Mithun S/O Durgaprasad Barsagade ... vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 1492 Bom

apeal.268.16.jud.doc                           1


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


                    CRIMINAL APPEAL NO.268 OF 2016


Mithun s/o Durgaprasad Barsagade,
Aged 23 years, Occupation : Cultivator,
R/o Rengegaon, Tahsil Dhanora,
District Gadchiroli.                                                   .... Appellant

                -- Versus --

The State of Maharashtra,
Through Police Station Officer, Dhanora,
Tah. Dhanora, District Gadchiroli.                                 .... Respondent

                          -------------
Shri P.A. Gode, Advocate for the Appellant.
Shri R.S. Nayak, Additional Public Prosecutor for the Respondent/State.
                          -------------


                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 6, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 12/02/2016 passed by the learned Special Judge,

Gadchiroli in Special POCSO Case No.12/2014. By the said

judgment and order, appellant-accused was convicted of the

offence punishable under Section 376(2)(i) of the Indian Penal

Code and sentenced to undergo rigorous imprisonment for a

period of ten years with fine of Rs.5,000/-, in default to suffer

rigorous imprisonment for six months. Accused was also

convicted under Section 3 read with Section 4 of the Protection

of Children from Sexual Offences Act, but no separate sentence

was awarded for the same.

02] For the sake of convenience, appellant shall be

referred in his original status as accused, as he was referred

before the trial Court.

03] The prosecution case, which can be revealed from the

charge-sheet and connecting papers thereto, may be stated, in

brief, as under :

i. Complainant PW-1 Sarita Suresh Ibattiwar was

resident of Rengegaon, Tahsil Dhanora, District

Gadchiroli. Victim is her young daughter. Accused is

resident of the same village.

ii. On 24/05/2014, there was a marriage ceremony at the

house of uncle of victim. She and her cousin had

gone to fetch water at around 07:45 p.m. After some

time, she had been to answer nature's call. For long

she did not come back. So complainant Sarita made

her search. Victim was not found.

iii. At around 09:30 p.m., mother of victim saw victim

coming. Soon she reached the courtyard, victim fell

down and became unconscious. She was taken to

Rural Hospital, Murumgaon. From Murumgaon, she

was referred to Dhanora Rural Hospital and then to

General Hospital Gadchiroli. After victim regained

consciousness, she disclosed the incident to her

mother. She narrated that when she had been to

answer nature's call, accused and his one friend

suddenly came there. They gagged her mouth and

closed her eyes with handkerchief. She was taken to

nearby place, where accused committed forcible

sexual intercourse with her. After the act was

committed, with an apprehension that victim may die,

cloth was removed from her mouth and accused and

his friend fled away. She could anyhow manage to

put on her clothes and reach the house.

iv. On 26/05/2014, incident was reported to Gadchiroli

Police Station. It was then transferred to Dhanora

Police Station. Crime No. 23/2014 came to be

registered against the accused. S.D.P.O. Bapu Bangar

[PW-6] took over investigation. He visited the place of

occurrence and recorded spot panchnama. Medical

papers of victim were collected. The clothes of victim

and accused were seized. Their blood samples were

taken. Seized articles were sent to Chemical

Analyzer. During investigation, statements of

witnesses were recorded. On completing

investigation, charge-sheet was submitted to the

Court.

04] Charge came to be framed against the accused vide

Exh.5. He pleaded not guilty and claimed to be tried. His

defence is of total denial and false implication. It is the defence

of accused that some labourers were working on Tendu leave

collection work and some of them might be responsible for the

alleged sexual act. Regarding age of victim, it appears that there

is no serious dispute that she was 14 years old at the relevant

time.

05] To substantiate the guilt of accused, prosecution

examined in all six witnesses, including the victim and her

mother PW-1 complainant-Sarita. Considering the evidence of

prosecution witnesses and submissions made on behalf of the

parties, trial Court came to the conclusion that offence of sexual

assault has been proved against the accused and accordingly

accused was convicted, as stated hereinabove in paragraph 1.

Being aggrieved by the judgment and order of conviction,

present appeal has been preferred by the original accused.

06] With the assistance of the learned Counsel for parties,

this Court has gone through the evidence of prosecution

witnesses. On meticulous evaluation of evidence of victim

[PW-2], complainant-Sarita [PW-1] and Investigating Officer,

S.D.P.O. Bangar [PW-6], this Court, for the below mentioned

reasons, is of the view that prosecution could not prove the guilt

of accused beyond reasonable doubt.

07] PW-2 victim is the star witness. She states that on

the day of incident, there was a marriage at the house of her

uncle Dilip. She was fetching water from the bore-well. She had

stomach pain and so she went to answer nature's call. According

to prosecutrix, accused Mithun arrived there. He held her hand,

took her below the bridge, unclothed himself, removed her

clothes and then committed rape on her. Thereafter, he ran

away. She states that anyhow she could put on her clothes and

came home. Then she became unconscious. She regained

consciousness in the hospital at Gadchiroli and narrated the

incident to her mother.

08] PW-1 Sarita is mother of prosecutrix. She states that

on the day of incident, she sent her daughter for fetching water

from the house of brother of her husband. Her daughter did not

return for a long. She made her search. At 09:30 p.m., her

daughter returned home. The evidence of Sarita shows that her

daughter was not able to control herself and she fell unconscious

in the courtyard. She was taken to hospital at Murumgaon, then

to Dhanora and brought to Gadchiroli. It is stated by Sarita that

at around 04:00 to 04:30 a.m, her daughter regained

consciousness and disclosed the incident to her. It is stated that

her daughter went to answer nature's call. That time, accused

Mithun and his unknown friend took her under the bridge and

committed rape on her. After her daughter narrated the

incident, she lodged report with the police. The said report is at

Exh.10 and printed F.I.R. is at Exh.11.

09] From the F.I.R. and testimony of complainant-Sarita, it

is apparent that a friend of accused had accompanied him at the

time of alleged act of sexual assault and this fact was narrated

by prosecutrix to her mother. In the evidence of prosecutrix,

there is no whisper regarding presence of friend of the accused.

She states only about presence of accused and not of his friend.

10] The next important fact which cannot be lost sight of

is regarding unexplained delay in lodging F.I.R. If evidence of

complainant is looked into, it appears that at around 04:00 to

04:30 a.m., on 25/05/2014, incident was disclosed to her by her

daughter. Report was lodged on 26/05/2014. Medical Officer

has not been examined to show that victim was unconscious

and, therefore, she could not disclose the incident at the earliest

possible opportunity.

11] Needless to state that in a case of sexual assault,

medical evidence plays a vital role. Prosecution in it's wisdom

chose not to examine the Medical Officer. Medical certificate has

been proved in the evidence of Investigating Officer PW-6 SDPO

Bapu Bangar in a mechanical way. The said medical certificate is

at Exh.25. The certificate shows that 'old hymen tear' was

noticed by Medical Officer. No fresh injuries were found on the

private part of prosecutrix. It means, medical evidence is in the

negative and it does not corroborate the evidence of start

witness prosecutrix [PW-2].

12] In the above background, impugned judgment and

order of conviction and sentence would be unsustainable in law

and appeal deserves to be allowed. Hence, the following order :

ORDER

[I] Criminal Appeal No.268/2016 is allowed.

[II] Impugned judgment and order dated 12/02/2016

passed by the learned Special Judge, Gadchiroli in

Special POCSO Case No.12/2014 is set aside and

instead accused is acquitted of the charge, for which

he is charged with.

[III] Accused be set at liberty forthwith, if not required in

any other offence.

[IV] Fine, if paid, shall be refunded to accused.

(Kum. Indira Jain, J.) *sdw