Shri Suresh @ Dursing Jahagrya … vs The State Of Maharashtra & Anr on 27 November, 2017

1 CRI.APPEAL NO.562 OF 2015

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.562 OF 2015

Shri Suresh @ Dursing Jahagraya Pawara,
Age 31 years, Occ. Agriculture Labour,
R/o. Kauthal,
Tal. Dist. Dhule.
…APPELLANT

VERSUS

1. The State of Maharashtra.

(2. Balabai Sagar Pawara,
Age Major, Occ. Labour,
R/o. Bhortek, Tal.Shirpur,
Dist. Dhule. )

(Appeal dismissed against R.No.2
as per Court order dt.14.10.2016)

…RESPONDENTS

Shri Shrikant S.Patil, Advocate for appellant.

Shri R.B.Bagul, APP for respondent State.

CORAM: P.R. BORA, J.

***
Date of reserving the judgment:21/9/2017

Date of pronouncing the judgment: 27/11/2017
***

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JUDGMENT:

1. The appellant has filed the present appeal

against the judgment and order passed in Sessions case

No.111/2014 decided by the Court of Additional Sessions

Judge at Dhule on 24th of June, 2015.

2. The appellant was prosecuted by Police Station,

Songir, taluka and district Dhule, for the offenses

punishable under Sections 376 and 506 of Indian Penal

Code and vide the impugned judgment and order has been

convicted by the Sessions Court for both the aforesaid

offenses. The learned Sessions Court has sentenced the

appellant to suffer rigorous imprisonment for seven years

and a fine of Rs.3,000/-; in default, to suffer simple

imprisonment for three months for the offense punishable

under Section 376 of IPC whereas, for the offense under

Section 506 (II) of IPC the appellant has been sentenced

to suffer rigorous imprisonment for two years. Both the

sentences are directed to run concurrently. Aggrieved

thereby, the appellant has preferred the present appeal.

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3. The prosecution case, in brief, is as under:

That, on 9th of April, 2014, when prosecutrix was in

her house in the field situated at village Tamaswadi with

her children, namely, Pooja, aged about two years, and

Vikram, aged about three months, at about 8 p.m., the

appellant ( hereinafter referred to as the accused), entered

in her house and told her that her husband will be coming

late in the night and he has asked him to take along with

him the prosecutrix and her children at his house, to stay

there for a night. The prosecutrix though was reluctant

to go along with the accused, since he insisted and gave

the reference of the husband of the prosecutrix, she

became ready to go along with the accused. While she

and her children were going along with the accused, after

having walked some distance, the accused dragged the

prosecutrix in standing crop of maize in one field and

committed forcible intercourse with her. Accused had

threatened prosecutrix not to shout or raise alarm or else

he would kill her and her two children. The accused had

also gagged the mouth of the prosecutrix so that she shall

not shout. After having intercourse with the prosecutrix,

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the accused fled from the spot. The prosecutrix then,

along with her children, reached home and when her

husband returned from Dhule, she narrated the entire

incident to him.

4. On the next day of the alleged incident, the

prosecutrix went to Police Station, Songir, along with her

husband and employer of her husband and lodged the

report of the alleged incident. On the report so lodged by

the prosecutrix, the offence was registered against the

accused under Sections 376 and 506 of IPC and the

investigation was set in motion. The accused was

arrested and while in Police custody, discovered the

clothes on his person. The investigating officer then

carried out usual formalities of preparing spot panchnama,

etc. The prosecutrix was sent for medical examination.

The statements of all necessary witnesses were examined

by the investigating officer. The blood, and semen

samples, collected of the prosecutrix, as well as of the

accused, were forwarded for chemical analysis and the

reports were obtained. After completing the

investigation, chargesheet was filed and the case was

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committed to the Court of Sessions.

5. The learned Additional Sessions Judge, after

having considered the oral and documentary evidence

brought on record by the prosecution, held the accused

guilty for the offenses punishable under Section 376(1)

and 506 of IPC and sentenced the accused with the

imprisonment as noted hereinabove. Aggrieved thereby,

the appellant has filed the present appeal.

6. Shri S.S.Patil, learned Counsel appearing for

the accused, assailed the impugned judgment on several

grounds. Learned Counsel submitted that the trial Court

has failed in not appreciating that the FIR of the alleged

incident was lodged after about 24 hours. Learned

Counsel submitted that the delay which has occurred in

lodging the report has not at all been explained by the

prosecution. Learned Counsel further submitted that the

unexplained delay in filing the FIR raises serious doubts

about genuineness of the complaint lodged by the

prosecutrix. The learned Counsel further submitted that

in the medical examination of the prosecutrix, no injury

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has been noticed on her person. Learned Counsel

submitted that when it was the case of the prosecutrix that

she resisted the sexual assault on her by the accused, it

appears improbable that no injury was caused to the

prosecutrix. Learned Counsel submitted that though the

vaginal swab, etc. were also collected of the prosecutrix,

nothing incriminating was revealed through the Chemical

Analyzer’s report. No semen was detected in the vaginal

swab of the prosecutrix. The learned Counsel submitted

that the prosecution has utterly failed in proving that the

prosecutrix was subjected for any forcible intercourse.

The learned Counsel further submitted that the prosecutrix

does not know any other language than Pawara but, while

recording her statement, no interpreter was called so as to

correctly translate the narration of the prosecutrix in

Marathi. Learned Counsel further submitted that the

learned Sessiosn Judge has ignored the vital admissions

given by the prosecution witnesses and more particularly

by the prosecutrix herself. The learned Counsel further

submitted that the trial Court has failed in appreciating

that the prosecutrix candidly admitted in her cross

examination that the contents of the FIR were stated by

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one Shri Borse, the employer of her husband. The

learned Counsel further submitted that though the

prosecution evidence is wholly insufficient, and shrouded

with doubts, the learned Additional Sessions Judge has

erroneously held the accused guilty for the offenses

alleged against him. The learned Counsel, therefore,

prayed for setting aside the order of conviction and to

acquit the accused of the charges levelled against him.

7. Learned A.P.P. Shri R.B. Bagul, opposed the

submissions made on behalf of the appellant. Learned

A.P.P. supported the impugned judgment and order. He

submitted that by examining 11 witnesses, the prosecution

has beyond any reasonable doubt proved the guilt of the

accused. The learned A.P.P. submitted that the delay

has been reasonably explained by the prosecution. The

learned A.P.P. further submitted that in the medical

examination of the accused, after his arrest, several

injuries were noticed on the person of the accused.

Learned A.P.P. submitted that the injuries noticed on the

person of the accused lead to an inference that the

prosecutrix had resisted the sexual intercourse by the

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accused. Learned A.P.P. submitted that in absence of

any cogent explanation given by the accused as about the

injuries noticed on his person, it has to be held that the

injuries noticed on the person of the accused were caused

to him during the alleged accident. Learned Counsel

submitted that the prosecutrix understands the Marathi

language. The learned A.P.P. submitted that the

testimony of the prosecutrix fully inspires confidence.

Learned A.P.P. submitted that the learned Sessions Court

has passed a well reasoned order and no interference is

required in the order so passed. Consequently, he

prayed for dismissal of the appeal.

8. The law is well settled that in the case of a

rape, if the evidence of the prosecutrix is found

trustworthy, believable and is free from reasonable doubts,

the conviction of the accused can be based on the sole

testimony of the prosecutrix and the Court shall not seek

any further corroboration to the version of the prosecutrix

in such matters.

9. In the instant matter, the learned Additional

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9 CRI.APPEAL NO.562 OF 2015

Sessions Judge has held the testimony of the prosecutrix

to be dependable and the conviction of the accused is

mainly based on her evidence though the learned trial

Court has also relied upon the evidence of PW 8 Sagar i.e.

husband of the prosecutrix, the evidence in the form of

recovery of clothes on person of the accused in pursuance

of his memorandum and the evidence of PW 10 Dr. Ajit

Patil, who had examined the accused after his arrest and

had noticed certain injuries on his person. It was the case

of the prosecution that said injuries were caused to the

accused during the course of his alleged intercourse with

the prosecutrix and the contention so raised has been

accepted by the learned Additional Sessions Judge.

10. After having perused the entire evidence on

record, it is, however, difficult to agree with the findings

recorded by the learned Additional Sessions Judge. First,

it has to be ascertained whether the evidence of the

prosecutrix inspires confidence and can be believed to be

true so as to confirm the conviction of the accused as

ordered by the trial Court.

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10 CRI.APPEAL NO.562 OF 2015

11. The FIR of the alleged incident was lodged on

10th of April, 2014. The alleged incident is stated to

have happened on 9th of April, 2014. As is revealing

from the contents of the FIR, on 9.4.2014, in between 8

p.m. to 8.30 p.m. the accused went to the house of the

prosecutrix situated in the agricultural field belonging to

one Raju Borse at village Tamaswadi and told the

prosecutrix that her husband may come home late in the

night from Dhule and he has, therefore, asked the accused

to take the proxecutrix with him at his house. Though the

prosecutrix initially refused to go along with the accused,

when the accused insisted, believing that her husband

might have really told the accused to take the prosecutrix

at his house, the prosecutrix along with her daughter aged

about two years and her son, aged about three months,

agreed to go along with the accused.

12. When the accused and the prosecutrix along

with her children were so proceeding, the accused,

dragged the prosecutrix in one field wherein there was a

standing crop of maize and the prosecutrix opposed the

accused and also raised shouts but the accused gagged

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her mouth, and threatened her that if she does not allow

him to have sexual intercourse with her, he will kill her as

well as her two children. Thereafter, the accused made

the prosecutrix lie down in the said maize field, and had

forcible sexual intercourse with her. At the relevant time,

the daughter of the prosecutrix was made to sit nearby

and the accused had snatched the son of the prosecutrix

from her and had thrown him nearby in the said field itself.

After having intercourse with the prosecutrix, the accused

fled from the said spot and the prosecutrix with great

difficulty returned to her house with her children.

13. At about 10 p.m., the husband of the

prosecutrix returned to home along with his employer,

namely, Raju Borse, as well as the tractor driver, namely,

Bhila Master. The prosecutrix disclosed the alleged

incident to them. They all were enraged. The husband of

prosecutrix, his employer Raju Borse and tractor driver

Bhila Master then jointly proceeded in search of the

accused towards his field. The accused, however, was not

found at his house. On the next day also the husband of

the prosecutrix searched for the accused, however, he

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could not be traced out. Thereafter, the prosecutrix, her

husband and his employer Raju Borse went to Police

Station, Songir and lodged report of the alleged incident.

14. In light of the facts appearing in the F.I.R.,

when I perused the evidence of the prosecutrix before the

Court, it is apparently noticed that she did not state many

material facts stated in the F.I.R. Her testimony before

the Court nowhere reveals that when she proceeded along

with the accused, her daughter and the son were with her.

The prosecutrix also did not state that the accused

snatched her son from her and threw him in the field

before having sexual intercourse with her. In her

testimony before the Court, the prosecutrix also did not

state that the accused threatened her that if she did not

allow him to have sexual intercourse with her, he would

kill her and her children. What she has deposed is the fact

that accused threatened her that he will kill her if she

refuses for intercourse with him. The prosecutrix has then

testified that after having intercourse with her, the

accused reached her back to her house, and ran away

thereafter.

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13 CRI.APPEAL NO.562 OF 2015

15. In the FIR it was specifically alleged by the

prosecutrix that when she proceeded with the accused on

his insistence, towards his house, her daughter was held

by the accused and the son was with her. It was further

averred in the said report that after the accused dragged

her in the standing maize crop, he snatched her son from

her and threw him in the said field and made her daughter

to sit in the said field nearby. It was also alleged by the

prosecutrix that, when she started shouting in protest, the

accused threatened her that if she refuses to have

intercourse with him, he would kill her and her children

there itself. In the FIR it was further stated by the

prosecutrix that after having intercourse with her, the

accused fled from there and, thereafter, with great

difficulty, she along with her children reached to her

house.

16. It is difficult to accept that the prosecutrix

would have forgotten the aforesaid facts while deposing

before the Court. The facts which have been omitted by

the prosecutrix cannot be said to be insignificant or

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immaterial. Had the children be really with the prosecutrix, it

is improbable that she would forget to state the said fact in her

testimony before the Court. It also cannot be accepted that

the prosecutrix would have forgotten to depose before the

Court that her son was snatched from her by the accused

before committing sexual intercourse with her and further that

the said child was thrown in the field and that the daughter was

asked to sit nearby. As has come on record, the son of the

prosecutrix at the relevant time was aged about only three

months and the daughter was aged about two years. Having

regard to the ages of her children, there is no possibility that

the prosecutrix would have gone along with the accused leaving

them alone at the house. Further, had it been the fact as

mentioned in the First Information report that after committing

rape on the prosecutrix, the accused fled away from there and

the prosecutrix, with great difficulty returned home along with

her children, in no case it would have been deposed by the

prosecutrix in her testimony before the Court that after having

sexual intercourse with her, the accused reached her at her

house. Similarly, had it been the fact as mentioned in the FIR

that at about 10 p.m. on that day, the husband of the

prosecutrix returned to home and to reach him at his home, his

employer Raju Borse and the tractor driver Bhila Master had

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been to her house and that the prosecutrix disclosed the

alleged incident to all of them, the prosecutrix would not have

forgotten to depose the said fact in her testimony before the

Court. More importantly, it was also the contention of the

prosecutrix in her report that, after she disclosed that the

accused committed rape on her, her husband, the employer of

her husband and one Bhila Master had become furious and

immediately proceeded in search of the accused towards the

field wherein he was residing. However, he was not found

there. The aforesaid fact has also not been deposed by the

prosecutrix in her testimony before the Court. This was also

an important fact since it contains an information that she

disclosed the alleged misdeed of the accused to her husband

who was at that time accompanied with his employer and one

more person and that they all became furious and immediately

proceeded in search of the accused towards his field. It also

appears improbable that such an important fact would be

missed by the prosecutrix while giving her evidence before the

Court.

17. In view of the above, serious doubts are created

about the prosecution case and in such circumstances, it would

be very unsafe to rely upon the sole testimony of the

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prosecutrix to hold the accused guilty of the offence charged

against him.

18. Further, there is absolutely no explanation as to

why the prosecutrix and her husband did not immediately

approach the nearest Police Station and lodge the report

against the accused. In fact, the incident was so serious that

the report of it must have been lodged by the prosecutrix and

her husband without any loss of time. As has come on record,

on the date of the incident, his employer had been to his

house to reach the husband of the prosecutrix on motor cycle.

It has also come on record that the prosecutrix disclosed the

alleged incident not only to her husband but also to his

employer and to one more person, namely, Bhila Master, who

was also with them. In the circumstances, in fact, it was not

impossible for the prosecutrix or for her husband to approach

the nearest Police Station immediately and to lodge the report

of the alleged incident. Even if it is assumed that the husband

of the prosecutrix and his employer were first intending to find

out the accused and were searching for him, the report could

have been lodged in the morning of 10 th of April. However, the

report came to be lodged on 10 th of April,2014, at 23.35 hours

i.e. in the late night. The report was thus lodged admittedly

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after 24 hours of the occurrence of the alleged incident. The

prosecution has not brought on record any circumstance to

justify the delay so caused in filing the report by the

prosecutrix. In the instant case there is no scope for taking a

plea that there were no means to to reach to the nearest Police

Station in view of the fact that when the prosecutrix disclosed

the alleged incident to her husband, his employer was also

present there who is an agriculturist as well as a trader.

Further, as has come on record, the said employer himself took

the husband of the prosecutrix with him on his motor cycle to

find out the accused. It is also the matter of record that when

the prosecutrix went to Police Station, Songir for lodging the

report the employer of her husband was accompanying them.

It was, thus, quite possible to immediately lodge the report on

the same day or in any case on the next day morning. There

is absolutely no explanation as to why the report was not

lodged till late night of the second day. The delay occurred in

lodging the FIR raises doubts about the genuineness of the

prosecution case.

19. After lodging of the report the prosecutrix was

immediately referred for her medical examination. She was

examined by Dr.Arun Narayan Ambalkar (PW 1) who was

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attached to Shri Bhausaheb Hire Government Medical College,

Dhule, as Assistant Professor. In the medical examination of

the prosecutrix no external injury was found anywhere on her

body. When it is the case of the prosecution that the

prosecutrix opposed and resisted the accused for having sexual

intercourse with her, it appears improbable that no injury was

found anywhere on her body. As is revealing from the material

on record, some injuries were noticed on the person of the

accused. According to the discussion made by the learned

trial Court since the accused did not provide any explanation for

such injuries on his person, an inference was liable to be drawn

that the said injuries were caused to him in the alleged incident

of forcible rape committed by him on the prosecutrix. Learned

Additional Sessions Judge has observed that injuries as were

caused to the accused were liable to be caused in the case of

forcible intercourse. The observation made and the conclusion

recorded by the learned Additional Sessions Judge is wholly

erroneous. If this is to be accepted that in an attempt of

resisting the accused from committing sexual intercourse, the

prosecutrix had caused the said injuries to the accused, it is

difficult to accept that no injury, not even a minor abrasion,

was caused to the prosecutrix.

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19 CRI.APPEAL NO.562 OF 2015

20. As noted hereinabove, the learned Additional

Sessions Judge has presumed that the prosecutrix resisted the

accused from committing sexual intercourse with her. As has

been observed by the learned Additional Sessions Judge, the

injury on the face of the accused was liable to be caused by the

prosecutrix. As per the learned Additional Sessions Judge, the

prosecutrix has scratched the face of the accused and the

injuries noticed on face of the accused were indicating the said

fact. The observation so made by the learned Sessions Judge

is without any evidence on record. On the contrary, the

evidence on record falsifies any such presumption. The

material on record shows that at the time of medical

examination of the prosecutrix, sample of her blood, vaginal

swab as well as her nail clippings were obtained and seized and

were forwarded for their chemical analysis. The report of the

Chemical Analyzer ( Exh.19) demonstrates that neither blood

nor tissue matter was detected in the nail clippings of the

prosecutrix. Had it been the fact that the prosecutrix had

scratched the face of the accused, and the injuries noticed on

the face of the accused were result of the said act of the

prosecutrix, in her nail clippings the blood and the tissue matter

must have been detected. Absence of blood or tissue matter

in the nail clippings rules out the possibility of prosecutrix

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causing any injury on the face of the accused.

21. It is also the matter of record that no semen was

detected in the pubic hairs collected of the prosecutrix or in the

vaginal swab of the prosecutrix. As has been deposed by PW

1 Dr. Arun Ambalkar, since after the alleged incident, the

prosecutrix had taken bath and had washed her body, no

semen was likely to be detected in the sample of pubic hair or

in the vaginal swab. Though it is true that merely because no

semen was detected in the vaginal swab or on pubic hair, no

such conclusion can be drawn that the prosecutrix was not

subjected for forcible sexual intercourse, reasonable doubts are

certainly created about the case of the prosecution. Moreover,

as I stated earlier, in such circumstances, the testimony of the

prosecutrix must inspire full confidence. In the present case,

as has been elaborately discussed by me hereinabove, the

evidence of the prosecutrix does not inspire such confidence.

22. As I noted earlier, the injuries noticed on the person

of the accused had much weighed in the mind of the learned

Additional Sessions Judge in holding that the said injuries

support the case of the prosecution that the accused committed

sexual intercourse with the prosecutrix. The learned Additional

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Sessions Judge has further observed that the defense raised by

the accused as about the said injuries on his person is

unacceptable. It appears to me that the entire discussion

made by the learned Additional Sessions Judge is irrelevant and

against the settled legal principles. First, it has to be kept in

mind that the failure on the part of the accused to prove his

defense cannot be a ground for holding him guilty for the

offense charged against him unless the prosecution has

undoubtedly proved his guilt by leading cogent and sufficient

evidence on record. In the instant case, as I discussed

hereinbefore, the testimony of the prosecutrix does not inspire

confidence. The facts as are appearing in the FIR are not

corroborated by the prosecutrix in her testimony before the

Court. The entire case of the prosecution appears improbable.

The delay in lodging the FIR has also not been properly

explained. Absence of any external injury on the person of the

prosecutrix is also one of the cause which raises reasonable

doubt about the prosecution case.

23. It was sought to be canvassed by the learned A.P.P.

that the injuries on the person of the accused which have not

been properly explained by the accused, indicate the guilt of

the accused. The argument so made by the learned A.P.P. is

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liable to be rejected at the threshold. If it is accepted that the

prosecutrix while resisting the accused from committing sexual

intercourse with her, caused the injuries to the accused on his

face, on his cheek, etc., it is quite improbable and unacceptable

that no injury would be caused on any part of the body of the

prosecutrix. Moreover, Dr. Patil (PW ) who had examined

the accused, did not state in his testimony before the Court that

the injuries as were noticed on the person of the accused were

liable to be caused in an attempt by him to commit forcible

sexual intercourse with the prosecutrix. In his examination in

chief, nothing has been asked to Dr. Patil as about the probable

cause of such injuries on the person of the accused. As

against it, the accused has brought on record the probable

cause for the injuries caused to him. More importantly, it is

not the case of the prosecution that the prosecutrix scratched

the face of the accused or caused any such injuries as were

noticed on the person of the accused. I have elaborately

discussed hereinbefore the evidence of the prosecutrix. In her

testimony before the Court she has not even whispered that

she scratched the face of the accused. As noted earlier,

neither blood nor any tissue matter was detected in the nail

clippings of the prosecutrix. The prosecution has, thus, utterly

failed in bringing on record any evidence to show that the

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injuries as were noticed on the person of the accused were

caused to him at the time of his alleged forcible sexual

intercourse with the prosecutrix. As such, in fact, there was no

burden on the accused to explain how the injuries noticed on

his person were caused to him. Moreover, plausible

explanation has been given by the accused for such injuries

appearing on his person. There seems no reason to disbelieve

the version of the accused.

24. After having considered the entire evidence on

record, I find it difficult to agree with the findings recorded by

the learned Additional Sessions Judge. The prosecution has

failed in bringing on record any conclusive evidence to prove

the guilt of the accused. The testimony of the prosecutrix is

not free from doubts. It would be very unsafe to base the

conviction of the accused merely on the basis of the evidence of

the prosecutrix. The entire case of the prosecution is

shrouded with doubts. Lastly, it was sought to be canvassed

by Shri Bagul that the accused has not brought on record any

reason as to why the prosecutrix would indulge in falsely

implicating the accused in such a heinous crime. According to

the learned A.P.P., in absence of any such circumstance

brought on record, it has to be presumed that the allegations

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made by the prosecutrix are true. The submission so made by

the learned A.P.P. is liable to be turned down for many reasons.

Firstly, it is incorrect that the accused has not brought on

record any circumstance. As has come on record, Raju Borse,

the employer of the husband of the prosecutrix, was desiring

that the accused shall work with him and some amount was

also therefore, given to the accused but he refused to work for

said Raju Borse. Apart from the said fact, the submission so

made is against the settled principles of law. The initial burden

is on the prosecution to prove its case beyond reasonable

doubt. Merely because the accused failed in bringing on

record any circumstance to show that there was any reason for

the prosecutrix to falsely implicate him in the alleged crime, the

guilt of the accused cannot be said to have been proved. The

prosecution has to stand on its own legs. In the instant

matter, I reiterate that the prosecution has failed in bringing on

record any such evidence to prove the guilt of the accused

beyond reasonable doubt. The prosecution evidence is not

free from doubt, benefit of which would certainly go to the

accused.

25. In the foregoing circumstances, the judgment and

order passed by the trial Court is liable to be set aside. Hence,

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25 CRI.APPEAL NO.562 OF 2015

the following order:

ORDER

1. The judgment and order passed in Sessions Case

No. 111/2014, dated 24th of June, 2015, by the Additional

Sessions Judge at Dhule is quashed and set aside.

2. The appellant accused is acquitted of all the charges

levelled against him. He be released forthwith, if not required

in any case or crime.

3. Fine amount, if any, paid by the accused be

refunded to him.

4. Criminal Appeal (No.562/2015) stands allowed in the

aforesaid terms.

(P.R.BORA)
JUDGE

AGP/562-15cr.appeal

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