Bombay High Court
Udhavsingh @ Mannu Kisansing Babawale vs The State Of Maharashtra on 24 September, 2010
Author: R. C. Chavan
Bench: R.C. Chavan
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 93 OF 1992.
Udhavsingh @ Mannu Kisansing Babawale
age 35 years, residing at : Mun. House No.76,
North Sadar Bazar, Solapur . .. Appellant
-versus
The State of Maharashtra .. Respondent.
Mr. A.P.Mundargi, Senior Counsel, i/b Mr. M.R. Deshpande, for the
Applicant.
Mr. J. P. Kharge, APP for the Respondent State.
CORAM: R.C. CHAVAN, J.
DATED: 24th September, 2010 oral Judgment.
1. This appeal is directed against appellant’s conviction for the offence punishable under Section 376 of the Indian Penal Code and sentence to suffer RI for 7 years and fine of Rs.5,000/- in default RI for six months, passed by the learned VI th Additional Sessions Judge, Solapur.
2. The facts which are material for deciding this appeal are as under:-
The prosecutrix was about 21 years in age and was to get married within 2 to 3 days after 22.11.1985. On the day of 2 apeal 93of92.sxw incident i.e. night of 22.11.1985, she went to the house of the appellant for getting henna (Mehendi) applied, presumably to her palms and feet. On the insistence of appellant’s mother she had a dinner in the house of the appellant and she also stayed overnight there though her house was at a walking distance.
3. She slept with appellant’s niece Laxmi on a bed in the small room of about 8′ x 13′. The appellant slept on a bed on floor made for him just below the cot. The other members of the appellant’s family i.e., the mother, wife, sister in-law of appellant, were sleeping in the adjoining small room. It was the case of the prosecutrix that at about 3 to 3.30 a.m, the appellant woke her up and signaled her to come down to him on his bed. She claims to have refused to the signal, but allowed herself to be dragged to his bed. She then narrates the incident as to how the appellant uncovered her suitably, and had forcible sexual intercourse with her leading to sever bleeding injury. The appellant accompanied the prosecutrix to her home early in the morning.
4. Then the prosecutrix claims to have gone to answer the natural call presumably in a public toilet, where there was no light and eventually that there was bleeding from her vagin*. She was taken to a Doctor at Civil Hospital, where she was given necessary treatment. Upon her disclosure of reasons for bleeding, report was made whereupon offence was registered.
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5. In the course of investigation, the police recorded statement of witnesses, performed panchnama of spot, seized the bedding on which appellant is alleged to have raped the prosecutrix, seized the clothes of the appellant as also those of the prosecutrix and obtained blood samples of the prosecutrix and that of appellant, sent the seized articles to the Forensic Science Laboratory and on receipt of the report from the laboratory, chargesheeted the appellant.
6. Upon commitment of the case to the Court of Sessions, learned Additional 5th ig Sessions Judge, Solapur charged the appellant for the offence punishable under Section 376 of the Indian Penal Code to which the appellant pleaded not guilty and claimed to be tried.
7. In order to bring home guilt of the appellant, the prosecution examined as many as 12 witnesses. After considering their evidence in the light of defence of denial, learned Additional Sessions Judge by his judgment and order convicted the appellant and sentenced the appellant to suffer RI for 7 years and to pay fine of Rs.5,000/- and in default of payment of fine to suffer SI for six months. Being aggrieved the appellant has preferred this appeal.
8. I have heard learned counsel for the appellant as also the learned Additional Public Prosecutor for the state.
9. The learned counsel for the appellant submits that the 4 apeal 93of92.sxw story given by the prosecutrix is indeed incredible in as much as she was sleeping in a house where there were several other inmates, including the mother, wife and sister in law of the appellant and therefore, it is un-natural that in such a small tenement, the incident could occur un-noticed by others, even if there was a slightest resistance from the prosecutrix. He also pointed out that P.W.11 Dr. Rajendra Karwa had issued two certificates, which, according to learned counsel for appellant, are contradictory on the point as to whether the prosecutrix was subjected to forcible sexual intercourse or not. Vide Exh.40, Doctor observed that there was no marks of violence seen anywhere on the body though there was bleeding from vagin* and therefore opined that no definite opinion regarding forcible sexual intercourse, could be given. This certificate was issued by Doctor on 5.12.1985. On 10th December, 1985, Doctor seems to have revised his opinion and by Exhibit 41, opined that the injury may have occurred due to forceful intercourse and not forcible.
10. Now even if it is taken that Doctor’s opinion are not inconsistent, in as much as on first occasion, he had stated hat no opinion could be given and on the second occasion, had only indicated possibility of forceful intercourse. There is nothing which may be held against the appellant, as there could have been forceful intercourse which need to not be forcible intercourse.
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11. Given the situation in which the incident is alleged to have occurred, when the prosecutrix was sleeping on a cot with one Laxmi the niece of the appellant whereas appellant was sleeping on the floor, the possibility of such an incident of rape i.e., forcible sexual intercourse without the consent of prosecutrix seems far fetched.
12. The findings of stains of blood of the blood group of prosecutrix on the appellant’s clothing does not lead to the conclusion that there was any forcible sexual intercourse against the will of the prosecutrix or without her consent. Forceful sexual intercourse with a virgin may produce such bleeding and thus, such bleeding may result in stains of blood being attached to the appellant’s clothing. Therefore, even the reports of Laboratory, would at worst indicate that there was intercourse between the appellant and the prosecutrix and nothing more. As already indicated the prosecutrix was more than 21 years age at the relevant time and therefore, she was above the age discretion.
Therefore, in these circ*mstances, it cannot be held that the learned Trial Judge was right in concluding that the prosecutrix has been subjected to a rape. Consequently the appeal would have to be allowed and the conviction of the appellant and the sentence of RI for 7 years and fine of Rs.5,000/- or in default RI for six months, is required to be set aside. The fine amount if any recovered from 6 apeal 93of92.sxw the appellant be refunded and the bail bonds stood cancelled.
The Muddemal property if preserved till this date be dealt with, as per order of learned Additional Sessions Judge.
(R. C. CHAVAN, J.)
