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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 455 OF 2014
Prakash s/o Shalikram Lokhande,
Occupation - Labour,
R/o Alesur, Tahsil - Tumsar,
District - Bhandara. .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Bhandara. .... RESPONDENT
______________________________________________________________
Shri V.D. Muley, Advocate for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 8 DECEMBER, 2017.
th ORAL JUDGMENT :
Exception is taken to the judgment and order dated 04-8-2014 in Sessions Trial 66/2012 delivered by the learned Sessions Judge, Bhandara, by and under which the appellant is convicted for offence punishable under Section 457 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for five ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 ::: 2 apeal455.14 years and to payment of fine of Rs.2,000/- and is further convicted for offence punishable under Section 376 of the IPC and is sentenced to suffer rigorous imprisonment for a period of seven years and to payment of fine of Rs.3,000/-.
2. Heard Shri V.D. Muley, learned Advocate for the appellant-accused and Shri P.S. Tembhare, learned Additional Public Prosecutor for the respondent.
3. The genesis of the prosecution lies in oral report lodged by the prosecutrix Pramila Maroti Lokhande on 10-6-2012, the gist of which is that she and her husband are employees of one Deepak Chaddha and work and reside in the garden owned by the said Deepak Chaddha. The husband and son of the prosecutrix had gone to Nagpur to attend the marriage and she was alone in the house. The prosecutrix awoke at 3-30 a.m. in the morning of 10-6-2012, opened the door and went outside in the courtyard to answer nature's call. While returning, a person embraced her from behind, pressed her breasts and lifted and carried her inside the room. The room was illuminated and she noticed that the perpetrator was the cousin brother of her husband Prakash. The prosecutrix was forcibly brought down on ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 ::: 3 apeal455.14 the floor, she shouted and the accused gagged her mouth, removed her knicker, undressed himself and forcibly ravished the prosecutrix. The accused after sexually assaulting the prosecutrix, made himself comfortable on the cot. The prosecutrix wore her clothes, went out of the house in the courtyard and used her mobile to call her husband to narrate the incident. The prosecutrix suffered injuries and scratches on the breasts due to nails, is the statement in the oral report. The said oral report was reduced to writing (Exhibit 22) and the printed first information report is Exhibit 23. On the basis of the said police report, offences under Sections 376 and 452 of the Indian Penal Code were registered against the accused. The culmination of investigation led to submission of the charge-sheet in the Court of Judicial Magistrate First Class, Bhandara, who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exhibit 15) under Sections 457 and 376 of the IPC. The accused abjured guilt and the defence is of total denial and false implication.
4. Before I venture to discuss the evidence on record, few glaring features of the prosecution case must be noticed. Neither the oral report nor the printed first information report (Exhibit 23) reveal the time of lodging the report. The printed first information report ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 ::: 4 apeal455.14 reveals that the General Diary Reference Entry is recorded at 1-55 p.m. The arrest panchanama Exhibit 45 records that the accused was arrested at 6-05 p.m. on 10-6-2012 and the place of arrest is shown as Police Station Bhandara. These aspects assumed some significance since, in the deposition, the prosecutrix who is examined as P.W.1, has come out with a version that after she was subjected to forcible sexual intercourse, she came outside the house and closed the door from outside and narrated the incident to her employer Deepak Chaddha who had arrived in the garden in a car. The prosecutrix has deposed that she informed her husband about the incident by using the mobile phone of her employer Deepak Chaddha. The version of the prosecutrix is that she lodged the report and the police arrived at the scene of occurrence between 10-30 to 11-00 a.m., opened the door of the house and took the accused in custody.
5. Pertinently, neither the employer Deepak Chaddha nor the husband of the prosecutrix, though cited as witnesses, were examined during the course of trial. The prosecution indeed has the exclusive prerogative to decide whom to examine as witness. It is trite law, that evidence is to be weighed and not counted, which is also the juristic philosophy underlying Section 134 of the Indian Evidence Act. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 :::
5 apeal455.14 However, if witnesses, who ought to have been examined to unfold the prosecution narrative and to corroborate the evidence of the prosecutrix are not examined and no explanation is forthcoming, the Court would be justified in drawing an appropriate inference.
6. Be it noted, that the evidence of the prosecutrix is not consistent with the oral report. The report states that the prosecutrix came out of the house and used her mobile to call her husband. The oral report does not even whisper that the prosecutrix came out, her employer Deepak Chaddha had arrived in a car, the prosecutrix borrowed his phone and called her husband to narrate the incident. More importantly, the report does not recite that the prosecutrix locked the door from outside and the accused was taken into custody by the police who unlocked the door.
7. It is elicited in the cross-examination of the prosecutrix P.W.1 that her statements were recorded on 15-6-2012 and 25-8-2012. The version that the prosecutrix closed the door from outside, that she narrated the incident to Deepak Chaddha and that she used the mobile phone of Deepak Chaddha to call her husband, is a proved omission. Dhanraj Waghmare who is examined as P.W.2 to prove that he was a ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 ::: 6 apeal455.14 witness to the police arriving at the scene of occurrence, unlocking the door of the house of the prosecutrix and taking into custody a person, did not support the prosecution. The prosecution sought permission to put questions in the nature of cross-examination, which permission was granted in exercise of power under Section 154 of the Indian Evidence Act, however, nothing is elicited in the cross-examination to assist the prosecution. The attention of the witness was invited to portion "A" of the statement recorded under Section 161 of the Criminal Procedure Code, which the witness denied having stated to the police. Bharat Wadhavan, who is examined as P.W.3 to prove the spot panchanama Exhibit 29 and seizure panchanamas Exhibit 30 and Exhibit 31, states that he is not in a position to identify the mobile phone. The seizure of the mobile phone, is of little significance since the mobile phone which is seized from the house is not proved to be owned by the accused or otherwise to be in possession of the accused. The medical evidence is inconsistent with the version of the prosecutrix that she was subjected to forcible sexual intercourse. C.A. Reports Exhibit 10 and Exhibit 11 do not evidence sexual assault, is the deposition of P.W.4 Dr. Chanchal Khobragade. However, C.A. Report Exhibit 12 states that human semen stains were found on the petticoat and the middle portion of the knicker of the prosecutrix. The clothes were seized from the prosecutrix ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 ::: 7 apeal455.14 at 10-00 p.m. on 10-6-2012 and were forwarded to the Chemical Analyzer on 26-6-2012. Apart from the fact that the prosecution has not shown that the clothes were sealed and between the seizure on 10-6-2012 and 26-6-2012 the possibility of tampering is excluded, the blood group is not identified and in any event, the production of the said clothes by the prosecutrix who is a married woman, is not sufficient to connect the accused with the sexual intercourse, if any. Pertinently, Exhibit 10 and Exhibit 11 are the samples of the pubic hair and the vaginal swab respectively and no semen is detected.
8. The Investigating Officer Vijay Chavan, who is examined as P.W.5, has deposed that he alongwith Head Constable Wankhede and prosecutrix went to the house of the prosecutrix, the house was locked from outside, the prosecutrix handed over key of the lock which was then opened and the accused was found inside the house. P.W.5 Investigating Officer states that the accused was apprehended and brought to the police station. The evidence of P.W.5 is not at all confidence inspiring. No contemporaneous record is produced to prove that P.W.5 and a constable opened the lock and apprehended the accused who was inside the house of the prosecutrix. The arrest panchanama records that the accused was arrested at 6-05 p.m. at the ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 ::: 8 apeal455.14 police station. I have already noted that the evidence of the prosecutrix that she came out of the house and locked the door from outside is a proved omission. The failure of the prosecution to examine the husband of the prosecutrix and Deepak Chaddha coupled with the fact that P.W.2 Dhanraj did not support the prosecution, renders the version of the prosecutrix that the accused was inside the house and she locked the door from outside, extremely doubtful. That apart the evidence of the prosecutrix that she was subjected to forcible sexual intercourse by the accused who after completing the act made himself comfortable on the cot and the prosecutrix wore her clothes and walked out and locked the door, is inherently incredible. Although it is well settled that conviction can be based on the sole testimony of the prosecutrix, I do not find the testimony either reliable or trustworthy or confidence inspiring.
9. On a holistic appreciation of evidence on record, in my opinion, the prosecution has miserably failed to prove, muchless prove beyond reasonable doubt, that the accused subjected the prosecutrix to forcible sexual intercourse. The judgment and order impugned is not sustainable and is set aside. The accused is acquitted of the offences punishable under Sections 457 and 376 of the Indian Penal Code. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 :::
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10. In order to keep the record straight, the learned Advocate for the accused Shri V.D. Muley produced on record copy of complaint instituted by the prosecutrix Pramila under the provisions of the Protection of Women from Domestic Violence Act, 2005. The proceedings appear to have been instituted by the prosecutrix against the accused and his parents and the gist of the complaint is that post conviction the accused and the prosecutrix entered into a matrimonial alliance on 12-2-2014. It is not necessary for me to take note muchless discuss in any detail the contents of the said complaint, which is brought to my notice presumably to suggest that the fact that the prosecutrix married the accused would render the version of forcible sexual intercourse suspect. Assuming that the prosecutrix did marry the accused despite the conviction the same, is of no significance in law. Whether or not the prosecutrix was subjected to forcible sexual intercourse by the accused, is to be decided on the basis of the evidence available on the record of the trial Court.
11. The bail bond of the accused shall stand discharged and fine paid by the accused, if any, shall be refunded to the accused. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:22:10 :::
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The appeal is allowed in the above terms.
JUDGE
adgokar
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