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Arun Dhanraj Marape vs The State Of Mah.Thr.Pso Wardha on 16 October, 2018

Criminal Appeal No.588.05.odt (S) 1

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

CRIMINAL APPEAL NO.588 OF 2005

Arun s/o Dhanraj Marape,
Aged about 24 years,
R/o. Dhamangaon (Hingni),
Tah. Seloo, Distt. Wardha. .. APPELLANT

VERSUS

The State of Maharashtra,
Through P.S.O. Seloo,
District-Wardha. .. RESPONDENT

……….
Shri R.M. Patwardhan, Advocate for Appellant,
Ms. H.N. Jaipurkar, APP for Respondent-State.
……….

CORAM : MRS. SWAPNA JOSHI, J.
RESERVED ON : 01-10-2018.
PRONOUNCED ON : 16-10-2018.

JUDGMENT

1] This appeal takes an exception to the judgment and order dated

27.09.2005 delivered by the learned Sessions Judge, Wardha in Sessions Trial

No.64/2004 whereby the learned Sessions Judge has convicted the appellant-accused

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Criminal Appeal No.588.05.odt (S) 2
of the offence punishable under Section 376 of the Indian Penal Code and is sentenced

to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,500/- in

default to undergo rigorous imprisonment for three months.

2] The prosecution case as is unfolded during the course of trial is succinctly

narrated as under :

Prosecutrix (PW-9) along with her husband (PW-10) and three children

was residing at Gohada, District-Wardha. The accused is the resident of Dhamangaon.

On the date of incident i.e. 21.2.2004 at about 4.00 pm, the prosecutrix was returning to

her village Gohada on foot by Dhamangaon to Gohada road with her son aged about

four years old. She had gone to the hospital at Hingni as her child was not well. While

returning to Gohada, near the bank of river, the prosecutrix noticed two unknown

persons sleeping on the bank of river. When she was moving ahead along with her

son, out of those two persons, the appellant approached from her backside and started

proceeding along the side of bushes. Suddenly the appellant came in front of her from

adjoining bushes and caught hold of her. He pushed aside her son. Thereafter, the

appellant made the prosecutrix to fall down into the drain like pit which was situated

beside the road. The appellant then committed forcible sexual intercourse with the

prosecutrix. The prosecutrix shouted for help by saying “Dhaware Bappa”. She tried to

release herself from the clutches of the appellant. The appellant then got up and fled

away. The prosecutrix also got up. One person by name Bawane (PW-3) rushed

towards her. The prosecutrix informed him that she was raped by one person. Bawane

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then chased the appellant. Two more persons came to that place and those persons

also rushed in the said direction. The prosecutrix then proceeded towards her village

with her child. Prosecutrix narrated the incident to her husband. Thereafter, the

prosecutrix along with her husband and the villagers went to the place of incident.

They made enquiry with the person who was sleeping near the bank of river. On

making enquiry about the appellant, the said person informed the name of culprit as

Arun Marape, resident of Dhamangaon. The prosecutrix had received injuries to her

arm, right hand thumb, right shoulder and right knee. The prosecutrix then proceeded to

the Police Station and lodged her complaint (Exh.46).

HC Haridas Mohije (PW-13) was attached to Police Station, Seloo. He

recorded the complaint of the prosecutrix. On the basis of the said complaint he

registered the offence vide Crime No.34/2004. He referred the prosecutrix to the

hospital for her medical treatment. HC Pramod Nasre (PW-14) arrested the accused

from his house on the same day. The appellant was sent for medical examination to

the hospital. On the next day, PW-14 then visited the place of incident and prepared

the spot panchanama (Exh.14). He recorded the additional statement of the

prosecutrix and seized her clothes under panchanama (Exh.16). He took charge of the

pieces of the bangles which were lying at the place of incident under panchanama

(Exh.15). He took charge of the articles belonging to the accused under seizure

panchanama (Exh.39). He took charge of the clothes of the accused under seizure

panchanama (Exh.41). PW-14 recorded the statements of the witnesses. Narayan

Bawane produced the footwear which was taken charge by PW-14 from the place of

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incident under panchanama (Exh.17). PW-14 arranged for the test identification parade

of the appellant. The prosecutrix identified the appellant as the same person who

committed rape on her. PW-14 sent all the seized articles to the Chemical Analyser’s

office. After the completion of investigation, the chargesheet was filed in the court of

the learned Judicial Magistrate, First Class. The case was committed to the Court of

Sessions. The learned trial Judge framed the charge and on analysis of the evidence

and after hearing both sides, convicted the accused, as aforesaid.

3] I have heard Shri R.M. Patwardhan, the learned counsel for appellant-

accused as well as Ms. H.N. Jaipurkar, the learned Additional Public Prosecutor for the

Respondent-State. With their assistance, I have gone through the record of the case.

4] Learned counsel for appellant-accused vociferously contended that the

learned trial Judge has not considered that the identity of the appellant has not been

established by the prosecution beyond reasonable doubt. He submitted that the

appellant was unknown to the prosecutrix and the test identification parade has not

been conducted by the Executive Magistrate by following the norms prescribed in the

High Court Criminal Manual. It is submitted that according to the prosecutrix the

appellant was having a scar on his right eye. The prosecutrix has no doubt stated

about the said scar before the police while lodging her complaint as well as before the

court. It was further submitted that the said description of the appellant having scar

below his eye does not find place in the arrest panchanama and the injury report.

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Therefore, it cannot be said that the appellant is the same person who committed rape

on the prosecutrix. It is submitted that the learned Sessions Judge has not considered

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

convicted the appellant.

5] Per contra, the learned Additional Public Prosecutor has supported the

judgment delivered by the learned Sessions Judge and contended that although there

is no mention of a scar below the eye of the appellant in the arrest panchanama as well

as his injury report, however, since incident had happened in broad daylight, there is no

question of any mistaken identity of the appellant. She submitted that therefore the test

identification parade is of no consequence in the instant case. She further submitted

that even the learned Sessions Judge has made a mention in the judgment that the

appellant was having a scar below his right eye. Thus, according to her, the learned

Sessions Judge has rightly assessed the evidence led by the prosecution and has

convicted the appellant in this case.

6] In order to consider the rival contentions of both the sides it would be

advantageous to go through the evidence led by the prosecution witnesses. The

prosecution has mainly relied upon the testimony of prosecutrix (PW-9), the witnesses

on circumstances, the panch witnesses, the investigating officer and the medical

evidence.

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7] The testimony of prosecutrix (PW-9) shows that on the date of incident

she had been to Hingni in the hospital of Dr. Bhatta along with her son. While returning

home on foot by Gohada road, she reached up to the field of Bawane. The said field

was adjoining to drainage. The appellant was on the bank of river along with one other

person, who was sleeping. The appellant followed her by the side of drain (nali). The

appellant kept aside the son of the prosecutrix and made her to fall down in a nali which

was near the field of PW-3 Bawane. The prosecutrix then shouted. The appellant

pulled the knicker of the prosecutrix and committed forcible sexual intercourse with her.

The prosecutrix shouted and tried to release herself from the clutches of the appellant.

She shouted as “Dhaware Bappa”. PW-3 Bawane rushed towards her on hearing her

shouts. In the meantime, the appellant left that place. On making an enquiry by PW-3

Bawane, the prosecutrix informed him that she was raped by the said person. Bawane

then followed the appellant. Two more persons came to that place and they also

proceeded in that direction. The prosecutrix then returned to her village with her child.

She was frightened. She sat in the courtyard of one Suresh Raut. She informed about

the said incident to Manubai Raut (PW-2). The prosecutrix sent her daughter

Shubhangi to call her father. He was in the field at the relevant time. The prosecutrix

then narrated the incident to her husband. Thereafter, she herself along with PW-4

Santosh Sidram, PW-6 Suresh Raut, Jagidish Virkhede proceeded towards the river

side. They met with Bharat who was still present near the place of incident. The

prosecutrix asked Bharat as to who was the said culprit. Bharat informed the name of

the culprit as Arun resident of Dhamangaon. The prosecutrix along with the villagers

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proceeded to the house of the appellant, however, he was not found at home.

According to the prosecutrix, she sustained injuries on her arm, thumb and knee while

she tried to rescue herself. She described the culprit as dark in complexion and there

was a mark on his right eye. The prosecutrix reported the incident to the police

(Exh.46). On the next day, she visited the place of incident. A footwear and bangles

were lying on the spot. Police prepared the spot panchanama and took charge of

pieces of bangles from the spot under panchanama (Exh.15). Police also took charge

of the footwear vide panchanama (Exh.17). Police took charge of her clothes vide

seizure panchanama (Exh.16). The prosecutrix identified all the articles in the Court.

She also identified the clothes of the appellant. The prosecutrix deposed that she was

called for the test identification parade and she identified the appellant out of six

persons. The testimony of the prosecutrix is in consonance with the contents in the

first information report. The first information report, which was lodged on the same day,

shows the name and description of appellant as of shallow complexion and having scar

below his eye.

During the course of cross-examination, the prosecutrix (PW-9) admitted

that she was not knowing the appellant prior to the incident and lateron she came to

know that he is the culprit. She stated that after she informed the name of the appellant

to the police, police went and brought the appellant in the Police Station. Thereafter

police took the prosecutrix (PW-9) as well as the appellant in a same jeep to the

hospital and they were sitting in front of each other in the said jeep. They were in the

hospital for about an hour. They occupied the same jeep and returned to the Police

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Criminal Appeal No.588.05.odt (S) 8
Station. Police then put the appellant in the lockup and she returned home. Thus the

aforesaid testimony of the prosecutrix makes amply clear that the prosecutrix not only

had an ample opportunity to see the appellant at the time of incident in a broad daylight

but also she saw the accused more than an hour in the police jeep as well as in the

hospital. It may be worthwhile to note here that the prosecutrix has lodged her

complaint immediately after the incident. After the incident, she immediately narrated

the incident to PW-3 Bawane, who was the owner of the field where the incident had

taken place and also to the villagers as well as to her husband. The prosecutrix went to

search the culprit along with her husband and others to the place of incident and made

enquiry with Bharat, who was with the appellant in inebriated condition sleeping near

the bank of river. At that time, as Bharat disclosed the name of the culprit, the

prosecutrix, while lodging her complaint, informed the name of the culprit as Arun and

therefore the police searched the appellant and arrested him on the same day. The

testimony of PW-9 Deoka Gurnule further shows that the appellant as well as the

prosecutrix were taken in a police jeep. The appellant was brought to the Police

Station. The prosecutrix saw the appellant in the Police Station and in the same police

jeep she travelled with the appellant to the hospital. According to the prosecutrix, she

identified the same person in jail. Thus since the prosecutrix had ample opportunity to

see the appellant in the Police Station, at that point of time only, the prosecutrix must

have identified the appellant. If at all the appellant would not have been the person,

who committed rape on her, she would have pointed out to the police at that time only.

Under normal circumstances the prosecutrix would have immediately pointed out to the

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Criminal Appeal No.588.05.odt (S) 9
police, if he was not the real culprit, so that the police would have searched the real

culprit who committed rape on her. However, the prosecutrix kept mum which itself

indicates that it was none else than the appellant, who committed the rape on the

prosecutrix. Admittedly, there was no animosity between the prosecutrix and the

appellant to falsely implicate the appellant in a heinous case of rape. There is

absolutely nothing on record to show that there was any sort of rivalry between the

prosecutrix and the appellant to falsely implicate the appellant in the instant case. The

prosecutrix did not stop by simply narrating the incident to her husband but she herself

tried to search the real culprit by visiting the place of incident and making enquiry with

Bharat who accompanied the appellant on the bank of river. The prosecutrix has given

the description of the appellant as having a scar below his right eye. In the court also

she gave the same description of the appellant which the learned Sessions Judge has

verified in the court. Few questions were put to prosecutrix PW-9 that the pieces of

bangles were of green colour, however, those were of sky colour. However, in this

context, the panchanama (Exh.17) shows that the pieces of bangles were of greenish

and bluish colour. Thus the testimony of prosecutrix has not been shattered in her

extensive cross-examination. Nothing is elicited in the cross-examination of PW-9 to

make her testimony doubtful. Prosecutrix (PW-9) is found to be a reliable and

trustworthy witness.

8] The evidence of PW-3 Dnyaneshwar Bawane discloses that on the date of

incident he was working in the field. He heard the shouts as “Dhaware Bappa

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Criminal Appeal No.588.05.odt (S) 10
Dhaware Bapa”. Therefore, he rushed towards the said place. He saw the prosecutrix.

She was weeping. She was having a child with her. She pointed out a direction in

which a person had ran away. Accordingly, PW-3 Bawane and one Sadashio Raja

proceeded in the said direction to search that person. However, the said person was

not traced out, but one Rahul Ghode (PW-5) informed him that the said person was

Arun from Dhamangaon. That lady then proceeded towards her village. The testimony

of PW-3 Bawane is not shattered in the cross-examination.

9] The testimony of PW-5 Rahul Ghode shows that his field is at

Dhamangaon near Gohda road. At the time of incident he was in the field. He offered

water to his bullock and came on the road. He saw the appellant passing on the road.

Arun was proceeding towards Dhamangaon from Gohda. On making an enquiry with

appellant, appellant said that a lady is chasing him. The appellant was holding a

footwear. The said testimony of PW-5 Rahul has not been challenged in the cross-

examination. Thus, the testimony of PW-5 Rahul shows that he had seen the appellant

with one footwear in his hand. At this juncture, it may be mentioned here that the

another footwear was found at the place of incident by the police which was taken

charge under panchanama (Exh.17). The said footwear found at the spot must be

belonging to the appellant, so also the testimony of PW-3 depicts the name of PW-5

Rahul as Rahul had informed him that the said person was Arun from Dhamangaon.

Thus, PW-3, PW5 and PW-9 had seen the appellant proceeding towards the

Dhamangaon immediately after the incident. The testimonies of PW-3, PW5 and PW-

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Criminal Appeal No.588.05.odt (S) 11
9 corroborate with each other on the material aspect and are found to be cogent,

consistent and reliable.

10] The testimony of PW-2 Manubai Raut shows that on the date of the

incident Deokabai met her. She was weeping and she informed that there was rape on

her near the nali of the field. Unfortunately PW-8 Bharat Mandhare did not support the

case of the prosecution and he was declared as hostile witness. On the point of place

of incident, the prosecution examined PW-1 Vasanta Salame, who is the panch witness

and in his presence the police prepared the spot panchanama (Exh.14). Police took

charge of the pieces of bangles (Exh.15). The police also took charge of the clothes of

the prosecutrix under panchanama (Exh.16). The footwear was also taken charge by

the police from the place of incident under panchanama (Exh.17). Thus, the spot

panchanama corroborates with the version of the prosecutrix on the point of finding the

footwear at the place of incident as well as the pieces of broken bangles which supports

her case of forcible sexual intercourse with her.

11] The testimony of PW-10 Natthuji Gurnule, who is the husband of the

prosecutrix, shows that at about 5 to 5.30 pm, his daughter Shubhangi came to him and

informed that a person from Dhamangaon has assaulted to her mother. PW-10 along

with his daughter proceeded to his house. His wife was weeping in the courtyard of

Raut. His wife informed him that a person from Dhamangaon committed rape on her in

a nali near the field of Narayanrao Bawane. Thereafter, he along with the villagers went

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near the person who was sleeping as informed by his wife. PW-10 stated that his wife

informed that one person was sleeping on the river and other person coming behind

her. Accordingly, he along with the villagers went to search that person and he found

one person sleeping on the bank of river. The said person informed the name of culprit

as Arun Marape resident of Dhamangaon who was with him. Thereafter they all went to

the house of appellant, however, the appellant was not found in his house. The

testimony of PW-10 corroborates with the testimony of prosecutrix (PW-9).

12] As far as the medical evidence is concerned, the medical certificate of the

prosecutrix (Exh.34) shows the following injuries on her person which were covered

within 0-12 hours.

(i) Abrasion over right hand thumb ½ cm x ½ cm x ¼ cm.

(ii) Abrasion over left shoulder 2 cm x 1 cm.

(iii) Abrasion over right knee 1 cm x ¼ cm.

The medical evidence corroborates with ocular evidence and the testimony of PW-9

confirms that the prosecutrix had tried to resist the act of the appellant and she

received those injuries during the course of incident.

13] In this context, it would be beneficial to verify the medical evidence with

regard to the appellant. The medical certificate of the appellant (Exh.38) shows that the

appellant was examined on the same day and the fresh injury was found on his private

part which confirms that the appellant was indulged in the offence of rape. The broken

bangles found at the place of incident and the injuries on the person of the prosecutrix

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Criminal Appeal No.588.05.odt (S) 13
shows her resistance to the act of the appellant. The fresh injury on the private part of

the appellant confirms his involvement in the offence.

14] As far as the test identification parade is concerned, no doubt there is a

delay of three weeks in conducting the test identification parade. However, the test

identification parade has no relevance in the present case as the prosecutrix had seen

the appellant in a broad daylight and she had also explained in her first information

report which was lodged immediately after the incident, the description of the appellant

as having a scar below his right eye. She had stated about the said fact even to her

husband. The prosecution had no animosity against the appellant to falsely implicate

him in the present case. In normal circumstance, no lady would falsely implicate any

other person than the real culprit in a heinous offence of rape.

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

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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 State of Maharashtra .vs. Chandraprakash Kewalchand

Jain, reported in (1990) 1 SCC 550, it is held as under :

“The courts must, while evaluating evidence, remain alive to the
fact that in a case of rape, no self-respecting woman would
come forward in a court just to make a humiliating statement
against her honour such as is involved in the commission of
rape on her. In cases involving sexual molestation, supposed
considerations which have no material effect on the veracity of
the prosecution case or even discrepancies in the statement of
the prosecutrix should not, unless the discrepancies are such
which are of fatal nature, be allowed to throw out an otherwise
reliable prosecution case. The inherent bashfulness of the
females and the tendency to conceal outrage of sexual
aggression are factors which the courts should not overlook.”

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 :-

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“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”.

42. In Rammi v. State of M.P. (199) 8 SCC 649,
this Curt has held as follows :(SCC p. 656, para 24)

“24.When an eyewitness is examined at
length it is quite possible for him to make some
discrepancies. No true witness can possibly escape from
making some discrepant details. Perhaps an untrue
witness who is well tutored can successfully make his
testimony totally non-discrepant. But courts should bear
in mind that it is only when discrepancies in the evidence
of a witness were so incompatible with the credibility of
the version that the court is justified in jettisoning his
evidence. But too serious a view to be adopted on mere
variations falling in the narration of an incident (either as
between the evidence of two witnesses or as between
two statements of the same witness) is an unrealistic
approach for judicial scrutiny.”

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

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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.

49. Rape or an attempt to rape is a crime not
against an individual but a crime which destroys the
basic equilibrium of the social atmosphere. The
consequential death is more horrendous. It is to be kept
in mind that an offence against the body of a woman
lowers her dignity and mars her reputation. It is said that
one’s physical frame is his or her temple. No one has any
right of encroachment. ”

The guidelines issued by the Hon’ble Apex Court in aforesaid judgments are applicable

to the facts and circumstances of the present case. Thus the testimony of prosecutrix

is found to be trustworthy. She is found to be a natural and truthful witness. She has

disclosed the incident immediately to PW-3 Bawane who unfortunately turned hostile.

She has also narrated the incident to her husband, who in turn, with the help of villagers

and the prosecutrix went to the place of incident. They made enquiry about the

appellant with Bharat, who was lying in inebriated condition on the bank of river. He

informed the name of appellant as Arun. The prosecutrix immediately lodged her

complaint. The appellant was brought in the Police Station. The prosecutrix saw him in

the Police Station and they were taken to the hospital in same jeep. One footwear of

the appellant was found on the spot and other he was holding which was seen by PW-5

Rahul. Even the said evidence supports the case of prosecution as the injuries were

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found on the person of prosecutrix as well as injury was found on the private part of the

appellant which remained unexplained by the appellant. Most importantly though the

appellant was unknown to the prosecutrix, she had given his description in the first

information report and also to her husband, so also before the court. The prosecution

has proved its case beyond reasonable doubt.

18] The learned trial Judge has rightly assessed the evidence led by the

prosecution. The learned Sessions Judge has rightly imposed the sentence on the

accused. In view thereof no interference is called for in the judgment and order passed

by the learned Sessions Judge. In that view of the matter, in my considered opinion,

the appeal is liable to be dismissed and the same is dismissed accordingly.

JUDGE

Gulande

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