1 APPLN5335.2016

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.

CRIMINAL APPLICATION NO. 5335 OF 2016

1. Sandeep S/o. Popat Thorat,
Age : 40 years, Occu. Private Service,
R/o. Wadgaonpan, Tq. Sangamner,
District : Ahmednagar.

2. Jijabai W/o. Popat Thorat,
Age : 66 years, Occu. Household,
R/o. As above. … Applicants

VERSUS

1. The State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Mumbai-32.

2. Police Inspector,
Sangamner Taluka Police Station,
Tq. Sangamner, District Ahmednagar.

3. Vandana W/o. Rajkumar Saroj,
Age : 36 years, Occu. Household,
R/o. Wadgaon-Pan, Tq. Sangamner,
Dist. Ahmednagar. … Respondents

……….
Mr A. N. Nagargoje, Advocate for the applicants
Mrs P. V. Diggikar, APP for respondent/State
Mr P. P. Khandagale Patil, Advocate for respondent No. 3
………….

CORAM : S. S. SHINDE
A. M. DHAVALE, JJ.

RESERVED ON : 22.08.2017.
PRONOUNCED ON : 04.09.2017.

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JUDGMENT (Per A. M. Dhavale, J.) :

1. Rule. Rule made returnable forthwith. Heard finally with the

consent of the parties and taken up for final disposal at admission

stage.

2. This as an application under Section 482 of the Code of

Criminal Procedure for quashing of First Information Report bearing

Crime No. I-43/2015 registered with Sangamner Taluka Police

Station, Tq. Sangamner, Dist. Ahmednagar, on 09.03.2015, for the

offences punishable under Sections 376(1), 354, 504 r/w 34 of the

Indian Penal Code (in short “IPC”) and Sections 3(a) 4 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as “POSCO Act”).

3. Heard Shri. A. N. Nagargoje, learned counsel for the

applicant, Mrs P. V. Diggikar, learned APP for respondents No. 1 2

and Shri. P. P. Khandagale Patil, learned counsel for respondent

No.3.

4. The applicant seeks quashing of FIR on the ground that the

FIR is filed on account of enmity and previous litigations between the

applicant his family members with Shrinath Thorat, with whom the

husband of informant is serving as a Waiter.

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5. It is claimed that, the FIR is false, there is no medical

evidence, the witnesses are not supporting the informant and the

victim girl has given statement showing that they do not want to

prosecute the said FIR.

6. The facts relevant may be stated as follows:

On 09.03.2005, Vandana, a labourer lodged FIR at

Sangamner Police Station against the applicant. As per FIR, on

08.03.2015 (on the earlier day) at about 4:00 p.m., she and her 10

year old daughter had gone to forest for cutting fire wood. Her

daughter was sitting at some distance beneath a tree while she was

cutting fire wood. At about 4:30 p.m., she heard screaming of her

daughter. Initially, she did not pay attention but when her daughter

again raised shouts then she saw one person sleeping over her

daughter and immediately rushed towards them. She saw, skirt of her

daughter was lifted and her nicker was removed, her top was also

lifted. She removed that person from the person of her daughter and

identified him to be Sandeep, relative of the owner of the hotel. At

that time, the applicant’s mother Jijabai Thorat came from her back

side and she pulled her by her hair and threatened her that, if she

would continue to work in the hotel of Shrinath Kondaji Thorat, she

would be treated in the same manner and she was warned not to

work there. When she made inquiry with daughter S, she told her

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that the applicant Sandeep had hugged her, fell her down, gagged

her mouth, lifted her skirt and removed her nicker. Thereafter

Sandeep took off his pant underwear and was inserting his penis in

her vagina and was pressing her chest and she was suffering pains in

the urinary track. The informant noticed swelling on the private part

of her daughter. She brought her home and narrated the incident to

her husband, who came late on that day. Thereafter, they narrated

the incident to the hotel owner Shri. Shrinath Kondaji Thorat. They

were taken to one advocate and thereafter they came to Police

Station and she lodged FIR.

7. The record shows that, the medical examination was

conducted on 09.03.2015 at 2:15 p.m. There is absolutely no medical

corroboration to the story of rape. The medical certificate discloses

no injuries on private parts or on the entire body of the victim girl.

Her hymen was intact.

8. The samples of blood, semen and clothes of the victim girl

and the applicant were forwarded to the office of Chemical Analysis

and the chemical analysis revealed no semen in the swab and smear

of the victim girl. No blood was detected on skirt, top, knicker of the

victim girl or on pant and shirt of the applicant. Blood was found

only on the underwear of the applicant.

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9. On 15.03.2016, the informant was forwarded to Judicial

Magistrate First Class, for recording her statement u/s 164 of the

Code of Criminal Procedure. She has stated that, she was not

interested in prosecuting the FIR against the applicant and his mother

and she had no complaint against them.

10. The statement of the victim girl was recorded late on

21.08.2017. The victim girl has given a statement that, her

statement was recorded in the court but she was not remembering

what was her earlier statement. She stated that, on 08.03.2015, the

applicant had dashed her and she assumed that he deliberately gave

a dash and hence, due to misunderstanding, her mother has given a

report to that effect. No incident had taken place as disclosed in the

FIR. On 11.03.2015, a statement of victim girl was recorded before

learned Judicial Magistrate First Class. That time, she has stated that

when her mother was cutting fire wood and she was sitting

underneath the tree, one person came with an old lady. The old lady

started beating her mother and Sandeep/the applicant herein

outraged her modesty. He had raised her ghagra and removed her

nicker. He had inserted his finger in her vagina. He had removed his

pant underwear and had inserted his private part in her vagina and

she had suffered pains. Then her mother came to rescue her and

then the said person ran away. Her mother had tried to chase him

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but he had fled away.

11. The applicant has filed records of previous litigation

between him and Shrinath Kondaji Thorat. Admittedly, the

informant’s husband was serving in a hotel run by Shrinath Kondaji

Thorat. The applicant’s mother Jijabai had lodged FIR on 04.12.2014

against Shrinath Kondaji Thorat, his brother Sahebrao Anandrao

Thorat and two children of Sahebrao. It was alleged in the said FIR

that, the said persons had forcibly entered into the field of Jijabai and

removed pomegranate trees and a motor pump installed therein and

caused loss to the tune of Rs. 20-25 lakhs.

12. The applicant’s mother again lodged FIR on 07.12.2014

alleging therein that Shrinath and his 8-10 accomplice had forcibly

entered in her house and assaulted her her sons Vikas Sandeep.

There are also allegations in the said FIR that, Shrinath had outraged

her modesty by pressing her breasts and had intimidated Jijabai and

her sons. On the basis of the said information, the crime was

registered bearing C.R. No. I-152/2014 with Sangamner Police

Station.

13. The applicant’s father had filed Regular Civil Suit

No.150/2015 against Sahebrao and 9 others including Shrinath

Kondaji Thorat for measurement, removal of encroachment and

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perpetual injunction. The applicant’s mother again lodged a report

on 08.03.2015 against Shrinath Kondaji Thorat, the informant and

some others about assault, abusing and intimidation to her.

14. The investigation shows that, two lady witnesses were

present in the said field at the time of incident and both have not

seen anything as described in the FIR.

15. The applicant had, on 09.03.2015, given a statement that,

on the day of the incident at about 12:30 p.m., he and his mother

had gone to Police Station and had given a complaint. They were

there upto 4:00 pm and thereafter they had gone to his maternal

aunt Sau. Kere where they were present upto 6:00 pm. The police

recorded statement of Shakuntala Kere, who stated that at the

relevant time, the accused and his mother were present in her house.

Call Detail Records (CDR) collected discloses applicant’s contact

number being 7350405771. CDR collected is not of the relevant

period. The incident took place on 08.03.2015 whereas; the CDR

collected is of March-2016. The Police have also collected copy of

one complaint given by Jijabai Thorat against five persons including

the informant and Shrinath Kondaji Thorat on 08.03.2015 at 04:30

pm at Sangamner Police Station. The Police have submitted charge-

sheet against Shrinath Thorat.

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16. In short, the statement of the victim and the FIR of her

mother are not supported by the witnesses who were present in the

field. The medical examination did not disclose any injury on the

person of the victim girl aged 11 years. No signs of rape or attempt

to commit rape were found. The informant and her daughter have

given supplementary statement denying their earlier statements/FIR.

17. No doubt, the alleged offences are quite serious, however,

in the light of the facts referred herein above, we find that the FIR

appears to be filed for false implication of the applicant. The

subsequent statement of the informant and the victim girl discloses

that the chances of conviction in this case are bleak. We rely upon the

judgment of the Hon’ble Apex Court in the case of Tameezuddin @

Tammu Vs. State of (Nct), 2009 (15) SCC 566, wherein in para 9 it is

observed thus:

“9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant
consideration, but to hold that this evidence has to
be accepted even if the story is improbable and
belies logic, would be doing violence to the very
principles which govern the appreciation of
evidence in a criminal matter. We are of the
opinion that story is indeed improbable.”

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18. We find that, the continuation of this proceeding would be

abuse of the process of the Court and, therefore, the FIR deserves to

be quashed. Hence, we are inclined to allow the application and pass

the following order.

ORDER

(I) The Criminal Application is allowed.

(II) First Information Report bearing Crime No. I-43/2015

registered against the applicants with Sangamner Taluka

Police Station, Tq. Sangamner, Dist. Ahmednagar on

09.03.2015, for the offences punishable under Sections

376(1), 354, 504 r/w 34 of the IPC and Sections 3(a)

4 of the POSCO Act, is hereby quashed.

. Rule made absolute in the above terms with no order as to

costs.

[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE

sgp

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