Bombay High Court
Ganesh S/O. Maroti Ladke (In Jail) vs The State Of Maharashtra Thr. P.S.O. ... on 9 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal401of17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEALNO. 401 of 2017
Ganesh S/o. Maroti Ladke,
C-4935 (Convicted Offender)
Aged about 22 years, occ. : Nil,
R/o. Watkhed,
Tahsil & District Yavatmal ....APPELLANT
VERSUS
State of Maharashtra,
Through P.S.O. Yavatmal,
(Rural), Tahsil & District Yavatmal .... RESPONDEN T
______________________________________________________________
Shri. R.D. Hazare (appointed) counsel for petitioner.
Shri. V.P. Maldhure, Addl. Public Prosecutor for respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 9
MARCH, 2018
th
ORAL JUDGMENT :
Challenge is to the judgment and order dated 29.9.2016 rendered by the Additional Sessions Judge, Yavatmal in Sessions Trial 41 of 2014, by and under which the appellant - accused is convicted for offence punishable under section 376(2)(j)(l)(n) of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.4,000/- ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 :::
2 apeal401of17 2 Heard Shri R.D. Hazare, the learned counsel for the accused and Shri V.P. Maldhure, the learned Additional Public Prosecutor for the respondent / State.
3 Prosecution case :
The prosecutrix is physically challenged. She is dumb and deaf.
She suffered a bout of omitting on 08.1.2014. Her mother inquired and in response she conveyed by signs that she is pregnant. Her mother asked her who is responsible for the pregnancy. The prosecutrix took her mother and father to the house of accused Ganesh and caught his hand indicating that he was responsible for pregnancy.
Mother of the prosecutrix (PW 1) lodged report at Police Station Yavatmal (Rural) on 9.1.2014, pursuant to which offence under section 376(2)(h)(j)(l)(n) of IPC was registered against the accused.
Investigation ensued, the prosecutrix was medically examined at Government Hospital, Yavatmal, accused was arrested and blood sample of the accused and the prosecutrix was collected and seized.
The Investigating Officer requested the Education Officer, Yavatmal to appoint a coordinator to record the statement of the deaf and dumb prosecutrix, which statement was recorded by video recording. Upon completion of the investigation, charge sheet under section 376 of the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 3 apeal401of17 IPC was submitted in the Court of Judicial Magistrate First Class, Yavatmal who committed the case to the Sessions Court.
The learned Sessions Judge framed charge (Exh. 6) under section 450, 376(j)(l)(n) of IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial and false implication. 4 Few significant facts may be noted before evidence is re- appreciated. The Investigating Officer - PW 5 admitted that the statement of the prosecutrix was not recorded. The prosecution did produce on record a CD purportedly of the video recording of the statement of the prosecutrix. However, due to technical snag, the CD could not be played. The report of the system administrator of the Court is that the CD is not audible. The learned Additional Public Prosecutor strenuously urged that an evidence which is otherwise credit-worthy can not be discarded merely because statement of the witness under section 161 of the Code of Criminal Procedure is not recorded. The learned APP may be justified in so submitting. However, the failure of the prosecution to record the statement of the prosecutrix necessitates that the evidence of the prosecutrix must be tested with extra caution. Concededly, the disclosure that the accused established sexual relationship with the prosecutrix, is made by the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 4 apeal401of17 prosecutrix only after she conceived. The medical evidence is that the prosecutrix was carrying fetus of 24 weeks when she was medically examined by PW 6 Dr. Archana Rathod on 9.1.2014. The prosecutrix is concededly deaf and dumb. However, her mental faculties do not appear to be seriously impaired, as is revealed from the evidence on record.
5 The prosecutrix is examined as PW 3 with the assistance of interpreter Mr. Rakesh Bansod, Mead Master of Vasantrao Naik Deaf and Dumb School, Arni. She states that the accused used to come to her house and used to commit sexual intercourse with her. She disclosed the incident to her mother when she suffered bout of omitting. She disclosed the name of the accused to her parents, is the deposition. In the cross-examination, she was asked why she kept silent till she conceived and the response was that the accused assured to marry her.
6 The evidence of the prosecutrix brings into sharp focus two significant facts. The first is that although she is deaf and dumb, she is not incapable of rational thinking, which is evident from the answer which she gave about her silence till she conceived. The second fact is ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 5 apeal401of17 that she has not deposed that the sexual intercourse was without her consent or that the accused subjected her to forcible sexual intercourse or that the accused induced her to have sex by representing that the accused will marry the prosecutrix. The learned Sessions Judge has observed in paragraph 19 of the judgment impugned that since the prosecutrix is suffering from physical disability, it was not possible for her to accord consent and indeed the prosecutrix was incapable of giving consent. I am afraid, it is difficult to agree with the said observation. Physical disability is not necessarily suggestive of inability to accord consent.
7 The conviction is substantially, if not entirely predicated on the evidence of the prosecutrix and on the premise that since she is deaf and dumb, she is not capable of according consent. The evidence of PW 1 Sulochana, the mother of the prosecutrix, does not take the case of the prosecution any further. The evidence is relevant to the extend that it is established that the prosecutrix disclosed that the accused is responsible for the pregnancy. Be it noted, that it is not even the version of PW 1 that any other disclosure was made by the prosecutrix indicating that the sex was not consensual or that the consent was given in view of a promise or assurance given by the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 6 apeal401of17 accused of marriage. The learned counsel Shri. R.D. Hazare invites my attention to the following observations of the Apex Court in Uday Vs. State of Karnataka, (2003)4 SCC 46 to buttress the submission that consent given by the prosecutrix to sexual intercourse on a promise that he would marry her on a later date, can not be said to be given under a misconception of fact.
"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them".
8 Be it noted, that it is neither the case of the prosecution nor a finding recorded by the learned Sessions Judge that the consent ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 7 apeal401of17 is vitiated since the consent was given in view of promise to marry on a later date. Au-contraire, the finding of the learned Sessions Judge is that the prosecutrix was incapable of giving consent in view of her physical disability, with which finding I am not in agreement. 9 The learned counsel then invites my attention to a judgment of a learned Single Judge of this Court in Digambar s/o. Pandurang Kadu Vs. The State of Maharashtra, 2012 ALL MR (Cri) 3955 in particular to the following observations:-
"23. One more important point is involved in this case. The evidence of the prosecutrix and the Doctor shows that it was possible for investigating officer to record statement of prosecutrix under section 161 of the code of Criminal Procedure. But he avoided to do so. When there was no reason for not recording the statement of prosecutrix, to create record of her version, some explanation was expected from prosecution. Such explanation is not available. On this point, for the appellant reliance was placed on a case reported as 1984 (2) Crimes (X) page 698 Allahabad High Court (Bhola and others Vs. State). In this case, Allahabad High Court has discussed one Supreme Court case and one case of Privy council and they are AIR 1954 S.C. Page 700 (Purushottam Jethanand Vs State of Kutch) and AIR 1947 Privy Council 67 (Kottaya Vs. Emperor). Allahabad High Court has observed that it needs to be presumed that prejudice is caused to the defence when the statement of material witness is not recorded by Investigating Officer u/s 161 of the Code of Criminal Procedure.
24. Aforesaid point needs to be considered from different angles. Section 173(2) (c) of Cr.P.C. shows that in the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 8 apeal401of17 charge sheet the names of persons who appeared to be acquainted in circumstances of the case need to be mentioned. These persons can be examined as prosecution witnesses. Section 173(5) (b) of Cr.P.C. shows that along with report / charge sheet the Investigating Officer must produce the statement recorded u/s 161 of Cr.P.C. of all persons whom prosecution proposes to examine as its witnesses. The procedure of inquiry laid in Section 202 of Cr.P.C. in a case which is triable by Sessions Court also shows that even in a private complaint Judicial Magistrate (First Class) is required to take care and see that all the witnesses of the complainant are examined on oath before him during such inquiry. It can be said that these provisions of Cr.P.C. are fair and proper provisions to have fair play in Criminal justice system.
25. In the case reported as AIR 1974 Supreme Court page 463 (Raghunandan Vs. State of U.P.) The Apex Court has held that the bar of Section 162 of Cr.P.C. is applicable to the parties but it does not impair special powers of Court u/s 165 of Evidence Act. Thus the record of police statements can help the Court to ascertain the truth and also the reliability of the witnesses.
26. Aforesaid provisions show that the object of the provisions is not only to give accused fullest information in possession of the prosecution but also make record available to Court for ascertaining truth. In Section 162 of the Code of Criminal Procedure shows that on one hand protection is given to the accused from the use of such record as evidence and on the other hand right is given to the accused to use this material during cross examination of prosecution witnesses. By contradicting the witness in relation to previous statement, the defence can show that the witness was either tutored or witness is deposing falsely.
27. When statements under section 161 of Cr.P.C. are recorded after inordinate delay and the delay is not explained, the delay can create suspicion and lead to inference that version of the witness was after thought or ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 9 apeal401of17 the witness was tutored. Thus, on one hand such record helps the prosecution to preserve the versions of the witnesses and on the other, if the record is not created immediately, inference against the prosecution witnesses can be drawn.
28. If the right given to the defence of the cross examination is considered, it can be said that when there is no such previous version available to the defence, the defence gets hampered. In the case reported as AIR 1976 Supreme Court page 560 (Badri Vs. State), the Apex Court has laid down that if the defence has no opportunity to cross examine witness on material point with reference to his earlier statement made to Police, his evidence can not be used to corroborate the other witnesses. Thus, in one way the absence of such record affects case of the prosecution also.
Relying on the said judgment, the learned counsel Shri R.D. Hazare submits that the evidence of the prosecutrix must be discarded.
I have already observed that the failure of the prosecution to record the 161 statement per se may not impel this Court to discard the testimony which is otherwise confidence inspiring, but then, the testimony must be scrutinized closely and with extra caution.
10 In the teeth of the evidence on record, it is extremely unsafe and hazardous to record a finding that the prosecution has established offence punishable under section 376(2)(j)(l)(n) of the IPC. The prosecutrix does not claim that the sexual intercourse was ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 ::: 10 apeal401of17 against her will or without her consent. The evidence is that the accused used to come to her house and used to have sexual intercourse which would suggest that the sexual intercourse took place on occasions more than one. The fact that it was only when the prosecutrix conceived that she named the accused, is also significant. In view of the finding recorded in paragraph supra, that physical inability per se would not exclude ability to accord consent, the judgment and order impugned deserves to be set aside. 11 The judgment and order dated 29.9.2016 rendered by the Additional Sessions Judge, Yavatmal in Sessions Trial 41 of 2014, is set aside.
12 The bail bond of the accused shall stand discharged. 13 Fine paid by the accused, if any, shall be refunded. 14 Accused shall be released from custody unless his custody is required in any other case.
15 Fees of the appointed counsel are quantified at Rs.5,000/-. 16 The appeal is allowed.
JUDGE RSB ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 02:00:01 :::