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The State Of Maharashtra vs Lahanu Namdeo Ganore on 19 December, 2018

Apeal-J-612-99.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.612 OF 1999

The State of Maharashtra ] ..Appellant
] (Original Complainant)
Versus

Lahanu Namdeo Ganore ]
Age: 35 years, ]
Resident of Wag-lud, ] ..Respondent
Taluka – Dindori, District-Nashik. ] (Original Accused)

Mrs.M.M. Deshmukh, APP for the Appellant-State.
Mr.Prosper D’souza, appointed Advocate for the Respondent.

CORAM : INDRAJIT MAHANTY
V.K. JADHAV, JJ.

JUDGMENT RESERVED ON : 30TH NOVEMBER, 2018
JUDGMENT PRONOUNCED ON : 19TH DECEMBER, 2018

JUDGMENT [Per : INDRAJIT MAHANTY, J.]

1. The present Appeal under Section 378(1) of the Code of

Criminal Procedure, 1973, has been filed by the State of Maharashtra

against the Judgment and Order of acquittal of the Respondent-Lahanu

Namdeo Ganore (original accused) for the alleged offences under Section

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376, 302 and 201 of the Indian Penal Code and under Section 3(1)(x) and

3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989, delivered by the Additional Sessions Judge Nashik, on

31st March, 1999 in Special Sessions Case No.43 of 1998.

2. The prosecution case in brief is as under :

(i) Devidas Laxman Gangode-Complainant, resident of Village

Pofshi was married to victim. The Complainant Devidas and his wife

-victim were Hindu Kokana by caste, which is admittedly a Scheduled Tribe.

The complainant Devidas was residing with the victim at Village Waglud

which is adjacent to Village Pofshi.

(ii) On 29th July 1998 at about 10.00 a.m. after taking his meals,

the complainant Devidas left home for the river for fishing and asked the

victim to take their buffalos for grazing. It is, further, stated by the

complainant that, while he was returning at 5.30 p.m. and proceeding

towards his village, he saw one of his buffalo walking towards house, but

the victim was not to be seen. Consequently, he took the buffalos home,

tethered them in the cattle shed and on enquiry from his children learnt that

the victim had left home at about 12.00 noon with the buffalos for grazing,

but had not returned. Therefore, the complainant proceeded towards the

forest in search of the victim and met one Hiraman Rajaram Chaudhari who

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told him that he had seen the victim grazing buffalos in the forest and that

he had also seen the accused “Lahanu Ganore” in the forest. He, further,

told that the accused had driven his buffalos towards his house.

(iii) The complainant Devidas, on receiving this information, went

to the forest alongwith some others. It is alleged that while searching for

the victim in the forest, they saw accused Lahanu Ganore coming from his

house. On being asked as to whether he had seen the victim, it is alleged

that the accused replied that he had seen the victim at about 4.00 p.m. at

Mavlyacha Kap. The complainant then proceeded to search for the victim

and found certain drag marks on the ground which he followed and he

found the victim lying on the ground and her body was covered with a

blanket. By then it was 6.30 p.m. He removed the blanket and found that

the victim was dead and her body was naked and that there were certain

ligature marks of strangulation on her neck as well as there was bleeding

from her mouth.

(iv) The accused was also present there and since there appeared to

have injury on his face which was bleeding, one Kantilal Popat Chaudhari-

PW 6 asked him as to what happened to his face and caught hold of his

hand, but the accused is alleged to have ran away by giving a jerk to his

hand. Although some persons chased the accused, they could not catch

hold of him.

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(v) It is further stated that one Jagan Tungar was sent to the village

to inform about the incident to the Police Patil and the Police Patil came

there, noted the complaint of the Complainant Devidas, took him to the

Police Station, where the complaint was lodged against the accused

narrating of the incident and alleging that it was the accused who had

committed rape on the victim and killed her with intention that she would

not tell about the incident to anybody and thereafter concealed the dead

body in the forest.

(vi) Police took various steps in the matter. After completion of

investigation, charge-sheet was submitted in the Court of Judicial

Magistrate, First Class, Dindori, and since the offence punishable under

Section 376 of the Indian Penal Code was exclusively triable by the Court of

Sessions, the learned Judicial Magistrate, First Class, Dindori, committed

the case to the Court of Sessions at Nashik for trial.

3. Charges were framed for the offences punishable under Section 376,

302 and 201 of the Indian Penal Code and under Section 3(1)(x) and 3(2)

(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)

Act, 1989 against the accused-respondent, who pleaded not guilty and

therefore, the trial was conducted.

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4. The learned Sessions Judge, Nashik, after perusing the entire

evidence, both oral and documentary, framed following points, arrived at

the following findings and stated the reasons in the impugned Judgment for

acquitting the accused-respondent.

Sr.No. POINTS FINDINGS
i) Is it proved that on 29.7.98 in between 12 No.
noon to 6.30 p.m. the accused has committed
rape on complainant’s wife -victim in the forest
land of Village Phopashi ?
Is it proved that on 29.7.98 the accused has
ii) committed murder of victim ?
iii) Is it proved that on 29.7.98 the accused has No.
caused disappearance of the evidence of the
crime committed by him with intention to
screen himself from the legal punishment ?
iv) Is it proved that the victim was the member of Yes.
Scheduled Tribe ?
v) Is it proved that the accused is not a member of Yes.
SC or ST ?
vi) Is it proved that the accused not being the No.
member of SC or ST was in a position to
dominate the victim and used that position to
exploit her sexually ?
vii) What offence, if any, committed ? No offence committed.
viii) What order ? The accused is acquitted.

5. Mrs.M.M. Deshmukh, A.P.P. for the State vehemently

contended that the learned trial Court had failed to appreciate the evidence

of PW 5-Chitrakala Mohan Raut, an eye witness whose evidence is claimed

to have been corroborated by the other prosecution witnesses. The learned

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A.P.P. contended that the reasons ascribed by the learned Sessions Judge for

disbelieving the evidence of PW 5-Chitrakala, the sole eye witness, are

wholly erroneous and not based on a proper assessment of her evidence.

6. Per contra, Mr.Prosper D’souza, Amicus curie appointed by the

Court contended that, the learned Sessions Judge was fully justified in

disbelieving the evidence of star witness viz. PW 5- Chitrakala for the

reasons noted in the Judgment and there is no ground for justifying any

interference at the present stage.

7. In the light of the aforesaid submission, it becomes necessary on

our part in the present Appeal to scan the entire evidence on record and in

particular the evidence of PW 5-Chitrakala, on whose evidence the State/

Public Prosecutor vehemently relies upon.

8. PW 5- Chitrajaka Raut claims that she had gone to the forest

land of Popashi for cutting grass. She had further deposed as follows :

” It was about 3 p.m. I was cutting the grass. I heard the cry for help, in
vernacular “DHAVADHAVA MALA VACHAVA”. It was the voice of victim. I went towards
that, by cutting a distance of about 15 feet (Kasarbhar Antar). I saw the accused Lahanu
Hitting a stick on victim’s head. He then throttled her and committed rape on her. The
accused threatened me saying that if I would tell it to anybody he would do the same
thing with me. I was frightened and ran away.

On the next day I told the incident to my father Jayram Gavit. Police recorded
my statement. The accused before the court is the same Lahanu Ganore. That day the
accused had worn a banian and a pant, and his scarf was lying on the ground.

Three days thereafter the police had called me to the Central Jail at Nashik.

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The Magistrate present there asked me to identify the accused. I identified the accused
from amongst the 8 persons. The stick article no.9 before the court is the same stick,
which the accused had used for the assault.”

9. From the record of the present case, it is clear that the alleged

offence occurred on 29th July 1998 and the accused Lahanu was called to the

Police Station on 1st August 1998. Thereafter, he purportedly gave a

statement (Exhibit 20) leading to the production of a stick and gave

recovery of the stick under Panchanama (Exhibit 21). The Test

Identification Parade of the accused was held on 27 th August 1998 as stated

by PW 8-Sudhakar Shankar More.

10. The report of the Test Identification Parade is at Exhibit 24. In

paragraph 4 of the Examination-in-chief it is stated by PW 8 as follows :

“I asked him that he was at liberty to change his clothes if at all, he wanted to do so.
He refused it, but he chose to put on the footwear of a dummy person at sr. no.5.
The accused and all the dummy persons were in prisoners’ uniform.”

This statement of PW 8 Sudhakar More, as available from Test

Identification Parade Report-Exhibit 24 has also been dealt with by the

learned Sessions Judge at Paragraph 19 of the Judgment, where, he has held

that, admittedly there was an injury on the upper lip of the accused which

was visible, the Special Judicial Magistrate has not taken care to cover this

injury. The learned Sessions Judge, further held that, admittedly, the right

cheek of the accused is hollow one, but care was not taken to select the

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persons of the same physic as dummy persons which is very essential for

holding a Test Identification Parade. He, further, held that, admittedly, the

accused had nail marks on his cheek and his hair had grown grey, but care

was not taken to select the persons resembling physic of the accused as

dummy persons. The learned Sessions Judge further observed that, Mr.

More-PW 8 says that all the dummy persons had worn prisoners uniform as

they were prisoners from Central Prison. Therefore, it is not possible to

know about the clothes which the accused had worn at the time of the Test

Identification Parade. He, further held that, admittedly, at that time, the

accused was not a Prisoner, since he was an under trial prisoner; it possibly

means, that the accused must not have been in prisoners uniform and

consequently if the accused was in civil dress and the dummy persons were

in prisoners uniform, it would have been very easy for any witness to

identify such person from amongst those alleged dummy persons. .

11. In this respect, it is also essential to take note of the various

rules that the learned Magistrate must follow while holding a Test

Identification Parade. One such rule viz. 16(2) (b) of the Criminal Manual,

reads thus :

” It should be fair and seem to be fair and every precaution must be taken to
exclude any suspicion of unfairness o sr risk of erroneous identification through the
witnesses’ attention being directed specially to the suspected persons instead of equally to
all the persons to be paraded.”

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12. It clearly appears that the aforesaid process has not been strictly

complied with in the present case and it is well settled in the catena of

decisions decided by the Bombay High Court that where there has been

contravention of the guidelines laid down in the Criminal Manual, the

evidence of the Identification Parade cannot be relied upon and it must

result in giving benefit of doubt to the accused.

In the case of Mahesh Rohidas Kinalkar v. State of Goa1 it is held

thus :

” Identification completed in two phases and at both time, all dummy persons
remain the same but also they stood at the same place. Theonly change was change in the
place of the accused. Special Judicial Magistrate stated in his report that he had
questioned the identifying of the witnesses as they have seen the accused after the incident
and before the commencement of the identification parade. But he had not mentioned this
fact in the memorandum. This is in contravention of the guidelines laid down in Criminal
Manual. The impression is created after gong through the evidence that the identification
parade was deliberately organised in chaotic manner.

This has resulted in giving benefit of doubt to the accused, therefore conviction
and sentence was set aside by Single Judge of Bombay High Court.”

In the case of Arjun Ganpat Sandbhor vs. State of Maharashtra2 it is

held that,

” Dacoity committed by the Applicant and other Co-Accused in which the Truck Driver
was killed. Son of deceased is the sole eye witness. The Police had called him in the Police
Station and when the vehicle was going on, the Police showed him the Accused persons.
The said identification of the Appellant is in doldrums. There is anomaly regarding the
age of the said witness, which apparently creates suspicion. All Accused were put for
identification. In first round four Accused were paraded in identification whereas at the
2nd round four Accused and in the last round one Accused was paraded. The same is
against the Guidelines prescribed under the Criminal Manual. The conviction and
sentence quashed and set aside.”

1 2005(2) Bom.C.R. (Cri) 670
2 2012(3) Bom.C.R. 326 (Cri)(DB)

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In the case of Khemraj s/o Bhayyalal Sharmagat v. State of

Maharashtra3 it is held thus :

” Appellant allegedly assisted and facilitated main accused who had committed
sexual intercourse on prosecutrix. Version given by prosecutrix about presence and role
played by the appellant found to be inconsistent. Factum of identification of the appellant
not established. No other evidence showing presence of the appellant at the time of
occurrence of the incident. Finding recorded by the Trial Court holding the appellant
guilty, erroneous and based on no evidence. Conviction and sentence passed against the
appellant set aside.”

13. It is also relevant here to take a note of the fact that while the

occurrence is alleged to have taken place on 29 th July 1998 and the accused

was called to the Police Station on 1st August, 1998 and arrested. Nothing

has been brought on record by the prosecution to indicate the reason for

holding Test Identification Parade only on 27 th August, 1998 i.e. after a

period of 26 days. It is also well settled by the Hon’ble Apex Court that,

where there was delay in holding test identification parade after arrest of

the accused, without any explanation for causing delay, the evidence of such

test identification parade cannot be relied upon and benefit of doubt ought

to be extended to the accused. In the case of Musheer Khan vs. State of

M.P.4 it is observed thus,

“Insofar as the identification of A-5 is concerned that has taken place at a very
delayed stage, namely, his identification took place on 24-1-2001 and the incident is of
29-11-2000, even though A-5 was arrested on 22-12-2000. There is no explanation why
his identification parade was held on 24-1-2001 which is after a gap of over a month
from the date of arrest and after about 3 months from the date of the incident. No
reliance ought to have been placed by the courts below or the High Court on such delayed
TI parade for which there is no explanation by the prosecution”.

3 2004(4)Mh.L.J. 1098
4 2010(1) Bom.C.R.(Cri.)506

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14. In view of the findings recorded by us hereinabove, we are of

the considered view that no justifiable nor lawful reason subsist for

interfering with the order of acquittal passed by the learned Sessions Judge.

15. Accordingly, Criminal Appeal No.612 of 1999 stands dismissed.

(V.K.JADHAV, J) (INDRAJIT MAHANTY, J)

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