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State Of Mah. Thru. Pso … vs Chhagan Chindhaji Jadhav on 23 July, 2018

apeal 363.08.odt

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

CRIMINAL APPEAL NO.363/2008

APPELLANT: State of Maharashtra through
Police Station Officer, Police Station
Sakharkheda, Distt. Buldana.

…VERSUS…

RESPONDENT: Chhagan s/o Chindhaji Jadhav,
Aged about 26 years,
R/o Loni Lavala, Tq. Mehkar,
Distt. Buldana.

————————————————————————————————–
Shri M.J. Khan, APP for appellant
None for the respondent
————————————————————————————————–

CORAM : R.K. DESHPANDE AND
ARUN D. UPADHYE, JJ.

DATE : 23 /07/2018

ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)

1. Being aggrieved by the judgment and order dated

7/4/2008 passed by the Ad hoc Additional Sessions Judge – 2

Buldana in Sessions Case No.52/2007, acquitting the accused for the

offence punishable under Sections 376 and 312 of Indian Penal

Code, the appellant- State of Maharashtra has preferred this appeal.

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2. The brief facts of the case are as under : –

The prosecutrix (A) is resident of village Loni and

residing along with her mother Parvatabai after death of her

husband. According to the prosecution, on 19/12/2006 at about

6:30 p.m. when the prosecutrix was returning after responding

nature’s call the accused met her in the field of one Ashok Bhikaji.

He gave threats to her to allow intercourse with her otherwise, he

will kill her. He thereafter took her towards Neem and Babhul tree

and committed forcible intercourse. According to the prosecution,

thereafter the accused committed intercourse with her by giving

threats from time to time behind the primary school.

3. It is alleged that on 7/2/2007 the accused took her to

the hospital of Dr. Smita Dalvi for termination of pregnancy. In the

hospital he told that the prosecutrix is his wife and got terminated

her pregnancy.

4. The prosecutrix has not disclosed the incident to

anybody due to the threats given by the accused. Thereafter, she

lodged report in the Police Station Sakharkheda on 6/3/2007

against the accused. On the basis of the said complaint, the police

registered offence vide Crime No.23/2007 under Sections 376 and

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506 of Indian Penal Code.

5. During the course of investigation, police arrested the

accused and he was referred for medical examination. The police

seized one prescription at the instance of the accused while he was

in the police custody. The prosecutrix was also referred for medical

examination. The Doctor examined her and issued medical

certificate. Police also recorded statement of Dr. Smita Dalvi who

terminated the pregnancy of the prosecutrix. During the course of

investigation, police recorded the statements of the witnesses. The

seized property was sent to the Chemical Analyzer for analysis and

after receipt of the Chemical Analyzer’s report and completion of

necessary investigation, police filed charge-sheet against the accused

for the offence charged.

6. The offence punishable under Section 376 of Indian

Penal Code is exclusively triable by the Court of Sessions. Therefore,

the case was committed to the Court of Sessions and the accused

appeared before the Court and charge came to be framed against

him for the offence punishable under Sections 376 and 312 of

Indian Penal Code. He pleaded not guilty and claimed to be tried.

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7. After recording the evidence in the matter and after

hearing both the sides, the learned Ad hoc Additional Sessions

Judge-2, Buldana has acquitted the accused for the offence charged.

Feeling aggrieved by the said judgment and order, the State

Government has preferred this appeal amongst other grounds

mentioned in the appeal memo.

8. We have heard the learned Additional Public Prosecutor

for the appellant. None present for the respondent – accused. The

learned Additional Public Prosecutor has submitted that the learned

Additional Sessions Judge has wrongly acquitted the accused for the

offence charged. He further submitted that the evidence of the

prosecutrix indicates that the accused has committed sexual

intercourse with her by giving threats and also caused termination

of pregnancy. There is no reason to disbelieve the evidence of the

prosecutrix. It is further submitted that the prescription was seized

at the instance of the accused and the evidence was collected under

Section 27 of the Evidence Act and the same is not considered by

the learned Additional Sessions Judge. The criminal appeal

therefore be allowed.

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9. Considering the submissions of the learned Additional

Public Prosecutor, we have perused the evidence on record. The

evidence of the prosecutrix (P.W.1) discloses that the date of

incident is 19/12/2006 at about 6:30 p.m. occurred in the field of

Ashok Bhikaji. However, the complaint is lodged by her on

6/3/2007. The delay in lodging the complaint is more than two and

half months. However, no explanation is given by the prosecution.

The prosecutrix has also not disclosed the incident till her pregnancy

was terminated. The prosecutrix is residing with her mother

Parvatabai. However, she has not disclosed the incident to her. The

version of the prosecutrix that the accused forcibly committed sexual

intercourse with her on the date of incident and thereafter from

time to time by giving threats cannot be accepted. So far as

termination of pregnancy is concerned, the prosecution has

examined P.W.4 – Dr. Smita Dalvi who has proved that on 7/2/2007

the prosecutrix and accused came to her hospital and said that the

prosecutrix is his wife and pregnancy of one and half month to be

terminated as they have also one child. The Doctor accordingly

obtained the consent form for termination of pregnancy vide Exh.39

and terminated the pregnancy. The evidence of Doctor indicates that

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the prosecutrix on her own had given consent for termination of

pregnancy posing the wife of the accused. It means that she was

consenting party for sexual intercourse with accused. No doubt the

accused has not taken defence that the intercourse was with

consent.

10. The evidence thus does not indicate that by giving

threats the accused has committed sexual intercourse with her and

also caused termination of pregnancy.

11. The prosecution has examined P.W.5 – Dr. Maroti Chate

who issued medical certificate (Exh.43). As per the evidence of

Dr. Maroti Chate, on 6/3/2007 he examined the proxecutrix and

gave opinion that the victim was habituated to sexual vaginal

intercourse. However, opinion about abortion could not be given

and advised ultrasound. The evidence of Doctor thus is not helpful

for the prosecution to connect the accused for the offence charged.

12. So far as recovery of prescription at the instance of the

accused is concerned, the prosecution has failed to prove the same.

P.W.2 – Anna Rajguru a panch witness on memorandum of

panchanama (Exh.32) and seizure panchanama (Exh.32 A) though

stated that the accused made a statement in his presence and

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thereafter produced one prescription of Doctor and bill of medicine

from his suitcase from his house at Loni Fata, however, in the cross-

examination, it is brought on record that the distance of village Loni

and Loni Fata is about 2 kilometers and they never went to village

Loni for preparing the recovery panchanama (Exh.32 A).

13. P.W.6 -Tanvir Ahmad Abdul Samad is the Investigating

Officer. In his evidence, he stated that the accused made a statement

in the presence of the panchas that he will produce the prescription

and took them to village Loni and produced the same under seizure

panchanama (Exh.32 A). The evidence of the Investigating Officer is

also contrary to the panch witnesses. Moreover, the said prescription

also is not useful for the prosecution as the prosecutrix herself has

given consent for termination of pregnancy and therefore, the

evidence shown by he prosecution that there is a discovery under

Section 27 of the Evidence Act is not at all useful and also not

proved.

14. After considering the evidence on record, we are of the

considered view that the evidence of the prosecutrix is not

trustworthy and not supported by other evidence on record and

cannot be believed. The learned Sessions Judge has rightly

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appreciated the evidence on record and acquitted the accused for

the offence punishable under Sections 376 and 312 of Indian Penal

Code. No interference of this Court is called for in the impugned

judgment and order. Hence, we pass the following order.

O R D E R

(i) Criminal Appeal No.363/2008 is dismissed.

(ii) The record and proceedings be sent back to the

Sessions Court, Buldana immediately.

(Arun D. Upadhye, J.) (R.K. Deshpande, J.)

Wadkar, P.S.

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