Criminal Appeal No. 325 of 2012

18th July, 2013

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mrs. N.P. MEHTA

JUDGMENT

JUDGMENT :- The appellant has been convicted for the offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, in default, R.I. for one year. He feels aggrieved by the said judgment and order of the learned trial Court and has, therefore, moved this Court by filing the present Appeal.

2. The appellant was prosecuted for the offences punishable u/s.376 of the I.P.C. and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989. He has, however, been acquitted of the offence punishable u/s. 3(1)(xii) of the Atrocities Act, 1989.

3. The victim-girl by name, Pooja was staying with her parents in the area known as 'Gumgaon'. The appellant is also a resident of the same village. The parents of the victim-girl were earlier tenants of the appellant. After leaving the premises of the appellant, they had been staying in the same village near the house of the appellant.

4. The victim girl was a deaf and dumb and was mentally retarded to some extent. It is alleged that taking advantage of these weaknesses of the victim-girl, the appellant had taken her to a nearby place and had a sexual intercourse with her. After the incident, Pooja was found in the Bazar and she was taken to her house by two of the villagers. Pooja narrated the incident through gestures. The matter came to be reported to police and the First Information Report was registered.

5. Spot Panchnama was drawn by the Investigating Officer. Statements of the witnesses were recorded. Clothes of the victim-girl and the appellant were seized and they were sent to the Forensic Science Laboratory. The victim-girl was examined by the Medical Officer to determine her age. She was also examined by the Medical Officer to ascertain whether she was subjected to sexual intercourse. The age of the victim-girl was reported to be around 14-years. The Medical Officer had reported that she had sexual intercourse, but the Medical officer had not reported as to whether there was any force at the time of sexual intercourse. No injuries were found on the person of the victim. After completion of investigation, charge-sheet was filed in the Court of learned Magistrate. The case was committed to the Court of Sessions for trial according to law. The learned trial Judge framed charge for offences punishable under section 376 of the I.P.C. and Section 3(1)(xii) of the Atrocities Act,1989. The appellant pleaded not guilty and claimed to be tried.

6. A total of 14 witnesses were examined in support of the prosecution case. PW 1-Asha Bangar is the mother of the victim-girl; PW 2-Gajanan Sonule was an acquaintance of the appellant who had seen the appellant taking the victim-girl with him; PW 3-Keshao Niwant was a Panch witness; PW 4-Dinesh Patil was a person who had taken Pooja from Bazar to her house. At this stage, it may be stated that PW 4-Dinesh Patil has not supported the prosecution case. PW 5-Geeta Paul is stated to be an expert in teaching the mentally retarded, deaf and dumb students and she can understand the language by gestures. Her help was taken to record statement of Pooja. PW 6-Keshav Dhobale is the Panch witness, but has not supported the prosecution case. PW 7-Sheikh Shetty is also a Panch witness in whose presence the appellant had allegedly shown the place of the offence. PW 8-Guddu Sheikh is the witness in whose presence statement of Pooja was taken. PW 9-Sister Jotsna Merry was working as a teacher and thereafter as a Headmistress of Jivodaya Special School for mentally challenged persons. She, in her evidence, had stated that the date of birth of Pooja, as per their record of School, is 7th October, 1994. PW 10-Dr. Prashant Barve is the Medical Officer who had certified that Pooja was mentally retarded, deaf and dumb. PW 11-Chindhu Shirsath is the Executive Magistrate who had held identification parade, in which the appellant was identified by Pooja. PW 12-Dr. Rupali Deshpande had opined that Pooja was capable of having sexual intercourse and she had sexual intercourse before being brought for medical examination. No injuries were found on near or on genitals. PW 13-Dilip Gawai had recorded the F.I.R. and PW 14-Mohankumar Dahikar had carried out further investigation of the case.

7. Before I proceed further, it is necessary to be stated that the victim girl was not examined before the trial Court as a witness. Judgment of the trial court is based on the evidence of mother of the victim-girl and the teacher who could understand the gestures of the victim-girl. The learned trial Judge has recorded in his judgment that she had verified in the Court that mother could understand the gestures of her daughter. It is on this basis that she had relied upon the evidence of mother of Pooja. The finding of the learned trial Judge that Pooja was subjected to sexual intercourse by the appellant is based on the evidence of mother of Pooja and the teacher teaching in the school for mentally challenged persons. I do not think that discussion of rest of the evidence is necessary in this judgment inasmuch as in the absence of evidence of the victim-girl, rest of the evidence is absolutely useless. If the statement of the victim-girl could be recorded with the help of an expert and if mother of the victim girl could understand the language of victim-girl by gestures, her evidence ought to have been recorded in camera with the help of expert and her mother. The statement of the learned trial Judge is totally based on hearsay evidence. The judgment needs to be set aside. Hence, I pass the following order :

ORDER:

The Appeal is allowed.

The judgment and order dated 31.07.2012 passed by learned Addl. Sessions Judge, Nagpur in Sessions Case No. 32/2008 is set aside. The appellant is acquitted of the offence punishable under Section 376 of the Indian Penal Code. His bail bonds shall stand cancelled. Fine, if any paid by the appellant, shall be refunded to him.

Appeal allowed.