Full Judgment Text
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PETITIONER:
SURESH N. BHUSARE AND ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 11/08/1998
BENCH:
G.T. NANAVATI, S.P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
The three appellants were tried in the court of
Additional Sessions Judge, Nasik, in Sessions Case No.
117/83, for the offences punishable under sections 376 and
342 IPC. The trial court acquitted them but their acquittal
was reversed by the High Court. Therefore, they have filed
this appeal.
It was alleged against the appellant that on 28.7.83,
at about 11 o’clock, they committed rape of Gangu Bai when
she had gone to shop of appellant No. 1 for purchasing a
match box. In order to prove its case, the prosecution had
examined P.W. 3 Gangu Bai and P.W. 4 - Shankar, brother-in-
low of Gangu Bai. The prosecution had also led evidence of
the doctor who had examined Gangu Bai. The circumstance that
from the house of appellant No. 1, some beads of broken
necklace of Gangu Bai were found, was also relied upon. The
trial court, however, found that the evidence of P.W. 3 -
Gangu Bai could not be relied upon safely as it suffered
from serious infirmities. Her evidence was found to be
inconsistent with the FIR lodged by her on material aspects.
The trial court also took note of the fact that no injury
was found on her person even though her version was that she
was dragged and had in fact received some scratches. The
trial court also took into consideration the delay in filing
the FIR. The circumstance that some beads of broken necklace
of P.W. 3 - Gangu Bai were found in the house of appellant
No. 1, was not believed as it was considered unnatural that
even after four days the appellant would have allowed the
beads to remain there. For these reasons, the trial court,
acquitted the appellants.
The High Court found evidence of P.W. 3 reliable and
observed that it was such that implicit reliance could be
placed upon it. Therefore, accepting evidence of P.W. 3 -
Gangu Bai alone the High Court reversed the acquittal of
the appellants and convicted the appellants under Sections
376 and 342 IPC.
Mr. Jain, learned counsel appearing for the appellants,
submitted that the High Court has committed a grave error in
placing implicit reliance on the evidence of P.W.-3 Gangu
Bai as her evidence was not trustworthy and consistent with
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the evidence of P.W. 4, her brother-in-law.
It is proved that in her police Statement, P.W.3 had
stated that Vishnu was following while she was going to the
shop of appellant No. 1 and had not referred to Shankar-
P.W. 4 at all. she changed her version in the Court and
stated Vishnu had not followed her. She also stated that
Shankar, her brother-in-law, met her on the way. He was
sitting on his bullock cart and had asked her as to where
she was going. she had replied by saying that she was taking
food for her husband who had gone to the field. She further
stated that after about ten minutes, he had come to the shop
of appellant No. 1 to purchase tobacco and finding the door
closed had kicked the door and shouted in the name of
appellant No. 1 to open the door. He then forcibly took her
out and kicked her and told her to go home. She had not
disclosed anything to him at that time.
In her evidence, she has stated that when the incident
took place she was pregnant. It was about seven months old
and because of the rape she had aborted on the third day.
But when she was examined by Dr. Sulay after a few days, no
positive sign of recent abortion was noticed. it is proved
that she had not stated like that in her FIR. It would go to
show that she was making a deliberate improvement on a
material point when she stated that at the time of rape she
was in an advanced stage of pregnancy, with a view to rule
out consent.
Her further version was that when she had gone to
purchase a match box from the shop of appellant No.1, she
was carrying a bundle of food articles on her head and she
kept it on the ’ota’ (platform) of the shop. If she had
really gone only for that purpose, there was necessity for
her to do so. Moreover, P.W. 5 - Shankar had not found it
outside the shop but outside the door of the middle room,
i.e., well within the shop. If that was so, then it would
mean that she had gone inside the shop willingly and was not
lifted from the outer and then portion of the shop/dragged
and taken into the middle room. She had deposed that because
of dragging and resistance she had received scratches on her
back, neck and thighs. But not a single injury was found on
her person when she had lodged her complaint.
This High Court had rightly not relied upon the
evidence of Shankar-brother-in-law of Gangu Bai. His conduct
was not consistent with his claim that Gangu Bai had told
him that the three appellants had raped her. He behaved
thereafter as if nothing had happened. He even purchased
tobacco from appellant No. 1 thereafter. He did not inform
anyone till next day morning about what had happened. On the
contrary, his conduct inputting her out from the middle
room, giving a kick to her and telling her to go home, not
taking any other action and waiting at the shop of appellant
No. 1 and purchasing tobacco leads to an inference that no
complaint was made by Gangu Bai at that time that she was
raped. Gangu Bai herself has not stated that she had told
P.W. 4 like that when she came out of that room.
With all these infirmities in her evidence, no implicit
reliance could have been placed upon her evidence. The High
Court having failed to consider all these important aspects
erroneously cam to the conclusion that her evidence was
reliable. The High Court was wrong in reversing the order of
acquittal passed by the trial court and convicting the
appellant for both the offences.
We, therefore, allow this appeal, set aside the order
of conviction and sentence passed by the High Court. They
are therefore ordered to be release from jail, if their
presence in jail is not required in connection with some
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other case.