Sagar Ramesh Jadhav vs State Of Maharashtra And Anr
2023 Latest Caselaw 2035 Bom

                                                1 of 13              13-apeal-115-23 (Judgment)


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO. 115 OF 2023

                      Sagar Ramesh Jadhav                                 ..Appellant
                           Versus
                      The State of Maharashtra & Anr.                     ..Respondents

                                                   __________

                      Ms. Hema Mahesh Whaval (Appointed Advocate) for Appellant.

                      Mr. S. R. Agarkar, APP for State/Respondent No.1.

                      Mr. Swapnil Ovalekar (Appointed Advocate) for Respondent No.2.
                                                __________

                                              CORAM : SARANG V. KOTWAL, J.

DATE : 1 MARCH 2023

ORAL JUDGMENT:

1. The Appellant has challenged the Judgment and order

dated 17/01/2022, passed by learned Extra Joint Additional

Sessions Judge, Karad, in Special Case No.65 of 2018. The

Appellant was convicted for commission of offence punishable

U/s.354-A of the I.P.C. and was sentenced to suffer R.I. for one

year and to pay a fine of Rs.10000/- and in default of payment of

fine to suffer R.I. for three months. He was also convicted for VINOD BHASKAR GOKHALE commission of offence punishable U/s.7 r/w. Section 8 of the Digitally signed by VINOD BHASKAR GOKHALE Date: 2023.03.03 15:55:19 +0530 Gokhale 2 of 13 13-apeal-115-23 (Judgment)

Protection of Children from Sexual Offences Act (hereinafter

referred to as 'POCSO Act') and was sentenced to suffer R.I. for

three years and to pay a fine of Rs.10000/- and in default of

payment of fine to suffer R.I. for six months.

Both the substantive sentences were directed to run

concurrently. The appellant was acquitted from the charges of

commission of offence punishable U/s.11 r/w. Section 12 of the

POCSO Act.

2. The prosecution case is that the victim in this case was

about 12 years of age. Her date of birth was 10/06/2006. The

incident had occurred on 29/09/2018. On that day, at around

12.00p.m. the victim had gone to a sugarcane field. It is alleged

that the appellant came from behind, took her in his arms and was

trying to make her fall on the ground. She rescued herself and ran

away. She met one woman from the village. Both of them came

back. The victim's father was informed. On the next day, he went

to the police station and lodged the F.I.R. vide C.R.No.440 of 2018

at Karad Taluka police station. The investigation was carried out.

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The spot panchanama was conducted. The statements of the

witnesses were recorded. The statement of the victim and her

father were recorded U/s.164 of the Cr.p.c. by learned J.M.F.C.,

Karad and at the conclusion of the investigation the charge-sheet

was filed.

3. Heard Ms. Hema Whaval, learned appointed advocate

for the Appellant, Shri. Agarkar, learned APP for the

State/Respondent No.1 and Shri. Swapnil Ovalekar, learned

appointed advocate for the Respondent No.2.

4. During trial, the prosecution examined five witnesses

including the victim, her father, the panchas for the spot

panchanama and two police officers.

5. The defence of the appellant was of total denial. During

trial, the victim and her father did not support the prosecution

case. They were declared hostile. However, learned Trial Judge

relied on their statements given before the Magistrate and before

the police and relying on those statements, convicted and

sentenced the appellant.

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6. The victim is examined as PW-2. She has deposed that,

her date of birth was 10/06/2006. She had gone to the police

station on 30/09/2018. She had told the police that, on the

previous day the appellant had taken her in his arms in an

agriculture field. Her statement was recorded by J.M.F.C. at Karad.

She accepted that her statement was read-over to her and

explained to her and after that, she had put her signature on it.

That statement recorded U/s.164 of the Cr.p.c. was produced on

record at Exhibit 22. She accepted that, she had shown the spot of

incident and the police had taken photographs of the spot. She

identified the appellant in the court. However, having said this, she

further deposed that the incident on the previous day of going to

the agricultural field was not true. She also denied that the

appellant had taken her in his arms in the agricultural field. The

victim did not support the prosecution case, therefore, she was

declared hostile and was cross-examined by learned APP.

In the cross-examination conducted by the prosecution,

she stated that her father had lodged the complaint about the

incident before the police. She volunteered that her father had told 5 of 13 13-apeal-115-23 (Judgment)

her that they were on inimical terms with the appellant and that

she should depose against the appellant before the police and

before the J.M.F.C. She further answered that her father had told

that the matter was settled with the appellant. She denied the

incident which was put to her in the form of suggestion. She

denied that, on the previous day of lodging of the F.I.R., she was

watching T.V. and her friend's brother told her to go to the

agricultural field as her friend had called her. She denied that, she

went to that field. She denied that, after going to the field the

appellant came from behind and took her in his arms and tried to

make her fall on the ground. She denied that, she pushed him and

came out of the sugarcane field and saw a neighbour. She further

denied that, she had disclosed this incident to that neighbour who

brought her home. She accepted that she had stated before the

J.M.F.C. that the appellant had taken her in his arms in the field.

She was also cross-examined on behalf of the

appellant. That time she accepted that, there was a quarrel in the

evening on 29/09/2018. At that time, the appellant had

threatened her father that he would harass the victim and her 6 of 13 13-apeal-115-23 (Judgment)

siblings and that he would kill the victim's uncle. She accepted

that, because of those threats her father had lodged the complaint

against the appellant. She further accepted that, she had not gone

to an agricultural field and that there was no question of the

appellant coming from behind and taking her in his arms. She

further accepted that her father had brought her to the Court of

the J.M.F.C. She admitted that her father had told her to depose

before the J.M.F.C. that the appellant had committed this offence.

Thus, it can be seen that the victim had not supported

the prosecution case. Her evidence is full of contradictions and is

not reliable at all.

7. PW-3 was the victim's father. He has produced the

victim's birth certificate at Exhibit 24 showing her date of birth as

10/06/2006. He denied that, on 29/09/2018 when the victim was

watching T.V., her friend's brother told her to go to the agricultural

field as her friend was waiting there. He denied that the victim had

gone to the field and that the appellant had committed that

offence. He was obviously not supporting the prosecution case, 7 of 13 13-apeal-115-23 (Judgment)

therefore, he was declared hostile. Learned APP was permitted to

cross-examine him.

In the cross-examination, he stated that, he had gone

to the police station as the appellant had threatened him that he

would harm his children and had abused his brother. This witness

denied the suggestion that, on his enquiries, his daughter i.e. the

victim told him that the appellant had caught her and had taken

her in his arms. He denied the suggestion that, to save the

appellant he was deposing falsely. But he accepted that, on

10/10/2018 the J.M.F.C. had recorded his statement and he had

put his signature on his statement after it was read over to him. He

accepted that, he had described the incident in that statement and

had also stated that, in the evening on the date of incident the

appellant had come to his house and had threatened and abused

him. The statement of this witness recorded U/s.164 of the Cr.p.c.

is produced on record at Exhibit 25. He was asked about his

contrary statement in the F.I.R. lodged by him. Those portions

were marked as portion 'A' and 'B'. He denied having stated those

portions before the police.

8 of 13 13-apeal-115-23 (Judgment)

This witness was also cross-examined by the defence.

In that cross-examination, he stated that the appellant had abused

him on 29/09/2018 and that there was a quarrel between him and

the appellant. He further stated that, before going to the Court of

J.M.F.C. the police had told him as to how to depose before the

J.M.F.C. Court. At that time, the police had told him that his

daughter was caught by the appellant and he was trying to make

her fall down. He accepted the suggestion that the incident had

not taken place.

Thus, it can be seen that, even this witness is not

reliable and he is giving contrary answers. He has denied the

occurrence of the incident when he had deposed before the Trial

Court.

8. PW-1 Sambhaji Jagtap was a pancha for the spot

panchanama. He deposed that, on 01/10/2018 the panchanama

was conducted at 9.30a.m. in a field in that village. The spot

panchanama is produced on record at Exhibit 20.

In the cross-examination, he accepted that the 9 of 13 13-apeal-115-23 (Judgment)

panchanama was already written before he had gone to the field.

He did not know who were the persons present at that time. He

accepted that, only photos were taken when he had put his

signature on the panchanama.

9. PW-4 Police constable Sunanda Kamble was on duty at

the police station when PW-3 had gone to the police station to

lodge his complaint. She proved the contents of the portion

marked 'A' and 'B' from the F.I.R. which were contrary to PW-3's

deposition in the Court. The complaint i.e. F.I.R. was produced on

record at Exhibit 28. The offence was registered vide C.R.No.448

of 2018 at Karad Taluka police station. Those portion marked 'A'

and 'B' were in respect of the incident of the victim going to the

field and the appellant holding her from behind.

10. PW-5 A.P.I. Rathod was the investigating officer. He

proved the contents of PW-3's supplementary statement which is

produced on record at Exhibit 30. He had conducted the spot

panchanama. He had sent PW-2 and PW-3 to the court of J.M.F.C.

for recording their evidence. After completion of the investigation, 10 of 13 13-apeal-115-23 (Judgment)

the charge-sheet was filed by him. His cross-examination was full

of suggestions which he had flatly denied.

11. As mentioned earlier, the defence of the appellant was of

total denial. According to him, there was a quarrel between him

and PW-3 and, therefore, PW-3 filed a false case using his

daughter; the victim.

12. Learned counsel for the appellant submitted that the

prosecution case is not reliable. The main witnesses i.e. PW-2 and

PW-3 have not supported the prosecution case. They have also

given the reasons why they had stated about the incident before

the J.M.F.C. and before the police. She submitted that, they have

accepted that, there was a quarrel between the appellant and PW-3

which had resulted in filing of this false F.I.R.

13. Learned APP, as well as, learned counsel for the

Respondent No.2 relied on the contrary statements brought on

record in the form of statements of the witnesses PW-2 and PW-3

recorded U/s.164 of the Cr.p.c. They also relied on the

contradictory version from the F.I.R.

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14. I have considered these submissions. Learned Trial Judge

has relied on the statements of the witnesses recorded U/s.164 of

the Cr.p.c. and also on the F.I.R. given by PW-3. The victim and her

father have not supported the prosecution case. The victim has

categorically denied the occurrence of the incident. She, in fact,

has given explanation as to why this false F.I.R. was lodged.

According to her, there was a quarrel between the appellant and

her father. The appellant had threatened her father and, therefore,

this complaint was lodged. She has stated that, she had given her

statement because her father had told her to give that statement.

15. Similar is the case with the evidence of PW-3. He has

also not supported the prosecution case. He has also accepted that,

there was a quarrel between him and the appellant on the previous

evening and on the next day he went and lodged the F.I.R. He also

has denied the occurrence of the incident or that his daughter had

told him anything about the incident.

16. Thus, everything depends on the quality of the evidence

of PW-2 and PW-3 and in this case, I find that they are not reliable 12 of 13 13-apeal-115-23 (Judgment)

witnesses at all. They have changed their versions at the

investigation stage and at the stage when their deposition was

recorded before the Trial Court. They have also accepted that,

there was a quarrel between the appellant and PW-3. Thus, I find

that they are totally unreliable witnesses and, therefore, based on

their statements recorded during investigation; either U/s.161 of

the Cr.p.c. or even U/s.164 of the Cr.p.c., it would not be safe to

record the conviction against the appellant. The appellant has

probalised his defence that he was implicated falsely because of

the quarrel between him and PW-3. There is no other independent

witness examined by the prosecution. According to the prosecution

case, there was another lady present at the spot who had asked the

victim about the occurrence of the incident. The victim had

allegedly narrated the incident to her, but even that lady is not

examined. There is no explanation offered as to why she was not

examined. Thus, there is no other independent witness. There is

no corroborative circumstance. Two important witnesses were

declared hostile. They have not supported the prosecution case.

Their evidence is wholly unreliable. In such circumstances, it is not 13 of 13 13-apeal-115-23 (Judgment)

possible to uphold the conviction and sentence recorded by the

Trial Court. With the result, the Appeal must succeed.

17. Hence, the following order is passed.

ORDER

i) The Appeal is allowed.

ii) The impugned Judgment and order dated 17/01/2022, passed by learned Extra Joint Additional Sessions Judge, Karad, in Special Case No.65 of 2018 is set aside.

iii) The Appellant is acquitted from all the charges framed against him.

iv) The Appeal is disposed of.

(SARANG V. KOTWAL, J.)