Bombay High Court
The State Of Maharashtra vs Hanumant Vithoba Bangar on 13 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. 23 OF 2020
The State of Maharashtra,
Through Police Station Offcer,
Shirur Police Station,
Tq. Shirur, Dist. Beed. ... Applicant
Versus
Hanumant Vithoba Bangar,
Age : 25 years, Occu. : Agri. & Labour,
R/o. Khokarmoha, Tq. Shirur, Dist. Beed. ... Respondent
(Orig. Accused)
...
Mr. A. V. Deshmukh, APP for Applicant - State
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 13th JULY, 2023
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. This leave application arises out of judgment and order
of acquittal passed by learned Additional Sessions Judge, Beed
dated 04.11.2019, thereby acquitting respondent from charges
punishable under sections 376(2)(L), 323 and 504 of Indian Penal
Code (IPC).
2. Learned APP in support of relief of leave strenuously
submitted that here is a case of sexual assault and rape on a
differently abled victim who was both deaf and dumb. That,
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accused respondent had taken disadvantage of her such condition
and had forcible sexual relations with her. It is pointed out that, in
the light of natural disabilities, evidence of victim was got recorded
by taking services of expert interpreter, during which the
occurrence has clearly been unfolded. That, prosecution had
examined medical experts who had occasion to examine victim. It
is vehemently submitted that victim was impregnated and during
advance pregnancy, the incident came to the light. Mother of the
victim has taken her to the hospital and pregnancy was detected.
That, DNA profle on examination, confrmed accused to be
biological father. Thus, it is submitted that with such quality of
evidence on record, prosecution had successfully brought
occurrence of the offence. However, it is submitted that, learned
trial Judge reached to a patently erroneous fnding that evidence of
victim does not inspire confdence and that the said act was with
consent of the victim. Thus, it is submitted that there is apparent
illegality and perversity in acquitting the accused in serious
offence and so there being a strong case in appeal, he prays for
leave to prefer appeal.
3. After hearing learned APP, with his able assistance, we
have gone through the oral and documentary evidence adduced
before the trial Judge. It is seen that, PW1 brother unfortunately
has not supported prosecution. PW2 Mahesh seems to be the
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interpreter, who claimed to have acquired M.A. Psychology
qualifcation and he further claims to have completed special D.Ed.
for mentally retarded person. Prosecution seems to have extracted
his services in recording evidence of victim in the court. The
interpretation is obviously on the basis of signs and gestures; PW3
evidence of interpreter himself; PW4 father of victim; PW5 Amol
panch to panchanama; PW6 Dr. Babasaheb, medical expert; PW7
Kalyan carried of DNA sample to Forensic Science Laboratories,
Kalina. PW8 Dr. Rajshree, PW9 Dr. Nuzhat, PW10 Dr. Pushpa also
medical experts, who have conducted medical examination of
victim; tendered MLC papers and date of birth of new born;
extracted sample for DNA of the baby, respectively. PW11 Neha
Chemical Analyzer; PW12 Dr. Santosh, Radiologist; PW13 Ajay,
staff of Snehalaya, PW14 Tanaji, Investigating Offcer.
4. In the light of nature of charge, evidence of victim is
crucial. Unfortunately, here victim is a differently abled person.
Her age is revealed to be more than 20 years. Parents and medical
experts confrmed victim to be deaf and dumb. Therefore, services
of PW2 Mahesh seem to have been secured for recording evidence
of victim. In such evidence, which was recorded on the basis of
special language, i.e. signs and gestures, learned trial Judge has
recorded evidence in presence of the victim. Therein it has come
that after pressing neck accused committed rape. It is pertinent to
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note that, while cross-examination of victim, more particularly in
para 4 and 5 it seems to be admitted by defence that accused had
indulged in alleged act. The manner of suggestions put in cross-
examination are suffcient to infer that there is no serious dispute
and challenge to the evidence of victim. Learned trial Judge has
noted that, victim had identifed the accused by pointing fngers
and making gestures. Therefore, there was material available for
appreciation before trial court.
5. We have gone through the impugned judgment. In our
opinion, after appreciating the evidence of victim, her father and
other witnesses, learned trial Judge has held that victim is around
22 to 23 years of age. That, she was capable of understanding what
is good and what is bad and as such she has suffcient intelligence
to know the consequences. In para 32 of the Judgment, learned
trial Judge seems to have opined that conduct of victim after the
occurrence is not natural one. That, the act was not forcible, but
consensual one and that she was acquainted with the accused.
6. In our opinion, there is no proper appreciation of
evidence as is required by law. Prima facie, we are convinced that
when victim was a differently abled person, the approach for
appreciation of such evidence was expected to be cautious and with
complete circumspection. We fnd that, this aspect is patently
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missing in the judgment under challenge. Here, there is
overwhelming medical evidence. DNA analysis had confrmed
paternity of the new born. Resultantly, prima facie, there was
suffcient material regarding the offence. Learned trial Judge had
failed to appreciate the available evidence in the light of nature of
allegations and failed to apply settled legal position. In our opinion,
it is a ft case to be dealt in appeal for re-appreciation and re-
analysis. Consequently, State succeeds in making out a case for
grant of leave and we accordingly proceed to pass following order :-
ORDER
(i) Application stands allowed.
(ii) Leave is granted to the prosecution to fle Appeal.
(iii) Registry to register the Appeal.
(iv) Appeal stands admitted.
(v) Call record and proceedings.
(vi) Action under section 390 of the Code of Criminal
Procedure be taken against the respondents to the
satisfaction of the trial court.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
