Bombay High Court
Anil Vithoba Bhanarkar vs State Of Maharashtra, Thr. P.S.O. ... on 30 March, 2017
CRI. APPEAL NO.332.16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.332 OF 2016
Anil Vithoba Bhanarkar,
Aged about 30 years,
Occupation-Private,
R/o. Katgaon, Tah. Nagbhid,
District-Yavatmal. .. APPELLANT
.. VERSUS ..
State of Maharashtra,
through Police Station Officer,
Nagbhid, Police Station,
Chandrapur.
.. RESPONDENT
..........
Shri Mir Nagman Ali, Advocate for Appellant,
Shri R.S. Nayak, A.P.P. for Respondent.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : MARCH 30, 2017.
ORAL JUDGMENT
This appeal takes an exception to the judgment and order dated 17.3.2016 passed by the learned Judge, Special Court, Chandrapur in Special (Child) Case No.20/2013. By the said judgment and order, appellant has been convicted of the offence punishable under section 376 ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 2 (2) (i) of the Indian Penal Code and Section 6 of the Protection of Children From Sexual Offences Act, 2012 and sentenced to suffer rigorous imprisonment for 10 years and fine of Rs.20,000/- in-default to suffer simple imprisonment for 6 months. Appellant-accused is also convicted of the offences punishable under Sections 363 and 366 of the Indian Penal Code and sentenced for each to suffer rigorous imprisonment for 5 years and fine of Rs.1,000/- in-default to suffer simple imprisonment for 1 month each. 2] Prosecution case which can be revealed from the chargesheet and connecting papers thereto may be stated in brief as under :
(a) Complainant Sunita Arvind Nannaware was resident of Kotgaon, Tahsil-Nagbhid, District-
Chandrapur. Victim was her 11 years old daughter studying in Std. 5th at the relevant time.
(b) On 24.8.2013, Sunita and her husband
had gone for work. Victim was playing with her
younger brother outside the house. It is the case of prosecution that accused came there, asked the victim to accompany him to bring 'dara' (branch of tree) and under the said pretext, kidnapped the ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 3 victim. He took her to Paharani jungle and committed sexual assault on her. He also threatened the victim of life if she would disclose the incident to anyone.
(c) After 2-3 days, mother of victim noticed swelling on the body of victim. On 27.8.2013, Sunita took the daughter to the hospital of Dr. Kale. On examination, Doctor found that victim was suffering from fever, swelling and pallor on face and there was tenderness on the abdomen and urine infection. The mother of victim took her in confidence and enquired from her. That time, victim disclosed about the incident and narrated to her mother that accused took her to jungle and committed sexual assault on her and as she was threatened she did not disclose the same to anyone.
(d) On 2.9.2013, Sunita had been to Nagbhid Police Station along with Police Patil Bhendarkar and lodged report. Crime No.82/2013 was registered against the accused for the offences under the Indian Penal Code, the Protection of Children From Sexual Offences Act, 2012 and the ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 4 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. PW-13 API Dhoble referred the victim to Rural Hospital, Nagbhid and in turn, she was referred to General Hospital, Chandrapur. Further investigation came to be handed over to PW-12 S.D.P.O. Reena Janbandhu. Investigating Officer visited the place of occurrence and recorded spot panchanama. Statement of victim in question answer form was recorded. Accused was arrested.
(e) The clothes on the person of accused were seized. It's seizure panchanama was drawn.
Motorcycle used by the accused during commission of crime was also seized under a seizure panchamama. Caste certificate of victim and accused came to be collected. Statements of witnesses were recorded. On completing investigation, chargesheet was filed before the Special Court.
3] Charge of the alleged offences was explained to the accused vide Exh.6. He pleaded not guilty and claimed to be tried. His defence is of total denial and false ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 5 implication. In addition, he raised the plea of alibi and submitted that on 24.8.2013 between 2.00 pm and 4.00 pm, he was present in the clinic of Dr. Katekhaye at Nagbhid as he accompanied his wife for check up and he was not at Kotgaon as alleged by the complainant.
4] Prosecution examined in all 15 witnesses in support of its case. Considering the evidence of prosecution witnesses and particularly prosecutrix and Medical Officer, Trial court came to the conclusion that accused was guilty of committing sexual assault on prosecutrix, a girl of tender age and in consequence thereof, accused was convicted. Being aggrieved by the judgment and order of conviction, present appeal has been preferred by the original accused. 5] Heard the learned counsel for parties. Perused reasons recorded by the Trial court. Upon carefully going through the evidence of prosecution witnesses, this court, for the below mentioned reasons, finds merit in the submission of learned counsel for appellant-accused that prosecution could not prove the guilt of accused beyond all reasonable doubt.
::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 6 6] PW-4 victim is the star witness. She stated that on the day of incident, her parents had gone for work. She was at home with her brother. She was playing with her brother on the road in the noon. She stated that accused came there on motorcycle and asked her to accompany him. The evidence of victim shows that accused took her to Paharani jungle on his motorcycle and forcibly inserted his penis in her private part. Then he left her home on motorcycle. She was threatened that in case she would disclose the incident to anyone, she would be killed. She stated that at 5.00 pm, her parents came home. She did not narrate the incident to them. According to prosecutrix, there was swelling on her body. She was taken to doctor. After she was examined by the doctor, she narrated the incident to her mother. 7] PW-3 Sunita is mother of victim and complainant. She states that on the day of incident, she returned home at 5.00 pm. After 2-3 days, she noticed swelling on the person of her daughter. Therefore, on 27.8.2013 she took her to hospital of Dr. Kale. On examination, doctor found swelling on private part of victim. She then states that on enquiry her daughter told her that before 2-4 days, Anil Bhanarkar took her on motorcycle to village Paharani in the forest and ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 7 forcibly inserted his penis in her private part. On 2.9.2013, Sunita went to Police Station and lodged report. The evidence of prosecutrix and her mother is assailed on behalf of appellant on the following grounds :
(1) Belated disclosure of incident by
prosecutrix.
(2) Even after disclosure by the victim, delay in lodging report.
(3) Her post conduct in attending the school in regular course without informing the incident even to her parents.
(4) Previous animosity and quarrel between complainant and accused.
(5) Absence of independent corroboration to the testimony of prosecutrix.
8] So far as delay in lodging report and belated disclosure by the victim is concerned, learned Additional Public Prosecutor submitted that in a case of sexual assault, the family members of victim would not immediately rush to the Police Station as they are worried about their reputation and in such a case, delay of few days cannot be said to be fatal to the prosecution case. It is further submitted that prosecutrix was under the threats of accused and, therefore, she might not have disclosed the incident till she was questioned by her mother. Learned Additional Public ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 8 Prosecutor submits that prosecutrix and complainant are the rustic witnesses and in this background their evidence needs to be considered. So far as independent corroboration is concerned, submission is that in a case of sexual assault, reliance can be placed on the sole testimony of prosecutrix, if otherwise it inspires confidence is found to be trustworthy and believable. It is submitted that prosecutrix was hardly 11 years old. She had no grievance against the accused and due to fear of threats given by accused, she did not disclose the incident and when it was disclosed, mother had been to Police Station and lodged report. 9] Per contra, learned counsel for appellant submitted that an unexplained delay in disclosure of incident by prosecutrix to her mother, her post conduct in regularly attending the school and even after disclosure by victim to her mother, delay in lodging FIR are the factors which create serious doubt regarding the reliability of the prosecution case. Learned counsel, on the point of delay in lodging FIR, relies upon the decision of the Hon'ble Supreme Court in Dilawar Singh .vs. State of Delhi, [2007 ALL SCR 2430]. Another submission on behalf of appellant is that quarrel between complainant and accused has been ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 9 admitted. Delay has remained unexplained. In such circumstances, corroboration to the testimony of victim and complainant was necessary and in the absence of corroboration, benefit of doubt should have been given to the accused. On corroboration, reliance is placed on the decision of the Hon'ble Supreme Court in Sohan Rajinder .vs. State of Haryana, [2001 (3) SCC 620]. 10] From the scrutiny of evidence of prosecutrix and complainant, it can be seen that incident occurred on 24.8.2013. On 27.8.2013 prosecutrix was examined by the doctor. It is the contention of prosecution that complainant came to know about sexual assault on 31.8.2013. Report was lodged on 2.9.2013. On 2.9.2013, again prosecutrix was examined by PW-2 Dr. Shrirame. Prosecutrix admits in her cross-examination that she was attending the school in normal course. So far as age of prosecutrix is concerned, according to prosecution, she was 11 years old. Though defence disputes the age, from the line of cross- examination, it can be seen that even, according to accused, prosecutrix was 13-14 years old. In any case, she was minor but not of too tender age. She had sufficient understanding. In the background of admitted quarrel, ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 10 delay in disclosure of incident, delay in lodging FIR, delay in medical examination of prosecutrix and opinion of medical expert showing various deficiencies in prosecutrix, it was expected to examine independent witnesses, who were available.
11] Accused has come with a defence that at the relevant time he was at the clinic of Dr. Katekhaye (DW-1) at Nagbhid. He also examined his wife Sarika (DW-2) to substantiate the plea of alibi. On appreciation of evidence of defence witnesses, learned counsel for appellant strongly placed reliance on the decision of Hon'ble Supreme Court in Dudh Nath Pandey .vs. State of Uttar Pradesh, [1981 (2) SCC 166] and submits that defence witnesses are to be treated at par with prosecution witnesses. The proposition of law laid down by the Hon'ble Supreme Court is well settled 12] DW-1 Dr. Katekhaye deposed that wife of accused was under his medical treatment. In August, 2013 Sarika (DW-2) was carrying pregnancy. According to Dr. Katekhaye, on 24.8.2013 Sarika had come to his hospital between 2.00 and 4.00 pm. He examined her and issued prescription. He ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 11 maintains the record showing entries of patients who visits his hospital. He had not brought the copy of record with him. It is stated by Dr. Katekhaye that accused had accompanied Sarika on 24.8.2013 between 2.00 and 4.00 pm when she had visited his hospital.
13] The evidence of Sarika (DW-2) indicates that on 24.8.2013, she along with her husband/accused proceeded on motorcycle at around 1.00-1.30 pm from Kotgaon to Nagbhid and at 2.00 pm, they reached the hospital of Dr. Katekhaye. She stated that doctor examined her and they purchased medicines prescribed by doctor. Thereafter, they returned home by 4.00 pm. The distance between Kotgaon to Nagbhid is around 7 km. The evidence of Dr. Katekhaye has been disbelieved on the ground that record has not been produced by him and no timings are mentioned on prescription. It is pertinent to note that evidence of Dr. Katekhaye has remained unshaken in cross-examination. Nothing could be elicited to show that he had a reason to side the accused. Whether he was a qualified doctor or not is not relevant here. From the evidence of Sarika and Dr. Katekhaye, it is clear that accused could show on the basis of preponderance of probability that he was elsewhere ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 12 at the time of occurrence of incident. Except prosecutrix, no one positively confirms presence of accused on the spot at the time of incident. Complainant has a reason to grind an axe against the accused. The possibility of complainant tutoring the victim is not ruled out, as the circumstances particularly inordinate unexplained delay would show that at the earliest possible opportunity occurrence of incident was not disclosed by prosecutrix to her family members and by her family members to the police. Based on the evidence of DW-1 Dr. Katekhaye, accused could throw a doubt on the truthfulness of the version of prosecutrix and complainant. 14] In the above premise and particularly in view of inordinate delay in disclosure of incident, unexplained delay in lodging FIR, post conduct of prosecutrix and absence of independent corroboration to the testimony of victim, this court finds that prosecution could not prove the guilt of accused beyond all reasonable doubt. Criminal Appeal, therefore, deserves to be allowed. Hence, the following order :
ORDER
(i) Criminal Appeal No.332 of 2016 is allowed.
(ii) The judgment and order dated 17.3.2016 passed ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 ::: CRI. APPEAL NO.332.16.odt 13 by the Special Court, Chandrapur in Special (Child) Case No.20/2013 is set aside and appellant Anil Vithoba Bhanarkar is acquitted of the offence punishable under section 376 (2) (i) of the Indian Penal Code and Section 6 of the Protection of Children From Sexual Offences Act, 2012.
(iii) Appellant shall be set at liberty forthwith, if not required in any other case.
(iv) Fine amount, if paid, shall be refunded to appellant.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:45 :::