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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