Rohidas Shridhar Gaikwad vs The State Of Maharashtra
2021 Latest Caselaw 418 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO. 347 OF 2020
                             ALONG WITH
                  INTERIM APPLICATION NO. 311 OF 2020


Rohidas Shridhar Gaikwad                        ]
Age-27 Years, Occ. Service,                     ]
Residing at C/o. Milind Jadhav,                 ]
Ramabai Colony, Opp.Ration Shop,                ]
Ghatkopar (East), Mumbai                        ]
At present Nashik Road Jail                     ]        ... Appellant

      V/s.

The State of Maharashtra                        ]
At the instance of Matunga Police Station       ]        ... Respondent


Mr.Keshav Chavan for Appellant.
Mr.Amit Palkar, A.P.P. for Respondent-State.


                                      CORAM : A.S. GADKARI, J.
                                      DATE  : 8th January 2021.

JUDGMENT :

. The appellant, original accused No.2, has impugned the

Judgment and Order dated 5th November 2014 passed by the learned

Additional Sessions Judge, City Civil and Sessions Court, Mumbai in Sessions

Case No. 752 of 2013 thereby convicting him, under Section 323 of the Indian

Penal Code (for short, "I.P.C.") and is sentenced to suffer rigorous

imprisonment (for short, "R.I.") for 1 (One) year and to pay fine of

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Rs.1,000/-, in default of payment of fine to further suffer R.I. for 15 days;

under Section 376(D) of I.P.C. and is sentenced to suffer R.I. for 20 (Twenty)

years; under Section 377 of I.P.C. and is sentenced to suffer R.I. for 10 (Ten)

years and fine of Rs.5,000/-, in default of payment of fine to further suffer R.I.

for 3 months; under Section 120-B of I.P.C. and is sentenced to suffer R.I. for 1

(One) year; under Section 452 of I.P.C. and is sentenced to suffer R.I. for 7

(Seven) years and to pay fine of Rs.5,000/-, in default of payment of fine to

further suffer R.I. for 3 months; and under Section 506 of I.P.C. and is

sentenced to suffer R.I. for 1 (One) year and to pay fine of Rs.500/-, in default

of payment of fine to further suffer R.I. for one month. The Trial Court has

directed that all the substantive sentences of imprisonment of appellant to run

concurrently.

The said Judgment and Order dated 5 th November 2014 is

impugned herein.

2. Heard Mr.Chavan, learned counsel for the appellant and

Mr.Palkar, learned A.P.P. for the respondent-State. Perused entire record.

3. The prosecution case in brief is that, the victim in the present case

was a married woman and was staying with her husband in a hut near railway

track at Matunga Railway Station. There was no electricity connection in the

said hut. The victim and her husband used to cultivate vegetables near the

barren land at Matunga railway track. The prosecutrix was knowing accused

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No.3 Anup M. Jaiswal (Juvenile) and Siddhu @ Siddharth Sudhir Nikam

(Juvenile). That in the midnight of 15 th March 2013 both the said accused

persons entered in the house of prosecutrix along with 5 other persons, beat

her husband and threw him out of the hut. All the accused thereafter had

forcible sexual intercourse and unnatural sex with the prosecutrix. As per the

prosecutrix, the said incident of sexual assault was going on till about 1.15

a.m. of 16th March 2013. After accused persons left the scene of offence, the

prosecutrix went to Matunga railway station. As the husband of prosecutrix

was injured at the hands of the accused persons, he was taking rest near the

gate of R.P.F. police chowki. It is the further prosecution case that, the

prosecutrix saw accused Siddhu along with unknown person on the railway

track of Matunga soon after the incident and therefore, she alone went to

C.S.M.T. railway station and took rest in the night. In the morning, she came

and met her husband at Matunga railway station. She went to Matunga

railway police station to lodge crime, however she was referred to Dadar

railway police station. Her statement was recorded by the police at Dadar

railway police station and registered as Crime No.00/2013. It was then

referred to Matunga Police Station wherein Crime No.90 of 2013 against the

accused persons under Sections 323, 506, 376(2)(g), 377 and 120-B of I.P.C.

was lodged. The investigation of the said crime culminated into Sessions Case

No.752 of 2013.

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4. There were in all six accused persons in the said Sessions case. To

substantiate the charges framed against the appellant and other accused

persons, the prosecution examined in all 14 witnesses. The original accused

No.3 Anup M. Jaiswal was found to be a juvenile in conflict with law and

therefore, his case was separated. The Trial Court framed Charge below

Exhibit-10. The contents of the Charge were read-over and explained to the

appellant to which he pleaded not guilty and claimed to be tried. The defence

of the appellant was of total denial and false implication. The Trial Court after

recording evidence and hearing the learned Advocates for the respective

parties was pleased to convict appellant by its impugned Judgment and Order

dated 5th November 2014.

5. At the outset, it is to be noted here that, the original accused No.4

Shahid Sayyed Shaikh and original accused No.5 Imran Abdul Hamid Shaikh

had preferred Criminal Appeal No.904 of 2014 and original accused No.6

Ganesh Laxman Gurav had preferred Criminal Appeal No. 219 of 2015

respectively before this Court against the same impugned Judgment and

Order dated 5th November 2014.

The Co-Ordinate Bench (Smt.Sadhana S. Jadhav, J.) by its

Judgment and Order dated 18th March 2019 was pleased to allow the said

appeals by quashing and setting aside impugned Judgment and Order dated

5th November 2014 and the co-accused have been acquitted from all the

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charges levelled against them. The acquittal of the co-accused is

predominantly on three grounds. i.e. (i) The medical evidence does not

corroborate the version of the prosecutrix (PW-1), (ii) the Test Identification

Parade of the accused persons was conducted by PW-14 the Investigating

Officer initially in the police station and subsequently in Arthur Road Jail on

4th April 2013 by PW-8 and therefore, the Test Identification Parade loses its

sanctity and (iii) the evidence of prosecutrix does not inspire confidence of

any kind, as the medical evidence falsify her contention that she was sexually

assaulted by almost 8 persons.

6. Though, the prosecution has examined in all 14 witnesses in

support of its case, the evidence of prosecutrix (PW-1), Bhalchandra Saini

(PW-2) husband of prosecutrix, Dr.Baban Shinde (PW-10), who examined the

prosecutrix and Raghvendra Thakur (PW-14), the Investigating Officer of the

present case, is material and relevant to decide the present appeal. PW-10

has examined the prosecutrix immediately on the date of incident and

lodgment of crime, i.e. on 16th March 2013, when the prosecutrix was referred

to him by the police. He did not find injuries on her private part or breasts. He

noticed tenderness at the anal sphincture. He also noticed the private parts of

the prosecutrix as normal and no foreign body was found therein. The

prosecutrix in her examination-in-chief itself has admitted that, after 4 days of

the alleged incident, the accused were shown to her in Matunga Police

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Station. Record further indicates that, PW-14 showed accused persons to the

prosecutrix in the Police Station during the course of investigation.

7. The aforestated facts are fatal to the prosecution case. The

findings recorded by the Co-Ordinate Bench in its Judgment and Order dated

18th March 2019 are mutatis-mutandis applicable to the case of the appellant

before this Court. The appellant therefore deserves for benefit of doubt and

acquittal accordingly.

8. Hence following Order.

                                                   ORDER

                   (i)      Appeal is allowed.

The Judgment and Order passed by the Additional Sessions Judge, City Civil & Sessions Court, Greater Mumbai dated 5 th November 2014 in Sessions Case No. 752 of 2013 for the offences punishable under Section 323, 376(D), 377, 120-B, 452 and 506 of the Indian Penal Code is hereby quashed and set-aside.

(ii) Appellant is acquitted from all the charges leveled against him.

(iii) Appellant shall be released forthwith, if not required in any other case.

(iv) Fine amount, if any deposited, shall be refunded to the Appellant.

(v) In view of disposal of Appeal, nothing survives in the Interim Application No.311 of 2020 and is accordingly disposed off.

Digitally signed by Omkar S.

                                                                  [A.S. GADKARI, J.]
Omkar S.      Kumbhakarn
Kumbhakarn    Date:
              2021.01.18
              16:23:58 +0530