Sau. Madhavi Ajay Gangthare vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 7261 Bom

                                         1                                   jg.apeal 109.17.odt

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

                        Criminal Appeal No. 109 of 2017

Sau. Madhavi Ajay Gangthade, 
aged about 42 years, Occupation : 
Plot No. 97, Avdhutnagar, Manewada Road, 
Police Station, Hudkeshwar, Nagpur.                                          .... Appellant

      //  Versus //

(1) State of Maharashtra
      Through Police Station Officer, 
      Police Station, Nandanvan, 
      Nagpur. 

(2) Shri Chandrakant S/o Tejbahadur,
      Manthanwar, aged about 47 years, 
      R/o Amrut Palace, 1384, New Nandanvan 
      Layout, Nagpur. 

(3) District Legal Aid Committee, Nagpur.                               .... Respondents

Shri R. R. Vyas, Advocate for the appellant 
Shri K. R. Lule, Additional Public Prosecutor for the State/respondent 
no. 1
None for the respondent no. 2
                                                    
                                    CORAM      : SMT. VASANTI  A  NAIK AND
                                                 M. G. GIRATKAR, JJ.
                                     DATE  : 18-09-2017.

JUDGMENT (Per : M. G. GIRATKAR, J.)

The criminal appeal is admitted and heard finally at the stage

of admission with the consent of the learned counsel for the parties.

2. By the present appeal, the appellant (complainant - victim)

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challenged the order of acquittal of accused/respondent no. 2.

3. It is the case of the appellant that she was working in the

office of the accused/respondent no. 2 from 2004 to 2015. On

19-3-2015, lady co-employee, namely, Sarita was on leave and another

employee, namely, Umesh was in office. Accused/respondent no. 2 sent

Umesh outside the office. When the appellant had gone to toilet

attached to the office and when she was latching the door, accused

pressed her mouth, dragged her in nearby room. It is further alleged by

her that accused threatened to kill her daughter, untied her salwar and

did sexual intercourse with her.

4. It is her further case that she started weeping in the office.

Thereafter, she went to 'Maithili Beauty Parlour'. She made phone call to

Umesh. Umesh came to beauty parlour and returned her amount. She

had gone to her sister Suman Zalke and informed her entire incident.

Suman pacified her and told her not to narrate this incident to anybody,

otherwise her husband will leave her. Thereafter she came to her home.

There was marriage of daugher of her tenant in the house, therefore she

did not disclose to anybody.

5. She has further stated in her report that accused was talking

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with her on phone and requesting her to come to office but she did not

go to the office.

6. It is further alleged by the complainant/appellant that

accused threatened her saying that she shall resume duty, otherwise he

will kill her daughter. On 26-3-2015, she informed her husband and also

informed to the accused that she is going to lodge report. Thereafter

accused, his wife and one Kashikar came to her house, at that time,

accused threatened to kill her husband and daughter. One Shrikant

Raghote morally supported her and therefore, she went to the Police

Station and lodged the report. On the report of the complainant/

appellant, offences punishable under Sections 376 and 506 of the Indian

Penal Code were registered. After complete investigation, charge-sheet

was filed in the Court of the Judicial Magistrate First Class. Offence

punishable under Section 376 of IPC is exclusively triable by the Sessions

Court, therefore, case was committed to the Court of Sessions, Nagpur.

7. The Additional Sessions Judge framed charge at Exhibit 2.

Accused pleaded not guilty and claimed to be tried. Defence of accused/

respondent no. 2 is of total denial.

8. Prosecution examined in all total five witnesses. P.W. 1 -

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4 jg.apeal 109.17.odt

appellant has stated in her evidence about the incident. Her evidence is

not corroborated by any other evidence. As per the evidence of the

appellant, she was alone at the time of incident, other employees were

not in the office whereas P.W. 4 Umesh has stated that he was in the

office of the respondent no. 2. The appellant and the respondent no. 2

were present in the office. At about 2.00 p.m., the respondent no. 2 had

gone to take his lunch to his residence and returned at about 4.00 p.m.

Thereafter Umesh left for five minutes and returned back. Prosecutrix

informed accused and left for home. Prosecution witness Umesh has

further stated that after 10-15 minutes, he received phone call from the

appellant and she asked to return hand-loan of Rs. 500/-. Therefore, he

went to Maithili Beauty Parlour and paid Rs. 500/- to the appellant.

9. As per the evidence of the appellant, nobody was present.

Accused did forcible intercourse in the office. This evidence is not

reliable. She has further stated that after the incident, she went to

'Maithili Beauty Parlour' and after making eye brow, she went to her

house. This conduct of the appellant appears to be unnatural. If crime

like rape happens with a lady, her natural conduct would be different.

She would have narrated the incident to her closed person. The

appellant went to Maithili Beauty Parlour, after making eye brow, she

went to home. Hence her evidence is not reliable.

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5 jg.apeal 109.17.odt

10. Evidence of the appellant shows that incident took place on

19-3-2015. She lodged the report on 27-4-2015. There is a considerable

delay. This delay is not properly explained by the appellant. It appears

from her evidence that she did not want to lodge any report. As per her

evidence, accused with other persons came to her house and threatened

her, thereafter she lodged the report. This evidence is not reliable.

11. Evidence of the appellant is not corroborated by any other

evidence. Testimony of victim can be relied on, if it is free from any

doubt. In the present case, evidence of the appellant is not reliable.

Moreover, her evidence creates doubt about the incident stated by her.

There may be other reason for lodging the report against the respondent

no. 2.

12. Learned trial Court rightly recorded its findings holding that

prosecution/appellant failed to prove that the accused/respondent no. 2

did sexual intercourse without her consent. Material ingredients of

Section 375 of the Indian Penal Code not established by the prosecution.

There is no evidence in respect of offence punishable under Section 506

of the Indian Penal Code. Evidence of the appellant/victim is not

reliable. Hence, the findings recorded by the learned trial Court is

perfectly legal and correct.

.....6/-

6 jg.apeal 109.17.odt

13. The appellant made the respondent no. 3 as party for

claiming compensation under Section 357 of the Code of Criminal

Procedure. It is pertinent to note that that District Legal Services

Authority is to act as per the recommendation of the Court. Whenever

Court think it proper to grant compensation to the victim, then Court can

recommend to the District Legal Services Authority to decide the amount

of compensation and pay the same. The case of the appellant itself is

not reliable. Moreover, nothing is brought on record to show that she is

in dire need of compensation.

14. Learned counsel for the appellant has relied on the judgment

in the case of State of Gujarat Vs. Kishabai Etc. 2014 ALL MR (Cri)

759 (SC). Learned counsel has submitted that there is no reason to

discard the evidence of appellant. He has pointed us the cited judgment

and submitted that appellant has good case.

15. The Hon'ble Supreme Court observed in above cited

judgment that lapses in investigation - resulting in acquittal of accused in

cases involving serious offences. Directions issued fixing accountability

on investigating officers - State Government directed to formulate a

procedure for taking action against all erring investigating/prosecuting

officials/officers. All erring officials/officers identified as responsible for

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failure of prosecution case because of culpable lapses, must suffer

departmental action.

16. Cited judgment is not applicable to the case in hand because

there was no fault on the part of the investigating agency. From the

perusal of the record, it appears that the complainant lodged the report

after the lapse of long time from time of incident. Evidence on record

shows that investigating agency is not at fault. Evidence of complainant/

appellant itself is not reliable and therefore, the cited judgment is not

helpful to the appellant.

17. Learned trial Court rightly recorded its findings holding that

the prosecution has failed to prove any of the ingredients of the offences

charged against the accused/respondent no. 2. There is no illegality in

the impugned judgment. Findings recorded by the trial Court are

perfectly legal and correct. There is no merit in the appeal.

Appeal is liable to be dismissed. Accordingly, we dismiss the

same.

                      JUDGE                                         JUDGE

wasnik




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