The State of Maharashtra v. Ashok Tukaram Dhamne & Ors.

6. Whether any offence has been committed by any of the accused?

9. The learned Additional Sessions Judge on appreciation of evidence arrived at the conclusion that the evidence brought by the prosecution falls too short to hold accused persons guilty for the charges levelled against them and accordingly, recorded negative findings.

10. Learned APP, Mr H J Dedhia appearing for the Appellant – State vehemently submitted before us that the Trial Court failed to appreciate the evidence in proper perspective. It was submitted by the learned APP that the learned Trial Court ought not to have discarded the evidence of material witnesses who were the star witnesses, namely, PW 1 (Prosecutrix) and Radhabai Kekan (PW 2) mother of prosecutrix. It was also submitted by the learned APP that apart from the ocular testimonies of the witnesses, there was sufficient material in the form of the documentary evidence to support the prosecution case. It was also submitted by the learned APP that the learned Trial Court gave undue weightge to minor contradictions and omissions. Thus, the learned APP prayed that the Criminal Appeal be allowed.

11. Per contra, learned Counsel appearing for the Respondents submitted that no error is committed by the learned Trial Court. Learned Counsel appearing for Respondents submitted that on a thorough scrutiny of the evidence the learned Trial Court arrived at a proper conclusion that the prosecution case falls too short to hold the accused persons guilty. Learned Counsel appearing for Respondents then submitted that contradictions and omissions in the testimonies of the so called star witnesses are material contradiction and omission and the version of these witnesses failed to inspire the confidence of the Court on the contrary, it only supports the case of defence of the false implication in the crime. Thus, learned Counsel appearing for the Respondents prayed for dismissal of the Appeal.

12. With the able assistance of learned Counsel appearing for the respective parties we have gone through the evidence and the material placed before us. On going through the entire material, we are of the opinion that the learned Trial Court committed no error in appreciation of the evidence. We also find considerable merit in the submissions of learned Counsel appearing for the Respondents that the evidence of the so called star witnesses suffers from material contradictions and omissions and only supporting the defence of false implication. Moving a step ahead we may say that we are constrained to state that the scrutiny of material evidence lead to the conclusion that the case registered against the Accused persons – Respondents herein is by way of a counter blast to the proceedings initiated by Accused no. 3.

13. Now we may first refer to the evidence of PW 1 (Prosecutrix) and then Radhabai Kekan (PW 2) who is the mother of prosecutrix.

14. PW 1 (Prosecutrix) in her substantive evidence before learned Trial Court states that the Accused no. 3 is the owner of the premises i.e. shop and further she states that the shop being run by herself and her brother. She further states about parting of amount of Rs. 1,00,000/- to Accused No. 3 for providing an employment to her brother and then failure of Accused No. 3 to repay the said amount and then she states that she was running this shop on rental basis at Rs. 300 per month since year 1999. In so far as the incident dated 05.01.2002 is concerned, she deposed before Court that at about 9.00 a.m she opened shop and at that time Accused No. 3 came their and there was an exchange of words between accused no. 3 and the prosecutrix. Accused nos. 1 and 2 were followed Accused no. 3 and both of them entered in the shop. Accused no. 3 directed them to do something so that the prosecutrix commit suicide. She states that accused no. 3 came out of his shop and pulled shutter down, whereas, accused nos. 1 and 2 were inside the shop along with prosecutrix. She further states about her sexual exploitation at the hands of accused nos. 1 and 2. She stated that she became unconscious and accused nos. 1 and 2 threw her out of the shop in unconscious condition. She states that her mother reached the shop and she made an attempt to provide her saree but accused persons started beating her mother. She states that she narrated entire incident to her mother and her mother and herself proceeded to police station. After reaching police station, police referred her to Bytco Hospital. One Shri Mankar, PSI had arrived at hospital while she was under treatment. She stated that though Mr Mankar wanted to record her statement but Doctor who was present their told Mr Mankar to record the statement after half an hour as prosecutrix was not in a good condition to give statement. Accordingly, Mr Mankar again reached the hospital after sometime and she narrated the incident to Mr Mankar. Mr Mankar then recorded her statement. She further stated that she was admitted in the hospital for about 8 days. Then she identified the clothes shown to her and also identified the clothes worn by accused nos. 1 and 2. In her cross-examination material contradictions more particularly, on the aspect of rape committed by the accused nos. 1 and 2 as alleged by the prosecutrix are brought on record. Those contradictions rightly observed by the learned Trial Court are referred to in the judgment and for ready reference we reproduce herein below in verbatim: The prosecutrix in the F.I.R. (Exh.30) has contended that both the accused nos. 1 & 2 alternatively had sexual intercourse with her. IN her oral evidence she has however simply said that there was an attempt to commit rape on her by these accused. There thus appears major contradiction in the oral evidence and the F.I.R. In the F.I.R. she has stated that before having such sexual intercourse they applied condoms to their private parts., and then caught hold her and compelled to liedown on the floor, in the oral evidence however she said that for about 20 minutes accused were trying to catch her, and she was running inside the shop throughout this period, and accused nos. 1 & 2 were following her. There is nothing to this effect stated by her in the F.I.R. Omission in the F.I.R. of this fact is also material one to affect the credibility of her evidence. In the cross-examination she has said that when she was being tried to be caught by the accused nos. 1 & 2 she did not throw, any articles in her shop on the accused to protect herself. The record does not show that during this entire episode articles in the shop were damaged. On the contrary, in the photographs on record at Exh. 32 to 34, which are produced by the prosecution itself, and which prosecutrix admits to have been taken after the incident, it does not appear at all that the articles in the shop were damaged or dis-placed.

15. Rajendra Kekan – PW 3, who is the brother of prosecutrix, is a witness on the backdrop of the incident dated 05.01.2002, namely, payment of an amount Rs. 1,00,000/- to Accused No. 3 for recruitment in military services, his failure to provide the employment and also failure to return the amount. This witness then states about letting of the premises/shop on lease. He also states about the complaint lodged against PW 1 and 3 at the instance of Accused No. 3. In so far as incident dated 05.01.2002 is concerned, he states that at that time he was out of station, as such, this witness is not of much help to the prosecution.

16. Sampat Pawar – PW 4, who is the head constable attached to Nashik Road Police station, plays a very limited role in the investigation. It is important to note that PW 1 (Prosecutrix) though approaches police station on 05.01.2002 she only refers to act of assault. It can further be stated that it was expected of prosecutrix to disclose the act of sexual exploitation to the police officer when she approached to police station on 05.02.2002 and her silence only creates doubt about the truthfulness of the incident.

17. On the scrutiny of the version of the prosecutrix it revealed that there is delay in report and reason assigned for the delay only creates doubt about truthfulness of the report. The prosecutrix states that Mr Mankar attended the hospital and wanted to record the statement but doctor informed Mr Mankar that she was not in a condition to give statement and asked Mr Mankar to come after sometime.

18. Mr Mankar – PW 6 who is I.O. and he states about the steps taken by him in the process of investigation and the contradictions and omissions are brought on record through this witness. Mr Mankar deposed that initially on receipt of the information he reached the hospital at about 12.30. He further deposed that doctor in the hospital asked him to come back again after sometime and accordingly, he went to the hospital at about 2.00 p.m. There is nothing in the version of Mr Mankar to support and suggest that when Mr Mankar initially reached the hospital and prosecutrix was not in a position to give statement. We may also state that the document placed on record in the form of medial report at Exh. 44 shows that the prosecutrix had about seven minor injuries such as abrasion and contusion and considering nature of those injuries it is difficult to believe version of the prosecutrix that she was not in a position to give any statement when Mr Mankar reached to hospital on receipt of the information. Prosecutrix in her version stated that her mother reached the shop and she went to the police station and thereafter, the police machinery referred the prosecutrix to Bytco hospital, therefore, the record clearly indicates that mother of the prosecutrix was available all along but for the reasons best known to the prosecution no attempt was made to record the statement of the mother and statement of prosecutrix was recorded after six hours of the incident. Considering these facts the opinion drawn by the Trial Court that the delay in lodging the report is not explained and as such delay in lodging the report in this case is fatal to the prosecution.

19. It is the version of prosecutrix that the incident took place in the morning hours i.e. at about 9.30 a.m and there were atleast 50 passerby on the street at the relevant time. It is also came in the evidence that the road in front of this shop is a busy road. It also came in the evidence that there were adjusant shops. Now considering this scenario i.e. incident took place at about 9.30 am, there were adjacent shops to this shop wherein the alleged incident took place, there were 50 passerby on the street, and the version of prosecutrix that though she raised hue and cry none rushed to the place of incident, seems to be improbable and thus the version of prosecutrix becomes doubtful.

20. Pitambar Jadhav – PW 5, who is the medical officer at Bytco Hospital, Nashik Road. On 05.01.2002 he attached to Bytco Hospital as Casulty M.O. during 8 a.m. to 2 p.m. In clinical examination of prosecutrix he found following injuries on the person of prosecutrix:

1. Abrasion on right cheek, liniar finger, nail makr, two in number.

2. Tipical teeth mark two in number with abrasion just above the upper injury.

3. Contusion on left thigh on antero medical aspect of middle of left thigh. 5Cm. X 1Cm. Transverse.

4. Contusion over left leg on calf on middle area 2 Cm x 3Cm.

5. Abrasion over left foot on dorsom, near greattoe on medial size 1Cm. X 1Cm.

6. Finger nail mark over dorsom right forearm two in number.

7. Abrasion over left middle finger 1 Cm x 1Cm. On dorsom of middle phanelax.

8. She was complaining of pain over right shoulder. The medical evidence is also not supporting the ocular evidence of prosecutrix.

21. The learned Trial Court on the backdrop of the medical report made following observations: On examination there was slight tenderness. There were no injuries to her private part. There appears no injury to her right or left hand and legs, which could have been caused to her by the accused nos. 1 & 2 when she was caught hold by them, during the intercourse by another. Doctor has admitted that, all these injuries can be caused simultaneously in assault or scuffle. Thus the evidence on record rules out the possibility of her being raped by the accused nos. 1 & 2 even the attempt to commit the rape also does not appear to have been made-out.

22. In our opinion, the learned Trial Court committed no error in forming the opinion that the evidence on record rules out possibility of the prosecutrix being raped by accused nos. 1 and 2 even the attempt to commit rape does not appears to have been made out.

23. Per contra, the material placed on record in the form of the copy of the agreement shows that the brother of the prosecutrix agreed to occupy the shop only for a period of two years i.e. from 20.09.1999 to 20.08.2000 and agreed to deliver vacant possession of the shop on expiry of the period. Prosecutrix in her cross-examination admitted that on expiry of the lease period accused no. 3 demanded the possession of the shop. Prosecutrix deposed before Court that accused nos. 1 and 2 did not allow her to reached up to the shutter and for about 20 minutes she was running inside the shop and accused nos. 1 and 2 were trying to catch Now on the backdrop of version of the prosecutrix before the Court that she was running in the shop for nearly 20 minutes and accused nos. 1 and 2 were trying to catch her, if we peruse the evidence in the form of photographs exhibited before Court as Exhibit Nos. 32, 33 and 34 would not indicate any damage caused to the articles placed in the shop. It could not have been possible that prosecutrix was running in the shop to save herself from accused nos. 1 and 2 and accused nos. 1 and 2 were chasing her and in spite of these things articles in the shop would remained intact.

24. Learned Trial Court was justified in making the following observations: Considering the gravity, circumstances, and the allegations, the articles in the shop were bound to have been dis-placed or damaged. The probability therefore does not indicate that the accused nos. 1 & 2 in this manner had tried to have sexual assault on the prosecutrix.

25. Learned Trial Court was justified in accepting the defence theory of the false implication and we may state that the material placed on record would indicate that the case registered against the accused persons is nothing but a counter blast to the proceedings initiated by the accused no. 3.

26. The prosecution case also becomes doubtful on the backdrop of the fact that the prosecution examined two witnesses as eye witnesses, namely, PW 1 (Prosecutrix) and Radhabai Kekan (PW 2) who is mother of the prosecutrix. The record indicates that apart from prosecutrix and her mother’s statement, statement of some other witnesses were also recorded and the list of those witnesses find place in the charge-sheet but, for the reasons best known to the prosecution those witnesses, who could have been eye witnesses in all probability were not examined by the prosecution. An inference was drawn by the learned Trial Court that the witnesses were not examined by the prosecution for the reason that either they were not supporting the case of the prosecution or their version was leading to false implication of the accused persons.

27. In so far as testimony of the Radhabai – PW 2 who is mother of prosecutrix is concerned, the learned Trial Court specifically referred to contradictions in the statement of those two eye witnesses and we reproduce the same as follows: In the present case, in the statements of those two eye witnesses i.e. prosecutrix and her mother there are numerous contradictions and they are: I) The prosecutrix says that shutter was fully down, whereas her mother says that it was half open. II) The prosecutrix says that her mother came on the spot after she was raped, whereas the mother says that she was present there, and in her presence only accused no. 3 instigated the accused nos. 1 and 2 to do such thing so that the prosecutrix should commit suicide. III) The mother in the next breathe of the earlier statement says that when she reached there her daughter was found lying on the steps in half naked condition. IV) The prosecutrix said that accused nos. 4 to 6 assaulted her mother when she was thrown outside the shop, whereas mother says that accused nos. 5 provided the clothes to the prosecutrix. V) The prosecutrix says that when she was thrown outside the shop, she suffered head injury, whereas her mother does not say anything about it. The medical evidence does not say anything about the head injury to the VI) The prosecutrix says that her mother was beaten by the accused nos. 4 to 6, whereas the mother alleges that accused no. 4 only tried to snatch her hair and pushed her. VII) The prosecutrix says that she narrated the entire incident to her mother and then she herself and her mother went to the police station. The mother however did not tell anything about it to the police after they reached in the police station. VIII) In the statement before police, accused no.4 is alleged to have snatched the hair of the prosecutrix as so stated by the mother in her evidence bu the prosecutrix does not say anything about it.

28. Learned Trial Court was also justified in observing that the prosecution had suppressed genesis of crime. The learned Trial Court on appreciation of evidence find that there were as many as six factors making the prosecution case unreliable and they are as follows:

1) Delay in lodging the F.I.R.

2) Non-examination of the independent witnesses.

3) Contradictions in the oral evidence of the two witnesses who are closely related to each other.

4) Absence of explanation by the prosecution about the injuries on the person of accused no. 4.

5) Registration of non-cognizable case against the prosecutrix on the same day at about 10.20 a.m. against the prosecutrix.

6) Suppression on the part of the prosecution of the evidence to the genesis of the crime.

29. We also find considerable merit in the submissions of learned Counsel appearing for the Respondents that the Trial Court committed no error in appreciation of evidence and the contradictions and omission in the version of so called eye witnesses are the material contradictions and omissions and the only conclusion which can be drawn that the prosecution failed to bring before Court the credible evidence and evidence brought before Court was utterly insufficient to hold accused persons guilty.

30. On consideration and scrutiny of evidence, we are of the opinion that Criminal Appeal is devoid of merits. Resultantly, Criminal Appeal is dismissed.

31. This judgment will be Secretary of this Court. All concerned will act on production by fax or ( V.G. BISHT, J.) (PRASANNA B. VARALE, J.)