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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.176/2003
Pradip s/o Motiram Bansod,
aged about 25 years, r/o Ghorad,
P.S. Kalmeshwar, Dist. Nagpur. …..APPELLANT
…V E R S U S…
State of Maharashtra through
Police Station Officer, P.S. Kalmeshwar,
Dist. Nagpur. …RESPONDENT
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None for the appellant.
Ms T. Udeshi, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 26.07.2017
ORAL JUDGMENT
1. By the present appeal, the appellant is challenging the
conviction imposed upon him by the learned 4 th Ad hoc Additional
Sessions Judge, Nagpur dated 10.02.2003 by which he stood
convicted for the offence punishable under Section 354 IPC and is
directed to suffer rigorous imprisonment for 2 years and to pay a
fine of Rs.500/- in default to suffer rigorous imprisonment for one
month.
2. None for the appellant. I have heard Ms T. Udeshi,
learned A.P.P. in extenso. With her able assistance, I have gone
through the entire record and proceedings.
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3. The offence was registered against the appellant with
Police Station, Kalmeshwar vide Crime No.203/2001 on
16.09.2001 for the offence punishable under Section 376 and 506
of the IPC. The FIR was lodged by the prosecutrix (PW2) the
report is available on record at Exh.-19.
The gist of the FIR is that prior to 3 days of lodging of
FIR when the prosecutrix came to her house after school hours,
the appellant entered into her house in absence of her parents and
brothers and committed forcible sexual intercourse with her.
4. Dwarkaprasad Mishra (PW8), a police officer was
discharging his duties at Kalmeshwar Police Station. He sent the
prosecutrix at Primary Health Centre, Kalmeshwar. From there
she was sent to Mayo Hospital, Nagpur. After completion of the
investigation, he filed final report in the Court of Judicial
Magistrate First Class who committed the case to the Court of
Sessions.
5. The learned 4th Ad Hoc Additional Sessions Judge,
Nagpur framed the charge against the appellant that on
15.09.2001 at about 11.00 a.m. he committed forcible sexual
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intercourse with the prosecutrix and thereby committed an offence
punishable under Section 376 of the IPC. The charge was denied
by the appellant. In order to bring home the guilt of the appellant,
in all 9 witnesses were examined by the prosecution.
6. The learned trial Court, after appreciating the entire
prosecution case found that the prosecution has utterly failed to
prove the charge framed against the appellant that he has
committed forcible sexual intercourse with the prosecutrix (PW2)
and therefore he acquitted the appellant from the said charge. No
appeal is carried by the prosecution challenging his acquittal of the
offence punishable under Section 376 of the IPC.
The learned Judge of the Court below however found
that the appellant has committed an offence punishable under
Section 354 of the IPC.
7. As per the FIR (Exh.-19), the incident occurred prior to
3 days of lodging of the FIR Exh.-19. The matter was reported to
Police Station, Kalmeshwar on 18.09.2001. Thus, there is a delay
of 3 days in lodging the FIR.
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Merely because there occurs delay in lodging the FIR
that by itself is not sufficient to throw the entire prosecution case
in dustbin. However a duty is cast on the prosecution to explain
the delay properly. If the delay is properly explained then in the
given circumstances, the Court can overlook the delay.
8. As per the FIR, evidence of Ratnamala (PW1), mother
of the prosecutrix and even evidence of the prosecutrix (PW2)
author of the FIR, at the time of incident, the parents as well as
the brothers of the prosecutrix were not present in the house.
9. As per the evidence of Ratnamala (PW1), she had been
to Nagpur to the house of her brother namely Prakash. She
claimed that she returned to the village Ghorad on Sunday and at
that time one Lilabai Lohkare resident of the same village
informed her about the incident. Returning of Ratnamala on
Sunday is not corroborated by the prosecutrix (PW2). Her
evidence shows that on the day of incident itself her parents came
back and she reported the incident to her parents. Thus, on the
day of the incident itself the prosecutrix has revealed the incident
that has occurred to her to her parents.
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10. It is further to be noted that according to the
prosecution, the prosecutrix has revealed the incident to her
friends Rita (PW5) and Sadhna (PW6). It is also admitted by the
prosecutrix that after disclosing the incident to her friends, they
informed the incident to their parents on the very same day. Thus,
it is clear that on the day of the incident itself the matter was
reported to the parents of the prosecutrix and also to the parents
of her friends.
11. Since there is variance on the material aspect in respect
of the returning of Ratnamala (PW1) to the village as per her
evidence and the evidence of the prosecutrix, it was important on
the part of the prosecution to examine Lilabai since according to
Ratnamala (PW1), the matter was firstly narrated to her by Lilabai
after she came to the village on Sunday. This important witness is
not examined by the prosecution.
12. From the line of cross-examination of Ratnamala
(PW1) and the prosecutrix (PW2) it is the defence of the appellant
that they reside adjacent to each other and there occurred a
dispute in respect of the protruding branches of the tree which
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was standing on the plot of the prosecutrix and it is cut by the
appellant. Of course, this suggestion is denied by both these
witnesses. However, it assumes importance when there is
inordinate delay of 3 days which remained to be unexplained. In
that view of the matter, false implication of the appellate at the
behest of Ratnamala (PW1) and the prosecutrix (PW2) is not
completely ruled out. Therefore, this is a fit case, in my view,
where the benefit of doubt is required to be extended in favour of
the appellant. Hence, following order is passed.
ORDER
(i) Criminal Appeal No. 176/2003 is allowed.
(ii) The judgment and order of conviction passed by 4 th Ad
hoc Addl. Sessions Judge, Nagpur in Sessions Trial No.658/2001,
thereby convicting the appellant for an offence punishable under
Section 354 of the IPC is hereby quashed and set aside.
(iii) The appellant is acquitted of the offence punishable
under Section 354 of the IPC.
(iv) The bail bonds of the appellant stands cancelled.
JUDGE
kahale
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