Nagaji S/O Pundalik Jambhulkar ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 8951 Bom

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

                    Criminal Appeal No.287 of 2015

                                              ...

Nagaji s/o Pundlik Jambhulkar,
Aged about 34 years,
Occupation: Service,
R/o Rajur Colliery, Wani,
Tahsil Wani, District Yavatmal,
At present Mayadevi Girls Hostel,
Bramhapuri, Tahsil Bramhapuri,
District - Chandrapur.                            ..             APPELLANT


                               .. Versus ..


The State of Maharashtra,
through P.S.O., P.S. Bramhapuri,
Tahsil Bramhapuri,
District Chandrapur.                              ..          RESPONDENT



Shri R.M. Daga, Advocate for Appellant.
Shri R.S.Nayak, A.P.P. for Respondent- State.
                   ....

              CORAM : Kum. Indira Jain, J.

DATED : November 30, 2017.

ORAL JUDGMENT

1. This appeal is directed against the judgment and

order dated 10.07.2015 passed by the learned Sessions Judge,

Chandrapur, in Special (Child) Case No. 21 of 2014. By the said

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judgment and order, accused has been convicted of the

offence punishable under Section 376(2)(i) of the Indian Penal

Code and Section 7 read with Section 8 of the Protection of

Children From Sexual Offences Act. He is sentenced as under:-

Section 376 (2)(i) of the Indian Rigorous Imprisonment for 10 Penal Code (Ten) years and fine of Rs.1000/- in default rigorous imprisonment for 30 days.

Section 7 read with Section 8 Rigorous Imprisonment for 3 of the Protection of Children years and fine of Rs.1000/- in From Sexual Offences Act default rigorous imprisonment for 30 days.

Both the sentences were directed to run consecutively.

2. Prosecution case in brief is as under:-

(A) Prosecutrix a girl of 13 years, was resident of Sushi

(Dabgaon) in tahsil Bramhapuri district Chandrapur. She was

studying in 7th standard and staying in a Hostel Mayadevi

Kanya Vastigruh, Brahmapuri, from 01.07.2013. Smt. Shila

Harde was a Superintendent of Hostel. Accused was a

watchman attached to the said Hostel.

(B) Incident occurred during intervening night of

07.01.2014 and 08.01.2014. According to the prosecutrix on

07.01.2014 i.e. Tuesday, she went to sleep after dinner. At

about 10.30 p.m. accused came to the room where prosecutrix

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was sleeping along with the other girls. Accused called Siddhi

Sunil Kamdi. As she did not wake up, he called the prosecutrix

and asked her to come to the office of the Hostel to tie badges

of election. Prosecutrix then went to the office room and as

per the instructions of accused, tied a bundle of badges.

(C) According to the prosecution accused then asked

prosecutrix to wait for few minutes. He shut the door of office

and committed sexual act. Prosecutrix got frightened and

managed to rescue herself from the clutches of accused. She

then went to her room.

(D) On 08.01.2014 at about 8 p.m. , accused entered the

room where prosecutrix was sleeping and again committed

sexual act as alleged by the prosecutrix. She woke up and

saw the accused sitting near her. She kicked the accused and

raised an alarm. Thereafter she started weeping. The other

girls woke up.

(E) It is the case of the prosecution that accused asked

the prosecutrix when she was weeping whether she saw any

bad dream and called his wife. The wife of accused inquired

from prosecutrix why was she crying. Prosecutrix informed

about the incident to the girls of 10th standard and in the

morning to the Superintendent of Hostel.

(F)           On 09.01.2014 in the morning she had been to the





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school.      She was weeping throughout. When she was asked

about the reason for weeping, she informed the Class Teacher

Chhaya Mandhare, and Headmistress Prabha Madam about the

incidents. She then had been to Bramhapuri Police Station and

lodged report.

(G) PW11 API Sonkusare attached to Bramhapuri Police

Station received the investigation. He visited the place of

occurrence and recorded spot panchanama. Accused was

arrested. He was sent for medical examination. The victim girl

was also referred for medical examination. During

investigation, clothes of the victim and the accused were

seized. The information regarding Hostel, appointment of the

accused and the other details came to be collected. The seized

Muddemal was sent to Chemical Analyser. The statement of

victim under Section 164 Cr.P.C. was recorded by the

Magistrate. On completing investigation, charge sheet was

submitted to the Court of Judicial Magistrate First Class,

Bramhapuri, who in turn committed the case for trial to the

Court of Session.

3. On committal, trial Court framed charge against the

accused vide Exh.13. Accused pleaded not guilty and claimed

to be tried. He raised a defence that due to election of

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Municipal Council, Bramhapuri, a false complaint came to be

lodged due to political rivalry and Management of the School

implicated him in a concocted case.

4. To substantiate the guilt of accused, prosecution

examined in all 13 witnesses. Accused did not examine

himself on oath or any witness in support of his defence.

Considering the evidence adduced by the prosecution, trial

Court came to the conclusion that accused committed

penetrative sexual assault and sexual act on prosecutrix and

held him guilty of the offences alleged. Accused was

accordingly convicted as stated in paragraph one above. Being

aggrieved with the judgment and order of conviction and

sentence, accused has preferred this appeal.

5. Heard Shri R.M. Daga, learned counsel for appellant

and Shri R.S. Nayak, learned APP for State. Perused impugned

judgment and order and the depositions of prosecution

witnesses.

6. Learned counsel for appellant submitted that

prosecution case is based on the sole testimony of prosecutrix.

It is submitted that 10 girls used to sleep in a room in which

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prosecutrix was sleeping. The three girls examined did not

support the version of prosecutrix. Important witnesses

particularly Warden of the Hostel and Maind Madam who

dictated the report lodged by prosecutrix were kept away from

the witness box without any reason. Learned counsel submits

that in such a case, though corroboration is not necessary, in

the case on hand corroboration is must considering the facts

elicited in the cross-examination of prosecutrix and the

defence raised by the appellant.

7. Per contra, learned APP supports the judgment and

order of conviction and sentence and submits that conviction

can be based in such a case on a solitary testimony of the

prosecutrix.

8. On the meticulous evaluation of evidence, the only

point that arises for consideration is whether conviction can be

based on solitary testimony of a victim girl aged about 13

years without any corroboration and to this finding of this Court

is in the negative for the following reasons.

9. Needless to state that in a case where sexual or

penetrative sexual assault is alleged, testimony of the

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prosecutrix or victim can be relied upon to base a conviction

without any corroboration if the evidence of victim is

otherwise found to be trustworthy, reliable and believable.

10. PW3 is a victim girl. In examination-in-chief, she

supports her case to a large extent. In cross-examination, she

stated that 49 students were residing in the Hostel consisting

of four rooms. She used to sleep in a row in a room where 12-

13 girls were staying. She states that at the time of incident,

Pallavi was sleeping to her one side and to another side Shruti

was sleeping. Prosecution examined Shruti (PW4) and Pallavi

(PW8). Presence of PW5 Siddhi at the relevant time in the

room is also apparent from the evidence of a victim girl. Siddhi

is examined as PW5. These three girls did not support the

testimony of prosecutrix.

11. In her cross-examination prosecutrix admitted that

after her arrival to Police Station, her father came there. It can

be revealed from the facts brought in cross-examination that

one Maind Madam informed about the incident to Police Station

and accordingly Police reduced the report to writing.

Investigating Agency cited Maind Madam as a witness but did

not examine her. She was a material witness to whom incident

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was disclosed by the prosecutrix and who was present at the

time of lodging report.

12. It is apparent from the evidence that accused was a

Watchman attached to the Hostel at the relevant time. The

Warden of Hostel Smt. Shila Gharde, another important

witness, was kept away from the witness box by the

prosecution. Non-examination of witnesses Maind and Shila

Gharde creates doubt about the reliability of the evidence of

the prosecutrix particularly when the three girls who were

sleeping with the victim at the time of incident did not support

the version of prosecutrix.

13. Another draw back in the case is absence of any

injury on the body of victim and the accused. In this

connection, evidence of PW12 Dr. Bhagyashree is relevant.

From the evidence of PW12 Medical Officer, it can be seen that

immediately after the report was lodged, prosecutrix was

examined by her. It is stated by the Medical Officer that she

did not find any injury on the body of victim. She admits that

in darkness if finger is inserted forcibly in private part, injury to

labia minora and labia majora is possible. She also states that

rupture of hymen in such a case is also possible. The Medical

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Certificate (Exh.81) clearly indicates that none of such signs

were found on the person of victim at the time of medical

examination. The negative medical report creates a suspicion

regarding the manner of incident as alleged by the victim.

14. The next significant factor which is to be noticed in

the present case is regarding absence of blood and semen on

the clothes of prosecutrix and the accused. The Chemical

Analyser report indicates that neither blood nor semen could

be detected on the clothes of the victim and the accused.

15. Another factor which needs to be considered in the

case on hand relates to the conduct of accused. The victim

had stated in her examination-in-chief itself that when accused

saw her weeping, he called his wife and his wife had asked her

whether she had any bad thought, why was she crying. If

accused had committed the acts as alleged by prosecutrix, in

normal course he would have fled away from the spot. The

past conduct of accused clearly demonstrates his innocence.

16. The Investigating Agency has collected medical

certificate of the accused in the course of investigation. It

appears that certificate is issued by the competent authority.

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From the certificate, it can be seen that accused was suffering

from loss of functional capacity and one of the witnesses PW4

Shruti admits that accused is lame by one leg. Arrest

panchanama supports the same.

17. In the light of the above and on overall scrutiny of

evidence, this Court finds the prosecution case overlain with

mass of doubts and suspicion and holds that prosecution could

not prove the guilt of accused beyond doubt. Hence the

following order:-

(i) Criminal Appeal No. 287 of 2015 is allowed.

(ii) Impugned judgment and order dated 10.07.2015

passed by the learned Additional Sessions Judge, Chandrapur in

Special (Child) Case No. 21 of 2014 is quashed and set aside.

(iii) Accused Nagaji Pundalik Jambhulkar is acquitted

of the charges alleged.

(iv) Bail bonds of the accused stand discharged.

(v) Fine if deposited, shall be refunded to the

accused.

(vi) No costs.

(Kum. Indira Jain, J. ) ...

halwai/p.s.