High Court

Legal Reasoning

CriAppeal-423-2024-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 423 OF 2024Manohar @ Jibhau Ambarsingh SonawaneAge : 35 years, Occupation Labour,R/o : Rundawali, Taluka Shirpur,District Dhule.… Appellant[Orig. Accused No.1]Versus1.The State of MaharashtraThrough the Police Station Officer,The MIDC Police Station Jalgaon,Taluka Jalgaon, District Jalgaon.2.XYZ (Prosecutrix-Informant)… Respondents…..Ms. Anagha V. Rotte, Advocate for the Appellant.Mr. N. D. Batule, APP for Respondent No.1-State.Mr. D. K. Dagadkhair, Advocate for Respondent No.2 (appointed through Legal Aid)...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 06.03.2025Pronounced on: 08.04.2025JUDGMENT : 1.Appellant, a convict for offence under Section 376(1) of IPC,hereby takes exception to the judgment and order dated 28.04.2023passed by Additional Sessions Judge, Jalgaon in Sessions Case No.327 of 2019. CriAppeal-423-2024-2- 2.Victim PW1 lodged report with M.I.D.C. Police Station, Jalgaoninforming that, she was married to Vitthal Sanjay Patil and also had aone and half years daughter. Due to marital discord, she came toreside with her maternal uncle at Mhasavad and kept custody of herdaughter with her husband at Shirsoli. During her stay with maternaluncle, she got acquainted with Latabai and Butabai and she confidedto them her family history. They suggested her to go out of the villagefor work purpose and accordingly, on 12.06.2019, without informinganyone, on the pretext of answering call of nature, she left her uncle’splace and joined above ladies. They forcibly took away her ear-ringsand ornaments, covered her face with handkerchief, took her in arickshaw and made her board a bus at Pachora bus stand, purchasedticket for her and asked her to travel and told her that appellant, whowas known to both ladies, would come to receive her at Dhule STStand. Accordingly she undertook the journey and after reachingDhule Bus Stand, applicant contacted her and took her on the pretextof fixing job to Shirpur and from there, left on motorcycle to go to hisvillage. There, she claims that, in the night, after dinner, he hadforcible sexual relations with her against her wish. CriAppeal-423-2024-3- 3.On the next morning, her uncle came with police and shedisclosed above incidence with her and joined her uncle to lodgereport, on the strength of which police registered crime no. 461 of2019 for offence under Sections 365, 366, 376, 406, 504, 506 r/w 34of IPC. 4.After investigation and on gathering sufficient evidence, presentappellant and two above named ladies were chargesheeted and triedvide Sessions Case No. 327 of 2019.By judgment dated 28.04.2023, accused no. 1 appellant cameto be held guilty for offence under Section 376(1) of IPC, however hewas acquitted from charge of Sections 376(2)(n), 365 r/w 34, 366r/w 34, 368 r/w 34, 504 and 506 of IPC. Accused no.2 Latabai andaccused no. 3 Butabai were acquitted from offence under Sections406, 365, 368 r/w 34 of IPC, but both ladies came to be convicted foroffence under Section 366 r/w 34 of IPC. Only accused/appellant Manohar hereby assails abovejudgment vide instant appeal on various grounds spelt out in theappeal. CriAppeal-423-2024-4- SUBMISSIONSOn behalf of the appellant : 5.Learned counsel for appellant claimed innocence and falseimplication. She pointed out that, story narrated by victim isapparently false, afterthought and concocted. She pointed out that,victim is full grown married lady and also mother of a child. She hadleft company of her husband and surprisingly, even of her small child,and had come to stay with uncle and her evidence further suggeststhat, on her own accord, even without informing her uncle, she lefthis house alleging work being arranged for her by accused nos. 2 and3. However, according to learned counsel, such story of victim has nofoundation. 6.Taking this court through the FIR and comparing it by placing itin juxtaposition with her substantive evidence in witness box, learnedcounsel pointed out that, her evidence is full of material variances,inconsistencies, omissions and contradictions, and as such, the sameneeds to be discarded at the threshold. 7.She further pointed out that, it is difficult to accept the versionthat she was lured with a job with accused, as there is nothing toindicate or demonstrate that accused was himself in a position to CriAppeal-423-2024-5- provide any work for her livelihood. Learned counsel pointed outthat, it is also difficult to accept her version that she was forced to goto appellant. It is pointed out that, since leaving the house, whileundertaking journey in the rickshaw to reach bus stand, while heralleged ornaments were allegedly forcibly removed, she has notoffered resistance, nor has raised any alarms in spite of it being broadday light. Learned counsel further pointed out that, her story itselfsuggests that she was all alone in the entire journey in the bus fromPachora to Dhule and she had made no efforts to escape or to returnback, nor made any complaint to any of the passengers, including busdriver or conductor. Resultantly, learned counsel submits that,accusations raised later on, after being caught, about being forced,are not at all believable. 8.Learned counsel also pointed out that, victim had allegedlyundertaken journey with appellant in rickshaw and on motorcyclefrom Dhule ST Stand to his place and even during their said journey,there was no alarm and, according to learned counsel, this story isrendered false as Investigating Officer has himself admitted that,investigation did not reveal that appellant was owner of a motorcycleor had any driving license, and as such, it is submitted that, entirestory is concocted. CriAppeal-423-2024-6- 9.Learned counsel pointed out that, victim herself stated thatafter reaching the place of appellant, she had interacted withneighbours. Place of accused was in a residential locality, but she didnot bother to inform anyone and rather chose to spend night in thehouse of appellant and later on alleged being raped. According tolearned counsel, it has emerged in the investigation that, the doorsand windows of the house had no latches or locks and therefore, if atall it was forceful detention, she could have easily raised alarm ormade her escape good, but she chose not to do so for the best reasonsknown to her and only on being approached by uncle, at his instance,false story has been narrated. Learned counsel took this Courtthrough the answers given by victim in cross wherein she hasadmitted that her uncle asked her to lodge report of rape to avoidgetting defamed in the village. Resultantly, with such answers in cross, learned counselquestions the affirmative findings of trial court about offence ofSection 376(1) IPC. 10.Learned counsel took this Court through the evidence of PW4uncle, answers given by him in cross, and would submit that even hisversion is of no avail to the prosecution as he has mere hearsayinformation. CriAppeal-423-2024-7- 11.It is further pointed out that, medical expert who had occasionto examine victim, deposed in witness box about only one sexualencounter, however, in report two sexual encounters were reportedand moreover, it is pointed out that, to the medical expert, rape isreported to be committed by an unknown person. Pointing to suchevidence and the answers given by Investigating Officer and panchaswhile under cross, learned counsel seriously doubts credibility andveracity of the prosecution version and thereby questions theconclusion drawn by learned trial Judge and prays to allow theappeal.On behalf of the State :12.Supporting the impugned judgment, learned APP pointed outthat, there is convincing evidence of none other than victim. That, shehas been exploited by accused nos. 2 and 3 and they had sent her toaccused no.1. They had removed her ornaments, gave false assuranceof work for earning and sent her to accused no.1, who ravished her.That, she has narrated the ordeal faced by her in the report to policeas well as in the substantive evidence. Her evidence is consistent onmaterial points of being forcibly raped under threat. She was rescuedby her uncle and police from the custody of appellant. There isprompt reporting. There is history given to medical expert. Story CriAppeal-423-2024-8- narrated by victim has been reproduced by her uncle and independentwitness like husband of police patil. Therefore, according to learnedAPP, there was no possibility of false implication and therefore,learned APP canvasses in favour of the conviction to be right andcorrect in the eyes of law and prays to dismiss the appeal. ANALYSIS AND CONCLUSION13.The 11 witnesses examined by prosecution in support of its casecan be categorized as follows :First Set: PW1 victim and PW4 uncle of victimSecond Set :PW2 Ajay and [Panchas]PW3 PurushottamThird Set :PW8 Dr. Suraj, who examined appellant and [Medical experts]PW9 Dr. Ravindra, who examined victim.Fourth Set :PW7 Balkrushna who registered missing complaint[Police officers] at the instance of victim’s uncle, PW10 PSI Rajkumar was the Investigating Officerand PW11 Asst. PI Nita Kayate, who registered FIR.Fifth Set :PW6 Pratibha, Police Patil and [Villagers]PW5 Prashant, husband of PW6. CriAppeal-423-2024-9- 14.Re-appreciated the entire oral evidence of above witnesses.Crucial evidence is of PW1 victim followed by that of her uncle PW4.Then, evidence of medical experts followed by panchas andultimately, Investigating Officers.15.For proper comprehension, substantive evidence of victim andher uncle, which is decisive, is required to be reproduced in itsentirety. Translated version of the same, as provided by SeniorTranslator on the establishment of this Bench, is as under :PW1Victim“1.At the time of incidence I was residing at maternaluncle’s house at Mhasawad. At that time, I was married and Ihad a daughter. Her name is Harshu. At the time of incidenceshe was residing at my in-laws at Shirsoli. I was living with mymaternal uncle because I was driven out by my in-laws.2.I am know Latabai and Butabai. What work Latabai wasdoing , I don’t know. The incident was 2 ½ to 3 years ago. Onthat day, in the morning approximately at 6.00 o’clock, I wentfor the defecation. At that place both the accused were present.Both of them had removed the chain(pot) and earrings fromme. They took me away with a handkerchief tied around mymouth. They both dragged me away. They dragged me into therickshaw. Latabai has called upon one rickshaw driver and CriAppeal-423-2024-10- dropped me to that man’s village. They made me sit at the S. T.and said that if you don't go, you will be beaten very badly.Latabai told me that you will meet Jibhau there. I can't tell thename of the village. Jibhau had come to pick me up at the S. T.stand. And he took me to his house. There was a woman there,I got scared and went to the neighbor's house. From that placeJibhau again took me to his house.3.Jibhau put cloth in my mouth. He took off my clothesand raped me. And crowd gathered there by my voice. Myrelatives and the police were there. My uncle was also there. Icalled my uncle. My uncle asked me what happened. I told himthe truth. I filed a complaint at the police station. Now I amshown the complaint. That is it. My thumb impression is on it.As a matter of fact, it is signed by uncle Deepak Shankar Patil.The contents written in it are true. It is marked as Exhibit 77.The printed news was shown to me. It has my thumbimpression on it. The content in it is true. It is being givenExhibit No.78. I had shown the police both the places of theincident. I showed the police the place where I had gone fordefecation. The police had also conducted a panchnama of theclothes I was wearing at the time of the incident.PW4Uncle of victim“1.Victim is my niece. She was residing at my elder botherat Mhasawad. The incident is of 12.06.2019. On that day, whileI had been for my work as usual, at that time I had a call frommy mother that, victim went for defecation, but yet she was notreturned at house. Hence I returned home. When I searched CriAppeal-423-2024-11- her in the village, I got information from some people that, shewas seen with Latabia and Butabai. When I went her home forenquiry she was not at home. I was continuously searchingher in the village. After some time I got a call that, Butabai hasreturned home. Then I enquired her, where was my niecevictim?. Then she said, my sister-in-law, Latabai has takenaway her at village Tittur for marriage function. I went toTittur. I met Latabai there. I asked Latabai that, whereabouts ofmy niece. Then she replied that your niece did not come withme. I was not sure about Latabai. I brought Latabai toMhaswad Police Station. The police questioned her. She toldthe police that she had sent her to her acquaintance Manoharalias Jibhau in Rudawali, Tal Shirpur, District Dhule. After that,from Mhasawad, I came to M. I. D. C. Police Station. Fromthere, two male police, a female police, Latabai and I all wentto Shirpur. We went to the police station at Shirpur. We wentto Rudawali and went to the house of Manohar alias Jibhau.The police knocked on the door of Jibhau's house. My niececame out of that house crying. I asked as to what hadhappened. She said that she was raped forcibly. She also toldme that Latabai lied that she would put her to work. She tookoff the necklace and earrings from victim’s person and snatchedthem away. And stopped a rickshaw from Ekvira Hotel near therailway station and took victim to Vavdada village with hersister in-law Butabai. They went from Vavdada village toPachora village and from there they put victim in a Dhule bus,and they said that their acquaintance Manohar alias JibhauAmbar Singh Sonawane will meet her there and to go with himand he will give her work. She then went to Dhule from CriAppeal-423-2024-12- Pachora. There she met Jibhau @ Manohar. From there he tookher to Rudavali, Tal.Shirpur, Dit. Dhule. At night he, removedher saree and blouse and raped her forcibly. He told her not toscream. He abused her by saying matherchod and had sex withher. He told her that he would kill her if she did. After an hour,he again had sex with her against her wish. Then the next day,my niece told the police the truth at the M. I. D. C. policestation and filed a report.ANALYSYS16.PW1 victim, in her substantive evidence, attributed removal ofher ornaments to both, accused nos. 2 and 3. She also claims that hermouth was covered by tying handkerchief, but she does not speakthat her hands were kept in tied condition after both ladies droppedher at bus stand. As pointed out, she has not raised alarm. She claimsthat, she met them at the place where lady folks went to answer callof nature. Panchanama of that spot is not drawn. She deposed aboutbeing dragged by both accused nos. 2 and 3, but there are no markson her person. Then she claims that, she was forcibly taken in arickshaw, but she apparently did not seek help from the rickshawdriver. After this, she claims that she was dropped at the man’svillage. Her such deposition is non specific and unclear. She deposed CriAppeal-423-2024-13- that, at bus stand, she was threatened that if she does not go, shewould be badly beaten. She was in a public place like bus stand. Shehad ample opportunity to raise alarm or attract attention of otherpassengers, which she apparently has not done. She is unable to givename of the village where she was to reach. In chief itself, she statedthat after meeting appellant at bus stand, he took her to his houseand she got scared and went to neighbour’s house. However, she hasnot interacted with the neighbour, nor given their details. She claimsthat, appellant gagged her, disrobed her and raped her. That, crowdgathered and heard her voice. Relatives, uncle and police were thereand when her uncle asked, she told the truth and then lodged report. While under cross para 10 and 11, she admitted that she, onher own, had asked accused nos. 2 and 3 to send her to people theyknew for work, as persons at her maternal uncle’s house would sendher back to her husband’s place. She is unable to state how portionmarked “A” is appearing in her complaint Exhibit 77 regarding“yesterday on 12.06.2019 at 8.30 as decided by us, without tellinganybody, I went for defecation out of the village at Bornar road ”. Hersuch statement suggests that she, on her own accord, decided to leavethe house without informing anyone. She admitted that, in herstatement before court on 26.06.2019, she did not state about Latabai CriAppeal-423-2024-14- sending her, nor she gave names of places like Pachora, Vavadda,Dhule. She admitted about not making complaint to anyone at busstand regarding accused nos. 2 and 3 forcibly sending her to anothervillage and even admitted about not making complaint to her uncleby using anybody’s phone. She answered that, during the journey, shewas crying but no one asked her reason for the same and she, on herown, also did not inform anyone. She admitted that, she did not tellanyone at the bus stand that she has been forcibly sent. In para 12 of her cross, she admitted about several housesadjoining to the house of appellant/accused no.1 and people residingtherein. She answered that it took one hour to go with appellant tohis house and during such hour, she made no complaint to anyone.She also admitted that, after reaching the house of accused, manymen and women had gathered, but answered that, she just tried toconvince them that she was not his wife. Para 13 carries material omission, i.e. appearing in thecomplaint, about going for defecation at 6.00, both accused present,her ornaments being removed, she being dragged and put inrickshaw, Latabai reaching her at village, they making her sit in thebus after threatening to badly beat her if she does not board the bus, CriAppeal-423-2024-15- about accused taking her to his house, about a lady to be presentthere, she getting scared and going to the house of neighbour, aboutappellant putting cloth in her mouth, removing her clothes and rapingher. After complaint was confronted to her, she has answered that shecannot tell why above material is not reflected and noted therein. In para 14 of the cross, she denied suggestion that whileregistering complaint, her maternal uncle told that if she does noteport rape, their village would disgrace them as she had run away.Rest is all denial.17.Now let us advert to the evidence of maternal uncle PW4 andre-appreciate the same. His evidence is at Exhibit 101. Substance ofhis substantive evidence is that PW1 is his niece. That, on 12.06.2019,while he was at work, he learnt from his mother that his niece wentfor defecation but did not return and was therefore searched. Heclaims to have learnt about niece to be in the company of accusednos. 2 and 3. He approached both, accused nos. 2 and 3, and fromLatabai it was learnt that victim was sent by Latabai to heracquaintance i.e. appellant at Rudawali, Taluka Shirpur and so, theyall went there and after reaching the house of appellant, policeknocked the door, his niece came out crying and narrated about she CriAppeal-423-2024-16- being raped forcibly. That, Latabai lied that she would give work,took away her ornaments and she being sent to appellant by makingher board a bus and in the night, appellant forcibly raping her, andtherefore report being lodged.While under cross, he has admitted that his niece was residingseparately from her husband since one year. He also admitted thatcurrently she is married and living with her husband. He admittedabout not lodging complaint against Latabai and Butabai. He wasunable to state whether Shirpur police recorded statement of hisniece. While under cross at the hands of accused nos. 2 and 3, he hasmerely expressed his inability to give answers to all questions. 18.Therefore, on critical analysis of evidence of PW1 and PW4,and taking into account the answers given by PW1 in cross, assubmitted by learned counsel for appellant, it is noticed that PW1 isnot only a married lady, but also mother of a child. She has come incontact with accused nos. 2 and 3 and in para 10 of her cross, she hasadmitted that it was she who had asked these two ladies to send herto people they knew for work, as her relatives at uncle’s place wouldsend her back to her husband’s place. Therefore, her version in FIRand before the court that, she was lured and robbed off her CriAppeal-423-2024-17- ornaments, is apparently false. As stated above, on minutely goingthrough the answers given by her in cross, it is emerging that,whatever she deposed in substantive evidence, about going fordefecation at 6.00 a.m., both lady accused removing her ornaments,dragging her, forcibly taking her in a rickshaw, threatening her toundertake journey to accused appellant, he taking her to his place, hegagging her and then forcibly raping her, are all material omissionswhich go to the very root of prosecution. Resultantly, it is unsafe toaccept her testimony .19.Even testimony of maternal uncle, as pointed out, is merehearsay. He has admitted that PW1 left company of her husband ather own accord and has been living separately since one year and isnot currently married also. He has admitted that, in spite of knowingfrom accused nos. 2 and 3 that his niece has been sent by them, andin spite of hearing from his niece about robbing her and sending herto appellant, he has not lodged any report against these two ladies. 20.Two medical experts are examined, i.e. the one who examinedvictim and the other who examined accused. Crucial evidence is ofmedical expert PW9 who examined victim. He testified about victimbeing examined and she giving history of being raped by unknown CriAppeal-423-2024-18- person, that too, only once. But in FIR, she has reported twice beingforcibly raped. In FIR she has stated that, in the house of appellant,there were two daughters and he had lost his wife, and she also haddinner with both the daughters. However, she has not reported themalso, nor they are examined. 21.As pointed out, Investigating Officer has admitted in cross para15 that he did not obtain documents of ownership of appellant’shouse and that investigation did not reveal about accused nos. 2 and3 accompanying PW1 from Pachora to Dhule and from Dhule toRudawali. He also admitted that, accused did not have a two wheeler.Therefore, informant’s version that she traveled with him on twowheeler from Shirpur to his village Rudawali comes under shadow ofdoubt. Investigating Officer’s admission that there were no locks tothe front door and window of house of accused and rather, there weremere frames, also creates considerable doubt about victim beingdetained and raped. She could have fled, had it been forcible attempt,and could have raised alarm as she had herself stated that there werehouses in the neighbourhood. Her such conduct creates doubt aboutshe being forced upon. CriAppeal-423-2024-19- 22.Therefore, with above discussed material, in the consideredopinion of this Court, testimony of PW1 does not inspire confidenceabout accused nos. 2 and 3, forcibly and under threat, sending her toaccused appellant and he further, under threat, having forceful sexualintercourse. For above reasons, case of prosecution does not inspireconfidence and does not deserve to be accepted.23.Learned trial court has failed to consider and appreciateevidence of victim in proper perspective. Answers given in cross byvictim, and more particularly para 14 and 15 of her cross, seem tohave been overlooked and kept out of consideration while drawingconclusion. Finding this case to be fit for interference, followingorder is passed.ORDERI.The appeal is allowed.II.The conviction awarded to the appellant by Additional SessionsJudge, Jalgaon in Sessions Case No. 327 of 2019 under Section376(1) of IPC on 28.04.2023 stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSection 376(1) of IPC. CriAppeal-423-2024-20- IV.The appellant be set at liberty, if not required in any other case.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre