Prakash S/O Shalikram Lokhande vs The State Of Maharashtra, Through … on 8 December, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 455 OF 2014

Prakash s/o Shalikram Lokhande,
Occupation – Labour,
R/o Alesur, Tahsil – Tumsar,
District – Bhandara. …. APPELLANT

VERSUS

The State of Maharashtra,
through Police Station Officer,
Bhandara. …. RESPONDENT

__

Shri V.D. Muley, Advocate for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 8
DECEMBER, 2017.

th

ORAL JUDGMENT :

Exception is taken to the judgment and order dated

04-8-2014 in Sessions Trial 66/2012 delivered by the learned Sessions

Judge, Bhandara, by and under which the appellant is convicted for

offence punishable under Section 457 of the Indian Penal Code (“IPC”

for short) and is sentenced to suffer rigorous imprisonment for five

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years and to payment of fine of Rs.2,000/- and is further convicted for

offence punishable under Section 376 of the IPC and is sentenced to

suffer rigorous imprisonment for a period of seven years and to

payment of fine of Rs.3,000/-.

2. Heard Shri V.D. Muley, learned Advocate for the

appellant-accused and Shri P.S. Tembhare, learned Additional Public

Prosecutor for the respondent.

3. The genesis of the prosecution lies in oral report lodged by

the prosecutrix Pramila Maroti Lokhande on 10-6-2012, the gist of

which is that she and her husband are employees of one Deepak

Chaddha and work and reside in the garden owned by the said Deepak

Chaddha. The husband and son of the prosecutrix had gone to Nagpur

to attend the marriage and she was alone in the house. The

prosecutrix awoke at 3-30 a.m. in the morning of 10-6-2012, opened

the door and went outside in the courtyard to answer nature’s call.

While returning, a person embraced her from behind, pressed her

breasts and lifted and carried her inside the room. The room was

illuminated and she noticed that the perpetrator was the cousin brother

of her husband Prakash. The prosecutrix was forcibly brought down on

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the floor, she shouted and the accused gagged her mouth, removed her

knicker, undressed himself and forcibly ravished the prosecutrix. The

accused after sexually assaulting the prosecutrix, made himself

comfortable on the cot. The prosecutrix wore her clothes, went out of

the house in the courtyard and used her mobile to call her husband to

narrate the incident. The prosecutrix suffered injuries and scratches

on the breasts due to nails, is the statement in the oral report. The said

oral report was reduced to writing (Exhibit 22) and the printed first

information report is Exhibit 23. On the basis of the said police report,

offences under Sections 376 and 452 of the Indian Penal Code were

registered against the accused. The culmination of investigation led to

submission of the charge-sheet in the Court of Judicial Magistrate First

Class, Bhandara, who committed the case to the Sessions Court. The

learned Sessions Judge framed charge (Exhibit 15) under Sections 457

and 376 of the IPC. The accused abjured guilt and the defence is of

total denial and false implication.

4. Before I venture to discuss the evidence on record, few

glaring features of the prosecution case must be noticed. Neither the

oral report nor the printed first information report (Exhibit 23) reveal

the time of lodging the report. The printed first information report

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reveals that the General Diary Reference Entry is recorded at 1-55 p.m.

The arrest panchanama Exhibit 45 records that the accused was

arrested at 6-05 p.m. on 10-6-2012 and the place of arrest is shown as

Police Station Bhandara. These aspects assumed some significance

since, in the deposition, the prosecutrix who is examined as P.W.1, has

come out with a version that after she was subjected to forcible sexual

intercourse, she came outside the house and closed the door from

outside and narrated the incident to her employer Deepak Chaddha

who had arrived in the garden in a car. The prosecutrix has deposed

that she informed her husband about the incident by using the mobile

phone of her employer Deepak Chaddha. The version of the prosecutrix

is that she lodged the report and the police arrived at the scene of

occurrence between 10-30 to 11-00 a.m., opened the door of the house

and took the accused in custody.

5. Pertinently, neither the employer Deepak Chaddha nor the

husband of the prosecutrix, though cited as witnesses, were examined

during the course of trial. The prosecution indeed has the exclusive

prerogative to decide whom to examine as witness. It is trite law, that

evidence is to be weighed and not counted, which is also the juristic

philosophy underlying Section 134 of the Indian Evidence Act.

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However, if witnesses, who ought to have been examined to unfold the

prosecution narrative and to corroborate the evidence of the

prosecutrix are not examined and no explanation is forthcoming, the

Court would be justified in drawing an appropriate inference.

6. Be it noted, that the evidence of the prosecutrix is not

consistent with the oral report. The report states that the prosecutrix

came out of the house and used her mobile to call her husband. The

oral report does not even whisper that the prosecutrix came out, her

employer Deepak Chaddha had arrived in a car, the prosecutrix

borrowed his phone and called her husband to narrate the incident.

More importantly, the report does not recite that the prosecutrix locked

the door from outside and the accused was taken into custody by the

police who unlocked the door.

7. It is elicited in the cross-examination of the prosecutrix

P.W.1 that her statements were recorded on 15-6-2012 and 25-8-2012.

The version that the prosecutrix closed the door from outside, that she

narrated the incident to Deepak Chaddha and that she used the mobile

phone of Deepak Chaddha to call her husband, is a proved omission.

Dhanraj Waghmare who is examined as P.W.2 to prove that he was a

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witness to the police arriving at the scene of occurrence, unlocking the

door of the house of the prosecutrix and taking into custody a person,

did not support the prosecution. The prosecution sought permission to

put questions in the nature of cross-examination, which permission was

granted in exercise of power under Section 154 of the Indian Evidence

Act, however, nothing is elicited in the cross-examination to assist the

prosecution. The attention of the witness was invited to portion “A” of

the statement recorded under Section 161 of the Criminal Procedure

Code, which the witness denied having stated to the police. Bharat

Wadhavan, who is examined as P.W.3 to prove the spot panchanama

Exhibit 29 and seizure panchanamas Exhibit 30 and Exhibit 31, states

that he is not in a position to identify the mobile phone. The seizure of

the mobile phone, is of little significance since the mobile phone which

is seized from the house is not proved to be owned by the accused or

otherwise to be in possession of the accused. The medical evidence is

inconsistent with the version of the prosecutrix that she was subjected

to forcible sexual intercourse. C.A. Reports Exhibit 10 and Exhibit 11

do not evidence sexual assault, is the deposition of P.W.4 Dr. Chanchal

Khobragade. However, C.A. Report Exhibit 12 states that human

semen stains were found on the petticoat and the middle portion of the

knicker of the prosecutrix. The clothes were seized from the prosecutrix

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at 10-00 p.m. on 10-6-2012 and were forwarded to the Chemical

Analyzer on 26-6-2012. Apart from the fact that the prosecution has

not shown that the clothes were sealed and between the seizure on

10-6-2012 and 26-6-2012 the possibility of tampering is excluded, the

blood group is not identified and in any event, the production of the

said clothes by the prosecutrix who is a married woman, is not

sufficient to connect the accused with the sexual intercourse, if any.

Pertinently, Exhibit 10 and Exhibit 11 are the samples of the pubic hair

and the vaginal swab respectively and no semen is detected.

8. The Investigating Officer Vijay Chavan, who is examined

as P.W.5, has deposed that he alongwith Head Constable Wankhede

and prosecutrix went to the house of the prosecutrix, the house was

locked from outside, the prosecutrix handed over key of the lock which

was then opened and the accused was found inside the house. P.W.5

Investigating Officer states that the accused was apprehended and

brought to the police station. The evidence of P.W.5 is not at all

confidence inspiring. No contemporaneous record is produced to prove

that P.W.5 and a constable opened the lock and apprehended the

accused who was inside the house of the prosecutrix. The arrest

panchanama records that the accused was arrested at 6-05 p.m. at the

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police station. I have already noted that the evidence of the prosecutrix

that she came out of the house and locked the door from outside is a

proved omission. The failure of the prosecution to examine the

husband of the prosecutrix and Deepak Chaddha coupled with the fact

that P.W.2 Dhanraj did not support the prosecution, renders the

version of the prosecutrix that the accused was inside the house and

she locked the door from outside, extremely doubtful. That apart the

evidence of the prosecutrix that she was subjected to forcible sexual

intercourse by the accused who after completing the act made himself

comfortable on the cot and the prosecutrix wore her clothes and

walked out and locked the door, is inherently incredible. Although it is

well settled that conviction can be based on the sole testimony of the

prosecutrix, I do not find the testimony either reliable or trustworthy or

confidence inspiring.

9. On a holistic appreciation of evidence on record, in my

opinion, the prosecution has miserably failed to prove, muchless prove

beyond reasonable doubt, that the accused subjected the prosecutrix to

forcible sexual intercourse. The judgment and order impugned is not

sustainable and is set aside. The accused is acquitted of the offences

punishable under Sections 457 and 376 of the Indian Penal Code.

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10. In order to keep the record straight, the learned Advocate

for the accused Shri V.D. Muley produced on record copy of complaint

instituted by the prosecutrix Pramila under the provisions of the

Protection of Women from Domestic Violence Act, 2005. The

proceedings appear to have been instituted by the prosecutrix against

the accused and his parents and the gist of the complaint is that post

conviction the accused and the prosecutrix entered into a matrimonial

alliance on 12-2-2014. It is not necessary for me to take note muchless

discuss in any detail the contents of the said complaint, which is

brought to my notice presumably to suggest that the fact that the

prosecutrix married the accused would render the version of forcible

sexual intercourse suspect. Assuming that the prosecutrix did marry

the accused despite the conviction the same, is of no significance in

law. Whether or not the prosecutrix was subjected to forcible sexual

intercourse by the accused, is to be decided on the basis of the evidence

available on the record of the trial Court.

11. The bail bond of the accused shall stand discharged and

fine paid by the accused, if any, shall be refunded to the accused.

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The appeal is allowed in the above terms.

JUDGE
adgokar

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