1 Apeal287-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.287 of 2015
...
Nagaji s/o Pundlik Jambhulkar,
Aged about 34 years,
Occupation: Service,
R/o Rajur Colliery, Wani,
Tahsil Wani, District Yavatmal,
At present Mayadevi Girls Hostel,
Bramhapuri, Tahsil Bramhapuri,
District - Chandrapur. .. APPELLANT
.. Versus ..
The State of Maharashtra,
through P.S.O., P.S. Bramhapuri,
Tahsil Bramhapuri,
District Chandrapur. .. RESPONDENT
Shri R.M. Daga, Advocate for Appellant.
Shri R.S.Nayak, A.P.P. for Respondent- State.
....
CORAM : Kum. Indira Jain, J.
DATED : November 30, 2017.
ORAL JUDGMENT
1. This appeal is directed against the judgment and order dated 10.07.2015 passed by the learned Sessions Judge, Chandrapur, in Special (Child) Case No. 21 of 2014. By the said ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 2 Apeal287-15.odt judgment and order, accused has been convicted of the offence punishable under Section 376(2)(i) of the Indian Penal Code and Section 7 read with Section 8 of the Protection of Children From Sexual Offences Act. He is sentenced as under:- Section 376 (2)(i) of the Indian Rigorous Imprisonment for 10 Penal Code (Ten) years and fine of Rs.1000/- in default rigorous imprisonment for 30 days.
Section 7 read with Section 8 Rigorous Imprisonment for 3 of the Protection of Children years and fine of Rs.1000/- in From Sexual Offences Act default rigorous imprisonment for 30 days.
Both the sentences were directed to run consecutively.
2. Prosecution case in brief is as under:- (A) Prosecutrix a girl of 13 years, was resident of Sushi (Dabgaon) in tahsil Bramhapuri district Chandrapur. She was studying in 7th standard and staying in a Hostel Mayadevi Kanya Vastigruh, Brahmapuri, from 01.07.2013. Smt. Shila Harde was a Superintendent of Hostel. Accused was a watchman attached to the said Hostel.
(B) Incident occurred during intervening night of 07.01.2014 and 08.01.2014. According to the prosecutrix on 07.01.2014 i.e. Tuesday, she went to sleep after dinner. At about 10.30 p.m. accused came to the room where prosecutrix ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 3 Apeal287-15.odt was sleeping along with the other girls. Accused called Siddhi Sunil Kamdi. As she did not wake up, he called the prosecutrix and asked her to come to the office of the Hostel to tie badges of election. Prosecutrix then went to the office room and as per the instructions of accused, tied a bundle of badges. (C) According to the prosecution accused then asked prosecutrix to wait for few minutes. He shut the door of office and committed sexual act. Prosecutrix got frightened and managed to rescue herself from the clutches of accused. She then went to her room.
(D) On 08.01.2014 at about 8 p.m. , accused entered the room where prosecutrix was sleeping and again committed sexual act as alleged by the prosecutrix. She woke up and saw the accused sitting near her. She kicked the accused and raised an alarm. Thereafter she started weeping. The other girls woke up.
(E) It is the case of the prosecution that accused asked the prosecutrix when she was weeping whether she saw any bad dream and called his wife. The wife of accused inquired from prosecutrix why was she crying. Prosecutrix informed about the incident to the girls of 10th standard and in the morning to the Superintendent of Hostel.
(F) On 09.01.2014 in the morning she had been to the
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school. She was weeping throughout. When she was asked
about the reason for weeping, she informed the Class Teacher Chhaya Mandhare, and Headmistress Prabha Madam about the incidents. She then had been to Bramhapuri Police Station and lodged report.
(G) PW11 API Sonkusare attached to Bramhapuri Police Station received the investigation. He visited the place of occurrence and recorded spot panchanama. Accused was arrested. He was sent for medical examination. The victim girl was also referred for medical examination. During investigation, clothes of the victim and the accused were seized. The information regarding Hostel, appointment of the accused and the other details came to be collected. The seized Muddemal was sent to Chemical Analyser. The statement of victim under Section 164 Cr.P.C. was recorded by the Magistrate. On completing investigation, charge sheet was submitted to the Court of Judicial Magistrate First Class, Bramhapuri, who in turn committed the case for trial to the Court of Session.
3. On committal, trial Court framed charge against the accused vide Exh.13. Accused pleaded not guilty and claimed to be tried. He raised a defence that due to election of ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 5 Apeal287-15.odt Municipal Council, Bramhapuri, a false complaint came to be lodged due to political rivalry and Management of the School implicated him in a concocted case.
4. To substantiate the guilt of accused, prosecution examined in all 13 witnesses. Accused did not examine himself on oath or any witness in support of his defence. Considering the evidence adduced by the prosecution, trial Court came to the conclusion that accused committed penetrative sexual assault and sexual act on prosecutrix and held him guilty of the offences alleged. Accused was accordingly convicted as stated in paragraph one above. Being aggrieved with the judgment and order of conviction and sentence, accused has preferred this appeal.
5. Heard Shri R.M. Daga, learned counsel for appellant and Shri R.S. Nayak, learned APP for State. Perused impugned judgment and order and the depositions of prosecution witnesses.
6. Learned counsel for appellant submitted that prosecution case is based on the sole testimony of prosecutrix. It is submitted that 10 girls used to sleep in a room in which ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 6 Apeal287-15.odt prosecutrix was sleeping. The three girls examined did not support the version of prosecutrix. Important witnesses particularly Warden of the Hostel and Maind Madam who dictated the report lodged by prosecutrix were kept away from the witness box without any reason. Learned counsel submits that in such a case, though corroboration is not necessary, in the case on hand corroboration is must considering the facts elicited in the cross-examination of prosecutrix and the defence raised by the appellant.
7. Per contra, learned APP supports the judgment and order of conviction and sentence and submits that conviction can be based in such a case on a solitary testimony of the prosecutrix.
8. On the meticulous evaluation of evidence, the only point that arises for consideration is whether conviction can be based on solitary testimony of a victim girl aged about 13 years without any corroboration and to this finding of this Court is in the negative for the following reasons.
9. Needless to state that in a case where sexual or penetrative sexual assault is alleged, testimony of the ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 7 Apeal287-15.odt prosecutrix or victim can be relied upon to base a conviction without any corroboration if the evidence of victim is otherwise found to be trustworthy, reliable and believable.
10. PW3 is a victim girl. In examination-in-chief, she supports her case to a large extent. In cross-examination, she stated that 49 students were residing in the Hostel consisting of four rooms. She used to sleep in a row in a room where 12- 13 girls were staying. She states that at the time of incident, Pallavi was sleeping to her one side and to another side Shruti was sleeping. Prosecution examined Shruti (PW4) and Pallavi (PW8). Presence of PW5 Siddhi at the relevant time in the room is also apparent from the evidence of a victim girl. Siddhi is examined as PW5. These three girls did not support the testimony of prosecutrix.
11. In her cross-examination prosecutrix admitted that after her arrival to Police Station, her father came there. It can be revealed from the facts brought in cross-examination that one Maind Madam informed about the incident to Police Station and accordingly Police reduced the report to writing. Investigating Agency cited Maind Madam as a witness but did not examine her. She was a material witness to whom incident ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 8 Apeal287-15.odt was disclosed by the prosecutrix and who was present at the time of lodging report.
12. It is apparent from the evidence that accused was a Watchman attached to the Hostel at the relevant time. The Warden of Hostel Smt. Shila Gharde, another important witness, was kept away from the witness box by the prosecution. Non-examination of witnesses Maind and Shila Gharde creates doubt about the reliability of the evidence of the prosecutrix particularly when the three girls who were sleeping with the victim at the time of incident did not support the version of prosecutrix.
13. Another draw back in the case is absence of any injury on the body of victim and the accused. In this connection, evidence of PW12 Dr. Bhagyashree is relevant. From the evidence of PW12 Medical Officer, it can be seen that immediately after the report was lodged, prosecutrix was examined by her. It is stated by the Medical Officer that she did not find any injury on the body of victim. She admits that in darkness if finger is inserted forcibly in private part, injury to labia minora and labia majora is possible. She also states that rupture of hymen in such a case is also possible. The Medical ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 ::: 9 Apeal287-15.odt Certificate (Exh.81) clearly indicates that none of such signs were found on the person of victim at the time of medical examination. The negative medical report creates a suspicion regarding the manner of incident as alleged by the victim.
14. The next significant factor which is to be noticed in the present case is regarding absence of blood and semen on the clothes of prosecutrix and the accused. The Chemical Analyser report indicates that neither blood nor semen could be detected on the clothes of the victim and the accused.
15. Another factor which needs to be considered in the case on hand relates to the conduct of accused. The victim had stated in her examination-in-chief itself that when accused saw her weeping, he called his wife and his wife had asked her whether she had any bad thought, why was she crying. If accused had committed the acts as alleged by prosecutrix, in normal course he would have fled away from the spot. The past conduct of accused clearly demonstrates his innocence.
16. The Investigating Agency has collected medical certificate of the accused in the course of investigation. It appears that certificate is issued by the competent authority. ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:27 :::
10 Apeal287-15.odt From the certificate, it can be seen that accused was suffering from loss of functional capacity and one of the witnesses PW4 Shruti admits that accused is lame by one leg. Arrest panchanama supports the same.
17. In the light of the above and on overall scrutiny of evidence, this Court finds the prosecution case overlain with mass of doubts and suspicion and holds that prosecution could not prove the guilt of accused beyond doubt. Hence the following order:-
(i) Criminal Appeal No. 287 of 2015 is allowed.
(ii) Impugned judgment and order dated 10.07.2015 passed by the learned Additional Sessions Judge, Chandrapur in Special (Child) Case No. 21 of 2014 is quashed and set aside.
(iii) Accused Nagaji Pundalik Jambhulkar is acquitted of the charges alleged.
(iv) Bail bonds of the accused stand discharged.
(v) Fine if deposited, shall be refunded to the accused.
(vi) No costs.
(Kum. Indira Jain, J. ) ...
halwai/p.s.
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