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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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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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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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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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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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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(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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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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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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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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