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Nana Saduji Mane vs The State Of Mah.Thr.Pso Amravati on 13 December, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.9 OF 2006

Nana S/o. Saduji Mane,
Aged about 50 years,
Occupation : Agriculturist,
Resident of Jalka Jagtap, PS Kurha,
District Amravati …APPELLANT

…V E R S U S…

The State of Maharashtra,
Through PSO Kurha,
District Amravati …RESPONDENT

——————————————————————————————-
Mr. Vinay Dahat, counsel for the Appellant.
Mr. A.V.Palshikar, Additional Public Prosecutor for the Respondent
——————————————————————————————-

CORAM
:ROHIT B. DEO, J.

DATE
:13.12.2017

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 23.12.2005, delivered by the learned Additional Sessions

Judge, Amravati in Sessions Trial 130 of 2004, by and under

which the appellant is convicted for offence punishable under

section 376(1) of the Indian Penal Code (“IPC” for short) and is

sentenced to suffer rigorous imprisonment for ten years and to

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payment of fine of Rs. 5000/-.

2. Heard Shri. Vinay Dahat, the learned counsel for the

appellant and Shri A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent / State.

3. Shri. Vinay Dahat, the learned counsel for the

appellant – accused submits that the conviction, which is

substantially if not entirely, based on the sole uncorroborated

testimony of the prosecutrix is unsustainable and is against the

weight of evidence on record.

Shri. Dahat, the learned counsel, would submit, that while

as a preposition of law he has no demur that the conviction can

entirely rest on the sole uncorroborated testimony of the

prosecutrix, the caveat is that the testimony must be implicitly

reliable, trustworthy and confidence inspiring. Shri. Dahat would

submit that the evidence of the prosecutrix must be discarded as

untrustworthy for reasons more than one. The conduct of the

prosecutrix is most unnatural, is the submission. The prosecutrix

states in the examination in chief that the accused, her father in

law, viewed her with “evil eye”. However, in the course of cross-

examination when the prosecutrix was called upon to explain as to

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why she did not protest when the accused locked door from inside,

the response was that she treated the accused as her father. The

fact that the prosecutrix claims to have left the matrimonial home

after she was subjected to sexual intercourse by the father in law

and then to have directly gone to the parental house, concededly,

without making any effort to narrate the incident either to her

husband or her mother in law is not a natural or normal human

conduct, is the submission. The evidence of the prosecutrix that

she was subjected to forcible sexual intercourse, and that she was

prevented from shouting, that she scratched the accused and

resisted, is not compatible with the medical evidence which does

not reveal any tell tale sign of resistance on the person of either

the prosecutrix or the accused, is the submission. Shri. Dahat, the

learned counsel would then submit that it is inherently incredible

and improbable that such a incident could have taken place in a

small house comprising two rooms, which is surrounded by houses

on every side, without any of the neighbours coming to know of

the incident. The prosecutrix had ample opportunity to raise an

alarm, is the submission. Shri Vinay Dahat, the learned counsel

would then submit, that as many as four witnesses were examined

in defence. The defence was that the prosecutrix had an axe to

grind against the accused since the accused was desirous that the

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husband of the prosecutrix marry some other woman in view of

the inability of the prosecutrix to conceive. The accused was not

present at the house on 7.8.2004, is the defence. The defence was

also that the prosecutrix was not residing in the matrimonial home

since 8 days or thereabout prior to the incident. However, the

evidence of the defence witnesses is not examined in the correct

perspective and that the learned Sessions Judge has committed the

often noticed error of approaching defence evidence with

suspicion, is the submission. Reliance is placed amongst others,

on the judgment of the Hon’ble Apex Court in Dudh Nath Pandey

vs. State of U.P. AIR 1981 SC 911, to buttress the submission that

a defence witness is entitled to be treated at par with the

prosecution witness while appreciating and marshalling the

evidence.

4. Per contra, the learned Additional Public Prosecutor

Shri A.V. Palshikar submits that the evidence of the prosecutrix is

rightly accepted and believed as reliable, trustworthy and

confidence inspiring and there is no infirmity in the judgment of

conviction. It is trite law that the conviction can entirely rest on

the uncorroborated sole testimony of the prosecutrix, is the

submission.

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5. Having given anxious consideration to the evidence

on record, the submissions urged and the reasoning underlying the

conviction, I have no hesitation in holding that the prosecution has

failed to prove the offence punishable under section 376(1) of the

IPC much less beyond reasonable doubt.

6. Concededly, the testimony of the prosecutrix is

incompatible with the medical evidence on record. It is true, as

contended by the learned Additional Public Prosecutor, that since

the prosecutrix was a married woman the absence of injuries on

the genitalia would not be decisive. But then, the evidence of the

prosecutrix is that when the accused closed the door of the inside

room she rushed at the accused. She was prevented from

shouting. The prosecutrix tried to rescue herself and to resist the

sexual assault. She scratched the accused by nails. The absence of

any visible injury on the person of either the prosecutrix or the

accused would suggest that the evidence of the prosecutrix is

inconsistent with the medical evidence. Concededly, nothing

incriminating is detected to link the accused with the alleged

sexual assault, in the reports of the Chemical Analyzer. The

learned APP Shri A.V. Palshikar, with usual fairness, is not

disputing the submission of Shri Vinay Dahat, the learned counsel

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that the evidence of PW 3 Gumphabai apart, who states that the

prosecutrix disclosed to her that she was ravished by the accused

there is no other evidence much less medical or scientific to

corroborate the evidence of the prosecutrix.

7. The prosecutrix states that she was ravished at 1.30

p.m. on 7.8.2004 at her matrimonial house. The evidence of the

prosecutrix is that the accused had a roving eye and that at the

relevant time her husband had gone to the forest to graze goats,

the accused asked Ambabai the daughter of the accused to take

her mother to the Chandur Railway hospital and the accused and

the prosecutrix were alone at the house. The prosecutrix states

that the accused closed the front door from inside, caught her by

hand and brought her to the drawing room, she was made to lay

down on the blanket and was ravished. The accused completed

the sexual act and walked out of the house. The prosecutrix went

to the house of her parents who were not present since they had

gone to Shendola Dhaskat, she disclosed the incident to

Gumphabai (PW 3) and thereafter, to her brother at 4 pm. The

prosecutrix then went to Shendola-Dhaskat alongwith her brother

and narrated the incident to her parents. The report was lodged

at 6 pm on the next day i.e. on 8.8.2004.

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8. The prosecution case has too many gray areas and it

would be absolutely unsafe to permit the conviction to rest on the

uncorroborated sole testimony of the prosecutrix. The learned

counsel for the accused Shri. Dahat is justified in contending that

the conduct of the prosecutrix is not at all natural. Apart from the

fact that the version of the prosecutrix as to what transpired on

7.8.2004 at 1.30 p.m. in the matrimonial house is suspect, that she

did not make any effort to establish contact with her husband or

mother in law and that she did not even after lodging the report

meet her husband or mother in law to narrate her grievance,

creates sufficient doubt about the version of the prosecutrix. The

explanation given for the delay in lodging the First Information

Report is not at all convincing. The defence has brought on record

in the cross-examination of PW 3 – Gumphabai that Kurha Police

Station is in between Jalka-jagtap and Shendola Dhaskat village.

The prosecutrix accompanied by her brother claims to have

proceeded from Jalka-jagtap to Shendola Dhaskat only to narrate

the incident to her parents. Concededly, the prosecutrix and her

brother did not visit the Kurha Police Station to lodge the report

although the Kurha Police Station is situated on Jalka-jagtap to

Shendola Dhaskat road. It is inexplicable as to why the report was

lodged only at 6 p.m. on 8.8.2004. It is true, as contended by Shri

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A.V. Palshikar, the learned APP that particularly in cases of sexual

assault or crime against women there can not be a cut and dried

formula to determine whether the delay in lodging the First

Information Report is fatal or otherwise. But then, in the factual

matrix, the delay in lodging the report does render the prosecution

version vulnerable.

9. The learned Sessions Judge has indeed viewed the

defence witnesses with instinctive suspicion and clearly the

learned Sessions Judge has committed the error, against which the

Hon’ble Apex Court has cautioned in Dudh Nath Pandey vs. State

of U.P, of viewing defence witnesses with instinctive disbelief and

suspicion. However, even de-hors the defence evidence, and

assuming arguendo that the learned Sessions Judge was right in

not relying on the defence evidence, I am not persuaded to hold

that the evidence of the prosecutrix is confidence inspiring.

10. It is trite law that the prosecution has to establish the

guilt of the accused beyond reasonable doubt. The liberty of the

accused can not be sacrificed at the alter of suspicion. The

evidence on record is grossly inadequate to bridge the gulf

between suspicion and proof.

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11. The judgment and order impugned is unsustainable and is

set aside. The accused is acquitted of offence punishable under

section 376(1) of the IPC.

12. The bail bond of the accused shall stand discharged. Fine

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

The appeal is allowed.

JUDGE

RS Belkhede

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