Bombay High Court
Shamrao Motiram Atram (In Jail) vs State Of Mah., Thr. P.S.O. Ps ... on 12 January, 2021
Bench: Pushpa V. Ganediwala
9apeal 84.2020 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 84 OF 2020
Shamrao Motiram Atram,
aged about 26 years, Occ. Labourer,
R/o Hindewada, Tah. Bhamragad,
District Gadchiroli.
...APPELLANT
Versus
State of Maharashtra,
through PSO, Police Station Laheri,
District Gadchiroli.
...RESPONDENT
Shri A.C. Jaltare, Advocate for the appellant.
Shri M.J. Khan, A.P.P. for the respondent.
.....
CORAM : PUSHPA V. GANEDIWALA, J.
DATED : JANUARY 12, 2021.
ORAL JUDGMENT :
Heard.
2. This appeal is directed against the judgment and
order dated 05/12/2019 passed by the Sessions Judge,
Gadchiroli in Sessions Case No.5/2019, whereby the appellant
is convicted for the offence punishable under Section 376(1) of
the Indian Penal Code, 1860 (for short "IPC"), and is sentenced
to suffer rigorous imprisonment for seven years and to pay fine
of Rs.3,000/- (rupees three thousand), in default, to suffer
further rigorous imprisonment for three months.
He is further convicted for the offence punishable
under Section 456 of the IPC, and is sentenced to suffer
rigorous imprisonment for three years and to pay fine of
Rs.1,000/- (rupees one thousand), in default, to suffer further
rigorous imprisonment for two months.
Both the aforesaid sentences were directed to run
concurrently.
3. The case of the prosecution, in nutshell, is as
under :
i. On the day of incident, the prosecutrix was residing
in her father's house. On 20/01/2018, at about 9.30 pm, when
her father went to sleep outside, the appellant trespassed in her
house, and committed rape on her. Immediately, she informed
her father about the incident, and thereafter, the matter was
reported to the Police Station. On that basis, the First
Information Report No.1/2018 came to be registered against the
applicant for the offence punishable under Sections 376(1) and
456 of the IPC. The police started investigation. Spot
panchanama was prepeared. The clothes of the prosecutrix,
which she was wearing at the time of incident, were sent for
Chemical Analyser's report. After investigation, the chargesheet
came to be filed. The Court of Magistrate, in its turn, committed
the case to the Sessions Court. The Sessions Court, Gadchiroli,
framed charge against the accused and examined witnesses as
adduced by the parties. The prosecution examined in all seven
witnesses including the prosecutrix, police witnesses and panch
witnesses. The prosecution also brought on record certain
documents to substantiate their case.
ii. The statement of the appellant under Section 313 of
the Code of Criminal Procedure was recorded, and after hearing
both the sides, the Sessions Court found that the charge against
the accused have been proved by the prosecution and hence,
passed the judgment of conviction. This judgment is impugned
in this appeal.
4. I have heard Shri Jaltare, learned counsel for the
appellant, and Shri Khan, learned A.P.P. for the State. I have also
examined deposition of witnesses and the documents annexed,
with the assistance of learned both the counsel.
5. At the outset, the evidence of the prosecutrix only is
material on the point of rape. The relevant portion of her
evidence is reproduced below :
"XXXX When I was sleeping, accused came and touched
me. On being touched, I enquired as to who it is. On
asking, he immediately pressed my mouth. On asking
who it is, he said, he is Shamrao. On pressing my
mouth, the accused lifted my Sari. He removed my
knicker down and he raped me. The accused was about
to commit physical intercourse, in the mean time I
pushed him by leg and called my father and my father
came. Whether accused removed the clothes, I did not
see. Whether semen had fallen, I had not seen. After
calling my father, accused fled away. XXXX"
6. In her cross-examination, she has admitted that at
the time of incident, there was no supply of electricity in her
house. She could not see the accused. She has taken the name
of the accused, as he informed her at the relevant time that "he
is Shamrao".
7. With regard to forcible sexual intercourse, the
prosecutrix, in her above reproduced part of evidence, at one
place, deposed that the accused had raped her and immediately
thereafter, she says that when he was about to commit physical
intercourse, she pushed him by legs and called her father. On
the point of actual intercourse, she is not clear and confirm.
8. In her examination-in-chief, she further states that
she does not know whether the accused removed the clothes
and whether semen had fallen.
9. Shri Khan, learned A.P.P., submits that the testimony
of the prosecutrix is further corroborated with the positive CA
report.
10. A perusal of the CA report shows that the clothes of
the prosecutrix were seized after four days of the incident.
Undisputedly, the prosecutrix is a married lady, and after the
alleged incident, her husband had also visited her father's house
and they all three went to lodge the report. So, there is no
conclusive evidence that semen, found on the clothes of the
prosecutrix, was of the accused or of her husband.
11. Careful examination of the relevant portion of the
deposition of the prosecutrix does not inspire confidence of this
Court for the alleged incident. It is a kind of distorted version of
the incident. The other witnesses are formal in nature, they
being carriers of muddemal and panch witnesses.
12. In view of the above discussion, in the opinion of
this Court, the prosecution has miserably failed to prove its case
beyond reasonable doubt. Hence, the following order :
ORDER.
i) The Criminal Appeal is allowed.
ii) The judgment and order dated 05/12/2019 passed
by the Sessions Judge, Gadchiroli in Sessions Case No.5/2019 is
quashed and set-aside. The appellant is acquitted of the offence
punishable under Sections 376(1) and 456 of the IPC. He be
released forthwith, if not required in any other case.
CRIMINAL APPLICATION (APPA) NO. 113 OF 2020.
In view of disposal of Criminal Appeal, this
application does not survive. It is disposed of accordingly.
JUDGE
******
Sumit
