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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 199 OF 2016
Rajkumar s/o Narayan Thakre,
Aged about 40 years, Pan Shop,
R/o Chandori, Tahsil – Tirora,
District Gondia. …. APPELLANT
VERSUS
State of Maharashtra,
through PSO, Police Station Tirora,
District Gondia. …. RESPONDENT
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Shri S.P. Bodalkar, Advocate appointed for the appellant,
Smt. M.H. Deshmukh, Addl.P.P. for the respondent.
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CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 07-08-2017
DATE OF PRONOUNCING THE JUDGMENT : 21-08-2017
JUDGMENT :
The appellant seeks to assail the judgment and order
dated 05-05-2016 delivered by the learned Sessions Judge, Gondia in
Sessions Trial 82/2012 by an under which the appellant (hereinafter
referred to as the “accused”) stands convicted for offences punishable
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under Section 376(2)(f) and 506 of the Indian Penal Code and is
sentenced to suffer rigorous imprisonment for ten years and to pay a
fine of Rs.5,000/- for offence punishable under Section 376(2)(f) and
rigorous imprisonment for one year for offence punishable under
Section 506 of the Indian Penal Code respectively.
2. The case of the prosecution is thus :
The accused visited the house of the complainant Ziblabai
Kadav on 31-10-2010 at about 7-00 p.m. The complainant served the
accused tea and went to the kitchen for cooking. The complainant’s
daughter-in-law was resting in her room as she was unwell. The
accused was a regular visitor to the house of the complainant. The
granddaughter of the complainant Payal then aged 11 years was in the
courtyard. The accused lifted Payal and took her to a spot between
Anganwadi and Samaj Mandir, accused gagged her mouth, removed
her clothes, threatened her and did forcible sexual intercourse. The
accused gave the victim Rs.20/- and threatened her that she shall be
killed if the incident is disclosed. Payal returned her home and
narrated the incident to the complainant. Blood was oozing from her
private part. The complainant took Payal to the house of the police
patil who was not present. The complainant went to the police station
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and lodged report Exhibit 10.
3. The prosecution further contends that on the report of the
complainant offence was registered, investigation was conducted by
A.P.I. Barayya. The victim girl was medically examined by Dr.
Waindeshkar. The investigating officer prepared spot panchanama,
seized clothes of the victim and arrested the accused on 17-11-2010.
The accused was also sent for medical examination and was examined
by Dr. Waindeshkar. The investigating officer sent victim’s clothes to
the chemical analyzer. Completion of investigation led to filing of
charge-sheet before the Judicial Magistrate First Class, Tirora. The
proceedings were committed to the sessions Court for trial.
4. The learned Sessions Judge framed charge at Exhibit 6.
The accused pleaded not guilty and claimed to be tried. The defence
of the accused is of total denial and false implication.
5. The complainant Ziblabai Kadav is examined as P.W.1.
Her testimony is consistent with the oral report Exhibit 10. She
deposes that the accused visited her house. Her two sons had gone to
Nagpur for work and at the time of the incident the complainant, her
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daughter-in-law, father-in-law and Payal were present in the house.
Payal was playing in the courtyard. Payal entered the chapri. The
complainant was in kitchen for cooking. The accused lifted Payal,
carried her to a spot between Balwadi and Samaj Mandir. The
complainant states that when Payal returned, she was weeping. P.W.1
complainant deposes that she was informed by Payal that the accused
took her near Balwadi, pressed her mouth and did sexual intercourse
with her. P.W.1 states that blood was oozing from Payal’s private part.
P.W.1 proves the oral report and the printed first information report
(Exhibit 10 and Exhibit 11 respectively). P.W.1 has been extensively
cross-examined. It is suggested to her that the accused came to her
house at 4-00 p.m. She admits that she served tea to accused and her
husband. She denies the suggestion that her daughter-in-law was not
present in the house. She denies the suggestion that accused left her
house with his wife. She denies the suggestion that the sons of P.W.1
used to frequent the pan and tea stall of the accused and the accused
came to her house to demand the unpaid amount of the bills. She
denies the suggestion that the victim Payal was playing in the tractor
trolley and the accused only lifted her and left her there and went to
his house.
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6. P.W.2 Payal Kadav is the victim. She deposes that on
31-10-2010 at about 7-00 p.m. she was playing in the courtyard. Her
mother was sleeping in the room as she was not well. Her grandfather
was sleeping in the chapri. The accused came to her house, was served
tea by her grandmother who then went to the kitchen for cooking. The
victim states that when she entered the chapri, accused lifted her and
took her to a spot between Balwadi and Samaj Mandir. The accused
gagged her mouth by handkerchief and she could not, therefore, shout.
She states that the accused did forcible sexual intercourse with her and
then gave her Rs.20/- and threatened that if the incident is disclosed to
anybody, he will kill the victim. She deposes that her clothes were
stained with blood. She narrated the incident to her grandmother
(P.W.1). She and her grandmother went to the police station and
lodged report. She has identified the clothes seized from her. In the
cross-examination, she admits that she alongwith Durga and Priyanka
were playing near tractor trolley. She denies the suggestion that the
accused and his wife were on way to their house and when she
alighted from the tractor trolley, the accused caught her hands and
lifted her. The suggestion that the victim lodged the report on the say
of her mother and grandmother, is denied. She has denied the
suggestion that her clothes were not torn and that she did not sustain
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any injury. She denies the suggestion that at the time of the incident
she was having her menstrual cycle.
7. P.W.3 Rajkumar Kadav proves the spot panchanama
Exhibit 14. P.W.4 Devendra Choudhari states that the police seized the
clothes of the victim and took blood sample in his presence and proves
seizure panchanamas Exhibits 16 and 17. P.W.5 Roshan Dongre states
that the police seized clothes of the accused as per seizure panchanama
Exhibit 20. P.W.6 Rahul Puri is examined to prove that he obtained
blood samples from the medical officer and handed over the same to
the investigating officer. P.W. 7 Vilas Ghodmare is examined, he took
the seized property to Nagpur.
8. P.W.8 Dr. Kanchan Rahangdale has deposed that Dr.
Waindeshkar is no more. She states that she knows and identifies the
signature and handwriting of Dr. Waindeshkar. She has identified the
handwriting and signature of Dr. Waindeshkar on the M.L.C. of the
victim and accused which are Exhibits 30 and 31 respectively.
9. P.W.9 A.P.I. Arun Barayya has proved the covering letter
sent to chemical analyzer, chemical analyzer report and has generally
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deposed about the investigation. P.W.10 Narhari Gharpande has
proved the birth certificate (Exhibit 43) evidencing that the victim
Payal was born on 23-12-1999.
10. The defence has examined Panchfulabai Shahare as
D.W.1, Vandana Thakare, wife of the accused as D.W.2 and the
accused himself as D.W.3. Panchfulabai Shahare deposes that on the
day of the incident, she was cleaning rice in the courtyard at about
4-00 p.m. Payal was playing on the trolley. The accused was coming
from the house of Sanjay Kadav. The accused was accompanied by his
wife. The accused talked with D.W.1. The accused was in hurry and
when D.W.1 asked him the reason, he replied that his mother-in-law
was serious and therefore, he was going. Accused alighted Payal from
the trolley. She states that accused returned to the village after four to
five days. In her cross-examination, she has denied the suggestion that
due to good relations with the accused, she is stating falsehood.
D.W.2 Vandana Thakare states that her husband/accused has a tea
stall at Chandori. Her mother was not well on 31-10-2010. She states
that she returned to her house from the field at about 4-00 p.m. Her
family members told her that the accused had gone to the house of
Kadav to bring money. She states that she went to the house of Kadav
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to call the accused. Her husband was taking tea with Payal’s
grandfather. The complainant did not pay money to her husband. She
alongwith her husband returned to their house and on the way they
passed the house of Panchfulabai. Payal was on the tractor with small
children. Her husband went to Nagpur to see her mother and after
four days, he returned back. In the cross-examination, Vandana states
that, the accused went to Nagpur by train. She has not produced the
railway ticket. She says that her mother was admitted in Government
Hospital. She admits that she has not produced any document to show
that her mother was admitted in Government Hospital. She denies the
suggestion that her mother was unwell and that her husband had not
gone to Nagpur to visit her mother. She denies the suggestion that she
has falsely stated that her husband went to the house of the
complainant to bring money. She denies the suggestion that she is
uttering falsehood in order to save her husband. The accused has
examined himself as D.W.3. He states that on 31-10-2010 he visited
the house of Payal’s father Sanjay Kadav to demand an amount of
Rs.1,210/- which was due and payable. He states that he has filed on
record a photocopy of the credit register. He states that he went to
Sanjay Kadav’s house since Sanjay Kadav himself asked him to come.
The accused states that Sanjay Kadav was not present, the father of
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Sanjay Kadav was sitting in the chapri. He was served tea by Ziblabai
and he was told by Ziblabai that her daughter-in-law was unwell and
that they did not have the money to give the accused. The accused
deposes that her wife Vandana came to the house of Sanjay Kadav and
told him that her mother was ill and she admitted in Nagpur. He
states that the accused while returning from the house of Sanjay
Kadav, Payal was playing on the tractor trolley. The accused alighted
her from the tractor trolley as per the say of Panchfulabai. The
accused and his wife thereafter went to their house and on the same
day he left for Nagpur. He says that after ten to twelve days, he
returned from Nagpur. He was arrested by the police. He claims
innocence and states that he has brought original register evidencing
the entry in respect of the credit amount due and payable by the father
of the victim. In cross-examination, he admits that there is overwriting
in the name and denies the suggestion that he has written the word
Kadav later on. He denies the suggestion that he did not take Payal
down from the trolley as per the say of Panchfulabai. He denies that
his mother-in-law was not ill and he did not go to Nagpur. He denies
the suggestion that he had forcible sexual intercourse with Payal and
has taken a false defence of having gone to Nagpur at the relevant
time.
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11. I have heard learned Counsel Shri S.P. Bodalkar who is
appointed to represent the accused and learned Additional Public
Prosecutor Smt. Deshmukh for the respondent.
12. The learned Counsel for the accused contends that the
testimony of the prosecutrix is absolutely untrustworthy and
unreliable. The learned counsel would submit that the testimony of
the prosecutrix is not supported by the medical evidence on the record.
He would further contends that the witnesses examined in defence
have probabalized the defence and the accused is, therefore, entitled to
the benefit of doubt.
13. The learned Additional Public Prosecutor would urge that
the testimony of the prosecutrix who then was 11 years old is
consistent and confidence inspiring. The testimony is corroborated by
medical evidence and that there is no material on record to suggest
that the accused is falsely implicated. She invites my attention to the
settled legal position that if the testimony of the prosecutrix is found
reliable, conviction can be based even on the basis of her
uncorroborated testimony.
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14. The learned Additional Public Prosecutor is right in
contending that conviction can be based on uncorroborated testimony
of the prosecutrix. The Court, however, must rule out any possibility
of false implication. I have given my anxious consideration to the
evidence on record including the testimonies of the three defence
witnesses. The evidence on record, in my opinion, rules out any real
possibility of false implication. It is not the case of the accused that
there was any prior enmity or rivalry between the family of the
prosecutrix and the accused prior to the incident. Indeed it has come
on record in the cross-examination of the complainant that when the
accused visited the house of the complainant, he was treated well and
offered a cup of tea. The defence that the accused went to the house
of the complainant to demand certain amount due and payable by the
father of the prosecutrix, is hardly confidence inspiring. It is not even
the version of the defence, that when such amount was allegedly
demanded, there was any dispute or altercation. It is difficult to
believe that the 11 years old prosecutrix could have been used as a tool
to falsely implicate the accused. The notions and prejudices of the
Indian society, unfortunately view rape as a stigma and the prosecutrix
and her family have to bear the burden for the entire life. I am
convinced that there was no motive for false implication. Moreover,
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the testimony of the prosecutrix is consistent and confidence inspiring
and is corroborated by medical evidence and the testimony of the
complainant.
15. The testimony of P.W.2 victim and P.W.1 Ziblabai is
corroborated not only by the medical evidence but further by the
report of the chemical analyzer Exhibits 35 to 37 which evidences that
the petticoat of the victim was torn and had several blood stains spread
across the petticoat. Human blood and semen is detected on the
clothes of the victim. The M.L.C. Exhibit 30 evidences injuries to the
private part of the victim caused due to forcible sexual intercourse.
The lower part of vagina is torn and lacerated. The bleeding from the
vaginal wound is seen in the examination.
16. The defence is that the victim Payal was playing on the
tractor trolley and the injury is caused while the victim was playing on
the tractor trolley. D.W.1 Panchfulabai claims to have met the accused
and his wife coming from the house of the complainant at around 4-00
p.m. on the date of the incident. She claims that the accused talked
with her, was in a hurry and upon being asked the reason to him, he
replied that his mother-in-law was serious and therefore, he was
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leaving. She claims that the accused alighted Payal from the tractor
trolley. She admits in the cross-examination that she has close
relations with the accused and denies the suggestion that she is
attempting to help the accused. D.W.2 who is wife of the accused only
states that while returning from the house of the complainant she and
the accused passed the house of D.W.1. She has not referred to any
conversation between D.W.1 and the accused. She states that the
victim was on the tractor trolley alongwith other children. She then
states that the accused went to Nagpur to see her mother and returned
after four days. In the cross-examination, she admits that she has no
proof of the train journey which the accused allegedly undertook to
reach Nagpur. She says that her mother was admitted to the
Government Hospital. She admits that she has not produced any
documentary evidence to show that her mother was admitted in
Government Hospital. The accused is examined as D.W.3. He states
that he had gone to the house of the complainant to demand the credit
amount due and after consuming a cup of tea, he left the house upon
the complainant informing him that it would not be possible to make
the payment as her daughter-in-law was ill. The accused claims that
his wife came to the house of the complainant and told him that her
mother was ill. He further claims that alongwith his wife he left the
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house of the complainant and while on way to their house he alighted
Payal from the tractor trolley as per the say of Panchfulabai D.W.1.
The inconsistencies and inter se contradiction between the testimonies
of D.W.1, D.W.2 and D.W.3 are far to glaring to give any credence to
the testimony. There is not even whisper in the testimony of D.W.1
that she asked the accused to bring down from the tractor trolley.
D.W.2 who is the wife of the accused does not mention this incident at
all. She does not state in her evidence that her husband and Payal had
interaction muchless that her husband/accused brought down Payal
from the tractor trolley. D.W.3 claims that he alighted Payal from the
trolley as per the say of D.W.1. An integral part of the story is the
alleged illness of the mother-in-law of the accused. D.W.2 wife of the
accused is alleged to have come to the house of the complainant only
to tell the accused that her mother was ill and thereupon the accused
claims to have hurriedly left the house of the complainant and then left
for Nagpur. The defence is of alibi. However, documentary evidence
which in the ordinary course would have been readily available, if the
story were to be true, is not produced. The mother-in-law of the
accused was admitted to Government Hospital, Nagpur, according to
D.W.2. Nothing is produced on record to substantiate this version.
The accused is said to have gone to Nagpur by train, again no
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documentary evidence of the train travel is produced. The accused
could have examined ‘n’ number of witnesses vouching for the
presence of the accused in Nagpur at the relevant time. No attempt is
made by the defence to probablize the defence of alibi. It can be
concluded with certainty that the defence version that the accused was
not in the village when the incident occurred, is unbelievable. I have
no hesitation in discarding the defence evidence since the same is
wholly unreliable.
17. The judgment and order impugned of the learned Sessions
Judge, Gondia in Sessions Trial 82/2012 is unexceptionable on facts
and in law and no interference by this Court is warranted.
18. The appeal is without substance and is rejected.
The fees of the learned Advocate appointed for the
appellant is quantified at Rs.5,000/-.
JUDGE
adgokar
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