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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.415 OF 2012
Samaru S/o. Sakaru Marhaskolhe,
Aged about 30 years, Occ. Labour,
R/o.Bharveli Dist. Balaghat,
Presently at Mandavghorad,
Police Station Hingna,
District. Nagpur …APPELLANT
…V E R S U S…
The State of Maharashtra,
Through Police Station Officer
Police Station Hingana, Nagpur …RESPONDENT
——————————————————————————————-
None for the Appellant.
Mr. A.V. Palshikar, Additional Public Prosecutor for
Respondent /State.
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CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
:09.10.2017
DATE OF PRONOUNCING THE JUDGMENT
: 13.11.2017
JUDGMENT:
The appellant is aggrieved by the judgment and order
dated 29.8.2012 in sessions Trial 564 of 2011 passed by the
Additional Sessions Judge, by and under which the appellant
(hereinafter referred to as “the accused) is convicted for offence
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punishable under section 376 read with section 511 of the Indian
Penal Code (“IPC” for short) and is sentenced to suffer rigorous
imprisonment for three years and six months and to payment of
fine of Rs. 3,000/-.
2 The appeal was called out for hearing on 4.10.2017.
The learned counsel for the appellant was absent and this Court
directed that the appeal be listed on 9.10.2017 under the caption
“order matters”. This order was made in view of the note of the
Registry dated 28.9.2017 that the accused Samru s/o. Sakaru
Marhaskolhe is released from jail on 6.8.2014 after having
undergone the entire sentence imposed by and under the
judgment impugned dated 29.8.2012. This Court expected the
learned counsel for the appellant to clarify as to why, despite the
order dated 22.1.2013 of suspension of sentence and grant of bail,
the accused was not released. However, again the learned counsel
for the accused did not appear on 9.10.2017. This Court,
consistent with the dictum of the Hon’ble Apex Court in Bani
Singh Vs. State of Uttar Pradesh, AIR 1996(4)SCC720,
scrutinized the record with the assistance of the learned Additional
Public Prosecutor Shri. A.V. Palshikar, and the appeal is being
decided on merits.
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3 The genesis of the prosecution lies in oral report Exh.
11 lodged by the prosecutrix, the gist of which is thus:-
The prosecutrix, then aged 55 years, is a labour who resides
with her brother Shyamrao Bhobe and works as agriculture labour
in the field of one Narhari Dorlikar. The incident occurred on
30.8.2011. The prosecutrix and Shyamrao worked in the field till
evening, at 7.00 pm, Shyamrao switched on the light and went to
the village to purchase sugar. The prosecutrix was cooking in the
Varandah, the accused came near the house of the prosecutrix, he
was asked by the prosecutrix as to what was the propriety of
coming at night, the accused removed the wire of light, caught
hold of the prosecutrix, gagged her mouth, inflicted 2 to 3 slaps
and threatened to kill the prosecutrix. The accused dragged the
prosecutrix near a lemon tree, undressed, lifted the saree of the
prosecutrix after bringing her down on the ground, inserted his
private organ in the vagina and committed sexual intercourse with
rocking motions. After discharge of semen, the accused got up,
threatened the prosecutrix, put on nickers and full pant and fled
through the field with crop of lady’s finger. Shyamrao reached
home, the prosecutrix narrated the incident to Shyamrao who
followed the accused who was passing through the field of lady’s
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finger, the accused beat Shyamrao and fled. The prosecutrix and
Shyamrao approached the Police Station and the prosecutrix
lodged an oral report which was reduced to writing on the basis of
which offence punishable under section 376 and 506 of the IPC
was registered. The printed First Information Report (Exh. 12)
reveals that the report was lodged on 31.8.2011 at 2.00 hours.
The prosecutrix was sent for medical examination and was
examined by Dr. Smt. Sarita Khodge, who issued certificate Exh.
32. Shyamrao was also send for medical examination to Rural
Hospital, Hingana and the medical report is at Exh. 36. The
accused was arrested and sent for medical examination and the
report is at Exh. 30. The blood sample of accused was collected
and seized vide Exh. 26, the clothes which the prosecutrix
produced were seized vide Exh. 13, spot panchanama Exh. 17 was
drawn which reveals the presence of pink coloured piece of cloth,
pieces of broken bangle, loop of pant of blue colour and two pieces
of loop with three hooks, which were seized vide spot
panchanama Exh. 17. On completion of investigation, chargesheet
was submitted in the Court of Judicial Magistrate First Class,
Hingana, who committed the case to the Sessions Court. The
learned Sessions Judge framed charge vide Exh. 4, the accused
pleaded not guilty and claimed to be tried. The defence of the
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accused is of total denial and false implication.
4 The prosecution has examined 8 witnesses namely:-
P.W. 1 Prosecutrix Ashabai at Exh. 10
P.W. 2 Shyamrao Bhobe – brother of Ashabai Exh.
14
P.W. 3 Ankush Adbaile – vide Exh. 16 – panch on
spot panchanama, seizure panchanama of
clothes and seizure panchanama of blood
sample of prosecutrix.
P.W. 4 Leeladhar Maraskolhe at Exh. 19 whom
Shyamrao narrated the incidence of his
beating and rape upon prosecutrix.
P.W. 5 Kawadu Kate at Exh. 20 – who reached
prosecutrix and her brother to police
station.
P.W. 6 Vinod Rokde at Exh. 21 – Investigating
Officer.
P.W. 7 Dr. Sarika Khodge – Medical Officer at Exh.
31 – Who issued medical certificate of
prosecutrix on examination at Exh. – 32 and
answered the queries made by the
Investigating Officer vide Exh. – 33. She
also issued medical certificate of Shyamrao
after his examination vide Exh. 35.
P.W. 8 Ashok Kate at Exh 41, who reduced into
writing oral report vide Exh. 11 and
registered first information report vide Exh.
12 and sent injured Shyamrao for medical
examination.
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5 The evidence of prosecutrix – PW 1 is substantially
consistent with the contents of the report Exh. 11. She has
deposed that on the day of incident, she was alone since her
brother Shyamrao had gone to the market to purchase sugar, the
accused forcibly took her to the lemon tree situated at distance of
100 fts or thereabout from the kitchen, lifted her saree and
inserted his male organ in her private part. The testimony of the
prosecutrix is corroborated by PW 2 Shyamrao who deposed that
the accused assaulted him on his head by stick when Shyamrao
confronted the accused.
While it is true that both PW 2 Shyamrao and PW 5
Kawadu, the driver of the autorickshaw who reached the
prosecutrix and Shyamrao to Police Station between 9.30 to 10.00
pm on 30.8.2011, had admitted that the prosecutrix is slightly
mentally challenged, the learned Sessions Judge on a holistic
appreciation of the evidence of the prosecutrix, has found most of
her evidence confidence inspiring. I have re-appreciated the
evidence and having done so, I find no reason to take a view
different from that taken by the learned Sessions Judge, in so far
as the offence of attempt to commit rape is held to be proved.
6 The report is lodged with promptitude. The fact that
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the report was lodged after discussion with Shyamrao and other
villagers, is not sufficient to doubt the veracity of the report.
7 The evidence of PW 2 Shyamrao is equally
trustworthy. The evidence of prosecutrix, although, need not be
corroborated, is corroborated not only by the evidence of PW 2
Shyamrao, but is further corroborated by the spot panchanama
and the seizure panchanama Exh. 17. PW 6 Vinod Rokade, who is
the Investigating Officer, deposed that at the time of recording the
spot panchanama, he seized loop of pant of blue colour and two
pieces of loop having three hooks and other articles from the spot.
The clothes of accused is seized vide Exh. 24 pursuant to
memorandum under section 27 of the Indian Evidence Act. The
evidence of Investigating Officer on the aspect of seizure of clothes
from the house of the accused is virtually unchallenged. The
report of the Chemical Analyzer Exh. 43 reveals that Exh. 9 cloth
piece and cloth strip tallies with half pant Exh. 6 as regards hue
physio chemical and textile characteristic.
8 The prosecutrix suffered abrasions on the lower side
of both scapular region and left hand, as is evident from medical
examination report Exh. 32 issued pursuant to the examination by
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Dr. Sarita Khaodge on 30.8.2011. In response to queries made
vide Exh. 33, Dr. Khodge issued medical certificate Exh. 34
recordingthat no injury was seen on the genetelia of the
prosecutrix. However, abrasions were noticed on the scapular
region.
An admission is extracted in the cross-examination of the
prosecutrix which is to the effect that the accused did not remove
his clothes. The solitary and stray admission is undoutedly
inconsistent with the testimony of the prosecutrix that the ccused
inserted male organ in her private part. The learned Sessions
Judge has noted that there is no medical or scientific evidence to
corroborate the insertion of the male organ in the private part of
the prosecutrix and in the teeth of the said admission has recorded
a finding that the only offence which is proved is that an attempt
to commit rape.
9 Benefit of the doubt must necessarily go to the
accused if an alternate hypothesis is possible. I do not find
anything wrong in the finding recorded by the learned Sessions
Judge that the only offence which is proved is that of an attempt
to commit rape.
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10 The evidence of the prosecutrix PW 1, save and accept
to the actual fact of insertion of the private organ in the vagina is,
as noted earlier, confidence inspiring. While the learned Sessions
Judge has rightly extended the benefit of doubt to the accused in
so far as the charge of having committed rape is concerned, the
finding that an attempt to commit rape is proved, is
unexceptionable.
The appeal is sans merit and is dismissed.
It is reported that the accused has already undergone the
sentence. In this view of the matter, no further direction is
necessary.
JUDGE
RS Belkhede
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