SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ramdas Alias Ramkisan S/O Nagnath … vs The State Of Maharashtra on 23 October, 2018

926.crl.apeal.494.16.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 494 OF 2016

Ramdas alias Ramkisan s/o Nagnath
Hulgunde,
Age : 29 years, Occu: Labourer,
R/o: Mangalwar Peth, Hamal Galli,
Ambejogai, Taluka : Ambejogai,
District Beed.

(At present the Appellant is in Nashik
Central Jail, Nashik Road, Nashik,
Taluka and District: Nashik). Appellant/Accused

VERSUS

The State of Maharashtra,
through the Police Station Officer,
Ambejogai (City) Police Station,
Taluka : Ambejogai, District : Beed.
Respondent/
[ Notice to the Respondent to be served Prosecution
through the Public Prosecutor, High
(Original
Court of Bombay, Bench at
Complainant)
Aurangabad].

Mr. Rajandre S. Deshmukh for the Appellant.
Mr. K. D. Munde, APP for the Respondent – State.
Mr. A. L. Kanade, Assist to APP.

CORAM : K. L. WADANE, J.

Reserved on : 19th October, 2018
Pronounced on : 23nd October, 2018

habeeb 1/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::
926.crl.apeal.494.16.odt

JUDGMENT:

1. This criminal appeal is being directed against the impugned

judgment and order dated 25.07.2016 by which the appellant is

convicted for the offence punishable under Section 376 of the Indian

Penal Code and sentenced to suffer rigorous imprisonment for ten years

and to pay fine of Rs.2,000/-. He is further convicted for the offence

punishable under Section 452 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for three years and to pay fine of

Rs.1,000/-. The accused is convicted under Section 323 of the Indian

Penal Code and sentenced to suffer rigorous imprisonment for six

months and to pay a fine of Rs.500/-. The accused is further convicted

under Section 506 of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for three years and to pay fine of Rs.1,000/-. The

appellant is also found guilty for the offence punishable under Section 3

[2] [V] of SC and ST [Prevention of Atrocities] Act, 1989 and sentenced

to suffer rigorous imprisonment for 10 years and to pay fine of

Rs.2,000/-.

2. PW-1 – Victim lodged a complaint to the Police Station

Ambajogai on 22.05.2015 alleging that on 21.05.2015 her husband

Manoj went to Barshi and sent a message through brother-in-law Ashok

habeeb 2/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

that he is coming late to house, therefore, the prosecutrix slept in her

house without latching the door from inside.

3. On 22.05.2015 at about 2:30 am, suddenly the accused

entered into the house and latched the door from inside. At that time the

prosecutrix awakened and inquired with the accused as to why he

entered into the house. At that time prosecutrix tried to make hue and

cry, however, the accused pressed her mouth and also threatened to kill.

Thereafter, the accused committed sexual intercourse. At that time, the

husband returned to her home and knocked the door. The prosecutrix

pushed the accused, she received injuries on her neck. The prosecutrix

removed the latch of the door then her husband tried to caught hold but

the accused ran away by giving jerk to PW3 – Manoj. In order to

establish the offence leveled against the appellant the prosecution has

examined in all 9 witnesses :

PW-1 – prosecutrix,
PW-2 Dinesh s/o Bhima Shinde – Panch Spot,
PW-3 – Manoj s/o Laximan Waghmare, the husband of PW-1,
PW-4 – Ravindra Vishwanath Shinde Police Personnel who carried the
Muddemal Article to CA.

PW-5 – Dr. Samata Onkardas Agrwal and
PW-6 – Dr. Khan Shahin Banu Iliyas both examined the prosecutrix.
PW-7 – Yashwant Kondiram Waghmare Panch Spot.

PW-8 – Dr. Tushar Vasant Deshmukh who examined the accused.

habeeb 3/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::
926.crl.apeal.494.16.odt

PW-9 – Maheboob Ismail Shaikh Retd. Dy. S. P. Majalgaon.

4. Beside the oral evidence of the aforesaid witnesses,

prosecution has relied upon the contents of Spot Panchnama Exh. 20,

CA report Exh. 28, 29 and 30. Injury Certificate Exh.39, Report Exh.

40, Medical Certificate of the accused Exh. 55. After recording the

evidence of the aforesaid witnesses, the statement of the accused was

recorded under Section 313 of the Code of Criminal Procedure and after

hearing both side accused/appellant is convicted as referred above.

5. Looking to the line of the cross-examination and the

statement of accused under Section 313 of Cr. P. C., the defence of the

accused appears to be the prosecutrix was the consenting party for the

sexual intercourse, therefore, looking to the defence of the accused, it is

not necessary to re-examine and re-assess the evidence of the CA report

and other formal evidence adduced on behalf of the prosecution. Since

the sexual intercourse between the PW-1 and the accused has been

admitted, therefore, the very short question arose for consideration is

that, whether the prosecutrix was consenting party to the sexual

intercourse or not. To examine this limited issue it is necessary to look

into the oral evidence as well as medical evidence adduced on behalf of

the prosecution.

habeeb 4/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::
926.crl.apeal.494.16.odt

6. Mr. Deshmukh the learned counsel for the appellant submits

that the accused-appellant is residing in the same lane where the house

of the prosecutrix is situated. During the cross-examination certain

suggestions were given that the prosecutrix having love affair with the

accused even before her marriage, however, that suggestions were

denied. Mr. Deshmukh by referring certain circumstances appearing in

the evidence i.e. the prosecutrix has not closed the door from inside,

indicates that it was with intention to facilitate the accused to enter her

house and therefore Mr. Deshmukh submitted that the prosecutrix was

consenting party. His next argument is that looking to situation of the

spot other relatives i.e. in laws were residing in the same building but in

the different rooms. But due to the incident nobody was awakened, that

suggest that the prosecutrix was consenting party. I have carefully

examined the evidence on record from the same it appears that the door

of the room of the prosecutrix was not latched from inside because the

prosecutrix received the message from her brother-in-law that her

husband went to Barshi and returning home at late hours. Therefore, it

seems that the prosecutrix slept in the room by not latching the door

from inside.

7. On perusal of the oral evidence of the prosecutrix, it appears

habeeb 5/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

that her brother-in-law Ashok came to her at about 11:30 p.m. and told

that her husband Manoj will be coming late in the night and she should

not sleep, therefore, the prosecutrix instead of latching the door from

inside just closed the same and later on at about 12:00 midnight she

slept. On perusal of the further evidence as to the commission of the

rape the prosecutrix deposed in following words :

“At about 2.30 am [down] accused entered into my room by
opening the door and has latched the same from inside. I
awaken by that time. I asked him as to why he entered in to
my house and go out from the house. When I tried to cry, he
pressed my mouth. Then he threatened me saying keep quiet
and in case I cried then he will finish me. Thereafter he
pushed me on the cot and made me to lie thereon.
Thereafter, I tried to resist him by giving kick blows then he
pressed my mouth. Thereafter he caught hold my hand
tightly then by one hand uplifted my sari and petticoat.
Thereafter he inserted his penis in to my vagina and has
thereby forcibly committed rape upon me. After some time,
my husband who went to Barshi came all of sudden and he
has knocked the door from outside. Then I tried to push the
accused by giving jerk, he gave slap on my neck by that time
caused abrasion with his nail and also bleeding from the
said injury. By scuffling with accused I removed the latch of
room. I started crying and accused Ramdas hidden himself
beneath cot. My husband caught hold him, thereafter my in-
laws, brother of husband came there, then accused gave jerk
to my husband and ran away.”

8. On careful scrutiny of the aforesaid evidence, it appears that

the accused entered into the house of the prosecutrix and when

prosecutrix tried to make hue and cry, he pressed her mouth therefore it

habeeb 6/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

appears that there was no time for the prosecutrix to make hue and cry.

Not only this the accused threatened her to kill. Thereafter, he pushed

her on the cot. The prosecutrix tried to resist him by giving kick blows,

then the accused pressed her mouth and had committed rape forcibly.

From these circumstances, it appears that there was no time for the

prosecutrix to raise hue and cry as immediately accused pressed her

mouth.

9. Looking to the evidence of Manoj Waghmare, it appears that

at the relevant time of the incident he returned from Barshi and he

knocked the door and heard the cries of prosecutrix from inside. When

prosecutrix opened the door, she started feeling giddiness and all of a

sudden she fell down on the ground. Immediately the prosecutrix

disclosed that the accused committed rape on her. Then this witness

seen the accused hidden beneath the cot. Accused was about to run but

PW-3 caught hold his hand. This witness cried loudly thereafter other

family members gathered there. In the meantime the accused gave jerk

and ran away. Looking to the evidence of this witness it appears that

immediately after arrival of this witness prosecutrix opened the door

and disclosed that the accused had committed rape on her. The first

information report was immediately lodged after the incident. There is

habeeb 7/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

no delay in lodging the first information report. So the evidence of the

PW – 1 and PW – 3 is inconsistent as to the incident has deposed by the

PW – 1 prosecutrix.

10. In addition to oral evidence of PW-1 and PW-3 there is

evidence of Dr. Samata Onkardas Agrwal and Dr. Khan Shahin. Dr.

Samata Onkardas Agrwal deposed that on 22.05.2015 the prosecutrix

was referred for medical examination. At the time of examination she

gave a history that her neighbor entered in to her room, latched the door

from inside, removed her clothes and committed rape on her. On

external examination Dr. Agarwal found abrasion over front of neck

admeasuring 6×1 cm. She also noticed a minor abrasions over hands of

the prosecutrix and the prosecutrix inform to this witness that the

bangles were broken. From the evidence of Dr. Agrawal, it appears that

she collected the sample of vaginal swab. Pathological report received

on next day and as per this report there was evidence of spermatozoa

indicative of sexual intercourse. In the cross-examination this witness

has stated that she examined thighs of the patient and has not noticed

any abrasion or marks of force or violence. She examined both the

joints of the patient and has not noticed any abrasion mark thereupon.

This appears because from the record and evidence it is seen that the

habeeb 8/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

accused committed sexual intercourse with the prosecutrix on the cot

and the bed, therefore, due to the mattress no injuries on the back, thighs

or buttock of the prosecutrix is possible. Injury certificate of the

prosecutrix is on record wherein nature of the injury and the history is

recorded by this witness. The report of the medical examination for

sexual assault is placed on record in which also the injuries on the

person of the prosecutrix are mentioned.

11. PW – 8 Dr. Tushar Deshmukh examined the accused on

22.05.2015 and found following external injuries:

Abrasion on anterior neck

i) 5×05 cm on crcoid region (upper).

ii) right side neck 3×0.5 cm.
iii) left side neck 4×0.5 cm (upper).

12. So looking to the external injuries received by the

prosecutrix as well as the accused, it appears that the prosecutrix tried to

resist the sexual intercourse of the accused and in the attempt of

resistance both of them have received injuries i.e. mark of violence.

This is the most important circumstance appearing against the accused

to rule out the theory of consent. In addition to that panch witnesses

namely PW-7 Yashwant Waghamare and PW-2 Dinesh Shinde that the

habeeb 9/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

broken pieces of bangles were lying in the room and same were seized

by the police from the spot. If all these circumstances are taken into

consideration, it reveals that there was no consent of the prosecutrix to

the sexual intercourse by the accused. Mr. Deshmukh the learned

counsel for the appellant relied upon the observation in the case of

Criminal Appeal No. 544/2018 by the Hon’ble Supreme Court wherein it

is observed :

“6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity. The
courts should examine the broader probabilities of a case
and not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which are
not of a fatal nature, to throw out an otherwise reliable
prosecution case. If the evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If for
some reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence which
may lend assurance to her testimony, short of corroboration
required in the case of an accomplice. The testimony of the
prosecutrix must be appreciated in the background of the
entire case and the court must be alive to its responsibility
and be sensitive while dealing with cases involving sexual
molestations or sexual assaults. (see State of Punjab vs.
Gurmit Singh, (1996) 2 SCC 384 (para21)).”

13. I have carefully gone through the above observation. In the

present case evidence of prosecutrix inspires confidence. In addition

habeeb 10/11

::: Uploaded on – 23/10/2018 27/10/2018 01:03:26 :::

926.crl.apeal.494.16.odt

other evidence is available in the form of corroboration.

14. Thus in the totality of the circumstances, I am inclined to

take a view that the prosecution has succeeded in proving that the act

committed by the accused was a forcible act and not consensual. The

appeal, therefore, has to fail. It is, accordingly, dismissed. The

conviction and the sentence of the accused – appellant is upheld.

(K. L. WADANE, J.)

habeeb 11/11

::: Uploaded on - 23/10/2018 27/10/2018 01:03:26 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation