Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 969 (BOM)

Ashok Premaji Nirbhawane v. State of Maharashtra

2014-04-11

A.S.GADKARI, P.V.HARDAS

body2014
Judgment : P.V. Hardas, J. 1. The Appellant, who stand convicted for an offence punishable under Sections 302 and 376 of Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/- in default of which to undergo R.I. for six months and R.I. for 10 years and to pay fine of Rs.5,000/- in default of which to undergo R.I. for six months, with a direction that both the sentences shall run concurrently, by the Additional Sessions Judge - II, Niphad by Judgment dated 10.5.2012 in Sessions Case No.22 of 2011 by this Appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this Appeal may briefly be stated thus. PW-7 API Balasaheb Pawar, who, on 26.12.2011, was attached to the Vadner Bhairav Police Station, was entrusted with the investigation of Crime No.96 of 2010 which had been registered on the basis of the report at Exhibit 22 lodged by PW-1 Sanjay. On being entrusted with the investigation, PW-7 API Pawar visited the scene of the incident and drew the inquest panchnama of the dead body of deceased Usha at Exhibit 48 in the presence of the panch witnesses. A scene of the incident panchnama was also drawn in the presence of panchas at Exhibit 37. From the scene of the incident, one quilt of red colour which was blood stained, sample of ordinary mud and blood stained mud and a grinding stone, wet clothes and pieces of bricks were seized. The Appellant was arrested under arrest panchnama at Exhibit 50. Statements of witnesses were recorded and the seized property was referred for chemical analysis under requisition at Exhibits 51 to 53. Supplementary statements of witnesses were recorded and further to the completion of investigation, a charge-sheet against the Appellant was filed. During investigation the search of the house of the Appellant was taken and clothes were seized i.e. shirt, pant and baniyan under seizure memorandum at Exhibit 42. Postmortem on the dead body of deceased Usha was performed by PW-4 Dr. Sulochana Bhoye, who noticed the following external injuries :- 1) Complete dislocation of bone incisor tooth and canine tooth. 2) Further injury to nasal bone. 3) Injury of frontal region between two eye-brows, deep injury. 4) Injury of left parietal region. 5) Laceration around anal region. 6) As well as fracture nasal bone. Sulochana Bhoye, who noticed the following external injuries :- 1) Complete dislocation of bone incisor tooth and canine tooth. 2) Further injury to nasal bone. 3) Injury of frontal region between two eye-brows, deep injury. 4) Injury of left parietal region. 5) Laceration around anal region. 6) As well as fracture nasal bone. On internal examination, she notices the following injuries:- 1) Fracture of left parietal region 6 inch x 1 inch. 2) Direction of the fracture is like cured. According to Dr. Bhoye, the cause of death of the deceased was cardio respiratory arrest due to severe head injury with fracture of head bone. The Postmortem report is at Exhibit 29. The certificate is at Exhibit 31. 3. On 29.12.2010 she had examined the Appellant under requisition at Exhibit 30 and had noted the following injuries :- 1) Abrasion on left shoulder region 1/2 inch x 1/2 inch in size, having a shape in regular rounded of blackish colour, age of aforesaid injury is prior to 72 hours, it was a simple injury. 2) Black contusion on right hand on lateral aspect, shape longitudinal, having age of injury prior to 72 hours, further having the colour like dark brawny and it was a simple injury. 3) Abrasion on both knee joint on dorsal aspects, having size of 2-1/2 x 2-1/2 inch shape irregular rounded, age of injury approximately within 72 hours, having dark brawny colour, it was a simple injury. 4) Old skin infection on chest. The Medical Officer in no answer to terms opined that rape was not committed on the deceased. 4. On committal of the case to Court of Sessions, Trial Court vide Exhibit 2 framed charge against the Appellant for offence punishable under Section 376 and 302 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 7 witnesses. The Trial Court by relying on the evidence as well as finding of a semen stain on the quilt convicted and sentenced the Appellant as afore-stated. 5. In order to effectively deal with the submissions advanced before us, it would be useful to refer to the evidence of the prosecution witnesses. 6. Prosecution has examined PW-1 Sanjay, brother of deceased Usha. According to PW-1 Sanjay, his sister Usha was unmarried and was mentally retarded. Sanjay was working as a labourer. 5. In order to effectively deal with the submissions advanced before us, it would be useful to refer to the evidence of the prosecution witnesses. 6. Prosecution has examined PW-1 Sanjay, brother of deceased Usha. According to PW-1 Sanjay, his sister Usha was unmarried and was mentally retarded. Sanjay was working as a labourer. According to Sanjay, on 26.12.2010, he had gone for attending his duty at about 10.00 a.m. and had returned at 10.00 p.m. He had noticed the door of the house was closed. He gave a call to Usha but there was no response and therefore, he pushed the door and entered the house. He noticed Usha sleeping in one corner of the room. He again gave a call to Usha but Usha did not respond. He, therefore, removed the blanket with which Usha was covered and noticed an injury on her head and face. He also noticed that blood was oozing from the injury. He accordingly informed the incident to his neighbour PW-2 Subhash and lodged his report at the Police Station at Exhibit 22. Sanjay further deposed that about a month and half prior to the incident, PW-2 Subhash had once come at the hotel where Sanjay was employed and had asked Sanjay to go home and find out as to what was happening. Sanjay had accordingly gone home and had noticed the Appellant and Usha sleeping on a cot in a courtyard and also noticed the Appellant fondling the hair of Usha. He also noticed that Usha was resisting the overtures of the Appellant. He slapped the Appellant and informed his son Ajay. 7. In cross-examination, he has admitted that his house is surrounded by other houses. He has also admitted that there is heavy traffic on the road. He has admitted that he has lodged his report on the next day in the morning. He has further admitted that till his supplementary statement was recorded on 29.12.2010, he had not disclosed his suspicion about the accused. He has also admitted that prior to the death of Usha, the relations between the accused and Sanjay were strained. He has admitted in the examination-in-chief itself that the incident which had occurred about one and half month prior to the incident was disclosed by him on 29.12.2010. 8. Prosecution has examined PW-2 Subhash who did not support the prosecution and was declared hostile. He has admitted in the examination-in-chief itself that the incident which had occurred about one and half month prior to the incident was disclosed by him on 29.12.2010. 8. Prosecution has examined PW-2 Subhash who did not support the prosecution and was declared hostile. He has however deposed that prior to the death of Usha, he had gone and informed PW-1 Sanjay to go home and see what was happening. He has been confronted with portion marked 'A' from his statement which he has denied to have stated. 9. PW-4 Dr. Sulochana Bhoye in cross-examination has admitted that during postmortem she had not noticed any injury to the private part of Usha. She has further stated that on the basis of the report of the Chemical Analyzer, she could positively state that rape was not committed on the deceased. 10. Prosecution has examined PW-6 Ashok in respect of the seizure of the clothes of the accused. It appears that on 29.12.2010 the Police had shown PW-6 Ashok bluish pant, light violet shirt and violet colour under-wear and a baniyan which were blood stained. The said clothes were accordingly seized. PW-6 Ashok then states that thereafter, the house of the accused was searched and some other clothes were seized under seizure memorandum at Exhibit 42. The aforesaid clothes were sent to the Chemical Analyzer and as per the report of the Chemical Analyzer, semen stain was found on the pant of the accused. A semen stain was also found on the quilt but the grouping could not be done and consequently, the blood group of the semen stain on the quilt could not be determined. 11. Finding of semen stain on the clothes of the accused, who was an adult is by itself not an incriminating evidence and certainly is not evidence suggestive of forcible sexual intercourse. A reference in this behalf may useful be made to the Judgment of the Supreme Court in Shankar G. Dixit v/s. State of Maharashtra [AIR 1981 SCC 765]. 12. In respect of the evidence of PW-1 Sanjay, the evidence does not in any manner point to the guilt of the accused. There is no evidence tendered by the prosecution that the Appellant was seen near about the house of PW-1 Sanjay at about the time when the incident was committed. The medical evidence clearly rules out that rape had been committed. There is no evidence tendered by the prosecution that the Appellant was seen near about the house of PW-1 Sanjay at about the time when the incident was committed. The medical evidence clearly rules out that rape had been committed. Merely on the basis of the semen stain on the quilt, an inference cannot be drawn that rape had been committed on deceased Usha. Moreover, there is no evidence whatsoever which would in any manner suggest that it was the Appellant who had committed the crime. The circumstances so established by the prosecution fall woefully short of completing the chain of circumstances which would unquestionably point to the guilt of the accused. In the absence of evidence in that behalf, no reliance at all can be placed on the evidence of the prosecution witnesses. Moreover, we find that there is no evidence in respect of the sealing of the clothes of the accused. The seal which was placed on the clothes of the accused was a paper seal bearing the signature of the panchas. The sealed parcels which were received by the Chemical Analyzer bore a different seal than the seal which were placed at the time of the seizure of the clothes. Consequently, no reliance can be placed on the finding of the Chemical Analyzer. 13. We thus find that there is no evidence whatsoever which would establish the offence against the Appellant beyond reasonable doubt. The Appeal filed by the Appellant therefore deserves to be allowed. 14. We, accordingly, allow this Appeal and quash and set aside the conviction and sentence of the Appellant and acquit him of the offence with which he was charged and convicted. 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.