Allowed

Ankush Ramu Bhoir v. State of Maharashtra

Bombay HC3 Aug 2021APEAL/342/1998

Case brief

AI extract

What is this about?

In this criminal appeal against a rape conviction, the High Court of Bombay at Bombay Criminal Appeal Jurisdiction scrutinized the trial court's findings. The court held that the medical evidence failed to corroborate the prosecution case, no injuries were found on the victim, and the Section 313 statement was legally flawed. Consequently, the conviction was unsustainable, and the appellant was ac

What did the court decide?

The criminal appeal was allowed; the impugned judgment and order convicting the appellant were set aside; the appellant was acquitted.

Ankush Ramu Bhoir Vs State of Maharashtra — Bombay HC (2021) — LawSathi Research

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1-Cr.appeal-342 of 1998.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 342 OF 1998

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Ankush Ramu Bhoir
Age : about 19 years,
R/o. Wafa. Tal. Bhiwandi,
Dist. Thane. … Appellant
Versus
State of Maharashtra… Respondent

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Mr. P. R. Arjunwadkar, Advocate for the Appellant.
Mrs. Veera Shinde, APP for Respondent – State.

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CORAM : PRAKASH D. NAIK, J.
RESERVED ON: 14th JULY, 2021.
PRONOUNCED ON :3rd AUGUST, 2021.

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JUDGMENT :-

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Digitally signed by SAJAKALI SAJAKALI LIYAKAT JAMADAR LIYAKAT Date: JAMADAR 2021.08.03 11:18:57 +0530

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1.The appellant is aggrieved by the Judgment and
order dated 13th February, 1998 passed by the IV Additional
Sessions Judge, Thane, in Sessions Case No.124 of 1997. The
appellant is convicted for the offence punishable under Section
376 of Indian Penal Code (for short “IPC”) and sentenced to
suffer rigorous imprisonment for seven years and to pay fine of
Rs.2,000/- and in default to suffer further rigorous
imprisonment for six months.

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1-Cr.appeal-342 of 1998.doc

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2.The case of the prosecution is that the victim girl
aged about 14 years was taking education in school at Sagaon.
She was staying with her maternal uncle at Wafa. On 22nd
October, 1996 at about 10.00 a.m. she was proceeding to school
alone. It is alleged that the appellant followed her, caught her
and took her behind the bush and by threatening committed
rape and ran away. The victim girl returned home and narrated
the incident to her maternal aunt. Her maternal uncle had been
to Shahapur and on his return, the incident was disclosed to
him and the complaint was filed with Padgha Police Station vide
C.R. No. I-157 of 1996. The appellant was arrested on 23rd
October, 1996. Vide order 1st September, 1997, he was granted
bail by this Court during the pendency of trial.

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3.Charge was framed on 29th August, 1997 for offence
under Section 376 of IPC. Trial proceeded. The prosecution
examined seven witnesses.

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4.PW-1 is the victim girl. PW-2 – Sukrya More is the
maternal uncle of the victim. PW-3 – Thama @ Sunil Sukrya
More is material aunt of victim. PW-4 – Baby Pandurang

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Sonawane is schoolmate of victim. PW-5 Raghunath Kondu
Dalvi is the panch witness for spot panchanama. PW-6
Ramchandra M. Dhuri is P.S.I. attached to Padgha Police Station
and Investigating Officer. PW-7 – Dr. Anil Pichad is the Medical
Officer, who examined the appellant.

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5.Statement of the accused was recorded under
Section 313 of Cr.P.C. Defence of accused is of false implication.
Appellant was in partnership business with Sukrya. He was too
receive Rs.15,000/- from Sukrya. He demanded amount from
Sukrya (PW-2). He picked up quarrel. Accused was threatened
by PW-2.

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6.Learned counsel for the appellant urged following

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submissions :-

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i)There is delay in lodging First Information Report (for
short “FIR”).

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ii)The spot of incident was busy road. There is no
independent witness.

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iii) The victim did not disclose the incident to PW-4.

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iv)The victim did not raise cry and did not shout at the time
of incident.

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v)Medical evidence do not corroborate the version of the
victim.

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vi)Medical Officer is not examined and hence adverse
inference will have to be drawn against the prosecution.
vii) No evidence to establish the age of the victim.

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viii) Chemical Analysis (C.A.) report do not support the
prosecution case.

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ix) The evidence of witnesses is contradictory to each other,
which creates doubts about the genuineness of prosecution
case.

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x)The statement of the accused recorded under Section

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313 of Cr.P.C. is bad in law. The circumstances relied upon by
the prosecution against the appellant were not put to him and
without giving an opportunity to tender explanation, the
appellant was convicted.

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xi) Accused is entitled for benefit of doubt.

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7.Learned counsel for the appellant relied upon the
following decisions :-

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i) Supreme Court decision in the case of Rajoo & Ors. V/s. State of M.P. dated 3^rd December, 2008 delivered in Criminal Appeal No. 1094 - 1098 of 2000.

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ii)Rahim Beg & Anr. V/s. State of U.P. AIR, 1993, SC, 343.

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iii)Shaikh Maqsood V/s. State of Maharashtra, (2009), 6 SCC 583.

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iv)Inspector of Customs, Akhnoor, Jammu and Kashmir V/s. Yashpal and Anr. (2009) 4 SCC 769.

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v)Supreme Court decision in the case of State of Karnataka V/s. F. Natraj, decided on 7^th October, 2015.

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8.Learned APP Mrs. Veera Shinde submitted that there
is no delay in lodging FIR. The victim had disclosed the incident
to her maternal aunt. Maternal uncle was at Shahapur. On his
return to village, the incident was disclosed to him and
immediately thereafter, they proceeded to Padgha Police Station
and FIR was lodged. The incident had occurred at lonely place
and hence there were no independent witnesses. There is no
reason to discard the evidence of the victim. She has
categorically stated that the accused has sexually assaulted her.
The testimony of the victim is sufficient to convict the accused.
It is not necessary that her version should be corroborated by
any other evidence. There is no reason to disbelieve the
evidence of victim. There is no motive to falsely implicate the
appellant. The resistance by the victim girl is apparent from the

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1-Cr.appeal-342 of 1998.doc

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fact that there were scratches of nail on the body of the accused.
This fact is evident from the deposition of PW-7, who had
examined the appellant. The victim was cross examined by the
defence. Evidence of victim could not be demolished in any
manner. The offence has been proved beyond reasonable doubt
and the appellant has been rightly convicted by the trial Court.

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9.I have scrutinized ocular evidence of witnesses and
the documentary evidence on record. The victim (PW-1) has
deposed that she was taking education at G.A. Patil Vidyalaya,
Sagaon. She knows the accused. The accused caught her and
took her behind the bush and committed rape. She narrated the
incident to her grand mother. Her grand mother called maternal
aunt Dhamabai. Both of them went to Padgha S. T. bus stand.
Her maternal uncle returned from Shahapur and then they went
to Police Station and lodged the complaint. On 22nd October,
1996 at about 10.00 a.m. the victim was on the way to school.
In the cross examination she has stated that her school distance
is at about 3.00 k.m. from Sagav. 10 to 15 students attend the
school from Wafa. There are about 7 to 8 girls. School time is
11.00 a.m. to 4.45 p.m. She used to start from home at about

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9.30 a.m and return at 5.30 p.m. She was going to school daily
along with other students. On the day of incident her friends
went ahead and she was behind by 15 minutes. She had talk
with maternal uncle before going to Police Station. She saw her
maternal uncle at Padgha bus stop. On the day of incident she
did not see any student while going to school and returning.
There were no blood stains on her clothes. She had no injury on
any part of body. She was knowing the accused 4 to 5 years
prior to incident. Baby Sonawane and Sunita Sonawane were
her friends. She did not see Baby and Sunita on the day of
incident in the morning.

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10. PW-2 – Sukrya More is the maternal uncle of the

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victim. He had gone to Shahapur. He returned to Padgha at 6.00
p.m. His wife and the victim were sitting at the bus stop. Victim
narrated him the incident. Complaint was lodged. The
statement was recorded at the Police Station on the same day of
complaint. He told the police that he saw his wife and victim at
bus stop Padgha. The said fact was not mentioned in the
statement. They went to Police Station and narrated the
incident. Their statements were recorded. From his evidence it

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is apparent that the victim and his wife were waiting at bus stop
was an omission which fact is not reflected in his statement.

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11.PW-3 – Thama More is the wife of PW-2. According

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to her she had gone to field. Her mother-in-law informed her
that the victim has returned home and she is weeping. The
victim told her that accused took her to Jwar crop and
committed rape while she was going to school alone. They went
to Padgha. 5 to 7 female students were going to school. They
were going together and returning together. The victim started
for school and thereafter, she went for work.

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12.PW-4 Baby Sonwane is the student of the same
school. She deposed that they attend school by walk. On 22nd
October, 1996, she was going to school at 9.00 a.m. Victim was
ahead. She saw her. She was returning. She was weeping. She
asked the reason but the victim did not say anything. About 5 to
7 female students were going to school. They used to start from
home at 9.00 a.m and returned at 5.30 p.m. Victim used to
accompany them to go to school and return. It is foot way. On
the way 4-5 person meet them.

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13.PW-5 Raghunath Dalvi is the panch witness for spot
panchanama. He stated that Sukrya is his brother-in-law. Sukrya
asked him to join as witness.

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14.PW-6 Ramchandra Dhuri is Police Head Constable
attached to Padgha Police Station. He conducted investigation.
He recorded statements of witnesses. Padgha is 25 k.m. distance
from Wafa. There is agricultural land surrounding the spot. He
did not record the statements of adjoining field owners and field
labourers. He did not record the statements of teacher and head
master. He did not record statements of parents of the victim.
He did not ask for the certificate of the date of birth of the
victim with her maternal uncle. There is no documentary
evidence to show the age of victim except medical certificate.
He was aware that the victim is taking education in school and
the date of birth can be obtained from the school. He did not
make any effort to obtain birth certificate from school. He did
not make effort since he got medical certificate. He does not
know whether 12 to 14 students were going to school at Wafa
including 8 to 10 girls. He did not know that panch Raghunath
is the brother-in-law of Sukrya. He called Raghunath. Name of

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the Police Constable, who took victim to Civil Hospital is not
mentioned.

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15.PW-7 Dr. Anil Pichad examined accused. He deposed

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that on examining the accused he found three abrasions due to
nail on his right side of the chest. Age of injury was about 24
hours. Those were caused due to nail. It is necessary to issue
certificate in the prescribed form. In medico legal cases it is
necessary to write the name of Police Officer, who brought the
patient. He forgot to write the name of the Police Constable in
his certificate. Scratches mentioned in the certificate can be
caused by thorns of Karvandi and Bori. Scratches mentioned in
his report can be caused by any nail (male or female). The
injuries are not possible doe to scuffle with the Police.

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16.From the evidence adduced by the prosecution, it is
not possible to convict the appellant for the offence charged
against him. The evidence on record does not inspire confidence
to award conviction. The charge is not proved beyond all
reasonable doubt. There are discrepancies in the evidence lead
by the prosecution and accused is entitled to benefit of doubt.

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17.The evidence of the victim indicates that, every day

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she used to visit the school with her friends. The distance
between the residence and school is at about 3 k.m. According
to prosecution, the route to the school is through agriculture
fields. However, according to victim on the day of incident she
was alone. The victim has stated that usually she used to start
for school at about 9.30 a.m. On the day of incident, she started
for school at 10.00 a.m. Her friends had left ahead. However,
the evidence of PW-4 Baby Sonwane indicate that, on the day of
incident, victim was ahead. PW-4 started for school at 9.00 a.m.
and she saw the victim returning and that she was weeping. The
victim's evidence however disclosed that, her friends were
ahead and she left for school at 10.00 a.m. Hence, the
deposition of PW-4 that while returning she saw victim weeping
is doubtful. It is also difficult to believe that considering the
route to the school and usual mode of going to school, on the
day of incident the victim was alone and the accused followed
her and committed the alleged act. PW-4 has stated that the
victim always used to accompany them to school and return.
On the way 4 to 5 persons used to meet them. The victim did

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not disclose the incident to her, although she was weeping.
PW-1 has not referred to presence of PW-4. PW-2 & PW-3 are
maternal uncle and maternal aunt of the victim. The victim has
admitted that there were no blood stains on her clothes. The
clothes of the victim were seized vide Exh.9.

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18.The prosecution has preferred an application under
Section 294 of Cr.P.C. vide Exh.7 calling upon the accused to
admit the documents and the defence/accused had admitted
documents at Sr. Nos. 1, 3, 5 & 6 viz. Panchanama of the arrest
of accused dated 23rd October, 1996, panchanama of seizure of
the clothes of the victim dated 24th October, 1996 (Exh.9),
Medical certificate of the victim dated 23rd October, 1996
(Exh.10), letter to C.A. report dated 1st November, 1996
(Exh.11). Exh.10 is provisional medical certificate. The said
document indicate that the final certificate will be issued after
availability of C.A. report. The victim was examined by Dr. K.P.
Ubale on 23rd October 1996. The examination reads as follows:-

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“Injuries :External Injuries :- Nil
Internal Injuries:- Nil.
Vagina: Well developed and Specious.

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Her blood vaginal smear, vaginal swab of pubic hairs
collected, sealed and sent for C.A.’s opinion.”

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19.There is no other medical examination report of the
victim on record. This medical certificate does not indicate
injuries sustained by the victim and whether she was sexually
assaulted. The prosecution has not examined medical officer to
substantiate the prosecution case that the victim was subjected
to sexual assault.

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20.PW-5 Raghunath Dalvi is the panch for spot
panchanama which was recorded on 24th October, 2016. He has
admitted that he is the relative of complainant. The spot
panchanama is on Exh.16. The contents of the said panchanama
indicate that the grass was grown up to the knee and there are
bushes near the alleged spot of incident. On minute observation,
no mark was found at the place. Apparently, it had rained at the
relevant point of time. Although, it is the case of the prosecution
that the victim was aged about 14 years and that there is no
theory of consensual relationship, the prosecution has not
bothered to establish the age of victim. The Investigating Officer
has not collected any documents to establish the age of victim.

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He did not obtain birth certificate of victim. He admitted that
there are no documents regarding age of victim. He did not
record the statements of school teacher and head master. He
recorded statements of other students.

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21.Prosecution has heavily relied upon the evidence of
PW-7 to contend that there were abrasions on the person of
accused in the form of scratches and there was resistance by the
victim girl. The victim has not stated in her evidence that she
had caused any scratches by nail to the accused. Apart from that
PW-7 has stated that scratches referred to by him in the
certificate can be caused by thorns of Karvandi and Bori or it
can be caused by nail (mail or female).

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22.Although it is a case of the prosecution that the
victim was minor and she was sexually assaulted by the
accused. The prosecution has failed to examine medical officer
which speaks volume of doubt about the prosecution case. The
C.A. report do not corroborate the version of the prosecution.
Exh.20 is the C.A. report with regards to pubic hair and semen
of the accused and the result of analysis shows that neither

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semen nor vaginal fluid was detected and the blood group of
semen cannot be determined as the results are inconclusive.
C.A. report Exh.21 is in respect of blood, vaginal smear, vaginal
swab and pubic hair of the victim. The results of analysis are
neither semen nor vaginal fluid is detected. Exh.22 is the C.A.
report in respect to the clothes of the victim and earth and the
result of analysis is that undergarment was stained with blood
on middle portion. No blood was detected on the shirt, skirt,
pant, undergarment and earth. No semen was detected on shirt,
skirt, undergarment & pant.

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23.I have perused the statement of the accused
recorded under Section 313 of Cr.P.C. Although the prosecution
had examined 7 witnesses, the questions put to the accused are
cryptic without referring to the evidence to most of the
witnesses lead by the prosecution. Statements under Section
313 of Cr.P.C. refers to the part of the evidence of PW-1 and PW-
7. No question relating to place of incident is put up to accused.
Statement is silent with regards to circumstances brought by
prosecution through evidence of PW-2, PW-3 and PW-4. There is
absolutely no reference to their evidence. There is reference to

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spot panchanama but not to the evidence of PW-5. Statement
under Section 313 of Cr.P.C. is also silent qua evidence and
investigation of PW-6. The object of Section 313 is to give an
opportunity to the accused to tender explanation. The questions
must be framed in such way as to enable the accused to know
what he has to explain, what are the circumstances which are
against him and for which the explanation is needed. The
whole object of the Section is to afford the accused a fair and
proper opportunity of explaining circumstances which appears
against him and that the questions must be fair and must be
couched in a form which a person will be able to appreciate and
understand. The accused in the present case was a village boy
aged about 19 years. The trial Court had ignored the
requirement of Section 313 of Cr.P.C. In the case of Shaikh
Maqsood V/s. State of Maharashtra (Supra), the Apex Court had
observed that no question was put to the accused which
established that he was the author of the crime. The purpose of
Section 313 is to explain any circumstances appearing in the
evidence against accused. In the case of Inspector of Customs,
Akhnoor, Jammu and Kashmir V/s. Yashpal and Anr. (Supra),

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the Supreme Court has again explained the object and necessity
of the statement under Section 313 of Cr.P.C. It was observed
that incriminating material was not brought to the notice of
accused while examining them under Section 313 of Cr.P.C. The
provision is mainly intended to benefit the accused and it is
corollary to benefit the Court in reaching the final conclusion. It
should be borne in mind that the provision is not intended to
nail the accused to any position but to comply with the most
salutary principle of natural justice enshrined in the maxim audi
alteram partem.

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24.Solitary testimony of prosecutrix may be sufficient to
base conviction under Section 376 of IPC, if it inspires the
confidence of Court. The medical evidence in this case do not
corroborate prosecution case. The medical certificate adduced in
evidence is silent about occurrence of sexual assault and victim
being subjected to such ordeal. If the Court on facts finds it
difficult to accept version of prosecutrix on its face value, it may
search for evidence, direct or circumstantial, which would lend
assurance to her testimony.

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25.In the light of the aforesaid observations, I am of the
considered opinion that the prosecution has not established its
case beyond all reasonable doubt and the Judgment of
conviction would not sustain and it is required to be set aside.

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26.Hence, I pass the following order :-

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ORDER

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i) Criminal Appeal No. 342 of 1998 is allowed.

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ii)Impugned Judgment and order dated 13th February,
1998 passed by the IVth Additional Sessions Judge, Thane,
in Sessions Case No.124 of 1997, convicting the appellant
for the offence under Section 376 of IPC and sentenced him
to suffer rigorous imprisonment for seven years and to pay
fine of Rs.2,000/- is set aside and the appellant is acquitted
for the said offence.

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iii)Fine amount, if any deposited by the appellant be
returned to him.

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iv) The appeal stands disposed of accordingly.

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(PRAKASH D. NAIK, J.)

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Ankush Ramu Bhoir v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Ankush Ramu Bhoir v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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