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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.324 OF 2017
Rauf Khan s/o. Noor Khan,
Aged 40 years, Occ. Nil, r/o.
Lalkhadi, District Amravati.
(In Jail). ………. APPELLANT
// VERSUS //
State of Maharashtra,
Through Police Station Officer,
Police Station, Batukali,
District Amravati. ………. RESPONDENT
None for the appellant.
Mr.S.M.Ghodeswar, A.P.P. for the Respondent/State.
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CORAM : B.R.GAVAI
AND
M.G.GIRATKAR, JJ.
DATED : 2ND APRIL, 2018.
ORAL JUDGMENT (Per B.R.Gavai, J) :
1. The appellant has approached this Court being aggrieved
by the Judgment and Order passed by the learned Additional
Sessions Judge-1, Amravati in Sessions Trial No.165 of 2010,
dt.6.1.2014 thereby convicting the appellant for the offence
punishable under Section 376(2)(g) of the Indian Penal Code and
sentencing him to suffer rigorous imprisonment for life. The learned
trial Judge has also imposed a fine of Rs.10,000/- on the appellant.
2. The prosecution case, in brief, is thus :
Vilas Ramkrushna Madar (PW-1) had lodged a report at
Police Station, Bhatkuli stating therein that the prosecutrix, who was
a mentally retarded lady of about 35 years, had come to reside in
village Kawatha Bahale prior to one year of the incident. The
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villagers were not knowing her details. However, she used to roam
around in the village. The present appellant as well as another
accused Jalandar Vishnu Wadekar had visited the village and told the
villagers that they will treat and cure the prosecutrix. Out of
sympathy, the villagers collected money from the villagers as
contribution for the treatment of prosecutrix. On 4.2.2010,
treatment of the prosecutrix was started in the house of Wasudeo
Wadekar. On 4.2.2010 and 5.2.2010, some rituals were performed.
On 6.2.2010, both the accused told the villagers that the prosecutrix
is to be treated within four walls. The villagers, therefore, permitted
the accused to use the room of water pump situated in front of the
house of Vilasrao Madar for treatment. The accused took the
prosecutrix in the room and started treatment. The villagers
gathered on the spot. After sometime, co-accused Jalandar came out
of the room. Accused Rauf Khan/appellant herein closed the door of
the room from inside. The villagers were sitting outside the room.
They were curious about the type of treatment going on inside the
room. Vilas Ramkrushna Madar (PW-1) peeped from the part of the
window and seeing that the appellant was committing sexual
intercourse with the prosecutrix, he called the other villagers. Other
villagers including Pramod Pralhadrao Wankhade (PW-2) saw from
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the window that the appellant was sleeping on the prosecutrix. Her
saree was lifted up. Chain of the pant of appellant was open and he
was committing sexual intercourse with the prosecutrix. Thereafter,
commotion took place and the villagers asked accused Rauf Khan to
open the door. At that time, the prosecutrix was trying to open the
door, but the accused was obstructing the prosecutrix from doing so.
She succeeded in opening the door. The accused came out of the
room, went near the bucket of water and washed the front side
bottom of his shirt first. Thereafter, the villagers caught hold of the
accused and informed to Police on phone about the incident. Police
took the accused persons and the prosecutrix to Police Station. On
the basis of oral report of Vilas (PW-1), the First Information Report
came to be registered for the offence punishable under Section
376(2)(g) of the Indian Penal Code r/w. Sections 3, 4 and 7 of the
Prevention of Drugs and Black Magic Act, 1954. After investigation
was complete, charge sheet came to be filed in the Court of Judicial
Magistrate, First Class, Bhatkuli. Since the case was exclusively
triable by the learned Sessions Judge, it was committed to the Court
of learned Sessions Judge, Amravati. Learned trial Judge framed
charges below Exh.60. The accused pleaded not guilty and claimed
to be tried. At the conclusion of trial, the learned trial Judge
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convicted the appellant, as aforesaid. However, he was acquitted of
the offence punishable under Sections 3, 4 and 7 of the Prevention of
Drugs and Black Magic Ac, 1954. Being aggrieved by his conviction
as stated above, the present appeal is filed by the appellant.
3. With the assistance of the learned A.P.P., we have
scrutinized the evidence on record.
4. Vilas Ramkrushna Madar (PW-1) is the first informant.
In his evidence, he has stated that there was a mad woman in their
village roaming around. Both the accused had come to the village
and offered to treat her. The villagers agreed for the same and
collected money as a contribution for treatment of prosecutrix Vimal.
It is stated in evidence that, in the room of water pump of water
supply, treatment was started. He and the villagers were present
outside the room. After sometime, Jalandar came out of the room.
Accused Rauf Khan closed the door from inside. Jalandar was
standing beside the room at some distance. He pipped inside the
room so as to see what type of treatment was going on inside. He
saw the appellant on the body of Vimal. His pant and nicker was pull
down. Saree of Vimalbai was lifted up. He was having sexual
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intercourse with her. Thereafter, he immediately called the other
persons including Pramod Wankhade and Arun Sawai. He abused the
appellant. He asked the appellant whether this was the treatment.
They were asking appellant Rauf Khan to open the door, but he was
not opening the same. Vimalbai opened the door. The appellant
washed the stains on his clothes. The villagers caught hold of the
appellant. He informed the incident to Police Patil of village so as to
inform the same to Police Station. Police came on the spot. Vilas
(PW-1) has been thoroughly cross-examined. Though there are
certain minor omissions and contradictions in his evidence with
regard to the appellant committing sexual intercourse with the
prosecutrix, the same have remained unshattered. The evidence of
this witness is corroborated by the First Information Report, which is
lodged immediately after the incident.
5. Evidence of Pramod Pralhadrao Wankhade (PW-2) is on
the similar lines. He corroborates the version given by Vilas (PW-1).
Evidence of these two witnesses i.e. Vilas (PW-1) and Pramod (PW-
2) is further corroborated by the evidence of Sahebrao Mahadu
Jagdale (PW-5), who was a Police Sub-Inspector of Badnera Police
Station at the relevant time. He states that, after Police Patil of
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village Kawtha Bahale informed regarding the incident, he went to
the spot. The villagers informed him that two persons who were
caught had committed rape on the victim. Evidence of Dr.Samta
Pandurangrao Dhole (PW-4) also corroborates the version of other
witnesses.
6. Learned trial Judge has found that the evidence of eye
witnesses was reliable. Learned trial Judge had an occasion to
witness the demeanor of eye witnesses. We see no reason to
disbelieve the ocular testimonies of the two eye witnesses, which are
duly corroborated by the First Information Report and the evidence
of Investigating Officer. In the result, no merit is found in the appeal.
Hence, the appeal is dismissed.
JUDGE JUDGE
[jaiswal]
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The case of prosecution against the appellant, in short, is as
under :
Kisanrao Bobde was sleeping in the night in front of his house
on road. Previously, his son Santosh used to sleep at that place since
several days. Prior to 3-4 days from the time of incident, Kisanarao
Bobde was sleeping on that place. They had purchased a cooler
before 3-4 days of incident. However, the air of cooler not suited
him. Therefore, he was sleeping outside the house. Kisanrao was in a
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deep sleep. At about 2.00 a.m., accused dealt a sickle blow to his left
side of stomach. He shouted loudly by saying “are baapre”. He saw
the accused. When he turned on left side, accused dealt second blow
of sickle on right side of stomach.
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