Cri. Appeal No.576.03.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.576 OF 2003
Bhaurao s/o Bhopiram Rathod,
Aged about 43 years,
Occupation-Cultivator,
R/o. Bangaon, Tahsil-Ner,
District-Yavatmal. .. APPELLANT
.. VERSUS ..
The State of Maharashtra,
through its Police Station Officer,
Police Station, Ner,
District-Yavatmal. .. RESPONDENT
..........
Shri Vipul B. Bhise, Advocate for Appellant,
Shri Shyam Bissa, APP for Respondent-State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : OCTOBER 03, 2017.
ORAL JUDGMENT This appeal takes an exception to the judgment and order dated 16.8.2003 passed by the learned Adhoc ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 2 Additional Sessions Judge, Yavatmal in Sessions Trial No.105/1999. By the said judgment and order, appellant- accused was convicted of the offences punishable under sections 451 and 354 of Indian Penal Code and sentenced as under :
Sr. Conviction Punishment
No. under
section
1. 451, IPC Rigorous imprisonment for three
months and fine of Rs.1000/- in-
default Rigorous Imprisonment
for one month.
2. 354, IPC Rigorous imprisonment for three
months and fine of Rs.1000/- in-
default Rigorous Imprisonment
for one month.
2] The prosecution case which can be disclosed from
the chargesheet and connecting papers thereto may be stated in brief as under :
(i) Complainant Bahulibai w/o Babulal Rathod is resident of Ganeshpur, Tahsil-Ner, District-
Yavatmal. On 23.2.1999 at 9.00 pm, her husband Babulal came to the house. Complainant and her husband had meals together. Thereafter, her husband went to attend 'Bhajan' in the house of Subhash Rathod. According to prosecution, accused with other persons had came to ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 3 Ganeshpur for attending the programme of 'Bhajan' at the house of Subhash Rathod.
(ii) Complainant and her son Yadav were sleeping in the house. The door was latched from outside by her husband while leaving to the house of Subhash Rathod. In the night, one person entered the house. It is stated by complainant that the person, who entered the house, committed rape on her, gagged her mouth and threatened that in case she shouts, she would be killed. Complainant any how could manage to raise alarm. On hearing shouts, her husband and other persons rushed to the spot. She narrated the incident to her husband. By that time, the person fled away from the house.
(iii) On 24.2.1999 complainant had been to Darwha Police Station and lodged report. Crime No.30/1999 came to be registered for the offence under sections 376, 451 and 506 of I.P.C. against the accused. PW-3 PI Ambadkar was on PSO duty. He referred the prosecutrix for medical examination to Cottage Hospital, Darwha. As lady Medical Officer was not available at Cottage Hospital, prosecutrix was referred to Civil Hospital, Yavatmal. She was examined by Medical Officer Dr. Khatri.
(iv) On 24.2.1999 itself Investigating Officer ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 4 visited the scene of occurrence and recorded spot panchanama in the presence of panch witnesses. At the time of recording scene of occurrence panchanama, quilt lying on the spot having semen stains came to be seized. It's separate panchanama was drawn. Statements of complainant, her husband and other witnesses were recorded.
(v) The seized property was sent to Chemical Analyser. Accused was arrested on 21.4.1999.
He was referred for medical examination. The map of spot was drawn by Tahsildar on the request of police. After completing investigation, chargesheet was submitted to the court of Judicial Magistrate, First Class, Darwha, who in turn, committed the case for trial to the Court of Sessions. 3] Charge of the alleged offence was explained to the accused vide Exh.7. He pleaded not guilty and claimed to be tried. Defence of the accused is of total denial and false implication.
4] To substantiate the guilt of accused, prosecution examined in all three witnesses viz. Complainant Baolibai, her husband Babulal and Investigating Officer PI Ambadkar. ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 5 Considering the evidence of prosecution witnesses, trial court came to the conclusion that accused was guilty of committing house trespass in order to commit the offence punishable with imprisonment and outraging the modesty of complainant. In consequence, accused was convicted and sentenced as stated herein above in paragraph 1. Being aggrieved by the judgment and order of conviction, present appeal has been preferred by the original accused. 5] Heard Shri Vipul B. Bhise, learned counsel for appellant and Shri Shyam Bissa, learned APP for respondent- State. Perused reasons recorded by the trial court. On meticulous examination of the evidence of prosecutrix, her husband and the investigating officer, this court, for the below mentioned reasons, finds that prosecution could not prove the guilt of the accused beyond reasonable doubt. 6] Needless to state that evidence of prosecutrix plays a vital role in a case where sexual assault has been alleged. PW-1 Baolibai, though in FIR stated that a person entered the house and committed rape on her, turned down in her evidence and deposed that a person, who entered the house, had not committed rape on her. Complainant stated ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 6 that the person, who entered the house, caught hold her hand. It is the case of prosecution that in an attempt to ravish the complainant, bangles in the hands of complainant had broken. Spot panchanama recorded by the investigating officer clearly negatives the theory of breaking bangles as narrated by the complainant. According to complainant, she had not seen accused Bhaurao in the house but people were saying that the person was Bhaurao. In cross- examination, she admitted that on hearing her shouts, more than 20 to 25 persons assembled on the spot. She also admits that there was no electric light and light of lamp was not available for want of kerosene oil.
7] It can be seen from the reasons recorded by the trial court that relying upon two circumstances, accused came to be convicted (i) he was seen running from the house of complainant by PW-2 Babulal and (ii) he was absconding and could be arrested after a long search by police.
8] So far as the first circumstance is concerned, evidence of PW2-Babulal needs to be scrutinized. Admittedly, he was not present in the house when the ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 7 person had entered by opening the latch from outside. Yadav, eight year old son of complainant, who was present in the house, has not been examined by the prosecution. It is stated by Babulal that he had been to the field in the night and when he came back at around 10-11.00 pm, he saw Bhaurao in his house. He states that Bhaurao had come to village for attending 'Bhajan' at the house of Subhash Rathod. He saw Bhaurao coming out of his house at the relevant time. He states that his wife told him that accused Bhaurao outraged her modesty. In the cross-examination, material contradictions have been brought in the evidence of PW-2 Babulal. He states that he had not been to the house of Subhash Rathod for 'Bhajan' on the day of incident and he did not disclose to police that he had been to the house of Subhash Rathod for attending 'Bhajan'. Another contradiction is regarding the time of his arrival at the house. Before police, he stated that he came back from the field at 9.00 pm. He denied the same during evidence and deposed that he came back at about 10-11.00 pm from the house of Subhash Rathod. The contradictions elicited in cross-examination of PW-2 Babulal and proved by investigating officer clearly indicate that Babulal is hiding the true facts and his evidence, without corroboration, ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 8 cannot be relied upon. Though, according to complainant, more than 20 to 25 persons assembled on the spot, prosecution did not chose to examine even one out of the large number of the crowd. Even otherwise, Babulal had not seen the accused outraging the modesty of complainant. Complainant had not seen the accused in the house. Thus identity of accused itself is in doubt in the present case. 9] It is also interesting to note that according to complainant, electricity was not available, light of lamp was also not available for want of kerosene and, therefore, she could not see the person who entered the house. At the same time, her husband PW-2 Babulal could see the accused running away from the house. Babulal no where states about availability of electric supply. The evidence of complainant and her husband particularly on the point of identity of accused is contradictory and it would not be safe to base a conviction on the sole circumstance as stated by PW-2 Babulal in his evidence that he saw the accused coming out of the house.
10] So far as the post conduct of accused is concerned, absolutely there is no iota of evidence to connect the ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 ::: Cri. Appeal No.576.03.odt 9 accused with the crime. Investigating Officer could not give details of search of accused made during investigation. In the absence of required evidence accused cannot be held guilty on the sole ground that he could be arrested after a long period of occurrence of incident.
11] In the light of the above and on close scrutiny of evidence, this court finds that prosecution could not establish the identity of accused beyond doubt. As such, judgment and order of conviction being unsustainable needs to be quashed and set aside. Hence, the following order :
ORDER
(i) Criminal Appeal No.576/2003 stands allowed.
(ii) Impugned judgment and order dated 16.8.2003 passed by the learned Ad-hoc Additional Sessions Judge, Yavatmal in Sessions Trial No.105/1999 is quashed and set aside.
(iii) Appellant-accused is acquitted of the offences punishable under sections 451 and 354 of Indian Penal Code.
(iv) His bail bonds shall stand cancelled forthwith.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:51 :::