Pawan S/O Suresh Banait (In Jail) vs State Of Maharashtra, Through ...
2017 Latest Caselaw 2864 Bom

                                                    1                     apeal320.15.odt

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

                  CRIMINAL APPEAL NO.320/2015
      Pawan s/o Suresh Banait,
      aged 26 years, Occ. Labour,
      r/o Pimpla Kawairam, Tq. Narkhed,
      Dist. Nagpur.                       .....APPELLANT
                        ...V E R S U S...

      The State of Maharashtra, through
      PSO Babhulgaon, Tq. Babhulgaon,
      Dist. Yavatmal                                          ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. A. A. Sambaray, Advocate for appellant.
 Mr. N. B. Jawade, A.P.P. for respondent.
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 07.06.2017 ORAL JUDGMENT

1. The appellant, who is convicted by the learned Special

Judge, Nagpur on 17.11.2014 in Special Case No. 123/2013 is

before this Court.

By the said judgment and order of conviction, the

appellant is convicted for the offence punishable under Section 5

(k) (m) punishable under Section 6 of the Protection of Children

From Sexual Offences Act, 2012 and section 377 of the Indian

Penal Code. The sentence imposed upon the appellant in respect

of his conviction for the offence under Section 5 (k) (m)

punishable under Section 6 of the Act and the duration of the

sentence is 10 years. Insofar as the punishment for the offence

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under Section 377 of the IPC is concerned, no separate order is

imposed.

2. The prosecution case is as under:

Yogesh Velapure (PW5) was discharging his duties as

PSI at Police Station Narkhed on 12.07.2013. On the said day,

Ramesh (PW1) came to the police station along with Smt.

Shantakala (PW2) and lodged the report. The report is at Exh.-30.

The oral report states that the first informant is having

two sons Akash, aged about 15 years and the victim boy aged

about 11 years. The victim is mentally retarded boy. As per the

FIR, on 11.07.2013 the informant Ramesh and his wife Shantakala

left their house to attend their work in the agricultural field. The

victim alone was available in the house. After finishing their work,

they returned to the house at about 6 O'clock in the evening. That

time they noticed that the victim is not present in their house and

therefore the couple searched their son in the village however they

could not find him. After completion of the search when they

were returning to their house that time the appellant who is one of

the neighbour came along with the victim and he dropped the

victim at the doorstep and then ran away. The FIR states that that

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time the victim was weeping and he was making gestures towards

his back and his ass. They noticed that there was scratch injury on

his back and also on his knees and some liquid was flowing

outside from his anus. It is further stated in the report that the

appellant has committed unnatural offence with the boy.

Since the FIR was disclosing commission of cognizable

offence, Yogesh (PW5) registered an offence vide Crime

No.41/2013 under the relevant provisions. The printed FIR is

available on record at Exh.-51.

After registration of the offence, the investigating

officer sent the victim boy to the rural hospital, Narkhed for

medical examination. The report is at Exh.-48. The clothes of the

victim were seized under seizure panchanama Exh.-12. The

investigating officer also sent one Vikas Musale a teacher from the

deaf and dumb school from Narkhed to the house of the victim for

recording of his statement. Vikas Musale gave his report Exh.-53.

As per the said report, the boy was not given any training to know

the language of signs hence he was unable to give his statement.

3. The appellant was arrested on 12.08.2013. The arrest

panchanama is at Exh.-21. When the appellant was in the PCR, he

4 apeal320.15.odt

made a disclosure statement thereby he agreed to show the place

whereat he has committed the unnatural offence. The said

statement was recorded in presence of Ratnakar Shende (PW3). In

the meantime, the investigating officer was taken to the spot and

thereafter the spot panchanama was reduced into writing which is

at Exh.-36. The clothes of the appellant were also seized under

the seizure memo Exh.-39. The investigating officer sent all

muddemal properties including the blood sample of the victim as

well as the appellant and pubic hair of the appellant for medical

examination. After completion of the investigation, the final report

was filed in the court of law.

4. The appellant who was charged by the trial court has

denied the charge and claimed for his trial. In order to prove its

case, the prosecution has examined 5 witnesses. The appellant

was also examined under Section 313 of Cr. P. C. From the line of

cross-examination and from the statement, the defence of the

appellant is of total denial. The learned court below, after

appreciating the prosecution case, recorded a finding of guilt and

awarded the sentence as observed in the opening paragraph of the

judgment. Hence this appeal.

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5. I have heard Mr. A. A. Sambharay, learned counsel for

the appellant and Mr. N. B. Jawade, the learned A.P.P. for the

State. Both the learned counsel took me through the notes of

evidence and other material brought on record during the course

of trial. Both the learned counsel made elaborate submissions to

prove their respective cases.

6. The age of the victim boy and his mental status is not at

all denied by the appellant as could be seen from the answers

given by him to question no.2 when the appellant was examined

under section 313 of the Cr. P. C. Thus, it is clear that the victim

boy is mentally retarded boy. From the report of Vikas Musale,

which is at Exh.-13, which is duly proved by the investigating

officer, shows that the boy was not knowing the sign language and

therefore his statement could not be recorded and hence there is

no statement of the victim boy available on record.

7. After registration of the crime, the investigating officer

sent the victim to the rural hospital, Narkehd for his medical

examination. There he was examined by Dr. Umesh Khade (PW4).

He proved Exh.-48, the medical certificate, which was issued by

6 apeal320.15.odt

him after clinical examination of the victim. The said report shows

following injuries.

"Linear tear in perianal region. Extending upwards from 11 O'clock position. Length is 1 ½ inch. There was presence of mucosal tear with bleeding. The would was contaminated with faecal mater."

According to the evidence of Dr. Umesh Khade (PW4),

the boy was subjected to unnatural intercourse. In view of the

injury report Exh.-48 and the evidence of the doctor, there cannot

be any doubt that the unfortunate boy was subjected to unnatural

intercourse.

The next question is whether the prosecution has

successfully established that the appellant is the perpetrator of the

crime and he has sexually assaulted the victim.

8. Such type of offences are always committed at a

secluded place. Therefore, there will not be any eye witness

account for such an offence. Thus, these types of cases are based

on the circumstantial evidence.

The Hon'ble Apex Court has given five golden principles

in the case of Sharad Birdhi Chand Sarda vs State Of

Maharashtra, reported in AIR 1984 SC 1622, and in paragraph

7 apeal320.15.odt

148 of the said judgment, the Hon'ble Supreme Court has ruled

that if the chain of the circumstance is complete then the accused

is liable for conviction. If at any point of time, the coupling in the

chain is missing, then advantage has to be given to the accused

person. It is the trite law that a criminal case cannot be decided

on the basis of suspicion howsoever that suspicion may be strong.

In the light of the principle as laid down by the Hon'ble

Apex Court in Sharad Biradi Chand Sarda, (supra), now lets us

examine the prosecution case as to whether there is a complete

chain of events.

9. As per the report, Ramesh (PW1) and Smt. Shantakala

(PW2) are having two sons. As per the evidence of Shantakala,

her elder son resides with her mother. Thus, only the victim boy

used to reside with the couple.

On the day of the incident i.e. on 11.07.2013 in the

morning itself the couple left for their usual works in the

agricultural fields. That time, the victim boy was alone in the

house. As per the evidence of Ramesh and Shantakala, they

noticed the non availability of the victim when they returned to

home. Therefore they made search however they could not locate

8 apeal320.15.odt

their son. That time the appellant came there and dropped their

son at their doorstep and left the place. It is the evidence available

on record. This particular part of the evidence is not shaken at all

in the cross-examination of PW1 and PW2, the parents. Thus, it is

clear that it is the appellant who has left the boy at the doorstep of

the complainant. The FIR shows that the parents noticed injuries

on the back, knees and also they noticed liquid flowing from the

ass. As per the evidence of Shantakala (PW2) she informed the

incident to Bapurao Chipde on the next morning. This Bapurao

Chipde is her maternal father in law and thereafter the report is

lodged on 12.07.2013. The report is lodged at 1.30 p.m. on

02.07.2013. There is no explanation on record either through the

parents of the victim or from the investigating officer for recording

the FIR at the belated stage. The spot panchanama Exh.-36 is

having a sketch map. It shows that at some distance from the

place of incident, there exist the houses of various persons.

According to the father of the victim, whenever he and his wife

used to visit the agricultural field that time the victim used to

roam in the bazzar. The investigating officer has stated in his

evidence as under:

"gs Eg.k.ks [kjs ukgh dh eyk dks.kR;kgh lk{knkjkus lkaxhrys ukgh dh R;kus vkjksihyk ihMhr ewykyk usrkuk ikfgys ukgh- eh lkaxrks dh ,d lk{khnkj

9 apeal320.15.odt

ckcwjko foBV~yjko fpiGs ;kus lkaxhrys dh R;kus vkf'k"kyk /ksowu tkrkauk ikfgys-""

Thus, this is the important witness of the prosecution

who has seen the appellant taking away the boy with him. This

Vitthal Chipade is not a stranger to the victim. He is maternal

grandfather of the victim. For the reason best known to the

prosecution and the learned prosecutor, who was having

command of the prosecution case, has not examined this material

witness though the statement of this man was recorded. If really

this person has seen the appellant taking away the victim with him

the learned prosecutor would not have missed examining him in

the case. Therefore, non examination of this man is required to

draw an adverse inference in respect of the claim made by the

investigating officer in his evidence. The entire case of the

prosecution is totally silent that the appellant is the person who

took away the boy either from his house or from the bazzar.

Merely because this boy was dropped at the doorstep of the

complainant by the appellant, one cannot jump to the conclusion

that he is the person who has committed the offence. It is quite

possible that this appellant must have seen the boy roaming here

and there in weeping condition and therefore he brought the boy

to the house of the complainant. Normally, the guilty person will

10 apeal320.15.odt

not drop his victim to his house. Though that is not the conclusive

proof however that is one of the indication that the appellant

might not have committed the offence.

10. The Chemical Analyzer's report is totally negative. No

blood or semen stains were noticed either on the clothes of the

victim or on the clothes of the appellant. I am not attaching

importance to non observation of the blood or semen on the

clothes of the appellant since the appellant was apprehended after

a period of one month. However, non observance of any blood or

semen on the clothes of the victim, in my view, shows that the

prosecution case has its own lacuna.

11. In the absence of the evidence that anybody has seen

the victim boy in the company of the appellant prior to he

dropping the boy at the doorstep, is fatal to the prosecution. We

cannot forget that the incident has occurred in the month of July.

The time of the incident must have been between morning to 6

O'clock in the evening. The spot panchanama shows that the

incident had happened in the agricultural field. The month of July

being sowing season, during the day time there must be farmers

11 apeal320.15.odt

doing their agricultural works. If the boy was in the company of

the appellant he could have been noticed by the farmers. However,

no such person is also examined by the prosecution.

12. The evaluation of the prosecution case, in my view,

shows that the prosecution was unable to point out conclusively

the finger of guilty to the appellant. Therefore, benefit of doubt is

required to be extended to the appellant. Hence, following order is

passed.

ORDER

(i) Criminal Appeal No. 320/2015 is allowed.

(ii) The judgment and order of conviction dated 17.11.2014

passed by the Special Judge, Nagpur in Special Case No. 123/2013

convicting the appellant is set aside.

(iii) The appellant who is in jail should be released

forthwith, if not required in any other case.

JUDGE

kahale