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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 455 OF 2014
Prakash s/o Shalikram Lokhande,
Occupation – Labour,
R/o Alesur, Tahsil – Tumsar,
District – Bhandara. …. APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Bhandara. …. RESPONDENT
__
Shri V.D. Muley, Advocate for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 8
DECEMBER, 2017.
th
ORAL JUDGMENT :
Exception is taken to the judgment and order dated
04-8-2014 in Sessions Trial 66/2012 delivered by the learned Sessions
Judge, Bhandara, by and under which the appellant is convicted for
offence punishable under Section 457 of the Indian Penal Code (“IPC”
for short) and is sentenced to suffer rigorous imprisonment for five
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years and to payment of fine of Rs.2,000/- and is further convicted for
offence punishable under Section 376 of the IPC and is sentenced to
suffer rigorous imprisonment for a period of seven years and to
payment of fine of Rs.3,000/-.
2. Heard Shri V.D. Muley, learned Advocate for the
appellant-accused and Shri P.S. Tembhare, learned Additional Public
Prosecutor for the respondent.
3. The genesis of the prosecution lies in oral report lodged by
the prosecutrix Pramila Maroti Lokhande on 10-6-2012, the gist of
which is that she and her husband are employees of one Deepak
Chaddha and work and reside in the garden owned by the said Deepak
Chaddha. The husband and son of the prosecutrix had gone to Nagpur
to attend the marriage and she was alone in the house. The
prosecutrix awoke at 3-30 a.m. in the morning of 10-6-2012, opened
the door and went outside in the courtyard to answer nature’s call.
While returning, a person embraced her from behind, pressed her
breasts and lifted and carried her inside the room. The room was
illuminated and she noticed that the perpetrator was the cousin brother
of her husband Prakash. The prosecutrix was forcibly brought down on
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the floor, she shouted and the accused gagged her mouth, removed her
knicker, undressed himself and forcibly ravished the prosecutrix. The
accused after sexually assaulting the prosecutrix, made himself
comfortable on the cot. The prosecutrix wore her clothes, went out of
the house in the courtyard and used her mobile to call her husband to
narrate the incident. The prosecutrix suffered injuries and scratches
on the breasts due to nails, is the statement in the oral report. The said
oral report was reduced to writing (Exhibit 22) and the printed first
information report is Exhibit 23. On the basis of the said police report,
offences under Sections 376 and 452 of the Indian Penal Code were
registered against the accused. The culmination of investigation led to
submission of the charge-sheet in the Court of Judicial Magistrate First
Class, Bhandara, who committed the case to the Sessions Court. The
learned Sessions Judge framed charge (Exhibit 15) under Sections 457
and 376 of the IPC. The accused abjured guilt and the defence is of
total denial and false implication.
4. Before I venture to discuss the evidence on record, few
glaring features of the prosecution case must be noticed. Neither the
oral report nor the printed first information report (Exhibit 23) reveal
the time of lodging the report. The printed first information report
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reveals that the General Diary Reference Entry is recorded at 1-55 p.m.
The arrest panchanama Exhibit 45 records that the accused was
arrested at 6-05 p.m. on 10-6-2012 and the place of arrest is shown as
Police Station Bhandara. These aspects assumed some significance
since, in the deposition, the prosecutrix who is examined as P.W.1, has
come out with a version that after she was subjected to forcible sexual
intercourse, she came outside the house and closed the door from
outside and narrated the incident to her employer Deepak Chaddha
who had arrived in the garden in a car. The prosecutrix has deposed
that she informed her husband about the incident by using the mobile
phone of her employer Deepak Chaddha. The version of the prosecutrix
is that she lodged the report and the police arrived at the scene of
occurrence between 10-30 to 11-00 a.m., opened the door of the house
and took the accused in custody.
5. Pertinently, neither the employer Deepak Chaddha nor the
husband of the prosecutrix, though cited as witnesses, were examined
during the course of trial. The prosecution indeed has the exclusive
prerogative to decide whom to examine as witness. It is trite law, that
evidence is to be weighed and not counted, which is also the juristic
philosophy underlying Section 134 of the Indian Evidence Act.
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However, if witnesses, who ought to have been examined to unfold the
prosecution narrative and to corroborate the evidence of the
prosecutrix are not examined and no explanation is forthcoming, the
Court would be justified in drawing an appropriate inference.
6. Be it noted, that the evidence of the prosecutrix is not
consistent with the oral report. The report states that the prosecutrix
came out of the house and used her mobile to call her husband. The
oral report does not even whisper that the prosecutrix came out, her
employer Deepak Chaddha had arrived in a car, the prosecutrix
borrowed his phone and called her husband to narrate the incident.
More importantly, the report does not recite that the prosecutrix locked
the door from outside and the accused was taken into custody by the
police who unlocked the door.
7. It is elicited in the cross-examination of the prosecutrix
P.W.1 that her statements were recorded on 15-6-2012 and 25-8-2012.
The version that the prosecutrix closed the door from outside, that she
narrated the incident to Deepak Chaddha and that she used the mobile
phone of Deepak Chaddha to call her husband, is a proved omission.
Dhanraj Waghmare who is examined as P.W.2 to prove that he was a
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witness to the police arriving at the scene of occurrence, unlocking the
door of the house of the prosecutrix and taking into custody a person,
did not support the prosecution. The prosecution sought permission to
put questions in the nature of cross-examination, which permission was
granted in exercise of power under Section 154 of the Indian Evidence
Act, however, nothing is elicited in the cross-examination to assist the
prosecution. The attention of the witness was invited to portion “A” of
the statement recorded under Section 161 of the Criminal Procedure
Code, which the witness denied having stated to the police. Bharat
Wadhavan, who is examined as P.W.3 to prove the spot panchanama
Exhibit 29 and seizure panchanamas Exhibit 30 and Exhibit 31, states
that he is not in a position to identify the mobile phone. The seizure of
the mobile phone, is of little significance since the mobile phone which
is seized from the house is not proved to be owned by the accused or
otherwise to be in possession of the accused. The medical evidence is
inconsistent with the version of the prosecutrix that she was subjected
to forcible sexual intercourse. C.A. Reports Exhibit 10 and Exhibit 11
do not evidence sexual assault, is the deposition of P.W.4 Dr. Chanchal
Khobragade. However, C.A. Report Exhibit 12 states that human
semen stains were found on the petticoat and the middle portion of the
knicker of the prosecutrix. The clothes were seized from the prosecutrix
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at 10-00 p.m. on 10-6-2012 and were forwarded to the Chemical
Analyzer on 26-6-2012. Apart from the fact that the prosecution has
not shown that the clothes were sealed and between the seizure on
10-6-2012 and 26-6-2012 the possibility of tampering is excluded, the
blood group is not identified and in any event, the production of the
said clothes by the prosecutrix who is a married woman, is not
sufficient to connect the accused with the sexual intercourse, if any.
Pertinently, Exhibit 10 and Exhibit 11 are the samples of the pubic hair
and the vaginal swab respectively and no semen is detected.
8. The Investigating Officer Vijay Chavan, who is examined
as P.W.5, has deposed that he alongwith Head Constable Wankhede
and prosecutrix went to the house of the prosecutrix, the house was
locked from outside, the prosecutrix handed over key of the lock which
was then opened and the accused was found inside the house. P.W.5
Investigating Officer states that the accused was apprehended and
brought to the police station. The evidence of P.W.5 is not at all
confidence inspiring. No contemporaneous record is produced to prove
that P.W.5 and a constable opened the lock and apprehended the
accused who was inside the house of the prosecutrix. The arrest
panchanama records that the accused was arrested at 6-05 p.m. at the
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police station. I have already noted that the evidence of the prosecutrix
that she came out of the house and locked the door from outside is a
proved omission. The failure of the prosecution to examine the
husband of the prosecutrix and Deepak Chaddha coupled with the fact
that P.W.2 Dhanraj did not support the prosecution, renders the
version of the prosecutrix that the accused was inside the house and
she locked the door from outside, extremely doubtful. That apart the
evidence of the prosecutrix that she was subjected to forcible sexual
intercourse by the accused who after completing the act made himself
comfortable on the cot and the prosecutrix wore her clothes and
walked out and locked the door, is inherently incredible. Although it is
well settled that conviction can be based on the sole testimony of the
prosecutrix, I do not find the testimony either reliable or trustworthy or
confidence inspiring.
9. On a holistic appreciation of evidence on record, in my
opinion, the prosecution has miserably failed to prove, muchless prove
beyond reasonable doubt, that the accused subjected the prosecutrix to
forcible sexual intercourse. The judgment and order impugned is not
sustainable and is set aside. The accused is acquitted of the offences
punishable under Sections 457 and 376 of the Indian Penal Code.
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10. In order to keep the record straight, the learned Advocate
for the accused Shri V.D. Muley produced on record copy of complaint
instituted by the prosecutrix Pramila under the provisions of the
Protection of Women from Domestic Violence Act, 2005. The
proceedings appear to have been instituted by the prosecutrix against
the accused and his parents and the gist of the complaint is that post
conviction the accused and the prosecutrix entered into a matrimonial
alliance on 12-2-2014. It is not necessary for me to take note muchless
discuss in any detail the contents of the said complaint, which is
brought to my notice presumably to suggest that the fact that the
prosecutrix married the accused would render the version of forcible
sexual intercourse suspect. Assuming that the prosecutrix did marry
the accused despite the conviction the same, is of no significance in
law. Whether or not the prosecutrix was subjected to forcible sexual
intercourse by the accused, is to be decided on the basis of the evidence
available on the record of the trial Court.
11. The bail bond of the accused shall stand discharged and
fine paid by the accused, if any, shall be refunded to the accused.
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The appeal is allowed in the above terms.
JUDGE
adgokar
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