1 cra289.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 289 OF 2011 Devidas s/o Ragho Koli, age 30 years, occ. Nil, r/o Budhgaon, Tq.Chopda, District Jalgaon ...Appellant [Orig.accused] VERSUS The State of Maharashtra ...Respondent ..... Shri S.S.Jadhav, advocate for the appellant Shri S.G.Nandedkar, A.P.P. for the respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATED OF RESERVING JUDGMENT : 22.11.2011 DATE OF PRONOUNCING JUDGMENT : 29.11.2011 J U D G M E N T : - 1 Heard respective learned counsel for the parties. 2 This is an appeal preferred by the appellant (original accused) challenging the conviction and sentences imposed upon him by way of judgment and order, dated 28.4.2011. 2 cra289.11 3 It appears that by the said judgment and order, rendered by the learned Additional Sessions Judge, Amalner, in Sessions Case No. 30 of 2010, the appellant has been convicted for the offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer R.I. for 10 years and to pay fine of Rs.5,000/-, in default to suffer S.I. for six months; and also he is convicted for the offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,000/-, in default to suffer S.I. for three months; as well as he is convicted for the offence punishable under Section 506 of the Indian Penal Code and is sentenced to suffer R.I. for 7 years and to pay fine of Rs. 1,000/-, in default to suffer S.I. for three months; and also it is directed that all the afore said sentences to run concurrently. 4 The factual conspectus and shorn of details of the prosecution case are as follows :- The prosecutrix, namely Anusayabai Shamrao Wagh, aged about 70 years, is resident of Budhgaon, Taluka Chopda, District Jalgaon, but contends that since her son is residing at Surat, she resides there along with her son and his family and used to visit Budhgaon intermittently. She has stated that the incident occurred 3 cra289.11 on 12.5.2010 at 8.00 a.m. and she had visited Budhgaon one day prior to the incident i.e. 11.5.2010 at about 12.00 noon. It is alleged that on 12.5.2010 at about 8.00 a.m. she had been to Tapi river for bath. After taking the bath, she started returning back to home at about 10.30 a.m. However, she lost her way, which leads to the village. At that time, she saw one person who was cutting the branches of tree and she asked him about the way leading to the village. Thereupon, the said person tried to press her mouth and throat and asked her to show her ass and thereafter committed rape upon her instead of showing the way. It is also alleged that when he was doing so, she pleaded him for mercy by saying that he was like her son, but he did not listen to her. Moreover, it is further alleged that he gave blow of axe on her leg and threatened her that if she tells the incident in village, he would kill her and thereafter fled away. The prosecutrix gave the description of the said person. 5 It is also the case of the prosecution that while she was returning home, at that time, PW6 Sakhubai and Kokilabai saw her and brought her to home and thereafter took her to Government Cottage Hospital, Chopda. The police personnel PW7 API Ramesh Bawa, who was attached to Chougaon police station, Taluka Chopda, recorded her statement in the said hospital, which was treated as complaint (Exh.20). 4 cra289.11 6 It is also the case of the prosecutrix that her nephew Laxman Wagh and Police Patil of the village Pandit Himmat Koli accompanied with her to the hospital before lodging the complaint. Pursuant to the said complaint, the police personnel registered C.R. No. 46 of 2010 under Sections 307, 376, 509 and 506 of the Indian Penal Code. It is further the case of the prosecution that the prosecutrix was frightened due to the afore said incident, and therefore, she did not give the name of the accused in the complaint. Hence, police personnel recorded her supplementary statement, wherein she stated the name of the accused who had committed rape upon her. The prosecutrix identified the accused as the said person in the court. 7 It is further the case of the prosecution that PW7 API Ramesh Bawa gave requisition to the Judicial Magistrate, First Class, Chopda for recording statement of prosecutrix Anusayabai. Accordingly the Judicial Magistrate, First Class, Chopda came to the hospital and recorded the statement of the prosecutrix. Thereafter PW7 Ramesh Bawa visited the spot of the incident and prepared the spot panchanama (Exh.8) in presence of panchas, and seized the blood stained soil and plain soil and pieces of broken bangles from the spot, thereunder. He also recorded statements of witnesses. 5 cra289.11 After returning the police station, he seized the clothes of the victim, which were produced before him by Police Head Constable Tadvi under seizure panchanama (Exh.13). 8 The prosecution case further recites that thereafter PW7 Ramesh Bawa sent the police personnel for the search of the accused, and accordingly, they brought the accused to the police station. He was sent for medical examination. Thereafter he was arrested under the afore said crime, and his mother was intimated accordingly. Moreover, PW7 Ramesh Bawa seized the clothes worn by the accused under seizure panchanama (Exh.14). On 14.5.2010, the accused made voluntary statement about the concealed axe and shirt and same was recored under memorandum (Exh.16), and thereafter the said blood stained axe and blood stained shirt were seized at the instance of the accused under the discovery panchanama (Exh.16-A). 9 It is further the case of prosecution that at the request of PW7 Ramesh Bawa, the Medical Officer took the samples of nails and hair of the accused and same were forwarded to the office of the Chemical Analyser along with the covering letter Exh.30. He also recorded the statements of Muddemal Clerk and carrier. Accordingly, after completion of investigation, he filed the charge 6 cra289.11 sheet against the accused before the Judicial Magistrate, First Class, Chopda. Subsequently, chemical analysis reports, dated 6.4.2011 (Exh.25) and 11.4.2011 (Exh.31) collectively were received and those were incorporated in the charge sheet. Since the afore said case was exclusively triable by the Court of Sessions, learned Judicial Magistrate, First Class, Chopda committed the said case to the Court of Sessions, Amalner. Thereafter, the learned Additional Sessions Judge, Amalner framed the charge (Exh.2) against the accused for the offences punishable under Sections 376, 307 and 506 of the Indian Penal Code on 12.11.2010. The appellant/accused pleaded not guilty to the said charges levelled against him and claimed to be tried. 10 To substantiate the said charges levelled against the appellant/accused, the prosecution examined as many as 7 witnesses, as mentioned below :- PW1 Nandulal Haibatrao Salunke, panch to the spot panchanama (Exh.8) PW2 Anusayabai Shamrao Wagh, prosecutrix PW3 Anil Subhash Wagh,nephew of complainant and panch to panchanama of seizure of clothes of the appellant/accused and complainant (Exhs.13 & 14) 7 cra289.11 PW4 Ashok Eknath Sonwane, panch to the memorandum panchanama (Exh.16) and discovery panchanama (Exh. 16-A) PW5 Dr. Pramod Raghunath Pandit, who examined the victim and issued MLC injury certificate (Exh.20) PW6 Sakhubai Devidas Wagh, who saw the victim after the incident PW7 A.P.I. Ramesh Kashinath Bawa, investigating officer 11 The defence of the accused is of total denial and he contended that he has been implicated in the present case falsely due to political rivalry, and hence, claimed to be innocent. However, the accused neither examined himself nor examined any defence witness to substantiate his defence. 12 After scrutinizing the oral and documentary evidence adduced and produced by the parties, and after hearing the rival submissions advanced by the parties, the learned Trial Court convicted and sentenced the appellant for the offences punishable under Sections 376, 324 and 506 of the Indian Penal Code, as mentioned herein above, by judgment and order, dated 28.4.2011. 8 cra289.11 13 Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, the appellant has preferred the present appeal and prayed for quashment thereof. 14 Before adverting to the submissions advanced by the learned counsel for the parties, it is necessary to deal with the material evidence adduced/produced by the prosecution and in the said context, coming to the deposition of PW2-Anusayabai Shamrao Wagh i.e. prosecutrix/complainant, who is of 70 years old, stated that she is the resident of Budhgaon and her son was residing at Surat (Gujrat) and that she used to reside with him, but a day before the incident, she had come to Budhgaon. She stated that the incident took place on 12.5.2010 at 8.00 a.m. when she had been to Tapi river for bath and after taking bath when she was returning home at about 10.30 a.m. She stated that when she was returning, she asked the accused about the way, which leads to the village, since she had lost the way. Thereupon, the accused raped her, though she was telling him that he was like her son. He also gave blow of axe on her neck and threatened her that if she told the incident in the village, he would kill her and thereafter he fled away. She also gave the description of the apparels worn by the accused. 15 She further stated that PW6 Sakhubai and Kokilabai saw 9 cra289.11 her and brought her to home. Thereafter, she went to the Government Cottage Hospital at Chopda. The police personnel recorded her statement in the hospital as per her narration and obtained her thumb impression thereon and same was treated as complaint, which is marked Exh.10. She further stated that she has not disclosed in the complaint (Exh.10) the name of the accused, since she was frightened; whereas she stated the name of the accused who raped upon her in the supplementary statement recorded by the police personnel. At the time of identification of the accused, she was looking here and there, but ultimately proceeded towards dock and identified the accused, who was sitting therein. She also deposed that the Judicial Magistrate, First Class recorded her statement in the hospital as per her narration. The said statement (Exh.11), which was having her thumb impression thereon, was shown to her in the court. She also identified the shirt worn by the accused (Article 4) at the time of incident, as well as she identified the axe (Article 5) by which she was assaulted by the accused. She also identified the clothes worn by her at the time of incident i.e. sari (Article 6), blouse (Article 7) and undergarment (Article 8). 16 In the cross-examination, she stated that she understands Ahirani as well as Marathi. She also stated that PW6-Sakhubai and 10 cra289.11 Kokila and Kalabai were present along with her when her statement was being recorded and the said ladies were with her since beginning till end of recording the statement. She further stated that after the incident, she directly proceeded to the hospital. However, she did not disclose the name of the accused to them initially, since she was frightened. She also denied that she suffered only one injury on her neck by assault of axe. 17 That takes me to the deposition of PW6 Sakhubai Devidas Wagh, who saw the victim Anusayabai after the incident. She stated that she knows PW2 Anusayabai, who is her relative and who had visited her village Budhgaon a day prior to the incident in the month of Marathi Aadhik. She stated that when she had gone to answer the nature’s call at about 11.00 a.m., she saw victim Anusayabai near the house of Kokilabai and Anusayabai was wrapped in saree at that time. However, there was blood over the said saree and the said saree was not worn properly, and hence, Sakhubai wore said saree properly to PW2 Anusayabai and brought her in the house of Kokilabai. Accordingly, the doctor was called there. However, victim Anusayabai did tell them that one person had committed rape upon her, but did not give his name. Thereafter they forwarded the victim Anusayabai to Chopda Cottage Hospital. 11 cra289.11 18 During cross-examination, she denied that she herself and Anusayabai were knowing the accused since prior to the incident. She further stated that Anusayabai had impaired vision due to old age and she was not able to listen properly and even she was unable to walk on her own. She admitted that there is foot way, which is the only way to go to Tapi river from village Budhgaon. She further stated that police personnel recorded her statement in Chopda Rural Hospital, wherein she stated that PW2 Anusayabai was brought in the house of Kokilabai and could not clarify as to why the words, “in the house of Kokilabai” are not there in the statement recorded before police, amounting to omission in that respect. 19 She further stated in the cross-examination that Anil is her nephew and there are two political groups in the village Budhgaon, out of them one belongs to Shivsena party and another belongs to Congress party. She also stated that she belongs to Shivsena party and other people belong to Congress party. 20 That takes me to the deposition of PW1-Nandulal Salunke, panch to spot panchanama (Exh.8) and he stated that on 12.5.2010 entire village was present near bank of Tapi river and police personnel recorded spot panchanama (Exh.8) on the spot where incident took place in his presence and in presence of one 12 cra289.11 Hiraman. He also stated that at the spot of incident, they saw one saree and pieces of broken bangles, as well as blood lying on the ground. Moreover, the empty packets of Vimal Ghutka were also there. He further stated that at one side there was pile of wooden logs and police personnel prepared the panchanama of scene of offence and handed over the saree to the complainant’s nephew Laxman Bhagwant Wagh and also seized soil mixed with blood. The police personnel prepared the spot panchanama and panchas including Nandulal Salunke signed thereon and obtained signature of Hiraman thereon. The panchanama is at Exh.8. The said panch witness identified the empty packets of Vimal Ghutka and the pieces of broken bangles, which were marked Article 1 collectively. Moreover, the police personnel seized the blood mixed soil and plain soil from the spot and kept the same in two packets and obtained signatures of panchas thereon, which are marked Article 3 collectively. 21 In the cross-examination, he stated that if noise is created near the river, the people nearby the river can listen the same. He also admitted that Hiraman Shirsath is in his acquaintance and on the date of incident, PW1 Nandulal and said Hiraman Shirsath had been at the bank of the river along with many other persons. He further stated that the distance between Budhgaon and the town and 13 cra289.11 the river is ½ kilometer. He further stated that Hiraman was elected unopposed in the past from one of the wards of Budhgaon in Grampanchayat elections and the accused is resident of the said ward. He also stated that he knows the mother of the accused, but does not know whether Hiraman is residing over a plot of land. As regards the pile of woodens, he stated that it was not kept neatly and it was scattered. He also stated that police did not search the said wooden logs by removing it. Suggestion was put to him that police personnel prepared the panchanama (Exh.8) in his presence and seized Articles 1, 2 and 3 in his presence from the spot of incident, but same was denied by him. 22 Coming to the evidence of PW4 Ashok Sonwane i.e. panch to the memorandum panchanama Exh. 16 and discovery panchanama Exh. 16-A, he stated that on 14.5.2010 he was called by Chopda Rural police in the police station and panch witness Shivaji Salunke was also present there. One Devidas Ragho Koli i.e. accused herein was present in the police station at that time. The said accused informed the police personnel in their presence that he committed rape upon victim Anusayabai and thereafter assaulted her by axe, and made voluntary statement that he was ready and willing to show the said axe. Accordingly, memorandum panchanama (Exh. 16) was prepared. Thereafter police personnel and panchas 14 cra289.11 and the accused proceeded towards the village and thereafter the accused led them to the bank of the river and further took them near the broken trunks of the trees and pulled out the axe from scattered pile of wooden logs. He also pulled one red coloured shirt from the said pile of said wooden logs. Accordingly, discovery panchanama was prepared and the said shirt and axe were seized thereunder and signatures of panchas were obtained on the panchanama and the packets, in which said shirt and axe were kept. He identified the said axe (Article 5) and shirt (Article 4) in the court. In the cross- examination, suggestion was given to him that accused has not made any voluntary statement, but same was denied by him. He also stated that there was a foot way leading to the spot. He further denied the suggestion that the pile of wooden logs and the trunks of trees were lying at such a spot which can be seen by anybody. It was further suggested to him that the axe and the shirt were not discovered under the memorandum panchanama and discovery panchanama and that he had not gone at the spot of the incident along with the accused, but same was denied by him. 23 That takes me to the testimony of PW5-Dr.Pramod Pandit, who stated that on 12.5.2010 he was attached to Cottage Hospital, Chopda as Medical Officer and he examined victim PW2 Anusayabai, aged 70 years. On her examination, he found CLW 15 cra289.11 admeasuring 2 x 1 x 0.5 cm. below her right ear, as well as found CLW admeasuring 8 x 3 x 3 cm. on her right side of neck, he also found CLW admeasuring 5 x 2 x 2 cm. on right scapula and he further found CLW admeasuring 1 x 0.5 x 2 cm. below chin. He further stated that all the said CLWs were simple in nature and caused due to hard and sharp object, within the period of 24 hours of his examination. Accordingly, he issued MLC injury certificate on 29.5.2010, which is produced at Exh.20. He also stated that the lady was admitted in the hospital for about 14 days. He was confronted with the axe (Article 5) and he stated that all the four injuries can be caused by the said axe. 24 The said deposition further discloses that on 23.6.2010 the Cottage Hospital, Chopda received letter from the Police Inspector, Chopda Rural police station, raising a query therein, “whether rape has been committed upon the said lady” and the office copy of the said letter, dated 2.7.2010 is at (Exh.21).The provisional reply was sent to the said letter to the Police Inspector, Chopda Rural Police station as per the requisition, which is produced at Exh. 22, and vaginal swab, the nail clips and blood samples of the victim were sent to the Chemical Analyser for examination purpose. He further stated the reports, dated 6.4.2011 (Exh.25) and 11.4.2011 (Exh.31), in respect of blood group of the victim and blood stains on 16 cra289.11 the axe, respectively, were received from the Chemical Analyser on 16.12.2010 and same are produced on record. 25 During cross-examination, he stated that the victim while narrating the history to him, simply told him that she has suffered the injuries and she has pointed out the injuries. Pertinently, no name or description of the accused was disclosed by her. He further stated that the victim also stated to him that rape was committed upon her. However, the doctor stated that the injuries mentioned in Exh.20 cannot be caused by fall. Hence, suggestion was given to him that injury nos. 1 to 4 can be caused due to fall over sharp stones, but same was also denied by him. However, he admitted that there is no mention as to the history in the M.L.C. Injury certificate. He also stated that he has not mentioned in the M.L.C. Injury certificate that while giving the history the lady stated before him that rape was committed on her. He also denied the suggestion that the lady did not tell him that rape was committed on her, and therefore, no such entry was made in the M.L.C. Register as well as in the certificate (Exh.20), but same was denied by him. It was denied by him that the victim was not able to listen, nor she was able to see due to her old age. He further denied that the victim was not able to walk due to her old age. He also denied that he did not examine the lady and further denied that he issued false M.L.C. Injury certificate (Exh.20). 17 cra289.11 26 The prosecution also examined PW3 Anil Subhash Wagh, who is the nephew of the complainant and in whose presence seizure of clothes of the complainant and the accused Articles 6 to 8 collectively was effected on 12.5.2010 under Panamanians Exhs. 13 and 14, respectively. Suggestion was given to the said witness that the panchas put their signatures on the panchanamas Exhs. 13 and 14 which were already prepared, but same was denied by him. 27 On the background of the afore said evidence, learned counsel for the appellant submitted that the testimonies of PW2- Anusayabai, PW2-Sakhubai and PW5-Dr. Pramod Pandit mainly relate to the charges levelled against the appellant and canvassed that there is material omission in the testimony of PW2-Anusayabai and the first information report lodged by her in respect of the very name of the accused. It is submitted that the first information report was lodged by prosecutrix Anusayabai on 12.5.2010 at about 2.15 p.m., but the said first information report is totally silent about the name of the accused and the contents of the first information report refer to one person, who allegedly committed rape upon her and assaulted her and thereafter fled away. The first information report also states that she does not know the name of the said person, and hence, she gave description of the clothes worn by him in the said 18 cra289.11 complaint. 28 Moreover, it is submitted that supplementary statement of the accused was recorded on the same day i.e. on 12.5.2010 and although no time has been disclosed therein, the said supplementary statement of PW2 Anusayabai discloses the name of the culprit i.e. Devidas Ragho Koli the accused herein, who allegedly committed rape upon her and assaulted her by axe. It is argued that although the supplementary statement of the prosecutrix Anusayabai was recorded on the very day i.e. 12.5.2010 after recording the complaint, no source has been disclosed, who gave the name of the accused to the said prosecutrix, and therefore, question arises, how the name of the accused was reflected in the supplementary statement. It is further argued that explanation was tried to be given in the supplementary statement that she had narrated the description and age of the accused at the time of lodging the complaint, but since she was frightened due to the afore said incident and since the accused threatened her, she did not give his name while lodging the first information report and subsequently when her nephew and relatives arrived, she got the courage and gave the name of the accused. It is submitted that apart from the explanation given in the supplementary statement, the fact remains that there is vital omission in respect of the name of the