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Dilip S/O. Harishchandra Kanfade vs The State Of Maharashtra Thr. … on 9 April, 2018

1

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

CRIMINAL APEAL 333 OF 2017

Dilip S/o. Harishchandra Kanfade,
Aged about 56 years, Occ. : Labour,
R/o. Patkakhedi, Ward No. 3,
Saoner, District Nagpur …APPELLANT

…V E R S U S…

The State of Maharashtra,
Through Police Station Officer,
Police Station Saoner,
District Nagpur …RESPONDENT

——————————————————————————————
Shri. N.A. Badar (appointed) counsel for appellant.
Shri N.B. Jawade, Addl. Public Prosecutor for respondents.
—————————————————————————————–

CORAM: ROHIT B. DEO, J.
DATE: th
9 April, 2018.

ORAL JUDGMENT

The appellant is assailing the judgment and order

dated 3.7.2017 rendered by the Adhoc Additional Sessions Judge –

2, Nagpur in Sessions Trial 464 of 2015 by and under which the

appellant – accused is convicted for offence punishable under

section 376(2)(j) and (l) of the Indian Penal Code (“IPC” for

short) and is sentenced to suffer rigorous imprisonment for ten

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years and to payment of fine of Rs. 2,000/-.

2 Heard Shri N.A. Badar, the learned counsel for the

appellant and Shri N.B. Jawade, Additional Public Prosecutor for

the respondent.

3 The genesis of the prosecution lies in oral report

dated 27.8.2015 lodged by Ramdayal Warkhade (PW 2) at Saoner

Police Station alleging that the accused subjected his minor deaf

and dumb and mentally challenged sister to forcible sexual

intercourse on 25.8.2015. On the basis of the said oral report Exh.

18 and the printed First Information Report Exh. 19 offence

punishable under section 376(2)i)(j) and (l) and under section

506 part II of the IPC and under section 4 and 8 of the Protection

of Children from Sexual offences (“POCSO”) Act was registered

against the accused. Investigation ensued. The victim was

medically examined at Government Medical Collage, Nagpur.

Samples of nail clippings, pubic hair, swab and blood of the

prosecutrix and the accused were collected by the medical officer.

Spot panchanama was recorded, the clothes of the victim and the

accused were seized. The samples were send for chemical

analysis. Since the victim was deaf and dumb, she was sent to

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deaf and dumb School and Vaishnavi Choudhary (PW 6)

attempted to ascertain from the victim the details of the incident.

The prosecutrix was referred to Government Medical Collage,

Nagpur for determination of age. Statements of witnesses were

recorded and upon completion of the investigation, charge sheet

was submitted in the Court of Judicial Magistrate First Class,

Saoner, who committed the case to the Sessions Court.

4 The learned Sessions Judge framed charge (Exh. 3)

for offence punishable under section 376(2)(j) and (l) of the IPC.

The accused abjured guilt and claimed to be tried. The defence of

the accused is of total denial and false implication. The defence is

that the accused was assaulted and injured by Ramdayal

Warkhade (PW 2) and since the accused lodged report against PW

2 – Ramdayal, he is falsely implicated.

5 The victim is not examined by the prosecution. Dr.

Prashant Tiple (PW 5), professor in department of Psychiatric,

Government Medical College and Hospital, Nagpur who examined

the victim on 28.10.2015 has deposed that he noted the history

from the mother of the victim who stated that the victim has

problem in persuing day to day activity and her development

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milestones are delayed. PW 5 states in the evidence that the

victim did not cooperate in answering the questions put to her, she

was staring towards one point without any change of expressions

in response to the questions and her comprehension and judgment

was impaired. PW 5 has deposed that after going through the

history and the examination, he opined that the victim is mentally

retarded and incapable of taking major decisions. PW 5 has

proved report Exh. 24.

PW 6 Vaishnavi Choudhary, who was working at the School

of dumb and deaf children, Patansavangi has deposed that the

victim was brought before her by the police and her intellectual

level was very poor. The victim did not converse with PW 6, is the

deposition. PW 6 has proved report Exh. 26. In the cross-

examination, PW 6 states that she is not in a position to state that

the victim was mentally retarded.

At this stage, it would be apposite to consider the contents

of the report submitted by PW 6 (Exh. 26). The report recites that

PW 6 made enquiries with the victim and found that she is

mentally retarded to certain extent. One particular sentence in the

report is slightly confusing although it clear is that the report

records that the victim is not in a position to speak. The sentence,

the implication of which is not very clear reads thus:-

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“fryk brjkps cksyus gkoHkko b’kkjk letwu o rh cksy.;kl vl{ke

vkgs”

However, the report goes on to record that the victim

disclosed her name and when she was asked about the incident,

she stated that her brother Ramdayal (PW 2) saw her and the

accused near the nalla and beat both the victim and the accused.

6 The victim is medically examined by PW 1 Dr. Yadav

Morey on 27.8.2015. He has proved the medical examination

report Exh. 45. PW 11 has deposed that the history was narrated

by the mother of the victim. No injury was detected on the genital

region. The medical examination report Exh. 45 records that the

victim was menstruating at the time of the incident and that there

was no injury either on genitalia or the other parts of the body.

The learned counsel for the accused Shri N.A. Badar invites my

attention to the evidence of PW 1 Subhash Choudhary, the witness

to the spot panchanama who admits that the spot of incident is

not plain surface. The submission is that the absence of injury

would render suspect the prosecution case that the victim was

subjected to forcible sexual intercourse.

7 The learned Additional Public Prosecutor Shri N.B.

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Jawade submits that the brother of the victim (PW 2) is an eye

witness to the sexual assault and the conviction can rest on the

testimony of the said eye witness. The burning question is

whether the testimony of the brother of the victim is implicitly

reliable and of such a sterling quality that conviction can rest on

the basis of the said testimony notwithstanding that the victim is

not or could not be examined and notwithstanding that the

medical evidence on record is inconclusive and is of no

corroborative value. Concededly, there is no forensic evidence

connecting the accused with the alleged crime.

8 The defence is not disputing that on the day of the

incident, there was an altercation between the accused and PW 2

Ramdayal. It is also admitted by PW 2 Ramdayal that prior to

lodging of report against accused, on the day of the incident, the

accused lodged report of assault against PW 2 Ramdayal. PW 8

Sonali Meshram who conducted the initial investigation disclaims

knowledge of the report lodged by the accused against PW 2

Ramdayal. However, PW 3 – Mamta, the elder sister of the victim

admits in the cross examination that she learnt that the accused

went to lodge report against her brother and that after knowing

the said fact, we (she and her brother PW 2 – Ramdayal)

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proceeded to lodge report against the accused. The incident

occurred on 25.8.2015 and PW 2 Ramdayal lodged the report on

27.8.2015. The evidence of PW 2 Ramdayal must necessarily be

closely scrutinized and with extreme caution.

9 According to PW 2 – Ramdayal on the day of the

incident, the victim went to graze she-goats at 11.00 a.m. PW 2

went near the nalla at 4.00 p.m. to answer nature’s call and saw

that by a lonely place the victim was in a naked condition and the

accused was committing sexual intercourse with her. PW 2 asked

the accused to get up and then there was verbal altercation

between PW 2 and the accused. The accused threatened to kill

PW 2 who in response pushed the accused and returned to his

house with the victim. PW 2 states that he narrated the incident

to his parents and on the next day, he narrated the incident to

Subhash Choudhary, Vilas Waghdhare, Satish lakhe and Rahul

Bambal and lodged report on 27.8.2015. It is elicited that

Subhash Choudhary and Vilas Waghdhare are neighbours and

have cordial relations with PW 2. Subhash Choudhary (PW 1)

does state that on 26.8.2015, PW 2 narrated to him the incident.

PW 1 is a witness to the spot panchanama, the seizure

panchanama of the clothes of the accused, the seizure of the

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samples of public hair, blood and semen of the accused and the

seizure of the clothes of victim. PW 4 Satish lakhe has also

deposed that on 26.8.2015 PW 2 disclosed that the accused was

found in naked condition with his sister. Having closely

scrutinized the evidence of PW 1 Subhash Choudhary, PW 2

Ramdayal and PW 4 Satish Lakhe, in my opinion, even if the

evidence is accepted at face value, there is no explanation as to

why PW 2 did not lodge the report at least on the next day of the

incident i.e. on 26.8.2015. The fact that the accused lodged the

report of the assault on the day of the incident and PW 2 lodged

the report two days after the incident renders the prosecution case

doubtful particularly since the evidence of PW 6 Vaishnavi

Choudhary reveals that she was indeed in a position to elicit some

information from the victim who according to PW 6, disclosed that

she and the accused were seen near the nalla and beaten up by

her brother PW 2. In view of the report Exh. 26 submitted by PW

6 Vaishnavi Choudhary, it is difficult to record a finding with any

degree of certainty that the victim was incompetent to give

evidence. The prosecution ought to have produced her in the

Court and the learned Special Judge then could have interacted

with the victim and taken a decision on her competence to depose.

In view of the attending circumstances of the case, the conscious

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of this Court is satisfied that failure of the prosecution to produce

the victim in the Court has caused prejudice to the accused. The

evidence of PW 2 that he saw the accused committing sexual

intercourse with the victim is not confidence inspiring for reasons

more than one. The accused lodged report against PW 2 alleging

assault, on the day of the incident. The medical evidence does not

corroborate the version of PW 2 that the victim was subjected

sexual intercourse near the nalla, which spot according to the

admission given by PW 1 is not a plain surface. The forensic

evidence also does not take the case of the prosecution any

further.

10 It is trite law that suspicion can not be a substitute for

proof. The wild gulf between “may have committed” and “has

committed” or “must have committed” must be necessarily be

bridged by the prosecution by cogent and reliable evidence. I am

not in a position to concur with the finding recorded by the

learned Special Judge that the prosecution has proved the offence

beyond reasonable doubt.

11 In the light of the discussion supra, the judgment and order

impugned is set aside and the accused is acquitted of offence

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punishable under section 376(2)(j) and (l) of IPC.

12 The accused is in jail. He be released from custody

forthwith unless required in any other case.

13 Fees of the learned appointed counsel are quantified at

Rs. 5,000/-.

14 Appeal is allowed.

JUDGE

RS Belkhede, PA

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