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Amol Shambhu Banit vs State Of Mah.Thr.Pso Gadchiroli on 26 November, 2018

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

CRIMINAL APPEAL NO. 172 OF 2005

APPELLANT : Amal S/o Shambhu Banit,
Aged about…. years, Occu. Agriculturist,
R/o Vishwanath Nagar, Tq. Mulchera,
District Gadchiroli

VERSUS

RESPONDENT : The State of Maharashtra,
through Police Station Officer,
Police Station, Mulchera, Tq. Mulchera,
District Gadchiroli.

———————————————————————————————-
Mr. V. N. Morande, Advocate for the appellant
Mr. N. S. Rao, A. P. P. for the respondent/State
———————————————————————————————-

CORAM : V. M. DESHPANDE, J.
DATE : NOVEMBER 26, 2018.

ORAL JUDGMENT

1. The present appeal is directed against the judgment and

order of conviction passed by the learned Sessions Judge, Gadchiroli

in Sessions Case No. 10 of 2002 dated 25.2.2005, whereby the Court

below has convicted the appellant for the offence punishable under

Section 376 of the Indian Penal Code and directed him to suffer

rigorous imprisonment for seven years and pay a fine of Rs.1,000/-.

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2. The present appeal was admitted on 15.3.2005 and the

appellant was directed to report to the Police Station, Mulchera,

District Gadchiroli once in a month while he was released on bail.

Due to the non-cooperation of the appellant to his counsel, on

29.10.2018, non-bailable warrant was issued against him and in

pursuance to the said non-bailable warrant, the appellant was

brought before this Court in police custody on 22.11.2018. On the

said date, it was noticed by this Court that the appellant did not

attend Police Station, Mulchera as directed on earlier occasion.

Therefore, this Court found that the appellant has tendency to jump

the bail and Registrar (Judicial) was directed to send the appellant in

jail and since 22.11.2018, the appellant is in jail.

3. The prosecution case starts on lodging of the oral report

by PW1 prosecutrix with Police Station, Mulchera. PW6 API Ashok

Ghuge, who was in-charge of Police Station, Mulchera in the month

of June, 2000, directed H.C. Prabhakar Dhande to register the

offence. The oral report of the prosecutrix is at Exh.20. The printed

First Information Report is at Exh.42. On the basis of the oral report,

a crime for the offence punishable under Section 376 of the Indian

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Penal Code was registered against the appellant vide Crime No.

17/2000. As per the first information report, the prosecutrix who at

the relevant time was aged about 32 years, states that prior to

occurrence of the incident, she had been to the house of her brother

Jitendra at Chandrapur. On the day of the incident, she left

Chandrapur city by a private bus and reached to village Koparali

where she alighted from the bus and started proceeding towards

Vijaynagar on foot, where she resides. According to the first

information report, when she reached Chachi-nala, the appellant

came on bicycle from her backside, parked his bicycle, then

approached towards her, took two bags from her hands and kept the

said bags on ground. Thereafter, he hold her hands and dragged

her. She resisted the same which resulted into breaking of bangles

and thereafter he fell her down on the ground, removed her clothes

and had a forcible sexual intercourse.

4. After the registration of the crime, API Ashok Ghuge

(PW6), the Investigating Officer, visited the spot of occurrence. The

spot of occurrence was shown by victim herself. He notices that

some bangles were lying on the spot. He prepared spot panchanama

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(Exh.23) in presence of two panchas. One of the panchas by name

Pravas Roy is examined as PW3, who was declared as hostile by the

prosecution. Under the spot panchanama itself, four pieces of red

bangles were seized. He also seized the clothes of PW1 prosecutrix

under the seizure memo (Ex.35). He also seized one intact bangle

and travelling ticket from the prosecutrix under seizure memo

(Exh.36). He sent the prosecutrix for her medical examination to

General Hospital, Mulchera under requisition (Exh.27). The medical

report of the prosecutrix is available at Exh.28.

On 14.6.2000 itself, the appellant was arrested. A

bicycle and the clothes of the appellant were seized under seizure

panchanama (Exh.37).

Under requisition letter (Exh.29), the appellant was sent

for his medical examination and the findings of medical examination

given by the Medical Superintendent of General Hospital, Mulchera

are available at Exh.30. The muddemal properties were sent to the

Chemical Analyzer for examination under requisition (Exh.31). The

Cyemical Analyser’s reports are available on record at Exhs.39 40.

5. After completion of the other usual investigation, PW6

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API Ghuge filed Charge-sheet before the Court of law. The learned

Judicial Magistrate, First Class, in whose Court the charge-sheet was

presented, found that the offence is exclusively triable by the Court

of Sessions and therefore, the case was committed to the Court of

Sessions. After committal, it was registered as Sessions Case No. 10

of 2002.

6. The learned Sessions Judge, Gadchiroli framed the

Charge below Exh.13 for the offence punishable under Section 376

of the Indian Penal Code. The appellant denied the charge and

claimed for his trial. In order to bring home the guilt of the

appellant, the prosecution has examined in all Six witnesses and also

relied on various documents which were duly proved during the

course of the trial. After appreciation of the prosecution case, the

Court below was of the view that the prosecution has successfully

established the guilt of the appellant. Therefore, convicted the

appellant and passed the impugned judgment. Hence, this appeal.

7. I have heard Mr. V. N. Morande, the learned counsel for

the appellant and Mr. N. S. Rao, the learned Additional Public

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Prosecutor for the respondent/State. Both the learned counsel took

me through the record and proceedings and the notes of evidence.

8. According to Mr. Morande, the learned counsel for the

appellant, the prosecution has not proved the case beyond

reasonable doubt and therefore, the appellant needs to be acquitted.

Per contra, Mr. Rao, the learned Additional Public Prosecutor for the

State supported the impugned judgment.

9. This Court is of mindful of the principle that sole

testimony of the prosecutrix is sufficient to record the order of

conviction. Similarly, it is an established law that merely because the

injuries are not found on the private parts of the prosecutrix, that

alone is not sufficient to discard the prosecution case. However, at

the same time, evidence of the prosecutrix and the attending

circumstances must be of such a nature that it shall inspire

confidence in the mind of the Court to record the finding of guilt

solely on the basis of the evidence of the prosecutrix.

10. When the appellant was examined under Section 313 of

the Code of Criminal Proecedure, he has stated that Khokan Mandal

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(PW2), the husband of the prosecutrix and Ranjit Mandal are friends

and the appellant is having enmity with said Ranjit and therefore the

case was lodged against him for the offence punishable under

Section 324 of the Indian Penal Code and therefore, PW2 Khokan

Mandal has falsely implicated the appellant in the crime. No

documents to substantiate the same are filed on record. Even though

the defence was not able to prove the statement made by the

appellant in his statement under Section 313 Cr.P.C. that does not

absolve the prosecution to prove its case beyond reasonable doubt.

The burden always firmly rests on the shoulder of the prosecution to

prove its case beyond reasonable doubt. In my view, it is

impermissible for the prosecution to take advantage of the lacunae

in the defence. At the most, if the defence given by the accused is

found to be false one, then that can be one of the factor while

considering prosecution case against him. However, firstly the

prosecution is under a bounden duty to prove its case beyond

reasonable doubt.

11. The evidence of PW1 prosecutrix shows that she was

proceeding on her foot to her village Vijaynagar and in the midst of

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the distance, the appellant came from behind on bicycle. Her

evidence shows that thereafter the appellant parked his bicycle. The

evidence of the prosecutrix would show that at the relevant time she

was holding two bags in her hand. Those were taken by the

appellant, kept them on the ground and thereafter, the appellant

caught hold the hands of the prosecutrix. At that time, she resisted.

Her evidence is totally silent that there was any resistance when the

appellant took the bags from her hands and placed on the ground. It

is really unbelievable that a woman will not resist when the articles

from her hands are being snatched away.

12. Exh.28 is the medical examination of the prosecutrix.

From the record it appears that the defence has admitted this

document and therefore, no doctor was examined. According to the

medical report, the prosecutrix is habituated to sexual intercourse

and in my view, it has no bearing in view of the fact that she is a

married woman and aged about 32 years. What is important to note

from Exh.28 is that the doctor who examined the prosecutrix found

no obvious signs of forceful intercourse. This assumes importance

especially when it is a specific case of the prosecutrix that not only

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she resisted the acts on the part of the appellant, but during the

process her bangles were broken. However, the medical report is

totally silent about noticing of any scratch, leave apart any injury, on

the wrist of the prosecutrix. In my view, this particular aspect gives

a shed of doubt about the version of the prosecutrix.

13. PW2 Khokan Mandal is the husband of the prosecutrix.

According to the version of the prosecutrix as well as the evidence of

this witness, after returning to home, she disclosed the fact to this

prosecution witness and thereafter they proceeded to the house of

PW4 Sukumar Viswas, the Up-Sarpanch of the village. During the

course of the investigation, a statement of Sukumar under Section

161 of the Code of Criminal Procedure was recorded. In the

examination-in-chief itself, this prosecution witness Sukumar has

deposed as under :

“On that day, at about 6.00 p.m., Khokan Mandal
came to me and he told me that the accused Amal had
caught the hand of his wife Anita and he was taking
her towards forest.”

Besides this, nothing was disclosed to Sukumar if his evidence has to

be believed. His evidence would further show that on getting this

information, he informed PW2 Khokan that they should go to the

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aged persons of village and should disclose said incident to them so

that no such incident would occur. Thereafter, they along with the

prosecutrix, Khokan’s brother Maharaj and Thakur narrated the

incident to Deven, the Police Patil of the village, who is not examined

by the prosecution, and informed him about the incident. Even his

evidence shows that they went to the ground and called the persons

of village. Thus, it appears that the Panchayat was also held.

Thereafter, the evidence of Sukumar shows that PW1 the prosecutrix

and PW2 Khokan decided to lodge the report.

14. Important to note here is that PW4 Sukumar has

deposed in his examination-in-chief on the line of his statement

recorded by the police during the course of investigation and

therefore, there was no occasion for the learned Prosecutor, who was

in charge of the brief, to declare him hostile. After his examination-

in-chief was over, he was cross-examined. In the opening line of his

cross-examination itself, he has stated that when Khokan Mandal

came to him, he did not tell him that the appellant has ravished his

wife. After the cross-examination was proceeding further, a

particular question was put to PW3 Sukumar and according to the

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learned Additional Public Prosecutor, who was in-charge of the brief,

was of the view that this question should not come on record since

by the said question, the defence wants to bring on record the

opinion of the witness regarding the accused. The learned Judge of

the Court below thereafter allowed the learned Prosecutor to file

application (Exh.25) to permit the prosecution to declare the witness

Sukumar as hostile and the Prosecutor was permitted to cross-

examine. In my view, this particular procedure is unknown,

especially when the learned Judge of the Court below himself found

that the version given in examination-in-chief by PW4 Sukumar is on

the line of his statement recorded during the course of the

investigation. In my view, the Court below ought to have seen that

he has supported the prosecution to the extent the Investigation

Officer has elicited the material against the appellant during the

course of the investigation. It was for the Court to evaluate the

evidence and appreciate the same. That time, it was always open

for the Court below to discard the answer given by the concerned

witness Sukumar regarding the opinion of the character of the

appellant as inadmissible, however, surely in my view that cannot be

the ground to permit the prosecution to declare the said witness

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hostile after his entire examination and cross-examination was over

and especially when an opportunity was available for the learned

Prosecutor to re-examine the witness, if according to the prosecution,

there was some ambiguity in his evidence. Therefore, in my view,

the Court below has committed wrong in permitting the prosecution

to declare PW4 Sukumar as hostile witness especially when his

evidence was found to be on the line and conformity with his

statement recorded by the prosecution under Section 161 of the

Code of Criminal Procedure during the course of investigation. The

learned counsel for the appellant has also pointed out to me that no

portion from his statement earlier recorded by the police was

brought to the notice of the witness so that it could be said that the

said witness was not supporting the prosecution.

15. Be that as it may. In the examination-in-chief itself, it

was stated by PW4 Sukumar that PW2 Khokan disclosed to him that

the present appellant has committed rape on his wife. He only states

that it was intimated to him that the appellant caught hold the hand

of his wife and dragged towards forest.

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16. Evidence of PW6 API Ghuge would disclose that during

the investigation, he noticed that there was rain prior to 2-3 days of

the incident and therefore, he could notice footprints. Thus, it is

crystal clear that there was rains as stated by API Ghuge, the

Investigating Officer. Further, perusal of the spot panchanama

(Exh.23) reveals that at the time of recording spot panchanama, the

Investigating Officer in presence of the panchas noticed the tyre

marks of cycle.

What is important to note is that when the clothes of the

prosecutrix were seized under seizure memo (Exh.35), the said are

conspicuous by its absence in respect of any particles of mud on the

said clothes. In my view, this falsifies the theory as propagated by

the prosecutrix that in the middle of the road, she was ravished

forcibly by the appellant.

17. Insofar as noticing of pieces of bangles on the spot is

concerned, PW2 Khokan has admitted that prior to reaching to the

police station, they first visited the spot of occurrence. Further,

evidence of PW1 prosecutrix shows that she is a married Bengali

woman and Bengali married women wear red or yellow colour

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plastic kangan. If that be so, then at the relevant time plastic

kangans would have been the bangles that she would have on her

person. No specific reason is given by the prosecutrix as to what was

the occasion for her for wearing glass bangles on that day.

Therefore, I am in agreement with the learned counsel for the

appellant that possibility of planting of the pieces of glass bangles at

the behest of the complainant is not completely ruled out. I have

already observed in the preceding paragraphs of this judgment that

when the prosecutrix was examined, even a scratch was also not

noticed on the wrist of the prosecutrix. Since, the theory of planting

of pieces of glass bangles has some grain of truth, then in that event

we will have to discard the Chemical Analyser’s report Exh.14, which

is in respect of the bangles. The C.A. Report (Exh.39) in respect of

semen stains and blood is negative.

18. On re-appreciation of the entire prosecution case, I am

of the view that though the prosecutrix is coming and deposing from

the witness box that there was a forcible sexual intercourse with her

by the appellant, in my view, as per the discussion of the prosecution

case as I have done in the preceding paragraphs, I am of the view

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that testimony of the prosecutrix does not inspire confidence to

curtail personal liberty of the appellant. That leads me to pass the

following order :

ORDER

1. The criminal appeal is allowed.

2. The judgment and order of conviction passed by

the learned Sessions Judge, Gadchiroli in Sessions Case No.

10/2002 dated 25.2.2005 convicting the appellant for the

offence punishable under Section 376 of the Indian Penal

code is hereby quashed and set aside.

3. Since, the appellant is sent to jail after he being

surrendered before this Court, the Registrar (Judicial) is

directed to pass the necessary order/ warrant of release

immediately and communicate the same to the Central Jail,

Nagpur and the appellant be set at liberty forthwith.

4. The fine amount paid by the appellant be refunded

to him.

5. The criminal appeal is allowed and disposed of.

V. M. Deshpande, J.

Diwale

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