Bombay High Court
The High Court On Its Own Motion vs Anil Vishnu Patil on 17 August, 2021
Bench: Prasanna B. Varale, N. R. Borkar
j-cri-appeal-372-98.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 372 OF 1998
1. Anil Vishnu Patil (Abated)
Adult, Hindu, Age-26 yrs.
Occ. Agriculturists
R/o. Chikhali, Tal. Mohol
Dist. Solapur.
2. Vilas Namdeo Mate
Age-44, R/o. Chikhali.
Tal. Mohol, Dist. Solapur ... Appellants
V/s.
1. The State of Maharashtra
through Mohol Police Station
2. Chababai Dadarao Chaudhari
Age-35 yrs, R/o. Wadachiwadi
Tal. Mohol, Dist. Solapur ... Respondents
WITH
CRIMINAL SUO-MOTO APPLICATION NO.2 OF 1998
The High Court on its Own Motion ... Applicant
V/s.
1. Anil V. Patil (Abated)
2. Vilas Namdeo Mate
3. State of Maharashtra ... Respondents.
(Respondent Nos.1 & 2
/Org.Accused Nos. 1 & 2)
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Mr. V.M. Throat for the Appellant No.2 - Vilas Mate.
Mrs. Geeta P. Mulekar, APP for the Respondent -State.
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CORAM : PRASANNA B. VARALE &
N.R. BORKAR, JJ.
DATE : 17.8.2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal takes an exception to the judgment and
order dated 26.2.1998 passed by the learned II nd Additional
Sessions Judge, Solapur in Sessions Case No. 239 of 1997. By
the impugned judgment and order, the appellants, who were
the accused Nos.1 and 2 respectively before the trial court,
have been convicted for the ofence punishable under section
376(G) of the Indian Penal Code, 1860 (for short "IPC") and
sentenced to sufer Rigorous Imprisonment for a period of fve
years and to pay fne of Rs.3,000/- each, in default, to sufer
Rigorous Imprisonment for six months.
2] Appellant No.1 / accused No.1 died during the pendency
of the appeal.
3] We have heard the learned counsel for the appellant
No.2/accused No.2 and the learned APP for the respondent -
State.
4] The prosecurtirx was residing at village Wadachiwadi,
Tal. Mohol, Dist. Solapur. The incident took place on
22.7.1997. According to the prosecutrix, on the date of
incident, at about 2.00 p.m., she had gone to village Chikhali
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to ofer Naivedya to Goddess Mariai-Laxmi. After ofering
Naivedya, she came to Chikhali Phata and was waiting for the
Bus to return to her village. At that time, the accused No.1
came there and told her that her nephew is sitting at his
Dhaba and he called her there. She, therefore, accompanied
accused No.1 to his Dhaba.
5] According to the prosecutrix, when she reached there at
the Dhaba of accused No.1, accused No.2 was sitting there
and her nephew was not there. According to her, the accused
No.1 forcibly took her in one room and closed the door from
inside. She tried to open the door, however, accused No.1
locked the door from inside. According to the prosecutrix, the
accused No.1 then made her to lie down on the foor and
thrice committed rape on her. According to her, then accused
No.2 came inside the room. Accused No.2 also made her to lie
down and thrice committed rape on her. The accused then
allowed her to go home and threatened her of dire
consequences, if she dares to disclose about the incident to
anybody else.
6] In the cross-examination conducted on behalf of the
accused, the prosecutrix has admitted that she had gone to
Mohol police station, one year prior to the present incident, in
order to fle a complaint against one person as he tried to
outrage her modesty. She has admitted that she was not
knowing the name of accused No.1 prior to the incident and
she was not acquainted with him. She has further admitted
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that when she went to the Mohol police station on the next
day of incident in order to lodge a compliant, Dy. Sarpanch
Arun Yadav of village Chikhali was present there and he told
the name of the accused No.1 to the police.
7] The prosecutrix has further admitted that in the report
at Exhibit-22, she has not mentioned the name of accused
No2. She has admitted that the surface of foor of room was
rough. She has further admitted that on the date of incident,
she reached home at about 6.00 p.m. and on that day, she
did not try to inform about the incident either to Police Patil or
to Sarpanch of the village.
8] Admittedly, after lodging the report, the prosecutrix was
referred for medical examination.
9] PW-5 Dr. Mariamma Paul, the doctor who examined the
prosecutrix, has stated in her evidence that on 23.7.1997, she
was attached to Civil Hospital, Solapur. On that day, she
examined the prosecutrix. She found that the general
condition of prosecutrix was good and there were no external
injuries. On local examination, she found that there was
bleeding, i.e., to perinium. The hymen was torn (old tear). On
internal examination, she found that that there was bleeding
and injury of 1 cm on the posterior fornix. According to her,
the bleeding was on account of forceful intercourse. According
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to her, the prosecutrix might have been subjected to sexual
intercourse.
10] In the cross-examination conducted on behalf of the
accused, PW-5 has admitted that since there was injury on
the posterior fornex, she said that the prosecutrix might have
been subjected to sexual intercourse. After examining the
prosecutrix, she reserved her opinion. She has further
admitted that the bleeding and injury can be caused due to
other reasons also.
11] The frst information report lodged by the prosecutrix
on 23.7.1997 is at Exhibit-22. We have perused the frst
information report at Exhibit-22. As regards accused No.2, the
prosecutrix in her report at Exhibit-22 has stated that when
she reached at Dhaba, one person aged about 50 years
wearing Dhoti, Shirt and Cap was sitting there. The
prosecutrix has admitted that she had not mentioned the
name of accused No.2 in her complaint at Exhibit-22. It is thus
apparent that accused No.2 was not known to the prosecutrix.
PW-6 API Ramchandra Mane, the investigating ofcer, has
admitted in his cross-examination that he did not conduct any
test identifcation parade in respect of accused No.2. Though
he has stated that the letter was issued to Tahsildar, Mohol for
conducting test identifcation parade, however, he has not
placed that letter on record. The fact remains that accused
No.2 was unknown to the prosecutrix on the date of incident
and no test identifcation parade is held.
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12] The Hon'ble Supreme Court in the matter of Kanan
and ors. vs. State of Kerala - (1979) 3 SCC 319 has
observed:
"........We feel that the High Court erred in law in taking
this view. It is well settled that where a witness identifes
an accused who is not known to him in the Court for the
frst time, his evidence is absolutely valueless unless
there has been a previous T. I. parade to test his powers
of observations. The idea of holding T. I. parade under
Section 9 of the Evidence Act is to test the veracity of
the witness on the question of his capability to identify
an unknown person whom the witness may have seen
only once. If no T. I. parade is held then it will be wholly
unsafe to rely on his bare testimony regarding the
identifcation of an accused for the frst time in Court. In
these circumstances, therefore, we feel that it was
incumbent on the prosecution in this case to have
arranged T. I. parade and got the identifcation made
before the witness was called upon to identify the
appellant in the court......"
In view of the above, no reliance can be placed on the
identifcation of accused No.2 by the prosecutrix for the frst
time in the court. Nor her evidence in that respect can be
relied upon to connect accused No.2 with the alleged crime.
13] Apart from above, according to the prosecutrix she was
made to lie down on the foor and was raped for six times.
The prosecutrix has admitted that the surface of foor was
rough. PW-5 has admitted that there were no external injuries
on the person of the prosecutrix. It is unlikely that in the
incident as alleged by the prosecutrix, she would not sustain
any external injuries. According to prosecutrix, she resisted
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the alleged act. However, medical examination report of
accused No.2 dated 28.7.1997 at Exhibit-19 does not reveal
any injury to him.
14] Considering the overall facts and circumstances, the
trial court was not justifed in convicting the appellant
No.2/accused No.2 for the ofence punishable under section
376(G) of the IPC.
15] This court while admitting the present appeal has found
that the punishment imposed by the trial court was less than
the minimum punishment prescribed for the ofence
punishable under section 376(G) of the IPC and therefore,
notice was issued to the appellants/accused to show cause as
to why their punishment should not be enhanced.
Accordingly, Criminal Suo-moto Application No.2 of 1998 was
registered. As we have allowed the appeal fled by the
accused No.2, noting survives in the Criminal Suo-moto
Application No.2 of 1998. In the result, the following order is
passed.
ORDER
i] Criminal Appeal is allowed.
ii] The conviction of appellant No.2/accused No.2
Vilas Namdeo Mate for the ofence punishable under
section 376(G) of the IPC vide judgment and order dated
26.2.1998 passed by the learned II nd Additional Sessions
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Judge, Solapur in Sessions Case No. 239 of 1997 is
quashed and set aside.
iii] The appellant No.2/accused No.2 is acquitted of
the ofence punishable under section 376(G) of the IPC.
iv) Fine amount, if any paid by appellant No.2/accused
No.2, be refunded to him.
v) His bail bond stands cancelled.
vi) Criminal Appeal stands disposed of accordingly.
vii) Criminal Suo-Moto Application No. 2 of 1998 does
not survive and the same is also disposed of.
(N.R. BORKAR, J.) (PRASANNA B. VARALE, J.)
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