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Mohit Alias Dattatraya Vishnu … vs The State Of Maharashtra on 5 April, 2018

(902)APEALNo.762015(J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.76 OF 2015
WITH
CRIMINAL APPLICATION NO.493 OF 2018
IN
CRIMINAL APPEAL NO.76 OF 2015

Mohit @ Dattatraya Vishnu Waikar,
Age : 44 years, Occ – Driver,
R/at. Revali, Tal : Khatav,
Dist. Satara.
(At present languished in Central
Prison, Kalamba, Kolhapur) … Appellant/Applicant
V/s.
The State of Maharashtra,
(At the instance Aundh Police
Station, Aundh, Khatav,
District : Satara.) … Respondent

…..

Ms.Nasreen S.K.Ayubi, Appointed Advocate for the
Appellant/Applicant.

Mr.Prashant Jadhav, APP for the Respondent/State.

….

CORAM : A.M.BADAR J.

DATED : 5th APRIL 2018.

ORAL JUDGMENT :
1 Vide Criminal Application bearing No.493 of 2018,

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which came to be registered on the basis of communication sent
by the appellant/accused through jail, prayer is made to dismiss
the appeal and to direct grant of remission to the appellant. The
said communication by the appellant/accused is accompanied by
the letter dated 25/01/2018 of the learned Additional Sessions
Judge, Vaduj, whereby it was informed to the Superintendent of
Central Jail, Kolhapur that as appeal filed by the
appellant/accused is pending before this Court, opinion regarding
grant of remission cannot be given. The appellant/accused is
behind bars and undergoing the sentence imposed on him right
from February 2010 and that is how the appeal was required to be
taken up for hearing.

2 The appellant/accused, by this appeal, is challenging
the Judgment and Order dated 09/07/2012 passed by the learned
Additional Sessions Judge, Vaduj, District Satara in Sessions Case
No.70 of 2010 thereby convicting him of the offence punishable
under Section 376(2)(f) of the Indian Penal Code and sentenced
him to suffer rigorous imprisonment for ten years apart from
directing him to pay fine of Rs.5000/- and in default of payment of
fine to undergo further rigorous imprisonment for four months.

3 Facts in nutshell leading to the prosecution of the
appellant/accused are thus :

(a) P.W.No.3 Manda is a married woman residing separately from

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her husband since ten years prior to the incident because of
strained relations with her husband. The victim of the crime
in question is her ten year’s old daughter, who, at the relevant
time, was taking education in 4th Standard in the school run
by Zilla Parishad at village Revali. After separating from her
husband, P.W.No.3 Manda along with her daughter i.e. the
P.W.No.4 was residing with her mother at village Revali in
Khatav Taluka of Satara District. Her brothers namely
Mahadev and Arun were residing at Satara. For earning her
livelihood, P.W.No.3 Manda used to work as labourer with a
mason.

(b) The alleged incident took place at the residential house of the
appellant/accused on 21/10/2010. On that day, P.W.No.3
Manda – mother of the victim child P.W.No.4, as usual, left
her house for doing labour work in the morning hours. It was
Sunday. The P.W.No.4 along with her friend named Shejal
Waikar was playing near Ganesh Temple of village Revali.
The appellant/ accused called the P.W.No.4 as well as her
friend Shejal on the pretext of catching crabs. He caught
crabs from the nearby streams. Thereafter, accompanied by
the appellant/accused, the P.W.No.4 along with her friend
Shejal went to the house of the appellant/accused. He asked
them to cook the crabs on the hearth outside the house.
Daughter of the appellant/accused named Kajal was present
there.

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(c) After some time, the appellant/accused called the P.W.No.4
and her friend Shejal inside the house for plucking white hair
from his scalp. Shejal went outside the house in response to
the call of daughter of the appellant/accused. The appellant/
accused then closed the door of the house from inside and
committed forcible sexual intercourse with the P.W.No.4 after
threatening her to kill if she ventured to shout. As, because of
the act of the appellant/accused, the P.W.No.4 suffered
immense pain,she started shouting and crying. The appellant/
accused then woke up from the person of the P.W.No.4.
Knicker as well as frock of the P.W.No.4 was stained with
blood because of the act of the appellant/ accused. She then
returned to her house, but there was nobody at her house.
After sometime, mother of the P.W.No.4 returned to her
house and the P.W.No.4 then disclosed the incident to her
mother P.W.No.3 Manda. She, in turn, approached Sarpanch
of the village and disclosed the incident to him and others.
However, they did not take any action and, therefore, she
contacted her brother Mahadev telephonically. Mahadev
accompanied by his wife then reached to Revali from Satara
at about 2.00 a.m. in the night intervening 21/02/2010 and
22/02/2010. P.W.No.3 Manda accompanied by her daughter
went to Police Station, Aundh immediately and lodged report
(Exhibit 12), which resulted in registration of Crime No.12 of
2010 under Section 376 of the IPC.

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(d) The appellant/accused came to be arrested. On the basis of
his disclosure statement, his pant as well as T-shirt came to be
seized. The spot was inspected. The quilt came to be seized
from the spot. The P.W.No.4 was sent to Rural Hospital,
Aundh from where she was referred to the Civil Hospital,
Satara, where she was examined medically. Her clothes came
to be seized. The seized articles were sent for chemical
analysis. On completion of routine investigation, the
appellant/accused came to be charge-sheeted.

(e) The charge for offence punishable under Section 376(2)(f) of
the IPC was framed and examined to the appellant/accused.
He pleaded not guilty and claimed trial.

(f) In order to bring home the guilt to the appellant/accused, the
prosecution has examined in all nine witnesses. P.W.No.1
Shivprasad Patil is a panch witness to the spot-cum-seizure
panchnama (Exhibit 9). P.W.No.2 Nurmohammad Shaikh is a
panch witness to the memorandum statement (Exhibit 12)
and resultant recovery panchnama (Exhibit 11). P.W.No.3
Manda is mother of the victim female child. She has lodged
the FIR (Exhibit 21) against the appellant/accused. The
P.W.No.4 is the victim female child. P.W.No.5 Dr.Vilasrao
Salunkhe, Medical Officer of Rural Hospital, Aundh had
referred the victim to the General Hospital, Satara. P.W.No.6

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Dr.Subhash Kadam, Medical Officer of Civil Hospital, Satara
had issued the certificate (Exhibit 32) on the basis of record
of medical examination of the P.W.No.4. P.W.No.7 Dr.Shivaji
Sonawale, Medical Officer of Civil Hospital, Satara had
medically examined the P.W.No.4 and prepared the papers of
medical examination and treatment of the P.W.No.4.
P.W.No.8 Gani Nagarjee is a panch witness to the seizure of
clothes of the victim, whereas P.W.No.9 Balasaheb Mule is the
Investigating Officer.

(g) The defence of the appellant/accused was that of total denial.

According to the defence version, the appellant/accused is
falsely implicated in the crime in question because of strained
relations with the prosecuting party due to dispute in respect
of irrigating the fields and because of frequent quarrel
between maternal uncle of the P.W.No.4 with the daughter of
the appellant/accused.

(h) Upon hearing the parties, by the impugned Judgment and
Order dated 09/07/2012, the learned trial Court was pleased
to convict the appellant/accused for the offence punishable
under Section 376 (2)(f) of the IPC and accordingly, he came
to be sentenced as indicated in the opening paragraph of this
Judgment.

Gaikwad RD                                                                      6/15

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4 I heard Ms.Nasreen Ayubi, the learned Advocate

appointed to represent the appellant/accused at the cost of the
State. She argued that case of the prosecution is not free from
doubts as, though during the course of the incident, friend of the
victim namely Shejal Waikar as well as daughter of the
appellant/accused namely Kajal Waikar were outside the house,
both of them are not examined by the prosecution. The spot of
the incident i.e. house of the appellant/accused was a small one
room house admeasuring about 12 x 12 feet and it was
surrounded by houses, school as well as temple. There was main
road passing from the front portion of the house of
appellant/accused. Many persons used to be present near the
house of appellant/accused. Further, the prosecutrix has not
raised hue and cry nor the incident was noticed by the passers-by
and the people in the vicinity. Mr.Ayubi, the learned Advocate
further argued that opportunity of cross-examining the
prosecution witnesses was not accorded to the appellant/accused
and therefore, his conviction and resultant sentence gets vitiated.
Therefore, the appellant/accused is entitled to acquittal.

5 The learned Additional Public Prosecutor supported
the impugned Judgment and Order by contending that evidence of
prosecution coming from the mouth of the P.W.No.4 is clinching
and therefore, conviction of the appellant/accused is proper.

Gaikwad RD                                                                         7/15

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6 The case in hand is a case of commission of forcible

sexual intercourse on a female child, who, at the relevant time,
was aged about ten years. The undisputed position, which is
emerging on record and particularly, from cross-examination of
the prosecution witnesses viz. P.W.No.3 Manda and the P.W.No.4

- the victim of the crime in question, is to the effect that at the
time of incident i.e. on 21/02/2010, the P.W.No.4 was taking
education in 4th Standard at the school run by Zilla Parishad. On
the day of the incident, she was playing with her friend namely
Shejal Ashok Waikar. The appellant/accused has two children.
Babu is his son, who was also taking education in the school in
which the P.W.No.4 was studying. Therefore, the P.W.No.4 used
to visit the house of the appellant/accused and Babu also used to
visit her house. Name of the another child of the appellant/
accused is Kajal. From cross-examination of the P.W.No.4, it is
brought on record that daughter of the appellant/accused namely
Kagal also used to play with the P.W.No.4 and her friend Shejal
Waikar. These facts are having bearing on appreciation of
evidence adduced by the mother of the victim as well as the victim
of the crime in question.

7 It is in evidence of the P.W.No.4 that on 21/02/2010,
she and her friend Shejal Waikar were playing near the temple of
Lord Ganesh and house of the appellant/accused was situated
nearby that temple. The appellant/accused came towards them

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and took both of them to the adjacent stream for catching crabs.
Thereafter, they all returned to the house of the appellant/accused
and the appellant/accused asked them to cook those crabs on the
hearth situated outside the house. At that time, as per version of
the P.W.No.4, daughter of the appellant/accused namely Kajal was
also present outside the house. Then, as stated by the the
P.W.No.4, the appellant/accused called her friend Shejal inside the
house for plucking his white scalp hair. Therefore, they both went
inside the house of the appellant/accused.

8 What happened thereafter is stated by the prosecutrix
in cogent and clear manner. She stated that thereafter daughter of
the appellant/accused namely Kajal gave a call to Shejal to come
out with the pot of water. Hence, Shejal went outside of the house
and at that time, the appellant/accused asked her to close the
door. Thereafter, the appellant/accused spread the quilt on the
floor and latched the door from inside. Then, the appellant/
accused removed her knicker and also removed his pant. The
P.W.No.4 was then made to lay on the quilt and the
appellant/accused mounted on her and committed rape on her. At
that time, the appellant/accused has threatened to kill her, if she
dared to raise alarm. The P.W.No.4 further deposed that because
of act of the appellant/accused she started weeping and raised
alarm loudly making the appellant/accused to wake up from her
body. The P.W.No.4 further deposed that she started bleeding.

Gaikwad RD                                                                         9/15

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Wearing her knicker, she left the house and returned back to her
home. Her knicker and frock were stained with blood. On return
of her mother from work, she disclosed the incident to her mother.

9 In cross-examination of the P.W.No.4, it is brought on
record that Ganesh Temple, school and other houses are
surrounding the house of the appellant/accused. The road passes
from the front side of his house. With this, it was attempted to
show that the P.W.No.4 did not raise any hue or cry. However, it
needs to be noted that the appellant/accused had overpowered the
P.W.No.4 and had threatened her not to shout. Similarly, it also
needs to be noted that the P.W.No.4, who was just 10 years old,
minor female child pitted against a fully grown adult male and as
such, it was not expected of her to make a hue and cry. The
P.W.No.4 had denied the suggestion that their relations with the
appellant/accused were strained.

10 P.W.No.3 Manda in her statement before the Court had
stated that on her return from work at about 6.30 p.m. on
21/02/2010, she found her daughter weeping. Thereafter, her
daughter told her that when she and her friend Shejal were
playing, the appellant/accused took them to his house and when
Shejal went out of the house, he committed rape on her.
P.W.No.3 Manda has stated that her daughter was found bleeding
and frock and knicker of her daughter were stained with blood.

Gaikwad RD                                                                        10/15

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She though disclosed the incident to Laxman Waikar - Sarpanch
as well as others, they had not taken any action. Hence, she
telephonically disclosed the incident to her brother Mahadev, who
was residing at Satara. Mahadev along with his wife then came to
village Revali at about 2.00 a.m. and by that vehicle she along
with her daughter went to Police Station, Aundh and lodged
report (Exhibit 21).

11 In her cross-examination, P.W.No.3 Manda denied that
her relations with appellant/accused are strained due to dispute in
respect of irrigating the fields and that there used to be frequent
quarrel between her brother and daughter of the appellant/
accused. Thus, it is attempted to show that the appellant/accused
is falsely implicated in the crime in question because of his
strained relations with the prosecuting party. These suggestions
are as vague as those can be. There is nothing on record to
suggest that P.W.No.3 Manda, who was working as a labourer
with a mason, was owning some irrigated agricultural field.
Similarly, from cross-examination of the P.W.No.4, it is brought on
record that daughter of the appellant/accused is also a child, used
to play with the P.W.No.4. In the wake of this material, it is
unbelievable that brothers of P.W.No.3 Manda, who were residing
at Satara would indulged in frequent quarrel with the minor
daughter of the appellant/accused. Thus, this theory of false
implication because of dispute in respect of irrigating the fields is

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totally undigestable. The victim of the crime in question, at the
relevant time, was just ten years of age and her mother had
undergone separation from her father since prior to ten years of
the incident. In such situation, it is improbable nay impossible for
P.W.No.3 Manda to falsely implicate the appellant/accused at the
cost of ruining the future of her minor daughter. The FIR of the
crime in question is lodged with promptitude and the said FIR at
Exhibit 21 is fully supporting the version of P.W.No.3 Manda.
Evidence of P.W.No.3 Manda is proving the former statement of
the victim of the crime in question, which is admissible in evidence
under Section 157 of the Evidence Act.

12 Version of the P.W.No.4 is gaining full corroboration
from the medical evidence adduced on record by the prosecution.
P.W.No.7 Dr.Shivaji Sonawale had medically examined the
P.W.No.4 on the very next day of the incident. He found that
there was irregular hymeneal tear on posterior aspect of hymen in
mid line, so also tear on posterior vaginal wall anterior and
adjacent to hymen of size 2 x 1 x 0.5 c.m. with minimal bleeding,
suffered by the P.W.No.4. He was required to examine the
P.W.No.4 under general anesthesia because of injuries to her
private part. Finding of injuries on private part of the P.W.No.4,
who, at the relevant time, was just ten years of age, corroborates
her version regarding rape on her by the appellant/accused.

Gaikwad RD                                                                       12/15

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13 The prosecution is relying on forensic evidence as

report of chemical analysis of clothes of the P.W.No.4 is showing
stains of blood on them. Clothes of the P.W.No.4 were seized in
presence of panch witness P.W.No.8 Gani Nagarjee by
Investigating Officer P.W.No.9 Balasaheb Mule. The seizure was
effected under seizure panchanama (Exhibit 40). However, it is
seen that no proper opportunity of cross-examining both these
witnesses was granted to the appellant/accused by the learned
trial Court. At the time of recording the evidence of P.W.No.8
Gani Nagarjee, the defence Advocate was absent. The learned
trial Court instead of following the provisions of Section 304 of the
Code of Criminal Procedure by providing legal aid to the
appellant/accused, insisted the appellant/accused to cross-
examine P.W.No.8 Gani Nagarjee. The appellant/accused is a
rustic villager residing in village Revale in Khatav Taluka of Satara
District. He was not supposed to be acquainted of an art of cross-
examining the prosecution witnesses. He, therefore, declined to
cross-examine P.W.No.8 Gani Nagarjee and the learned trial Court
closed the evidence of P.W.No.8 Gani Nagarjee.

14 In the similar way, at the time of recording the
evidence of P.W.No.9 Balasaheb Mule, Investigating Officer, the
learned Advocate for the appellant/accused was absent. Then,
again the learned trial Court instead of providing legal aid to the
appellant/accused had insisted the appellant/accused to cross-

Gaikwad RD                                                                         13/15

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examine the Investigating Officer. Without any legal knowledge
and skill to cross-examine the witness, the appellant/accused was
required to cross-examine the Investigating Officer. It appears
that two formal questions were put in his mouth, which were to
the effect that after investigation, it did not reveal that the accused
committed rape on the victim and that the false charge-sheet is
filed. This insistence of the learned trial Court in compelling the
appellant/accused to cross-examine the Investigating Officer is
totally unjustified. The proper course was to follow the provisions
of Section 304 of the Code of Criminal Procedure by providing
legal aid to the appellant/accused. Thus, for want of effective
opportunity of cross-examination, evidence of P.W.No.8 Gani
Nagarjee and P.W.No.9 Balasaheb Mule, Investigating Officer
needs to be kept aside. Consequently, forensic evidence cannot be
made use of against the appellant/accused.

15 Even if the evidence of panch witness P.W.No.8 Gani
Nagarjee and that of Investigating Officer P.W.No.9 Balasaheb
Mule coupled with the forensic evidence is kept out of
consideration, still the prosecution has established the fact that the
appellant/accused, on 21/02/2010 had committed rape on the
P.W.No.4, who, at the relevant time, was aged about 10 years.
Evidence regarding age of the P.W.No.4 is not at all disputed nor
the defence had suggested to any of the prosecution witness that
she, at the relevant time, was more than twelve years of age.

Gaikwad RD                                                                        14/15

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16 So far as sentence is concerned, minimum prescribed

sentence is awarded to the appellant/accused by the learned trial
Court. Hence, the following Order :

ORDER

(i) The appeal is dismissed.

(ii) In view of dismissal of appeal, Criminal Application
bearing No.493 of 2018 also stands disposed of.

(iii) The prison authorities are free to obtain fresh opinion
from the concerned Court for grant of remission to the
appellant/accused in view of disposal of appeal, as on
earlier occasion, the learned trial Court did not give any
opinion because of pendency of this appeal.

(A.M.BADAR J.)

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