vehemently argued that record of the case shows that the appellant,
accused, was not in a normal mental state for reasons more than one.
Even the record during trial and thereafter, and various
communications made by him show his abnormal behaviour.
According to him, since the mental unfitness of the appellant was
clearly visible, in that he was not normal, inasmuch as he filed Exhs.7
and 15 before Trial Judge before commencement of trial on his own,
stating that he did not want any legal assistance from the Legal Aid
Committee, Govt., and the Court, and would himself defend his side,
the Trial Court should not have held trial without giving him legal
assistance. The counsel also pointed out that the cross-examination
made by appellant himself as per his own choice is certainly not the
way in which cross-examination is done by a cross-examiner. This has
caused a very serious prejudice to the appellant. He did not get a fair
trial. According to Mr. Bhangde, the appellant should have been sent
by the learned Trial Judge for finding out his mental fitness and then
the Trial Court should have decided whether to allow him to defend
himself or for giving help of an Advocate. The fact remains that he was
never given the help of an Advocate and the trial went ahead till the
culmination of trial ultimately resulting into conviction of the appellant
for the serious offence of rape.
Per contra, learned APP supported the impugned Judgment
and Order, and submitted that under the rules, no compulsion can be
made on the appellant, accused, or the litigant, to accept the legal aid.
In the instant case, according to him, the appellant, accused, himself
filed applications [Exhs. 7 and 15], stoutly refusing the help from Legal
Aid for defending his case. According to Mr. Jawade, learned APP, there
is no procedure for imposing legal aid on somebody who does not want
it, nor there is any such legal obligation. He, therefore, prayed for
rejection of this plea raised by the appellant, accused.
Upon hearing the learned counsel for the rival parties, at the
outset, I am inclined to reject the submission made by learned counsel
for the appellant about the grievance of the accused, appellant, not
being sent for medical examination of his mental health and/or for a
legal aid. It appears from the record that the appellant in his admancy
made applications etc., during the course of trial. But then, he was
not insane or mentally unfit to take a decision regarding offer for legal
aid. At any rate, at the inception, he submitted Exh.7 on his own
volition that he did not want any legal aid or assistance from the Govt.,
and on the contrary, would like to defend himself. He then repeated
the same by way of Exh.15. I am, therefore, of the opinion that the
contention raised by Mr. Bhangde in this connection has no merit.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.252 of 2015
Sujit Bhurandas Borkar,
Versus
The State of Maharashtra,
CORAM : A.B. CHAUDHARI, J.
Date : 03rd February, 2016
Citation: 2016 ALLMR(cri) 2029
01. Being aggrieved by the Judgment and Order dated 28th
January, 2015 passed by learned Principal District Judge, Gondia, in
Sessions Trial No. 76 of 2011, convicting and sentencing the appellant,
accused, Sujit Bhurandas Borkar, of offences punishable under
Sections:-
[a] 363, Indian Penal Code [Rigorous Imprisonment
for five years and to pay a fine of Rs. 2,000/-, in
default, further Rigorous Imprisonment for two
months],
[b] 366, Indian Penal Code, [Rigorous
Imprisonment for five years, and to pay a fine
of Rs. 2,000/-, in default, further Rigorous
Imprisonment for two months], and
[c] 376, Indian Penal Code [Rigorous Imprisonment
for ten years and to pay a fine of Rs. 20,000/-,
in default, further Rigorous Imprisonment for
six months],
the present appeal has been filed by the appellant Sujit Borkar.
02. In support of the appeal, learned counsel for the appellant
vehemently argued that record of the case shows that the appellant,
accused, was not in a normal mental state for reasons more than one.
Even the record during trial and thereafter, and various
communications made by him show his abnormal behaviour.
According to him, since the mental unfitness of the appellant was
clearly visible, in that he was not normal, inasmuch as he filed Exhs.7
and 15 before Trial Judge before commencement of trial on his own,
stating that he did not want any legal assistance from the Legal Aid
Committee, Govt., and the Court, and would himself defend his side,
the Trial Court should not have held trial without giving him legal
assistance. The counsel also pointed out that the cross-examination
made by appellant himself as per his own choice is certainly not the
way in which cross-examination is done by a cross-examiner. This has
caused a very serious prejudice to the appellant. He did not get a fair
trial. According to Mr. Bhangde, the appellant should have been sent
by the learned Trial Judge for finding out his mental fitness and then
the Trial Court should have decided whether to allow him to defend
himself or for giving help of an Advocate. The fact remains that he was
never given the help of an Advocate and the trial went ahead till the
culmination of trial ultimately resulting into conviction of the appellant
for the serious offence of rape.
03. Learned counsel for the appellant then, without prejudice to
the above contentions, submitted on merits of the matter that the
story of the prosecution since beginning is contradictory, inconsistent
and cannot be reconciled. The contradictions inherently seen in the
prosecution case are so material that the prosecution case is required
to be rejected and the appellant, accused, is required to be acquitted.
The learned counsel relied on the decision of Supreme Court in the
case of Hussainara Khatoon & others (V) Vs. Home Secretary,
State of Bihar, Patna [1980 SCC (Cri) 50] and the learned APP fairly
relied on the decision of the Supreme Court in the case of Mohd.
Hussain alias Zulfikar Ali Vs. State (Govt. of NCT of Delhi)
[(2012) 2 SCC 584].
04. Per contra, learned APP supported the impugned Judgment
and Order, and submitted that under the rules, no compulsion can be
made on the appellant, accused, or the litigant, to accept the legal aid.
In the instant case, according to him, the appellant, accused, himself
filed applications [Exhs. 7 and 15], stoutly refusing the help from Legal
Aid for defending his case. According to Mr. Jawade, learned APP, there
is no procedure for imposing legal aid on somebody who does not want
it, nor there is any such legal obligation. He, therefore, prayed for
rejection of this plea raised by the appellant, accused.
05. On merits, learned APP contended that there are
testimonies of 'P' [PW 2], her sister, Madhuri Ramteke [PW 4], and her
father, Ashok Ramteke [PW 3], which are corroborated by the First
Information Report and there is no reason why this Court should not,
as has been done by the Trial Court, believe the testimony of 'P' [PW 2]
on the incident proper. He, therefore, submitted that there is no merit
in the appeal and the same should be dismissed.
06. With the assistance of the learned counsel for the rival
parties, I have gone through the entire record, order-sheets, evidence,
oral as well as documentary. I have also seen the reasons recorded by
the learned Trial Judge.
07. Upon hearing the learned counsel for the rival parties, at the
outset, I am inclined to reject the submission made by learned counsel
for the appellant about the grievance of the accused, appellant, not
being sent for medical examination of his mental health and/or for a
legal aid. It appears from the record that the appellant in his admancy
made applications etc., during the course of trial. But then, he was
not insane or mentally unfit to take a decision regarding offer for legal
aid. At any rate, at the inception, he submitted Exh.7 on his own
volition that he did not want any legal aid or assistance from the Govt.,
and on the contrary, would like to defend himself. He then repeated
the same by way of Exh.15. I am, therefore, of the opinion that the
contention raised by Mr. Bhangde in this connection has no merit.
08. The next question is about the offences for which the
appellant was convicted by the Trial Judge. In this connection, the
utmost important factor, that was required to be satisfactorily proved
by the prosecution, was the age of 'P' [PW 2]. In a most casual
manner, the prosecution placed on record the certified copy of a Bona
fide Certificate from the school showing the date of birth, and was
readily accepted by the learned Trial Judge without insisting for the
legal proof thereof. By merely tendering or by merely exhibiting a
Certificate, the date of birth cannot be said to have been proved
according to Evidence Act. It was incumbent on the part of the
prosecution to prove the entry from the Register of Date of Birth or in
respect of Bona fide Certificate through the concerned Headmaster or
the school authorities by summoning the concerned person in the
Court. But that was not done. The only inference, therefore, that will
have to be drawn, is that the date of birth has not been proved from
the documentary evidence.
09. The next question is as to the offences in question. Perusal
of the evidence of Ashok Ramteke [PW 3] and the report lodged with
the Police Station show that when Ashok Ramteke [PW 3], a rickshaw
puller, returned back to his house at about 11.50 p.m., his younger
daughter, Madhuri [PW 4], told him that the appellant had taken 'P'
[PW 2] on his motorcycle by saying that her father was not well and
that was done at about 10.45 p.m. The report then shows that a
search was taken by him here and there, but could not locate her and,
therefore, the appellant had kidnapped his daughter. As against this,
the evidence of 'P' [PW 2] shows that the incident occurred at about
4.00 pm on 8th February, 2011 when she had gone to shop for bringing
a cake and the appellant was in front of the shop and he told her that
her father was unconscious and, therefore, from that shop, she went
on his motorcycle to his house. After reaching his house, he told her
that he would marry her, gave her food and thereafter committed the
offence of rape. Her mother came to the house of accused and
scolded the accused. He threatened her mother in respect of the
incident. He did not allow 'P' to go from his house. Her mother came
there at the same time. Thus, the time when her mother came to
house of the accused appears to be around 5.30 p.m., when the girl is
said to have gone at 4.00 p.m., with the accused.
10. Similarly, evidence of Madhuri [PW 4], her younger sister,
shows that immediately after PW 2 went on the motor cycle of
accused, she told her mother and both of them went to the house of
the accused and had broken the door of his house by repeatedly hitting
the same by kick blows. When they entered his house and tried to
take back PW 2, since the accused resisted their attempt, they could
not take back PW 2 with them. Immediately thereafter, they went to
the Police Station. PW 4 then says that her sister came back to her
house on the next day early in the morning. As against this, Ashok
Ramteke [PW 3] stated in his evidence that at about 9.30 p.m., he
came to the house. On reaching home, he came to know about the
incident and he went towards the house of the accused and thereafter
lodged the report [Exh.17] with the Police Station and PW 2 was
brought to his house by 5.00 a.m., by the police. Sana entry on his
report [Exh.17] seems to have been taken at 1.15 a.m., on the next
day.
11. It is true that the substantive evidence of PW 2 as to the
actual offence of rape has gone unchallenged. But then, merely on
that basis, the Court would not record conviction if the other entire
evidence is fully inconsistent, contradictory and without any
corroboration, particularly the medical evidence. The medical evidence
shows no signs in the examination of injuries to the private part and
reading of the medical evidence, to my mind, clearly shows absolute
absence of the signs of rape. Not only this, the evidence of Dr.
Kalpana [PW 7] also shows no external injury to the accused too. The
scientific evidence is also totally absent about the signs of intercourse.
In such a situation, it is difficult to believe that the prosecution proved
beyond any shred of doubt commission of offence of rape.
12. The incident is of the date 8th February, 2011, i.e., prior to
the amendment to the Indian Penal Code and, therefore, the old law
would govern the case at hand. Since the prosecution failed to prove
its case regarding the age of the prosecutrix, so also the sexual
intercourse and it is unbelievable having regard to the major
contradictions and inconsistencies in the prosecution evidence that
the offence of rape could be said to have been proved, looking to the
long stretch of time from 4.00 p.m., to 1.15 a.m., without any evidence
of shouting by any of them, or as the case may be, I am of the firm
opinion that the appellant deserves to be acquitted of the offence
under Section 376, Indian Penal Code.
13. The next question is about the offences under Section 363
and 366, Indian Penal Code, in respect of which, it clearly appears from
the record that PW 2 was below 18 years of age and at any rate, being
a girl, was taken from the lawful custody of her parents by the
appellant and that evidence is supportable and well proved by the
prosecution. Section 361 of Indian Penal Code provides that the
offence of kidnapping would be constituted or proved in such an event.
The appellant, a married person, indulged into kidnapping of PW 2. He
then took her away to his house and wrongfully restrained her. That is
clearly a foundational evidence for the offence on the strength of the
evidence discussed by me above. As earlier stated, on the date of her
deposition, PW 2 was married and is living happily with her husband
elsewhere. The appellant has already undergone the sentence of
twenty-one months and ten days. He has a family with children to
maintain. I think, the sentence which he has already undergone
should subserve the interest of justice and, therefore, this is a fit case
to reduce the sentence to the one already undergone by the appellant.
To sum up, I make the following order:-
O R D E R
[a] Criminal Appeal No. 252 of 2015 is partly
allowed.
[b] The Judgment and Order of conviction recorded by
the learned Trial Judge of offence under Section
376, Indian Penal Code, holding him guilty, is set
aside, and the appellant is acquitted of the charge
under Section 376, Indian Penal Code.
[c] The Judgment and order of conviction of the
appellant of offences under Sections 363 and 366
of Indian Penal Code is confirmed and the
Judgment recording sentence awarded to the
appellant for these offences under Sections 363
and 366, Indian Penal Code, is modified and the
appellant is sentenced to undergo Rigorous
Imprisonment which he has already undergone.
[d] The appellant shall be released, if not required in
any other crime.
[e] Since the appeal itself is decided today, Criminal
Application [APPA] No. 461 of 2015 for suspension
of sentence and grant of bail is rendered
infructuous.
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