N. Bhusare & Ors Vs. State of Maharashtra  INSC 405 (11 August 1998)
Nanavati, S.P. Kurdukar
three appellants were tried in the court of Additional Sessions Judge, Nasik,
in Sessions Case No.117/83, for the offences punishable under sections 376 and
342 IPC. The trial court acquitted them but their acquittal was reversed by the
High Court. Therefore, they have filed this appeal.
alleged against the appellant that on 28.7.83, at about 11 o'clock, they committed rape of Gangu Bai when she had gone
to shop of appellant No. 1 for purchasing a match box. In order to prove its
case, the prosecution had examined P.W. 3 Gangu Bai and P.W. 4 - Shankar,
brother-in- low of Gangu Bai. The prosecution had also led evidence of the
doctor who had examined Gangu Bai. The circumstance that from the house of
appellant No. 1, some beads of broken necklace of Gangu Bai were found, was
also relied upon. The trial court, however, found that the evidence of P.W. 3 -
Gangu Bai could not be relied upon safely as it suffered from serious
infirmities. Her evidence was found to be inconsistent with the FIR lodged by
her on material aspects.
trial court also took note of the fact that no injury was found on her person
even though her version was that she was dragged and had in fact received some
scratches. The trial court also took into consideration the delay in filing the
FIR. The circumstance that some beads of broken necklace of P.W. 3 - Gangu Bai
were found in the house of appellant No. 1, was not believed as it was
considered unnatural that even after four days the appellant would have allowed
the beads to remain there. For these reasons, the trial court, acquitted the
High Court found evidence of P.W. 3 reliable and observed that it was such that
implicit reliance could be placed upon it. Therefore, accepting evidence of
P.W. 3 - Gangu Bai alone the High Court reversed the acquittal of the
appellants and convicted the appellants under Sections 376 and 342 IPC.
Jain, learned counsel appearing for the appellants, submitted that the High
Court has committed a grave error in placing implicit reliance on the evidence
of P.W.-3 Gangu Bai as her evidence was not trustworthy and consistent with the
evidence of P.W. 4, her brother-in-law.
proved that in her police Statement, P.W.3 had stated that Vishnu was following
while she was going to the shop of appellant No. 1 and had not referred to Shankar-
P.W. 4 at all. she changed her version in the Court and stated Vishnu had not
followed her. She also stated that Shankar, her brother-in-law, met her on the
way. He was sitting on his bullock cart and had asked her as to where she was
going. she had replied by saying that she was taking food for her husband who
had gone to the field. She further stated that after about ten minutes, he had
come to the shop of appellant No. 1 to purchase tobacco and finding the door
closed had kicked the door and shouted in the name of appellant No. 1 to open
the door. He then forcibly took her out and kicked her and told her to go home.
She had not disclosed anything to him at that time.
evidence, she has stated that when the incident took place she was pregnant. It
was about seven months old and because of the rape she had aborted on the third
when she was examined by Dr. Sulay after a few days, no positive sign of recent
abortion was noticed. it is proved that she had not stated like that in her
FIR. It would go to show that she was making a deliberate improvement on a
material point when she stated that at the time of rape she was in an advanced
stage of pregnancy, with a view to rule out consent.
further version was that when she had gone to purchase a match box from the
shop of appellant No.1, she was carrying a bundle of food articles on her head
and she kept it on the 'ota' (platform) of the shop. If she had really gone
only for that purpose, there was necessity for her to do so. Moreover, P.W. 5 -
Shankar had not found it outside the shop but outside the door of the middle
room, i.e., well within the shop. If that was so, then it would mean that she
had gone inside the shop willingly and was not lifted from the outer and then
portion of the shop/dragged and taken into the middle room. She had deposed
that because of dragging and resistance she had received scratches on her back,
neck and thighs. But not a single injury was found on her person when she had
lodged her complaint.
High Court had rightly not relied upon the evidence of Shankar-brother-in-law
of Gangu Bai. His conduct was not consistent with his claim that Gangu Bai had
told him that the three appellants had raped her. He behaved thereafter as if
nothing had happened. He even purchased tobacco from appellant No. 1
thereafter. He did not inform anyone till next day morning about what had
happened. On the contrary, his conduct inputting her out from the middle room,
giving a kick to her and telling her to go home, not taking any other action
and waiting at the shop of appellant No. 1 and purchasing tobacco leads to an
inference that no complaint was made by Gangu Bai at that time that she was
raped. Gangu Bai herself has not stated that she had told P.W. 4 like that when
she came out of that room.
all these infirmities in her evidence, no implicit reliance could have been
placed upon her evidence. The High Court having failed to consider all these
important aspects erroneously cam to the conclusion that her evidence was
reliable. The High Court was wrong in reversing the order of acquittal passed
by the trial court and convicting the appellant for both the offences.
therefore, allow this appeal, set aside the order of conviction and sentence
passed by the High Court. They are therefore ordered to be release from jail,
if their presence in jail is not required in connection with some other case.