Mr. Binoy Badal Datta (In Jail) vs State Of Maharashtra Through ...
2021 Latest Caselaw 1432 Bom

  A 472.2015(J) .odt
                                             1/8


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

                       CRIMINAL APPEAL NO. 472 OF 2015


           Mr. Binoy Badal Datta
           Aged about 26 years, Occ:
           Nill, R/o Vishwanathnagar,
           Post. Koparali, Tah. Mulchera,
           Dist. Gadchiroli.                           .... APPELLANT

                   Versus

           The State of Maharashtra,
           Through Police Station Officer,
           Gadchiroli,
           Tah. & Dist. - Gadchiroli                   .... RESPONDENT



  Shri R.H. Rawlani, Advocate for the appellant.
  Shri H.D. Dubey, APP for the respondent - State.
  ________________________________________________________________

                                 CORAM : PUSHPA V. GANEDIWALA, J.

JANUARY 21, 2021.

ORAL JUDGMENT :

Heard Shri R.H. Rawlani, learned counsel for the

appellant and Shri H.D. Dubey, learned Assistant Public Prosecutor

for the respondent - State.

2. This appeal is directed against the judgment and order

dated 14/12/2015 passed by the Additional Sessions Judge and

Special Judge, Gadchiroli in Sessions Case No. 30/2015, whereby

A 472.2015(J) .odt

the appellant/accused is convicted for the offence punishable under

Sections 376 and 323 of the Indian Penal Code, 1860 (for short

"IPC").

For the offence punishable under Section 376 of the

IPC, the appellant/accused is sentenced to suffer rigorous

imprisonment for 7 years and to pay fine of Rs. 5,000/- (rupees five

thousand), in default, to suffer rigorous imprisonment for six

months.

For the offence punishable under Section 323 of the

IPC, the appellant/accused is sentenced to suffer rigorous

imprisonment for three months and to pay fine of Rs. 5,00/- (rupees

five hundred), in default, to suffer rigorous imprisonment for two

weeks.

3. The prosecution case, in brief, is as under :

i. The date of incident is 03.02.2014. The prosecutrix is a

married lady, aged around 21 years at the relevant time. The

appellant/accused was the friend of husband of the prosecutrix. He

had been to the house of prosecutrix for his competitive exams. He

was residing in Vishwanathnagar, which is at a distance of around

seven kilometers from the house of the prosecutrix.

A 472.2015(J) .odt

ii. It is the case of the prosecution that on 03.02.2014,

when the husband of the prosecutrix had gone out of the house for

some work, and while the prosecutrix was busy in cooking, the

appellant/accused bolted the door of kitchen from inside and came

into the kitchen, hold her hands from behind, made her lie down on

the cot that was lying in the kitchen, pressed her mouth, removed

her clothes and committed forcible sexual intercourse with her.

Somehow, she rescued and came at the door, and in the mean time,

her husband reached to the house, to whom she explained about the

incident. On the next day morning, her husband reached the

appellant/accused to his place.

iii. The report of the incident came to be lodged on

09.02.2014. Initially, the offence punishable under Sections 354,

323 and 504 of the IPC was registered against the

appellant/accused, and on the basis of the supplementary statement

of the prosecutrix, which was recorded on 10.02.2014, the offence

punishable under Section 376 of the IPC was added.

iv. After investigation, police filed charge-sheet before the

Court of Magistrate, who in turn, committed the case to the Sessions

Court. The Sessions Court framed charge against the

A 472.2015(J) .odt

appellant/accused for the offence punishable under Sections 376

and 323 of the IPC. The charge was read over and explained to the

appellant/accused in his vernacular, to which he pleaded not guilty,

and claimed to be tried.

v. In order to substantiate the charge against the

appellant/accused, the prosecution examined in all four witnesses.

The prosecutrix (PW1), Kailash (PW-2), Sahadeo - husband of the

prosecutrix (PW3) and Vishakha - Investigating Officer (PW4).

vi. The trial Court recorded the statement of the appellant/

accused under Section 313 of the Code the Criminal Procedure,

1973. His defence is of total denial. He states that the husband of

the prosecutrix was suspecting that he misbehave with the victim

and at the instant of her husband, she lodged the report.

vii. The trial Court found the appellant/accused guilty of

the charge framed against him and passed the judgment of

conviction. This judgment is impugned in this Criminal Appeal.

4. I have heard Shri Rawlani, learned counsel for the

appellant/accused and Shri Dubey, learned Assistant Public

Prosecutor for the respondent - State. I have also perused the

A 472.2015(J) .odt

record of the trial Court with the assistance of learned both the

counsel.

5. At the outset, the evidence of the prosecutrix is only

material on the point of incident. In her report, she alleged the

incident with regard to outraging her modesty by the

appellant/accused. However, in the evidence before the Court, she

has deposed about the incident of rape. She has not given any

explanation as to why the earlier report about incident of rape was

not given to the police. However, the same could not be proved

through the Investigating Officer, as the Investigating Officer, who

had taken her report on 09.02.2014, was not examined by the

prosecution and for non-examination of the Investigating Officer by

the prosecution, proved fatal to the case of the appellant/accused.

Serious prejudice is caused to the appellant/accused, as in the First

Information Report, the prosecutrix does not state about the

incident of rape, and on the next date, without any possible

explanation, she gave her supplementary statement and brought the

story of rape.

6. Furthermore, the other facts on record, which could be

pointed out by the learned defence counsel for not believing the

story of prosecution are that i) in the night of the alleged incident,

A 472.2015(J) .odt

the appellant/accused stayed over night in the house of the

prosecutrix, and the next morning, the husband reached to his place

ii) there was a delay of six days in lodging the First Information

Report iii) it has come on record that on 07.02.2014, the prosecutrix

and her husband were in the house of the appellant/accused at

Vishwanathnagar and there was scuffle between the

appellant/accused and her husband and therefore, the possibility

that Section 376 of the IPC might have been added, considering the

scuffle between the husband of the prosecutrix and the

appellant/accused, cannot be ruled out.

7. Apart from this, there are lots of omissions, which could

be brought on record by the learned defence counsel from the

testimony of the husband of the prosecutrix Sahadeo (PW3).

8. The appellant/accused have been convicted under

Section 376 of the IPC, and has been sentenced for rigorous

imprisonment of seven years. For conviction for the offence of rape,

sole testimony of the prosecutrix is sufficient, however, subject to

the riders that her testimony must be cogent, consistent,

trustworthy and of sterling quality.

A 472.2015(J) .odt

9. In the instant case, considering the major omission with

regard to the incident of rape, and considering the other doubtful

circumstances, as discussed above, in the opinion of this Court, the

prosecutrix is not the full proof witness and cannot be relied solely

for fixing criminal liability of rape upon the appellant/accused. This

Court found substance in the probable defence with regard to

consensual relations between the duo. Apart from the sole

testimony of the prosecutrix, there is no other corroborating

evidence to believe her story.

10. In such circumstances, this Court is of the opinion that

the appellant/accused is entitled to have benefit of doubt. Hence,

the following order :

ORDER.

  i.                The Criminal Appeal is allowed.

  ii.               The judgment and order dated 14/12/2015 passed by

the Additional Sessions Judge and Special Judge, Gadchiroli in

Sessions Case No. 30/2015, is quashed and set aside. The appellant

stands acquitted of the offence punishable under Sections 376 and

323 of the IPC.

A 472.2015(J) .odt

iii. The bail bonds of the appellant stands cancelled and

sureties stand discharged.

JUDGE

C.L.Dhakate