Bombay High Court
Vasant Hindurao Patil vs The State Of Maharashtra on 15 February, 2011
Author: R. C. Chavan
Bench: R. C. Chavan
1 APPEAL 478 OF 1993
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLEAL NO.478 OF 1993.
Vasant Hindurao Patil,
residing at New Chavare,
Taluka : Hatkanangale,
District : Kolhapur. .. Appellant.
Versus
The State of Maharashtra ..Respondents
Mr. Vinod Jadhav, i/b Mr. Vijay Patil, for the Appellant.
Mr. S.A. Shaikh, APP for the Respondent State.
CORAM: R. C. CHAVAN, J.
DATED : 7th March, 2011.
Oral Judgment:
1. This appeal is directed against conviction of the appellant for the offence punishable under Section 354 of the Indian Penal Code and sentence to suffer R.I. for six months and fine of Rs.1,000/- or in default to suffer R.I. for 3 months, imposed upon the appellant by the learned Additional Sessions Judge, Kolhapur, on conclusion of Sessions Trial No. 105 of 1992.
2. The facts which are material for deciding this appeal are as under:-
The appellant resides in the vicinity of the house of ::: Downloaded on - 09/06/2013 16:51:15 ::: 2 APPEAL 478 OF 1993 prosecutrix at village Chaware. On 18.10.1989, he went to the house of the prosecutrix and asked her mother to cook meat for him. He was accompanied by one Mahadeo Suryawanshi. At that time victim's mother told the appellant that she did not have firewood, whereupon the appellant and Mahadeo Suryawanshi told her that they would give firewood and she may send her daughter, the prosecutrix, with them.
At that time the prosecutrix was just 8 years old. The prosecutrix, therefore, accompanied ig the appellant and Mahadeo and returned weeping in 10 to 15 minutes complaining that the appellant had committed rape upon her. This occurred between 7.30 to 8.00 p.m.
3. On the next day, a report was given to the police whereupon an offence was registered and investigation commenced. In the course of investigation, Investigating Officer seized the clothes of the victim and sent them to the Forensic Science Laboratory, where they were found to have two stains of blood. Victim was also sent for medical examination which, however revealed that the victim did not have any injury on her person and there was no evidence of any rape. The Investigating Officer, performed panchnama of spot, recorded statement of witnesses and on completion of investigation sent chargesheet to the Court of Judicial Magistrate First Class, Vadgaon, who committed the case to ::: Downloaded on - 09/06/2013 16:51:15 ::: 3 APPEAL 478 OF 1993 the Court of Sessions.
4. The Additional Sessions Judge to whom case was assigned, charged the appellant for offence punishable under Section 376 of the Indian Penal Code. The appellant pleaded not guilty to the said charge and hence was put on trial at which prosecution examined in all five witnesses in its attempt to bring home the guilt of the appellant.
5. After considering the prosecution evidence in the light of defence of denial and false implication, raised by the appellant, learned Trial Judge acquitted the appellant for the offence punishable under Section 376 of the Indian Penal Code, but held him guilty of the offence punishable under Section 354 of the Indian Penal Code and convicted and sentenced him as aforementioned. Aggrieved thereby the appellant has preferred this appeal.
6. I have heard learned counsel for the appellant and learned APP for the State. With the help of both the learned counsel, I have gone through the record.
7. Learned counsel for the appellant submitted that a totally false and concocted case was filed because the appellant had complained to the authorities about business of illicit distillation of liquor in which mother of prosecutrix was involved. Learned counsel submitted that if the appellant and the mother of the prosecutrix were not acquainted with each ::: Downloaded on - 09/06/2013 16:51:15 ::: 4 APPEAL 478 OF 1993 other, there would be no occasion for the appellant to request the mother of the prosecutrix to cook meat for him or to send prosecutrix to bring firewood with him. He further submitted that when there were absolutely no injuries on the person of prosecutrix as observed by the Medical Officer, presence of two blood stains in the report of Forensic Science Laboratory would be indicative of an attempt to concoct a false case against appellant and therefore submitted that the case of the prosecution ought to have been rejected by the learned Trial Judge.
8. Learned APP, on the other hand submitted that there was absolutely no reason for the first informant or her daughter to falsely implicate the appellant and there is nothing to show that the appellant had been campaigning against illicit distillation of the first informant. Therefore, according to learned APP, the learned Trial Judge had rightly reduced the gravity of the offence from that of offence under Section 376 to 354 of the Indian Penal Code and inflicted a lighter sentence upon the appellant.
9. I have carefully considered these contentions. There can be no doubt that the prosecutrix should ordinarily be believed when she deposes about such sexual assault because ordinarily no woman would make such allegations as they would also reflect on her own character in future. ::: Downloaded on - 09/06/2013 16:51:15 :::
5 APPEAL 478 OF 1993 However, in this case, it is intriguing that the P.W.1 Mankawwa, the first informant, states in her cross examination that the accused was not on visiting terms with her and yet wants the Court to believe that the accused made request to her to cook meat for him or that she told the appellant that she did not have firewood and on his promising to give firewood, sent her daughter of 8 years, with the appellant at 7.30 p.m. in the night. Apart from this learned counsel for the appellant also rightly pointed out that the incident has not taken place in any isolated spot. Further even according to prosecution, the appellant was accompanied by one more person, who has not been examined at the trial. Therefore, it would be incredible to suggest that the appellant would indulge in such misadventure when he was accompanied by someone else and when he had in fact requested the mother of the prosecutrix to cook meat for him, asking her to send her daughter with appellant to bring firewood.
10. P.W. 1 Mankawwa stated that her daughter had returned weeping in 10 to 15 minutes. Prosecutrix herself stated that she had accompanied the appellant to a hut which was at some distance from the house of prosecutrix. If the prosecutrix could go to the hut and return to the house weeping in 10 to 15 minutes, one can imagine that hut may ::: Downloaded on - 09/06/2013 16:51:15 ::: 6 APPEAL 478 OF 1993 be just in the vicinity of the prosecutrix's house, making it difficult to believe that the appellant would indulge in such an adventure so close by the house of the prosecutrix.
11. P.W.1 Mankawwa, had admitted that even on the date of incident, she had been to Vadgaon Police station as a case had been filed against her regarding manufacturing of illicit liquor. Thus, the defence that the first informant was in the business of illicit distillation and that the accused was one of several persons, who had filed application against first informant is not improbable, though no suggestion to this effect is made either to P.W.3 Police Patil - Dilip Mahadik, Investigating Officer or P.W.4, Police Inspector, Madan Patil, who taken over the investigation of crime from Shantaram Patil, who has been examined as P.W.5, and who had registered offence. Ideally, if it be the appellant's defence that he had been campaigning against first informant's illicit distillation, suggestion to this effect should have been made to P.Ws. 3 to 5. But its absence does not make the defence improbable, since suggestion to this effect has been made to the first informant herself. Further, as has been already recounted, first informant has admitted that a case about illicit distillation had been filed by the police against her. In this background and in the absence of any injuries on the person of victim, as also Medical Officer's report clearly ruling ::: Downloaded on - 09/06/2013 16:51:15 ::: 7 APPEAL 478 OF 1993 out any rape on the victim. The first informant has ventured to make a report of a rape on her 8 year old daughter, not promptly though first informant was obviously not a stranger to police, (having been to the police station on the very day). but on the next day of the incident. Though the delay is sought to be explained by stating that there was some attempt for settlement in village, there is no evidence to show that any such attempt of settlement delayed filing of the report. Learned counsel for the appellant may be right in submitting that presence of blood stains on the garment of the victim found in the report of Forensic Science Laboratory at Exh. 17 would, in the context of absence of any injuries observed by the Medical Officer, indicate concoction of evidence to falsely implicate appellant. Had there been any injuries observed by the Medical Officer, these blood stains should have been explained. But in the absence of any injuries on the victim, observation of stains of the blood on the frock and nicker of the victim would make it probable that the stains were planted to implicate the appellant.
12. To recapitulate the first informant is involved in illicit distillation of liquor, though she had denied the suggestion that the appellant claimed to have campaigned and complained against her illicit distillation, secondly the appellant would normally have no business to ask the first ::: Downloaded on - 09/06/2013 16:51:15 ::: 8 APPEAL 478 OF 1993 informant to cook meat for him and thirdly the probability of the appellant attempting to rape first informant's daughter just in the vicinity of her own house was remote, fourthly the report itself was made on the next day of the incident, fifthly Medical Officer found that there was no rape at all and yet stains of blood were found on the clothing of the prosecutrix in report from Forensic Science Laboratory. The learned trial Judge should therefore have held that the defence raised by the appellant was probable and the appellant might have been falsely implicated on the charge of rape because appellant complained against the first informant's illicit distillation.
13. In view of this, appeal is allowed extending the benefit of doubt to the appellant. His conviction for the offence punishable under Section 354 of the Indian Penal Code and sentence to suffer R.I. for six months and fine of Rs.1,000/- or in default to suffer R.I. for three months, is set aside. Instead, he is acquitted of the said offence. Fine amount if paid by the appellant be returned to him.
(R. C. CHAVAN, J.) ::: Downloaded on - 09/06/2013 16:51:15 :::