2015 ALL MR (Cri) 4697
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. SADHANA S. JADHAV, J.
Gorakh Baban Mhasane & Anr. Vs. The State of Maharashtra
Criminal Appeal No.705 of 2014,Criminal Application No.1396 of 2014
14th November, 2014.
Petitioner Counsel: Mr. ANIKET VAGAL
Respondent Counsel: Mr. J.H. RAMUGADE
(A) Criminal P.C. (1973), S.374 - Penal Code (1860), Ss.376(2)(g), 342, 506, 34 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), S.3(1)(x) - Appeal against conviction - Delay in filing appeal - Condonation - Accused had an impression that they were co-accused in another criminal appeal filed by other accused in 2008 - That appeal was allowed wherein other accused was acquitted in 2014 - It is only thereafter, that accused realized that no appeal was filed on their behalf - Thus, they have approached court in year 2014 - Hence, delay condoned. (Para 22)
(B) Penal Code (1860), Ss.376(2)(g), 342, 506, 34 - Criminal P.C. (1973), Ss.154, 164, 145 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), S.3(1)(x) - Rape - Conviction in absence of substantive evidence - Sustainability - Statement of prosecutrix (since deceased) u/S.154, is FIR upon which investigation had commenced - Prosecutrix expired prior to commencement of trial - No efforts taken to examine husband of prosecutrix who accompanied her to police station - FIR cannot be substantive piece of evidence - Accused had no opportunity to cross examine prosecutrix - Moreover, accused already undergone 8 years and 2 months in jail - Hence, conviction of accused, not sustainable. (2004) 13 SCC 134 Foll. (Paras 14, 20)
(C) Criminal P.C. (1973), Ss.154, 164 - Penal Code (1860), Ss.376(2)(g), 342, 506, 34 - FIR - Statement u/S.154 - Conviction on basis of - Sustainability - Statement of prosecutrix u/S.154 is only to set law into motion - Her statement was not recorded u/S.164 and thus not on oath - No opportunity for accused to cross-examine witness - Thus, conviction not sustainable in eyes of law. (Para 18)
JUDGMENT :- Appellants herein along with Bajirao Mhasne have been convicted for offence punishable under section 376 (2) (g) of Indian Penal Code and sentenced to suffer 10 years rigorous imprisonment and fine of Rs. 1000/- in default to suffer further rigorous imprisonment for one month. Appellants are also convicted for offence punishable under section 342 of Indian Penal Code and sentenced to suffer one year rigorous imprisonment and fine of Rs. 1000/- in default to suffer further rigorous imprisonment for one month. Appellants herein are also convicted for offence punishable under section 506 (II) of Indian Penal Code and sentenced to suffer one year rigorous imprisonment and fine of Rs. 1000/- in default to suffer further rigorous imprisonment for one month. Appellants are also convicted for offence punishable under section 3 (1) (xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer six months rigorous imprisonment and also to pay a fine of Rs. 1000/- in default to suffer further rigorous imprisonment for one month. Appellants are also convicted for offence punishable under section 3 (1) (xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer six months rigorous imprisonment and also to pay a fine of Rs. 1000/- in default to suffer further rigorous imprisonment for one month by Adhoc Additional Sessions Judge -2, Nashik in Sessions Case No. 148/2008 vide Judgment and Order dated 28/08/2008. Being aggrieved by the said Judgment and Order, appellants herein have presented this appeal.
2. It is the case of the prosecution that on 25/04/2006, prosecutrix (since deceased) along with her husband Godiram Thakare approached Igatpuri Police Station and lodged a report alleging therein that on 22/04/2006, she had been to the forest to collect fuel wood and her husband had been to Borli to attend the marriage of a family member of her sister Thamabai. She sold the fuel wood 'Cangu' for Rs. 35/-. She had proceeded to purchase grocery from the said amount. At that time, original accused no. 1 was sitting in dilapidated courtyard of Lahanubai Pandit and original accused no. 2 Santosh Tangade was standing nearby. Appellant no. 1 called her. Since she was acquainted with them, she went towards original accused no. 1. He assured to give her a job. They took her inside the house. Santosh i.e. appellant no. 2 had latched the house from outside and she was ravished by original accused no. 1 in the dilapidated house. She was trying to rescue herself and hence, she ran towards forest. She was accosted by accused no. 2 and Bajirao Mhasne. Accused no. 2 had solicited sexual favours from her and was attempting to catch hold of her.
3. On the next day, her husband returned to village Borli. She informed her husband about the said incident. Thereafter, she, along with her husband had proceeded to the house of the accused persons. They were threatened of dire consequences. They returned home on 24/04/2006 and thereafter, complainant had been to the police station along with her husband and had lodged the report. On the basis of the report, crime no. 49/2006 was registered against the accused for offences punishable under sections 376 (2) (g), 342, 506 r/w 34 of Indian Penal Code. Since the prosecutrix belonged to the scheduled tribe, offence was also registered for offence punishable under section 3 (1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), 1989. Present appellants were arrested on 04/05/2006. Investigation was completed and chargesheet was filed. Accused were on bail during the pendency of trial.
4. Prosecution examined 9 witnesses to bring home the guilt of the accused. Prosecutrix has expired on 23/02/2007 and hence, she was not available for recording of substantive evidence at the time of trial.
8. P. W. 4 Dr. Yuvraj Pawar had examined appellant no. 2 i.e. Santosh Tangade and has proved the contents of the certificate which is at exhibit 26 and Xray plates which are at Exhibit 27 & 28. P. W. 4 had identified the original accused no. 2 in the Court. He had given an opinion that on the basis of ossification test and the Xray plates, age of original accused no. 2 was more than 19 years old.
9. P. W. 5 Vijay Aghat is brother of prosecutrix (since deceased). According to him, after the incident, prosecutrix (since deceased)had visited the house and narrated all the facts and thereafter, they went to the police station and lodged the complaint. It is alleged that accused Bajirao Mhasne had forced the prosecutrix to co-operate with the present appellants, or else, she would face dire consequences.
11. P. W. 7 Dr. Tejashree Ranade was attached to Civil Hospital, Nashik. She had examined the prosecutrix in the casualty department of the Civil Hospital. According to her, prosecutrix had given history of sexual assault and sexual intercourse by Santosh and Gorakh i.e. present appellants on 22/04/2006 between 3.00 pm to 4.00 pm. She has issued the certificate and proved the contents of the same which is at Exhibit 33.
12. P. W. 8 Jivansing Pardeshi was the police inspector, who was attached to Igatpuri Police Station. He has deposed before the Court that on 25/04/2006, he was present in the police station. Prosecutrix had approached the police station along with her husband and had lodged the report. He had reduced the report into writing as per the say of the prosecutrix. He has proved thumb impression of the prosecutrix. He has proved the contents of the F.I.R. He has arrested accused persons and had taken steps in the course of investigation. It is elicited in the cross-examination that P. W. 8 had not attested thumb impression of the deceased. He has also admitted that he had not recorded the statement of the witnesses. He had recorded the spot panchanama. He has also admitted in the cross-examination that there were no wrappers on the seized clothes. According to him, prosecutrix had stated that appellant had threatened her with knife. However, in the cross-examination, he has stated that knife was not produced before him by any of the accused.
13. P. W. 9 Ghansham Malegaonkar was working as Sub-Divisional Police Officer attached to Rural Division Nashik. Since the offence was registered under the provisions of Prevention of Atrocities Act, he has conducted the investigation. He has admitted in the cross-examination that he had not recorded the statement of the house owner i.e. Lahanubai Pandit.
14. The prosecutrix had expired prior to commencement of trial. The prosecution has not taken any efforts to examine the husband of the prosecutrix who had accompanied her to the police station. F.I.R. is proved through Investigating Officer and has been exhibited. In fact, F.I.R. is not a substantive evidence, it is a corroborative piece of evidence. Since the prosecutrix was not available at the time of trial, prosecution could have made efforts to examine the husband of prosecutrix.
"The object of Legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e. the interest of the accused."
It is further observed by the Hon'ble Apex Court that :
"except for a dying declaration and matters coming within the provisions of Section 27 of the Indian Evidence Act, 1872, no statement of any person made to a police officer in the course of investigation, if reduced into writing, could be used as evidence against accused. There was no restriction as to the extent of the right of an accused to cross-examine a prosecution witness concerning his statement to the police. Section 162 of the Code of 1898 prohibited the use of a statement reduced into writing, as evidence except any statement falling within the provisions of Section 32 of the Indian Evidence Act, 1872. The proviso to this section, however, expressly stated that in spite of the prohibition in the main provision, the accused could use such a statement to impeach the credit of the witnesses in the manner provided in the Indian Evidence Act of 1872. It will be seen therefore that until 1898 there was no restriction imposed upon the accused as to the extent of his right of cross-examination."
It therefore follows that the statement made under section 161/154 of Code of Criminal Procedure can be used only for contradicting a witness. The statement of prosecutrix (since deceased) is the F.I.R. upon which the investigation had commenced. It was a statement under section 154 of Code of Criminal Procedure. It is not a substantive evidence, but it is a corroborative piece of evidence. It can only be used to contradict its maker and no one else. Hence, F.I.R. in the present case which is proved by the Investigating Officer, cannot be treated as a substantive evidence. Investigating Officer could not have been contradicted in respect of the contents of the F.I.R.
"It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness."
18. The statement under section 154 of Code of Criminal Procedure is only to set the law into motion. It can be said that prosecutrix had set the law into motion. Her supplementary statement was recorded. In the present case, statement of the prosecutrix was not recorded under section 164 of Code of Criminal Procedure, 1973. In the eventuality that the statement was recorded under section 164, it could have been said that there was a statement on oath. However, in the absence of statement on oath and the fact that there was no opportunity for the accused to cross-examine the witness, conviction recorded on the basis of statement under section 154 of Code of Criminal Procedure would not be sustainable in the eyes of law.
19. Section 145 of the Indian Evidence Act casts a right in favour of the accused to confront the witness/complainant with his/her previous statement for a limited purpose i.e. establishing a contradiction in his/her evidence or for the purpose of impeaching the credit of the witness. An exception is carved out only in respect of section 32 of Indian Evidence Act where the statement of the deceased can be relied upon for the purpose of convicting the accused without there being any substantive evidence.
20. This Court has held that a conviction cannot be recorded in the absence of substantive evidence. F.I.R. cannot be substantive piece of evidence. Appellants had no opportunity to confront the prosecutrix with her report and to contest the credibility of the allegations levelled in the F.I.R. The conviction therefore, would be unsustainable in the eyes of law.
21. Appellants were arrested on 04/05/2006. Chargesheet was filed on 28/06/2006. They were enlarged on bail after filing of charge-sheet. They were taken into custody on 28/08/2008 and were in custody till 31/10/2014. Appellants have undergone 8 years and 2 months. Hence, it can be said that appellants have undergone the minimum sentence of 7 years contemplated for offence punishable under section 376 of Indian Penal Code.
22. Learned counsel appearing for the appellants submits that there is a delay in filing the present appeal, since appellants had an impression that they were co-appellants in criminal appeal no. 1256/2008 filed by Bajirao Mhasne. That Bajirao Mhasne had filed criminal appeal in the year 2008. Vide Judgment and Order dated 10/06/2014, appeal was allowed and appellant was acquitted. It is only thereafter, that the appellants had realized that no appeal was filed on their behalf and hence, they have approached this Court in the year 2014. Hence, appellants also deserves to be acquitted.
(i) Appeal is allowed.
(ii) Judgment and order dated 28/08/2008 passed by Adhoc Additional Sessions Judge-2 Nashik in Sessions Case No. 148/2008 is hereby quashed and set aside.
(iii) Appellants are acquitted of all the charges levelled against them.
(iv) Appellants be released forthwith, if not required in any other offence.
(v) Criminal Application No. 1396 of 2014 in Criminal Appeal No. 705 of 2014 stands disposed of.
Appeal stands disposed of.