JUDGMENT
R.M.S. Khandeparkar, J.
1. The present appeal arises from the judgment and order dated 12-4-1994 passed in Sessions Case No. 27/93 whereby the appellant herein has been held guilty for the offence punishable under sections 363 and 376(2)(f) and is ordered to suffer rigorous imprisonment for six months and seven year’s respectively, besides to pay a fine of Rs. 100/- and 1000/- respectively.
2. The case of the prosecution is that the complainant Gorate Gilbert Ghonsalvis resides with her husband and two children namely Genavi and Gleni at Vasai. On 19-9-1992 at about 5-30 p.m. while the complainant was attending household work inside her house, her daughters were playing alongwith some other girls of their age outside the house. After attending to the house hold work when the complainant came out of the house at about 5-45 p.m. She noticed her elder daughter Genavi was playing with her neighbouring girls. However, she saw that her younger daughter Gleni was coming to the house crying. On inquiry with Gleni as regards the reason for crying, the complainant was informed by Gleni that the accused called her to his house saying that he would offer a chocolate to her and then he took her inside the house from the place where she was playing. It was further informed by Gleni that after taking her inside the house the accused closed the door and made her to lie down on the cot inside the room and on pulling her frock he removed her underwear and also of his own and tried to insert his penis in her vagina, but since it was paining she tried to push him, but he did not get himself aside and therefore, she started crying. The accused then asked her not to disclose the said fact to anyone and then she was left free and thereafter she came out of his house. Thereupon the complainant took her inside the house and noticed some semen stains on her underwear. She also noticed some redness on her private part, Gleni was also finding some difficulty in easing. The complainant, however, did not file her complaint to police station immediately, as she was unable to take any decision in the matter in the absence of her husband, who was out of station at the relevant time. On the evening of 21-9-1992 at about 7 p.m. on return of her husband, she narrated the incident to him and on the next day they approached the police and lodged the complaint i.e. Exh. 18 against the accused and pursuant to that her daughter Gleni was referred for medical examination at Vasai Municipal Dispensary and thereafter to J.J. Hospital, Bombay. She was also referred to Obstetrics and Gynaecology and Forensic Medicine Department for confirmation of the attempt of rape or rape. Dr. P.K. Kamal Gynaecologist, who examined her with the help of her junior colleague, had collected cotton swab from the discharge which Gleni had and it was subjected to the test by Chemical Analyser. After completing investigation, which included drawing of panchanama and recording of statements, the Police Inspector filed the charge sheet in the Court of J.M.F.C. Vasai against the accused for the commission of offence punishable under section 363 and 376(2)(f) of the Indian Penal Code. The case was duly committed to the Court of Sessions and after recording the evidence, the learned Addl. Sessions Judge, Thane passed the impugned judgement which is the subject matter of the present appeal.
3. In order to establish the offence against the accused, the prosecution examined 10 witnesses, which included the complainant the prosecutrix Gleni, panchas and three doctors.
4. While assailing the impugned judgment Shri Rajani learned Advocate appearing for the appellant submitted that the trial Court ought to have considered that the evidence of P.W. 1. prosecutrix has not found any corroboration from the entire evidence placed on record by the prosecution. While drawing our attention to the deposition of P.W. 1 girl Gleni, he further submitted that undisputedly the deponent was tutored as to how and what to depose before the Court, as well as, what to say before the police during the course of investigation. In view of this admitted position, the trial Court ought not to have solely depended on the testimony of P.W. 1 and ought to have considered whether the same has found any corroboration from any independent witness or not. He further submitted that there has been unexplained delay of 3 days in lodging the F.I.R. by the complainant P.W. 4. So called explanation given by the complainant for lodging F.I.R. 3 days after the alleged incident is not only unconvincing but is purely after thought. While drawing our attention to the deposition of P.W. 2, P.W. 8 and P.W. 10 and further certificate issued by the said doctors, the learned Advocate Shri Rajani submitted that this evidence does not show that there was even an attempt of rape on the prosecutrix and whatever medical evidence that has been brought on record is not sufficient to arrive at a clear finding regarding commission of offence of rape or even the attempt of rape on the prosecutrix. He further submitted that in any case there is no material on record to establish the fact that the accused herein had committed an offence of rape or even an attempt of rape on the prosecutrix. He further submitted that the trial Court erred in not giving due weight to the probabilities that can be inferred from the evidence brought on record by the prosecution and wrongly convicted the accused for the offence alleged.
5. Shri Patil, the learned A.P.P. on the other hand submitted that the medical evidence do establish that the prosecutrix was subjected to assault on her private part. While drawing our attention to the deposition of P.W. 10, Dr. P.K. Kamal, he submitted that the doctor did observe an opening 1/2 cm. size was seen in the hymen and further to the deposition of P.W. 8, wherein doctor has clearly deposed that he observed two scratch marks on the left and right thigh region of the prosecutrix. He also drew our attention to the nail marks, observed by Dr. Warran P.W. 8 on the neck of the prosecutrix and submitted that the said evidence read with the other evidence on record can sufficiently establish the case of the prosecution that there has been an act of penetration in the vagina of P.W. 1 Gleni. He further drew our attention through the deposition of P.W. 1 and her parents P.W. 4 and P.W. 6, as well as that of one of the neighbour of the prosecutrix Gleni, P.W. 7. Taking us to the evidence of these witnesses, he submitted that this evidence proves that the accused herein called the prosecutrix to his house with an offer of chocolate and on taking the minor child to his house committed rape on her. The said evidence according to the learned A.P.P. is sufficient to establish the guilt of offence of kidnapping as well as that of rape by the accused on the prosecutrix Gleni.
6. As already pointed out earlier, the prosecution has examined 10 witnesses, in the above case, which include three doctors, namely P.W. 2, P.W. 8 and P.W. 10. Shri Lad P.W. 3 has been examined as being a panch in respect of the production of clothes and Shri Cizer Ghonsalvis as panch in relation to panchanama of scene of offence. The prosecutrix is P.W. 1, her parents have been examined as P.W. 4 and P.W. 6. Smt. Glasoi Thomas D’cruz, who is the neighbour of the prosecutrix has been examined as P.W. 7 and the Investigating Officer Shri Mane as P.W. 9. It is seen that apart from the prosecutrix and her parents and a neighbour, there has not been any independent witness produced by the prosecution to establish the fact that the prosecutrix was taken by the accused to his house for the purpose of commission of offence of rape or otherwise. The prosecutrix herself has stated before the Court that she was playing with her friend by name Sweety and none else. According to the prosecutrix girl, her sister was also playing at the same time, but at a place away from the place where she was playing with her friend Sweety. Moreover, the Investigating Officer has clearly admitted that the investigation has revealed that no child by name Sweety was playing with the prosecutrix at a relevant time and day. P.W. 7, who is said to be a neighbour of the prosecutrix, has deposed before the Court that on the relevant day and time, she was sitting on the “Ota” of the house of Foanisica, which is situated at a distance of about 100-150 ft. from the house of the complainant and also further stated that she had seen Gleni playing in front of the house of Foenisica. She has nowhere stated that she had witnessed the accused either calling Gleni or taking Gleni to his house on the said day. The prosecution has neither examined any other child alleged to have been playing in the neighbourhood at the relevant time nor there has been any other person from the neighbourhood produced before the Court to establish the fact that the accused at a relevant time had called Gleni to his house or had taken Gleni to his house. As rightly pointed out by the learned Advocate for the appellant, it is difficult to uphold the conviction of the accused solely on the basis of the testimony of P.W. 1. Undisputedly, P.W. 1 was tutored as to what sort of evidence she was required to give before the Court. She was also tutored as to what to depose and what would be the effect if she fails to depose in the manner tutored to her. She was also asked as to what was to be narrated before the police. All this tutoring was done by her mother P.W. 4. Added to this the statement of prosecutrix was recorded by the police more than three days after the date of incident. Taking into consideration these facts it is not quite safe to rely solely upon the testimony of P.W. 1. It is also seen from the record that her testimony did not find any corroboration from any independent witness. Only person who has corroborated her testimony is P.W. 4 the mother of the prosecutrix. As already seen the deposition of P.W. 1 itself has been tutored by P.W. 4, being so corroboration by the testimony of P.W. 1 by P.W. 4 cannot be of any relevancy in the matter to decide about the guilt of the accused regarding the offence for which he was prosecuted.
7. The medical evidence on record shows that the prosecutrix was examined on 22-9-1992 by Dr. Sawakhande at Municipal Dispensary at Vasai. He did not notice any external injury on the body of the prosecutrix. Further endorsement in the medical records shows that the prosecutrix did not co-operate and on the contrary refused examination of internal parts of her body , particularly of vagina. The record further disclose that the girl was further examined by Dr. Kamal at J.J. Hospital, Bombay on 22-2-1992 (sic) on being referred to the said hospital with a history of alleged assault of rape. The said doctor also did not find any evidence of any abrasion or laceration marks on the external genital of the prosecutrix. The doctor has clearly observed that the opening 1/2 cm. size was seen in the hymen, but no fresh tear was seen on that. The doctor also collected some cotton swab from the discharge of the prosecutrix had and it was subjected to test by Chemical Analyser. The report of the Chemical Analyser discloses that no semen was detected in the said swab collected from discharge of prosecutrix. Thus, the medical evidence do not assist the prosecution in any manner to establish the case of even any sort of assault on the private part of the prosecutrix. Besides, there is absolutely no evidence on record to show that, the accused had even made an attempt for penetrating his penis in the vagina of the prosecutrix P.W. 1.
8. There being basically no evidence to establish the fact that the prosecutrix P.W. 1 was taken by the accused to his house. The evidence on record is not sufficient even to draw an inference that there was any occasion for the accused to commit an offence of rape on the prosecutrix P.W. 1 in his house.
9. It is also seen that though the offence of rape was alleged to have been committed on 19-9-1992, the complainant lodged a complaint only on 22-9-1992. No doubt, there is a delay of three days in respect of lodging of this complaint. However, as pointed out by the learned A.P.P., delay has been explained by the complainant. According to P.W. 4, she was indecisive in the matter of lodging of complaint regarding the alleged incident and she waited for her husband to return to decide about the same. The explanation given in this regard cannot be totally discarded. Moreover, the fact remains that the husband returned to the house on 21-9-1992 at about 7 p.m. The record further discloses that the girl was taken to the hospital for medical check up on 21-9-1992. There is no explanation on record as to what prevented the complainant from lodging the report on 21-9-1992 itself and more so when the medical records further disclose that she was advised on 21-9-1992 itself at a time when the girl was taken for examination, to approach the police with necessary complaint. There is absolutely no explanation on record in respect of this delay.
10. The perusal of the impugned judgment shows that the trial Court was very much impressed by the testimony of P.W. 1 read with P.W. 4 in order to arrive at the finding about the guilt of the accused in commission of the offence. The perusal of the impugned judgment shows that the trial Court was totally carried away by the testimony of P.W. 4 wherein, she had deposed that there was immediate disclosure of the incident by Gleni to the said witness, who is her mother and that therefore, there was no reason to disbelieve P.W. 4 and P.W. 1. However, the trial Court has escaped one relevant factor that so called immediate disclosure by P.W. 1 of the incident to P.W. 4, has been disclosed to the police nearly more than three days after the day of the alleged incident. Apart from the statement of P.W. 4 as regards such immediate disclosure by the child, there is no evidence to support the said claim of P.W. 4 in that respect. The evidence of P.W. 7 in this respect also does not inspire confidence so as to arrive at a definite finding that there was immediate disclosure of the alleged incident by P.W. 1 to her mother P.W. 4.
11. Considering overall evidence on record, we do not find sufficient material on record to satisfy the ingredients of the offence of kidnapping and that of rape by the accused on the prosecutrix P.W. 1. In the absence of proper link being established between the offence of rape alleged to have been committed on the prosecutrix P.W. 1 and the act of the accused in that regard, it is not possible to hold the accused guilty of the offence of rape. As regards the kidnapping there is absolutely no evidence on record to show that P.W. 1 was taken out of the lawful custody of her guardian by the accused in the manner alleged by the prosecution.
12. The impugned judgment also does not disclose proper analysis of evidence on record. The trial Court has not applied its mind properly to the facts which have been brought on record in order to hold the accused guilty of the offence of kidnapping and rape.
13. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and conviction of the accused is hereby quashed and set aside. The appellant shall be set at liberty forthwith, unless, he is required in any other case.
Appeal allowed.