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

CRIMINAL APPEAL NO.691 OF 2002
WITH
CRIMINAL APPEAL NO 694 OF 2002

CRIMINAL APPEAL NO.691 OF 2002

Shri Raju alias Rajendra s/o. Natthuji Fule,
Aged 27 years, Occupation Agriculturist,
R/o. Singarkheda, Tahsil Narkhed,
District Nagpur …APPELLANT

…V E R S U S…

The State of Maharashtra,
Through Police Station Officer,
Police Station Narkhed, District Nagpur …RESPONDENT
——————————————————————————————-
Mr.R.M. Patwardhan, counsel for appellant.
Ms. T.H. Udeshi, Addl. Public Prosecutor for respondent / State.
——————————————————————————————-

CRIMINAL APPEAL NO 694 OF 2002

Sheshrao Mahadeo Waghmare,
Aged 21 years, Occupation Agriculturist,
R/o. Singarkheda, Tahsil Narkhed,
District Nagpur …APPELLANT

…V E R S U S…

The State of Maharashtra,
Through Police Station Officer,
Narkhed, District Nagpur …RESPONDENT
——————————————————————————————-
Mr. M. Hussain, counsel for appellant.
Ms. T.H. Udeshi, Addl. Public Prosecutor for respondent / State.
——————————————————————————————-

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CORAM:
ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT

: 15.11.2017
DATE OF PRONOUNCING THE JUDGMENT
: 30.01.2018

JUDGMENT

Criminal Appeal 691 of 2002 is preferred by accused

Raju alias Rajendra Fule who is convicted for offences punishable

under section 323, 342 and 376 of the Indian Penal Code (“IPC”)

and Criminal Appeal 694 of 2002 is preferred by accused Sheshrao

Waghmare who is convicted for offence punishable under section

324 read with section 107 of IPC, by and under judgment dated

12.11.2002 rendered by the 7th Adhoc Assistant Sessions Judge,

Nagpur in Sessions Case 85 of 2001. Accused Raju is sentenced to

suffer rigorous imprisonment for three months and to payment of

fine of Rs. 1,000/- for the offence punishable under section 323 of

IPC, is further sentenced to undergo rigorous imprisonment for

four months and to payment of fine of Rs 1,000/- for offence

punishable under section 342 of IPC and is sentenced to suffer

rigorous imprisonment for ten years and to payment of fine of

Rs. 5,000/- for offence punishable under section 376 of IPC.

Accused Sheshrao Waghmare is sentenced to suffer simple

imprisonment for three months and to payment of fine of Rs.

1,000/- for offences punishable under section 324 and 107 of IPC.

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The co-accused Arun Harle is acquitted of all offences.

2 The case of the prosecution is that the complainant –

prosecutrix was residing at village Singarkheda alongwith her

parents and sister. The incident occurred on 3.8.2000. The

prosecutrix (PW 1), alongwith other women, was working in the

agricultural field of one Lilabai (PW 5). The accused came to the

field and demanded of Lilabai that the prosecutrix and her sister

Archana should not be permitted to work in the field and should

be driven out. The other women asked the accused to leave but in

vain. An angry prosecutrix proceeded towards her house and

when she reached the tar road in front of the field, the accused

again accosted her. Accused Raju pulled her by holding her hand.

Accused Sheshrao said that the prosecutrix be assaulted with

Ubhari (wooden stump of bullock cart). She was man handled,

accused Raju assaulted on her breast, back and mouth with fist

blows and then dragged her to the field having rows of Soyabin

and Jowar crops. Raju took her in the field with standing Soyabin

crop. Accused Arun and Sheshrao stayed out of field. Accused

Raju removed her gown and petticoat, tore and threw away her

brassiere and nicker and forcibly ravished her. The prosecutrix

shouted for help, but then there was anybody around. The

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prosecutrix started weeping and shouted and was dealt a fist blow

on teeth by accused Raju. She suffered abrasion on back, the

bangles broke due to which she suffered a wrist injury. The

accused assaulted her on lower abdomen by fist blows. The

prosecutrix told the accused that she would go home, inform her

father and lodge a report. Accused Arun fled, however, accused

Raju and Sheshrao stayed back and detained her in the field till

7.00 p.m. and only thereafter did they allow the prosecutrix to go

home. She reached home and narrated the incident to her uncle

Namdeo and her father and lodged the report.

On the basis of the said report (Exh. 9) offence punishable

under section 376, 342, 506 read with section 34 of Indian Penal

Code was registered against the accused, investigation ensued and

upon completion thereof, charge sheet was submitted in the Court

of Judicial Magistrate First Class, Narkhed who committed the

proceedings to the Session Court. The learned Sessions Judge

framed charge under sections 324, 354, 342 read with section 34

of IPC, 324 read with section 107 of IPC and 376 of IPC, the

accused abjured guilt and claimed to be tried in accordance with

law. The defence of the accused is total denial and false

implication.

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3 The prosecutrix is examined as PW 1. Her deposition

is broadly consistent with the contents of the oral report. She has

proved the oral report Exh. 9- and the First Information Report

(Exh. 9-A).

In the cross-examination, she has denied the suggestion that

she and accused Raju were in a relationship, which was not liked

by her family members. She has further denied the suggestion

that her uncle Namdeo and accused Raju are not on good terms.

The cross-examination is most cryptic and no serious effort is

made to challenge the version of PW 1, except giving 2 or 3

suggestions to buttress the defence of false implication. In cross

examination on behalf of accused Arun and Sheshrao, PW 1 is

suggested that accused 2 and 3 did some work in the field of the

prosecutrix and were not paid labour charges by her father which

non payment led to a altercation.

4 The medical evidence may now be considered. PW 4

Dr. Supriya Sood, who was then deputed to Daga Hospital as

lecturer in gynecology, examined the prosecutrix and issued

examination report Exh. 22. PW 4 has deposed that since there

was no injury on external genital region and the hymen was intact,

she did not examine the vagina. PW 4 has deposed that she

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noticed contusion on lower lip and abrasion on left breast of the

prosecutrix.

The only suggestion given on behalf of accused Raju is that

PW 4 did not examine the prosecutrix while accused 2 and 3

declined to cross-examination PW 4.

5 PW 7 Dr. Sanjay Solanki who examined the accused

has deposed that he noticed an abrasion on left neck of accused

Raju admeasuring 2 x 1 cm. No injury was detected on the genital

region. PW 7 has deposed that accused Sheshrao had multiple

abrasion on the right side chest of size 2 x 1 cm.

6 PW 3 Abdul Razaq is the witness to the spot

panchanama (Exh. 13) and seizure panchanamas (Exh. 14) and

(Exh. 15). The spot panchanama records that pieces of red

coloured bangles, beri (ear ornament) of yellow metal, one hook

of pant, a pin and a packet containing tobacco are noticed on the

spot. PW 3 is also panch to the seizure memo evidencing the

seizure of the clothes of the accused Raju. However, since PW 3

admits in the cross-examination that the seized clothes were lying

at the police station and he is deposing on the basis of the

information given by the police that the clothes belonged to

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accused Raju, the evidence of PW 3 as regards the seizure of the

clothes of accused Raju must be kept out of consideration.

However, PW 3 has proved the seizure of the articles lying on the

spot and recorded in the spot panchanama, by proving seizure

panchanama Exh. 13. The other panch Arun Zade (PW 9) has

proved the spot panchanama Exh. 12, but has deposed that no

articles were seized in his presence and that his signatures were

obtained in the Police Station after 2 to 4 days. His testimony is of

scant assistance to the prosecution.

7 PW 5 Lilabai has not supported the prosecution.

Nothing is elicited in her cross-examination to assist the

prosecution. The witness who is material, other than the

prosecutrix herself, from the perspective of the prosecution is PW

6 – Archana who is the younger sister of the prosecutrix. She

states that the accused came to the field of Lilabai, they were

under the influence of liquor, the prosecutrix was abused and

Lilabai asked the prosecutrix to return to her house. She states

that when the prosecutrix was proceeding her house, the accused

were accompanying her. She states that when she returned home

at 6.00 p.m., she came to know from her father that the

prosecutrix had not come home. PW 6 conveyed to her father that

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the prosecutrix left the field to go home in the afternoon, the

prosecutrix came home at 7.30 or 8.00 p.m., her lips were

bleeding and clothes were smeared with mud and were torn. PW

6 states that the prosecutrix told her that she could not come

home as she was detained by the accused. The statement that

when the prosecutrix proceeded towards her house, the accused

followed her is brought on record as omission.

8 PW 2 Sahebrao is the father of the prosecutrix who

has deposed that when the prosecutrix returned at 7.30 p.m., her

clothes were soiled with mud and she narrated that she was

detained by the accused and that Raju committed sexual

intercourse with her.

The statement that when the prosecutrix came home, the

clothes were with mud is an omission. PW 2 has denied the

suggestion that the accused 2 and 3 are falsely implicated since

there was a dispute on the issue of payment of labour charges.

9 Shri R.M. Patwardhan, the learned counsel for the

appellant submit that the version of the prosecution that she was

forcibly detained against her will from 1.30 p.m. or thereabout to

7.00 p.m., is doubtful. The conduct of PW 6 Archana of

continuing with her work in the agricultural field despite the

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abuses and threats hurled at the prosecutrix by the accused who

followed the prosecutrix when she proceeded towards house, is

unnatural. The medical evidence is not consistent with forcible

and violent sexual intercourse, is the submission. Per contra, Ms.

T.H. Udeshi, the learned Additional Public Prosecutor submits that

the evidence of the prosecutrix is consistent with First Information

Report which is lodged with promptitude. The evidence is not

shaken in the cross-examination and indeed, in the cryptic cross-

examination there is hardly any challenge to the core or

substratum of the testimony of the prosecutrix, is the submission.

That the hymen was not ruptured, does not exclude rape, since

even the slightest penetration in the vulva, with or without

emission of semen or rupture of hymen constitutes rape, is the

submission.

10 The prosecutrix is not an accomplice. Insisting on

corroboration is adding insult to the injury, unless the Court is

impelled to search for corroboration in view of any infirmity in the

evidence which renders the evidence unworthy of implicit reliance

and credence. The pivotal question is whether the evidence of

the prosecutrix is implicitly reliable, trustworthy and confidence

inspiring. The First Information Report is lodged with reasonable

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promptitude. The testimony of the prosecutrix (PW 1) is

consistent with the First Information Report lodged by her. The

substratum of the testimony has gone virtually unchallenged. In

the cryptic cross examination, two suggestions are given to her to

bring on record the defence that the accused are falsely

implicated. The first suggestion is that she and accused Raju were

in a relationship, which her family disliked. The other suggestion

given to her is that her uncle Namdeorao and the accused are on

inimical terms. The testimony of the prosecutrix is not shaken in

the cryptic cross examination. Indeed, as noted supra, there is no

attempt made to impeach the testimony on the substratum or core

thereof. The suggestions are denied. The suggestion that the

prosecutrix and accused Raju were in a relationship which the

family of the prosecutrix did not like, does not take the case of the

defence any further. Nothing is brought on record to suggest that

the prosecutrix lodged report at the behest of her family. If the

prosecutrix and accused were in love with each other, as is the

defence, why would the prosecutrix falsely implicate accused Raju

in a heinous offence and that too putting her own dignity and

honour and future life at stake, is not answered by the defence,

even on the touchstone of preponderance of probabilities. The

prosecutrix made an immediate disclosure to her father Sahebrao

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(PW 2). The evidence of prosecutrix PW 1 is corroborated by the

medical evidence. PW 4 Dr. Supriya Sood has proved the medical

examination report Exh 22. The prosecutrix had an abrasion over

her left breast and contusion on lower lip. The fact that the

hymen was intact does not exclude rape. Slightest penetration of

the male organ in the vulva, with or without emission of semen or

rupture of hymen constitutes rape. The evidence of PW 4 Dr. Sood

has gone unchallenged. PW 7 Dr. Solanki who examined accused

Raju noticed an abrasion with size 2 x 1 cm on the left neck. The

corroborative evidence lends assurance to the evidence of the

prosecutrix PW 1, which is even otherwise is confidence inspiring

and free from any infirmity. The conscious of this court is satisfied

that the conviction can rest solely on the testimony of PW 1 and

this Court is not obligated to search for corroboration. The fact

that in the factual matrix the testimony of the prosecutrix is

corroborated by the evidence of PW 2 Sahebrao, PW 6 Archana

and the medical evidence and the seizure of articles like broken

bangle pieces, or ring, hook of trouser only fortify and strengthen

the conviction that the prosecution has proved the offence against

accused Raju Fule beyond reasonable doubt.

11 However, the evidence on record is not cogent

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enough to hold that the offence against accused Sheshrao is

proved beyond reasonable doubt. Accused Sheshrao is convicted

of offence under section 324 read with section 34 of IPC. The

solitary statement in the evidence of the prosecutrix is that he

instigated other accused to beat the prosecutrix with Ubhari

(wooden stump of bullock cart). Concededly, it is not even the

case of the prosecution that pursuant to the instigation the

prosecutrix was assaulted with Ubhari. The prosecutrix was

indeed assaulted by accused Raju, the assault was in view of

resistance put up by the prosecutrix when she was sexually

ravished. It is difficult to hold that the offence punishable under

section 324 read with section 107 of IPC is proved against accused

Sheshrao. He is entitled to be acquitted of the said offence.

In the result I pass following order:

(i) The conviction of accused Raju Fule for offence

punishable under section 323, 342 and 376 of IPC and

sentence imposed is affirmed and maintained. Criminal

Appeal 691 of 2002 filed on behalf of accused Raju Fule is

dismissed.

(ii) The conviction of accused Sheshrao under section

324 and 107 of IPC is set aside. His bail bond stand

discharged. Criminal Appeal 694 of 2002 filed on behalf of

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accused Sheshrao Waghmare is allowed.

(iii) Accused Raju Fule be taken into custody forthwith to

serve the sentence. He shall be entitled to benefit under

section 428 of Code of Criminal Procedure.

(iv) Police Station Narkhed to assure that the accused is

taken into custody and compliance report submitted in the

Registry of this Court, within 15 days from the date receipt

of the judgment and order.

(v) Registry to communicate the order to Police Station

Officer, Narkhed, forthwith.

JUDGE

Belkhede, PA

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