Vinod S/O. Amrut Malkhede Vs. State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/1105205
CourtMumbai Nagpur High Court
Decided OnDec-12-2012
Case NumberCriminal Appeal Nos.83 of 2012 & 456 of 2012
JudgeM.L. TAHALIYANI
AppellantVinod S/O. Amrut Malkhede
RespondentState of Maharashtra
Excerpt:
indian penal code, 1860 - section 376, 376(2)(g) – evidence act, 1872 - section 27 – comparative citation: 2013 all mr (cri) 819oral judgment: the appellant in criminal appeal no.83 of 2012 viz. vinod malkhede has been convicted for the offence punishable under section 376 and also for the offence punishable under section 376(2)(g) of the indian penal code. the appellant in criminal appeal no.456 of 2012 viz. santosh vairagade has been convicted for the offence punishable under section 376(2)(g) and 376 read with section 109 of the indian penal code. both the appellants were tried in special case no.15 of 2010 for the above stated offences and have been convicted as stated above. 2. the victim of the offence is a lady by name sunanda dashrath zade who was aged about 40 years at the time of incident. the incident had occurred in the night intervening 10th and 11th of may, 2010. the complainant/ prosecutrix is resident of village lakkadkot in tahsil: rajura. she had gone to rajura for selling vegetables in the evening of 10th may, 2010. while returning to her native place at lakkadkot she was waiting for a bus on bus-stand near panchayat samiti, rajura. it is the case of prosecution that the appellants who were on motorcycle had offered the complainant that they would drop her at her house. accordingly, she accompanied the appellants on the motorcycle. it is alleged that the appellant in criminal appeal no.456 of 2012 viz. santosh was known to the prosecutrix and he himself was driving the motorcycle. appellant vinod was sitting as pillion rider. as already stated, the prosecutrix had also accompanied them in response to the offer given by the appellants. appellant santosh stopped the vehicle near a tiles factory at tulana. both of them took the complainant in the factory premises. it is alleged that appellant vinod removed clothes of the complainant and had forcible sexual intercourse with the complainant. accused vinod had sexually exploited the complainant for about two hours. it is also the case of prosecution that the complainant earnestly requested that she should be released or they should bring something to eat or at least provide her water. but, appellant vinod did not leave the complainant. after some time, on the repeated requests of the complainant, both the appellants left the spot on the pretext of bringing some eatables. it is alleged that they had taken away all the clothes of the complainant from the spot. the complainant left the spot in completely naked condition. she, however, reached the hut of one rakhabai, situated nearby the place of incident. smt. rekhabai offered her clothes including sari. thereafter at about 5.00 a.m. the complainant left the house of smt. rekhabai for virur and lodged report at virur police station at about 10.30 a.m. offences punishable under sections 376(2)(g) and 506 of the indian penal code were registered. an offence punishable under section 3(1)(xii), 3(2)(v) of the scheduled castes and scheduled tribes (prevention of atrocities) act was also registered, as the complainant belonged to scheduled caste. during the course of investigation the appellants were arrested and the motorcycle was seized. statement of smt. rekhabai was recorded. the complainant was sent for medical examination and after completion of investigation chargesheet was filed against the appellant. 3. during the course of trial the prosecution had examined in all nine witnesses in support of its case. p.w. 1 sunanda is complainant/ prosecutrix, p.w. 2 dr. poonam nagrale had examined p.w. 1 as medical officer at general hospital, chandrapur, p.w. 3 dr. anita arke was also a medical officer. she had examined complainant at rajura health centre. p.w. 4 smt. rekhabai kodape is the lady who had given shelter to the complainant immediately after the incident. p.w. 5 is one of the panch witnesses and p.w. 6 is also panch witness. p.w. 7 is the police officer who had recorded first information report of complainant-sunanda. p.w. 8 is also one of the panch witnesses and p.w. 9 is investigating officer. 4. though prosecution had examined nine witnesses in support of its case, the whole prosecution case, in fact, was based on the evidence of p.w.1 sunanda, p.w. 4 rekhabai and p.w. 9 investigating officer. 5. in the first place, it is to be noted that the complainant was a lady aged about 40 years and she was known to appellant santosh. the act of alleged sexual intercourse was committed by appellant vinod. the evidence of p.w. 1 even without cross-examination does not inspire confidence. the evidence of p.w. 1 read with evidence of p.w. 4 rekhabai and p.w. 9 investigating officer makes the case of prosecution highly doubtful. 6. it may be stated here that p.w. 1 had stated that her clothes were taken away by the appellants and she was in naked condition. it is further stated by her that she had reached the house of p.w. 4 rekhabai in fully naked condition. p.w. 4 has also stated that p.w. 1 reached her house in naked condition and that p.w. 4 was frightened to see the condition of p.w.1. p.w. 1 had stated that her clothes were taken away by the appellants when they left the factory premises. apart from the fact that there is no detail description of the clothes, if this part of the evidence is to be believed then the clothes of the complainant could not have been found on the place of the incident. it is not the case of prosecution that the appellants had again come to the spot and left some of the clothes of the complainant on the spot. learned additional public prosecutor wanted this court to presume that the appellant must have gone to the place of incident again and must have left the clothes of the complainant on the spot of the incident i.e. in the factory at tulana. in the absence of any evidence in this regard, the contention of learned additional public prosecutor cannot be accepted. p.w. 7 who had visited the spot after recording of first information report has stated in his evidence that panchnama exh.50 was drawn by him in presence of panchas. the place visited by him was a tiles factory at tulana. according to this witness, some broken pieces of bangles, one saree, one petticoat and one pair of female footwear were found on the spot. as already stated, there is no evidence and it is not the case of prosecution that the appellants had visited the spot again after p.w. 1 had left the spot. therefore, it is really strange to note as to how the clothes of p.w. 1 reached the spot when they were taken away by the appellants according to the version of p.w. 1 herself. this evidence of p.w. 1 by itself makes the whole case unbelievable. 7. the conduct of p.w. 1 and p.w. 4 is also not free from doubt. in normal course, if p.w. 1 was ravished so inhumanely as alleged by her in her evidence, she would have gone to her house after getting clothes from p.w. 4. she left the house of p.w. 4 in early morning of 11th may, 2010 at about 5.00 a.m. in ordinary course a female, who was subjected to such a serious offence, would have reached home and would have told her husband about the same. p.w. 1 is married and she had got six children. the conduct of p.w. 1 is highly doubtful inasmuch as she had not even bothered to inform her husband about the incident. her husband was nowhere in the picture during the course of investigation or trial. similarly, it is also not clear as to whether there were other family members at the house of p.w. 4. in the absence of this evidence, it is difficult to believe p.w. 1 and 4. in my considered opinion, the incident had not occurred in the manner stated by p.w.1. if at all there was sexual intercourse on the part of any of the appellants, it was not in the manner stated by p.w. 1. it could be by consent. the first information report might have been lodged with police due to some other reasons which could not be the subject matter of inquiry for the trial court if the evidence is found to be totally unreliable. from the evidence of p.w. nos.1 and 4 it is abundantly clear that p.w.1 did not reach home in the night intervening 10th and 11th may, 2010. in ordinary course, in these circumstances, this should have been a cause for anxiety for husband and children of p.w. 1 and they should have approached the police. it is not the case of prosecution that the husband of p.w. 1 had lodged any missing complaint. as already stated, husband of p.w. 1 is seen nowhere during the course of investigation or the trial. as such, there is no necessity to examine the evidence of medical officers who had reported that there were some minor abrasions on the person of p.w. 1. the learned trial court, in my opinion, has committed error in accepting the evidence of p.w. nos.1 and 4. the evidence of p.w. 1 is highly doubtful and should have been rejected. in the circumstances, both the appeals deserve to be allowed and hence, i pass the following order. 8. both the appeals are allowed. the judgment and order dated 24.02.2012 in special case no.15/2010 passed by the learned sessions judge, chandrapur, is set aside. the appellant-santosh rushi vairagade (original accused no.1) in criminal appeal no.456/2012 is acquitted of the offence punishable under sections 376(2)(g) and 376 read with section 109 of ipc. the appellant-vinod amrut malkhede (original accused no.2) in criminal appeal no.83/2012 is acquitted of the offence punishable under section 376(2) (g) and 376 of the ipc. both the appellants shall be released from the prison, if not required in any other case. fine, if paid by the appellants, shall be refunded to them. both the appeals are disposed of accordingly.
Judgment:

Oral Judgment:

The appellant in Criminal Appeal No.83 of 2012 viz. Vinod Malkhede has been convicted for the offence punishable under Section 376 and also for the offence punishable under Section 376(2)(g) of the Indian Penal Code. The appellant in Criminal Appeal No.456 of 2012 viz. Santosh Vairagade has been convicted for the offence punishable under Section 376(2)(g) and 376 read with Section 109 of the Indian Penal Code. Both the appellants were tried in Special Case No.15 of 2010 for the above stated offences and have been convicted as stated above.

2. The victim of the offence is a lady by name Sunanda Dashrath Zade who was aged about 40 years at the time of incident. The incident had occurred in the night intervening 10th and 11th of May, 2010. The complainant/ prosecutrix is resident of village Lakkadkot in Tahsil: Rajura. She had gone to Rajura for selling vegetables in the evening of 10th May, 2010. While returning to her native place at Lakkadkot she was waiting for a bus on Bus-Stand near Panchayat Samiti, Rajura. It is the case of prosecution that the appellants who were on motorcycle had offered the complainant that they would drop her at her house. Accordingly, she accompanied the appellants on the motorcycle. It is alleged that the appellant in Criminal Appeal No.456 of 2012 viz. Santosh was known to the prosecutrix and he himself was driving the motorcycle. Appellant Vinod was sitting as pillion rider. As already stated, the prosecutrix had also accompanied them in response to the offer given by the appellants. Appellant Santosh stopped the vehicle near a tiles factory at Tulana. Both of them took the complainant in the factory premises.

It is alleged that appellant Vinod removed clothes of the complainant and had forcible sexual intercourse with the complainant. Accused Vinod had sexually exploited the complainant for about two hours. It is also the case of prosecution that the complainant earnestly requested that she should be released or they should bring something to eat or at least provide her water. But, appellant Vinod did not leave the complainant. After some time, on the repeated requests of the complainant, both the appellants left the spot on the pretext of bringing some eatables. It is alleged that they had taken away all the clothes of the complainant from the spot. The complainant left the spot in completely naked condition. She, however, reached the hut of one Rakhabai, situated nearby the place of incident. Smt. Rekhabai offered her clothes including sari. Thereafter at about 5.00 a.m. the complainant left the house of Smt. Rekhabai for Virur and lodged report at Virur Police Station at about 10.30 a.m. Offences punishable under Sections 376(2)(g) and 506 of the Indian Penal Code were registered. An offence punishable under Section 3(1)(xii), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was also registered, as the complainant belonged to Scheduled Caste. During the course of investigation the appellants were arrested and the motorcycle was seized. Statement of Smt. Rekhabai was recorded. The complainant was sent for medical examination and after completion of investigation chargesheet was filed against the appellant.

3. During the course of trial the prosecution had examined in all nine witnesses in support of its case. P.W. 1 Sunanda is complainant/ prosecutrix, P.W. 2 Dr. Poonam Nagrale had examined P.W. 1 as Medical Officer at General Hospital, Chandrapur, P.W. 3 Dr. Anita Arke was also a Medical Officer. She had examined complainant at Rajura Health Centre. P.W. 4 Smt. Rekhabai Kodape is the lady who had given shelter to the complainant immediately after the incident. P.W. 5 is one of the panch witnesses and P.W. 6 is also panch witness. P.W. 7 is the Police Officer who had recorded first information report of complainant-Sunanda. P.W. 8 is also one of the panch witnesses and P.W. 9 is Investigating Officer.

4. Though prosecution had examined nine witnesses in support of its case, the whole prosecution case, in fact, was based on the evidence of P.W.1 Sunanda, P.W. 4 Rekhabai and P.W. 9 Investigating Officer.

5. In the first place, it is to be noted that the complainant was a lady aged about 40 years and she was known to appellant Santosh. The act of alleged sexual intercourse was committed by appellant Vinod. The evidence of P.W. 1 even without cross-examination does not inspire confidence. The evidence of P.W. 1 read with evidence of P.W. 4 Rekhabai and P.W. 9 Investigating Officer makes the case of prosecution highly doubtful.

6. It may be stated here that P.W. 1 had stated that her clothes were taken away by the appellants and she was in naked condition. It is further stated by her that she had reached the house of P.W. 4 Rekhabai in fully naked condition. P.W. 4 has also stated that P.W. 1 reached her house in naked condition and that P.W. 4 was frightened to see the condition of P.W.1. P.W. 1 had stated that her clothes were taken away by the appellants when they left the factory premises. Apart from the fact that there is no detail description of the clothes, if this part of the evidence is to be believed then the clothes of the complainant could not have been found on the place of the incident. It is not the case of prosecution that the appellants had again come to the spot and left some of the clothes of the complainant on the spot. Learned Additional Public Prosecutor wanted this Court to presume that the appellant must have gone to the place of incident again and must have left the clothes of the complainant on the spot of the incident i.e. in the factory at Tulana. In the absence of any evidence in this regard, the contention of learned Additional Public Prosecutor cannot be accepted. P.W. 7 who had visited the spot after recording of first information report has stated in his evidence that panchnama Exh.50 was drawn by him in presence of panchas. The place visited by him was a tiles factory at Tulana. According to this witness, some broken pieces of bangles, one saree, one petticoat and one pair of female footwear were found on the spot. As already stated, there is no evidence and it is not the case of prosecution that the appellants had visited the spot again after P.W. 1 had left the spot. Therefore, it is really strange to note as to how the clothes of P.W. 1 reached the spot when they were taken away by the appellants according to the version of P.W. 1 herself. This evidence of P.W. 1 by itself makes the whole case unbelievable.

7. The conduct of P.W. 1 and P.W. 4 is also not free from doubt. In normal course, if P.W. 1 was ravished so inhumanely as alleged by her in her evidence, she would have gone to her house after getting clothes from P.W. 4. She left the house of P.W. 4 in early morning of 11th May, 2010 at about 5.00 a.m. In ordinary course a female, who was subjected to such a serious offence, would have reached home and would have told her husband about the same. P.W. 1 is married and she had got six children. The conduct of P.W. 1 is highly doubtful inasmuch as she had not even bothered to inform her husband about the incident. Her husband was nowhere in the picture during the course of investigation or trial. Similarly, it is also not clear as to whether there were other family members at the house of P.W. 4. In the absence of this evidence, it is difficult to believe P.W. 1 and 4. In my considered opinion, the incident had not occurred in the manner stated by P.W.1. If at all there was sexual intercourse on the part of any of the appellants, it was not in the manner stated by P.W. 1. It could be by consent. The first information report might have been lodged with police due to some other reasons which could not be the subject matter of inquiry for the trial Court if the evidence is found to be totally unreliable.

From the evidence of P.W. Nos.1 and 4 it is abundantly clear that P.W.1 did not reach home in the night intervening 10th and 11th May, 2010. In ordinary course, in these circumstances, this should have been a cause for anxiety for husband and children of P.W. 1 and they should have approached the police. It is not the case of prosecution that the husband of P.W. 1 had lodged any missing complaint. As already stated, husband of P.W. 1 is seen nowhere during the course of investigation or the trial. As such, there is no necessity to examine the evidence of Medical Officers who had reported that there were some minor abrasions on the person of P.W. 1. The learned trial Court, in my opinion, has committed error in accepting the evidence of P.W. Nos.1 and 4. The evidence of P.W. 1 is highly doubtful and should have been rejected. In the circumstances, both the appeals deserve to be allowed and hence, I pass the following order.

8. Both the appeals are allowed. The judgment and order dated 24.02.2012 in Special Case No.15/2010 passed by the learned Sessions Judge, Chandrapur, is set aside. The appellant-Santosh Rushi Vairagade (original accused No.1) in Criminal Appeal No.456/2012 is acquitted of the offence punishable under Sections 376(2)(g) and 376 read with section 109 of IPC. The appellant-Vinod Amrut Malkhede (original accused No.2) in Criminal Appeal No.83/2012 is acquitted of the offence punishable under section 376(2) (g) and 376 of the IPC.

Both the appellants shall be released from the prison, if not required in any other case.

Fine, if paid by the appellants, shall be refunded to them.

Both the appeals are disposed of accordingly.