Dinesh vs State of Maharashtra

P.N. Deshmukh, J.

This appeal takes exception to the judgment and order dated 28th of September 2001 passed in Session Trial No. 27 of 1995 by the 2nd Additional Sessions Judge, Yavatmal, thereby convicting the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 7000/-, in default of payment of fine to undergo rigorous imprisonment for six months. The appellant is further convicted for the offence punishable under Section 354 of the Indian Penal Code and is sentenced to suffer imprisonment for one year and to pay a fine of Rs. 1000/- in default of payment of fine to suffer further imprisonment for three months. The appellant is also convicted for the offence punishable under Section 323 of the Indian Penal Code and is sentenced to suffer imprisonment for one month and to pay a fine of Rs. 500/-, in default of payment of fine further imprisonment for one month.

Prosecution case can briefly be stated as under-

It is the case of prosecution that PW 1 Sardar Singh, father of prosecutrix, on the day of incident was running a Dhaba (Hotel) in the field of appellant/accused. On 10th of May, 1994 at 8.00 p.m. appellant visited said place on his motorcycle and demanded liquor. PW 1 Sardar Singh therefore instructed PW 7 Ku. Harbans Kaur, prosecutrix, to accompany appellant on his motorcycle to go to village and to arrange for liquor and accordingly appellant left with prosecutrix towards village Mohada. After proceeding to some distance, appellant took his vehicle in one cattle shed belonging to him and forcibly took her in the cattle shed and on removing her clothes attempted to commit rape upon her when on hearing her shouts PW 1 Sardar Singh, father of the prosecutrix, arrived on the spot due to which appellant gave push to him and ran away from the spot.

It is further case of prosecution that prosecutrix then came running to her house and narrated incident to her mother PW 3 Sau. Vasant Kaur. On the same night at about 10 p.m. though complainant Sardar Singh went to Police Outpost at Runza his report was not accepted since police machinery was investigating in some theft case and thus report came to be lodged on 20th of May, 1994 at Police Station Pandharkawada. In the meantime, PW 1 Sardar Singh, on his own, got himself medically examined from PW 2 Dr. Ajit Phadke at Yavatmal on the day of incident. On the basis of report (Exh. 13) offence came to be registered vide Crime No. 113 of 1994, initially for the offence punishable under Section 354 of the Indian Penal Code. During the course of investigation statements of witnesses came to be recorded and offence under Section 376 read with Section 511 of the Indian Penal Code came to be added in the crime. On completion of investigation charge-sheet came to be filed in the Court of Judicial Magistrate (F.C.), Kelapur. In the course of time, case came to be committed to the Court of Sessions for trial.

Charge was framed against the appellant for the offence punishable under Sections 376 r/w 511, 323, 354 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried.

It is the case of appellant that he is falsely implicated since he was insisting complainant Sardar Singh to vacate the land upon which he was running his Dhaba and as such their relations were not cordial.

The learned Trial Judge, on considering the evidence on record, convicted appellant as aforesaid. Hence, this appeal.

Heard Mr. R.M. Daga, learned counsel for the appellant and Mrs. S.S. Jachak, learned Additional Public Prosecutor for the State.

To effectively evaluate the submissions advanced by learned Advocates for both the sides, I have scrutinized the evidence with their assistance.

Evidence of PW 7 Harbans Kaur, prosecutrix, reveals that at the time of incident she was 11 years old and was residing with her father Sardar Singh on Dhaba situated in the field. She knows the appellant. On the point of incident she stated that at about 8.00 p.m. when she was taking dinner at her house, appellant came on the motorcycle to Dhaba and enquired about liquor and told her to accompany him. Accordingly, she accompanied him on his motorcycle when accused brought her to nearby cattle shed in his field and by pulling her brought her inside the cattle shed. She further stated that appellant completely undressed her forcibly and on removing his clothes while he was lying on her body and was attempting to commit rape upon her she raised shouts upon which her father Sardar Singh arrived at the cattle shed and tried to catch the accused when he pushed her father due to which he fell down. She further stated that as she was frightened she went to her home. In the cross-examination prosecutrix has admitted that prior to incident she had accompanied with appellant for bringing liquor and has stated that on the day of incident her father had asked her to accompany appellant to bring liquor.

In view of above evidence, it is noted that prosecutrix accompanying appellant for getting liquor was to the knowledge of her father, and was an usual affair, probably since complainant Sardar Singh was running his Dhaba on a piece of land owned by the appellant. Be that as it may, on further considering the evidence of prosecutrix she appears to have materially improved her version thereby stating that appellant had completely undressed her and she had stated said facts to the police when her statement came to be recorded. However, she is unable to assign any reason why it is not so mentioned in the police statement. Defence has duly got said material omission proved from PW 8 Kishor Gawai, Investigating Officer, who has admitted that the prosecutrix had not stated in her statement that the appellant took out her clothes. In view of her evidence, as above, I find no substance to rely upon the same when she has stated that on arrival of her father, she and appellant were in naked condition and that in same condition she ran towards her house at Dhaba carrying her clothes.

In the background of above evidence of prosecutrix, evidence of PW 1 Sardar Singh, complainant, when perused, he has stated that at the time of incident age of his daughter was 11 years. Admittedly, there is nothing on record to establish proof of age of prosecutrix as she is neither referred for medical examination nor her ossification test is carried out. It is also noted that nothing is on record to establish if prosecutrix had attended any school and as such there is no such certificate placed on record to establish her age. It is also material to note that even in the Charge at Exh. 8, no age of prosecutrix is mentioned, as such her evidence and of her father PW 1 Sardar Singh that on the date of incident prosecutrix was 11 years old do not find any corroboration. Learned Additional Pubic Prosecutor on this count has submitted that evidence of prosecutrix was recorded on 24th of August, 2001 wherein she referred her age 18 years and thus considering the fact that the incident took place on 10th of May, 1994 prosecutrix was minor however in the absence of any material evidence which could have been easily obtained by the Investigating Officer, but the same is not obtained for the reasons best known to prosecution, it is not safe to hold that at the time of incident prosecutrix was minor. Complainant Sardar Singh further stated that he had sent his daughter along with appellant to bring liquor and after some time he heard shouts from the side of cattle shed of appellant which was at the distance of 250 ft. from Dhaba and on reaching there he saw appellant sitting on the person of prosecutrix who was lying on the ground and accordingly he gave call to him when appellant came out side and by giving push to him ran away. From the above piece of evidence it is difficult to say that appellant had really entered the cattle shed as what is stated by PW 1 Sardar Singh is that on hearing shouts of his daughter he went to cattle shed and gave call, upon which accused came out side and by giving push to him ran away. As such I do not find it safe to rely upon the said evidence of Sardar Singh that he has seen appellant sitting on the person of prosecutrix who was lying on the ground. Even otherwise PW 1 Sardar Singh does not appear to be truthful witness when he has stated that after incident when he visited to the hospital of PW 2 Dr. Ajit Phadke he was admitted for 4 to 5 days in the hospital however evidence of PW 2 Dr. Phadke do not establish fact of his admission in the hospital. In fact, according to Dr. Ajit Phadke he has examined PW 1 Sardar Singh on 11th of May, 1994 at 12.00 noon as a out door patient and issued injury certificate (Exh. 16). In the cross-examination Dr. Phadke admitted that Sardar Singh had not stated him about his visiting Police Station before coming to hospital nor has stated any details of incident to him except for stating that he was given push. In the background of above discussion, evidence of prosecutrix as well as PW 1 Sardar Singh does not inspire confidence to be acted upon as even on the point of FIR, which is admittedly lodged after ten days of the incident, it is specifically admitted by Sardar Singh that he has not given any statement to police and has further admitted that statement dated 20th of May, 1994 is not his statement and that he is not aware as to how the police had recorded the said statement. This witness has admitted that he has not stated in his police report that the incident took place in the cattle shed of accused and according to him he had lodged oral report which was reduced into writing by police and further admits to have not stated in his report (Exh. 13) that prosecutrix was seen lying on the ground and appellant was sitting on her person. He has also admitted that he was standing in the outer gate of cattle shed and from there gave call upon which appellant came out side and gave a push to him. He has specifically admitted that no push was given to him inside the cattle shed and also admitted that he had not gone inside the cattle shed. Complainant has further admitted to have not stated that he had caught hold of appellant and lifted him from the person of prosecutrix. He has admitted that portion mark ''C'' (Exh. 37) to that effect in the statement is not correct. In fact he has further admitted that when he reached the cattle shed the gate was close and appellant on opening the gate gave a push to him and ran away. In view of above admissions of complainant I do not find it safe to rely upon his evidence of his seeing appellant lying on the body of prosecutrix who was lying on the ground. Accordingly, I do not find it safe to rely upon either of the evidence of these two witnesses as their evidence do not inspire confidence to be acted upon nor they appear to be truthful.

Evidence of PW 3 Sau. Vasant Kaur, mother of the prosecutrix, is in fact contrary to the case of prosecution as she has deposed that on the day of incident at about 8 p.m. when she was present in the house appellant came to their house along with prosecutrix on his motorcycle and requested to arrange for liquor and then went to his cattle shed which was at some distance where from she heard shouts of her daughter upon which PW 1 Sardar Singh went to the cattle shed and after some time prosecutrix came weeping and told that appellant attempted to commit rape on her. She further stated that prosecutrix informed her that the appellant tried to commit rape on her on removing her clothes by sitting on her person. Above piece of evidence of Vasant Kaur do not find reliable to be acted upon in view of evidence of PW 8 Kishor Gawai, Investigating Officer, when he has admitted that prosecutrix has not stated in her statement to police that she had narrated the incident to her mother.

Having scrutinizing above discussed evidence which is contradictory to each other on material aspects and since there is nothing to establish age of prosecutrix on the day of incident nor there is any medical evidence, prosecution cannot be said to have established its case beyond reasonable doubt involving appellant for the offences for which he is charged. On the contrary, probable case set out on behalf of the appellant of his false implication due to appellant''s insisting complainant to vacate the land where he was running his Dhaba and the complainant''s refusal to vacate the same appears to be more probable. In the circumstances, appellant is entitled for acquittal by giving benefit of doubt. Hence, following order.

ORDER

Criminal Appeal No. 282 of 2001 is allowed.

The judgment and order passed by 2nd Additional Sessions Judge, Yavatmal dated 28th of September, 2001, in Sessions Trial No. 27 of 1995 convicting the appellant/accused Dinesh @ Banti Laxminarayan Agrawal for the offence punishable under Sections 376 read with Section 511 of the Indian Penal Code and under Sections 354 and 323 of the Indian Penal Code is quashed and set aside.

Bail bonds of the appellant stand cancelled.

Fine if any paid by the appellant be refunded to him.