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Ganesh S/O. Maroti Ladke (In Jail) vs The State Of Maharashtra Thr. … on 9 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEALNO. 401 of 2017

Ganesh S/o. Maroti Ladke,
C-4935 (Convicted Offender)
Aged about 22 years, occ. : Nil,
R/o. Watkhed,
Tahsil District Yavatmal ….APPELLANT

VERSUS

State of Maharashtra,
Through P.S.O. Yavatmal,
(Rural), Tahsil District Yavatmal …. RESPONDEN T
__
Shri. R.D. Hazare (appointed) counsel for petitioner.
Shri. V.P. Maldhure, Addl. Public Prosecutor for respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 9
MARCH, 2018
th

ORAL JUDGMENT :

Challenge is to the judgment and order dated 29.9.2016

rendered by the Additional Sessions Judge, Yavatmal in Sessions Trial

41 of 2014, by and under which the appellant – accused is convicted

for offence punishable under section 376(2)(j)(l)(n) of the Indian

Penal Code (“IPC” for short) and is sentenced to suffer rigorous

imprisonment for ten years and to payment of fine of Rs.4,000/-

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2 Heard Shri R.D. Hazare, the learned counsel for the

accused and Shri V.P. Maldhure, the learned Additional Public

Prosecutor for the respondent / State.

3 Prosecution case :

The prosecutrix is physically challenged. She is dumb and deaf.

She suffered a bout of omitting on 08.1.2014. Her mother inquired

and in response she conveyed by signs that she is pregnant. Her

mother asked her who is responsible for the pregnancy. The

prosecutrix took her mother and father to the house of accused Ganesh

and caught his hand indicating that he was responsible for pregnancy.

Mother of the prosecutrix (PW 1) lodged report at Police Station

Yavatmal (Rural) on 9.1.2014, pursuant to which offence under section

376(2)(h)(j)(l)(n) of IPC was registered against the accused.

Investigation ensued, the prosecutrix was medically examined at

Government Hospital, Yavatmal, accused was arrested and blood

sample of the accused and the prosecutrix was collected and seized.

The Investigating Officer requested the Education Officer, Yavatmal to

appoint a coordinator to record the statement of the deaf and dumb

prosecutrix, which statement was recorded by video recording. Upon

completion of the investigation, charge sheet under section 376 of the

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IPC was submitted in the Court of Judicial Magistrate First Class,

Yavatmal who committed the case to the Sessions Court.

The learned Sessions Judge framed charge (Exh. 6) under section

450, 376(j)(l)(n) of IPC. The accused abjured guilt and claimed to be

tried. The defence is of total denial and false implication.

4 Few significant facts may be noted before evidence is re-

appreciated. The Investigating Officer – PW 5 admitted that the

statement of the prosecutrix was not recorded. The prosecution did

produce on record a CD purportedly of the video recording of the

statement of the prosecutrix. However, due to technical snag, the CD

could not be played. The report of the system administrator of the

Court is that the CD is not audible. The learned Additional Public

Prosecutor strenuously urged that an evidence which is otherwise

credit-worthy can not be discarded merely because statement of the

witness under section 161 of the Code of Criminal Procedure is not

recorded. The learned APP may be justified in so submitting.

However, the failure of the prosecution to record the statement of the

prosecutrix necessitates that the evidence of the prosecutrix must be

tested with extra caution. Concededly, the disclosure that the accused

established sexual relationship with the prosecutrix, is made by the

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prosecutrix only after she conceived. The medical evidence is that the

prosecutrix was carrying fetus of 24 weeks when she was medically

examined by PW 6 Dr. Archana Rathod on 9.1.2014. The prosecutrix is

concededly deaf and dumb. However, her mental faculties do not

appear to be seriously impaired, as is revealed from the evidence on

record.

5 The prosecutrix is examined as PW 3 with the assistance of

interpreter Mr. Rakesh Bansod, Mead Master of Vasantrao Naik Deaf

and Dumb School, Arni. She states that the accused used to come to

her house and used to commit sexual intercourse with her. She

disclosed the incident to her mother when she suffered bout of

omitting. She disclosed the name of the accused to her parents, is the

deposition. In the cross-examination, she was asked why she kept

silent till she conceived and the response was that the accused assured

to marry her.

6 The evidence of the prosecutrix brings into sharp focus two

significant facts. The first is that although she is deaf and dumb, she is

not incapable of rational thinking, which is evident from the answer

which she gave about her silence till she conceived. The second fact is

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that she has not deposed that the sexual intercourse was without her

consent or that the accused subjected her to forcible sexual intercourse

or that the accused induced her to have sex by representing that the

accused will marry the prosecutrix. The learned Sessions Judge has

observed in paragraph 19 of the judgment impugned that since the

prosecutrix is suffering from physical disability, it was not possible for

her to accord consent and indeed the prosecutrix was incapable of

giving consent. I am afraid, it is difficult to agree with the said

observation. Physical disability is not necessarily suggestive of inability

to accord consent.

7 The conviction is substantially, if not entirely predicated

on the evidence of the prosecutrix and on the premise that since she is

deaf and dumb, she is not capable of according consent. The evidence

of PW 1 Sulochana, the mother of the prosecutrix, does not take the

case of the prosecution any further. The evidence is relevant to the

extend that it is established that the prosecutrix disclosed that the

accused is responsible for the pregnancy. Be it noted, that it is not

even the version of PW 1 that any other disclosure was made by the

prosecutrix indicating that the sex was not consensual or that the

consent was given in view of a promise or assurance given by the

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accused of marriage. The learned counsel Shri. R.D. Hazare invites my

attention to the following observations of the Apex Court in Uday Vs.

State of Karnataka, (2003)4 SCC 46 to buttress the submission that

consent given by the prosecutrix to sexual intercourse on a promise

that he would marry her on a later date, can not be said to be given

under a misconception of fact.

“21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her
on a later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact within the
meaning of the Code. We are inclined to agree with this
view, but we must add that there is no strait jacket formula
for determining whether consent given by the prosecutrix to
sexual intercourse is voluntary, or whether it is given under
a misconception of fact. In the ultimate analysis, the tests
laid down by the Courts provide at best guidance to the
judicial mind while considering a question of consent, but
the Court must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar facts
which may have a bearing on the question whether the
consent was voluntary, or was given under a misconception
of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent being one
of them”.

8 Be it noted, that it is neither the case of the prosecution

nor a finding recorded by the learned Sessions Judge that the consent

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is vitiated since the consent was given in view of promise to marry on a

later date. Au-contraire, the finding of the learned Sessions Judge is

that the prosecutrix was incapable of giving consent in view of her

physical disability, with which finding I am not in agreement.

9 The learned counsel then invites my attention to a

judgment of a learned Single Judge of this Court in Digambar s/o.

Pandurang Kadu Vs. The State of Maharashtra, 2012 ALL MR (Cri)

3955 in particular to the following observations:-

“23. One more important point is involved in this case.
The evidence of the prosecutrix and the Doctor shows that it
was possible for investigating officer to record statement of
prosecutrix under section 161 of the code of Criminal
Procedure. But he avoided to do so. When there was no
reason for not recording the statement of prosecutrix, to
create record of her version, some explanation was expected
from prosecution. Such explanation is not available. On this
point, for the appellant reliance was placed on a case
reported as 1984 (2) Crimes (X) page 698 Allahabad High
Court (Bhola and others Vs. State). In this case, Allahabad
High Court has discussed one Supreme Court case and one
case of Privy council and they are AIR 1954 S.C. Page 700
(Purushottam Jethanand Vs State of Kutch) and AIR 1947
Privy Council 67 (Kottaya Vs. Emperor). Allahabad High
Court has observed that it needs to be presumed that
prejudice is caused to the defence when the statement of
material witness is not recorded by Investigating Officer u/s
161 of the Code of Criminal Procedure.

24. Aforesaid point needs to be considered from different
angles. Section 173(2) (c) of Cr.P.C. shows that in the

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charge sheet the names of persons who appeared to be
acquainted in circumstances of the case need to be
mentioned. These persons can be examined as prosecution
witnesses. Section 173(5) (b) of Cr.P.C. shows that along
with report / charge sheet the Investigating Officer must
produce the statement recorded u/s 161 of Cr.P.C. of all
persons whom prosecution proposes to examine as its
witnesses. The procedure of inquiry laid in Section 202 of
Cr.P.C. in a case which is triable by Sessions Court also
shows that even in a private complaint Judicial Magistrate
(First Class) is required to take care and see that all the
witnesses of the complainant are examined on oath before
him during such inquiry. It can be said that these provisions
of Cr.P.C. are fair and proper provisions to have fair play in
Criminal justice system.

25. In the case reported as AIR 1974 Supreme Court
page 463 (Raghunandan Vs. State of U.P.) The Apex Court
has held that the bar of Section 162 of Cr.P.C. is applicable
to the parties but it does not impair special powers of Court
u/s 165 of Evidence Act. Thus the record of police
statements can help the Court to ascertain the truth and
also the reliability of the witnesses.

26. Aforesaid provisions show that the object of the
provisions is not only to give accused fullest information in
possession of the prosecution but also make record available
to Court for ascertaining truth. In Section 162 of the Code
of Criminal Procedure shows that on one hand protection is
given to the accused from the use of such record as evidence
and on the other hand right is given to the accused to use
this material during cross examination of prosecution
witnesses. By contradicting the witness in relation to
previous statement, the defence can show that the witness
was either tutored or witness is deposing falsely.

27. When statements under section 161 of Cr.P.C. are
recorded after inordinate delay and the delay is not
explained, the delay can create suspicion and lead to
inference that version of the witness was after thought or

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the witness was tutored. Thus, on one hand such record
helps the prosecution to preserve the versions of the
witnesses and on the other, if the record is not created
immediately, inference against the prosecution witnesses
can be drawn.

28. If the right given to the defence of the cross
examination is considered, it can be said that when there is
no such previous version available to the defence, the
defence gets hampered. In the case reported as AIR 1976
Supreme Court page 560 (Badri Vs. State), the Apex Court
has laid down that if the defence has no opportunity to
cross examine witness on material point with reference to
his earlier statement made to Police, his evidence can not be
used to corroborate the other witnesses. Thus, in one way
the absence of such record affects case of the prosecution
also.

Relying on the said judgment, the learned counsel Shri R.D.

Hazare submits that the evidence of the prosecutrix must be discarded.

I have already observed that the failure of the prosecution to record the

161 statement per se may not impel this Court to discard the testimony

which is otherwise confidence inspiring, but then, the testimony must

be scrutinized closely and with extra caution.

10 In the teeth of the evidence on record, it is extremely

unsafe and hazardous to record a finding that the prosecution has

established offence punishable under section 376(2)(j)(l)(n) of the

IPC. The prosecutrix does not claim that the sexual intercourse was

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against her will or without her consent. The evidence is that the

accused used to come to her house and used to have sexual intercourse

which would suggest that the sexual intercourse took place on

occasions more than one. The fact that it was only when the

prosecutrix conceived that she named the accused, is also significant.

In view of the finding recorded in paragraph supra, that physical

inability per se would not exclude ability to accord consent, the

judgment and order impugned deserves to be set aside.

11 The judgment and order dated 29.9.2016 rendered by the

Additional Sessions Judge, Yavatmal in Sessions Trial 41 of 2014, is set

aside.

12 The bail bond of the accused shall stand discharged.

13 Fine paid by the accused, if any, shall be refunded.

14 Accused shall be released from custody unless his custody is

required in any other case.

15 Fees of the appointed counsel are quantified at Rs.5,000/-.

16 The appeal is allowed.

JUDGE

RSB

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