Yadav S/O Maroti Navghare (In ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 1582 Bom

apeal.269.16.jud.doc                         1


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

                    CRIMINAL APPEAL NO.269 OF 2016


Yadav s/o Maroti Navghare,
Aged about 40 years, Occupation : Service,
R/o Pachgaon, Tahsil Rajura,
District Chandrapur (Presently in Jail)                              .... Appellant
       -- Versus --

The State of Maharashtra,
Through Police Station Officer,
Police Station Rajura,
District Chandrapur.                                             .... Respondent

              -------------
Shri R.M. Daga, Advocate for the Appellant.
Shri I.J. Damle, Additional Public Prosecutor for the Respondent/State.
              -------------

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 10, 2017.


ORAL JUDGMENT :-

By this appeal, appellant-original accused no.1 has

questioned the correctness of judgment dated 01/07/2016

passed by the learned Additional Sessions Judge, Chandrapur in

Sessions Case No.168/2011, whereby accused no.1 has been

convicted of the offences punishable under Sections 376, 376(B)

and 506 of the Indian Penal Code sentenced as under :

Sections                Sentence

376 IPC                 R.I. for 10 years    + Fine of Rs.25,000/-, in
                                               default R.I. for 1 year.

376(B) IPC              R.I. for 5 years     + Fine of Rs.5,000/-, in
                                               default R.I. for 6 months.

506 IPC                 R.I. for 2 years     + Fine of Rs.2,000/-, in
                                               default R.I. for 3 months.

The Sessions Court directed that substantive sentence

shall run concurrently.

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] Facts, as are necessary for the decision of this appeal,

may be stated, in brief, thus :

i. Prosecutrix, a 25 year old girl, was resident of

Ambedhanora, Tahsil Pombhurna, District Chandrapur.

At the relevant time, she was residing with her grand-

mother at Rajura. Her mother was resident of

Ambedhanora.

ii. On 27/07/2011, prosecutrix joined as ANM (Nurse) in

Sub-Center Pachgaon. Incident took place on

29/07/2011. On that day, at 10:00 a.m., prosecutrix

attended her office. She kept her tiffin in the quarter

of Lata Ghorude, wife of the accused and came to

Sub-Center. She was cleaning the Sub-Center. That

time, accused came there. He sat on the chair and

asked the prosecutrix to come near him. Prosecutrix

refused for the same. Accused uttered "dq N ikus ds

fy;s dq N [kks u k iMrk gS " and caught her hand. She

tried to rescue herself. But accused did not leave her.

Thereafter, she took teeth bite on his hand and

accused left her. She then came out.

iii. At around 03:00 p.m., accused came in the quarter.

Prosecutrix had kept her tiffin, so she also came there.

Lata, wife of accused was on leave on that day and

she was not at the house. Accused made the

prosecutrix to sit on a tea table and then on sofa. He

held her hand and pressed her breast. He then closed

the door.

iv. Thereafter, accused pushed the prosecutrix and took

her to a bedroom. She was made to lie down on the

bed. Accused removed her clothes. He unclothed

himself. Prosecutrix tried to raise alarm, but accused

pressed her mouth and forcibly committed sexual

intercourse with her. Accused gave her threats not to

disclose the incident to anyone, else he being

Supervisor, would see that she should be removed

from the service. Accused then reached her to Rajura

on motorcycle.

v. On 30/07/2011 at around 08:00 a.m., prosecutrix

came to Sub-Center Pachgaon. Accused threatened

her not to disclose the incident to anyone. On

31/07/2011, prosecutrix went to her mother at

Ambedhanora and narrated the incident to her

mother.

vi. Thereafter, duo went to Police Station Rajura and

lodged report. Crime No.112/2011 came to be

registered. PW-10 API Sadanand Yerekar took over

investigation. He visited the place of occurrence and

recorded spot-panchnama in presence of panch-

witnesses. Spot was shown by complainant. A quilt

was seized from the spot. Its seizure panchnama was

separately drawn

vii. On 31/07/2011, prosecutrix was sent for medical

examination to Rural Hospital, Rajura. PW-7 Dr. Anita

Arke examined the prosecutrix and referred her to

General Hospital, Chandrapur for expert opinion.

viii. PW-5 Dr. Pallavi Ingle was Medical Officer at Civil

Hospital, Chandrapur. On 01/08/2011, she examined

the prosecutrix and opined that sexual intercourse

had taken place with the prosecutrix more than 24

hours and less than 72 hours before examination.

Samples of vaginal blood, pubic hair, nail clippings

and clothes of victim were collected and seized.

Statements of witnesses were recorded. On

15/08/2011, further investigation was handed over to

PW-11 Bharat Thakre.

ix. On 17/08/2011, accused was arrested. His clothes

were seized. Seizure panchnama of clothes of the

accused came to be recorded. He was sent for

medical examination. PW-9 Dr. Rajunand Gaikwad,

Medical Officer attached to Rajura Rural Hospital,

collected semen sample of the accused. PW-8 Dr.

Lahu Kulmethe examined the accused and noticed no

external injury on his person. Seized clothes and

samples were forwarded to Chemical Analyzer. C.A.

Reports were received. After completing investigation,

charge-sheet was submitted to the Court of Judicial

Magistrate First Class, Rajura, who in turn committed

the case for trial to the Court of Sessions.

04] On committal, charge came to be framed against the

accused for the offences punishable under Sections 376, 376(B),

506, 201 and 212 read with Section 34 of the Indian Penal Code.

05] Accused no.1, however, pleaded not guilty and

claimed to be tried. His defence was of total denial and false

implication. Two fold defence came to be raised by the accused

(i) at the relevant time, he was on visit to another Sub-Center

and he was not present at Pachgaon Sub-Center and; (ii)

prosecutrix and her mother were demanding Rs.50,000/- from

him alleging that he had taken money from maternal uncle of

prosecutrix for getting the job for her and since no money was

taken by him, he refused to pay Rs.50,000/- to the prosecutrix.

Accused submitted that since he had not paid Rs.50,000/-, he

has been roped in a false case.

06] Prosecution in support of its case, examined 11

witnesses. Accused examined four witnesses in support of his

defence. Considering the evidence of prosecution and defence

witnesses, accused came to be convicted and sentenced as

stated in paragraph no.1 above.

07] Heard at length Shri R.M. Daga, learned Counsel for

appellant and Shri I.J. Damle, learned Additional Public

Prosecutor for the State. In order to effectively deal with the

submissions, it would be useful to refer here the evidence of

prosecution witnesses.

08] PW-1 is the prosecutrix. She stated that on

27/07/2011, she joined as ANM (Nurse) in Sub-Center Pachgaon.

On 29/07/2011, she came to the office at 10:00 a.m. The

evidence of prosecutrix would indicate that she had kept her

tiffin in the quarter of Lata Ghorude, wife of accused. Lata

Ghorude was on leave on that day and she was not present in

the quarter as she was at Rajura. According to prosecutrix, after

keeping her tiffin, she called Lata Ghorude on phone, who

instructed her to clean the Sub-Center first. She was cleaning

the Sub-Center. She states that accused came there. He sat on

the chair. She was standing near the table. That time accused

told her to come closure to him. She refused. Then accused

came closure to her and said "dq N ikus ds fy;s dq N [kks u k iMrk

gS ". By saying so, he caught her hand. She tried to rescue

herself by giving jerk to his hand. But accused did not leave her.

She took teeth bite and then accused relieved her. She

immediately came out. Accused went to his quarter.

It further appears from the testimony of prosecutrix

that thereafter, she went inside the Sub-Center. When she came

out, she saw accused standing there. He asked her where was

she going. She told him that she was going to visit Anganwadi. On

that, accused asked her that she is new and what does she know

about the visit. He is supervisor. She should sit there.

Prosecutrix went inside the quarter and sat near tea-table.

Accused caught hold her hand and took her to Sofa. He told her

that her hands were soft and thereafter touched her breast. He

immediately stood up and closed the door. He pushed her and

took her to bedroom, made her to sleep on a wooden cot. She

tried to raise alarm, but accused kept hand on her mouth and

told her that if she shouts, he would kill her and he is the

Supervisor. Thereafter, he removed her clothes. He unclothed

himself and wore condom. She stated that accused forcibly

committed sexual intercourse with her. Due to forcible sexual

intercourse, she sustained bleeding. She stated that her clothes

were stained with blood. She was weeping and wore her clothes.

She then went to Sub-Center. That time accused threatened her

not to disclose about the incident to anyone, otherwise he would

kill her and oust her from service. Accused told her to sit on

motorcycle. Under the fear, she sat on motorcycle. After visit to

Anganwadi, accused left her at the place of her grandmother at

Rajura.

09] In her further evidence, prosecutrix deposed that on

30/07/2011, she went to Pachgaon on duty. On that day,

accused threatened her and touched her breast. Thereafter, she

went to village Ambedhanora. She had shown a notebook to her

mother in which she had written about the incident. She

disclosed the incident to her mother and on 31/07/2011, they

went to Police Station Rajura, where report was lodged.

Prosecutrix has proved F.I.R. Exh.47 and Printed F.I.R. Exh.48.

She identified her clothes and quilt seized from the spot.

10] The testimony of prosecutrix is assailed on behalf of

accused on the following terms.

                i. Her          evidence   is    full      of      omissions            and

                    contradictions.

                ii. No corroboration to her testimony.

iii. Medical evidence does not support the version of

prosecutrix.

iv. Unexplained delay in lodging F.I.R.

v. Her post conduct on 30/07/2011 in not disclosing

the incident to anyone, going to Sub-Center,

attending her duty and accompanying the accused

for visit to another Sub-Center.

vi. Before evidence, she was taken to D.G.P. Room by

police and tutored regarding pattern of giving

evidence.

11] In cross-examination, victim was questioned that on

the day of incident, she along with accused had been to visit

Gram Bal Vikas Kendra. She admits that she visited Gram Bal

Vikas Kendra with accused. She also admits that Sindhu

Bhiwankar and Shobha Jawade, workers were present at Gram

Bal Vikas Kendra. Her evidence shows that she did not disclose

about the incident to them. She admitted that on 30/07/2011,

accused told her to visit Ranweli and she visited Ranweli along

with the accused. During visit, she met Lata Wadgure,

Anganwadi Sevika and Smt. Todase, helper. She did not disclose

about the incident to them. Based on these admissions, learned

Counsel for appellant vehemently contended that incident, as

alleged by prosecutrix, has never occurred, else she would have

disclosed about incident immediately to the ladies to whom she

met or at least to her mother at the earliest possible opportunity.

12] It is pertinent to note that prosecutrix joined her duty

at Sub-Center Pachgaon on 28/07/2011 i.e. a day before the

incident. It is not in serious dispute that accused was in

dominating position as he was the Supervisor. Prosecutrix has

categorically stated that at the time of incident, she was

threatened by accused that in case she discloses the incident to

anyone, she would be removed from service. A girl 24 year old,

who was one day old in service, having hanging sword of threats

of removal of service, did not disclose the incident under a fear

and in such a situation, non-disclosure of incident by the

prosecutrix till 31/07/2011 cannot be considered as fatal in the

background of offence stated by the victim.

13] From the evidence of prosecutrix, it can be revealed

that she had no earlier acquaintance with the accused. It

appears that once before her joining, she came to Pachgaon Sub-

Center and that time, she saw the accused. So far as demand of

Rs.50,000/- by the prosecutrix and her mother as stated by the

accused is concerned, there is nothing on record except a bare

version of the accused to show that for getting Rs.50,000/-,

prosecutrix has gone to the extremity of making allegations of

sexual assault. She admits that accused demanded Rs.50,000/-

from her maternal uncle for getting a job for her. She made a

complaint in that regard to the Superior Officer of the accused.

But this was subsequent to the incident and not before the

incident. For getting back Rs.50,000/-, a young girl who hardly

attended her duty a day before, would not bring her character

and integrity to disrepute. The fact remains that on 29/07/2011,

prosecutrix attended the office at 10:00 a.m. and thereafter

accused taking disadvantage of his position as a Supervisor and

grabbing the opportunity of absence of his wife, sexually

assaulted the prosecutrix. On meticulous evaluation, evidence

of prosecutrix is found to be consistent, believable, trustworthy

and it inspires confidence.

14] PW-2 Premila Aitlawar is mother of prosecutrix. She

was residing at Ambedhanora . It can be seen from the evidence

of Premila that at the relevant time, prosecutrix was residing at

Rajura with her grand-mother. The victim had stated in her

evidence that she had shown a notebook in which she had

written about the incident to her mother. It appears that the said

notebook is not seized in the course of investigation. In this

connection, learned Counsel for appellant submits that one does

not know about the contents in the notebook and there is every

possibility that prosecutrix might have written something else

and, therefore, notebook has been suppressed. True, notebook

is not coming forth. It was for the Investigating Officer to seize

the notebook. Merely because notebook is not seized, inference

cannot be drawn against the prosecutrix that story was

something else and not as stated by the prosecutrix. The

evidence of prosecutrix would clearly indicate that she had no

reason to grind an axe against the accused.

15] So far as the medical evidence is concerned, PW-5

and PW-7 are the Medical Officers, who examined the victim at

Rural Hospital, Rajura and General Hospital, Chandrapur. PW-7

Dr. Anita admitted in unequivocal terms that she could not give

definite opinion regarding sexual intercourse with the prosecutrix

and so she referred the victim to General Hospital, Chandrapur.

It is, however, evident from the evidence of PW-7 that during

examination, victim stated history of sexual assault two days

before i.e. on 29/07/2011. On internal examination, Doctor

noticed fresh vaginal bleeding present, both thighs matted with

blood, hymen ruptured, abrasion above 1 cm size on 6 O'clock

position with painful swelling, tenderness present over hymen

and age of injury 1-2 days before the examination.

16] PW-5 Dr. Pallavi Ingle, Medical Officer at General

Hospital, Chandrapur examined the victim on 01/08/2011.

Incident took place on 29/07/2011. It is stated by Dr. Ingle that

patient gave history of sexual assault by her Supervisor Yadav

Navghare at PHC Dewada on 29/07/2011 at 03:00 p.m. She also

told the Doctor that she lodged report at Rajura Police Station on

31/07/2011. She also told the Medical Officer that during sexual

intercourse, condom was used.

17] On examination, Dr. Ingle found small abrasion of 1

cm present over posterior fornix. She found dried blood present.

On separation of labia, fresh bleeding started. She noticed that

hymen was torn. Reddish at 6 O'clock position. PV examination

was painful and vagina was tender. She collected nail clipping

and handed over to LPC Sweta. Dr. Ingle opined that intercourse

had taken place with the victim. She also opined that dried

blood and abrasion were showing that intercourse had taken

place more than 24 hours and less then 72 hours of the

examination. Medical Certificate [Exh.62] is proved by Dr. Ingle.

From the evidence of Dr. Ingle, it is apparent that sexual

intercourse had taken place with the victim more than 24 hours

and less than 72 hours of examination. This fully supports the

evidence of prosecutrix that she was sexually assaulted on

29/07/2011.

18] It is the case of prosecution that after his arrest,

accused was referred for medical examination and no external

injury as stated by PW-8 Dr. Kulmethe was found on the person

of accused. It is not in dispute that accused was arrested on

17/08/2011. It means accused was not immediately sent for

medical examination. In this situation, it may be possible that no

external injuries were found on his person and this by itself

cannot be a ground to discard the testimony of prosecutrix and

the medical opinion given by the Medical Officer of the General

Hospital, Chandrapur, who is an independent witness.

19] The next ground, on which evidence of prosecutrix is

assailed by the appellant, is her admission in cross-examination

that "before deposing in the Court today and prior to this, I was

tutored in the DGP room by police on the pattern of giving

evidence". Referring to this admission, learned Counsel for

appellant strenuously submitted that such a course is not

permissible and there was no need for the prosecution to take

her to D.G.P. Room and tutor about the manner of evidence to be

given in the Court. In support thereof, learned Counsel relied

upon the decision of the Division Bench of this Court in Suresh

Purushottam Ashtankar vs. The State of Maharashtra and

another - [2015 ALL MR (Cri) 4243] and the decision of the

learned Single Judge of this Court in Sharad Namdeorao

Shirbhate vs. State of Maharashtra - [2007 ALL MR (Cri)

352].

20] In the case of Suresh Ashtankar (supra), accused was

charged with the offence of murder and in the cross-

examination, PW-1 Ku. Sharyu admitted that "it is true that,

today, I have read my statement. It is true that police had given

the same to me. It is true that the said police officer is sitting in

the Court hall". In this background, paragraph 10 of the decision

in Sharad Shirbhate was referred by the Division Bench of this

Court. It reads thus :

32. In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PW-1) has admitted that the police had read over his statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus:

"There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PW-2 Prabhakar taken by learned Counsel for the appellant is valid".

21] In the light of the facts in the case referred above,

Division Bench of this Court approved the dictum of the learned

Single Judge in that behalf.

22] In the present case, learned A.P.P. pointed out Marathi

deposition of the prosecutrix and submitted that English

translation regarding tutoring is totally incorrect. In Marathi, the

admission of prosecutrix is recorded as "vkt dks V kZ r ;s . ;kiq o hZ

vkfZ . k ekxP;k rkj[ks y k ljdkjh odhyka P ;k dk;kZ y ;k e?;s lka x .;kr

vkys dh] d'kk jhrhus lk{k n~ ; k;ph vkgs" (today, before coming to

the Court and on last date, in the office of the Government

Pleader, it was told in what manner, evidence is to be given).

23] On reading Marathi deposition of the victim, it is

apparent that English translation is not the true and correct

translation of Marathi version of prosecutrix. Needless to state

that in case of conflict, Marathi deposition would prevail. If

Marathi version is taken into consideration, it can be seen that

no where prosecutrix says that she was tutored, she was taught,

she was told by police how the evidence was to be given in the

Court. In the facts of the present case, this Court is of the

humble view that proposition of law laid down by the Division

Bench in the case of Suresh Ashtankar (supra) and the learned

Single Judge in the case of Sharad Shirbhate (supra) would not

be applicable and the evidence of prosecutrix cannot be

discarded on this count.

24] Prosecution has examined PW-2 Premila, mother of

prosecutrix, to whom incident was disclosed on 31/07/2011. This

witness corroborates the testimony of prosecutrix regarding

disclosure of the incident. As stated above, medical evidence

also to a large extent corroborates the testimony of PW-1 victim.

25] The evidence on seizure of clothes of prosecutrix and

accused is assailed on the ground of sealing. Learned Counsel

for appellant submitted that articles were not sealed and non-

sealing vitiates the entire seizure procedure. It is further

submitted that C.A. Reports [Exhs.100 and 101] are in the

negative and, therefore, accused cannot be connected with the

crime. On scrutiny of evidence on seizure, this Court finds that

submission made on behalf of the accused cannot be said to be

without substance. This piece of evidence is, therefore, kept out

of consideration.

26] Though accused raised plea of alibi stating that at the

time of occurrence of incident, he was not at Pachgaon Sub-

Center, but was present at another Sub-Center and he examined

four witnesses in support of his defence, Trial Court has rightly

disbelieved their evidence for want of legal proof. No original

record came to be produced before the Court and it appears that

only photostate copies were produced and exhibited in the

course of evidence of defence witnesses. All the defence

witnesses are interested persons and there is reason for them to

side the accused. So far as demand of Rs.50,000/- by the

prosecutrix and her mother is concerned, accused could not

establish that for getting the amount of Rs.50,000/-, a young girl

could invite disrepute to her character and chastity. Thus

defence raised prima facie appears to be feeble and weak and

cannot be accepted, even on preponderance of probabilities.

27] Accused is also convicted under Section 376(B) of the

Indian Penal Code. Section 376(B) has been added by 2013

amendment and incident in the present case is of the year 2011

i.e. prior to the amendment. The offence under Section 376(B)

relates to sexual intercourse by the husband upon his wife

during separation. It is no one's case here. On facts, provisions

of Section 376(B) of the Indian Penal Code would not be

attracted in the present case and so on this ground alone

conviction of appellant under Section 376(B) of the Indian Penal

Code is liable to be set aside. Regarding other offence,

prosecution has proved the case beyond all reasonable doubt as

discussed above and, therefore, judgment and order of

conviction to that extent would be sustainable in law. Hence, the

following order :

ORDER

i. Impugned judgment and order of conviction of the

appellant passed by the learned Additional Sessions Judge,

Chandrapur, dated 01/07/2016 in Sessions Case

No.168/2011 for the offences punishable under Sections

376 and 506 of the Indian Penal Code is confirmed.

ii. Impugned judgment and order of conviction of appellant in

the case referred at (i) above under Sections 376 (B) of the

Indian Penal Code is set aside. Accused is acquitted of the

offence under Section 376(B) of the Indian Penal Code.

iii. No order as to costs.

iv. Appeal stands disposed of in the above terms.

(Kum. Indira Jain, J.) *sdw