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Judgment
This appeal takes exception to the judgment and order dated 15th January 2007 passed in Sessions Case No. 8 of 2003 whereby the appellant/accused is convicted for the offences punishable under Sections 420 and 376 of the the Indian Penal Code, 1860 (for short “the IPC”) and sentenced to suffer rigorous imprisonment for one year and five years with fine of Rs.2000/-and Rs.1000/- respectively.
The facts which led to filing of this appeal can be narrated in brief as under :
On 19th September 2002, informant Suresh lodged FIR with Gholwad Police Station making grievance against the accused for cheating him for Rs.70,000/-. It was his case that the accused had taken Rs.70,000/- from him for employment of his daughter and son-in-law. The FIR came to be lodged with this allegation only. Later on, statement of the victim was recorded to claim that the accused had established forcible physical relationship with her, which constitutes an offence under Section 376 of the IPC.
The investigation into the crime was done with recording of statements of witnesses and inclusions of seizure of muddemal etc. The charge-sheet was filed against the accused before the competent Court. Charge was framed against him. He denied the charges, hence, the prosecution led evidence of the following witnesses: PW-1 Suresh Jivallya Kanhat, the complainant (Exh.6); PW.2 Sangita Suresh Kanhat (Exh.8); PW-3 Vilas Jivan Dhangada, the son-in-law of complainant, (Exh.9), PW-4 Mahendra Ramanlal Nahar (Exh. 10), PW-5 Laxman Babu Dhadaga (Exh.11). PW-6 Lata Gopal Kudada (Exh.17); PW-7 Ajay Babu Solanki (Exh.21); PW-8 Abut Bakar Siddiqui (Exh.24); PW-9 Dr. Sulakshana Ramnarayan Singh, Medical Officer (Exh.25); PW-10 Dilip Subhedar Gawade,Investigating Officer (Exh.28)
Learned Trail Court found the evidence led by the prosecution sufficient to prove charges against the accused and convicted him as stated hereinabove.
Learned counsel for the appellant/accused submits that from the evidence on record, more particularly, cross-examination of the victim, the offence under Section 376 of the IPC cannot be said to have been proved. It is his contention that the victim was major and the admissions given by her in the cross-examination shows that the relationship between the accused and victim was consensual in nature. On the point of offence under Section 420 of the IPC, it is his contention that there are material inconsistencies in the statement of the informant with regard to the manner in which the demand was made by the accused of money for recruitment of victim and her brother-in-law, so also the amount paid by the informant to the accused. It is his further contention that with this quality of evidence, it cannot be said that the offence has been proved against the accused beyond reasonable doubt.
Learned APP vehemently supported the impugned order. It is his contention that the first informant as well as the victim have consistently deposed in their examination-in-chief with regard to the grievance made against the accused. It is his submission that the evidence has been rightly taken into consideration by learned Trial Court while convicting the accused. In this regard, he drew attention of the Court to the observations made by the Trial Court in paragraph 36 of the judgment impugned.
As far as the offence punishable under Section 376 of the IPC is concerned, at the outset, it needs to be recorded that the victim as well as accused are major. Though the victim in her examination-in-chief states before the Trial Court that the act of physical relations were established by the accused under the threat to kill her and not to help her in recruitment process, however, the cross-examination of the victim reveals otherwise. The relevant admissions of the victim given before the Trial Court are reproduced herein below:
“At four times I stayed for whole night at Mumbai with the accused. For four times I stayed with the accused for a night I stayed at plaza Hotel and Ripon Hotel. For said four times I and accused stayed in one 1 room. When I stayed with the accused for night time in Hotel every time, I and accused had sex. For each night I and accused had sex for one time only. Two times I stayed with the accused in hotel for 2 to 3 days. During the stay in hotel at Mumbai I used to remain in the room of the Hotel. The accused in the 15 morning time had gone outside the hotel and came back in the evening time and said to me the officer didn't meet and again he in the noon time had gone outside the hotel and came back in the evening time. All hotel expenses borned by the accused. Accused didn't demand money from me.”
The above admissions of the victim clearly indicate that the relationships between the victim and accused were consensual in nature, as such, offence under Section 376 of the IPC is held to be not proved.
As far as offence under Section 420 of the IPC is concerned, there has to be consistent evidence led by the prosecution in order to hold the accused guilty of cheating. Perusal of the evidence of the informant, indicates that there are material inconsistencies and the evidence of the informant is full of omissions and improvement. The omissions and contradictions are duly proved through the Investigating Officer. There is material inconsistency with regard to the actual payment made by the informant to the accused. Having regard to the overall evidence on record, it cannot be said that the evidence of the informant and victim on this point is consistent in order to convict the accused.
As a result of above discussion, the following order :
The appeal is allowed.
The judgment and order dated 15th January 2007 passed in Sessions Case No.8 of 2003 by the IIIrd Ad hoc Addl. Sessions Judge, Palghar, is quashed and set-aside.
The appellant stands acquitted of all the charges.
The bail bonds of the appellant stands cancelled.
Fine, if any paid, be refunded to the appellant.
Record and proceedings be returned to the learned Trial Court.
The appeal stands disposed of.