Mansing Nanashinde vs The State Of Maharashtra
2016 Latest Caselaw 3568 Bom

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                                                                               APEAL.289-1998

Dond
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                     CRIMINAL APPELLATE JURISDICTION

                           CRIMINAL APPEAL NO. 289 OF 1998




                                                            
       MANSING NANA SHINDE                                         ..Appellant

             Vs.




                                                           
       THE STATE OF MAHARASHTRA                                    ..Respondent
                                                 -----




                                                    
       Mr. Milind Deshmukh for Appellant.
       Ms. M.R. Tidke APP for Respondent-State.
                                       ig        -----
                                     
                                            CORAM: A.S. GADKARI, J.

DATE : 4th July 2016.

ORAL JUDGMENT:

1) The appellant-original accused has questioned the correctness

of the Judgment and Order dated 22nd January 1998 passed by the IIIrd

Additional Sessions Judge, Satara in Sessions Case No.27 of 1991

convicting the appellant for the offence punishable under Section 376 of

Indian Penal Code and sentenced to suffer rigorous imprisonment for five

years and to pay fine of Rs.1000/- and in default of payment of fine to

further undergo rigorous imprisonment for three months.

APEAL.289-1998

2) The facts which are necessary and relevant to decide the

present appeal can be enumerated from the record as under:

(i) The date of alleged incident is 21.6.1990. The prosecutrix

Smt. Malan Ashok Sawant was a married woman. She was residing with

her husband, brother-in-law, father-in-law and mother-in-law at village

Ranand Taluka-Man, District-Satara. That on the date of incident, her

father-in-law and her husband and brother-in-law Popat went to village

Pimpri for settling the marriage of Popat. The prosecutrix at about 10.00

a.m. took their she-goats for grazing in the field named as "Sanand". The

prosecutrix was accompanied by her friend namely Miss. Suman. Her

mother-in-law had gone for doing the labour work of weeding. It is the

prosecution case that three-to-four labourers were also working in the

nearby field. That the appellant who was in acquaintance with the

prosecutrix came at the said spot and started collecting Jambhul fruits and

also tried to gave it to the prosecutrix. The prosecutrix refused to accept

the same. At that time the goats and buffaloes entered in the adjoining

sugarcane crop. Suman the friend, told the prosecutrix to drove them out.

The prosecutrix therefore went to the filed of Sanand and started driving

out the cattle. The appellant followed the prosecutrix, pulled her saree,

APEAL.289-1998

gaged her mouth, lifted and took the prosecutrix to the sugarcane field and

thereafter committed sexual assault on her. The prosecutrix raised hue and

cry, however, nobody came forward to rescue her. The prosecutrix

thereafter came to her house and informed the said incident to her mother-

in-law. After her husband and father-in-law returned to the said village, she

lodged the first information report on 24.6.1990.

(ii) Shri M.M. Dhane, Asstt.Sub-Inspector was then working as a

Police Head Constable and was attached to Dahivadi police station,

District-Satara registered the crime bearing No.58 of 1990 under Section

376 of the Indian Penal Code. He thereafter carried out the investigation

and after receipt of necessary documents, P.S.I. Shri Pandhare submitted

chargesheet in the Court of Judicial Magistrate First Class, Dahivadi,

District-Satara.

(iii) The learned Judicial Magistrate First Class, Dahivadi

committed the said case to the Court of Sessions under Section 209 of Cr.

P.C.. After committal of the case, the learned Trial Court framed charge

below Exhibit-3. The said charge was read over and explained to the

appellant in vernacular language to which he denied and claimed to be

tried. The defence of the appellant is that, as the appellant and his family

were cultivating the land of one Smt. Parubai, the husband of the

APEAL.289-1998

prosecutrix was enraged and therefore this false case is filed against him.

(iv) The prosecution in support of its case examined in all five

witnesses. The learned Trial Court after recording the evidence and after

hearing the parties to the said case was pleased to convict the appellant by

the impugned Judgment and Order dated 22.1.1998 as stated herein above.

3) Heard Mr. Milind Deshmukh, the learned counsel for the

appellant and Smt. M.R. Tidke, the learned APP and also perused the entire

record pertaining to the present case produced before me.

4) The learned counsel for the appellant submitted that, bare

perusal of the evidence of the prosecutrix would disclose that, it was a

consensual act between the two adults. He submitted that though the

prosecutrix has stated that her mother-in-law and other labourers were

working in the field of Sanand, after her alleged cries, nobody came to her

rescue which itself shows that the prosecutrix had her consent to the said

act. He submitted that the date of incident is 21.6.1990 and the prosecutrix

has lodged the first information report on 24.6.1990 i.e. after three days. He

submitted that there is no evidence at all on record to show that, the

appellant is the perpetrator of the said crime. He submitted that in view of

the facts and circumstances of the case, it is apparent that the appellant has

been implicated in a false case. He therefore prayed that the present appeal

APEAL.289-1998

may be allowed and the appellant be acquitted from the charge framed

against him.

Per contra, the learned APP opposed the present appeal and

submitted that the statement of the prosecutrix itself is sufficient to base the

conviction of the appellant. She submitted that the statement of the

prosecutrix is trustworthy and reliable. She therefore submitted that the

present appeal may be dismissed and the conviction and sentence imposed

upon the appellant by the Trial Court may be confirmed.

5) The prosecution in support of its case examined in all five witnesses.

The prosecutrix has been examined as PW-1. In her testimony

she has stated that on the date of incident, she went to graze the she-goats

in the field known as 'Sanand'. That her mother-in-law had gone for the

work of weeding. Her friend Miss. Suman (PW-3) was with her and the

said Suman was also grazing her buffaloes. She has stated that there was no

one present other than Suman when the incident occurred. She has stated

that at that time the goats and buffaloes entered in the sugarcane crop

therefore Miss. Suman told her to drive them out from the crop.

Accordingly the prosecutrix (PW-1) went to the filed of Sanand and

started driving out the cattles. She has stated that the appellant followed

her, lifted her and took her in the sugarcane crop and thereafter committed

APEAL.289-1998

sexual assault on her for two to three hours. That thereafter she returned

home and narrated the incident to her mother-in-law. However as no male

member was present in the house, she did not lodge the complaint. She

deposed that after the said incident, she washed out her clothes and took

bath for three days.

In her detailed cross-examination it is brought on record that

her husband was claiming rights in the property of Smt. Parubai. That the

said property was situated in her village. That the appellant was defending

the title on behalf Salubai Bhosale i.e. the legal heir of Smt. Parubai. She

has further admitted that when the incident occurred her mother-in-law was

doing the work of weeding and the owner of the said field and some

labourers were also present there. The entire filed was of one-and-half

acres. She has admitted that she did not bite or scratch the appellant by

nails. That she had shouted and the appellant left from the spot on bicycle.

That the witness Miss. Suman was standing about twenty feet from the

place of incident. She has further admitted that after returning home, she

did not go to the house of the Police Patil to lodge the complaint. That

immediately after two days she had been to the spot of incident for grazing

the goats.

APEAL.289-1998

PW-2 is Ashok B. Sawant, the husband of the prosecutrix

with whom the prosecutrix confided about the incident after his returning

to the village. His evidence is a corroborative piece of evidence to support

the statement of the prosecutrix as he was not present on the date of

incident and subsequent to his arrival from the other village the prosecutrix

informed him about the alleged act. No material evidence beneficial to the

prosecution is brought on record from his testimony.

PW-3 is Miss. Suman, the friend of the prosecutrix who did

not support the case of the prosecution and was declared hostile. In her

cross-examination by the learned APP, she has admitted that the prosecutrix

was not shouting at the time of incident and the appellant did not threaten

her.

PW-4 Shri Rajkumar L. Kharat, is the nephew of PW-2 Ashok

Sawant. This witness has deposed that on the date of incident, he returned

from the field at about 3.30 p.m. That when he was returning to home, he

noticed the appellant was returning on bicycle to his house. The evidence

of this witness is not at all useful to the prosecution to prove any of the

circumstance in the offence against the appellant.

APEAL.289-1998

PW-5 is the Investigating officer of the present crime. He has

recorded the first information report bearing Crime No.58 of 1990 under

Section 376 of the Indian Penal Code and has investigated the case. The

evidence of this witness is formal in nature and the appellant in the cross-

examination of this witness has put only stock questions to the said

witness. Except the facts pertaining to the registration of crime and its

investigation, no other material is elicited at the instance of this witness.

6) Thus after taking into consideration the entire evidence

available on record of the present case, it is clear that the appellant is

successful in brining on record the admissions given by the prosecutrix.

The prosecutrix (PW-1) in her testimony has admitted that the appellant

committed sexual assault on her for two to three hours on the date of

incident. That she washed out her clothes and also took bath for next three

days. That there is enmity between the appellant on one side and the

husband of the prosecutrix on the other side over the property of Smt.

Parubai. The prosecutrix has further admitted that when the incident took

place her mother-in-law was working in the said field at Sanand and was

doing the work of weeding. That the owner of the said filed and other

labourers were also present in/near the field. That the witness Miss. Suman

was standing 20 feet away from the spot of incident.

APEAL.289-1998

7) In view of the aforesaid admissions given by the prosecutrix,

it clearly appears that the version narrated by the prosecutrix is an

improbable version. If the prosecutrix was shouting and/or making hue

and cry and there were other labourers working in the field including her

mother-in-law near the spot, then it is difficult to accept that nobody came

to her rescue. Despite the said persons were present in the very close

vicinity of the prosecutrix, none came to rescue her is not acceptable. It is

further to be noted here that after returning home the prosecutrix did not

lodge the complaint to the Police Patil of the village. She not only washed

her cloths, but also took bath and after a gap of three days, she lodged the

report on 24.6.1990 with the police. It thus appears that the version of the

prosecutrix is not only improbable but also not reliable and trustworthy. It

is therefore clear from the record that the alleged act committed by the

appellant was a consensual act and as the husband of the prosecutrix was

having enmity with the appellant over the land of Smt. Parubai, the crime

was registered against the appellant.

8) After taking into consideration the facts and circumstances of

the case, I am of the considered view that the prosecution has failed to

prove the guilt of the appellant beyond reasonable doubt and the appellant

is entitled for benefit of doubt. The appellant therefore succeeds in the

APEAL.289-1998

present appeal.

9) In the premise, the appeal is allowed. The conviction and

sentence of the appellant under Section 376 of the Indian Penal Code by

the impugned Judgment and Order dated 22.1.1998 is hereby quashed and

set aside. Fine, if any, paid by the appellant be returned to him after

completing necessary formalities.

                                    ig           (A.S. GADKARI,J.)