Bombay High Court
Anant @ Anna Shankar Shivde vs The State Of Maharashtra on 17 April, 2017
Bench: A.M. Badar
25-APPEAL-449-2013-APPA-587-2013-SOMO-1-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.449 OF 2013
WITH
CRIMINAL APPLICATION NO.587 OF 2013
IN
CRIMINAL APPEAL NO.449 OF 2013
ANANT @ ANNA SHANKAR SHIVDE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
WITH
SUO MOTU NOTICE NO.1 OF 2016
HIGH COURT ON ITS OWN MOTION )...APPELLANT
V/s.
ANANT @ ANNA SHANKAR SHIVDE )...RESPONDENT
Mr.V.V.Purwant a/w. Mr.Sachin Deokar, Advocate for the
Applicant / Appellant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 17th APRIL 2017.
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JUDGMENT :
1 While considering application for suspension of
sentence and releasing the applicant / accused on bail, this court
on 3rd May 2013 was pleased to issue a notice for enhancement of
the sentence imposed on the applicant / accused. Today, the
application for suspension of sentence and releasing the
applicant / accused on bail along with suo moto notice for
enhancement of sentence came up for hearing and both parties
have advanced their arguments thereon and prayed that the
appeal may also be disposed of as they have nothing more to
submit even on merits of the case. That is how, the appeal is
being decided.
2 This is an appeal challenging the judgment and order
dated 20th March 2013 passed by the learned Ad-hoc Additional
Sessions Judge, Kalyan, in Sessions Case No.184 of 2011,
whereby, the appellant / accused is convicted of offences
punishable under Sections 363, 376 and 506 of the IPC. For
offences punishable under Sections 363 and 376 of the IPC, the
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appellant / accused is sentenced to suffer rigorous imprisonment
for a period of 4 years on each count and for the offence
punishable under Section 506 of the IPC, he is sentenced to suffer
rigorous imprisonment for a period of 1 year. The learned trial
court directed that all substantive sentences to run concurrently.
3 Facts leading to the institution of the present appeal
can be summarized thus :
The prosecutrix (PW1) is an adult lady residing at
Village Dalal Pada. Her mother PW2 Vithabai had deserted father
of the prosecutrix, who was residing at Bhavarthe Pada, since
childhood of the prosecutrix. Both mother and daughter were
residing with Jaywant Dalal - brother of PW2 Vithabai since prior
to about 18 years of the incident in question. Jaywant - brother
of PW2 Vithabai was residing with his wife, one unmarried
daughter and two sons, apart from the prosecutrix and her mother
at Village Dalal Pada.
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4 According to the prosecution case, the incident took
place on 12th June 2011. One month prior to the incident, the
prosecutrix had been to T.D.C. bank at Shenva for depositing bill
of electricity charges. When she was waiting for a bus at Shenva
Naka, the appellant / accused came there and asked her whether
she wants to marry or not. The prosecutrix did not reply.
5 On 12th June 2011, the prosecutrix was all alone in her
house at Dalal Pada. At about 12.30 p.m., the appellant /
accused came to her house and informed her that her brother has
met with an accident and he is lying on road. He directed her to
take money for admitting her brother to hospital and accordingly,
the prosecutrix took an amount of Rs.1100/- and went with the
appellant / accused. It is case of the prosecution that the
appellant / accused had brought a jeep which was parked on road
and the driver thereof was sitting at the steering wheel. The
appellant / accused then pushed the prosecutrix on the seat of the
jeep, tied her mouth by a handkerchief and took her to Kalwada
forest area. He took her out from the jeep, pushed her on the
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stones, removed her clothes as well as his clothes, and committed
rape on her. A person riding on the scooty saw her and stopped.
He asked the prosecutrix as to what happened. She disclosed the
incident to him. He made her to wear her clothes and brought her
to Village Dolkhamb. On his instructions, she sat in the S.T. Bus
and went to Shahapur. The appellant / accused chased her. By a
rickshaw, she then went to Shahapur Police Station. There, she
disclosed the incident to police. Police from Kinhavali Police
Station were then called. The prosecutrix then lodged her report
at Exhibit 14 which resulted in registration of Crime No.I-30 of
2011 for offences punishable under Sections 376, 363 and 506
read with 34 of the IPC.
6 During the course of investigation, the Investigating
Officer has visited the spot of the incident and seized articles
found on the spot. Photographs of the spot of the incident were
taken. The prosecutrix was subjected to medical examination.
The accused came to be arrested. Sample of his semen was taken.
Statement of witnesses came to be recorded and on completion of
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routine investigation, the appellant / accused came to be charge-
sheeted.
7 The learned trial court framed charges for offences
punishable under Sections 363, 376 and 506 of the IPC against
the appellant / accused. He abjured his guilt and claimed trial. In
support of its case, the prosecution has examined as many as nine
witnesses. The defence of the appellant / accused is that of total
denial. According to defence, there was a love affair between the
prosecutrix and the appellant / accused and the prosecutrix
proposed to marry her but that proposal came to be rejected by
the appellant / accused and then the prosecutrix started
demanding money from him, which ultimately resulted in his false
implication.
8 After hearing the parties, the appellant / accused came
to be convicted and sentenced as indicated in the opening
paragraph of this judgment.
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9 I have heard the learned advocate appearing for the
appellant / accused. He argued that entire evidence of the
prosecution is suffering from several infirmities and
inconsistencies. The prosecution has sought to establish totally
improbable case and evidence of the prosecutrix, who is an adult
lady, does not inspire confidence to base conviction. Her evidence
is unsupported by medical evidence on record. Though it is case
of the prosecution that the incident was witnessed by a rider of
the scooty and he had taken the prosecutrix to Village Dolkhamb,
this witness is not traced out and examined by the prosecution.
Driver of the jeep by which the prosecutrix was allegedly taken is
also not examined by tracing him out. During investigation, so
called jeep was also not seized. Medical evidence is not
supporting case of the prosecutrix and as such, the appellant /
accused deserves acquittal. Therefore, notice of enhancement of
sentence issued to him needs to be discharged.
10 The learned APP supported the impugned judgment
and order contending that it is well settled that evidence of victim
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of the rape is required to be accepted by considering broad
probabilities of the prosecution case. The learned APP argued that
evidence of the prosecutrix is gaining corroboration from the spot
panchnama so also the medical evidence adduced by the
prosecution on record.
11 I have carefully considered the rival submissions and
also perused the record and proceedings including deposition of
witnesses and the impugned judgment and order. The principal
charge against the appellant / original accused is to the effect that
after abducting the prosecutrix he had committed rape on her in
the forest area of Village Kalwada. By now it is well settled that
finding of guilt in case of rape can be based on the uncorroborated
evidence of the prosecutrix, as the very nature of the offence
makes it difficult to get direct corroborative evidence. Minor
discrepancies in the version of the prosecutrix cannot be made use
of, for acquitting the accused in cases of sexual offences. In
certain cases, however, corroboration is ordinarily required.
Testimony of a woman having attained majority and who is
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habitual to sexual intercourse may require corroboration
depending on facts of a particular case as there is likelihood of
leveling accusation of rape on account of instinct of self
preservation. These aspects will have to be kept in mind in order
to appreciate evidence adduced by the prosecution in the instant
case and for coming to the conclusion as to the truthfulness of
evidence of the prosecutrix.
12 In tune with her FIR at Exhibit 14, PW1 - prosecutrix
has deposed that a month prior to the incident in question, the
appellant / accused approached her when she was waiting at
Shenva Naka after depositing the bill of electricity and had asked
her whether she wants to marry or not. The prosecutrix has not
stated in her evidence as to whether this question was asked by
the appellant / accused with his own reference or it was a general
question. Then, as per version of the prosecutrix, when there was
nobody at her house on 12th June 2011, at about 12.30 p.m., the
appellant / accused came and told her about accident of her
brother. He asked her to take money for admitting her brother,
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who was lying on road, to the hospital. The prosecutrix stated
that she took an amount of Rs.1100/- and went with the appellant
/ accused. As per her version, the appellant / accused had
brought a jeep with a driver and it was parked on the road. When
they reached near the jeep, the appellant / accused pushed her on
the seat of that jeep, tied her mouth by a handkerchief and though
she attempted to shout, her shouts were inaudible because
handkerchief was tied on her mouth. Then, the appellant /
accused took her to Kalwada forest area and the journey, as per
her version, took a time of about one and a half hours. There she
was taken out of the vehicle at about 2 p.m. The prosecutrix
stated that she was then pushed on stones. The appellant /
accused removed his clothes and denuded her. He threw her
clothes on a tree, applied condom to his penis and committed rape
on her. Then, as per version of the prosecutrix, she rushed at the
rider of the scooty who was going by that road. That person took
her clothes from the tree and made her to wear those clothes. She
was then taken by the scooty rider to village Dolkhamb. As per
his instructions, she then went to Shahapur Police Station by a
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bus. There the appellant / accused followed her on a motorcycle
and threatened her. Thereafter, police from Kinhavali Police
station were called at Police Station Shahapur. Then, she lodged
the FIR Exhibit 14. This is what the adult prosecutrix is deposing
about the incident of commission of rape on her, after abducting
her from her house by the appellant / accused. To examine
trustworthiness of this version, let us look into the material
brought on record from her cross-examination. This is necessary
in order to ascertain whether a probable story is made out by the
prosecutrix in order to rely on her version about the incident.
13 Cross-examination of the prosecutrix reveals the
following facts :
(a) Since her childhood, the prosecutrix and her mother PW2
Vithabai were residing at the house of Jayant Dalal - maternal
uncle of the prosecutrix. Jayant Dalal has one unmarried
daughter and two sons. Totally seven persons reside in his house.
Jayant Dalal use to earn his livelihood by working as a daily
labourer. Father of the prosecutrix is not having any independent
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source of income and her mother had deserted her father. Mother of
the prosecutrix is also unable to do any work because of various
ailments. The incident in question took place on 12 th June 2011
which was a Sunday. Still, the prosecutrix claims that there was
nobody at her house, though she was staying in the house of her
maternal uncle having seven inmates in the house. Considering the
financial status of her maternal uncle Jaywant Dalal - sole earning
member of the house, the prosecutrix has not disclosed how she
managed to get an amount of Rs.1100/- from the house, when there
was nobody in the house. The prosecutrix has not spoken about any
independent source of income to her. Where other members of the
family were on that day, is also not disclosed by the prosecutrix. She
also claims that she had not disclosed the fact that she is leaving the
house for admitting her brother to hospital even to her neighbours or
villagers.
(b) The prosecutrix claims that she accompanied the
appellant / accused on getting information from him that her
brother met with an accident and is lying on the road. She stated
that the appellant / accused had brought a jeep with a driver for
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taking her to the place of the accident. Her evidence shows that she
was following the appellant / accused to the vehicle. If that was so,
then obviously there was no reason for the appellant / accused to
push her into the four wheeler vehicle. Her cross-examination
reveals that when the appellant / accused pushed her inside the
vehicle, she shouted but nobody from the village came for her help.
This implies that other villagers were very much present on the spot
when the prosecutrix was being abducted by pushing her in the four
wheeler vehicle by the appellant / accused. The village in which the
prosecutrix was residing was a small village named Dalal Pada. Her
maternal uncle himself is having surname Dalal. Normally, villagers
know each other and such incident spreads like fire in the village.
However, strangely enough, the prosecutrix claimed that nobody
came for helping her while she was being abducted. She stated in
her cross-examination that during the journey from her house to the
jeep, she did not come across any person of her acquaintance. In
such a small village like Dalal Pada, where persons from the same
community reside, this is wholly unbelievable and improbable.
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(c) Evidence of the prosecutrix shows that after leaving the
house at 12.30 p.m., she was taken to the forest by the appellant /
accused and then they reached Kalwada forest area at 2.00 p.m.
This implies, the prosecutrix was taken to a very long distance. What
happened thereafter is also strange. As per version of the
prosecutrix coming on record from her cross-examination, the
appellant / accused had dragged her inside the forest area. He then
caused her fall on stones. She resisted the move of the appellant /
accused in dragging her inside the forest area and thereby her legs
were injured. Her cross-examination reveals that she was taken to a
far off place inside the forest from the road, as she stated that the
distance from the road to the spot of the incident was a distance
which can be covered by walking for five to ten minutes. She does
not claim that while walking or being taken to such a long distance,
her mouth was gagged making her unable to shout.
(d) How the actual incident took place, as claimed by the
prosecutrix, is also surprising. As seen from her cross-examination,
when inside the forest area the appellant / accused was removing
his clothes, she attempted to run but the appellant / accused was
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successful in catching hold of her and then she was again dragged at
the same place. She claimed that then she made second attempt to
run away when the appellant / accused was applying condom to his
penis. That attempt also spoiled as the appellant / accused had
pushed her. Probability of such happening will be tested by
comparing this evidence with the medical evidence on record in
subsequent paragraphs.
(e) In chief-examination the prosecutrix has stated that she
saw the scooty rider going by the road and therefore she rushed at
him, obviously in naked condition, as she has further stated that the
said person took out her clothes from the tree. However, in cross-
examination, the prosecutrix is stating that the scooty rider came to
her on the spot, gave clothes to her by taking those out from the tree
and then she was taken by him to village Dolkhamb. When the
actual spot of incident was deep inside the forest i.e at a distance
which can be covered by walking for five to ten minutes, how this
scooty rider proceeding from the road had witnessed the prosecutrix
deep inside the forest, is a question which remained unanswered
from the evidence of the prosecutrix. This aspect makes her
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testimony highly artificial and doubtful. She is apparently not
stating the true and correct facts.
14 All these aspects which are coming on record from
cross-examination of the prosecutrix makes her version about the
incident of abduction and rape highly doubtful and as such, no
explicit reliance can be placed on her version, unless the same is
corroborated by other evidence on record.
15 The prosecutrix was subjected to medical examination
on the very next day of the incident itself. As per prosecution
case, she was raped on rough and stony surface of the forest by
the appellant / accused. PW5 Dr.Sanjiv Dhanegave, Medical
Officer, Shahapur, had examined the prosecutrix on 13th June
2011 itself. Evidence of this witness shows that there was no
external injury on person of the prosecutrix. Upon local
examination, he found private part of the prosecutrix normal.
Though this witness has noticed partially torn hymen of the
prosecutrix, he has not spoken that it was freshly torn. Thus,
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there was absolutely no injury on the person of the prosecutrix
even though she came to be examined immediately after the
alleged incident by PW5 Dr. Sanjiv Dhanegave.
16 From evidence of PW6 Anil Shirose - photographer,
the prosecution has proved photographs of the spot of the incident
which are at Exhibit 23. These photographs were exhibited as
those were referred to the Medical Officer i.e. PW5 Dr.Sanjiv
Dhanegave. The prosecutrix claimed to have been dragged deep
inside the forest at a distance which may be travelled by five to
ten minutes walk. She claimed to have suffered injuries to her
legs. She claims to have been raped by causing her fall on stones
and that too after denuding her completely. Photographs at
Exhibit 23, where the incident in question took place, show that
the surface of the forest area was rocky being infested with stones
and pebbles. The prosecutrix has stated in her cross-examination
that she attempted to resist the move of the appellant / accused to
drag and rape her. The rape was after causing fall of the
prosecutrix on rough surface having stones and pebbles. Still, no
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external injury was found on person of the prosecutrix. If all such,
as narrated by the prosecutrix, had happened, then in normal
course there should have been bruises, abrasions and scratches on
back, buttocks and legs of the prosecutrix, apart from suffering
internal injuries. To conclude, the medical evidence is also not
supporting the version of the prosecutrix.
17 According to the prosecution case, the appellant /
accused was accompanied by his driver and the prosecutrix was
taken in a four wheeler jeep to the spot of the incident. Neither
during investigation of the crime in question the driver of the
appellant / accused was traced out nor that jeep came to be
seized. The Investigator could not trace out the person i.e. the
rider of the scooty who had seen the post event happening and
who had provided clothes to the prosecutrix and brought her to
Village Dolkhamb. This raises serious doubts on veracity of the
prosecutrix. There is a big question mark as to whether
prosecutrix was really abducted by a four wheeler vehicle driven
by the driver of the appellant / accused and whether subsequently
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she had been extricated from clutches of the appellant / accused
by a rider of a scooty.
18 The prosecution had attempted to collect forensic
evidence against the appellant / accused. However, the same is
also not supporting the case of the prosecution, in any manner. No
male DNA was found on nicker of the prosecutrix. The
prosecution has claimed that a used condom was seized from the
spot of the incident vide spot panchnama Exhibit 33. However,
C.A. Report Exhibit 27 shows that no male DNA was detected on
that condom.
19 PW4 Sudhakar Dalal - nephew of the mother of the
prosecutrix has turned hostile to the prosecution. Evidence of
PW2 Vithabai - mother of the prosecutrix is of no assistance to
establish the charges leveled against the appellant / accused as
she claims to be out of the house at the time of the alleged
incident. Other witnesses are panch witnesses and Investigator
who explained the line of investigation. Their investigation is not
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of any assistance to bring home the guilt to the appellant /
accused.
20 In the light of the foregoing discussion, it cannot be
said that the prosecution has proved its case against the
appellant / accused beyond all reasonable doubts. Evidence of the
prosecutrix suffers from several infirmities as well as
improbabilities and as such, is doubtful. Ultimately, benefit of
doubt goes to the appellant / accused and therefore the following
order :
ORDER
i) The appeal is allowed.
ii) The impugned judgment and order dated 20th March
2013 passed by the learned Ad-hoc Additional Sessions
Judge, Kalyan, convicting the appellant / accused of
offences punishable under Sections 363, 376 and 506
of the IPC and sentencing him accordingly, is quashed
and set aside.
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iii) The appellant / accused is acquitted of offences
punishable under Sections 363, 376 and 506 of the
IPC.
iv) Resultantly, suo motu notice for enhancement of
sentence stands discharged.
v) In view of disposal of appeal, Criminal Application
No.587 of 2013 stands disposed of.
(A. M. BADAR, J.)
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