Bombay High Court
The State Of Maharashtra vs Dhondiba Sonu Mandhare on 9 February, 2021
Bench: S.S. Jadhav, N. R. Borkar
apeal.984.2006.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 984 OF 2006
The State of Maharashtra } Appellant
Versus
Dhondiba Sonu Mandhare } Respondent
Aged 42 years, Occ.: Labour, }
R/o. Slum Area, Mahabaleshwar, }
Dist-Satara. }
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Ms. P.P. Shinde-APP for the Appellant/State.
Ms. Saili Dhuru, Court Appointed for Respondent.
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CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 14TH JANUARY 2021.
PRONOUNCED ON : 9TH FEBRUARY 2021.
JUDGMENT :- (PER SADHANA S. JADHAV, J.)
1. The State of Maharashtra takes exception to the Judgment
and Order dated 31st August 2004 passed by the II Adhoc Assistant
Sessions Judge, Satara, in Sessions Case No. 65 of 2003, by which the
respondent is acquitted of the offence punishable under Sections
376(1), 376(2) (e), 323 and 506 of Indian Penal Code.
2. The case of the prosecution in a nutshell is as follows:-
a) The victim Ms.'X' is the daughter of PW.4-Vijaya
Sapkal begotten from her first husband Sadu Dhanawale.
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PW.4 is the mother of three daughters. She performed
second marriage with Dattaram Sapkal. The respondent
herein was looking after Ms. 'X'. Her eldest daughter was
residing with her brother and the second daughter was
residing with the present respondent who happened to
be her relative. He was maintaining her as a daughter.
b) On 20th January 2003, PW.4 -Vijaya Sapkal
lodged a report at the police station alleging therein that
on 19th January 2003 she had visited the house of the
respondent to meet her daughter. Upon seeing her the
victim started crying. PW.4 enquired with her and at that
time her daughter divulged to her that the respondent
herein, in the absence of his wife and children ravished
her and that she has conceived pregnancy. He had
threatened her of dire consequences, in the eventuality,
she had disclosed about it to anybody and therefore, she
had to maintain silence. On the basis of her report, Crime
No. 1/2003 was registered at Mahabaleshwar Police
Station for the offence punishable under section 376(1),
376(2)(e), 323 and 506 of Indian Penal Code.
3. The prosecution has examined as many as 8 witnesses to
bring home the guilt of the accused. The case rests on the evidence of
the first informant P.W.4-the mother of the victim, PW.3-the victim and
PW.6-Suman Ranjane, who happens to be the president of slum area
and the neighbour of the said respondent.
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4. PW.3 is the victim. According to her she was residing in the
house of the respondent along with his wife and two children of the
respondent. She has alleged that the respondent was going for work in
the morning time only for half an hour and thereafter remained at
home. That during the day in the absence of his wife and children he
used to misbehave with her, assault her, molest her and then ravish her.
That, PW.6 Ranjana was residing as their neighbour. She delivered a
male child in an institution at Pune and she had abandoned the child
in the said institution. According to her, when the respondent had
realised that she was pregnant he had taken her to the house of his
elder sister at village Masar. Her mother was informed by the sister of
the respondent. She has admitted before the Court that her maternal
uncle resides at a walking distance from the house of the respondent.
She was residing with the respondent ever since she was 3 years old.
Since, the respondent had no daughter of his own he was maintaining
her as a daughter. She was carrying on all domestic chores in the house
of the respondent and she was also selling flowers. She used to meet
her biological father quite often. She was residing in the institution at
Pune since she was four months pregnant but she never visited her
mother or sisters house.
5. PW.3 has admitted in the cross-examination that upon
enquiry, by Tulsabai she had disclosed to her that she had conceived
pregnancy from Nitin Sable but she had denied the suggestion that
Nitin Sable maintained sexual relations with her.
6. The victim had further admitted that the cousin brother of
the wife of Dhondiba i.e. Nitin Sable used to visit the house of the
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respondent quite often in the afternoon. She used to be alone at home
in the afternoon. Nitin Sable who was working in a Hotel at
Mahabaleshwar had left the job after 3-4 months after she had
conceived pregnancy and that the respondent was treating her as a
daughter till she attained the age of 15 years. She has admitted in the
cross-examination that she had made no complaints to her father
against the respondent.
7. Vijaya Sapkal, PW.4 the mother of the victim has deposed
before the Court that on 19th January 2003 before lodging the FIR she
stayed in the house of PW.6 along with her daughter. She has admitted
that she had not met her daughter for almost one year prior to lodging
the FIR since her husband was in regular contact with her daughter
and informed her about the welfare of her daughter. It is admitted that
Tulsabai, the wife of the respondent is her maternal cousin.
8. The evidence of PW.7-Laxman Narwade who was working
as the Head Master in Primary School, Mahabaleshwar. It is established
that the victim was 15 years old at that time of incident. PW.7 has
placed on record the School Leaving certificate of the victim which
indicates, the date of birth of the victim as 28/06/1987. The said
certificate is at 'Exhibit-27'.
9. It is admitted in the cross-examination that Tulsabai had
been to her house along with victim, when the victim was pregnant.
Tulsabai had also disclosed to her that the victim had disclosed to her
that she had conceived pregnancy from Nitin Sable. According to her,
she had returned to Mahabaleshwar with wife of Dhondiba and victim
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and had directly met PW.6. PW.4 has also admitted that the victim had
not levelled any allegations against the present respondent.
10. PW. 4 is declared hostile.
11. PW.6-Suman Ranjane, was the president of slum area in
Mahabaleshwar. According to her, the respondent was an alcoholic. His
wife used to go for work during day time and in the absence of his wife
he used to ravish the victim who had actually seeing the respondent
assaulting the victim just 15 days prior to the incident. The tenor of her
cross-examination would show that PW.6 had some grudge against the
respondent as he was working as a sweeper in the GramPanchyat
Office for hardly half an hour in the morning. That, the FIR was lodged
by PW.4 after due deliberation with PW.6 and that PW.6 had instigated
her to lodge report against the respondent.
12. PW.8-the investigating officer, Sampatrao Jagdale has
proved the omissions and contradictions in the evidence of the
witnesses.
13. It is well settled that if two views are possible, in the facts
of the case the Court would take a possible view in favour of the
accused. In the present case there is a clear admission by the victim
that initially she had disclosed to all concerned that she had conceived
pregnancy from Nitin Sable. She had also delivered the child and he
was in the custody of an institution, hence in the absence of D.N.A test
it cannot be positively held that the respondent had ravished PW.3-the
victim. P.W.4-the mother of the victim has also corroborated the same
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and even according to her, Tulsabai had disclosed that the victim has
allegedly conceived pregnancy from Nitin Sable.
14 In the case of Harijana Thirupala And Ors. Vs. Public
Prosecutor, High Court reported in AIR 2002 SC 2821, the Hon'ble
Apex Court has held as follows:-
"11......Further if two views are possible on the evidence produced in the
case, one indicating to the guilt of the accused and the other to his
innocence, the view favourable to the accused is to be accepted. In cases
where the court entertains reasonable doubt regarding the guilt of the
accused the benefit of such doubt should go in favour of the accused.
In other words, the impact of evidence in totality on the prosecution case or
innocence of accused has to be kept in mind in coming the conclusion as to
the guilt or otherwise of the accused. In reaching a conclusion about the
guilt of the accused, the court has to appreciate, analyse and assess the
evidence placed before it by the yardstick of probabilities, its intrinsic value
and the animus of witnesses........".
14. The prosecution has not conducted the D.N.A report in
order to verify the paternity of the child and therefore the learned
Sessions Judge, has rightly observed that the evidence of the victim
does not inspire the confidence of the Court and moreover, the
complainant i.e. the mother of the victim had been declared hostile.
The learned Sessions Court has assigned justifiable reasons for
acquitting the accused. The judgment of the Sessions Court calls for no
interference.
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15. In view of the above discussions and observations, the
appeal stands dismissed.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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