SUPREME COURT OF INDIA
Shrawan Atmaram Sisode
Vs
State of Maharashtra and Another
Criminal Appeal No. 1493 of 2005
(B. P. Singh and Altamas Kabir, JJ)
27.07.2006
B. P. SINGH J.
1. This appeal by special leave is directed against the judgment and order of
the High Court of Judicature at Bombay, Bench at Aurangabad, dated 18-3-2005 in
Criminal Appeal No. 62/2004. The High Court by its impugned judgment and order
has affirmed the order of conviction and the sentence imposed under Section 376
IPC. The appellant has been sentenced to undergo rigorous imprisonment for 7
years and to pay a fine of Rs. 10, 000/-(Rupees Ten Thousand only) and in
default to suffer rigorous imprisonment for 1 year.
2. This case arises out of a criminal complaint filed before the Magistrate
First Class, Shindkheda who took cognizance of the offence punishable under
Section 376 IPC and thereafter committed the appellant to stand trial before
the Court of Sessions. The complainant S (P.W. 2) is the wife of B (P.W. 3).
They were residing at Nardana and the appellant was their immediate neighbour.
The case of the prosecution is that on October 07, 1999 between 12.00 noon and
1.00 p.m. when the complainant was alone in the house, since her husband and
mother-in-law had gone to the fields, the appellant entered the house from the
rear door and dragged the complainant to the room in front and had forcible
sexual intercourse with her. Soon thereafter, the mother of the appellant came
to the complainant and begged her pardon for the misdeeds of her son. She
requested her mx to report the matter to anyone. In the evening when the
husband and mother-in-law of the complainant came home, the complainant
immediately reported the matter to them. The husband of the complainant, i.e.,
P.W. 3 was disturbed and offended and he immediately went to the house of the
appellant to question him as to why he had committed such a heinous act. When
he went to protest he was assaulted by the appellant and members of his family.
He received several injuries including a head injury. The complainant and her
husband were immediately removed to Nardana Hospital where Dr. Nilesh Aaher
(P.W. 1) attended to the injuries of the husband of the complianant. He was
later removed to the hospital at Dhule.
3. It is the case of the prosecution that Dr. Aaher (P.W. 1) had informed the
police about the arrival of P.W. 3 in the hospital with injuries and pursuant
to the report received from the Medical Officer, a police constable was deputed
to visit the hospital. It is also the case of the prosecution that the husband
of the complainant, i.e., P.W. 3 made a detailed report to the police constable
both regarding assault on him and commission of rape on the complainant (P.W.
2). However, as is transpires, the report recorded by the police constable was
only in relation to the offence of assault and there was no mention about the
offence of rape committed by the appellant. The complainant and her husband
were distressed on account of inaction of the police and therefore they
reported the matter to the Superintendent of Police, Dhule on 11-10-1999. They
made a written report to the Superintendent of Police wherein they mentioned
the fact that the complainant had been raped by the appellant but the police
was not taking appropriate action.
4. Despite the complaint made to the Superintendent of Police, Dhule, no action
was taken and this led the complainant to ultimately lodge a complaint before
the concerned Magistrate on 15-11-1999. In the complaint made to the Judicial
Magistrate First Class, Shindkheda the full facts were stated with regard to
the earlier incident which took place in the afternoon and the later incident
which took place after the husband of the complainant returned home from the
fields and went to the house of the appellant to record his protest. The
complaint also mentions that P.W. 3 was attended to by Dr. Aahre (P.W. 1) in
the hospital who put stitches on his head injury. The complaint also mentions
the fact the P.W. 1 had informed the police station, Nardana, and a constable
had come to whom the entire incident had been narrated by P.W. 3 in the
presence of Dr. Aahre (P.W.I). However, the constable did not mention the
episode relating to rape in the report recorded by him. Therefore, P.W. 3
lodged a report with the Superintendent of Police, Dhule on 11-10-1999. Even
thereafter no action was taken by the police, and ultimately a complaint was
filed before the Magistrate.
5. We have gone through the entire evidence on record and the judgments of the
courts below. We do not consider it necessary to repeat the reasoning of the
Courts below in this judgment.
6. The Trial Court has placed implicit reliance on the testimony of the
prosecutrix (P.W. 2) and so has the High Court. The Trial Court has also
observed about the demeanour of the prosecutrix and that she belonged to the
lowest rung of the society being an illiterate woman. Her evidence impressed
the Trial Court as truthful. The High Court has also affirmed this finding. It
is no doubt true that the prosecution case rests on the testimony of the
prosecutrix P.W. 2.
7. It was sought to be argued before us on behalf of the appellant that the
evidence of the prosecutrix is not so reliable that the Court could record a
conviction solely on the basis of her evidence. According to the learned
counsel for the appellant, the earliest version of the incident did not refer
to commission of the offence of rape. According to him the mention of rape is
for the first time found in the complaint made to the Superintendent of Police,
Dhule. The prosecutrix (P.W. 2) as well as her husband (P.W. 3) have
consistently stated that they had reported the entire matter to the police, but
only a portion of it was recorded and the occurrence so far it related to the
commission of the offence of rape was excluded. That is why P.W. 3 considered
it necessary to lodge a report with the Superintendent of Police, Dhule.
Surprisingly, the report made to the Superintendent of Police, Dhule was not on
record. When the High Court noticed that such a report had been marked as
article 'A' by P.W. 3, it required the Trial Court to make an inquiry and
return a finding as to whether the said report was made to the Superintendent
of Police on 11-10-1999. The evidence of the concerned dealing assistant was
recorded who was examined as P.W. 4 and the Trial Court after considering his
evidence recorded a finding that such a report was in fact made on 11-10-1999
to the Superintendent of Police, Dhule. P.W. 4 also proved the acknowledgment
of the receipt of the report. The original report was also produced before the
Court. It thus appears that there is substance in the complaint of the
complainant of her husband that the police were siding with the appellant and a
serious charge of rape levelled against him was not even recorded by the police
constable who came to the hospital at Nardana to record the statement of P.W.
3. Within 3-4 days of the occurrence a report was made to the Superintendent of
Police mentioning the fact that the complainant had been raped by the
appellant. Despite this no action was taken by the Superintendent of Police to
get the matter investigated regarding the allegation of rape levelled against
the appellant. It was in these circumstances, that the complainant (P.W. 2) and
her husband (P.W. 3) were compelled to move the learned Magistrate by filing a
complaint alleging commission of offence punishable under Section 376 IPC.
8. It was also sought to be argued before us that in the first report made by
P.W. 3 there was no allegation of rape and therefore the said allegation made
subsequently is only an afterthought. Having regard to the totality of the
facts of this case we are not impressed with this argument. Within 3-4 days of
the occurrence a report was made to the Superintendent of Police, Dhule, since
in the earlier report made by P.W. 3 the police deliberately left out that
portion which related to the commission of the offence under Section 376 IPC.
We find no reason why the prosecutrix, aged about 20 years, should make a false
allegation against the appellant of having raped her. The plea of the appellant
that at best he may have gone to the house of the prosecutrix but had only
abused her and not raped her, does not appear to be convincing.
9. Having considered all aspects of the case and after having gone through the
entire evidence on record, we are not persuaded to take a view different from
the one taken by the Trial Court and upheld by the High Court concurrently finding
the appellant guilty of the offence punishable under Section 376 IPC.
10. We find no merit in this appeal and the same is dismissed
J