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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.56 OF 2009
Pancham @ Pravin s/o Sewakram Gotekar,
Aged 22 years, Occ: Labourer,
R/o Telangkhedi, Tahsil Saoner,
District Nagpur. ……. APPELLANT
…V E R S U S…
The State of Maharashtra,
through P.S.O. Police Station Kelwad,
Tahsil Saoner, District Nagpur. ……. RESPONDENT
CRIMINAL APPEAL NO.282 OF 2010
The State of Maharashtra,
through P.S.O. Police Station Kelwad,
Tahsil Saoner, District Nagpur. ……. APPELLANT
…V E R S U S…
1] Balya @ Waman s/o Tulshiram Nehare,
Aged about 35 years.
2] Pancham @ Pravin s/o Sewakram Gotekar,
Aged about 22 years,
Both R/o Telangkhedi, Tahsil Saoner,
District Nagpur. ……. RESPONDENTS
CRIMINAL APPEAL NO.283 OF 2010
Balya @ Waman s/o Tulshiram Nehare,
Aged about 35 years,
Occ: Labour, R/o Telangkhedi, Tahsil Saoner,
District Nagpur. ……. APPELLANT
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…V E R S U S…
The State of Maharashtra,
through P.S.O. Police Station Kelwad,
Tahsil Saoner, District Nagpur. ……. RESPONDENT
——————————————————————————————-
Shri L.B. Khergade, Advocate holding for Shri C.R. Thakur,
Advocate for Appellant.
Shri N.H. Joshi, APP for Respondent/State.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: th
9 APRIL, 2018.
COMMON JUDGMENT
1] These criminal appeals seek to challenge the
judgment and order dated 23.12.2008 rendered by the Adhoc
District Judge-3 and Additional Sessions Judge, Nagpur in Special
Case 12/2007 and are therefore, heard together and disposed of
by this common judgment.
2] By the judgment and order impugned the learned
Sessions Judge was pleased to convict accused Balya alias Waman
Nehare and Pancham alias Pravin Gotekar for offence punishable
under Section 448 read with Section 34 of the Indian Penal Code
(“IPC” for short) and to award sentence of payment of fine of
Rs.200/- and to further convict accused Balya alias Waman
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Nehare and Pancham alias Pravin Gotekar for offence punishable
under Section 3(1)(xi) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act” for
short) and to award sentence of simple imprisonment for six
months and to payment of fine of Rs.100/-. The Sessions Judge
did frame charge under Section 354 of the IPC, however, the
accused are not convicted for the said offence. Criminal Appeal
56/2009 is preferred by accused Pancham alias Pravin Gotekar,
Criminal Appeal 283/2010 is preferred by accused Balya alias
Waman Nehare and Criminal Appeal 282/2010 is preferred by the
State which is aggrieved by the judgment and order impugned to
the extent the accused are not convicted for offence punishable
under Section 354 of the Indian Penal Code.
3] The prosecutrix, aged 20 years as on the day of the
incident, is deserted by her husband and is residing with her
mother Sau. Sugandha Warthi (P.W.2) along with her younger
sister Sangeeta and brother Sanju at village Telangkhedi within
the jurisdiction of Police Station Kelwad. She lodged a report at
the Kelwad Police Station on 17.11.2006 alleging that the accused
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Balya and Pancham outraged her modesty at 01:00 p.m. or
thereabout on 16.11.2006. The prosecutrix was alone at home, at
01:00 p.m. Balya and Pancham asked her where her mother,
brother and sister had gone and when the prosecutrix told them
that they had gone for work, both came inside the house.
Balya turned off the radio and made himself comfortable in the
house and asked Pancham to leave. After Pancham left, Balya shut
the door and embraced the prosecutrix, who rescued herself and
opened the door of the house. Both Balya and Pancham left.
However, after sometime Pancham returned alone and asked the
prosecutrix for a glass of water. When the prosecutrix was serving
him water, he came inside the house and caught the right wrist of
the prosecutrix. Pancham asked the prosecutrix as to when she
would meet him and the prosecutrix replied that she would meet
him in the next day and then Pancham left. The prosecutrix went
to the field of Mahajan to pluck cotton and after returning home
in the evening disclosed the incident to her mother. Since it was
late in the evening she lodged the report on the next day.
4] On the basis of the oral report Exh.16 and printed
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F.I.R. Exh.17 Kelwad Police registered offence punishable under
Section 342, 448 and 354 read with Section 34 of the Indian
Penal Code and Section 3(1)(x) of the Atrocities Act.
After completion of the investigation, charge-sheet was filed in the
Court of Judicial Magistrate First Class, Saoner. The learned
Sessions Judge framed charge (Exh.7) under Section 448 read
with Section 34 of the Indian Penal Code and Section 3(1)(xi) of
the Atrocities Act read with Section 34 of the IPC and in the
alternate for offence punishable under Section 354 read with
Section 34 of the Indian Penal Code.
5] As noted supra, the learned Sessions Judge convicted
the accused under Section 448 read with Section 34 of the Indian
Penal Code and 3(1)(xi) of the Atrocities Act. However, despite
recording a finding in paragraph 4 of the judgment and order
impugned that the accused outraged the modesty of the
prosecutrix, the learned Sessions Judge did not convict the
accused for offence punishable under Section 354 of the IPC.
Surprisingly, there is no discussion whatsoever in the judgment
and order impugned as regards the charge under Section 354 of
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the Indian Penal Code.
6] P.W.1 is the prosecutrix who deposed that on the day
of the incident she had gone to pluck cotton and returned home at
11:00 a.m. When she was alone in the house accused Balya
entered the house, hugged her and pushed her in the corner.
The prosecutrix rescued herself and came out of the house and
then accused Balya left. The prosecutrix then went inside the
house. Thereafter the accused Pancham entered the house and
catching the hand of the prosecutrix asked her when she would
meet him. The prosecutrix told him to meet in the morning.
According to the prosecutrix, although the accused Pancham
caught her hand she did not react and assured to meet him on the
next day in the morning. The prosecutrix narrated the incident to
her mother and brother in the evening and on the next day she
lodged the report. She has explained the delay in lodging the
report by stating that it was too late in the night to lodge the
report. In the cross-examination it is elicited that after the mother
of the prosecutrix came home at 08:00 p.m., the prosecutrix and
her mother went to the house of the Police Patil and disclosed the
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incident, in the presence of Mahananda the wife of the Police
Patil. The Police Patil conveyed the information to Kelwad Police
on phone on the same night. The police visited the house of the
prosecutrix on the next day at 09:30 a.m. and the prosecutrix
narrated the entire incident to the police, which was reduced into
writing. It is also elicited that the prosecutrix showed the spot at
the same time and spot panchnama was prepared. It is further
elicited that the Police Patil also narrated the facts to police and it
was after the police left that the prosecutrix accompanied by the
Police Patil, his wife and the mother of the prosecutrix, went to
the Police Station. The endeavour in the cross-examination is to
show that the F.I.R. purportedly lodged in the afternoon of
17.11.2006 is not the First Information Report. It is also suggested
to the prosecutrix that there are two political groups in the village
and that both the accused belong to the rival political group of the
Sarpanch. The prosecutrix conceded to this position. She also
admits that her family is not invited to the function held at the
house of the accused due to the political rivalry. It is suggested to
the prosecutrix that since she assured to meet Pancham on the
next day her mother was annoyed and she instigated the
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prosecutrix to lodge false report. She also denied the suggestion
that due to political rivalry and on the advice of Mahananda and
Police Patil she lodged false report.
7] P.W.2 Sugandha Warthi is the mother of the
prosecutrix. She has deposed that when she returned home the
prosecutrix disclosed the incident. P.W.2 states that she and the
prosecutrix went to the house of the Police Patil and narrated the
incident and requested him to accompany them to the Police
Station, however, the Police Patil advised that it was too late and
the report be lodged on the next day. P.W.2 states that on the next
day in the morning the mother and sister of accused came to her
house and picked up quarrel. It is elicited in the cross-examination
that the Police Patil informed the Police about the incident on the
same evening and the police visited her house at 09:00 a.m. in the
morning on the next day and recorded statements. It is elicited
that the report is lodged after recording of the statement. It is
suggested to P.W.2 that the family members of the accused came
to her house and picked up a quarrel since the accused were
falsely implicated, which suggestion is denied.
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8] Mahananda Gajbhiye, the wife of the Police Patil is
examined as P.W.4. Her version is that in the evening of
16.11.2006 the prosecutrix and her mother came to her house and
disclosed that accused Balya and Pancham entered her house and
while Balya hugged her, Pancham caught her hand. P.W.4 states
that she tried to console her and to forgive the accused. However,
the apprehension of the prosecutrix was that the accused would
only be encouraged and the prosecutrix was determined to lodge
the report.
9] P.W.5 Manohar Madke is examined to prove leaving
certificate Exh.27 which records the caste of the prosecutrix as
“Gond”.
10] P.W.6 Sukhdeo Jaiwar is examined to prove Exh.29
which is a certificate issued by P.W.6 that the caste of the
prosecutrix is “Gond”. P.W.6 admits that he issued the certificate
without verifying the birth certificate and without making any
inquiry from the parents or relatives of the mother of the
prosecutrix. P.W.6 admits that his statement was not recorded by
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the police and that he issued the certificate only on the basis of
long habitation in the village.
11] P.W.7 Subhash Madavi is the Investigating Officer.
He admits that the information regarding the incident was given
by the Police Patil on telephone at night on the day of the
incident. He admits that he did not record the statement of the
Police Patil. The I.O. denies that on 17.11.2006 Head Constable
visited the spot and recorded the statement of witnesses and
prepared spot panchnama. He denies it was only thereafter that
the prosecutrix came to the Police Station and lodged the report.
12] It is not in dispute, and it is admitted that there are
two political groups in the village. The accused owe allegiance to
the political group of the Sarpanch. The prosecutrix admits that
her family is not invited to the function held at the house of the
accused due to the political rivalry. In the teeth of this admission,
the evidence of the prosecutrix must be scrutinized with some
caution since the evidence is inconsistent with the contents of the
First Information Report in which she states that when the
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accused came inside the house, she did not say anything since
accused Balya often visited her house. However, in the evidence,
the version of the prosecutrix is that when she was alone in the
house Balya entered the house and hugged her and when she
rescued herself and came out of the house, he left. She has then
deposed, it was thereafter that accused Pancham entered the
house, caught her hand and asked her when she would meet him
and in response the prosecutrix assured Pancham that she would
meet him the next day morning. This incident occurred at 01:00
p.m. and it is elicited in the cross-examination that the prosecutrix
again went to the field and narrated the incident to the
agricultural labour working in the field. Concededly, the
Investigating Officer has not recorded the statements of the
agricultural labour working in the field to whom according to the
prosecutrix she disclosed the incident when she went to work after
the incident. The evidence of the prosecutrix that she did not
inform her mother or brother since they were working in field far
away from the house is not confidence inspiring. It is elicited that
the field in which the mother and brother of the prosecutrix were
working is 10 fields away. The common thread in the evidence of
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the prosecutrix and her mother P.W.2 Sugandha Warthi is that
they went to the house of Police Patil, in the evening on the day of
the incident and narrated the incident to the Police Patil, who
informed the Kelwad Police Station. The Police Patil is not
examined. The wife of the Police Patil Mahananda (P.W.4) makes
no reference to whatsoever to the information conveyed to the
Kelwad Police Station by her husband. Mahananda states that she
tried to persuade the prosecutrix to forgive the accused, but in
vain.
13] The evidence of prosecutrix can undoubtedly be the
sole basis of conviction. However, the evidence must be of sterling
quality and implicitly reliable. Both the prosecutrix and her
mother admitted that the information was conveyed by the Police
Patil on the day of the incident and as a fact the Kelwad Police
visited then at 09:30 a.m. in the morning, recorded the statements
and also recorded the spot panchnama. The printed First
Information Report Exh.17 states that the information is received
by the Kelwad Police at 01:00 a.m. on 17.11.2006. The contents
of the printed F.I.R. Exh.17 are belied by the evidence of the
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prosecutrix and her mother Sugandha. The prosecution has
suppressed the investigation conducted before 01:00 p.m. on
17.11.2006. Since according to the prosecutrix and her mother
the Police Patil conveyed the information to the Kelwad Police
Station in the evening on the day of the incident and the Kelwad
Police investigated, recorded their statements and also recorded
the spot panchnama at 09:30 a.m. or thereabout on 17.11.2006,
the report Exh.16 is obviously not the First Information Report.
The possibility of false implication or over implication in the
report Exh.16, cannot be excluded in the admitted backdrop of the
political rivalry in the village. The failure of the Investigating
Officer to record the statements of the agricultural labour to
whom according to the prosecutrix she first disclosed the incident,
is also a serious infirmity. The cumulative effect of the suppression
of the investigation conducted in the morning of 17.11.2006, the
fact that the contents of printed F.I.R. Exh.17 that the information
was received by Kelwad Police Station at 01:00 p.m., are
obviously incorrect, the inconsistencies between the evidence of
the prosecutrix and the oral report Exh.16, the version of P.W.2
Sugandha Warthi that in the morning the family members of the
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accused came to her house and picked a quarrel and other
attending circumstances of the case create a reasonable doubt
about the veracity of the prosecution version and it is axiomatic
that the benefit of the doubt must go in favour of the accused.
14] On holistic appreciation of evidence on record, I am
not persuaded to confirm the judgment and order impugned.
The appeal preferred by the accused deserves to be allowed and
the State appeal is liable to be rejected.
15] Criminal Appeal 56/2009 and Criminal Appeal
283/2010 are allowed.
16] The bail bonds of the accused are discharged.
The fine paid by the accused, if any, shall be refunded.
17] Criminal Appeal 282/2010 preferred by the State is
dismissed.
JUDGE
NSN
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