Ajijkha (Khan) Bismillakha ... vs The State Of Mah. Thr. Pso Ps Gadge ...
2022 Latest Caselaw 10047 Bom

                                      1                                Appeal122.22 (J).odt


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


                   CRIMINAL APPEAL NO. 122 OF 2022


APPELLANT                  : Ajijkha (khan) Bismillakha (Khan)
                             Aged 46 years, Occupation : Labour,
                             R/o Ratanganj Nagoba Vata-1,
                             Amravati, Tah. & Dist. Amravati (In Jail)

                                           VERSUS

RESPONDENT                  : State of Maharashtra,
                              Through the Police Station Officer,
                              Police Station, Gadge Nagar,
                              Amravati, Tah. & Dist. Amravati.

----------------------------------------------------------------------------------------------
          Mr. D. R. Rupnarayan, Advocate for the appellant.
          Mrs. S. S. Jachak, A.P.P. for the respondent/State
----------------------------------------------------------------------------------------------

                    CORAM : G. A. SANAP, J.
            Date of Reserving the Judgment     : August 30, 2022.
            Date of Pronouncement of Judgment : September 30, 2022


JUDGMENT

1. In this appeal, challenge is to the judgment and order

dated 19.01.2022, passed by the learned Additional Sessions Judge,

Amravati in Sessions Case No. 01/2021, whereby the learned Judge

convicted the appellant for the offences punishable under Sections

376(2)(j)(n) and 506 of the Indian Penal Code. The appellant is 2 Appeal122.22 (J).odt

sentenced to suffer rigorous imprisonment for ten years and to pay fine

of Rs.10,000/-, in default of payment of fine, to undergo further

rigorous imprisonment for six months for the offence punishable

under Section 376(2)(j)(n) of the Indian Penal Code. He is sentenced

to suffer rigorous imprisonment for one year and to pay fine of

Rs.5,000/- and in default of payment of fine, to undergo further

rigorous imprisonment for six months for the offence punishable

under Section 506 of the Indian Penal Code.

2. Brief facts of the prosecution case are as follows :

The victim (PW3) is a mentally retarded girl. Both, the

appellant and the victim-girl, are resident of Amravati. Father of the

victim-girl is plying auto rikshaw. Mother of the victim is working in a

cloth shop at village Morgaon. At the relevant time, the victim-girl was

studying in Mand Buddhi and Sharirik Apang Vidyalaya, Harshraj

Colony, Amravati. The incident occurred on 28.09.2020 at 2.00 p.m.

at Vilas Nagar Galli No.5, Amravati. The appellant is doing work of

'coolie'. It is the case of the prosecution that on 28.09.2020, at about

2.00 p.m. the appellant caught hold the victim and took her in a cattle 3 Appeal122.22 (J).odt

shed of Kishor Patel. The appellant pressed her breasts and inserted his

finger in her private part. The victim shouted for help. On hearing

shouts, Kishor Patel went there and questioned the appellant. The

appellant replied that he had come to the spot to wash his hands and

the victim came there to collect cow-dung. After this, the appellant left

the place of the incident. The victim, in the evening, narrated the

incident to her mother. It is further the case of the prosecution that

prior to this incident, on 4 - 5 occasions the appellant had committed

the same act with the victim on 08.08.2020, 10.08.2020, 24.09.2020

and 27.09.2020. It is the case of the prosecution that the victim girl

did not disclose the earlier incidents to anybody because of threat

extended by the appellant. The appellant threatened to defame her

and make a complaint to her parents, which would result into her

beating at the hands of her parents, if she had disclosed about the

incident to anybody. It is stated that because of this threat, the victim

did not disclose the earlier incidents to anybody. On 30.09.2020 at

about 2.00 p.m., brother of the victim found the appellant and took

him to police station. The victim was taken to the police station on

30.09.2020. The victim lodged report of the incident. On the basis 4 Appeal122.22 (J).odt

of the report, crime bearing No. 856/2020 for the above offences came

to be registered against the appellant.

3. PI Rekha Londhe (PW4), conducted the investigation.

She arrested the appellant. During the course of investigation, the

victim was sent for medical examination. The appellant was also sent

for medical examination. The Investigating Officer collected the

documents of mental illness of the victim. She recorded the statements

of the witnesses. The samples collected during the course of

investigation were sent to the Chemical Analyser. On receipt of C.A.

report and on completion of investigation, charge-sheet was filed

against the appellant.

4. Learned Additional Sessions Judge, on committal of the

case by the learned Magistrate, framed Charge (Exh.2) against the

appellant. The appellant pleaded not guilty. In order to bring home

the guilt of the appellant, the prosecution examined in all six witnesses.

The learned Additional Sessions Judge found evidence of the

prosecution witnesses cogent and reliable and therefore, based on the 5 Appeal122.22 (J).odt

said evidence, convicted and sentenced the appellant as above. The

appellant being aggrieved by the said judgment and order has come

before this Court in appeal.

5. I have heard Mr. D.R. Rupnarayan, learned advocate for

the appellant and Mrs. S. S. Jachak, learned Additional Public

Prosecutor for the respondent/State. Perused the record and

proceedings.

6. Mr. Rupnarayan, learned advocate for the appellant

submitted that the C.A. report and the medical examination report of

the appellant does not support the case of the prosecution. The

learned advocate submitted that oral evidence of the Medical Officer

Dr. Sandhya Kharate (PW4) is contrary to the opinion given in the

medical examination certificate (Exh.22). The learned advocate

submitted that the prosecution has not examined important witness

Kishor Patel. The learned advocate submitted that in order to establish

identification and complicity of the appellant in commission of the

crime on the given date at the spot in question, examination of this

witness Kishor Patel was necessary. No plausible explanation has been 6 Appeal122.22 (J).odt

placed on record for non-examination of such an important witness.

The learned advocate submitted that evidence of the victim cannot be

believed. Learned advocate submitted that the victim did not tell the

name of the appellant either to her brother or to her mother on the

date of the incident. The learned advocate submitted that there is no

material on record to establish as to how identity of the appellant being

involved in commission of the crime, was established. Learned

Advocate submitted that the report was lodged after two days of the

incident. There is no explanation in respect of the delay in lodging

report. Learned advocate took me through the evidence of the mother

of the victim (PW3) and submitted that in her evidence, no reason has

been stated for delayed lodging of the report on 30.09.2020. The

learned advocate submitted that evidence of the victim (PW2) and her

mother (PW3) is the interested version on record and therefore, on the

basis of interested witnesses, the accused cannot be convicted. In short,

the learned advocate submitted that the learned Additional Sessions

Judge has not taken all these facts into consideration and as such has

come to wrong conclusion.

7 Appeal122.22 (J).odt

7. Smt. Jachak, learned Additional Public Prosecutor submitted

that there was no reason for the victim (PW3) to falsely implicate the

appellant. Learned APP submitted that the appellant had indulged in

the same act with the victim on 4 - 5 occasions prior to the date of the

incident in question. Learned APP submitted that the victim did not

disclose the incidents occurred with her on earlier occasions because of

the threat extended by the appellant. Learned APP submitted that

evidence of the victim (PW2) and her mother (PW3) is consistent,

cogent and reliable. Learned APP submitted that in the evidence

before the Court, the Medical Officer Dr. Kharate (PW4) has

categorically stated that her private part was touched forcefully and

accused tried to insert his finger in her private part. Learned APP

submitted that considering the nature of the finding of fact that the

victim was mentally retarded, the delay in lodging report may not be a

ground to give benefit to the appellant. Learned APP submitted that

the learned Sessions Judge has recorded cogent reasons in support of

his findings. In the submission of learned APP, a well reasoned

judgment of the learned Additional Sessions Judge does not warrant

interference.

8 Appeal122.22 (J).odt

8. It is the case of the prosecution that the appellant had

inserted his finger in the private part of the victim. Such act constitutes

an offence of rape under clause-(b) of Section 375 of the Indian Penal

Code. The learned Additional Sessions Judge relied upon the opinion

of the Medical Officer (PW4) as a corroborative piece of evidence. The

report of the Medical Officer is at Exh.22. In the report, Medical

Officer (PW4) has stated that no definite opinion can be given

regarding sexual intercourse. The Medical Officer further opined that

an attempt of sexual intercourse was performed and private parts are

touched and pressed. The opinion is silent about forceful insertion of

fingers in the private part. In the examination report (Exh.22), an

opinion has been given with regard to the private "parts". This would,

therefore, indicate that the Medical Officer referred to the breasts, as

well, in her opinion. If the opinion was with regard to the vagina only,

then the Medical Officer would not have stated it in plural form. It,

therefore, indicates that this opinion also relates to the breasts. The

Medical Officer for the first time in the Court deposed that her private

part was touched forcefully. She has stated that there was no injury

either to the private part or any other part of the body. In her cross-

9 Appeal122.22 (J).odt

examination, the Medical Officer has admitted that if a finger is

inserted in private part, then there is possibility of nail injury to the

private part. In the report (Exh.22), the Medical Officer has

categorically stated that there was no injury to the private part. The

report (Exh.22) shows that the Medical Officer (PW4) examined the

victim on 30.09.2020 at 7.45 p.m. This fact would, therefore, prove

that after two days of the incident, the victim was examined by the

Medical Officer (PW4). The Medical Officer without any injury to the

private parts, has opined that her private parts were touched and

pressed. Therefore, in my view, this opinion of the Medical Officer

does not corroborate the case of the prosecution on material aspect. It

can be seen that on the basis of history of assault narrated by the

mother and the victim at the time of examination, the Medical Officer

(PW4) gave such a vague opinion. I am, therefore, not prepared to

accept the medical evidence as a corroborative piece of evidence to the

oral testimony of the victim (PW2) and her mother (PW3).

9. Investigating Officer PI Rekha Londhe (PW6), during the

course of the investigation had referred the victim to Civil Hospital,

Amravati for obtaining opinion about mental illness of the victim. A 10 Appeal122.22 (J).odt

certificate issued by the panel of Medical Officers of the General

Hospital, Amravati, dated 17.10.2020 is at Exh.34. In this certificate,

the panel of Doctors has opined that the victim is a case of mild

intellectual disability. Her IQ was 69%. One more medical certificate

in this regard is at Exh.37. It is dated 19.04.2014. This certificate was

also issued by a panel of Medical Officers of District Hospital

Amravati. The panel opined that the victim was a case of mental

retardation of moderate nature. The percentage of her disability was

45%. The disability was permanent, non-progressive and not likely to

improve. It is seen on perusal of cross-examination on behalf of the

accused that these certificates are not seriously disputed. Therefore,

the learned Additional Sessions Judge was right in relying upon these

certificates to record a finding that the victim was a case of mentally

retarded girl. On re-appreciation of the evidence, it is not possible to

take a different view by this Court.

10. I have already observed that evidence of the Medical

Officer (PW4) is not of any help to the case of the prosecution.

Similarly, the C.A. reports are also of no help to the prosecution. It is, 11 Appeal122.22 (J).odt

therefore, necessary to consider the evidence of the victim (PW2) and

the evidence of her mother (PW3). It is to be noted at this stage that

in this case, Kishor Patel would have been the most important witness.

His evidence would have assisted the Court to come to a positive

conclusion on the point of identity of the accused and his presence at

the place of the incident on the given time. It is the case of the

prosecution that the cattle shed where the incident occurred, was

belonging to Kishor Patel. It has been stated in the report that when

he heard shouts of the victim, he came to the spot and questioned the

accused. In the facts and circumstances, it was necessary to examine

such an important witness. If there was any impediment in the way of

the prosecution, then the prosecution ought to have placed on record a

plausible explanation for his non-examination. In my opinion,

therefore, this would be a vital draw back in the case of the

prosecution. It is pertinent to note that the victim had not stated the

name of the appellant either to her mother or to her brother. The

appellant and the victim are resident of the same locality. If the factual

situation had been as stated by he victim before the Court, then in all

probability, the victim would have stated either his name or his 12 Appeal122.22 (J).odt

description to her mother. If the victim had made such disclosure, the

appellant would have been immediately arrested. It has come on

record that the brothers of the victim caught hold the appellant on

30.09.2020 while he was standing in front of a pan stall and took him

to the police station. It is, therefore, apparent that when he was taken

to the police station, the victim was also called to the police station. In

the facts and circumstances, while appreciating the evidence of the

victim (PW2) and her mother (PW3), above facts deserve an

appropriate consideration.

11. The victim is PW2. It has come on record that her date of

birth is 29.03.2002. It is, therefore, apparent that on the date of the

incident, she was above 18 years of age. In her evidence, the victim has

stated that the incident took place on 30.09.2020 at about 1.00 p.m.

The report lodged by the victim is at Exh.12. The printed FIR is at

Exh.13. In her evidence, she has stated that the appellant took her in a

cattle shed of Kishor Patel. The appellant lifted her T-shirt and pressed

her chest. She has stated that the appellant inserted his finger

in her private part and kissed her. She has stated that she shouted and 13 Appeal122.22 (J).odt

hearing her shouts, Kishor came there. Kishor questioned the

appellant as to why he came there. The appellant told him that he had

came there for washing his hand and the victim had come to collect

cow-dung. She has stated that Kishor instructed her to go to home.

She has stated that Kishor warned the appellant not to come to said

place. She has categorically stated that she has narrated the incident to

her cousin Saurabh on the same day. It is to be noted that Saurabh has

not been examined in this case by the prosecution. If the victim had

narrated the incident first time to her cousin Saurabh, then in that

event, examination of Saurabh would have been of a great assistance to

the case of the prosecution. Saurabh could have unfolded the incident

narrated to him by the victim on the very same day and involvement of

the person in the incident. The victim has not stated in her evidence

that she informed Saurabh that the person indulged in the act was the

appellant. She has further stated that the accused had threatened her

and therefore, she did not disclose such acts committed on her by the

appellant on earlier occasions. She has further stated that prior to this

incident, she had told the incident to her big father and her big father

had beaten the appellant. She has stated that she narrated the incident 14 Appeal122.22 (J).odt

occurred on 30.09.2020 to her mother. She has stated that the person

involved in the incident was the accused present in the Court. It is

pertinent to mention that identity of the appellant was not known by

his name or by his description till the report was lodged. It is not the

case of the prosecution that identity of the appellant by name or by

description was stated by the victim either to Saurabh or to her mother.

It is further pertinent to mention that if the victim had disclosed the

identity of the appellant, which she was expected to do so inasmuch as

the appellant being the resident of same locality, the brothers of the

victim would have easily traced him out. In her cross-examination, she

has admitted that there was quarrel in between her father and the

appellant on account of money transaction. It is the defence of the

appellant that because of money dispute, he has been falsely implicated

in this case.

12. The material omissions have been proved from the

evidence of the victim (PW2). The statement of the victim that she

had narrated the incident to Saurabh has been proved to be an

omission. Similarly, the statement of the victim that she told her father 15 Appeal122.22 (J).odt

that the appellant used criminal force to her for 5-6 times has also been

proved to be an omission. She has admitted in her evidence that on

30.09.2020, her cousin brother and his friend beat the appellant. She

has denied the suggestion that in order to prevent the appellant from

lodging the report, she lodged false report at the instance of her father.

She has admitted that in the police station, Saurabh and Sahil were

present. Minute perusal of her evidence would show that it is silent

about the specific identity of the accused on the date of the incident.

There is no evidence as to how the family members of the victim

identified the appellant being the person involved in the incident. I

have perused the list of witnesses attached to the charge-sheet by the

Investigating Officer. In the said list of witnesses, name of Kishor Patel

was not mentioned. The record does not indicate that the statement of

Kishor Patel was recorded during the course of investigation. The

evidence of the Investigating Officer (PW6) is silent on this aspect.

13. It would be necessary to consider the evidence of the

mother of the victim (PW3). In her evidence, she has stated that the

incident occurred in the month of September-2020. On that day, she 16 Appeal122.22 (J).odt

returned from work at 6.00 p.m. The victim narrated the incident to

her. She has deposed that the victim told her that the appellant

threatened to defame her if she had disclosed the incident to anybody.

She has further stated that the victim told her that her father would

beat her if the incident is disclosed by her. She has deposed that the

victim told her that the accused had threatened her that if she disclose

the incident to anybody, he would defame her and in that eventuality

her father would beat her. She has stated that when she took the victim

into confidence, she told her that she could identify the accused by

face. Her evidence is silent about identification of the accused either

by name or by description. She has stated that the victim could

identify the appellant by face because he was doing work in the

godown situated in front of their house. If this is the fact, then why the

family of the victim took two days to ascertain the identity of the

appellant. In my view, this is a very important lacuna in the case of the

prosecution. In order to fill this important lacuna, evidence of Kishor

Patel would have been the best evidence.

14. Perusal of the evidence of the victim (PW2) and her 17 Appeal122.22 (J).odt

mother (PW3) in entirety would show that it is not sufficient to prove

beyond doubt the involvement of the appellant in the incident in

question. The appellant on the date of the incident was 46 years old.

The victim was 18½ years old. If the appellant had indulged in this act

on 4-5 occasions before the incident in question, then the victim

would have narrated the same atleast once to her parents. It is not the

case of the prosecution that on any occasion the appellant committed

sexual intercourse with the victim. It is apparent on the face of the

record that the learned Judge has not taken all these aspects into

consideration. The evidence on record is not sufficient to prove the

alleged incident as well as involvement of the appellant in the said

incident. In my opinion, based on such a shaky evidence, conviction

and sentence cannot be maintained. A doubt is created in the mind of

the Court about the incident and involvement of the appellant. It is

true that in such cases, some leeway has to be given while appreciating

the evidence of the victim. Minor omissions and contradictions cannot

be given much weightage. Sympathy of the Courts is always with the

victim. In this case, the victim is mentally retarded. However, the

conviction cannot be based solely on sympathy and moral 18 Appeal122.22 (J).odt

consideration. Minute perusal of the evidence of the victim (PW2)

and her mother (PW3) would show that the same is not sufficient to

prove the guilt of the appellant. Medical Evidence does not

corroborate the evidence of the victim. The important witness Kishor

Patel has not been examined by the prosecution. In absence of

evidence of Kishor Patel, the link of the case of the prosecution on vital

aspect has been broken. In the facts and circumstances, I am of the

view that the learned Additional Sessions Judge has not taken all the

above facts into consideration and came to a wrong conclusion. The

judgment impugned, therefore, cannot be sustained and the same

deserves to be set aside. Hence, the following order :

ORDER

1. The Criminal Appeal is allowed.

2. The judgment and order of conviction and sentence dated

19.01.2022, passed by the learned Additional Sessions Judge, Amravati

in Sessions Case No. 01/2021, is set aside.

3. Appellant - Ajijkha (khan) Bismillakha (khan) is

acquitted of the offences punishable under Sections 376(2)(j)(n) and

506 of the Indian Penal Code.

19 Appeal122.22 (J).odt

4. The appellant be set at liberty forthwith, if not required in

any other crime/case.

5. The appeal stands disposed of in the aforesaid terms.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:30.09.2022 16:04