sr.205.apeal.756.2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.756 OF 2013
Mahesh Ratan Shinde … Appellant
R/at Behind Vajreshwari Temple,
House of Vasant Gaikwad,
Taluka – Bhivandi, Dist. Thane,
Original R/at P Choube,
Taluka – Jakadevi,
District Ratnagiri.
At present at Ratnagiri Central Prison
V/s.
The State of Maharashtra
(At the instance of Virar Police Station) … Respondent
Ms.Megha Bajoria, appointed Advocate for the appellant.
Mr. Prashant Jadhav, APP for the respondent / State.
CORAM : A.M.BADAR J.
DATED : 17th APRIL 2018.
ORAL JUDGMENT :
1. The appellant/accused by this appeal has challenged the
judgment and order dated 27th February, 2013 passed by the learned
Additional Sessions Judge, Vasai in Sessions Case No.73 of 2011
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thereby convicting the appellant/accused of offence punishable
under Sections 376 and 323 of the Indian Penal Code. For the
offence punishable under Section 376 of the Indian Penal Code, the
appellant/accused is sentenced to suffer rigorous imprisonment for
seven years apart from payment of fine Rs.7,000/- and default
sentence of simple imprisonment for six months. For the offence
punishable under Section 323 of the Indian Penal Code, he has been
sentenced to suffer rigorous imprisonment for three years, apart
from payment of fine Rs.1,000/- and default sentence of simple
imprisonment for one month. The learned trial Court directed all
substantive sentences shall run concurrently.
2. Facts
leading to the prosecution of the appellant/accused can
be summarized thus;
a. The prosecutrix PW4, at the relevant time, was aged about 29
years. She was unmarried. She used to reside with the family
of her elder sister PW1 Baby at Village Usgaon in Vasai Taluka
of Thane District. Her mother used to stay with them The
prosecutrix was suffering from epilepsy.
b. The incident in question took place on 6 th March, 2011. On
that day at about 6 p.m., the prosecutrix/PW4 had been to
area known as Wadi in the vicinity of her house for answering
nature’s call. At that time, the appellant/accused allegedly
came to her and after denuding her, committed rape on her.
Because of threats given by him, the prosecutrix/PW4 could
not raise any hue and cry. The prosecutrix PW4 became
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unconscious because of this incident. The incident came to the
knowledge of inmates of house of the prosecutrix PW4. They
took her to the Primary Health Centre, Parol for medical
treatment.
c. At Primary Health Centre Parol, report of the incident in
question was lodged by PW4 with PW5 B.S.Pardesi, Police Sub
Inspector. Accordingly, Crime No.76 of 2011 for offence under
Sections 354, 323, 506 came to be registered with Police
Station Virar, Thane. On the next date, statement of the
prosecutrix PW4 came to be recorded and Section 376 of IPC
was added to the case diary of the crime.
d. The prosecutrix PW4 was referred to the Rural Hospital Virar
where she came to be examined by PW7 Dr. Shrutika
Ganpatrao Rathod, medical officer.
e. During the course of investigation, the spot of the incident
came to be inspected in presence of PW3 Mukesh Jadhav,
panch witness by investigating officer PW5 B.S.Pardesi, PSI.
The spot panchanama came to be recorded and the articles
found lying at the spot of the incident came to be seized.
f. According to the prosecution, the villagers apprehended the
appellant/accused and brought him to the police station where
PW5 B.S.Pardesi, PSI arrested him. His clothes, came to be
seized in presence of PW3 Mukesh Jadhav, panch witness vide
seizure panchaname Exh.31 on 7 th March, 2011 itself. Seized
articles were sent for medical analysis. On completion of
routine investigation, the appellant/accused came to be
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chargesheeted.
g. The learned trial court framed the charge for offence
punishable under Sections 376, 323 and 506 of the IPC against
the appellant/accused. He pleaded not guilt and claimed trial.
h. In order to bring home the guilt to the appellant/accused, the
prosecution has examined in all seven witnesses. Elder sister
of the prosecutrix namely Baby is examined as PW1. Cousin of
the prosecutrix namely Mangala Londhe is examined as PW2.
Panch Witness Mukesh Jadhav is examined as PW3. The spot-
cum-seizure panchanama is at Exh.30 where as seizure
panchanama seizing clothes of the appellant/accused is at
Exh.31. The prosecutrix is examined as PW4 and the First
Information Report lodged by her while taking the treatment
at the Primary Health Centre is at Exh.33. Investigating
Officer B.S.Pardesi is examined as PW5. Dr. Suresh Janu
Chavan, medical officer with Primary Health Centre is
examined as PW6. Exh.49 is the injury certificate issued by
him. Dr.Shrutika Ganpatrao Rathod, medical officer working
with Rural hospital, Virar is examined as PW7. Exh.41 is the
medico-legal certificate issued by her.
i. The defence of the appellant/accused was of total denial.
According to him, after completing his work he was waiting at
Usgaon Naka for boarding the bus. At that time, someone hit
on his head and he became unconscious. On suspicion, he was
falsely implicated in the crime in question. The
appellant/accused, however, did not enter in defence.
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j. After hearing the parties, by the impugned judgment and
order, the learned trial Court was pleased to convict the
appellant/accused of the offences punishable under Section
376, 323 of the IPC. He was, accordingly, sentenced as
indicated in the opening paragraph of this judgment.
3. I heard Ms. Bajoria, the learned Advocate appointed to
represent the appellant/accused at the costs of the State. She argued
that evidence adduced by the prosecution is not sufficient to
establish identity of the appellant/accused as perpetrator of the
crime in question. She further argued that evidence of the
prosecution is suffering from discrepancies and evidence about
identification of the appellant/accused is coming on record by way of
omissions. As the omissions are in respect of material part of the
prosecution case, those needs to be ignored. The learned Advocate
further raised several points such as who had wrapped saree when
the prosecutrix was lying in nude condition at the spot, probability of
happening of such incident at the place which was located near the
busy road having traffic of vehicle as well as people etc. However,
those aspect needs to be ignored as in such case, evidence is required
to be evaluated by keeping in mind broader possibility of the
prosecution case and, therefore, those arguments are not reproduced
in detail.
4. The learned APP supported the impugned judgment and order
of conviction by contending that the appellant/accused was
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apprehended at the spot by the villagers and then he was taken to
the police station. The medical evidence is supporting the case of the
prosecution.
5. I have considered the rival submissions and also perused the
record and proceedings including copies of the deposition of the
prosecution witnesses as well as documentary evidence adduced on
record by the prosecution.
6. As the case in the hand is in respect of the sexual offence,
undoubtedly, evidence led by the prosecution will have to be
appreciated by keeping in mind broader probabilities of the
prosecution case. It is well settled that victim of such offence is not
accomplice and therefore if her evidence is found truthful the same
can be accepted without corroboration. The very nature of such
offence makes the availability of direct corroborating evidence
difficult. Therefore, in such offence, if ultimately the evidence of the
prosecutrix is found to be truthful then conviction can be based on
such solitary evidence. Let us, therefore, examine what the
prosecutrix PW4 is stating about incidence.
7. It is in the evidence of the prosecutrix PW4 that at about 6.00
pm on 6th March, 2011, she had been to answer nature’s calls at
Wadi. Then one person came there, held her neck, torned her clothes
and committed rape on her. The prosecutrix further deposed that
then she cried for help and when her sister came there the rapist ran
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away from the spot. The prosecutrix further deposed that then her
sister wrapped her saree around her body and took her to her house.
She was then taken to the Rural Hospital Parol where she was
admitted and examined. The prosecutrix deposed that then her FIR
at Exh.33 came to be recorded at that hospital. She claimed to have
shown the spot of the incident to the police subsequently.
8. Though, the prosecutrix PW4 has stated the incident as well as
the post evidents happening, her examination shows that at the time
of commission of rape on her she became unconscious and she
regained conscious later. Her evidence shows that the
appellant/accused was unknown to her and she came to know that
the villagers apprehended him. She was never called by the police to
identify the accused.
9. Overall scrutiny of evidence of the prosecution shows that
after the incident, the appellant/accused was not shown to her at any
time in order to ascertain whether he was the same person who had
committed rape on her on the day of the incident. The evidence of
the investigating officer PW5 B.S.Pardesi, PSI confirmes the fact that
the appellant/accused was stranger to the prosecutrix PW4 and the
appellant/accused was never subjected to the test identification
parade. In such a situation, it was incumbent on the part of the
prosecution, at least to get identity of the appellant/accused as
perpetrator of the crime in question, fixed by showing him to the
prosecutrix while she was in the dock. However, for the reasons best
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known to the prosecution, no efforts were taken to point out the
appellant/accused to the prosecutrix at the time of recording of her
statement in order to ascertain whether the appellant/accused was
the perpetrator of the crime in question. This casts a serious shadow
of doubt on the case of the prosecution and as the appellant/accused
was not got identified by the prosecutrix while she was in the witness
box, the benefit of doubt naturally goes to the appellant/accused.
However, keeping this aspect aside, let us examine whether through
evidence of other witnesses, the prosecution is successful in
establishing identity of the appellant/accused as the person who
committed rape on the prosecutrix on 6 th March, 2011.
10. The prosecution attempted to establish the identity of the
appellant/accused through evidence of PW1 Baby who is elder sister
of the prosecutrix/PW4. As per version of this witness, as the
prosecutrix PW4 left the house at 6.00 pm, but did not return for a
considerable time, she went to the place where the prosecutrix/PW4
used to go for answering nature’s calls. PW1 Baby deposed that the
appellant/accused was present there but he ran away after seeing
her. PW1 Baby in her statement before the Court has stated that she
found her sister i.e. prosecutrix lying in unconscious condition with
no clothes on her person. Her clothes were lying on the spot. She
took prosecutrix to her house, and with the help of PW2 Mangala
Londhe and her neighbours the prosecutrix was taken to the hospital.
As per version of PW1 Baby, the prosecutrix regained senses and
thereafter she told that she has been raped. The cross examination
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of PW1 Baby makes it clear that the prosecutrix regained senses at
the Primary Health Centre of Parol.
11. Evidence of PW1 Baby who immediately visited the spot of the
incident, thus it makes clear that the prosecutrix was lying
unconscious on the spot and she regained conscious at the Primary
Health Centre Parol. This evidence again makes it clear that after
apprehending the appellant/accused by the villagers, she had no
opportunity to see the appellant accused. He was not even shown to
the prosecutrix at the time of recording her statement in the Court.
12. So far as the material part of the evidence of PW1 Baby which
is to the effect that she had seen the appellant/accused present at the
spot of the incident while the prosecutrix lying there in naked
condition is concerned, the same is coming on record by way of
omission. The subsequent part of her evidence that the
appellant/accused ran away after seeing her is also coming on record
by way of omission. On this aspect, examination of PW1 Baby is
clear. The omissions in her previous statement made before the
police are proved by the defence through cross-examination of PW5
B.S.Pardesi, PSI. If really PW1 Baby had seen appellant/accused
present at the spot of the incident, she would have certainly narrated
this fact while recording statement under Section 161 of the Cr.P.C.
to police. This part of her evidence which is regarding identity of the
appellant accused is coming on record by way of omission. Hence her
evidence to that effect needs to be ignored. If this part of her
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testimony is ignored then there remains nothing in evidence of PW1
Baby to establish identity of the appellant/accused as perpetrator of
the crime in question. To crown this all, even PW1 Baby while in
the witness box has not stated that the appellant/accused sitting in
the dock is the same person who was seen by her at the spot of the
incident. Thus, even evidence of PW1 Baby is of no assistance to the
prosecution to establish the identity of the appellant/accused as the
rapist involved in commission of rape on the prosecutrix.
13. The defence has admitted, the injury certificate issued by the
Rural Hospital, Vasai which shows that the prosecutrix had suffered
several injuries in the form of abrasion,contusion, lacerated wounds
over her limbs, scull as well as on back. Evidence of PW7 Shrutika
Rathod shows that the prosecutrix was subjected to forceable sexual
intercourse. However, there is no evidence to establish identity of the
appellant/accused as the person who committed rape on the
prosecutrix.
14. The spot of the incident was inspected by PW5 B.S.Pardesi,
PSI, in presence of panch witness PW3 Mukesh Jadhav on 7 th March,
2011. Apart from clothes of the prosecutrix, the investigator had
found the mobile handset and leather wallet at the spot of the
incident. These articles were seized vide spot-cum-seizure
panchanama at Exh.30. PW5 B.S.Pardesi, PSI investigating officer, in
his cross examination has candidly admitted that there is no evidence
to show that the mobile handset as well as wallet found at the scene
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of occurrence belongs to the appellant/accused. This also casts a
serious shadow of doubt on involvement of the appellant/accused in
the crime in question.
15. According to the prosecution case, the appellant/accused was
apprehended by the villagers and then he was taken to the police
station. The prosecution has not examined any person from the
village who had apprehended the appellant/accused in order to
establish connection of the appellant/accused with the crime in
question.
16. Net result of the foregoing discussion requires me to hold that in
the case in hand, the prosecution has failed to establish the identity
of the appellant/accused as the perpetrator of the crime in question
and he is certainly entitled for benefit of doubt. Therefore, the
following order;
:: ORDER ::
i) Appeal is allowed.
ii) The impugned judgment and order dated 27 th February,
2013 passed by the learned Additional Sessions Judge,
Vasai in Sessions Case No.73 of 2011 thereby convicting the
appellant/accused for offence punishable under Sections
376 and 323 of the IPC and sentencing him accordingly, is
quashed and set aside.
iii) The appellant is acquitted of offences punishable under
Sections 376 and 323 of IPC.
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iv) The appellant be set at liberty, if not required in any other
case.
v) Fine amount, if any, paid by him be refunded to the
appellant.
vi) Appeal is disposed of accordingly.
(A.M.BADAR J.)
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