Santosh Bhauji Bodekar vs State Of Mah.Thr.Pso Chandrpur
2017 Latest Caselaw 7291 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.526 OF 2004


 Santosh s/o Bhauji Bodekar,
 Aged about 34 years, 
 Occupation - Agriculturist, 
 Resident of Sonapur, District Chandrapur.                     ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through P.S.O. Pombhurna, 
 District Chandrapur.                                          ....       RESPONDENT

 ______________________________________________________________

             Ms. Dharini Mule, Advocate for the appellant, 
          Smt. M.H. Deshmukh, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 19 SEPTEMBER, 2017.

th

ORAL JUDGMENT :

Challenge is to the judgment and order dated 23-7-2004

in Sessions Trial 13/2002, delivered by the learned First Ad hoc

Additional Sessions Judge, Chandrapur, by and under which the

appellant is convicted for offence punishable under Section 307 of the

Indian Penal Code and is sentenced to suffer rigorous imprisonment

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for three years and to payment of fine of Rs.500/-.

2. The genesis of the prosecution is the first information

report lodged by the complainant Pushpa Deorao Gaurkar (Exhibit 23)

The gist of which is as stated infra.

The informant states in the first information report that

the appellant Santosh (hereinafter referred to as the "accused") is a

relative and used to visit the house of the informant intermittently and

stay overnight. She states that although her husband was aware of the

visits of the accused, due to the relationship, her husband neither

voiced any suspension nor questioned the informant. The first

information report states that eight days after pola festival of the

preceding year, the informant was assaulted by her husband with a

stone since he suspected a relationship between the informant and the

accused. The informant further states that although there were no

illicit relations or love between the informant and the accused, her

husband used to quarrel with her and beat her with a stick. The

husband also lodged a report in the police station against the

informant suspecting illicit relationship with the accused, is the further

recital. The police intervened and asked the accused, the informant

and her husband not to have any interaction with each other. The

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informant then states that she is not on talking terms with the accused

since that incident and the accused did not visit her house in the

absence of the husband. It is stated in the first information report that

sometimes when the informant used to come across the accused on her

way back from the field, the accused used to make gesture and utter

that he will murder either the informant or her husband.

3. The first information report further states that at 7-00 p.m.

on 10-4-2001 the informant went to answer the nature's call in the

paddy field. The husband of the informant was attending a function at

the house of one Pimpalshende. The informant untied her lugade (9

yard saree), the accused accosted her, dragged her catching hold of her

hand, lifted and put the informant in the well situated in the field of

his employer. The informant resisted, however, the accused did not

listen, is the version in the first information report. The informant

caught hold of the pipe in the well, after 2-3 hours she recognized the

voice of her husband who was passing from the spot while talking with

somebody. The informant called out that "I am in the well, where are

you going". The husband of the informant approached the well and

rescued the informant with the help of people. The informant further

states that since her 9 yard saree had become wet and stuck to the pipe

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of the well, she came out of the well in a naked condition. Her

husband gave her a lungi to cover herself. She states that she did not

suffer any injury as there was ample water in the well. The accused

was intending to kill the informant, is the statement in the first

information report.

4. Offence under Section 307 of the Indian Penal Code came

to be registered on the basis of the said first information report.

Completion of the investigation culminated into submission of charge-

sheet in the court of the learned Judicial Magistrate First Class,

Chandrapur, who committed the case to the Sessions Court.

5. The learned Sessions Judge framed charge at Exhibit 8,

the accused pleaded not guilty and claimed to be tried. The defence as

is discernible from the trend and tenor of cross-examination and the

statement recorded under Section 313 of the Criminal Procedure Code

is of total denial and false implication.

6. Ms. Dharini Mule, learned Counsel for the appellant

submits that the version of the complainant who is examined as P.W.1

is inherently incredible. The learned Counsel would submit that the

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prosecution case has too many shades of grey and the learned Sessions

Judge fell in serious error in recording a finding that the offence under

Section 307 of the Indian Penal Code was proved beyond reasonable

doubt. The evidence of P.W.1 Pushpa is not corroborated by the spot

panchanama and the seizure memo, is the submission. The learned

Counsel for the accused would further submit that the two defence

witnesses namely Maroti Pimpalshende and Sakharam Pimpalshende

have created sufficient doubt about the veracity of the prosecution

case. The defence of alibi is probablised on the touchstone of

preponderance of probabilities, is the submission.

7. Mrs. M.H. Deshmukh, learned Additional Public

Prosecutor submits that the evidence on record is cogent and sufficient

to bring home the charge under Section 307 of the Indian Penal Code.

The complainant Pushpa did not have any motive to falsely implicate

the accused, is the submission. Taking a clue from the observation of

the learned Sessions Judge, the learned Additional Public Prosecutor

would submit that if Pushpa and her husband Deorao really intended

to falsely implicate the accused, rather than asking Pushpa to enter the

well at odd hours, Pushpa or her husband would have leveled some

other allegation against the accused illustratively that of outraging her

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modesty. The learned Additional Public Prosecutor submits that the

judgment impugned is well reasoned and does not suffer from any

infirmity.

8. The fate of the appeal hinges on the credibility or

otherwise of the version of P.W.1 that she was thrown in the well by

the accused. P.W.1 states that on the date of the incident at 7-00 p.m.

she went to answer the nature's call in the field of Maraskolhe. The

said field adjoins the road. The accused was then working in the field

of Ghanshyam Hiwase which is adjoining to the field of Maraskolhe.

P.W.1 states that the accused accosted her, caught her hands, she

shouted, the accused gagged her mouth and then dragged P.W.1

towards the well situated in the field of Hiwase by gagging her mouth

and holding her hands. P.W.1 then states that the accused dropped

her in the well, she caught hold of a pipe fitted in the well and it was

at about 10-00 p.m. that she heard the voice of her husband who was

talking with someone. She called out to her husband, her husband

approached the well, P.W.1 told her husband that the accused threw

her in the well. Her husband was accompanied by Harishchandra

Thengane. After sometime a rope was thrown in the well. The police

patil Bhaurao Patil also arrived at the spot. The saree of P.W.1 was

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entangled with the pipe and she was not in a position to come out.

P.W.1 further states that her husband threw a lungi inside the well

which she tied around her waist and came out of the well with the help

of the rope.

9. P.W.1 states that two months prior to the incident there

was a heated exchange of words between the accused and her

husband. She claims ignorance of the reason for the altercation.

P.W.1 further deposes that when she fell in the well, she was wearing

chappal and was carrying a container. The well water was 6 to 7 feet

deep and the parapet wall was 3 feet in height.

10. I will advert to the cross-examination of P.W.1 at a later

stage in the judgment. I intend to take the examination-in-chief at face

value and then analyze the credibility of the version in the context of

the spot panchanama.

11. The spot panchanama (Exhibit 20) is not in dispute. The

spot panchanama records that the spot from which the complainant

P.W.1 was dragged by the accused is situated at a distance of 400 feet

from the well in which P.W.1 is allegedly thrown. The depth of the

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well and the depth of the water is recorded 36 feet and 15 feet

respectively. The motor and water pipes are inserted in the well from

the southern side and towards the eastern side, there are two water

reservoirs, one built with cement and the other built with stones.

The version of P.W.1 is that she was accosted by the

accused and the spot which, as is revealed from the spot panchanama,

is at a distance of 400 feet from the well. P.W.1 has deposed that she

was dragged, her mouth was gagged, her hands were held and she was

physically lifted and thrown in the well. Interestingly, the slippers

which she was wearing and the container which she was carrying

continued to be on her feet/in her hands despite the allegedly brutal

physical act of the accused who gagged her mouth and dragged her

400 feet to the well and then physically lifted her and threw her in the

well. The version of P.W.1 is that she fell in the well alongwith the

slippers and container.

Miraculously P.W.1 who was physically manhandled,

gagged, dragged and thrown in the well which is at least 35 feet deep

if not 45 feet deep as has come in the evidence of P.W.4, she has not

suffered a single injury except for a minor abrasion on the elbow. Be

that as it may, it would be an extra ordinarily lucky person not to have

suffered any significant injury after being thrown in a well with water

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pumps and pipes etc. Be it noted that on her own admission P.W.1 did

not know swimming.

Let me now analyze the evidence of P.W.1 in juxta

position with the cross-examination and the evidence of her husband

P.W.2 and P.W.3 who accompanied her husband Deorao in the search

for the complainant. In the cross-examination, P.W.1 states that the

water pipe to which she held on for hours and saved herself, is at a

distance of 7 feet from the spot where she fell on being thrown in the

well by the accused. Again, P.W.1 must be extremely fortunate to be

in a position to reach and caught hold of the pipe since she did not

know how to swim. The evidence of P.W.2 and P.W.3 would suggest

that they embarked on the search between 7.30 to 8-00 p.m. P.W.2

husband was aware that P.W.1 had gone to answer the nature's call.

He was further aware of the fact that most of the villagers answered

the nature's call in the field of Maraskolhe. It is not the case of the

prosecution that P.W.2 and P.W.3 spent hours in searching for P.W.1.

Au contraire, the evidence of both P.W.2 and P.W.3 would show that

they immediately took the road to the field of Ghanshyam Hiwase and

while passing the well heard the voice of P.W.1. However, according

to the case of the prosecution, P.W.1 was rescued after 10-00 p.m. The

time line is inexplicable and thus seriously damaged to the credibility

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and veracity of the version of the prosecution witnesses.

12. It is further difficult to believe that the slippers and the

container which a woman was wearing/carrying would remain with

her across the distance of 400 feet while she was physically

manhandled, gagged, dragged and then lifted and thrown in the well.

The fact that both the slippers and the container were found floating in

the well is suspicious, to say the least. In ordinary course, a woman

whose life is endanger, whose mouth is gagged and hands are held and

who is dragged over a distance of 400 feet by the accused would find it

impossible to retain possession of the container and indeed she would

rather prefer to let go of the container so that her hands are free to

resist the assailant. Equally suspicious is version of P.W.1 that her

saree got entangled in the pipe, a lungi was thrown inside the well

which she wrapped across her waist and then came out with the help

of rope. The spot panchanama shows that the saree is seen hanging on

the motor pump pipe and the wire beside the pipe. The seizure memo

(Exhibit 21) states that the saree, jug and slippers were removed from

the well by Maroti Raghunath Pimpalshende. The said Maroti

Pimpalshende is examined as defence witness 1. He has deposed that

the saree was lying on the rock inside the well. Interestingly, in the

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cross-examination, there is no challenge to the testimony that the saree

was lying on the rock inside the well. The only suggestion given to

D.W.1, which he has denied, is that container and chappal were

floating in the well. The possibility that the saree and jug and slippers

(if at all) which were found in the well were deliberately planted to

make out a case of the accused having thrown Pushpa in the well, is a

stark and real possibility.

13. The learned Additional Public Prosecutor poses a question,

as indeed was also posed by the learned Sessions Judge, as to why

would Pushpa (P.W.1) and her husband take the pains of Pushpa

entering the well an odd hours when she could have falsely implicated

the accused by alleging molestation etc. It is difficult and most of the

times impossible to fathom the working of the human mind. "The

Devil himself knoweth not the mind of man" said Justice Brian from

the Reign of Edward IV. However, the learned Sessions Judge ought to

have appreciated that the prosecution must prove its own case and the

guilt of the accused beyond any reasonable doubt. It is true that the

accused set up a defence of alibi which is not accepted and, in my

opinion, rightly, by the learned Sessions Judge. It is also true that the

other defence is of false implication. However, the failure or inability

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of the accused to prove the defence does not dilute the burden of the

prosecution to prove the guilt of the accused beyond reasonable doubt.

If the evidence of the complainant P.W.1 is found to be not implicitly

reliable and indeed inherently incredible, the accused cannot be

condemned by wondering as to why would the accused be falsely

implicated in the manner in which the false implication is alleged.

14. On a holistic appreciation of the evidence on record, I am

not persuaded to hold that the evidence of P.W.1 Pushpa is implicitly

reliable or confidence inspiring. The prosecution has not proved the

offence beyond reasonable doubt and the state of the evidence being

what it is, the accused cannot be condemned to deprivation of liberty.

15. I would set aside the judgment and order dated dated

23-7-2004 delivered by the learned First Ad hoc Additional Sessions

Judge, Chandrapur in Sessions Trial 13/2002. The accused is

acquitted of the offences punishable under Section 307 of the Indian

Penal Code. The bail bond of the accused shall stand discharged. Fine

paid by the accused, if any, be refunded to him.

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                             The   criminal   appeal   is   allowed   and   disposed   of

           accordingly. 



                                                                       JUDGE
adgokar