Bombay High Court
The State Of Maharashtra vs Apparao S/O. Somaji Sonkamble on 12 July, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 3 OF 2019
The State of Maharashtra,
Through P. S. I., Railway Police Station,
Ahmednagar. ... Applicant.
Versus
Apparao S/o. Somaji Sonkamble,
Age : 42 years, Occu. : Labour,
R/o. : At Post Rui, Tq. Kandhar,
Dist. Nanded. ... Respondent.
...
Mr. A. V. Deshmukh, APP for Applicant - State
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 12th JULY, 2023
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. This leave application to prefer appeal on behalf of
State is in the backdrop of judgment and order of acquittal passed
by learned 7th Additional Sessions Judge, Ahmednagar, dated
01.10.2018 in Sessions Case No.156 of 2017 by which present
respondent has been acquitted from charges under sections 363,
376 of Indian Penal Code (IPC) read with section 7 punishable
under section 8 of the Protection of Children From Sexual Offences
Act, 2012 (POCSO Act).
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2. According to learned APP charge was serious. That, a
minor was raped. Her testimony is on record. She was initially
kidnapped and thereafter forcibly raped. There is evidence in the
form of PW2 Shivaji suggesting minor being kidnapped from lawful
custody. Medical evidence clearly suggested sexual abuse and
therefore, it is submitted that, there was suffcient evidence
warranting conviction. That, however unfortunately learned trial
Judge has acquitted accused on the sole count of identifcation of
accused and that no T.I. parade was held. It is pointed out that
there are several perverse fndings which are contrary to the
record and he took us through the entire evidence. According to
learned APP, as the judgment of acquittal is not sustainable in the
eyes of law, so it is submitted that State deserves leave to question
such judgment by way of appeal.
3. In the light of above submissions, we have examined
the judgment under challenge. Victim is said to be around 2 1/2 to 3
years old. It seems that PW1 Anisa, owner of the agricultural land
where minor was found and police were informed. According to
PW2 Shivaji, while he was collecting wood, he saw a minor being
taken by a man on the shoulder. PW3 Pravin is a spot panch and
panch to seizure of clothes. PW4 Karan, panch to seizure
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panchanama of SIM cards. PW5 Pramod, medical expert who
examined victim and claims to have noticed abrasions, redness
over around labia minora and perinatal region, respectively. PW6
Vidya, doctor who examined respondent-accused on the point of
potency and injuries on person. PW7 Kishor, panch to recovery
and discovery at the instance of accused i.e. spot. PW8 is the father
and according to him, he had gone to railway station with his
family comprising of wife and children including victim aged two
years. That, one unknown person came on the railway platform
and there were talks between him and said person. While his wife
was cooking and while he himself went to fetch water and when he
returned, victim was missing and so he informed railway police
and lodged missing report. PW9 Lusi is the Investigating Offcer.
4. Thus, here prosecution came with a case of unknown
person kidnapping a minor and sexually assaulting her. Guardian
custodian father PW8 gave evidence about coming across unknown
person on the railway station and he interacting with him.
Therefore, apparently said person is stranger to him. Evidence of
PW2 Shivaji merely suggests the girl being taken, but even for him,
said person was unknown. Under such circumstances, it was
incumbent upon investigating machinery to get identifcation of the
unknown person established. In the report, complete details of the
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stranger are not given. Accused/respondent seems to be identifed
for the frst time in the dock. Charge-sheet shows that the accused
were arrested on 17.03.2017. However, surprisingly Investigation
Offcer has not undertaken the exercise of holding T.I. parade.
Precisely, failure to conduct parade itself has rendered
involvement of accused doubtful. Unfortunately, taking into
account the age of the victim, it is doubtful whether it would have
been possible for her to identify accused. Consequently, when very
identifcation of accused is not cogently established, mere arrest of
accused itself is not suffcient to fasten the guilt. Mother of victim
is also unfortunately not examined. When there is no evidence
about actual identifcation of culprit, it is not open for prosecution
to attribute role of kidnapping and thereafter raping the minor.
Case of prosecution has suffered serious dent on account of its
failure to fx identity and hold T.I. parade. Mere availability of
medical evidence itself is not suffcient to fasten the guilt. It has to
be frmly and cogently demonstrated beyond reasonable doubt that
none other than accused is solely responsible for the offence.
5. Learned trial Judge has precisely appreciated the
evidence of prosecution in the backdrop of above serious shortfalls
and discrepancies which have occurred during investigation. More
graver the offence, stricter is the proof that is required. Here, there
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is weak or no evidence about arrested accused to be sole culprit.
Consequently, no error has been committed by learned trial Judge
in refusing to accept the case of prosecution and acquitting
accused/respondent. We do not fnd any merit in this application
and in the light of nature and quality of evidence, no fruitful
purpose would be served by granting the relief of leave.
Consequently, we proceed to pass following order :-
ORDER
(i) Application for leave to appeal by State is hereby
rejected.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
