Dnyaneshwar s/o Ramesh Bobde vs State of Maharashtra

In Criminal Appeal No. 3/2005, appellant/accused assailed

the judgment of conviction in Sessions Trial No. 77/2003 passed by

learned Additional Sessions Judge, Yavatmal by which he was convicted

for the offence punishable under Section 376 read with Section 511 of

the Indian Penal Code and sentenced to suffer rigorous imprisonment

for two years and to pay a fine of Rs. 2,000/- in default to suffer

rigorous imprisonment for two months. State has filed Criminal Appeal

No. 139/2005 for enhancement of sentence.

Case of the prosecution against the appellant-accused in

short is as under.

(i) That on the day of incident i.e. on 14-5-2003, daughter of

complainant aged about 7 years had gone for the marriage. After

attending the marriage, she stayed in the house of her paternal

grandmother Renukabai. At about 5.30 p.m., daughter of complainant

came to house. She was weeping. When complainant asked her

daughter as to why she was weeping, then her daughter told that Balya,

friend of Raju uncle had given one rupee to her and two rupees to Maya.

She purchased pepsi. Appellant lifted her and sit her in white Tata

Sumo Jeep saying that he would reach her to her house. Victim told

complainant that appellant taken jeep to Jam Road. He had taken out

her knicker. He also unchained chain of his full-pant and did obscene

act with her. Victim also told her mother that she was having pains in

her private part.

(ii) Complainant and her husband had taken the victim to the house

of Renukabai. Complainant asked Renukabai as to who had taken

victim. Renukabai told that she did not know as she was not present in

the house. She told that Kamlabai was present. Kamalabai is a dumb

woman. When by signs, complainant asked her as to who had taken

victim, then Kamlabai taken them to the house of Balya. Mother of

Balya was present in the house. She enquired from the mother of Balya,

then she told that since morning, he was not in the house.

(iii) Thereafter complainant with her daughter returned back. She

was taken in the hospital of Dr. Gawarle. On 15-5-2003 in the morning,

complainant, her husband and her mother-in-law along with victim-

daughter and her niece Maya went to the house of her brother-in-law

Raju Sapkal. She narrated the incident to Raju. Raju brought one

album of photographs and shown to victim, Maya and Kamla. Victim,

Maya and Kamla identified the photo of Balya saying that accused is the

same Balya. Thereafter they went to Police Station, Wadgaon and

lodged oral report (Exhibit 36). Crime was registered vide printed First

Information Report, Exhibit 37.

(iv) Investigating Officer API Gawai arrested the appellant vide

arrest panchanama, Exhibit 31. Investigating Officer prepared spot

panchanama, seizure panchanama of clothes etc. Investigating Officer

sent the victim and accused for medical examination. Investigating

Officer has recorded statements of witnesses. Investigating Officer sent

seized property to the Office of Chemical Analyzer. After complete

investigation, filed the charge-sheet before the Chief Judicial Magistrate,

Yavatmal which in turn was committed to the Court of Sessions for trial.

(v) Trial Court framed charge at Exhibit 7. Appellant pleaded not

guilty and claimed to be tried. Defence appears to be of total denial.

(vi) The prosecution has examined following witnesses.

(1) P.W. 1 Vijay Prabhakar Kale (Exhibit 14)

(2) P.W. 2 Sau. Gumfa w/o Ravindra Sapkal (Exhibit 35)

(3) P.W. 3 Ku. Pooja Ravindra Sapkal (Exhibit 39)

(4) P.W. 4 Pandurang Daulatrao Potey (Exhibit 43) and

(5) P.W. 5 Kishor Bhaurao Gawai (Exhibit 44)

(vii) Trial Court recorded statement of the appellant under Section 313

of the Code of Criminal Procedure. Appellant has denied material

incriminating evidence against him. He has stated in his statement

under Section 313 that case is false. His name is not Balya or Mitthu

Balya. On 10-6-2003, statement of victim was not recorded and in that

respect, he has produced copy of bail application with order.

(viii) After hearing the prosecution and defence, learned trial Court

come to the conclusion that appellant attempted to do sexual

intercourse with the victim and, therefore, convicted the appellant as

stated above. Hence, appellant-accused and State have challenged the

impugned judgment.

Heard learned counsel Shri Abdul Subhan holding for

Shri F. T. Mirza, learned counsel for the appellant. He has pointed out

cross-examination of material witnesses and submitted that

identification parade was not held. Victim was not knowing the

appellant before the incident. She has stated name of Mitthu Balya

in her evidence but name of appellant is Dnyaneshwar S/o Ramesh

Bobde, therefore, there was no proper identification.

Learned counsel has pointed out Medical Certificate, Exhibit

18 issued by the Medical Officer. Learned counsel has submitted that no

any injury was found on the person of victim. Learned counsel pointed

out spot panchanama, Exhibit 16 and submitted that spot as shown by

the victim was by the side of road. There is a Ring Road and there was

always traffic. Incident took place at about 5.00 p.m. and it was not

probable that appellant commits such a heinous act in such a place

which was visible to many persons.

Learned counsel has submitted that material witnesses,

namely, Maya, Kamlabai and Renukabai not examined by the

prosecution. Evidence of victim is not reliable. He has pointed out

cross-examination of P.W. 3 and submitted that she was tutored by her

mother (P.W. 2) and therefore, learned trial Court not considered

material admissions given by the witnesses. He has pointed out material

omissions in the cross-examination of P.W. 2 and P.W. 3. At last,

learned counsel submitted that prosecution has failed to prove the guilt

of appellant beyond reasonable doubt, hence, prayed to acquit the

appellant for the offence punishable under Section 376 read with

Section 511 of the Indian Penal Code.

Heard learned Additional Public Prosecutor Shri Damle for

the State. He has submitted that evidence of victim is trustworthy and

reliable. There was no any reason to falsely implicate the appellant.

Victim has stated in her evidence that appellant gave one rupee to her

and two rupees to Maya. Victim and Maya purchased pepsi. Appellant

taken victim in his jeep saying that he would reach her to her parents.

Appellant attempted to do sexual intercourse. When victim cried,

appellant taken her near her house and left her. Learned Additional

Public Prosecutor has submitted that her evidence is properly scrutinized

by the trial Court.

Learned Additional Public Prosecutor has submitted that

trial Court has convicted the appellant for the offence punishable under

Section 376 read with Section 511 of the Indian Penal Code but shown

leniency while awarding the punishment. Learned Additional Public

Prosecutor has submitted that learned trial Court ought not to have

shown any leniency to the appellant. Appellant tried to ravish minor girl

aged about 7 years and, therefore, maximum punishment should have

been awarded. At last, he submitted that appeal filed by the convict/

accused is liable to be dismissed and appeal filed by the prosecution/

State be allowed.

Perused the evidence on record. From the perusal of

evidence, it is clear that the case of prosecution is based on the evidence

of victim. As per the evidence of complainant, P.W. 2 Gumfa, on the day

of incident, her daughter went for attending marriage along with her

grandmother. At about 5.30 p.m., victim returned back. She was

weeping and disclosed the incident to her stating that Balya removed

her knicker and did some obscene act. She disclosed that her private

parts were having pain. Therefore, she was taken to Dr. Gawarle.

Doctor has given medicine.

P.W. 2 has stated that on the next day, she had taken the

victim to the house of her brother-in-law Raju. Raju shown photographs

to the victim, Maya and Kamla. All of them identified photo of Balya.

She has stated that appellant is the same Balya. Thereafter she went to

lodge report.

The evidence of victim shows that Mitthu Balya taken her

and did obscene act with her. Appellant tried to insert his penis in her

private part. She had pain and started crying. Thereafter appellant left

her near her house. It is argued by learned counsel for the appellant

that there was no identification parade. Witnesses have stated name of

Balya, Mitthu Balya. Appellant is not a person by name Mitthu Balya or

Balya. His name is Dnyaneshwar Ramesh Bobde. Therefore, it was

necessary on the part of Investigating Officer to conduct identification

parade.

Victim was a minor girl aged about 7 years at the time of

incident. As per her evidence, she was playing with Maya who was also

of same age. Mitthu Balya came, gave some money to Maya and victim

and taken the victim saying that he would reach her to her parent''s

house.

Victim was not knowing appellant before the incident.

Victim was of the age of understanding, therefore, she would not have

gone with appellant. Victim has admitted in her cross-examination that

she had no any occasion to see Mitthu Balya. She saw him in the Police

Station.

As per the evidence of P.W. 2 mother of victim and P.W. 3,

Kamlabai was present when appellant taken the victim. Therefore, it

was for the prosecution to examine Kamlabai. Victim has stated that

Maya was also with her when appellant taken her. Prosecution has also

not examined Maya. Therefore, identification of appellant is not proved

properly.

P. W. 3 has stated in her examination-in-chief that prior to

the incident, she did not see Mitthu Balya. P.W. 2 has stated in her

evidence that she had taken victim to the house of her brother-in-law

Raju. Raju had shown album of photographs to victim, her friend Maya

and Kamlabai. They identified Mitthu Balya who had taken the victim.

It is pertinent to note that prosecution has not examined Raju, Maya and

Kamlabai. Prosecution failed to prove that appellant was the person

who had taken victim in his jeep. Evidence of P.W. 2, P.W. 3 who are

material witnesses are not reliable.

P.W. 2 has admitted in her cross-examination as under :

"It is true that when I had taken Ku. Pooja to Dr. Gawarle, at that time, I told to doctor that Pooja is having body ache, she is having fever and coughing. It is true that Dr. Gawarle had examined Ku. Pooja and given prescription. I had not stated to Dr. Gawarle that rape was committed on Pooja. It is true that there were no injuries on the private part of Pooja."

Material omissions are also brought on record in her cross-examination

and proved by the Investigating Officer. What she has stated against the

appellant in her examination-in-chief that is brought on record as a

material omission. She has stated that she had taken victim to

Renukabai but Renukabai not stated anything. Kamlabai by signs

pointed out the house of appellant etc. are brought on record as

omissions. Kamlabai not examined by prosecution.

P.W. 3 - victim though stated against the appellant in her

examination-in-chief but in her cross-examination, she has stated that

she had no occasion to visit the house of Mitthu Balya. She pointed out

finger towards the appellant/accused before the Court but in cross-

examination she has stated that she had no occasion to see Mitthu

Balya. She saw him in the police station. When she told to her uncle

that he was Mitthu Balya on that her uncle shown her photographs and

said that he is Mitthu Balya.

Material omission is brought on record in her evidence. She

had not stated in her statement to police that when accused started

doing something with his penis on her private part, thereafter she

shouted. But this material evidence not found place in her statement. It

appears from the evidence of P.W. 3 that she was tutored by her mother

(P.W. 2). She has admitted in her cross-examination that her mother

told her as to whom she would identify. Outside the Court Hall, her

mother told her that he is Mitthu Balya.

Evidence of P.W. 3 (victim) itself shows that she was not

knowing the appellant before the incident. She was tutored by her

mother, P.W. 2. Medical certificate, Exhibit 18 does not show any injury

on her person. The spot panchanama, Exhibit 16 shows that spot was

having regular traffic.

The contents of spot panchanama reads as under :

On the eastern side of the said spot of occurrence, there is a ring road leading towards Bhosa. On the western side at a distance of 150 meters, there is a road leading from Wadgaon to Jamb. On the southern side, there is the field having wire fence of Maliram Sharma and near it, there is Surana''s factory where tractor''s trolly are manufactured and on the northern side, there is the field of Thakre Patil and near to it, there is Gitti Khadan (quarry) belonging to Ajil Barde on Jamb road.

From the contents of spot panchanama, it is clear that the

spot which was shown by the victim was having traffic from all the

sides. It was a Ring Road. Incident took place about about 5.00 p.m.

Looking to the evidence of P.W. 2 and P.W. 3, prosecution failed to

establish that appellant is the person known as Mitthu Balya. Nothing is

clarified by the prosecution about the same. Test identification parade

was not conducted. Medical certificate does not show any injury on the

person of victim.

In the same evening, P.W. 2 mother of victim taken her to

the hospital of Dr. Gawarle but P.W. 2 not disclosed anything about the

incident to Dr. Gawarle. P.W. 2 herself has admitted in her cross-

examination that victim was not having any injury on her private parts.

Prosecution has miserably failed to prove the guilt of accused beyond all

reasonable doubts.

Prosecution has utterly failed to prove that appellant

attempted to commit sexual intercourse with the victim. Learned trial

Court not considered material evidence and wrongly convicted the

appellant for the offence punishable under Section 376 read with

Section 511 of the Indian Penal Code. Therefore appeal filed by the

State is liable to be dismissed and appeal filed by the appellant/accused

is liable to be allowed. Hence, we pass the following order.

ORDER

(i) Criminal Appeal No. 3/2005 is hereby allowed. Impugned

judgment of conviction for the offence punishable under Section

376 read with Section 511 of the Indian Penal Code is hereby

quashed and set aside.

(ii) Appellant is acquitted of the offence punishable under

Section 376 read with Section 511 of the Indian Penal Code.

(iii) The appellant is on bail. His bail bond stands cancelled.

(iv) Fine amount, if paid, be refunded to the appellant.

(v) Criminal Appeal No. 139/2005 is dismissed.

(vi) R & P be sent back to the trial Court.