Bombay High Court
Namdeo Mahadu Bhalerao vs State Of Maha on 2 December, 2016
Bench: Z.A. Haq
(1) crirev101.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 101 OF 2004
Namdeo s/o. Mahadu Bhalerao .. Applicant
Age. 32 years, Occ. Labour, [original
R/o. Lohagaon, Tq. Kannad, accused]
Dist. Aurangabad.
ig Versus
The State of Maharashtra .. Respondent
Through Police Station Pishor
Tq. Kannad, Dist. Aurangabad.
Mr.R.V. Gore, Advocate for the applicant.
Mr.A.R. Kale, A.P.P. for respondent/State.
CORAM : Z.A. HAQ,J.
DATED : 02.12.2016
ORAL JUDGMENT :-
. Heard. The accused has approached this Court by
this Criminal Revision Application challenging his
conviction by the Magistrate and maintained in appeal by
the Sessions Court, for offence punishable under section
452 and 376 (1) of the Indian Penal Code.
02. According to the prosecution, the prosecutrix -
Shantabai was alone sitting in front of her house at
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05.00 p.m. on 26.02.2000, when the accused came there
under influence of liquor, caught hold of her hand,
dragged her inside the house, fell her down, gagged her
mouth and committed sexual intercourse forcibly. The
subordinate Courts have concurrently recorded that the
prosecution has proved that the offence is committed by
the accused and the accused is convicted.
03. The learned Advocate for the applicant/accused
has submitted that the subordinate Courts have failed to
consider the discrepancies in the case of the prosecution
and the evidence of the prosecutrix and have wrongly
recorded that the accused is guilty of the offence for
which he was charged. The learned Advocate for the
applicant has taken me through the evidence of the
prosecutrix and has argued that not only the evidence of
the prosecutrix is not sufficient to hold accused guilty
of the offence but there is no corroborating evidence
including the medical evidence on the basis of which the
conviction of the accused for the offence can be
justified.
04. The learned A.P.P. has submitted that the scope
of interference for exercising jurisdiction under section
397 of the Criminal Procedure Code is very restricted and
there cannot be re-appreciation of the evidence. It is
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argued that the subordinate Courts have examined the
evidence on record and have recorded findings against the
accused, which cannot be said to be perverse to enable
this Court to re-examine the evidence. It is submitted
that the applicant has not been able to point out that
any relevant evidence on record is not considered and it
will not be permissible for this Court to re-appreciate
the evidence and take a different view. It is submitted
that the contention on behalf of the applicant that there
is no corroborating evidence is also not correct as the
Doctor who examined the prosecutrix is examined and his
evidence supports the claim of the prosecutrix and the
case of the prosecution. It is argued that the report of
chemical analysis also supports the case of the
prosecutrix that because of the possibility of the
intercourse by the accused, there was bleeding, as
bloodstains are found on the clothes of the prosecutrix.
05. The evidence on record shows that the house
(hut) of the prosecutrix was situated in a congested
locality. In the evidence of the prosecutrix it has come
on record that Taherabi, who resided in the house
adjoining the hut of the prosecutrix was present in her
(Taherabi's) house. Though the prosecutrix has stated
that her husband and son had gone out of village on 26th
February, 2000, there is nothing on record which shows
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that the accused was having knowledge of this fact. The
prosecutrix was aged about 31 years at the time of
incident and had five children. The claim of the
prosecutrix and the prosecution that the prosecutrix
bleeded after the incident, is tried to be explained by
the defence by putting suggestion to the prosecutrix that
the bloodstains are because of menstruation cycle. Though
the Doctor who is examined by the prosecution has
admitted that in the certificate (Exh.48) it is stated
that menstruation cycle of the prosecutrix had lapsed 15
days prior to the incident, in the cross-examination, the
Doctor has admitted that it is medically not possible to
opine about it and also whether the menstruation cycle
was regular or not. The prosecutrix has stated in her
evidence that the accused dragged her inside the house
and fell her down. The medical certificate does not show
any injury on her person.
06. Though it is not permissible for this Court
while exercising jurisdiction under section 397 of the
Criminal Procedure Code to re-appreciate the evidence,
this Court cannot shirk its responsibility of examining
whether the findings recorded by the subordinate Courts
are legal and proper and based on material/evidence on
record.
. The evidence on record is not sufficient to
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prove the guilt of the accused beyond doubt and the
subordinate Courts have committed an error by recording
conviction relying on the assertions of the prosecutrix
and overlooking the medical evidence which lacks in
proving the guilt of the accused beyond doubt. In view
of the above, I find that the conviction of the applicant
is unsustainable.
. Hence, the following order is passed :-
(i)
The judgment passed by the IV Adhoc
Asstt. Sessions Judge, in Sessions Case No. 213
of 2000 on 19.11.2002 and maintained by the III
Additional Sessions Judge in Criminal Appeal
No.94 of 2002 on 23.02.2004 and the conviction
of the applicant/accused for the offence
punishable under sections 452 and 376 of the
Indian Penal Code are set aside.
(ii) The applicant/accused is acquitted of
the offence punishable under sections 452 and
376 of the Indian Penal Code.
(iii) The amount of fine deposited by the
applicant be refunded to the applicant.
(iv) The Criminal Revision Application is
allowed in the above terms.
. As there was no appearance on behalf
of the applicant when the matter was called out
for hearing on 29th September, 2016, this Court
directed issuance of non-bailable warrant to
secure presence of the applicant/accused. The
warrant could not be executed and therefore
again order came to be passed on 17.11.2016
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directing issuance of non-bailable warrant to
secure the presence of the accused before this
Court. The accused was arrested and produced on
29.11.2016 and the matter was placed before the
Court at about 06.15 p.m. On 29.11.2016 the
order was passed that the accused be sent to the
jail and be produced on 30.11.2016. When the
matter was called out on 30.11.2016, the
Advocate for the accused appeared and sought
time. Accordingly, the matter came to be
adjourned for today. The applicant/accused is
in custody. It is directed that he be released
forthwith.
[Z.A. HAQ,J.]
snk/2016/DEC16/crirev101.04
