State Of Maharashtra vs Vijay Rambhau Thakare And Another
2017 Latest Caselaw 5799 Bom

                                                                                             CRI.APPEAL.280.03
                                                             1


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

                             CRIMINAL APPEAL NO. 280/2003

          State of Maharashtra 
          Through Police Station Officer 
          Sakkardara,  Nagpur.                                                       ...       APPELLANT 

                     v e r s u s

1)        Vijay Rambhau Thakare 
          Aged about  41 years 
          occu: service,  R/o Plot No.34
          Janki Nagar,   P.S. Sakkardara
          Nagpur. 

2)        Dadarao  Narayan Bargat 
          Aged about 53 years, occu: service 
          R/o Janki Nagar 
          P.S. Sakkardara, Nagpur.                                                   ...       RESPONDENTS

...........................................................................................................................
           Shri  N.H. Joshi, Additional  Public Prosecutor for the appellant-State
           Shri P.K.Mishra, Additional Public Prosecutor for respondents
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED :     09th August, 2017

ORAL  JUDGMENT: 

The appellant-State has preferred the instant Appeal against the

judgment and order dated 15.1.2003 delivered in Regular Criminal Case No.

97/1997 by the learned Judicial Magistrate First Class, Nagpur thereby

acquitting the respondents/accused of the offences punishable under Sections

354, 448, 336, 294 and 506 Part-II read with Section 34 of the Indian Penal

Code.

CRI.APPEAL.280.03

2. I have heard Shri N.H. Joshi, the learned Additional Public

Prosecutor for the appellant-State and Shri P.K. Mishra, the learned counsel for

the respondents/original accused. I have gone through the entire record of the

case.

3. The learned Additional Public Prosecutor vociferously argued

that the judgment passed by the learned Magistrate is illegal and perverse

inasmuch as the learned Magistrate has failed to consider the testimony of the

victim, her husband and an eye witness to the incident. He submitted that the

testimony of these three witnesses clearly indicates that the accused had

committed the offence as alleged by the prosecution.

4. Per contra, the learned counsel for the respondents contended

that the testimony of these witnesses was not reliable and trustworthy as there

are several material discrepancies in their version. He submitted that as the

chapter proceedings were lodged by the accused no.1-Vijay against the

husband of the victim-Shalini for breach of public tranquility, the false

complaint has been lodged by the victim against the accused levelling

scurrilous allegations against them.

5. The prosecution case in nutshell is that, the prosecutrix (PW 1)

along with her husband was residing at Jankinagar, Nagpur. The accused no.

1-Vijay was residing in the same locality. On 23.2.1997 at about 8.00 pm,

when PW1 was all alone at home, the accused no.1 entered inside her home

and started abusing by referring her husband. Accused no.1 pushed PW 1 on

CRI.APPEAL.280.03

the cot, caught hold of her hair and touched her. On this PW1 started shouting

by saying 'chor-chor'. Accused No.1 threatened the prosecutrix with dire

consequences, if she lodged complaint in the Police Station against him. At

that time, husband of PW1 entered the house. PW1 disclosed the incident to

her husband. On the next day, again, accused no.1 came near her home,

abused her and pelted stones at PW 1 and her husband. On the same day, at

about 6.30 p.m. accused nos. 1 and 2 came to her house with sticks. Accused

No.1 caught hold of her and accused no.2 caught hold of her hair and pushed

her on the cot. At that time, husband of PW1 and his artisan namely,

Keshav, rescued her. Again at about 1.00 a.m. in night, accused no.1 and

accused no.2 came to the house of PW1 and broke open the compound. PW

1 lodged the complaint against accused nos.1 and 2 on 12.3.1997. On the

basis of the said complaint, offence was registered. After due investigation,

charge-sheet was filed. The learned trial Judge after framing the charge

conducted the trial and acquitted as aforesaid.

6. The prosecution has examined in all seven witnesses. In order

to find out the substance in the allegations levelled by the victim-PW 1, it is

necessary to go through the testimony of PW 1-Shalini, the victim, PW2-

Prabhakar, husband of PW1 and PW3-Pankaj, who are the relevant witnesses

in this case.

7. According to PW1-Shalini, about two to three months back

between 8.00 to 8.30 p.m, she was all alone in her house, whereas her

CRI.APPEAL.280.03

husband was out of the house to purchase some electrical equipment. At that

time, accused no.1-Vijay came to her house in an inebriated condition and by

saying "teri ko chodu', he picked her up and fell down on the cot. She shouted

loudly and, as such, accused no.1 left her house. She stated that her husband

came at about 9.00 p.m. to 9.30 p.m. She narrated the sordid affair to her

husband. She further stated that the accused no.1 threatened her not to lodge

a report at the police station. On the next day, in the morning, accused no.1

Vijay again came to her house, pelted stones and abused her in vituperative

expletives. At that time her husband was present in the house. People from the

area gathered at the spot and, therefore, accused no.1 left that place. PW 1

further stated that on the same day, the accused nos.1 and 2 entered her

house during night time. They beat her husband. Accused no.1-Vijay caught

hold of her hair and accused no.2-Dadarao made her to fall down on the cot.

Her husband and one Keshav, who was an artisan of her husband, rescued

her. Thereafter she proceeded to the Police Station and lodged the FIR (Exh.6).

According to PW1, her husband's helper Keshao was not present in the house,

whereas the complainant discloses the presence of Keshao. PW 1 made an

improvement in her testimony that the accused assaulted her husband. The

discrepancy is noted in the testimony of PW1 that the accused no.1-Vijay

caught hold of her hair and accused no.2-Dadarao made her to fall on the cot,

after going through the FIR (Exh.6). During the cross-examination PW1-

Shalini admitted that the accused no.2-Dadarao had lodged a complaint

CRI.APPEAL.280.03

against her in the Police Station about the theft of sand, bricks etc. It appears

that due to said complaint PW 1 lodged this complaint against the accused.

On careful scrutiny of testimony of PW 1, it is noticed that there is

discrepancy in the sequence of events when her testimony is compared with

her complaint. Her testimony is not in consonance with the complaint-Exh.6

which was lodged after about 17-days from the date of the incident. The

testimony of PW1 does not inspire confidence. It is not clear as to why the

prosecutrix kept mum for a long period. Bare statement of PW1 that accused

no.1 threatened her is not convincing. PW 1 is not found to be a reliable

witness.

8. Now coming to the testimony of PW2-Prabhakar, who is the

husband of the victim, it is significant to note that neither he was cited as a

witness nor his statement was recorded by the police. According to PW2

when he returned home at about 9.00 p.m. his wife was crying and told him

that accused no.1- Vijay came under the influence of liquor and took her up

and made her to fall down on the cot, so she shouted. PW 2 stated that his

wife informed him that accused no.1 Vijay entered into her house with the

intention to outrage her modesty. She further told that accused no.1

threatened her not to lodge a report at the police station otherwise he would

kill her. PW 2 deposed that accused no.1-Vijay, on the next day at 8.00 a.m.

Again came, abused and pelted stones. In the afternoon on 24.2.1997 the

accused no.1 came with a wooden raft and accused no.2 with stick and beat

CRI.APPEAL.280.03

him. At that time, Keshav Laikar was present. After beating him, both the

accused entered his house and caught hold of the hair of his wife and put her

on cot. Then onlookers gathered and the accused left the premises. During

the cross-examination PW2-Prabhakar stated that he does not know whether

on 24.2.1997 both the accused lodged report against him. He however

admitted that chapter proceedings were initiated against accused. Lastly he

stated that he had made enquiry at the house of Rakesh Bharane and he

informed him about the said incident. On careful scrutiny of the testimony of

PW2 it is noticed that PW1 has stated about the fact that on the next day

morning accused no.1 came to the house and pelted stones and abused in

filthy language and her husband was present in the house at that time.

However PW 2 did not state about his remaining present at that time in the

house. On the contrary, his testimony reveals that he came to know about the

incident from the Rakesh Bharane which indicates that at the time of incident

he was not present in the house and did not witness the incident in question

at all. On perusal of the testimony of PW 1 and PW 2 it is noticed that there

are various discrepancies in their testimony. Their evidence is not at all

consistent and trustworthy. There are major improvements made by PW1

while deposing before the Court. It is significant to note that alleged incident

had taken place on 23.2.1997 and it was reported to the police on 12 th March

1997. The delay is not explained by the prosecution at all. Complaint (Exh.6)

depicts that as threats to kill her were given by the accused persons to PW 1,

CRI.APPEAL.280.03

the complaint was not lodged by her on the same day or immediately

thereafter. As discussed earlier, so far as the threats are concerned, PW1

failed to state in her evidence before the Court that the threats were given to

kill her by accused no.1. In view of the discrepancies in the testimony of

PW1, her testimony cannot be relied upon and she is not found to be reliable

and trustworthy witness. Even the testimony of PW2 which was recorded

nearly two years after the incident in February, 1999 cannot be relied upon.

9. So far as testimony of PW3-Pankaj, an eye witness is concerned,

he has deposed that he had seen both the accused coming out from the house

of PW2-Prabhakar. However in his statement before the police he had stated

that accused no.1-Vijay was in his house at that time. Even his statement

about outraging modesty and threats there are discrepancies in the statement

of PW3. Importantly, the testimony of PW3 does not make clear as to when

the incident of abuse had taken place exactly. PW3 stated that his statement

was recorded 15 days after the incident. As discussed above, the complaint

in this case was lodged nearly 17-days after the incident and, therefore, the

statement of PW3 must have been recorded accordingly. In these

circumstances, it is very difficult to rely upon the testimony of the witnesses

of PW 1-Shalini, PW2-Prabhakar and PW 3-Pankaj.

10. The learned trial Judge has properly appreciated the evidence

on record. I do not find any illegality or perversity in the impugned judgment

and order. It is well-settled that that unless an illegality or perversity in the

CRI.APPEAL.280.03

judgment of the trial Court is found, the findings should not be disturbed. In

the facts and circumstances of the case, the Appeal deserves to be dismissed

and it is accordingly, dismissed.

JUDGE

sahare