Bombay High Court
Vishnu Asaram Rathod vs The State Of Maharashtra on 9 March, 2016
Bench: N.W. Sambre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 553 OF 2015
Vishnu Asaram Rathod,
Age: 32 years, Occ: Labour,
Residing at Amdar Colony, Jintoor,
Tq. Jintoor, Dist. Parbhani. ...Appellant
versus
The State of Maharashtra,
(At the instance of Jintoor Police
Station, Parbhani) ig ...Respondent
.....
Mr. Y.B. Bolkar, Advocate for appellant
Mr. R.V. Dasalkar, A.P.P. for respondent
.....
CORAM : N.W. SAMBRE, J.
DATE : 9th MARCH, 2016
ORAL JUDGMENT :
Heard learned Counsel for the appellant and learned
A.P.P. for the State.
2. Present appellant is convicted by learned Extra Joint
Adhoc Additional Sessions Judge, Parbhani, by the judgment and
order dated 26/03/2015 in Sessions Case No. 91 of 2012, for an
offence punishable under Sections 452 and 366-A of the Indian Penal
Code and sentenced to suffer rigorous imprisonment for two years for
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the offence punishable under Section 452 of the Indian Penal Code
and fine of Rs.500/-, in default to suffer further simple imprisonment
for one month and sentenced to suffer rigorous imprisonment for four
years for the offence punishable under Section 366-A of the Indian
Penal Code and fine of Rs.1000/-, in default to suffer further simple
imprisonment for two months. It is ordered that both the sentences to
run concurrently.
3.
Prosecution case as against the present appellant-
accused are as under :-
The alleged incident took place on 03/08/2011 in Zilla
Parishad School after midnight, around 00-30 hours, when the
appellant-accused unlatched door with the help of wire and entered
into the house of complainant Muktabai, picked up her daughter
Pooja and took her away by gagging her mouth. The complainant
Muktabai, her mother-PW-1 awaked due to said events and saw the
accused entering into her house, picking up her daughter Pooja,
aged about 10 years and went out of the house. The complainant
raised shouts and started following him. The accused went towards
ground of zilla parishad school and on hearing her shouts, her
neighbours rushed for help and saw the accused was kissing Pooja,
daughter of complainant and was also trying to cause burns on her
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cheeks with burning cigarette.
4. On 03/08/2011, pursuant to the complaint of PW-1
Muktabai, an offence punishable under Section 452 and 366-A of the
Indian Penal Code came to be registered. After the investigation,
charge sheet in the matter was filed.
5. The prosecution examined in all five witnesses; PW-1
Muktabai Shinde, mother of victim, who saw somebody carrying her
daughter Pooja towards zilla parishad school, PW-2 Pooja, victim,
PW-3 Dr. Girish Gupte, Medical Officer, PW-4 Sukhdeo Shinde,
father of victim, PW-5 P.I. Vilas Nikam, the Investigating Officer.
6. Based on the evidence of above referred witnesses,
learned Sessions Judge has held the accused guilty. As such, the
present appeal against the conviction, under Section 372 of the Code
of Criminal Procedure.
7. At the outset, it is required to be noted that PW-4
Sukhdeo, father of victim Pooja and husband of complainant
Muktabai, PW-1, is not an eye witness but has deposed on the basis
of hearsay evidence. So far as evidence of PW-3 Dr. Girish Gupte,
Medical Officer is concerned, he has denied issuance of medical
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certificate. The panch witnesses to the spot panchnama namely
Vishnu Pawar and Dnyaneshwar Chavhan were not examined and
as such, spot panchnama was not proved.
8. The prosecution case only based on evidence of PW-1
complainant Muktabai. The perusal of her deposition depicts that
she was examined at Exhibit-26 and claimed in her examination in
chief that on the date of crime, she was sleeping on the floor
alongwith her two daughters, at around midnight, sound of outer gate
was noticed and then noticed that elder daughter Pooja was not on
her bed. When she went towards gate, she saw the accused was
carrying her daughter Pooja towards zilla parishad school and she
raised alarm, resulting into gathering of people. In response to her
loud cry, people started following the accused, hence the accused
left the daughter of complainant in the room of the school and ran
away from there. It is then claimed that she went to the police
station, after police vehicle arrived at the school, along with her
daughter Pooja and son, lodged complaint and signed the same. She
proved the complaint (Exhibit-27).
9. In the cross examination, PW-1 stated that the contents
of the complaint was not read over to her. She further stated that
police obtained her signature on 4 to 5 blank papers. The omission
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could be noticed by not mentioning about the events as regards
sound of outer gate, phone call made to the police. She then
claimed that after she raised alarm, having seen the accused taking
away her daughter, the people residing around namely Wakale,
Deshmukh and one Sanjay followed the accused. From her
evidence, it could be gathered that she gave signature to the police
on 4 to 5 blank papers, complaint (Exhibit-27) was not read over to
her before her signing. She has also not mentioned in F.I.R. about
making phone call to the police. It is also required to be noted that
she stated about the presence of watchman in the school, however, it
is to be noted that watchman of the school was not examined. Apart
from above, from the record it depicts that the persons who claimed
to have followed the accused when he took away the daughter of
complainant namely Wakale, Deshmukh and Sanjay are also not
examined. As such, from the testimony of the complainant, it cannot
be ascertained whether the alleged crime actually took place.
10. The victim Pooja was examined at Exhibit-28 being
minor, in question answer form. She has deposed altogether
different story as regards happening of the incident. She claimed
that place of incident is court yard, whereas PW-1 complainant
claims it to be in the class room. She then claimed that the accused
caused burn injuries on her cheek with cigarette. She claims that the
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neighbours called police and the accused ran away from the spot
after he was noticed by her mother. In her cross examination, she
narrates that she was unable to state as to who has entered the
house and who has picked her up. The alleged story of kissing by
present appellant-accused to the victim Pooja is neither narrated by
PW-1 complainant nor victim PW-2.
11. PW-3 ig Dr. Girish Gupte, who according to the
prosecution, has issued injury certificate, is examined at Exhibit-32
and he has in clear terms stated that the injury certificate is not
issued by him. PW-4 Sukhdeo, father of victim and husband of
complainant claimed that on the date of incident, he was not
available and had gone out of station, however, he came to know
about the incident after he returned back from his wife. PW-5 Vilas
Nikam, the Investigating Officer, though has claimed that the accused
gagged mouth of the victim, however, same does not appear in the
story narrated by the complainant or victim. It is then required to be
noted from his cross examination that he has come out with
altogether different story stating that victim Pooja went for urination in
the night and was taken away by the accused. His evidence does
not repose any confidence. He has neither held any identification
parade nor seized clothes of Pooja.
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12. Upon analysis of oral evidence that is brought on record
so as to ascertain the guilt of the accused, it could be inferred that
the appellant-accused is falsely implicated in the crime in question. It
is required to be noted that the story as is narrated by the
complainant does not appear to be probable one, as is apparent from
her narration and particularly in absence of examination of watchman
of the school, and other persons namely Wakale, Deshmukh and
Sanjay, in support of the prosecution case. PW-3 Dr. Girish Gupte
has denied issuance of medical certificate, which speaks of false
implication of the appellant. Apart from above, even if the
independent analysis of evidence of the complainant Muktabai and
victim Pooja, in my opinion, no case as is alleged against the
accused could be proved beyond reasonable doubt.
13. As a consequence of above, present appeal needs to be
allowed and accordingly, is allowed.
(i) The judgment and order passed by learned Extra Joint
Adhoc Additional Judge, Parbhani in Sessions Case No. 91 of 2012
on 26/03/2015 is hereby quashed and set aside.
(ii) The present appellant is acquitted of the offence
punishable under Section 452 and 366-A of the Indian Penal Code.
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(iii) The appellant be set free forthwith, if not required in any
other crime, and fine amount, if any, be refunded to him, after
cancelling his bail bonds, after appeal period is over.
14. Record and Proceedings be sent back to the concerned
Court forthwith.
ig Sd/-
[ N.W. SAMBRE, J. ]
Tupe/
