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2014 DIGILAW 1729 (BOM)

Shrimant Pundalik Dudhal v. State of Maharashtra

2014-08-04

ANUJA PRABHUDESSAI, P.V.HARDAS

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Judgment P. V. HARDAS, J. The appellant who stands convicted for an offence punishable under Sections 376 (i) and 506 (ii) of the IPC and sentenced to imprisonment for life and to pay a fine of Rs.25,000/- and R.I. for 2 years respectively, with a direction that the substantive sentence shall run concurrently by the Additional Sessions Judge, Greater Bombay by judgment dated 9th April, 2009 in Sessions Case No.871 of 2006, by this appeal challenges his conviction and sentence. 2. Facts as are necessary for the decision of the appeal may briefly be stated thus:- 3. PW-5 PSI Santu B. Khamkar, who on 4th April, 2006 was attached to the Deonar Police Station, recorded a report of the victim (whose name is deliberately withheld) at Exh.10. On the basis of the report of the PW-1 victim, an offence vide Crime No.124 of 2006 was registered under Sections 376 and 506 (ii) of the Indian Penal Code. PW-5 PSI Khamkar, thereafter recorded statements of PW-4 Shahubai. The appellant was arrested under arrest panchanama at Exh.20 and the clothes of the appellant's were seized under seizure memo at Exh.21. PW-5 PSI Khamkar then proceeded to the scene of the incident and in the presence of the panchas, drew the scene of the incident panchanama at Exh.12. He seized one saree, one blouse, one petticoat and one mat. The victim and the appellant were then referred for medical examination and were examined by PW-3 Dr. Shivaji Daund. The seized property was thereafter referred to the chemical analyser under requisition at Exh.24. The reports of the chemical analysis are at Exh.25 colly. Further, on the completion of investigation a charge-sheet against the appellant was filed. 4. On committal of the case to the Court of Sessions, the trial Court vide Exh.2 and Exh.2A framed charge against appellant for offence punishable under Sections 376 and 506 (ii) of the IPC. The appellant denied his guilt and came to be tried. The prosecution in support of its case, examined 5 witnesses. The defence of the appellant was of the denial. The trial Court on appreciation of the evidence convicted and sentenced the appellant as aforestated. 5. The prosecution has examined the victim as PW-1. The victim deposed that the appellant is her father-in-law. The victim was married to Bapu, son of the appellant. The defence of the appellant was of the denial. The trial Court on appreciation of the evidence convicted and sentenced the appellant as aforestated. 5. The prosecution has examined the victim as PW-1. The victim deposed that the appellant is her father-in-law. The victim was married to Bapu, son of the appellant. According to her, her mother-in-law accompanied by the husband of the victim and her brother-in-law and sister-in-law had gone to Dudhebavi for attending a fair. According to the victim, her husband was not willing to go but her father-in-law/appellant had insisted that the husband of the victim should go. According to the victim she and her father-in-law were, therefore, alone at home. According to her after finishing the dinner, her father-in-law had slept on the cot while she had slept on the floor. After some time, the appellant came near her and touched her body. The victim was frightened and the appellant, therefore, told her to keep quite. The appellant then denuded her and committed forcible sexual intercourse with her. In the morning, when the appellant went out, the appellant had bolted the door from outside and in this manner the victim was confined in the house for 2-3 days and on all these days the appellant had committed forcible sexual intercourse with the victim. On the third day when the appellant had gone out of the house in the afternoon, the victim noticed that the appellant had not properly bolted the door. The victim, therefore, managed to open the door and came out of the house and on noticing some ladies sitting near her house, disclosed the said incident to them. In the evening at about 6.00 O' clock the ladies took the victim to the police station, where the victim lodged her report against the appellant. She has identified the clothes worn by her. 6. In cross-examination, she has admitted that she was accompanied to the police station by one Namdeo Tapal, who was a resident of Bhimwadi Rahiwashi Sangh, Govandi. She has admitted as correct that in fact, it was Namdeo Tapal who had dictated her report. The victim has admitted as correct that she was illiterate and could not sign. She then deposes that "whatever had been narrated by Namdeo Tapal and written down by the police thereafter my thumb impression was obtained". She has admitted as correct that in fact, it was Namdeo Tapal who had dictated her report. The victim has admitted as correct that she was illiterate and could not sign. She then deposes that "whatever had been narrated by Namdeo Tapal and written down by the police thereafter my thumb impression was obtained". In further cross-examination, she has admitted that she had talked with the ladies on two occasions prior to the incident. She has then admitted that the house where she was residing along with the appellant was comprising of one room, which was admeasuring 10x 12 x 15 ft. She has then admitted as correct that a toilet was not attached to the room. She has also admitted as correct that she and the appellant were going to the common public lavatory. She has also admitted as correct that she used to go to the lavatory during the period of the first day of the incident till she lodged her complaint. She has admitted as correct that she has not disclosed about the incident to any one. She has further admitted as correct that she disclosed about the incident for the first time to the ladies, who were sitting outside her room. Certain omissions have been elicited in the cross-examination that the appellant had come near her and had touched her. Omission has also been elicited that she has not stated in the report that the appellant had asked her to keep quite or else he would assault her. Omission has also been elicited about the appellant bolting the door from outside while leaving the house. Omission has also elicited that she had not stated that in this manner, she was confined in the room for 2 - 3 days and on all the 2 - 3 days, the appellant had committed forcible sexual intercourse with her. Omission is also elicited about appellant not bolting the door properly on the third day and the victim managing to open the door and noticing the ladies sitting in front of her room. The victim has also admitted in the cross-examination that she had divorced the first husband i.e. son of the appellant at the instance of her maternal aunt. She has admitted that on the next day of the incident, she had left the house of the appellant and had not return back and has performed a second marriage. The victim has also admitted in the cross-examination that she had divorced the first husband i.e. son of the appellant at the instance of her maternal aunt. She has admitted that on the next day of the incident, she had left the house of the appellant and had not return back and has performed a second marriage. 7. Prosecution has examined PW-3 Dr. Daund, who had examined the victim. According to PW-3 Dr. Daund, he had noticed that the hymen of the victim was torn and the victim was aged 21 years at the time of examination. He had also obtained vaginal of vaginal smear and had obtained the sample of blood for grouping. Since the victim was a married lady, tearing of the hymen would not be significant and moreover, the medical officer has not deposed that tear of the hymen was recent. The Medical Certificate of the victim is at Exh.14 while the Medical Certificate of the appellant is at Exh.16. 8. Prosecution has examined PW-4 Shahubai, who had accompanied the victim to the police station but PW-4 Shahubai did not support the prosecution and was declared hostile. 9. Learned Counsel for the appellant, therefore, has rightly urged before us that in the light of the wholly unnatural conduct of the victim and the fact that the medical evidence does not corroborate the testimony of the victim, the testimony of the victim ought to have been disbelieved and the appellant ought to have been acquitted. The learned APP has supported the findings arrived at by the trial Court. 10. The claim of the victim that she was confined in the room for 3 days, appears to be a figment of the imagination of the victim. There is omission about the appellant bolting the door from outside whenever he left the room. Even according to the victim, she used to attend the public lavatory and had not disclosed the incident to anyone. The aforesaid conduct, in our opinion, is extremely unnatural. Though opportunity was available to the victim, yet no efforts were made by her for disclosing the incident to anyone. In the cross-examination, it is elicited that two children namely Jyoti and Chetan, children of her sister-in-law were also residing in the said room. The medical evidence pointed out above, does not support the claim of the victim. Though opportunity was available to the victim, yet no efforts were made by her for disclosing the incident to anyone. In the cross-examination, it is elicited that two children namely Jyoti and Chetan, children of her sister-in-law were also residing in the said room. The medical evidence pointed out above, does not support the claim of the victim. The reports of the chemical analyser do not show presence of semen on the clothes on the victim, which were sent for examination. Thus, there is no evidence at all which would in any manner corroborate the evidence of the victim. Even PW-2 Namdeo Tapal, who has been examined as panch witness has admitted in the cross-examination that he had narrated the incident to the police which he had learnt from the ladies. Thus, it appears that the report was not lodged as per the narration of the victim but was lodged as per the narration of the PW-2 Namdeo Tapal. 11. As pointed out by us as above, in the light of the unnatural behavior of the victim, it is wholly unsafe to place implicit reliance on the testimony of the victim and in the absence of any other corroborative evidence the appellant, in our opinion, is entitled to be given the benefit of doubt. 12. Accordingly, this Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. 13. Fine if paid by the appellant be refunded to him. Since the appellant is in Jail, he be released forthwith, if not required in any other case. Appeal allowed.