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2019 DIGILAW 1263 (BOM)

Vinod v. State Of Maharashtra

2019-05-14

MANISH PITALE

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JUDGMENT Manish Pitale, J.(Oral) - This is an appeal filed by the appellant (accused No.1) challenging judgment and order dated 06.10.2003 passed by the Court of 1st Ad-hoc Additional Sessions Judge, Gondia (trial Court) in Sessions Trial No. 33 of 2001, whereby the appellant along with accused no.2 Uttam Kaur stood convicted for offence under Section 366 read with 34 of the Indian Penal Code (IPC) and was sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 2000/-. The accused no.2 Uttam Kaur had also filed appeal bearing Criminal Appeal No.677 of 2003 challenging the aforesaid judgment and order passed by the trial Court. But, during the pendency of the appeal, the accused no.2 Uttam Kaur expired and her appeal stood dismissed as abated. 2. As per the prosecution case, the prosecutrix in the present case i.e. PW1 was taken away from her house by the accused no.2 Uttam Kaur on the pretext of having her married to one Tinu Makkad, with whom the prosecutrix was admittedly having a love affair. While going out of the house carrying a bag of clothes, the prosecutrix told her mother (PW3) Radhabai that she was going out to give her Saree for pico fall. According to the prosecution, the prosecutrix accompanied the accused no.2 Uttam Kaur to the Railway Station but the said Tinu Makkad did not come and in this situation she took the prosecutrix to the house of one Bablu Zha. The prosecutrix waited for Tinu Makkad in the said house till it was night time and when Tinu Makkad did not arrive, the accused no.2 Uttam Kaur left prosecutrix in the house of Bablu Zha and went away. The prosecutrix was left in the house of Bablu Zha where the appellant (accused no.1), Bablu Zha and one Hitesh Dongre stayed with her in the said house. 3. Thereafter, on the next day the accused no.2 Uttam Kaur came to the said house and told the prosecutrix that she could not go back to her own house now that she was defamed. It was further claimed that accused no.2 Uttam Kaur forcibly got the prosecutrix married to the appellant (accused no.1) in the said house of Bablu Zha and that thereafter the appellant allegedly tried to commit sexual intercourse with the prosecutrix. It was further claimed that accused no.2 Uttam Kaur forcibly got the prosecutrix married to the appellant (accused no.1) in the said house of Bablu Zha and that thereafter the appellant allegedly tried to commit sexual intercourse with the prosecutrix. It is further the case of the prosecution that the appellant then took the prosecutrix away to Rajnandgaon where they checked into a lodge with fictitious names and that thereafter the appellant took the prosecutrix to a house at Rajnandgaon, where the prosecutrix was forced to write certain letters to her mother. It is the case of the prosecution that thereafter the appellant took the prosecutrix back to Gondia and handed over her custody to her mother Radhabai (PW3) on 20.08.2000 in a garden from where the said Radhabai (PW3) took the prosecutrix to the Police Station and lodged the first information report (FIR). 4. In the FIR dated 20.08.2000, only Tinu Makkad was shown as the accused and admittedly neither the appellant nor accused no.2 Uttam Kaur were shown as accused. The oral report leading to registration of the FIR concerned mainly the actions and role of the said Tinu Makkad, although there was reference to the appellant to the effect that when the prosecutrix wanted to commit suicide due to fact that Tinu Makkad had deceived her, the appellant did not allow her to do so and when the appellant asked the prosecutrix to marry him, she agreed. But, it appears that the said Tinu Makkad was not charged with any offence pursuant to the investigation undertaken by the Investigating Officer PW6 Hamid Khan and the entire prosecution case was built against the appellant and accused no.2. The trial Court framed charge on 21.02.2003 against the appellant and accused no.2 for offences under Sections 366 and 363 read with 34 of the IPC. The prosecution examined six witnesses in support of its case. PW1 was the prosecutrix herself, while PW3 Radhabai was her mother. PW4 (Lodge Owner) and PW5, the owner of the house where the appellant and the prosecutrix had allegedly stayed, both turned hostile and PW6 was the Investigating Officer. 5. The prosecution examined six witnesses in support of its case. PW1 was the prosecutrix herself, while PW3 Radhabai was her mother. PW4 (Lodge Owner) and PW5, the owner of the house where the appellant and the prosecutrix had allegedly stayed, both turned hostile and PW6 was the Investigating Officer. 5. On the basis of oral and documentary evidence on record, by the impugned judgment and order, the trial Court convicted the appellant and accused no.2 under Section 366 read with 34 of the IPC, sentencing them for two years rigorous imprisonment along with payment of fine of Rs. 2000/- each. 6. Mr. A.J. Thakkar, learned counsel for the appellant, submitted that the only person made accused in the FIR in the present case was Tinu Makkad and that the appellant was not even named in the FIR. It was further submitted that the Investigating Officer PW6 had played mischief in the present case and in order to shield the said Tinu Makkad, the appellant had been wrongly framed by the Investigating Officer. It was submitted that a perusal of the cross-examination of the Investigating Officer PW6 demonstrates that he could not explain as to why he had not traced the said Tinu Makkad nor taken any action against him. It was further submitted that the evidence of the prosecutrix PW1 read with that of her mother PW3 demonstrated that most of the crucial aspects stated in the examination-in-chief, upon cross-examination of these witnesses turned out to be false and unsupported by the material on record. It was further submitted that even as per the evidence on record, the appellant could not be attributed with any role of taking away or enticing the prosecutrix from the custody of her lawful guardian. Even if it was conceded that the prosecutrix was minor, since the appellant had no role to play in that regard, the offence under Section 366 of the IPC was clearly not made out. On this basis, it was contended that the appeal deserved to be allowed. 7. Mrs. Deshmukh, learned A.P.P. supported the judgment and order passed by the trial Court. 8. In the present case, a perusal of the FIR shows that only the said Tinu Makkad was made an accused on the basis of oral report lodged by PW3 Radhabai, the mother of the prosecutrix PW1. 7. Mrs. Deshmukh, learned A.P.P. supported the judgment and order passed by the trial Court. 8. In the present case, a perusal of the FIR shows that only the said Tinu Makkad was made an accused on the basis of oral report lodged by PW3 Radhabai, the mother of the prosecutrix PW1. It is difficult to understand as to on what basis the Investigating Officer PW6 gave up his efforts to investigate the role of the said Tinu Makkad in the present case. In the FIR, neither the appellant nor the accused no.2 Uttam Kaur were shown as accused. The material on record also does not show as to when and how the investigator and thereafter the prosecution decided to give up its case against the said Tinu Makkad and pursued the case against the appellant and accused no.2 for the aforesaid offences with which they were charged. 9. The evidence of the prosecutrix PW1 shows that although she has claimed the role of the appellant in the context of having forcibly married her and attempted to have sexual intercourse with her by tying her hands and legs, in cross-examination it has come that these aspects were material omissions and that no such allegations were made by her when her statement was recorded by the Police. A perusal of the oral report dated 20.08.2000 lodged by Radhabai (PW3) also shows that no such role was attributed to the appellant at all. In fact, the only reference made to the appellant in the oral report was to the effect that when the prosecutrix wanted to commit suicide due to the betrayal of Tinu Makkad, it was the appellant who dissuaded her from doing that and asked her to marry him, to which she allegedly agreed. It appears that due to the said tenor of the oral report, in the FIR, only the said Tinu Makkad was made an accused. 10. Yet, as the investigation proceeded, inexplicably, Tinu Makkad was dropped as an accused and the entire prosecution case was developed around the alleged role played by the appellant and accused no.2 Uttam Kaur. 11. Even in that context, while taking into consideration the evidence of the prosecution witnesses on record, it is difficult to reach to the conclusion that the appellant could have been held guilty for offence under Section 366 of the IPC. 11. Even in that context, while taking into consideration the evidence of the prosecution witnesses on record, it is difficult to reach to the conclusion that the appellant could have been held guilty for offence under Section 366 of the IPC. Under the said provision, pertaining to kidnapping or inducing woman to compel her marriage, the ingredients of offence of kidnapping as defined under Section 361 of the IPC were certainly required to be proved. This would necessarily require the prosecution to prove that the appellant had taken away or enticed the prosecutrix from her lawful guardian and then compelled her to marry him. In the present case, even if the evidence of the prosecution witnesses was to be accepted, the accused no.2 Uttam Kaur, if at all, could have been attributed with the role of having taken away or enticed the prosecutrix from her lawful guardian. Therefore, the first ingredient of the offence under Section 366 of the IPC was not made out in the present case, even if the evidence of the prosecution witnesses was to be accepted. 12. A perusal of the evidence of the witnesses shows that there are glaring and material omissions in the evidence of the prosecutrix PW1, who is exposed in cross-examination. The evidence of PW3 Radhabai also does not take the case of the prosecution any further against the appellant for proving the ingredients of offence under Section 366 of the IPC. Since the PW4 i.e. the lodge owner and PW5 the owner of the house where appellant had allegedly taken the prosecutrix turned hostile, there was virtually no evidence on record to show that the appellant had indeed taken the prosecutrix to Rajnandgaon and stayed with her for a couple of weeks before returning to Gondia and handing over the custody of the prosecutrix to her mother PW3 on 20.08.2000. Therefore, the basis of the prosecution story stood completely destroyed. Apart from this, evidence of the Investigating Officer PW6 shows that he has conceded in the cross-examination that he took no interest in prosecuting the original accused Tinu Makkad in the present case. It is surprising that PW6 Investigating Officer stated in the cross-examination that he did not trace the whereabouts of the said Tinu Makkad and that he did not find it necessary to even record the statement of said Tinu Makkad. It is surprising that PW6 Investigating Officer stated in the cross-examination that he did not trace the whereabouts of the said Tinu Makkad and that he did not find it necessary to even record the statement of said Tinu Makkad. This shows that the investigation was not conducted in a proper manner at all. 13. In this light, when the impugned judgment and order passed by the trial Court is perused, it becomes clear that the trial Court has erred in holding against the appellant, primarily on the basis of sympathy for the prosecutrix PW1. The trial Court has failed to appreciate the glaring mistakes in the investigation from the initial stage itself, when the Investigating Officer failed to pursue the investigation against the original accused Tinu Makkad. The trial Court also erred in holding that there was sufficient evidence to show that the appellant had taken the prosecutrix to Rajnandgaon and then brought her back to Gondia, even when the relevant prosecution witnesses in this regard i.e. PW4 and PW5 had turned hostile. The trial Court failed to appreciate that the essential ingredients of the offence under Section 366 of the IPC were clearly not satisfied by the evidence on record in the context of the appellant. The basic requirement of there being sufficient material to show that the appellant had taken away or enticed the prosecutrix from her lawful guardian, was not properly appreciated by the trial Court while holding against the appellant. The trial Court emphasized on the role of the accused no.2 Uttam Kaur and in that process took it for granted that there was sufficient evidence even as against the appellant for proving his guilt for offence punishable under Section 366 of the IPC. It is also surprising that in the operative part of the impugned order passed by the trial Court, although the trial Court has convicted the appellant and accused no.2 Uttam Kaur for offence punishable under Section 366 read with 34 of the IPC, there is no order in respect of the charge levelled against the said accused under Section 363 read with 34 of the IPC. This further shows not only inappropriate appreciation of the evidence on the record by the trial Court, but also non-application of the mind to the totality of the case sought to be projected by the prosecution against the accused. This further shows not only inappropriate appreciation of the evidence on the record by the trial Court, but also non-application of the mind to the totality of the case sought to be projected by the prosecution against the accused. The impugned judgment and order passed by the trial Court is, therefore, rendered unsustainable. 14. In the light of the above, the appeal is allowed. The impugned judgment and order which holds the appellant guilty under Section 366 read with 34 of the IPC, is quashed and set aside. The appellant is acquitted of the charges levelled against him. Consequently, the fine amount deposited by the appellant shall be refunded to him and since the appellant was on bail during the pendency of the appeal, his bail bonds shall stand discharged.