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Maroti Shivream Nilekar And … vs State Of Mah.Thr.Pso Gadchiroli on 7 June, 2018

Appeal.777.04
1

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

CRIMINAL APPEAL NO. 777/2004

1) Maroti s/o Shivram Nilekar
Aged about 29 years
occu: Cultivator
R/o Amirza, Tq. Dist.Gadchiroli

2) Shamrao s/o Murlidhar Thuse
Aged about 32 years
occu: Labourer .. APPELLANTS
R/o Amirza, Tq. Dist.Gadchiroli

versus

State of Maharashtra
Through Police Station Officer
P.S. Gadchiroli, Tq. dist. Gadchiroli. .. RESPONDENT

……………………………………………………………………………………………………………………………..
Mr.Akhtar Nawab Ansari, Advocate for the appellants
Mr. I.J.Damle, Additional Public Prosecutor for respondent-State
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATED : 7th June, 2018

ORAL JUDGMENT:

1. The instant Appeal has been directed against the judgment and order

dated 08.12.2004 passed by learned 1st Ad-hoc Additional Sessions Judge, Gadchiroli

in Sessions Trial No. 11/1997 convicting the appellants/accused for the offence

punishable under Section 376 (2) (g) of the Indian Penal Code and sentencing them to

suffer rigorous imprisonment for ten years each and a fine of Rs.1000/-each, in default to

suffer R.I. for three months, each.

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2. The facts of case as it is unfolded during the course of trial is succinctly

narrated as under :-

The prosecutrix-(PW1) was residing at vilage Amirza along with her

mother and two brothers. At the time of the incident, she was aged about 17-years old

studying in IX the standard. The appellants 1 and 2 too were the residents of Amirza. It

is the case of prosecution that there were love-affair between prosecutrix and appellant

no.1-Maroti Nilekar, however appellant no.1 did not marry with her and got married with

some other girl. The appellant no.2-Shamrao was the friend of appellant no.1. On the

date of incident i.e. 1.11.1996 the mother of prosecutrix had gone for reaping the paddy

crop in the field. She asked the prosecutrix to bring fodder for cattle. Therefore, at about

4.00 pm after school hours,the prosecutrix went to the field to bring fodder for cattle. At

the relevant time, at about 5.00 pm when the prosecutrix was returning home by taking

fodder, the appellant nos.1 and 2 pulled the bundle of grass which the prosecutrix was

carrying and beat her. They caught hold of her hands and dragged her towards the land

belonging to the field of one Maroti. The appellants threatened her with dire

consequences by saying that if she would raise an alarm they would kill her. Thereafter

appellant no.1- Maroti removed her knicker and threw it away. Appellant no.2 Shamrao

closed her eyes and gagged her mouth with his hands. Appellant-Maroti then made her

to fall down and committed forcible sexual intercourse with her. Appellant-Shamrao at that

time pressed her breasts. Thereafter both the appellants fled away. The prosecutrix

returned home with the fodder. On reaching home, she narrated the incident to her

mother. The persons from the village of the prosecutrix brought her to the hospital in a

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tractor. The prosecutrix was taken to the hospital. Her complaint (Exh.34) was recorded

by the police at General Hospital, Gadchiroli.

3. On the basis of the said complaint, PSI Devki Ukey (PW5) registered the

offence vide C.R.No.192/1996. PW5 collected the medical certificate of the prosecutrix

(Exh.48). PW 5 then arrested the appellants on the next day i.e. 2.11.1996 and sent

Maroti for medical examination. The medical report of the appellant was collected

(Exh.50). On 4.11.1996 PW5 visited the place of the incident and recorded the spot

panchnama (Exh.37). From the place of incident, PW5 took charge of broken pieces of

bangles and the knicker. Those articles were separately taken charge by PW5 under

Panchnama (Exh.38). PW 5 then recorded the statements of the witnesses. PW 5 sent

the seized articles to C.A. office and secured the C.A. report (Exh.55). After completion

of investigation PW 5-Devaki Ukey submitted charge-sheet against the appellants in the

Court of Learned JMFC. The case was committed to the court of Sessions. The learned

trial Judge framed the charge against the appellants. On appreciation of evidence led

before the learned Special Judge and after hearing both the sides, he convicted the

appellants as aforesaid.

4. Shri Akhtar Nawab, learned counsel for the appellants vociferously

argued that the learned Special Judge had failed to consider that there was a love affair

between the prosecutrix and the appellant no.1-Maroti. Furthermore, the learned Judge

did not consider the aspect that the medical evidence did not support the case of the

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prosecutrix. According to him, even the place of incident is not properly explained by the

prosecutrix. He contended that the learned Special Judge has failed to consider the

evidence led by the prosecution in its right perspective and has erroneously convicted

the appellants.

5. Per contra, the learned APP, Mr I.J. Damle, vehemently argued that the

prosecutrix was a young girl, aged about 16 years and was residing with her mother

and brothers. Her mother was already separated from her father and her step-father was

no more at the time of the incident. He stated that the defence has brought on record

that prosecutrix was having love affair with appellant-Maroti, still the fact remains that

appellant Maruti had refused to marry with her and got married with some other girl.

The learned APP further submitted that even assuming that the prosecutrix was having

love-affair with the appellant-Maroti prior to his marriage, the manner in which the incident

had taken place, one cannot presume that it was a consensual sex. He invited my

attention to the fact that while appellant Maroti was committing forcible sexual intercourse

with the prosecutrix, appellant no.2- Shamrao caught hold of her hands and closed her

eyes by pressing his hands. He further submitted that appellant-Shamrao also

participated in the said act by pressing the breasts of the prosecutrix. Learned APP

contended that the presence of the appellants at the place of incident and the roles

attributed to them have not been shattered in the cross-examination. Thus, the learned

APP supported the impugned judgment and order.

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6. I have gone through the rival contentions of both sides and also gone

through the record carefully. In order to substantiate its case, the prosecution has heavily

relied upon the testimony of the prosecutrix-PW 1, mother of the prosecutrix, PW 3-

Shakuntala and Panch witness- PW 2-Vistari Shedmake.

7. The testimony of PW1-prosecutrix shows that on the date of incident, she

had gone to the field to bring the grass for cattle. At about 4.00 pm., while she was

returning towards her house, she saw both the appellants standing by the side of the

road. Both the appellants pushed the bundle of grass which she was carrying on her

head and there was scuffle between the prosecutrix and the appellants. The appellants

then brought her in the field; they made her to fall down. Appellant -Maroti threatened

to kill the prosecutrix if she raised any alarm. Then Shamrao caught hold of her and

closed her eyes by putting his hands. Appellant-Maroti then removed her knicker and

committed forcible sexual intercourse with her. When she tried to resist appellant-Maroti

from committing the said act, appellant Shamrao caught hold her with force and,therefore,

she was unable to prevent the act of appellant-Maroti. After appellant-Maroti committed

sexual intercourse with her, both the appellants fled away from the place of the incident.

The prosecutrix then returned to her house and she fell down in front of her house. She

was then brought to the hospital at Gadchiroli in a tractor. Her report was recorded by

PSI Devaki Ukey (PW5) at Exh.34. PW1-prosecutrix stated that the medical officer

examined her in the said hospital. She herself pointed out the place of the incident to

the police and accordingly the police recorded the spot panchnama. The police took

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charge of her torn skirt and body-frock under Panchnama (Exh.35). PW1 categorically

stated that at the time of recording the spot panchnma her knicker and broken pieces of

bangles were found on the spot. She clarified that the bangles were broken when there

was a scuffle between her and the appellants. She further stated that the appellant-

Shamrao assisted appellant no.1- Maroti in committing rape on her.

8. During the cross-examination, it was put up to the prosecutrix that there

was a love affair between between her and appellant-Maroti and they were intending to

marry with each other. However, she denied the said suggestion. PW1 denied that she

had stated before the police that previously she was having a love affair with appellant-

Maroti and they were intending to marry with each other, but the mother of Maroti learnt

about it and she performed the marriage of appellant-Maroti with one Shobha and since

then she was not talking with them. Although the prosecutrix denied the said suggestion

given to her, still the said suggestion also indicates that the prosecutrix was not in

talking terms with appellant-Maroti. With regard to the place of incident, it was

suggested to PW1 that both the appellants were cultivating the land of one Hamidbhai

and they both were present in the said field. She further admitted that Pappu who was

brother of Hamidbhai ,was having a separate field and field of Hamidbhai was adjacent

to the village. It appears that the defence had made an effort to show that the incident

had taken place in some different field. However the case was not put up properly to the

witness and the testimony of witness was not shaken in the cross-examination, so far as

the place of the incident is concerned. It was also suggested to her that there were 4 to

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5 panshops and some houses near the bus stop; however no nexus was shown

between the bus-stop and place of the incident. So also, it is not clear as to what was

the distance between Bus stop and the place of the incident i.e. Field of Pappu. In fact,

the prosecutrix has simply stated that while she was returning home after collecting

grass, the incident had taken place. According to her, she was dragged in the field. She

has not specified as to in which field exactly the incident had taken place. However, the

spot panchnama is clear on this aspect. Hence, there is no ambiguity with regard to the

place of incident. At this juncture, it would be appropriate to mention that the knicker of

the prosecutrix was taken charge from the place of incident.

9. In this context, PW2-Vistari testified that on 4.11.1996 he was called by

the Police to act as a Panch. Panchnama was prepared at the place of the incident. The

place was shown by the prosecutrix. The broken bangles and knicker were found at the

place of the incident. The police prepared the spot panchnama (Exh.37); the police took

charge of the broken bangles and the knicker vide panchnama (Exh.38). The testimony

of PW2 is not shaken in the cross-examination. The spot Panchnama (Exh.37) indicates

that the place of incident was in the field of one Pappu Nathani situated within the

boundary of Mouza Amirza village. The said field was at a distance of about 3 kms.

From the village. The panchnama shows that broken pieces of bangles as well as

knicker were seen at the place of incident. Those articles were lying in the field of

standing paddy crop and the grass was seen to be trampled. Thus the testimony of

PW2 corroborates with the testimony of PW1 on the aspect of place of incident and

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that the pieces of bangles and knicker were lying at the place of the incident.

10. From the meticulous scrutiny of the testimony of PW1-prosecutrix, it is

manifest that both the appellants were very much present at the place of incident and

the roles attributed to them by the prosecutrix are not at all shattered in the cross-

examination. Even assuming that there was a love affair between the prosecutrix and

appellant-Maroti prior to his marriage and he performed marriage with other girl, it does

not necessarily mean that the prosecutrix would falsely implicate both the appellants in

such a heinous crime. The prosecutrix was a young girl aged about 17 years old and at

such a tender age she would not ruin her reputation by falsely implicating the appellants

in such a heinous crime by putting her reputation at stake. No enmity as such was

brought on record between the prosecutrix and appellant no.2-Shamrao. There was no

reason for the prosecutrix to level false accusation against the appellant no.2 Shamrao.

Moreover, if at all she had any grudge against appellant-Maroti as he had not performed

marriage with her, although they were having love affair, she would have at the most

implicated appellant no.1-Maruti only. There was no reason for her to falsely implicate

the appellant no.2-Shamrao in the present case. Nothing intangible was found in the

searching examination of PW1. Her testimony inspires confidence and she is found to be

a reliable and trustworthy witness.

11. PW 3-Smt.Shakuntala, who is the mother of the prosecutrix, deposed that

on the date of incident, she told her daughter to bring grass for the cattle and she

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proceeded to the field for cutting paddy crop. At about 5.00 pm she returned back

from the field. She saw her daughter lying near the door of the house. She was in a

semi-conscious condition. The women from the adjoining houses had gathered at that

place. She noticed that the bangles of her daughter were broken and her clothes had

become dirty. She offered water to her. Her daughter was not talking at that time. She

brought her daughter to the hospital by a tractor. She was medically treated in the

hospital. Her daughter informed her that when she had gone to bring grass, the

appellants had beaten her and committed rape on her. The report of PW1 was recorded

by the police. An improvement was pointed out in her cross-examination to the effect

that the bangles of her daughter were broken and her clothes had become dirty. The said

improvement is not a material omission and it does not go to the root of the case. The

testimony of PW3-Shakuntala is not shaken at all in her cross-examination particularly

with regard to the fact that she noticed her daughter near her house in a semi conscious

condition and she had taken her daughter to the hospital. Thus, the testimony of PW3-

Shankuntala corroborates with the testimony of PW1-prosecutrix on material particulars.

The testimony of prosecutrix-PW 1 is in consonance with the contents in the FIR (Exh.

34). There are no material discrepancies, improvements or embellishments in the

version of PW1 as well as PW 3. Thus PW 1 and PW3 are found to be reliable

witnesses and their testimony inspires confidence.

12. The neighbour i.e. PW 4-Dhrupadabai did not support the prosecution

case and she denied that the prosecutix informed her that appellant-Maroti committed

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rape on her and appellant-Shamrao caught hold of her at that time. PW4 denied that

when PW1 reached her house she fell down in front of her house and at that time

she was in pains. She denied that thereafter her mother came and took her to the

hospital.

13. As far as the medical evidence is concerned, the medical evidence shows

that hymen of PW1 was found to be ruptured, however, there was no fresh and bleeding

injury over her hymen. No doubt, the medical evidence does not support the case of the

prosecution. Significantly, the CA report also does not throw any light on the aspect of

finding bleeding injury or semen stains on the clothes of the prosecutrix. In this context,

it is to be noted that the sole testimony of the prosecutrix can be relied upon as she is

found to be a truthful witness. Even though the medical evidence does not support the

case of prosecutrix, the accused persons do not have a licence to commit a forcible

sexual intercourse with the prosecutrix even if she is a prostitute. In the case of State

of Punjab vs. Gurmit Singh and others, reported in (1996) 2 SCC 384, the Hon’ble Apex

Court has held that, “where there is some acceptable material on the record to show

that the victim was habituated to sexual intercourse, no such inference like the victim

being a girl of “loose moral character” is permissible to be drawn from that circumstance

alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual

behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to

anyone and everyone because she is not a vulnerable object or prey for being sexually

assaulted any anyone and everyone.”

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14. As regards the investigation conducted by the Investigating Officer PW 5-

Devaki Ukey, is concerned, she recorded the statement of the prosecutrix on the same

day in the hospital. PW5 Devki Ukey deposed that when the prosecutrix was brought to

the Police Station at about 10 pm, she was unconscious. She was immediately taken to

the hospital and she accompanied the prosecutrix to the hospital. Thus, the testimony of

PW5 corroborates with the testimony of PW3 that the prosecutrix was found lying on the

ground and she was in a semi conscious condition when he noticed her. It is, however,

worth noting that the investigating agency has not produced the articles lying on the

spot, viz. the knicker of prosecutrix and bangles which were taken charge from her. In

this context, the learned Advocate for the appellants pointed out that in the instant case,

the articles were not shown to the prosecutrix as well as other witnesses and as such,

it weakens the case of the prosecution. I do not find any substance in the contention of

the learned Advocate for the appellants as only because the Investigating Officer has

failed to show these articles to the witnesses, this would not make the prosecution case

weak or doubtful as such. The requisition letter (Exh.54) indicates that the articles

were sent to the CA office on 12.11.1996. The CA report (Exh.54) shows that on

13.11.1996 the articles were received by the C.A. However it is not clear whether those

articles were collected by the investigating agency or produced before the court. There is

no evidence in that regard. However, the prosecutrix should not suffer for the lapses in

investigation or if the prosecution has not taken due care to produce the clothes of the

prosecutrix in the court and get it identified from the witnesses. In any case, since the CA

report does not reveal any semen stains on the clothes of the prosecutrix, the non-

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production of articles in the Court does not demolish the prosecution case in any manner.

15. In case of State of H.P. v. Sanjay Kumar alias Sunny reported in 2017(3)
Mh.L.J. (Cri.)(S.C.) 68, the Hon’ble apex Court has held in paragraph 31 as under :-

“31. By now it is well settled that the testimony of a
victim in cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for
corroboration of a statement, the Courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her testimony
has to inspire confidence. Seeking corroboration to a
statement before relying upon the same as a rule, in such
cases, would literally amount to adding insult to injury. The
deposition of the prosecutrix has, thus, to be taken as a
whole. Needless to reiterate that the victim of rape is not an
accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an
injured witness does. If the Court finds it difficult to accept her
version, it may seek corroboration from some evidence which
lends assurance to her version. To insist on corroboration,
except in the rarest of rare cases, is to equate one who is a
victim of the lust of another with an accomplice to a crime and
thereby insult womanhood. It would be adding insult to injury
to tell a woman that her claim of rape will not be believed
unless it is corroborate in material particulars, as in the case
of an accomplice to crime. Why should the evidence of the
girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion? The plea
about lack of corroboration has no substance.”

16. In case of Aman Kumar and another v. State of Haryana, reported in
(2004) 4 SCC 379, the Hon’ble apex Court has held as under :-

“It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an accomplice
after the crime. There is no rule of law that her testimony
cannot be acted upon without corroboration in material

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particulars. She stands on a higher pedestal than an injured
witness. In the latter case, there is injury on the physical form,
while in the former it is both physical as well as psychological
and emotional.”

17. In case of Jugendra Singh v. State of Uttar Pradesh, reported in
(2012) 6 SCC 297, the Hon’ble apex Court in paragraphs 41, 42, 43 and 49 has held as
under :-

“41. In State of U.P. v. M.K. Anthony (1985) 1 SCC 505 this
Court has observed (SCC p. 331, para 15) that in case of
“[m]inor discrepancies on trivial matters not touching the core of
the case, hyper technical approach by taking sentences torn out
of context here or there from the evidence, attaching importance
to some technical error committed by the investigating officer
not going to the root of the matter would not ordinarily permit
rejection of the evidence as a whole”.

43. In Appabhai v. State of Gujarat (1988 Supp SCC 24) this
Court has ruled thus :(SCC pp.246-47, para 13).

“13. … The court while appreciating the evidence must
not attach undue importance to minor discrepancies. The
discrepancies which do not shake the basic version of the
prosecution case may be discarded. The discrepancies which
are due to normal errors of perception or observation should
not be given importance. The errors due to lapse of memory
may be given due allowance. The court by calling into aid its
vast experience of men and matters in different cases must
evaluate the entire material on record by excluding the
exaggerated version given by any witness. When a doubt
arises in respect of certain facts alleged by such witness, the
proper course is to ignore that fact only unless it goes into the
root of the matter so as to demolish the entire prosecution story.
The witnesses nowadays go on adding embellishments to their
version perhaps for the fear of their testimony being rejected by
the court. The courts, however, should not disbelieve the
evidence of such witlessness altogether if they were otherwise
trustworthy.

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18. On overall assessment of the case of the prosecution, it is found that the

learned Special Judge has rightly assessed the evidence on record and has scrutinized

it in its right perspective and come to the conclusion that the prosecution has proved its

case beyond reasonable doubt. In view thereof, no interference is called for in the

impugned judgment and order. Hence the following order :

Order

(i) Criminal Appeal No. 777/2004 is dismissed.

(ii) The judgment and order of conviction and sentence dated 08.12.2004 delivered
by the learned 1st Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Trial No.
11/1997 is maintained.

(iii) The appellants are on bail. Their bail bonds stand cancelled. They are directed
to surrender before the learned Additional Sessions Judge, Gadchiroli to undergo the
remaining period of sentence. If they do not surrender within a period of four weeks from
today, the learned trial Court is directed to take appropriate action in accordance with
law.

(iv) Muddemal property be dealt with as directed by trial Court after the appeal period
is over.

JUDGE

sahare

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