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Pancham @ Pravin S/O Sewakram … vs The State Of Mah Thr Pso,Kelwad on 9 April, 2018

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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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