Xyz vs Pankaj Bhanudas Hase And Anr
2023 Latest Caselaw 3879 Bom

                                                          appeal-651.19
                                        1



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO.651 OF 2019


 X. Y. Z.
                                                    ...APPELLANT
                                                 (Orig. Complainant)
        VERSUS

 1) Pankaj Bhanudas Hase,
    An adult Indian Inhabitant,
    Mulchandani Wada, Shastri Nagar,
    Parbhani, Maharashtra,

 2) State of Maharashtra,
    Through Government Pleader.
                                                      ...RESPONDENTS

                    ...
      Mr.J.S. Kini Advocate h/f. Mr. K.U. More Advocate for Appellant.
      Mr.R.D. Sanap, A.P.P. for Respondent No.2 - State.
                    ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       Y.G. KHOBRAGADE, JJ.

 DATE OF RESERVING ORDER                     :    29th MARCH 2023

 DATE OF PRONOUNCING ORDER                   :    19 th APRIL 2023



 ORDER [PER SMT. VIBHA KANKANWADI, J.] :

1. Present Appeal has been filed under Section 372 of

the Code of Criminal Procedure by the informant - prosecutrix

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challenging the acquittal of respondent No.1 - original accused

by the learned Additional Sessions Judge, Parbhani on 3 rd May

2019 in Sessions Trial No.40 of 2015 for the offence punishable

under Section 354-A, 376, 511 of the Indian Penal Code. In view

of the letter and spirit of Section 228-A of the Indian Penal Code,

we have masked the name of the informant.

2. In short, the prosecution story is that the informant was

taking education in Veterinary College, Parbhani and at the time

of First Information Report (for short "FIR"), she was in her 4 th

year. Accused was her guide as Assistant Professor. She had

gone to her parents place with prior permission of the accused

on account of Diwali vacation on 27 th September 2014. She was

asked to return by 27th October 2014, accordingly, she returned

and met with accused in the clinic on 28 th October 2014 and then

the accused had called her in the noon time for correction of

books. When informant went in the noon time, accused told her

to come on the next day morning. She went to clinic on 29 th

October 2014 and at that time the peon of the College informed

the informant that the accused is calling her in his cabin. She

went to the cabin where accused told her to correct the record.

Accordingly she corrected the record, but while she was carrying

out that work, accused made inquiry about the arrangements for

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her lunch and how many students were there in the hostel.

Informant answered those questions and then accused invited

her to his house on the next day for lunch. Informant was

informed again by the peon when she was in the clinic that

accused is calling her in his cabin and accordingly she went to

the cabin around 12.30 p.m., on 30th October 2014. Accused told

her to proceed towards his house by walk and he would pick up

her in his car from a distance. Accordingly, informant went

outside the gate of the university / college and she was picked

up by the accused in his car from a distance. They went to his

house. Informant could notice that a lady had come out of

house of the accused and gone to the house in front, before they

entered the house of the accused. The informant as well as

accused had lunch together and when she was about to leave,

accused offered her ice-cream. It is alleged that when she was

eating ice-cream, she was sitting on the bed which was in the

hall. She was sitting in the corner whereas accused was sitting

on the other side corner of the bed. She has then stated that

thereafter the accused catch hold of her hands and dragged her

towards him. Accused had tried to kiss her and demanded for

sex. The accused was trying to hug her and she was saying no

but when the accused tried to do the same thing, she shouted

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loudly and therefore, accused went in another room. Informant

then returned to her hostel by taking auto rickshaw and narrated

the incident to the warden of the hostel. On the next day the

informant went to Pune by taking a bus and called her parents.

Thereafter she went to Thane where her parents reside and told

the incident to her parents. She came to Parbhani along with her

parents on 5th November 2014 and lodged the FIR.

3. It is to be seen from the record that on the basis of the

said report, offence vide Crime No.247 of 2014 came to be

registered and investigated.

4. The prosecution has examined in all nine witnesses to

bring home the guilt of the accused. After it was seen that there

was incriminating evidence, the statement of the accused was

recorded under Section 313 of the Code of Criminal Procedure

and an opportunity was given to him to examine witnesses in

defence. Thereupon, the accused has examined five witnesses in

his defence. After considering the evidence on record and

hearing both the sides, the learned Additional Sessions Judge,

Parbhani acquitted the accused on 3th May 2019, hence the

present Appeal.

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5. We have heard learned Advocate Mr. J.S. Kini holding for

learned Advocate Mr. K.U. More for the appellant through video

conference and also the learned APP Mr. R.D. Sanap for

respondent No.2. We have considered the matter at this stage

for admission and also perused the record and proceedings.

6. It has been vehemently submitted on behalf of the

appellant that the learned trial Judge has not appreciated the

evidence properly. The testimony of the informant was sufficient

to inspire confidence and her behaviour after the incident stood

supported by the testimony of her mother, PW-2 as well as PW-3

Dr. Bhagyashree Bhadane, who was warden of the girl's hostel.

Learned Advocate for the appellant has taken us through the

evidence of these three witnesses and pointed out the

corroboration. He submitted that accused was in fact the local

guardian of the informant as per the rules of the college. The

informant and her mother had previously gone to the house of

the accused and at that time they had found the wife of the

accused in his house. Informant, therefore, under the impression

that the wife of the accused would be at home, had gone to his

house for lunch as she was invited. The girl was required to

struggle to rescue herself from the clutches of the accused and

she was in frightened condition. When she went back to the

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hostel, after seeing warden she started crying. Warden PW-3

Bhagyashree had then asked informant as to what had

happened, then she had narrated the entire incident to the

warden. PW-3 Bhagyashree asked informant whether she would

lodge complaint with the police station or the college authorities,

informant told her that she will not do anything unless she

informs it to her parents. Informant has then sent message to

her mother stating that if someone misbehaves with her

daughter then what she would do and her mother sent her

message that then her mother would become Mary Kom.

Informant has not told anything to her mother on phone but

then on the request of PW-3 Dr. Bhagyashree, the informant

stayed on 31st October 2014 whole day and then as she could

not get reservation for Mumbai, she went to Pune by private bus.

Her parents picked her up and then in the car she narrated the

entire incident to her parents. This subsequent conduct would

support the testimony of the informant and it ought to have

been properly appreciated by the learned trial Judge. The

learned trial Judge appears to have got swayed away with the

evidence adduced in defence. It is the defence story that there is

bio-metric machine installed for the staff in the college and

therefore, whenever any person from the staff resumes his duty,

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he will have to impress his thumb on the bio-metric machine and

whenever he is going out, has to do the same. DW-2 Rushikesh

Kamble has produced print out about the record of the accused

on 30th October 2014 which showed that he came to the office on

10.22 a.m. and left around 17.50 hours, but in the cross-

examination he has admitted that he has no information if any

employee leaves office without punching bio-metric machine. It

is also the defence of the accused that children of PW-3

Bhagyashree were found in the room of the informant and the

said fact was revealed through the accused. The college had

taken disciplinary action in respect of indiscipline in the hostel

against the informant and she was directed to pay amount of

Rs.250/- as fine. Informant as well as PW-3 Bhagyashree had,

therefore, reason to implicate the accused. Learned trial Judge

failed to consider that it would have been the act of the college

but why the girl will make such kind of allegations by

compromising with her status. The sole evidence of the girl

ought to have been believed. The matter therefore, requires

admission as injustice has been done to the informant.

7. At the outset, it is to be noted from the record that after

the charge was framed against the original accused on 21 st July

2016, the examination-in-chief of PW-1 informant started on 3 rd

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September 2016. After asking about 4 to 5 questions, learned

APP requested for opening the statement which was recorded by

the Magistrate under Section 164 of the Code of Criminal

Procedure which appear to be under the sealed envelope, on a

point that it is required to refresh the memory of the witness.

This is surprising move by the prosecution. Question of showing

statement under Section 164 of the Code of Criminal Procedure

of the witness would arise at the fag end of the examination-in-

chief i.e. after the witness narrates the entire story. Here before

it could be started such request is made. It shows the intention

that under the guise of refreshing the memory, the prosecution

intended that the girl should go through her statement under

Section 164 of the Code of Criminal Procedure and depose

accordingly. The record is not clear on this point as to whether

informant was allowed to go through the said statement. The

matter appears to have been got adjourned till 5 th November

2016 and thereafter on 5th November 2016 further examination-

in-chief proceeded. The note in the beginning itself states that

the witness is not conversant with Marathi and therefore she

requested her deposition to be recorded in English language. At

that time APP as well as defence Advocate had no objection to

record the evidence of the said witness in English and therefore,

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the deposition was recorded in English only. Thereafter her

examination-in-chief was completed. One question was asked in

the cross-examination and the cross-examination was adjourned

on the request of the defence Advocate. Another surprising fact

then is, the learned trial Judge started with the recording of

evidence of PW-2 mother when the informant PW-1 was not

discharged completely from the witness box. Then examination-

in-chief of PW-2 was recorded. Two questions were asked in the

cross-examination and further cross-examination was adjourned

till next date. At the cost of repetition, we would say that the

said part of the deposition of PW-2 has also been recorded on 5 th

November 2016. In the meantime, on that day itself the FIR

came to be exhibited in the testimony of PW-1. Thereafter the

matter was adjourned on 9th December 2016 and to the utter

surprise, learned Additional Sessions Judge passed an order

below Exhibit-1 stating that the matter was kept for cross-

examination but it is revealed that the complaint i.e. FIR was

lodged as well as statement of PW-2 under Section 161 of Code

of Criminal Procedure was recorded by police in Marathi, they

both were not conversant with Marathi and told that they had

narrated their statements in English but police have recorded it

in Marathi, they are unable to speak Marathi. The learned

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Additional Sessions Judge further observes that though he had

recorded the testimony of PW-1 and PW-2 only in English

language, the problem arose while recording cross-examination

in respect of contradictions and omissions. He has stated that

mandatory provisions of the sessions trial are that the deposition

should be recorded in Marathi and then it should be translated in

English, he will not be in a position to translate the same in

English or vice-versa and therefore, he cancelled the previous

evidence of both the witnesses and directed that the case should

start de-novo by recording the evidence of the witnesses afresh

in Marathi and translate it in English. Learned Additional

Sessions Judge, to our mind, had no authority to start the

recording of evidence de-novo. All those things ought to have

been considered in the beginning itself when the trial Court

started with the examination-in-chief.

8. Section 276 of the Code of Criminal Procedure deals with

record in trial before Court of Session. It states that in all trials

before a Court of Session, the evidence of each witness shall, as

his examination proceeds, be taken down in writing either by the

presiding judge himself or by his dictation in open Court or,

under his direction and superintendence, by an officer of the

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Court appointed by him in this behalf. Further Subsection (2) of

Section 276 of the Code of Criminal Procedure provides that such

evidence shall ordinarily be taken down in the form of a

narrative, but the Presiding Judge may, in his discretion, take

down, or cause to be taken down, any part of such evidence in

the form of question and answer. Section 277 of the Code of

Criminal Procedure deals with language of record of evidence. It

prescribes that in every case where evidence is taken down

under section 275 or section 276, - (a) if the witness gives

evidence in the language of the Court, it shall be taken down in

that language; (b) if he gives evidence in any other language, it

may, if practicable, be taken down in that language, and if it is

not practicable to do so, a true translation of the evidence in the

language of the Court shall be prepared as the examination of

the witness proceeds, signed by the Magistrate or Presiding

Judge, and shall form part of the record. The language of the

Court in Maharashtra is Marathi. When the trial Judge had

started recording of the evidence on 3 rd September 2016, there

was no such request or information to the Presiding Officer that

the girl is not conversant with Marathi. But on the next date i.e.

5th November 2016 such request was made and then the

evidence was recorded in English only.

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9. The order below Exhibit-1 passed by the learned Additional

Sessions Judge states that the case should start de-novo by

recording the evidence of the witnesses afresh in Marathi and

translate it in English. When the witnesses say that they were

not conversant with Marathi, what difficulty they had expressed

was that they are not good at grammar. It appears to be not the

case of the witnesses that they do not understand Marathi. If we

consider the FIR Exhibit-22, there is no statement that it was

narrated in English and then it was taken down in Marathi.

Rather the note shows that the informant had gone through the

FIR and found out to be correct and then she has signed it. It is

also to be noted that when it was decided by the learned

Presiding Officer on 5th November 2016 that the evidence would

be recorded in English only, the accused had no objection, but

when it came to passing of the order by the learned Presiding

Officer on 9th December 2016, it appears that the accused was

not heard and abruptly without there being any provision for

recording the evidence de-novo, it has been so started. We take

this step on the part of the learned Additional Sessions Judge to

be prejudicial to the accused.

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10. Much has been said about the procedure that has been

adopted is prejudicial to the accused, but now keeping that point

aside for a moment, we would consider, whether the prosecution

had proved its case beyond reasonable doubt and whether the

Judgment of acquittal passed by the learned trial Judge is

perverse, requiring interference at the hands of this Court. PW-1

has stated about the incident, rather as compared to her FIR,

there is much exaggeration. However, informant has not

explained as to why she was required to go for lunch to the

house of the accused when there was mess in her hostel. In the

submissions, the learned Advocate for the appellant has tried to

submit that since many girls residing in the hostel had gone for

education tour and as informant in this case had not gone, there

was no arrangement for lunch in the mess. We could not find

such specific statement in the testimony of the informant or

PW-3 Bhagyashree. PW-3 Bhagyashree has rather stated that

there were 75 girls in the hostel at the relevant time, which

would be definitely consisting the girls taking education in

various education years. PW-1 informant has stated that her

batch-mates had gone to the education tour. That means, the

education tour was for the 4th year students. Rather informant

says that on 28th October 2014 she had gone to the hostel for

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lunch at about 1.00 p.m. She says that she was taking lunch

with hostel warden. Therefore, if she could have got lunch on

28th October 2014, she could have got it on 30 th October 2014

also. She had not informed to PW-3 Bhagyashree that she would

be leaving the college premises in the afternoon period for any

reason.

11. One more important aspect that has been properly

considered by the trial Judge is that the incident is alleged to

have taken place on 30th October 2014 and according to the

informant, she had narrated it immediately to PW-3

Bhagyashree. Though PW-3 Bhagyashree is supporting the

informant, she herself had not tried to inform the said fact to

any of the superiors or not tried to take the informant to police

station. Informant says that though PW-3 had asked, as to

whether she wants to lodge the FIR and informant told that she

would not do anything unless she tells the facts to her parents.

Informant also deposes about giving SMS to her mother and the

mother also supports to receive such message. Of course there

is no evidence collected by the investigating officer in respect of

the same, but still that SMS was vague. It was in respect of

misbehaviour of someone with the informant or her daughter

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and in that case what the mother will do. Of course the mother

would say that she would protect the daughter in whatsoever

manner. But surprisingly PW-2 has not stated as to why she did

not give a phone call to the informant and tried to extract from

her as to what has happened. She has not stated that as the

informant was not willing to disclose anything, she had tried to

contact PW-3. PW-2 has not tried to come down to Parbhani and

it has come in the cross-examination that PW-2 is a Gazetted

Officer in Central Railway. The girl then chooses to accept the

request of PW-3 Bhagyashree to stay in the hostel on the next

day also and after the cultural programme was over, she says

that she left for Pune as she could not get the reservation for

Mumbai. Informant has stated that her parents picked her up on

1st November 2014 in the morning and in the car she disclosed

entire episode to the parents. All the three of them had not

decided to come to Parbhani immediately to lodge the report or

for making an inquiry. But the FIR came to be lodged on 5 th

November 2014. Thus, there is inordinate delay in lodging the

FIR, which has not been explained by the prosecution.

12. In the cross-examination of PW-1 informant has admitted

that complaint was lodged against her for keeping two children,

i.e. aged 3 and 5 years respectively, in her room and an inquiry

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was conducted against her alleging that her said behaviour

amounted to indiscipline in the hostel. She also admits that three

advisers committee was established and accused was one of

them. Another member of the said committee was wife of the

accused. The said committee made inquiry against her. The said

committee held her guilty and punished her to pay fine of

Rs.250/-. The copy of the order imposing fine on her, has been

produced at Exhibit-27. Taking into consideration these

admissions, we find that the learned trial Judge was justified in

holding that there was substance in the point raised by the

defence that there was element of false implication of the

accused. Here the learned Advocate appearing for the appellant

tried to submit that those two children, aged 3 and 5

respectively, were in fact the children who had come just to play

with the girls in the hostel and they were from the staff quarters

or nearby area. We would like to say that we are not going into

much more details about the same. Suffice it to say that there

was an inquiry held by a committee, of which the accused and

his wife were the members. The said incident had taken place

much prior to the present incident and the order imposing fine

was passed on 28th December 2012. It has come on record that

the wife of the accused, who was serving in the same college

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earlier, was later on transferred to the college at Akola. It is not

the case of informant that absence of the wife of the accused

from the college as well as the house was not known to her. If

wife of the accused was in the same college, then definitely the

informant should have knowledge about her transfer.

13. The learned trial Judge has also noted that the sole

testimony of prosecutrix can also be relied for convicting an

accused if the testimony is trustworthy. However, for the

aforesaid reasons and also the reasons those have been stated

including the contradictions and omissions, the learned trial

Judge found that the testimony of the informant - prosecutrix is

not inspiring confidence and therefore he has acquitted the

accused. We do not find the impugned Judgment perverse or bad

in law in any manner. No case is made out for admitting the

Appeal.

14. The Appeal, therefore, stands dismissed at the admission

stage.

 [Y.G. KHOBRAGADE]                 [SMT. VIBHA KANKANWADI]
       JUDGE                                JUDGE

 asb/APR23