State Of Maharashtra Thr. The … vs Umesh S/O Wasudeo Burde on 11 May, 2017

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

CRIMINAL APPEAL NO.433 OF 2012.

APPELLANT: State of Maharashtra,
through Police Station Officer,
Police Station, Lakhandur, Tq.
Lakhandur,Distt.Bhandara.

: VERSUS :

RESPONDENT: Umesh Wasudeo Burde,
aged about 22 years, r/o Parsodi/Nag,
Tq.Lakhandur, Distt.Bhandara.

—————————-
Smt.K.S.Joshi, Additional Public Prosecutor for the State.
Mr.P.V.Kavre, Advocate for the respondent.
—————————

CORAM: B.R.GAVAI AND
N.W.SAMBRE,JJ.

DATED: 11th MAY, 2017.

ORAL JUDGMENT : (Per B.R.Gavai, J.)

1. Being aggrieved by the judgment and order passed by the

learned Additional Sessions Judge, Bhandara, in Special Case No.02 of

2007, dated 28th November, 2011, thereby acquitting the

respondent/accused of the offence punishable under Sections 376, 417

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of the Indian Penal Code
and under Section 3(i)(vii) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, the State

has approached this Court by way of present appeal.

2. It is the case of prosecution that oral report dated 17 th June,

2010 was lodged by prosecutrix Bhumika Haridas Borkar stating therein

that prosecutrix and accused no.1 Umesh were residing near each other

and were resident of the same village. Prosecutrix used to go for work

with her friend so also accused no.1 Umesh used to go for work to his

field. On one day, accused no.1 Umesh approached prosecutrix and

stated that he loves her. He also gave promise that he would marry her

and on false pretext of marriage committed sexual intercourse with her.

It is the further case of prosecution that they used to have sexual

intercourse every after 1 – 2 days. It is further case of prosecution that

she gave consent for sexual intercourse since accused no.1 Umesh had

promised to marry her. However, when she became pregnant, Umesh

told her that she would marry her and went away.

3. It is further prosecution case that after some days, accused

no.2 Wasudeo, father of Umesh, came to her house and told her that

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since she had become weak, he would take her to the doctor. Again on

next day, he came to her house and told her that he would take her to

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the doctor. She sat on the motorcycle of accused no.2 and came to

Government hospital, Lakhandur. She was admitted in the said

hospital. Medical Officer Dr.Rangari who is subsequently joined as

accused no.4 and one nurse took her in one room and she was

administered one injection. She became unconscious. After 1 – 2

hours, she regained consciousness and found that the said doctor and

nurse were taking out blood from her private part. On the next day she

was discharged. Accused no.2 reached her to village. Mother of

prosecutrix came to know about said incident. Thereafter on 17 th June,

2006 she went to Lakhandur Police station and lodged report below

Exh.46 against accused nos.1 and 2. On the basis of said oral report FIR

came to be registered vide Crime No.100 of 2006.

4. During investigation, role of accused nos. 3 and 4 came to be

revealed and as such they were added. It was also revealed that the

prosecutrix was belonging to Scheduled Castes and as such offence

under the provisions of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act came to be added. After completion of

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investigation, charge-sheet came to be filed in the Court of learned

Judicial Magistrate (F.C.), Sakoli. Since the case was exclusively triable

by the Special Court i.e. Sessions Court, the same came to be committed

to the Court of Sessions.

5. Charges were framed against the accused. Accused pleaded

not guilty and claimed to be tried.

6. Insofar as accused no.1 is concerned, he stands charged for

committing the rape on prosecutrix and for the offence under the

provisions of Prevention of Atrocities Act. Rest of the accused are

charged with an offence of voluntarily causing miscarriage of first

informant Bhumika, not being caused in good faith for the purpose of

saving life of first informant.

7. Insofar as offence of rape is concerned, it is the allegations

made by the prosecutrix against the accused no.1 that he threatened

her to commit suicide if she refused to love him and that after she

accepted his request he started to have sexual relations with her. He

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was all the while assuring her that he will marry with her. Thereafter,

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prosecutrix became pregnant and she informed accused Umesh that her

menstrual has been stopped. Accused told her that he will go to Nagpur

and perform marriage with her. From her evidence it could reveal that

on the date of her evidence she was 21 years old and on the date of

lodging the report she was around 18 years. The learned trial Judge

has therefore found that on the date of sexual intercourse she was of

consenting age. It has been found that the prosecutrix was continuously

having sexual intercourse with the accused for a period of one year and

she did not disclose about the same to anyone and lodged report only

after she got pregnanted of about two months. It could thus be seen

that when the prosecutrix had sexual relations with the accused she had

reached age of understanding what is wrong or right for her and she

was consenting party and as such, learned trial Judge has rightly found

that the accused no.1 cannot be convicted for an offence under Section

376 of the Indian Penal Code.

8. Insofar as charges against accused nos.2 to 4 of causing

miscarriage of fetus of the prosecutrix is concerned, it would be relevant

to refer to an enquiry conduced by Dr.S.G.Ramteke and Dr.J.V.Kukday

as per directions of the Civil Surgeon. The enquiry report reveals that

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one Dr.Parshuramkar to whom the prosecutrix had gone since she was

pregnant for 1½ months, had given her prescription of certain

medicines. She had purchased said medicines from medical shop

Parsodi. On account of consumption of said medicines there was

bleeding and as such, accused no.4 had admitted her in the hospital at

Lakhandur and treated her and saved her life. The enquiry report is

duly exhibited by Dr.Ramteke (PW 1). The prescription which is given

to the prosecutrix is also exhibited below Exh.37.

9. The defence has also examined Mahendra as D.W.1. He runs

‘Talaj Medical and General Stores’ at Parsodi. He has deposed that on

6th June, 2006 one woman named Bhumika had come to his shop for

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purchasing medicine and she had brought prescription of

Dr.R.D.Parshuramkar and he had sold her medicines prescribed in the

said prescription on that day. He has further stated that the

prescription as mentioned below Exh.98 are generally prescribed for

termination of irregular menstrual period.

10. The defence has also examined Prajakta Deshmukh as DW 2,

who was working as staff nurse in Gramin Hospital, Lakandur. She has

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stated that on 11th June, 2006 when she was in the hospital, prosecutrix

had come there for medical treatment. She was complaining of

stomachache and bleeding from private part. This witness called

Dr.Rangari for examining her and Dr.Rangari examined and asked her

history and at that time prosecutrix told him that on earlier night she

had taken some medicines for abortion. Dr.Rangari examined her and

found that blood and blood clots are coming out from her private part.

Dr.Rangari informed the persons accompanying her that Bhumika was

suffering from excessive bleeding and the attempt of abortion done by

her by taking medicine was incomplete and the process of abortion has

to be completed in order to avoid danger to the life of Bhumika.

Thereafter, Dr.Rangari performed procedure for abortion of Bhumika.

She was discharged on the next day from hospital. She has further

stated that on the said date she had assisted Dr.Rangari as staff nurse.

11. It could thus be seen from the material placed on record that

accused no.4 rater than committing any crime had in fact attempted to

save the life of prosecutrix.

12. The scope for interference in an appeal against acquittal is

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very limited. Unless the Court finds that the view taken by the trial

Court is either impossible or perverse, it is not permissible for this Court

to interfere with the findings of acquittal. No impossibility or perversity

is found in the judgment and order of learned trial Judge warranting

interference. Appeal is, therefore, dismissed with no order as to costs.

JUDGE JUDGE

chute

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