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The State Of Mah & Ors vs Shivaji Shankar Ghodekar & Anr on 12 April, 2018

Apeal570-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 570 OF 2006

The State of Maharashtra, … Appellant
Through Police Station,
Kinwat, Dist. Nanded

VERSUS

1. Shivaji s/o Shankar Ghodekar
Age 21 years, Occu: Agri
R/o Ambadi, Tq. Kinwat,
District Nanded

2. Dr. Sow. Shubhangi w/o Pradeep
Chinnawar, Age 37 years,
Occup: Medical Practice,
R/o Kinwat, Dist.Aurangabhad
… Respondents
Mr. M.M. Nerlikar, APP for the appellate State.
Mrs.S.G.Chincholkar, Advocate for respondent Nos.1 2.

CORAM : T. V. NALAWADE AND
K. L. WADANE, JJ.
DATE: : 12th April, 2018

JUDGMENT ( Per K. L. Wadane,J.):

1. The appellant has challenged the judgment and

order delivered by the learned Adhoc District Judge,

Nanded in Sessions Case No.123/2001 dated 27.04.2006,

by which the accused persons i.e.respondent Nos.1 and 2

are acquitted from the charges punishable under section

376, 314 r/w 34 of the Indian Penal Code and under

sections 3(1)(2)(5)(12) of the Scheduled Castes and

Scheduled Tribes(Prevention of Atrocities)Act, 1989.

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2. Brief facts of the case may be stated as

follows:

(1) Complainant Atmaram Sonkamble lodged complaint with

Police Station Kinwat on 5th May, 2001 alleging that

his sister (her name is withheld and she is referred as

“victim”), aged about 15 years was taking education.

Accused No.1 Shivaji developed illicit relations with

the victim on false pretext of marriage and therefore

she was under conception from him. As soon as Shivaji

came to know about the pregnancy of the victim, he

suggested her for abortion. On 19.04.2001 victim

went to private hospital of Dr. Chinnawar at Kinwat

i.e. Hospital of accused No.2 with her sister Varsha

for treatment and abortion of her fetus. It is further

alleged that at the time of admission in the Hospital,

name of the victim was written as “Asha”. she was

admitted at about 10 a.m. and was discharged at 6.00

p.m. after abortion of the fetus. Accused No.1 borne

all the medical expenses and fees of the Doctor. It is

further alleged that accused No.1 has then instructed

the victim not to disclose the fact to any other

person.

(2) On 2nd May, 2001, the victim was suffering from

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stomach ache. Her urine was blocked and she was

admitted in Rural Hospital at Gokunda for medical

treatment. The concerned Doctor advised for shifting

her to Civil Hospital, Adilabad, therefore as per the

advice, the victim was taken to Civil Hospital At

Adilabad. However, during the medical treatment she

died on 05.05.2001 at about 5.30 a.m.

(3) On the basis of report submitted by the

complainant, PSO Kinwat registered offence vide Crime

No. 46/2001 under section 376, 314 read with 34 I.P.C.

and under section 3(1)(5) and (12) of the S.C. and S.T.

(Prevention of Atrocities )Act and handed over the

investigation to Dy. S. P. Shri Tamboli.

(4) During investigation, necessary panchanamas were

prepared by the investigating officer. Statements of

witnesses were recorded. Postmortem of dead body of the

victim was conducted. Viscera was preserved and was

sent for chemical analysis. After completion of

investigation, it was transpired that accused No1.

committed rape on the victim and accused Nos. 1 and 2,

in furtherance of their common intention, have aborted

fetus of victim by accused No.2 in her Hospital at

Kinwat.

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(5) The Judicial Magistrate, F.C. Kinwat has

committed the case to the Sessions Court for its trial.

Learned Additional Sessions Judge framed the charge

vide Exh.17 against Accused Nos. 1 under section 376

IPC and against accused No.1 and 2 under section 314

read with 34 IPC and u/s 3(1)(5) and (12) of the S.C.

and S.T. (Prevention of Atrocities) Act and charges

were read over to the accused to which they denied and

claimed to be tried.

(6) In support of their case, the prosecution has

examined following witnesses:

i. PW-1 Atmaram Sonkamble at Exh.44, complainant and

brother of the deceased/ victim.

ii. PW-2 Dr. Salma Hirani at Exh.47 to prove contents

of the Postmortem report and cause of death.

iii. PW-3 Maroti Kove at Exh.54, panch witness to spot

panchanama.

iv. PW-4 Varsha Sonkamble at Exh.58, sister of the

victim.

v. PW-5, Datta Kamble at Exh.59 to prove the

panchanama of seizure of cloths.

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vi. PW-6 Fasiullah Ubedullah at Exh.62 to prove the

panchanama of seizure of register in the Hospital of

accused No.2.

vii. PW-7 Nisar Ahmed Tamboli, Dy. S. P. Vardha as an

investigating officer.

viii. PW-8 Bapurao Nanaji Mamidwar at Exh.69, ASI, t

prove seizure of clothe.

ix. PW-9 Pradip Wamanrao Tribhuvan, P.I. who registered

the offence on the report given by PW-1.

(7) Besides oral evidence of aforesaid witnesses,

the prosecution has relied on the following documents.

i. Exh. 45 Complaint/FIR

ii. Exh.48- Postmortem report

iii. Exh.50 Histopathology report

iv. Exh.51- Certificate fo cause of death

v. Exh.55 Spot Panchanama

vi. Exh.56 Panchanama of specimen handwriting of accused

No.1.

vii. Exh.57 Panchanama of seizure of letter from the
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house of accused no.1.

viii. Exh.60 Panchanama of seizure of clothes of

deceased.

ix. Exh.63 Panchanama of seizure of register from the

Hospital

x. Exh.65 and 66, Arrest panchanamas of Accused Nos.1

and 2.

xi. Exh.67 letter issued by investigating officer to

handwriting expert.

xii. Exh.74 inquest Panchanama.

(8) After completion of evidence of prosecution,

accused persons were cross examined under the

provisions of section 313 of the Criminal Procedure

Code. They have not lead any defence evidence. After

hearing both sides and appreciating evidence on

record, the learned Adhoc Additional Sessions Judge,

Nanded has come to the conclusion that the prosecution

failed to establish any of the charges leveled against

the accused, consequently, acquitted both the accused.

Hence this Appeal.

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3. We have heard arguments Mr. M.M. Nerlikar,

learned APP for the appellant State and Mrs.

S.G.Chincholkar, learned counsel for respondent Nos.1

2. We have also perused the evidence on record.

4. At the outset, it is material to mention here

that though it is alleged by the prosecution that

accused No.1, under the pretext of marriage, committed

rape on the victim, however, there is absolutely no

evidence against accused No.1 to that effect. Merely

witness PW-4 Varsha stated that she had seen accused

No.1 and victim talking in the field. Further it

reveals from the record that field of father of victim

is adjacent to the field of accused No.1. Therefore,

merely accused No.1 and victim found talking with each

other in the adjacent field of the victim is not

sufficient to infer that accused No.1 was having

illicit relation with the victim. On this circumstance,

one cannot jump to the conclusion that accused No.1,

under the pretext of marriage, had committed sexual

intercourse or rape on the victim. In the circumstance,

the prosecution failed to prove that accused No.1 has

committed rape on the victim/sister of the complainant.

5. It is claimed by the prosecution that due to

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relation of the accused No.1 with victim, the victim

was under conception and accused No.1 came to know

about this fact and thereafter victim, alongwith PW-4

Varsha went to Hospital of accused No.2 at Kinwat on

19.04.2001, where she was admitted during the period

from 10 a.m. to 6.00 p.m. According to the prosecution

accused No.2 caused abortion of fetus of the victim.

6. We have gone through the oral evidence of

witnesses of Dr. Salma Hirani PW-2 and PW-4 Varsha

respectively coupled with relevant medical report/

certificates. On perusal of oral evidence as well as

medical certificate, basically it is not established by

the prosecution that at the relevant time, victim was

pregnant. Therefore, it is necessary to consider

evidence on record for its re-appreciation and for that

purpose, evidence of witness PW-2 Dr. Salma Hirani is

very material.

7. From the evidence of PW-2 Dr. Salma Hirani it

appears that she conducted postmortem of dead body of

of the victim and opined cause of death due to Cardio

respiratory arrest due to shock secondary to

Peritonitis with Vaginitis. Further, it reveals from

the oral evidence that this witness sent uterus of

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the victim for examination to Histopathology department

and Histopathology department has given finding that

Endometrium is unremarkable and product of conception

is not seen. Exh.49 is the investigation report of

Histopathology department, from which, it appears that

products of conception were not seen. Furthermore, the

death certificate issued by Civil surgeon, Adilabad is

placed on record at Exh.51, wherein cause of death is

mentioned as Cardio respiratory system failure coupled

with Diabetic coma.

8. Cross examination of this witness Dr. Salma

Hirani is very material. During the cross examination,

she has stated that in many disease, there is white

discharge and she did not notice any perforation in the

uterus. The size of perforation of uterus was normal.

This witness further stated that report of

Histopathologist is conclusive proof about the

conception. Here, in the present case, report of

Histopathologist is important, from which, it is very

much clear that there was no product of conception.

Therefore, basically,prosecution failed to establish

that victim was pregnant.

On perusal of the further cross examination of

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witness PW-2, it appears that this witness has stated

that cardio respiratory arrest is the main cause of

death. In further cross examination, this witness has

stated that patient/victim was brought in Rural

Hospital, Kinwat on 03.05.2001 at 10.30 a.m. She was

complaining about stomach pain and Asthma and general

condition of the patient was found poor and therefore

her urine was tested and in the urine test, she was

detected diabetes, therefore patient was referred to

Nanded but relatives of the patient taken her to

Adilabad. Witness PW-2 has further stated that

after perusing the treatment papers of Civil Hospital,

Adilabad, it appears that blood sugar was 624 and Urine

Sugar is 2%, in such circumstance, the patient may go

in Coma and death can be caused.

9. From the aforesaid evidence, it appears that there

may be various cause of death of victim i.e.

Diabetics, Asthma so also Cardio Respiratory Arrest

due to shock secondary to Peritonitis with Vaginitis.

Peritonitis is an inflammation of the peritoneum, the

tissue that lines the inner wall of the abdomen and

covers and supports most of the abdominal organs.

Peritonitis is usually caused by infection from

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bacteria or fungi. Vaginitis is an inflammation of the

vagina that can result in discharge, itching and pain.

The cause is usually a change in the normal balance of

vaginal bacteria or an infection. Reduced estrogen

levels after menopause and some skin disorders can also

cause vaginitis. In view of the aforesaid evidence,

the prosecution was not able to establish basically

that deceased/ victim remained pregnant and

subsequently she was subjected to abortion.

10. On perusal of the oral evidence of PW-4 Varsha,

it appears that she deposed that on 19.04.2001 she

accompanied with her sister/victim to Kinwat. On that

day, she noticed that accused No.1 was standing near

bus stand. He came towards them and had talk with the

victim. He took them to private Hospital of Dr.

Chinnawar at Kinwat i.e. accused No.2. This witness

further deposed that Accused No. 2 Dr. Chinnawar

examined the victim and thereafter victim was taken

inside the delivery room. Thereafter, at about 3.00

p.m. this witness went to the room of his brother and

returned to the Hospital at about 4.00 p.m. At that

time her sister/victim was shifted to other room from

delivery room. She disclosed her that she was under

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conception from accused No.1 Shivaji and Dr. Shubhangi

Chinnawar has aborted her fetus.

11. Oral evidence of this witness PW-4 is falsified

by the evidence of expert witness together with medical

certificate. Further more, there was omission and

material contradiction in the oral evidence of PW-4

Varsha which has been successfully proved in cross

examination of the investigating officer Nisar Ahmed

at PW-7. Some of the omissions are that-

(1) The witness PW-7 has deposed that witness PW-4

Varsha has not stated in her statement before him that

her sister/victim was under conception from Accused

No.1.

(2) Witness PW-4 has stated before him in her

statement that she herself and her sister/victim went

to private hospital of accused No.2 for abortion of

her sister’s fetus.

(3) The witness further stated that witness PW-4

also has not stated in her statement that accused

No.2 aborted fetus of her sister.

(4) Witness PW-4 also not stated before him in her

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statement that victim died due to abortion conducted by

accused No.2.

Therefore, looking to the material omissions,

the evidence of the aforesaid witnesses and certain

admissions given by them and the opinion as to the

cause of death, we are of the opinion that the

prosecution has failed to establish the charge under

section 314 read with 34 IPC against accused Nos.1 2.

12. In view of the above, offence under the Indian

Penal Code punishable with imprisonment for a term of

ten years or more has not been established by the

prosecution. Therefore, the offence under section

3(2)(v) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 does not

arise.

13. We have gone through the reasons recorded by

the learned Adhoc Additional Sessions Judge, Nanded,

who has correctly appreciated the evidence and on re-

appreciation of the same, we are of the opinion that

the finding recored by the learned learned Adhoc

Additional Sessions Judge are legal and proper.

Therefore it is not necessary to disturb the findings

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recorded by the learned Adhoc Additional Sessions

Judge. There is no merit in the appeal filed by the

State, therefore, it is liable to be dismissed and

accordingly it is dismissed.

14. Bail bonds, if any, of respondent Nos. 1 and 2

stand cancelled.

(K. L. WADANE, J.) (T. V. NALAWADE, J.)

JPC

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