Bombay High Court
Devidas vs The State Of Maharashtra on 29 November, 2011
Bench: Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 289 OF 2011
Devidas s/o Ragho Koli,
age 30 years, occ. Nil,
r/o Budhgaon, Tq.Chopda,
District Jalgaon ...Appellant
ig [Orig.accused]
VERSUS
The State of Maharashtra ...Respondent
.....
Shri S.S.Jadhav, advocate for the appellant
Shri S.G.Nandedkar, A.P.P. for the respondent
.....
CORAM : SHRIHARI P. DAVARE, J.
DATED OF RESERVING JUDGMENT : 22.11.2011
DATE OF PRONOUNCING JUDGMENT : 29.11.2011
J U D G M E N T : -
1 Heard respective learned counsel for the parties.
2 This is an appeal preferred by the appellant (original
accused) challenging the conviction and sentences imposed upon
him by way of judgment and order, dated 28.4.2011.
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3 It appears that by the said judgment and order, rendered
by the learned Additional Sessions Judge, Amalner, in Sessions
Case No. 30 of 2010, the appellant has been convicted for the
offence punishable under Section 376 of the Indian Penal Code and
is sentenced to suffer R.I. for 10 years and to pay fine of Rs.5,000/-,
in default to suffer S.I. for six months; and also he is convicted for the
offence punishable under Section 324 of the Indian Penal Code and
is sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,000/-, in
default to suffer S.I. for three months; as well as he is convicted for
the offence punishable under Section 506 of the Indian Penal Code
and is sentenced to suffer R.I. for 7 years and to pay fine of Rs.
1,000/-, in default to suffer S.I. for three months; and also it is
directed that all the afore said sentences to run concurrently.
4 The factual conspectus and shorn of details of the
prosecution case are as follows :-
The prosecutrix, namely Anusayabai Shamrao Wagh,
aged about 70 years, is resident of Budhgaon, Taluka Chopda,
District Jalgaon, but contends that since her son is residing at Surat,
she resides there along with her son and his family and used to visit
Budhgaon intermittently. She has stated that the incident occurred
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on 12.5.2010 at 8.00 a.m. and she had visited Budhgaon one day
prior to the incident i.e. 11.5.2010 at about 12.00 noon. It is alleged
that on 12.5.2010 at about 8.00 a.m. she had been to Tapi river for
bath. After taking the bath, she started returning back to home at
about 10.30 a.m. However, she lost her way, which leads to the
village. At that time, she saw one person who was cutting the
branches of tree and she asked him about the way leading to the
village. Thereupon, the said person tried to press her mouth and
throat and asked her to show her ass and thereafter committed rape
upon her instead of showing the way. It is also alleged that when he
was doing so, she pleaded him for mercy by saying that he was like
her son, but he did not listen to her. Moreover, it is further alleged
that he gave blow of axe on her leg and threatened her that if she
tells the incident in village, he would kill her and thereafter fled away.
The prosecutrix gave the description of the said person.
5 It is also the case of the prosecution that while she was
returning home, at that time, PW6 Sakhubai and Kokilabai saw her
and brought her to home and thereafter took her to Government
Cottage Hospital, Chopda. The police personnel PW7 API Ramesh
Bawa, who was attached to Chougaon police station, Taluka
Chopda, recorded her statement in the said hospital, which was
treated as complaint (Exh.20).
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6 It is also the case of the prosecutrix that her nephew
Laxman Wagh and Police Patil of the village Pandit Himmat Koli
accompanied with her to the hospital before lodging the complaint.
Pursuant to the said complaint, the police personnel registered C.R.
No. 46 of 2010 under Sections 307, 376, 509 and 506 of the Indian
Penal Code. It is further the case of the prosecution that the
prosecutrix was frightened due to the afore said incident, and
therefore, she did not give the name of the accused in the complaint.
Hence, police personnel recorded her supplementary statement,
wherein she stated the name of the accused who had committed
rape upon her. The prosecutrix identified the accused as the said
person in the court.
7 It is further the case of the prosecution that PW7 API
Ramesh Bawa gave requisition to the Judicial Magistrate, First
Class, Chopda for recording statement of prosecutrix Anusayabai.
Accordingly the Judicial Magistrate, First Class, Chopda came to the
hospital and recorded the statement of the prosecutrix. Thereafter
PW7 Ramesh Bawa visited the spot of the incident and prepared the
spot panchanama (Exh.8) in presence of panchas, and seized the
blood stained soil and plain soil and pieces of broken bangles from
the spot, thereunder. He also recorded statements of witnesses.
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After returning the police station, he seized the clothes of the victim,
which were produced before him by Police Head Constable Tadvi
under seizure panchanama (Exh.13).
8 The prosecution case further recites that thereafter PW7
Ramesh Bawa sent the police personnel for the search of the
accused, and accordingly, they brought the accused to the police
station. He was sent for medical examination. Thereafter he was
arrested under the afore said crime, and his mother was intimated
accordingly. Moreover, PW7 Ramesh Bawa seized the clothes worn
by the accused under seizure panchanama (Exh.14). On 14.5.2010,
the accused made voluntary statement about the concealed axe and
shirt and same was recored under memorandum (Exh.16), and
thereafter the said blood stained axe and blood stained shirt were
seized at the instance of the accused under the discovery
panchanama (Exh.16-A).
9 It is further the case of prosecution that at the request of
PW7 Ramesh Bawa, the Medical Officer took the samples of nails
and hair of the accused and same were forwarded to the office of the
Chemical Analyser along with the covering letter Exh.30. He also
recorded the statements of Muddemal Clerk and carrier.
Accordingly, after completion of investigation, he filed the charge
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sheet against the accused before the Judicial Magistrate, First Class,
Chopda. Subsequently, chemical analysis reports, dated 6.4.2011
(Exh.25) and 11.4.2011 (Exh.31) collectively were received and
those were incorporated in the charge sheet. Since the afore said
case was exclusively triable by the Court of Sessions, learned
Judicial Magistrate, First Class, Chopda committed the said case to
the Court of Sessions, Amalner. Thereafter, the learned Additional
Sessions Judge, Amalner framed the charge (Exh.2) against the
accused for the offences punishable under Sections 376, 307 and
506 of the Indian Penal Code on 12.11.2010. The appellant/accused
pleaded not guilty to the said charges levelled against him and
claimed to be tried.
10 To substantiate the said charges levelled against the
appellant/accused, the prosecution examined as many as 7
witnesses, as mentioned below :-
PW1 Nandulal Haibatrao Salunke, panch to the spot
panchanama (Exh.8)
PW2 Anusayabai Shamrao Wagh, prosecutrix
PW3 Anil Subhash Wagh,nephew of complainant and
panch to panchanama of seizure of clothes of the
appellant/accused and complainant (Exhs.13 & 14)
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PW4 Ashok Eknath Sonwane, panch to the memorandum
panchanama (Exh.16) and discovery panchanama
(Exh. 16-A)
PW5 Dr. Pramod Raghunath Pandit,
who examined the victim and issued MLC injury
certificate (Exh.20)
PW6 Sakhubai Devidas Wagh, who saw the victim after
the incident
PW7
A.P.I. Ramesh Kashinath Bawa,
investigating officer
11 The defence of the accused is of total denial and he
contended that he has been implicated in the present case falsely
due to political rivalry, and hence, claimed to be innocent. However,
the accused neither examined himself nor examined any defence
witness to substantiate his defence.
12 After scrutinizing the oral and documentary evidence
adduced and produced by the parties, and after hearing the rival
submissions advanced by the parties, the learned Trial Court
convicted and sentenced the appellant for the offences punishable
under Sections 376, 324 and 506 of the Indian Penal Code, as
mentioned herein above, by judgment and order, dated 28.4.2011.
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13 Being aggrieved and dissatisfied by the said judgment
and order of conviction and sentence, the appellant has preferred the
present appeal and prayed for quashment thereof.
14 Before adverting to the submissions advanced by the
learned counsel for the parties, it is necessary to deal with the
material evidence adduced/produced by the prosecution and in the
said context, coming to the deposition of PW2-Anusayabai Shamrao
Wagh i.e. prosecutrix/complainant, who is of 70 years old, stated that
she is the resident of Budhgaon and her son was residing at Surat
(Gujrat) and that she used to reside with him, but a day before the
incident, she had come to Budhgaon. She stated that the incident
took place on 12.5.2010 at 8.00 a.m. when she had been to Tapi
river for bath and after taking bath when she was returning home at
about 10.30 a.m. She stated that when she was returning, she
asked the accused about the way, which leads to the village, since
she had lost the way. Thereupon, the accused raped her, though she
was telling him that he was like her son. He also gave blow of axe on
her neck and threatened her that if she told the incident in the village,
he would kill her and thereafter he fled away. She also gave the
description of the apparels worn by the accused.
15 She further stated that PW6 Sakhubai and Kokilabai saw
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her and brought her to home. Thereafter, she went to the
Government Cottage Hospital at Chopda. The police personnel
recorded her statement in the hospital as per her narration and
obtained her thumb impression thereon and same was treated as
complaint, which is marked Exh.10. She further stated that she has
not disclosed in the complaint (Exh.10) the name of the accused,
since she was frightened; whereas she stated the name of the
accused who raped upon her in the supplementary statement
recorded by the police personnel. At the time of identification of the
accused, she was looking here and there, but ultimately proceeded
towards dock and identified the accused, who was sitting therein.
She also deposed that the Judicial Magistrate, First Class recorded
her statement in the hospital as per her narration. The said
statement (Exh.11), which was having her thumb impression
thereon, was shown to her in the court. She also identified the shirt
worn by the accused (Article 4) at the time of incident, as well as she
identified the axe (Article 5) by which she was assaulted by the
accused. She also identified the clothes worn by her at the time of
incident i.e. sari (Article 6), blouse (Article 7) and undergarment
(Article 8).
16 In the cross-examination, she stated that she understands
Ahirani as well as Marathi. She also stated that PW6-Sakhubai and
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Kokila and Kalabai were present along with her when her statement
was being recorded and the said ladies were with her since
beginning till end of recording the statement. She further stated that
after the incident, she directly proceeded to the hospital. However,
she did not disclose the name of the accused to them initially, since
she was frightened. She also denied that she suffered only one injury
on her neck by assault of axe.
17 That takes me to the deposition of PW6 Sakhubai
Devidas Wagh, who saw the victim Anusayabai after the incident.
She stated that she knows PW2 Anusayabai, who is her relative and
who had visited her village Budhgaon a day prior to the incident in
the month of Marathi Aadhik. She stated that when she had gone to
answer the nature's call at about 11.00 a.m., she saw victim
Anusayabai near the house of Kokilabai and Anusayabai was
wrapped in saree at that time. However, there was blood over the
said saree and the said saree was not worn properly, and hence,
Sakhubai wore said saree properly to PW2 Anusayabai and brought
her in the house of Kokilabai. Accordingly, the doctor was called
there. However, victim Anusayabai did tell them that one person had
committed rape upon her, but did not give his name. Thereafter
they forwarded the victim Anusayabai to Chopda Cottage Hospital.
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18 During cross-examination, she denied that she herself
and Anusayabai were knowing the accused since prior to the
incident. She further stated that Anusayabai had impaired vision due
to old age and she was not able to listen properly and even she was
unable to walk on her own. She admitted that there is foot way,
which is the only way to go to Tapi river from village Budhgaon. She
further stated that police personnel recorded her statement in
Chopda Rural Hospital, wherein she stated that PW2 Anusayabai
was brought in the house of Kokilabai and could not clarify as to why
the words, "in the house of Kokilabai" are not there in the statement
recorded before police, amounting to omission in that respect.
19 She further stated in the cross-examination that Anil is her
nephew and there are two political groups in the village Budhgaon,
out of them one belongs to Shivsena party and another belongs to
Congress party. She also stated that she belongs to Shivsena party
and other people belong to Congress party.
20 That takes me to the deposition of PW1-Nandulal
Salunke, panch to spot panchanama (Exh.8) and he stated that on
12.5.2010 entire village was present near bank of Tapi river and
police personnel recorded spot panchanama (Exh.8) on the spot
where incident took place in his presence and in presence of one
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Hiraman. He also stated that at the spot of incident, they saw one
saree and pieces of broken bangles, as well as blood lying on the
ground. Moreover, the empty packets of Vimal Ghutka were also
there. He further stated that at one side there was pile of wooden
logs and police personnel prepared the panchanama of scene of
offence and handed over the saree to the complainant's nephew
Laxman Bhagwant Wagh and also seized soil mixed with blood. The
police personnel prepared the spot panchanama and panchas
including Nandulal Salunke signed thereon and obtained signature of
Hiraman thereon. The panchanama is at Exh.8. The said panch
witness identified the empty packets of Vimal Ghutka and the pieces
of broken bangles, which were marked Article 1 collectively.
Moreover, the police personnel seized the blood mixed soil and plain
soil from the spot and kept the same in two packets and obtained
signatures of panchas thereon, which are marked Article 3
collectively.
21 In the cross-examination, he stated that if noise is created
near the river, the people nearby the river can listen the same. He
also admitted that Hiraman Shirsath is in his acquaintance and on
the date of incident, PW1 Nandulal and said Hiraman Shirsath had
been at the bank of the river along with many other persons. He
further stated that the distance between Budhgaon and the town and
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the river is ½ kilometer. He further stated that Hiraman was elected
unopposed in the past from one of the wards of Budhgaon in
Grampanchayat elections and the accused is resident of the said
ward. He also stated that he knows the mother of the accused, but
does not know whether Hiraman is residing over a plot of land. As
regards the pile of woodens, he stated that it was not kept neatly and
it was scattered. He also stated that police did not search the said
wooden logs by removing it. Suggestion was put to him that police
personnel prepared the panchanama (Exh.8) in his presence and
seized Articles 1, 2 and 3 in his presence from the spot of incident,
but same was denied by him.
22 Coming to the evidence of PW4 Ashok Sonwane i.e.
panch to the memorandum panchanama Exh. 16 and discovery
panchanama Exh. 16-A, he stated that on 14.5.2010 he was called
by Chopda Rural police in the police station and panch witness
Shivaji Salunke was also present there. One Devidas Ragho Koli i.e.
accused herein was present in the police station at that time. The
said accused informed the police personnel in their presence that he
committed rape upon victim Anusayabai and thereafter assaulted her
by axe, and made voluntary statement that he was ready and willing
to show the said axe. Accordingly, memorandum panchanama
(Exh. 16) was prepared. Thereafter police personnel and panchas
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and the accused proceeded towards the village and thereafter the
accused led them to the bank of the river and further took them near
the broken trunks of the trees and pulled out the axe from scattered
pile of wooden logs. He also pulled one red coloured shirt from the
said pile of said wooden logs. Accordingly, discovery panchanama
was prepared and the said shirt and axe were seized thereunder
and signatures of panchas were obtained on the panchanama and
the packets, in which said shirt and axe were kept. He identified the
said axe (Article 5) and shirt (Article 4) in the court. In the cross-
examination, suggestion was given to him that accused has not
made any voluntary statement, but same was denied by him. He also
stated that there was a foot way leading to the spot. He further
denied the suggestion that the pile of wooden logs and the trunks of
trees were lying at such a spot which can be seen by anybody. It
was further suggested to him that the axe and the shirt were not
discovered under the memorandum panchanama and discovery
panchanama and that he had not gone at the spot of the incident
along with the accused, but same was denied by him.
23 That takes me to the testimony of PW5-Dr.Pramod Pandit,
who stated that on 12.5.2010 he was attached to Cottage Hospital,
Chopda as Medical Officer and he examined victim PW2
Anusayabai, aged 70 years. On her examination, he found CLW
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admeasuring 2 x 1 x 0.5 cm. below her right ear, as well as found
CLW admeasuring 8 x 3 x 3 cm. on her right side of neck, he also
found CLW admeasuring 5 x 2 x 2 cm. on right scapula and he
further found CLW admeasuring 1 x 0.5 x 2 cm. below chin. He
further stated that all the said CLWs were simple in nature and
caused due to hard and sharp object, within the period of 24 hours of
his examination. Accordingly, he issued MLC injury certificate on
29.5.2010, which is produced at Exh.20. He also stated that the lady
was admitted in the hospital for about 14 days. He was confronted
with the axe (Article 5) and he stated that all the four injuries can be
caused by the said axe.
24 The said deposition further discloses that on 23.6.2010
the Cottage Hospital, Chopda received letter from the Police
Inspector, Chopda Rural police station, raising a query therein,
"whether rape has been committed upon the said lady" and the office
copy of the said letter, dated 2.7.2010 is at (Exh.21).The provisional
reply was sent to the said letter to the Police Inspector, Chopda
Rural Police station as per the requisition, which is produced at Exh.
22, and vaginal swab, the nail clips and blood samples of the victim
were sent to the Chemical Analyser for examination purpose. He
further stated the reports, dated 6.4.2011 (Exh.25) and 11.4.2011
(Exh.31), in respect of blood group of the victim and blood stains on
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the axe, respectively, were received from the Chemical Analyser on
16.12.2010 and same are produced on record.
25 During cross-examination, he stated that the victim while
narrating the history to him, simply told him that she has suffered the
injuries and she has pointed out the injuries. Pertinently, no name or
description of the accused was disclosed by her. He further stated
that the victim also stated to him that rape was committed upon her.
However, the doctor stated that the injuries mentioned in Exh.20
cannot be caused by fall. Hence, suggestion was given to him that
injury nos. 1 to 4 can be caused due to fall over sharp stones, but
same was also denied by him. However, he admitted that there is no
mention as to the history in the M.L.C. Injury certificate. He also
stated that he has not mentioned in the M.L.C. Injury certificate that
while giving the history the lady stated before him that rape was
committed on her. He also denied the suggestion that the lady did
not tell him that rape was committed on her, and therefore, no such
entry was made in the M.L.C. Register as well as in the certificate
(Exh.20), but same was denied by him. It was denied by him that the
victim was not able to listen, nor she was able to see due to her old
age. He further denied that the victim was not able to walk due to her
old age. He also denied that he did not examine the lady and further
denied that he issued false M.L.C. Injury certificate (Exh.20).
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26 The prosecution also examined PW3 Anil Subhash Wagh,
who is the nephew of the complainant and in whose presence
seizure of clothes of the complainant and the accused Articles 6 to 8
collectively was effected on 12.5.2010 under Panamanians Exhs. 13
and 14, respectively. Suggestion was given to the said witness that
the panchas put their signatures on the panchanamas Exhs. 13 and
14 which were already prepared, but same was denied by him.
27 On the background of the afore said evidence, learned
counsel for the appellant submitted that the testimonies of PW2-
Anusayabai, PW2-Sakhubai and PW5-Dr. Pramod Pandit mainly
relate to the charges levelled against the appellant and canvassed
that there is material omission in the testimony of PW2-Anusayabai
and the first information report lodged by her in respect of the very
name of the accused. It is submitted that the first information report
was lodged by prosecutrix Anusayabai on 12.5.2010 at about 2.15
p.m., but the said first information report is totally silent about the
name of the accused and the contents of the first information report
refer to one person, who allegedly committed rape upon her and
assaulted her and thereafter fled away. The first information report
also states that she does not know the name of the said person, and
hence, she gave description of the clothes worn by him in the said
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complaint.
28 Moreover, it is submitted that supplementary statement of
the accused was recorded on the same day i.e. on 12.5.2010 and
although no time has been disclosed therein, the said supplementary
statement of PW2 Anusayabai discloses the name of the culprit i.e.
Devidas Ragho Koli the accused herein, who allegedly committed
rape upon her and assaulted her by axe. It is argued that although
the supplementary statement of the prosecutrix Anusayabai was
recorded on the very day i.e. 12.5.2010 after recording the complaint,
no source has been disclosed, who gave the name of the accused to
the said prosecutrix, and therefore, question arises, how the name of
the accused was reflected in the supplementary statement. It is
further argued that explanation was tried to be given in the
supplementary statement that she had narrated the description and
age of the accused at the time of lodging the complaint, but since
she was frightened due to the afore said incident and since the
accused threatened her, she did not give his name while lodging the
first information report and subsequently when her nephew and
relatives arrived, she got the courage and gave the name of the
accused. It is submitted that apart from the explanation given in the
supplementary statement, the fact remains that there is vital
omission in respect of the name of the accused in the first
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information report amounting to improvement in her testimony.
29 It is further argued that the said complaint further
discloses that the assailant tried to press the mouth and neck of the
victim when she made inquiry with him regarding the way leading to
the village and also asked her to show her ass, but the testimony of
PW2 Anusayabai is silent about the same, which simply says that on
inquiry by prosecutrix to the accused about the way leading to the
village, he raped on her, though she was telling him that he was like
her son and thereafter inflicted blow of axe on her neck, and
accordingly, there are no details of incident given in her testimony
and it is submitted that there is variance in the complaint lodged by
the complainant and in her testimony as regards occurrence of the
incident of assault and rape upon the victim.
30 The learned counsel for the appellant also canvassed that
the testimony of PW2 Anusayabai speaks about the single blow only
i.e. accused allegedly gave a blow of axe on her neck; whereas the
MLC injury certificate (Exh.20) discloses four injuries sustained by
her, which are of simple nature i.e. (1) CLW below right ear; (2)
CLW on right side of neck; and (3) CLW on right scapula; and (4)
CLW below chin. It is also canvassed that PW5 Dr.Pramod Pandit
also stated in his deposition that when he examined prosecutrix
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Anusayabai Wagh, aged 70 years, on her external examination, he
found four CLWs as mentioned herein above of simple nature, which
were caused due to hard and sharp object and the said injury must
have been caused within 24 hours, and accordingly, he gave MLC
injury certificate Exh. 20. He also stated that the said four injuries
can be caused by the said axe.
Moreover, the doctor stated in the cross-examination that
while telling the history to him, the prosecutrix told him that she
suffered the injuries and she pointed out the injuries, but name or
description of the accused was not given in the said history, and
hence, it is argued that the history given to the doctor by PW2
Anusayabai is also silent in respect of the name of the accused and
alleged rape committed by him upon her and even there is no
mention of history in the said MLC injury certificate. Accordingly, it is
canvassed that the testimony of PW2 Anusayabai on one part and
MLC injury certificate (Exh.20) on the other part give two different
versions, since PW2-Anusayabai has stated in her testimony
regarding single blow; whereas testimony of PW5-Pramod Pandit
and MLC injury certificate (Exh.20) disclose four injuries sustained by
victim Anusayabai and the said variance diminishes the credibility of
the testimony of PW2-Anusayabai.
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32 Moreover, it is also canvassed by the learned Counsel for
the appellant that the MLC injury certificate (Exh. 20) discloses about
four injuries allegedly sustained by the victim Anusayabai, but
significantly it is silent in respect of any injury on the person of the
victim relating to alleged rape upon her. Moreover, learned Counsel
for the appellant also canvassed that the discovery of the axe and
blood stained shirt, under the memorandum panchanama and
discovery of panchanama, Exhibits 16 and 16A, are also under
suspicion, since admittedly, same were recovered beneath the stack
of wooden logs in open space i.e. on the bank of river which were
accessible to public at large.
33 In the said context, it is pointed out by the learned
Counsel for the appellant, that Panch witness, PW 4, Ashok
Sonwane, has stated in his deposition that after preparation of
memorandum Exhibit 16, accused led the Panchas and Police
personnel to the bank of the river and further took to broken trunks of
trees where from he pulled out the axe from scattered stack of
wooden logs and also pulled out red colour shirt from the stack of
wooden logs, and also prepared the panchanama and seized the
said articles thereunder. Hence, it is submitted that the said recovery
of axe and shirt was made from the scattered pile of wooden logs on
the bank of river and the accused pulled out the axe and shirt
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therefrom, and therefore, same must be visible from the said stack
of logs, and further submitted that the said recovery is from the open
space accessible to public, and hence, it is doubtful.
34 Further, it is submitted that the testimony of P.W.4, Ashok
Sonwane, Panch witness, is silent in respect of packing the said shirt
(Article 4) and axe (Article 5) in packets and labeling the same with
the signature of Panchas, and also there is no whisper about the
sealing of the said packets. It is further submitted that there is no
whisper in the testimony of P.W.7, API Ramesh Bawa, that the said
seized articles were kept in proper custody till they were sent to
Chemical Analyser's office for examination purpose, and hence, it is
further submitted that the suspicion is created in respect of tampering
of the same, and hence, it is argued that the said corroborative piece
of evidence of discovery of axe and shirt cannot be tacked with the
accused, and consequently, the Chemical Analyser's report Exhibit
31, dated 11-4-2011, cannot be tacked with the appellant, in respect
of the axe and accused cannot be tacked with the alleged crime.
Admittedly, the C.A. report regarding shirt is in negative. To
substantiate the said contentions, learned Counsel for the appellant
has placed reliance on the following judicial pronouncements :
(i) The judgment of Privy Council, in the case of Pulukuri
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Kottaya and others Vs. Emperor, reported in A.I.R.(34) 1947 Privy
Council 67, wherein Privy Council has observed thus :
" It is fallacious to treat the "fact
discovered" within the section as equivalent to
the object produced. The fact discovered
embraces the place from which the object is
produced and the knowledge of the accused as
to this, and the information given, must relate
distinctly to this fact. Information as to past user,
or the past history, of the object produced is not
related to its discovery in the setting in which it is
discovered. Information supplied by a person in
custody that "I will produce a knife concealed in
the roof of my house" does not lead to the
discovery of a knife; knives were discovered
many years ago. It leads to the discovery of the
fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is
proved to have been used in the commission of
the offence, the fact discovered is very relevant.
But if to the statement the words be added "with
which I stabbed A" these words are inadmissible
since they do not relate to the discovery of the
knife in the house of the informant : 16 A.I.R.
1929 Lah. 344 (F.B.) and 19 A.I.R. 1932 Bom.
286, Approved; I.L.R. (1937) Mad. 695 : 24 A.I.R.
1937 Mad. 618 : 171 I.C. 245 (F.B.),
OVERRULED. "
(ii) The judgment of Division Bench of this Court, in the case
24 cra289.11
of Ashraf Hussain Shah Vs. State of Maharashtra, reported in 1996
CRI. L.J. 3147, wherein this Court has observed thus :
" First of all we would like to observe
that the learned trial judge was perfectly justified
in rejecting the evidence of recover of blood
stained clothes indicate that after seizure these
articles were sealed. A Division Bench of this
Court to which one of us (Vishnu Sahai, J.) was a
party in the case of Deoraj Deju Suvarna v. State
of Maharashtra, reported in 1994 Cri. L.J. 3602,
after considering a large number of authorities
has held that not only should the prosecution
adduce evidence that after seizure the articles
were sealed but should also lead link evidence to
the effect that till being sent to the Chemical
Analyst they were kept throughout in a sealed
condition. This is done to eliminate the suspicion
that blood might not have been put on the articles
subsequent to the recovery and prior to being
sent to the Chemical Analyst. "
In the said context, it is also submitted that nothing has come on
record that accused ever had any chance to conceal the said axe
and shirt below the stack of wooden logs, and therefore, the theory
advanced by the prosecution is not digestible.
35 It is further submitted that P.W.2 Anusayabai has nowhere
stated in her deposition about broken bangles, but the evidence of
25 cra289.11
P.W.1 Nandulal Salunke, Panch witness, speaks that pieces of red
colour broken bangles were found at the spot of the incident which
were seized under the panchanama Exhibit 8, and hence, it is
submitted that suspicion is created in respect of seizure of the pieces
of broken bangles at the spot under the spot panchanama.
36 It is also the argument of the learned Counsel for the
appellant, that nobody from the village was examined by the
prosecution as independent witness to substantiate the theory that
the accused returned to home without clothes. Moreover, it is further
submitted that the prosecution also failed to examine the carrier who
allegedly took the Muddemal property to Chemical Analyser's office
for examination purpose and the said vital link in the prosecution
case is missing. Hence, it is submitted that there is no cogent
evidence on record to prove and establish that the accused was the
person who used the axe at the time of occurrence of the incident
and the alleged recovery of axe appears to have been foisted upon
the accused and even the said corroborative piece of evidence of
recovery of axe cannot be construed as incriminating evidence
against the accused due to lack of sealing and due to non-production
of proper account of its custody from the time of seizure till sending it
to Chemical Analyser's office for examination purpose.
26 cra289.11
37 Accordingly, it is submitted by the learned Counsel for the
appellant, that the evidence produced by the prosecution is weak
type of evidence and there are discrepancies, infirmities and lacunae
therein, and the prosecution evidence does not inspire confidence
and does not bring the guilt at home against the accused in respect
of the alleged charges, and hence, present appeal deserves to be
allowed by quashing and setting the impugned judgment and order,
and consequently, the accused deserves to be acquitted.
38 Learned Additional Public Prosecutor, for the
respondent/State, countered the said arguments vehemently.
Learned APP submitted that the version of P.W.2 Anusayabai, that
she was assaulted by axe by the accused on her neck, has been
corroborated by the MLC injury certificate Exhibit 20 and the
evidence of P.W.5 Dr. Pramod Pandit, and the prosecution is not
expected to give explanation about the other injuries. It is also
canvassed that P.W.2 Anusayabai has categorically stated about the
assault on her by the accused wherein she has stated that the
accused gave blow of axe on her neck which has been supported by
the MLC injury certificate which discloses injury on scapula, and
hence, it amounts as incriminating evidence against the accused. It
is further canvassed that the evidence of prosecutrix P.W.2
Anusayabai inspires confidence and the same is reliable and
27 cra289.11
trustworthy, since she has categorically stated therein that she was
raped by the accused when she asked way leading to the village,
and it is submitted that, the victim Anusayabai is of 70 years old and
why she should state lie and she was admitted in the hospital for
about 14 days after occurrence of the incident which speaks for itself.
39 It is further submitted that although the victim Anusayabai
had impaired vision, she proceeded towards dock and identified the
accused in the court as the culprit. Moreover, it is submitted that the
recovery of axe and shirt were at the instance of the accused under
the memorandum and discovery panchanamas, (Exhs. 16 and 16A),
which were sent to Chemical Analyser for examination purpose, and
the C.A. report (Exh. 31), dated 11.4.2011 discloses that the said axe
bore human blood of "A" group and the C.A. report dated 6.4.2011
(Exh. 25), disclosed that the blood group of the victim Anusayabai is
also "A", and hence, it is submitted that the said corroborative piece
of evidence connects the accused with the alleged crime.
Accordingly, learned APP supported the impugned judgment and
order of conviction, and submitted that, after assessing the evidence
on record, there is no glaring mistake therein while convicting and
sentencing the accused, and hence, submitted that there is no
necessity to interfere therein in the appellate jurisdiction, and
consequently, urged that the present appeal be dismissed.
28 cra289.11
40 I have perused the oral and documentary evidence
adduced/produced by the prosecution, as well as perused the
impugned judgment and order, dated 28.4.2011 and heard the
submissions advanced by the learned counsel for the appellant and
the learned Additional Public Prosecutor for the respondent
anxiously, as well as perused the judicial pronouncements cited by
the learned counsel for the appellant carefully, and at the out set,
there is substance in the submission canvassed by the learned
counsel for the appellant that there is material omission in the
testimony of PW2-Anusayabai, the first informant, and the first
information report, dated 12.5.2010 lodged by her in respect of very
name of the accused.
41 Pertinently, the supplementary statement of the said
witness was recorded on the same day i.e. on 12.5.2010, but the
said supplementary statement of PW2 Anusayabai disclose the
name of the culprit i.e. the accused therein, who allegedly committed
rape upon her and assaulted her by axe; but significantly no source
of giving name of the accused to the said prosecutrix has been
disclosed therein, and as canvassed by the learned counsel for the
appellant, question certainly arises how the name of the accused
was reflected in the supplementary statement which was recorded on
the very day of lodging the first information report i.e. 12.5.2010 and
29 cra289.11
the prosecution has not given any explanation in that respect.
Accordingly, the fact remains that there is omission in respect of very
name of the accused in the first information report, which amounts to
improvement in the testimony of PW2 Anusayabai.
42 Moreover, as canvassed by the learned counsel for the
appellant, there are no details of the incident given in the testimony
of PW2 Anusayabai, since she simply stated therein that she asked
the accused about the way leading to the village and thereupon he
raped on her though she was telling him that he was like her son,
and thereafter he gave a blow of axe on her neck and threatened
her that if she tells the incident in the village, he would kill her and
thereafter fled away. Pertinently, the contents of the complaint
disclose that the assailant i.e. accused tried to press her mouth and
neck when she made inquiry with him regarding the way leading to
the village, he asked her to show her ass, and accordingly, there is
variance in the complaint lodged by the complainant and in her
testimony regarding occurrence of the incident of assault and rape
upon the said victim.
43 Moreover, it is also material to note that the testimony of
PW2 Anusayabai speaks about the single blow only i.e. accused
allegedly gave a blow of axe on her neck; whereas the MLC injury
30 cra289.11
certificate discloses four injuries sustained by her, which were of
simple nature, as stated therein. Moreover, the testimony of PW5
Dr.Pramod Pandit also reflects four injuries sustained by the victim
and his version is in consonance with the MLC injury certificate (Exh.
20). However, the history given by PW2 Anusayabai to PW5
Dr.Pramod Pandit is silent in respect of description of the accused
and the name of the accused and alleged rape committed by him
upon her, and consequently, there is no mention of history in the
MLC injury certificate (Exh.20), as well as deposition of PW2
Anusayabai is not in consonance with the MLC injury certificate in
respect of injuries; as well as the testimony of PW2 Anusayabai refer
to single injury inflicted upon her by the accused; whereas MLC
injury certificate discloses four injuries sustained by her, and further
the MLC injury certificate is silent in respect of any injury on the
person of victim relating to alleged rape upon her. Moreover,
although PW5 Dr.Pramod Pandit has stated in his deposition that he
examined the victim PW2 Anusayabai, his testimony is silent in
respect of any rape committed upon the said victim. Accordingly,
there is no medical evidence in respect of alleged rape committed
upon victim PW2 Anusayabai, and hence, there is solitary isolated
testimony of PW2 Anusayabai in that regard, which has not been
substantiated by any legal evidence.
31 cra289.11
44 Moreover, it is also important to note that the discovery of
the axe and the shirt under panchanamas Exhs. 16 and 16-A at the
instance of the appellant was made from the bank of the river i.e.
open space beneath the scattered stack of wooden logs, which was
accessible to public at large, and the said recovery of axe and shirt
was made by pulling it out from the scattered pile of wooden logs,
and therefore, there is substance in the submission made by the
learned counsel for the appellant that the said Articles must have
been visible in the said stack of logs, which were pulled out at the
time of recovery and seizure thereof under memorandum
panchanamas Exhs. 16 and 16-A, and consequently, there is
substance in the submission of the learned counsel for the appellant
that such recovery is doubtful. It is further material to note that
panch witness PW4 Ashok Sonwane is silent in his testimony in
respect of packing of the shirt (Article 4) and axe (Article 5) and
labeling the same under the signatures of panchas, and there is no
whisper about sealing of the said packets.
45 It is further material to note that the testimony of PW7 API
Ramesh Bawa is silent regarding the said Articles that after seizure
the axe and the shirt, the same were kept in proper custody till they
were sent to the Chemical Analyzer for examination purpose. Hence,
the submission advanced by the learned counsel for the appellant
32 cra289.11
that suspicion is created in respect of tampering of said Articles
bears substance and said corroborative piece of evidence of
discovery of the axe and the shirt cannot be tacked with the accused,
and consequently, the report of the Chemical Analyzer Exh. 31,
dated 11.4.2011 cannot be tacked with the appellant in respect of the
axe and further the accused cannot be tacked with the alleged crime,
further more particularly, in the absence of vital link of non-
examination of carrier by the prosecution, placing reliance upon the
judicial pronouncements cited by the learned counsel for the
appellant (supra). It is also material to note that nothing has come on
record that the accused ever had any opportunity to conceal the shirt
and axe below the wooden logs, and hence, there is substance in the
submission made by the learned counsel for the appellant that the
theory advanced by the prosecution is not conceivable.
46 Moreover, the testimony of PW2-Anusayabai is also silent
in respect of broken bangles, but PW1 Nandulal Salunke - panch
refers to pieces of red colour broken bangles, which were allegedly
found on the spot of the incident and which were seized under the
panchanama (Exh.8), and accordingly, the testimony of PW2
Anusayabai has not been substantiated in respect of pieces of
broken bangles and seizure thereof under the spot panchanama is
without any logical end thereto.
33 cra289.11
47 Besides, except the bare testimony of PW2 Anusayabai,
there is no cogent evidence on record to prove and establish that the
accused was the person, who allegedly used axe at the time of
occurrence of the incident, and since there is suspicion in respect of
recovery of axe under the memorandum panchanamas Exhs. 16 and
16-A, the possibility of foisting the axe upon the accused cannot be
ruled out, since the corroborative piece of evidence of recovery of
axe under the memorandum panchanamas at the instance of the
accused is under duldrums, due to lack of sealing the packets
thereof and due to non-production of proper account of its custody
from the time of seizure till sending it to the Chemical Analyser for
examination purpose.
48 In the circumstances, it is amply clear that there are vital
discrepancies, deformities and infirmities in the prosecution
evidence, and therefore, the prosecution evidence cannot be
construed as full-proof evidence to connect the accused with the
alleged crimes in respect of rape and assault upon the victim and the
alleged intimidation to her by the accused to kill her, if she disclosed
the alleged incident to anybody in the village, and the prosecution
evidence is short of the charges levelled against the
appellant/accused. Hence, I am inclined to accept the submissions
34 cra289.11
advanced by the learned counsel for the appellant, and accordingly,
present appeal succeeds, and consequently, the conviction and
sentence imposed upon the appellant shall not sustain, and
therefore, same deserves to be quashed and set aside, acquitting
the accused from the offences with which he was charged.
49 In the result, present appeal is allowed and the conviction
and sentence imposed upon the appellant (original accused) by way
of impugned judgment and order, dated 28.4.2011, stands quashed
and set aside and the accused is acquitted for the offences with
which he was charged and convicted. The accused is in custody, and
hence, he be released forthwith, if not required in any other case.
Fine amount, if any paid by the appellant, be refunded to him.
Appeal is disposed of accordingly.
(SHRIHARI P. DAVARE),
JUDGE.
dbm/cra289.11
