Dattatray Murlidhar Chavan vs State Of Maharashtra
2023 Latest Caselaw 1387 Bom

                                                 1 of 12                  27-apeal-987-22 (Judgment)


                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO. 987 OF 2022
                                                    WITH
                                     INTERIM APPLICATION NO. 2557 OF 2022

                       Dattatray Murlidhar Chavan                             ..Appellant
                            Versus
                       The State of Maharashtra                               ..Respondent
                                                    __________
                       Mr. Amresh Sharma (appointed Advocate) for Appellant.
                       Mr. S. R. Agarkar, APP for State/Respondent No.1.
                                                    __________

                                               CORAM : SARANG V. KOTWAL, J.

DATE : 9 FEBRUARY 2023

ORAL JUDGMENT:

1. The Appellant has challenged the Judgment and order

dated 17/01/2022, passed by learned Additional Sessions Judge,

Nashik, in Sessions Case No.248 of 2008. The Appellant was

convicted for offence punishable U/s.372 of the Indian Penal Code

(for short 'I.P.C.') and was sentenced to suffer R.I. for ten years and

to pay a fine of Rs.1000/- and in default of payment of fine to

suffer R.I. for three months. He was also convicted for commission

of offences punishable under sections 4 and 5 of the Immoral

Traffic (Prevention) Act, 1956, however, no separate sentence was Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2023.02.13 15:53:41 +0530 Gokhale 2 of 12 27-apeal-987-22 (Judgment)

imposed on him. He was in custody since 09/10/2008 to

16/04/2009 and then from 04/10/2021 up to 17/01/2022. He

was granted set off for that period. Apart from the Appellant, there

were three other accused. All of them were acquitted from all the

charges.

2. This is a strange case where the appellant is made an

accused during investigation of the F.I.R. lodged by himself. He

had approached the police in October 2007 and lodged an F.I.R. on

23/10/2007 mentioning therein that his daughter was induced to

go to Pune by the accused No.2 and the accused No.1. The

allegations in the F.I.R. are that, both these accused caused

disappearance of the appellant's daughter. He suspected that, she

was in some danger and, therefore, he lodged this F.I.R.. It was

registered at Panchavati police station vide C.R.No.380 of 2007,

under sections 363 and 366 r/w. 34 of the I.P.C. During

investigation, the police made the appellant as one of the accused.

3. The prosecution case was that, the victim and her

brother were children of the appellant from his first marriage. He 3 of 12 27-apeal-987-22 (Judgment)

was residing with his first wife and both the children. There are

allegations that the appellant forced his first wife into prostitution.

He was also forcing his daughter similarly. His first wife died

because of the health issues caused by such torture. The

Appellant's daughter was also forced similarly and, therefore, she

and her brother used to run away from the appellant's house to the

relatives of their mother. It is alleged that, on one such occasion

his daughter was given to some stranger by accepting money. On

these allegations the appellant faced the trial.

4. Heard Shri. Amresh Sharma, learned appointed advocate

for the Appellant and Mr. Agarkar, learned APP for the

State/Respondent.

5. During trial, the prosecution examined nine witnesses

including the Appellant's son, the relatives of his first wife, the

Medical Officers and the police officers. The Appellant's daughter

was not examined. The Defence of the Appellant was that the

appellant was made a scapegoat by the police officers because he

was on inimical terms with the police. The appellant had made 4 of 12 27-apeal-987-22 (Judgment)

complaints against some police officers. He had even filed a writ

petition before this Court. It is his case that, his first wife's family

was on inimical terms with him, therefore, all of them were

deposing against him.

6. PW-1 P.I. Dhanraj Dayma was attached to Panchavati

police station at the relevant time. The investigation was entrusted

to him on 11/06/2008. He had arrested the appellant. He had

collected the C.A. reports and had filed the charge-sheet against

the appellant.

7. PW-2 Girjabai Kamble was the sister of the appellant's

first wife Chandrakala. She has deposed that, her mother's name

was Houshabai. The victim and his brother were children of

Chandrakala. The Appellant used to beat them and, therefore, they

went to reside with PW-2's mother Houshabai. After that, since the

appellant continued troubling them, PW-2's brother brought them

to reside with PW-2 herself. It is her case that the appellant's

daughter had told her that the appellant used to beat her and used

to force her in bad profession. He used to demand money from her.

5 of 12 27-apeal-987-22 (Judgment)

PW-2's further case is that the appellant had given burn marks to

his son and used to beat him.

8. PW-3 Ganesh Chavan was the appellant's son. He has

deposed that the appellant was forcing PW-3's step mother i.e. the

appellant's second wife into prostitution. According to this witness,

the appellant had forced PW-3's mother into prostitution. Because

of that, she had died as her health deteriorated because of some

ailment of her uterus. He has deposed that the appellant was

forcing PW-3's sister into prostitution. Therefore, PW-3 had gone to

a different village. His sister i.e. appellant's daughter had followed

him. They stayed with their maternal aunt. They did not want to

go back to the appellant's house. For two to three years he was in

remand home.

In the cross-examination, he stated that, neither he nor

his sister had made any complaint against the appellant. He could

not give details and dates about the harassment caused to them.

He admitted that the relations between the appellant and PW-3's

maternal aunt were not cordial.

6 of 12 27-apeal-987-22 (Judgment)

9. PW-4 Chhababai Kale was another sister of the

appellant's first wife. She has deposed that the appellant had

forced her sister into prostitution. She had died because of the

health issues caused because of that. PW-3 and his sister used to

come back to PW-4 because of harassment caused by the appellant.

This used to happen frequently. After that, PW-4's brother took the

victim to the house of PW-2 and from there the police took her

with them.

In the cross-examination, she admitted that her father

had made a complaint against the appellant.

10. PW-5 Dhanaji Jalak was the police officer who had taken

down the F.I.R. given by the appellant. The F.I.R. is produced on

record at Exhibit 115. In that F.I.R., as mentioned earlier, he

admitted that there were allegations against the accused Nos.1 and

2 in the F.I.R. regarding disappearance of the appellant's daughter.

11. PW-6 Dr. Vaishali Giri had examined PW-3 on

12/11/2007. She had found two injuries; 1) infected wound on

right leg below knee and 2) multiple healed scars on left leg and 7 of 12 27-apeal-987-22 (Judgment)

buttock.

She admitted in her cross-examination that, those

injuries were possible by falling on hard surface. The medical

certificate shows that the healed scars were corresponding to the

burn injuries.

12. PW-7 Dipak Bagul was attached to Panchavati police

station. He had conducted some part of investigation. He had

conducted the spot panchanama and recorded the statements of

the witnesses. He tried to find the victim. He arrested the accused

Nos.1 and 2.

He admitted in his cross-examination that the victim

had run away from her house on 2 to 3 occasions.

13. PW-8 Vishnu Avhad was attached to Panchavati police

station. He conducted the investigation from 30/10/2007. He had

recorded the statements of some of the witnesses. He brought the

victim and PW-3 to the police station. They were not willing to go

back to the appellant. He recorded their statements. According to

him, his investigation revealed that the victim was not abducted by 8 of 12 27-apeal-987-22 (Judgment)

the other accused, but she had run away from the house because

of the harassment caused by the appellant and because of his

attempts to force her into prostitution. According to him, his

investigation revealed that the appellant had taken some money

and had given the custody of the victim to the accused No.1. He

had caused recording of statement of the victim U/s.164 of the

Cr.p.c. He had arrested the accused No.4.

He admitted in his cross-examination that the appellant

used to make complaints against the police officers.

14. PW-9 Dr. Rita Patil had examined the victim. She has

deposed that she did not find any visible external injury on the

person or on the private part of the victim and there were no

recent signs of intercourse.

This, in short, was the evidence of the prosecution.

15. Learned counsel for the appellant submitted that, age of

the victim is not proved, therefore, ingredients of Section 372 of

the I.P.C. are not proved by the prosecution. The victim is not

examined, therefore, there is no evidence against the appellant.

9 of 12 27-apeal-987-22 (Judgment)

The second wife of the appellant is not examined. She could have

thrown light on the facts of this case. PW-3 was unhappy with the

appellant and, therefore, he has given evidence against the

appellant. The statement U/s.164 of Cr.p.c. of the victim cannot be

read into evidence as it is not a substantive piece of evidence. He

submitted that, there is no evidence against the appellant.

16. Learned APP opposed these submissions. He relied on

the evidence of PW-2, PW-3 and PW-4 to contend that, their

evidence is consistent. He also submitted that, PW-3's evidence is

corroborative with his own medical examination showing injuries

suffered by him at the hands of the appellant.

17. I have considered these submissions. As far as injuries

caused to PW-3 are concerned, it is not the subject matter of this

trial and no charge is framed for that.

18. The F.I.R. was lodged by the appellant himself. In that

F.I.R. the allegations were made against the accused Nos.1 and 2.

During that investigation, the investigating agency made the

appellant an accused. The most important lacuna in the 10 of 12 27-apeal-987-22 (Judgment)

prosecution case is non examination of the victim i.e. the

appellant's daughter. Absolutely no reasons are mentioned as to

why she could not be examined. In that sense the prosecution is

clearly handicapped and there is no direct evidence against the

present appellant. As far as evidence of PW-2 and PW-4 is

concerned, it is clearly hearsay evidence and nothing has

transpired in their presence. The grievance, if any, on the part of

the victim could have been proved by the victim herself, but she is

not examined. PW-3 has also not given the details, dates and

particulars of the incidents. His evidence is quite vague. His

evidence shows that he himself was admitted to remand home and

he was unhappy with the appellant. His evidence does not prove

the prosecution case against the appellant that the appellant had

given custody of his daughter to others in exchange of money or

that he had forced the victim into prostitution. No specific details

or instances are mentioned by PW-3 at all.

19. The Investigating Officer has deposed about conclusion

of the investigation, but that cannot prove those facts. So far as he

is concerned, that conclusion remains hearsay as his opinion. The 11 of 12 27-apeal-987-22 (Judgment)

prosecution could have proved the case only through the evidence

of the victim; which is lacking in this particular case. The medical

examination of the victim does not take the prosecution case any

further. It is also important to note that the investigation itself

started on the basis of an F.I.R. lodged by the appellant himself.

The evidence also shows that the appellant was on inimical terms

with the police officers, therefore, his defence of false implication

is probable. As rightly submitted by learned counsel for the

appellant, the statement of the victim recorded U/s.164 of the

Cr.p.c. cannot be taken into consideration in absence of her own

deposition. Considering all these aspects, I find that the

prosecution has failed to prove it's case against the appellant. He

deserves to be acquitted.

20. Hence, the following order:

ORDER

i) The Appeal is allowed.

ii) The Judgment and order dated 17/01/2022,

passed by learned Additional Sessions Judge, 12 of 12 27-apeal-987-22 (Judgment)

Nashik, in Sessions Case No.248 of 2008 is set

aside.

iii) The Appellant is acquitted from all the charges in

Sessions Case No.248 of 2008 before learned

Additional Sessions Judge, Nashik.

iv) The Appellant shall be released forthwith if not

required in any other offence.

v) The Appellant shall execute bail bond under the

provisions of Section 437-A of the Cr.p.c. to the

satisfaction of the Trial Court.

vi) The Appeal is disposed of accordingly.

vii) With disposal of the Appeal, the Interim

Application No.2557 of 2022 does not survive

and it is also disposed of.

(SARANG V. KOTWAL, J.)