Narayan Rajaram Waghade vs The State Of Mah, Thru Pso on 6 October, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.659 OF 2006

Narayan Rajaram Waghade,
Aged about 35 years,
Occ: Agriculturist,
R/o Warud, Tah. Warud,
District Amravati. ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through P.S.O. Shendurjanaghat,
District Amravati. ……. RESPONDENT
——————————————————————————————-
Shri R.M. Patwardha, Advocate for Appellant.
Shri H.R. Dhumale, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 26.09.2017
DATE OF PRONOUNCING THE JUDGMENT : 06.10.2017

1] The appeal is directed against the judgment and order

dated 10.10.2006 in Sessions Case 05/2006 delivered by the 3 rd

Adhoc Additional Sessions Judge, Amravati, by and under which,

the appellant (herein after referred to as “the accused”) is

convicted of offence punishable under section 376 (1) of IPC and

is sentenced to suffer rigorous imprisonment for seven years and

to payment of fine of Rs.500/-. The accused is however, acquitted

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of offence punishable under section 3(1)(xii) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities Act).

2] The appeal was called out for final hearing on

21.09.2017. Shri H.R. Dhumale, the learned Additional Public

Prosecutor was heard at some length. However, in view of the

difficulty expressed by Shri R.M. Patwardhan, the learned counsel

for the accused, further hearing was adjourned to 26.09.2017.

The learned counsel for the accused was absent on 26.09.2017.

In view of the absence of the learned counsel for the accused,

consistent with the dictum of the Hon’ble Apex Court in Bani

Singh and others vs. State of Maharashtra (1996) 4 SCC 720.

I have scrutinized the record with the able and fair assistance of

Shri H.R. Dhumale, the learned A.P.P. and propose to decide the

appeal on merits.

3] The case of the prosecution is that the complainant

Archana Wankhade who is the mother of the victim and the

accused are residents of village Dhanodi. The complainant belongs

to the Scheduled Caste. The incident occurred on 18.11.2005 at

07:30 p.m. or thereabout when the complainant, the victim, the

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other daughter and son of the complainant and the mother-in-law

and nephew were sitting in the fire place to ward of the chill.

The accused came, gave Rs.20/- to the complainant and said that

the amount is sent by the husband of the complainant, and made

himself comfortable near the fire place.

4] After sometime, everybody other than the

prosecutrix-victim and the accused went inside house. When the

complainant came out of the house she noticed that the victim

was not near the fire place. The victim is mentally challenged to

some extent. The complainant started searching for the victim and

along with her brother-in-law she went behind her house and

heard her daughter-victim weeping. The complainant and her

brother-in-law went towards the direction of the cries and saw

that the victim was lying on the ground and the accused was lying

on her person. The accused, on noticing the complainant and her

brother-in-law, fled. The complainant inquired with the victim

who stated that the accused gagged her mouth, removed her

clothes and committed forcible sexual intercourse.

5] The complainant lodged the First Information Report

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at Police Station Shendurjanaghat on 19.11.2005 on the basis of

which offence punishable under section 376 of IPC was registered

against the accused. The victim was medically examined.

Panchnama of the crime spot was recorded. Hair pin, hair, broken

bangles and chappal were seized from the spot. The accused was

arrested and medically examined. The clothes of the prosecutrix

and the accused were seized, statements of witnesses were

recorded and upon completion of the investigation charge-sheet

was submitted in the Court of Judicial Magistrate First Class,

Warud who committed the case to the Special Court. The learned

Special Judge framed charge Exh.2, the accused pleaded not

guilty and claimed to be tried. The defence of the accused as is

apparent from the trend of the cross-examination and from the

statement recorded under section 313 of the Cr.P.C. is of total

denial and false implication.

6] The prosecution has examined seven witnesses

including the complainant Archana Wankhede (P.W.2), Murlidhar

Wankhede (P.W.3) and the victim (P.W.4).

7] The testimony of P.W.2 Archana Wankhede is broadly

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consistent with the First Information Report. She has deposed that

the accused came to her residence at 07:30 p.m. or thereabout

when the complainant and her family including the victim were

sitting by the fire side to keep away the chill. The accused and the

victim were sitting at the fire side when the complainant and

other members of the family went inside the house. P.W.2 states

that when she came out her daughter was not to be seen and she

along with her brother-in-law Murlidhar started searching for the

victim. P.W.2 has deposed that she heard sound of weeping from

the backside of the residence and when she and Murlidhar went in

the direction of the sound the victim was lying on the ground and

the accused was lying on her person. She has deposed that when

the accused saw P.W.2 and Murlidhar he fled. The victim stated

that the accused gagged her, removed her salwar and knicker and

committed sexual intercourse with her. She has proved the oral

report and the printed FIR at Exh. 15 and 16 respectively.

The testimony of P.W.2 is not shaken in the

cross-examination. A suggestion is given to P.W.2 that the accused

Narayan Waghade is notorious (badmash) and quarrel some, to

which suggestion P.W.2 has answered in the affirmative. P.W.2

had denied that the accused is not on good terms with all the

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villagers. She has deposed that she is not aware at to whether at

the time of election there was an altercation between Murlidhar

and the accused. She has denied that the suggestion that due to

enmity, she has falsely implicated the accused.

8] P.W.3 Murlidhar, who is the brother-in-law of the

complainant P.W.2, has deposed that he accompanied P.W.2 in

the search of the victim. The testimony of P.W.3 is consistent with

that of P.W.2. He has categorically deposed that he saw the victim

lying on the ground and the accused lying on her person. He has

denied the suggestion that there was an altercation between him

and the accused at the time of election, and he is falsely

implicating the accused. Nothing is elicited in the

cross-examination of P.W.3 Murlidhar to discredit the witness.

9] P.W.4 is the victim. She was 15 years old when the

evidence was recorded. The victim has deposed that the accused

took her to the open land where villagers used to go to answer the

nature’s call, the accused removed her salwar and knicker and

committed sexual act. She has deposed that the complainant came

to the spot and then the accused fled. A solitary sentence is indeed

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brought on record which is to the effect that the accused gave

money and then went away and thereafter victim and other

members of the family were sitting near the fire to keep warm.

However, she has categorically denied the suggestion that the

accused did not commit sexual intercourse with her. Concededly,

the victim did suffer from mild mental abnormality. A stray and

isolated answer in response to a suggestion will not render the

testimony of the victim unreliable and untrustworthy. I am

satisfied, on overall appreciation of the testimony of the minor

victim that the testimony is confidence inspiring.

10] P.W.6 Dr. Sumati Khandare who has examined the

victim has proved the medico legal certificate Exh.23. P.W.6 states

that during the clinical examination she found the victim to be

suffering from congenital heart disease with mental abnormality.

P.W.6 has deposed that on clinical examination blood stains were

noticed on labia majora and minora and hymen was torn.

A suggestion is given to P.W.6 that there could be several reasons

for the existence of blood stains on labia majora and minora and

for the tearing of hymen, to which suggestion P.W.8 has

responded affirmatively.

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11] The spot panchnama and seizure panchnama have

been duly proved by P.W.1 Gulab and are marked Exhibits 12 and

13 respectively. He has deposed that hair pin, one rupee 2 coin,

ladies chappal, broken bangles and one duptta were sezied from

the spot. The testimony of P.W.1 Gulab is consistent with that of

Investigating Officer PSI Sanjay Dhumal who is examined as

P.W.7.

12] The evidence of the victim is confidence inspiring and

the conviction could have rested on her sole uncorroborated

testimony. In the factual matrix, other than the testimony of the

victim, P.W.2 and P.W.3 have witnessed the accused lying on the

person of the victim and have consistently deposed that the

accused fled after P.W.2 and P.W.3 arrived at the spot of the

crime. The testimony of the victim is more than amply

corroborated by the medical evidence on record. The defence of

false implication is noted only for rejection. Nothing is brought on

record to show that the complainant or the victim or P.W.3

Murlidhar were on inimical terms with the accused. Even

otherwise, it would be in the rarest of the rare cases that a mother

or close relative would use a child as a tool to wreck vengeance.

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I am satisfied, having closely scrutinized the original record, that

the judgment of conviction is unexceptionable.

13] I do not find any substance in the appeal and dismiss

the same.

14] The accused be taken into custody forthwith to serve

the sentence.

JUDGE

NSN

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