Bombay High Court
Tanaji Rau Mane & Anr vs State Of Maharashtra on 5 April, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 522 OF 1996
1 Tanaji Rau Mane
Age : 25 years.
2 Maruti Nivrutti Jadhav
Age : 22 years.
Both residents of Rethare,
Tal. Shahuwadi,
Dist. Kolhapur. ... Appellants.
Versus
1 The State of Maharashtra.
2 Sou Indubai w/o Ananda Patil
r/o. Rethare,Tal. Shahuwadi,
Dist. Kolhapur. ... Respondents.
---
Mr. S.V. Sadavarte, advocate for appellants.
Mr. H.J. Dedhia, APP for State.
---
CORAM : SMT.SADHANA S. JADHAV,J
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DATE : APRIL 5, 2016
JUDGMENT :
1 The appellants herein are convicted for the offence
punishable under Section 376 read with Section 34 of the Indian
Penal Code and sentenced to suffer R.I. for 10 years and to pay fine
of Rs. 5,000/- I.d. R.I. for one year, they are also convicted for the
offence punishable under Section 506 read with Section 34 of the
Indian Penal Code and sentenced to suffer R.I. for one year and to
pay fine of Rs. 500/- I.d. to suffer further R.I. for 2 months by 5 th
Additional Sessions Judge, Kolhapur in Sessions Case No. 111 of
1995. Hence, this appeal.
2 Such of the facts necessary for the decision of this appeal are
as follows :
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(i) That Superintendent of Police, Kolhapur had received an
anonymous letter. The Superintendent of Police, Kolhapur called
upon P.W. 11 Shankarrao Jadhav and directed him to record
statement of the prosecutrix. Pursuant to the said directions, PW
11 had called upon the prosecutrix P.W.1 and recorded her
statement.
(ii)
On 6th March, 1995 the statement of the prosecutrix was
recorded. She disclosed to the police that she resides with her
husband Ananda Patil and two sons namely Sandeep and Sanjay.
That they work as labourers.
(iii) That she was acquainted with six persons named in the FIR.
Tanaji used to visit her house quite often. They were also working
as labourers. Sometimes, they had to work at night also.
(iv) That a month prior to the lodging the report, she had been
for cutting sugar cane alongwith her husband at 6 a.m. At about
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8.30 a.m. she went to work at brick kiln of Balu Pawaskar. She
returned home at about 8.30 p.m.
(v) Tanaji had been to her house and had informed her that
there is work and had asked her to come alongwith him. Her
husband had asked her to go with Tanaji to see the nature of the
work.
(vi) On the way, just near her house they had met Maruti Jadhav.
She accompanied both of them. At a distance, they both had
stopped. She had enquired with Tanaji about the nature of work.
That Tanaji had gagged her mouth and thereafter, she was
ravished by both of them. At that time, other four accused had
come on the spot and she was ravished by all of them.
(vii) She had specifically stated in the FIR that all the accused had
committed rape on her. Thereafter, the accused had brought her
at her house.
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(viii) That her husband told her that he had searched for her. She
disclosed the incident to her husband. The couple was scared that
the accused would cause some danger to them. That the accused
had threatened her of dire consequences and therefore, they did
not lodge report.
(ix) On the following day, they had been to Dadu Patil and
informed him about the incident. He told him that it was a time of
election and that it would not be proper time to initiate
prosecution. Then they met Sarpanch R. B. Patil. He directed
them to approach police station and lodge report. However, she
was not keeping good health and therefore, they did not approach
police station. Similarly, she was worried that by disclosing the
incident to the police, she would be humiliated and that she had to
go to Kolhapur.
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(x) She was then summoned by the police and her statement
was recorded. On the basis of her statement, Crime No. 13 of 1995
was registered against 6 persons for offence punishable under
Section 376 read with Section 34 of the Indian Penal Code and
under Section 506 read with Section 34 of the Indian Penal Code at
Shahuwadi Police Station. After completion of investigation,
charge-sheet was filed on 31st March, 1995. The case was
committed to the court of Sessions and registered as Sessions Case
No. 111 of 1996.
3 The prosecution examined as many as 11 witnesses to bring
home the guilt of the accused.
4 P.W. 1 is the prosecutrix. She has deposed before the Court
that the incident had occurred on Sunday at night. The accused
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No.1 had called her for some work. She had proceeded with the
accused No.1. The accused No. 2 was just beside her cattle shed.
Thereafter, she has deposed about the incident in consonance with
her FIR. In her examination-in-chief, she has specifically deposed
that she had disclosed the incident before Dr. Ranga. In the cross-
examination, it is elicited that she was working as mason at the
brick kiln of Balu Pawaskar. That she has not enquired with the
accused No. 1 the nature of work for which she was being called.
The incident seems to have occurred near her cattle shed. From
there, she was taken to canal and was gang-raped by all of them.
She has admitted that there were abrasions on her back. However,
she had not shown the said injuries to Dr. Ranga. It is admitted
that there is no provisions of light at the place where the incident
had occurred. That she has not identified the accused Nos. 3 to 6
at the time of incident. She has specifically corrected herself by
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saying that she had identified the accused Nos. 1, 2 and 5 at the
time of commission of this offence and she had narrated the
names of the accused, who were present at the time of commission
of offence. That she had not disclosed about the said incident to
anybody much less to Dr. Ranga. She had been to Dr. Ranga
alongwith Balu Pawaskar. Dr. Ranga had also advised her to lodge
a report at the police station.
5 P.W. 2 Sushila Patil is the neighbour of the prosecutrix. She
was declared hostile by the prosecution.
6 P.W. 3 Balu Pawaskar is the owner of brick kiln, where the
prosecutrix was working as mason. According to him, one day she
did not attend the work and therefore, he enquired with her
husband and he has disclosed that she was not feeling well. On the
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next day, the prosecutrix had attended the work and had disclosed
to P.W. 3 that accused Nos. 1 and 3 i.e. the present appellants had
committed rape on her. She had not disclosed the names of the
other accused persons. According to P.W. 3, rest of the accused
had admitted before him that they had committed rape on the
prosecutrix. P.W. 3 had advised her not to compromise the matter.
He had taken the prosecutrix to Dr. Ranga. She was treated by Dr.
Ranga. In the cross-examination, he has admitted that he had not
produced the record to show that the prosecutrix had not attended
work on a particular day. On the day when she had disclosed the
incident, she had attended the work, but had not actually worked.
It is further elicited that the prosecutrix had disclosed the names of
accused Nos. 1 and 2 for taking her from her house. A meeting
was called in the village and it was decided that the matter should
be settled. In the said meeting, the accused had allegedly,
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voluntarily disclosed about the commission of rape. It is admitted
by P.W. 3 that this aspect was not disclosed to the police.
7 P.W. 4 Nathaji Shelke is the panch for scene of offnce
panchanama which is at Exh. 20. It appears from the record that
the incident had occurred near the canal.
8 P.W.5 Pradip Mhapsekar had acted as panch for the seizure
of clothes of the prosecutrix, which is at Exh. 22.
9 P.W.6 Gulab Sutar had acted as a panch for seizure of
chappal of the prosecutrix. She has been declared hostile by the
prosecution.
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10 P.W. 7 Namdev Yadav is also declared hostile by the
prosecution.
11 P.W. 8 Ananda Patil happens to be the husband of the
prosecutrix. In the cross-examination P.W. 8 has deposed that he
had narrated the incident before the police that Maruti had
accompanied Tanaji when Tanaji had come to call his wife. It is
the material omission that he had enquired at the house of
accused nos. 1 and 2. He had not disclosed about the incident at
night to anybody.
12 P.W. 9 Jagganath Patil is declared hostile by the prosecution.
13 P.W.10 Laxman Jadhav is the police Patil of the village
Rethare. He has deposed before the Court that after 4 to 5 days of
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the alleged incident, the prosecutrix had disclosed before him that
the accused have committed rape upon her and that she did not
wish to file any complaint. It is admitted in the cross-examination
that he has not noted down this information in his occurrence
report. He had not informed the police personnel although he was
aware that it is cognisable offence. He has also admitted that there
is dispute between him and the accused No. 1 on account of landed
property.
14 P.W.11 Shankarrao Jadhav is the investigating officer. He
has specifically deposed before the Court that the Superintendent
of Police had called upon him and directed him to record the
statement of the complainant. He had accordingly called upon the
complainant and it was treated as her complaint on the basis of
which, Crime No. 13/1995 was registered against the accused. He
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has specifically stated that Balu Pawaskar had not stated before
him that the prosecutrix disclosed to him the incident and that the
accused Nos. 1 and 2 committed rape upon her. P.W. 8 had
also not stated before him that the accused No. 2 had been to his
house alongwith the accused No. 1.
Upon perusal of the substantive evidence, learned Sessions
Judge has been pleased to acquit the accused Nos. 3 to 6 on the
ground that the said names were not disclosed to the investigating
officer either by P.W. 8 or P.W. 1. According to the learned
Sessions Judge, there was no cogent and convincing evidence
against the accused Nos. 3 to 6 and therefore, they have been
acquitted.
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16 It is a matter of record that the prosecutrix had been advised
by more than 2 to 3 persons including Dr. Ranga, Police Patil and
Balu Pawaskar that she should approach police station and lodge a
report. However, she denied to lodge the report. According to
P.W.1 and P.W. 8, they had been threatened of dire consequences
and therefore, she did not wish to initiate any proceedings.
17 That an anonymous letter was written to Superintendent of
Police and the proceedings were initiated on the basis of the
anonymous letter. It is pertinent to note that the said letter is not
placed on record. There was no enquiry about the same. The
contents of the letter have not been disclosed either by the
Investigating Officer P.W. 11 and that the prosecution has not
examined the Superintendent of Police and therefore, the first
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report disclosing cognisable offence has not been brought before
the court.
18 The prosecutrix did not wish to initiate criminal proceedings
for the reasons best known to her. The delay in lodging of FIR for
the offence punishable under section 376 of the Indian Penal Code
cannot be considered fatal to the prosecution in the process since
the victim is faced with several contingencies.
19 In the present case, the prosecutrix had specifically stated
that she would feel humiliated and therefore, she did not wish to
lodge the report. However, it prima facie appears that there has
been suppression of material facts. That the prosecution witnesses
have stated that a meeting was conducted in the village and then
there were talks of settlement between the prosecutrix and the
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accused. The learned Counsel for the appellants submits that the
settlement talks had failed and prosecutrix had lodged the
complaint.
20 In any case, lodging of report does not appear to be voluntary
gesture on the part of the prosecutrix. She had specifically
contended that all the accused had ravished. However, for want of
cogent and convincing evidence, the accused No. 3 to 6 have been
exonerated and acquitted. In a case of rape, it is not necessary
that the Court should look for any corroboration. However, the
testimony of the prosecutrix should be of a sterling nature and that
which appears to be voluntary, truthful and inspires the confidence
of the Court.
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21 In the case of Sadashiv Ramrao Hadbe v/s. State of
Maharashtra and another reported in (2006) 10 SCC 92, the
Hon'ble Apex Court had observed thus :
"It is true that in a rape case the accused could be convicted
on the sole testimony of the prosecutrix, if it is capable of
inspiring of confidence in the mind of the court. If the version
given by the prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances are highly
improbable and belie the case set up by the prosecutrix, the
court shall not act on the solitary evidence of the prosecutrix.
The courts shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case is
improbable and unlikely to happen."
22 In the case of Sudhakar & anr. V/s. State of Maharashtra,
reported in (2000) 6 SCC 671, the Hon'ble High Court had taken
into consideration the statement of the victim after she had died
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and the statement alleging an offence punishable under Section
376 of the Indian Penal Code was narrated in her alleged suicidal
note. In that case, victim had committed suicide on 22/12/1994
and she was subjected to rape on 9/7/1994. The accused were
being charged for the offence punishable under section 306 and
376(2)(g) read with Section 34 of the Indian Penal Code. That the
Court had treated the statement of the deceased as statement
under section 32 of the Indian Evidence Act. The Hon'ble Apex
Court has held that the said statement was not admissible in
evidence. It was held that -
""Circumstances of the transaction" is a phrase no doubt that
conveys some limitations. It is not as broad as the analogous
use in "circumstantial evidence" which includes evidence of
all relevant facts. It is on the other hand narrower than "res
gestae". Circumstances must have some proximate relation to
the actual occurrence:"
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The statement of the deceased was held to be inadmissible and the
accused were acquitted for want of legal evidence.
23 There are inherent omissions and contradictions. To test the
admissibility of the testimony of the prosecutrix, it is necessary that
the statement of the prosecutrix should be voluntary, truthful and
should necessaryly inspire confidence of the Court. In the present
case, it is more than clear that the statement of the prosecutrix is
not voluntary for the reasons best known to her. She did not wish
to initiate the prosecution.
24 The deposition of the prosecutrix has to be taken as a whole.
The allegation that she was ravished by all of them has not been
considered by the learned Sessions Court although she has stated
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on oath that she was raped by all of them. The learned Sessions
Court has placed implicit reliance upon the statement of P.W. 3
Balu Pawaskar and P.W. 8 i.e. husband of the victim. What is
considered by the learned Sessions Court is that she was taken
from home by the accused Nos. 1 and 2 and therefore, they are
convicted for the offence punishable under Section 376 read
section 34 of the Indian Penal Code. Learned Court has not
assigned any special reason for acquitting the accused Nos. 3 to 6.
The statement of the victim cannot be split into parts and without
assigning any justifiable reason cannot be segregated and
therefore, the accused appellants deserves to be acquitted.
25 The appeal is of the year 1996. The appeal was not taken up
for hearing for 20 years. The learned Counsel for the appellants
submits that the appellants were enlarged on bail by an order
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dated 9/9/1996 by this Court at the stage of admission itself.
Now they are senior citizen and have families of their own.
According to the learned Counsel, hearing of the appeal has not
been protracted by the accused persons. That on 14/3/2016 the
learned Counsel for the appellants has submitted that the
appellants would remain present at the time of final hearing.
Accordingly, the accused/appellants are present before the Court.
It prima facie appears that they are almost 50 years old at present.
26 Taking into consideration the facts of case, perusal of the
evidence on record and submissions advanced across the bar, the
appeal deserves to be allowed.
27 Hence, following order is passed :
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ORDER
(i) Criminal Appeal is allowed.
(ii) The conviction recorded by 5th Additional Sessions Judge,
Kolhapur vide Judgment and Order dated 26/8/1996 in Sessions
Case No. 111 of 1995 is hereby quashed and set aside.
(iii) The accused are acquitted of all the charges levelled against
them in the present case.
(iv) Their bail bonds stand cancelled.
(v) The fine amount, if any, if paid by the appellants be
refunded.
28 The Criminal Appeal stands disposed of accordingly.
(SMT. SADHANA S. JADHAV,J)
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