RAHUL @ KALIDAS ARUN GHOLAPversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:9818


                                                1                        1Apeal724.07.odt


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 724 OF 2024
                                        WITH
                         CRIMINAL APPLICATION NO. 3690 OF 2024
                                   IN APEAL/724/2024

                    Rahul @ Kalidas Arun Gholap,
                    Age. 29 years, Occ. Labour,
                    R/o. Yeli, Tal. Ausa,
                    Dist. Latur.
                    At present : In front of Peshve Hospital
                    Jijamat Nagar, Tuljapur,
                    Tal. Tuljapur, Dist. Dharashiv.                    ...Appellant.

                          Versus

              1.    The State of Maharashtra,
                    Through Tuljapur Police Sation,
                    Tal. Tuljapur, Dist. Dharashiv.

              2.    X.Y.Z.                                             ...Respondents.
                                                ...
              Advocate for Appellant : Mr. Sushant Baburao Choudhari
              APP for Respondent No. 1 : Mr. V.K. Kotecha
              Advocate for Respondent No. 2 : Mr. Shridhar Kulkarni
                                                …

                                                    CORAM : RAJNISH R. VYAS, J.
                                                    DATE : 04TH MARCH, 2026

              ORAL JUDGMENT :

              1.          Heard learned counsel Mr Choudhari, for the appellant,

              learned APP Mr Kotecha, and learned counsel Mr Kulkarni for the

              victim.
                                 2                          1Apeal724.07.odt


2.          This appeal takes an exception to the judgment passed

by the learned Sessions Judge, Osmanabad, dated 25.07.2024, in

Sessions Case No. 74/2018, by which, the appellant is convicted for

commission of offence punishable under Section 376 (1), 452 of

the Indian Penal Code (hereinafter would be referred to as ‘the IPC’

for the sake of brevity). The details of conviction, sentence and

acquittal awarded are reproduced as follows:


Rank of Name of Date of Date of Offences Whether     Sentence      Period
the     Accused Arrest Release charged acquitted     Imposed       of
accused                 on Bail with     or                        Detenti-
                                         convicted                 on
                                                                   Underg-
                                                                   one
                                                                   during
                                                                   Trial for
                                                                   purpose
                                                                   of
                                                                   Section
                                                                   428
                                                                   Cr.P.C.
1.      Rahul @ 4th     27th    U/Sec.    Convicted Rigorous        1 month
        Kalidas Nov.,   Dec.,   376(1), for the      imprisonment 23 days.
        Arun    2017    2017    452, 354, offence    of ten years
        Gholap                  354-D, punishable and fine of
                                323 &     under      Rs.5,000/-
                                506 of    section    I.D. to suffer
                                I.P.C.    376 (1) & S.I. for one
                                          452 IPC    month, for
                                          and        the offence
                                          acquitted punishable
                                          for the    under Section
                                          offence    376 (1) IPC
                                          punishable
                                          under      Rigorous
                                          section    Imprisonment
                                          323, 354, of six months
                               3                          1Apeal724.07.odt


                                       354-D and and fine of
                                       506 IPC   Rs.500/- I.D.
                                                 to suffer S.I.
                                                 for 5 days,
                                                 for the
                                                 offence
                                                 punishable
                                                 u/s. 451 IPC



3.         In short, it is the case of prosecution that on

03.11.2017 at about 10:30 p.m., when the victim, who was twenty

three years old, was sleeping along with her grandparents in a tin

shed, the appellant removed one tin sheet, entered into the house,

pushed the grandparents, and committed rape on the victim.


4.         This incident, which is narrated in brief, resulted in the

registration of the first information report no. 372/2017 dated

04.11.2017, against the appellant for the commission of offences

punishable under Sections 376, 452, 506 of the IPC. The accused

was arrested for the crime on 04.11.2017. During the course of the

investigation, a spot panchnama was drawn, the clothes of the

appellant and the victim were seized, and they were forwarded for

medical examination. The incriminating material was forwarded

for chemical analysis. After completion of the investigation, the

chargesheet no. 19/2018, dated 26.01.2018, was filed.
                                    4                             1Apeal724.07.odt


5.         The trial Court framed a charge below Exhibit 15 for

the commission of offences punishable under Section 376 (1), 452,

354, 354 D, 323, 506 of the IPC, to which the appellant pleaded

not guilty. To prove the appellant's guilt, the prosecution examined

13 witnesses.


Rank             Name                   Nature of Evidence Exhibit
PW 1             Kiran Ramling Bali Spot Panch.             24.
PW 2             Ranjeet Avinash        Panch on seizure of 28.
                 Salunke                clothes of the
                                        accused.
PW 3             Satish nagnath         Witnesses.          31.
                 Londhe
PW 4             Ravikant Ajibabu       Police Witness.     32.
                 Bhandari
PW 5             Asif Sikandar          Eye witnesses.      38.
                 Shaikh
PW 6             Gorakh Bhagwat         Eye witnesses.      39.
                 pardhe.
PW 7             Sulbha Ramchandra Member of Mahila         40.
                 Patil             Dakshata samiti in
                                   whose presence
                                   statement of the
                                   victim was
                                   recorded.
PW 8             Vanita Rangnath        Police officer of   45.
                 Kashid                 Bharosa Cell
                                        recording statement
                                        of the victim.
PW 9             Dr. Sindhu Anant       Medical Officer.    47.
                 kadam
PW 10            Yogesh Bansidhar       I.O.                55.
                 Khatane
PW 11            Seemali Kalyani        I.O.                58.
                 Koli
                                5                            1Apeal724.07.odt


PW 12            Sudhakar Raosaheb Police witness      65.
                 Sathe             attached to Cyber
                                   Cell.
PW 13            “L”                Victim.            67.



6.           After the recording of evidence was completed, the

appellant was questioned under Section 313 of the Code of

Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’ for the

sake of brevity), in which he denied the charges and took the

defence of false implication.       The trial Court convicted the

appellant, heard the appellant on the point of sentence and

ultimately convicted and sentenced the appellant, as stated above.




7.         Learned counsel for the appellant, Mr Choudhary, has

contended that the medical evidence would show that there was

absolutely no injury to the person of the victim to prove the offence

of rape. He further contended that the story advanced by the victim

in the first information report and in her evidence before the Court

is totally different. Furthermore, he argued that the independent

witnesses, though available, were not examined.
                                6                       1Apeal724.07.odt


8.         He has also relied upon the judgments, which would be

discussed in the latter part of the judgment.


9.          Learned APP Mr Kotecha has contended that the

testimony of P.W. 13 – Victim inspires confidence, and the absence

of medical evidence will not go to the root of the matter. The

prosecution has proved its case on the basis of the witnesses

examined, and the non-examination of other witnesses will not

make much difference. Mr Kotecha further contended that if the

appellant's case is that the prosecutrix advanced different stories at

two different stages, then the accused should have attempted to

confront the witnesses, with said part of evidence; however, this

was not done.


10.         Learned counsel Mr Kulkarni, for victim, has contended

that the testimony of the victim is cogent and reliable. The manner

in which the offence was committed clearly reveals that the

appellant was the aggressor, and that, while committing the act,

injuries were caused not only to the appellant but also to the

victim. He relied upon the testimony of the Medical Officer.
                               7                       1Apeal724.07.odt


According to him, the victim's story is consistent, and no material

or testimony supports the defence/plea of false implication.


11.         In this background, I have tested the arguments of the

respective counsels and have gone through the record of the case.


12.          Thus, it will have to be examined whether the

prosecution, by the examination of witnesses, has proved the

ingredients of the offences. In this regard, the testimony of P.W.

13, the prosecutrix, is required to be looked into, who, in her

examination-in-chief, submitted that she was residing in a house

constructed of tin sheets along with her grandparents, who were 70

to 72 years old. On 03.11.2017 at about 10:30 p.m., when she was

sleeping in the house with her grandparents, one person arrived,

removed the tin shed, and entered the house. He then pushed the

grandparents out of the house, gagged the mouth of the victim,

threatened her, removed her clothes, tore them, and thereafter

committed forcible sexual intercourse by penetrating his penis into

the vagina. At that time, grandparents were shouting outside, and

the accused had latched the door from inside.
                                8                       1Apeal724.07.odt


13.          The victim has deposed that thereafter, one person

opened the door forcibly, and when the appellant attempted to run

away, he was caught by the persons and taken to the police station.


14.          In the Police Station, her statement was recorded,

which was below Exhibit 33, and on the printed FIR, she identified

her signature below Exhibit 34. She then submitted that she was

medically examined, for which she gave her consent, and she

identified her signature on exhibit 48. She deposed that she had

sustained injuries to her hand, as well as on her chest and at that

time, she was raising shouts. She further submitted that her

statement was recorded in the Court at Tuljapur.


15.          Victim has further stated that at the time of the

incident, she was wearing a blue-coloured top and a green-

coloured sweater, as well as blue pant salwar and under garments.

She identified the clothes and specifically stated that her top was

torn, which was given Article 7. The salwar was at Article 8, the

underwear at Article 10, and the bra at Article 9; she also identified

the sweater, which was torn on the shoulder. She submitted that

the police also seized the blanket.
                               9                        1Apeal724.07.odt


16.         The victim further stated that the clothes she was

wearing at the time of the incident were also handed over to the

police, and that she had shown the spot to them. In her testimony,

she deposed that her parents have died, as have her grandparents.

She stated that the accused used to keep an eye on her whenever

she fetched water. On one occasion, the accused came to the

victim's house to demand water; the request was refused, and the

accused abused the victim.


17.         In cross-examination, she had admitted that she had

completed education up to 10th standard, and that one Nitin

Londhe, Satish Londhe, and Gorakh Pardhe are from her

community. An attempt was made by way of cross-examination to

bring on the record that there were several houses situated

adjacent to the spot of the incident, and there was also traffic. She

also admitted knowing one Vijay Borade and denied the suggestion

that she had lodged a complaint against him. The other suggestions

given to this witness were denied.


18.         In further cross-examination, the victim – P.W. 13 had

admitted that she had stated in the statement that she had received
                                10                        1Apeal724.07.odt


the injuries on her chest and also on her hand. In short, the defence

sought to bring the omissions to the court's attention.


19.         In further cross-examination, she admitted that there

was one cot in the house, and besides the cot, there was enough

space to sleep for three persons. If the testimony of the aforesaid

witness is perused, it would be crystal clear that the incident had

taken place in November 2017 at 10:30 p.m., which is winter time.

The grandparents were 70 to 72 years old. witness has further

categorically stated that the appellant forcibly entered the house by

removing a tin sheet, pushed the grandparents out of the house,

latched the door from inside, and committed forcible sexual

intercourse, it was only when a person broke open the door that

the victim was rescued. The victim has also stated her clothes were

torn, and when produced in court during cross-examination, she

identified them. The cross-examination at the hands of the accused,

though, tried to prove the omissions, but the fact remains that

those omissions were not put to the Investigating Officer. At this

stage, it is necessary to note that the police officer who recorded

the victim's statement was examined before the victim's testimony
                                11                       1Apeal724.07.odt


was recorded. Therefore, there was no opportunity at that time to

put the omission to the witness. Still, there was no hurdle for the

defence to recall that witness or examine the said person in

defence. The defence did not attempt, and, therefore, those

omissions cannot be relied upon.


20.          Since the victim had deposed that her grandparents

had died, the testimony of a person who broke open the door is of

vital importance.


21.         P.W. 5 is Asif Shaikh, who stated that on 03.11.2017,

when he was returning home after performing his duty, at about

10:00 to 10:30 p.m., an old man and woman were shouting on the

road, saying that a man was inside their house. At that time, Anna

was with him as well. He then went to the house, a tin shed, and

heard the girl's screams inside. He tried to open the door and,

thereafter, used force to open it. He noticed that the girl was crying

and her clothes were torn, and an accused was inside. The girl then

disclosed that the accused had forcibly entered the house and had

done ‘Jabardasti’.
                                12                      1Apeal724.07.odt


22.         P.W. 5 then caught hold of the accused and made a

phone call to his employer, who arrived at the scene of the incident

along with a few other persons. The persons who gathered

assaulted the accused. He identified the accused who was present

in the Court. He submitted that his employer and one Gorakh

Pardhe were present there , who made a phone call to the police,

and the police arrived and took the accused into custody. He

deposed that when he entered the house, he saw the accused was

having his pants pulled down.


23.         This witness was cross-examined, in which he stated

that when people gathered and started beating the accused, the

accused then ran away and went to the road before Bhosale's shop,

and the boys followed him, caught him and brought him back. The

other suggestions given to this witness were denied. Omissions

were then brought to this witness's attention regarding the fact that

the old man and the woman were crying. But he clarified that

crying and shouting are the same thing. The omissions that he was

on a motorcycle, stopped a vehicle, went to home, Anna was with

him, P.W. 5 then kicked to open the door, that boy was in front of
                                13                      1Apeal724.07.odt


me, the girl was crying, and her clothes were torn, and Gorakh

Pardhe made a phone call to the police, were put to him. This

witness deposed that he could not assign any reason for not

including it in his statement. He also admitted that he had stated to

the police that when he saw the accused, the pants of the accused

were half pulled down.


24.          At this juncture, to see whether the omissions are

proved or not, the testimony of P.W. 11 is required to be seen. It is

necessary to consider the testimony of P.W. 11, who had admitted

that while the statement of Asif Shaikh / P.W. 5 was recorded, he

did not state that, “I was on a motorcycle. I stopped the vehicle and

went home. Anna was with me; I kicked to open the door. That boy

was in front of me; that girl was crying, and her clothes were torn.

Londhe Mama and Gorakh Pardhe made a phone call to the police,

when I saw the pants of the accused were half pulled down.He had

received a phone call from Shinde and Asif Shaikh, who said they

had caught one man”. Thus, it is crystal clear that the omissions

stated above are duly proved.
                                14                       1Apeal724.07.odt


25.         Learned counsel for the appellant’s contention is that if

the testimony of P.W. 13, P.W. 4 and P.W. 11 is considered, it

would reveal that the entire story is full of omissions and

contradictions. In this regard, it is necessary to mention that, there

are no proven improvements or omissions in the victim's testimony.

In fact, the testimony would reveal that            the victim has

categorically stated that the act was committed. So far as the

testimony of P.W. 4 is concerned, though there are omissions, as

discussed above, and are duly proved through P.W. 11 –

Investigating Officer, the question is whether those omissions

would be sufficient to discard the victim's testimony. The minor

omissions would not undermine the prosecution's core case as

testimony will have to be read holistically. It is a well-settled

principle of law that if the testimony of the prosecutrix is cogent

and reliable, then no corroboration is required. The question

whether the testimony of the prosecutrix inspires confidence is also

to be examined from the record of the case.


26.         In this regard, it is necessary to take into consideration

that the fact that the accused was caught at the spot of the incident
                                15                       1Apeal724.07.odt


is not disputed in the cross-examination. According to the

prosecution, the incident occurred at 10:30 p.m. on 03.11.2017,

and the first information report was registered on 04.11.2017 at

about 04:07 a.m. Thus, it is crystal clear that there is absolutely no

delay in lodging the first information report.


27.         It is further required to be noted that for proving the

offence of rape, the prosecution is not required to prove the

offence; solely through medical evidence. The opinion given by the

Doctor / Medical Officer who examined the victim is not the gospel

truth, and even in the absence of medical evidence, the offence of

rape can be said to have occurred. There is a world of difference in

medical jurisprudence and statutory provision of rape.


28.         P.W. 9 is the Medical Officer who examined the victim

and the accused. P.W. 9 – Dr. Sindhu had stated that on

04.11.2017, she had received a letter from the concerned police

station requesting medical examination of the victim of rape and,

accordingly, she carried out the medical examination and noticed

no biting but pinching abrasion on hand with emotional abuse and

no luring, there were injuries on her person (1) abrasion to right
                               16                       1Apeal724.07.odt


hand two in numbers each about ½ X ½ cm (2) abrasion on left

hand dorsally ½ X ½ cm,      (3) abrasion on chest on left breast 3

in numbers, each about 1 X 1/8 th cm. According to her, the

injuries were simple in nature, caused by a hard and blunt object,

and occurred within 24 hours. There was emission of semen. There

was touching and fondling. No condom was used. The victim had

not changed clothes, but underwear was at home. She had not

taken a bath nor douched. She had passed urine. She had rinsed

her mouth. It happened 7 to 8 hours ago. She stated there was a

history of pain on touch. In the general examination, the

parameters were normal. She noted the injuries on the body. On

examination, the external genital hymen was absent. On PS, the

findings of the cervix and vagina were normal. Annus rectum and

cavity were normal. Nothing abnormal was noticed in systemic

examination. She collected a sample of nail clippings from both

hands and blood for grouping. Samples of pubic hairs, valval swab,

and vaginal swab were collected. She categorically stated that there

was no evidence of any forced sexual intercourse. According to her,

the physical injuries noticed were consistent with sexual assault.

She expected injuries to the private parts of the victim and,
                                 17                       1Apeal724.07.odt


therefore, gave the opinion that there was no forced sexual

intercourse. She proved the victim's medical examination report

below, Exhibit P48/PW9. She identified her signature on it and

deposed that its contents were true and correct.


29.          She also examined the appellant and proved the

medical examination report of the accused, below exhibit

P50/PW9, and issued a certificate. So far as the injuries of the

accused are concerned, she has deposed as under :


            “He had blunt trauma to the chest, having no external

            injury, abrasion on the left cheek ½ X ½ cm, caused by

            a hard and blunt object, age within 24 hours, simple in

            nature, contusion in the forehead in front, 3 X 2cm,

            caused within 24 hours by a hard and blunt object,

            simple in nature.”


30.         She stated that such injuries can be caused in the case

of sexual assault in an effort to get rescued by the victim of assault.

blood samples, pubic hairs and nail clippings were taken. She

deposed that the chemical analyser's report was marked below P52,
                                18                      1Apeal724.07.odt


P53 and P54. In cross-examination, she admitted that there was no

external injury noticed on the private part of the victim. In

response to the question of whether she noticed any injury to the

victim's body part? She replied affirmatively and specifically stated

that it was on the breast. She admitted that presence of semen in

vaginal swab determines the offender. She also admitted that she

had not noted down the presence of smegma on the glance penis of

the accused. She also admitted that the injuries noticed on the

person of the accused are possible by kicks and fist.


31.         For appreciating the contention of learned counsel for

the appellant that medical evidence clearly shows that there was

absolutely no evidence of any forced sexual intercourse, it is

required to be stated that not only, the medical findings are

required to be taken into consideration, but also the testimony of

the victim, in light of the other evidence . As already mentioned

above, the victim had categorically stated that the act was against

her will and that the accused forcibly entered the house, pushed

the grandparents outside, latched the house from inside, and

thereafter committed forcible sexual intercourse. If, in light of the
                                19                       1Apeal724.07.odt


aforesaid background, the injuries on the bodies of the victim and

the accused are taken into consideration, it is crystal clear that the

injuries on the body of the accused are the result of resistance.

Whereas, the injuries on the body of the victim can be called as an

act of violence committed by the accused. The accused has not

explained the injury to his person whatsoever.


32.           Learned counsel for the appellant submitted that the

possibility cannot be ruled out since the accused was arrested and

assaulted by the persons, which is also admitted by P.W. 5, the

injuries might have been sustained. He may be right, but that

defence will have to be built with by the defence, either through

cross-examination of the witnesses or by answering the questions

put under Section 313 of Cr.P.C. If the questions put to the accused

under Section 313 of Cr.P.C. are perused, more particularly

question nos. 183, 184 and 185, it would be crystal clear that,

except stating that case is false, nothing else has been brought on

record. Thus, it is very difficult to say that the injuries were

sustained by the accused at the hands of the persons who had

beaten him.
                                 20                       1Apeal724.07.odt


33.            This takes me to the testimony of one Gorakh

Pardhe/P.W. 6. This witness was not an eyewitness to the incident

but arrived when he received a phone call from Mr Shinde. P.W. 6

stated that P.W. 5 had caught hold of one man. On being enquired,

P.W. 5 informed that the said man committed rape on the victim.

The testimony of this witness shows that the incident occurred at a

tin-shed house. In cross-examination, he stated that his statement

was recorded after 2 to 3 days of the incident. So far as omissions

were concerned, i.e., “ I had received a phone call from Shinde,

and Asif Skaikh had caught one man,”. were put to P.W. 11, who

had proved the said omissions. The said omissions would not go to

the root of the matter, and even if they did, this witness is not an

eyewitness.


34.           Coming to the spot of the incident, it is necessary to go

through the testimony of witnesses, as well as the spot of the

incident. The spot of the incident is at exhibit 25, which the

prosecution proved through P.W. 1. P.W. 1 stated that on

04.11.2017, the police called him to prepare the panchnama, and

another panch, Gapat, was present. He then visited the spot, which
                                21                      1Apeal724.07.odt


had a tin shed, where they saw three tin boxes, one bed, a blanket,

and a tin sheet. Then blanket was seized, which was given Article 1

for identification, and the panchnama below Exhibit 25 was

prepared.


35.         In cross-examination, this witness admitted that he is

not in a position to provide the crime number of the case or the

names of other witnesses. He denied the suggestion that the

blanket produced in the Court was not the one seized. He stated

that he is not in a position to disclose the shed's boundaries. He

denied the other suggestions.


36.         Thus, the spot panchnama and the testimony of the

aforesaid witness also support the testimony of the prosecutrix that

by removing the tin sheet, the accused had entered the house.


37.         P.W. 10, who at the time of the incident, was attached

to Tuljapur police station as PSI, who prepared the spot

panchnama on 04.11.2017 at 17:45 to 18.15 hours in the presence

of panchas Kiran Mali and Vikas Gapat. He was shown exhibit P25,

on which he identified his signature, as well as those of the
                               22                       1Apeal724.07.odt


panchas. In cross-examination, the only suggestion is given that the

false panchnama was prepared, and it was dark when he

conducted the spot panchnama. The said suggestion was denied by

P.W. 10. There is nothing to show that investigation of the crime

was tainted, and there was any illegality committed by the

investigating officer.


38.          Coming to the CA report, it is necessary to note that

exhibits P52 to P54 are the description of articles containing the

parcels. Report dated 10.12.2018 of exhibit P52 states that exhibit

2 has blood stains, each of about 0.2 cm in diameter, on the right

front portion. Exhibit 3 is stained with blood in the upper middle

portion and appears washed. Exhibit 5 shows a few blood stains,

ranging from about 0.1 cm to 5 cm in diameter, in the middle

portion. Exhibit 6 shows a few blood stains, 0.1 to 5 cm in

diameter, on the left front upper portion. Exhibit 7 has two blood

stains, each of about 0.2 cm in diameter, one on the front middle

portion and another on the left front lower portion. Exhibit 9

shows a few blood stains, ranging from about 0.1 cm to 2 cm in

diameter, mostly on the left leg, front portion. Exhibit 10 has three
                                23                         1Apeal724.07.odt


blood stains, each of about 1 cm in diameter, at one end. Blood

was not deducted from exhibits 1, 4 and 8, and semen was not

deducted from exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. Hair was

found on exhibits 6, 7, 8, 9 and 10, and blood detected on exhibits

2, 3, 5, 6, 7, 9 and 10 was human. Blood group deduction on

exhibits 2, 3, 5, 6, 7, 9 and 10 was conclusive, and hair in exhibits

6, 7, 8, 9 and 10 is human hair and is dissimilar to exhibit 2 of the

ML case.


39.         To co-relate the findings, it is necessary to state that the

exhibit 1 was the Sweater (torn), exhibit 2 was Kurta (torn),

exhibit 3 was Salwar, exhibit 4 was Bressier, exhibit 5 was Jangya,

exhibit 6 was Full open shirt (torn), exhibit 7 Sandow baniyan,

exhibit 8 was Knicker, exhibit 9 was Full pant and exhibit 10 was

Chadar. Exhibits 1 to 5 were clothes of the victim, whereas

exhibits 6 to 9 were of the accused.


40.         Thus, findings of noticing the blood at exhibits 2, 3, 5,

6, 7, 9 and 10 assume importance, as the victim as well as the

accused had sustained injuries as stated above, which were fresh,

and, therefore, the possibility cannot be ruled out that the clothes
                                  24                        1Apeal724.07.odt


were stained with blood. Though the learned counsel for the

appellant argues that blood group is inconclusive, the fact remains

that it will not go to the root of the matter. Even otherwise,

independent of these CA reports, the prosecution has proved the

accused's guilt beyond a reasonable doubt.


41.          Coming to the conviction of the appellant for the

commission of an offence under Section 451 of the IPC, the

prosecution has rightly proved that the accused had committed the

house    trespass   to   commit        the   offence   punishable     with

imprisonment. The fact that the P.W. 5 saw the accused inside and

caught hold of him. The testimony of the prosecutrix that the

accused forcibly entered, so also the aspect though spot

panchanama shows removal of tin sheet from north south corner of

the tin shed shows that the entry of the accused amounts to

criminal trespass, and it was with an intention to commit an

offence, i.e. offence of rape.


42.          Learned counsel for the appellant has relied upon law

laid down by the Hon’ble Apex Court in the case of Santosh Prasad

@ Santosh Kumar Versus State of Bihar, reported in AIROnline
                               25                         1Apeal724.07.odt


2020 Supreme Court 187, more particularly, paragraph no. 6

which read as under :

           “6. Having gone through and considered the
           deposition of the prosecutrix, we find that there
           are material contradictions. Not only there are
           material contradictions, but even the manner in
           which the alleged incident has taken place as per
           the version of the prosecutrix is not believable. In
           the examination-in-chief, the prosecutrix has
           stated that after jumping the fallen compound wall
           accused came inside and thereafter the accused
           committed rape. She has stated that she identified
           the accused from the light of the mobile. However,
           no mobile is recovered. Even nothing is on record
           that there was a broken compound wall. She has
           further stated that in the morning at 10 O’clock
           she went to the police station and gave oral
           complaint.    However,      according     to       the
           investigating officer a written complaint was
           given. It is also required to be noted that even the
           FIR is registered at 4:00 p.m. In her deposition,
           the prosecutrix has referred to the name of Shanti
           Devi, PW1 and others. However, Shanti Devi has
           not supported the case of the prosecution.
           Therefore, when we tested the version of PW5 -
           prosecutrix, it is unfortunate that the said witness
                                26                               1Apeal724.07.odt


           has failed to pass any of the tests of “sterling
           witness”. There is a variation in her version about
           giving the complaint. There is a delay in the FIR.
           The medical report does not support the case of
           the prosecution. FSL report also does not support
           the case of the prosecution. As admitted, there was
           an enmity/dispute between both the parties with
           respect to land. The manner in which the
           occurrence is stated to have occurred is not
           believable.    Therefore,     in        the   facts       and
           circumstances of the case, we find that the solitary
           version of the prosecutrix – PW5 cannot be taken
           as a gospel truth at face value and in the absence
           of any other supporting evidence, there is no scope
           to sustain the conviction and sentence imposed on
           the appellant and accused is to be given the
           benefit of doubt.”



43.        He    then    contended     that   if    there   are      material

contradictions, delay in lodging first information report, then it

would reveal that the testimony to the prosecutrix, cannot be

termed as a sterling quality.


44.        The perusal of aforesaid judgment would reveal that

the victim had stated that initially she had lodged an oral report
                                27                      1Apeal724.07.odt


and, thereafter, she stated that the written report was filed. Again,

in that case, one Shanti Devi, the witness on whom the prosecution

relied, turned hostile. Even, it was brought on the record that there

was enmity/dispute between both parties. It is in this background

that the Hon’ble Apex Court has stated that the testimony of the

victim was not of sterling quality.


45.          In the case in hand, as already stated, the victim has

categorically stated the act committed whereas the defence has not

brought anything on record to show that it was a case of false

implication. independent witness / P.W. 5 and the injuries on the

person of the victim and the accused point toward the guilt of the

accused.


46.         So far as judgment in the case of Sanjay Shriram Joshi

Versus State of Maharashtra, 2008 All M.R. (Cri.) 2514, delivered

by the Bombay High Court and relied upon by the appellant is

concerned, suffice it to say that in that case the initial complaint

was for teasing and not even for attempt to rape. The Court had

stated that, according to the version of the prosecutrix, the act

committed by the accused was of ‘chedchad’, which would at the
                                28                        1Apeal724.07.odt


most be described as outraging modesty. There was a delay in

lodging the first information report in that case.


47.         In the present case, the testimony of the prosecutrix is

cogent and consistent. There is no delay in lodging the first

information report. Thus, it cannot be said that the prosecution

suppressed the genesis of the crime.


48.         As far as law laid down by this Court in case of Bhagat

alias Rikhmal Mahabal Maurya Versus State of Maharashtra,

reported in 1985 LJ Soft (Bom) 188 is concerned. In that case the

facts of the case were totally different since the child was subjected

to the illegal act and the medical evidence indicated that no rape

was committed. It is in this background that the child's testimony

was considered, and the story was disbelieved. In case in hand, the

victim of crime was major in the eyes of law.


49.         At the cost of repetition, it is stated that in the present

case, the spot of the incident, the manner in which the offence was

committed, the timing at which it was done, the injuries on the

persons, clearly show that the accused is guilty of the crime. Thus,
                               29                       1Apeal724.07.odt


a judgment decided on the factual aspect will not come to the

rescue of the appellant / accused.


50.         The trial court has discussed the evidence available on

record in the right perspective and, thereafter, has given the

findings which resulted in the conviction of the accused. Not

building a defence either in the cross-examination or by answering

the statement under Section 313 of Cr.P.C., also shows that the

defence made a fragile attempt to convince the Court that it was a

case of false implication. Prompt lodging of the first information

report, injuries on the person of the accused as well as the victim,

testimony of an independent witness / P.W. 5, clearly shows that

there is a ring of truth in the case advanced by the prosecution. The

prosecution has proved the case beyond a reasonable doubt and,

therefore, I conclude that the appeal is meritless. Accordingly, the

following order is passed :

                              ORDER

      i.    Criminal Appeal is dismissed.


      ii.   At this stage, it is necessary to observe that Mr

      Kulkarni, appointed counsel for the victim, was thoroughly
                                30                      1Apeal724.07.odt


      prepared with the case and did not seek any adjournment, so

      also assisted the Court in arriving at a conclusion. His fees

      are quantified at Rs. 12,000/-.


      iii.   Pending Criminal Application also stands disposed of.




                                           ( RAJNISH R. VYAS, J. )

SPC