Vinod Sambayya Nishthur vs The State Of Mah. Thr.Pso ...
2017 Latest Caselaw 7258 Bom

                                                                                                            CRI.APPEAL.631.03
                                                                       1


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

                                                 CRIMINAL APPEAL NO. 631/2003

            Vinod s/o Sambayya Nishthur
            Aged about 21 years,
            R/o Aheri, Dist. Gadchiroli.                                                          ..           APPELLANT

                        versus

            The State of Maharashtra
            Through its P.S.O. Renapalli
            Dist. Gadchiroli.    .                                                                 ..         RESPONDENT

...............................................................................................................................................
            None for the appellant
            Mr. N.H.Joshi, Additional Public Prosecutor for respondent -State
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

DATED: 18th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 30.09.2003 in

Sessions Case No.59/1996 delivered by the learned 1st Ad-hoc Additional Sessions

Judge, Gadchiroli, convicting the appellant (hereinafter referred to as 'the accused')

for the offence punishable under section 376 of the Indian Penal Code and sentencing

him to suffer R.I. for three years and to pay a fine of Rs. 500/-, in default, to suffer R.I.

for one-and-a-half months, the present Appeal is filed.

2. None present for the appellant. I have heard Mr. N.H. Joshi, the

learned Additional Public Prosecutor for the respondent-State and with his assistance I

CRI.APPEAL.631.03

have gone through the record and proceedings of the case, minutely.

3. Brief facts giving rise to the instant Appeal may be summarized as

under:-

Prosecutrix was the resident of village Challewada, Tq, Aheri, Dist.

Gadchiroli. She had left the school and used to do the household work. The accused

was a teacher by profession in Vasantrao Naik School in the said village and was

residing alone as a tenant. The accused was the tenant of the father of prosecutrix

during the period between May 1993 and June, 1995. The parents of the prosecutrix

used to go for agricultural work since morning till the evening. The younger brother of

the prosecutrix used to attend School during day time. Thus, the prosecutrix used to

be alone in her house. The accused used to attend the School from 11.00 am to 2.00

pm. It is the case of the prosecution that after returning from the School, the accused

used to call the prosecutrix for doing household work and she used to assist the

accused in doing household chores. In June, 1993 at about 2.00 pm,as usual, when the

prosecutrix was working in the house of accused, the accused caught hold of her and

made to lie down on the cot, forcibly. The prosecutrix resisted his act, however, the

accused prevailed and committed sexual intercourse with her. She started weeping

and said that she would inform about the incident to her parents. Thereupon the

accused convinced the prosecutrix and promised that he would marry with her within

few days. Relying on the version of the accused, the prosecutrix did not disclose the

incident to anybody. It is further case of the prosecution that later on, accused

repeated his act many a times in the afternoon. The prosecutrix enquired with him as

CRI.APPEAL.631.03

to when he was going to marry with her. Every-time the accused used to convince the

prosecutrix and said that they are like husband and wife within a short spell of time, he

would get marry with her. The prosecutrix had consensual sex with the accused from

June 1993 to June 1995. In January, 1995 the prosecutrix missed her menses; and

realized that she was carrying pregnancy. She, therefore, again requested the

accused to marry with her to which the accused asked to her wait for a few days. In the

month of May 1995, the prosecutrix came to know from her mother that the accused

got married. After marriage, the accused came to Challewada; at that time, the

prosecutrix said to the accused that he had cheated her. On this, he assured her that

he would maintain her also as well his legally wedded wife.

4. In June,1995 the villagers convened a Panchayat at Challewada, as the

prosecutrox was in family way. In the said Panchayat, the prosecutrix as well as

accused were called, at that time, the accused admitted that he was responsible for the

pregnancy of the prosecutrix and the accused accepted her as his wife. It is the case of

the prosecution that thereafter the prosecutrix and the accused started residing in the

house of the accused. At that time, his father came to Challewada and called the

parents of prosecutrix and villagers. The father of the accused put forth a suggestion

that an amount of Rs.10,000/- will be paid to prosecutrix, if she gets married with some

other person. The villagers however denied to do so. Thereafter, the accused took her

with him to the rented house belonging to Ankalu Burale (PW 8). After about 2/3 days,

the accused came to his house along with his legally wedded wife and mother. The

accused however did not accept the prosecutrix as his wife before them. The accused

CRI.APPEAL.631.03

asked the prosecutrix to approach the Panchayat again and disclose that she was

carrying pregnancy from some other person. The accused promised her to hand over

the amount of Rs.10,000/- in cash, if she discloses the name of some other person.

The prosecutrix stayed with the accused and his family for a period of 20 to 25 days.

Thereafter she made up her mind to disclose that the foetus in her womb was of

another person. She then disclosed the name of one Shriniwas Gurnakle (PW6) in the

meeting held in the house of one Munde Patil. In the Panchayat many questions

were put up to the prosecutrix thereafter she falsely disclosed the name of PW6-

Shriniwas as she was frightened due to the threats given by the accused and she was

promised by him to hand over the amount of Rs. 10,000/- to her. Thereafter the

accused left the village for the purpose of attending a training and the prosecutrix

stayed with her parents and delivered a baby-girl. The prosecutrix then lodged her

complaint against the accused (Exh.15).

5. At the relevant point of time, the Investigating Officer-PSI Warud

Deorao Khanderao (PW9) was attached to Police Station,Renapally. He registered the

offence on the basis of the complaint lodged by the prosecutrix. PSI Khanderao (PW9)

conducted the necessary investigation. He recorded the statements of the witnesses

and after completion of investigation,submitted the charge-sheet in the Court of learned

JMFC. The case was committed to the court of Sessions. The learned Sessions Judge

framed the charges and after analysis of the evidence and hearing both the sides,

convicted the accused, as aforesaid. Hence this Appeal.

6. On the previous date of hearing Advocate Gadmade holding for Mr.

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G.G.Bade, learned counsel for the appellant had appeared in the matter and requested

that the learned counsel would appear and argue the matter. At his request, the

matter was kept today. However the learned counsel did not appear before the court.

I have heard Mr N H Joshi, the learned Additional Public Prosecutor and with his

assistance, I have gone through the record and proceedings of the case, meticulously.

7. It is noticed that the prosecution case mainly hinges on the testimony

of PW1- prosecutrix, PW2-Dr.Jatishchandra Malik, Medical Officer, PW6-Pramod Chide

Headmaster of the school and the I.O. PW9-Khanderao.

8. In order to prove that the prosecutrix was below the age of 16 years, the

prosecution heavily relied upon the testimony of the Headmaster of the School,

Pramod Chidhe(PW7). PW7 brought the Dakhala Kharij (admission register) (Exh. 29)

and an affidavit Register (Exh.28). On the basis of those documents, he deposed that

the prosecutrix was admitted in their school in first standard on 1.7.1985; and left the

school on 24.9.1990 while she was studying in sixth standard. PW7 stated that as per

the admission Register (Exh.29) the date of birth of the prosecutrix is 1.6.1979. He

further stated that the affidavit register is maintained by the school for recording the

date of birth of the student at the time of admission. As per the said affidavit register

the date of birth of the prosecutrix is 1.6.1979. He stated that the thumb impression of

the mother of prosecutrix was obtained on the affidavit register as a proof of information

furnished by the parents or guardian, regarding the date of birth of child as well as

caste etc. The extract of affidavit register is at Exh.28. PW7 fairly stated that

accordingly the certificate was issued (Exh.29). During the cross-examination PW7

CRI.APPEAL.631.03

fairly admitted that he cannot say, whether entry of birth taken in the school admission

register and the affidavit register, were taken on the basis of the birth certificate of

issued by Gram Panchayat. He further admitted that in the year 1985 it was not

necessary to obtain birth certificate from the guardian or parents of the child and the

date of birth were being recorded in the school record at the time of admission of the

child on the basis of the information of the guardian or parents given by them orally to

the school. He further admitted that the mother of the prosecutrix was illiterate and,

therefore, she had put her thumb impression in the affidavit register. He also admitted

that the birth certificate issued by the Gram Panchayat is not attached in the registers

which he had produced.

9. On going through the testimony of PW7, it is clear that the entry in the

admission register as well as affidavit register was not made on the basis of the birth

certificate issued by the Gram Panchayat and it appears that it was made on the basis

of oral information given by the mother of the prosecutrix who was an illiterate lady and,

therefore, her thumb impression was obtained on the affidavit register.

10. Thus, the testimony of PW7 does not inspire confidence with regard to

the exact date of birth of the prosecutrix.Furthermore, it cannot be relied upon from the

testimony of PW7 that the date of birth of the prosecutrix is 1.6.1979 and at the time of

incident i.e. in the month of May, 1993 she was below the age of 16 years., when the

first incident of alleged rape had taken place.

11. The prosecution further relies upon the occification test of the

prosecutrix, which is the document (Exh. 19) issued by the Medical Officer, General

CRI.APPEAL.631.03

Hospital, Gadchiroli. The said occification test report reveals the age of prosecutrix

as 17 to 18 years on 1st March,1996. Considering the report of the occification test

that the victim was between 17 and 18 years old, it may be mentioned that as per

Modi's Jurisprudence and Toxicology, there is a margin of two years on either side, so

far as the age of the prosecutrix is concerned. In that case, if the age at higher side is

to be considered it would be 18 plus two i.e. 20-years and if at all it is considered that

the prosecutrix was 20 years old on 1 st March 1996, in that case, in May 1993 she

would be of 17 years old at the time of first incident i.e. May, 1993. In view thereof, it is

held that the prosecution has failed to prove that the prosecutrix was below the age of

16 years at the time of the incident in May, 1993. It is noticed that the learned trial

Judge has not considered the said aspect and has erroneously held that the prosecutrix

was below the age of 16 years.

12. At this stage, it would not be out of place to mention here that the

parents of the prosecutrix have not been examined by the prosecution. PW 4-Madhav

Thakre, who is the cousin of the prosecutrix,was examined but he turned hostile. The

villagers who were examined by the prosecution also did not support the prosecution

case.

13. It is well-settled law that the victim of rape is not an accomplice and

there is no rule of law that her testimony cannot be acted upon without corroboration in

material particulars. She stands on higher pedestal than an injured witness. Keeping in

mind the settled law, the testimony of the prosecution is to be scrutinized.

CRI.APPEAL.631.03

14. According to the prosecutrix, at the time of the incident, she was aged

about 14 to 15 years. On the date of incident at about 2.00 pm when she was alone in

her house, accused by saying that he would marry her, took forcibly in his house. The

accused made her to lie down and committed forcible sexual intercourse with her. She

pushed the accused, however, he overpowered her. After some time he left her. The

accused then said that he would marry with her. In this manner, the accused kept

sexual relations with her for about two years. PW1 stated that she then became

pregnant. A Panchayat meeting was called; she was present in the meeting, however

the accused did not turn up. After the meeting the accused said to her that he would

keep her. The accused took her in another rented premises belonging to Ankalu (PW

8). The prosecutrix stayed with the accused in that room for about 25 days. Thereafter

the accused said that he would hand over the amount of Rs. 10,000/- to her and she

should name one Shrinivas (PW 6) regarding the said pregnancy. According to the

prosecutrix the accused after staying with her for 25 days, said that he would not keep

her any more and asked her that he would take her to the house of his mother, where

the injection will be given to kill her. The accused took her to the Police Station and

under the fear she told the name of PW6-Shriniwas to the police. Her parents then

brought her back from the Police Station to their house at Challewada after about 20

days; she delivered a baby girl. Thereafter she lodged the complaint (Exh.15) .

According to PW1 accused married with some other lady when she was pregnant.

15. In the cross-examination, it is noticed that the prosecutrix has

exaggerated her version and made an improvement with regard to the fact that accused

CRI.APPEAL.631.03

said that he would take her to the house his mother and kill her by giving an injection.

According to the prosecutrix, her father had gone to attend the marriage of the accused.

It is not clear as to why the father of the prosecutrix attended the said marriage when

the prosecutrix was carrying pregnancy from the accused. In this context, it is

significant to note that neither father nor the mother of the prosecutrix are examined by

the prosecution in order to support her case. On careful scrutiny of the testimony of the

prosecutrix, it is not clear as to why the prosecutrix had changed her stand before the

Panchayat/Police, when there was a second meeting and stated that she was carrying

pregnancy from Shriniwas. According to the prosecutrix, in the first meeting the

accused was absent. However after the said meeting he took her in a rented room

belonging to Ankalu (PW 8) where she was kept for twenty five days. If the testimony

of the prosecutrix is compared with her complaint, in the complaint it is mentioned that

she has stated before the Panchayat that the accused admitted that she was carrying

pregnancy from him. However the prosecutrix did not state before the Court about

accused admitting his responsibility about the pregnancy. The testimony of prosecutrix

shows that she stayed with the accused for about 25 days, is supported by the

testimony of PW8-Ankalu,who was the landlord of the house where the prosecutrix and

accused stayed.

16. At this juncture, it would be appropriate to discuss the case put up by

the accused. According to accused, who was examined under section 313 of Cr.P.C.

his relations with the headmaster of the school were rather strained as some

mismanagement or misdeeds were going on in the school and he used to tell the

CRI.APPEAL.631.03

people about the same. The accused stated that he made complaints to the higher

officials of the Education Department and also complained to Dy.S.P. Aheri. His

statement was also recorded by the police in that regard. However the Investigating

Officer-Khanderao on 2.2.1996 threatened him by saying as to why he was

complaining against reputed educational institutions and against the school

management in which he was serving. The accused was asked to withdraw his

complaint. According to the accused, the I.O.-Khanderao(PW9) and the headmaster of

the school Mr .Pawar both went to the house of the prosecutrix on 5.2.1996 and at

their insistence she lodged the complaint against him. The accused further stated that

he went on hunger strike in Tahsil Office Aheri. He was given written assurance for

doing the needful and, as such, discontinued the hunger strike. Then, an enquiry was

initiated against the school management and thereafter there was closure of the

school, due to showing a false strength of students and non-providing food to the

students under the Zilla Parishad etc. On 13.8.1998 he was taken back in the job in

the Zilla Parishad school at Bamanpalli. Thus, according to the accused, he was falsely

implicated in the present case.

17. In any case, the story put up by the accused does not appear to be

convincing. However, the fact remains that the accused remained with the prosecutix

for about 25 days in a rented house belonging to PW8. It appears that since the family

of the prosecutrix was illiterate and the prosecutrix was studied only upto 6th standard,

the parents of the prosecutrix had not supported her as she indulged in sexual activities

with the accused. The prosecutrix went to the extent of saying that as the accused

CRI.APPEAL.631.03

promised to pay an amount of Rs.10,000 and asked her to name one Shriniwas

about the said pregnancy and therefore, under the fear she took the name of PW 6-

Shriniwas.

18. Thus, in view of the fact that the prosecutrix kept on changing her

version, upto the extent of naming Shriniwas stating that she was carrying pregnancy

due to sexual relationship between her and Shriniwas and considering that the

Investigating agency has not even taken pains to conduct the DNA test in respect of

the child of the prosecutrix, it is very difficult to rely upon the sole testimony of the

prosecutrix. Thus, the testimony of the prosecutrix is found to be unreliable and

untrustworthy and no credence can be placed on her testimony.

19. As far as the testimony of PW8-Ankalu is concerned, he was declared

hostile by the prosecution. However, he stated during the cross-examination that for

few days the accused, prosecutrix and the legally wedded wife of the accused stayed

together in his house. Interestingly, PW1 did not state about the said fact that the

wife of the prosecutrix stayed with them. From the entire evidence on record, it

appears that the prosecutrix had indulged in consensual sex with the accused and that

was the reason her parents were not examined by the prosecution.

20. In view of the fact that the testimony of the prosecutrix is not found to

be reliable one, so also it is not proved by the prosecution that at the time of the

incident the proseuctrix was below the age of 16 years, in my opinion, the prosecution

failed to prove its case beyond reasonable doubt. Hence, the judgment and order

needs to be quashed and set aside. Needless to mention that in this case charge was

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framed against the accused u/s. 376 of IPC and there was no charge u/s.417 of IPC

framed by the learned trial Judge. In view thereof, it is held that the prosecution has

failed to prove that the accused committed rape on the prosecutrix during the period

between May 1993 and June,1995. Hence, the order :-

ORDER:

i)         Criminal Appeal No. 631/2003 is allowed.

ii)        The judgment and order dated 30th September, 2003 in Sessions Case No.

59/1996 delivered by the learned 1st Ad-hoc Additional Sessions Judge, Gadchiroli,

convicting the appellant for the offence punishable under section 376 of the Indian

Penal Code, is hereby set aside.

(iii) The appellant is acquitted of the offence punishable under section 376 of the

IPC.

iv)        The bail bond of the appellant shall stand cancelled.



                                                        JUDGE

sahare