Sunil Raghunath Mhase vs The State Of Maharashtra
2021 Latest Caselaw 3039 Bom

                                                                  6. Cri. Appeal 401-1998.doc


         Digitally
         signed by
Neeta
S.
         Neeta S.
         Sawant            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         Date:
Sawant
                                    CRIMINAL APPELLATE JURISDICTION
         2021.02.20
         17:19:15
         +0530



                                       Criminal Appeal No. 401 / 1998

                      Sunil Raghunath Mhase
                      aged about 29 years,
                      R/at Varegaon, Taluka Karjat,
                      Dist. Raigad.                                      .. Appellant

                            Vs.
                      The State of Maharashtra                           .. Respondent


                                                      ****

Shri. K.K. Malpathak, Advocate for the Appellant. Smt. Sharmila Kaushik, APP for State/ Respondent.

****

CORAM : SANDEEP K. SHINDE J.

                                         DATE    : 16th FEBRUARY, 2021.



                      ORAL JUDGMENT. :-

1. Aggrieved by the conviction under Section 354 of the Indian

Penal Code, 1860 and sentence to sufer rigorous imprisonment

for one year and fne of Rs. 2000/- recorded by the learned

Sessions Judge, Thane vide judgment dated 23 rd February, 1998 in

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Sessions Case No. 519 / 1995, accused has preferred this appeal,

under Section 374 (2) of the Criminal Procedure Code, 1973.

2. Heard. Mr. Malpathak, learned Counsel for the appellant and

learned APP for State.

3. With their Assistance, I have perused the evidence and

relevant exhibits.

4. Prosecutions' case in brief is that, the father of the victim

was working in Kamgar Hospital and in Hospital Campus, fat/

residential quarter, was alloted to him on 4th foor of a building,

where he was living with wife and daughter. Complainant is

mother of the victim. In the evening of 28 th March, 1995,

complainant could not trace whereabout of her minor 3 ½ old

daughter and while searching her, she found daughter in the

company of the accused, on the terrace, above 4th foor in

objectionable state/ condition. After seeing daughter in such a

condition, complainant raised alarm, whereupon the two next door

neighbours of the complainant responded her cries and came on

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the terrace, spot of the incident. Complainant would say that

accused apologized for alleged acts and went to his room.

Complainant would assert that at the relevant time, her husband

was not at home and she did not report the incident immediately

to him, since the guests were expected in the same evening.

Thereafter parents of victim sought advice of Dr. Kadam, a

residential medical ofcer attached to the Hospital. Advice of Dr.

Kadam was sought on 29th March, 1995 at about 03:30 pm. The FIR

was lodged vide Crime No. 68/1995 under Section 354 of the

Indian Penal Code, 1860, on 30th March, 1995.

5. After completing the investigation, the fnal report was fled

whereupon the learned Sessions Judge framed a charge under

Section 376 (2) (f) r/w 511 of the IPC.

6. In support of the charge, prosecution had examined mother

of victim as PW-1; neighbour Sushma Kamble PW-2; Sudha Kadam-

PW-3, Doctor Kadam PW-4; father of victim PW-5 and Investigating

Ofcer PW-6. Upon appreciating the evidence the learned trial

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Court acquitted the accused of the ofence punishable under

Section 376 (2) (f) read with 511 of IPC, but convicted for the

commission of ofence punishable under Section 354 of IPC. The

trial Court to great extent relied on the evidence of victim's

mother, which was found consistent and reliable.

7. Before adverting to the submissions of the appellant and the

State, let me state undisputed facts, discerned from the evidence;

(i) Complainant did not disclose the incident immediately to

husband, since guests were expected on the same day;

(ii) Sushma Kamble (PW-2) next door neighbour, turned hostile

to the prosecution;

(iii) The accused and his friends were unauthorisably occupying a

room on 4th foor and as such the accused was next door neighbour

of the complainant;

(iv) Two witnesses PW-2 and PW-3 were also occupying room on

4th foor;

(v) Though the building was occupied by 40 tenants, prosecution

chose to examine next door neighbours of the complainant i.e.

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PW-2 and PW-3;

(vi) That soon after the registration of the subject crime, the

accused and his friends vacated the room which they were

occupying on 4th foor of the building;

(vii) The occupants of the building in the hospital campus have

formed a grievance committee to resolve the problems of the

tenants and PW-4 Dr. Kadam was one of the members of the

committee.

8. In the back drop of the aforesaid facts, the defense of the

accused is, that since he was not vacating the room on 4th foor, the

occupants of tenements, on 4th foor conspired and hatched a

conspiracy and resultantly fastened false case against him.

9. Keeping in mind, the defense and the undisputed facts

unfolded in the evidence, narrated above, I will appreciate the

evidence of witnesses.

10. So far as the evidence of mother of victim is concerned; it

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may be stated that this witness attempted and made all possible

eforts to improve her testimony by suggesting that accused

objectionable acts were not limited to outrage her modesty, but

would claim that accused had exposed his private part, when the

victim's under-pant was pull down to her knees. However, the fact

suggesting aggravated sexual assault was not stated to the police.

In cross-examination, she admitted that accused and his friends

were proving to be a nuisance to neighbouring occupiers. She

would admit that after lodging the FIR, the accused and his friends

vacated the premises and would also admit that contents of the

complaint (FIR) were dictated by her husband to police.

Admittedly, complaint was lodged two days, after consulting Dr.

Kadam. His testimony as PW-4 suggests that prosecution has not

placed correct facts and / or the fair investigation has not been

carried out. Herein, victim's father reported the incident to Dr.

Kadam on 29th March, 1995 and thereafter FIR was lodged. Dr.

Kadam's evidence suggests that victim's father had submitted a

written complaint to the grievance committee and in the cross-

examination, he was suggested that he had advised and asked

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victim's father to secure vacant possession of the room, which was

occupied by the accused. This suggestion was refuted by Dr.

Kadam. However Investigating Ofcer testifed that Dr. Kadam

stated in his statement that he had advised the complainant to

secure the vacant possession of room occupied by the accused.

To be precise, Investigating Ofcer testifed, thus "It is true that in

the statement of Dr. Kadam he has stated that he had advised the

complainant to get the room of accused vacated."

. As such evidence of Dr. Kadam and of victim's father clearly

suggest dispute was pending in respect of 'room' occupied by the

accused when FIR was lodged and also suggests Dr. Kadam had

asked victim's father to secure vacant possession of the room

occupied by the accused. Therefore, it is to be held the

prosecutions' evidence probablised the accused defense and

creates a doubt and renders prosecutions' case uncertain.

11. Thus, conjoint reading of evidence of Dr. Kadam and Victim's

parents defense of the accused that he has been falsely implicated

in the case, so as to compel him to vacate room, stands

probablised.

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12. Now, let me look at the attendant circumstances, which in my

view, renders the case of prosecution questionable. The frst

circumstance is that there is no acceptable explanation for the

delay in lodging the complaint. Admittedly, Dr.Kadam was not

residing in the building, where the incident had taken place. As

such, aggrieved parents, would frst consult Dr. Kadam and fle

report on 3rd day of the incident is far-fetched and was unlikely. As

a natural conduct, parents of victim were expected to take help of

residents of the building, who were 40 in number. But instead

approaching them, parents had approached Dr.Kadam, on the

second day of incident and only thereafter the FIR was lodged on

30th March, 1995. The two witnesses i.e. PW-2 and PW-3 were

immediate neighbours of the victim, who admitted that the

accused and his friends were causing nuisance to them. Infact, PW-

2 immediate neighbour of the victim did not support the

prosecution case & said she had not gone to terrace after hearing

commotion. This witness would however admit that the accused &

his friends were causing nuisance to entire building and the

residents amongst themselves had decided a drive them out. She

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would further say that she came to know the incident after crime

was registered. It is also interesting to note that the prosecution

had neither examined nor recorded statement of any residents of

the said building, as a witnesses. If such a ghastly and frightful

incident had taken place, the residents would not have chosen to

remain silent, but would have retaliated and reacted immediately

against the accused and his inmates. Surprisingly, though a

building was occupied by the 40 tenants, none of them had taken

any steps as against the accused and his inmates though 3 ½ old

year girl was sexually assaulted in the building premises.

13. Thus, the conduct of eye-witness is inconsistent with

ordinary course of human nature, and since there are inherent

improbabilities in the prosecution story. I do not think, it would be

safe to convict the appellant on testimony of victim's mother. In

the case of Selvaraj Vs. State of Tamil Nadu (1976) 4 SCC 343, the

hon'ble Apex Court held that; On an appreciation of evidence if the

prosecution story was found highly improbable and inconsistent of

ordinary course of human nature, fnding of guilt cannot be

upheld.

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14. On the facts of the present case it can be said without

hesitation that prosecution has miserably failed to prove the

alleged ofences beyond doubt by adducing cogent and

trustworthy evidence and therefore a beneft of doubt must be

given and extended to the appellant. In the circumstances, the

impugned conviction and the sentence passed by the trial Court in

Sessions Case No. 519/1995 is quashed and set aside.

15. Resultantly, appeal is allowed. The bail bond executed is

cancelled and the surety is discharged.

16. Appeal is disposed of in the aforesaid terms.

                                   (SANDEEP K. SHINDE, J.)




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