The State of Maharashtra v. XYZ

1. At the outset it is required to be noted that since the allegations leveled by the prosecutrix are in respect of the alleged sexual assault, the identity of the prosecutrix and Respondent- Original accused needs to be concealed, therefore, the prosecutrix is referred to as “ABC” and Respondent is referred to as ”XYZ”. The Registry is directed to maintain the record accordingly. Bhagyawant Punde

2. The prosecution case story in short can be summarized as under:- The prosecutrix at the relevant time, a young girl of 14 years of age, was residing along with her family consisting of mother, father, brother and sister at 12/A Command Hospital, Right Flying Lines, Wanwadi, Pune. A woman namely Kristy Swami is residing near the house. Kristy Swami has a daughter. Accused is brother of Kristy Swami’s husband. He was frequently coming to the house of Kristy Swami. At the relevant time the prosecutrix was studying in 6th Standard in Utkarsh English Medium School, Solapur Bazzar, Camp Pune. The accused used to drop daughter of Kristy Swami to school on his scooter. Sometimes, he was taking prosecutrix also on his scooter to her school. After 15 days of Ganpati festival of the year 2001, accused met the prosecutrix near Napier Road, Dargah and told her that he will drop her to school. He took her on his scooter, purchased petrol from a petrol pump, and took her on to the room of his friend situated in front of Empress Garden. Wife of his friend went out of the room for household work. Thereafter, accused closed the door from inside and told prosecutix to put off her clothes. It was at about 8.00 am to 9.00 am. Accused also put off his clothes and committed sexual intercourse with her. Accused then brought her and left her near house after school hours are over. Thereafter, accused took her once in eight days to the same room and committed sexual intercourse with her. Lastly, on 25.09.2001 at about 7.45 am., when the prosecutix was going to her school, accused again met her near the Napier Road, Dargah, and took her on scooter to the room of his friend and after the wife of his friend went away, committed sexual intercourse with the proseutrix two times by closing door from inside. The accused and the prosecutix were in that room till 3.30 pm. Then the accused took her and brought to her house. The mother of the prosecutix asked her as to why she returned late to the house. That time, prosecutix told her mother about the acts committed by the accused. The parents of the accused did not chose to fle FIR promptly. It is after the prosecutrix missed her menstrual course, as per the advice of her parents, she lodged FIR on 07.10.2001 in Wanwadi Police Station, Pune. Upon registration of FIR C.R. No. 190/2001 came to be registered. The then Assistant Police Inspector Mr. V.D. Hake of Wanwadi Police Station, who was entrusted with the investigation, referred the prosecutrix to the Sasson Hospital, Pune, for medical examination. He arrested the accused under arrest panchnama. He recorded statements of parents and uncle of prosecutix on 07.10.2001. On 08.10.2001, he prepared spot panchnama in the presence of two panchas. He seized clothes of accused under panchnama on 08.10.2001. He also seized clothes of prosecutix under separate panchnama. He collected medical examination certifcate and age certifcate of prosecutix. Thereafter, he send sealed packets received from Sasoon Hospital, and seized muddemal property to chemical analyzer. After completion of investigation, he submitted chargesheet on 24.10.2001 in the court of JMFC, Cantonment Court, Pune, who in turn committed the case to the Sessions Court, Pune, for trial.

3. The trial Court framed the charge and conducted a full fedged trial. By the impugned judgment and order, the trial Court acquitted the respondent. Hence, this appeal fled by the State.

4. Learned APP appearing for appellant-State submits that at the relevant time the prosecutrix was minor and she has categorically deposed before the trial Court about the manner in which sexual assault has been committed by the accused. The said version of her gets corroboration from the evidence of her mother, so also from the medical evidence. Learned APP invites attention of this Court to the entire evidence brought on record by the prosecution and submits that the impugned judgment and order deserves to be quashed and set aside.

5. On the other hand, Ms. Kuttikrishnan, the learned counsel appointed to represent the accused invites our attention to the fndings recorded by the trial Court and submits that the trial Court has taken a plausible view, and therefore, there is no reason to interfere in the impugned judgment and order.

6. Heard the learned APP appearing for appellant-State and learned counsel for respondent. With their able assistance, we have carefully perused the entire evidence on record. The prosecution has examined prosecutrix at Exhibit-21. She stated that her date of birth is 06.10.1987. At the relevant time she was prosecuting her studies in 6th standard. Her school hours were from 6.45 am to

12.30 pm. The accused is brother of husband of Kristi Swami, who was residing near the house of prosecutrix. Daughter of said Kristi Swami was also studying in the same school. It is stated by her that after 15 days of Ganesh festival of the year 2001, when she was going to school, the accused met her near Napier Road Dargah and told her that he will drop her to school on his scooter. He took her on his scooter, on the way purchased petrol from petrol pump and took her to his friends room at Empress Garden, Pune. Wife of friend of accused went out of the room. Accused closes the door from inside and made prosecutrix to sit on the foor, and told her to put off her clothes. When she refused to do so, he threatened to bear her. Then accused put off his clothes and committed alleged sexual intercourse with prosecutrix. At about 12.30 pm, the accused took prosecutrix and dropped her near her house. He threatened to kill her and her mother, if she discloses incident to anybody. She further deposed that again after 8 days accused took her on scooter to said room and committed rape on her. Even thereafter on 25.09.2001, when the prosecutrix was going to school, accused met her near Napier road Dargah. He took her on his scooter and took her to the said room of his friend and committed rape on her twice at that day. At about 3.00 pm, he dropped her near her house. He threatened not to disclose about said incident to anybody. However, prosecutrix told about the said incident to her mother. Thereafter, her mother took her to the police station and lodged the FIR, which is at Exh.22. The investigating offcer took the prosecutrix to Sasoon Hospital. On examination doctor found that prosecutrix was pregnant. Thereafter, with the consent of parents of prosecutrix, the abortion was done, on 11.10.2001.

7. The prosecution has also examined mother of prosecutrix, who also deposed in tune with the prosecutrix.

8. The trial Court was of the opinion that in absence of connecting link of alleged offence to point out guilt of the accused, the beneft of doubt deserves to be given to the accused.

9. It appears from the statement of prosecutrix that incident took place 15 days after Ganesh festival in the year 2001, in house of friend of accused at Empress Garden, Pune. Eight days thereafter, the prosecutrix was again assaulted at the said house of friend of accused. On 25.09.2001 as the prosecutrix came late to the home, her mother made inquiry and she disclosed the incident to her mother. The prosecutrix missed her menstrual cycle, hence, her mother took her to the police station on 07.10.2001. The police sent the prosecutrix to Sassoon Hospital, Pune and as already observed medical offcer found that the prosecutrix was eights weeks pregnant. Thereafter, abortion was done.

10. The mother of the prosecutrix deposed that the prosecutrix did not go through menstrual course in the month of August, 2001 also. However, she did not took up the prosecutrix for the medical check up. In the month of September, 2001, the prosecutrix had temperature, even though PW[2] did not take the prosecutrix to the doctor.

11. It appears that the prosecution examined Aslam Bashir Shaikh (PW[3]), as a punch of seizure of clothes, Mr. Parag Rote (PW[4]), the medical offcer, Mr. Chandranath Pallellu (PW[5]), panch for spot of offence and Mr. Viaykat Hake (PW[6]), the investigating offcer.

12. Upon considering the evidence in its entirety, according to the prosecution case the incident has taken place after Ganapati festival (Ganesh Chaturthi), in the year 2001. In the year 2001, the Ganapati festival was on 22.08.2001 which ended on 01.09.2001, therefore, 15 days thereafter would be 15.09.2001. As per the prosecution case, the prosecutrix on 25.09.2001 has informed her mother about the alleged incident of sexual assault on her. Apparently, on 07.10.2001, the prosecutrix lodged the FIR. On the very same day, she was referred to Sasson Hospital, Pune for medical examination. Parag Rote (PW[4]) has issued a medical certifcate dated 07.10.2001, which at Exhibit-36 and opined that the prosecutrix was eight weeks (2 months) of pregnant. Therefore, if the prosecutrix is two months pregnant as on 07.10.2001, by no stretch of imagination it can be inferred that she has become pregnant due to the assault that has allegedly been taken place 15 days after Ganesh festival, which was somewhere in between 15.09.2001 and 25.09.2001. The mother of the prosecutrix (PW[2]) has admitted in her cross examination that the prosecutrix missed her menstrual cycle in the month of August and September, 2001. Despite knowing that the prosecutrix has missed her menstrual cycle for two consecutive months, her mother had not taken her to the doctor. The case of the prosecution of the alleged sexual assault at the instance of accused is thus falsifed. There has been a serious lapse on the part of the prosecution in not obtaining the DNA report. The investigating offcer has admitted that he did not send blood samples of accused and the aborted foetus for DNA analysis. In the absence of any DNA analysis, without any substantial proof, the accused cannot be attributed any role with commission of alleged offence. More particularly, when the prosecutrix was two months pregnant as on 07.10.2001, it is improbable that an assault on her has taken place after 15 days of Ganapati Festival that too at the instance of accused.

13. Further, the prosecutrix has deposed that the wife of accused’s friend was in the house, where the alleged incident took place. She deposed that wife of accused’s friend went out of the room when she entered with the accused. The prosecution has not examined the said lady, who is wife of accused’s friend. There is also delay in fling the FIR. The prosecution also failed to brought on record the specifc material related to threat to the prosecutrix or to her family. PW[2] deposed in her cross examination that on 25.09.2001 a quarrel took place between her and family member of accused and that she was beaten up. However, PW[2] did not lodge any FIR in relation to the said incident. It is an omission that on 07.10.2001 PW[1] told the police that accused and his family members beat her. There is no explanation given for delay in lodging the FIR.

14. Therefore, the learned trial Judge has thus not committed any error in acquitting the accused of the offence punishable under Sections 366 and 376 of IPC. The learned trial Judge after appreciating the evidence on record has reached to the correct conclusion.