Bombay High Court
The State Of Mah. Thr.Pso ... vs Kawdu @ Damodar Sakharam on 27 June, 2017
Bench: M. G. Giratkar
1 judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 24 OF 20
04
The State of Maharashtra,
Through P.S.O.,
Police Station, Rajura,
District- Chandrapur.
APPELLANT
VERSUS
Kawdu @ Damodar s/o Sakharam Pimpalkar,
Aged 48 years,
Occu;- Cultivation,
R/o Kelgaon, Tah. Rajura,
Dist. Chandrapur.
RESPONDENT
Shri J.Y. Ghurde, Additional Public Prosecutor for State.
None present for respondent.
CORAM : MURLIDHAR G. GIRATKAR, J
.
DATE : JUNE
th
27 , 2017.
ORAL JUDGMENET
Present appeal is against judgment and order of acquittal
dated 19.9.2003 passed by Special Judge, Chandrapur in Special
Case No. 15/2000 [State of Maharashtra Versus Kawdu @ Damodar
s/o Sakharam Pimpalkar] by which accused/respondent acquitted
for the offence punishable under Section 3(1) (xi) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
under Sections 452 and 354 of Indian Penal Code.
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The case of the appellant/prosecution is as under :-
1. The complainant Mangala w/o Sitaram Dongare who
belongs to Scheduled Caste lodged report in Police Station, Rajura
alleging that on 7.5.2000 in the night, accused/respondent entered
in her house and outraged her modesty. On her report, Police
Station, Rajura registered Crime for the offence punishable under
Section 3(1) (xi) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and under Sections 354 and
452 of Indian Penal Code. During investigation statement of
witnesses were recorded by Shri Laxman Dewaduji Mohadikar
(S.D.P.O.). Investigating officer Shri Mohadikar went to the spot of
incident and prepared spot panchanama, after completing
investigation, filed charge sheet before J.M.F.C. Rajura who then
committed to Sessions Court, Chandrapur.
2. Charge was framed by the Trial Court at Exhibit-9 for
the offences punishable under Sections 354, 452 of Indian Penal
Code and Section 3(1) (xi) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. Prosecution has
examined in all 12 witnesses. The Trial Court examined the accused
under section 313 of Cr.P.C.. As per the defence of accused, he was
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falsely implicated in the case. He alongwith one Eknath Urkude
lodged a criminal case/report against complainant and one Bhagabai
for burning grains in the cattle shed. It is his defence that he was
standing alongwith other people in front the complainant's house, he
did not enter in the house of complainant. Complainant lodged false
report due to enmity.
3. After hearing the prosecution and defence, learned Trial
Court came to the conclusion that evidence adduced by the
prosecution creates doubt and, therefore, respondent/accused was
entitled for benefit of doubt, hence acquitted for the offences
charged against him. The present appeal is against the judgment of
acquittal by the Additional Special Judge, Chandrapur.
4. Heard, learned Additional Public Prosecutor Shri J.Y.
Ghurde for appellant State. He has pointed out me evidence of P.W.1
to P.W. 12. Learned Additional Public Prosecutor has submitted that
evidence of P.W.1 is well supported by P.W.2 and 3 and medical
evidence of Dr. Ganvir. He has pointed out me medical certificate at
Exh.50 issued by Dr. Ganvir and submitted that evidence of
complainant is corroborated that she sustained injury at the time of
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incident because accused caught hold her hand, therefore, her
bangles were broken. Learned A.P.P. has submitted that evidence
adduced by the prosecution is sufficient to convict the
accused/respondent, learned trial Court wrongly acquitted the
accused/respondent. At-last he prays to allow the appeal and convict
the respondent.
4. None appeared for the respondent when matter is called
out.
5. P.W. 1 complainant has stated in her evidence that at
about 11.00 O'clock in the night, accused entered in their house, he
caught her hand and try to pull her, when she shouted, her father
came and all caught the accused. Thereafter, her brother and other
people gathered. In the cross- examination, she has admitted that
after the meal, they closed the door. Her daughter P.W. 2 has stated
in her cross-examination that they locked the front door before
slipping. P.W. 3 also stated in his cross-examination that they went to
slip after closing door from inside. Therefore, it was impossible for
the accused/ respondent to enter in the house. The complainant has
further admitted that before incident herself and Bhagabai had set
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fire to the grains kept in Kotha (Cattleshed). Eknath Urkude caught
her while she was setting fire and Eknath had reported the matter to
Police that case is pending in Rajura Court. This incident is known to
all villagers. P.W. 2 has stated in her cross examination that accused/
respondent Eknath Urkude filed criminal case against her mother.
Therefore, it is clear that there was enmity between the complainant
and respondent. Hence, false implication cannot be ruled out.
Admission in cross examination of P.W. No.2 and 3 show evidence of
P.W. No.1 is not reliable because door was closed from inside.
6. P.W.1 complainant has stated in her evidence that
accused entered in her house and caught hold her hand. She
alongwith her father and brother caught accused he was locked
inside the house. Thereafter peoples were gathered, Nanaji Pote P.W.
4, Damodar Bapuji Lande P.W.5, Sanjay Baburao Bongirwar P.W.6 and
Ashok Narayanrao Bongirwar P.W.7 were amongst them.
7. P.W.5 and P.W.6 have stated that when they reached to the
house of complainant alongwith other villagers like Bongirwar and
Pote, complainant Mangala and others standing in the court yard.
The accused was standing in the courtyard alongwith other persons.
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Mangala told him that accused entered in her house. As per the
evidence of complainant P.W. 5 and P.W. 6 taken out the accused from
the house whereas P.W. 5 & P.W.6 have stated that when they reached
to the house of complainant alongwith other people they saw
accused standing in courtyard. P.W. No.5 who was Police Patil of
village Kolgaon advised complainant to lodge report therefore his
evidence is material. Therefore evidence of complainant is not
reliable.
7. In respect of injury sustained by complainant, it is clear
that Doctor has not specifically mentioned the color of blood. He has
stated in his cross-examination that while determining the age of
injury, he has to mentioned color of blood. As per evidence of Doctor,
complainant was examined on 8/5/2000 he found two abrasion by
sharp object and age of injury was shown 17 to 19 hours. Though,
complainant has stated that she has sustained injury to her hand,
because her bangles were broken but her daughter P.W.2 has
specifically stated that nothing happened to her mother. Accused
pulled her hand therefore she shouted. Therefore, the evidence of
complainant that she sustained injury is not reliable.
7 judgment.odt
8. Learned Additional Public Prosecutor Shri Ghurde has
pointed out me that there was scuffle and during the scuffle accused
also sustained injury. He has pointed out me evidence of Doctor
Ganvir (P.W.12). Doctor Ganvir has stated in his evidence that he
examined the respondent on 9/5/2000. He found one abrasion on
the right leg, injury was simple in nature and age of injury was 18 to
20 hours. As per evidence of P.W.1, incident took place in the night at
about 11.00 p.m. on 07/05/2000, age of injury stated by Doctor
appears to be later on the incident therefore it cannot corroborate
the version of P.W.1.
9. Evidence on record show that the complainant was
prosecuted, for burning of grain in the cattle shed, by accused and
one Pimpalkar. The case was pending before the court. Cross
examination of P.W.1, 2 and 3 clearly shows that door was closed
from inside in the night of incident. Therefore, it was impossible to
enter in the house of complainant. The evidence of complainant that
she has sustained injury is falsified by her daughter (P.W.2). Her
daughter has specifically stated that nothing happened to her
mother. Evidence of P.W.5 and 6 clearly show that accused was not
inside the house as stated by the complainant. P.W. 5 and 6 have
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stated that accused was standing in courtyard. Therefore presence of
accused is not sufficient to convict him for the alleged offences.
Prosecution has to prove the case beyond reasonable doubt. In the
present case, prosecution has failed to prove the guilt of accused
beyond reasonable doubt. On the other hand evidence adduced by
the prosecution creates doubt. Learned trial court has rightly given
benefit of doubt to the accused /respondent. There is no perversity
in the impugned judgment. Hence, the appeal is merit-less,
therefore, deserves to be dismissed. Bail bond of accused stand
cancelled.
Record and Proceedings be sent back.
JUDGE
Nandurkar
