Nagesh Sadashiv Bhandari vs The State Of Maharashtra
2022 Latest Caselaw 12426 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO.200 OF 2020

Nagesh Sadashiv Bhandari                     ....Appellant
            Versus
The State of Maharashtra & Anr.              .... Respondents

                             WITH
              INTERIM APPLICATION NO.1981 OF 2021
                             WITH
               INTERIM APPLICATION NO.724 OF 2022
                               IN
                 CRIMINAL APPEAL NO.200 OF 2020

                                 -----
Mr. Nagesh Sadashiv Bhandari, the appellant present in-person.
Mr. S.R. Agarkar, APP, for the Respondent No.1-State.
Mr. Amit Mane, Advocate (appointed) for Respondent No.2.
                                 -----

                           CORAM : SARANG V. KOTWAL, J.

                           DATE    : 30th NOVEMBER, 2022, &
                                     01st DECEMBER, 2022
ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 4.1.2020 passed by the Special Judge under POCSO Act,

Dindoshi in Special Case No.58/2018. The appellant was

convicted and sentenced as follows :

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i. He was convicted for commission of the offence punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012 ('POCSO Act')and was sentenced to suffer RI for twelve years and to pay fine of Rs.10,000/- and in default of payment of fine to suffer RI for one year.

ii. He was further convicted for commission of the offence punishable under Section 506 of IPC and was sentenced to suffer RI for one year and to pay fine of Rs.1,000/- and in default of payment of fine to suffer RI for one month.

iii. Both the substantive sentences were directed to run concurrently.

The appellant was acquitted of the offence punishable

under Sections 323, 504 of IPC. He was granted set off under

Section 428 of Cr.P.C.

2. The prosecution case, in short, is that the appellant

was a neighbour of PWs-1 & 2. PW-2 is the victim in this case. Her

date of birth is 16.9.2000. There is not much dispute about her

age. The prosecution case is that since two years before lodging

of the FIR on 12.11.2017, the appellant was committing rape on

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the victim. The prosecution case is that the victim was having low

IQ. Her mother PW-1 was having affair with the appellant and

that when the victim was alone in the house, the appellant used to

take advantage of the situation and commit rape on the victim.

The FIR was lodged at Powai police station on 12.11.2017. The

appellant was arrested on 14.11.2017. Since then he is in custody.

3. After registration of the FIR, investigation was carried

out. Spot panchnama of the house was conducted. The victim

was sent for medical examination. Statements of witnesses were

recorded. The statement of the victim was recorded under Section

164 of Cr.P.C. At the conclusion of the investigation, charge-sheet

was filed.

4. Heard Shri Nagesh Bhandari, the appellant appearing

in-person, Shri S.R. Agarkar, learned APP for the respondent No.1-

State and Shri Amit Mane, learned appointed counsel for the

respondent No.2.

5. During trial, the prosecution examined seven

witnesses including the victim, her mother, Medical Officer, one

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neighbour and three police officers who had taken part in the

investigation at various stages. The defence of the appellant was

of total denial. Significantly neither the victim nor her mother

supported the prosecution case. They were declared hostile.

Inspite of that learned Judge relied on the contradictory

statements made by them before the police. He also relied on the

statement of the victim recorded under Section 164 of Cr.P.C. He

disbelieved the witnesses themselves to the extent that they had

not supported the prosecution case and ultimately convicted and

sentenced the appellant as mentioned earlier.

6. PW-2 is the most important witness in this case. She is

the victim. Her date of birth is 16.9.2000. There is no dispute

about her date of birth. No submissions were made even at the

trial stage regarding her date of birth. She has deposed that in the

year 2017 she was staying at Powai with her mother, grand-

parents and another sister. She had completed her education upto

10th standard in her native place. She deposed that she had given

complaint against the appellant. He used to reside near their

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house. She has then specifically deposed that the appellant used

to scold her, she told her mother falsely that the appellant had

forcible sexual intercourse with PW-2. She further explained that

the appellant had proposed marriage to her mother. He wanted to

get married with her mother. Hence in the rage of anger, she had

told a lie to her mother that the appellant had forcible sexual

intercourse with her. After she made those allegations, her mother

took her to police station for lodging FIR. At the police station,

the police enquired with her. She told the police that the

appellant had forcible sexual intercourse with her. Thus,

according to PW-2, she had made false accusations against the

appellant. This was contrary to the prosecution case. Therefore,

learned APP was permitted to put questions in the nature of cross-

examination. Following this permission, learned APP asked

questions in the nature of cross-examination. In answer to those

questions, she further deposed that she had told the police that

the appellant had claimed that he had some divine power. Her

mother had taken her to him so that PW-2's IQ would improve.

The appellant had asked her to perform some pooja. She has then

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told that he used to commit forcible sexual intercourse with her.

She also admitted that she had told the police that he committed

this act repeatedly and had threatened her. In August, 2017 also

he had forcible sexual intercourse with her. She had told these

allegations to her mother. There was quarrel between her mother

and the appellant. She had also told the police that on 9.11.2017

and 12.11.2017, the appellant had came to their house and had

quarreled with her mother. He had asked her mother to stay with

him. Her mother had refused. He had abused her and then PW-1

and PW-2 went to police station and have given written complaint.

PW-2 had also signed that complaint. She identified the

photograph of the appellant. She admitted that her statement was

recorded under Section 164 of Cr.P.C. However, that statement

was not shown to her.

In the cross-examination conducted on behalf of the

appellant, she further admitted that the appellant used to

frequently visit their house. Her mother had love-affair with the

appellant. When he used to visit her house and when he found

PW-2 watching T.V. with loud volume he used to scold her;

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because of which, she used to get irritated. He used to advise her

to watch news channel and not the programme she was watching.

She used to get irritated on this count also. She has categorically

admitted that she had not liked her mother having affair with the

appellant and, therefore, she did not like the appellant. She has

further admitted in clear words that she had falsely stated before

the police that the appellant had forcible sexual intercourse with

her. She further confirmed it by saying that the appellant never

had sexual intercourse with her. She admitted that she had a

boyfriend with whom she had sexual relations. According to her,

she had given false history to the medical officer. She did not

know the contents of the complaint which her mother had given

to the police, which is produced on record at Exhibit-32. The trial

Court put her 'court-question' as to why she had told her mother

that the appellant used to have forcible sexual intercourse with

her. To that question, she answered that the appellant was

proposing to her mother for performing marriage with him which

PW-2 did not like and, therefore, she had made false allegations

against the accused.

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7. PW-1 was the mother of PW-2 and she had lodged the

FIR. She has deposed that she had deserted her husband as he

was addicted to liquor. She had come to Mumbai from Chennai

eight years before lodging of the FIR. Her maternal uncle's house

was adjacent to her house in Powai. She had given that room to

the appellant. He was unmarried and was not doing any work.

She used to visit the appellant's house. According to her, PW-2 was

having low IQ. PW-1 used to provide food to the appellant. She

has further admitted that she had sexual relations with the

appellant. He had promised PW-1 that he would marry her. Her

daughters, including PW-2, did not like PW-1's relations with the

appellant. She had some misunderstanding with the appellant.

They had quarreled. The appellant left their room and went to his

native place. As her daughters did not like the appellant he used

to scold them and tried to dominate them. PW-1 was trying to get

separated from him, but, he insisted that he wanted to perform

marriage with her. When the appellant went to his native place he

would continuously call her and harass her. He used to say that

he loved her but she refused his proposal by saying that she did

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not want to perform marriage with him. He returned from his

native place and kept on requesting her to marry him. He

threatened that he would commit suicide. Because of this

harassment, she went to the police station and lodged FIR against

him. According to her, the police did not read and explain the

complaint given by her. Thus, she did not support the prosecution

case and, therefore, learned APP was permitted to put questions in

the form of cross examination. The contrary portions from her

statement were put to her. Those portions were proved from the

evidence of the police officers who had recorded that statement.

The FIR lodged by her is produced on record at

Exhibit-26 and the contradictory statements in that FIR were

exhibited at Exhibits-48, 50 and 51. Her signatures were marked

at Exhibit-27. In those contrary portions, she had described the

incident of commission of rape repeatedly by the appellant on PW-

2 as was told by PW-2 to this witness. Surprisingly the statement

of PW-2 recorded under Section 164 of Cr.P.C. was shown to this

witness and was marked as Exhibit-31. This particular statement

however was not shown to PW-2. The complaint which she had

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given to the police station on 10.11.2017, was a separate

complaint from the FIR. It was brought on record at Exhibit-32.

However,on that document she had only admitted her signature.

The contents of that document Exhibit-32 were not put to her in

the form of contradictions and no questions were asked as to why

there were contrary versions in that Exhibit-32 from her

deposition in the Court.

In the cross-examination conducted on behalf of the

appellant she deposed that she had quarreled with the appellant

and in the rage of anger she lodged FIR against him. She did not

know the contents of the FIR. She had signed wherever the police

had asked her to sign. She had also lodged an NC complaint.

8. PW-3 was a neighbour of PWs-1 and 2. She also knew

the appellant. She has deposed that she did not know anything

about the accused. Her evidence is completely innocuous and

unnecessary.

9. The spot panchnama was admitted by the defence but

it only shows description of the house and it does not show any

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incriminating material against the appellant.

10. PW-4 Dr. Deokar is an important witness. He had

examined PW-2 on 12.11.2017 at KEM Hospital. He had given

history told to him in which PW-2 had narrated about the rape

committed on her. However, this particular history was not put to

PW-2 to bring out contradiction in her deposition and this history.

On medical examination, PW-4 had observed multiple old healed

tears on the hymen suggestive of chronic vaginal penetration, and

therefore, according to him this finding was consistent with the

history. He has deposed that PW-2 was sent for ossification test

and her age was found to be between 15 to 17 years.

11. PI Yogesh Kale was PW-5. He was attached to Powai

police station. He has deposed that PW-1 had given complaint at

Exhibit-32 to the police station. He had recorded statement of

PW-1 which was treated as FIR. This statement was recorded on

12.11.2017. He proved the contradictory portions from her FIR at

Exhibits-48, 49, 50 and 51. He had registered C.R. No.539/2017

at Powai police station. He had referred PW-2 for medical

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examination. He had arranged for recording of PW-2's statement

under Section 164 of Cr.P.C.. Importantly he has produced Exhibit-

47 on record. This NC complaint was lodged by PW-1 on

3.10.2017. It is mentioned in that NC that PW-1 and the appellant

knew each other. The appellant used to reside in the

neighbourhood one month before lodging of that NC complaint. In

September, 2017 he had gone to reside in Karnataka. The

appellant wanted to marry PW-1 but she was not willing. She was

avoiding the appellant and, therefore, he was angry with her. He

used to call her telephonically and used to abuse her. He was

threatening and harassing her. This was the NC lodged by PW-1.

Here, there is absolutely no reference to the sexual offence

committed by the appellant on PW-2.

12. PW-6 PSI Dhiware had recorded the police statement

of PW-2. In the cross-examination, she denied that PW-2 had low

IQ.

13. PW-7 API Lad had conducted and concluded the

investigation. He conducted spot panchnama and recorded

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statements of neighbours. He had filed the charge-sheet. In the

cross-examination he admitted that his investigation revealed that

there was love affair between the appellant and PW-1. He had not

referred the victim for her IQ test.

14. The appeal was argued by the appellant himself as

party-in-person, who was given permission to appear and plead

his case before this Court. Accordingly he made his submissions.

He submitted that the prosecution has failed to prove their case

against the appellant beyond reasonable doubt. The main

witnesses i.e. PWs-1 & 2 had not supported the prosecution case.

PW-3 has also not deposed anything against him. The

investigation is formal in nature. Therefore, the prosecution case

depended only on the evidence of PWs-1 & 2 and since they have

not supported the prosecution case the only logical conclusion was

that the appellant was entitled for acquittal.

15. He submitted that the statement of the victim which

was recorded under Section 164 of Cr.P.C. was not brought to the

notice of the victim to bring out contradictions if any. The

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procedure of getting that statement on record through the

evidence of mother of the victim is not right and that statement,

therefore, cannot be taken into consideration. He further

submitted that both these witnesses have given reasons for false

implication and those reasons are not imaginary.

16. On the other hand, the prosecution has not explained

why there are no other circumstances against him. He submitted

that considering the entire evidence the appellant deserves to be

acquitted. He submitted that the medical evidence does not really

support the prosecution case. Because though the medical

evidence shows that the victim was subjected to sexual intercourse

but, she herself had admitted that she had a boyfriend with whom

she had physical relations. Therefore, even the medical evidence

is not incriminating against him.

17. Learned counsel for the respondent No.2 as well as

learned APP submitted that the fact that PWs-1 & 2 did not

support the prosecution case would not mean that the prosecution

case is not true. The contradictions in their statements before the

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police are properly proved through the police officers who had

recorded their statements and, therefore, based on these

contradictory portions from their police statements the

prosecution has proved its case against the appellant. The

medical evidence in fact shows that the victim was subjected to

forcible sexual intercourse on many occasions and, therefore, even

to that extent the medical evidence supports the prosecution case.

18. They further submitted that the accused had taken

advantage of the vulnerable position of the victim and, therefore,

the appellant should not be shown any sympathy. The appellant

has not taken a consistent stand in his answers to the examination

under Section 313 of Cr.P.C. They submitted that it is apparent

that PWs-1 & 2 are won-over by the appellant and the appellant

should not be given benefit of that.

19. I have considered these submissions. As rightly

submitted by both sides the most crucial evidence in this case is

that of the victim herself, followed by her mother PW-1. PW-2 has

categorically denied that the appellant has committed any such

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offence. There is no evidence on record to show that PW-2 was

having low IQ. In fact, PW-6 who had recorded her statement has

denied that PW-2 was having low IQ.

20. Learned Judge, who has recorded deposition of PW-2,

has also not noted that her IQ was low. The answers given by PW-

2 are quite clear, unambiguous, rational and intelligent. She has

also given answers with clarity to the questions put to her by the

Court. Therefore, it can safely be held that PW-2 has given

deposition with clarity. Therefore, her stand assumes importance.

According to her, the appellant has not committed this offence and

that she had made allegations against him to her mother and that

she had made these allegations to her mother in the rage of anger.

She has given two reasons for that: the first reason was that the

appellant used to scold her; and more important reason was that

he had proposed to marry her mother which she did not like. On

both these counts, she had grievance against the appellant and,

therefore, she made these false allegations. This explanation is

given by the victim herself.

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21. PW-1's evidence also shows that she was in physical

relations with the appellant. After some time their relations did

not continue to remain good and according to her, the appellant

was harassing her throughout and, therefore, she took this step of

lodging FIR. Even she has not supported the prosecution case.

She has admitted that because of his continuous harassment she

had gone to police station and lodged this FIR. Both these

witnesses have not denied that they had given contrary statements

to their deposition before the police but they have explained that

they had deliberately done so because they were holding grudge

against the appellant for different reasons as mentioned by them.

22. PW-1 has admitted in her cross-examination that she

had quarreled with the appellant and in the rage of anger she had

gone to police station and lodged FIR against him, but, she denied

the contents of the FIR. Thus, she has admitted only the fact of

going to the police station and making grievance against the

appellant. She has not supported the main allegations of the

appellant committing rape on her daughter.

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23. In a given case, evidence of the hostile witnesses can

be taken into account if the Court is satisfied about the attending

circumstances and if the truth and falsehood can be separated

from the depositions of such hostile witnesses. But, in this case it

is not possible to do so. The evidence of both these witnesses is

not of such a nature where only some portion from their

deposition can be accepted as truth. It is not possible to

differentiate the facts to hold that only part of their depositions is

true. Therefore, it will not be fair to the appellant to rely on the

statements made before the police as true statements and the

depositions made under oath before the trial Court as false

statements. In the facts of this particular case it is not possible to

base the conviction relying only on their police statements.

Significantly contrary portions from the 164 Cr.P.C. statement of

PW-2 were not put to her. Therefore, that statement can also not

be relied on by the prosecution. In respect of history that was

given to the medical officer, the contradiction in the history vis-a-

vis her deposition was not brought to her notice in the Court. Her

attention was not drawn to that contrary portion. Hence even that

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history can not be used against the appellant.

24. In this particular case, the deposition before the trial

Court carries more weight than the previous statements. In any

case both these witnesses have given reasons for making false

allegations against the appellant. This is quite significant.

25. As far as medical record is concerned, as rightly

submitted by the appellant himself that PW-2 had accepted that

she had a boyfriend with whom she had physical relations.

Therefore, the observations in the medical evidence can be

connected with this admission and, therefore, the medical

evidence cannot be used against the appellant because other

possibility is brought on record by the appellant through the cross-

examination of PW-2. This possibility is also reasonable.

26. There is one more important factor in this case and

that is Exhibit-47 which is an NC lodged by PW-1 herself against

the appellant. That NC was lodged on 3.10.2017. Thus it was

lodged around 12 days prior to lodging of the FIR. In that NC

there is reference to the relations between PW-1 and the present

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appellant and about the harassment caused by the appellant to

PW-1. However, there is absolutely no reference to any act of rape

committed by the appellant on PW-2.

27. Learned Judge while convicting the appellant has

relied on the contrary portions mentioned by PW-1 & PW-2 in

their police statements. He has also relied on the statement of PW-

2 recorded under Section 164 of Cr.P.C.. This approach is not

correct in the facts of this case as discussed earlier for the reasons

mentioned hereinabove.

28. PW-3 who was a neighbour has also not deposed

against the appellant. She is not declared hostile. Thus, there is

no reliable evidence against the present appellant. Since the

allegations are serious, the prosecution needed to prove its case

beyond reasonable doubt based on the acceptable evidence.

However, as discussed earlier, the prosecution has failed to prove

its case beyond reasonable doubt and, therefore, benefit of doubt

must go to the appellant. With the result, the appeal succeeds.

Hence, the following order :

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:: O R D E R ::

                                 i.       The appeal is allowed.

                                 ii.      The appellant's conviction and sentence recorded vide

impugned judgment and order dated 4.1.2020 passed by

the Special Judge under POCSO Act, Dindoshi in Special

Case No.58/2018 is set aside.

iii. The appellant is acquitted of all the charges levelled against

him.

iv. The appellant is in jail. The appellant be released after

completing the formalities unless he is required in some

other case.

v. Criminal Appeal is disposed of accordingly. With disposal of

the appeal, connected applications are also disposed of.

Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE (SARANG V. KOTWAL, J.) DESHMANE Date:

2022.12.05 18:03:40 +0530

Deshmane (PS)

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