Rajesh S/O Laxmanrao Kadu vs State Of Maharashtra ...
2016 Latest Caselaw 6872 Bom

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                                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     NAGPUR BENCH : NAGPUR




                                                                                                                                                                             
                                                         CRIMINAL APPEAL NO.111/2001




                                                                                                                                  
    Rajesh s/o Laxmanrao Kadu, 
    aged 41 Yrs., Occu. Service, 
    R/o Bhugaon, Tq. Achalpur, 




                                                                                                                                 
    Distt. Amravati.                                                                                                                                                 ..Appellant.

                     ..Vs..




                                                                                                       
    State of Maharashtra, 
    through P.S.O., P.S. Pandharkawada,                             
    Distt. Yavatmal.                                                                                                                                     ..Respondent.
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               Shri R.B. Gaikwad, counsel for the appellant. 
               Smt. K.R. Deshpande, Additional Public Prosecutor for the respondent/State. 
                                                                   
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                                                                     CORAM :  V.M. DESHPANDE, J.

DATED : 2.12.2016.

ORAL JUDGMENT

1. The present appeal is directed against the judgment and order of

conviction dated 7/4/2001 in Special Case No.37/1993 passed by learned 2 nd

Additional Sessions Judge, Yavatmal by which the learned Judge of the Court

below convicted the appellant for the offence punishable under Section 354

and 448 of Indian Penal Code and directed to suffer sentence of rigorous

imprisonment for 2 years and to pay a fine of Rs.2,000/- and in default to pay

fine further rigorous imprisonment for 6 months on account of his conviction

for the offence punishable under Section 354 of Indian Penal Code and

awarded sentence of 1 year rigorous imprisonment and to pay a fine of

Rs.1,000/- and in default further rigorous imprisonment for 3 moths on

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account of conviction under Section 448 of Indian Penal Code.

2. A charge was framed against the appellant in Special Case

No.37/1993 for the offence punishable under Section 354, 448 and under

Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The learned Judge of the Court below acquitted the

appellant for the offence punishable under Section 3(1)(xi) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, however,

State chose not to prefer any appeal against it.

3. The incident in question is dated 10/5/1993. According to the

prosecution, the incident had occurred inside the house situated at village Arli

of District Yavatmal. According to the prosecution, at the time of incident the

prosecutrix - a married woman came to her paternal house from Adilabad. As

per the prosecution on the day of incident i.e. 10/5/1993 at 9 a.m. she was

taking meals inside house. That time, the appellant forced his entry and kept

his hand on the shoulder of the prosecutrix and thereby outraged her modesty.

4. Exhibit 28 is the report that was given to the Superior Officer of the

appellant who was working as a Constable at State Reserve Police Camp at Arli.

The said report is dated 10/5/1993. The said report bears thumb impression

of the prosecutrix. The said was handed over to Shridhar Embadwar (P.W.4)

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who at the relevant time was attached to police station Pandharkawada outpost

at Patanbori. On the basis of the same, he recorded statement of prosecutrix.

The said statement is available on record at Exh.33. Thereafter, he submitted

his enquiry report (Exh. 34). On the basis of his report a crime was registered

against the appellant vide Crime No.97/1993. The printed F.I.R. is at Exh.35.

It is dated 15/5/1993.

The investigation of Crime No.97/1993 was entrusted to Sheshrao

Raut, a P.S.I. (P.W.5). He completed the investigation and after the arrest of

the appellant on 18/5/1993 submitted the charge-sheet.

5. In order to bring home the guilt of the appellant the prosecution has

examined in all 5 witnesses. Unfortunately, the prosecutrix could not be

examined in the present case due to her sad demise during the pendency of the

trial. The learned Judge of the Court below convicted the appellant as

mentioned in the opening paragraph of this judgment. Hence, this appeal.

6. I have heard Shri R.B. Gaikwad, learned counsel for the appellant

and Smt. K.R. Deshpande, Additional Public Prosecutor extensively. With their

assistance, I have gone through the record and proceedings of the sessions case

as well as the notes of evidence.

7. The submission of the learned counsel for the appellant is that the

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prosecution has utterly failed to bring home the guilt of the appellant beyond

the reasonable doubt. He submitted that Yogita (P.W.1) cannot be considered

as an eye witness of the incident. He further submitted that there is variance

of timings in the incident if the prosecution case is thoroughly scanned viz-a-viz

evidence of Yogita (P.W.1), Sambhaji (P.W.2) and Fulabai (P.W.3) thereby

there is serious doubt about the truthfulness of prosecution case. He also

submitted that in the absence of test identification parade during the course of

investigation, identity of the appellant is not firmly established that he was the

person who outraged the modesty of prosecutrix and, therefore, he prays that

the benefit of doubt has to be extended in favour of the appellant and prays for

acquittal of the appellant.

Per contra, the learned Additional Public Prosecutor submitted that

there is no reason to disbelieve Yogita (P.W.1). She submitted that her

evidence is recorded after a period of 7 years and, therefore, some latitude has

to be given in her favour. She submitted that Shridhar (P.W.4) has recorded

the statement of prosecutrix and has proved her statement. Therefore, she

submitted that the appeal be dismissed.

8. Unfortunately, the prosecutrix is not available due to her sad

demise. However, merely because prosecutrix is not available that by itself

does not render case of the prosecution worthless if other cogent and clinching

evidence is available on record and if the said evidence is trustworthy then it is

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always open to the Court to record finding of guilt against the accused.

9. In the present case, prosecution has examined Yogita (P.W.1),

Sambhaji (P.W.2) and Fulabai (P.W.3). Out of these three witnesses,

Sambhaji (P.W.2) and Fulabai (P.W.3) cannot be termed as eye witnesses if

their evidence is properly scanned. Further it is also not claim of the

prosecution that they witnessed the actual incident. In that view of the matter,

the entire prosecution case revolves around the testimony of Yogita (P.W.1).

10. Yogita's evidence would reveal that at the time of the incident she

was taking education in the school. According to her, her school timings were

from 7 a.m. to 11 a.m. As per her evidence in the morning she along with her

sister (prosecutrix) were taking meals in the second room of their house, that

time, the appellant entered in their house and outraged the modesty of the

prosecutrix. What is important to note from her deposition from the witness

box is that she is silent about the timing of the incident.

Exhibit 28 is a written application which bears thumb impression of

the prosecutrix. It shows that the incident has occurred on 10/5/1993 in the

morning at 9 a.m. This particular report is a starting point of the prosecution

case since this report was handed over by the S.D.P.O. to Shridhar Embadwar

(P.W.4) for enquiry. Further Exh.33, the statement of Ramubai - the

prosecutrix, also shows that the incident occurred at 9 a.m. on 10/5/1993.

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11. During the course of her cross-examination Yogita has admitted that

on the day of incident she attended her school. Her school timings are from 7

a.m. to 11 a.m. She further stated that she had been to her school till 11 a.m.

Not only that, even after the school timings were over she played in the school

for about half an hour. In view of the aforesaid, it is crystal clear that Yogita

was not available in the house on 10/5/1993 at 9 a.m. since at that time, even

according to her version, she was in the school. Yogita has further failed to

identify the appellant from the witness box when the appellant was in dock.

Thus, the appellant was not identified by Yogita even during the course of

recording evidence. Therefore, on the basis of the evidence of Yogita the

prosecution cannot draw any support to its case.

12. Sambhaji (P.W.2) is the father of the prosecutrix. Admittedly, he is

not an eye witness. According to Sambhaji (P.W.2) at the relevant time he

was purchasing fish and that time he was in his cattle shed and prosecutrix and

Yogita were inside the house and was taking their meals. What is important to

note from his deposition is that this prosecution witness is giving time of the

incident as 2 p.m. which is contrary to contemporaneous document Exh.28

which shows that the incident had occurred at 9 a.m. Further the conduct of

this witness in not making any attempt to overpower an intruder who made

his forceful entry to his house and tried to outraged the modesty of his

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daughter creates doubt about his presence at the relevant time. It is relevant

to mention here that it is not the case of any of the prosecution witnesses that

the appellant was in his S.R.P. dress, therefore, there was no reason for

Sambhaji to nurse any fear in his mind.

It is to be noted that his wife works as servant with one Ali who is

Compounder at Primary Health Center. A suggestion was given to him that this

Ali under the influence of liquor abused S.R.P. personnel before their camp,

however, he specifically denied the said incident. In this backdrop if the

evidence of Shridhar (P.W.4) is seen then it is clear that against this Ali a

criminal case vide Crime No.203/2013 under Section 294, 504 of Indian Penal

Code is registered for abusing S.R.P. personnel at their camp. In that view of

the matter, I have no hesitation in my mind that Sambhaji (P.W.2) has no

respect for the truth.

Further it is the defence of appellant that he is falsely implicated at

the behest of said Ali, in my view, has grain of truth.

13. Another witness is Fulabai (P.W.3), maternal aunt of the prosecutrix

and Yogita. The evidence of Fulabai is that she reached to the spot after she

was called by Yogita. Yogita is silent in her evidence that she went to Fulabai

and called her. Further according to Fulabai she disclosed this fact to the

Sarpanch of Grampanchayat of Arli who gave an application (Exh.31). The

Sarpanch, who is scribe of the Exh.31, is not examined by the prosecution for

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the reasons best known to it. However, the prosecution witness Fulabai has

admitted during her cross-examination that she was not aware about the

contents of Exh.31. Further she admitted that the contents of the report were

not read over to her. Therefore, in my view, in the absence of examination of

the scribe, Exh.31 was not an admissible document and the learned Judge of

the Court below has committed an error in admitting the said document in

evidence.

14. The Investigating Officer has admitted that he did not conducted

any test identification parade. In the present case, the starting point of giving

an application to the superior officer of State Reserve Police is 10/5/1993 and

the said application was given for enquiry to Shridhar Embadwar (P.W.4) who

conducted enquiry and thereafter submitted his enquiry report. The F.I.R. is

dated 15/5/1993 and the appellant was arrested on 18/5/1993 in spite of that

no attempts were made on the part of the prosecution to hold and conduct the

test identification parade.

All the prosecution witnesses are stating in chorous that prior to the

incident at no point of time there was any reason for them to see the appellant.

Thus, the appellant was an unknown person to them. In that view of the

matter, holding of test identification parade was imperative on the part of the

prosecution. Further, Yogita, the sole eye witness as claimed by the

prosecution, has failed to identify the appellant when the appellant was in the

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dock. The timing of the incident is also not inconformity with Exh.28.

Therefore, in my view, the learned counsel for the appellant is right in making

submission that the prosecution has failed to prove its case beyond reasonable

doubt. Upshot of the above discussion leads me to pass the following order:

ORDER

(i) The appeal is allowed.

(ii) The judgment and order of conviction dated 7/4/2001 is hereby

quashed and set aside.

(iii) The appellant is acquitted for the offence punishable under Section

354 and 448 of Indian Penal Code.

(iv) The bail bonds of the appellant stand cancelled.

(v) Fine amount, if paid, shall be returned to the appellant.

JUDGE

Tambaskar.