Bibhishan Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 1262 of 2007
[Arising out of SLP (Crl.) No. 1816 of 2007]
[From the Judgment and Order dated 09-02-2007 of the High Court of Judicature at Bombay, Bench at Aurangabad in Crl. Appeal No. 392 of 2006]
[Arising out of SLP (Crl.) No. 1816 of 2007]
[From the Judgment and Order dated 09-02-2007 of the High Court of Judicature at Bombay, Bench at Aurangabad in Crl. Appeal No. 392 of 2006]
Petitioner: Bibhishan
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 1262 of 2007
[Arising out of SLP (Crl.) No. 1816 of 2007]
[From the Judgment and Order dated 09-02-2007 of the High Court of Judicature at Bombay, Bench at Aurangabad in Crl. Appeal No. 392 of 2006]
[Arising out of SLP (Crl.) No. 1816 of 2007]
[From the Judgment and Order dated 09-02-2007 of the High Court of Judicature at Bombay, Bench at Aurangabad in Crl. Appeal No. 392 of 2006]
Judges: A.K. Mathur and Markandey Katju, JJ.
Date of Judgment: Sep 19, 2007
Appearances:
Mr. Sudhanshu S. Chaudhari and Mr. Naresh Kumar, Advocates for the Appellant.
Dr. Rajeev B. Masodkar and Mr. R. K. Adsure Advocates for the Respondent.
Dr. Rajeev B. Masodkar and Mr. R. K. Adsure Advocates for the Respondent.
Head Note:
Criminal Law
Indian Penal Code, 1860
Sections 376, 511 – Evidence Act, 1872 – Section 3 – Rape – Evidence – Prosecutrix alleged to have been locked by accused inside his house on false pretext of her father being inside – Prosecutrix entered the house – Accused bolted door and raped her – However, no injury on her body – No sign of semen on body – Clothes not torn – No presence of hair of accused on her private part – Girl habitual of sexual intercourse. Held that accused is entitled to benefit of doubt and hence acquitted as offence not proved beyond reasonable doubt. (Paras 6,7)
Indian Penal Code, 1860
Sections 376, 511 – Evidence Act, 1872 – Section 3 – Rape – Evidence – Prosecutrix alleged to have been locked by accused inside his house on false pretext of her father being inside – Prosecutrix entered the house – Accused bolted door and raped her – However, no injury on her body – No sign of semen on body – Clothes not torn – No presence of hair of accused on her private part – Girl habitual of sexual intercourse. Held that accused is entitled to benefit of doubt and hence acquitted as offence not proved beyond reasonable doubt. (Paras 6,7)
JUDGEMENT:
S.B. Sinha, J.
1. We have heard counsel for the parties.
2. Leave granted.
3. We have perused the order passed by the Division Bench of the High Court of Bombay at Aurangabad whereby the accused- appellant was convicted under Section 376 read with Section 511 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/ -, in default to undergo further rigorous imprisonment for one year.
4. The brief facts which are necessary for the disposal of this appeal are as under :-
The prosecutrix Anita, aged about 18 years is the daughter of Arunabai and Ashruba. They are the residents of Chikhali, Taluka Patoda, District Beed and they are cultivators by profession. The appellant is the resident of the same village. The case of the prosecution is that the girl Anita was asked by her mother Arunabai to fetch water from a water bore situated in the school compound. On 23.7.2 Penal Code 005 in the afternoon at about 300 p.m. Anita went with a steel pot to fetch water from the bore. The accused, whose house was by the side of the road, saw Anita and called her. The accused told her that her father was in his house. Anita went close to the house and wanted to know where her father was. The accused told her that her father was inside. The moment the girl Anita entered the house, the accused caught hold her and took her inside the house and bolted the door. The girl shouted for help but without any result. It is alleged that she was subjected to sexual intercourse by the accused. The accused was arrested, prosecuted and ultimately convicted by the Trial Court for the offence punishable under Section 376 IPC and was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.4,000/-, in default to suffer rigorous imprisonment for 1-1/2 years.
5. Aggrieved by the judgment of the Trial Court, an appeal was preferred before the High Court. The High Court partly allowed the appeal and convicted the appellant under Section 376 read with Section 511 IPC and was sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- , in default to suffer further rigorous imprisonment for one year. Hence the present Special Leave Petition.
6. We have gone through the judgment of both the Courts below and also perused the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the Trial Court has not correctly appreciated the evidence and has wrongly convicted the accused- appellant. The accused who has been charged under Section 376 read with Section 511 IPC is entitled to benefit of doubt.
7. In the facts and circumstances of the case, we give the benefit of doubt to the appellant- accused as the charges framed against him are not proved beyond reason able doubt.
8. Consequently, we allow this appeal, set aside the judgment and order of the High Court as well as of the Trial Court and acquit the accused of the charges levelled against him.
8. This appeal is accordingly, allowed. If the accused is in jail, he may be released forthwith if not required in any other case.
1. We have heard counsel for the parties.
2. Leave granted.
3. We have perused the order passed by the Division Bench of the High Court of Bombay at Aurangabad whereby the accused- appellant was convicted under Section 376 read with Section 511 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/ -, in default to undergo further rigorous imprisonment for one year.
4. The brief facts which are necessary for the disposal of this appeal are as under :-
The prosecutrix Anita, aged about 18 years is the daughter of Arunabai and Ashruba. They are the residents of Chikhali, Taluka Patoda, District Beed and they are cultivators by profession. The appellant is the resident of the same village. The case of the prosecution is that the girl Anita was asked by her mother Arunabai to fetch water from a water bore situated in the school compound. On 23.7.2 Penal Code 005 in the afternoon at about 300 p.m. Anita went with a steel pot to fetch water from the bore. The accused, whose house was by the side of the road, saw Anita and called her. The accused told her that her father was in his house. Anita went close to the house and wanted to know where her father was. The accused told her that her father was inside. The moment the girl Anita entered the house, the accused caught hold her and took her inside the house and bolted the door. The girl shouted for help but without any result. It is alleged that she was subjected to sexual intercourse by the accused. The accused was arrested, prosecuted and ultimately convicted by the Trial Court for the offence punishable under Section 376 IPC and was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.4,000/-, in default to suffer rigorous imprisonment for 1-1/2 years.
5. Aggrieved by the judgment of the Trial Court, an appeal was preferred before the High Court. The High Court partly allowed the appeal and convicted the appellant under Section 376 read with Section 511 IPC and was sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- , in default to suffer further rigorous imprisonment for one year. Hence the present Special Leave Petition.
6. We have gone through the judgment of both the Courts below and also perused the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the Trial Court has not correctly appreciated the evidence and has wrongly convicted the accused- appellant. The accused who has been charged under Section 376 read with Section 511 IPC is entitled to benefit of doubt.
7. In the facts and circumstances of the case, we give the benefit of doubt to the appellant- accused as the charges framed against him are not proved beyond reason able doubt.
8. Consequently, we allow this appeal, set aside the judgment and order of the High Court as well as of the Trial Court and acquit the accused of the charges levelled against him.
8. This appeal is accordingly, allowed. If the accused is in jail, he may be released forthwith if not required in any other case.
