Bombay High Court
Datta Somnath Jadhav vs The State Of Maharashtra on 2 November, 2018
Author: S.S. Shinde
Bench: S. S. Shinde, A.S.Gadkari
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JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.935 OF 2014
Vanita Vasant Patil
Age : 56 Yrs, Occu. Service,
R/o. Prathamesh Society,
Flat No.10, Lokhadipada, Panvel,
Dist: Raigad.
(At present lodged in Central Jail)
... APPELLANT
(Orig. Accused No.2)
VERSUS
1) The State of Maharashtra
(At the instance of Sr.P.I.Uran
Police Station, Dist. Raigad).
2) Victim Girl Y
[With a view to conceal an
identity of the victim girl, she
is mentioned as "Victim Girl Y"]
... RESPONDENTS
W I T H
CRIMINAL APPEAL NO. 921 OF 2014
Mr.Datta Somnath Jadhav,
Aged about 43 years, adult,
Indian inhabitant, Occ : Service
Residing at Navjeevan Society,
L-3, Yugant Colony, Sukapur
New Panvel, Dist.Raigad.
(Alibag Prison)
... APPELLANT
(Orig. Accused No.1)
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VERSUS
1) State of Maharashtra
(Through Uran Police Station).
2) Victim Girl Y
[With a view to conceal an
identity of the victim girl, she
is mentioned as "Victim Girl Y"]
... RESPONDENTS
WITH
CRIMINAL APPEAL NO. 292 OF 2015
(For Enhancement of Sentence)
The State of Maharashtra
... APPELLANT
(Orig. Complainant)
VERSUS
1) Datta Somnath Jadhav,
Age 43 years, Occ : Service
R/o.Navjeevan Society,
L-3 Yugant Colony, Sukapur
New Panvel, Dist.Raigad.
2) Vanita Vasant Patil
Age : 56 Yrs, Occ. Service,
R/o. Prathamesh Society,
Flat No.10, Lokhandipada, Panvel,
Dist: Raigad.
... RESPONDENTS
(Orig. Accused Nos.1 and 2)
...
Mr. Mahesh Vaswani a/w Mr. Jagdish Shetty a/w Ms.
Dharni Nagda a/w Ms. Sophia Hasan Advocates for
Appellant in Criminal Appeal No. 935/2014.
Mr. Sathyanarayanan, Advocate for Appellant in
Criminal Appeal No. 921/2014
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Mrs. M.H. Mhatre, A.P.P. for Respondent - State in
Criminal Appeal No. 935/2014 and Criminal Appeal
No.921/2014 and for Appellant in Criminal Appeal
No.292/2015.
...
CORAM : S. S. SHINDE AND
A.S.GADKARI, JJ.
DATE OF RESERVING JUDGMENT : 23RD OCTOBER 2018
DATE OF PRONOUNCING JUDGMENT : 2ND NOVEMBER 2018
JUDGMENT [PER S.S. SHINDE, J.]:
1. Criminal Appeal No. 921 of 2014 filed by
accused No.1 Datta Somnath Jadhav, is directed
against the Judgment and Order dated 28th October,
2014 passed by the Additional Sessions Judge, Raigad-
Alibag thereby convicting accused No.1 Datta Somnath
Jadhav for the offence punishable under Section
376(2)(b) of the Indian Penal Code read with Section
5(c), 6 of Protection of Children from Sexual
Offences Act (for short, "POCSO Act") and sentencing
him to suffer rigorous imprisonment for ten years and
to pay fine of Rs.20,000/- and in default to suffer
rigorous imprisonment for two years. The Trial Court
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also convicted accused No.1 Datta Somnath Jadhav for
the offence punishable under Sections 292, 509 of
Indian Penal Code read with Section 14 of POCSO Act
read with section 67-B of Information Technology Act
and sentenced him to suffer rigorous imprisonment for
five years and to pay fine of Rs.10,000/, in default
to suffer rigorous imprisonment for one year. The
Trial Court also convicted accused No.1 Datta Somnath
Jadhav for the offence punishable under Section 342
of Indian Penal Code and sentenced him to suffer
rigorous imprisonment for one year and to pay fine of
Rs.1,000/, and in default to suffer rigorous
imprisonment for one month. The Trial Court also
convicted accused No.1 Datta Somnath Jadhav for the
offence punishable under Section 354 of Indian Penal
Code and sentenced him to suffer rigorous
imprisonment for two years and to pay fine of
Rs.5,000/, and in default to suffer rigorous
imprisonment for five months. All the sentences were
directed to be run concurrently.
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2. Criminal Appeal No. 935 of 2014 filed by
accused No.2 - Vanita Vasant Patil is directed
against the Judgment and Order dated 28th October,
2014 passed by the Additional Sessions Judge, Raigad-
Alibag thereby convicting her for the offence
punishable under Section 376(2)(b), 109 of Indian
Penal Code read with Section 5(c), 6 and 17 of POSCO
Act and sentencing her to suffer rigorous
imprisonment for ten years and to pay fine of
Rs.10,000/- and in default to suffer rigorous
imprisonment for one year. The Trial Court also
convicted accused No.2 Vanita Vasant Patil for the
offence punishable under Sections 292, 509, 109 of
Indian Penal Code read with Sections 14 and 17 of
POCSO Act read with Section 67-B of Information
Technology Act and sentenced her to suffer rigorous
imprisonment for five years and to pay fine of
Rs.5,000/, and in default to suffer rigorous
imprisonment for five months. The Trial Court also
convicted accused No.2 Vanita Vasant Patil for the
offence punishable under Section 342 of IPC and
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sentenced her to suffer rigorous imprisonment for one
year and to pay fine of Rs.1,000/, and in default to
suffer rigorous imprisonment for one month. All the
sentences were directed to be run concurrently.
3. Criminal Appeal No. 292 of 2015 is filed by
the State for enhancement of the sentence imposed
upon accused No.1 - Datta Somnath Jadhav and accused
No.2 - Vanita Vasant Patil. (for the sake of brevity,
hereinafter we would refer Datta Somnath Jadhav as
"accused No.1" and Vanita Vasant Patil as "accused
No.2").
4. All these three Criminal Appeals are
arising out of one and the same Judgment and Order
passed by the trial Court, hence the same are being
decided by this common Judgment.
5. The prosecution case, in brief, is as
under:
A] The informant / victim girl [name is
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concealed] resides at village Mothi Jui, Taluka Uran
along with her parents, brother and sisters and was
learning in 5th standard in Z.P. Primary School at
village Mothi Jui. Accused No.1 was working as
teacher, while accused No.2 was working as
headmistress in the said School. Two months prior to
the filing of the report, informant/victim girl was
playing in the school premises along with other
students. At that time, accused No.1 called
informant and 2-3 girls and then took informant
alone in 6th-A Class room by sending remaining girls
to their class room. Then accused No.1 bolted the
said class room from inside and gave Kachha Aam
chocolate to the informant and kept the informant on
a bench by saying that he wants to snap her
photographs. Then accused No.1 laid the informant on
the bench and removed her clothes and snapped
photographs of the chest and private part of the
informant on his mobile by assuring to give money.
Informant did not narrate the incident to others.
The informant along with her parents came to Uran
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Police Station and lodged the report on 20th January,
2013, regarding aforesaid incident.
B] Upon receipt of the report, PSI Patil
registered an offence vide Crime No.12 of 2013 and
handed over the investigation to PI - T.D.Patil. PI
Patil recorded the supplementary statement of the
informant in which informant stated that accused
No.2 bolted the door of computer room from outside,
and accused No.1 committed rape on her and also
snapped the photograph of her breast and private
part. PI Patil visited the spot and prepared the
spot panchnama. PI Patil referred the informant for
medical examination and Dr. Jaya Shrinivasan
examined the informant and opined that there was
possibility of evidence of sexual abuse. PI Patil
arrested the accused and referred accused No.1 for
medical examination. Dr.Bhimrao Kamble examined
accused and opined that accused No.1 was capable to
do sexual intercourse. PI Patil seized the wearing
clothes of the informant as well as of accused. He
collected the seizure panchnama of the mobiles of
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accused No.1 and panchnama of the said mobiles
prepared in Crime No.10 of 2013 registered at Uran
Police Station. API Puri recorded the statements of
the girls students including the informant. Then
investigation was handed over to PI Awate who sent
the seized articles to C.A. office and collected the
C.A. reports. So also he got obtained sketch map of
spot through Circle Revenue Inspector. He collected
the muster roll of the students and teachers from
Z.P. Primary School, Mothi Jui. During the course of
investigation, it transpired that accused No.1
committed rape on minor informant and accused No.2
abetted accused No.1 in commission of the said
crime. So also accused No.1 taunted and committed
sexual assault and harassment of the girl students
including the informant and also snapped obscene
photographs of the informant on his mobile. So,
Police after completion of investigation, submitted
charge sheet in the Court of JMFC, Uran.
C] As the offence under Section 376 of IPC is
exclusively triable by Court of Sessions, so Judicial
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Magistrate, First Class, Uran committed the case
bearing R.C.C. No. 53/2013 to the Sessions Court for
trial.
D] A charge under Section 376(2)(b), 354, 292,
509, 342, 109 of the IPC and under Section 5(c), 6,
14 and 17 of Protection of Children from Sexual
Offences Act and under Section 67-B of Information
Technology Act against accused No.1 and accused No.2
was framed vide Exhibit-3 and same was read over and
explained to the accused in vernacular. The accused
pleaded not guilty and claimed to be tried.
6. After recording the evidence and conducting
full-fledged trial, the trial Court convicted and
sentenced the Appellants - accused for the aforesaid
offences. Hence Criminal Appeal No.921 of 2014 is
preferred by Appellant - Datta Somanth Jadhav and
Criminal Appeal No.935 of 2014 Appeal is preferred by
Appellant - Vanita Vasant Patil challenging the
conviction and sentence. Criminal Appeal No.292 of
2015 is preferred by the State for enhancement of the
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sentence imposed upon the accused persons.
7. Learned counsel appearing for the
Appellant- Vanita Patil in Criminal Appeal No.935 of
2014 submitted that victim girl has falsely
implicated the Appellant in the alleged incident.
Though the victim girl alleged that she was sexually
assaulted, she admits that she did not sustain any
injury or bleeding injury marks at the time of
alleged incident of rape. Even the Medical Officer
(PW-14) who examined the victim girl has specifically
stated that the victim girl was not having any
external injury on any part of the body including
private part and her hymen was intact, and therefore
the version of PW-1 victim girl is unbelievable.
Learned counsel further submits that version of the
victim girl is contrary to the medical evidence. In
support of his submissions, learned counsel placed
reliance upon the exposition of law in the case of
Pratap Misra and others vs. State of Orissa 1, Amar
Singh and others vs. State of Punjab 2, Jai Ram Prasad
1 AIR 1977 SC 1307
2 (1987) 1 SCC 679
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Singh Alias Jai Ram Mandal vs. State of Bihar 3 and
Sham Singh V/s State of Hariyana4. Learned counsel
further submits that the victim girl has falsely
implicated accused in the incident alleged to have
been happened on Sunday, because on Sunday every
school remains closed and there was no reason for the
victim girl or the accused to attend the school on
Sunday. There was political pressure in implicating
the accused persons in the alleged incident as the
record before the trial Court shows that at every
time including the time of filing of the FIR,
Sarpanch of the village namely Ashok was very well
present along with the victim girl and her parents.
Even during the course of recording of the evidence
though in camera, mother of every child witness along
with one lady Police Officer were present and
therefore the possibility of tutoring cannot be ruled
out.
8. Learned counsel further submits that
neither the informant nor the prosecution witnesses
3 1990 (1) BLJR 139
4 AIR 2018 SC 3978
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have stated the exact day, month of incident and also
their versions are inconsistent with each other
regarding occurrence of the incident. The prosecution
has not examined any teacher working in the school as
witness. The accused is falsely implicated in the
present case due to village rivalry and due to
dispute with some staff members. The version of PW-2
is not believable.
9. Learned counsel further submits that there
is a material contradiction about the place of the
incident in the evidence of the victim and other
prosecution witnesses. The informant has stated that
alleged incident of snapping obscene photographs took
place in 6th - A class room and alleged incident of
sexual assault took place in computer room. However,
PW-2 stated that the alleged incident took place in
rice room. The evidence of PW-3 is also not
consistent with the evidence of the informant. PW-4
stated that alleged incident took place in 7th - A
class room. The evidence of PW-6 also does not
support the prosecution case, and therefore it is
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doubtful whether really the incident had took place.
Thus, there is no consistency in the evidence of
victim girl and other minor student witnesses and so
the entire prosecution case falls. Learned counsel in
support of his submissions that children are most
untrustworthy class of witness, placed reliance upon
the exposition of law in the case of Dasarathi
Mahanto V/s The State5 and Arbind Singh V/s State of
Bihar6. Learned counsel submitted that evidence of
the prosecution witnesses is totally inconsistent
with the medical evidence and therefore the same is
sufficient to discredit the entire prosecution case.
In support of his aforesaid submissions learned
counsel relied upon the observations in Para Nos.6
and 14 of the Judgment in the case of Ram Narayan and
others vs. The State of Punjab7. Learned counsel
further submitted that there is an inordinate delay
in filing the FIR and therefore the prosecution case
is after thought and unbelievable. In support of his
submissions, learned counsel placed reliance upon
5 27(1961)CLT 169
6 AIR 1994 SC 1068
7 AIR 1975 SC 1727
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the exposition of law in the case of Surjan and
others vs. State of M.P.8 and Mohd. Ali Alias Guddu
vs. State of Uttar Pradesh9. Learned counsel also
relied upon the exposition of law in the cases of Ram
Swaroop and others V/s State of Rajasthan 10, Tilak
Raj V/s State of Himalchal Pradesh11 and Ram Gopal
Yadav V/s State of Chhattisgarh and another12, in
support of his submissions. Learned counsel prayed
that the Appeal deserves to be allowed.
10. Learned counsel appearing for Appellant -
Datta Jadhav in Criminal Appeal No. 921 of 2014 has
adopted the arguments advanced by the learned counsel
appearing for the Appellant - Vanita Patil. In
addition to that, learned counsel submitted that
there is an inordinate delay in filing the first
information report and therefore it is doubtful
whether really such incident of sexual assault was
occurred. The informant vaguely stated in the FIR
that the incident occurred prior to two months but
8 AIR 2002 SC 476
9 (2015) 7 SCC 272
10 (2004) 13 SCC 134
11 (2016) 4 SCC 140
12 2018 All M.R. (Cri) 2304 (S.C.)
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she does not remember the day and thus it is not
specifically stated in the FIR actually on which day
the incident occurred. So also the prosecution
witnesses also not brought on record, the specific
date of the alleged incident. Learned counsel further
submitted that there are material contradictions,
omissions and improvements in the statements of the
prosecution witnesses. The victim was examined by the
Medical Officer two months after the alleged incident
and the prosecution failed to brought on record any
medical evidence showing that sexual assault was
committed on the victim girl. Learned counsel
therefore submits that the Appeal deserves to be
allowed.
11. Learned A.P.P. appearing for the State has
supported the findings recorded by the learned trial
Court in convicting both the Appellants. But so far
as the sentence is concerned, learned A.P.P. submits
that the trial Court ought to have considered that
the victim was a minor girl of 12 years and heinous
crime was committed by a teacher i.e. accused No.1
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and in the commission of said crime, accused No.2
abetted him and in such case, there should not have
been any leniency in awarding maximum sentence, and
both the accused should have been sentenced for life
imprisonment. Therefore learned A.P.P. prays that
Criminal Appeal No. 292 of 2015 may be allowed.
12. Heard learned counsel appearing for the
respective Appellants and learned APP appearing for
the Respondent - State, at length. With their able
assistance, we have carefully perused the entire
notes of evidence so as to find out whether the
findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
13. To prove its case, the prosecution has
examined as many as sixteen witnesses. As the
allegations are of sexual assault on a minor girl, we
would not disclose the identity of the victim girl,
as also the prosecution witnesses who are the minor
girls and allegations are of sexual assault. The
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Supreme Court in the case of Dinesh Alias Buddha vs.
State of Rajasthan13 in para 7 of the Judgment, held
thus :-
"7. We do not propose to mention the name
of the victim. Section 227-A IPC makes
disclosure of the identity of the victim of
certain offences punishable. Printing or
publishing the name or any matter which may
make known the identity of any person
against whom an offence under Sections 376,
376-A, 376-B, 376-B or 376-D is alleged or
found to have been committed can be
punished. True it is, the restriction does
not relate to printing or publication of
judgment by the High Court or the Supreme
Court. But keeping in view the social
object of preventing social victimisation
or ostracism of the victim of a sexual
offence for which Section 228-A has been
enacted, it would be appropriate that in
the judgments, be it of this Court, the
High Court or lower court, the name of the
victim should not be indicated. We have
chosen to describe her as "victim" in the
judgment. (See State of Karnataka v.
13 (2006) 3 SCC 771
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Puttaraja14)."
14. The prosecution has examined PW-1 victim
girl-Y (to conceal the identity, name is not
disclosed). The incident took place in the year 2012
when the age of victim girl was 12 years. Her
evidence was recorded in camera. The record of the
trial Court shows that as the victim was minor,
initially the trial Court has asked some questions to
the victim girl to ascertain whether she knows the
difference between true and false and the importance
of oath. At the time of recording the evidence of
informant - victim girl in camera, the trial Court
has allowed the mother of informant and also one lady
police officer to be present.
15. The evidence of informant shows that she
was residing along with her parents, one sister and
one brother. At the time of recording her evidence,
she was studying in 7th standard in Z.P. Marathi
school. Her evidence shows that she was studying in
14 (2004) 1 SCC 475
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the said school since beginning. She knows accused
Nos.1 and 2. Accused No.1 was her class teacher and
accused No.2 was Headmistress of the school. She has
named other four girl students who were studying
along with her in the said school. Her evidence
further shows that she knows other victim girl X (who
has filed separate proceedings). Her evidence further
shows that other girls i.e. PW-2, PW-3 and PW-4 were
studying in her school. At the time of lodging report
she was studying in 5th standard. Her evidence
further shows that on the day of incident, she was
playing in the school premises during short recess.
Accused No.1 called her and other three girl students
in the office which was near to the school and they
went there. Accused No.1 told her to stay there and
sent the remaining girls for taking round. Her
evidence further shows that accused No.1 took her in
6th-A class room and gave her Kachha Aam chocolate
and told her that he will give her Rs.500/- and he
wants to snap her photographs. She was sitting on the
bench in the class room. Accused No.1 lifted up her
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wearing clothes and then snapped photographs of her
breast and private part on his mobile. She told
accused No.1 not to do such thing else she will tell
his name to her mother. Accused No.1 threatened that,
if she discloses about incident, in that case he will
beat her like dog.
16. The evidence of the victim girl-Y further
shows that two days thereafter, accused No.1 again
called her in lunch recess. She went to the computer
room. Accused No.2 was standing near the door of
computer room and accused No.2 pushed her inside the
computer room, bolted the door of computer room from
outside. Accused No.1 was present in the computer
room. Her evidence further discloses that, accused
No.1 removed her wearing clothes and also removed his
wearing clothes, and then accused No.1 inserted his
private part into her private part and committed
rape. Accused No.2 removed the door bolt of the
computer room and then she went to her class room.
17. The evidence of PW-1 further shows that
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there used to be holiday to her school on Sunday. She
went to her school on Sunday as her girl friend told
her that accused No.1 has called her. Accused No.1
was standing near computer room. Her evidence further
shows that accused No.1 called her inside the
computer room and then removed his clothes. Accused
No.1 also threatened her to beat if she did not
remove her clothes. Accused No.1 snapped photographs
of her breast and private part on his mobile. She
narrated the incident to her mother. Then on 20th
January, 2013, she went to Uran police station and
lodged report (Exhibit-16). Police reduced her report
into writing as per her say and she stated that
contents of the report were correct. She also stated
that printed FIR (Exhibit-17) bears her signature.
The evidence of victim girl (PW-1) further shows that
due to the act of accused, she felt ashamed. She has
stated to the police at the time of filing report
that accused No.1 inserted his private part into her
private part. She does not remember when police again
called her to police station. Police came to her
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school and she has shown the place of incident to
them. Police referred her for medical examination. At
the time of incident she was studying in 5th
standard. When muddemal article No.3 - slip and
Muddemal Article No.4 - nicker shown to her, she
identified the same to be her. When Muddemal Article
Nos.1 and 2 - mobiles were shown to her, she
identified the same to be accused Nos.1 and No.2. Her
evidence further shows that her father was doing the
work of fishing and mother was doing labour work in
the field. The parents of other girl students were
doing agricultural work. Father of another victim
girl-X was no more.
18. During the course of cross-examination by
the counsel for accused No.1, the victim girl (PW-1)
stated that she does not remember the day on which
report was filed. She does not remember the exact
date of filing report. She has narrated the incident
to her father Ashok and mother prior to four days of
filing report. Her parents and she herself decided to
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go to police station for lodging report. Her father
informed to the respectable villagers, relatives
about the aforesaid incident. Her father informed the
incident to her uncle who was doing agricultural
work. She does not remember the names of her
neighborus. The parents of two girl friends had come
to her house to inquire about the incident. She did
not inform to her girl friends about the incident.
When she was called in the computer room during the
short recess, at that time the said girl friends saw
her while going into the said computer room. Her
three girl friends (names not disclosed) inquired
with her when she came into class room. She was
present in the computer room till half an hour. She
narrated the incident to her three girl friends. PW-1
has specifically admitted that she did not narrate
the fact that accused No.1 inserted his private part
into her private part. She did not tell Police at the
time of lodging report that accused No.1 inserted his
private part into her private part. Thus defence has
brought on record the material contradiction as in
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her examination in chief victim girl deposed that she
told the said fact to the police while lodging
report.
19. Cross examination of PW-1 further shows
that the class room of 6th-A and 7th-A were separate
and both the class rooms were adjacent to each other.
Accused No.1 took her in 7th-A class room. She again
said that accused No.1 took her in 6th-A class room.
Accused No.1 did not take her in 7th-A class room.
Thus, victim girl was not sure about the spot of
incident. She further stated that Police recorded
her supplementary statement. She did not tell at the
time of recording her supplementary statement that it
was 7th-A class room and not 6th-A class room. Portion
marked - A of her supplementary statement was shown
to her and she stated that the same was not correct
and she has not stated before Police and she cannot
assign any reason as to why the said portion was
written in her Police statement. Her cross
examination further shows that at the time of filing
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report and recording of supplementary statement, she
did not tell Police that accused No.1 took her in
the computer room. Thus, these are material
omissions. She has stated before Police at the time
of filing report that accused No.1 called three named
girl students during short recess. She has stated
before Police at the time of filing report that
accused No.1 had told her that he will give her
Rs.500/- and chocolate, but she was unable to tell as
to why the said word "Rs.500/-" is not mentioned in
her report (Exhibit-16). She has stated before Police
at the time of filing report that she told accused
No.1 not to do the said act, or she will tell his
name to her mother and accused told her that he will
beat her like dog if she disclosed the incident.
20. It has further come in the cross
examination of PW-1 victim girl that she does not
remember who was accompanied with her to Police at
second time. She admits that her report and
supplementary statement were reduced into writing on
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the paper. She does not remember whether her mother
narrated the incident to Police at the time of filing
report and at the time of recording her supplementary
statement. She does not remember whether accused No.1
was arrested by Police at the time of filing report
or not. She does not remember whether any woman
namely Neela Tulpule came to her for inquiry or not.
She does not remember the exact month of the
incident. Thus, the defence has brought on record
that the victim girl does not remember anything about
the incident.
21. It has also come in the cross examination
of PW-1 victim girl that the incident occurred three
days prior to filing of the report. She knows English
months. She does not remember current month when her
evidence was recorded. They were taught English
months in the first standard and thereafter she
forgot English months. She never used to write date
of homework. She does not remember the exact month in
which incident occurred. She does not remember
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whether Police seized her clothes or not. Two days
after filing the report, Police referred her for
medical examination and at that time, Muddemal slip
had worn by her. She does not remember whether she
was referred for medical examination prior to filing
of report or not. She does not remember whether
doctor made inquiry with her or not. She does not
remember whether she narrated the incident to the
doctor or not. Thus, the defence has further brought
on record regarding the incident and other events
occurred, the victim girl does not remember anything.
22. During the course of cross examination by
the Advocate for the accused No.2 PW-1 victim girl
stated that she does not remember whether they
proposed to go to Police station for lodging report.
She does not remember how many persons were
accompanying with her to Uran for lodging report. In
all six girls accompanied her at the time of filing
report but she does not remember name of said girls.
The said six girls were from her class. Thus, defence
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has brought on record that the victim girl even does
not remember the names of her girl friends who were
studying with her. The victim girl further stated
that she does not remember whether Police made
inquiry with the said six girls at the time of filing
report or not. They all girls went in Police Station.
She does not remember exact time when they went to
Police Station for lodging report. She was unable to
tell whether they went to Police Station at morning
or at noon time or at evening. She does not remember
exact vehicle by which they went to Police Station
from their village.
23. PW-1 victim girl further stated that she
does not remember whether many villagers were
gathered in the police station or not. Accused No.2
was not present in police station at that time. She
has narrated the incident to her parents on the same
day of its occurrence. She has stated to police the
name of accused No.2 at the time of filing report.
She has narrated the role played by accused No.2 in
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the incident and what accused No.2 has done with her.
She has stated to police at the time of filing report
that accused No.2 was standing near the computer room
and accused No.2 bolted the door of the computer room
from outside, and then accused No.2 removed door belt
of the computer room. She has stated before police at
the time of filing report that another girl student
told her that accused No.1 called her in the school.
She has stated before the police at the time of
filing report that, another victim girl was present
in the school when she went to the school. Thus, the
prosecution has brought on record various omissions
and improvements in the evidence of victim girl.
24. PW-1 victim girl further stated that she
did not sustain any injury or bleeding injury marks
at the time of incident. Thus, it is difficult to
accept that a school going girl, aged about 12 years
when was sexually assaulted by a grown up man like
accused No.1, aged about 43 years at the time of
incident, still she had not sustained any injuries to
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her private part.
25. PW-1 victim girl further admits that after
the incident, she has attended the school regularly
and she went to play with her girl friends in the
school premises. She further admits that after the
incident accused Nos.1 and 2 were on duty in the
school. She does not remember whether some 4-5
teachers of her school were resident of her village
or not. She does not remember whether Jaydas Koli and
Dinkar Bhoir were the teachers in her school or not.
She does not remember whether Pramila Gade of Uran
was present in Police Station or not and whether
Pramila signed the report or not.
26. Thus, defence has brought on record several
contradictions, omissions and improvements in the
evidence of victim girl. We find that the omissions
and contradictions in her evidence are on material
aspects. The defence has brought on record that she
did not tell police at the time of lodging report
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that accused No.1 sexually assaulted her. The defence
has brought on record that regarding the incident and
the events soon thereafter, the victims girl does not
remember anything. Initially victim girl stated that
accused No.1 took her in 7th-A class room and in
another breath she again said that accused No.1 took
her in 6th-A class room. Thus, entire evidence of
the PW-1 has been shattered in the cross examination.
Therefore, we are of the considered view that the
evidence of victim girl is not at all reliable and
does not inspire confidence and therefore the same
deserves to be discarded.
27. So far the alleged incident of sexual
assault and snapping of obscene photographs of victim
girl is concerned, different prosecution witnesses
have given different version and there is material
variance in the evidence of prosecution witnesses
exactly on which spots the said incidents took place.
In this respect, the evidence of PW-2 (name is not
disclosed) shows that she was studying in 7 th-A
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standard which was adjacent to office of accused
No.2. The computer room was also adjacent to her
class room. Her class room 7th- A was in between the
office of accused No.2 and computer room. There was a
separate room for storing rice in her school. The
evidence of PW-2 further shows that accused No.1
called victim girl, and when victim girl went in the
rice room, accused No.2 bolted the door of rice room
from outside. The evidence of PW-2 further shows
that, she called the victim girl for going to the
office of accused No.2 and victim girl went in the
rice room and accused No.2 bolted room from outside.
Her evidence further shows that accused No.1 called
victim girl in the rice room and when victim girl
went in the rice room, accused No.2 bolted the rice
room from outside. Thus it is clear from the perusal
of evidence of PW-2, a girl student who was studying
in the same school at the relevant time, that both
the alleged incidents took place in rice room,
whereas the victim girl alleged that the incidents
took place in 7th - A class room and computer room.
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Thus version of PW-2 does not corroborate to the
version of PW-1. There is material contradiction
about the place of incident in the version of PW-1
and PW-2.
28. So far as the evidence of PW-3 (name is not
disclosed) in this respect is concerned, her evidence
shows that on the relevant day she was present in the
school Varanda. Victim girl-Y was playing along with
her classmates near the school Varanda. Accused No.2
told another girl student (PW-2) to call the victim
girl in the computer room. Victim girl went in the
computer room and accused No.2 pushed victim girl in
the computer room and bolted the computer room from
outside. Her evidence further shows that she does not
remember any incident took place in the rice room in
the school. Thus the evidence of PW-3 shows that the
alleged incident took place in the computer room of
the school.
29. In respect of the alleged incident, the
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prosecution has brought on record the evidence of
PW-6, minor girl student (name is not disclosed). The
evidence of PW-6 shows that she knows the victim
girl- Y who was studying in 5 th standard. Her
evidence further shows that accused No.1 has snapped
obscene photographs of the victim girl and the victim
girl has filed report. But the evidence of PW-6
nowhere states where the alleged incident exactly
took place.
30. In respect of the alleged incident, the
prosecution has brought on record the evidence of
PW-11 (identity is concealed), who is the father of
the victim girl. His evidence shows that his daughter
i.e. victim girl, narrated her incident of snapping
the photographs of her body by accused No.1 on
mobile and according to the victim girl, the alleged
incident took place in 6th - A class room.
31. Thus, it is clear from the perusal of the
evidence of the prosecution witnessed that, they
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have stated different spot of the alleged incident.
Thus, so far as the alleged incident is concerned,
the prosecution has failed to prove the exact spot
where the alleged incident took place. Thus, it is
doubtful whether such incident had taken place or
not.
32. Now, we will examine the evidence of
Medical Officer PW-14 Dr. Jaya Shrinivasan who has
examined the victim girl. Her evidence shows that on
20th January, 2013 the victim girl was referred to
her hospital for medical examination. The age of
victim girl was 14 years. The alleged history was
being sexually abused by school teacher accused No.1
in the school. The evidence of the medical officer
(PW-14) further shows that she examined the victim
girl on 20th January, 2013. PW-14 has specifically
stated that there was no external injury on any part
of the body including private part of the victim
girl. The hymen of victim girl was intact, but
admitting two fingers. Thus, the evidence of PW-14
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shows that at the relevant time the age of victim
girl was 14 years. Thus, as observed earlier, if a
girl of such tender age like victim girl is sexually
assaulted by a grown up man like accused No.1 - Datta
Jadhav, aged about 43 years at the relevant time, it
is difficult to believe that the victim girl would
not sustain any injuries on her private part. Even
the evidence of PW-14 shows that hymen of victim girl
was intact. Thus, considering the medical evidence
brought on record by the prosecution, it is difficult
to believe that alleged incident of sexual assault
had really taken place.
33. Further, in the cross-examination medical
officer (PW-14) has specifically admitted that
according to her the case referred to her by police
was not of rape but sexual abuse. The evidence of
PW-14 further shows that according to her opinion
there was evidence of possible sexual abuse. Thus,
even if the evidence of this prosecution witness (PW-
14) is accepted as it is, it was not the case of
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sexual assault. This medical officer has opined that
there was evidence of possible sexual abuse. Thus,
this medical officer (PW-14) has not definitely
opined that it was the case of even sexual abuse.
Thus, the prosecution has failed to prove that victim
girl was sexually assaulted.
34. Upon further perusal of the evidence of the
prosecution witnesses i.e. girl students, PW-2,
PW-3, PW-4 and PW-6 is perused, their evidence shows
that accused No.1 used to behave in indecent manner
with the girl students. Their evidence further shows
that accused No.1 while teaching in their class
room, used to taunt the girl students in filthy
language, accused No.1 used to beat girl students on
their buttock, he used to touch the chest of the girl
students. The evidence of these girl students further
shows that they were sitting on the benches and
accused No.1 used to tell them whether they were
taking air from the beneath. In this respect if the
evidence of victim girl (PW-1) is perused, she has no
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where made allegations against accused No.1 that he
was behaving in indecent manner with the girl
students while teaching in the class room. These
other prosecution witnesses have not filed any report
alleging the indecent behaviour of accused No.1.
35. The prosecution has examined PW-5 Pramila
Satish Gade, who is the panch to the spot panchnama
(Exhibit-23) in respect of 7th - A class room of the
school. During the course cross examination, PW-5
Pramila admitted that being social worker on various
occasions she used to visit Police Station. She used
to help Police for preparing panchanama. Her cross
examination further shows that PI Patil was well
acquainted with her prior to panchanama being social
worker and PI Patil requested her to act as panch.
Thus, defence has brought on record that PW-5 always
used to help Police for preparing panchanama. Thus it
appears that this panch is a got-up witness and
therefore the evidence of this panch witness is not
useful to the prosecution case.
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36. PW-7 Nitesh Balkrishna Ghase is the panch
to the seizure panchanama (Exhibit - 28) of one piece
of cloth of red colour from the computer room of the
school. However, PW-7 stated in the cross examination
that he does not remember the room in which the piece
of cloth was found. Thus evidence of this witness is
also not helpful to the prosecution case.
37. PW-8 Anil Khalchandra Patil is the panch to
arrest panchanama (Exhibit - 32) regarding arrest of
accused Jadhav and seizure panchanama (Exhibit - 33)
in respect of clothes of accused No.1, which he was
wearing at the time of alleged incident. PW-8 has
specifically admitted in his cross examination that
at the relevant time of preparing panchanama, he was
working in a Canteen and was supplying tiffins to the
Police officers at the police station and he was
acquainted with PI Patil since two and half years.
Thus it appears that this witness is also got-up
witness.
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38. PW-9 Nahida Irfan Thakur is the panch to
the seizure panchanama (Exhibit-36) of wearing
clothes of victim girl like slip of red colour and
nicker of brown colour, which clothes the victim girl
was wearing at the time of incident as per the
prosecution case. The evidence of PW-9 shows that at
the time of filing of report, she was present in the
Police Station. Her evidence further shows that the
parents of victim girl informed Police that the
clothes produced by them were of the victim girl. Her
evidence further shows that she used to go to Police
Station to help the persons in need being social
worker. PW-10 Kamalakar Ganya Patil is the panch
witness to the spot panchanama (Exhibit-38) regarding
the computer room of the school where the alleged
incident took place.
39. Upon careful perusal of the evidence of
these panch witnesses i.e. PW-5, PW-7, PW-8, PW-9 and
PW-10, we are of the opinion that their evidence is
not useful to the prosecution case.
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40. PW-11 (to conceal his identity, his name is
not disclosed), is the father of the victim girl. His
evidence shows that his daughter i.e. victim girl,
narrated her incident of snapping the photographs of
her body by accused No.1 on mobile. PW-11 stated in
the cross examination that he did not remember the
exact time when they went to Police Station. He
further stated that he does not remember the exact
date or period of narration of incident by her
daughter to him. He further stated that he did not
inform to Police immediately when his daughter
narrated the incident to him. He further stated that
he never went to the school of his daughter when she
narrated him the incident. Thus the conduct of PW-11
does not appears to be natural as his evidence shows
that he did not inform Police immediately when his
daughter narrated the incident to him. If really such
uncommon incident would have been happened with the
daughter, natural conduct of the father would have
been to go immediately first to the school of the
daughter to complain the incident and then to the
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Police Station and report the matter.
41. PW-14 Dr. Bhimrao Dyanabarao Kamble is the
medical officer who has examined accused No.1.
evidence of PW-14 shows that on examination of
accused No.1 he found no injury on the glance penis,
no injury over the front of the chest of accused
No.1. In his opinion, accused No.1 was capable of
doing sexual intercourse. It is pertinent to note
that upon careful perusal of the evidence of victim
girl, it is difficult to believe that alleged
incident of sexual assault took place and therefore
the evidence of this medical officer is also not
useful to the prosecution case.
42. PW-13 - Rani Laxman Puri is the lady police
officer who has recorded the statements of students
of Primary School, Mothi Jui. PW-16 Tanaji Dadasaheb
Patil and PW-17 Sudam Ganu Avate were the
Investigating Officer who have deposed about the
manner in which they have carried out the
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investigation in the crime.
43. We have carefully considered the entire
evidence brought on record by the prosecution. As
observed earlier, we are of the view that the
evidence of the victim girl is not reliable and the
same does not inspire confidence of this Court. The
prosecution has brought on record several
contradictions, omissions and improvements in her
evidence showing that the same is not trustworthy.
The evidence of other prosecution witnesses is not
consistent with each other and the same is also not
reliable. The prosecution has failed to prove that
obscene photographs were of the victim girl or that
of the prosecution witnesses who are minor girls. The
prosecution failed to prove beyond reasonable doubt
that victim girl was sexually assaulted at the hands
of accused No.1 and that in the said process
accused No.2 abetted him. There is material variance
in the core of the prosecution case as to where
exactly the alleged incident of sexual assault took
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place. Thus, the main incident of sexual assault, on
which prosecution is based, is not at all proved by
the prosecution. Even the medical evidence does not
support the prosecution case. As observed earlier,
the evidence of PW-14 Dr. Jaya who examined the
victim girl - Y shows that, there was no external
injury on any part of the body including private part
of the victim girl and her Hymen was intact. The
evidence of this medical officer clearly shows that
the case referred to her was not of rape. The
evidence of medical officer (PW-14) further shows
that according to her opinion there was evidence of
possible sexual abuse. Thus, the medical officer has
not stated definitely that it was even the case of
sexual abuse and only opined that incident of sexual
abuse may have happened. We are conscious of the fact
that in the present case there are allegations of
sexual assault on a minor girl. However, in absence
of cogent, trustworthy, reliable and sufficient
evidence, we are unable to subscribe the view taken
by the trial Court. We have to remind ourself of the
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observations made by the Supreme Court in the case of
Sarwan Singh Rattan Singh V/s State of Punjab15,
which are as under :-
"The result is that, if the approver's
evidence is discarded as unworthy of credit
and his own retracted confession is excluded
from consideration as not being voluntary of
true whatever circumstantial evidence remains
is obviously insufficient to bring home to
Sarwan Singh the charge framed against him.
If that be the true position, we must hold
that, the learned Judges of the High Court
were in error in convicting Sarwan Singh of
the offence of murder.
It is no doubt a matter of regret that a foul
cold-blooded and cruel murder like the
present should go unpunished. It may be as
Mr. Gopal Singh strenuously urged before us
that there is an element of truth in the
prosecution story against both the
appellants. Mr. Gopal Singh contended that,
considered as a whole the prosecution story
may be true; but between `may be true' and
`must be true' there is inevitably a long
15. AIR 1957 SC 637(1)
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distance to travel and the whole of this
distance must be covered by legal, reliable
and unimpeachable evidence."
44. Thus upon re-appreciation of entire
evidence, we are of the considered opinion that, the
evidence of the victim girl-Y, medical officer
(PW-14) and other prosecution witnesses is not
acceptable and cannot form basis for conviction. So
also, the evidence on record do not establish that
actually the alleged incident of sexual assault took
place. The evidence on record is not sufficient to
prove the guilt of accused beyond reasonable doubt.
There is no clinching and credible evidence to
convict the accused for the offences levelled against
them. The reasons and findings recorded by the trail
court are found to be perverse and based upon
improper appreciation of evidence on record and not
sustainable in law. We are of the view that
prosecution has failed to prove the guilt against
both the accused beyond reasonable doubt. Therefore,
both the accused deserves to be given benefit of
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doubt.
45. It would be necessary to mention here that
there are another two Appeals which are also filed by
the present Appellants - i.e. original accused Nos.1
and 2, challenging their conviction and sentence
passed by the trial Court, wherein crime was
registered at the instance of another victim girl-X,
alleging the same offences like present one. As ample
evidence was brought on record by the prosecution in
the said case including supporting medical evidence,
We have dismissed those Appeals and confirmed the
conviction and sentence passed against the Appellants
therein i.e. accused No.1 Datta Jadhav and accused
No.2 Vanita Patil, who are the Appellants in the
present Appeals. But, in the present case the
evidence is very scanty and the Appellants deserve to
be given benefit of doubt.
46. In the result, the Appeals filed by both
the accused-Appellants deserve to be allowed and
conviction of both the Appellants is liable to be set
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aside. Consequently, the Appeal filed by the State
for enhancement of the sentence, deserves to be
dismissed. We, therefore, pass the following order :
O R D E R
(I) Criminal Appeal No.935 of 2014 and Criminal Appeal No.921 of 2014 are hereby allowed.
(II) The Judgment and order dated 28 th October, 2014, passed by the Additional Sessions Judge, Raigad-Alibag in Sessions Case, thereby convicting and sentencing the Appellant - accused No.1 - Datta Somnath Jadhav for the offence punishable under Sections 376(2)(b) of the Indian Penal Code read with Section 5(c), 6 of Protection of Children from Sexual Offences Act, Section 292, 509 of the Indian Penal Code read with Section 14 of the Protection of Children from Sexual ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:07:45 ::: 50 Cri.Apeal 935.14.doc Offences Act read with Section 67-B of Information Technology Act, Section 342, 354 of the Indian Penal Code, is quashed and set aside.
(III) The Judgment and order dated 28th October, 2014, passed by the Additional Sessions Judge, Raigad-Alibag in Sessions Case, thereby convicting and sentencing the Appellant - accused No.2 - Vanita Vasant Patil for the offence punishable under Sections 376(2)(b), 109 of the Indian Penal Code read with Section 5(c), 6 and 17 of Protection of Children from Sexual Offences Act, Section 292, 509, 109 of the Indian Penal Code read with Section 14 and 17 of the Protection of Children from Sexual Offences Act read with Section 67-B of Information Technology Act, Section 342 of the Indian Penal Code, is quashed and set aside.
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Cri.Apeal 935.14.doc (IV) Both the Appellants i.e. - Datta Somnath Jadhav and Vanita Vasant Patil, are acquitted of the offence under Section 376(2)(b), 354, 292, 509, 342, 109 of the IPC and under Section 5(c), 6, 14 and 17 of Protection of Children from Sexual Offences Act and under Section 67-B of Information Technology Act. Fine amount, if deposited as per the impugned Judgment and order, be refunded to both the Appellants.
(IV) Both the Appellants are in jail, they be set at liberty forthwith, if not required in any other case.
(VI) Both the Appellants shall furnish Personal Bond of Rs.15,000/- each and surety in the like amount each, under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Raigad-Alibag.
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