Allowed

Tatu Mavji Pawar v. the State of Maharashtra

Bombay HC25 Sept 2019APEAL/77/2018

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court allowed the appellant's challenge against his conviction for rape, house trespass, and criminal intimidation. The Court acquitted the appellant, holding that the prosecution failed to prove its case due to a huge unexplained delay in lodging the FIR and the lack of corroborative evidence.

What did the court decide?

The impugned judgment and order of conviction and sentence are quashed; the appellant is acquitted and set at liberty.

Tatu Mavji Pawar Vs the State of Maharashtra — Bombay HC (2019) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.77 OF 2018

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TATU MAVJI PAWAR )...APPELLANT

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V/s.

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THE STATE OF MAHARASHTRA

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)...RESPONDENT

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Mr.Swapnil Ovalekar, Advocate for the Appellant.

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Mr.Amit Palkar, APP for the Respondent - State.

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CORAM : A. M. BADAR, J. DATE : 25^th SEPTEMBER 2019

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JUDGMENT :

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1 By this appeal, the appellant/accused is challenging the judgment and order dated 5^th October 2016 passed by the learned Additional Sessions Judge, Thane, in Sessions Case No.176 of 2015 convicting him of offences punishable under Sections 376, 452 and 506(2) of the Indian Penal Code. On the first count, the appellant/accused is sentenced to suffer rigorous

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imprisonment for 10 years apart from direction to pay fine of Rs.5,000/- and in default, to undergo further simple imprisonment for 1 year. On the second count, he is sentenced to suffer rigorous imprisonment for 3 years apart from direction to pay fine of Rs.1,000/- and in default, to undergo further simple imprisonment for 6 months. On the third and last count, he is sentenced to suffer rigorous imprisonment for 2 years apart from direction to pay fine of Rs.1,000/- and in default, to undergo further simple imprisonment for 6 months. Substantive sentences are directed to run concurrently by the learned trial court.

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2 Facts, in brief, leading to the prosecution as well as

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the resultant conviction of the appellant/accused, can be summarized thus :

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(a) The victim of the crime in question is a married lady having three children and residing at Village Aase in Mokhada Taluka of Palghar District. She was residing there along with her children as well as father-in-law, mother-in-law and her husband. The appellant/accused is stated to be her next door

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neighbour. It is alleged by the prosecution that on 10^th November 2014, PW5 Krushna – husband of the prosecutrix/ PW1 had been to Shahapur for work. Her father-in-law – PW8 Jivlya had gone to the field for sleeping there. Her mother-in-law had gone to her parental house at Village Vangani. She, therefore, was sleeping with her child in the night intervening 10^th November 2014 and 11^th November 2014.

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(b) According to the prosecution case, at about 12 O’ Clock in the midnight, the appellant/accused came inside the house of the prosecutrix/PW1 from back door of her house. He slept beside her. When the prosecutrix/PW1 started shouting, the appellant/accused pressed her mouth. Thereafter, he committed rape on her and left the place by threatening her that if the incident is disclosed to anybody else, he will kill her as well as her husband and father-in-law.

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(c) According to the prosecution case, six months earlier to this incident, the appellant/accused had committed rape on the prosecutrix/PW1. She had disclosed that incident to her husband as well as father-in-law and had decided to lodge a report. However, villagers settled that matter. Hence, she did not lodge complaint of rape. However, as the appellant/ accused had threatened to kill her father-in-law, a simple complaint in that regard was lodged, and accordingly, the police started Chapter proceedings against the appellant/accused.

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(d) The prosecutrix/PW1 disclosed the incident to her husband and father-in-law on the next day i.e. on 11^th November 2014. She, thereafter, lodged report of the incident Exhibit 15 on 22^nd November 2014 with the Police Station Mokhada and accordingly, Crime No.48 of 2014 came to be registered. The appellant/accused came to be arrested. The prosecutrix/PW1 was sent for medical examination to the Cottage Hospital, Mokhada. The spot was inspected in presence of PW2

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Narayan Maule – panch witness and clothes of the prosecutrix/PW1 came to be seized in presence of PW3 Yashwant Kamdi. The appellant/accused made a voluntary disclosure statement Exhibit 24 in presence of panch witness PW4 Jaipal Patil as well as PW5 Krushna Kamdi. In pursuance to his disclosure statement, his half pant and sando banyan came to be seized vide Recovery Panchnama on 26^th November 2014. On conclusion of investigation, PW9 Vilas Mate, Police Sub-Inspector, filed charge-sheet against the appellant/accused.

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(e) The learned trial court framed and explained the Charge to the appellant/accused. He pleaded not guilty and claimed trial.

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(f) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all nine witnesses including the prosecutrix/PW1, her husband – PW5 Krushna and her father-in-law – PW8 Jivlya.

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(g) Defence of the appellant/accused was that of total denial. According to the defence, there was dispute between the appellant/accused and the prosecutrix/PW1 in respect of money and therefore, he is falsely implicated in the crime in question.

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(h) After hearing the parties, the learned trial court, by the impugned judgment and order, was pleased to convict and sentence the appellant/accused, as indicated in the opening paragraph of this judgment.

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3 I have heard Mr.Swapnil Ovalekar, the learned

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advocate appointed to represent the appellant/accused, at the costs of the State. He vehemently argued that entire case of the prosecution is doubtful as there is huge delay in lodging the First Information Report (FIR). It is further argued that there is no evidence to corroborated highly doubtful testimony of the alleged victim of the crime in question. The appellant/accused is, therefore, entitled for acquittal.

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4 The learned APP supported the impugned judgment and order of conviction and the resultant sentence by contending that evidence of the prosecutrix/PW1 is consistent and is corroborated by her FIR.

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5 I have considered the submissions so advanced and also perused the record and proceedings including oral as well as documentary evidence.

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6 Evidence of the prosecutrix/PW1 assumes great importance when the offence is that of rape after committing house trespass. In the case in hand, it is in evidence of the prosecutrix/PW1 that as her husband had gone to Shahapur and as her father-in-law as well as her mother-in-law were not in the house, she slept along with her child in her house, in the night intervening 10^th November 2014 and 11^th November 2014. In the midnight, the appellant/accused entered in her house by back door, slept by her side and when she shouted, he gagged her mouth. Then, the appellant/accused committed rape on her. He

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left by threatening to kill her as well as her family members, if she disclosed the incident to anybody else. The prosecutrix/PW1 further deposed that similar act was committed by the appellant/accused even six months prior to the incident and at that time also, she had disclosed the same to her husband as well as father-in-law. However, as villagers settled the matter, she did not lodge report. However, as the appellant/accused had given threat to kill her father-in-law, a report of non-cognizable case was lodged.

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7 Without explaining as to what happened on the next day i.e. on 11^th November 2014, the prosecutrix/PW1 continued to depose that she, then, lodged report and police recorded her FIR Exhibit 15 as per her say.

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8 In her cross-examination, the prosecutrix/PW1 admitted the fact that there were houses around her house and her husband did not remain out of the house for work frequently. She said that at the time of the incident, her daughter was with

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her. She further admitted that once there was altercation between her cousin father-in-law and the appellant/accused. This is all about entire evidence of the alleged victim of the offence of rape.

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9 If we peruse the FIR lodged by the prosecutrix/PW1, then it is clear that she approached the police on 22^nd November 2014 when her FIR came to be recorded. Perusal of the FIR also shows that the prosecutrix/PW1 has not mentioned a single reason for not lodging the FIR soon after the incident. The delay in lodging the FIR is not explained by the prosecutrix/PW1 either in her FIR or in her substantive evidence before the court.

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10 As against this, it is in evidence of PW5 Krushna - husband of the prosecutrix/PW1 that he returned to his house on 11^th November 2014 and on that day itself, he came to know from his wife that the appellant/accused had committed rape on her in the midnight of the night intervening 10^th November 2014 and 11^th November 2014. After putting on record the disclosure made to him by his wife, this witness straightaway continued his version

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by telling that thereafter, his wife lodged the FIR by visiting the police station with him and then the police recorded her FIR at Vasai. Evidence of PW5 Krushna is not disclosing any reason for not approaching the police immediately for lodging the FIR. Evidence of PW5 Krushna, as such, makes it clear that he accompanied his wife for lodging the report and the FIR at Exhibit 15 shows that the same was lodged on 22^nd November 2014.

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11 So far as evidence of PW8 Jivlya – father-in-law of the prosecutrix/PW1 is concerned, he has come up with another theory. As per his version, he came to know on 11^th November 2014 about commission of rape by the appellant/accused on his daughter-in-law on 10^th November 2014. But thereafter, villagers made settlement. PW8 Jivlya further deposed that then complaint of threat only was lodged against the appellant/accused and subsequently, his daughter-in-law lodged report against the appellant/accused regarding rape. Such is not the version of either the prosecutrix/PW1 or her husband PW5 Krushna. They both have stated that after commission of rape by the

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appellant/accused in the night of 10^th November 2014, report of commission of rape was lodged with the police.

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12 Report of medical examination of the prosecutrix/PW1 is a document admitted by the defence and the same is at Exhibit 16. The prosecutrix/PW1 was examined by the Medical Officer of Cottage Hospital, Jawhar on 23^rd November 2014. There, the prosecutrix/PW1 had given the history of sexual assault on her which took place one month earlier to her examination. The Medical Officer has further noted that the prosecutrix/PW1 is not remembering the date of the incident. Thus, even the Medico Legal Certificate at Exhibit 16 reflects that the prosecutrix/PW1 was sent for medical examination one month after the incident, and accordingly, no injuries were noted on person of the prosecutrix/PW1.

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13 The prosecution has not put on record so called report of non-cognizable case lodged by the prosecuting party against the appellant/accused, six months prior to the incident in question,

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for corroborating the version of the prosecutrix/PW1. No witnesses are examined in order to demonstrate that, incident, which allegedly took place six months prior to the incident in question, was settled through intervention of villagers and only a simple report of extending threats by the appellant/accused to the father-in-law of the prosecutrix/PW1 was lodged. Version of the prosecutrix/PW1, as such, is not gaining corroboration from any other evidence on record. The huge delay in lodging the FIR is not explained either in the FIR or through evidence of any of the prosecution witnesses. Father-in-law as well as husband of the prosecutrix/PW1, as per evidence of the prosecutrix/PW1, came to know about the incident immediately on the next day. Why they all kept mum without taking recourse to law by approaching police is also not explained by the prosecution in its evidence. In the light of this conduct on the part of the prosecuting party, hostile relations between the prosecuting party and the appellant/ accused assumes importance. The prosecutrix/PW1 has candidly accepted the fact that once there was an altercation between the appellant/accused and her cousin father-in-law. In view of enmity

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between the parties and non-explanation of huge delay in lodging the FIR, the prosecution case certainly becomes suspect. Evidence of the prosecutrix/PW1 is not gaining corroboration from any other material on record. Her evidence does not inspire confidence because of her conduct in not reporting the matter to police for several days after the alleged incident.

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14 In this view of the matter, it cannot be said that the prosecution has proved the facts that the appellant/accused had committed house trespass with an intention to commit offence, and thereafter, he committed rape on the prosecutrix/PW1 and subsequently had threatened her with dire consequences. Considering the nature of evidence available against the appellant/accused, he is certainly entitled for benefit of doubt. Hence, the following order :

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ORDER

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i) The appeal is allowed.

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ii) The impugned judgment and order of conviction and the resultant sentence imposed on the appellant/accused for offences punishable under Sections 376, 452 and 506(2) of the Indian Penal Code is quashed and set aside.

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iii) The appellant/accused is acquitted of offences with which he was charged.

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iv) He be set at liberty, if not required in any other case.

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v) Fine amount, if any, paid by him, be refunded to him.

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vi) The appeal is disposed off accordingly.

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(A. M. BADAR, J.)

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Tatu Mavji Pawar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Tatu Mavji Pawar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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