Bombay High Court
Pancham @ Pravin S/O Sewakram Gotekar vs The State Of Mah Thr Pso,Kelwad on 9 April, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.56 OF 2009
Pancham @ Pravin s/o Sewakram Gotekar,
Aged 22 years, Occ: Labourer,
R/o Telangkhedi, Tahsil Saoner,
District Nagpur. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Police Station Kelwad,
Tahsil Saoner, District Nagpur. ....... RESPONDENT
CRIMINAL APPEAL NO.282 OF 2010
The State of Maharashtra,
through P.S.O. Police Station Kelwad,
Tahsil Saoner, District Nagpur. ....... APPELLANT
...V E R S U S...
1] Balya @ Waman s/o Tulshiram Nehare,
Aged about 35 years.
2] Pancham @ Pravin s/o Sewakram Gotekar,
Aged about 22 years,
Both R/o Telangkhedi, Tahsil Saoner,
District Nagpur. ....... RESPONDENTS
CRIMINAL APPEAL NO.283 OF 2010
Balya @ Waman s/o Tulshiram Nehare,
Aged about 35 years,
Occ: Labour, R/o Telangkhedi, Tahsil Saoner,
District Nagpur. ....... APPELLANT
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...V E R S U S...
The State of Maharashtra,
through P.S.O. Police Station Kelwad,
Tahsil Saoner, District Nagpur. ....... RESPONDENT
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Shri L.B. Khergade, Advocate holding for Shri C.R. Thakur,
Advocate for Appellant.
Shri N.H. Joshi, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
9 APRIL, 2018.
COMMON JUDGMENT
1] These criminal appeals seek to challenge the judgment and order dated 23.12.2008 rendered by the Adhoc District Judge-3 and Additional Sessions Judge, Nagpur in Special Case 12/2007 and are therefore, heard together and disposed of by this common judgment.
2] By the judgment and order impugned the learned Sessions Judge was pleased to convict accused Balya alias Waman Nehare and Pancham alias Pravin Gotekar for offence punishable under Section 448 read with Section 34 of the Indian Penal Code ("IPC" for short) and to award sentence of payment of fine of Rs.200/- and to further convict accused Balya alias Waman ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 3 Nehare and Pancham alias Pravin Gotekar for offence punishable under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("Atrocities Act" for short) and to award sentence of simple imprisonment for six months and to payment of fine of Rs.100/-. The Sessions Judge did frame charge under Section 354 of the IPC, however, the accused are not convicted for the said offence. Criminal Appeal 56/2009 is preferred by accused Pancham alias Pravin Gotekar, Criminal Appeal 283/2010 is preferred by accused Balya alias Waman Nehare and Criminal Appeal 282/2010 is preferred by the State which is aggrieved by the judgment and order impugned to the extent the accused are not convicted for offence punishable under Section 354 of the Indian Penal Code.
3] The prosecutrix, aged 20 years as on the day of the incident, is deserted by her husband and is residing with her mother Sau. Sugandha Warthi (P.W.2) along with her younger sister Sangeeta and brother Sanju at village Telangkhedi within the jurisdiction of Police Station Kelwad. She lodged a report at the Kelwad Police Station on 17.11.2006 alleging that the accused ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 4 Balya and Pancham outraged her modesty at 01:00 p.m. or thereabout on 16.11.2006. The prosecutrix was alone at home, at 01:00 p.m. Balya and Pancham asked her where her mother, brother and sister had gone and when the prosecutrix told them that they had gone for work, both came inside the house. Balya turned off the radio and made himself comfortable in the house and asked Pancham to leave. After Pancham left, Balya shut the door and embraced the prosecutrix, who rescued herself and opened the door of the house. Both Balya and Pancham left. However, after sometime Pancham returned alone and asked the prosecutrix for a glass of water. When the prosecutrix was serving him water, he came inside the house and caught the right wrist of the prosecutrix. Pancham asked the prosecutrix as to when she would meet him and the prosecutrix replied that she would meet him in the next day and then Pancham left. The prosecutrix went to the field of Mahajan to pluck cotton and after returning home in the evening disclosed the incident to her mother. Since it was late in the evening she lodged the report on the next day. 4] On the basis of the oral report Exh.16 and printed ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 5 F.I.R. Exh.17 Kelwad Police registered offence punishable under Section 342, 448 and 354 read with Section 34 of the Indian Penal Code and Section 3(1)(x) of the Atrocities Act. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Saoner. The learned Sessions Judge framed charge (Exh.7) under Section 448 read with Section 34 of the Indian Penal Code and Section 3(1)(xi) of the Atrocities Act read with Section 34 of the IPC and in the alternate for offence punishable under Section 354 read with Section 34 of the Indian Penal Code.
5] As noted supra, the learned Sessions Judge convicted the accused under Section 448 read with Section 34 of the Indian Penal Code and 3(1)(xi) of the Atrocities Act. However, despite recording a finding in paragraph 4 of the judgment and order impugned that the accused outraged the modesty of the prosecutrix, the learned Sessions Judge did not convict the accused for offence punishable under Section 354 of the IPC. Surprisingly, there is no discussion whatsoever in the judgment and order impugned as regards the charge under Section 354 of ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 6 the Indian Penal Code.
6] P.W.1 is the prosecutrix who deposed that on the day of the incident she had gone to pluck cotton and returned home at 11:00 a.m. When she was alone in the house accused Balya entered the house, hugged her and pushed her in the corner. The prosecutrix rescued herself and came out of the house and then accused Balya left. The prosecutrix then went inside the house. Thereafter the accused Pancham entered the house and catching the hand of the prosecutrix asked her when she would meet him. The prosecutrix told him to meet in the morning. According to the prosecutrix, although the accused Pancham caught her hand she did not react and assured to meet him on the next day in the morning. The prosecutrix narrated the incident to her mother and brother in the evening and on the next day she lodged the report. She has explained the delay in lodging the report by stating that it was too late in the night to lodge the report. In the cross-examination it is elicited that after the mother of the prosecutrix came home at 08:00 p.m., the prosecutrix and her mother went to the house of the Police Patil and disclosed the ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 7 incident, in the presence of Mahananda the wife of the Police Patil. The Police Patil conveyed the information to Kelwad Police on phone on the same night. The police visited the house of the prosecutrix on the next day at 09:30 a.m. and the prosecutrix narrated the entire incident to the police, which was reduced into writing. It is also elicited that the prosecutrix showed the spot at the same time and spot panchnama was prepared. It is further elicited that the Police Patil also narrated the facts to police and it was after the police left that the prosecutrix accompanied by the Police Patil, his wife and the mother of the prosecutrix, went to the Police Station. The endeavour in the cross-examination is to show that the F.I.R. purportedly lodged in the afternoon of 17.11.2006 is not the First Information Report. It is also suggested to the prosecutrix that there are two political groups in the village and that both the accused belong to the rival political group of the Sarpanch. The prosecutrix conceded to this position. She also admits that her family is not invited to the function held at the house of the accused due to the political rivalry. It is suggested to the prosecutrix that since she assured to meet Pancham on the next day her mother was annoyed and she instigated the ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 8 prosecutrix to lodge false report. She also denied the suggestion that due to political rivalry and on the advice of Mahananda and Police Patil she lodged false report.
7] P.W.2 Sugandha Warthi is the mother of the prosecutrix. She has deposed that when she returned home the prosecutrix disclosed the incident. P.W.2 states that she and the prosecutrix went to the house of the Police Patil and narrated the incident and requested him to accompany them to the Police Station, however, the Police Patil advised that it was too late and the report be lodged on the next day. P.W.2 states that on the next day in the morning the mother and sister of accused came to her house and picked up quarrel. It is elicited in the cross-examination that the Police Patil informed the Police about the incident on the same evening and the police visited her house at 09:00 a.m. in the morning on the next day and recorded statements. It is elicited that the report is lodged after recording of the statement. It is suggested to P.W.2 that the family members of the accused came to her house and picked up a quarrel since the accused were falsely implicated, which suggestion is denied. ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 9 8] Mahananda Gajbhiye, the wife of the Police Patil is examined as P.W.4. Her version is that in the evening of 16.11.2006 the prosecutrix and her mother came to her house and disclosed that accused Balya and Pancham entered her house and while Balya hugged her, Pancham caught her hand. P.W.4 states that she tried to console her and to forgive the accused. However, the apprehension of the prosecutrix was that the accused would only be encouraged and the prosecutrix was determined to lodge the report.
9] P.W.5 Manohar Madke is examined to prove leaving certificate Exh.27 which records the caste of the prosecutrix as "Gond".
10] P.W.6 Sukhdeo Jaiwar is examined to prove Exh.29 which is a certificate issued by P.W.6 that the caste of the prosecutrix is "Gond". P.W.6 admits that he issued the certificate without verifying the birth certificate and without making any inquiry from the parents or relatives of the mother of the prosecutrix. P.W.6 admits that his statement was not recorded by ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 10 the police and that he issued the certificate only on the basis of long habitation in the village.
11] P.W.7 Subhash Madavi is the Investigating Officer. He admits that the information regarding the incident was given by the Police Patil on telephone at night on the day of the incident. He admits that he did not record the statement of the Police Patil. The I.O. denies that on 17.11.2006 Head Constable visited the spot and recorded the statement of witnesses and prepared spot panchnama. He denies it was only thereafter that the prosecutrix came to the Police Station and lodged the report. 12] It is not in dispute, and it is admitted that there are two political groups in the village. The accused owe allegiance to the political group of the Sarpanch. The prosecutrix admits that her family is not invited to the function held at the house of the accused due to the political rivalry. In the teeth of this admission, the evidence of the prosecutrix must be scrutinized with some caution since the evidence is inconsistent with the contents of the First Information Report in which she states that when the ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 11 accused came inside the house, she did not say anything since accused Balya often visited her house. However, in the evidence, the version of the prosecutrix is that when she was alone in the house Balya entered the house and hugged her and when she rescued herself and came out of the house, he left. She has then deposed, it was thereafter that accused Pancham entered the house, caught her hand and asked her when she would meet him and in response the prosecutrix assured Pancham that she would meet him the next day morning. This incident occurred at 01:00 p.m. and it is elicited in the cross-examination that the prosecutrix again went to the field and narrated the incident to the agricultural labour working in the field. Concededly, the Investigating Officer has not recorded the statements of the agricultural labour working in the field to whom according to the prosecutrix she disclosed the incident when she went to work after the incident. The evidence of the prosecutrix that she did not inform her mother or brother since they were working in field far away from the house is not confidence inspiring. It is elicited that the field in which the mother and brother of the prosecutrix were working is 10 fields away. The common thread in the evidence of ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 12 the prosecutrix and her mother P.W.2 Sugandha Warthi is that they went to the house of Police Patil, in the evening on the day of the incident and narrated the incident to the Police Patil, who informed the Kelwad Police Station. The Police Patil is not examined. The wife of the Police Patil Mahananda (P.W.4) makes no reference to whatsoever to the information conveyed to the Kelwad Police Station by her husband. Mahananda states that she tried to persuade the prosecutrix to forgive the accused, but in vain.
13] The evidence of prosecutrix can undoubtedly be the sole basis of conviction. However, the evidence must be of sterling quality and implicitly reliable. Both the prosecutrix and her mother admitted that the information was conveyed by the Police Patil on the day of the incident and as a fact the Kelwad Police visited then at 09:30 a.m. in the morning, recorded the statements and also recorded the spot panchnama. The printed First Information Report Exh.17 states that the information is received by the Kelwad Police at 01:00 a.m. on 17.11.2006. The contents of the printed F.I.R. Exh.17 are belied by the evidence of the ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 13 prosecutrix and her mother Sugandha. The prosecution has suppressed the investigation conducted before 01:00 p.m. on 17.11.2006. Since according to the prosecutrix and her mother the Police Patil conveyed the information to the Kelwad Police Station in the evening on the day of the incident and the Kelwad Police investigated, recorded their statements and also recorded the spot panchnama at 09:30 a.m. or thereabout on 17.11.2006, the report Exh.16 is obviously not the First Information Report. The possibility of false implication or over implication in the report Exh.16, cannot be excluded in the admitted backdrop of the political rivalry in the village. The failure of the Investigating Officer to record the statements of the agricultural labour to whom according to the prosecutrix she first disclosed the incident, is also a serious infirmity. The cumulative effect of the suppression of the investigation conducted in the morning of 17.11.2006, the fact that the contents of printed F.I.R. Exh.17 that the information was received by Kelwad Police Station at 01:00 p.m., are obviously incorrect, the inconsistencies between the evidence of the prosecutrix and the oral report Exh.16, the version of P.W.2 Sugandha Warthi that in the morning the family members of the ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 ::: apeal56.09+.J.odt 14 accused came to her house and picked a quarrel and other attending circumstances of the case create a reasonable doubt about the veracity of the prosecution version and it is axiomatic that the benefit of the doubt must go in favour of the accused. 14] On holistic appreciation of evidence on record, I am not persuaded to confirm the judgment and order impugned. The appeal preferred by the accused deserves to be allowed and the State appeal is liable to be rejected.
15] Criminal Appeal 56/2009 and Criminal Appeal 283/2010 are allowed.
16] The bail bonds of the accused are discharged. The fine paid by the accused, if any, shall be refunded. 17] Criminal Appeal 282/2010 preferred by the State is dismissed.
JUDGE NSN ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:05:55 :::