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The State Of Mah & Ors vs Chhotulal Kalu Patil & Ors on 19 January, 2018

Cri. Appeal No.238/2006
(( 1 ))

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.238 OF 2006

The State of Maharashtra,
(Through Sakhubai Ravindra
Gavhane of Bahute, in Cr. No.
151/1997 of Parola P.S.) … APPELLANT
(Original Complainant)
VERSUS

1. Chotulal Kalu Patil
Age 39 years,

2. Kashinath Kalu Patil
Age 51 years,

3. Bhatulal Kalu Patil
Age 51 years,

4. Ranjit @ Ashok Bhatulal Patil
Age 20 years,

5. Hirabai w/o Bhatulal Patil,
Age 45 years

6. Shilabai w/o Chotulal Patil,
Age 35 years

7. Hirabai @ Sulochana w/o Kashinath
Patil, Age 38 years

All R/o Bahute, Tq. parola
District Jalgaon … RESPONDENTS
(Original Accused No.1 to 7)

…..
Shri V.M. Kagne, A.P.P. for appellant/ State
Shri A.K. Tiwari, Advocate for respondents
…..

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Cri. Appeal No.238/2006
(( 2 ))

CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.

DATED : 19th January, 2018.

JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. Vires of the judgment dated 29.10.2005, passed by

Adhoc Additional Sessions Judge, Amalner in Sessions Case

No.7/1998 is challenged by the State, wherein accused No.1

was acquitted of the offence punishable under Section 376 of

the Indian Penal Code and all accused Nos.1 to 7 were

acquitted of the offense punishable under Sections 452, 313,

504, 506 read with Section 34 of the Indian Penal Code and of

the offence punishable under Section 3(1)(xi) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act (in short the Atrocities Act) as well as under

Section 7(1)(d) of the Protection of Civil Rights Act (P.C.R. Act

for short).

2. The prosecution case is that, the prosecutrix widow

used to reside at village Bahute, Taluka Parola, District

Jalgaon along with her three minor children, jointly with her

mother Dagubai Baburao Bawiskar and family members of two

brothers namely Pundlik Baburao Baviskar and Ravindra

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Cri. Appeal No.238/2006
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Baburao Bawiskar. Accused Nos.1 to 7 are also residents of

same village. Accused No.1 is financially sound agriculturists.

Accused Nos.2 and 3 are brothers of accused No.1. Accused

No.4 is son and accused No.5 is wife of accused No.3.

Accused No.6 is wife of accused No.1. Accused No.7 is wife of

accused No.2.

3. Six months prior to registration of F.I.R. at Police

Station Parola, the prosecutrix (P.W.2) was engaged by

accused No.6 along with other female labours for performing

certain agricultural work in the field of accused Nos.1 to 7.

On that day, as the victim was not having the required articles

for performing the said agricultural work, she requested the

accused No.6 to provide those articles. In response, the

prosecutrix was directed to get those articles from the hut

situated nearby the field of accused persons. However, when

the prosecutrix alone went to that hut to fetch those articles,

that time, suddenly accused No.1 entered in that hut and

without consent of prosecutrix, despite her resistance, had

forcible sexual intercourse with her inside the said hut. After

occurrence of this incidence, the prosecutrix performed the

agricultural labour work in the field of accused persons as she

was threatened by accused No.1. Being unprotected helpless

woman, the prosecutrix kept mum. However, two days

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Cri. Appeal No.238/2006
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thereafter, again when prosecutrix went to nearby forest area

at village Nagaon to collect fuel, that time again accused no.1

committed rape on the prosecutrix in the nearby water

streamlet. Despite this second incident of rape, the

prosecutrix maintained silence only on account of threatening

by accused No.1. Thereafter for number of times in the same

forest area the accused No.1 had committed rape on the

prosecutrix, which resulted into her pregnancy. When the

prosecutrix disclosed this condition to her mother Dagubai and

when she disclosed the name of the accused No.1 as a person

responsible for her pregnancy, Dagubai and brothers of the

prosecutrix approached accused no.1 and informed him about

the condition of the prosecutrix. However, they were also

threatened by accused No.1. That time, accused No.1

informed the family members of the prosecutrix that he would

arrange for termination of pregnancy of the prosecutrix. As

the accused No.1 was financially sound and politically

influential person, due to his terror in the area, even the

family members of the prosecutrix did not take any action

against the accused persons.

4. On 9.8.1997 at about 3.00 p.m., accused persons

paid visit to the residence of the prosecutrix and they took her

and her mother Dagubai to Godawari hospital at Jalgaon by

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Cri. Appeal No.238/2006
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private Matador. At Godawari Hospital, Jalgaon, the

prosecutrix was admitted under fictitious name and ultimately

her pregnancy was terminated against her wishes. After this

occurrence, prosecutrix and her mother returned to her

residence. However, even thereafter accused kept watch on

the prosecutrix and her family members. Thereafter accused

persons started abusing the prosecutrix and her family

members on account of their caste and thereby insulted them.

At last, on 31.8.1997, the prosecutrix lodged report to Police

Station, Parola. In the result, above said offences came to be

registered. Accused were arrested and after completion of

investigation, charge sheet was filed before the Judicial

magistrate, First Class, Parola against accused Nos.1 to 7.

5. The offence punishable under Section 376 of the

Indian Penal Code being exclusively triable by Sessions Court,

this case was committed to Additional Sessions Judge,

Amalner. The then Additional Sessions Judge framed charge

Exh.8 against accused No.1 for the offence punishable under

Section 376 of the Indian Penal Code and against accused

Nos.1 to 7 for the offence punishable under sections 452, 313,

504, 506 read with Section 34 of the Indian Penal Code;

under Section 3(1)(xi) of the Atrocities Act and under Section

7(1)(d) of the P.C.R. Act.

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Cri. Appeal No.238/2006
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6. Prosecution examined total 7 witnesses. After

considering the oral and documentary evidence placed by the

prosecution, the learned trial Court pleased to acquit the

accused persons of all the charges. The said judgment is

challenged in the present appeal by the State of Maharashtra.

7. Heard strenuous arguments submitted by learned

A.P.P. for the State and Shri A.K. Tiwari, learned counsel for

the accused persons. Learned A.P.P. submitted that, the

prosecutrix being unprotected helpless widow, the delay in

lodging the F.I.R. cannot be viewed with suspicion. His next

submission is that, the testimony of prosecutrix, though not

supported by any witness, can be relied upon to base the

conviction of the accused. He has drawn our attention

towards the testimony of Dr. Patil (P.W.4), who has identified

the accused at Blood Bank.

8. Learned counsel for the respondents/ accused

submitted that, no evidence has been placed on record by

prosecution to prove that the victim belongs to Scheduled

Caste and, therefore, the provisions of Atrocities Act or P.C.R.

Act are not attracted. His next submission is that, the

testimony of victim is so contradictory that reliance cannot be

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Cri. Appeal No.238/2006
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placed to base the conviction.

9. With the help of learned counsel for both sides, we

have gone through the evidence of all prosecution witnesses.

Dilip Akhade (P.W.1) is a panch witness. He deposed

regarding the preparation of the spot panchanama (Exh.29) in

the hut. However, as per recitals of the panchanama Exh.29,

no incriminating article was seized from the said hut.

Therefore his evidence is useless piece of evidence. Dr.

Bhanudas Patil (P.W.3) examined the accused No.1 and

opined that the accused No.1 was capable of committing

sexual intercourse. However, evidence of this witness is also

of no use unless the testimony of prosecutrix is proved to be

trustworthy to establish the occurrence of the incident.

10. The prosecutrix entered in witness box as P.W.2.

She deposed regarding commission of rape by accused No.1

inside one hut and the second incident of rape near forest

area. However, it cannot be ignored that, after these two

incidents of rape, the report was lodged after nearabout six

months. Learned A.P.P. for the State tried to give explanation

that due to threatening by accused No.1 the prosecutrix might

have kept mum. However, as rightly pointed out by learned

defence counsel, after commission of the rape, when

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Cri. Appeal No.238/2006
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prosecutrix returned to home, she was in the company of her

mother and two brothers. At least at her house she had no

reason to keep mum if she was really raped by the accused

No.1. Keeping total silence by prosecutrix till she conceived

the pregnancy period of four months is definitely abnormal

behaviour of the prosecutrix.

11. Another important aspect is that, despite

commission of the rape, for that entire day prosecutrix worked

in the field of accused No.1. In natural course, she would

have definitely disclosed the occurrence of such mishap to

other female companion labours. Total inaction on the part of

prosecutrix for the period of six months from the alleged

incident of forcible sexual intercourse by accused No.1 is

absolutely doubtful circumstance. Thus, possibility cannot be

ruled that, prosecutrix had sexual intercourse with the

accused No.1 with her full consent.

12. Another important aspect is that, the prosecutrix

named the accused No.1 as responsible person for her

pregnancy. From the testimony of Dr. Ulhas Patil (P.W.4),

who was the incharge of Godawari Hospital, Jalgaon, where

the pregnancy of prosecutrix was terminated, it emerges that,

on 9.8.1997 the prosecutrix visited the Godawari Hospital with

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Cri. Appeal No.238/2006
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her mother and not with anyone of the accused person. Dr.

Ulhas Patil (P.W.4) has only identified the prosecutrix in the

Court as the same woman whose pregnancy was terminated.

From the cross-examination of Dr. Patil (P.W.4), it becomes

clear that, though he enquired with the prosecutrix (P.W.2),

she did not inform him about the alleged commission of rape

by accused No.1 or even regarding presence of accused No.1

in the hospital. Even the testimony of Dagubai (P.W.5), who

is the mother of prosecutrix, falls short to connect the accused

with the alleged crime for the simple reason that, from her

cross-examination, it becomes clear that, she deposed before

the Court as per the instructions of her daughter. Thus, the

testimony of Dagubai (P.W.5) was rightly discarded by learned

trial Court. Even the evidence of Dr. Ulhas Sonwane (P.W.6),

who used to work as Blood Transfusion Officer at Pravara

Medical Trust, Loni, can only establish that, on 9.8.1997, he

received request letter from Godawari hospital for Unit of

Blood of Group B+. From his further testimony, it emerges

that, one Kashinath Patil and Pramod Chavan donated blood to

the said Blood Bank. However, this witness did not identify

accused No.2 as the same Kashinath Patil who donated blood

on 9.8.1997. Therefore, the evidence of Dr. Sonwane (P.W.6)

is nothing but useless piece of evidence.

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Cri. Appeal No.238/2006
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13. Laxman Dusane (P.W.7) is the investigating officer,

who investigated this crime. However, his evidence is only

formal in nature. Thus, after careful scanning of the evidence

placed on record, it emerges that, no substance is placed on

record to prove that the victim belonged to Scheduled Caste.

Therefore, obviously provisions of the Atrocities Act or P.C.R.

Act will not be attracted in the present matter. As observed

above, due to total abnormal behaviour of prosecutrix

(P.W.2), her evidence regarding commission of rape by

accused No.1 in hut as well as in water streamlet is not

acceptable without any corroboration. No evidence is on

record to show that at any time accused Nos.1 to 7 took the

prosecutrix to Godawari Hospital for termination of her

pregnancy. There remains no evidence on record to connect the

accused No.1 even with the alleged pregnancy of the prosecutrix.

In the circumstances, when testimony of prosecutrix (P.W.2) is

not trustworthy, there is no evidence on record to establish any

offence against any of the accused person. In the circumstances,

we have no hesitation to hold that the view taken by the learned

trial Court while acquitting all accused persons of all the charges

is most possible view and cannot be interfered in the present

appeal. The appeal being devoid of merits, deserves to be

dismissed. Hence the following order :

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Cri. Appeal No.238/2006
(( 11 ))

ORDER

(i) The Criminal Appeal No.238/2006 is dismissed.

(ii) Bail bonds of respondents/ accused shall stand

cancelled.

( SUNIL K. KOTWAL ) ( T.V. NALAWADE )
JUDGE JUDGE

fmp/

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