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State Of Mah. Thru The P.S.O vs Amit S/O Dhanraj Kadamdhad & Anor on 13 March, 2018

1 apeal286.07

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

CRIMINAL APPEAL (APEAL) NO. 286 OF 2007

State of Maharashtra,
through the Police Station
Officer, Police Station,
Narkhed, District Nagpur. … APPELLANT

VERSUS

1. Amit Dhanraj Kadamdhad,
aged about 24 years,
Occupation Agriculturist,
R/o Singarkheda, Tq. Narkhed,
District Nagpur.

2. Umesh Dhanraj Kadamdhad
(dismissed against respondent No.2.) … RESPONDENTS

….
Shri M.K. Pathan, Additional Public Prosecutor for the appellant/State.
Shri S.M. Nafde, Advocate for the respondent.
….

CORAM : B.R. GAVAI AND
M.G. GIRATKAR, JJ.

DATED : 13TH MARCH, 2018.

ORAL JUDGMENT : (Per M.G. Giratkar, J.)

By way of present appeal, the appellant/State has challenged the

acquittal of accused/respondent by Adhoc Additional Sessions Judge,

Nagpur in Sessions Trial No. 19 of 2006 for the offences punishable under

Sections 376, 109, 306 read with Section 34 of the Indian Penal Code and 3(1)

(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act.

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2. The facts, which give rise to filing of the present appeal, can be

summarized as under :-

Deceased Ranjana was the daughter of complainant –

Chandrabhaga Shankarrao Dhurve. She was educated up to 3rd standard.

The complainant and deceased were doing labour work. In the month of

May, 2006, on the day of incident, complainant had gone for labour work.

She returned at about 12:00 in the afternoon. Ranjana (prosecutrix) also

returned from the work in the afternoon. Accused were storing fodder in the

cattle shed. She was giving call to Ranjana, but Ranjana was not responding.

Vicky came to her and told her as to why she was calling Ranjana. Whether

she was knowing that what Ranjana was suffering. He told her that Ranjana

was in the cattle shed. She went towards cattle shed of accused. She saw

accused Amit sitting on the person of Ranjana and committing rape on her.

Younger brother of Amit gave signal by blowing whistle. Ranjana ran out of

the cattle shed. Then she went to home and made enquiry with Ranjana.

She told that she was called by accused by giving inducement. The mother

Chandrabhaga gave two slaps to her daughter. When complainant-

Chandrabhaga went to the house of Bebibai, in her absence, Ranjana poured

kerosene on her person and set herself on fire. She was admitted in the

hospital. After 2-3 days, she lodged the report (Exh.46). After 8-10 days, she

brought Ranjana to the house and after 2-3 days, Ranjana died.

3. On the report of complainant-Chandrabhaga, crime was

registered against the accused. Investigating Officer recorded the statements

of witnesses, prepared inquest panchnama and spot panchnama etc. After

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completing investigation, charge sheet came to be filed. A charge was

framed at Exh.4. The prosecution has examined in all 12 witnesses. At the

conclusion of the trial, learned Trial Court acquitted the accused for the

offence punishable under Sections 376, 109, 306 read with Section 34 of the

Indian Penal Code and 3(1)(xii) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act. Being aggrieved by the said acquittal,

the appellant/State has filed the instant appeal.

4. There is no dispute that the deceased died due to burn injuries.

Postmortem report is at Exh.41. As per the evidence of PW-9 Chandrabhaga,

accused No.1 committed rape on the prosecutrix and, therefore, she had

committed suicide.

5. PW-6 Dr. Suvarna Sapkal examined the prosecutrix and issued

certificate (Exh.39). As per her observation, there was no injury mark on

private part of the prosecutrix. Dr. was unable to state as to whether girl had

undergone forcible sexual intercourse. Therefore, medical evidence is not in

favour of the prosecution. The evidence of PW-9 Chandrabhaga shows that

she saw accused No.1 committing rape on prosecutrix. But, this evidence is

not corroborated by other evidence. The material contradiction is brought

on record in her evidence. As stated in her evidence that one Vicky informed

her that the prosecutrix was in the cattle shed and accused No.1 was doing

sexual intercourse, Vicky (PW-3) not supported her version.

6. The evidence of Chandrabhaga (PW-9) is not corroborated by

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medical evidence. PW-6 Dr. Suvarna Sapkal has stated in her evidence that,

“there was no injury marks on private part at the time of examination. I

cannot say whether the girl had undergone forcible sexual intercourse.” The

Medical Officer collected pubic hair and vaginal swab. The same were sent

for examination to Chemical Analyser. The report (Exh.26) of Chemical

Analyser is negative. Therefore, the evidence on the point of sexual

intercourse not proved by the prosecution.

7. There is also discrepancy in respect of date of birth of prosecutrix.

The prosecutrix has stated her date in her dying declaration (Exh.44) as 15

years. Her mother (PW-9) also stated her age as 15 years. But, PW-10 Vishnu

Dhote, retired Headmaster proved the school leaving certificate. As per the

certificate, her age is 12 years. The said school leaving certificate is doubtful

because the school leaving certificate (Exh.53) shows that the date of birth

was registered on 03.10.2002; whereas it was issued on 28.08.2002. It appears

that the prosecutrix was more than 15 years. Even if there was really sexual

intercourse then it was with consent. The prosecutrix herself in Exh.44 stated

that she went to cattle shed and had a sexual intercourse. When her mother

came to know this, she was beaten by her mother and, therefore, she poured

kerosene and set herself on fire. Hence, offence punishable under Section

376 of the Indian Penal Code not proved by the prosecution.

8. In respect of offence punishable under Section 306 of the Indian

Penal Code, Exh.44 (Dying Declaration) appears to be given by the

prosecutrix at the instance of her mother. Moreover, it does not attribute any

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5 apeal286.07

act of accused No.1 for her death. From the plain reading of Exh.44, it is clear

that she has nowhere stated that accused instigated her to commit suicide. It

shows that accused called her, she went to cattle shed, accused did sexual

intercourse with her, she came to house, her mother beat her, she poured

kerosene and set her on fire. The death was also avoidable because the

mother of prosecutrix brought her from the hospital after 3-4 days. She died

at the house of PW-9 Chandrabhaga. The dying declaration (Exh.44) shows

that she burnt herself because her mother beat her. Therefore, the dying

declaration does not show that because of the sexual intercourse by accused

No.1, she committed suicide. On the other hand, it shows that her mother

beat her, therefore, she poured kerosene and set herself on fire. No evidence

to show that accused No.1 instigated or abetted her to commit suicide.

Hence, offence punishable under Section 306 of the Indian Penal Code is also

not proved by the prosecution. There is no evidence against accused No.2.

Thus, the learned trial Court has rightly appreciated the evidence on record.

The impugned judgment is well reasoned. There is no merit in the instant

appeal. Hence, we proceed to pass the following order :-

“The appeal is dismissed with no order as to costs.

R and P be sent back to the trial Court.”

JUDGE JUDGE

*rrg.

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