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2016 DIGILAW 1130 (BOM)

MANSING NANA SHINDE v. STATE OF MAHARASHTRA

2016-07-04

A.S.GADKARI

body2016
JUDGMENT : A.S. GADKARI, J. 1. The appellant-original accused has questioned the correctness of the Judgment and Order dated 22nd January 1998 passed by the IIIrd Additional Sessions Judge, Satara in Sessions Case No.27 of 1991 convicting the appellant for the offence punishable under Section 376 of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for three months. 2. The facts which are necessary and relevant to decide the present appeal can be enumerated from the record as under:- (i) The date of alleged incident is 21.6.1990. The prosecutrix Smt. Malan Ashok Sawant was a married woman. She was residing with her husband, brother-in-law, father-in-law and mother-in-law at village Ranand Taluka-Man, District-Satara. That on the date of incident, her father-in-law and her husband and brother-in-law Popat went to village Pimpri for settling the marriage of Popat. The prosecutrix at about 10.00 a.m. took their she-goats for grazing in the field named as “Sanand”. The prosecutrix was accompanied by her friend namely Miss. Suman. Her mother-in-law had gone for doing the labour work of weeding. It is the prosecution case that three-to-four labourers were also working in the nearby field. That the appellant who was in acquaintance with the prosecutrix came at the said spot and started collecting Jambhul fruits and also tried to gave it to the prosecutrix. The prosecutrix refused to accept the same. At that time the goats and buffaloes entered in the adjoining sugarcane crop. Suman the friend, told the prosecutrix to drove them out. The prosecutrix therefore went to the filed of Sanand and started driving out the cattle. The appellant followed the prosecutrix, pulled her saree, gaged her mouth, lifted and took the prosecutrix to the sugarcane field and thereafter committed sexual assault on her. The prosecutrix raised hue and cry, however, nobody came forward to rescue her. The prosecutrix thereafter came to her house and informed the said incident to her mother-in-law. After her husband and father-in-law returned to the said village, she lodged the first information report on 24.6.1990. (ii) Shri M.M. Dhane, Asstt.Sub-Inspector was then working as a Police Head Constable and was attached to Dahivadi police station, District-Satara registered the crime bearing No.58 of 1990 under Section 376 of the Indian Penal Code. After her husband and father-in-law returned to the said village, she lodged the first information report on 24.6.1990. (ii) Shri M.M. Dhane, Asstt.Sub-Inspector was then working as a Police Head Constable and was attached to Dahivadi police station, District-Satara registered the crime bearing No.58 of 1990 under Section 376 of the Indian Penal Code. He thereafter carried out the investigation and after receipt of necessary documents, P.S.I. Shri Pandhare submitted chargesheet in the Court of Judicial Magistrate First Class, Dahivadi, District-Satara. (iii) The learned Judicial Magistrate First Class, Dahivadi committed the said case to the Court of Sessions under Section 209 of Cr. P.C. After committal of the case, the learned Trial Court framed charge below Exhibit-3. The said charge was read over and explained to the appellant in vernacular language to which he denied and claimed to be tried. The defence of the appellant is that, as the appellant and his family were cultivating the land of one Smt. Parubai, the husband of the prosecutrix was enraged and therefore this false case is filed against him. (iv) The prosecution in support of its case examined in all five witnesses. The learned Trial Court after recording the evidence and after hearing the parties to the said case was pleased to convict the appellant by the impugned Judgment and Order dated 22.1.1998 as stated herein above. 3. Heard Mr. Milind Deshmukh, the learned counsel for the appellant and Smt. M.R. Tidke, the learned APP and also perused the entire record pertaining to the present case produced before me. 4. The learned counsel for the appellant submitted that, bare perusal of the evidence of the prosecutrix would disclose that, it was a consensual act between the two adults. He submitted that though the prosecutrix has stated that her mother-in-law and other labourers were working in the field of Sanand, after her alleged cries, nobody came to her rescue which itself shows that the prosecutrix had her consent to the said act. He submitted that the date of incident is 21.6.1990 and the prosecutrix has lodged the first information report on 24.6.1990 i.e. after three days. He submitted that there is no evidence at all on record to show that, the appellant is the perpetrator of the said crime. He submitted that the date of incident is 21.6.1990 and the prosecutrix has lodged the first information report on 24.6.1990 i.e. after three days. He submitted that there is no evidence at all on record to show that, the appellant is the perpetrator of the said crime. He submitted that in view of the facts and circumstances of the case, it is apparent that the appellant has been implicated in a false case. He therefore prayed that the present appeal may be allowed and the appellant be acquitted from the charge framed against him. Per contra, the learned APP opposed the present appeal and submitted that the statement of the prosecutrix itself is sufficient to base the conviction of the appellant. She submitted that the statement of the prosecutrix is trustworthy and reliable. She therefore submitted that the present appeal may be dismissed and the conviction and sentence imposed upon the appellant by the Trial Court may be confirmed. 5. The prosecution in support of its case examined in all five witnesses. The prosecutrix has been examined as PW-1. In her testimony she has stated that on the date of incident, she went to graze the she-goats in the field known as 'Sanand'. That her mother-in-law had gone for the work of weeding. Her friend Miss. Suman (PW-3) was with her and the said Suman was also grazing her buffaloes. She has stated that there was no one present other than Suman when the incident occurred. She has stated that at that time the goats and buffaloes entered in the sugarcane crop therefore Miss. Suman told her to drive them out from the crop. Accordingly the prosecutrix (PW-1) went to the filed of Sanand and started driving out the cattles. She has stated that the appellant followed her, lifted her and took her in the sugarcane crop and thereafter committed sexual assault on her for two to three hours. That thereafter she returned home and narrated the incident to her mother-in-law. However as no male member was present in the house, she did not lodge the complaint. She deposed that after the said incident, she washed out her clothes and took bath for three days. In her detailed cross-examination it is brought on record that her husband was claiming rights in the property of Smt. Parubai. That the said property was situated in her village. She deposed that after the said incident, she washed out her clothes and took bath for three days. In her detailed cross-examination it is brought on record that her husband was claiming rights in the property of Smt. Parubai. That the said property was situated in her village. That the appellant was defending the title on behalf Salubai Bhosale i.e. the legal heir of Smt. Parubai. She has further admitted that when the incident occurred her mother-in-law was doing the work of weeding and the owner of the said field and some labourers were also present there. The entire filed was of one-and-half acres. She has admitted that she did not bite or scratch the appellant by nails. That she had shouted and the appellant left from the spot on bicycle. That the witness Miss. Suman was standing about twenty feet from the place of incident. She has further admitted that after returning home, she did not go to the house of the Police Patil to lodge the complaint. That immediately after two days she had been to the spot of incident for grazing the goats. PW-2 is Ashok B. Sawant, the husband of the prosecutrix with whom the prosecutrix confided about the incident after his returning to the village. His evidence is a corroborative piece of evidence to support the statement of the prosecutrix as he was not present on the date of incident and subsequent to his arrival from the other village the prosecutrix informed him about the alleged act. No material evidence beneficial to the prosecution is brought on record from his testimony. PW-3 is Miss. Suman, the friend of the prosecutrix who did not support the case of the prosecution and was declared hostile. In her cross-examination by the learned APP, she has admitted that the prosecutrix was not shouting at the time of incident and the appellant did not threaten her. PW-4 Shri Rajkumar L. Kharat, is the nephew of PW-2 Ashok Sawant. This witness has deposed that on the date of incident, he returned from the field at about 3.30 p.m. That when he was returning to home, he noticed the appellant was returning on bicycle to his house. The evidence of this witness is not at all useful to the prosecution to prove any of the circumstance in the offence against the appellant. PW-5 is the Investigating officer of the present crime. The evidence of this witness is not at all useful to the prosecution to prove any of the circumstance in the offence against the appellant. PW-5 is the Investigating officer of the present crime. He has recorded the first information report bearing Crime No.58 of 1990 under Section 376 of the Indian Penal Code and has investigated the case. The evidence of this witness is formal in nature and the appellant in the cross-examination of this witness has put only stock questions to the said witness. Except the facts pertaining to the registration of crime and its investigation, no other material is elicited at the instance of this witness. 6. Thus after taking into consideration the entire evidence available on record of the present case, it is clear that the appellant is successful in brining on record the admissions given by the prosecutrix. The prosecutrix (PW-1) in her testimony has admitted that the appellant committed sexual assault on her for two to three hours on the date of incident. That she washed out her clothes and also took bath for next three days. That there is enmity between the appellant on one side and the husband of the prosecutrix on the other side over the property of Smt. Parubai. The prosecutrix has further admitted that when the incident took place her mother-in-law was working in the said field at Sanand and was doing the work of weeding. That the owner of the said filed and other labourers were also present in/near the field. That the witness Miss. Suman was standing 20 feet away from the spot of incident. 7. In view of the aforesaid admissions given by the prosecutrix, it clearly appears that the version narrated by the prosecutrix is an improbable version. If the prosecutrix was shouting and/or making hue and cry and there were other labourers working in the field including her mother-in-law near the spot, then it is difficult to accept that nobody came to her rescue. Despite the said persons were present in the very close vicinity of the prosecutrix, none came to rescue her is not acceptable. It is further to be noted here that after returning home the prosecutrix did not lodge the complaint to the Police Patil of the village. Despite the said persons were present in the very close vicinity of the prosecutrix, none came to rescue her is not acceptable. It is further to be noted here that after returning home the prosecutrix did not lodge the complaint to the Police Patil of the village. She not only washed her cloths, but also took bath and after a gap of three days, she lodged the report on 24.6.1990 with the police. It thus appears that the version of the prosecutrix is not only improbable but also not reliable and trustworthy. It is therefore clear from the record that the alleged act committed by the appellant was a consensual act and as the husband of the prosecutrix was having enmity with the appellant over the land of Smt. Parubai, the crime was registered against the appellant. 8. After taking into consideration the facts and circumstances of the case, I am of the considered view that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and the appellant is entitled for benefit of doubt. The appellant therefore succeeds in the present appeal. 9. In the premise, the appeal is allowed. The conviction and sentence of the appellant under Section 376 of the Indian Penal Code by the impugned Judgment and Order dated 22.1.1998 is hereby quashed and set aside. Fine, if any, paid by the appellant be returned to him after completing necessary formalities.