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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APEAL 333 OF 2017
Dilip S/o. Harishchandra Kanfade,
Aged about 56 years, Occ. : Labour,
R/o. Patkakhedi, Ward No. 3,
Saoner, District Nagpur …APPELLANT
…V E R S U S…
The State of Maharashtra,
Through Police Station Officer,
Police Station Saoner,
District Nagpur …RESPONDENT
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Shri. N.A. Badar (appointed) counsel for appellant.
Shri N.B. Jawade, Addl. Public Prosecutor for respondents.
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CORAM: ROHIT B. DEO, J.
DATE: th
9 April, 2018.
ORAL JUDGMENT
The appellant is assailing the judgment and order
dated 3.7.2017 rendered by the Adhoc Additional Sessions Judge –
2, Nagpur in Sessions Trial 464 of 2015 by and under which the
appellant – accused is convicted for offence punishable under
section 376(2)(j) and (l) of the Indian Penal Code (“IPC” for
short) and is sentenced to suffer rigorous imprisonment for ten
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years and to payment of fine of Rs. 2,000/-.
2 Heard Shri N.A. Badar, the learned counsel for the
appellant and Shri N.B. Jawade, Additional Public Prosecutor for
the respondent.
3 The genesis of the prosecution lies in oral report
dated 27.8.2015 lodged by Ramdayal Warkhade (PW 2) at Saoner
Police Station alleging that the accused subjected his minor deaf
and dumb and mentally challenged sister to forcible sexual
intercourse on 25.8.2015. On the basis of the said oral report Exh.
18 and the printed First Information Report Exh. 19 offence
punishable under section 376(2)i)(j) and (l) and under section
506 part II of the IPC and under section 4 and 8 of the Protection
of Children from Sexual offences (“POCSO”) Act was registered
against the accused. Investigation ensued. The victim was
medically examined at Government Medical Collage, Nagpur.
Samples of nail clippings, pubic hair, swab and blood of the
prosecutrix and the accused were collected by the medical officer.
Spot panchanama was recorded, the clothes of the victim and the
accused were seized. The samples were send for chemical
analysis. Since the victim was deaf and dumb, she was sent to
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deaf and dumb School and Vaishnavi Choudhary (PW 6)
attempted to ascertain from the victim the details of the incident.
The prosecutrix was referred to Government Medical Collage,
Nagpur for determination of age. Statements of witnesses were
recorded and upon completion of the investigation, charge sheet
was submitted in the Court of Judicial Magistrate First Class,
Saoner, who committed the case to the Sessions Court.
4 The learned Sessions Judge framed charge (Exh. 3)
for offence punishable under section 376(2)(j) and (l) of the IPC.
The accused abjured guilt and claimed to be tried. The defence of
the accused is of total denial and false implication. The defence is
that the accused was assaulted and injured by Ramdayal
Warkhade (PW 2) and since the accused lodged report against PW
2 – Ramdayal, he is falsely implicated.
5 The victim is not examined by the prosecution. Dr.
Prashant Tiple (PW 5), professor in department of Psychiatric,
Government Medical College and Hospital, Nagpur who examined
the victim on 28.10.2015 has deposed that he noted the history
from the mother of the victim who stated that the victim has
problem in persuing day to day activity and her development
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milestones are delayed. PW 5 states in the evidence that the
victim did not cooperate in answering the questions put to her, she
was staring towards one point without any change of expressions
in response to the questions and her comprehension and judgment
was impaired. PW 5 has deposed that after going through the
history and the examination, he opined that the victim is mentally
retarded and incapable of taking major decisions. PW 5 has
proved report Exh. 24.
PW 6 Vaishnavi Choudhary, who was working at the School
of dumb and deaf children, Patansavangi has deposed that the
victim was brought before her by the police and her intellectual
level was very poor. The victim did not converse with PW 6, is the
deposition. PW 6 has proved report Exh. 26. In the cross-
examination, PW 6 states that she is not in a position to state that
the victim was mentally retarded.
At this stage, it would be apposite to consider the contents
of the report submitted by PW 6 (Exh. 26). The report recites that
PW 6 made enquiries with the victim and found that she is
mentally retarded to certain extent. One particular sentence in the
report is slightly confusing although it clear is that the report
records that the victim is not in a position to speak. The sentence,
the implication of which is not very clear reads thus:-
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“fryk brjkps cksyus gkoHkko b’kkjk letwu o rh cksy.;kl vl{ke
vkgs”
However, the report goes on to record that the victim
disclosed her name and when she was asked about the incident,
she stated that her brother Ramdayal (PW 2) saw her and the
accused near the nalla and beat both the victim and the accused.
6 The victim is medically examined by PW 1 Dr. Yadav
Morey on 27.8.2015. He has proved the medical examination
report Exh. 45. PW 11 has deposed that the history was narrated
by the mother of the victim. No injury was detected on the genital
region. The medical examination report Exh. 45 records that the
victim was menstruating at the time of the incident and that there
was no injury either on genitalia or the other parts of the body.
The learned counsel for the accused Shri N.A. Badar invites my
attention to the evidence of PW 1 Subhash Choudhary, the witness
to the spot panchanama who admits that the spot of incident is
not plain surface. The submission is that the absence of injury
would render suspect the prosecution case that the victim was
subjected to forcible sexual intercourse.
7 The learned Additional Public Prosecutor Shri N.B.
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Jawade submits that the brother of the victim (PW 2) is an eye
witness to the sexual assault and the conviction can rest on the
testimony of the said eye witness. The burning question is
whether the testimony of the brother of the victim is implicitly
reliable and of such a sterling quality that conviction can rest on
the basis of the said testimony notwithstanding that the victim is
not or could not be examined and notwithstanding that the
medical evidence on record is inconclusive and is of no
corroborative value. Concededly, there is no forensic evidence
connecting the accused with the alleged crime.
8 The defence is not disputing that on the day of the
incident, there was an altercation between the accused and PW 2
Ramdayal. It is also admitted by PW 2 Ramdayal that prior to
lodging of report against accused, on the day of the incident, the
accused lodged report of assault against PW 2 Ramdayal. PW 8
Sonali Meshram who conducted the initial investigation disclaims
knowledge of the report lodged by the accused against PW 2
Ramdayal. However, PW 3 – Mamta, the elder sister of the victim
admits in the cross examination that she learnt that the accused
went to lodge report against her brother and that after knowing
the said fact, we (she and her brother PW 2 – Ramdayal)
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proceeded to lodge report against the accused. The incident
occurred on 25.8.2015 and PW 2 Ramdayal lodged the report on
27.8.2015. The evidence of PW 2 Ramdayal must necessarily be
closely scrutinized and with extreme caution.
9 According to PW 2 – Ramdayal on the day of the
incident, the victim went to graze she-goats at 11.00 a.m. PW 2
went near the nalla at 4.00 p.m. to answer nature’s call and saw
that by a lonely place the victim was in a naked condition and the
accused was committing sexual intercourse with her. PW 2 asked
the accused to get up and then there was verbal altercation
between PW 2 and the accused. The accused threatened to kill
PW 2 who in response pushed the accused and returned to his
house with the victim. PW 2 states that he narrated the incident
to his parents and on the next day, he narrated the incident to
Subhash Choudhary, Vilas Waghdhare, Satish lakhe and Rahul
Bambal and lodged report on 27.8.2015. It is elicited that
Subhash Choudhary and Vilas Waghdhare are neighbours and
have cordial relations with PW 2. Subhash Choudhary (PW 1)
does state that on 26.8.2015, PW 2 narrated to him the incident.
PW 1 is a witness to the spot panchanama, the seizure
panchanama of the clothes of the accused, the seizure of the
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samples of public hair, blood and semen of the accused and the
seizure of the clothes of victim. PW 4 Satish lakhe has also
deposed that on 26.8.2015 PW 2 disclosed that the accused was
found in naked condition with his sister. Having closely
scrutinized the evidence of PW 1 Subhash Choudhary, PW 2
Ramdayal and PW 4 Satish Lakhe, in my opinion, even if the
evidence is accepted at face value, there is no explanation as to
why PW 2 did not lodge the report at least on the next day of the
incident i.e. on 26.8.2015. The fact that the accused lodged the
report of the assault on the day of the incident and PW 2 lodged
the report two days after the incident renders the prosecution case
doubtful particularly since the evidence of PW 6 Vaishnavi
Choudhary reveals that she was indeed in a position to elicit some
information from the victim who according to PW 6, disclosed that
she and the accused were seen near the nalla and beaten up by
her brother PW 2. In view of the report Exh. 26 submitted by PW
6 Vaishnavi Choudhary, it is difficult to record a finding with any
degree of certainty that the victim was incompetent to give
evidence. The prosecution ought to have produced her in the
Court and the learned Special Judge then could have interacted
with the victim and taken a decision on her competence to depose.
In view of the attending circumstances of the case, the conscious
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of this Court is satisfied that failure of the prosecution to produce
the victim in the Court has caused prejudice to the accused. The
evidence of PW 2 that he saw the accused committing sexual
intercourse with the victim is not confidence inspiring for reasons
more than one. The accused lodged report against PW 2 alleging
assault, on the day of the incident. The medical evidence does not
corroborate the version of PW 2 that the victim was subjected
sexual intercourse near the nalla, which spot according to the
admission given by PW 1 is not a plain surface. The forensic
evidence also does not take the case of the prosecution any
further.
10 It is trite law that suspicion can not be a substitute for
proof. The wild gulf between “may have committed” and “has
committed” or “must have committed” must be necessarily be
bridged by the prosecution by cogent and reliable evidence. I am
not in a position to concur with the finding recorded by the
learned Special Judge that the prosecution has proved the offence
beyond reasonable doubt.
11 In the light of the discussion supra, the judgment and order
impugned is set aside and the accused is acquitted of offence
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punishable under section 376(2)(j) and (l) of IPC.
12 The accused is in jail. He be released from custody
forthwith unless required in any other case.
13 Fees of the learned appointed counsel are quantified at
Rs. 5,000/-.
14 Appeal is allowed.
JUDGE
RS Belkhede, PA
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