Bombay High Court

Nanasaheb Chandu Nikam vs The State Of Maharashtra on 22 August, 2016

Bench: A.I.S. Cheema

                                                                     cria373.15
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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.373 OF 2015




                                                 
     Nanasaheb Chandu Nikam
     Age-22, 
     R/o: Tokewadi,




                                         
     Tq. and Dist. Ahmednagar,
     At present Ranjani,
     Tq. Pathardi            
                                     ...APPELLANT 
                                     (Orig. Accused)
                            
            VERSUS  
                
     State of Maharashtra   
                                     ...RESPONDENT
      


                          ...
   



        Mr. Vijay Sharma, Advocate appointed for    
        Appellant.
        Mr. R.B. Bagul, A.P.P. for Respondent.       
                          ...       





                   CORAM:  A.I.S. CHEEMA, J.

DATE : 22ND AUGUST, 2016

ORAL JUDGMENT :

1. The Appellant-accused has been convicted

under Sections 307 and 376 of the Indian Penal

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Code, 1980 ("I.P.C." in brief) and for each of the

Sections he has been sentenced to suffer rigorous

imprisonment for ten years and to pay fine of

Rs.5000/- and in default to suffer further simple

imprisonment for one year. The conviction order

was passed by Additional Sessions Judge,

Ahmednagar in Sessions Case No.53 of 2010 on 24th

November, 2014. Being aggrieved, present Appeal

has been filed.

2. The case of prosecution, in short, is

that prosecutrix (hereafter referred as "victim")

is resident of village Ranjani, Tq-Pathardi, Dist-

Ahmednagar. On 13th December 2009 at about 11.00

a.m. she went for grazing cattle in the field

called as "Hamindara". Incident occurred at about

4.30 p.m. She saw a boy standing on the Bandh at

some distance holding a "Gulel" i.e. catapult, who

suddenly used the same and hit a stone to her head

and ran up to her. She tried to hit him with a

stick but he over-powered and beat her and dragged

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her to one side and forcibly committed intercourse

with her. She started shouting and hearing her

shouts, villagers came on that side and at that

time accused ran away from the spot. One Bhausaheb

Ghodke (PW-3) lifted her and carried her to the

Hospital. The Doctor informed the Police and the

Police reached the Hospital and complaint was

recorded. She reported about the incident as

above. In the F.I.R. itself she mentioned that she

knows the accused and his name is Nanasaheb Nikam

and he is from Bhill community and had come to

reside at the place of one Arjun Bhimsen Pawar as

a guest. The offence was registered on

13th December, 2009 vide Crime No.335 of 2009 at

20.05 hours at Pathardi Police Station. The

investigation was taken over by P.I. Bhagwat

Jaibhai (PW-12). He went to the spot and did

Panchnama Exhibit 37. He also seized black colour

nicker and one white colour slip having blood

stains, from the spot. He collected the blood

stain samples from the ground. The accused was

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arrested on 14th December 2009 and arrest

Panchnama Exhibit 22 was drawn. The blood stained

clothes from the person of the accused were

seized. While in the custody, the accused agreed

to produce banyan which he was wearing at the time

of incident. Consequently, in presence of Panchas,

accused gave discovery of banyan from the place of

hiding near the spot from near the canal and the

Memorandum Exhibit 32 and Panchnama Exhibit 33

came to be prepared. The Police had got victim

medically examined on 13th December 2009 and

collected medical certificate. When the accused

was arrested, he was also referred to the doctor

for medical examination and certificate was

collected. The gown of the victim which she was

wearing at the time of incident also came to be

seized. On 15th December 2009 the accused agreed

to give discovery of the catapult. In presence of

Panchas, Memorandum Exhibit 68 was recorded and

catapult came to be seized hanging from the log in

his house vide Panchnama Exhibit 69. The

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Investigating Officer recorded statements of the

witnesses. Concerned blood samples, vaginal swab

and nail clippings etc. were collected from the

Hospital and sent to Chemical Analyzer (C.A.) and

the C.A. Reports were obtained. Completing the

investigation, Charge-sheet came to be filed.

3. The charge under Section 307 and 376 of

I.P.C. was framed against the Appellant - accused.

He pleaded not guilty. His defence is of denial.

4. Prosecution examined in all 13 witnesses

and brought oral and documentary evidence on

record. The trial Court, after hearing the counsel

for both sides and considering the oral and

documentary evidence, has found the accused guilty

and passed the Order of conviction and sentenced

the accused as above.

5. I have heard learned counsel for the

Appellant-accused. It has been argued that in this

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matter there is serious doubt regarding the

identity of the accused. According to the learned

counsel, the evidence of the complainant or victim

PW-1 shows that she was not knowing the accused

since before and she had not seen him earlier. The

evidence of PW-3 Bhausaheb Ghodke also, according

to the counsel, shows that although he deposed the

name of the accused in his examination-in-chief,

the evidence shows that he was not knowing the

accused since before and his evidence is that he

saw the person running away from behind. Learned

counsel submitted that if the evidence of PW-1

victim and PW-3 Bhausaheb Ghodke as well as PW-6

Sandip Bhatane is read together, it would show

that PW-3 and PW-6 reached the spot only after the

incident was over after hearing shouts of the

victim. According to the counsel even this

evidence of these witnesses is doubtful as the

witnesses also stated in the cross-examination

that they came to know about the incident from PW-

7 Mandabai Avhad and then they had gone to the

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spot. Learned counsel submitted that the evidence

of PW-8 Dr. Manisha Hange also shows that the

victim when she was taken to the Hospital, had

given details of the incident where assault and

rape by unknown person was claimed and thus

according to the counsel it is surprising that the

witnesses should try to depose that before going

to hospital itself they had come to know the name

of the accused. In fact according to the counsel,

there is evidence to show that witnesses verified

the name of accused only on the basis of gossip.

It is further argued that looking to the incident

if the arrest Panchnama of the accused is seen, it

does not show that accused had any injury on his

person. According to the counsel the record rather

shows that there was letter issued by PW-10 Dr.

Mr. Ashok Gite which is marked in the original

file of the trial Court as Exhibit 10/1 informing

the police that on radiological examination of the

accused, the age of the accused was not less than

17 years and not above 19 years. According to the

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learned counsel if this is kept in view, and the

age as was applicable at the relevant time to the

juvenile as per the Juvenile Justice (Care and

Protection of Children) Act, 2000 the accused

would have to be treated as juvenile. Thus

according to the learned counsel the accused was

wrongly put up for trial in the regular Court and

apart from merits, on these grounds also the

accused deserves to be acquitted. According to the

counsel the accused is already in custody for more

than three years and no useful purpose would be

served by sending the matter back to the Juvenile

Court.

6. Against this, learned A.P.P. for the

State submitted that the prosecution has brought

on record all the necessary oral and documentary

evidence and the trial Court has, for good reasons

which have been recorded, convicted the accused.

According to the A.P.P., he supports the reasons

recorded by the trial Court and the conviction may

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not be disturbed. The A.P.P. stated that no fault

can be found in the conduct of the witnesses if

instead of chasing the accused they tried to help

the victim first to reach the hospital. Impression

of the victim for the accused may be of well built

person as has been deposed by her and only because

the arrest Panchnama or medical papers of the

accused show him not so well built, the benefit

can not be granted to the accused person.

7. I have gone through the material in this

matter. Most important evidence is of the victim

PW-1. She claimed that on 13th December 2009 she

was grazing cattle at field called Hamindara. At

about 4.30 p.m. she took the cattle for drinking

water. Her evidence is that a boy was standing on

the Bandh having a catapult. The boy hit her head

with the stone hurled through catapult and came

speedily towards her. Her evidence is that at this

point of time she cried out loudly. She deposed

that she tried to beat the said person by stick

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which she was carrying but the said person

snatched the same and gave her blows on her back,

face, leg, stomach. She deposed that the said boy

dragged her to one side. Her evidence further

shows that forcible intercourse was committed on

her. She further deposed that she was shouting and

one Bhausaheb Ghodke came there and then the boy

ran away. Now, if the evidence of PW-3 Bhausaheb

Ghodke is perused, he deposed that he heard

shrieks at about 4.30 p.m. when he was in his land

at Hamindara and he saw the victim was calling out

him as "Bhau". He went to victim. She was lying on

the ground and there was bleeding from her head.

His evidence is that he saw the accused Nanasaheb

while running away. He deposed that accused Nana

had come as guest in their village in the house of

one Arjun Pawar from Bhill community. His evidence

further is that the witnesses Bhaginath Avhad and

PW-6 Sandip Bhatane and others came there

immediately.

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. If the evidence of PW-6 Sandip Bhatane is

perused, he deposed that on hearing shriek and cry

of the victim he as well as Santosh Bhatane and

PW-3 Ghodke rushed to the spot of incident and saw

the injured victim. She had head injury. He has

also deposed that accused Nana was seen while

running from the spot.

Keeping the evidence of these witnesses

in view, if their cross-examination is perused,

the victim deposed that she was not knowing the

accused before the incident. When she saw the said

boy on the Bandh, he was 10-15 feet away. The

stone hurled with the help of catapult, hit her on

back side of the head. The evidence is that the

incident lasted for about one hour. The cross-

examination of victim shows that land of PW-3

Bhausaheb Ghodke is near the spot. She further

deposed that when she was being taken to the

hospital, at that time she came to know the name

of the accused and the mother of accused told his

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name to her parents. PW-3 Bhausaheb Ghodke in the

cross-examination deposed that house of Arjun

Pawar is not visible from his house. There was

Jawar crop of up-to his height standing in the

land concerned. According to him he was seeding

maize crop on the day of incident. He admitted

that he did not see the incident of actual rape

taking place. He deposed that PW-7 Mandabai called

him and then he went to the spot. He accepted that

he had told police that in response to call of PW-

7 Mandabai he had gone to the place of spot. He

further admitted that he had seen the person

running away from the spot only from the back

side. Cross-examination of PW-3 Bhausaheb further

shows that he accepted that name of accused Nana

came up after the gossip and discussion amongst

the villagers. He further deposed that he came to

know about the event from PW-7 Mandabai when he

was seeding maize. Looking to the cross-

examination of this PW-3 Bhausaheb, it is doubtful

if he reached the spot when the incident was still

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taking place. The cross-examination of PW-6 Sandip

Bhatane is that he had not seen the incident

personally. He rather deposed that he alongwith

Santosh Bhatane and PW-3 Ghodke had reached the

spot and the victim disclosed the incident to

them.

9. The evidence of PW-7 Mandabai Avhad, the

sister of victim, is that at about 4.30 p.m. she

was going home and heard cry and turned back and

saw that PW-3 Bhausaheb Ghodke was carrying the

victim on his back and so she stopped. She further

deposed that she came to know at that time from

the victim that accused Nana had hit on head of

the victim by stone hurled with the help of

catapult and had beaten the victim and also raped

her. Thus, this witness claims that immediately

after the incident while victim was being taken to

home, the victim had told her name of the accused.

The same PW-7 Mandabai in cross-examination

deposed that she heard cry of the victim and PW-6

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Sandip and one Santosh Bhatane came to the spot

and when she reached the spot, she saw only the

victim and she deposed that victim told her that

accused Nana had raped her. She deposed in cross-

examination that she did not see the accused at

the site of incident. She deposed that she had

asked PW-3 Bhausaheb Ghodke to help and (rather)

she told Bhausaheb about the incident which had

happened with the victim. She further deposed in

the cross-examination that PW-3 Bhausaheb did not

tell her about he seeing the incident or the

accused.

10. Looking to the evidence as above, when

evidence of PW-8 Dr. Manisha Hange is seen, she

deposed that she examined the victim on 13th

December 2009 at Government Hospital, Pathardi.

She gave details about the various injuries the

victim had. Her evidence is that for the injuries

of victim she issued certificate Exhibit 40. She

deposed that the multiple injuries to the eye

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sight, head and legs were probable if the person

is beaten by stick. She deposed that the nail mark

injuries and rest of the injuries to the side of

private part of the victim show that she had

resisted the sexual assault. Her evidence is that

the injuries in the certificate are most probable

due to forceful sexual assault and resistance by

the victim. If such evidence of the Doctor is

kept in view, it will be clear that the victim had

resisted the assault on her. In fact the F.I.R.

and the evidence of the victim is also that she

had tried to assault the boy who had attacked her,

with the help of stick. But then the injuries of

the victim and the evidence of the doctor is that

the victim had resisted the sexual assault. If

this is so, it is surprising to see that arrest

Panchnama Exhibit 72 does not show that the

accused had any injuries. PW-10 Doctor Ashok Gite

had medically examined the accused, who was

arrested next day on 14th December 2009, in the

morning itself and issued certificate Exhibit 61.

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The certificate also does not show that there were

any injuries on the person of the accused. PW-10

Dr. Ashok also did not depose about the injuries

on the person of the accused. The Investigating

Officer PW-12 Bhagwat Jaibhai was asked in the

cross-examination and he deposed that he did not

remember whether there were any marks of injury

noted on the body of accused.

11. The evidence of PW-8 Dr. Manisha in

para 2 shows that the victim had the following

injuries:-

" On breast examination, primary areola developed, multiple linear abrasions present

over both supra manary area, red in colour, 3-4 cm. In length, 5-6 in number. Injuries over external genital aree on examination external genitala well developed, external urethral

neatus normal, labia minora right side laceration of size ½ X ¼ X ¼ cm., hymenal tear at 3 O'Clock and 8 O'Clock position with hymenal tag seen, with fresh bleeding through it, abrasion over posterio forchete ½ X ½ cm.

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Introitus admit one finger with difficulty.

1) Other injuries over her body noted are CLW

right parital area 2 in number, measuring 3 x ½ x ½ cm. and 3.5 x ½ x ½ cm.

2) CLW over left paretal area 3 x ½ x ½ cm.

3) CLW left tempora parital area 2 x ½ x ½ cm.

4) Contusion over upperlip 2 x 1 cm.,

5) Black eye right side with swelling

periorbital area 3 x 2 cm.,

6) CLW over throat over larynix of 1 x ½ x ½

cm.,

7) Contusion right arm 7 x 2 cm.,

8) Contusion over back interscapular area 10 x

2 cm.,

9) Contusion over right scapula 4 x 5 cm.,

10) Contusion over left scapula 4 x 3 cm.,

11) Abrasion over right side neck 1 cm linear suggestive on nail mark,

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12) Contusion over pinna of left ear 4 x 1 cm.,

13) Abrasion over left shoulder 2 x 10 cm.,

14) Contusion over right side buttock 8 x 2 cm.,

15) Linear abrasion over left thigh 5 cm. in length".

Regarding these number of injuries, the

doctor has deposed that they indicate forcible

sexual assault and resistance by the victim. If

this is kept in view, surprisingly no injuries on

the person of the accused have been established by

the prosecution. When victim had resisted, if

accused was the culprit, he would have at least

some injury? None is proved.

12. Although the evidence is that when victim

was being taken to the hospital, she had come to

know the name of the accused, the evidence of PW-8

Dr. Manisha Hange who had got the MLC registered,

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shows and it is deposed that the history victim

stated was that on 13th December 2009 at

about 5.00 p.m. she was coming out from the hilly

region alongwith the cattle and at such time an

unknown young boy hurled stone through his

catapult and hit her head from the behind and

further committed rape and assaulted her with

stick. The doctor was thus told that an unknown

young boy had committed the incident. The doctor

proved Exhibit 43, an intimation to the Police

reporting that victim had been admitted in the

hospital due to serious injuries to the head. It

was received by PW-9 Sahebrao Gawali, Police Head

Constable. PW-9 deposed that he was P.S.O. of

Pathardi Police Station and the Medical Officer

sent report about the victim being admitted for

beating and assault. He made station diary entry

on the document Exhibit 43 which is proved at

Exhibit 47. This entry is dated 13th December 2009

at 18.15 hours. Thus the evidence of PW-8 doctor

Manisha read with the evidence of PW-9 Sahebrao

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and considered with the documents Exhibits 43

and 47, shows the evidence that till that point of

time the only information given was that the

incident had been committed by an unknown person.

Thus the attempt of witnesses to say that at the

time of incident unfolding and on way to hospital

itself the identity of accused had become clear,

is doubtful. It appears that at hospital, later

PW-12 Bhagwat went and recorded the F.I.R. -

Exhibit 25 and in Exhibit 25 name of the accused

was put.

13. There is substance in the argument of the

learned counsel for the Appellant-accused that

identity of accused is doubtful. This can be

gathered easily from the examination-in-chief of

the victim. She deposed that accused person was

between 18-19 years old and was having beard and

mustaches and was of blackish colour and was

sturdy and healthy and taller than the victim. She

deposed that the accused at the concerned time was

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wearing blue pant and coloured lined full sleeves

shirt. Although she deposed about the accused to

be wearing blue pant at the concerned time, the

witness relied on by her PW-3 Bhausaheb Ghodke

deposed that the accused he had seen running away

from the spot was wearing yellow full pant and

shirt of blue colour. As regards the physical

description of the accused given by the victim,

the arrest Panchnama Exhibit 72 describes the

accused as "slim" (Sadpatal) and the column

concerned regarding mustache is having dash (-),

which means that there was no mustache. The

medical certificate Exhibit 61 of the accused also

shows him to be hardly of the weight of 43 kgs.

The learned A.P.P. has submitted that the idea of

"sturdy and healthy person" of the victim would

depend upon her own physic. However nothing is

shown from the record as to the built and weight

of the victim. Thus the description given by the

victim of the accused in her oral evidence

compared with the record, does not appear to be

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matching with the description she gave of the

accused.

14. Although the clothes of the victim and

the accused were collected and samples of vaginal

swab, nail clippings etc. were collected and sent

to C.A., the C.A. reports Exhibits 21 to 23 do not

show that the prosecution could draw any benefit

from these forensic reports so as to connect the

accused with the incident.

15. The evidence of PW-12 Bhagwat shows that

accused was arrested on 14th December 2009 in the

morning and from his person blood stained clothes

were seized. Still, it is surprising to see that

separately discovery of blood stained banyan is

shown. The counsel for accused rightly stated that

this would be as if accused removed the banyan and

hid the same and again wore the blood stained

shirt. The oral evidence of PW-12 that when

accused was produced in Police Station he was

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wearing blood stained clothes does not match with

Panchnama Exhibit 64 which is silent about blood

stains. Regarding the recovery of catapult, it is

argued by the learned counsel that it is common

article found in the house of the villagers and

the catapult seized hanging on the wooden log in

the house of the accused would not be material

evidence.

16. For above reasons, I find that in this

matter it would be risky to rely on the evidence

brought on record by the prosecution to hold the

accused guilty. No identification parade was held.

The victim had not seen the assailant before the

incident and was not knowing him since before. Her

cross-examination shows that when she was hit by

stone it was from her behind and she could not

shout as she started feeling giddy. F.I.R. did not

give description of the assailant. F.I.R. was

filed in such a way, where the first part referred

to the assailant as a boy standing on the Bandh

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and in the second part it claimed that the victim

was knowing the assailant to be Nanasaheb Nikam

who has came as guest in the house of Arjun

Bhimsen Pawar. The above discussion shows that how

the name of the accused came in front, is not

clear. The other witnesses though claiming to have

reached the spot after hearing shouts, it is

doubtful if they reached when assailant of the

victim was still there. The evidence at one point

is also that the victim started shouting from the

point of time when she was hit by stone hurled

with the help of catapult. PW-3 Bhausaheb Ghodke

claimed to have reached the spot after hearing the

shouts. At one place the evidence is that incident

lasted for one hour. If the shouting started in

the beginning itself, when the other witnesses

reached in the course of incident, is not clear.

Composite reading of the evidence shows that these

other persons reached the spot only after the

incident came to an end and the victim lay injured

and asking for help.

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17. At the time arguments, from the original

record from the documents which are part of

miscellaneous file, there is report of doctor

Ashok Gite. This PW-10 had reported to the police

with reference to their letter and inquiry about

the age of the accused that as per the report of

radiologist, Ahmednagar age of accused is 17 to 19

years. It was stated that it was not less than 17

years and not above 19 years. The doctor had

attached copies of the reports received from Civil

Hospital, Ahmednagar. There is photocopy of an MLC

attached with the document. This document at the

time of arguments came to be noticed as PW-10 Dr.

Ashok Gite who proved document Exhibit 61 which

related to medical examination of the accused had

in para 15 with reference to injuries on body

recorded that "mentioned in MLC certificate

attached to this". As this document was being

traced, the letter of this witness marked at

Exhibit 11/1 is seen. Learned counsel for the

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accused rightly submitted that if this document

was to be kept in view, the age of the accused at

the relevant time was between 17 years to 19 years

and if that is so, looking to the provisions of

the Juvenile Justice (Care and Protection of

Children) Act, 2000, relevant at the concerned

time, the accused can be stated to be below 18

years of age and benefit of the said document

should be given to the accused. The learned

counsel submitted that in this view of the matter

the trial in regular Court could not have taken

place and the Sessions Court failed in its duty to

verify the age of the accused. The accused could

have been tried only by the Juvenile Justice

Board, it is stated.

18. As on merits itself I do not find the

offences established against Appellant, it does

not appear necessary to remand back the matter to

Juvenile Justice Board.

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19. For reasons discussed above, I find that

the prosecution failed to establish link between

the Appellant and the incident which had taken

place. It is seriously doubtful if the Appellant

was the person who assaulted and violated the

victim. This being so, I am unable to concur with

the trial Court.

20.

In the result, I proceed to pass

following order:-

O R D E R

(I) The Criminal Appeal is allowed.

(II) The conviction and sentence as

imposed by the trial Court vide impugned

Judgment dated 24th November 2014 in

Sessions Case No.53 of 2010 passed by the

Additional Sessions Judge, Ahmednagar is

hereby quashed and set aside.





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            (III)                  The   Appellant   -   Nanasaheb

Chandu Nikam is acquitted of the offences

punishable under Sections 307 and 376 of

the Indian Penal Code, 1860.

            (IV)             The   fine,   if   paid,   shall   be 




                                        
            refunded to the Appellant.
                             
            (V)              The   Appellant   shall   be   released