High Court
Legal Reasoning
-1- Appeal.383.2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 383 OF 2003Vinod s/o Tukaram Rathod,Age : 23 years, Occu. : Agriculture, R/o. Municipal Colony, Parbhani. … AppellantVersusThe State of Maharashtra… Respondent…Mr. Satej S. Jadhav, Advocate for AppellantMrs. Uma Bhosale, APP for Respondent - State...CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 11th JUNE, 2024PRONOUNCED ON : 14th JUNE, 2024JUDGMENT : 1.Appellant, who stood convicted for offence punishableunder sections 341, 354, 366 and 506(2) of Indian Penal Code(IPC) is hereby assailing the judgment and order of convictionpassed by learned Ad-hoc Additional Sessions Judge, Parbhanidated 22.05.2003 in S. T. No.192 of 2001.FACTUAL BACKGROUND OF TRIAL2.New Mondha police station, Parbhani charge-sheetedpresent appellant, his brother and mother for commission ofoffence punishable under sections 366A, 366, 341, 354, 504, 506 -2- Appeal.383.2003read with section 34 of IPC on the accusation that, informant a 17years old girl studying in 12th standard was regularly followed andchased by appellant. Whenever she went to attend college andtuition, intercepting her way, he expressed his love towards herand also expressed his desire to marrying her. She did not respondto the proposal and refused to reciprocate. Appellant thereforestarted issuing threats to burn down shop of her father, kill herbrothers, if she refuses to marry him. Once on knife point, heforcibly made her accompany him to his house. He cut his ownthumb and applied the oozing blood on her forehead and declaredthat, they both are now married and threatened her direconsequences if she informs it to anyone. Out of fear, she did notreport the incidence to anyone. On 06.03.2000 i.e. when informantvictim finished her exams and was waiting for her father to pick upher, at that time, accused approached her and caught her hands.This was seen by her brother. Therefore, finally after reachinghome, she disclosed the conduct and behaviour of accused to herfamily members and finally approached police and lodged report(Exh.23), on the strength of which, police registered Crime bearingNo.42 of 2000 for commission of offence under sections 366A, 366,341, 354, 504, 506 read with section 34 of IPC. On conclusion of investigation, accused was charge-
Legal Reasoning
-3- Appeal.383.2003sheeted and tried before learned Ad-hoc Additional Sessions Judge,Parbhani. At trial prosecution adduced evidence of in all sixwitnesses and also relied on documentary evidence. Defence denied to lead any evidence and plea taken wasof false implication by the victim under pressure of parents. On appreciation and analysis of evidence, learned trialCourt acquitted brother and mother of appellant from all charges,but appellant alone came to be convicted that too only for offencepunishable under sections 341, 354, 366 and 506(2) of IPC. Feeling aggrieved by the above judgment and order ofconviction, instant appeal has been preferred on various groundsspelt out in the appeal memo.SUBMISSIONSOn behalf of appellant :-3.Learned counsel for the appellant pointed out thatthere is apparently false implication. According to him, none of theoffences for which appellant was charge-sheeted and tried, wereproved by prosecution beyond reasonable doubt. According to him,there is not only improper appreciation of evidence, but alsosettled law has not been taken into account by the learned trialJudge. -4- Appeal.383.20034.Taking this court through the evidence, he pointed outthat, informant was 17 years of age, whereas accused was 21 yearsof age at the time of incident. That, case of appellant in the trialcourt was that he had love affair with victim. That, only becauseonce brother of girl saw appellant holding her hand, underpressure of being scolded by parents, she narrated false story tosave herself and report has been lodged at the instance of parents.5.He further submitted that, there is no independent andreliable evidence regarding victim being forcibly taken on knifepoint to the house by accused on the pretext or with the purpose ofperforming marriage. He pointed out that, the material witnesslike brother of the girl has also not been examined by theprosecution for the best reasons known to it and there is admissionto that extent by Investigating Officer. 6.Learned counsel pointed out that, required ingredientsfor attracting none of the offences for which accused is held guiltyincluding section 366 of IPC are available in the prosecutionevidence. That, prosecution could not discharge its burden ofproving the case beyond reasonable doubt. For all above reasons,he submits that, findings and conclusion reached at by learned trialJudge are in absence of cogent and reliable evidence and hence, he -5- Appeal.383.2003seeks indulgence at the hands of this court for setting aside theimpugned judgment by allowing the appeal.On behalf of Respondent :- 7.Per contra, learned APP strongly supported thejudgment and findings of learned trial Court. She took this courtthrough the testimony of victim informant and would submit that agirl is barely 17 years of age. That, she staunchly reiterated aboutrepeated incidences of accused following her, chasing her,intercepting her, expressing love even when she was disinterestedand he even forced her to perform marriage. That, her entiretestimony has remained undisputed and unshaken. Her soletestimony being inspiring confidence is rightly relied by trial Judgeand according to learned APP, therefore there is no reason to seekfurther corroboration of evidence to her testimony. 8.Learned APP submitted that, though there was chargeof section 366A of IPC and even when brother and mother ofappellant were tried, learned trial court has acquitted themincluding present appellant from the said charge and as such it isher submission that, this itself is indicative of the fact that, there isminute and scrupulous scrutiny of the evidence. Consequently, it isher submission that, no fault can be found in the manner of -6- Appeal.383.2003appreciation of evidence at the hands of trial court and accordingto her, law being correctly applied and there is no merit andsubstance in the appeal and resultantly she prays to dismiss thesame. SUM AND SUBSTANCE OF THE EVIDENCE ON RECORD9.PW1 Sunita informant, who is examined at Exh.22,deposed that, at the time of incident, she was 17 years of age andstudying in 12th standard. According to her, in the year 1999,appellant used to chase her and express his love towards her. Healso expressed his intention to marry her. She deposed that sheused to keep mum and proceed to the college. According to her, oneday, he intercepted her way, took out knife and threatened that, ifshe would not marry, he will burn the shop of her father and willkill her brothers. One month prior to the lodging of complaint,brother of appellant approached her and informed that appellantinflicted self injury. Thereafter, again appellant approached her,blocked her way, asked her to accompany to his house and whenshe refused, he showed knife threatening that, if she did not obey,he would assault her and kill her. Out of fear, she accompanied himand in the house of appellant, he cut his thumb and applied theblood on her forehead and even pulled her hand, saying that, nowthey are married. He also forcibly made her write letter that shesupporting her marriage. Out of fear, she did not inform this -7- Appeal.383.2003incident to anyone. On 06.03.2000, on the last paper of herexamination, while she was waiting for her father, accused came,caught hold her hand and dragged her with ill intention asking herto accompany him forthwith. This incident was seen by herbrother. On coming home, she narrated the detail about theprevious incidences, and thereafter, they approached police. PW2 Ramrao father of victim, who testified at Exh.25,deposed that, on 06.03.2000, his daughter disclosed theoccurrence while weeping that accused tease her, showed her knifesaying that she should marry him as he loves her. He alsothreatened that if she fails, he will kill her brothers and destroyshop of her father. He also deposed about brother of appellantapproaching her to inform about self inflicted injury by appellantand that appellant forcibly by brandishing knife took her to hishouse, cut his own finger, applied blood to her forehead anddeclared that he married her, made her forcibly write letter. Hedeposed that, on hearing this he accompanied her to the policestation where his daughter lodged report. PW3 Ratnamala neighbour deposed about mother ofaccused visiting house of PW2 Ramrao and threatening that ifanything happens to her son she will destroy the house PW2Ramrao. -8- Appeal.383.2003 PW4 Yakubkhan, panch to panchanama (Exh.28) i.e.seizure of letters. PW5 API Sk. Abdul Rauf, PSO registered a crime andcarried out investigation. PW6 Ramchandra is the Headmaster, who placed onrecord school register extract (Exh.44) as well as T.C. (Exh.45). ANALYSIS10.Learned trial Judge has held appellant guilty foroffence punishable under sections 341, 354, 366 and 506(2) ofIPC. 11.In appeal, fundamental defence put-forth by appellantis that, there was love affair between appellant and victim. Specificdefence is taken that, only once because brother of victim spottedappellant holding hand of victim, out of fear, victim passed falseinformation to father and at parents instance and under theirpressure false report has been lodged. It is also pointed out that,prosecution in the trial court has failed to even prove that thevictim was below 18 years of age.12.In the light of above stand, evidence of victim is put tominute scrutiny. Sum and substance of her examination-in-chief is -9- Appeal.383.2003already reproduced in paragraph no.9. It would be thereforedesirable to even discuss the cross examination of victim, whichhas emerged while she was cross examined by defence counsel. Only relevant cross is dealt. She answered that, shedoes not know the area and house where accused lived. She deniedthat she and her parents are on visiting terms to the house ofaccused or that since previously they knowing name of theaccused. She answered that, in the month of September in firstweek for the first time accused approached her. She answered that,she might have left the house of accused after one and half hour.She admitted that, she did not disclose the said facts to her parentsdue to threats given by accused. She is also questioned regarding occurrence dated06.03.2000, which prompted her to inform her parents andapproach police station. She answered that, after examination shetalked with her other friends. She admitted that there is road infront of the college and there is traffic. She answered that, at thetime of incident dated 06.03.2000, while in front of Nutan Collageshe had raised shouts. She denied that she lodged report because ofpressure of her father. She is questioned about tuition, subjects ofthe tuition, strength of the students attending tuition, number ofbatches and distance of place of tuition. In paragraph no.13 of her -10- Appeal.383.2003cross examination, she denied knowing whether house of accusedis on the west of her house. She admitted that, at the time ofincident only she went to the house of accused. She is unable tostate distance of the house of accused from the road from whereshe was taken. She answered that before accused showed herknife, there was no talks between them. She answered that, sheeven did not raise shouts, when accused took her to his house byshowing knife. She also admitted that, she did not attempt to runaway. In paragraph no.14, she admitted that, she wrote Exh.24and 31, but denied authorship of Exh.30. According to her, letterswere forcibly executed by her on knife being shown to her. When itis brought to her notice that in report at Exh.23 there is nomaterial regarding accused giving threats to kill in case she notobey to accompany him to his house, she is unable to assign anyreason for the same. She is also unable to assign any reason as towhy in the report (Exh.23) there is no mention that accuseddirected her to give some writing in support of the marriage and onrefusal accused directed her brother to visit her house with knifeand kill her brothers. She answered that, she does not rememberwhether she told her father the fact of accused forcibly making herwrite letter. All remaining suggestions are flatly denied. 13.In the light of above objection and defence raised by -11- Appeal.383.2003appellant that except uncorroborated testimony of victim, there isno convincing evidence in support of the accusations, the abovesubstance evidence of victim is carefully analyzed. 14.On doing so, in the considered opinion of this court,here, it is noticed that, prosecution has not at the outset cogentlyand firmly established that victim was below 18 years of age.Testimony of PW6 Ramchandra, Headmaster is of no avail becausehe has carried record of the school where victim studied only from5th standard onward. He has placed T.C. of school on record. Therecord of the school where victim first took admission in 1ststandard was of relevance. The same is not before the court nor isthe birth certificate and therefore there is no conclusive evidenceor proof that victim was below 18 years of age. Even learned trialJudge has recorded similar findings and consequently prosecutiondid not prove age of victim. 15.Admittedly, except testimony of victim there is noother supportive or corroborative evidence. As stated above,specific case of appellant is that, there was love affair. Victim wrotelove letters regarding which there is admission by her in crossexamination. It is also case of appellant that, report (Exh.23) is afalse version and under pressure of parents. -12- Appeal.383.2003 Consequently, in the light of above submission, iftestimony of victim is scrutinized in above background, there isforce in the submission of learned counsel for appellant for thereason that, it is noticed that since September 1999 victim claimsthat she was chased, intercepted and teased. However, she has notreported to her parents, school authorities or tuition authorities.She has not reported serious incidence of accused allegedbrandishing knife and threatening her with dire consequences likeburning shop of her father and killing her brothers. Exactly whensuch serious incidence took place at the first place is not specifiedby her. She merely speaks that it happened one month prior to thelodging of the complaint. She has accompanied accused to hishouse. In cross paragraph no.13, she has denied that when accusedtook her to his house he was having motorcycle with him. Thisshows that she was not taken on his motorcycle. Rather shefurther answered that she was on her own bicycle. From suchmaterial, it is difficult to accept her version that she was forciblytaken by him, when he had no means and modes to go to his house.Consequently, her such answer suggest that accused was not inposition to take her forcibly, as is claimed by her. She could havereturned home on her own bicycle, when according to her, he didnot come with his bike. -13- Appeal.383.2003 She also admitted in her cross examination that, shedid not raise alarm. She admitted that, there is traffic on the road.She has admitted that, she spent more than one hour in the houseof accused. No girl would spend more than 1 hour under fear, moreparticularly, when it is not her version that, she was kept confinedin the house with close doors.16.It is worth noting that she resides in the same localitywhere even accused allegedly resided. This is evident from thetestimony of PW3 Ratnamala neighbour of victim and PW2Ramrao, who in her cross examination stated that, house ofaccused is in the very neighbourhood of house of such witness. Thiswitness has given her residence as Ramnagar, Parbhani. Though atthe time of substance evidence in the witness box, residence ofvictim is noted as mere Parbhani, in the report (Exh.23) lodged byher, her residence is also shown as Ramnagar, Parbhani. Suchmaterial clearly shows that, victim and accused are residents ofsame colony. Specific question to that extent were put to victim incross examination, but she has denied knowing appellant’s houseor locality, even when she claims that she had been to his housewhen he allegedly forced her to accompanying her. Therefore, sheis apparently lying that she did not knew the house of accused.When accused and victim are residents of same locality, it is -14- Appeal.383.2003difficult to accept her version that, out of fear, she did not reporther parents. It is surprising that, so called serious episode ofbrandishing knife and threatening to kill is not reported by her andrather regarding incident of her hand being held by accused seenby her brother, she has mustered courage to report the previousepisodes directly in March 2000. For such reasons, thesubmissions so advanced in appeal that victim was lying underpressure of her parents cannot be lightly brushed aside. There issubstance and force in the submission that, her version is not freefrom doubt.17.It is also emerging from her cross that, she hasadmitted to have written letters (Exh.24 and 31). No doubt, sheclaims that, the same were under threat and on knife point,however, this aspect was not promptly reported by her either toher father or even to police at the very first instance when on07.03.2000 she lodged report at Exh.23. Her examination-in-chiefshows that, only when Investigating Officer asked her whether shewants to add anything more, she has by way of supplementarystatement narrated about letters. With such material coming fromher testimony, there is substance in the argument that there wasprevious acquaintance between victim and accused. Exh.30 whichis also said to be seized by Investigating Officer and which is -15- Appeal.383.2003purported to be written in blood, does not carry the name ofaccused rather name appearing is “Ravi”, whereas accused isVinod. Consequently, with such material coming from theprosecution side, story of prosecution cannot be said to be freefrom doubt.18.Though, there are accusations of commission of offenceunder sections 341 and 354 of IPC, in the light of evidence ofvictim herself suggesting close acquaintance between accused andvictim and investigating machinery failing to draw spot of suchplaces and investigate it in detail, the charge cannot be said to bebrought home. Above all, there is no prompt reporting. Coupledwith this above discussed aspect of material suggesting closeacquaintance between accused and appellant and there being weakevidence in support of such charge, the same fails.19.As regards to the offence of 366 of IPC is concerned,law is fairly settled that, said provision requires prosecution notonly to lead evidence to prove kidnapping, but it is incumbent uponprosecution to lead cogent evidence about specific intention of theaccused. Prosecution is expected to prove that kidnapping orabduction was with the sole purpose of compelling woman toperform marriage or she is forced to have illicit intercourse. Victim -16- Appeal.383.2003does not state that he took her to his house with sole purpose ofmarrying her. Law to this extent is loud and clear in the ruling ofHon’ble Apex in the case of Kavita Chandrakant Lakhani v. Stateof Maharashtra reported in 2018 6 SCC 664. Here, in the case in hand prosecution at the outsetcould not cogently and firmly established that victim is below 18years of age. Though victim in her evidence denied love relationswith accused, she has admitted writing love letter (Exh.24). Hertestimony that the same was under threats is not convincing. Shehaving lied about not knowing accused or his residence, which isappearing contrary to the prosecution evidence, it is unsafe to givefull credence to her testimony. She has admitted that, she did notattempt to run away and rather her answer that she stayed in thehouse of accused for more than one hour, suggest somethingotherwise. Therefore, her testimony that she was by force,deception and threat taken to the house of appellant to performmarriage cannot be straightaway accepted. Material discussedabove cast doubt about her belated reporting. There is nosupportive or corroborative evidence and therefore it is unsafe tolean on her sole testimony to record guilt. Her brother is also notexamined for best reasons known to prosecution. He was materialwitness. -17- Appeal.383.200320.Perused the judgment under challenge. The aboveaspects are not carefully appreciated by learned trial Judge. Hersole uncorroborated testimony is accepted to convict the accused.Legal requirements have not been kept aside before returning theguilt. Therefore, it being case of benefit of doubt, appeal deserves tobe allowed by setting aside the judgment. 21.Consequently, in the considered opinion of this court,on re-appreciation and re-analysis, when evidence of prosecution isfalling short to attract the charges, benefit of doubt is required tobe extended by allowing the appeal. Hence following order :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to appellant - Vinod s/oTukaram Rathod in S. T. No.192 of 2001 on 22.05.2003for offence punishable under sections 341, 354, 366 and506(2) of Indian Penal Code (IPC), stands quashed andset aside. III)The appellant stands acquitted of the punishable undersections 341, 354, 366 and 506(2) of Indian Penal Code(IPC).IV)Bail bonds furnished by the appellant stands cancelled. -18- Appeal.383.2003V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale