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Kisan S/O Baburao Pande (In Jail) vs The State Of Maharashtra Through … on 5 May, 2018

1 Appeal 323of2013….

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

CRIMINAL APPEAL 323 OF 2013
AND
CRIMINAL APPEAL 341 OF 2013
AND
CRIMINAL APPEAL 361 OF 2013

CRIMINAL APPEAL 323 OF 2013

Raju s/o. Vijay Rathod,
Aged about 39 years,
r/o. Shendurjana (Adhao)
Tahsil Manora, District Washim …APPELLANT

…V E R S U S…

State of Maharashtra,
through Police Station Officer,
Police Station Asegaon,
Tahsil Manora, District Washim …RESPONDENT

CRIMINAL APPEAL 341 OF 2013

Suresh Udaysingh Chavan,
Aged about 44 years,
r/o. Palodi, Tahsil Manora, District Washim …APPELLANT

…V E R S U S…

State of Maharashtra,
through Police Station Officer,
Police Station Asegaon,
Tahsil Manora, District Washim …RESPONDENT

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2 Appeal 323of2013….

CRIMINAL APPEAL 361 OF 2013

Kisan s/o. Baburao Pande,
Aged about 40 years,
r/o,. Mendra,
Tahsil Manora, District Washim …APPELLANT

…V E R S U S…

State of Maharashtra,
through Police Station Officer,
Police Station Asegaon,
Tahsil Manora, District Washim …RESPONDENT

——————————————————————————————
Shri S.D.Chande, counsel for appellant in(Cr.Appeal 341 of 2013)
Shri Akshay Naik, counsel for appellant in (Cr. Appeal 323 of 2013
and 361 of 2013)
N.B. Jawade, Additional Public Prosecutor for respondent.
—————————————————————————————–
CORAM: ROHIT B. DEO, J.
DATE: th
5 May, 2018.

ORAL JUDGMENT

The appellants – accused are assailing the judgment

and order dated 30.5.2013 rendered by the Additional Sessions

Judge, Washim in Session Trial 92 of 2009, by and under which

the accused are convicted for offence punishable under section

354 read with section 34 of the Indian Penal Code (“IPC” for

short) and are sentenced to suffer rigorous imprisonment for one

year and to payment of fine of Rs.500/- each and are further

convicted for offence punishable under section 307 of th IPC and

are sentenced to suffer rigorous imprisonment for five years and to

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3 Appeal 323of2013….

payment of fine of Rs. 1000/- each. The accused are acquitted of

offence punishable under section 3(1)(xi) and 3(2)(v) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act (“Atrocities Act” for short). Since the Criminal Appeals are

assailing same judgment and order, they are heard together and

decided by this common judgment.

2 Heard Shri S.D.Chande, learned counsel for appellant

in Criminal Appeal 341 of 2013, Shri Akshay Naik, learned counsel

for the appellants in Criminal Appeal 323 of 2013 and Criminal

Appeal 361 of 2013 and Shri N.B. Jawade, the learned Additional

Public Prosecutor for the respondent / State.

3 The prosecution case:-

The prosecutrix, who is resident of village Watfal was

employed at the hospital of Dr. Kholgale at Digras as a nurse. On

27.6.1999, she boarded a bus at Digras and disembarked at village

Dhanora at 5.00 p.m.. She was waiting for another bus to proceed

from Dhanora to Watfal. However, since the bus did not arrive,

the prosecutrix opted to travel in a jeep driven by accused 1

Suresh Chavan. Accused 2 Kisan Pande and accused 3 Raju

Rathod and others were co-passengers. The passengers travelling

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4 Appeal 323of2013….

in the jeep, other than Kisan Pande and Raju Rathod alighted at

village Hivra (Shegi). Suresh Chavan stopped the jeep at some

distance from village Shegi on a road. Accused 1 Suresh Chavan

came in the rear side of the jeep. Accused Suresh and Raju

molested the prosecutrix by pressing her breast. When the

prosecutrix resisted, she was assaulted by fist. The prosecutrix

was warned not to lodge report and was then thrown out from the

running jeep near village Ingalwadi. The prosecutrix become

unconscious. PW 7 – Police Station Officer – Shri Avale received

telephonic message at 8.30 p.m. that one lady was thrown out

from the jeep near village Ingalwadi. PW 7 rushed to the spot and

saw the prosecutrix lying on the road in an injured condition. PW

7 took her to Rural Hospital, Mangrulpir where the prosecutrix

was examined and then referred to Government Hospital, Akola

for further treatment. The statement of the prosecutrix was

recorded at the Government Hospital, Akola by PW 6 on

28.6.2009. On the basis of the said statement, which is marked

Exh. 47 presumably since the same is treated as First Information

Report, offence punishable under section 307 and 354 read with

section 34 of the IPC came to be registered. Investigation ensued

and accused Suresh Chavan and Kisan Pande were arrested on

14.7.2009 and 26.8.2009 respectively. Accused Raju Rathod was

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5 Appeal 323of2013….

shown absconding and chargesheet was filed against accused 1

Suresh Chavan and accused 2 Kisan Pande. Accused 3 Raju

Rathod was arrested on 18.1.2010 and supplementary chargesheet

was submitted in the Court of Judicial Magistrate First Class,

Mangrulpir. The case was committed to the Sessions Court. The

learned Sessions Judge framed charge (Exh. 31) for offence

punishable under section 307, 354 read with section 34 of IPC and

punishable under section 3(1)(xi) and 3(2)(v) of the Atrocities

Act. The accused pleaded not guilty and claimed to be tried. The

defence is of total denial and false implication.

4 The edifice of the prosecution case is constructed on

the evidence of the prosecutrix and corroboration is sought from

the evidence of her mother – PW 4 Bajabai Hajare who claims that

on the next day of the incident when the prosecutrix regained

consciousness, she disclosed that the accused had thrown her out

from the running jeep after outraging her modesty, and from the

medical evidence.

5 The learned counsel for accused 1 Shri S.D. Chande

and the learned counsel for accused 2 and 3 Shri Akshay Naik

submitted in unison that the evidence of the prosecutrix is marred

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6 Appeal 323of2013….

by contradictions and embellishments. Shri Akshay Naik further

submits that in so far as accused 2 Kisan Pande is concerned, there

is absolutely no whisper in the evidence of the prosecutrix of any

complicity of the said accused. In so far as accused – 3 Raju

Rathod is concerned, the submission of the learned counsel Shri

Akshay Naik that it is obvious from the evidence that the

prosecutrix has named the said accused at the instance of

Shalikram Rathod and Sanjay Rathod and the defence of false

implication is more than probabilized on the touchstone of

preponderance of probabilities. Per contra, Shri N.B. Jawade, the

learned Additional Public Prosecutor supports the judgment and

order impugned.

6 PW 1 – Bharas Rathod who was examined to prove

spot panchanama Exh. 34 and seizure panchanama Exh. 39 did

not support the prosecution. Nothing is elicited in his cross-

examination by the learned APP to assist the prosecution.

7 PW 2 – Ashok Rathod, who is examined to prove the

panchanama Exh. 41 evidencing the seizure of the jeep also did

not support the prosecution.

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7 Appeal 323of2013….

8 PW 3 – Mala Hajare is the prosecutrix, whose

evidence shall be dealt with at a later stage in the judgment.

9 PW 4 – Bajabai Hajare is the mother of the prosecutrix

who claims that on the next day of the incident, while undergoing

treatment at the Government Hospital, Akola, the prosecutrix

disclosed that the accused had outraged her modesty and threw

her out from the jeep. Her statement is recorded belatedly on

9.11.2009 and it is elicited in the cross-examination that PW 4

Bajabai did not disclose the incident to anybody till 9.11.2009.

10 PW 5 – Dnyaneshwar Rathod has deposed that he

heard a commotion and people were saying “girl fell, girl fell”. He

was declared hostile and cross examined by the learned Additional

Public Prosecutor, to no avail. In the cross-examination on behalf

of accused 1 PW 5 Dnyaneshwar states that one unknown vehicle

gave dash to the girl and fled away from the spot.

11 PW 6 – Moharsingh Jadhao is the Head Constable

who recorded the statement of the injured prosecutrix and

admitted her in General Hospital, Akola. He has proved the

statement of the prosecutrix, which is treated as First Information

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8 Appeal 323of2013….

Report and marked Exh. 47. PW 7 has deposed as regards the

investigation conducted by him till the investigation was taken

over by Police Station Officer, Asegaon. It is elicited in the cross-

examination that if a person proceeding from Digras to Watfal, he

has to come to Shegi Fata and then proceed towards Shegi, Hivra,

Ingalwadi and Watfal and that it is not necessary to go to village

Dhanora. The endeavor of the cross-examiner is to demonstrate

that the version of the prosecutrix that from Digras she went to

Dhanora where she boarded the jeep, is doubtful. It is elicited in

the cross-examination that in Exh. 47 he applied whitener and

thereafter the name of the accused Suresh Chavan was written.

PW 6 Moharsingh has proved the omissions vis-a-vis the statement

of the prosecutrix Exh. 47.

12 PW 7 – Dattatray Awhale is the Police Officer who

received the message that one lady was thrown from running jeep

at village Ingalwadi and who rushed to the spot. PW 7 has

deposed as regards the investigation conducted by him till the

investigation was taken over by the Sub-Divisional Police Officer,

Mangrulpir since the offence under the Atrocities Act was

registered against the accused. It is elicited in the cross-

examination, that PW 7 could not ascertain the names of the

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9 Appeal 323of2013….

passengers who were traveling in the jeep. PW 7 claims to have

recorded the supplementary statement of the prosecutrix on

8.7.2009. The omissions in the evidence of the prosecutrix vis-a-

vis the said supplementary statement recorded on 8.7.2009 are

duly proved in the cross-examination.

13 PW 8 – Narayan Pawar took over the investigation

since the offence under the Atrocities Act was registered. PW 8

claims to have recorded the supplementary statements of the

prosecutrix on 9.11.2009 and 14.11.2009. It is extracted in the

cross-examination that the prosecutrix did not disclose the

complete name of accused Raju Rathod in the report or the

statement.

14 PW 9 Dr. Dilip Mehta who was then attached to Rural

Hospital, Mangrulpir examined the prosecutrix on 27.6.2009 and

noticed the following injuries:

“(i) Contusion with abrasion on nose of size 3 x 2 cm,
the injury may be grievous and caused by hard and blunt
object, age of the injury was fresh.

(ii) contusion on right maxillary of 3 x 3 cm, nature
of the injury may be grievous, it was fresh injury,
caused by hard and blunt object.

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10 Appeal 323of2013….

(iii) Contusion with abrasion on upper lip of 2 x 3 cm,

fresh, simple one, it was fresh, caused by hard and blunt
object.

(iv) Contusion with abrasion on right elbow joint of 2
x 2 cm nature of the injury simple, it was fresh, caused
by hard and blunt object.”

PW 9 admits that the injuries mentioned in medical

certificate Exh. 86 are possible if a person falls on the road. It is

elicited that thumb impression of unconscious patient can not be

obtained on certificate. The attempt of the cross-examiner was to

create a doubt about the version of the prosecutrix that she

became unconscious and regained consciousness only at the

Government Hospital, Akola.

15 The most important witness from the perspective of

the prosecution is PW 3, the prosecutrix. Having given anxious

consideration to the evidence of PW 3, I am inclined to accept the

submission of the learned counsels Shri Akshay Naik and Shri S.D.

Chande that her evidence is not at all confidence inspiring. The

evidence is too shaky and fragile to be the basis of conviction.

Contradictions and embellishments in the evidence render the

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11 Appeal 323of2013….

evidence untrustworthy. The shoddy investigation does not take

the case of the prosecution any further. No attempt is made by the

Investigating Agency to ascertain whether the prosecutrix was in

Dhanora at the relevant time, whether she as a fact boarded the

jeep driven by accused Suresh Chavan, whether the version of the

prosecutrix is corroborated by the passengers in the jeep or any

other person who surely would have witnessed the incident, were

the prosecutrix thrown out from the running jeep. In so far as

accused 2 Kisan Pande is concerned, there is not even a whisper in

the substantive evidence of the prosecutrix. Strangely, Exh 47

which is the First Information Report is treated as substantive

evidence to convict accused 2 Kisan Pande. The learned Sessions

Judge committed a horrendous error in treating the First

Information Report as substantive evidence.

16 In so far as accused Suresh Chavan and Raju Rathod

are concerned, the evidence of the prosecutrix is not at all

confidence inspiring. She claims that accused Suresh Chavan was

driving the jeep and he stopped the jeep ahead of village Shegi on

the road. The version of the prosecutrix is that accused Suresh

Chavan came in the rear portion of the jeep and he and accused

Raju Rathod pressed her breast. Her version is that when she

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12 Appeal 323of2013….

resisted, accused assaulted her and then threw her out from the

running jeep near village Ingalwadi. It is obvious, that if accused

Suresh Chavan was driving the jeep, he could not have thrown the

prosecutrix out of running jeep. The statement in the substantive

evidence that accused Suresh Chavan was driving the jeep is an

omission vis-a-vis the First Information Report dated 28.6.2009

and the supplementary statement dated 8.7.2009. According to

the witness, she mentioned the said fact in the second

supplementary statement dated 9.8.2009. However, it has come

in her evidence that her statement was recorded only on two

occasions, when she was admitted in hospital and then two days

after discharge. The statement in the substantive evidence that

accused Suresh Chavan pressed her breast is again an omission.

The statement in the substantive evidence that accused assaulted

the prosecutrix by means of fist, is again an omission vis-a-vis the

two statements dated 28.6.2009 and 8.7.2009. The statement that

accused Raju Chavan pressed the breast of the prosecutrix is again

an omission. According to the prosecutrix, she came to know the

name of accused 3 Raju Rathod from Shalikram Rathod and

Sanjay Rathod. She admits that the full names of the accused

were not disclosed by her to the police. On every material aspect

and facet of the alleged incident, the evidence of the prosecutrix is

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13 Appeal 323of2013….

marred by contradictions and embellishments.

On a holistic reconsideration of the evidence on record, I am

not inclined to concur with the learned Sessions Judge that the

prosecution has proved the offence beyond reasonable doubt.

17 It must be recorded that accused 2 Kisan Pande and

the prosecutrix moved a joint application for compounding of the

offence. The prosecutrix who was present in the Court and to

whom I put certain questions stated that she named accused 2

Kisan Pande due to misunderstanding. Be that as it may, since the

offence is not compoundable, I have not considered the said

application.

18 The judgment and order impugned is unsustainable and is

set aside. The accused are acquitted for the offence punishable

under sections 354 and 307 read with section 34 of IPC.

19 Bail bonds of the accused are discharged, fine paid by the

accused, if any, be refunded.

   20       The appeals are allowed.   

JUDGE

RS Belkhede, PA

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