inference that the entire incident was improbable or imaginary. Even if there is material to infer consent of the victim, the act will still be a rape if the girl is under sixteen years of age. Similarly, absence of injuries on private parts of such victim will not by itself falsify the case of rape. Keeping in mind these aspects, let us examine the evidence of the prosecutrix.

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8 According to the prosecution case, the prosecutrix/P.W.No.1 came to be kidnapped by the

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appellant/accused with the aid of his cousin i.e. absconding accused Ranu Gupta on 05/06/2011 from Jawaharnagar, Goregaon with an intention that she will be forced to illicit intercourse with other person and subsequently, she was subjected to rape by the appellant/accused by wrongfully confining her in the room of his cousin i.e. absconding accused Ranu Gupta by criminally intimidating her. According to the prosecution case, as reflected from the FIR, the prosecutrix/P.W.No.1 was kidnapped on 05/06/2011 and was wrongfully confined in the room of absconding accused Ranu Gupta up to 08/06/2011, whereat she was raped by the appellant/accused. Considering this nature of the prosecution case, evidence of the prosecutrix/P.W.No.1 has prime importance to infer guilt of the appellant/accused. It is worthwhile to mention her that there is no witness to the fact of kidnapping of the prosecutrix/P.W.No.1 by the appellant/accused and the co-accused, so also there is no witness to the fact that the fact of confining the prosecutrix/P.W.No.1 in the room of absconding accused Ranu Gupta located at Gazdharband, Santacruz (West). Similarly, there is no eye-witness to the fact of the appellant/accused taking the prosecutrix/P.W.No.1 out of the said room on 08/06/2011. In other words, there is no direct corroborating evidence in the case in hand. Let us, therefore, examine evidence of the prosecutrix/P.W.No.1 carefully in

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order to ascertain whether she is truthful witness and whether her evidence can be relied in order to base conviction.

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9 Evidence of the prosecutrix/P.W.No.1, so also that of her mother P.W.No.3 Jayashree shows that the prosecutrix along with her family comprising of her mother, father, two sisters and one brother used to reside at Gazdharband area of Santacruz (West) and the appellant/accused, who is rickshaw driver by occupation used to reside in the same area. Evidence of both these witnesses shows that P.W.No.3 Jayashree had taken hand loan of Rs.15,000/- from the appellant/accused and she used to refund Rs.750/- per month to the appellant/accused. It is seen from the evidence of the prosecutrix/P.W.No.1 that the appellant/accused used to visit her house for watching the programmes on the television set and they used to travel in the auto rickshaw of the appellant/accused. Relations of the members of the prosecuting party with the appellant/accused were cordial and this fact is stated in her cross-examination by P.W.No.9 Mrs.Pawan Pethe, Assistant Police Inspector of the Goregaon Police Station.

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10 With this material on record let us further examine what the prosecutrix is stating about the incident, As seen from the evidence of the prosecutrix/P.W.No.1 and that of her

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mother P.W.No.3 Jayashree, in the month of April 2011, the prosecutrix/P.W.No.1 went to reside with her grand-mother P.W.No.5 Sonibai Solanki at Jawaharnagar, Goregaon (West), Mumbai. On 05/06/2011, as stated by the the prosecutrix/ P.W.No.1 as well as her grand-mother P.W.No.5 Sonibai Solanki, the prosecutrix/P.W.No.1 went to purchase some eatables. As per version of the prosecutrix/P.W.No.1 at about 1.30 p.m. of that day when she had been to purchase the curd, the appellant/accused came and told her that if she accompanies him, he will not demand refund of Rs.15,000/borrowed by her mother. Then brother and sister-in-law of the appellant/accused caught hold of her and made her to sit in the rickshaw by which she was taken to the house of the brother of the appellant/accused at Santacruz. Evidence of the prosecutrix/P.W.No.1 shows that from 05/06/2011, she was detained in the room of brother of the appellant/accused. As per her version, on 05/06/2011, she refused to have dinner and slept in that room where the appellant/accused, absconding accused Ranu Gupta and his wife slept. Then on 06/06/2011, she was offered breakfast by the appellant/ accused but she refused and then the appellant/accused left the room by locking her inside the room. The prosecutrix/ P.W.No.1 deposed that in the evening, the appellant/accused returned to the room and offered dinner to her to which she refused. Then the appellant/accused committed rape on her

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and left the room by locking the same from inside. She claimed to have became unconscious thereafter. As per her version, she regain consciousness in the morning hours of 07/06/2011. She deposed that she found the appellant/ accused as well as the absconding accused Ranu Gupta present in the room at that time. She was offered breakfast by the appellant/accused, but she refused to eat it. Then, she was beaten and the appellant/accused left her in the room by locking that room. The prosecutrix/P.W.No.1 further stated that then four to five hours thereafter, the appellant/accused returned to the room and offered her dinner. She refused to eat. As per version of the prosecutrix/P.W.No.1, at about 8.00 a.m., the appellant/accused came in the room. Thereafter, he forced the the prosecutrix/P.W.No.1 to sit in his auto rickshaw. She was taken in the auto rickshaw, but on the way she ran away at a signal and by taking another auto rickshaw she went to the Police Station, Goregaon and lodged report regarding the incident. She claims to have stayed in the Police Station in that night and on the next day she was subjected to medical examination.

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11 This is all which the prosecutrix has stated in her chief-examination and at the first blush the incident appears to be a serious incident of kidnapping a minor and subjecting the minor to rape by confining her in the room for three days.

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However, let us test the veracity of version of this witness from the material brought on record from her crossexamination.

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12 Cross-examination of the prosecutrix/P.W.No.1 reveals that her missing from her parental house was a routine phenomenon. Her cross-examination reveals that prior to the incident in question she went missing from her house for seven days. She has also stated in her cross-examination that from 12/04/2012 to 18/04/2012 she went missing from the house and was wandering in the locality and was staying near the house. As per her version in the cross-examination she again went missing for two days from her house and went to Jawaharnagar. The prosecutrix/P.W.No.1 has stated in her cross-examination that after the incident in question she went missing for seven days and was wandering in the locality without meeting anybody. In cross-examination she claims that when she went to the Police Station for lodging report of this incident, the constable went to her house as the constable was knowing her house. The reason for this knowledge of the constable is also stated by the prosecutrix. She stated in the cross-examination that two-three months from the incident in question, she went missing and thereafter she herself went to the Police Station for lodging the report and that is how the police constable was knowing her house. This material

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elicited from the cross-examination of prosecutrix, who was just fourteen years and few days old goes to show that the prosecutrix used to leave her house frequently and thereafter used to wander in the locality for few days. Then she used to go to the Police Station where she claims to have lodged reports of such incidents also.

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13 Now, let us put on record the situation prevalent on the scene of occurrence where, according to the prosecution, she was kept confined by the appellant/accused after kidnapping her on 05/06/2011. Though in the chiefexamination, the prosecutrix/P.W.No.1 stated that she was kidnapped at about 1.00 to 1.30 p.m. of 05/06/2011 by the appellant/accused with the aid of the absconding accused, in cross-examination, she stated that she was not taken immediately to the room where she was confined. She stated that for about four to five hours, she was travelling in the auto rickshaw in the company of accused and then came to Kasdarban, Santacruz at about 2.00 to 2.30 a.m. of 06/06/2011 and then slept in the said room. The location of the room where she was allegedly confined by the appellant/accused is also stated by the prosecutrix in her cross-examination. That room, as per statement of the prosecutrix/P.W.No.1 in her cross-examination, was just 15 to 20 houses away from her parental house. It was a slum area

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where 500 to 1000 people used to reside in small rooms. The prosecutrix/P.W.No.1 has stated that the room in which she was kept was a small room having rooms abutting to it on both sides. She further stated that there were rooms on both sides of that room where she was kept and the passage in front of that room used to be inhabitated by women and children round the clock. The prosecutrix/P.W.No.1 has admitted in her cross-examination that she was acquainted with the neighbourers residing in the vicinity of that room. The prosecutrix/P.W.No.1 has stated that during her stay for three days in that room she has never attempted to knock the door of that room despite the fact that the person residing in the neighbouring rooms were acquainted with her and even her parental house was located nearby to that room.

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14 In cross-examination, the prosecutrix has stated that right from 05/06/2011 to 08/06/2011, she had not eaten any food nor had answered to nature's call. She stated in cross-examination that there was no toilet inside the room where she was kept and the toilet for the residents was located outside the room.

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15 With this material elicited from cross-examination of the prosecutrix/P.W.No.1, it becomes clear that the prosecutrix/P.W.No.1 was having tonnes of opportunities to

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get herself rescued from the so-called clutches of the appellant/accused. Evidence of the prosecutrix/P.W.No.1 shows that the appellant/accused used to remain present in that room for a very little time and otherwise the prosecutrix used to be alone in that locked room. She had an opportunity to raise hue and cry, to knock or thump the door to attract the attention of neighborers, who were known to her. Her own house was located near to that room. Still she had chosen not to protest or to make any attempt to get herself freed during that period of days. Her evidence shows that the appellant/accused was well acquainted with her as well as her family. She was not under threats of the appellant/accused nor the appellant/accused used to remain present in the vicinity of that room. She could have very well got attention of women and children who used to remain present in the passage in front of the room which was located in the thickly populated locality.

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16 The prosecutrix/P.W.No.1 wants this Court to believe that she had not eaten anything right from 1.00 to 1.30 p.m of 05/06/2011 till 08/06/2011 and was not required to attend nature's call for this long period of time. This evidence on the face of it is meaningless and absurd. The same is also inherently improbable in the wake of the fact that the prosecutrix/P.W.No.1 was having habit of going missing

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from her house frequently and then after wandering in the locality going to the police station to lodge report of her own conduct. It is improbable that a human being will not require to go to answer nature's call for a period of three days in continuity. All these facts are making the evidence of the prosecutrix/P.W.No.1 highly doubtful and unbelievable. The same does not appear to be reflecting normal human conduct.

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17 Even the situation prevalent at the spot of the incident coming on record from the spot panchanama (Exhibit 13) proved by P.W.No.2 Ganesh Maingade, panch witness also makes evidence of the prosecutrix/P.W.No.1 doubtful. Evidence of this witness shows that the room where the prosecutrix/P.W.No.1 was confined was a very small room of 6 x 10 feet located in the slum area. Similar is the situation as reflected in spot panchanama (Exhibit 13). This makes it clear that the prosecutrix was having ample opportunity to seek help from the nearest neighbourers in the vicinity, had she been confined in the room for subjecting herself to rape by the appellant/accused. Even cross-examination of P.W.No.2 Ganesh Maingade, panch witness makes it clear that he is friend of the prosecutrix/P.W.No.1, who was in habit of going missing repeatedly. P.W.No.2 Ganesh Maingade, panch witness had made it clear in his cross-examination that he used to take leave for helping the family members of the

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prosecutrix/P.W.No.1 for tracing her out whenever the prosecutrix/P.W.No.1 used to went missing. As per version of this witness, to his knowledge, the prosecutrix/P.W.No.1 went missing at least for three to four occasions when he helped her family members to trace her out.

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18 Evidence of P.W.No.3 Jayashree, who is mother of the prosecutrix/P.W.No.1 goes to show that when the prosecutrix went missing prior to the incident in question, the appellant/accused had shown desire to marry her. This witness has stated that she had taken hand loan from the appellant/accused amounting to Rs.15000/-. As per version of this witness, her daughter was knowing the transaction of hand loan.

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19 Thus, it is clear from the evidence on record that the prosecutrix/P.W.No.1 used to went missing from her house repeatedly and her own evidence goes to show that she used to approach the police station thereafter for lodging complaint.

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20 The prosecution could not get any witness to fortify its case that the prosecutrix/P.W.No.1 was seen to be kidnapped by the appellant/accused and was forcibly kept in the room for confining her for the purpose of raping her. The

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prosecution could not get any witness to show that after keeping the prosecutrix inside the small room for three days, she was taken out by the appellant/accused from the thickly populated locality and then travelled in the auto rickshaw driven by the appellant/accused. The locality from where the prosecutrix was allegedly taken by the appellant/accused as well as the locality where she was kept were the thickly populous localities of Mumbai. The prosecutrix/P.W.No.1 did not claim to have raised alarm through all these happenings. All these factors make her version regarding taking by the appellant/accused and subjecting her to rape doubtful.

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21 P.W.No.7 Dr.Pratap Anand had medically examined the prosecutrix/P.W.No.1 soon after the incident. Upon medical examination of the prosecutrix/P.W.No.1 on 09/06/2011, this witness had noted old healed tear of hymen, but did not notice any other injuries on the person of the prosecutrix/P.W.No.1. Evidence of this witness shows that the tear was more than a week's old. Thus, the tearing of hymen of the prosecutrix/P.W.No.1 is not attributable to the incident in question as, according to the prosecutrix, she was raped by the appellant/accused on 06/06/2011 and 07/06/2011. This medical evidence is also not supporting and corroborating the case of the prosecution.

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21/23

¶129

Gaikwad RD

¶130

(201)APEALNo.8112013(J)

¶131

22 P.W.No.6 Geeta Borkar is a panch witness to the seizure of clothes of the prosecutrix/P.W.No.1. She deposed that on 09/06/2011, clothes of the prosecutrix/P.W.No.1 were lying on the table and in her presence police seized those clothes. P.W.No.9 Mrs.Pawan Pethe, Assistant Police Inspector deposed that on 09/06/2011, she seized clothes of the prosecutrix/P.W.No.1 vide seizure panchanama (Exhibit 24). Both these witnesses have not stated about applying lac /wax seal on the packets in which those seized clothes were kept. Even seizure panchanama is not reflecting sealing the packets containing clothes by applying the lac/ wax seal There is no connecting evidence to show that the clothes were kept in sealed condition till they were dispatched to the Chemical Analyzer. In this view of the matter, no overbearing importance can be given to the fact that the Chemical Analysis report (Exhibit 11) shows presence of semen on jeans pant of the victim. Similarly, finding of blood of 'O' group on knicker of the victim is also of no consequence in the wake of Medical Certificate (Exhibit 23), which shows that she has already attained menarchy. Similar is the case in respect of recovered bed sheet. There is nothing to show that it was kept in a packet, which was sealed with lac/ wax till it was subjected to chemical analysis.

¶132

23 It is thus seen that evidence of the prosecutrix/ P.W.No.1 is totally improbable. The same is not worth

¶133

22/23

¶134

Gaikwad RD

¶135

(201)APEALNo.8112013(J)

¶136

reliance for the reasons stated in the foregoing paragraphs. It is not gaining corroboration from other evidence adduced by the prosecution. Therefore, at any rate, the appellant/accused is entitled for benefit of doubts though the prosecutrix/P.W.No.1 was undoubtly a minor female at the time of the alleged incident. In the result, I proceed to pass the following order :

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ORDER

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(i) The appeal is allowed.

¶139

(ii) The impugned Judgment and Order dated 22/05/2013 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.201 of 2011 convicting the appellant accused for offences punishable under Sections 376, 366A, 342 and 506 of the Indian Penal Code is quashed and set aside.

¶140

(iii) The appellant/accused is acquitted of the offences punishable under Sections 376, 366A, 342 and 506 of the Indian Penal Code.

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(iv) Fine amount, if any, paid by him be refunded to him

¶142

(v) He be set at liberty if not required in any other case. (vi) The Appeal is disposed of accordingly.

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23/23

¶144

Gaikwad RD

Santosh Dinanath Gupta v. the State of Maharashtra

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Santosh Dinanath Gupta v. the State of Maharashtra

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