Bombay High Court
Raju S/O Vijay Rathod ( In Jail) vs The State Of Maharashtra Thr. Police ... on 5 May, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 Appeal 323of2013....
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL 323 OF 2013
AND
CRIMINAL APPEAL 341 OF 2013
AND
CRIMINAL APPEAL 361 OF 2013
CRIMINAL APPEAL 323 OF 2013
Raju s/o. Vijay Rathod,
Aged about 39 years,
r/o. Shendurjana (Adhao)
Tahsil Manora, District Washim ...APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station Asegaon,
Tahsil Manora, District Washim ...RESPONDENT
CRIMINAL APPEAL 341 OF 2013
Suresh Udaysingh Chavan,
Aged about 44 years,
r/o. Palodi, Tahsil Manora, District Washim ...APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station Asegaon,
Tahsil Manora, District Washim ...RESPONDENT
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2 Appeal 323of2013....
CRIMINAL APPEAL 361 OF 2013
Kisan s/o. Baburao Pande,
Aged about 40 years,
r/o,. Mendra,
Tahsil Manora, District Washim ...APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station Asegaon,
Tahsil Manora, District Washim ...RESPONDENT
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Shri S.D.Chande, counsel for appellant in(Cr.Appeal 341 of 2013)
Shri Akshay Naik, counsel for appellant in (Cr. Appeal 323 of 2013
and 361 of 2013)
N.B. Jawade, Additional Public Prosecutor for respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
5 May, 2018.
ORAL JUDGMENT
The appellants - accused are assailing the judgment and order dated 30.5.2013 rendered by the Additional Sessions Judge, Washim in Session Trial 92 of 2009, by and under which the accused are convicted for offence punishable under section 354 read with section 34 of the Indian Penal Code ("IPC" for short) and are sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/- each and are further convicted for offence punishable under section 307 of th IPC and are sentenced to suffer rigorous imprisonment for five years and to ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 3 Appeal 323of2013....
payment of fine of Rs. 1000/- each. The accused are acquitted of offence punishable under section 3(1)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act ("Atrocities Act" for short). Since the Criminal Appeals are assailing same judgment and order, they are heard together and decided by this common judgment.
2 Heard Shri S.D.Chande, learned counsel for appellant in Criminal Appeal 341 of 2013, Shri Akshay Naik, learned counsel for the appellants in Criminal Appeal 323 of 2013 and Criminal Appeal 361 of 2013 and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent / State. 3 The prosecution case:-
The prosecutrix, who is resident of village Watfal was employed at the hospital of Dr. Kholgale at Digras as a nurse. On 27.6.1999, she boarded a bus at Digras and disembarked at village Dhanora at 5.00 p.m.. She was waiting for another bus to proceed from Dhanora to Watfal. However, since the bus did not arrive, the prosecutrix opted to travel in a jeep driven by accused 1 Suresh Chavan. Accused 2 Kisan Pande and accused 3 Raju Rathod and others were co-passengers. The passengers travelling ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 :::
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in the jeep, other than Kisan Pande and Raju Rathod alighted at village Hivra (Shegi). Suresh Chavan stopped the jeep at some distance from village Shegi on a road. Accused 1 Suresh Chavan came in the rear side of the jeep. Accused Suresh and Raju molested the prosecutrix by pressing her breast. When the prosecutrix resisted, she was assaulted by fist. The prosecutrix was warned not to lodge report and was then thrown out from the running jeep near village Ingalwadi. The prosecutrix become unconscious. PW 7 - Police Station Officer - Shri Avale received telephonic message at 8.30 p.m. that one lady was thrown out from the jeep near village Ingalwadi. PW 7 rushed to the spot and saw the prosecutrix lying on the road in an injured condition. PW 7 took her to Rural Hospital, Mangrulpir where the prosecutrix was examined and then referred to Government Hospital, Akola for further treatment. The statement of the prosecutrix was recorded at the Government Hospital, Akola by PW 6 on 28.6.2009. On the basis of the said statement, which is marked Exh. 47 presumably since the same is treated as First Information Report, offence punishable under section 307 and 354 read with section 34 of the IPC came to be registered. Investigation ensued and accused Suresh Chavan and Kisan Pande were arrested on 14.7.2009 and 26.8.2009 respectively. Accused Raju Rathod was ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 5 Appeal 323of2013....
shown absconding and chargesheet was filed against accused 1 Suresh Chavan and accused 2 Kisan Pande. Accused 3 Raju Rathod was arrested on 18.1.2010 and supplementary chargesheet was submitted in the Court of Judicial Magistrate First Class, Mangrulpir. The case was committed to the Sessions Court. The learned Sessions Judge framed charge (Exh. 31) for offence punishable under section 307, 354 read with section 34 of IPC and punishable under section 3(1)(xi) and 3(2)(v) of the Atrocities Act. The accused pleaded not guilty and claimed to be tried. The defence is of total denial and false implication. 4 The edifice of the prosecution case is constructed on the evidence of the prosecutrix and corroboration is sought from the evidence of her mother - PW 4 Bajabai Hajare who claims that on the next day of the incident when the prosecutrix regained consciousness, she disclosed that the accused had thrown her out from the running jeep after outraging her modesty, and from the medical evidence.
5 The learned counsel for accused 1 Shri S.D. Chande and the learned counsel for accused 2 and 3 Shri Akshay Naik submitted in unison that the evidence of the prosecutrix is marred ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 6 Appeal 323of2013....
by contradictions and embellishments. Shri Akshay Naik further submits that in so far as accused 2 Kisan Pande is concerned, there is absolutely no whisper in the evidence of the prosecutrix of any complicity of the said accused. In so far as accused - 3 Raju Rathod is concerned, the submission of the learned counsel Shri Akshay Naik that it is obvious from the evidence that the prosecutrix has named the said accused at the instance of Shalikram Rathod and Sanjay Rathod and the defence of false implication is more than probabilized on the touchstone of preponderance of probabilities. Per contra, Shri N.B. Jawade, the learned Additional Public Prosecutor supports the judgment and order impugned.
6 PW 1 - Bharas Rathod who was examined to prove spot panchanama Exh. 34 and seizure panchanama Exh. 39 did not support the prosecution. Nothing is elicited in his cross- examination by the learned APP to assist the prosecution. 7 PW 2 - Ashok Rathod, who is examined to prove the panchanama Exh. 41 evidencing the seizure of the jeep also did not support the prosecution.
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8 PW 3 - Mala Hajare is the prosecutrix, whose evidence shall be dealt with at a later stage in the judgment. 9 PW 4 - Bajabai Hajare is the mother of the prosecutrix who claims that on the next day of the incident, while undergoing treatment at the Government Hospital, Akola, the prosecutrix disclosed that the accused had outraged her modesty and threw her out from the jeep. Her statement is recorded belatedly on 9.11.2009 and it is elicited in the cross-examination that PW 4 Bajabai did not disclose the incident to anybody till 9.11.2009. 10 PW 5 - Dnyaneshwar Rathod has deposed that he heard a commotion and people were saying "girl fell, girl fell". He was declared hostile and cross examined by the learned Additional Public Prosecutor, to no avail. In the cross-examination on behalf of accused 1 PW 5 Dnyaneshwar states that one unknown vehicle gave dash to the girl and fled away from the spot. 11 PW 6 - Moharsingh Jadhao is the Head Constable who recorded the statement of the injured prosecutrix and admitted her in General Hospital, Akola. He has proved the statement of the prosecutrix, which is treated as First Information ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 8 Appeal 323of2013....
Report and marked Exh. 47. PW 7 has deposed as regards the investigation conducted by him till the investigation was taken over by Police Station Officer, Asegaon. It is elicited in the cross- examination that if a person proceeding from Digras to Watfal, he has to come to Shegi Fata and then proceed towards Shegi, Hivra, Ingalwadi and Watfal and that it is not necessary to go to village Dhanora. The endeavor of the cross-examiner is to demonstrate that the version of the prosecutrix that from Digras she went to Dhanora where she boarded the jeep, is doubtful. It is elicited in the cross-examination that in Exh. 47 he applied whitener and thereafter the name of the accused Suresh Chavan was written. PW 6 Moharsingh has proved the omissions vis-a-vis the statement of the prosecutrix Exh. 47.
12 PW 7 - Dattatray Awhale is the Police Officer who received the message that one lady was thrown from running jeep at village Ingalwadi and who rushed to the spot. PW 7 has deposed as regards the investigation conducted by him till the investigation was taken over by the Sub-Divisional Police Officer, Mangrulpir since the offence under the Atrocities Act was registered against the accused. It is elicited in the cross- examination, that PW 7 could not ascertain the names of the ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 9 Appeal 323of2013....
passengers who were traveling in the jeep. PW 7 claims to have recorded the supplementary statement of the prosecutrix on 8.7.2009. The omissions in the evidence of the prosecutrix vis-a- vis the said supplementary statement recorded on 8.7.2009 are duly proved in the cross-examination.
13 PW 8 - Narayan Pawar took over the investigation since the offence under the Atrocities Act was registered. PW 8 claims to have recorded the supplementary statements of the prosecutrix on 9.11.2009 and 14.11.2009. It is extracted in the cross-examination that the prosecutrix did not disclose the complete name of accused Raju Rathod in the report or the statement.
14 PW 9 Dr. Dilip Mehta who was then attached to Rural Hospital, Mangrulpir examined the prosecutrix on 27.6.2009 and noticed the following injuries:
"(i) Contusion with abrasion on nose of size 3 x 2 cm, the injury may be grievous and caused by hard and blunt object, age of the injury was fresh.
(ii) contusion on right maxillary of 3 x 3 cm, nature of the injury may be grievous, it was fresh injury, caused by hard and blunt object.
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(iii) Contusion with abrasion on upper lip of 2 x 3 cm, fresh, simple one, it was fresh, caused by hard and blunt object.
(iv) Contusion with abrasion on right elbow joint of 2 x 2 cm nature of the injury simple, it was fresh, caused by hard and blunt object."
PW 9 admits that the injuries mentioned in medical certificate Exh. 86 are possible if a person falls on the road. It is elicited that thumb impression of unconscious patient can not be obtained on certificate. The attempt of the cross-examiner was to create a doubt about the version of the prosecutrix that she became unconscious and regained consciousness only at the Government Hospital, Akola.
15 The most important witness from the perspective of the prosecution is PW 3, the prosecutrix. Having given anxious consideration to the evidence of PW 3, I am inclined to accept the submission of the learned counsels Shri Akshay Naik and Shri S.D. Chande that her evidence is not at all confidence inspiring. The evidence is too shaky and fragile to be the basis of conviction. Contradictions and embellishments in the evidence render the ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 11 Appeal 323of2013....
evidence untrustworthy. The shoddy investigation does not take the case of the prosecution any further. No attempt is made by the Investigating Agency to ascertain whether the prosecutrix was in Dhanora at the relevant time, whether she as a fact boarded the jeep driven by accused Suresh Chavan, whether the version of the prosecutrix is corroborated by the passengers in the jeep or any other person who surely would have witnessed the incident, were the prosecutrix thrown out from the running jeep. In so far as accused 2 Kisan Pande is concerned, there is not even a whisper in the substantive evidence of the prosecutrix. Strangely, Exh 47 which is the First Information Report is treated as substantive evidence to convict accused 2 Kisan Pande. The learned Sessions Judge committed a horrendous error in treating the First Information Report as substantive evidence. 16 In so far as accused Suresh Chavan and Raju Rathod are concerned, the evidence of the prosecutrix is not at all confidence inspiring. She claims that accused Suresh Chavan was driving the jeep and he stopped the jeep ahead of village Shegi on the road. The version of the prosecutrix is that accused Suresh Chavan came in the rear portion of the jeep and he and accused Raju Rathod pressed her breast. Her version is that when she ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 12 Appeal 323of2013....
resisted, accused assaulted her and then threw her out from the running jeep near village Ingalwadi. It is obvious, that if accused Suresh Chavan was driving the jeep, he could not have thrown the prosecutrix out of running jeep. The statement in the substantive evidence that accused Suresh Chavan was driving the jeep is an omission vis-a-vis the First Information Report dated 28.6.2009 and the supplementary statement dated 8.7.2009. According to the witness, she mentioned the said fact in the second supplementary statement dated 9.8.2009. However, it has come in her evidence that her statement was recorded only on two occasions, when she was admitted in hospital and then two days after discharge. The statement in the substantive evidence that accused Suresh Chavan pressed her breast is again an omission. The statement in the substantive evidence that accused assaulted the prosecutrix by means of fist, is again an omission vis-a-vis the two statements dated 28.6.2009 and 8.7.2009. The statement that accused Raju Chavan pressed the breast of the prosecutrix is again an omission. According to the prosecutrix, she came to know the name of accused 3 Raju Rathod from Shalikram Rathod and Sanjay Rathod. She admits that the full names of the accused were not disclosed by her to the police. On every material aspect and facet of the alleged incident, the evidence of the prosecutrix is ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 ::: 13 Appeal 323of2013....
marred by contradictions and embellishments.
On a holistic reconsideration of the evidence on record, I am not inclined to concur with the learned Sessions Judge that the prosecution has proved the offence beyond reasonable doubt. 17 It must be recorded that accused 2 Kisan Pande and the prosecutrix moved a joint application for compounding of the offence. The prosecutrix who was present in the Court and to whom I put certain questions stated that she named accused 2 Kisan Pande due to misunderstanding. Be that as it may, since the offence is not compoundable, I have not considered the said application.
18 The judgment and order impugned is unsustainable and is set aside. The accused are acquitted for the offence punishable under sections 354 and 307 read with section 34 of IPC. 19 Bail bonds of the accused are discharged, fine paid by the accused, if any, be refunded.
20 The appeals are allowed.
JUDGE RS Belkhede, PA ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:18 :::