The State Of Maharashtra vs Shantaram @ Baban B. Dhanawade
2016 Latest Caselaw 1795 Bom

                                                                               apeal900-98

    sas
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                             CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NO.900 OF 1998




                                                         
          State of Maharashtra                                         ..Appellant.
                       V/s.
          Shantaram @ Baban Bagadu Dhanawade,




                                                        
          Age: 35 years, R/o. Karanje, Taluka Jaoli,
          District Satara.                                             ..Respondent.

          Mrs.M.M.Deshmukh, APP for appellant-State.




                                            
          None for the respondent.
                                     ig   CORAM :       A.M.BADAR, J.

                                          DATED     :   25TH APRIL, 2016
                                   
          P.C.:-

1. By this appeal, the appellant-State is challenging

the judgment and order dated 16th May 1998 passed by the

learned IV Additional Sessions Judge, Satara in Criminal

Appeal No.18/1998 thereby reversing the judgment and order

dated 20th March, 1998 passed by the learned J.M.F.C., Satara,

Deputation Court, Medha in Regular Criminal Case No.26/1997

convicting the respondent / accused for offences punishable

under section 457 and 354 of the Indian Penal Code, 1860.

2. Brief facts leading to the institution of the present

appeal are thus :-

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(a) According to the prosecution case, the respondent /

accused and informant Lata Dhanawade are residents of

village Karanaje, Taluka Jaoli, District Satara. On 28 th August,

1997, according to the prosecution case at about 3.00 a.m.

the respondent / accused entered the house of informant Lata

by committing lurking house trespass in order to commit an

offence and thereafter, outraged her modesty by using

criminal force. The report of this incident came to be lodged

by the informant on the very next date i.e. 29 th August, 1997

with the Police Station, Medha which has resulted in

registration of the offences punishable under section 457 and

354 of the Indian Penal Code against the respondent /

accused. Informant Lata was sent for medical examination.

Investigating Officer Subhash Namdeo Pawar, Police Head

Constable, then visited the spot and recorded the spot

panchanama. He recorded the statements of witnesses and

on completion of routine investigation, the accused was

charge-sheeted for offences punishable under section 457 and

354 of the Indian Penal Code.

(b) The learned J.M.F.C. framed and explained the

charge for the offences punishable under section 457 and 354

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of the Indian Penal Code to the respondent / accused, who

pleaded not guilty. In support of the charge, the prosecution

has examined in all 7 witnesses. Informant Lata Vitthal

Dhanawade came to be examined as PW1 at Exhibit-10.

Report lodged by her is at Exhibit-11. Her neighbourer and

alleged eye witness Subhash Shankar Dhanawade was

examined as PW2 at Exhibit-14. Panch witness Dagdu Laxman

Bhilare came to be examined as PW3 at Exhibit-15. The spot

panchanama is at Exhibit-16. Laxmi Jagannath Dhanawade,

the mother-in-law of the informant is examined as PW4 at

Exhibit-17. Another witness Dnyaneshwar Kondiba Dhanawade

came to be examined at PW5 at Exhibit-18. Medical Officer Dr.

Ravinder Digamber Kulkarni was examined as PW6 at Exhibit-

22 and certificate issued by him is at Exhibit-23.

Investigating Officer Subhash Namdeo Pawar was examined

as PW7 at Exhibit-24. After hearing the parties, the learned

IIIrd Joint J.M.F.C., Deputation Court, Medha was pleased to

convict the respondent / accused for offences punishable

under section 457 and 354 of the Indian Penal Code and he

was sentenced to suffer R.I. for two months and to pay a fine

of Rs.2,000/- in default to suffer S.I. for one month. For offence

punishable under section 354 of the Indian Penal Code, he

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was sentenced to suffer R.I. for two months and to pay a fine

of Rs.2,000/- in default to suffer S.I. for one month. Both the

sentences were to run concurrently.

(c) Being dissatisfied by the said judgment and order

of convicting him for offences punishable under section 457

and 354 of the Indian Penal Code, the respondent / accused

carried the said judgment and order in appeal before the

learned Sessions Judge, Satara. After hearing the parties, by

the impugned judgment and order dated 16 th May, 1998, the

learned IV Additional Sessions Judge, Satara was pleased to

allow the said Criminal Appeal No.18/1998 and by granting

benefit of doubt to the respondent / accused, he was

acquitted of the offence punishable under section 457 and

354 of the Indian Penal Code. Feeling aggrieved by this

Appellate Court Judgment of acquittal, the State has come in

appeal before this Court.

3. Heard the learned Additional Public Prosecutor

appearing for the State at length. Perused the record and

proceedings. I have carefully gone through the entire evidence

adduced by the prosecution on record.

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4. According to the learned Additional Public

Prosecutor, the prosecution has adduced clinching evidence in

order to bring home the guilt to the accused for the offences

levelled against him. The learned Additional Public Prosecutor

pointed out that there is no reason to disbelieve the ocular

version of the victim of the crime and her evidence is well

corroborated by eye witnesses to the incident in question,

including PW2 ig Subhash, PW4 Laxmibai and PW5

Dnyaneshwar. The learned Additional Public Prosecutor

vehemently argued that evidence of the informant is

corroborated by the medical evidence on record coming from

the mouth of PW6 Dr. Ravindra Kulkarni. Hence, according to

the learned prosecutor by quashing and setting aside the

impugned judgment and order, the respondent / accused

needs to be convicted for the offences alleged against him.

5. Despite service, the respondent / accused is absent

and considering the evidence on record, as this Court is of the

opinion that there is no reason not to accept the Appellate

Court's judgment, the appeal is being decided in the absence

of the respondent / accused.

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6. It is well settled that order of acquittal need not be

ordinarily interfered with because presumption of innocence of

the accused is further strengthened by his acquittal.

Similarly, it is well settled that when two views are possible on

the basis of evidence which is before the Court, the view

which is favourble to the accused needs to be adopted. The

judgment and order passed by the Criminal Courts can be

interfered with only when there are compelling and

substantial reasons. Keeping in mind these principles of

exercising the appellate jurisdiction, let us now examine

whether the view taken by the learned Additional Sessions

Judge while acquitting the respondent / accused is a probable

view based on the evidence on record.

7. According to the prosecution case, the incident of

outraging the modesty of PW1 Lata after committing lurking

house trespass by the accused happened at about 3.00a.m.

on 28th August, 1997. As per the version of PW1 Lata, the

accused is her neighbourer and she was residing in her house

along with her mother-in-law PW4 Laxmibai and her

daughters. Version of PW1 Lata further goes to show that

they all used to sleep in the second room of the house which

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is behind the padvi. Evidence of this witness goes to show

that there was door of bamboo sticks to the first room called

as padvi and then there was door of wooden planks to the

second room where the informant along with her mother-in-

law PW4 Laxmibai and her daughters used to sleep. As seen

from the evidence of PW1 Lata they used to latch the second

door i.e. door of their bedroom. Keeping in mind this situation

of the spot of incident where the incident in question had

allegedly taken place, let us examine the prosecution

evidence.

8. PW2 Subhash is a neighbour and undisputedly

close relative of informant Lata and her mother-in-law PW4

Laxmibai. His evidence reveals that he is neighbourer of

informant Lata. His house is at a distance of 5 to 7 houses

from the house of informant Lata.

9. Considering the fact that PW2 Subhash is a near

relative of the informant, his evidence needs to be scrutinized

with great care and caution. In order to test the veracity of

this witness, let us keep in mind the topography of the scene

of occurrence. Cross-examination of this witness goes to show

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that his house is located at the southern side of the house of

informant. Then to the south of his house, there is a river

where residents of the village used to go for answering the

call of nature. It is in the evidence of this witness PW2

Subhash that he got up to answer the call of nature and went

towards the house of informant PW1 Lata on hearing some

shouts. This witness deposed that he saw the accused coming

out of the house of the informant and he asked the accused to

stop but the accused ran away. PW2 Subhash then stated that

he went to the house of the informant and the informant

narrated the incident to him.

10. Learned Additional Sessions Judge disbelieved the

testimony of this witness by keeping in mind the topography

of the locality where the incident happened. The learned

Additional Sessions Judge considered this witness as a chance

witness and concluded that there was no reason for this

witness to go to the northern side of the village when the

residents of the village goes for easing to the southern side

where the river is located. The learned Additional Sessions

Judge further doubted the version of this witness as there was

no evidence on record to disclose the source of light at and

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near the place of incident. The learned Additional Sessions

Judge considered the defence of the accused that he and

Bhivram Sidhu Dhanawade, who is a relative of the alleged

victim, were on inimical terms and therefore, disbelieved the

version of this witness. The reasoning given by the learned

Additional Sessions Judge in disbelieving the version of PW2

Subhash cannot be said to be perverse or not in consonance

with the evidence on record.

11.

At this juncture, it needs to be noted that the entire

evidence on which the prosecution is resting the charges is

coming from the mouth of witnesses who are interested in the

informant. The house of PW2 Subhash is located at a distance

of 7 houses from the house of the informant. It is some what

strange to note that no other immediate neighbourer is

coming forward to depose about the alleged incident. Even

evidence of the informant does not show that she has shouted

loudly to call for help. Therefore, finding of the lower Court

regarding presence of this witness on the scene of occurrence

found to be doubtful by the learned Additional Sessions Court

cannot be faulted with.

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12. Then, there is the evidence of PW5 Dnyaneshwar

Dhanawade, another alleged eye witness. It is in his evidence

that after hearing the sounds of shouting at about 3.00 a.m.,

he rushed to the house of PW1 Lata and saw the accused

running from the said house. He further deposed that

informant Lata told him that accused caught hold of her hand.

This evidence of PW5 Dnyaneshwar is proved to be coming on

record by way of improvements over his previous statement.

These improvements are proved by the defence through the

cross-examination of the Investigating Officer PW7 Subhash

Pawar. PW5 Dnyaneshwar is also a relative of informant Lata

and if viewed from this context, improvement made by this

witness before the Court are material and going to the root of

the case. These material improvements made by this witness

makes his testimony wholly unreliable. As such, the learned

Additional Sessions Judge has rightly disbelieved this witness.

13. Let us examine the evidence of PW1 Lata. Her

version that she, along with her mother-in-law and daughters

were sleeping in the second room of the house, the accused

came and held her right hand. She claimed to have seen the

accused entering in the house because of the sound of

opening of the door. As per her version, as the accused

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caught hold of her hand, her bangles were broken causing

injury to her hand. Similar is the version of her mother-in-law

PW4 Laxmibai. She also claims to have seen the accused

while she opened the door of the second room i.e. the door of

the room where they were sleeping. As per her version, the

accused caught hold of her daughter-in-law Lata.

14. If evidence of PW1 Lata, her mother-in-law PW4

Laxmibai and PW5 Dnyaneshwar are considered, there is an

element of improbability in their version. It does not stand to

reason that respondent / accused would enter into the

bedroom of the informant, that too opening two doors and will

catch hold of the hand of the informant in presence of her

mother-in-law PW4 Laxmibai. Evidence of informant Lata goes

to show that second door of the house always used to be

closed by putting the latch. With such evidence, one fails to

understand as to how the accused would be in a position to

enter inside the house of the informant and that too for

outraging the modesty of informant in presence of her

mother-in-law. Such cannot be the natural conduct of a normal

human being and no reasons for taking this action by the

accused are coming on record. Because of such

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improbabilities, version of the informant as well as the

mother-in-law, does not pass the test which is required in the

criminal trial. The injuries on wrist of the informant are

explained by PW6 Dr. Ravindra Kulkarni and his cross-

examination shows that such injuries are possible even if the

bangles are broken during domestic work. As such no over

bearing importance can be given to the medical evidence on

record to infer guilt of the accused..

15.

For the reasons discussed above, it cannot be said

that the learned Additional Sessions Judge erred in granting

the benefit of doubt to the accused while acquitting him of the

offences punishable under section 457 and 354 of the Indian

Penal Code. There are no compelling and substantial reasons

to interfere with the impugned judgment and the order of

acquittal. The appeal is, therefore, devoid of merits and the

same is dismissed.

(A.M.BADAR, J.)