Bombay High Court
2) Mrs Kanta Sonu Pival vs The State Of Maharashtra on 30 November, 2010
Bench: A.P. Bhangale
1apeal-547-96.doc
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 547 of 1996.
(1) Mr Sonu Babu Pival, age 29 years,
occupation labour.
(2) Mrs Kanta Sonu Pival, age 25 years,
Occupation household,
both residing at New "J" type 28/16,
Rang hills Pune 411 020. .. Appellants
(Original accused).
Versus
The State of Maharashtra .. Respondent.
Mr T.D.Sathe, Advocate for the Appellants-absent.
None for the Appellants.
Shri J.P. Yagnik, Additional Public Prosecutor
for the Respondent-State.
CORAM:- A. P. BHANGALE, J.
DATE :- 30th NOVEMBER , 2010.
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ORAL JUDGMENT.:-
1. By this appeal, the appellants have challenged their conviction
under section 323 of Indian Penal Code (I.P.C.) and sentence recorded
by learned Sessions Judge, Pune on 14.8.1996 in Sessions Case No.379
of 1995 whereby learned Sessions Judge was pleased to acquit the
appellants for the offence punishable under Sections 376, 342, and 506
of I.P.C. but the appellant No.1 Sonu was convicted for offence
punishable under Section 323 of I.P.C. and sentenced to suffer R.I.for
six months and to pay fine in the sum of Rs.300/-, in default to suffer
R.I. for one month, while appellant No.1 (Kanta Sonu Pival) was found
guilty for offence punishable under Section 323 of I.P.C. but instead of
sentencing her to any punishment, she was directed to be released on
her entering into a personal bond in the sum of Rs.1,000/- without
surety and to appear and receive sentence when called upon during the
period of one year from the date of execution of personal bond.
The prosecution case, briefly stated, is as under:-
2. The appellant Sonu and Kanta are husband and wife respectively
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who resided at 28/16 at Renge Hills, Pune-20. According to the
prosecution, the appellant no.1 Sonu was unemployed, while his wife
Kanta was working in Ammunition Factory at Khadki, Pune. They were
residing with their three children. It appears from the case of the
prosecution that Sangita, prosecutrix, who was inhabitant of Bhivani in
Haryana State, was staying with appellant, as appellant No.2 Kanta is
her paternal aunt. From January, 1995, after Sangita lost her grand-
mother, Appellants had brought Sangita with them at Pune.
3. Appellant No.1 Sonu used to stay at home, since he was
unemployed. Sonu used to take indecent liberty with Sangita and had
committed rape upon her from time to time during the period of about
two months and also assaulted her. It is the case of the prosecution that
Sangita had missed her monthly menstrual period. Thereafter, Accused
No.2 Kanta, paternal aunt of the prosecutrix became suspicious about
Sangita and enquired with her. At that time Kanta herself was carrying,
therefore, Sangita did not dare to tell anything to her about what Sonu
had done with her. On one occasion, the prosecutrix was taken to Mrs
Dr Patil, who found prosecutrix carrying with two months pregnancy.
Knowing this, Accused No.2 Kanta got annoyed with prosecutrix and
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beat her after enquiry with the prosecutrix as to how she became
pregnant. Thus, the prosecutrix made disclosure to Kanta that she
became pregnant from Sonu (appellant No.1). Thereafter, prosecutrix
was not allowed to leave house and used to be assaulted. Dr. Patil had
prescribed certain capsules to Sangita which she had consumed. As a
result of which the prosecutrix had miscarriage of about 15 days prior
to 6.7.1995. Finally neighbourers came to know about the ill-treatment
meted out to the prosecutrix. She had approached neighboring woman
by name Savitribai and requested her to give some food. Savitribai
noted marks of violence on the person of the prosecutrix. Rajendra, the
elder son of Savitribai then approached a Social Worker, by name
Dinesh Metalu, who is a member of Cantonment Board. On 6.7.1995
Dinesh Metallu visited the house of Savitribai. At that time, the
prosecutrix was in the house of Savitribai. Dinesh Metalu made enquiry
with the prosecutrix and took her to Range Hills Police Chowky. P.S.I.
Jambhle attached with Khadki Police Station recorded the complaint of
prosecutrix (Exh.19) giving rise to C.R.No. 127 of 1995.
4. Investigation followed thereafter. Upon completion thereof, the
accused-appellants were charge sheeted before Judicial Magistrate,
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First Class, Khadki, Pune on 17.8.1995 who committed the case to the
Court of Sessions, Pune for trial.
5. Charge was was framed under sections 376, 342, 323 and 506
(II) of Indian Penal Code against accused No.1 Sonu, while accused
No.2 Kanta was charged for offence punishable under Section 323 of
the I.P.C. Both the appellants pleaded not guilty and claimed to be
tried.
6.
The prosecution had examined six witnesses in order to prove its
case. Learned trial Judge recorded findings in the negative regarding
charge of rape upon the prosecutrix by the appellant No.1 Sonu during
the period between April and May, 1995 as also criminal intimidation
by threatening her to kill and wrongful confinement as against him.
Learned trial Judge recorded finding that appellant Nos. 1 and 2 had
only caused simple hurt to the prosecutrix. In the result, therefore,
while the appellants were acquitted for rest of the offences with which
they were charged, convicting for the offence under section 323 of
I.P.C.only.
7. At the time of final hearing of the appeal learned counsel for the
Appellants remained absent. No arrangement has been made by the
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Appellants to engage another Advocate or counsel to argue the appeal
at final hearing. It is the duty of Advocate accepting criminal brief to
attend the case at final hearing. Negligence in this regard may amount
to professional misconduct. Relavant observation of the Supreme Court
in S. J. Chaudhary vs. State (Delhi Administration) AIR 1984 SC
618 wherein it has been observed thus :-
"The trial before the Sessions Court must proceed and
be dealt with continuously from it's inception to it's finish. It
will be in the interest of both prosecution and the defence
that the trial proceed from day to day. Sessions cases must
not be tried piecemeal. Once the trial commences, be must
except for a very pressing reason which makes an
adjournment inevitable, proceed de die in diem until the trial
is concluded".
A criminal appeal is further continuation of trial
proceedings and has same urgency to be concluded as early as possible
by same analogy. An Advocate accepting criminal appeal must attend it
at final hearing. His failure without any pressing or inevitable reason
will amount to professional misconduct or breach of his professional
duty.It is now well settled that a criminal appeal cannot be dismissed on
the ground of default in appearance. The Court has to go through the
record of the case even in the absence of the appellants or their counsel
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and decide the matter on merit. (vide ruling in Parasuram Patel and
Another Vs. State of Orissa (1994) 4 SCC 664).
8. It appears that the accused were charged in the trial court for the
offence punishable under sections 376, 342, 324, 323, 504, 506 read
with section 34 of I.P.C. Detailed charge was framed by learned
Sessions Judge, Pune at Exh.3 on 17.5.1996 and the appellants pleaded
not guilty to the said charge.
9.
In order to establish the offence with which the accused were
charged, the prosecution had led evidence of six witnesses including the
evidence of Sangita, the victim. It appears, certain documents which
were panchnamas drawn at list Exh.6 and defence was called upon to
admit or deny genuineness of the documents. According to learned
A.P.P. documents at serial Nos. 1, 2 and 4 were admitted and exhibited
which included Panchnama regarding the spot of offence .(Panchnama
at Exh.9), panchnama in respect of arrest of accused (at Exh.10) and
panchnama in respect of recovery of clothes of appellant No.1 Sonu.
Formal proof of these documents was therefore not necessary. as the
prosecution was not required to examine panch witnesses in respect of
panchnamas of which genuineness of was admitted. It is in evidence
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that PW 1 Dinesh, (member of Cantonment Board and Social Worker)
came to know on 6.7.1995 at about 10:00 a.m. that victim Sangita was
sexually molested and assaulted. Information was given by one
Rajendra (a neibourer)to him. They met Sangita who had sustained
injuries. They found that there was swelling on her hands, feet and
face of the prosecutrix was swollen and she was not in condition to
speak, as she started weeping when questioned. She deposed about ill
treatment meted out to her by appellant No.1. She also disclosed that
Appellant No.1 had committed rape upon her and Appellant No.2 had
assaulted her. In the course of his cross-examination it appears that
witness was questioned regarding the place of his residence, distance
between his residence and the house of the accused, neighbourers, etc.
and regarding omission in his statement made to the police that
Rajendra had disclosed to him that Sangita was subjected to sexual
molestation. However, he denied suggestion put up by the defence in
his cross examination about his evidence as to disclosure made by
Sangita to him about appellant No.1 committing repeated rape upon
her and the marks of assault seen on her body. PW 2 Sanjiv (Exh.13)
deposed about quarrel which occurred between appellant Nos. 1 sonu
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and 2 Kanta on 5.7.1995 at night time when Sangita came to his house
and appellant No.1 Sonu had left the house. Rajendra is another
witness who deposed about marks of assault seen on the person of
Sangita and also disclosure made by her about rape committed by
appellant No.1 upon Sangita. PW 2 was also cross-examined at length.
He denied suggestion that Sangita had not disclosed the incident of
rape to him as also about the assault committed on her. P.W 3 is panch
witness who appears to have turned hostile to the prosecution case, was
cross-examined regarding panchnama Exh.17 and Exh.17/A about the
seizure of clothes of the victim. PW 4 is victim Sangita who appears to
have deposed as to how after expiry of her grand mother, Sangita was
brought by the Appellants from her native place to Pune by the
appellants to take care of all their children and how appellant No.1
took disadvantage and used to commit rape upon her and raped her
repeatedly and also about the assault which she sustained at the hands
of the appellant by means of chappal, rolling pin, Thapi and Karchi, etc.
It is thus case of the prosecutrix that the appellants had brought her
from Bhivani (State of Haryana) after her paternal grand-mother's
death, in order to look after children of the appellants. It has come in
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th
her evidence that she has studied up to 8 standard. Although question
as to her exact age was put to her in the course of her cross-
examination, it appears that no effort was made by the learned trial
Judge to obtain and record the evidence of ossification test or any
expert about exact age of the victim when it is revealed that she was
studied only up to 8th standard. Under Section 165 of the Indian
Evidence Act one cannot forget that in order to discover truth in the
trial, trial Judge is empowered to put any question which he may put in
any form to any witness. This is in order to discover the truth in
respect of relevant facts. It must be borne in mind that a criminal trial is
a quest for truth. A criminal court to be an effective instrument in the
system of administration of criminal justice for dispensing justice
according to law, the Presiding Judge must cease to be a mute
spectator and a mere recording machine by becoming an active
participant in the trial evincing intelligence, active interest and elicit all
relevant materials facts necessary for reaching the just and correct
conclusion to find out the truth, and administer justice with fairness
and impartiality both to the parties and to the community it serves. A
Judge presides over a criminal trial not only to decide it, but to ensure
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that a guilty should not escape from clutches of law and an innocent
shall not be convicted.
10. Section 311 of the Code of Criminal Procedure enables the trial
Judge to summon any person as a witness or to examine any person in
attendance, though not summoned as a witness or recall and re-
examine any person already examined; and examine or recall and re-
examine any such person if his evidence appears it to be essential to the
just decision of the case. For the learned trial Judge to summon any
such witness who can depose about the age of the victim is always is
crucial factor in a trial for the serious offence of rape.
11. Learned A.P.P. who took me through the evidence on record
invited my attention to the evidence of the victim girl, as also the
medical evidence led in corroboration to the evidence of the prosecutrix
and submitted that there is evidence in the form of deposition of Dr
Milind Dugad (PW 5) who recorded history narrated by the prosecutrix.
His evidence also indicates on his examination of the prosecutrix, he
found that there was pallor, breasts secretions were present, and
Montgomery tubercles had developed. He found 16 injuries on the
person of prosecutrix. In his observation he found that pubic hair
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were normal, vulval edema present, hymen was torn, few tags were
seen laterally. Thus, according to learned A.P.P. , the oral evidence of
Sangita appears well corroborated by the medical evidence. It appears
that in the course of cross-examination, Advocate representing the
appellants questioned PW 5 Dr Dugad ,as to whether any rape was
committed on prosecutrix or not, It was questioned as to whether a
woman would get swelling etc. if she consumes at a time six tablets
meant for getting her menstrual period?
12. According to Dr. Dugad he had recorded history of the prosecutrix
as narrated by her. Learned trial Judge ought to have questioned PW 5
Dr Dugad, by way of court question about the contents of such history
or whether it was recorded in case papers etc. as learned trial Judge
was not expected to remain a mute spectator. The correctness of the
complaint lodged by Sangita is also deposed by the PSI Jambhele (PW
6) who investigated the crime. The learned trial Judge could have
questioned the Investigating Officer as to whether any investigation was
made to ascertain the age of victim Sangita who had admittedly studied
only up to 8th standard. In a given case provisions of Section 173 (8) of
the Cr.,P.C. does enable obtaining such further investigation if it is
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essential for just decision of the case and, therefore, further
investigation may be necessary if it is essential for just decision of the
case and, therefore, further evidence, oral or documentary, may be
permitted in order to arrive at the just conclusion. Under these
circumstances, although the State of Maharashtra has not bothered to
prefer appeal against acquittal, learned A.P.P. does submit that evidence
led on record appears to have been overlooked by the trial Judge
resulting into failure or miscarriage of justice.
13. While considering powers of the appellate court it is well
settled that the Appellate Court has full power to review, reappreciate
and reconsider the entire evidence upon which acquittal of an accused
is based. Criminal Procedure Code do not put any restriction, limitation
or condition on exercise of powers by the appellate Court. The
Appellate Court may reach to its own conclusions, both on law and
facts. It is true that presumption of innocence is strengthened by an
order of acquittal in favour of the appellant but larger interest of justice
require that learned trial Judge must consider questions of law and
facts, scrutinize the evidence carefully and apply his mind when trial is
involving a serious offence attracting heavy punishment. Marshalling
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of entire evidence by assigning cogent and adequate reasons is basic
requisite for good judgment. Ignoring or overlooking the oral evidence
or misreading the material evidence, and non performance of judicial
function with adequate vigilance expected of a learned trial judge, may
result in miscarriage of justice, and the administration of justice
becomes casualty. In the present case, in my opinion, the question
about age of the victim was necessary to be framed and decided.
Secondly, whether appellant No.1 had committed sexual intercourse
with free consent of the victim. In other words, whether consent was
or was not affected by Section 90 of the I.P.C. This vital question was
not considered.
14. In the ruling of Zahira Habibullah Sheikh and anr. vs.
State of Gujarat and others ( 2006) 3 SCC 374, the Apex court
observed thus:
"This Court has often emphasised that in a
criminal case the fate of the proceedings cannot
always be left entirely in the hands of the parties,
crime being public wrong in breach and violation
of public rights and duties, which affect the
whole community as a community and are
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harmful to the society in general. The concept of
fair trial entails familiar triangulation of interests
of the accused, the victim and the society and it is
the community that acts through the State and
prosecuting agencies. Interests of society is not to
be treated completely with disdain and as
persona non grata. Courts have always been
considered to have an over-riding duty to
maintain public confidence in the administration
of justice - often referred to as the duty to
vindicate and uphold the 'majesty of the law'.
Due administration of justice has always been
viewed as a continuous process, not confined to
determination of the particular case, protecting
its ability to function as a Court of law in the
future as in the case before it. If a criminal Court
is to be an effective instrument in dispensing
justice, the Presiding Judge must cease to be a
spectator and a mere recording machine by
becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant
materials necessary for reaching the correct
conclusion, to find out the truth, and administer
justice with fairness and impartiality both to the
parties and to the community it serves. Courts
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administering criminal justice cannot turn a blind
eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair
trial is still possible, except at the risk of
undermining the fair name and standing of the
judges as impartial and independent
adjudicators. The principles of rule of law and
due process are closely linked with human rights
protection. Such rights can be protected
effectively when a citizen has recourse to the
Courts of law. It has to be unmistakably
understood that a trial which is primarily aimed
at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all
comprehensive or exhaustive definition of the
concept of a fair trial, and it may have to be
determined in seemingly infinite variety of actual
situations with the ultimate object in mind viz.
whether something that was done or said either
before or at the trial deprived the quality of
fairness to a degree where a miscarriage of
justice has resulted. It will not be correct to say
that it is only the accused who must be fairly
dealt with. That would be turning a Nelson's eye
to the needs of the society at large and the
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victims or their family members and relatives.
Each one has an inbuilt right to be dealt with
fairly in a criminal trial. Denial of a fair trial is as
much injustice to the accused as is to the victim
and the society. Fair trial obviously would mean a
trial before an impartial Judge, a fair prosecutor
and atmosphere of judicial calm. Fair trial means
a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is
being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence
that also would not result in a fair trial. The
failure to hear material witnesses is certainly
denial of fair trial. A criminal trial is a judicial
examination of the issues in the case and its
purpose is to arrive at a judgment on an issue
as to a fact or relevant facts which may lead to
the discovery of the fact issue and obtain proof of
such facts at which the prosecution and the
accused have arrived by their pleadings; the
controlling question being the guilt or innocence
of the accused. Since the object is to mete out
justice and to convict the guilty and protect the
innocent, the trial should be a search for the
truth and not a bout over technicalities, and
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must be conducted under such rules as will
protect the innocent, and punish the guilty. The
proof of charge which has to be beyond
reasonable doubt must depend upon judicial
evaluation of the totality of the evidence, oral
and circumstantial, and not by an isolated
scrutiny."
It is further observed :-
"Failure to accord fair hearing either to the
accused or the prosecution violates even
minimum standards of due process of law. It is
inherent in the concept of due process of law that
condemnation should be rendered only after the
trial in which the hearing is a real one, not sham
or a mere farce and pretence. Since the fair
hearing requires an opportunity to preserve the
process, it may be vitiated and violated by.an
overhasty ,stage-managed, tailored and partisan
trial." (see Zahira Habibullah Sheikh and anr.
vs. State of Gujarat and others ( 2006) 3 SCC
374 )
15. In the peculiar facts and circumstances of the case, I think it
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was duty of learned trial Judge to answer the material questions as to
what was age of the prosecutrix at the time of alleged rape, whether
sexual intercourse with the prosecutrix was with her free consent; To
ascertain the truth whether the appellants had really committed
offences with which they were charged, by reappreciating the evidence
in respect of credibility of the prosecution witnesses. Thus, there are
substantial and concrete reasons for interfering with the impugned
order, it is also essential for the just decision of the case to direct the
learned trial Judge to give opportunity of hearing to the prosecution as
well as to the defence to lead additional evidence, if any. Further
investigation and/or evidence may be permitted if it is essential for
just decision of the case in view of section 173 (8) read with section
311 of Cr.P.C. for to arrive at verdict in accordance with law.
16. For the above reasons, impugned judgment and order
passed by learned Sessions Judge dated 13.8.1996 in Sessions Case No.
379/1995 is hereby set aside with following directions.
(a) Impugned Judgment and order is set aside.
The learned trial Judge is directed to give opportunity
of hearing to the prosecution, as well as defence, to
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lead additional evidence, if any, pursuant to further
investigation, if so necessary, in view of section 173
(8) of Cr.P.C. and then to decide the case afresh in
accordance with law.
(b) R and P, be sent back to the trial Court.
Bail bonds of the appellants shall stand cancelled.
(c) The appellants/accused are directed to
surrender before the trial Court and apply for fresh
bail within a period of four weeks from today.
(d) Appeal is disposed of accordingly.
A. P. BHANGALE, J.
