apeal.268.16.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.268 OF 2016
Mithun s/o Durgaprasad Barsagade,
Aged 23 years, Occupation : Cultivator,
R/o Rengegaon, Tahsil Dhanora,
District Gadchiroli. .... Appellant
-- Versus --
The State of Maharashtra,
Through Police Station Officer, Dhanora,
Tah. Dhanora, District Gadchiroli. .... Respondent
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Shri P.A. Gode, Advocate for the Appellant.
Shri R.S. Nayak, Additional Public Prosecutor for the Respondent/State.
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CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 6, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and order dated 12/02/2016 passed by the learned Special Judge, Gadchiroli in Special POCSO Case No.12/2014. By the said judgment and order, appellant-accused was convicted of the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 2 offence punishable under Section 376(2)(i) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months. Accused was also convicted under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, but no separate sentence was awarded for the same.
02] For the sake of convenience, appellant shall be referred in his original status as accused, as he was referred before the trial Court.
03] The prosecution case, which can be revealed from the charge-sheet and connecting papers thereto, may be stated, in brief, as under :
i. Complainant PW-1 Sarita Suresh Ibattiwar was resident of Rengegaon, Tahsil Dhanora, District Gadchiroli. Victim is her young daughter. Accused is resident of the same village.
ii. On 24/05/2014, there was a marriage ceremony at the house of uncle of victim. She and her cousin had ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 3 gone to fetch water at around 07:45 p.m. After some time, she had been to answer nature's call. For long she did not come back. So complainant Sarita made her search. Victim was not found.
iii. At around 09:30 p.m., mother of victim saw victim coming. Soon she reached the courtyard, victim fell down and became unconscious. She was taken to Rural Hospital, Murumgaon. From Murumgaon, she was referred to Dhanora Rural Hospital and then to General Hospital Gadchiroli. After victim regained consciousness, she disclosed the incident to her mother. She narrated that when she had been to answer nature's call, accused and his one friend suddenly came there. They gagged her mouth and closed her eyes with handkerchief. She was taken to nearby place, where accused committed forcible sexual intercourse with her. After the act was committed, with an apprehension that victim may die, cloth was removed from her mouth and accused and his friend fled away. She could anyhow manage to put on her clothes and reach the house. ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 4 iv. On 26/05/2014, incident was reported to Gadchiroli Police Station. It was then transferred to Dhanora Police Station. Crime No. 23/2014 came to be registered against the accused. S.D.P.O. Bapu Bangar [PW-6] took over investigation. He visited the place of occurrence and recorded spot panchnama. Medical papers of victim were collected. The clothes of victim and accused were seized. Their blood samples were taken. Seized articles were sent to Chemical Analyzer. During investigation, statements of witnesses were recorded. On completing investigation, charge-sheet was submitted to the Court.
04] Charge came to be framed against the accused vide Exh.5. He pleaded not guilty and claimed to be tried. His defence is of total denial and false implication. It is the defence of accused that some labourers were working on Tendu leave collection work and some of them might be responsible for the alleged sexual act. Regarding age of victim, it appears that there is no serious dispute that she was 14 years old at the relevant time.
::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 5 05] To substantiate the guilt of accused, prosecution examined in all six witnesses, including the victim and her mother PW-1 complainant-Sarita. Considering the evidence of prosecution witnesses and submissions made on behalf of the parties, trial Court came to the conclusion that offence of sexual assault has been proved against the accused and accordingly accused was convicted, as stated hereinabove in paragraph 1. Being aggrieved by the judgment and order of conviction, present appeal has been preferred by the original accused. 06] With the assistance of the learned Counsel for parties, this Court has gone through the evidence of prosecution witnesses. On meticulous evaluation of evidence of victim [PW-2], complainant-Sarita [PW-1] and Investigating Officer, S.D.P.O. Bangar [PW-6], this Court, for the below mentioned reasons, is of the view that prosecution could not prove the guilt of accused beyond reasonable doubt.
07] PW-2 victim is the star witness. She states that on the day of incident, there was a marriage at the house of her uncle Dilip. She was fetching water from the bore-well. She had stomach pain and so she went to answer nature's call. According ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 6 to prosecutrix, accused Mithun arrived there. He held her hand, took her below the bridge, unclothed himself, removed her clothes and then committed rape on her. Thereafter, he ran away. She states that anyhow she could put on her clothes and came home. Then she became unconscious. She regained consciousness in the hospital at Gadchiroli and narrated the incident to her mother.
08] PW-1 Sarita is mother of prosecutrix. She states that on the day of incident, she sent her daughter for fetching water from the house of brother of her husband. Her daughter did not return for a long. She made her search. At 09:30 p.m., her daughter returned home. The evidence of Sarita shows that her daughter was not able to control herself and she fell unconscious in the courtyard. She was taken to hospital at Murumgaon, then to Dhanora and brought to Gadchiroli. It is stated by Sarita that at around 04:00 to 04:30 a.m, her daughter regained consciousness and disclosed the incident to her. It is stated that her daughter went to answer nature's call. That time, accused Mithun and his unknown friend took her under the bridge and committed rape on her. After her daughter narrated the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 7 incident, she lodged report with the police. The said report is at Exh.10 and printed F.I.R. is at Exh.11.
09] From the F.I.R. and testimony of complainant-Sarita, it is apparent that a friend of accused had accompanied him at the time of alleged act of sexual assault and this fact was narrated by prosecutrix to her mother. In the evidence of prosecutrix, there is no whisper regarding presence of friend of the accused. She states only about presence of accused and not of his friend. 10] The next important fact which cannot be lost sight of is regarding unexplained delay in lodging F.I.R. If evidence of complainant is looked into, it appears that at around 04:00 to 04:30 a.m., on 25/05/2014, incident was disclosed to her by her daughter. Report was lodged on 26/05/2014. Medical Officer has not been examined to show that victim was unconscious and, therefore, she could not disclose the incident at the earliest possible opportunity.
11] Needless to state that in a case of sexual assault, medical evidence plays a vital role. Prosecution in it's wisdom ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 8 chose not to examine the Medical Officer. Medical certificate has been proved in the evidence of Investigating Officer PW-6 SDPO Bapu Bangar in a mechanical way. The said medical certificate is at Exh.25. The certificate shows that 'old hymen tear' was noticed by Medical Officer. No fresh injuries were found on the private part of prosecutrix. It means, medical evidence is in the negative and it does not corroborate the evidence of start witness prosecutrix [PW-2].
12] In the above background, impugned judgment and order of conviction and sentence would be unsustainable in law and appeal deserves to be allowed. Hence, the following order :
ORDER [I] Criminal Appeal No.268/2016 is allowed. [II] Impugned judgment and order dated 12/02/2016 passed by the learned Special Judge, Gadchiroli in Special POCSO Case No.12/2014 is set aside and instead accused is acquitted of the charge, for which he is charged with.
::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 ::: apeal.268.16.jud.doc 9 [III] Accused be set at liberty forthwith, if not required in any other offence.
[IV] Fine, if paid, shall be refunded to accused.
(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:34:11 :::