Ramchandra Ganpat Atram ( In Jail) vs The State Of Maharashtra Thr. ...
2015 Latest Caselaw 137 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                     
                           CRIMINAL APPEAL No. 19 OF 2013


    Ramchandra s/o Ganpat Atram,




                                                    
    aged about 59 years, Occ.: Cultivation,
    r/o Chatgaon, Tahsil Dhanora,
    District Gadchiroli.
    (In Jail)                                            ....APPELLANT.




                                          
                              VERSUS
                               
    The State of Maharashtra,
                              
    through P.S.O. Dhanora,
    District Gadchiroli.                                  ....  RESPONDENT.


                                     ....
      


    Mrs. S.P. Kulkarni Advocate (appointed) for the appellant.
    Mr. Sanjay Doifode, Addl. Public Prosecutor, for the Respondent.
   



                                     .....


                                       CORAM :     V.M. DESHPANDE,                  J.

                                       DATED :     17.08.2015.



    ORAL JUDGMENT :

The present appeal is directed against the judgment

and order of conviction passed by the learned Sessions Judge,

Gadchiroli, in Sessions Case No. 51 of 2011 on 02.5.2012, thereby

convicting the present appellant for the offences punishable under

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Sections 376 and 506 Part II of Indian Penal Code and sentencing

him to suffer rigorous imprisonment for seven years and to pay

fine of Rs.1,000/- and also to suffer rigorous imprisonment for two

years together with rigorous imprisonment of two months in

default of fine amount.

2. The prosecution case, in nut shell, is as under :

In the month of January, 2011, Panjabrao Pardhane

(P.W.9) was in-charge P.S.O. of police station Dhanora. On

27.1.2011 Gurudeo Shedmake (P.W.2) came in the police station

and filed a written complaint. The said written complaint is at

Ex.14. Necessary entry in that behalf was taken in the station

diary. The complaint was in respect of physical atrocity on the

victim. Therefore, after taking the entry in the station diary,

Panjabrao (P.W.9) sent the victim to the hospital at Gadchiroli for

her medical examination. She was sent through a reference letter

(Ex.27). On 29.1.2011, Panjabrao (P.W.9) received the opinion of

the medical officer and thereafter a crime was registered on

30.1.2011 for the offences punishable under Sections 376 and 506

of Indian Penal Code vide Crime No. 9 of 2011. The printed first

information report is at Ex.15. On the very same day, the

appellant was arrested under arrest panchanama vide Ex.29.

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After completion of usual investigation, the Investigating Officer

filed charge-sheet before the Court of law.

The case was committed to the Court of Sessions.

After it was committed to the Court of Sessions, it was registered

as Sessions Case No. 51 of 2011.

3. The learned Sessions Judge framed a charge against

the appellant under Ex.6 for the offences punishable under

Sections 376 and 506(B) of Indian Penal Code. The appellant

denied the charge and claimed for his trial.

4. In order to bring home guilt of the appellant,

prosecution has examined in all nine witnesses. They are -

Sr.No. Name & witness No. Status of witness

1. Kailash Shiwarkar (P.W.1) Career of sample to C.A.

2. Gurudeo Shedmake (P.W.2) Lodging of F.I.R.

3. Tarabai Shedmake (P.W.3) Narrating of incident to her by victim

4. Chandrabhan (P.W.4) Witness to spot panchanama, Turned hostile

5. Prabhakar Raisidam (P.W.5) Attended the meeting called by P.W.2

6. Daulat Sidam (P.W.6) Witness to the panchanama, Turned hostile

7. Jyoti Maroti Alam (P.W.7) Victim of incident

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8. Dr.Deepchand (P.W.8) Medical Officer who examined the

prosecutrix

9. Panjabrao Pardhane (P.W.9) Investigating Officer

5. The F.I.R. (Ex.15) lodged by P.W.2 Gurudeo, a close

relative of the prosecutrix, bears the date as 26.1.2011. The date

of incident is 21.1.2011. The evidence of P.W.2 Gurudeo would

reveal that on 21.1.2011, i.e. on the date of incident, he was not

present in the village. He was at Nagpur in connection with the

examination of nurses as he was a clerk in Salve Nursing College,

Gadchiroli. Gurudeo is very specific from the witness box that he

came to the village on 27.1.2011. His evidence further discloses

that he got the information in respect of the incident from his

mother P.W.3 Tarabai. Therefore, he held a meeting and in the

said meeting of the villagers it was decided to lodge a report and

consequently a report (Ex.15) was lodged.

A close scrutiny of evidence of P.W.2 Gurudeo would

reveal that he was not having any occasion to know about the

incident prior to his reaching at the village on 27.1.2011. In the

backdrop of such prosecution evidence, the date which is

reflected in the F.I.R. as 26.1.2011 creates a doubt. Further,

Gurudeo himself destroys the prosecution evidence. In the

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examination-in-chief itself, he has stated as under :

"I drafted the report on 26.1.2011. I had given

copy of the report to Pradhan Samaj."

It is to be noted that the prosecutrix, P.W.2 Gurudeo and P.W.3

Tarabai belong to Pradhan community.

There is nothing in the prosecution case that prior to

27.1.2011 there was any occasion for P.W.2 Gurudeo to know

about the incident through his mother. In that view of the matter,

the prosecution case comes under the dark cloud of suspicion. If

Gurudeo (P.W.2) was not knowing the incident prior to 27.1.2011,

drafting of report on 26.1.2011 and handing over copy of the

same to Pradhan Samaj create a serious doubt on the prosecution

case.

6. Further, according to the prosecutrix P.W.7 Jyoti, on

the day of incident when she had been to her agricultural field,

that time the appellant came there and first requested her to

accompany him and when she refused he took her on his back

towards another field and in the said field the prosecutrix was

physically ravished. According to the evidence of the prosecutrix,

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the forcible sexual intercourse took place in the field of one

Prakash Chudari. She is very specific on that. However, the spot

panchanama, which is at Ex.32, shows that the place of

occurrence as shown to the Investigating Officer by the

prosecutrix is the agricultural field of prosecutrix herself. Further,

according to the prosecutrix herself, after the commission of rape

on her, when she came to the house she told the incident to her

aunt on the next day. ig However, there is a variance on that

aspect. Tarabai (P.W.3), who is the aunt of the prosecutrix, has

stated that the incident was narrated to her by the prosecutrix on

the very same day.

A close scrutiny of the evidence of the prosecutrix

would reveal that in the meeting which was conducted as per the

request of P.W.2 Gurudeo, the prosecutrix had told the name of

Rama Hedami in the said meeting. Though the incident has

occurred on 21.1.2011, the matter was reported to police on

27.1.2011. The delay cannot always be fatal to the prosecution, if

it is properly explained. In the present case, in my view, the delay

is not properly explained.

7. Tarabai (P.W.3) is the first person to whom the

incident was narrated by the prosecutrix. According to Tarabai,

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the incident was reported on the date of incident itself. Her

evidence would reveal that she went to village Police Patil,

however he was not present. Then he went to Sarpanch but he

did not take action. What is important to note is that Tarabai was

knowing that the matter has to be reported to the higher-ups.

Evidence of Tarabai would further reveal that her husband was

also present when the incident was told to her. The learned trial

Court recorded a finding that husband of Tarabai was ill. From the

evidence of Tarabai it is clear that her husband had suffered an

accident. However, there is nothing on record to show that her

husband was unable to move and/or his physical condition was

such that Tarabai was unable to move to the police station to

lodge the report.

8. Dr.Deepchand, who had examined the prosecutrix,

has issued the medical certificate which is at Ex.25. The medical

certificate shows no injuries on the person of the prosecutrix.

What is important to note is that the medical officer has admitted

in his evidence that if there is a rape, there must be injury to the

private part of the female. Further, according to the prosecutrix,

there was resistance on her part. However, there are no injuries

showing any such resistance. In the backdrop of such evidence,

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the suggestions given to the prosecution witnesses during their

cross-examinations assume importance. According to defence,

the appellant belong to "Gond Samaj". The prosecutrix herself

has admitted that there is a dispute between her uncle Daulat

Sidam and accused. Daulat Sidam is the president of Pradhan

community, to which the prosecutrix belongs.

9. Further,ig the age of the prosecutrix is not

conclusively proved by the prosecution. There is nothing available

on record to establish the date of birth of the prosecutrix. It is not

the case of the prosecution that the prosecutrix had at no point of

time attended the school. On the contrary, there is sufficient

evidence available on record that she had attended the school. In

that view of the matter, the best possible evidence in respect of

age of prosecutrix has not come on record.

10. The evaluation of the aforesaid evidence leads me to

hold that false implication of present appellant is not completely

ruled out and, therefore, the appellant is entitled for the benefit of

doubt. The appellant is in jail since 30.1.2011. That leads me to

pass the following order.

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11. Appeal is allowed. Judgment and order of conviction

passed by the learned Sessions Judge, Gadchiroli, on 02.5.2012 in

Sessions Case No. 51 of 2011 are hereby quashed and set aside.

The appellant is acquitted of the offences with which he was

charged. He be set at liberty forthwith, if not required in any other

case.

Mrs. S.P. Kulkarni, learned counsel, appointed to

defend the appellant is entitled to receive Rs.5,000/- as her fees.

JUDGE

/TA/