Bombay High Court
State Of Maha vs Vilas Raghunath Chavan on 13 January, 2021
Bench: R.V. Ghuge, B. U. Debadwar
*1* 922apeal480o03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.480 OF 2003
The State of Maharashtra.
Through, Police Station, Naigaon,
Tq.Biloli, Dist. Nanded.
...APPELLANT
-versus-
Vilas Raghunath Chavan,
Age : 22 years, Occupation : Education,
R/o Tembhurni, Tq.Biloli,
Dist. Nanded.
...RESPONDENT/ ACCUSED
...
Shri K.S. Patil, APP for the Appellant/ State.
Shri U.B. Bilolikar, Advocate for the Respondent/ Accused.
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 13th January, 2021
JUDGMENT (Per Ravindra V. Ghuge, J.):-
1. By this appeal, the State of Maharashtra seeks to challenge
the judgment and order dated 10.03.2003 delivered by the learned 1 st
Adhoc Assistant Sessions Judge, Biloli, District Nanded in Sessions Case
No.61/1999. The learned prosecutor points out that as the law stood in
2003, the appeals against the judgment of the Assistant Sessions Judge
were being filed directly in this Court.
*2* 922apeal480o03
2. We have considered the strenuous submissions of the learned
prosecutor on behalf of the appellant/ State and the learned advocate on
behalf of the respondent/ accused.
3. The prosecution had put forth it's case by stating that the
victim Prabhavati, daughter of Datta Bhakare, aged about 09 years, was
bodily lifted from her house on 29.03.1999 at about 10:00 pm by the
respondent/ accused Vilas Raghunath Chavan. He carried her towards the
well belonging to Divanji. While doing so, the victim woke up and asked
him as to where was he carrying her. The accused told her that since her
mother had gone for the recital of a pothi (a religious book), he was
taking her to her mother. He then laid her on the platform of the well by
holding her hand and pushed her into the well. While falling into the well,
she caught hold of niche (known as devli in Marathi). Vilas then started
pelting stones which hit her on the forehead and the nose causing injuries.
4. After the mother of the victim Dhondyabai came back from
the recital, she started searching for the victim. Vilas was also assisting
her. Some of the villagers, namely, Vitthal Pundalik Pawle, Ishwar,
Madhavrao and Prakash started searching for the victim and went near
the well. Vilas did not go near the well and he was not amongst the
persons who brought the victim out of the well. The victim Prabhavati and
her mother Dhondyabai claimed that the victim was unconscious for
about four to five days and therefore, she submitted her complaint to the
*3* 922apeal480o03
concerned Police Station on 03.04.1999, which is the FIR.
5. Five witnesses were examined and finally, the Trial Court
concluded that the charge leveled upon the accused Vilas of committing
an offence punishable under Section 307 and Section 363 of the Indian
Penal Code, was not proved.
6. We find from the record certain undisputed aspects, which are
as under :-
(a) The complaint submitted by the victim Prabhavati on
03.04.1999, does not make a mention of the accused Vilas sitting on her
chest and then subsequently sitting on her stomach. As such, the victim
did not complain of an attempt by the accused to outrage her modesty,
which would have invoked Section 354 of the Indian Penal Code.
(b) The FIR, in printed form, indicates that Sections 307, 363 and
354 of the Indian Penal Code were invoked.
(c) On 03.11.1999, the learned JMFC, Naigaon passed an order
for committing the case, which reads as under:-
"RCC No.79 of 199.
State vs. Vilas.
U/s 363, 307, 354 of IPC.
Order below Exh.1.
Perused the papers. They disclose the offences under
section 307, 363 and 354 of I.P.C.. The offences under
section 307 and 363 of I.P.C. are exclusively triable by
the Court of Additional Sessions Judge, Biloli. Hence,
the case is committed to the Court of Additional
Sessions Judge, Biloli vide section 209 of Cr.P.C..
*4* 922apeal480o03
The copies of police papers have been furnished to the
accused person vide section 207 of Cr.P.C.. Accused
person is released on bail. He has been directed to
appear before the court of Additional District &
Sessions Judge, Biloli on 13.12.1999. Accused person
wants to engage hi advocate on his own cost at Biloli
Court.
Inform A.G.P. Biloli, accordingly.
Date : 3rd November, 1999. -sd-
Judicial Magistrate F.C.,
Naigaon Bz."
(d) The charge was framed on 05.09.2002 under Sections 307
and 363 of the Indian Penal Code and not under Section 354.
(e) In the first paragraph of the judgment, the Trial Court has
recorded that the accused is facing trial for committing an offence
punishable under Sections 307, 363 and 354 of the Indian Penal Code.
(f) While concluding the judgment, the Trial Court has recorded
that the accused stands acquitted of the offence punishable under Sections
307 and 363 of the Indian Penal Code.
(g) In Exhibit 23, which is the statement of the victim made to
the Police, through her father Datta, the victim has not alleged that the
accused Vilas sat on her chest and then on her stomach.
(h) In the deposition of the victim before the Trial Court, she has
stated that Vilas sat on her chest on the way to Divanji's well. She has also
stated that he sat on her stomach before pushing her into the well.
(i) PW-2 (Dhondyabai Datta Bhakare), mother of the victim, has
*5* 922apeal480o03
not even whispered about any act by the accused Vilas, which outraged
the modesty of the victim. She has only stated that there was a scuffle
between the two and Vilas tried to misbehave with her.
7. With the assistance of the learned counsel, we have gone
through the appeal paper book and the record and proceedings,
threadbare. The Trial Court has handed down the judgment of acquittal
on the following two grounds:-
(a) That, there was a delay of about five days in lodging the FIR
and the delay has not been explained.
(b) That, interested witnesses have attempted to implicate the
accused Vilas and as there was a previous enmity between the
mother (PW-2) of the victim and the mother of the accused,
who had tried to expose the misdeeds of PW-2 in the mid day
meals at an Anganwadi and, therefore, cooked up charges
have been leveled against the accused.
8. The medico-legal (injury) certificate dated 30.03.1999, time
05:30 am, indicates that the victim suffered a contused lacerated wound
(CLW) of 1/2 x 1/2 cm over the scalp, which was a simple injury caused
by a hard and blunt object. The frontal sinus of the victim was depressed
and there was fracture, which was a grievous injury caused by a hard and
*6* 922apeal480o03
blunt object.
9. PW-5, Dr.Shivaji Vitthalrao Shinde, was the Medical Officer at
the Civil Hospital, Nanded. He has stated in his deposition that the victim
had a fracture at frontal sinus, which might have been caused by a hard
and blunt object. If a person is forcibly thrown into the well, such injuries
are possible. However, if the well is full of water, such injuries would not
be caused. If a child of about 10 to 12 years falls from a staircase, such
injuries are possible. As such, the injuries suffered by the victim have been
proved.
10. The issue is as regards the delay of five days in lodging the
FIR. The victim PW-1 and her mother PW-2 alleged that the victim was
unconscious ever since the incident and she regained her consciousness
only on 03.04.1999. PW-2, mother of the victim, also stated that the
victim was unconscious. Dr.Shinde, who treated the victim and issued the
medical certificate on 07.07.1999, upon a request from the Naigaon Police
Station on 29.06.1999, has stated in his deposition that the victim patient
was brought to him early morning on 30.03.1999 by the relatives and the
Police and she was fully conscious. In short, he has denied that she was
unconscious. He further stated that the patient was able to talk, walk and
have food. As such, the evidence on record indicates that the victim was
conscious and the plea of being unconscious has been taken only for
covering up the delay of five days in lodging the police complaint.
*7* 922apeal480o03
11. The defence taken by the accused Vilas, while cross
examining the prosecution witnesses, is that the mother of the accused
Vilas had raised an issue of malpractices at the hands of PW-2 in an
Anganwadi. To a suggestion, PW-2, mother of the victim, has stated that
she has not committed any malpractice and there was no enmity between
the mother of the accused and the mother of the victim.
12. PW-3 (Vithal Pundlik Warwate) is the brother-in-law of PW-2.
He had also searched for the victim along with the accused and PW-2.
Upon hearing sounds from the well, he along with Ishwar, Madhavrao and
Prakash had gone upto the well and upon flashing a torch light, they saw
the victim who was shouting for help. PW-3 and Prakash entered the well
and brought the victim out. The victim has then stated that the accused
had assaulted her.
13. PW-4, Sitaram Dhondiba Adegaonkar, Investigating Officer,
was at the Police Station, Naigaon. He has stated in his deposition at
exhibit 30 that he received the statement recorded at the hospital at 03:00
pm on 04.04.1999. He recorded the offence as Crime No.25/1999 and
launched investigation. On the same day, he visited the spot and prepared
the spot panchanama. Then, he recorded the statements of eight witnesses
and recorded the supplementary statement of the victim, which is not
found in the record and proceedings or the appeal paper book.
14. As such, there is no evidence of any witness, unrelated to the
*8* 922apeal480o03
victim and her family, who has seen the accused throwing the victim in the
well and hurling stones at her as she was clinging to the niche. The stones
allegedly thrown by the accused at the victim, could not be traced out.
Besides the oral statement of the victim, there is no evidence of any
independent witness, who had seen the accused pelting stones at the
victim upon allegedly flinging her into the well.
15. The police had recorded the statements of eight persons, who
had gathered near the well and their names have also been disclosed in
exhibit 25, which is the statement by the mother of the victim dated
03.04.1999 addressed to the District Superintendent of Police. Yet, barring
PW-3, whose wife is the sister of Dhondyabai, no other independent
witness has been examined, despite their names figuring in the complaint
of the victim and the list of witnesses mentioned in the FIR, which
indicates 15 witnesses. About 7 to 8 independent witnesses like Vitthal,
Pundalik, Madhavrao, Nagoba, Ishwar, Baliram, etc. were available.
16. We, therefore, find that an improbable story has been put
forth by the prosecution, the victim and her mother that the delay in
lodging an FIR of five days was caused as the victim was unconscious. This
has been disproved and the evidence indicates that the victim was never
unconscious. Had the victim been unconscious after suffering injuries
allegedly caused by stones, she would not have been able to continue to
cling onto the niche until several villagers, who were searching for her,
*9* 922apeal480o03
found her after two hours and, by that time, she would have fallen into
the well and would have got drowned. So also, on the one hand, PW-2
claims that her daughter immediately told her after coming out of the well
that the accused had attempted to outrage her modesty, had pushed her
into the well and had pelted stones on her. Yet, PW-2 or the father of the
victim (PW-1) did not lodge an FIR till 03.04.1999. There is no evidence
to indicate that the accused pushed the victim into the well or has
assaulted her with stones.
17. Considering the delay in filing of the FIR, the probable story
of enmity between the mother of the victim and the mother of the accused
and as there is no evidence to indicate the involvement of the accused
Vilas, we do not find that the Trial Court has committed any error in
acquitting the accused Vilas. This Criminal Appeal is, therefore, dismissed.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
