Nemchand Vithalrao Ogale vs State Of ...
2017 Latest Caselaw 5109 Bom

 apeal 302.03                                    1        

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

                   CRIMINAL   APPEAL NO. 302 OF 2003 


 Nemchand S/o Vithalrao Ogale,
 Aged about 28 years,
 Occupation-Business,
 R/o Mouda,Tahsil-Mouda,
 District-Nagpur.                                                   ..... APPELLANT

       ...V E R S U S...

  
 State of Maharashtra,
 Through Police Station Officer,
 Police Station Mouda,
 District-Nagpur.                                                 ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri Nilesh Gaidhane, Advocate for appellant.
 Shri N.B.Jawade,A.P.P. for State.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :-JULY 27 ,2017

ORAL JUDGMENT

The present appeal is directed against the judgment

and order of conviction passed by learned Additional Sessions

Judge-7,Nagpur on 28/4/2003 in S.T.No.517/2001.

2] By the impugned judgment and order of conviction the

appellant is convicted for the offence punishable under Section

376 of the Indian Penal Code. He was directed to suffer R.I. for a

period of 7 years and also to pay fine of Rs. 2000/-

The appellant was also convicted for the offence

punishable under Section 323 of the Indian Penal Code and on

that count he was directed to suffer R.I for 15 days and to pay of

Rs. 100/-. If the total fine amount of Rs. 2100/- is not paid, then it

was directed that the appellant to undergo R.I. for three months.

3] The prosecution case as it was disclosed during the

course of trial is as under:

Rupchand Chitruji Bhalavi(PW9) was discharging his

duty as P.S.I. at P.S.Mouda on 8/5/2001.

On 8/5/2001 prosecutrix came to police station and

lodged her oral report(Exh.26).

As per oral report of victim, at the relevant time she

was taking education in 11th Standard in Janta Junior College,

Mouda. Her father and brother were residing at village Isapur. She

alongwith her mother and the younger brother were residing at

Mouda as a tenant of one Kshirsagar for her educational purpose.

Her elder sister Kiran had a love marriage with appellant. They

also reside at Mouda.

The report further recites that informant's landlord

asked them to vacate the premises, hence on 7/4/2001 the

premises vacated. On such vacation of the house informant's

mother and brother went to Isapur whereas informant started

residing in the house of her sister Kiran wife of appellant.

It is further revealed in the report that on 5/5/2001

appellant, Kiran and their daughter Rocki had been to Bhandara

to attend the marriage ceremony. It is further stated in the

complaint that her mother and appellant returned after the

marriage,however on the next day her mother left for Isapur and

appellant went away to Paoni for attending marriage.

It is further stated in the F.I.R. that on 6/5/2001 when

victim was present in the house at 8'O clock in the night after

having a dinner when she was watching television appellant, his

daughter Rocki returned from Paoni. Thereafter, he had bath and

went to his bed. The informant was watching television upto

12.30 midnight. Thereafter she also went for sleep in the adjacent

room. At about 1.00 in the night appellant came inside the room

where informant was sleeping and committed forcible intercourse

with her. When she resisted her neck was pressed and she was

slapped and threats were also extended. It is further stated in the

F.I.R. (Exh.26) that on the next day she narrated the incident to

Vishwas Vitthalrao Ogle(PW3), the younger brother of the

appellant and asked him to reach her to the house of relative. On

that they reached to Jawaharnagar where she narrated the

incident to her relative which is referred in the F.I.R. as " Mothi

Aai". It is further stated in the F.I.R. that when her father and

other relatives inquired about the incident with the appellant the

threats were also extended to them. With this the report was

lodged.

4] As the report was disclosing the commission of

cognizable offence P.S.I.Rupchand Bhalavi(PW9) registered a

crime vide Crime No.105/2001 at P.S.Mouda for the offence

punishable under Sections 376,506 and 323 of the Indian Penal

Code. P.S.I.Rupchand Bhalavi(PW9) took investigation to himself.

He sent prosecutrix (PW1) for her medical examination to

Nagpur. Thereafter he reached to spot of incident and spot

panchnama (Exh.71) in presence of panchas was drawn.

While drawing spot panchnama, investigating officer

(PW9) found the presence of knife beneath mattress and therefore

the said knife was also seized by drawing seizure memo(Exh.72).

After arrest of the appellant he was sent for medical

examination. On 09/5/2001 he received the samples of semen,

blood and pubic hair of the appellant. They were seized under

seizure memo(Exh.74). The clothes of the appellant were also

seized by the investigating officer under seizure memo(Exh.75).

In the meanwhile, medical certificate of the victim was

also received by the investigating officer. He also seized clothes

and undergarment of victim by drawing the seizure

memo(Exh.30). He also seized samples of blood,her pubic hair

by drawing seizure panchnama(Exh.73).

The investigating officer (PW9) also recorded the

statements of witnesses. The muddemal property was sent to

chemical analyser by forwading letter (Exh.90) The C.A.reports

were received and those are placed on record Exhs. 92 and 93.

After completion of the entire investigation, it was the

opinion of the investigating officer that sufficient material is

collected to send the appellant for trial and therefore he filed final

report in the Court of law.

5] The Magistrate in whose court the final report was

presented by the investigating officer noticed that the offence is

exclusively triable by the Court of Session, therefore committal

order was passed and that is how the case was landed in the Court

of Session. After case comes to the Sessions Court it was

registered as S.T.No.517/2001.

6] The learned Additional Sessions Judge-7,Nagpur

framed a charge (Exh.2) against the appellant for the offence

punishable under Sections 376,323 and 506 of the Indian Penal

Code and under Section 4/25 of the Indian Arms Act.

Appellant abjured guilt and claimed for his trial.

In order to bring home guilt of the appellant the

prosecution has examined in all nine witnesses and also relied

upon the various documents which were duly proved during the

course of trial.

After full fledge trial, the learned Trial Court was of

the view that the prosecution has successfully proved its case

against the appellant under Section 376 and 323 of the Indian

Penal Code and therefore he was convicted and sentenced as

observed in the opening paragraph of this judgment. Hence, this

appeal.

7] Heard Shri Nilesh Gaidhane, the learned counsel for

appellant and Shri N.B.Jawade, the learned A.P.P.for State. Both

the learned counsels submitted their respective submissions in

extenso in order to support their respective case. They took me

through the entire record and notes of evidence.

8] By now, the law is well settled that prosecutrix in a

sexual offence is not an accomplice and there is no rule of law

that her testimony cannot be acted upon or cannot be made basis

for conviction unless corroborated in material particulars.

However, for securing conviction and holding the conviction

solely on the basis of testimony of the prosecutrix her evidence

should inspire confidence in the mind of the Court. The evidence

of the prosecutrix should be so clinching which leave no doubt

whatsoever in nature then alone the rule of corroboration is not

made applicable. However, if the testimony of the prosecutrix

does not inspire confidence or it requires corroboration on certain

aspect then in order to lend credence to the version of the

prosecutrix the Court should look for corroboration from the

available other evidence on record.

9] In the present case, as per Exh.39 a school certificate

duly proved by Sampatrao Gokuji Vaidya(PW5), Principal,Janta

Jr.College,Mouda where the victim was taking education shows

that her date of birth is 11/5/1984. The date of the incident is

6/5/2001. Thus she was four days short of completing 17 years.

In my view, age of the prosecutrix in the present case is

immaterial since it is not at all the defence version that she was a

consenting party. The defence of the appellant is of total denial

and false implication.

10] It is obligation of the prosecution to prove its case

beyond reasonable doubt. The burden is firmly rest on the

shoulder of the prosecution. In order to prove its case, the

prosecution cannot take the advantage of lacunae in defence.

11] In the present case, the prosecution has examined

Dr.Pushpa Nitin Turaskar(PW4) and Dr.Priti Hajesh Gattani

(PW6)who examined the prosecutrix. Vishwas Vitthalrao Ogle

(PW3) turned hostile and his evidence is of no use for the

prosecution. Raju Tukaramji Maske(PW8) is a panch witness.

Chandrakala Bramhraj Bagde(PW2)and Sau. Panchfulla Manikrao

Dongre(PW7) are close relatives of the prosecutrix they being

elder sister of mother of prosecutrix and mother of prosecutrix.

12] Though the incident has occurred on 6/5/2001, F.I.R.

(Exh.27) is lodged on 8/5/2001. Thus, there is a delay of two

days. Merely because there is delay in lodging the F.I.R. that by

itself does not cast doubt about truthfulness of the entire

prosecution case provided the prosecution successfully explain the

delay.

13] In the case at hand, as per the version of the

prosecutrix (PW1) at the time of commission of offence her

mother had been to Isapur. Her mother is Sou.Panchfulla(PW7).

As per the prosecutrix, initially she asked Vishwas(PW3), the

brother of the appellant to reach her to the house of

Chandrakala(PW2) who is sister of Panchfulla(PW7) at

Jawaharnagar. Though, Vishwas(PW3) is examined he turned

hostile.

As per the version of Chandrakala(PW2) she took the

prosecutrix at Bhandara in the dispensary of Dr.Pushpa

Turaskar(PW4). It is the version of Chandrakala(PW2) that at the

time of examination of the prosecutrix upon enquiry by Dr.

Pushpa Turaskar as to whether the report of the incident is lodged

or not at that time Chandrakala replied that presently the matter

is not reported. Further, while giving the history Chandrakala has

written Exh.34. The document(Exh.34) reads as under:

"eh [kkyh lgh dj.kkj l/;krjh iksyhl dsl dj.;kl r;kj ukgh- vkEgh ?kjh fopkjiwl d:u uraj iksyhl dsl Vkdq".

As per the prosecution, thereafter prosecutrix met with

her mother Panchfulla. Panchfulla (PW7) has not supported the

prosecution. Her evidence shows before declaring her hostile that

prosecutrix narrated only the incident of slapping to her and not

the commission of forcible sexual intercourse.

14] The relations between daughter and mother is special

one. Normally, a daughter will not miss to disclose horrific act

which she has faced from her near relative like appellant to her

mother. It is very unnatural that daughter will not reveal the fact

to her mother but will reveal the same to others. It is to be noted

that after one day report was lodged with the police station.

Immediate lodging of the F.I.R. always rules out false implication.

In the present case, it appears from the scrutiny of the evidence

that after deliberation the F.I.R.(Exh.27) is lodged. Therefore,

false implication is not totally ruled out especially when it is

established on record that appellant had love marriage with

Kiran,the elder sister of the prosecutrix against the wishes of the

family of the prosecutrix and further the admission given by the

prosecutrix herself that she never accepted the marriage of her

elder sister with appellant. The suggestion given by the defence

when the prosecutrix was under cross-examination that

prosecutrix deliberately did not went to Isapur to inform the fact

initially to the father because by lapse of time father had accepted

the marriage of his elder daughter with the appellant. It is to be

seen that Chandrakala(PW2) was not approving the marriage of

Kiran with appellant. The prosecutrix was also not approving the

marriage of appellant with Kiran. It appears that ultimately father

has approved the marriage of Kiran with appellant. No acceptable

explanation is coming on record for lodging report at belated

stage. Therefore, false implication of appellant is not completely

ruled out as claimed by him.

15] During the trial, on oath the prosecutrix (PW1) has

stated before Court about forcible sexual intercourse and that

she was mercilessly beaten by the appellant. All her versions in

respect of beating and sexual assault are found to be proved

omissions. Further, when on 7/5/2001 when prosecutrix was

examined by Dr.Pushpa Turaskar(PW4) she noticed following

three injuries.

"1) Scratch mark on face and neck.

2)Lips were swollen.

3)Blunt injury over right leg.

Dr.Pushpa Turaskar(PW4) has proved the outdoor medical

certificate (Exh.37). The evidence of Dr.Pushpa Turaskar(PW4)

shows that at the time of examination prosecutrix refused to

undergo examination of her private part. Further, as per the

evidence of Dr.Pushpa Turaskar(PW4) the aforesaid injuries were

simple in nature. Not only that, it is the evidence of Dr.Pushpa

Turaskar (PW4) that these three injuries can be possible by self

implication. Thus, when the prosecutrix was firstly examined by

the medical expert only three injuries were found that too simple

in nature which clearly belies prosecutrix that before commission

of sexual intercourse she was mercilessly beaten. Further, the

doubt is also created about injuries in view of evidence of

Dr.Pushpa Turaskar that those injuries can be made by self

implication.

16] Another doctor who examined prosecutrix is Dr.Priti

Gattani(PW6). She examined prosecutrix on 9/5/2001 at 2.30

p.m. Thus, prosecutrix was examined exactly after two days from

the day when she was examined by Dr.Pushpa Turaskar. On her

examination Dr.Priti Gattani noticed following injuries.

" 1) Three injuries on face i.e. scratch two on right side and one on left side, age of injuries 2 to 4 days.

2) Tenderness on right side of neck. No other marks.

3) Small Hematoms which was tendered on the left breast.

4) injury mark over great toe.

Thus, the injury no.3 noticed by Dr.Priti Gattani was not noticed

by Dr.Pushpa Turaskar when prosecutrix was examined on

7/5/2001. The prosecution has not explained how this injury

no.3 has surfaced on the person of the prosecutrix. Further, injury

no.2 tenderness on right side of neck was also not noticed by

Dr.Pushpa Turaskar. This injury is also not explained by the

prosecution. Further, even Dr.Priti Gattani(PW6) has also stated

injury nos. 1,2 and 4 can be possible by self implication.

Dr.Gattani has also stated that at the time of her examination she

noticed that the prosecutrix was in her menses. She states from

the witness box that since she noticed that hymen was torned

therefore she has given opinion that sexual intercourse cannot be

ruled out. However, in the cross-examination she has admitted

that there are number of reasons for noticing hymen in torned

condition. Not only that, she has specifically stated that only

because she noticed that hymen was torned therefore, she gave

opinion that sexual intercourse cannot be ruled out. Thus, Dr.Priti

Gattani is not confident. That also gives one of the reasons as to

why version of the prosecutrix should not be accepted by the

Court especially when the evidence of the prosecutrix is not

inspiring the confidence since her entire evidence from the

witness box is found to be improved version. Further, C.A. report

is also totally silent and it does not show any guilt against

appellant.

Thus, on re-appreciation of the prosecution case, there

is no hesitation in my mind to record the finding that the

appellant cannot be held guilty for the offence punishable under

Sections 376 and 323 of the Indian Penal Code. Hence, I pass the

following order.

                               ORDER

 I)             The appeal is allowed.

 II)            The judgment and order of conviction passed by 

learned Additional Sessions Judge-7,Nagpur on

28/4/2003 in S.T.No.517/2001 is hereby quashed and set aside.

III) The appellant is acquitted of the offence punishable under Sections 376 and 323 of the Indian Penal Code.

 IV)            His bail bonds stand cancelled.



                                                      JUDGE



 Kitey