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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
——————————————————————————————-
None for the appellant.
Ms T. Udeshi, A.P.P. for respondent.
——————————————————————————————-
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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