1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL APPLICATION NO.: 939 OF 2010 *** *** 1. We have heard learned A.P.P. Mr. Godbharle for the Applicant/ State and Advocate Mr. N. S. Kadam for the Respondent. Indisputedly Respondent/ accused was charged and tried for the offence under section 376 of Indian Penal Code in Sessions Case No.34 of 2007. The learned Judge, after considering the material brought on record, acquitted the Respondent/ original accused, by the judgment and order of acquittal dated 14th November, 2009. 2. The prosecution case, in brief, is that the prosecutrix was 22 years old at the time of lodging of the report. Her parents are resident of village Chikhali, Taluka Kandhar, district Nanded. The prosecutrix was married to Ramji Babarao Jadhav, resident of village Alegaon, five years before the lodgment of 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the report. She resumed cohabitation. Her husband was plying autorickshaw at Nanded. At the relevant time, the prosecutrix and her husband were residing at CIDCO, Nanded. The accused visited the house of husband of the prosecutrix along with him. Thus, the first visit of the accused, to the house of the prosecutrix, was with her husband. Thereafter, 2-3 times accused visited the house of the prosecutrix. The husband of the prosecutrix had suspicion about the fidelity of the prosecutrix. The prosecutrix was dislodged from matrimony. She was compelled to go back to her parents' house at village Chikhali and was staying with them. The accused told the prosecutrix that since she has been driven out from matrimonial house by her husband, he would marry her. The prosecutrix claim that accused was responsible for destruction of her matrimony. That is how, according to the prosecutrix, 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. accused developed illicit relation with her and had sexual intercourse. She was promised by the accused to marry. That was the reason for continuation of sexual intercourse amongst the prosecutrix and accused. The accused used to visit and have sexual intercourse with prosecutrix frequently. He also made available medicine for avoidance of pregnancy. The prosecutrix was virtually divorced by her husband. She asked the accused and reminded him about his promise to marry her, in presence of neighbours. The accused did not yield neither kept his promise. Contrary, she perceived that accused was engaged with one Jyoti D/o Jeevan Kadam, resident of village Chikhali. Engagement was scheduled on 14th of May, 2007. On this count, she questioned the accused. The accused refused to marry. The accused displaying arrogance waltzed away. She, therefore, lodged report with the police 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. station, Osman Nagar on 2nd May, 2007. 3. We have seen the finding of the learned Judge and more specifically the part of the judgment in which evidence of prosecutrix is being discussed. State is before us by filing an application seeking leave to appeal under section 378 (1) of the Criminal Procedure Code. 4. With the assistance of counsel for the parties, we have seen the material brought on record. It so happened that prosecutrix lodged a report with the police station concerned. In fact, it was statement of the prosecutrix recorded by D.W.1 Venkat. We have seen the evidence of D.W.1 Venkat. In the opening paragraph of his evidence, he has stated that on 2nd May, 2007 he was on duty as Police Station Officer, Osman Nagar. His duty hours were 08.00 a.m. to 08.00 p.m. On 2nd May, 2007, at 07.00 p.m., he claims that, he has recorded statement of prosecutrix. He 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. has further testified that on the basis of the statement of prosecutrix, he registered crime under Section 376 of I.P.C. against accused Madhukar (Respondent, in this application). He also testified that based on the statement of prosecutrix, crime No.40 of 2007 under section 376 of I.P.C. was registered by him. Such endorsement he has made on the statement of prosecutrix. We have seen the statement of the prosecutrix, which is in the papers of the case. We have seen endorsement signed by D.W.1 Venkat. His designation is mentioned as Police Station Officer, Osman Nagar. From this endorsement it further appears that investigation was handed over to Police Inspector Bansode. We have minutely seen this statement of the prosecutrix. It bears thumb impression of prosecutrix. We have also seen the oral evidence of P.W.1 (Prosecutrix) Exhibit-9. The prosecution, in the trial Court, got 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. exhibited statement of prosecutirix at Exhibit-10 in her evidence. Thus, statement of the prosecutrix, which was recorded by D.W.1 Venkat was under section 162 Cr.P.C. The moment it was signed by the prosecutrix, it has become first information report within the parameters of section 154 Cr.P.C. This first information report, lodged by the prosecutrix, has been exhibited by the trial Court, justifiably in para 3 of the evidence of P.W.1 (Prosecutrix) Exhibit-9. Thus, F.I.R. Exhibit-10 is also a statement of prosecutrix under section 162 of Cr.P.C. 5. With the asistance of the counsel for the parties, we have seen the finding of the learned trial Judge. The trial Court discarded the oral evidence of prosecutrix principally on the ground that her evidence suffers from omissions. Omissions, contradictions, exaggerations, embellishment are humane in a statement recorded by police 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. officer during the course of investigation of any crime. Such omissions, contradictions, embellishments cannot be read as a literature in Court of law. The Court, at the first instance, who records the evidence, is under legal obligation to consider as to whether the omission, cotradiction, embellishment is duly proved in accordance with section 162 of Cr.P.C. and with the assistance of section 145 of the Indian Evidence Act. The task of the learned Judge does not end there. The moment learned trial Judge, who records the evidence, arrives at conclusion that such omission, contradiction or embellishment is established, in accordance with the provisions of law, he has to mark such portion from the statement either with red/ blue/ black ink or pencil and has to give exhibit to such portion. While carrying out such procedure, it is always open to the prosecution and defence to point out to the 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Court concerned that omission, contradiction, or embellishment is not duly proved. In substance, exhibition of such omission/ contradiction/ embellishment can be objected to. Such objection, needless to say, requires to be considered by the learned Judge by passing an order. In the case on hand, with the assistance of learned counsel for the parties, we have seen the oral evidence of P.W.1 (prosecutrix) evidence of D.W.1 Venkat. We have also minutely seen the statement of prosecutrix recorded by D.W.1 Venkat on 2nd May, 2007 which is also exhibited at Exhibit-10 being F.I.R. There is no such marking or exhibition by trial Court in accordance with the provisions of law to brand particular portion of this statement either as omission, contradiction or embellishment. In the absence of such proof or exhibition of the alleged omission, it was not proper on the part of the trial 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Court to say that evidence of the prosecutrix suffers from omission or contradiction. In a case under section 376 I.P.C. evidence of the prosecutrix is of prime importance. Many a times fate of the matter turns on the legal evidence of the prosecutrix and its appreciation. 6. On assessment of the entire material on record, prima facie, we are satisfied that case for grant of leave is established. 5. In this view of the matter, Criminal Application is allowed in terms of prayer clause (D). It is made clear that leave to file appeal is granted. 7. Action under section 390 Cr.P.C. to be followed. Respondent shall be released on furnishing bond in the sum of Rs.15,000/- with one surety in the like amount. Learned Principal District Judge, Nanded shall secure presence of the Respondent on quarterly basis. First quarter shall commence from 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. July, 2010. 8. We make it clear that these are the observations at the stage of admission of the criminal application filed by the State for leave to appeal. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:09/07/2010. ans/939