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2020 Supreme(Bom) 881
IN THE HIGH COURT OF BOMBAY
Prasanna B Varale, V.G. Bisht, JJ.
State Of Maharashtra - Appellant
Versus
Ashok Tukaram Dhamne - Respondent
Criminal Appeal No. 346 of 2004
Decided On : 25-09-2020
H.J. Dedhia, Advocate, Sujay Gawade, Advocate, Ms Ram And Company, Advocate
The main legal point established in the judgment is the requirement for the prosecution to provide credible and consistent evidence to establish the guilt of the accused persons in cases of alleged sexual assault and rape.
Headnote:
Rape - Criminal Law - Indian Penal Code, Sections 376, 342, 323 read with 34 - The judgment discusses the evidence and material presented in the case of alleged rape and assault. The court analyzes the testimonies, contradictions, and omissions in the evidence, and concludes that the prosecution failed to provide credible evidence to hold the accused persons guilty.
Fact of the Case:
The prosecutrix alleged that she was sexually assaulted and raped by the accused persons in a shop. The prosecution presented oral and documentary evidence to support the charges. The accused persons denied the allegations and claimed false implication.
Finding of the Court:
The court found that the evidence presented by the prosecution, including the testimonies of the prosecutrix and her mother, contained material contradictions and omissions. The court observed delay in lodging the FIR, non-examination of independent witnesses, and suppression of evidence by the prosecution. The court concluded that the evidence was insufficient to hold the accused persons guilty.
Issues: The issues revolved around the credibility of the prosecutrix's testimony, the presence of material contradictions and omissions in the evidence, and the failure of the prosecution to provide credible evidence to establish the guilt of the accused persons.
Ratio Decidendi: The court's decision was based on the scrutiny of evidence, including the testimonies, medical reports, and documentary evidence. The court highlighted the contradictions and omissions in the testimonies of the prosecutrix and her mother, and the absence of credible evidence to support the charges.
Final Decision: The Criminal Appeal was dismissed as the court found the evidence presented by the prosecution to be insufficient to establish the guilt of the accused persons.
JUDGMENT
Prasanna B. Varale, J. - The present Criminal Appeal is preferred against the judgment and order passed by the Learned 4th Additional Sessions Judge, Nashik dated 27th November, 2003 in Sessions Case No. 167 of 2002, whereby Respondents herein (Orig. Accused Nos. 1 to 6) were acquitted for the offences charged against them.
2. Heard learned APP, Mr H J Dedhia for the Appellant State and Mr Sujay Gawade for Respondent Nos. 1 to 4 and 6. (Respondent No. 5 during pendency of the Appeal expired.)
3. The case of the prosecution is reflected through PW 1 (Prosecutrix), through first information report based on statement of prosecutrix recorded in Bytco Hospital, Nashik Road on 05th January, 2002. PW 1(Prosecutrix) stated that her brother, namely, Rajendra along with herself were running a shop on rental basis since year 1999 which is situated in the premises of one Pavan Apartment. Accused No. 3 Sukhdeo Maruti Gawli was the owner of the said shop. It was further stated that on an assurance given by Accused No. 3 Sukhdeo who was a military personnel that he would arrange for an employment for her brother in military services, therefore, mother of prosecutrix and her brother gave an amount of Rs. 1,00,000/- to Accused no. 3. Accused No. 3 Sukhdeo failed to provide any employment to Rajendra in military services, as such, Rajendra and his mother as well as prosecutrix made a demand to return the said amount. Accused No. 3 Sukhdeo instead of returning the said amount has provided the said shop on rental basis and it was agreed between the parties to adjust the amount of rent as against the amount of Rs. 1,00,000/-. Accused No. 3 Sukhdeo was insisting for vacating the shop. As against demand of Accused No. 3 Sukhdeo, the brother Rajendra and prosecutrix were insisting for continuation of his shop till the entire amount of Rs. 1,00,000/- is adjusted against the rent.
4. She further stated that on 05th January, 2002 at about 9.00 a.m. she reached to the shop. As per daily routine opened and cleaned the shop and was sitting in the shop. At about 9.15 am Accused no. 3 Sukhdeo entered in the shop and Accused Nos. 1 and 2 followed the Accused no. 3. Accused no. 3 Sukhdeo then directed Accused nos. 1 and 2 to commit such an act leading to suicide by prosecutrix and then also stated that they should not leave any evidence of their misdeeds. Accused no. 3 Sukhdeo then closed the shutter of the shop. As per the statement of prosecutrix Accused no. 3 was standing outside the shop, whereas Accused nos. 1 and 2 were inside the shop. Thereafter, Accused nos. 1 and 2 removed condom from the pocket of their trousers and then by applying condom Accused nos. 1 and 2 sexually exploited the prosecutrix one after the another. She further stated that Accused Nos. 1 and 2 removed all the clothes from the person of the prosecutrix. She was forcefully lie down and both the accused person committed rape on her. She further stated that both the accused persons had a bite on her cheek. She further stated that in her resistance she suffered certain injuries on her left knee and then accused nos. 1 and 2 opened the shutter. She further stated that three ladies were standing outside the shop, namely, one was wife of accused no. 3, one was Smt. Takate and another was daughter of Takate Vaishali. She further stated that the ladies were standing outside the shop pushed undergarments and petticoat in front of the shutter and they gave slaps to her. She further stated that though she raised hue and cry none rushed to help her. She further stated that within a short span her mother reached to spot of incident. Accused no. 3 gave slaps to mother of prosecutrix. Mother of prosecutrix immediately shifted prosecutrix to Nashik Road police station in auto rickshaw. The police personnel available in the police station referred the prosecutrix to Bytco Hospital for treatment.
5. On statement of prosecutrix which is recorded in Bytco Hospital, Nashik Road first information
