1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.544 of 2003
The State of Maharashtra,
through the Police Station
Officer, Buldana,
Tq. & Distt. Buldana. .... Appellant.
Versus
1. Suresh @ Bhaskar Dashrath
Gawai, aged 34 years,
resident of Buldana.
2. Milind Wamanrao Jadhav,
aged 26 years,
resident of Buldana.
3. Santosh Ashruji Ghule,
aged 24 years,
resident of Buldana.
4. Sanjay Sadashiv Jadhav,
29 years,
resident of Buldana.
5. Rajesh Laxman Gawai,
aged 32 years,
resident of Gondhankhed
at present resident of
S.T. Colony, Akola. .... Respondents.
*****
::: Downloaded on - 09/06/2013 17:36:52 :::
2
Mr. M.J. Khan, Addl. Public Prosecutor for appellant-
State.
Mr. P.B. Patil, Adv., for respondents.
*****
CORAM : A.H. JOSHI AND
U.V. BAKRE,JJ.
Date : 05th August, 2011.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. This is a State appeal against acquittal.
2. The accused were tried for offence of gang rape
punishable under Section 376 (g), Indian Penal Code.
3. Heard learned APP Mr. M.J. Khan for the appellant-
State and learned Adv. Mr. P.B. Patil for respondents-
accused persons and perused the record.
4. Prosecution has relied upon different witnesses,
i.e., parents of prosecutrix Manisha, and the victim –
Manisha, apart from the shopkeeper who had sold condoms to
the accused persons, the Medical Officer etc.
5. PW 1 – Manisha narrates entire incident which
tends to prove the alleged gang rape.
::: Downloaded on – 09/06/2013 17:36:52 :::
3
In the cross-examination, effort has been made to
create a doubt in PW 1 – Manisha’s testimony on account of
delay in lodging the report and a possibility of her
statement being totally false. PW 1 has deposed that she
was gagged and was unable to shout, and narrated the story
of use of condoms by the accused in the process of
committing rape.
6.
Prosecution has proved sale of condoms to the
accused by examining the shopkeeper.
7. The story of rape was sought to be corroborated by
the prosecution by the testimony of PW 6 – Dr. Sanjay
Kolte, Medical Officer. Examination-in-Chief of Medical
Officer contained in para 1 reads as follows:-
“1. On 6-1-99 I was working as medical
officer at Civil Hospital, Buldana. That day
at about 4 a.m., I examined ManishaShrikrishna Ubale, aged 22 years, brought by
LPC, Buldana, on the allegations of rape, and
I had issued certificate of my
observation. Same is now shown to me.
It bears my signature. Its contents
are correct.
It is marked at Exh.45. No evidence
of injuries were seen anywhere on her body.
It was not possible to comment as to
if alternate rape has been occurred or not.
Old hymen tear was seen. She was
habituated for intercourse.”
[Quoted from page no. 94 of R & P of Sessions Trial No. 42
of 1999. Sub-paragraphing is done for convenience].
Though Medical Officer had testified that there
::: Downloaded on – 09/06/2013 17:36:52 :::
4
was no evidence of rape due to absence of anything in that
regard on the private part of the prosecutrix and absence
of other injuries on the body of prosecutrix, in the cross-
examination, Medical Officer in specific terms stated as
follows:-
“2. ……………………………….
……….I had taken vaginal swab. C.A.
report is now shown to me, and the report isnil.
Appearance of semen on vaginal swab
is a positive evidence of intercourse.
As C.A. report is negative regarding
presence of semen in the vaginal swab, it can
be said that there was no intercourse inimmediate past without any contraceptive.
Otherwise also this is a doubtful
case of rape.
I have seen the packet of Deluxe
contraceptive. Its each packet contains only
one contraceptive.
Any contraceptive may get torn while
using it.
When the victim was referred for
medical examination, I was not informed that
condoms were used in the incident.
In case the contraceptive has torn,
C.A. Report will also be positive. …..”
[Quoted from back of page no. 94 of R & P of Sessions Trial
No. 42 of 1999. Sub-paragraphing is done for convenience].
8. Prosecution has not brought on record evidence to
prove that two used condoms found at the place of offence
were sent for chemical analysis. The remains of body fluids
on both sides of condoms could have been the best piece of
evidence to prove its use by the accused for intercourse
with the prosecutrix.
::: Downloaded on – 09/06/2013 17:36:52 :::
5
9. It is obvious that due to use of condoms vaginal
swab could have been negative, however, as two condoms were
seen in torn condition, the vaginal swab could have shown
positive result.
10. It is not made clear by the prosecution as to
what prevented it from getting done the chemical analysis
of the remains of body f1uids on the condoms.
11. The testing of condoms in a laboratory was
extremely necessary in the background that medical evidence
rendered a picture which was totally inconsistent with the
story couched by the prosecutrix.
12. In the result, while on one hand, the statement of
prosecutrix could be believed in absence of medical
evidence as well, it would not be easy to believe the
prosecutrix contrary to medical evidence.
The case would stand on a different footing when
rape is sought to be proved solely by testimony of
prosecutrix “in absence of medical evidence” as against the
case of testimony of prosecutrix contradicted by medical
evidence.
::: Downloaded on – 09/06/2013 17:36:52 :::
6
13. It would, therefore, be impossible to believe the
prosecutrix, whose testimony, seen in isolation, seems to
be consistent, however, circumstances, namely while she was
laid down on ground over a pant, raped by accused persons
one after the other, no resistance, whatsoever, is offered
and no marks of resistance or other injuries are evident
from her body or private parts, bring her version under a
grave shadow of doubt.
14. On the other hand, medical opinion is that
prosecutrix is used to sexual intercourse. The story of
gang rape, therefore, comes under doubt. It would, thus, be
gravely risky to convict somebody on a doubt.
15. In the given situation, no interference is
warranted in appeal against acquittal.
Appeal is dismissed.
JUDGE JUDGE
-0-0-0-0-
|hedau|
::: Downloaded on - 09/06/2013 17:36:52 :::
7
::: Downloaded on - 09/06/2013 17:36:52 :::
