Maya Wd/o Ashok Dadhe vs State Of Maharashtra & Anr.

Per : (Urmila Joshi Phalke, J.)

By this appeal, the appellant has challenged the acquittal of the respondent No.2 in Sessions Case No.100/2014 passed by Additional Sessions Judge, Chandrapur on 15.06.2018.

Brief facts which required for the disposal of the appeal are as follows:-

The complainant is a widow and on compassionate ground, she got the job as a peon in Urjanagar Gram Panchayat, Tahsil and District Chandrapur. She is serving there from 09.09.2002. The accused was also serving as a Senior Clerk attached to the said Gram Panchayat. As per the allegation of the complainant, he used to call her in his house. His entire behaviour towards her was objectionable and he subjected her for the forceful sexual assault. Though she resisted his illegal act, but he threatened to remove her from service. She alleged that he used to see the obscene pictures on a computer and compelled her to see the same and thereafter used to force her for the sexual activity. Therefore, she approached to the police station on 17.05.2014 and lodged the report at Exh.40. On the basis of her report police have registered the crime against the present respondent. During investigation the Investigation Officer has recorded the relevant statements of the witnesses and after completion of the investigation submitted charge-sheet. During trial, the trial Court has examined in all twelve witnesses. These witnesses are as under:-

Besides oral evidence prosecution placed reliance on spot panchanama Exh.28, seizure memo Exh. 29 to 34, FIR Exh. 41, Medical Certificate Exh.81, seizure memo Exh. 89 to 90, arrest panchanama Exh.91, requisition to CA Exh.99. The defence of the accused was of false implication. In support of his defence he examined DW-1-Raju Dasanaji Sagore Exh.133.

On appreciation of the evidence learned trial Court acquitted the accused by observing that prosecution miserably failed to prove the charges against the accused as there were general and evasive allegations and issued show cause notice under Section 340 of the Cr.P.C. to the complainant asking her to show cause why she should not be prosecuted under Section 195 of the Indian Penal Code. Being aggrieved and dissatisfied with the same the present appeal is preferred by the appellant.

During submission learned counsel for the appellant/ complainant submitted that now at this stage, he is only pressing on the issuance of notice to the complainant. He submitted that the notice was issued to the complainant observing that there were general and evasive allegations and thus, a public servant’s career was put on stake by the informant. He submitted that before issuance of the notice there has to be a prima-facie satisfaction that false statement is made by the complainant and it is expedient in the interest of justice to issue the notice to the complainant. He submitted that what is punishable under Section 195 is false evidence or false statement. The entire judgment nowhere reflects that the trial Court came to the conclusion that it was a false evidence adduced by the victim. He submitted that acquittal is on the ground of insufficient evidence and unless and until there is a satisfaction that prima-facie material is sufficient to infer that false statement is made, the notice under Section 340 of the Cr.P.C. for initiating action of perjury cannot be issued. He submitted that as far as the merits of the matter is concerned, evidence of the victim which remained un- shattered during cross-examination and inspiring the confidence is sufficient to convict the respondent No.2. However, the trial Court instead of convicting the respondent No.2 wrongly and erroneously issued the notice to the present appellant and therefore, appeal deserves to be allowed.

Learned APP supported the contention of the complainant/appellant.

Learned counsel for the respondent No.2 reiterated that the learned trial Court rightly considered the evidence which is general in nature without specifying any date and time regarding the sexual assault on her. It is also not supported by the medical evidence. He submitted that law as regards to the appeal against acquittal is well settled. There is a presumption of innocence in favour of the accused. Unless there is any extra ordinary circumstances which are not looked into by the trial Court, then and then only the judgment can be reversed. He submitted that on perusal of the entire evidence of the prosecution which appears to be general and vague in nature and as the trial Court found that the evidence adduced by the victim is false, show cause notice was issued. Therefore, no interference is called for.

Before appreciating the evidence and entering into the merits of the appeal, it is necessary to consider the law regarding the appeal against acquittal.

It is well settled that while exercising the appellate powers, specially while dealing with appeals against acquittal, cardinal principle to be kept in mind is that there is a presumption of innocence in favour of the accused, unless the accused is proved to be guilty, the presumption continues and finally culminates into a fact when the case ends in acquittal. The possibility of two views in a criminal cases is not an extraordinary phenomenon while considering appeal against aquittal. The trial Court has appreciated the entire evidence and reversal of the order of acquittal is not to be based on mere existence of different laws or mere difference of opinion. Normally, while exercising the appellate jurisdiction, it is the duty of the appellate Court to see whether decision is correct or incorrect on law or on facts. While dealing with appeals against acquittal, the Court cannot examine impugned judgment only to find out whether view was taken correct or incorrect, after re-appreciating the oral and documentary evidence the appellate Court must decide whether trial Court view was a plausible view. The appellate Court cannot overturn acquittal only on the ground that after re-appreciating the evidence, it is of the view that guilt of the accused is established beyond reasonable doubt. No doubt, an order of acquittal is open to appeal and there is no dispute about that. It is also beyond doubt that in exercise of appellate powers, the High Court can re-appreciate or re-visit the evidence on record. However, the powers of this Court to re-appreciate the evidence is a qualified powers, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material piece of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact.

In the light of above principles here in the present case evidence required to be considered.

The prosecution mainly placed reliance on the evidence of PW-3/victim and PW-4/Son of victim. As per the evidence of victim she was serving in Gram Panchayat Urjanagar on a compassionate basis as a peon. Whereas, the accused was serving as a Senior Clerk. Accused used to ask her to bring water and was touching her inappropriately. He was also visiting her house and subjected her for forceful sexual assault by threatening her that she would be removed from service. He also outraged her modesty by physically touching inappropriately and therefore, she lodged report which is at Exh.40 and FIR is at Exh.41. Police have also seized her clothes and she was referred for medical examination. Her cross-examination shows that her husband was addicted to liquor. He became impotent due to the addiction of liquor. She specially admitted that she cannot tell exact date, day, time and year when the alleged incident has taken place. She further admitted that family members of the accused and her family members used to visit each others houses. It further came in the evidence that one Vibha Ashokan has lodged report against her and wife of the accused. Wife of the accused was acquitted from the said offence but she was convicted and released on bond under the Probation of Offenders Act. She further admits that said Vibha was serving as a clerk in Gram Panchayat. One another lady Archana Sudhakar Deware was also working as a Computer Operator in the Gram Panchayat. Thus, the entire evidence of the victim appears to be general and vague in nature. As far as the evidence of PW-4 is concerned, which is on the basis of the disclosure made by the victim.

After registration of the crime Investigating Officer has visited the alleged spot of incident and drawn the spot panchanama. PW-1-Ravindra Ramteke and PW-2 Pranit Tawade are examined to prove the spot panchanama. They both have stated that nothing incriminating is found during the spot panchanama. PW-5 Bharat Raipure was serving as a water supply operator in the same Gram Panchayat. He is acquainted with the victim as well as the accused. He has stated that the victim disclosed to him that accused used to ask her to bring water and touch her in an inappropriate manner and used to abuse her. During cross-examination by APP he has admitted the portion marked A and B. However, during cross-examination he admitted that the complainant is quarrelsome lady. She used to quarrel with many persons and also lodged report against number of persons. He also admitted that complainant met him prior to two or three days and disclosed to him that his name is there as a witness. He further admits that complainant threatened him that if he did not depose as stated by her she will make him as accused also. Due to quarrelsome mentality and due to mentality of lodging report of the complainant, he got scared and therefore, he gave a statement to the police.

PW-6 Vikas Mankar is also employee of the said Gram Panchayat. He has not supported the prosecution case. Similarly PW-10 Manda Ghodmare, PW-11 Suman Dhote, who were also the employees of the said Gram Panchayat. They have also not supported to the prosecution case.

Besides oral evidence, prosecution placed reliance on the evidence of PW-7 Dr. Pratik Borkar, who was a medical officer. As per his evidence he has examined the accused. PW-8 Dr. Shweta Walke has examined the victim. Her evidence shows that there was no injury on her genitals. However, there was a physical activity with the victim. Accordingly, she issued the certificate. During cross-examination, she admitted that she has not narrated while answering the question number 3 in a query when the last sexual intercourse is occurred with the victim. She further admits that the scar which was witnessed by her on the body of the victim appears in family planning operation. She also admits that opinion regarding the timing of the old intercourse cannot be stated. PW-9 Sunil Punkatwar and PW-12 Ghanshyam Kawade are the Investigating Officers who have narrated about the investigations carried out by them.

On the basis of this oral as well as medical evidence prosecution claimed that prosecution has proved its case beyond reasonable doubt. Learned trial Court has appreciated the evidence in detail and observed that there is general and vague allegation as to the sexual assault. He submitted that victim has not narrated the last intercourse with her. Even assuming that last date of the incident was 21.12.2013 as per requisition to the medical officer then also FIR is lodged on 17.05.2014. It is approximately after five and half months and no satisfactory explanation is given by the informant about delay in lodging the FIR. Admittedly, delay is not always fatal to the prosecution in sexual assault case when the delay is properly explained. The trial Court has also considered that medical evidence has not corroborated the version of the victim as well as CA report is also in negative. As far as inappropriate touching by the accused which is alleged by the victim is concerned, none of the Gram Panchayat employees have supported the prosecution case.

On the contrary, all witnesses have admitted that it was a victim who was a quarrelsome lady and many persons from village were scared that she would involve them in a false case. Thus, on that basis, the trial Court came to the conclusion that the testimony of the victim cannot be considered as trustworthy. The observation of the trial Court on the basis of the appreciation of evidence appears to be a plausible view taken by the trial Court. Trial Court has also considered that there were general allegations against the present respondent which are not substantiated by any material evidence and thereby acquitted the respondent. Therefore, there is no reason to take other view as the view taken by the trial Court is plausible view.

Now only question remains whether the action of issuance of notice under Section 340 of the Cr.P.C. is justifiable one.

As the trial Court invoked the provision of Section 340 of the Cr.P.C. the relevant portion of the said provision reads as under:-

It is well settled that while entertaining proceedings under Section 340 of the Cr.P.C., it must be borne in mind that the material produced before the Court ought to make out a prima facie case for an inquiry to be made into an offence referred to in Section 195(1)(b) of the Penal Code. Further, the Court has to also consider whether it is expedient in the interest of justice that such, inquiry should be made into the alleged offence. The Constitution Bench in the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another reported in 2005 INSC 129 observed as follows:

In the case of State (NCT of Delhi) vs. Pankaj Chaudhary and others, reported in (2019) 11 SCC 575, wherein the Hon’ble Apex Court held that there are two preconditions for initiating the proceedings under Section 340 of the Cr.P.C; (1). materials presented before the Court must establish a prima facie case for a complaint related to an offence under Section 195(1)(b) (i) of the Cr.P.C., and (2). It must be deemed expedient in the interests of justice to conduct an inquiry into the alleged offence. It has been observed that the Court has to be satisfied as to the prima facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)(b) of the Cr.P.C. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code, but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the Court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) of the Cr.P.C.

It is consistently held by the Hon’ble Apex Court that the prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and prosecution ought to be ordered where it would be expedient in the interest of justice to punish delinquent and not merely because there is some inaccuracy in the statement. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. The approach should not be mechanical and superficial. It is sufficient to justify conclusion that it is expedient in the interests of justice to file a complaint.

It is expedient in the interest of justice that “the enquiry shall be made”. These words are key words to Section 340. Under Section 340 of the Code, if it is expedient in the interest of justice and not on mere allegations, the course of initiating an enquiry under Section 340 is adopted only if the interests of justice so requires.

In law, “expedient” generally deals suitable or appropriate for achieving a particular purpose, even if not always morally or ethically ideal. It can also refer to something i.e. advantageous or helpful in a specific situation, particularly when dealing with an exigency. Essentially, it is about what is practical and beneficial in the moment rather than necessarily what is right or fair.

Advanced Law Lexicon defines “expedient” as “act” and “suitable” to the end or “practical” and “efficient,” “Polite”, “profitable,” “advisable” “fit,” “proper” and “suitable” to the circumstances of the case.

The law lexicon defines the term “expedient” as “necessary” means what is indispensable, needful, essential. The term has a precise meaning and connotation and there is nothing vague or nebulous about it. The term "expedient" has no doubt a wide ambit and gives large scope to the exercise of power. But this expression has also a recognized connotation in the eye of law. There is no magic in recording the words that "Court find it expedient in the interest of justice that inquiry should be made" but from order of Court, it should appear that Court has formed such an opinion.

In the present case, genesis of initiation of proceeding under Section 340 of Cr.P.C. was the evidence of the victim before the Court. The evidence of PW-3 victim who has narrated about the incident regarding sexual assault at the hands of accused. On appreciation of the evidence the trial Court has concluded that there are general and evasive allegations leading to disturb the life of public servant. Naturally the accused is under agony from his arrest and is facing said trial since more than four years. As per record, he was behind bar up to 45 days and was suspended from service.

On the contrary, the complainant got Rs.2 lakhs under the government policy towards compensation. There was no sufficient reason/ground to make an allegation against the accused but the complainant seems to have lodged false report and led the false evidence with intent to procure conviction and hence, section 195 of the Indian Penal Code came into picture.

A reading of the aforesaid observations nowhere indicates that what was the material from which the Court has come to the conclusion that she has given a false statement. To prove the offence, there may be an inadequate evidence but that is not sufficient to term the evidence as a false evidence. What is punishable is the giving of false evidence under Section 193 or making of false statement under Section 199. Thus, what is required is that the Court has to satisfy prima facie that false evidence or false statement is made by the person. Here before issuing the notice the trial Court failed to record its satisfaction that it was expedient in the interests of justice that an inquiry should be made into alleged offence in view of the evidence of victim. Without recording any satisfaction that it was indeed expedient in the interests of justice to hold an inquiry the notice was issued. Section 340(1) of the Cr.P.C. mandates that the Court before directing an inquiry to be made into any offence referred to in Section 195(1)(b) of the Penal Code, it should form an opinion that it is expedient in the interests of justice that such inquiry is in fact necessary. This would indicate that on mere making of a ‘wrong statement’, an inquiry cannot be ordered. The forming of an opinion by the Court that holding of an inquiry is in fact expedient in the interests of justice is also a must. Ordering an inquiry or issuing show cause notice without formation of any opinion as required under the above said provision itself is bad in law being not in accordance with the mandate of Section 340 of the Cr.P.C. and therefore, the said show cause notice deserves to be quashed and set aside.

In view of the above discussion, we pass the following order:-

The appeal is partly allowed.

Show cause notice under Section 340 of the Cr.P.C. to the complainant/prosecutrix calling upon her to explain why she should not be prosecuted under Section 195 of the Indian Penal Code is hereby quashed and set aside.

The order of acquittal passed by the trial Court is maintained.

Criminal Appeal stands disposed of.

Pending application if any stands disposed of accordingly.