State Of Maha vs Mahadeo Gaikwad on 31 October, 2017

Cri. Appeal No. 59/04
1

IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 59 OF 2004

The State of Maharashtra
Through Godabai w/o. Maruti Gurav,
Age 67 years, Occu. Labour,
R/o. Andur, Tq. Tuljapur,
Dist. Osmanabad. ….Appellant.
(Ori. Complainant)
Versus

Mahadeo Abhimanyu @ Abhiman Gaikwad
Age 30 years, Occu. Business,
R/o. Watchalanagar Zopadpatti,
Andur, Tq. Tuljapur, Dist. Osmanabad. ….Respondents.
(Ori. Accused)

Mr. S.D. Ghayal, APP for appellant/State.

CORAM : T.V. NALAWADE AND
ARUN M. DHAVALE, JJ.
DATED : October 31, 2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of

Sessions Case No. 186/2000, which was pending in the Court of 2nd

Additional Sessions Judge, Osmanabad. The respondent is acquitted

of the offences punishable under section 376 and 326 of Indian

Penal Code (‘IPC’ for short). Heard the learned APP.

2) The prosecutrix was aged about 65 years at the relevant

time and she was resident of slum area of Andur. In the past, one

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Muslim lady by name Banu was living in the hut of prosecutrix on

rent basis, as a tenant. It is the case of State that accused used to

visit the house of said Muslim lady and due to that, prosecutrix had

asked the said lady to vacate the premises. Prosecutrix was suffering

from leprosy and she was living by begging in village. It is the case

of State that the accused was angry with the prosecutrix as

prosecutrix had evicted aforesaid Muslim lady from her place.

3) The incident in question took place on 18.2.2000 at

about 9.00 p.m. It is the case of prosecution that accused entered

the hut and by using force, he took sexual intercourse with the

prosecutrix. Prosecutrix raised hue and cry, but nobody could hear it

as the floor mills in the vicinity of the house of the prosecutrix were

creating such noise that nobody could hear her hue and cry. After

having sexual intercourse, accused inflicted injury on private part of

the prosecutrix by using knife to express his anger against her.

Prosecutrix went to Naldurg Police Station and gave report against

the accused on the same day. The crime came to be registered at

C.R. No. 28/2000 for aforesaid offences at 13.20 hours of

19.2.2000. Prosecutrix was referred for medical examination and

she was medically examined. One C.L.W. was found on her private

part.

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4) Accused was not available for quite some time. During

the course of investigation, statements of some neighbours came to

be recorded. The clothes of the prosecutrix were taken over. The

clothes were sent to C.A. Office. The blood of prosecutrix was

detected on the clothes. The chargesheet came to be filed for

aforesaid offences. When the charge was framed for aforesaid

offences, accused pleaded not guilty. Prosecution examined in all five

witnesses. The Trial Court has not believed the prosecutrix for the

reasons recorded in the judgment.

5) The evidence of prosecutrix (PW 1) is as per aforesaid

case of prosecution. She has deposed that she was alone in her hut

and at about 9.00 p.m. of 18.2.2000 the accused raped her. She has

given evidence that she first went to police and after recording her

report in the morning, she was referred for medical examination.

The F.I.R. is proved as Exh. 19. In the F.I.R. also, it is mentioned

that she was referred to Government Hospital only after recording

the F.I.R.

6) The evidence of Dr. Rodke (PW 4) is not consistent with

the version given by prosecutrix. The evidence of Dr. Rodke shows

that on 19.2.2000 at about 6.40 p.m. prosecutrix was brought to

Civil Hospital Osmanabad by police constable for medical

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examination. The Medical Officer had taken vaginal swab. There was

old healed hymen tear. There was one C.L.W. over posterior aspect

of fornix of the size 2½ x 1 x 1¼ c.m. The evidence of doctor shows

that there were no marks of violence showing that force was used

against the prosecutrix. The C.A. report in respect of clothes of the

prosecutrix shows that only blood stains were detected on her

clothes.

7) In the evidence of Patil (PW 5), Investigating Officer, it is

brought on the record that on 19.2.2000 in the morning Medical

Officer of Primary Health Center, Andur had given information to

police in writing vide Exh. 32 that prosecutrix had approached the

Primary Health Center. This document at Exh. 32 and the evidence

show that the prosecutrix had informed to Primary Health Center

that some unknown person had inflicted injury on her private part by

using sharp weapon. This information, letter was sent by Primary

Health Center to police on 19.2.2000 at 11.50 a.m. Thus, prior to

registration of F.I.R., prosecutrix had approached Primary Health

Center and she had given such history to Primary Health Center. It

can be said that only after giving of information by Primary Health

Center to police, inquiry was made by police with prosecutrix and

then report at Exh. 19 of the prosecutrix came to be recorded. That

is why report was recorded at 13.20 hours of 19.2.2000. The

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evidence of Dr. Rodke shows that prosecutrix was referred by police

to Civil Hospital Osmanabad at 6.40 p.m. There is no explanation

with regard to Exh. 32 from prosecution.

8) The evidence of prosecutrix shows that there is no

connection of electricity to her hut. If the incident took place in the

night time, there is possibility that somebody assaulted her and

caused injury to her and accordingly, she had informed about it to

Primary Health Center. Only during giving of statement to police she

took the name of accused. No marks of violence for committing rape

were found on her person and only blood stains were detected on

her clothes and they were there only due to injury sustained by her

to her private part and that was caused by using weapon as per the

version of prosecutrix. Dr. Rodke (PW 4) has given evidence that it

was C.L.W. and such injury can be caused by hard and blunt weapon

and not by sharp weapon. No knife is recovered by police in the

present matter.

9) It can be said that the prosecutrix suspected

involvement of the accused and by exaggerating the things, she

made allegations against the accused. Other witnesses have turned

hostile. There is no evidence with the prosecution to show that

immediately after the incident prosecutrix had approached

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neighbours and she had disclosed the incident to them. The spot

panchanama is not disputed by defence and the document at Exh.

15 shows that on southern side there is house of Shankar Gaikwad

and on the east side, there is house of Shantabai Bansode. Thus, no

floor mill is shown in the vicinity of the hut of prosecutrix. These

circumstances also create doubt about the version given by the

prosecutrix. In the spot panchanama, no blood stains are

mentioned. Thus, there was nothing suspicious found in the hut,

showing that some incident had taken place in the hut. Thus, there

is no circumstantial check to the version given by the prosecutrix. It

needs to be kept in mind that as per the version of prosecutrix she

was suffering from leprosy and she has made allegations of

aforesaid nature against the accused. As there is no circumstantial

check, this Court holds that the Trial Court has rightly given benefit

of doubt to the accused. This Court sees no reason to interfere in the

decision given by the Trial Court. In the result, the appeal stands

dismissed.

[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]

ssc/

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