Bhaulal @ Bhurya Doma And Another vs The State Of Mah.Thr.Pso Gondiya
2018 Latest Caselaw 75 Bom

 apeal681of04.odt                          1




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


                     CRIMINAL APPEAL NO.681 OF 2004


 1        Bhaulal @ Bhurya S/o. Doma Morgave,
          Aged about 22 years,
          Occupation : Agriculturist,
          R/o. Tedha, Tah. Goregaon,
          District Gondia

 2        Chunnilal s/o. Koduji Meshram,
          Aged about 24 years,
          Occupation : Agriculturist,
          R/o. Tedha, Tah. Goregaon,
          District Gondia                                            ...APPELLANTS


          ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Officer
 Goregaon, Police Station Goregaon,
 District Gondia                                                      ...RESPONDENT
 -------------------------------------------------------------------------------------------
 None for appellants.
 Mr. N.H. Joshi, Additional Public Prosecutor for Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

DATE OF DECISION : 05.01.2018

ORAL JUDGMENT:

The appellants are aggrieved by the judgment and

order dated 27.8.2004, in Sessions Trial 6 of 2003, delivered by

2nd Adhoc Assistant Sessions judge, Gondia, by and under which

the appellants (hereinafter referred to as "the accused") are

convicted of offence punishable under section 376(2)(g) of the

Indian Penal Code ("IPC" for short) and are sentenced suffer

rigorous imprisonment for seven years and to payment of fine of

Rs. 1,000/-. The accused are further convicted of offence

punishable under section 3(1)(xi) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act ("Atrocities Act"

for short) and are sentenced to suffer rigorous imprisonment for a

year and to payment of fine of Rs. 500/-.

2 The appeal was called out for final hearing on

4.1.2018. The hearing was adjourned till 5.1.2018 since the

learned counsel for the accused was absent. The learned counsel

for the accused is again absent when the appeal is called out for

hearing today. I propose to decide the appeal on merits and I

have with the fair and able assistance of the learned Additional

Public Prosecutor Shri N.H. Joshi, scrutinized the record and

proceedings to satisfy the conscious of the Court that the

prosecution has established the offence against the accused

beyond reasonable doubt.

3 The First Information Report is lodged by PW 1

prosecutrix on 1.11.2003. The oral report is Exh. 10 on the record

of the Trial Court and the printed First information Report is Exh.

15.

4 Concededly, the oral report is lodged by PW 1

prosecutrix after approximately seven months of the incident. It is

not in dispute that the prosecutrix did not reveal the complicity of

the accused to any person including her family till she lodged the

report at Goregaon Police Station on 1.11.2003. It is not in

dispute that the prosecutrix was in advanced stage of pregnancy

when she lodged oral report and in due course gave birth to a

male child. I may state, only to keep the record straight, that

when the prayer for suspension of sentence and grant of bail was

being considered by this Court, a oral submission was made on

behalf of the accused that the paternity of the male child born to

the prosecutrix be established by conducting a DNA test. This

Court, vide order dated 1.12.2004 directed that a DNA test be

conducted, the test was accordingly conducted and neither of the

accused was found to be the father of the child born to the

prosecutrix.

5 With the fair and able assistance of the learned

Additional Public Prosecutor Shri N.H. Joshi, I have given my

anxious consideration to the evidence on record, and having done

so, I am not persuaded to uphold the judgment of conviction. I am

satisfied, for reasons spelt out infra, that the prosecution has not

established, much less beyond reasonable doubt, that the accused

have committed offence either under section 376 (2) (g) of IPC or

under section 3(1)(xi) of Atrocities Act. I have reached this

finding de-hors the DNA test report and independently thereof on

the basis of evidence on record. The conduct of the prosecutrix

PW 1 in not disclosing the incident either to her brothers or to her

parents when they returned to the village in "Akhadi" (June end)

is most unnatural. The evidence of the prosecutrix, is even

otherwise not confidence inspiring at all and is marred by too

many omissions which partake the character of contradictions

since the omissions touch significant and core aspects of the

incident. The prosecutrix has deposed that during the Summer of

2003 at 5.00 p.m. she was returning home from purchasing snuff.

The accused were standing at the gate of the school, accused 1

caught hold of her hand and tied her mouth with the help of

dupatta. The accused 2 caught hold of both the legs and she was

dragged inside the school and taken to Balwadi (kinder garden)

inside the school. The accused 1 undressed the prosecutrix,

accused 2 removed his own clothes and then ravished the

prosecutrix. The accused 2 was then holding both the legs of the

prosecutrix. The prosecutrix was then ravished by accused 2 and

both the accused threatened her that if the incident is disclosed to

her parents, she will be killed. The prosecutrix has deposed that

the accused persons stayed in the school while she was returned to

her house. She states that she did not disclose the incident to her

younger brothers. Her parents and sister Jyoti had gone to some

other village for earning livelihood. Her parents returned in June

2003. She did not disclose the incident to her parents. She

realized that she had conceived and was taken to the BGW

Hospital at Gondia. She then lodged the oral report. The

prosecutrix is physically handicapped and her right hand and leg

are affected by polio.

In the cross-examination, several omissions and

improvements are brought on record which are duly proved in the

cross examination of PW 5. The statement that her mouth was

tied by dupatta, is a proved omission. The statement that the

accused threatened that the prosecutrix will be murdered if the

incident is disclosed to her parents, is again an omission. She

admits that her father and the accused have a dispute as regards

sharing of the canal water. A suggestion is given to her that she

used to roam about in the village with Prakash Mhaske, Suresh

Muneshwar and Oma Shende, which is denied. The prosecutrix

states that she did not know the aforesaid persons.

6 The only other material witnesses are PW 2 the

mother of the prosecutrix and PW 3 the father of the prosecutrix.

PW 2 Sugandhabai states that the prosecutrix did not disclose to

her the incident although she suspected that the prosecutrix was

pregnant. According to PW 2 she was not aware of the

involvement of the accused till the prosecutrix lodged the report.

7 In the cross examination, it is extracted that PW 2 was

warned by Santosh Waghmare that her daughter - prosecutrix

goes roaming in the village in the evening and that PW 2 berated

the prosecutrix and asked her not to roam around. Several

suggestions are given to PW 2 to bring on record motive for false

implication which PW 2 has denied. The evidence of PW 3 does

not take the case of the prosecution any further since like PW 2 he

was absolutely unaware of the incident or the person responsible

for the pregnancy of the prosecutrix.

8 It is true that the prosecutrix is physically

handicapped since her right leg and hand are affected by polio.

However, except for a stray sentence in the evidence of her mother

PW 2, there is nothing on record to suggest that the mental

faculties of the prosecutrix are impaired or that she is not in a

position to understand the implication and consequences of her

actions. She appears to be well oriented and has given rational

answers in the evidence before the Court. The conviction is

predicated substantially, if not entirely, on the sole uncorroborated

testimony of the prosecutrix. It is true that the conviction can rest

on the sole uncorroborated testimony of the prosecutrix but then,

the caveat is that the testimony must inspire confidence and must

be implicitly reliable and trustworthy.

9 I have already observed that the conduct of the

prosecutrix is not natural. Her evidence is marred by too many

omissions, improvements and other embellishments. It would be

extremely hazardous to base the conviction on the sole

uncorroborated testimony of the prosecutrix.

10 The judgment and order impugned is set aside and the

accused are acquitted of offence punishable under section 376(2)

(g) of the IPC and under section 3(1)(xi) of Atrocities Atrocities

Act.

11 Bail bond of the accused shall stand discharged and fine

paid by the accused, if any, shall be refunded.

   12       The appeal is allowed.  



                                                                  JUDGE




RS Belkhede