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Gopal Narayan Bongale vs The State Of Maharashtra And Anr on 28 September, 2018

(33)APEALNo.2632014(J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.263 OF 2014

Gopal Narayan Bongale,
Age 49 years, Occu.-Business,
R/o.-S.No.51/1/1/, Plot No.5,
Behind Ota Scheme, Nigadi, Pune
(Presently detained at Yerawada
Central Prison, Pune.) … Appellant

V/s.

1. The State of Maharashtra,

2. Anjana Laxman Jadhav,
Age 30 years, Occ. : Labour,
Originally R/o.Shirgaon,
Tal.Rajguru Nagar, Dist.Pune.
Presently R/o.Shirke Chawl,
Shramik Nagar, Behind Ramabai
Colony, Nigadi, Pune. … Respondents

…..

Mr.Daulat G. Khamkar, Advocate for the Appellant.

Mrs.M.R.Tidke, APP for the Respondent/State.

….

CORAM : A.M.BADAR J.

DATED : 28th SEPTEMBER 2018.

ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging

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(33)APEALNo.2632014(J)

the Judgment and Order dated 1 st March 2014 passed by the
learned District Judge -2, Pune in Sessions Case No.1118/2009
thereby convicting the appellant/accused of the offence punishable
under Section 376 of the Indian Penal Code and sentencing him to
suffer rigorous imprisonment for seven years apart from payment
of fine of Rs.10,000/- and in default of payment of fine to undergo
further rigorous imprisonment for one year.

2 Briefly stated, case of the prosecution is thus :

(a) First Informant/prosecutrix/P.W.No.1 is an adult married
female having a son aged about nine years. She was deserted
by her husband since last eight years. Thereafter, she took
shelter of house of her mother P.W.No.3 Laxmibai and started
residing at Nigadi area of Pune. Apart from her mother, her
sister P.W.No.2 Pramila along with her husband and children
were also inmates of house of the mother of the
prosecutrix/P.W.No.1.

(b) For earning her livelihood, the prosecutrix/P.W.No.1 used to
do the labour work with a mason named Sayyad Shaikh. She
used to go for doing labour work on the scooter of said
Sayyad Shaikh, who used to drop her back to her house after
finishing the work, daily.

Gaikwad RD 2/15
(33)APEALNo.2632014(J)

(c) The appellant/accused along with his wife used to reside in
front of house of mother of the prosecutrix/P.W.No.1 at
Nigadi area of Pune. He was frequent visitor to the house of
the prosecutrix/P.W.No.1. The reason for visits of the
prosecutrix/P.W.No.1 is his insistence to her to take out
ration card, with his help. Similarly, the appellant/accused
used to say that he will build a house for the
prosecutrix/P.W.No.1.

(d) The incident allegedly took place at 8.00 p.m. of 17/07/2009
in the tin shed located just behind the house of the
appellant/accused. The prosecutrix/P.W.No.1 averred that on
that day at about 7.45 p.m., the appellant/accused, as usual,
came to her house. He was carrying a file. He requested her
to take that file and give it to his wife. Upon insistence of the
appellant/accused, the prosecutrix/P.W.No.1 gave that file to
the wife of the appellant/accused. When she came out of the
house of the appellant/accused, the appellant/accused
insisted the prosecutrix/P.W.No.1 to come to the tin shed
behind his house for cleaning it. The prosecutrix/P.W.No.1
refused. The appellant/accused dragged her by holding her
hand to the tin shed located at the backside of his house,
chained the door from inside and threatened her. The
prosecutrix/P.W.No.1 tried to convince him. The appellant/
accused took out his clothes except his banian and asked the

Gaikwad RD 3/15
(33)APEALNo.2632014(J)

prosecutrix/P.W.No.1 to remove her clothes. She declined.
The appellant/accused then took out her knicker, made her to
lie and committed rape on her. Thereafter, after twenty
minutes, the appellant/accused asked the prosecutrix/
P.W.No.1 to go to her house. She returned back to her house
and disclosed the incident to her mother P.W.No.3 Laxmibai.
Because of threat given by the appellant/accused, she did not
lodge the report to police station on that day.

(e) According to the prosecution case, the prosecutrix/P.W.No.1
then lodged report about the incident to police on
19/07/2009 which resulted in registration of Crime No.224 of
2009 for the offence punishable under Section 376 of the
Indian Penal Code with Dehu Road Police Station, Pune
against the appellant/accused.

(f) The appellant/accused came to be arrested after lodging the
FIR by the prosecutrix/P.W.No.1. He was subjected to
medical examination. The prosecutrix/P.W.No.1 was also
subjected to medical examination. The clothes of the
appellant/accused so also that of the prosecutrix/P.W.No.1
came to be seized. The spot of the incident came to be
inspected and the spot panchanama was prepared in presence
of panch witnesses. Statements of witnesses came to be
recorded and on completion of routine investigation, the

Gaikwad RD 4/15
(33)APEALNo.2632014(J)

appellant/accused came to be charge-sheeted for the offence
punishable under Section 376 of the Indian Penal Code.

(g) The learned trial Court framed charge for the offence
punishable under Section 376 of the Indian Penal Code
against the appellant/accused. The appellant/accused
pleaded not guilty and claimed trial. In support of the charge,
prosecution has examined in all ten witnesses. The
prosecutrix/First Informant came to be examined as
P.W.No.1. The report lodged by her is at Exhibit 16. Her
sister Pramila came to be examined as P.W.No.2. Her mother
Laxmibai came to be examined as P.W.No.3. Panch witness
Vijay Waghmare came to be examined as P.W.No.4. The spot
panchanama proved by him is at Exhibit 21. Another panch
witness Nandkishor Yadav is examined as P.W.No.5. Exhibit
23 is the panchanama of seizure of clothes of the
appellant/accused. P.W.No.6 is Suresh More – a panch
witness before whom clothes worn by the
prosecutrix/P.W.No.1 at the time of the incident came to be
seized vide seizure panchanama (Exhibit 25). Investigating
Officer, PSI Amarnath Patankar is examined as P.W.No.7.
Dr.Om Prakash Bokhare, who examined the prosecutrix/
P.W.No.1 is examined as P.W.No.8. Another Medical Officer
Dr.Anand Waghmare is examined as P.W.No.9. Carrier Police
Head Constable Rahul Jadhav is examined as P.W.No.10.

Gaikwad RD 5/15
(33)APEALNo.2632014(J)

(h) Defence of the appellant/accused is that of false implication.

He examined himself as D.W.No.1 and has also adduced
evidence of Dattatreya Sonawane as D.W.No.2 and
Dnyaneshwar Relekar as D.W.No.3. The appellant/accused
has also examined his wife Sunita Bhongale as D.W.No.4. It
was sought to be brought on record that at the time of the
alleged incident, the appellant/accused was not present at his
house or at the tin shed of his house, but he was present at
Bhakti Shakti Garden of Nigadi, which is at a distance, which
can be travelled by a vehicle in ten minutes.

(i) After hearing the parties, the learned trial Court came to the
conclusion that the prosecution has established the guilt of
the appellant/accused for the offence punishable under
Section 376 of the Indian Penal Code. The learned trial Court
concluded that evidence of the prosecutrix/P.W.No.1 is
believable and trustworthy. The same is corroborated by
other evidence on record. The plea of alibi is afterthought
and unbelievable. The learned trial Court by convicting the
appellant/accused for the offence punishable under Section
376 of the Indian Penal Code sentenced him as indicated in
the opening paragraph of this Judgment.

3 Heard the learned Counsel appearing for the
appellant/accused. He argued that there is delay of two days in

Gaikwad RD 6/15
(33)APEALNo.2632014(J)

lodging the FIR. The incident took place on 17/07/2009, but the
report came to be lodged on 19/07/2009. The FIR shows that the
prosecutrix/P.W.No.1 had immediately disclosed the incident to
her mother – P.W.No.3 Laxmibai. However, there is inconsistency
in the evidence of the prosecution as the prosecutrix/P.W.No.1 so
also her sister P.W.No.2 Pramila and her mother P.W.No.3
Laxmibai are stating that the prosecutrix/P.W.No.1 has disclosed
the incident after two days to them.

4 The learned Additional Public Prosecutor supported
the impugned Judgment and Order and resultant sentence by
arguing that evidence of the prosecutrix/P.W.No.1 is gaining
corroboration from the forensic evidence adduced by the
prosecution. Stains of semen of AB group were found on the
petticoat of the prosecutrix/P.W.No.1 and blood group of the
appellant/accused is AB.

5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including depositions of
witnesses so also the documentary evidence. I have also carefully
perused the impugned Judgment and Order of conviction and
resultant sentence. I am of the considered opinion that benefit of
doubt needs to be given to the appellant/accused and he deserves
acquittal from the alleged offence for the following reasons.

Gaikwad RD                                                                 7/15
(33)APEALNo.2632014(J)

6 It is seen from evidence of the prosecution and

particularly coming out from the mouth of P.W.No.3 Laxmibai -
mother of the prosecutrix/P.W.No.1 and P.W.No.2 Pramila - sister
of the prosecutrix/P.W.No.1 that the prosecutrix/P.W.No.1 along
with her son Omkar, who happened to be aged about 9 years was
residing in the house of P.W.No.3 Laxmibai. P.W.No.2 Pramila
along with her husband as well as her children was also residing in
the said house. Evidence of P.W.No.3 Laxmibai goes to show that
the appellant/accused was a frequent visitor to her house. It has
come on record from cross-examination of the prosecutrix/
P.W.No.1 that she was knowing wife of the appellant/accused.
She was knowing the appellant/accused since last three years
prior to the incident. Evidence of P.W.No.2 Pramila - sister of the
prosecutrix/P.W.No.1 also shows that appellant/accused used to
visit their house frequently. Evidence of these witnesses further
shows that the reason for such visits were insistence on the part of
the appellant/accused to the prosecutrix/P.W.No.1 to take out
ration card with his help. The prosecutrix/P.W.No.1 was very
specific in stating that the appellant/accused used to say that he
will build a house for her.

7 Location of houses of the prosecutrix/P.W.No.1 and
the appellant/accused which is reflected from the evidence on
record is also material. As per version of the prosecutrix/
P.W.No.1, the appellant/accused resides just in front of her house
and his house is near to her house. According to the prosecution

Gaikwad RD 8/15
(33)APEALNo.2632014(J)

case, family of the appellant/accused also used to reside with him.
The spot panchanama (Exhibit 21) proved by P.W.No.4 Vijay
Waghmare shows that at the backside of the house of the
appellant/accused there was a small tin shed. The door of that tin
shed, as seen from the evidence of P.W.No.4 Vijay Waghmare, was
in dilapidated condition.

8 According to the prosecution case, the prosecutrix/
P.W.No.1 was deserted by her husband since long. In the FIR
(Exhibit 16) itself, the prosecutrix/P.W.No.1 has alleged that her
husband had deserted her since last eight years. Evidence of her
mother P.W.No.3 Laxmibai shows that husband of the
prosecutrix/P.W.No.1 deserted her when she was carrying
pregnancy of two months. The prosecutrix/P.W.No.1 deposed that
her son is aged about 9 years. This makes it clear that the
prosecutrix/P.W.No.1 was residing away from her husband since
last about eight years. Her cross-examination further shows that
her husband never used to meet her during this period of eight
years. Therefore, she used to earn her livelihood by working as a
labourer with a mason named Sayyad Shaikh. On each day, she
used to go to her work place with this Sayyad Shaikh on his
scooter and used to came back with him at the end of the day.

9 On the backdrop of this factual position emerging on
record from the evidence of prosecution, let us examine whether
the prosecutrix/P.W.No.1 is a witness of truth and her evidence

Gaikwad RD 9/15
(33)APEALNo.2632014(J)

can be accepted and relied upon for basing conviction for such
serious offence. This is particularly so because the prosecutrix/
P.W.No.1 was well acquainted with the appellant/accused, who
was a frequent visitor to her house. There were several persons
residing in the house of the prosecutrix/P.W.No.1 including
husband of her sister P.W.No.2 Pramila. The prosecutrix/
P.W.No.1 was even knowing wife of the appellant/accused, who
happens to be residing just in front of her house. So far as
incident in question is concerned, as per version of the
prosecutrix/P.W.No.1, at about 7.00 p.m to 8.00 p.m. of
17/07/2009, the appellant/accused came to her house with a file
in his hand. He told her to take the file to his house and gave that
file to his wife. Upon his insistence, she went to the house of the
appellant/accused and gave that file to the wife of the
appellant/accused. When she came out of the house of the
appellant/accused, the appellant/accused asked her to clean his
house and on her refusal, he caught hold of her hand, took her at
the backside of his house, put her in the room and locked that
room from inside. The prosecutrix/P.W.No.1 further deposed that
then he throw her forcefully and raped her. She claimed to be in
company of the appellant/accused for twenty minutes thereafter.
Then the appellant/accused threatened to kill her and her parents.
The prosecutrix/P.W.No.1 claimed that as she was under fear of
threat given by the appellant/accused, she narrated the incident to
her mother after two days.

Gaikwad RD                                                                      10/15
(33)APEALNo.2632014(J)

10 Cross-examination of the prosecutrix/P.W.No.1 reveals

that the incident in question, in fact, had happened in the tin shed
and not in a room. That tin shed was situated at the backside of
the house of the appellant/accused. The prosecutrix/P.W.No.1
stated in her cross-examination that after the appellant/accused
caught hold of her by her hand, she rescued herself. Thereafter,
she herself went behind the appellant/accused to that tin shed and
was there with the appellant/accused for twenty minutes.

11 The story sought to be put forward by the prosecutrix/
P.W.No.1, who happens to be an adult lady deserted by her
husband is inherently improbable. There was no reason for the
prosecutrix/P.W.No.1 to go to the house of the appellant/accused
located just in front of her house for giving the file to the wife of
the appellant/accused, when the appellant/accused was very
much present there. She claims that the appellant/accused caught
hold of her hand and started dragging her towards the tin shed,
when she came out of the house of the appellant/accused after
giving file to his wife. She could have very well shouted for help
at that time and could have called wife of the appellant/accused,
who was very much present on the spot. After getting herself
freed from the clutches of the appellant/accused, rather than
following him to the tin shed, the prosecutrix/P.W.No.1 could
have gone to her house, which was located just in front of house of
the appellant/accused. She could have very well shouted for help

Gaikwad RD 11/15
(33)APEALNo.2632014(J)

and could have sought help from inmates of her own house. The
prosecutrix/P.W.No.1 could have shouted for help while inside the
tin shed of which door was in dilapidated condition, as seen from
evidence of panch witness P.W.No.4 Vijay Waghmare. Even after
the incident of alleged rape, the prosecutrix/P.W.No.1 claimed to
have stayed with the appellant/accused for twenty more minutes.
There is no explanation to this unnatural conduct of the
prosecutrix/P.W.No.1.

12 Though the prosecutrix/P.W.No.1 is claiming to have
stated the incident to her mother after two days because of fear of
threat of the appellant/accused the FIR lodged after two days of
the incident by the prosecutrix/P.W.No.1 goes to show that the
incident was immediately disclosed by the prosecutrix/P.W.No.1
to her mother soon after it had happened. This first version of the
prosecutrix/P.W.No.1 reflected from the FIR shows that the
incident was within knowledge of P.W.No.3 Laxmibai immediately
after its happening. P.W.No.3 Laxmibai, as stated in the foregoing
paragraphs, was residing with her two daughters including the
prosecutrix/P.W.No.1 so also her son-in-law as well as children of
her daughters. The prosecutrix/ P.W.No.1 was very well
acquainted with her employer Sayyad Shaikh, who used to take
her to her workplace on each day by scooter and who was
dropping her back to the house at the end of the day. Thus, there
were tons of opportunities with the prosecutrix/ P.W.No.1 and her

Gaikwad RD 12/15
(33)APEALNo.2632014(J)

family members to lodge the report of the incident immediately to
police. The appellant/accused was acquainted with the
prosecutrix/P.W.No.1 and her family members since last three
years. Except bare words of the prosecutrix/P.W.No.1, there is
nothing on record to indicate that the prosecutrix/P.W.No.1 as
well as all her family members were under spell of terror of the
appellant/accused. There is no factual data or reasons for the
prosecutrix/P.W.No.1 and her family members for being under
spell of threat allegedly given by the appellant/accused to the
prosecutrix/P.W.No.1 at the time of the incident. Delay of two
days in lodging the FIR by the prosecutrix/P.W.No.1 despite
disclosure of the incident to her mother soon after the incident
indicates that the FIR may be a result of concoction.

13 The prosecutrix/P.W.No.1 was subjected to the
medical examination and she was examined by P.W.No.8 Dr. Om
Prakash Bokhare, who had given a report that there were no
external injuries on person of the prosecutrix/P.W.No.1. There was
no internal injury to the prosecutrix/P.W.No.1. This Medical
Officer has reported and deposed before the Court that the clinical
findings upon examination of the prosecutrix/ P.W.No.1 are
suggestive of the fact that the prosecutrix/P.W.No.1 is a woman,
who is habitual to sexual intercourse. At this juncture, it needs to
be kept in mind that the prosecutrix/P.W.No.1 had no access to
her husband since last eight years.

Gaikwad RD                                                                  13/15
(33)APEALNo.2632014(J)

14 Evidence adduced by the prosecution shows that stains

of semen were found on the petticoat of the prosecutrix/P.W.No.1.
The chemical analysis reports are at Exhibits 32 and 38. However,
evidence on record do not show that seized clothes of the
prosecutrix/P.W.No.1 were sealed after their seizure. For the
reasons stated in the foregoing paragraphs, possibility of
consensual sex cannot be ruled out.

15 Though the appellant/accused has adduced evidence
of defence witnesses including that of his own, the foregoing
discussion requires me to hold that the evidence of the prosecution
is not sufficient to bring home the guilt to the appellant/accused.
The appellant/accused is, therefore, entitled for acquittal by
granting benefit of doubt to him. As such, the following Order :

ORDER

(i) The appeal is allowed.

(ii) The impugned Judgment and Order of conviction and
resultant sentence dated 01/03/2014 passed by the
leaned District Judge - 2, Pune in Session Case No.1118
of 2009 is quashed and set aside.

(iii) The appellant/accused is acquitted of the offence
punishable under Section 376 of the Indian Penal Code.

Gaikwad RD                                                               14/15
(33)APEALNo.2632014(J)

(iv) Fine amount, if any, paid by the appellant/accused be
refunded to him.

(v) The applicant be released from the jail forthwith if not
required in any other offence.

(vi) The appeal is accordingly disposed of.

(A.M.BADAR J.)

Raju
Dattatraya
Gaikwad
Digitally signed by
Raju Dattatraya
Gaikwad
Date: 2018.10.03
11:14:09 +0530

Gaikwad RD 15/15

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