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CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 401 / 1998
Sunil Raghunath Mhase aged about 29 years, R/at Varegaon, Taluka Karjat, Dist. Raigad. .. Appellant
Vs.
The State of Maharashtra .. Respondent
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Shri. K.K. Malpathak, Advocate for the Appellant.
Smt. Sharmila Kaushik, APP for State/ Respondent.
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ORAL JUDGMENT
1. Aggrieved by the conviction under Section 354 of the Indian Penal Code, 1860 and sentence to sufer rigorous imprisonment for one year and fne of Rs. 2000/- recorded by the learned Sessions Judge, Thane vide judgment dated 23rd February, 1998 in Neeta
2. Heard. Mr. Malpathak, learned Counsel for the appellant and learned APP for State.
3. With their Assistance, I have perused the evidence and relevant exhibits.
4. Prosecutions’ case in brief is that, the father of the victim was working in Kamgar Hospital and in Hospital Campus, fat/ residential quarter, was alloted to him on 4th foor of a building, where he was living with wife and daughter. Complainant is mother of the victim. In the evening of 28th March, 1995, complainant could not trace whereabout of her minor 3 ½ old daughter and while searching her, she found daughter in the company of the accused, on the terrace, above 4th foor in objectionable state/ condition. After seeing daughter in such a condition, complainant raised alarm, whereupon the two next door neighbours of the complainant responded her cries and came on the terrace, spot of the incident. Complainant would say that accused apologized for alleged acts and went to his room. Complainant would assert that at the relevant time, her husband was not at home and she did not report the incident immediately to him, since the guests were expected in the same evening. Thereafter parents of victim sought advice of Dr. Kadam, a residential medical ofcer attached to the Hospital. Advice of Dr. Kadam was sought on 29th March, 1995 at about 03:30 pm. The FIR was lodged vide Crime No. 68/1995 under Section 354 of the Indian Penal Code, 1860, on 30th March, 1995.
5. After completing the investigation, the fnal report was fled whereupon the learned Sessions Judge framed a charge under Section 376 (2) (f) r/w 511 of the IPC.
6. In support of the charge, prosecution had examined mother of victim as PW-1; neighbour Sushma Kamble PW-2; Sudha Kadam- PW-3, Doctor Kadam PW-4; father of victim PW-5 and Investigating Ofcer PW-6. Upon appreciating the evidence the learned trial Court acquitted the accused of the ofence punishable under Section 376 (2) (f) read with 511 of IPC, but convicted for the commission of ofence punishable under Section 354 of IPC. The trial Court to great extent relied on the evidence of victim’s mother, which was found consistent and reliable.
7. Before adverting to the submissions of the appellant and the State, let me state undisputed facts, discerned from the evidence;
(i) Complainant did not disclose the incident immediately to husband, since guests were expected on the same day;
(ii) Sushma Kamble (PW-2) next door neighbour, turned hostile to the prosecution;
(iii) The accused and his friends were unauthorisably occupying a room on 4th foor and as such the accused was next door neighbour of the complainant;
(iv) Two witnesses PW-2 and PW-3 were also occupying room on
(v) Though the building was occupied by 40 tenants, prosecution chose to examine next door neighbours of the complainant i.e. PW-2 and PW-3;
(vi) That soon after the registration of the subject crime, the accused and his friends vacated the room which they were occupying on 4th foor of the building;
(vii) The occupants of the building in the hospital campus have formed a grievance committee to resolve the problems of the tenants and PW-4 Dr. Kadam was one of the members of the committee.
8. In the back drop of the aforesaid facts, the defense of the accused is, that since he was not vacating the room on 4th foor, the occupants of tenements, on 4th foor conspired and hatched a conspiracy and resultantly fastened false case against him.
9. Keeping in mind, the defense and the undisputed facts unfolded in the evidence, narrated above, I will appreciate the evidence of witnesses.
10. So far as the evidence of mother of victim is concerned; it may be stated that this witness attempted and made all possible eforts to improve her testimony by suggesting that accused objectionable acts were not limited to outrage her modesty, but would claim that accused had exposed his private part, when the victim’s under-pant was pull down to her knees. However, the fact suggesting aggravated sexual assault was not stated to the police. In cross-examination, she admitted that accused and his friends were proving to be a nuisance to neighbouring occupiers. She would admit that after lodging the FIR, the accused and his friends vacated the premises and would also admit that contents of the complaint (FIR) were dictated by her husband to police. Admittedly, complaint was lodged two days, after consulting Dr. Kadam. His testimony as PW-4 suggests that prosecution has not placed correct facts and / or the fair investigation has not been carried out. Herein, victim’s father reported the incident to Dr. Kadam on 29th March, 1995 and thereafter FIR was lodged. Dr. Kadam’s evidence suggests that victim’s father had submitted a written complaint to the grievance committee and in the crossexamination, he was suggested that he had advised and asked victim’s father to secure vacant possession of the room, which was occupied by the accused. This suggestion was refuted by Dr. Kadam. However Investigating Ofcer testifed that Dr. Kadam stated in his statement that he had advised the complainant to secure the vacant possession of room occupied by the accused. To be precise, Investigating Ofcer testifed, thus “It is true that in the statement of Dr. Kadam he has stated that he had advised the complainant to get the room of accused vacated.”. As such evidence of Dr. Kadam and of victim’s father clearly suggest dispute was pending in respect of ‘room’ occupied by the accused when FIR was lodged and also suggests Dr. Kadam had asked victim’s father to secure vacant possession of the room occupied by the accused. Therefore, it is to be held the prosecutions’ evidence probablised the accused defense and creates a doubt and renders prosecutions’ case uncertain.
11. Thus, conjoint reading of evidence of Dr. Kadam and Victim’s parents defense of the accused that he has been falsely implicated in the case, so as to compel him to vacate room, stands probablised.
12. Now, let me look at the attendant circumstances, which in my view, renders the case of prosecution questionable. The frst circumstance is that there is no acceptable explanation for the delay in lodging the complaint. Admittedly, Dr.Kadam was not residing in the building, where the incident had taken place. As such, aggrieved parents, would frst consult Dr. Kadam and fle report on 3rd day of the incident is far-fetched and was unlikely. As a natural conduct, parents of victim were expected to take help of residents of the building, who were 40 in number. But instead approaching them, parents had approached Dr.Kadam, on the second day of incident and only thereafter the FIR was lodged on 30th March, 1995. The two witnesses i.e. PW-2 and PW-3 were immediate neighbours of the victim, who admitted that the accused and his friends were causing nuisance to them. Infact, PW- 2 immediate neighbour of the victim did not support the prosecution case & said she had not gone to terrace after hearing commotion. This witness would however admit that the accused & his friends were causing nuisance to entire building and the residents amongst themselves had decided a drive them out. She would further say that she came to know the incident after crime was registered. It is also interesting to note that the prosecution had neither examined nor recorded statement of any residents of the said building, as a witnesses. If such a ghastly and frightful incident had taken place, the residents would not have chosen to remain silent, but would have retaliated and reacted immediately against the accused and his inmates. Surprisingly, though a building was occupied by the 40 tenants, none of them had taken any steps as against the accused and his inmates though 3 ½ old year girl was sexually assaulted in the building premises.
13. Thus, the conduct of eye-witness is inconsistent with ordinary course of human nature, and since there are inherent improbabilities in the prosecution story. I do not think, it would be safe to convict the appellant on testimony of victim’s mother. In the case of Selvaraj Vs. State of Tamil Nadu (1976) 4 SCC 343, the hon’ble Apex Court held that; On an appreciation of evidence if the prosecution story was found highly improbable and inconsistent of ordinary course of human nature, fnding of guilt cannot be upheld.
14. On the facts of the present case it can be said without hesitation that prosecution has miserably failed to prove the alleged ofences beyond doubt by adducing cogent and trustworthy evidence and therefore a beneft of doubt must be given and extended to the appellant. In the circumstances, the impugned conviction and the sentence passed by the trial Court in Sessions Case No. 519/1995 is quashed and set aside.
15. Resultantly, appeal is allowed. The bail bond executed is cancelled and the surety is discharged.
16. Appeal is disposed of in the aforesaid terms. (SANDEEP K. SHINDE, J.)