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Rape accused acquitted in light of the case falling in arena of ‘suspicion’ and no evidence

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.872 OF 2010
ALONG WITH
CRIMINAL APPLICATION NO.416 OF 2018

Sandip Ramesh Gaikwad. ]
Age – 31 years, Occupation – Fishing, ]
R/at – Sudam Zopdi, Lala Nigam Road, ]
Colaba, Mumbai – 400 005. ] … Appellant
(At present at Nashik Central Prison) ] Original Accused

Versus

The State of Maharashtra. ]
(At the instance of Cuffe Parade Police ]
Station, Mumbai) ] … Respondent

Ms. Jayshree Tripathi i/b Mr. Udaynath Tripathi for Appellant.
Mr. H. J. Dedhia, APP for State.

CORAM :- B. R. GAVAI &
SARANG V. KOTWAL, JJ.
DATE :- 06 JULY, 2018 JUDGMENT (PER SARANG V. KOTWAL, J.) :-

1. The present Appeal is preferred by the Appellant / original accused in Sessions Case No.27 of 2010 on the file of the learned 1 st Ad-hoc Additional Sessions Judge, Sewree, Mumbai. By the impugned URS 1 of 9 2 APEAL 872-10 Judgment.doc Judgment and Order dated 16th October 2010, the Appellant was convicted for commission of offence punishable under Section 376 (f) of the IPC and was sentenced to suffer R.I. for ten years and to pay fine of Rs.1,000/- and in default of payment of fine, to suffer further S.I. for three months. He was also convicted for commission of offence punishable under Section 302 of the IPC and was sentenced to suffer R.I. for life and to pay fine of Rs.1,000/- and in default of payment of fine, to suffer further S.I. for three months. Both the substantive sentenced were directed to run concurrently and he was given set off under Section 428 of the Cr.P.C. for the offence punishable under Section 376 (f) of the IPC.

2. The prosecution case, in brief, is that on 04/09/2009 between midnight 00.30 hours to 3.00 a.m. at Badhwar Park, Machchimar Nagar, the Appellant committed rape on the victim who was about 6 years of age and thereby committed an offence punishable under Section 376 (f) of the IPC and in the same incident, committed her murder. The FIR was lodged vide C.R.No.179 of 2009 at Cuffe Parade Police Station, Mumbai, on 04/09/2009 at 5.50 a.m. The FIR was lodged by the father of the victim. According URS 2 of 9 3 APEAL 872-10 Judgment.doc to him, his daughter was not seen in their hut in the night and therefore, search was taken when she was found in unconscious condition with injuries to her private parts and the Appellant sleeping nearby. Those were the days of Ganesh idol’s immersion and therefore, there was heavy police bandobast. The police present near the spot were informed. The Appellant was immediately arrested. The investigation was carried out. Medical examination of the Appellant was conducted. Statements of various witnesses were recorded and at the conclusion of the investigation, charge-sheet was filed. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions for trial.

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3. During trial, the prosecution examined six witnesses. PW 1 Baban Chavan is the father of the deceased, PW 2 Rukmini Chavan is the mother of the deceased, PW 3 Dr. Nandratna Paikrao who was attached to G. T. Hospital, Mumbai, conducted the post-mortem examination on the dead body of the deceased. PW 4 PSI Hanmant Jarag attached to Cuffe Parade Police Station had conducted the initial part of the investigation viz. preparation of inquest panchanama and spot panchanama. PW 5 PI Vilas Bhole attached to Cuffe Parade URS 3 of 9 4 APEAL 872-10 Judgment.doc Police Station had conducted the remaining part of the investigation. PW 6 HC Baban Palve attached to Cuffe Parade Police Station was on duty near the spot when the PW 1 had approached him between 3.00 to 3.30 a.m. on 04/09/2009 telling him about the offence and he had arrested the accused from the spot.

4. We have heard Ms. Jayshree Tripathi, learned Counsel for the Appellant and Mr. H. J. Dedhia, learned APP for State. With their assistance, we have read the evidence and perused the impugned Judgment.

5. Ms. Tripathi submitted that the prosecution case was not proved against the Appellant. His conduct shows his innocence. There was strong possibility that somebody else had committed the offence and had left the victim where she was found. The huts in the area were made of fishing nets and there were no doors to the huts and therefore, anybody could enter the hut. The medical examination and the C.A. reports conclusively show that the Appellant had nothing to do with the crime.

URS 4 of 9

5 APEAL 872-10 Judgment.doc

6. On the other hand, Mr. Dedhia, the learned APP for State, submitted that the evidence of the parents of the victim and the presence of the Appellant at the spot was sufficient to prove the case against the Appellant.

7. PW 1 and 2 have stated that the night on which the incident took place, was falling during Ganesh festival and it was the day of idol immersion. PW 1 and 2’s family saw the processions till 12.30 a.m. in the midnight. The place where they were residing, was the spot from where the idols were immersed in the sea. At about 3.00 a.m., PW 1 woke up from sleep and did not see the victim on the bed. He then woke up his wife PW 2 and both of them started searching for their daughter. They found that their daughter was lying in one hut and the Appellant was sleeping about 1.½ ft. away from her with only half pant on his person. PW 2 noticed that she was bleeding from her private parts and she was unconscious. They immediately called the police who were present on bandobast because of the immersion processions. PW 1 and 2 showed the Appellant to the police. The Appellant was immediately taken in their custody. The victim was sent to St. Georges Hospital where she was declared URS 5 of 9 6 APEAL 872-10 Judgment.doc dead. Thereafter, PW 1 lodged his FIR. During his cross-examination, PW 1 has admitted that the huts in their area were made with nets and were without any doors. Same was the case with the hut in which the Appellant was found and even that hut had no door. The hut belonged to the maternal uncle of the Appellant. The FIR is produced on record at Exh.36.

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8. PW 3 had conducted post-mortem examination on the dead body of the deceased and had found the following injuries :

(i) Anal Canal – Tear in left lateral side of anal canal, 1.00 cm X 0.5 cm,
(ii) Vaginal Canal – It was bloodstained and dried – dilated,
(iii) Tear over left lateral side of vaginal wall (laceration), size 0.3 cm X 0.5 cm The size of anterior wall injury was 0.3 cm X 0.5 cm.
The final cause of death after hystopathology test and after receipt of C.A. reports was given as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. The other three witnesses were police witnesses who have deposed about registration of the offence and the investigation carried out by them. The C.A. reports are URS 6 of 9 7 APEAL 872-10 Judgment.doc produced on record at Exh.7, 8 and 9. Exh.9 shows that the analysis was conducted to detect male specific Y STR DNA in the vaginal swab and vaginal smear. The DNA profile was not obtained from them.

9. The Appellant was subjected to medical examination on 04/09/2009 itself and there were no injuries found on his person. The C.A. report at Exh.26 shows blood was detected on the frock of the deceased but no blood or semen was detected on the half pant,T- shirt and half jeans worn by the Appellant. Exh.28 mentions that the deceased’s anal swab showed presence of semen. Exh.29 mentions that neither semen nor vaginal fluid was detected from washing taken from the private parts of the Appellant.

10. Considering the prosecution evidence, it is clear that the prosecution witnesses are not telling any false story. However, the case of the prosecution still does not travel beyond suspicion. Admittedly, those were the days of heavy rush and heavy police bandobast during the nights. The evidence shows that the police officers were present near the spot where the deceased was found. The only evidence against the Appellant is that he was found sleeping URS 7 of 9 8 APEAL 872-10 Judgment.doc near the deceased. The evidence shows that in the area, the huts were made of fishing nets and there were no doors to the huts. That means anybody could enter any hut without obstruction and without being noticed. The conduct of the Appellant sleeping peacefully does not fit with the allegations against him. On the other hand, the possibility cannot be ruled out that somebody else, after commission of the offence, could have kept the dead body near him. In a case based purely on circumstantial evidence, the prosecution has to rule out all other hyphotheses except that of the guilt of the accused. In the instant case, the strong possibility that somebody else could have committed the offence and then left the deceased near the Appellant who was fast sleep, is not ruled out. There are absolutely no other circumstances connecting the present Appellant with the crime. In fact, the C.A. reports show that there is no presence of semen or vaginal fluid on the private parts of the Appellant. He was immediately arrested and was in custody of the police till his medical examination. Therefore, this medical examination assumes importance which is more in consonance with his innocence than his guilt. In any case, the prosecution case does not travel beyond the realm of suspicion. The chain of circumstances against the Appellant URS 8 of 9 9 APEAL 872-10 Judgment.doc is not complete and therefore, we are not in a position to conclude that the Appellant alone and no one else could have committed this crime. In this view of the matter, the benefit of doubt must go to the Appellant. Accordingly, the Appeal deserves to be allowed.

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14. Hence, the following order :

ORDER (1) Appeal is allowed.
(2) The Judgment and Order of conviction and sentence in Sessions Case No.27 of 2010 dated 16th October 2010, imposed by the learned trial Judge is quashed and set aside.

(3) Appellant is acquitted of the charges charged with.
(4) The Appellant is directed to be set at liberty forthwith, if not required in any other case.
(5) Since the Appeal is allowed and disposed of, no orders are necessary in Criminal Application taken out therein and the same is also disposed of.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J

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