Bombay High Court
Vitthal @ Dnyaneshwar Pandurang More vs The State Of Maharashtra on 14 August, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:18002-DB
8-sr.906.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1819 OF 2024
IN
CRIMINAL APPEAL NO.420 OF 2024
Sunil s/o. Indalsingh Dangar ..Applicant
Vs.
The State of Maharashtra and anr. ..Respondents
----
Mr.N.S.Ghanekar, Advocate for applicant
Mrs.U.S.Bhosale, APP for respondent no.1
Mr.N.S.Kadarale, Advocate for respondent no.2
----
AND
CRIMINAL APPLICATION NO.2592 OF 2024
IN
CRIMINAL APPEAL NO.455 OF 2024
Vitthal @ Dnyaneshwar Pandurang More ..Applicant
Vs.
The State of Maharashtra ..Respondent
----
Mr.S.J.Salunke, Advocate for applicant
Mrs.U.S.Bhosale, APP for respondent no.1
Mr.N.S.Kadarale, Advocate for respondent no.2
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : AUGUST 14, 2024
ORDER :
-
These applications are filed praying for suspension of
substantive sentence of imprisonment imposed by learned Special
Judge (POCSO Act), Aurangabad, in Special Case Child Protection
2 8-sr.906
No.209 of 2019, vide the judgment dated 23.04.2024. By that
judgment, the applicants/appellants and one more accused have
been convicted for the offences punishable under Sections 376(2)(n)
and Section 506 of Indian Penal Code and Section 5(1) read with
Section 6 of the Protection of Children from Sexual Offences, 2012.
They have been sentenced to suffer imprisonment for life, which
means remainder of their natural life with fine of Rs.1,00,000/- each,
in default, to undergo S.I. for three months for offence under Section
6 of POCSO Act. They have been further sentenced to undergo R.I.
for a term of one year with fine of Rs.1,000/- each, in default, to
undergo S.I. for 15 days for offence under Section 506 of I.P.C. No
separate sentence has been awarded for offence under Section
376(2)(n) of IPC.
2. Learned counsel for the applicants in both the
applications submit that if the evidence of the prosecutrix/victim
(PW 1) is seen, there is vital inconsistency in her report and the
subsequent statements, which clearly show that she cannot be
believed. They submit that though there is DNA report, same does
not show that any of the applicants herein is the biological father of
the fetus. They submit that the applicants were on bail during trial.
They submit that the applications may be allowed.
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3. Learned APP for respondent no.1 - State submits that
though there are inconsistencies in the report (Exh.32) and the
subsequent statements of the victim, that cannot be a ground to
discard her testimony. She submit that one of the convicts is the
biological father of the fetus of the victim. She submit that the trial
court has rightly convicted the applicants and therefore, the
application may be rejected.
4. Learned counsel for respondent no.2 - victim
(prosecutrix) strongly opposes the applications. He submits that the
variance in the statements of the victim would not by itself be
sufficient to discard her testimony. He submits that the evidence of
the maternal aunt of the victim shows that the victim had informed
her about the acts of the applicants and the co-convicts. He submits
that the victim was consistent in respect of the role attributed to
accused no.1. He submits that the victim was not an accomplice in
the crime and therefore, her testimony is required to be believed.
He relies on the decision of the Apex Court in the case of State of
Himachal Pradesh Vs. Shree Kant Shekari, 2004 STPL 14077
SC and invites our attention to paragraph 21 thereof, which reads
thus:-
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21. It is well settled that a prosecutrix complaining
of having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that
her testimony cannot be acted without corroboration in
material particulars. She stands at a higher pedestal
than an injured witness. In the latter case, there is injury
on the physical form, while in the former it is physical as
well as psychological and emotional. However, if the
court on facts finds it difficult to accept the version of
the prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which would lend
assurance to her testimony. Assurance, short of
corroboration as understood in the context of an
accomplice would suffice.
He further relies on the decision of the Apex Court in the case of
State of Punjab Vs. Ramdev Singh, 2003 STPL 19136 SC and
invites our attention to paragraph 9 thereof, which reads thus :-
9. Delay in lodging the FIR cannot be used as a
ritualistic formula for doubting the prosecution case and
discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect
of putting the Court in its guard to search if any
explanation has been offered for the delay, and if
offered, whether it is satisfactory or not. If the
prosecution fails to satisfactorily explain the delay and
there is possibility of embellishment in prosecution
version on account of such delay, the same would be
fatal to the prosecution. However, if the delay is
explained to the satisfaction of the Court, same cannot
by itself be a ground for disbelieving and discarding the
entire prosecution version, as done by the High Court in
the present case.
Learned counsel, ultimately, prays for rejection of the applications.
5 8-sr.906
5. We have scrutinised the evidence of the victim and other
evidence on record. According to the victim, the applicants and the
co-convicts committed rape on her when she was alone in her
maternal uncle's home, when her maternal uncle and aunt were not
present. Admittedly, in the report (Exh.32) lodged by the victim, she
named only accused no.1 - Dnyaneshwar @ Vitthal (applicant) as the
person who committed rape on her. It is also not in dispute that said
report was lodged after her pregnancy was realised. It is further not
in dispute that in her statement under Section 164 of the Code of
Criminal Procedure, recorded after her report, she named accused
no.1. Thereafter, the investigating machinery filed charge-sheet
against accused no.1. It is further not in dispute that subsequently,
the DNA report was received, which showed that accused no.2 was
the biological father of the fetus. Thereafter, supplementary
statement of the victim was recorded, in which she named accused
nos.2 and 3 and one Gopal as the persons, who committed rape on
her. Thereafter, her second statement under Section 164 of Cr.P.C.
was recorded, in which she named only accused nos.2 and 3 and
excluded Gopal.
6. The evidence of the Investigating Officer would show that
the victim had named different accused persons at different stages.
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We reproduce the relevant paragraph from the evidence of the
Investigating Officer, who was examined as PW 10, as under:-
"5. I had filed charge-sheet against accused no.1.
Thereafter, I had received DNA report. From the same it
reveals to me accused no.1 is not biological father of
baby of victim. So, I had again made enquiry from
victim. I had recorded supplementary statement of
victim. In it she has stated that accused no.2 and 3 and
Gopal Khokad by taking advantage of her simpleton
nature and by threatening her had established physical
relations with her during the said period on 2-3
occasions. In view of the said statement, I made request
to the court again record statement of victim under
section 164 of Cr.P.C. Accordingly, again her statement
under section 164 Cr.P.C. had been recorded. In it, she
had stated names of accused no.2 and 3 only and not
stated the name of Gopal Khokad..........................."
7. It is further not in dispute that the victim in her cross-
examination admitted that there was agricultural dispute between
her maternal uncle and the parents of accused no.3 (applicant),
before the incident in question.
8. In view of the above evidence on record, it is clear that
there is inconsistency in respect of person involved in the act, which
makes the version of the victim shaky. Admittedly, none of the
applicants is shown as the biological father of the fetus as per the
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DNA report. The applicants were on bail during trial, on the basis of
the very material which is before us. In this view of the matter, we
proceed to pass the following order:-
(i) Both the applications are allowed.
(ii) During pendency of the appeals, the substantive
sentence of imprisonment imposed against the applicants/appellants
by learned Special Judge (POCSO Act), Aurangabad, in Special Case
Child Protection No.209 of 2019, vide the judgment and order dated
23.04.2024, to stand suspended.
(iii) The applicants/appellants be released on bail, on
executing P.R. Bond in the sum of Rs.15,000/- (Rupees Fifteen
Thousand) each with one surety each in the like amount.
9. We quantify the fee of learned counsel appointed to
represent respondent no.2 at Rs.12,000/- (Rupees Twelve Thousand),
to be paid by the High Court Legal Services Sub-Committee,
Aurangabad.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
