Uttam Shankar Suryawanshi vs State Of Maha
2016 Latest Caselaw 4885 Bom

                                                               Cri.Appeal. No.245/2003
                                              1



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                
                                   BENCH AT AURANGABAD




                                                        
                            CRIMINAL APPEAL NO.245 OF 2003


     Uttam s/o Shankar Suryawanshi




                                                       
     Age 34 years, Occ. Labour,
     R/o Halad-Wadona, Taluka Jalkot,
     District Latur                                     ...      APPELLANT

              VERSUS




                                          
     The State of Maharashtra
     (Copy to be served on Public
     Prosecutor, High Court of
     Judicature at Bombay,
                            
     Bench at Aurangabad)                         ...   RESPONDENT

                                     .....
     Shri R.P. Bhumkar, Advocate for applicant
     Shri R.V. Dasalkar, A.P.P. for State
      


                                     .....
   



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

                                     DATED:       25th August, 2016.





                               Date of reserving order : 11th August, 2016
                               Date of pronouncing order : 25th August, 2016


     JUDGMENT :

1. The appellant - accused has been convicted under

Section 354 of the Indian Penal Code, 1860 (I.P.C. in brief) by

Additional Sessions Judge, Udgir in Sessions Case No.37/2002 on

5.3.2003. He has been convicted under Section 354 of the I.P.C.

and sentenced to suffer rigorous imprisonment for two years and

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to pay fine of Rs. 5000/-, and in default to suffer simple

imprisonment for two months. The accused was charged with

offence under Section 376 of the I.P.C. also, but he came to be

acquitted of the same.

2. The case of prosecution in short is as under :

(a) The prosecutrix (hereinafter referred as "victim"),

filed complaint mentioning the same as "application"

at Police Outpost, Jalkot in the jurisdiction of Police

Station Wadona on 14.4.2001. The same was

received by Police Head Constable Ganeshsingh

Thakur (P.W.4). He forwarded the same to Police

Station, Wadona and Crime came to be registered at

Police Station, Wadona at No.52/2001 at 00.30 Hrs.

in the same night itself vide Exh.29, although date

had become 15.4.2001.

(b) The victim reported that, she resides at Halad-

Wadona along with her parents and elder brother

Dhanaji and does labour work. On 14.4.2001, she

and her parents were at home. Lights went off and

they were at home. She wanted to go for urinal and

came outside for urinating and sat for urination on

the side of road. At that time, accused Uttam

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Shankar Suryawanshi, who resides in the

neighbourhood, taking advantage of the darkness,

came near her and with bad intention, caught hold of

her hand and took her inside his house and started

groping with her. She shouted. This attracted her

parents and brother and one neighbour Balaji also

came that side. At that time, the accused ran away.

The time was about 8.30 - 9.00 p.m. Thus, action

should be taken against the accused.

(c) Registering such offence under Section 354 of the

IPC, the matter was taken up for investigation by

P.W.4 Ganeshsingh. He prepared spot panchanama

Exh.20. He recorded statements of witnesses. The

accused was arrested on 20.4.2011.

(d) The victim, on next day of incident, complained of

pain in her private parts to her mother and on

enquiring, the mother came to know that the victim

had actually been raped. The victim and her parents

again took her to police. Later on they went to

higher officers and supplementary statement of the

victim came to be recorded on 23.4.2001. The

Deputy Superintendent of Police sent the

supplementary statement to P.W.5 A.P.I. Shankar

Mali. Section 376 of IPC came to be added and the

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investigation was done by P.W.5 Shankar Mali.

Necessary procedure of getting the victim medically

examined and collecting samples of vaginal swab of

the victim and semen of the accused was carried out.

The samples were sent to Chemical Analyser and C.A.

reports Exhibits 22 and 23 were obtained. After

completing the investigation, charge sheet came to

be filed.

3.

Prosecution examined 5 witnesses in Court. The

accused admitted spot panchanama Exh.20 and medical

examination report of the victim Exh.21. The defence of the

accused is of denial. According to him, due to political rivalry the

offence came to be lodged against him.

4. The trial Court considered the oral and documentary

evidence as brought on record by the prosecution. Trial Court

acquitted the accused with regard to Section 376 of the IPC as

with regard to the alleged rape, the same was reported late and

medical examination in that regard was lost. For such and other

reasons recorded, the trial Court acquitted the accused as

regards Section 376 of IPC. State has not filed appeal against

acquittal on that count and discussion of evidence in that regard

is not necessary. The accused, however, came to be convicted

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under Section 354 of the IPC as the trial Court found the

evidence in that regard appealing and the accused came to be

sentenced as mentioned above.

5. After the appeal was filed, the accused was released

on bail. However, as the accused and his advocate were not

present, bailable warrants were issued, which returned unserved

and the trial Court was directed to take steps for forfeiture of the

bail bonds of the accused. Non-bailable warrant was issued and

on securing presence of the accused, counsel for the appellant -

accused appeared. The appeal has then been argued.

6. The counsel for the appellant - accused has been

heard in the matter. It has been argued by the learned counsel

for the accused that, the evidence of P.W.1 Malhari, the father of

the victim shows that, he had strained relations with the

accused. The victim, in the night of 14.4.2001, while filing the

complaint, did not report regarding any rape and only after eight

days such claims were made. The learned counsel submitted

that, the evidence of the victim should be disbelieved as earlier

she claimed only outraging of modesty, but subsequently claimed

that she was raped. In the evidence of P.W.2 Venubai,

contradiction was proved regarding her evidence claiming that

when he had gone searching for the victim, she had a torch. It is

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further argued that, no independent witness has been examined

and thus, the parents of the victim and the victim should have

been disbelieved. The counsel questioned as to why P.W.2

Venubai should go and search for the victim in the night at a

house, which is further away and not first come to the house of

the accused, which was closer.

7. The learned A.P.P. submitted that, the victim comes

from rural background and initially did not tell her parents that

she had actually been raped and only complained of outraging of

modesty. The accused got benefit on that count under Section

376 of the IPC, but it would not be appropriate to disbelieve the

victim due to such reason. It is submitted by the A.P.P. that,

only because some political connections are referred, it cannot be

presumed that the victim and her parents coming from rural

background would falsely make such serious allegations against

the accused. The A.P.P. supported the reasons recorded by the

trial Court for convicting the accused.

8. The learned counsel for the accused, in reply, claimed

that, the evidence shows that, the accused has a family and

thus, according to him, it was unlikely that the accused would

have committed such incident in the evening.

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9. Learned counsel for the appellant relied on the

following cases :-

(1) Datta Jagannath Manera Vs. The State of Maharashtra (2005(2) Bom.C.R. (Cri.) 910)

(2) Vasant Hindurao Patil Vs. The State of Maharashtra

(2011 BCI 126)

(3) Diwakar s/o Keshao Madpati Vs. The State of Maharashtra (2012 BCI 124)

(4) Kuwarlal Chandulal Patle Vs. The State of Maharashtra (2012(4) Bom.C.R. (Cri.) 193)

(5) Vasant Mahadeo Powar and another Vs. The State of Maharashtra & another.

(2015(4) Bom.C.R. (Cri.) 796)

10. Referring to the above cases, the learned counsel

submitted that, in those matters the accused were acquitted

giving the benefit of doubt. I have gone through the concerned

judgments. The judgments have their own facts, and evaluating

the evidence in those matters, the accused persons were given

benefit. However, I am keeping the above judgments in view

while proceeding to discuss the evidence in present matter to see

if there are grounds on the basis of which the judgment of

conviction should be reversed into acquittal.

11. Firstly there is evidence of P.W.1 Malhari. He

deposed that, he along with his wife, son and the victim were

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residing at Halad-Wadona. It is deposed that, he and his family

were at home and they had finished the dinner. The victim went

out of the house for urinal at about 8.00 - 9.00 p.m. and that it

was dark. He deposed that, he came out of the house waiting for

the victim to reach for about 10 minutes. He deposed that, he

then searched for the victim around and heard some noise of his

daughter from the house of the accused. According to him,

hearing their noise, the accused ran away from the house and

thereafter his daughter came out from the house of the accused.

According to P.W.1, the victim then disclosed the incident to her

mother P.W.2 Venubai and in turn, the wife told this P.W.1 as to

what had happened.

12. P.W.1 is supported by his wife Venubai. She also

deposed that, they had completed their dinner and it was day of

14.4.2001 and the time was about 8.30 - 9.00 p.m. They were

chit-chatting in the house. The victim went outside for urinating

at that time. She deposed that they waited for her, but when the

victim did not return early, she came out and enquired about the

victim from neighbours. When she was about to reach the third

neighbour, she heard some noise from the house of Uttam and

went near the house. Her evidence is that, she had torch and in

the said light she saw the accused leaving his house and running

away. She deposed that, her husband and son were also with

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her. Thereafter the victim came out of the house. P.W.2

deposed that, she enquired with the victim and the victim at that

time told her that when she stood after urinal, the accused

pressed her mouth by hand and brought her to his house and

that the accused had scuffled with her with intention to outrage

her modesty. P.W.2 deposed that, thereafter she along with her

husband, the victim and the son went to Jalkot Outpost where

the victim filed the complaint and then they came back.

13.

P.W.3, the victim herself has deposed that it was day

of Jayanti of Babasaheb Ambedkar. In the night at about 8.00

p.m., she and her family were at home. She went for urinating,

and when she stood up after urinating, (she deposed that), the

accused Uttam came there and pressed her mouth and took her

inside his house and forced her to fall on the ground. She

deposed that, he put gag in her mouth. Her evidence then

shows as to how then she was raped. She deposed that,

because of the commotion, her parents came there and the

accused ran away. She deposed that, her mother enquired with

her, but due to shame she did not tell her mother as to what

happened. She deposed that, she only told that the accused

slept with her and scuffled with her person. Her evidence is that,

her parents, brother and she then went by autorickshaw to Jalkot

and she filed complaint Exh.29.

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14. The evidence of P.Ws.2 and 3 then refers as to how

on next day the victim started complaining pain in her private

part. Then, part of incident regarding rape, she disclosed to her

mother. The evidence is that, after 8 days, they went to Wadona

Police Station and gave report of details of the incident to police.

15. This evidence of these witnesses has been accepted

by the trial Court for convicting the accused under Section 354 of

the IPC. The learned counsel for the accused is questioning the

evidence by referring the evidence of P.W.1 Malhari, who

deposed in cross-examination that he "was" Sarpanch of their

village. He further deposed that, it was not true to say that he

was also candidate in the last Grampanchayat elections. He

accepted that, Gangadhar, the brother of accused was candidate

for the last Grampanchayat elections and that he got elected.

P.W.1 denied that, Gangadhar was from opposite party. He

rather deposed that, accused is in his relation. P.W.1 denied

that, accused does not follow P.W.1 in politics. However, he

accepted that, he had strained relations with the accused. The

cross-examination further brought on record, and the spot

panchanama Exh.20 also shows that the victim and the accused

are having their respective houses on the same road and the

houses are nearby each other. The road is hardly 7-8 ft. wide.

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There are other people residing in the neighbourhood. P.W.1

denied that due to political rivalry he had filed the false

complaint.

On the basis of such cross-examination, the

argument is that, due to political rivalry false case is filed. I am

not impressed by the argument. The cross-examination of P.W.1

only shows that, at some point of time, this P.W.1 had been a

Sarpanch. He denied that, in the last Grampanchayat elections,

he either contested the elections or that he was from opposite

panel of Gangadhar, the brother of accused. If P.W.1 would have

had any grievance against Gangadhar, allegations would have

been against Gangadhar, and their appears no reason on that

count to make allegations against the accused, who himself does

not claim to be political leader in his own right. P.W.1 fairly

admitted that he had strained relations with the accused. The

accused, however, did not probe further as to the cause of the

said strained relations. Relations become strained also due to

the incident in question by the time the witness is in the witness

box. Only because he accepts that he had strained relations with

the accused does not mean that the strained relations are since

before the incident. On the basis of such vague cross-

examination, no disadvantage can be taken by the accused.

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16. The other argument that accused was married person

having children and parents, and so could not have indulged in

such incident, to drag the victim home also deserves to be

rejected. Only because he has a family does not mean that at

the concerned time the family was also staying in the same

house or that they were present there. No suggestions are put

to any of the witnesses that the family also was there. It cannot

be simply presumed that only because the accused has a family,

the family was present in the house in the concerned evening.

P.W.1 did not admit that he had any political rivalry. As such,

there is no reason to disbelieve prosecution witnesses. Merely

because strained relations are there or even if there was political

rivalry, it is unthinkable that in a rural background, the parents

would put in jeopardy the name of their unmarried daughter and

risk her marriage prospects by making such allegations. The

evidence in present matter shows that, hurriedly after the

incident, P.Ws.1 and 2 appear to have married off their minor

daughter. For the incident dated 14.4.2001, when the victim

came to depose on 30.11.2002, she was already married.

17. The argument of the learned counsel for the accused

that no independent witness has been examined although the

spot panchanama and the evidence shows that there are people

in the neighbourhood also cannot be accepted so as to disbelieve

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the witnesses already examined. No doubt in the F.I.R. Exh.29

the victim had, while reporting, mentioned that one neighbour

Balaji Suryawanshi had also reached when she had shouted and

the accused ran away, but even if Balaji has not been examined,

if the evidence is properly appreciated, it can be seen that,

evidence of P.Ws.1 to 3 shows that, after the accused ran away

and the victim came out from the house of accused, it is not that

the victim was asked openly by the parents and her brother in

presence of this Balaji as to what happened. The evidence shows

that, the victim talked to only her mother as to what had

happened and the mother in turn told the father. Thus, the

victim confided only in her mother. Such conduct is natural. It

does happen with young girls that in situations like present one,

they would rather speak to their own mother than tell publicly

and openly as to what has happened. There is no reason to

doubt the evidence of P.Ws.1 and 2 and the victim regarding the

incident of outraging of modesty. If no witness other than family

was told, there may not be such other witness.

18. In the cross-examination of P.W.2 Venubai, omission

has been proved regarding her evidence that, when she had gone

out searching for her daughter, she had a torch. Even if this

contradiction has been proved and even if the evidence of her's

that she had a torch is to be ignored, there is sufficient evidence

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against the accused regarding the act alleged. P.W.1 Malhari

also deposed that, when they heard noise from the house of

accused and went there, he had seen the accused running away

from there. This evidence of P.W.1 was not challenged in the

cross-examination by any denial that he could not have seen the

accused running away from there. Similarly, there is no reason

to discard the evidence of P.W.3, the victim herself. Admittedly

the accused was residing in the neighbourhood and there is no

dispute regarding the fact that the victim and her family were

knowing the accused. If the lights went off and victim took

opportunity to go out for urinating on the road and the accused

caught her and dragged her in his house, the victim apparently

had much more opportunities to see the accused. The victim was

dragged and taken by the accused in his own house and thus,

the victim being able to see the accused and identifying him, is

clearly there. After incident, when parents reached, victim

coming out from house of accused is also circumstance against

accused. Even if it was dark, looking to the act alleged, if the

neighbour is indulging in such act, the victim would definitely be

in a position to identify the person. It would be unthinkable and

sheer imagination to contend that the victim would have gone

outside her house in pitch darkness where even if you put a

finger in your own eye, you would not be able to see. When she

had gone out for urinal, and when her parents went out

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searching for her, clearly there was some visibility which would

be enough at least to see persons or objects which are nearby.

It was thus possible for the victim to identify the neighbour, who

was holding and dragging her inside the house.

19. The learned counsel for accused argued that, the

cross-examination of P.W.2 shows that, she enquired for the

victim by going at the house of her husband's brother, which is

at longer distance from the house of accused.

ig The learned

counsel expressed surprise on this that, instead of searching

nearby, the mother went to a house at a longer distance. There

is nothing surprising in this. It would be natural for P.W.2 to

think that the victim may have gone to her uncle's place which is

nearby. It would be unnatural for her not to first check at the

place of relative or friend nearby and to go and search directly at

the house like that of the accused.

20. In para 12 of the judgment, trial Court recorded

reasons not to convict under Section 376 of the Indian Penal

Code. Delay leading to insufficient evidence on that count does

not mean that evidence regarding Section 354 of Indian Penal

Code should be doubted. Complaint on that count was

immediately filed.

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21. I have gone through the judgment of the trial Court

and the reasons recorded to convict the accused under Section

354 of the Indian Penal Code. The reasons recorded by the trial

Court need to be accepted. There is no substance in the

arguments raised by the learned counsel for the accused. There

is no substance in the appeal. The appeal is dismissed.

                              ig                 ( A.I.S. CHEEMA, J.)