Allowed

Devidas Ragho Koli v. the State of Mahrashtra

Bombay HC29 Nov 2011APEAL/289/2011

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant of rape and assault. The Court found the prosecution evidence too weak, highlighting a material omission of the accused's name in the initial FIR, discrepancies between medical reports and witness testimony, and doubts regarding the recovery of the axe from an open area without proper custody seals.

What did the court decide?

Conviction and sentence quashed; accused acquitted, released from custody, and fine refunded.

Devidas Ragho Koli Vs the State of Mahrashtra — Criminal Trial and Appeal | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL APPEAL NO. 289 OF 2011

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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

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Shri S.S.Jadhav, advocate for the appellant

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Shri S.G.Nandedkar, A.P.P. for the respondent

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CORAM : SHRIHARI P. DAVARE, J.

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DATED OF RESERVING JUDGMENT : 22.11.2011 DATE OF PRONOUNCING JUDGMENT : 29.11.2011

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J U D G M E N T : -

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1 Heard respective learned counsel for the parties.

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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.

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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.

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4 The factual conspectus and shorn of details of the prosecution case are as follows :-

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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

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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.

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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).

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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.

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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.

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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).

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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).

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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

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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.

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10 To substantiate the said charges levelled against the appellant/accused, the prosecution examined as many as 7 witnesses, as mentioned below :-

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PW1 Nandulal Haibatrao Salunke, panch to the spot panchanama (Exh.8)

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PW2 Anusayabai Shamrao Wagh, prosecutrix

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PW3 Anil Subhash Wagh,nephew of complainant and panch to panchanama of seizure of clothes of the appellant/accused and complainant (Exhs.13 & 14)

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PW4 Ashok Eknath Sonwane, panch to the memorandum panchanama (Exh.16) and discovery panchanama (Exh. 16-A)

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PW5 Dr. Pramod Raghunath Pandit, who examined the victim and issued MLC injury certificate (Exh.20)

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PW6 Sakhubai Devidas Wagh, who saw the victim after the incident

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PW7 A.P.I. Ramesh Kashinath Bawa, investigating officer

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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.

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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.

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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.

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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.

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15 She further stated that PW6 Sakhubai and Kokilabai saw

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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).

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16 In the cross-examination, she stated that she understands Ahirani as well as Marathi. She also stated that PW6-Sakhubai and

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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

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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 crossexamination, 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.

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23 That takes me to the testimony of PW5-Dr.Pramod Pandit,

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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

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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.

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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

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the axe, respectively, were received from the Chemical Analyser on 16.12.2010 and same are produced on record.

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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).

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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.

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27 On the background of the afore said evidence, learned counsel for the appellant submitted that the testimonies of PW2Anusayabai, 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

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complaint.

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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 accused in the first

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information report amounting to improvement in her testimony.

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29 It is further argued that the said complaint further discloses that the assailant tried to press the mouth and neck of the victim when she made inquiry with him regarding the way leading to the village and also asked her to show her ass, but the testimony of PW2 Anusayabai is silent about the same, which simply says that on inquiry by prosecutrix to the accused about the way leading to the village, he raped on her, though she was telling him that he was like her son and thereafter inflicted blow of axe on her neck, and accordingly, there are no details of incident given in her testimony and it is submitted that there is variance in the complaint lodged by the complainant and in her testimony as regards occurrence of the incident of assault and rape upon the victim.

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30 The learned counsel for the appellant also canvassed that the testimony of PW2 Anusayabai speaks about the single blow only i.e. accused allegedly gave a blow of axe on her neck; whereas the MLC injury certificate (Exh.20) discloses four injuries sustained by her, which are of simple nature i.e. (1) CLW below right ear; (2) CLW on right side of neck; and (3) CLW on right scapula; and (4) CLW below chin. It is also canvassed that PW5 Dr.Pramod Pandit also stated in his deposition that when he examined prosecutrix

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Anusayabai Wagh, aged 70 years, on her external examination, he found four CLWs as mentioned herein above of simple nature, which were caused due to hard and sharp object and the said injury must have been caused within 24 hours, and accordingly, he gave MLC injury certificate Exh. 20. He also stated that the said four injuries can be caused by the said axe.

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31 Moreover, the doctor stated in the cross-examination that while telling the history to him, the prosecutrix told him that she suffered the injuries and she pointed out the injuries, but name or description of the accused was not given in the said history, and hence, it is argued that the history given to the doctor by PW2 Anusayabai is also silent in respect of the name of the accused and alleged rape committed by him upon her and even there is no mention of history in the said MLC injury certificate. Accordingly, it is canvassed that the testimony of PW2 Anusayabai on one part and MLC injury certificate (Exh.20) on the other part give two different versions, since PW2-Anusayabai has stated in her testimony regarding single blow; whereas testimony of PW5-Pramod Pandit and MLC injury certificate (Exh.20) disclose four injuries sustained by victim Anusayabai and the said variance diminishes the credibility of the testimony of PW2-Anusayabai.

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32 Moreover, it is also canvassed by the learned Counsel for the appellant that the MLC injury certificate (Exh. 20) discloses about four injuries allegedly sustained by the victim Anusayabai, but significantly it is silent in respect of any injury on the person of the victim relating to alleged rape upon her. Moreover, learned Counsel for the appellant also canvassed that the discovery of the axe and blood stained shirt, under the memorandum panchanama and discovery of panchanama, Exhibits 16 and 16A, are also under suspicion, since admittedly, same were recovered beneath the stack of wooden logs in open space i.e. on the bank of river which were accessible to public at large.

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33 In the said context, it is pointed out by the learned Counsel for the appellant, that Panch witness, PW 4, Ashok Sonwane, has stated in his deposition that after preparation of memorandum Exhibit 16, accused led the Panchas and Police personnel to the bank of the river and further took to broken trunks of trees where from he pulled out the axe from scattered stack of wooden logs and also pulled out red colour shirt from the stack of wooden logs, and also prepared the panchanama and seized the said articles thereunder. Hence, it is submitted that the said recovery of axe and shirt was made from the scattered pile of wooden logs on the bank of river and the accused pulled out the axe and shirt

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therefrom, and therefore, same must be visible from the said stack of logs, and further submitted that the said recovery is from the open space accessible to public, and hence, it is doubtful.

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34 Further, it is submitted that the testimony of P.W.4, Ashok Sonwane, Panch witness, is silent in respect of packing the said shirt (Article 4) and axe (Article 5) in packets and labeling the same with the signature of Panchas, and also there is no whisper about the sealing of the said packets. It is further submitted that there is no whisper in the testimony of P.W.7, API Ramesh Bawa, that the said seized articles were kept in proper custody till they were sent to Chemical Analyser's office for examination purpose, and hence, it is further submitted that the suspicion is created in respect of tampering of the same, and hence, it is argued that the said corroborative piece of evidence of discovery of axe and shirt cannot be tacked with the accused, and consequently, the Chemical Analyser's report Exhibit 31, dated 11-4-2011, cannot be tacked with the appellant, in respect of the axe and accused cannot be tacked with the alleged crime. Admittedly, the C.A. report regarding shirt is in negative. To substantiate the said contentions, learned Counsel for the appellant has placed reliance on the following judicial pronouncements :

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(i) The judgment of Privy Council, in the case of Pulukuri

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Kottaya and others Vs. Emperor, reported in A.I.R.(34) 1947 Privy Council 67, wherein Privy Council has observed thus :

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" It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant : 16 A.I.R. 1929 Lah. 344 (F.B.) and 19 A.I.R. 1932 Bom. 286, Approved; I.L.R. (1937) Mad. 695 : 24 A.I.R. 1937 Mad. 618 : 171 I.C. 245 (F.B.), OVERRULED. "

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(ii)

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The judgment of Division Bench of this Court, in the case

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of Ashraf Hussain Shah Vs. State of Maharashtra, reported in 1996 CRI. L.J. 3147, wherein this Court has observed thus :

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" First of all we would like to observe that the learned trial judge was perfectly justified in rejecting the evidence of recover of blood stained clothes indicate that after seizure these articles were sealed. A Division Bench of this Court to which one of us (Vishnu Sahai, J.) was a party in the case of Deoraj Deju Suvarna v. State of Maharashtra, reported in 1994 Cri. L.J. 3602, after considering a large number of authorities has held that not only should the prosecution adduce evidence that after seizure the articles were sealed but should also lead link evidence to the effect that till being sent to the Chemical Analyst they were kept throughout in a sealed condition. This is done to eliminate the suspicion that blood might not have been put on the articles subsequent to the recovery and prior to being sent to the Chemical Analyst. "

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In the said context, it is also submitted that nothing has come on record that accused ever had any chance to conceal the said axe and shirt below the stack of wooden logs, and therefore, the theory advanced by the prosecution is not digestible.

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35 It is further submitted that P.W.2 Anusayabai has nowhere stated in her deposition about broken bangles, but the evidence of

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P.W.1 Nandulal Salunke, Panch witness, speaks that pieces of red colour broken bangles were found at the spot of the incident which were seized under the panchanama Exhibit 8, and hence, it is submitted that suspicion is created in respect of seizure of the pieces of broken bangles at the spot under the spot panchanama.

¶108

36 It is also the argument of the learned Counsel for the appellant, that nobody from the village was examined by the prosecution as independent witness to substantiate the theory that the accused returned to home without clothes. Moreover, it is further submitted that the prosecution also failed to examine the carrier who allegedly took the Muddemal property to Chemical Analyser's office for examination purpose and the said vital link in the prosecution case is missing. Hence, it is submitted that there is no cogent evidence on record to prove and establish that the accused was the person who used the axe at the time of occurrence of the incident and the alleged recovery of axe appears to have been foisted upon the accused and even the said corroborative piece of evidence of recovery of axe cannot be construed as incriminating evidence against the accused due to lack of sealing and due to non-production of proper account of its custody from the time of seizure till sending it to Chemical Analyser's office for examination purpose.

¶109

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37 Accordingly, it is submitted by the learned Counsel for the appellant, that the evidence produced by the prosecution is weak type of evidence and there are discrepancies, infirmities and lacunae therein, and the prosecution evidence does not inspire confidence and does not bring the guilt at home against the accused in respect of the alleged charges, and hence, present appeal deserves to be allowed by quashing and setting the impugned judgment and order, and consequently, the accused deserves to be acquitted.

¶111

38 Learned Additional Public Prosecutor, for the respondent/State, countered the said arguments vehemently. Learned APP submitted that the version of P.W.2 Anusayabai, that she was assaulted by axe by the accused on her neck, has been corroborated by the MLC injury certificate Exhibit 20 and the evidence of P.W.5 Dr. Pramod Pandit, and the prosecution is not expected to give explanation about the other injuries. It is also canvassed that P.W.2 Anusayabai has categorically stated about the assault on her by the accused wherein she has stated that the accused gave blow of axe on her neck which has been supported by the MLC injury certificate which discloses injury on scapula, and hence, it amounts as incriminating evidence against the accused. It is further canvassed that the evidence of prosecutrix P.W.2 Anusayabai inspires confidence and the same is reliable and

¶112

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trustworthy, since she has categorically stated therein that she was raped by the accused when she asked way leading to the village, and it is submitted that, the victim Anusayabai is of 70 years old and why she should state lie and she was admitted in the hospital for about 14 days after occurrence of the incident which speaks for itself.

¶114

39 It is further submitted that although the victim Anusayabai had impaired vision, she proceeded towards dock and identified the accused in the court as the culprit. Moreover, it is submitted that the recovery of axe and shirt were at the instance of the accused under the memorandum and discovery panchanamas, (Exhs. 16 and 16A), which were sent to Chemical Analyser for examination purpose, and the C.A. report (Exh. 31), dated 11.4.2011 discloses that the said axe bore human blood of "A" group and the C.A. report dated 6.4.2011 (Exh. 25), disclosed that the blood group of the victim Anusayabai is also "A", and hence, it is submitted that the said corroborative piece of evidence connects the accused with the alleged crime. Accordingly, learned APP supported the impugned judgment and order of conviction, and submitted that, after assessing the evidence on record, there is no glaring mistake therein while convicting and sentencing the accused, and hence, submitted that there is no necessity to interfere therein in the appellate jurisdiction, and consequently, urged that the present appeal be dismissed.

¶115

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40 I have perused the oral and documentary evidence adduced/produced by the prosecution, as well as perused the impugned judgment and order, dated 28.4.2011 and heard the submissions advanced by the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent anxiously, as well as perused the judicial pronouncements cited by the learned counsel for the appellant carefully, and at the out set, there is substance in the submission canvassed by the learned counsel for the appellant that there is material omission in the testimony of PW2-Anusayabai, the first informant, and the first information report, dated 12.5.2010 lodged by her in respect of very name of the accused.

¶117

41 Pertinently, the supplementary statement of the said witness was recorded on the same day i.e. on 12.5.2010, but the said supplementary statement of PW2 Anusayabai disclose the name of the culprit i.e. the accused therein, who allegedly committed rape upon her and assaulted her by axe; but significantly no source of giving name of the accused to the said prosecutrix has been disclosed therein, and as canvassed by the learned counsel for the appellant, question certainly arises how the name of the accused was reflected in the supplementary statement which was recorded on the very day of lodging the first information report i.e. 12.5.2010 and

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the prosecution has not given any explanation in that respect. Accordingly, the fact remains that there is omission in respect of very name of the accused in the first information report, which amounts to improvement in the testimony of PW2 Anusayabai.

¶120

42 Moreover, as canvassed by the learned counsel for the appellant, there are no details of the incident given in the testimony of PW2 Anusayabai, since she simply stated therein that she asked the accused about the way leading to the village and thereupon he raped on her though she was telling him that he was like her son, and thereafter he gave a blow of axe on her neck and threatened her that if she tells the incident in the village, he would kill her and thereafter fled away. Pertinently, the contents of the complaint disclose that the assailant i.e. accused tried to press her mouth and neck when she made inquiry with him regarding the way leading to the village, he asked her to show her ass, and accordingly, there is variance in the complaint lodged by the complainant and in her testimony regarding occurrence of the incident of assault and rape upon the said victim.

¶121

43 Moreover, it is also material to note that the testimony of PW2 Anusayabai speaks about the single blow only i.e. accused allegedly gave a blow of axe on her neck; whereas the MLC injury

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certificate discloses four injuries sustained by her, which were of simple nature, as stated therein. Moreover, the testimony of PW5 Dr.Pramod Pandit also reflects four injuries sustained by the victim and his version is in consonance with the MLC injury certificate (Exh. 20). However, the history given by PW2 Anusayabai to PW5 Dr.Pramod Pandit is silent in respect of description of the accused and the name of the accused and alleged rape committed by him upon her, and consequently, there is no mention of history in the MLC injury certificate (Exh.20), as well as deposition of PW2 Anusayabai is not in consonance with the MLC injury certificate in respect of injuries; as well as the testimony of PW2 Anusayabai refer to single injury inflicted upon her by the accused; whereas MLC injury certificate discloses four injuries sustained by her, and further the MLC injury certificate is silent in respect of any injury on the person of victim relating to alleged rape upon her. Moreover, although PW5 Dr.Pramod Pandit has stated in his deposition that he examined the victim PW2 Anusayabai, his testimony is silent in respect of any rape committed upon the said victim. Accordingly, there is no medical evidence in respect of alleged rape committed upon victim PW2 Anusayabai, and hence, there is solitary isolated testimony of PW2 Anusayabai in that regard, which has not been substantiated by any legal evidence.

¶124

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44 Moreover, it is also important to note that the discovery of the axe and the shirt under panchanamas Exhs. 16 and 16-A at the instance of the appellant was made from the bank of the river i.e. open space beneath the scattered stack of wooden logs, which was accessible to public at large, and the said recovery of axe and shirt was made by pulling it out from the scattered pile of wooden logs, and therefore, there is substance in the submission made by the learned counsel for the appellant that the said Articles must have been visible in the said stack of logs, which were pulled out at the time of recovery and seizure thereof under memorandum panchanamas Exhs. 16 and 16-A, and consequently, there is substance in the submission of the learned counsel for the appellant that such recovery is doubtful. It is further material to note that panch witness PW4 Ashok Sonwane is silent in his testimony in respect of packing of the shirt (Article 4) and axe (Article 5) and labeling the same under the signatures of panchas, and there is no whisper about sealing of the said packets.

¶126

45 It is further material to note that the testimony of PW7 API Ramesh Bawa is silent regarding the said Articles that after seizure the axe and the shirt, the same were kept in proper custody till they were sent to the Chemical Analyzer for examination purpose. Hence, the submission advanced by the learned counsel for the appellant

¶127

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that suspicion is created in respect of tampering of said Articles bears substance and said corroborative piece of evidence of discovery of the axe and the shirt cannot be tacked with the accused, and consequently, the report of the Chemical Analyzer Exh. 31, dated 11.4.2011 cannot be tacked with the appellant in respect of the axe and further the accused cannot be tacked with the alleged crime, further more particularly, in the absence of vital link of nonexamination of carrier by the prosecution, placing reliance upon the judicial pronouncements cited by the learned counsel for the appellant (supra). It is also material to note that nothing has come on record that the accused ever had any opportunity to conceal the shirt and axe below the wooden logs, and hence, there is substance in the submission made by the learned counsel for the appellant that the theory advanced by the prosecution is not conceivable.

¶129

46 Moreover, the testimony of PW2-Anusayabai is also silent in respect of broken bangles, but PW1 Nandulal Salunke – panch refers to pieces of red colour broken bangles, which were allegedly found on the spot of the incident and which were seized under the panchanama (Exh.8), and accordingly, the testimony of PW2 Anusayabai has not been substantiated in respect of pieces of broken bangles and seizure thereof under the spot panchanama is without any logical end thereto.

¶130

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47 Besides, except the bare testimony of PW2 Anusayabai, there is no cogent evidence on record to prove and establish that the accused was the person, who allegedly used axe at the time of occurrence of the incident, and since there is suspicion in respect of recovery of axe under the memorandum panchanamas Exhs. 16 and 16-A, the possibility of foisting the axe upon the accused cannot be ruled out, since the corroborative piece of evidence of recovery of axe under the memorandum panchanamas at the instance of the accused is under duldrums, due to lack of sealing the packets thereof and due to non-production of proper account of its custody from the time of seizure till sending it to the Chemical Analyser for examination purpose.

¶133

48 In the circumstances, it is amply clear that there are vital discrepancies, deformities and infirmities in the prosecution evidence, and therefore, the prosecution evidence cannot be construed as full-proof evidence to connect the accused with the alleged crimes in respect of rape and assault upon the victim and the alleged intimidation to her by the accused to kill her, if she disclosed the alleged incident to anybody in the village, and the prosecution evidence is short of the charges levelled against the appellant/accused. Hence, I am inclined to accept the submissions

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advanced by the learned counsel for the appellant, and accordingly, present appeal succeeds, and consequently, the conviction and sentence imposed upon the appellant shall not sustain, and therefore, same deserves to be quashed and set aside, acquitting the accused from the offences with which he was charged.

¶136

49 In the result, present appeal is allowed and the conviction and sentence imposed upon the appellant (original accused) by way of impugned judgment and order, dated 28.4.2011, stands quashed and set aside and the accused is acquitted for the offences with which he was charged and convicted. The accused is in custody, and hence, he be released forthwith, if not required in any other case. Fine amount, if any paid by the appellant, be refunded to him. Appeal is disposed of accordingly.

¶137

(SHRIHARI P. DAVARE),

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JUDGE.

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dbm/cra289.11

Devidas Ragho Koli v. the State of Mahrashtra

Case brief

What is this about?

What did the court decide?

Devidas Ragho Koli v. the State of Mahrashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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