Anil Vithoba Bhanarkar vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 1302 Bom

 CRI. APPEAL NO.332.16.odt                    1


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

                    CRIMINAL APPEAL NO.332 OF 2016


 Anil Vithoba Bhanarkar,
 Aged about 30 years,
 Occupation-Private,
 R/o. Katgaon, Tah. Nagbhid,
 District-Yavatmal.                                 ..               APPELLANT

                               .. VERSUS ..

 State of Maharashtra,
 through Police Station Officer,
 Nagbhid, Police Station,
 Chandrapur.
                                                    ..           RESPONDENT


                     ..........
 Shri Mir Nagman Ali, Advocate for Appellant,
 Shri R.S. Nayak, A.P.P. for Respondent.
                     ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : MARCH 30, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 17.3.2016 passed by the learned Judge,

Special Court, Chandrapur in Special (Child) Case

No.20/2013. By the said judgment and order, appellant has

been convicted of the offence punishable under section 376

(2) (i) of the Indian Penal Code and Section 6 of the

Protection of Children From Sexual Offences Act, 2012 and

sentenced to suffer rigorous imprisonment for 10 years and

fine of Rs.20,000/- in-default to suffer simple imprisonment

for 6 months. Appellant-accused is also convicted of the

offences punishable under Sections 363 and 366 of the

Indian Penal Code and sentenced for each to suffer rigorous

imprisonment for 5 years and fine of Rs.1,000/- in-default to

suffer simple imprisonment for 1 month each.

2] Prosecution case which can be revealed from the

chargesheet and connecting papers thereto may be stated

in brief as under :

(a) Complainant Sunita Arvind Nannaware

was resident of Kotgaon, Tahsil-Nagbhid, District-

Chandrapur. Victim was her 11 years old daughter

studying in Std. 5th at the relevant time.

(b) On 24.8.2013, Sunita and her husband

had gone for work. Victim was playing with her

younger brother outside the house. It is the case

of prosecution that accused came there, asked the

victim to accompany him to bring 'dara' (branch of

tree) and under the said pretext, kidnapped the

victim. He took her to Paharani jungle and

committed sexual assault on her. He also

threatened the victim of life if she would disclose

the incident to anyone.

(c) After 2-3 days, mother of victim noticed

swelling on the body of victim. On 27.8.2013,

Sunita took the daughter to the hospital of

Dr. Kale. On examination, Doctor found that victim

was suffering from fever, swelling and pallor on

face and there was tenderness on the abdomen

and urine infection. The mother of victim took her

in confidence and enquired from her. That time,

victim disclosed about the incident and narrated to

her mother that accused took her to jungle and

committed sexual assault on her and as she was

threatened she did not disclose the same to

anyone.

(d) On 2.9.2013, Sunita had been to Nagbhid

Police Station along with Police Patil Bhendarkar

and lodged report. Crime No.82/2013 was

registered against the accused for the offences

under the Indian Penal Code, the Protection of

Children From Sexual Offences Act, 2012 and the

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. PW-13 API

Dhoble referred the victim to Rural Hospital,

Nagbhid and in turn, she was referred to General

Hospital, Chandrapur. Further investigation came

to be handed over to PW-12 S.D.P.O. Reena

Janbandhu. Investigating Officer visited the place

of occurrence and recorded spot panchanama.

Statement of victim in question answer form was

recorded. Accused was arrested.

(e) The clothes on the person of accused

were seized. It's seizure panchanama was drawn.

Motorcycle used by the accused during

commission of crime was also seized under a

seizure panchamama. Caste certificate of victim

and accused came to be collected. Statements of

witnesses were recorded. On completing

investigation, chargesheet was filed before the

Special Court.

3] Charge of the alleged offences was explained to

the accused vide Exh.6. He pleaded not guilty and claimed

to be tried. His defence is of total denial and false

implication. In addition, he raised the plea of alibi and

submitted that on 24.8.2013 between 2.00 pm and 4.00 pm,

he was present in the clinic of Dr. Katekhaye at Nagbhid as

he accompanied his wife for check up and he was not at

Kotgaon as alleged by the complainant.

4] Prosecution examined in all 15 witnesses in

support of its case. Considering the evidence of prosecution

witnesses and particularly prosecutrix and Medical Officer,

Trial court came to the conclusion that accused was guilty of

committing sexual assault on prosecutrix, a girl of tender

age and in consequence thereof, accused was convicted.

Being aggrieved by the judgment and order of conviction,

present appeal has been preferred by the original accused.

5] Heard the learned counsel for parties. Perused

reasons recorded by the Trial court. Upon carefully going

through the evidence of prosecution witnesses, this court,

for the below mentioned reasons, finds merit in the

submission of learned counsel for appellant-accused that

prosecution could not prove the guilt of accused beyond all

reasonable doubt.

6] PW-4 victim is the star witness. She stated that on

the day of incident, her parents had gone for work. She was

at home with her brother. She was playing with her brother

on the road in the noon. She stated that accused came

there on motorcycle and asked her to accompany him. The

evidence of victim shows that accused took her to Paharani

jungle on his motorcycle and forcibly inserted his penis in

her private part. Then he left her home on motorcycle. She

was threatened that in case she would disclose the incident

to anyone, she would be killed. She stated that at 5.00 pm,

her parents came home. She did not narrate the incident to

them. According to prosecutrix, there was swelling on her

body. She was taken to doctor. After she was examined by

the doctor, she narrated the incident to her mother.

7] PW-3 Sunita is mother of victim and complainant.

She states that on the day of incident, she returned home at

5.00 pm. After 2-3 days, she noticed swelling on the person

of her daughter. Therefore, on 27.8.2013 she took her to

hospital of Dr. Kale. On examination, doctor found swelling

on private part of victim. She then states that on enquiry

her daughter told her that before 2-4 days, Anil Bhanarkar

took her on motorcycle to village Paharani in the forest and

forcibly inserted his penis in her private part. On 2.9.2013,

Sunita went to Police Station and lodged report. The

evidence of prosecutrix and her mother is assailed on behalf

of appellant on the following grounds :

                (1) Belated       disclosure    of      incident         by
                       prosecutrix.

(2) Even after disclosure by the victim, delay in lodging report.

(3) Her post conduct in attending the school in regular course without informing the incident even to her parents.

(4) Previous animosity and quarrel between complainant and accused.

(5) Absence of independent corroboration to the testimony of prosecutrix.

8] So far as delay in lodging report and belated

disclosure by the victim is concerned, learned Additional

Public Prosecutor submitted that in a case of sexual assault,

the family members of victim would not immediately rush to

the Police Station as they are worried about their reputation

and in such a case, delay of few days cannot be said to be

fatal to the prosecution case. It is further submitted that

prosecutrix was under the threats of accused and, therefore,

she might not have disclosed the incident till she was

questioned by her mother. Learned Additional Public

Prosecutor submits that prosecutrix and complainant are the

rustic witnesses and in this background their evidence

needs to be considered. So far as independent corroboration

is concerned, submission is that in a case of sexual assault,

reliance can be placed on the sole testimony of prosecutrix,

if otherwise it inspires confidence is found to be trustworthy

and believable. It is submitted that prosecutrix was hardly

11 years old. She had no grievance against the accused

and due to fear of threats given by accused, she did not

disclose the incident and when it was disclosed, mother had

been to Police Station and lodged report.

9] Per contra, learned counsel for appellant submitted

that an unexplained delay in disclosure of incident by

prosecutrix to her mother, her post conduct in regularly

attending the school and even after disclosure by victim to

her mother, delay in lodging FIR are the factors which create

serious doubt regarding the reliability of the prosecution

case. Learned counsel, on the point of delay in lodging FIR,

relies upon the decision of the Hon'ble Supreme Court in

Dilawar Singh .vs. State of Delhi, [2007 ALL SCR

2430]. Another submission on behalf of appellant is that

quarrel between complainant and accused has been

admitted. Delay has remained unexplained. In such

circumstances, corroboration to the testimony of victim and

complainant was necessary and in the absence of

corroboration, benefit of doubt should have been given to

the accused. On corroboration, reliance is placed on the

decision of the Hon'ble Supreme Court in Sohan

Rajinder .vs. State of Haryana, [2001 (3) SCC 620].

10] From the scrutiny of evidence of prosecutrix and

complainant, it can be seen that incident occurred on

24.8.2013. On 27.8.2013 prosecutrix was examined by the

doctor. It is the contention of prosecution that complainant

came to know about sexual assault on 31.8.2013. Report

was lodged on 2.9.2013. On 2.9.2013, again prosecutrix

was examined by PW-2 Dr. Shrirame. Prosecutrix admits in

her cross-examination that she was attending the school in

normal course. So far as age of prosecutrix is concerned,

according to prosecution, she was 11 years old. Though

defence disputes the age, from the line of cross-

examination, it can be seen that even, according to

accused, prosecutrix was 13-14 years old. In any case, she

was minor but not of too tender age. She had sufficient

understanding. In the background of admitted quarrel,

delay in disclosure of incident, delay in lodging FIR, delay in

medical examination of prosecutrix and opinion of medical

expert showing various deficiencies in prosecutrix, it was

expected to examine independent witnesses, who were

available.

11] Accused has come with a defence that at the

relevant time he was at the clinic of Dr. Katekhaye (DW-1) at

Nagbhid. He also examined his wife Sarika (DW-2) to

substantiate the plea of alibi. On appreciation of evidence

of defence witnesses, learned counsel for appellant strongly

placed reliance on the decision of Hon'ble Supreme Court in

Dudh Nath Pandey .vs. State of Uttar Pradesh, [1981

(2) SCC 166] and submits that defence witnesses are to be

treated at par with prosecution witnesses. The proposition

of law laid down by the Hon'ble Supreme Court is well

settled

12] DW-1 Dr. Katekhaye deposed that wife of accused

was under his medical treatment. In August, 2013 Sarika

(DW-2) was carrying pregnancy. According to Dr. Katekhaye,

on 24.8.2013 Sarika had come to his hospital between 2.00

and 4.00 pm. He examined her and issued prescription. He

maintains the record showing entries of patients who visits

his hospital. He had not brought the copy of record with

him. It is stated by Dr. Katekhaye that accused had

accompanied Sarika on 24.8.2013 between 2.00 and 4.00

pm when she had visited his hospital.

13] The evidence of Sarika (DW-2) indicates that on

24.8.2013, she along with her husband/accused proceeded

on motorcycle at around 1.00-1.30 pm from Kotgaon to

Nagbhid and at 2.00 pm, they reached the hospital of Dr.

Katekhaye. She stated that doctor examined her and they

purchased medicines prescribed by doctor. Thereafter, they

returned home by 4.00 pm. The distance between Kotgaon

to Nagbhid is around 7 km. The evidence of Dr. Katekhaye

has been disbelieved on the ground that record has not

been produced by him and no timings are mentioned on

prescription. It is pertinent to note that evidence of Dr.

Katekhaye has remained unshaken in cross-examination.

Nothing could be elicited to show that he had a reason to

side the accused. Whether he was a qualified doctor or not

is not relevant here. From the evidence of Sarika and

Dr. Katekhaye, it is clear that accused could show on the

basis of preponderance of probability that he was elsewhere

at the time of occurrence of incident. Except prosecutrix, no

one positively confirms presence of accused on the spot at

the time of incident. Complainant has a reason to grind an

axe against the accused. The possibility of complainant

tutoring the victim is not ruled out, as the circumstances

particularly inordinate unexplained delay would show that at

the earliest possible opportunity occurrence of incident was

not disclosed by prosecutrix to her family members and by

her family members to the police. Based on the evidence of

DW-1 Dr. Katekhaye, accused could throw a doubt on the

truthfulness of the version of prosecutrix and complainant.

14] In the above premise and particularly in view of

inordinate delay in disclosure of incident, unexplained delay

in lodging FIR, post conduct of prosecutrix and absence of

independent corroboration to the testimony of victim, this

court finds that prosecution could not prove the guilt of

accused beyond all reasonable doubt. Criminal Appeal,

therefore, deserves to be allowed. Hence, the following

order :

ORDER

(i) Criminal Appeal No.332 of 2016 is allowed.

(ii) The judgment and order dated 17.3.2016 passed

by the Special Court, Chandrapur in Special (Child) Case

No.20/2013 is set aside and appellant Anil Vithoba

Bhanarkar is acquitted of the offence punishable under

section 376 (2) (i) of the Indian Penal Code and Section 6 of

the Protection of Children From Sexual Offences Act, 2012.

(iii) Appellant shall be set at liberty forthwith, if not

required in any other case.

(iv) Fine amount, if paid, shall be refunded to

appellant.

(Kum. Indira Jain, J.)

Gulande, PA