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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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