received on : 12/08/2017 decided on : 09/12/2020 · 1/12/2020 · shantaram building, suryanagar,...
TRANSCRIPT
1 S.C.413/2017 Judgment
Received on : 12/08/2017
Registered on : 12/08/2017
Decided on : 09/12/2020
Duration : 3 Y 3 M 28 D
IN THE COURT OF DISTRICT JUDGE & ADDL.SESSIONS JUDGE,THANE. AT : THANE
(Presided by A. S. Pandharikar) (AdHoc District Judge2 & Addl. Sessions Judge, Thane)
Sessions Case No.413/2017(CNR NO.MHTH010081592017)Exh.
State of Maharashtra(through Kalwa Police Station) …. Prosecution
V/s.
Upendra Naresh Makwana Age : 41 years, Occu. : Service,R/o. : Shantaram Building,Room No.503, Surya Nagar,Vitawa, Thane. … Accused
Charge : Offence punishable U/s.376 ofIndian Penal Code.
For State : APP Smt. HivraleFor Accused : Adv. Shri Rajesh Darvesh
2 S.C.413/2017 Judgment
: J U D G M E N T :
(Delivered On 9th December, 2020)
1/ Accused is facing trial for commission of an offence
punishable under Section 376 of Indian Penal Code.
2/ In the nutshell, case of the prosecution is as under :
Complainant resident of Chalisgaon, Dist. Jalgaon lodged
complaint in Kalwa police station on 12/08/2017. Complainant
contended that prior to six months she got married. Since two
months she along with her husband came to reside at Vitawa in the
house of her brotherinlaw and sisterinlaw as her husband was not
having any job. Her brotherinlaw Avinash Sonawane and sisterin
law Vijaya Sonawane are having two daughters. Younger daughter
Unnati aged 6 years was going for tuition to Smt. Sonali Madam
who was residing in Shantaram Apartment, Surya Nagar, Vitawa,
Thane. 34 times complainant had been to collect Unnati from
tuition. Distance between their house and tuition class was of 10
minutes walking. Everyday tuition timing of Unnati was in evening,
but only on Saturday she was having her tuition class in the morning.
Complainant further contended that on 12.8.2017 at
11.00 a.m. she along with her husband went to drop Unnati to her
tuition class at Room No.301, Third Floor, Shantaram Apartment.
Thereafter, at 12.30 noon complainant went to collect her Unnati
from tuition class. At that time Sonali Madam's husband Upendra
Makwana was taking tuition of children. At that time 3 small
children were sitting in the hall. From the door only she asked
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Upendra Makwana that can she take Unnati to home. Upendra
Makhwana told her that Unnati's homework is pending and she will
have to wait for some time. He asked complainant to come inside
the house. Thereafter, except Unnati he told other children to go to
their house. Then he asked complainant to prepare tea for him.
Complainant replied that she cannot prepare tea. Thereafter,
Upendra Makwana caught hold hand of complainant and dragged
her to the kitchen. She shouted and called Unnati. Upendra
Makwana pushed complainant on the floor. Thereafter, he forcefully
removed her clothes and committed rape on her without her consent.
Thereafter, Upendra Makwana told her not to tell said incident to
anybody and further told her to come tomorrow and if she wants to
terminate her pregnancy, he will abort the same. Thereafter, she
came back to her house and narrated alleged incident to her
husband. Thereafter, the complainant along with her husband went
to Kalwa police station and lodged complaint against accused
Upendra Makhwana.
3/ On the basis of this complaint, police registered the
offence vide crime No.I264/2017 and investigated the matter.
During course of investigation, police prepared spot panchanama,
seized clothes of victim and accused in presence of panchas and
prepared seizure panchanama of the same, sent victim for medical
examination and collected medical report of victim. During course of
investigation, police recorded statements of witnesses. After
completion of necessary investigation, chargesheet came to be
submitted before Ld. J.M.F.C. Court. As alleged offence under
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Sec.376 of IPC is exclusively triable by Sessions Court, Ld. Trial Court
committed the matter.
4/ Charge against accused under Sec.376 of the Indian
Penal Code is framed at Exh.10. The defence of accused is of total
denial.
5/ To bring home guilt of accused, the prosecution has
examined in all seven witnesses.
PW1 Complainant/ victim at Exh.13
PW2 Pradeep Hilal Sonawane at Exh.17
PW3 Child witness Unnati at Exh.19
PW4 Medical Officer Dr. Misbah Inamdar at Exh.23
PW5 Panch witness Rakesh Bhanudas More at Exh.25
PW6 Vijaya Avinash Sonawane at Exh.33
PW7 Investigating Officer PSI Priyanka Nivrutti Shinde atExh.48
The prosecution has also placed on record documentary
evidence as under :
1] Complaint at Exh.14
2] Statement of victim u/s.164 of Cr.P.C. at Exh.15
3] Medical certificate at Exh.24
4] Spot panchanama at Exh.26
5] Seizure panchanamas at Exhs.27 & 28
6] FIR at Exh.49
7] Receipts of muddemal at Exh.50 & 51
8] Letters to Medical Officer at Exh.52 & 53
9] Letter to Magistrate for recording statement under Sec.164 ofCr.P.C. at Exh.54
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10] Letter to FSL Kalina, Mumbai at Exh.55
11] Reports received from Kalina Lab at Exh.56 & 57
To obliterate the allegations, neither documentary nor
oral evidence adduced on behalf of accused.
6/ From the above facts, following points arise for my
determination and I have recorded my findings against each of it for
the reasons stated below.
SR.NO
POINTS FINDINGS
1] Does prosecution prove that on 12.8.2017 atabout 12.30 noon at Room No.301,Shantaram Building, Suryanagar, Vitawa,Kalwa, Dist. Thane within jurisdiction ofKalwa police station accused committed rapeon complainant and thereby committed anoffence punishable U/s. 376 of IPC ? : In the negative.
2] What order ?:
As per finalorder.
: R E A S O N S :
As to point No.1 :
7/ I gave anxious consideration to the rival submissions
made at bar. It is submitted by Ld. APP that to bring home guilt of
accused, prosecution has examined in all seven witnesses. Testimony
of these witnesses can be relied upon and during course of cross
examination also no worthwhile admission could be brought on
record. However, Ld. Defence Counsel has brought the alleged
incident from the mouth of witnesses in their crossexamination
6 S.C.413/2017 Judgment
itself. PW1 victim has stated full incident in detail in her
examinationinchief and proved the complaint (Exh.14). Further,
she has also proved her statement (Exh.15) under Section 164 of
Cr.P.C. recorded by the Magistrate. PW2 is husband of victim.
There is corroboration between the evidence of PW1 and PW2. PW
3 Unnati is a child witness. She has also narrated the incident in her
evidence by stating that on 12.8.2017 her aunt i.e. victim came to
tuition class to collect her back. At that time accused asked her aunt
to prepare tea for him. Thereafter, accused pulled her aunt in
kitchen and assaulted her. PW4 Medical Officer has proved medical
certificate (Exh.24). PW5 Rakesh More is a panch witness and
through his evidence prosecution has proved spot panchanama
(Exh.26) and seizure panchanamas of clothes of victim and accused
(Exh.27 & 28). PW6 is sisterinlaw of victim and mother of Unnati.
She is in police department. She has also narrated the alleged
incident in her evidence. PW7 Investigating Officer through her
evidence has proved FIR (Exh.49, receipts of muddemal (Exh.50 &
51), letters issued to Medical Officer, Magistrate (Exh.52, 53 & 54),
reports received from Kalina lab in respect of seized cloths of victim
and accused (Exh.56 & 57). Further, it is submitted that by
examining aforesaid seven witnesses prosecution has proved that
accused has committed rape on victim. Prosecution further relied
upon the case laws as under :
1] 2010 DGLS (SC) 517 (Supreme Court), Vijay @ ChineeVersus State of Madhya Pradesh
2] 2010 All SCR 2526, Satpal Singh Versus State of Haryana
7 S.C.413/2017 Judgment
By inviting my attention towards ratio of above case laws,
evidence on record, Ld. APP prayed for conviction.
8/ On the other hand, with an intention to obliterate the
allegations, Ld. Defence Counsel vehemently argued that on perusal
of entire testimony of prosecution witnesses, it seems that
prosecution failed to establish its case beyond all reasonable doubts.
In medical report (Exh.24) there is no injury on private part or chest
of victim. Accused is not referred for medical examination by the
Investigating Officer to bring on record any injuries caused to him
during alleged incident, as victim has stated in her crossexamination
that she has assaulted accused by pilers and scratched him on his
hand, neck and jaw. Not referring accused for medical examination
clearly shows that there was no injury on the person of accused. Ld.
Defence Counsel further argued that though there was hue and cry of
victim for one hour in the house of accused, not a single person from
neighborhood gathered at the spot of incident to rescue the victim.
Prosecution has not examined a single independent witness to prove
its case. Further C.A reports (Exh.56 and 57) are negative.
Complaint is singed by husband. By inviting my attention towards
cross of prosecution witnesses, Ld. Defence Counsel submitted that
there are contradictions and omissions in the evidence of prosecution
witnesses which fatals the entire case of prosecution. Except victim
and child witness Unnati all the prosecution witnesses are hearsay
witnesses. By inviting my attention towards crossexamination of
Investigating Officer, Ld. Defence Counsel submitted that the
Investigating Officer has given such admissions which fatals the
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entire case of prosecution. Further, it is submitted that there is no
consistency in the evidence of prosecution witnesses. Hence,
testimony of these witnesses cannot be relied upon. Further the
defence of accused is that there was demand of money by the
complainant and her relatives. During course of argument, Ld.
Defence Counsel placed his reliance on the following case laws and
by inviting my attention towards ratio of the same and he prayed for
acquittal.
1] Criminal Appeal No.264 of 2020 arising out of SLP(Criminal) No.3780/2018 (Supreme Court), SantoshPrasad @ Santosh Kumar Versus The State of Bihar
10/ Taking into consideration facts of the case, evidence on
record and rival submissions made at bar, in my candid opinion,
before coming to any conclusion, it will be just and proper to go
through the evidence adduced on behalf of prosecution, because, the
defence did not feel it necessary to adduce evidence to obliterate the
charges leveled against them. During course of recording statement
of accused under Sec.313 of Cr.P.C., no specific defence is taken.
11/ It has come in the evidence of PW1 complainant that on
the date of incident she went to tuition class in Shantaram Building
at about 12.30 p.m. 34 other students were also present in the
house of accused. Further it has come in the evidence of this witness
that accused asked the other students to leave the class and asked
the complainant to prepare tea for him. When complainant replied
that she does not know how to prepare tea, at that time accused
9 S.C.413/2017 Judgment
dragged the complainant in the kitchen and tried to remove clothes
from the person of victim. The complainant resisted and shouted.
This incidence was going on for one and a half hour. Further it has
come in the evidence of this witness that accused removed the
clothes of complainant forcibly and committed rape against her wish.
At that time niece of complainant Unnati was sitting in the adjacent
room. Further it has come in the evidence of this witness that she
narrated the incident to her husband and relatives. All of them had
been to the house of accused and brought the accused to the police
station and lodged complaint.
12/ On perusal of testimony of this witness it seems that the
alleged incident was going on for one and a half hour. At that time
complainant was shouting and asking for help. It is pertinent to note
that the spot of incident is a room in the building. There are
neighborers. More particularly niece Unnati was present in the
adjacent room. In such a set of circumstances, it is unbelievable that
neither the neighborers nor any persons came to the spot for the help
of the complainant. It is pertinent to note that during course of
investigation the Investigating Officer also did not feel it necessary to
record statement of neighborers. In such a set of circumstances,
testimony of PW1 complainant seems to be exaggerated one and not
trustworthy. It is pertinent to note that during course of recording
statement of complainant under Section 164 of Cr.P.C. before the
Magistrate, the complainant did not disclose the name of accused.
This evidence also creates doubt in my mind about genuineness of
complaint.
10 S.C.413/2017 Judgment
13/ Prosecution has also examined minor Unnati and her
statement is also recorded by the Magistrate under Section 164 of
Cr.P.C., but on perusal of the same no incriminating evidence come
on record to inspire me to come to conclusion that accused has
committed offence in question.
14/ As far as evidence of PW2 is concerned, he has narrated
the incident as stated to him by the complainant. He is not eye
witness to the incident. There are several contradictions in the
testimony of complainant and PW2 and PW3. This fact also create
doubt in my mind about genuineness of complaint.
15/ As far as evidence of PW4 Dr. Inamdar is concerned,
during course of examinationinchief itself she stated that when the
patient was brought before her, the patient had changed her clothes
and washed her private part. Hence, it was difficult for her to come
to conclusion that whether there was recent sexual intercourse on
victim. It will not be out of place to mention here that as per theory
of prosecution the alleged incident took place in the afternoon and
suddenly on the same day victim was referred to the hospital for
medical examination. In view of the evidence of PW4 and medical
certificate issued by her, it seems that the prosecution has failed to
establish guilt of accused.
16/ As far as evidence of PW5 is concerned, he is panch
witness and police seized clothes of complainant and accused before
him. This fact is not much disputed by the defence. Hence, in my
11 S.C.413/2017 Judgment
opinion evidence of this witness is not that much useful to the
prosecution to bring home guilt of accused.
17/ As far as evidence of PW6 Vijaya is concerned, she is
sisterinlaw of complainant. She narrated the incident as stated by
the complainant to her. On perusal of testimony of this witness, in
my candid opinion testimony of this witness is not much useful to the
prosecution to bring home guilt of accused as there is no
corroboration from independent witness.
18/ On perusal of evidence of PW7 Investigating Officer it
seems that she has investigated the matter. After completion of
necessary investigation she submitted chargesheet. It is pertinent to
note that as per theory of prosecution while protesting to the alleged
incidence complainant made scratch on the face and body of
accused, but during course of crossexamination the Investigating
Officer admitted that when she met with accused she found no
scratches on the person of accused. As per theory of prosecution
while resisting to the accused complainant used pilers to protect
herself from accused. But during course of investigation the
Investigating Officer did not feel it necessary to seize the pilers which
is alleged to be used by complainant.
19/ During course of argument Ld. APP placed her reliance
on the case law reported in 2010 DGLS (SC) 517 (Supreme Court),
Vijay @ Chinee Versus State of Madhya Prades. It is held by
Hon'ble Apex Court that :
12 S.C.413/2017 Judgment
“An illiterate rustic village girl having no sense/ estimate/ assessment of time and place, found herself apprehended by the appellant and his accomplices and forced to surrender under the threat to life, it is quite possible that she could not even raise hue and cry. She had no option except to surrender.It appears to be a case of nonresistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix cannot be held to be unnatural. No dispute regarding the placeof occurrence and the incident that occurred. The defence could not establish that it was a case of consent.”
On perusal of ratio of above case law, I am of the candid
opinion that the same is not applicable to the case in hand because
the alleged incidence was going on for one and a half hour. The
complainant was shouting for hand and a half hour for help and it is
pertinent to note that the spot in question is crowdy area. More
particularly Unnati was sitting in the adjacent room. In such a set of
circumstances, ratio of the above case law is not applicable to the
case at hand.
20/ The Ld. APP also placed reliance on the case law reported
in 2010 All SCR 2526, Satpal Singh Versus State of Haryana. It is
held by Hon'ble Apex Court that :
“Delay in lodging the FIR has been satisfactorily explained. Testimony of prosecutrix that accused took her to the nearby wheat field and raped her corroborated by medical evidence. There was resistance by the prosecutrix and thus, it cannot be held that she had voluntarily participated in the sexual act. There had been no enmity between the two families, and, therefore, there could be no reason for the prosecutrix to falsely implicate accused. Conviction of accused hence proper.”
On perusal of ratio of the above case law it is pertinent to
13 S.C.413/2017 Judgment
note that there is no delay in lodging the complaint and the Ld.
Defence Counsel also did not raise objection about the delay. It will
not be out of place to mention here that there is no delay in lodging
complaint. It does not mean that the prosecution has proved its case
beyond all reasonable doubts. In view of the above facts, ratio of the
above case law is not applicable to the case at hand.
21/ On the other hand Ld. Defence Counsel invited my
attention towards the case law reported in Criminal Appeal No.264
of 2020 arising out of SLP (Criminal) No.3780/2018 (Supreme
Court), Santosh Prasad @ Santosh Kumar Versus The State of
Bihar. It is held by Hon'ble Apex Court that :
“Having gone through and considered the deposition ofprosecutrix, we find that there are material contradictions. Notonly there are material contradictions, but even the manner in which the alleged incident has taken place as per the versions of prosecutrix is not believable.
22/ In the present case also the theory put forth by the
prosecution seems to be unbelievable because the alleged incident
was going on for one and a half hour. The complainant/victim was
shouting for help. The spot of incident is crowdy. In such a set of
circumstances, it is unbelievable that no one has heard the noise and
came to the help of complainant. The manner in which the
occurrence is stated to have occurred is not believable. Therefore, in
the facts and circumstances of the case the solitary version of the
prosecutrix cannot be taken as a gospel truth at face value and in the
absence of any other supporting evidence, there is no scope to come
14 S.C.413/2017 Judgment
to conclusion that prosecution has succeeded in establishing its case.
It will not be out of place to mention here that the Forensic Science
Laboratory report is negative. In such a set of circumstances, it will
not be just and proper to come to conclusion that prosecution has
proved its case beyond all reasonable doubts. In view of the above
facts and reasons, I have no hesitation to record my finding in the
negative to point No.1 and I proceed to pass the following order :
: O R D E R :
1] Accused Upendra Naresh Makwana is hereby acquitted for
offence punishable under Sec.376 of IPC.
2] Accused is in jail. He shall be released forthwith if not
required in any other case.
3] Accused shall furnish PB and SB of Rs.15,000/ as per
Sec.437(A) of Cr.P.C.
4] Muddemal property being worthless, be destroyed after
appeal period.
5] Dictated and pronounced in the Open Court.
Thane. (A. S. Pandharikar)Dt:09/12/2020 Adhoc District Judge2 and
Addl. Sessions Judge, Thane.