State of Maharashtra vs Devidas

P.N. Deshmukh, J.

The State of Maharashtra has preferred this criminal appeal under Section 378(3) of Code of Criminal Procedure against the judgment and order dated 16/12/2002 passed by the learned 7th Ad hoc Assistant Sessions Judge, Nagpur in Sessions Case No. 53/2001, thereby acquitting respondent/accused of the offences punishable under Section 376 and Section 511 of Indian Penal Code.

In brief, it is the case of prosecution that on 15/11/2000 prosecutrix, a blind girl, aged about 13 years, while she was present alone in the house, at about 4 p.m, P.W. 3 Chindhu, her father, returned home and since did not find her in the house, asked his son Swapnil about her, who informed that she had gone to the house of Kotwal. Accordingly, P.W.3 Chindhu went to the house of Kotwal, namely, Wasudeo Meshram where he found his daughter present and she informed that while she was playing in the courtyard in the noon time, accused arrived there and after driving away two of her friends from the spot, caught her arm and took her to the cattle shed and on removing her clothes, committed sexual assault on her. It is the further case of prosecutrix that as one Shashikala Dumre arrived, accused ran away. P.W.3 Chindhu accordingly brought prosecutrix to Police Station, Kondhali and lodged his report (Exh. 14), which was recorded by P.W.6 Mahadeo Bhatkar, Head Constable and on the basis of the same, registered offences vide Crime No. 163/2000, which was investigated by P.W.7 Shalikram Revatkar, Head Constable and during the course of investigation, on 16/11/2000 he drew spot panchanama vide Exh. 16 and recorded statements of prosecutrix and other witnesses, on 17/11/2000 he referred prosecutrix for her medical examination and on the same day, arrested accused, who too was referred for his medical examination.

On collecting blood sample of prosecutrix, it was forwarded to Chemical Analyser and report of Chemical Analyser (Exh.7) is on record. On completion of investigation, charge-sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Katol. In the course of time, case came to be committed for trial to the Sessions Court.

Charge was framed against accused vide Exh.2, to which he pleaded not guilty and claimed to be tried. It is the specific defence of accused that in their village, there were two parties -one of Pande and another of Dhawale. Father of accused was then working for Dhawale''s party while P.W.3 Chindhu father of prosecutrix, was working for Pande''s party. According to accused, at the time of incident, there were elections and P.W.3 Chindhu had come to his father and asked him to work for Pande''s party, to which his father refused. It is the further case of accused that due to such refusal, P.W.3 Chindhu threatened his father to the effect that since he is not willing to work for the party of Pande, he would implicate him in a false case. Thus, according to accused, he is accordingly falsely implicated by Chindhu, complainant, in the present crime, by tutoring his blind daughter. The learned trial Judge on considering the evidence and documents on record acquitted accused. Hence, this criminal appeal by State.

Heard Shri Ukey, learned Additional Public Prosecutor for appellant, and Smt. Jaipurkar, learned Counsel appointed for respondent/accused. To effectively evaluate the submissions advanced by learned Counsel for both the sides, with their assistance, we have scrutinized the evidence and documents on record.

To establish the charge levelled against respondent/accused, prosecution has examined seven witnesses and commenced its evidence by examining prosecutrix as P.W.1, Dr. Rajesh Dinesh as P.W.2, Chindhu, father of prosecutrix, as P.W.3, Madhukar Pendam, panch witness on spot panchanama (Exh. 16) as P.W.4, Priti Meshram on circumstances as P.W.5 and concluded its evidence by examining P.W.6 Mahadeo Bhatkar, PSI, who registered offences and P.W.7 Shalikram Rewatkar, Head Constable, Investigating Officer.

Prosecution has mainly relied upon evidence of P.W.1 the prosecutrix and of her father -P.W.3 Chindhu. In that view of the matter, we have scrutinized evidence of P.W.1, aged about 13 years and a blind girl, who has stated that she knows accused by his voice, who resides as her neighbour. In November 2000, she was alone in her house since her parents had gone to field and her brother had gone to School, while at about 3 p.m. when she was playing with P.W.5 Priti and one Jyoti in the court-yard, accused arrived and asked P.W.5 Priti and Jyoti to go away and thereafter caught hold of her arm and dragged her in the cattle shed. She has further stated that he then made her fall on the ground and on removing her underwear, committed sexual assault on her, due to which she cried loudly and in the meantime, heard noise of one Shashikla Dumre, due to which accused ran away from the spot. She has further stated that she was weeping and came out in the court-yard where Shashikala Dumre arrived and asked her why she was weeping, to whom she narrated entire incident, who, in turn, informed about the incident to sister of accused and Vandana Meshram, who reached her to her house. After arrival of her father Chindhu, prosecutrix narrated the incident to him and he lodged report.

Admittedly, prosecutrix is blind and claims to have identified accused from his voice. However, we find this could be a material omission in her evidence since P.W.7 Shalikram Revatkar, Investigating Officer in his evidence has admitted that during the course of investigation, he recorded statement of prosecutrix and she had not stated that she could identify the person by his voice. Admittedly, prosecution has not examined Jyoti, Shashikala and Vandana Meshram though it is the case of prosecution that Jyoti was present when accused arrived at her courtyard while Shashikala is stated to have arrived in the cattle shed and on hearing her noise, accused is stated to have run away. Prosecution has even not examined Vandana Meshram, to whom Shashikala had narrated the incident as informed to her by prosecutrix immediately after the incident. No explanation is put forth by prosecution on non examination of these material witnesses. In view of material omission from the evidence of prosecutrix with reference to her not stating to Police about her ability to identify persons by their voice, we find no substance in her further evidence wherefrom it appears that at the time of trial, she had identified accused from his voice from amongst 5-6 others, as it is of no consequence for the reason aforesaid.

In cross-examination, prosecutrix has admitted that before her evidence was recorded, she was told by Government Advocate what is to be narrated in the Court. She also admits that her father also stated as to what is to be said by her and since long, there was enmity between her father and father of accused.

Above admissions on the part of prosecutrix thus materially substantiate the probable defence of false implication of accused as put forth and stated above to the effect that he is falsely implicated as during the election period, father of prosecutrix asked his father to work for the party to which he belongs and since his father refused to do so, was threatened by father of prosecutrix to be falsely implicated in some case.

In view of above discussed evidence and admission on the part of prosecutrix establishing strained relations between her father and father of accused, we do not find it safe to rely upon sole testimony of prosecutrix and thus, have further considered evidence of P.W.3 Chindhu whose evidence though materially corroborates the evidence of prosecutrix as aforesaid and in the cross-examination though has denied that he does not belong to any party in his village or that father of accused worked for a party of Dhawale and he denied that he worked for other party, namely, of Pande, has admitted that in their village, there was one party of Pande and another party of Dhawale. From the evidence of P.W.3 Chindhu, thus it has come on record that there were two parties in the village while according to evidence of prosecutrix, relations between her father and father of accused were strained and having considered the probable defence of accused as aforesaid, accused can be said to have established his false involvement in the present crime.

In the background of above facts, we thus find much substance when it is suggested to P.W.3 Chindhu that during election period, he went to father of accused asking him to work for the party for which he was working and since father of accused refused for the same, false case came to be filed against his son as per threats extended earlier.

Though prosecution has examined P.W.5 Priti, her evidence does not substantiate the case of prosecution about involvement of accused in the act of committing sexual assault upon prosecutrix as her evidence only establishes presence of accused and she being driven away from the courtyard. Even otherwise, P.W.5 Priti is closely related to prosecutrix being her cousin sister and has admitted that father of prosecutrix being her real uncle, he and his wife told her what should be narrated in the Court. In that view of the matter, evidence of P.W.5 Priti also does not inspire confidence to be acted upon in favour of prosecution.

Shri Ukey, learned Additional Public Prosecutor for appellant, in the background of above facts, has relied upon decision of the Apex Court in the case of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, AIR 2004 SC 23 : (2004) CriLJ 19 : (2003) 8 JT 53 : (2004) 1 SCC 64 : (2003) 4 SCR 1030 Supp : (2004) 1 UJ 156 . In that case, it is observed that while considering evidence of child witness, conviction can be based on such evidence provided such witness is found competent to testify and Court after careful scrutiny of his evidence, is convinced about quality and reliability of the same. In that case, there was nothing to show that P.W.11 or her father had any animosity against appellant and in those circumstances, testimony of P.W.11 was found credible for offence under Section 302 of Indian Penal Code.

In the appeal in hand, as already stated above, prosecutrix, in clear terms, has admitted about strained relations between her father and father of accused and for the reasons already stated, on careful scrutiny of evidence of prosecutrix, we do not find it to be of quality and reliability to be acted upon.

Shri Ukey, learned Additional Public Prosecutor for appellant, has also relied upon the decision of the Apex Court in Sunil Kundu and Another Vs. State of Jharkhand, (2013) 4 AD 573 : (2013) CriLJ 2339 : (2013) 2 Crimes 220 : (2013) 6 JT 599 : (2013) 4 RCR(Criminal) 147 : (2013) 5 SCALE 433 : (2013) 4 SCC 422 : (2013) AIRSCW 2278 : (2013) 3 Supreme 66 with reference to considering evidentiary value of testimony of interested/partisan witness in criminal trial. The Apex Court has held that testimony of interested witness cannot be mechanically overlooked, but if it is consistent, it can be relied upon and conviction can be based on it because an interested witness is not likely to leave out the real culprit. However, in that case itself, the witnesses, though interested, were not found to be truthful and their presence was doubted and thus, their evidence was not considered to be sufficient to base conviction.

In the appeal in hand also, evidence of P.W.3 Chindhu, father of prosecutrix and P.W.5 Priti, cousin sister of prosecutrix, for the reasons already stated hereinabove, does not find to be truthful and as such, not sufficient to be acted upon. Even evidence of prosecutrix itself does not inspire confidence to be acted upon.

Though prosecution has also relied upon evidence of P.W.2 Dr. Rajesh Gajbhiye, his evidence does not substantiate the case of prosecution at all as according to him, on his examining prosecutrix on 16/11/2000, i.e. on following day of incident, he had not noted any abnormality nor found any injury mark on her person and her hymen was found intact. He accordingly issued medical certificate (Exh. 13).

On considering said certificate, it appears that history stated by prosecutrix to Medical Officer is about accused trying to outrage her modesty. In that view of the matter, medical evidence does not substantiate the case of prosecution at all.

From the evidence of P.W.4 Madhukar, panch on spot panchanama (Exh.16), though prosecution has proved this document, from its contents it is revealed that spot of occurrence is situated in a cow shed adjoining to complainant''s house, which is constructed of mud and kud walls. There appears to be a kucha construction. There is reference to spot of occurrence as hard surface. It is the case of prosecution that minor girl, aged about 13 years, was forcibly dragged to that place from the courtyard of her house and was thereafter made to lie down on the ground and was ravished. When the case as aforesaid has been set out by prosecution, there is every possibility of a minor girl at least sustaining some scratches on her person. However, according to medical evidence, no injuries were found on the person of prosecutrix, which aspect also creates doubt in the case of prosecution and substantiates the probable case of accused of his false implication.

In the light of facts involved in the appeal in hand, though learned Additional Public Prosecutor has further relied upon the decision of the Apex Court in the case of State of Haryana Vs. Basti Ram, (2013) 4 AD 245 : AIR 2013 SC 1307 : (2013) 2 Crimes 154 : (2013) 2 JCC 981 : (2013) 13 JT 622 : (2013) 5 SCALE 234 : (2013) 4 SCC 200 : (2013) AIRSCW 2010 : (2013) 2 Supreme 633 , the facts involved in the appeal in hand and the case relied upon are distinguishing and as such, cannot be considered in favour of prosecution as in that case, Hon''ble Supreme Court observed that High Court failed to discuss or analyse the evidence of prosecutrix nor her statement under Section 164 of Code of Criminal Procedure recorded by Magistrate, though it was found to be in detail and under such circumstances, remanded the matter for re-consideration on merits after taking into account the entire evidence on record.

The learned Additional Public Prosecutor for appellant has also relied upon the decision of the Apex Court in Karnel Singh Vs. State of M.P., AIR 1995 SC 2472 : (1995) CriLJ 4173 : (1995) 3 Crimes 527 : (1995) 6 JT 437 : (1995) 4 SCALE 752 : (1995) 5 SCC 518 : (1995) 2 SCR 629 Supp : (1995) 2 UJ 646 on the point of delay in lodging first information report. However, in the appeal in hand, we find no unreasonable delay in lodging report as according to prosecution case, the incident took place on 15/11/2000 at 4 p.m. while report came to be lodged on the same day at 6.30 p.m. and thus, there cannot be said to be inordinate delay in lodging the report as Kondhali Police Station in Nagpur District is found situated at the distance of about 22 kms. from village Digdoh where prosecutrix resides and the incident took place.

Having considered the evidence in its totality and as the scope for interference in an appeal against acquittal is very limited to the effect that unless the Court finds that the view taken by the trial Court is either impossible or perverse, it is not permissible for this Court to interfere with the finding of acquittal. We do not find that the view taken by the trial Court is unreasonable or perverse. No impossibility or perversity is found in the judgment and order of the learned trial Court warranting interference. The learned trial Court by well reasoned judgment and order has found that prosecution has miserably failed to prove the charge levelled against the respondent. The criminal appeal is, therefore, liable to be dismissed.

In the result, criminal appeal is dismissed.

The fee payable to the learned Counsel appointed for respondent/accused is quantified as rupees five thousand.