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Judgments of Supreme Court of India and High Courts

Lokram @ Setu S/O Jaibahaddur … vs State Of Mah. Thr. P.S.O. … on 25 June, 2018

1 Apeal422-09.odt

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

Criminal Appeal No.422 of 2009

Lokram @ Setu s/o Jaibahaddur Thapa,
Aged about 55 years, Occ- Retired from
Military Service, R/o Surendragad,
Seminry Hills, Near Gandhi Putala,
IBM Road, Gittikhadan, Nagpur. .. APPELLANT

.. Versus ..

1. State of Maharashtra,
through Police Station Officer,
Gittikhadan Police Station,
Nagpur.

2. Smt. Vimal wd/o Arun Raibole,
Aged about 36 years,
R/o Gittikhadan, Nagpur. .. RESPONDENTS

Mr. S. Zia Quazi, Advocate for Appellant.
Mrs. Swati Kolhe, APP for Respondent No.1/State.

….

CORAM : MANISH PITALE, J.

DATED : JUNE 25, 2018.

ORAL JUDGMENT

1. The appellant in this case is aggrieved by judgment

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and order dated 17.08.2009 passed by the Sessions Court at

Nagpur (trial Court) in Sessions Trial No.196/2007, whereby he

has been convicted under Sections 419, 292, 506, 509 of the

Indian Penal Code (IPC) and sentenced to periods of rigorous

imprisonment of 5 years, 2 years and 5 years for the three

offences under Sections 419, 292 and 506 and further simple

imprisonment for 1 year for offence punishable under Section

509 of the IPC and to pay amounts of fine on all the four counts

as specified in the impugned judgment and order. The

appellant stood acquitted for offence under Section 376 of the

IPC.

2. As per the prosecution case, the appellant gave a

promise to the prosecutrix (PW6) to provide suitable job. It was

the case of the prosecution that the prosecutrix was

acquainted with the appellant and that on the basis of the

aforesaid promise, in September, 2006, the appellant took the

prosecutrix to a hotel where she was given a cold drink mixed

with intoxicant due to which she lost her consciousness. Upon

regaining consciousness, she found herself in nude condition,

due to which she rushed from the hotel. According to the

prosecution case, the appellant took photographs of the

prosecutrix in nude condition on the said date and by

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threatening her that he would make such photographs public,

he took her to the hotel twice in October, 2006 and had sexual

intercourse with her.

3. According to the prosecutrix, being fed up with the

repeated threats given by the appellant, she gathered courage

and submitted a complaint to the Crime Branch (Exh.30) on

05.12.2006. In this complaint/report, the prosecutrix claimed

that not only did the appellant have sexual intercourse with her

under the threat of making the photographs public, but he also

threatened to kill her. The said complaint was referred for

inquiry, which was undertaken by PW7 the investigating

officer, who then prepared a report on the same day i.e.

05.12.2006, which was marked as Exh.27, on the basis of which

first information report (FIR) was registered on the same day in

Police Station Gittikhadan against the appellant for having

committed offences under Sections 419, 376, 292, 506 and 509

of the IPC. Upon completion of investigation, charge sheet was

submitted against the appellant and he was charged for having

committed the said offences.

4. In support of its case, the prosecution examined

seven witnesses of whom PW1 (panch witness for recovery of

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photograph), PW2 (receptionist at the hotel), PW6 (prosecutrix)

and PW7 (investigating officer) are the material witnesses. The

appellant claimed that he had been falsely implicated.

5. On the basis of the evidence placed on record by the

prosecution, the trial Court came to the conclusion that no case

was made out against the appellant under Section 376 of the

IPC. But, the trial Court came to the conclusion that four

photographs on record, the evidence of the receptionist of the

hotel PW2, that of the prosecutrix PW6 and the investigating

officer PW7 was enough to show that the appellant had given

an impression to the prosecutrix that the photographs in

question were that of the prosecutrix and that he had indeed

threatened the prosecutrix that he would make the said

photographs public and that therefore, he was guilty of having

committed offences under Sections 419, 292, 506 and 509 of

the IPC. On this basis, the trial Court passed the impugned

judgment and order convicting and sentencing the appellant in

the aforesaid manner.

6. Mr. S. Zia Quazi, learned counsel appearing on behalf

of the appellant, submitted that the approach of the trial Court

was erroneous because it proceeded on the basis as if the

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appellant-accused was to prove his defence and that the

fundamental principle of criminal justice that it was for the

prosecution to prove its case beyond reasonable doubt, was

completely lost sight of by the trial Court while passing the

impugned judgment and order. It was pointed out that there

were material improvements made in the evidence of the

prosecutrix PW6. In fact, the crucial fact about the prosecutrix

having snatched the four photographs in question from the

appellant on 30.11.2006 did not find mention in the

report/complaint at Exh.30 dated 05.12.2006 submitted by the

prosecutrix before the Crime Branch. But, this fact surfaced in

the report (Exh.27) made by the investigating officer on the

same day. The investigating officer admitted in cross-

examination that she had not read over the contents of the

said report at Exh.27 to the prosecutrix at all. According to the

learned counsel this demonstrated material improvements

made by the prosecution in support of its case. It was also

pointed out that nothing incriminating was recovered from the

appellant during investigation and that there was no evidence

on record to prove the allegations made by the prosecutrix.

Having acquitted the appellant for offence punishable under

Section 376 of the IPC, according to the learned counsel,

conviction of the appellant for other offences for which he was

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charged, was wholly unwarranted. On this basis, it was

submitted that the appeal deserved to be allowed.

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

Additional Public Prosecutor appearing on behalf of the

respondent-State, submitted that the very fact that the

appellant was seen with the prosecutrix in one of the

photographs and the fact that the receptionist of the hotel PW2

did vouch for the fact that the appellant had visited the hotel

three times with the prosecutrix, demonstrated that the

conviction and sentence imposed by the trial Court was

justified. It is submitted that the appellant had conceded to the

fact that he was acquainted to the prosecutrix and that he

used to visit her house. This was a crucial factor taken into

account by the trial Court while passing the impugned

judgment and order. It was submitted that the prosecution had

indeed proved its case beyond reasonable doubt and the

appeal deserved to be dismissed.

8. Having heard counsel for the parties, it is evident

that for sustaining the conviction and sentence imposed on the

appellant, it is necessary that evidence of prosecution

witnesses PW1 (panch witness), PW2 (receptionist), PW6

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(prosecutrix) and PW7 (investigating officer) needs to be

examined in detail. A perusal of the evidence of PW1, panch

witness for recovery of photographs, shows that the said

photographs were produced by the prosecutrix in the presence

of the said witness and that they were seized by the

investigating officer when the seizure panchanama was

prepared. These photographs were seized on 06.12.2006. The

evidence of PW2 receptionist, shows that photo copies of the

register of the hotel in question were produced on record and

that the original register was not produced, although it was

stated that the original register was available. It was claimed

by this witness that the appellant had entered his name in his

own handwriting on three dates in the register pertaining to the

three visits made by the appellant with the prosecutrix. This

witness says in cross-examination that the Police had brought

the appellant to the hotel and that the extracts of the register

produced on record did bear signatures of the hotel owner. The

said witness identified the prosecutrix on the basis of her

photograph shown to her. She also stated that the appellant

wrote his name in the register as “Manoj Raibole”.

9. The evidence of PW6 prosecutrix shows that in her

examination-in-chief, she has indeed stood by the prosecution

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case although in the cross-examination it has come on record

that her statement about snatching photographs from the

hands of the appellant on 30.11.2006, was not recorded in the

complaint that she had submitted on 05.12.2006 to the Crime

Branch. She could not assign any reason as to why Police had

not recorded this crucial fact. In her cross-examination, it has

come on record that her claims about the appellant having

accosted her in the market and threatened her etc. were all

improvements.

10. The evidence of the investigating officer PW7 shows

that the name of the appellant was not mentioned in the

register of the hotel and that she did not feel it necessary to

call the receptionist PW2 for identification of the accused when

he was in M.C.R. The omissions in the evidence of prosecutrix

PW6 were put to the investigating officer as regards the details

of the threats given by the appellant for sexual intercourse,

which stood proved. In cross-examination, this witness was

specifically questioned about whether she had collected the

negatives of the photographs and whether she had called for

an opinion of any photographer about the said photographs,

upon which the answer was in the negative. She has also

admitted that she did not know whether such photographs

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could be developed by trick photography.

11. A perusal of the aforesaid evidence of the prosecution

witnesses, as also the documents on record shows that the

original register of the hotel in question was never placed on

record by the prosecution. Only the photo copies of the

relevant entries were brought on record, which was sought to

be proved by the evidence of the receptionist PW2. This

witness categorically stated that the appellant had entered his

name as one “Manoj Raibole”, in his own handwriting in the

register. But, no handwriting expert was examined to prove

that the entries in question were indeed in the handwriting of

the appellant. Apart from this, there was nothing produced on

record to show that it was the appellant who entered the name

“Manoj Raibole” or that the prosecutrix was under a wrong

impression that the appellant was a person named “Manoj

Raibole”. The photographs were admittedly recovered from the

custody of the prosecutrix. The evidence of the investigating

officer PW7 shows that she had made recovery of computer,

CPU, printer and CD writer from the appellant, but nothing

incriminating was found against the appellant from recovery of

such items. Thus, there was nothing brought on record to

connect the appellant with the four photographs placed on

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record. In one of the photographs, the appellant is indeed seen

with the prosecutrix but it cannot be said there was any

obscenity in the said photograph. Even otherwise, the

investigating officer PW7 failed to collect any negative of the

photographs apart from failing to examine any photographer or

bringing opinion of an expert to examine as to whether the

photographs in question were developed by trick photography.

The other three photographs on record show that the

prosecutrix could be said to be in a semi nude condition,

although her face is visible only in one such photograph.

12. In this backdrop, the crucial aspect of the present

case becomes the allegation of the prosecutrix PW6 that she

snatched four photographers from the appellant on 30.11.2006

and that there were some more photographs in the custody of

the appellant. This crucial fact was admittedly not stated by

the prosecutrix in her complaint/report dated 05.12.2006

submitted to the Crime Branch. Interestingly, this fact finds

mention in the report prepared by the investigating officer on

05.12.2006 itself, which was the basis for registration of the FIR

of the same date against the appellant. In cross-examination,

the investigating officer PW7 has given a crucial admission that

she did not read out the contents of the report prepared by her

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(Exh.27) to the prosecutrix, which means that this crucial fact

was not stated by the prosecutrix in the first instance when

she approached the authorities and that it was a material

improvement sought to be brought in by the prosecution.

Therefore, there is hardly any evidence to connect the

appellant with the four photographs placed on record. This

factor coupled with the fact that the genuineness of the

photographs was never examined by the investigating officer

PW7, rendered the prosecution case weak.

13. It is significant that the trial Court has disbelieved the

prosecution case insofar as offence under Section 376 of the

IPC is concerned. Yet, on the same material the trial Court has

convicted the appellant for offences under Sections 419, 292,

509 and 506 of the IPC. While rendering findings against the

appellant, the trial Court has proceeded on the basis that the

appellant failed to prove his defence. This was obviously an

erroneous approach because it was for the prosecution to have

proved its case in the first place. A perusal of the impugned

judgment and order shows that the trial Court has based its

findings on conjectures and surmises. For instance, in

paragraph 26, the trial Court has found that the accused could

not show that he was not acquainted to the prosecutrix or that

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he did not visit her house frequently or on the day of the

entries taken in the hotel register, he did not take the

prosecutrix with him. It is strange that the trial Court expected

the appellant to prove that on the dates mentioned in the hotel

register, he did not take the prosecutrix with him, while it was

for the prosecution to have proved the contrary by cogent

evidence.

14. The trial Court has erroneously rendered adverse

findings against the appellant only on the basis that in one of

the photographs he is seen with the prosecutrix. That singular

photograph, even if accepted, does not take the prosecution

case any further and it would not be enough to hold against the

appellant. In fact, in paragraph 29 the trial Court itself has

found that no conclusive opinion could be given about the

photographs in the absence of expert evidence or opinion, as

required under Section 45-A or 65-A and B of the Indian

Evidence Act. Yet, the trial Court has gone ahead to hold that it

can be said confidently that the appellant tried to impress upon

the mind of prosecutrix that those were her obscene

photographs. This approach of the trial Court defies logic. The

trial Court has overlooked the discrepancies in the prosecution

evidence by holding that they were minor in nature. This also

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demonstrates the error committed by the trial Court while

appreciating the evidence on record.

15. The trial Court has further erred in believing the

version of the prosecutrix only on the ground that she has

taken a bold step to approach the Police Station for lodging a

report and stating facts on oath while observing that the

defence was not strong enough to dislodge the case of the

prosecution. This is another instance of how the trial Court has

erroneously placed the burden on the appellant to prove his

defence, rather than the prosecution to prove its case. The

trial Court has further jumped to the conclusion that it was the

appellant who clicked the photographs of the prosecutrix in

nude condition in the month of October, 2006 because the

entries dated 30.09.2006, 17.10.2006 and 27.10.2006 in the

register of the hotel in question proved that the appellant had

indeed visited the hotel with the prosecutrix. As noted above,

there was hardly any evidence on record to show that the

aforesaid entries pertained to the appellant or that the

receptionist PW2 had indeed identified the appellant as the

very person who had visited the hotel with the prosecutrix.

Admittedly, there was no test identification parade conducted

in the present case and the receptionist PW2 herself conceded

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that the Police had brought the appellant to the hotel during

investigation after the prosecutrix had lodged the complaint

against him.

16. A perusal of the impugned judgment and order

demonstrates that the trial Court committed an error in

reaching findings against the appellant and that such findings

were not only based on improper appreciation of the evidence

and material on record, but they were reached on the basis of

conjectures and surmises. A perusal of Section 419 read with

416 of the IPC shows that the ingredients of the offence for

cheating by personation were clearly not existing in the present

case because it was not even the prosecution case that the

appellant was pretending to be some other person or that he

was substituting one person for another or that he was

representing that he or any other person was a person other

than he or such other person really was. The basic ingredient

of the offence was not even referred to by the trial Court while

convicting the appellant for the same. Even as regards

offences under Sections 292, 506 and 509 of the IPC, there was

hardly any evidence brought on record by the prosecution to

prove its case beyond reasonable doubt against the appellant.

Therefore, it is evident that the impugned judgment and order

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is not sustainable.

17. In view of the above, the instant appeal is allowed.

The impugned judgment and order is set aside and the

appellant is acquitted of the offences for which he was found

guilty by the trial Court. Consequently the bail bonds of the

appellant stand cancelled. The seized properties be returned to

the appellant.

(Manish Pitale, J. )

halwai/p.s.

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