Bhaurao Bhopiram Rathod vs The State Of Mah. Thr. Pso Yavatmal on 3 October, 2017

Cri. Appeal No.576.03.odt 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.576 OF 2003

Bhaurao s/o Bhopiram Rathod,
Aged about 43 years,
Occupation-Cultivator,
R/o. Bangaon, Tahsil-Ner,
District-Yavatmal. .. APPELLANT

.. VERSUS ..

The State of Maharashtra,
through its Police Station Officer,
Police Station, Ner,
District-Yavatmal. .. RESPONDENT

……….
Shri Vipul B. Bhise, Advocate for Appellant,
Shri Shyam Bissa, APP for Respondent-State.
……….

CORAM : KUM. INDIRA JAIN, J.

DATED : OCTOBER 03, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 16.8.2003 passed by the learned Adhoc

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Cri. Appeal No.576.03.odt 2
Additional Sessions Judge, Yavatmal in Sessions Trial

No.105/1999. By the said judgment and order, appellant-

accused was convicted of the offences punishable under

sections 451 and 354 of Indian Penal Code and sentenced as

under :

Sr. Conviction Punishment
No. under
section
1. 451, IPC Rigorous imprisonment for three
months and fine of Rs.1000/- in-
default Rigorous Imprisonment
for one month.
2. 354, IPC Rigorous imprisonment for three
months and fine of Rs.1000/- in-
default Rigorous Imprisonment
for one month.

2] The prosecution case which can be disclosed from

the chargesheet and connecting papers thereto may be

stated in brief as under :

(i) Complainant Bahulibai w/o Babulal

Rathod is resident of Ganeshpur, Tahsil-Ner, District-

Yavatmal. On 23.2.1999 at 9.00 pm, her husband Babulal

came to the house. Complainant and her husband had

meals together. Thereafter, her husband went to attend

‘Bhajan’ in the house of Subhash Rathod. According to

prosecution, accused with other persons had came to

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Ganeshpur for attending the programme of ‘Bhajan’ at the

house of Subhash Rathod.

(ii) Complainant and her son Yadav were

sleeping in the house. The door was latched from outside

by her husband while leaving to the house of Subhash

Rathod. In the night, one person entered the house. It is

stated by complainant that the person, who entered the

house, committed rape on her, gagged her mouth and

threatened that in case she shouts, she would be killed.

Complainant any how could manage to raise alarm. On

hearing shouts, her husband and other persons rushed to

the spot. She narrated the incident to her husband.

By that time, the person fled away from the house.

(iii) On 24.2.1999 complainant had been to

Darwha Police Station and lodged report. Crime No.30/1999

came to be registered for the offence under sections 376,

451 and 506 of I.P.C. against the accused. PW-3 PI

Ambadkar was on PSO duty. He referred the prosecutrix

for medical examination to Cottage Hospital, Darwha.

As lady Medical Officer was not available at Cottage

Hospital, prosecutrix was referred to Civil Hospital,

Yavatmal. She was examined by Medical Officer Dr. Khatri.

(iv) On 24.2.1999 itself Investigating Officer

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visited the scene of occurrence and recorded spot

panchanama in the presence of panch witnesses. At the

time of recording scene of occurrence panchanama, quilt

lying on the spot having semen stains came to be seized.

It’s separate panchanama was drawn. Statements of

complainant, her husband and other witnesses were

recorded.

(v) The seized property was sent to

Chemical Analyser. Accused was arrested on 21.4.1999.

He was referred for medical examination. The map of spot

was drawn by Tahsildar on the request of police. After

completing investigation, chargesheet was submitted to the

court of Judicial Magistrate, First Class, Darwha, who in turn,

committed the case for trial to the Court of Sessions.

3] Charge of the alleged offence was explained to the

accused vide Exh.7. He pleaded not guilty and claimed to

be tried. Defence of the accused is of total denial and false

implication.

4] To substantiate the guilt of accused, prosecution

examined in all three witnesses viz. Complainant Baolibai,

her husband Babulal and Investigating Officer PI Ambadkar.

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Considering the evidence of prosecution witnesses, trial

court came to the conclusion that accused was guilty of

committing house trespass in order to commit the offence

punishable with imprisonment and outraging the modesty of

complainant. In consequence, accused was convicted and

sentenced as stated herein above in paragraph 1. Being

aggrieved by the judgment and order of conviction, present

appeal has been preferred by the original accused.

5] Heard Shri Vipul B. Bhise, learned counsel for

appellant and Shri Shyam Bissa, learned APP for respondent-

State. Perused reasons recorded by the trial court. On

meticulous examination of the evidence of prosecutrix,

her husband and the investigating officer, this court, for the

below mentioned reasons, finds that prosecution could not

prove the guilt of the accused beyond reasonable doubt.

6] Needless to state that evidence of prosecutrix

plays a vital role in a case where sexual assault has been

alleged. PW-1 Baolibai, though in FIR stated that a person

entered the house and committed rape on her, turned down

in her evidence and deposed that a person, who entered the

house, had not committed rape on her. Complainant stated

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Cri. Appeal No.576.03.odt 6
that the person, who entered the house, caught hold her

hand. It is the case of prosecution that in an attempt to

ravish the complainant, bangles in the hands of complainant

had broken. Spot panchanama recorded by the investigating

officer clearly negatives the theory of breaking bangles as

narrated by the complainant. According to complainant,

she had not seen accused Bhaurao in the house but people

were saying that the person was Bhaurao. In cross-

examination, she admitted that on hearing her shouts, more

than 20 to 25 persons assembled on the spot. She also

admits that there was no electric light and light of lamp was

not available for want of kerosene oil.

7] It can be seen from the reasons recorded by the

trial court that relying upon two circumstances, accused

came to be convicted (i) he was seen running from the

house of complainant by PW-2 Babulal and (ii) he was

absconding and could be arrested after a long search by

police.

8] So far as the first circumstance is concerned,

evidence of PW2-Babulal needs to be scrutinized.

Admittedly, he was not present in the house when the

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person had entered by opening the latch from outside.

Yadav, eight year old son of complainant, who was present

in the house, has not been examined by the prosecution.

It is stated by Babulal that he had been to the field in the

night and when he came back at around 10-11.00 pm, he

saw Bhaurao in his house. He states that Bhaurao had come

to village for attending ‘Bhajan’ at the house of Subhash

Rathod. He saw Bhaurao coming out of his house at the

relevant time. He states that his wife told him that accused

Bhaurao outraged her modesty. In the cross-examination,

material contradictions have been brought in the evidence

of PW-2 Babulal. He states that he had not been to the

house of Subhash Rathod for ‘Bhajan’ on the day of incident

and he did not disclose to police that he had been to the

house of Subhash Rathod for attending ‘Bhajan’. Another

contradiction is regarding the time of his arrival at the

house. Before police, he stated that he came back from the

field at 9.00 pm. He denied the same during evidence and

deposed that he came back at about 10-11.00 pm from the

house of Subhash Rathod. The contradictions elicited in

cross-examination of PW-2 Babulal and proved by

investigating officer clearly indicate that Babulal is hiding

the true facts and his evidence, without corroboration,

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Cri. Appeal No.576.03.odt 8
cannot be relied upon. Though, according to complainant,

more than 20 to 25 persons assembled on the spot,

prosecution did not chose to examine even one out of the

large number of the crowd. Even otherwise, Babulal had

not seen the accused outraging the modesty of complainant.

Complainant had not seen the accused in the house. Thus

identity of accused itself is in doubt in the present case.

9] It is also interesting to note that according to

complainant, electricity was not available, light of lamp was

also not available for want of kerosene and, therefore, she

could not see the person who entered the house. At the

same time, her husband PW-2 Babulal could see the accused

running away from the house. Babulal no where states

about availability of electric supply. The evidence of

complainant and her husband particularly on the point of

identity of accused is contradictory and it would not be safe

to base a conviction on the sole circumstance as stated by

PW-2 Babulal in his evidence that he saw the accused

coming out of the house.

10] So far as the post conduct of accused is concerned,

absolutely there is no iota of evidence to connect the

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Cri. Appeal No.576.03.odt 9
accused with the crime. Investigating Officer could not give

details of search of accused made during investigation.

In the absence of required evidence accused cannot be held

guilty on the sole ground that he could be arrested after a

long period of occurrence of incident.

11] In the light of the above and on close scrutiny of

evidence, this court finds that prosecution could not

establish the identity of accused beyond doubt. As such,

judgment and order of conviction being unsustainable needs

to be quashed and set aside. Hence, the following order :

ORDER

(i) Criminal Appeal No.576/2003 stands allowed.

(ii) Impugned judgment and order dated 16.8.2003 passed
by the learned Ad-hoc Additional Sessions Judge, Yavatmal in
Sessions Trial No.105/1999 is quashed and set aside.

(iii) Appellant-accused is acquitted of the offences
punishable under sections 451 and 354 of Indian Penal
Code.

(iv) His bail bonds shall stand cancelled forthwith.

(Kum. Indira Jain, J.)

Gulande, PA

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