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Bidhan Vijay Viswas vs The State Of … on 27 July, 2018

1 Apeal212-03.odt

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

Criminal Appeal No. 212/2003

Bidhan s/o Vijay Viswas,
Aged 19 years,
R/o Laxmipur,
District Gadchiroli. .. APPELLANT

.. Versus ..

The State of Maharashtra,
through Police Station officer,
Mulchera, Dist. Gadchiroli. .. RESPONDENT

Mr. G.G. Bade, Advocate for Appellant.
Mrs. Swati Kolhe, APP for Respondent

….

CORAM : MANISH PITALE, J.

DATED : JULY 27, 2018.

ORAL JUDGMENT

1. The appellant herein has challenged judgment and

order dated 6.3.2003 passed by the Court of Adhoc Additional

Sessions Judge, Gadchiroli (trial Court) in Sessions Case No.51

of 1997, whereby the Court has convicted him for offence

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punishable under Sections 376/511 of the Indian Penal Code

(IPC) and sentenced him to suffer rigorous imprisonment for

two years and to pay fine of Rs.1,000/-.

2. The prosecution case was that on 14.08.1996 at

about 4.30 p.m. when the prosecutrix was returning from her

agricultural land to village, she was obstructed by the appellant

and she was dragged into the bush where the appellant

allegedly committed forcible sexual intercourse with her. It was

claimed by the prosecutrix PW2 that after the incident when

she was heading towards the village, she had met one Sanjay

Sarkar to whom she narrated the incident and that thereafter

when she reached the village square, she narrated the incident

to the villagers who were present there. Upon the incident

being narrated to the Police Patil of the village, a report was

submitted in the Police Station and a first information report

(FIR) was registered against the appellant for offence

punishable under Section 376 of the IPC at about 1.35 a.m. on

15.08.1996. The investigating officer PW3 took charge of the

investigation, seized the clothes of the prosecutrix PW2 as well

as the accused (appellant) and sent them for chemical

analysis. The investigating officer PW3 recorded statements of

witnesses and submitted charge sheet.

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3. The prosecution examined four witnesses in support

of its case. PW1 Krishna Haldar was a panch witness for

seizure, PW2 was the prosecutrix, PW3 Dilip Jagtap was the

investigating officer and PW4 Dr. Lata Galpande was the

Medical Officer, who had examined the prosecutrix after the

incident.

4. On the basis of the evidence of the prosecution

witnesses and the material on record, the trial Court found that

although a case under Section 376 of the IPC was not made out

against the appellant, the evidence on record was sufficient to

demonstrate that the appellant was guilty of an attempt to

commit rape of the prosecutrix PW2. Accordingly, the trial

Court convicted and sentenced the appellant in the aforesaid

manner.

5. Mr. G.G. Bade, learned counsel appearing on behalf of

the appellant, submitted that in the present case the

prosecutrix PW2 herself had turned hostile. Her evidence was

not believable at all. It was pointed out that the panch witness

for seizure i.e. PW1 had turned hostile and, therefore, seizure of

the clothes was also not proved by the prosecution. It was

further pointed out that while the prosecutrix PW2 and the

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investigating officer PW3 had claimed that there were stains of

semen on the petticoat and the clothes of the prosecutrix PW2,

report of the chemical analysis did not reveal presence of

either semen or blood on the clothes. It was further pointed

out that the evidence of the Doctor PW4 was also not sufficient

to prove the prosecution case. In these circumstances, it was

submitted that the entire story of the prosecution was not

proved by the evidence and material on record and that,

therefore, the trial Court was not justified in passing the

impugned judgment and order.

6. On the other hand, Mrs. Swati Kolhe, learned

Additional Public Prosecutor appearing on behalf of the

respondent-State, submitted that even if the prosecutrix PW2

had turned hostile to the extent that she herself stated that the

appellant could not succeed in raping her, the statements

made by her in cross-examination were sufficient to prove that

the appellant had indeed made an attempt to commit rape. On

this basis it was submitted that when the clothes of the

prosecutrix PW2 had been found to be in torn condition by the

investigating officer PW3, no interference was warranted in the

impugned judgment and order passed by the trial Court.

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7. Heard counsel for the parties and perused the

record.

8. In the present case, a perusal of the report lodged at

the behest of the prosecutrix PW2 shows that according to her

the appellant had committed the act of sexual intercourse with

her. She claimed that the appellant had pressed her mouth

while committing the said act and that the incident had taken

place on muddy earth with mud sticking to her person. She

also claimed that after the incident when she was returning to

the village, she met one Sanjay Sarkar to whom she narrated

the entire incident and thereafter she narrated the incident also

to villagers including Prashant Sana, Ranjit Mandal and Mani

Mistri. The first information report was registered against the

appellant on the basis of the said oral report submitted by the

prosecutrix PW2. For reasons best known to the prosecution,

none of the said persons, to whom the prosecutrix PW2 had

narrated the incident immediately after suffering the alleged

act of forcible sexual intercourse, were examined. Thus, it is

only the evidence of the prosecutrix PW2 which could take the

case of the prosecution forward.

9. But, a perusal of the evidence of the prosecutrix PW2

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shows that she was declared hostile. This was because in her

evidence before the Court, she stated that the appellant did

not succeed in committing the act of sexual intercourse with

her. Thus, the question of the appellant having committed

rape was ruled out. She was declared hostile and the A.P.P.

cross-examined her. In cross-examination, she admitted to the

fact that the report was written by the Police Patil. A perusal of

the said report/complaint Exh.24 shows that it is written in

Marathi and that it bears thumb impression said to be that of

the prosecutrix PW2. It has come on record that the

prosecutrix PW2 did not know Marathi or Hindi language and

that her evidence in the Court was also recorded in Bengali

language, which was translated by an interpreter. A perusal of

the said report/complaint Exh.24 shows that it is written in

Marathi. These circumstances create a serious doubt about the

fact as to whether the said report/complaint at Exh.24 was

submitted at the behest of the prosecutrix PW2. Apart from

this, prosecutrix PW2 has admitted that the relations between

the father of the appellant and the Police Patil were not good.

This clearly indicates a possibility of false or exaggerated

complaint being submitted against the appellant.

10. It has come on record that the clothes of the

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prosecutrix PW2 as well as the appellant were seized and they

were sent for chemical analysis. But, evidence of the panch

witness for seizure PW1 shows that he has turned hostile and

he has stated that the clothes were not seized in his presence.

Even otherwise, a perusal of the Chemical Analyser’s report

shows that there were no traces of semen or blood found on

the clothes of the prosecutrix PW2, although it was claimed by

the prosecution that there were stains of semen on the

petticoat and other clothes of the prosecutrix.

11. A perusal of the evidence of the Doctor PW4 shows

that the prosecutrix PW2 was examined at about 12.15 a.m.

on 15.08.1996, while the incident was said to have occurred on

14.08.1996 at about 4.30 p.m. The medical examination

report and the evidence of the Doctor PW4 does not indicate

that the prosecutrix PW2 had suffered any forcible sexual

intercourse. Although the Doctor PW4 in her report and in her

deposition before the Court stated that there was evidence of

sexual intercourse about 7 to 8 hours before examination of the

prosecutrix PW2, but this statement also goes against the

evidence of the prosecutrix PW2 because she specifically

stated in her evidence that the appellant had not been

successful in committing the act of sexual intercourse with her.

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12. The evidence on record also does not show that the

clothes of the prosecutrix were found to be sticking with mud

or earth, even when the specific claim made by her in her

report/complaint Exh.24 was that the appellant had pressed a

towel on her mouth and committed the act of sexual

intercourse on muddy earthen ground and that mud had stuck

on her person and clothes.

13. Therefore, the entire material on record does not

support the prosecution case. The genesis of the incident and

its description given at the first instance by the prosecutrix

PW2 was at complete variance with what she stated in the

Court. The material on record did not support her claim of the

appellant having dragged her and pushed her down on muddy

earthen ground for committing the act of sexual intercourse.

Therefore, the evidence of the prosecutrix PW2 does not inspire

confidence at all. Yet in the impugned judgment and order, the

trial Court has given a finding that the evidence of the

prosecutrix PW2 inspires confidence to the extent that the

appellant had pushed her on muddy earthen ground and

attempted to commit sexual intercourse. The said finding of

the trial Court is not supported by the evidence and material

on record. It is based on erroneous appreciation of the

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evidence of the prosecutrix PW2 read with the other evidence

of the prosecution witnesses. Hence the said finding of the trial

Court is not sustainable.

14. Consequently, the conviction and sentence imposed

by the trial Court by the impugned judgment and order is also

rendered unsustainable. Accordingly, this appeal is allowed.

The impugned judgment and order passed by the trial Court is

quashed and set aside and the appellant is acquitted of the

offence with which he was charged. The appellant was on bail

during the pendency of this appeal. Hence his bail bonds shall

stand cancelled.

(Manish Pitale, J. )

halwai/p.s.

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