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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.211 OF 2001
Amarkant s/o Shalikram Samrit
Aged about 30 years,
R/o Bela, Tahsil and District Bhandara. ….. Appellant.
:: VERSUS ::
State of Maharashtra,
Through its Police Station Officer,
Police Station, Bhandara. ….. Respondent.
Shri C.R. Thakur, Counsel for the appellant.
Ms T.H. Udeshi, Addl.P.P. for the respondent/State.
CORAM : V.M. DESHPANDE, J.
DATE : JULY 7, 2017.
ORAL JUDGMENT
1. The appellant is before this Court in view of his
conviction by learned Sessions Judge, Bhandara in Sessions
Trial No.98 of 2000 dated 26.4.2001 for the offences punishable
under Sections 376, 170, 419, and 506 of the Indian Penal Code.
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For the offence punishable under Section 376 of
the Indian Penal Code, the appellant is sentenced to suffer
rigorous imprisonment for 5 years and to pay a fine of
Rs.3,000/-, and in default of payment of fine amount to suffer
further rigorous imprisonment for 6 months.
For the offence punishable under Section 170 of
the Indian Penal Code, the appellant is sentenced to suffer
rigorous imprisonment for 1 year.
For the offence punishable under Section 419 of
the Indian Penal Code, the appellant is sentenced to suffer
rigorous imprisonment for 1 year and to pay a fine of
Rs.1,000/-, and in default of payment of fine amount to suffer
further rigorous imprisonment of 1 month.
Insofar as for the offence punishable Section 506 of
the Indian Penal Code is concerned, no separate sentence was
given to the appellant.
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2. I have heard learned counsel Shri C.R. Thakur for
the appellant and learned Additional Public Prosecutor Ms
T.H. Udeshi for the respondent/State. They took me through
in detail notes of evidence and other proved documents on
record.
3. The appellant was charged that in between
21.6.2000 to 27.6.2000 he pretended that he is a public servant
being C.I.D. police and in such assumed character committed
rape on the prosecutrix without her consent and thus
committed an offence punishable under Section 170 of the
Indian Penal Code. He was also charged that on 23.6.2000 and
26.6.2000 at Yeshwant Lodge, Tumsar and in the house of one
Tanu alias Tongare Bisen at Baba Ashram Ramtek committed
sexual intercourse with the prosecutrix without her consent
and thus committed an offence punishable under Section 376
of the Indian Penal Code. He was also charged for the offence
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punishable under Section 419 of the Indian Penal Code that
he committed rape pretending that he is the C.I.D. officer.
4. The first information report is at Exhibit 32. The
printed first information report is at Exhibit 33.
5. According to the prosecution, the prosecutrix was
married to one Vishwanath. It was her love marriage. Said
love marriage was not approved by her parents. After
marriage, she went to her matrimonial house. On next day of
her marriage, her husband left the house without informing
anybody. The prosecutrix made a wait for 8 days. However,
her husband failed to return. Her parents did not allow her to
stay with them. Therefore, she stayed for 2 days with one
Mandabai, who is her maternal aunt. Thereafter, she started
residing at Salebhata with her grandmother Barubai Kohale.
On 12.3.2000 a missing report was lodged by her in respect of
her husband in Lakhani Police Station. Thereafter, she gave a
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report to the Apatgrasta Women Cell at Bhandara in the
month of April. In that context, she used to visit at Bhandara.
When on 22.6.2000 she had been to the Women’s Cell at
Bhandara, one person by name Samrit was sitting in whose
presence she revealed her name and address to the office.
6. As per the first information report, on 23.6.2000
appellant Samrit came to Salebhata. That time, prosecutrix
was residing with PW7 Kunda w/o Anandrao Raut, her sister
at Sakoli. There, appellant Samrit along with brother-in-law
of the prosecutrix Ghyanshyam Dharmaji Bhonde came.
There, appellant Samrit disclosed that he is a C.I.D. Police and
inquiry regarding her husband is entrusted to him and,
thereafter, she was taken by him on his scooter. Appellant
Samrit kept his scooter at Bhandara. Thereafter, by bus they
went to Sihora. Then in evening, they came to Tumsar and
resided at Yeshwant Lodge. A room in said Lodge was booked
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stating name of prosecutrix as Smt. Samrit. In the night,
appellant Samrit had sexual intercourse with her. Then on
next day i.e. 24.6.2000, they left the Lodge. She was dropped at
Bhandara Bus Station. The prosecutrix came to the house of
PW7 Kunda Raut at Sakoli. Then on 26.6.2000, appellant
Samrit again came and took the prosecutrix with him on the
pretext to go to Sihora. Thereafter, she was taken to Ramtek
in the house of one Bowa. There also, the physical contacts
were established with her against her wishes.
7. With this first information report, criminal law
was set into motion.
8. PW6 Dr. Mrs. Chhaya Ravindra Kapgate examined
the prosecutrix. She has proved medical certificate of the
prosecutrix which is on record at Exhibit 24. The evidence of
said doctor and the report clearly show that there were no
external injuries on the body of the prosecutrix. The doctor
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also noticed that there were no injuries on her private parts.
The doctor also noticed that the prosecutrix was habituated
to sex.
9. According to PW10 prosecutrix, on 22.6.2000 she
had been to the Women’s Cell at Bhandara in connection with
enquiry of her husband. There, she was accompanied by PW1
Omkar Bhonde.
As per the evidences of PW1 Omkar and the
prosecutrix, in the said Cell appellant accused was sitting
there and he told Omkar that he is a C.I.D. Police Officer and
he showed one card. It was also informed him that the matter
about enquiry of missing husband is entrusted to him. As per
the evidences of PW1 Omkar and the prosecutrix, the
appellant introduced for the first time to them as an Officer.
10. The aforesaid important fact is totally absent from
the first information report of the prosecutrix. Further, from
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the evidence of PW1 Omkar, it is clear that when statement of
the prosecutrix was recorded in his presence in the police
station. PW1 Omkar did not state from the witness box about
sexual assault on prosecutrix.
Further, even as per the prosecution case, the
appellant for the first time disclosed that he is a C.I.D. Officer
in the Women’s Cell at Bhandara. Not only that, it is the
evidence of PW1 Omkar and PW10 prosecutrix that time
other officers were present. However, no Officer from the
said Cell is examined by the prosecution to prove the fact of
presence of the appellant on 22.6.2000 in the Cell.
Also, even after arrest of the appellant, no attempt
was made by the prosecuting agency to recover the identity
card, which according to the prosecution and other
prosecuting witnesses the appellant showed to them to make
them believe that he is a police officer.
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11. From the evidences of PW3 Shailesh Yeshwantrao
Sakharwade, PW4 Yeshwant Dinaji Sakharwade, who is father
of PW3 Shailesh, and Lodge Register Exhibit 18, it is clear that
in the night of 23.6.2000 the appellant had stayed with the
prosecutrix in the said Lodge.
12. According to the prosecutrix, in the Lodge the
appellant committed sexual intercourse with her without her
consent. However, her evidence is totally silent that he
committed rape on her on the pretext that he being a Police
Officer he will try to help the prosecutrix in searching her
husband.
13. The evidences of PW10 prosecutrix, PW7 Kunda
Raut, and PW1 Omkar Bhonde are totally silent that when the
prosecutrix had occasions to meet them on 3 different dates.
She did not disclose to them that either under the pretext that
appellant Samrit is a Police Officer or under the threats given
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by him or without her consent the appellant has committed
sexual intercourse with her.
14. The prosecutrix version is not at all corroborated
by any of the witnesses. If the prosecutrix evidence does not
inspire confidence, the Court should look for corroborative
evidence. In the present case, looking to the conduct on the
part of the prosecutrix that she was having an opportunity to
disclose the fact of sexual assault on her, she chose not to
disclose to anybody.
15. In that view of the matter, the prosecution has not
proved its case beyond reasonable doubt warranting me to
pass the following order:
O R D E R
i) The criminal appeal is allowed.
ii) Judgment and order of conviction, passed by
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learned Sessions Judge, Bhandara, in Sessions
Trial No.98 of 2000 dated 26.4.2001, is set aside.
iii) The appellant is acquitted of the offences
punishable under Sections 376, 170, 419, and 506 of
the Indian Penal Code.
iv) Bail bonds of the appellant stand cancelled.
16.
JUDGE
!! BRW !!
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