Bombay High Court
Yadav S/O Maroti Navghare (In Jail) vs The State Of Maharashtra, Thr. P.S.O. ... on 10 April, 2017
apeal.269.16.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.269 OF 2016
Yadav s/o Maroti Navghare,
Aged about 40 years, Occupation : Service,
R/o Pachgaon, Tahsil Rajura,
District Chandrapur (Presently in Jail) .... Appellant
-- Versus --
The State of Maharashtra,
Through Police Station Officer,
Police Station Rajura,
District Chandrapur. .... Respondent
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Shri R.M. Daga, Advocate for the Appellant.
Shri I.J. Damle, Additional Public Prosecutor for the Respondent/State.
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CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 10, 2017.
ORAL JUDGMENT :-
By this appeal, appellant-original accused no.1 has questioned the correctness of judgment dated 01/07/2016 passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No.168/2011, whereby accused no.1 has been convicted of the offences punishable under Sections 376, 376(B) and 506 of the Indian Penal Code sentenced as under : ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 2
Sections Sentence 376 IPC R.I. for 10 years + Fine of Rs.25,000/-, in default R.I. for 1 year. 376(B) IPC R.I. for 5 years + Fine of Rs.5,000/-, in default R.I. for 6 months. 506 IPC R.I. for 2 years + Fine of Rs.2,000/-, in default R.I. for 3 months.
The Sessions Court directed that substantive sentence shall run concurrently.
02] For the sake of convenience, appellant shall be referred in his original status as accused, as he was referred before the Trial Court.
03] Facts, as are necessary for the decision of this appeal, may be stated, in brief, thus :
i. Prosecutrix, a 25 year old girl, was resident of Ambedhanora, Tahsil Pombhurna, District Chandrapur. At the relevant time, she was residing with her grand- mother at Rajura. Her mother was resident of Ambedhanora.
::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 3 ii. On 27/07/2011, prosecutrix joined as ANM (Nurse) in Sub-Center Pachgaon. Incident took place on 29/07/2011. On that day, at 10:00 a.m., prosecutrix attended her office. She kept her tiffin in the quarter of Lata Ghorude, wife of the accused and came to Sub-Center. She was cleaning the Sub-Center. That time, accused came there. He sat on the chair and asked the prosecutrix to come near him. Prosecutrix refused for the same. Accused uttered "dq N ikus ds fy;s dq N [kks u k iMrk gS " and caught her hand. She tried to rescue herself. But accused did not leave her. Thereafter, she took teeth bite on his hand and accused left her. She then came out.
iii. At around 03:00 p.m., accused came in the quarter.
Prosecutrix had kept her tiffin, so she also came there. Lata, wife of accused was on leave on that day and she was not at the house. Accused made the prosecutrix to sit on a tea table and then on sofa. He held her hand and pressed her breast. He then closed the door.
::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 4 iv. Thereafter, accused pushed the prosecutrix and took her to a bedroom. She was made to lie down on the bed. Accused removed her clothes. He unclothed himself. Prosecutrix tried to raise alarm, but accused pressed her mouth and forcibly committed sexual intercourse with her. Accused gave her threats not to disclose the incident to anyone, else he being Supervisor, would see that she should be removed from the service. Accused then reached her to Rajura on motorcycle.
v. On 30/07/2011 at around 08:00 a.m., prosecutrix came to Sub-Center Pachgaon. Accused threatened her not to disclose the incident to anyone. On 31/07/2011, prosecutrix went to her mother at Ambedhanora and narrated the incident to her mother.
vi. Thereafter, duo went to Police Station Rajura and lodged report. Crime No.112/2011 came to be registered. PW-10 API Sadanand Yerekar took over investigation. He visited the place of occurrence and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 5 recorded spot-panchnama in presence of panch- witnesses. Spot was shown by complainant. A quilt was seized from the spot. Its seizure panchnama was separately drawn vii. On 31/07/2011, prosecutrix was sent for medical examination to Rural Hospital, Rajura. PW-7 Dr. Anita Arke examined the prosecutrix and referred her to General Hospital, Chandrapur for expert opinion. viii. PW-5 Dr. Pallavi Ingle was Medical Officer at Civil Hospital, Chandrapur. On 01/08/2011, she examined the prosecutrix and opined that sexual intercourse had taken place with the prosecutrix more than 24 hours and less than 72 hours before examination. Samples of vaginal blood, pubic hair, nail clippings and clothes of victim were collected and seized.
Statements of witnesses were recorded. On 15/08/2011, further investigation was handed over to PW-11 Bharat Thakre.
::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 6 ix. On 17/08/2011, accused was arrested. His clothes were seized. Seizure panchnama of clothes of the accused came to be recorded. He was sent for medical examination. PW-9 Dr. Rajunand Gaikwad, Medical Officer attached to Rajura Rural Hospital, collected semen sample of the accused. PW-8 Dr. Lahu Kulmethe examined the accused and noticed no external injury on his person. Seized clothes and samples were forwarded to Chemical Analyzer. C.A. Reports were received. After completing investigation, charge-sheet was submitted to the Court of Judicial Magistrate First Class, Rajura, who in turn committed the case for trial to the Court of Sessions. 04] On committal, charge came to be framed against the accused for the offences punishable under Sections 376, 376(B), 506, 201 and 212 read with Section 34 of the Indian Penal Code. 05] Accused no.1, however, pleaded not guilty and claimed to be tried. His defence was of total denial and false implication. Two fold defence came to be raised by the accused
(i) at the relevant time, he was on visit to another Sub-Center ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 7 and he was not present at Pachgaon Sub-Center and; (ii) prosecutrix and her mother were demanding Rs.50,000/- from him alleging that he had taken money from maternal uncle of prosecutrix for getting the job for her and since no money was taken by him, he refused to pay Rs.50,000/- to the prosecutrix.
Accused submitted that since he had not paid Rs.50,000/-, he has been roped in a false case.
06] Prosecution in support of its case, examined 11 witnesses. Accused examined four witnesses in support of his defence. Considering the evidence of prosecution and defence witnesses, accused came to be convicted and sentenced as stated in paragraph no.1 above.
07] Heard at length Shri R.M. Daga, learned Counsel for appellant and Shri I.J. Damle, learned Additional Public Prosecutor for the State. In order to effectively deal with the submissions, it would be useful to refer here the evidence of prosecution witnesses.
08] PW-1 is the prosecutrix. She stated that on 27/07/2011, she joined as ANM (Nurse) in Sub-Center Pachgaon. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 8 On 29/07/2011, she came to the office at 10:00 a.m. The evidence of prosecutrix would indicate that she had kept her tiffin in the quarter of Lata Ghorude, wife of accused. Lata Ghorude was on leave on that day and she was not present in the quarter as she was at Rajura. According to prosecutrix, after keeping her tiffin, she called Lata Ghorude on phone, who instructed her to clean the Sub-Center first. She was cleaning the Sub-Center. She states that accused came there. He sat on the chair. She was standing near the table. That time accused told her to come closure to him. She refused. Then accused came closure to her and said "dq N ikus ds fy;s dq N [kks u k iMrk gS ". By saying so, he caught her hand. She tried to rescue herself by giving jerk to his hand. But accused did not leave her. She took teeth bite and then accused relieved her. She immediately came out. Accused went to his quarter.
It further appears from the testimony of prosecutrix that thereafter, she went inside the Sub-Center. When she came out, she saw accused standing there. He asked her where was she going. She told him that she was going to visit Anganwadi. On that, accused asked her that she is new and what does she know ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 9 about the visit. He is supervisor. She should sit there. Prosecutrix went inside the quarter and sat near tea-table. Accused caught hold her hand and took her to Sofa. He told her that her hands were soft and thereafter touched her breast. He immediately stood up and closed the door. He pushed her and took her to bedroom, made her to sleep on a wooden cot. She tried to raise alarm, but accused kept hand on her mouth and told her that if she shouts, he would kill her and he is the Supervisor. Thereafter, he removed her clothes. He unclothed himself and wore condom. She stated that accused forcibly committed sexual intercourse with her. Due to forcible sexual intercourse, she sustained bleeding. She stated that her clothes were stained with blood. She was weeping and wore her clothes. She then went to Sub-Center. That time accused threatened her not to disclose about the incident to anyone, otherwise he would kill her and oust her from service. Accused told her to sit on motorcycle. Under the fear, she sat on motorcycle. After visit to Anganwadi, accused left her at the place of her grandmother at Rajura.
::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 10 09] In her further evidence, prosecutrix deposed that on 30/07/2011, she went to Pachgaon on duty. On that day, accused threatened her and touched her breast. Thereafter, she went to village Ambedhanora. She had shown a notebook to her mother in which she had written about the incident. She disclosed the incident to her mother and on 31/07/2011, they went to Police Station Rajura, where report was lodged. Prosecutrix has proved F.I.R. Exh.47 and Printed F.I.R. Exh.48. She identified her clothes and quilt seized from the spot. 10] The testimony of prosecutrix is assailed on behalf of accused on the following terms.
i. Her evidence is full of omissions and
contradictions.
ii. No corroboration to her testimony.
iii. Medical evidence does not support the version of prosecutrix.
iv. Unexplained delay in lodging F.I.R.
v. Her post conduct on 30/07/2011 in not disclosing the incident to anyone, going to Sub-Center, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 11 attending her duty and accompanying the accused for visit to another Sub-Center.
vi. Before evidence, she was taken to D.G.P. Room by police and tutored regarding pattern of giving evidence.
11] In cross-examination, victim was questioned that on the day of incident, she along with accused had been to visit Gram Bal Vikas Kendra. She admits that she visited Gram Bal Vikas Kendra with accused. She also admits that Sindhu Bhiwankar and Shobha Jawade, workers were present at Gram Bal Vikas Kendra. Her evidence shows that she did not disclose about the incident to them. She admitted that on 30/07/2011, accused told her to visit Ranweli and she visited Ranweli along with the accused. During visit, she met Lata Wadgure, Anganwadi Sevika and Smt. Todase, helper. She did not disclose about the incident to them. Based on these admissions, learned Counsel for appellant vehemently contended that incident, as alleged by prosecutrix, has never occurred, else she would have disclosed about incident immediately to the ladies to whom she met or at least to her mother at the earliest possible opportunity. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 12 12] It is pertinent to note that prosecutrix joined her duty at Sub-Center Pachgaon on 28/07/2011 i.e. a day before the incident. It is not in serious dispute that accused was in dominating position as he was the Supervisor. Prosecutrix has categorically stated that at the time of incident, she was threatened by accused that in case she discloses the incident to anyone, she would be removed from service. A girl 24 year old, who was one day old in service, having hanging sword of threats of removal of service, did not disclose the incident under a fear and in such a situation, non-disclosure of incident by the prosecutrix till 31/07/2011 cannot be considered as fatal in the background of offence stated by the victim.
13] From the evidence of prosecutrix, it can be revealed that she had no earlier acquaintance with the accused. It appears that once before her joining, she came to Pachgaon Sub- Center and that time, she saw the accused. So far as demand of Rs.50,000/- by the prosecutrix and her mother as stated by the accused is concerned, there is nothing on record except a bare version of the accused to show that for getting Rs.50,000/-, prosecutrix has gone to the extremity of making allegations of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 13 sexual assault. She admits that accused demanded Rs.50,000/- from her maternal uncle for getting a job for her. She made a complaint in that regard to the Superior Officer of the accused. But this was subsequent to the incident and not before the incident. For getting back Rs.50,000/-, a young girl who hardly attended her duty a day before, would not bring her character and integrity to disrepute. The fact remains that on 29/07/2011, prosecutrix attended the office at 10:00 a.m. and thereafter accused taking disadvantage of his position as a Supervisor and grabbing the opportunity of absence of his wife, sexually assaulted the prosecutrix. On meticulous evaluation, evidence of prosecutrix is found to be consistent, believable, trustworthy and it inspires confidence.
14] PW-2 Premila Aitlawar is mother of prosecutrix. She was residing at Ambedhanora . It can be seen from the evidence of Premila that at the relevant time, prosecutrix was residing at Rajura with her grand-mother. The victim had stated in her evidence that she had shown a notebook in which she had written about the incident to her mother. It appears that the said notebook is not seized in the course of investigation. In this ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 14 connection, learned Counsel for appellant submits that one does not know about the contents in the notebook and there is every possibility that prosecutrix might have written something else and, therefore, notebook has been suppressed. True, notebook is not coming forth. It was for the Investigating Officer to seize the notebook. Merely because notebook is not seized, inference cannot be drawn against the prosecutrix that story was something else and not as stated by the prosecutrix. The evidence of prosecutrix would clearly indicate that she had no reason to grind an axe against the accused.
15] So far as the medical evidence is concerned, PW-5 and PW-7 are the Medical Officers, who examined the victim at Rural Hospital, Rajura and General Hospital, Chandrapur. PW-7 Dr. Anita admitted in unequivocal terms that she could not give definite opinion regarding sexual intercourse with the prosecutrix and so she referred the victim to General Hospital, Chandrapur. It is, however, evident from the evidence of PW-7 that during examination, victim stated history of sexual assault two days before i.e. on 29/07/2011. On internal examination, Doctor noticed fresh vaginal bleeding present, both thighs matted with ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 15 blood, hymen ruptured, abrasion above 1 cm size on 6 O'clock position with painful swelling, tenderness present over hymen and age of injury 1-2 days before the examination. 16] PW-5 Dr. Pallavi Ingle, Medical Officer at General Hospital, Chandrapur examined the victim on 01/08/2011. Incident took place on 29/07/2011. It is stated by Dr. Ingle that patient gave history of sexual assault by her Supervisor Yadav Navghare at PHC Dewada on 29/07/2011 at 03:00 p.m. She also told the Doctor that she lodged report at Rajura Police Station on 31/07/2011. She also told the Medical Officer that during sexual intercourse, condom was used.
17] On examination, Dr. Ingle found small abrasion of 1 cm present over posterior fornix. She found dried blood present. On separation of labia, fresh bleeding started. She noticed that hymen was torn. Reddish at 6 O'clock position. PV examination was painful and vagina was tender. She collected nail clipping and handed over to LPC Sweta. Dr. Ingle opined that intercourse had taken place with the victim. She also opined that dried blood and abrasion were showing that intercourse had taken ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 16 place more than 24 hours and less then 72 hours of the examination. Medical Certificate [Exh.62] is proved by Dr. Ingle. From the evidence of Dr. Ingle, it is apparent that sexual intercourse had taken place with the victim more than 24 hours and less than 72 hours of examination. This fully supports the evidence of prosecutrix that she was sexually assaulted on 29/07/2011.
18] It is the case of prosecution that after his arrest, accused was referred for medical examination and no external injury as stated by PW-8 Dr. Kulmethe was found on the person of accused. It is not in dispute that accused was arrested on 17/08/2011. It means accused was not immediately sent for medical examination. In this situation, it may be possible that no external injuries were found on his person and this by itself cannot be a ground to discard the testimony of prosecutrix and the medical opinion given by the Medical Officer of the General Hospital, Chandrapur, who is an independent witness. 19] The next ground, on which evidence of prosecutrix is assailed by the appellant, is her admission in cross-examination ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 17 that "before deposing in the Court today and prior to this, I was tutored in the DGP room by police on the pattern of giving evidence". Referring to this admission, learned Counsel for appellant strenuously submitted that such a course is not permissible and there was no need for the prosecution to take her to D.G.P. Room and tutor about the manner of evidence to be given in the Court. In support thereof, learned Counsel relied upon the decision of the Division Bench of this Court in Suresh Purushottam Ashtankar vs. The State of Maharashtra and another - [2015 ALL MR (Cri) 4243] and the decision of the learned Single Judge of this Court in Sharad Namdeorao Shirbhate vs. State of Maharashtra - [2007 ALL MR (Cri) 352].
20] In the case of Suresh Ashtankar (supra), accused was charged with the offence of murder and in the cross- examination, PW-1 Ku. Sharyu admitted that "it is true that, today, I have read my statement. It is true that police had given the same to me. It is true that the said police officer is sitting in the Court hall". In this background, paragraph 10 of the decision in Sharad Shirbhate was referred by the Division Bench of this ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 18 Court. It reads thus :
32. In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PW-1) has admitted that the police had read over his statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus:
"There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PW-2 Prabhakar taken by learned Counsel for the appellant is valid".::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 19
21] In the light of the facts in the case referred above, Division Bench of this Court approved the dictum of the learned Single Judge in that behalf.
22] In the present case, learned A.P.P. pointed out Marathi deposition of the prosecutrix and submitted that English translation regarding tutoring is totally incorrect. In Marathi, the admission of prosecutrix is recorded as "vkt dks V kZ r ;s . ;kiq o hZ vkfZ . k ekxP;k rkj[ks y k ljdkjh odhyka P ;k dk;kZ y ;k e?;s lka x .;kr vkys dh] d'kk jhrhus lk{k n~ ; k;ph vkgs" (today, before coming to the Court and on last date, in the office of the Government Pleader, it was told in what manner, evidence is to be given). 23] On reading Marathi deposition of the victim, it is apparent that English translation is not the true and correct translation of Marathi version of prosecutrix. Needless to state that in case of conflict, Marathi deposition would prevail. If Marathi version is taken into consideration, it can be seen that no where prosecutrix says that she was tutored, she was taught, she was told by police how the evidence was to be given in the Court. In the facts of the present case, this Court is of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 20 humble view that proposition of law laid down by the Division Bench in the case of Suresh Ashtankar (supra) and the learned Single Judge in the case of Sharad Shirbhate (supra) would not be applicable and the evidence of prosecutrix cannot be discarded on this count.
24] Prosecution has examined PW-2 Premila, mother of prosecutrix, to whom incident was disclosed on 31/07/2011. This witness corroborates the testimony of prosecutrix regarding disclosure of the incident. As stated above, medical evidence also to a large extent corroborates the testimony of PW-1 victim. 25] The evidence on seizure of clothes of prosecutrix and accused is assailed on the ground of sealing. Learned Counsel for appellant submitted that articles were not sealed and non- sealing vitiates the entire seizure procedure. It is further submitted that C.A. Reports [Exhs.100 and 101] are in the negative and, therefore, accused cannot be connected with the crime. On scrutiny of evidence on seizure, this Court finds that submission made on behalf of the accused cannot be said to be without substance. This piece of evidence is, therefore, kept out of consideration.
::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 21 26] Though accused raised plea of alibi stating that at the time of occurrence of incident, he was not at Pachgaon Sub- Center, but was present at another Sub-Center and he examined four witnesses in support of his defence, Trial Court has rightly disbelieved their evidence for want of legal proof. No original record came to be produced before the Court and it appears that only photostate copies were produced and exhibited in the course of evidence of defence witnesses. All the defence witnesses are interested persons and there is reason for them to side the accused. So far as demand of Rs.50,000/- by the prosecutrix and her mother is concerned, accused could not establish that for getting the amount of Rs.50,000/-, a young girl could invite disrepute to her character and chastity. Thus defence raised prima facie appears to be feeble and weak and cannot be accepted, even on preponderance of probabilities. 27] Accused is also convicted under Section 376(B) of the Indian Penal Code. Section 376(B) has been added by 2013 amendment and incident in the present case is of the year 2011 i.e. prior to the amendment. The offence under Section 376(B) relates to sexual intercourse by the husband upon his wife ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 22 during separation. It is no one's case here. On facts, provisions of Section 376(B) of the Indian Penal Code would not be attracted in the present case and so on this ground alone conviction of appellant under Section 376(B) of the Indian Penal Code is liable to be set aside. Regarding other offence, prosecution has proved the case beyond all reasonable doubt as discussed above and, therefore, judgment and order of conviction to that extent would be sustainable in law. Hence, the following order :
ORDER i. Impugned judgment and order of conviction of the appellant passed by the learned Additional Sessions Judge, Chandrapur, dated 01/07/2016 in Sessions Case No.168/2011 for the offences punishable under Sections 376 and 506 of the Indian Penal Code is confirmed.
ii. Impugned judgment and order of conviction of appellant in the case referred at (i) above under Sections 376 (B) of the Indian Penal Code is set aside. Accused is acquitted of the offence under Section 376(B) of the Indian Penal Code. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 ::: apeal.269.16.jud.doc 23 iii. No order as to costs.
iv. Appeal stands disposed of in the above terms.
(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 04/05/2017 ::: Downloaded on - 27/08/2017 22:43:07 :::