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Bhola Maroti Chakole (In Jail) vs State Of Maharashtra Thr. P.S.O. … on 26 March, 2018



Bhola Maroti Chakole,
Aged about 35 years, Occ. – Labour,
R/o Mohadi, Tq. Mouda, District –
Nagpur. .. APPELLANT


State of Maharashtra,
Through P.S.O., P.S. Mouda,
District – Nagpur (M.S.). ..RESPONDENT


Shri R.M. Daruwala, Counsel for the appellant,
Shri S.S. Doifode, Additional Public Prosecutor for the respondent


DATE : 26TH MARCH, 2018

The appellant is aggrieved by the judgment and order dated

16-4-2016 rendered by the learned Additional Sessions Judge-8, Nagpur in

Sessions Trial 209/2014, by and under which the appellant-accused is convicted

for offence punishable under Section 376 of the Indian Penal Code (“IPC” for

short) and is sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs.10,000/- and is further convicted for offence punishable

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under Section 506 of the IPC and is sentenced to suffer rigorous imprisonment for

one year and to payment of fine of Rs.500/-.

2. Heard Shri R.M. Daruwala, learned Counsel for the accused and Shri

S.S. Doifode, learned Additional Public Prosecutor for the respondent.

3. The prosecutrix (P.W.1), then aged 60 years, lodged oral report dated

13-1-2014 (Exhibit 20) at Mouda Police Station, alleging that she was subjected to

forcible sexual intercourse by the accused. The gist of the oral report is that the

prosecutrix was proceeding to Government Hospital, Mouda to change her

spectacles, between 10-00 to 10-30 a.m. on 13-1-2014. The accused came on a

motorcycle and offered to reach the prosecutrix to the hospital. The prosecutrix

boarded the motorcycle. The accused, after travelling some distance from Marodi

village, turned the motorcycle towards the babul (cutban) forest. The prosecutrix

asked the accused as to why he was taking her in the direction of the babul

(cutban) forest and the response was that the accused was expecting a friend who

is also wanting to go to Mouda. The prosecutrix told the accused to fetch his

friend and that she would wait on the road. The accused stopped the motorcycle at

some distance, dragged the prosecutrix to the babul (cutban) forest, threatened her

and subjected her to forcible sexual intercourse by issuing threats that should the

prosecutrix resist, she would be killed. Since the prosecutrix started shouting the

accused fled on his motorcycle. The accused came on the road and with the help

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of a school going boy came to Jaistambh Chowk, Mouda. She then went to her

son’s father-in-law’s house. The prosecutrix and her son then lodged the report.

The Mouda Police, on the basis of the oral report (Exhibit 20) and

printed first information report (Exhibit 21) registered offence punishable under

Sections 376 and 506 of the IPC against the accused, investigation ensued, P.W.7

Wasudeo Burade conducted the investigation and submitted the charge-sheet in the

Court of Judicial Magistrate First Class, Mouda, who committed the proceedings

to the Sessions Court.

The learned Sessions Judge framed charge (Exhibit 10) for offence

punishable under Sections 376 and 506 of the IPC against the accused. The

accused abjured guilt and claimed to be tried. The defence of the accused is of

total denial and false implication. The prosecution examined seven witnesses.

P.W.1 is the prosecutrix who deposed that at 9-00 a.m. or thereabout on 13-1-2014

she left her house on foot to go to Mouda to bring the spectacles. The accused met

her near the nullah and asked her to sit on the pillion seat and told the prosecutrix

that he is going to Mouda. The prosecutrix declined since her son was to come on

motorcycle, the accused repeatedly requested the prosecutrix to board his

motorcycle. She conceded. The motorcycle reached till the highway from where

the accused turned the motorcycle in the left direction. The prosecutrix was take

to a babul (cutban) forest. The prosecutrix was dragged to some distance, pushed

on the wet earth and was asked to submit to sexual intercourse, she was threatened

by the accused who was brandishing a knife. Her clothes were removed and she

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was subjected to forcible intercourse. The accused then fled from the spot. The

prosecutrix wore her clothes and reached highway and narrated the incident to a

person who came there on motorcycle. The said person dropped the prosecutrix at

Jaistambh Chowk, Mouda. The prosecutrix went to the house of the father-in-law

of her son one Pramod Mankar. Her son was waiting at Mankar’s house. The

prosecutrix narrated the incident to her son and then the report was lodged. She

has identified the knife and the clothes which she was wearing. She has also

identified the bangle pieces seized from the spot.

The endeavour in the cross-examination is to demonstrate that

considering the distance between the house of the prosecutrix and the spot at

which she was asked by the accused to board the motorcycle, it is inconceivable

that independent witnesses did not see the prosecutrix boarding the motorcycle.

Shri R.M. Daruwala, learned Counsel for the accused also urged that failure of the

prosecution to examine independent witnesses renders the version of the

prosecutrix suspect. The prosecutrix is suggested that the accused is falsely

implicated since there was a dispute between the prosecutrix and the accused on

the issue of grazing of she-goats and throwing of waste material in the land of

Jitendra Ghube and a quarrel between the prosecutrix and the accused which took

place during Bhagwat Saptah in the village. The suggestions are denied.

4. The version of the prosecutrix is corroborated by P.W.3-

Shaktikumar, her son to whom she narrated the incident. The version of the

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prosecutrix is further corroborated by the medical evidence on record. She was

medically examined by P.W.5 Dr. Sachin Wankhede who noticed injuries on her

person which he describes thus :

1) abrasion just below left scapular region of size 1 x 0.5 cm.

2) contusion generalized over back of varying size from 3 x 3 to 1 x 1 cm.

3) abrasion over left breast of size 1 cm.

4) abrasion over right wrist of size 1 cm.

5) tear of 1.5 x 1 cm. by fourchette.

5. P.W.6 Dr. Inamdar examined accused Bhola on 31-1-2014 and

noticed the following injuries :

1) superficial abrasion over left knee anterior,

2) abrasion over right knee.

The injuries were fresh.

6. The knife used to threaten the prosecutrix was recovered and seized

at the instance of the accused from the dickey of motorcycle, vide seizure

panchanama (Exhibit 48). The memorandum pursuant to which discovery and

seizure effected is Exhibit 47. The spot panchanama records the presence of

pieces of broken bangle, which were seized and which pieces the prosecutrix

identified in the Court. The panchas did not support the prosecution. However, it

is a settled position of law that if the evidence of the Investigating Officer is found

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to be reliable, notwithstanding that the panchas did not support the prosecution,

which a phenomenon noticed with disturbing regularity, the seizure proved by the

Investigating Officer cannot be disbelieved.

7. The evidence of the prosecutrix is implicitly reliable. Nothing is

brought on record for this Court to disbelieve the prosecutrix, who was then sixty

years. The defence that the accused is falsely implicated must be noted only for

rejection. Beyond suggesting to the prosecutrix that there was a dispute on the

issue of throwing waste material, grazing of she-goats and there was a quarrel, the

details of which are not put to the witness, between the prosecutrix and the

accused on the occasion of Bhagwat Saptah nothing is brought on record to

probabilize the defence even on the touchstone of preponderance of probabilities.

Since the evidence of the prosecutrix is confidence inspiring, this Court is not

obligated to search for corroboration. The submission of Shri R.M. Daruwala that

failure of the prosecution to examine independent witnesses to show that the

prosecutrix boarded the motorcycle of the accused, is fatal to the case of the

prosecution, is unacceptable. Corroboration is not necessary. In any event, the

evidence of the prosecution is supported by strong corroborative evidence by way

of testimony of P.W.3 and the medical evidence on record. It must be noted that

the accused did not explain the injuries detected on his person. The conscience of

this Court is satisfied that the prosecution has proved the offence beyond

reasonable doubt.

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8. The appeal is sans merit and is dismissed.

9. The fees of the learned Counsel Shri R.M. Daruwala appointed for

the accused are quantified at Rs.5,000/- (Five Thousand).



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