Rajkumar S/O Narayan Thakre vs State Of Maharashtra, Thr. Pso … on 21 August, 2017

1 apeal199.16

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 199 OF 2016

Rajkumar s/o Narayan Thakre,
Aged about 40 years, Pan Shop,
R/o Chandori, Tahsil – Tirora,
District Gondia. …. APPELLANT

VERSUS

State of Maharashtra,
through PSO, Police Station Tirora,
District Gondia. …. RESPONDENT

__

Shri S.P. Bodalkar, Advocate appointed for the appellant,
Smt. M.H. Deshmukh, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 07-08-2017
DATE OF PRONOUNCING THE JUDGMENT : 21-08-2017

JUDGMENT :

The appellant seeks to assail the judgment and order

dated 05-05-2016 delivered by the learned Sessions Judge, Gondia in

Sessions Trial 82/2012 by an under which the appellant (hereinafter

referred to as the “accused”) stands convicted for offences punishable

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
2 apeal199.16

under Section 376(2)(f) and 506 of the Indian Penal Code and is

sentenced to suffer rigorous imprisonment for ten years and to pay a

fine of Rs.5,000/- for offence punishable under Section 376(2)(f) and

rigorous imprisonment for one year for offence punishable under

Section 506 of the Indian Penal Code respectively.

2. The case of the prosecution is thus :

The accused visited the house of the complainant Ziblabai

Kadav on 31-10-2010 at about 7-00 p.m. The complainant served the

accused tea and went to the kitchen for cooking. The complainant’s

daughter-in-law was resting in her room as she was unwell. The

accused was a regular visitor to the house of the complainant. The

granddaughter of the complainant Payal then aged 11 years was in the

courtyard. The accused lifted Payal and took her to a spot between

Anganwadi and Samaj Mandir, accused gagged her mouth, removed

her clothes, threatened her and did forcible sexual intercourse. The

accused gave the victim Rs.20/- and threatened her that she shall be

killed if the incident is disclosed. Payal returned her home and

narrated the incident to the complainant. Blood was oozing from her

private part. The complainant took Payal to the house of the police

patil who was not present. The complainant went to the police station

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
3 apeal199.16

and lodged report Exhibit 10.

3. The prosecution further contends that on the report of the

complainant offence was registered, investigation was conducted by

A.P.I. Barayya. The victim girl was medically examined by Dr.

Waindeshkar. The investigating officer prepared spot panchanama,

seized clothes of the victim and arrested the accused on 17-11-2010.

The accused was also sent for medical examination and was examined

by Dr. Waindeshkar. The investigating officer sent victim’s clothes to

the chemical analyzer. Completion of investigation led to filing of

charge-sheet before the Judicial Magistrate First Class, Tirora. The

proceedings were committed to the sessions Court for trial.

4. The learned Sessions Judge framed charge at Exhibit 6.

The accused pleaded not guilty and claimed to be tried. The defence

of the accused is of total denial and false implication.

5. The complainant Ziblabai Kadav is examined as P.W.1.

Her testimony is consistent with the oral report Exhibit 10. She

deposes that the accused visited her house. Her two sons had gone to

Nagpur for work and at the time of the incident the complainant, her

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
4 apeal199.16

daughter-in-law, father-in-law and Payal were present in the house.

Payal was playing in the courtyard. Payal entered the chapri. The

complainant was in kitchen for cooking. The accused lifted Payal,

carried her to a spot between Balwadi and Samaj Mandir. The

complainant states that when Payal returned, she was weeping. P.W.1

complainant deposes that she was informed by Payal that the accused

took her near Balwadi, pressed her mouth and did sexual intercourse

with her. P.W.1 states that blood was oozing from Payal’s private part.

P.W.1 proves the oral report and the printed first information report

(Exhibit 10 and Exhibit 11 respectively). P.W.1 has been extensively

cross-examined. It is suggested to her that the accused came to her

house at 4-00 p.m. She admits that she served tea to accused and her

husband. She denies the suggestion that her daughter-in-law was not

present in the house. She denies the suggestion that accused left her

house with his wife. She denies the suggestion that the sons of P.W.1

used to frequent the pan and tea stall of the accused and the accused

came to her house to demand the unpaid amount of the bills. She

denies the suggestion that the victim Payal was playing in the tractor

trolley and the accused only lifted her and left her there and went to

his house.

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::

5 apeal199.16

6. P.W.2 Payal Kadav is the victim. She deposes that on

31-10-2010 at about 7-00 p.m. she was playing in the courtyard. Her

mother was sleeping in the room as she was not well. Her grandfather

was sleeping in the chapri. The accused came to her house, was served

tea by her grandmother who then went to the kitchen for cooking. The

victim states that when she entered the chapri, accused lifted her and

took her to a spot between Balwadi and Samaj Mandir. The accused

gagged her mouth by handkerchief and she could not, therefore, shout.

She states that the accused did forcible sexual intercourse with her and

then gave her Rs.20/- and threatened that if the incident is disclosed to

anybody, he will kill the victim. She deposes that her clothes were

stained with blood. She narrated the incident to her grandmother

(P.W.1). She and her grandmother went to the police station and

lodged report. She has identified the clothes seized from her. In the

cross-examination, she admits that she alongwith Durga and Priyanka

were playing near tractor trolley. She denies the suggestion that the

accused and his wife were on way to their house and when she

alighted from the tractor trolley, the accused caught her hands and

lifted her. The suggestion that the victim lodged the report on the say

of her mother and grandmother, is denied. She has denied the

suggestion that her clothes were not torn and that she did not sustain

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
6 apeal199.16

any injury. She denies the suggestion that at the time of the incident

she was having her menstrual cycle.

7. P.W.3 Rajkumar Kadav proves the spot panchanama

Exhibit 14. P.W.4 Devendra Choudhari states that the police seized the

clothes of the victim and took blood sample in his presence and proves

seizure panchanamas Exhibits 16 and 17. P.W.5 Roshan Dongre states

that the police seized clothes of the accused as per seizure panchanama

Exhibit 20. P.W.6 Rahul Puri is examined to prove that he obtained

blood samples from the medical officer and handed over the same to

the investigating officer. P.W. 7 Vilas Ghodmare is examined, he took

the seized property to Nagpur.

8. P.W.8 Dr. Kanchan Rahangdale has deposed that Dr.

Waindeshkar is no more. She states that she knows and identifies the

signature and handwriting of Dr. Waindeshkar. She has identified the

handwriting and signature of Dr. Waindeshkar on the M.L.C. of the

victim and accused which are Exhibits 30 and 31 respectively.

9. P.W.9 A.P.I. Arun Barayya has proved the covering letter

sent to chemical analyzer, chemical analyzer report and has generally

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
7 apeal199.16

deposed about the investigation. P.W.10 Narhari Gharpande has

proved the birth certificate (Exhibit 43) evidencing that the victim

Payal was born on 23-12-1999.

10. The defence has examined Panchfulabai Shahare as

D.W.1, Vandana Thakare, wife of the accused as D.W.2 and the

accused himself as D.W.3. Panchfulabai Shahare deposes that on the

day of the incident, she was cleaning rice in the courtyard at about

4-00 p.m. Payal was playing on the trolley. The accused was coming

from the house of Sanjay Kadav. The accused was accompanied by his

wife. The accused talked with D.W.1. The accused was in hurry and

when D.W.1 asked him the reason, he replied that his mother-in-law

was serious and therefore, he was going. Accused alighted Payal from

the trolley. She states that accused returned to the village after four to

five days. In her cross-examination, she has denied the suggestion that

due to good relations with the accused, she is stating falsehood.

D.W.2 Vandana Thakare states that her husband/accused has a tea

stall at Chandori. Her mother was not well on 31-10-2010. She states

that she returned to her house from the field at about 4-00 p.m. Her

family members told her that the accused had gone to the house of

Kadav to bring money. She states that she went to the house of Kadav

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
8 apeal199.16

to call the accused. Her husband was taking tea with Payal’s

grandfather. The complainant did not pay money to her husband. She

alongwith her husband returned to their house and on the way they

passed the house of Panchfulabai. Payal was on the tractor with small

children. Her husband went to Nagpur to see her mother and after

four days, he returned back. In the cross-examination, Vandana states

that, the accused went to Nagpur by train. She has not produced the

railway ticket. She says that her mother was admitted in Government

Hospital. She admits that she has not produced any document to show

that her mother was admitted in Government Hospital. She denies the

suggestion that her mother was unwell and that her husband had not

gone to Nagpur to visit her mother. She denies the suggestion that she

has falsely stated that her husband went to the house of the

complainant to bring money. She denies the suggestion that she is

uttering falsehood in order to save her husband. The accused has

examined himself as D.W.3. He states that on 31-10-2010 he visited

the house of Payal’s father Sanjay Kadav to demand an amount of

Rs.1,210/- which was due and payable. He states that he has filed on

record a photocopy of the credit register. He states that he went to

Sanjay Kadav’s house since Sanjay Kadav himself asked him to come.

The accused states that Sanjay Kadav was not present, the father of

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
9 apeal199.16

Sanjay Kadav was sitting in the chapri. He was served tea by Ziblabai

and he was told by Ziblabai that her daughter-in-law was unwell and

that they did not have the money to give the accused. The accused

deposes that her wife Vandana came to the house of Sanjay Kadav and

told him that her mother was ill and she admitted in Nagpur. He

states that the accused while returning from the house of Sanjay

Kadav, Payal was playing on the tractor trolley. The accused alighted

her from the tractor trolley as per the say of Panchfulabai. The

accused and his wife thereafter went to their house and on the same

day he left for Nagpur. He says that after ten to twelve days, he

returned from Nagpur. He was arrested by the police. He claims

innocence and states that he has brought original register evidencing

the entry in respect of the credit amount due and payable by the father

of the victim. In cross-examination, he admits that there is overwriting

in the name and denies the suggestion that he has written the word

Kadav later on. He denies the suggestion that he did not take Payal

down from the trolley as per the say of Panchfulabai. He denies that

his mother-in-law was not ill and he did not go to Nagpur. He denies

the suggestion that he had forcible sexual intercourse with Payal and

has taken a false defence of having gone to Nagpur at the relevant

time.

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::

10 apeal199.16

11. I have heard learned Counsel Shri S.P. Bodalkar who is

appointed to represent the accused and learned Additional Public

Prosecutor Smt. Deshmukh for the respondent.

12. The learned Counsel for the accused contends that the

testimony of the prosecutrix is absolutely untrustworthy and

unreliable. The learned counsel would submit that the testimony of

the prosecutrix is not supported by the medical evidence on the record.

He would further contends that the witnesses examined in defence

have probabalized the defence and the accused is, therefore, entitled to

the benefit of doubt.

13. The learned Additional Public Prosecutor would urge that

the testimony of the prosecutrix who then was 11 years old is

consistent and confidence inspiring. The testimony is corroborated by

medical evidence and that there is no material on record to suggest

that the accused is falsely implicated. She invites my attention to the

settled legal position that if the testimony of the prosecutrix is found

reliable, conviction can be based even on the basis of her

uncorroborated testimony.

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::

11 apeal199.16

14. The learned Additional Public Prosecutor is right in

contending that conviction can be based on uncorroborated testimony

of the prosecutrix. The Court, however, must rule out any possibility

of false implication. I have given my anxious consideration to the

evidence on record including the testimonies of the three defence

witnesses. The evidence on record, in my opinion, rules out any real

possibility of false implication. It is not the case of the accused that

there was any prior enmity or rivalry between the family of the

prosecutrix and the accused prior to the incident. Indeed it has come

on record in the cross-examination of the complainant that when the

accused visited the house of the complainant, he was treated well and

offered a cup of tea. The defence that the accused went to the house

of the complainant to demand certain amount due and payable by the

father of the prosecutrix, is hardly confidence inspiring. It is not even

the version of the defence, that when such amount was allegedly

demanded, there was any dispute or altercation. It is difficult to

believe that the 11 years old prosecutrix could have been used as a tool

to falsely implicate the accused. The notions and prejudices of the

Indian society, unfortunately view rape as a stigma and the prosecutrix

and her family have to bear the burden for the entire life. I am

convinced that there was no motive for false implication. Moreover,

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
12 apeal199.16

the testimony of the prosecutrix is consistent and confidence inspiring

and is corroborated by medical evidence and the testimony of the

complainant.

15. The testimony of P.W.2 victim and P.W.1 Ziblabai is

corroborated not only by the medical evidence but further by the

report of the chemical analyzer Exhibits 35 to 37 which evidences that

the petticoat of the victim was torn and had several blood stains spread

across the petticoat. Human blood and semen is detected on the

clothes of the victim. The M.L.C. Exhibit 30 evidences injuries to the

private part of the victim caused due to forcible sexual intercourse.

The lower part of vagina is torn and lacerated. The bleeding from the

vaginal wound is seen in the examination.

16. The defence is that the victim Payal was playing on the

tractor trolley and the injury is caused while the victim was playing on

the tractor trolley. D.W.1 Panchfulabai claims to have met the accused

and his wife coming from the house of the complainant at around 4-00

p.m. on the date of the incident. She claims that the accused talked

with her, was in a hurry and upon being asked the reason to him, he

replied that his mother-in-law was serious and therefore, he was

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
13 apeal199.16

leaving. She claims that the accused alighted Payal from the tractor

trolley. She admits in the cross-examination that she has close

relations with the accused and denies the suggestion that she is

attempting to help the accused. D.W.2 who is wife of the accused only

states that while returning from the house of the complainant she and

the accused passed the house of D.W.1. She has not referred to any

conversation between D.W.1 and the accused. She states that the

victim was on the tractor trolley alongwith other children. She then

states that the accused went to Nagpur to see her mother and returned

after four days. In the cross-examination, she admits that she has no

proof of the train journey which the accused allegedly undertook to

reach Nagpur. She says that her mother was admitted to the

Government Hospital. She admits that she has not produced any

documentary evidence to show that her mother was admitted in

Government Hospital. The accused is examined as D.W.3. He states

that he had gone to the house of the complainant to demand the credit

amount due and after consuming a cup of tea, he left the house upon

the complainant informing him that it would not be possible to make

the payment as her daughter-in-law was ill. The accused claims that

his wife came to the house of the complainant and told him that her

mother was ill. He further claims that alongwith his wife he left the

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
14 apeal199.16

house of the complainant and while on way to their house he alighted

Payal from the tractor trolley as per the say of Panchfulabai D.W.1.

The inconsistencies and inter se contradiction between the testimonies

of D.W.1, D.W.2 and D.W.3 are far to glaring to give any credence to

the testimony. There is not even whisper in the testimony of D.W.1

that she asked the accused to bring down from the tractor trolley.

D.W.2 who is the wife of the accused does not mention this incident at

all. She does not state in her evidence that her husband and Payal had

interaction muchless that her husband/accused brought down Payal

from the tractor trolley. D.W.3 claims that he alighted Payal from the

trolley as per the say of D.W.1. An integral part of the story is the

alleged illness of the mother-in-law of the accused. D.W.2 wife of the

accused is alleged to have come to the house of the complainant only

to tell the accused that her mother was ill and thereupon the accused

claims to have hurriedly left the house of the complainant and then left

for Nagpur. The defence is of alibi. However, documentary evidence

which in the ordinary course would have been readily available, if the

story were to be true, is not produced. The mother-in-law of the

accused was admitted to Government Hospital, Nagpur, according to

D.W.2. Nothing is produced on record to substantiate this version.

The accused is said to have gone to Nagpur by train, again no

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::
15 apeal199.16

documentary evidence of the train travel is produced. The accused

could have examined ‘n’ number of witnesses vouching for the

presence of the accused in Nagpur at the relevant time. No attempt is

made by the defence to probablize the defence of alibi. It can be

concluded with certainty that the defence version that the accused was

not in the village when the incident occurred, is unbelievable. I have

no hesitation in discarding the defence evidence since the same is

wholly unreliable.

17. The judgment and order impugned of the learned Sessions

Judge, Gondia in Sessions Trial 82/2012 is unexceptionable on facts

and in law and no interference by this Court is warranted.

18. The appeal is without substance and is rejected.

The fees of the learned Advocate appointed for the

appellant is quantified at Rs.5,000/-.

JUDGE
adgokar

::: Uploaded on – 22/08/2017 23/08/2017 02:19:29 :::

Leave a Comment

Your email address will not be published. Required fields are marked *