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Rauf Khan S/O. Noor Khan (In Jail) vs State Of Maharashtra Thr. Police … on 2 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.324 OF 2017

Rauf Khan s/o. Noor Khan,
Aged 40 years, Occ. Nil, r/o.
Lalkhadi, District Amravati.
(In Jail). ………. APPELLANT

// VERSUS //

State of Maharashtra,
Through Police Station Officer,
Police Station, Batukali,
District Amravati. ………. RESPONDENT

None for the appellant.
Mr.S.M.Ghodeswar, A.P.P. for the Respondent/State.

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CORAM : B.R.GAVAI
AND
M.G.GIRATKAR, JJ.

DATED : 2ND APRIL, 2018.

ORAL JUDGMENT (Per B.R.Gavai, J) :

1. The appellant has approached this Court being aggrieved

by the Judgment and Order passed by the learned Additional

Sessions Judge-1, Amravati in Sessions Trial No.165 of 2010,

dt.6.1.2014 thereby convicting the appellant for the offence

punishable under Section 376(2)(g) of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for life. The learned

trial Judge has also imposed a fine of Rs.10,000/- on the appellant.

2. The prosecution case, in brief, is thus :

Vilas Ramkrushna Madar (PW-1) had lodged a report at

Police Station, Bhatkuli stating therein that the prosecutrix, who was

a mentally retarded lady of about 35 years, had come to reside in

village Kawatha Bahale prior to one year of the incident. The

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villagers were not knowing her details. However, she used to roam

around in the village. The present appellant as well as another

accused Jalandar Vishnu Wadekar had visited the village and told the

villagers that they will treat and cure the prosecutrix. Out of

sympathy, the villagers collected money from the villagers as

contribution for the treatment of prosecutrix. On 4.2.2010,

treatment of the prosecutrix was started in the house of Wasudeo

Wadekar. On 4.2.2010 and 5.2.2010, some rituals were performed.

On 6.2.2010, both the accused told the villagers that the prosecutrix

is to be treated within four walls. The villagers, therefore, permitted

the accused to use the room of water pump situated in front of the

house of Vilasrao Madar for treatment. The accused took the

prosecutrix in the room and started treatment. The villagers

gathered on the spot. After sometime, co-accused Jalandar came out

of the room. Accused Rauf Khan/appellant herein closed the door of

the room from inside. The villagers were sitting outside the room.

They were curious about the type of treatment going on inside the

room. Vilas Ramkrushna Madar (PW-1) peeped from the part of the

window and seeing that the appellant was committing sexual

intercourse with the prosecutrix, he called the other villagers. Other

villagers including Pramod Pralhadrao Wankhade (PW-2) saw from

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the window that the appellant was sleeping on the prosecutrix. Her

saree was lifted up. Chain of the pant of appellant was open and he

was committing sexual intercourse with the prosecutrix. Thereafter,

commotion took place and the villagers asked accused Rauf Khan to

open the door. At that time, the prosecutrix was trying to open the

door, but the accused was obstructing the prosecutrix from doing so.

She succeeded in opening the door. The accused came out of the

room, went near the bucket of water and washed the front side

bottom of his shirt first. Thereafter, the villagers caught hold of the

accused and informed to Police on phone about the incident. Police

took the accused persons and the prosecutrix to Police Station. On

the basis of oral report of Vilas (PW-1), the First Information Report

came to be registered for the offence punishable under Section

376(2)(g) of the Indian Penal Code r/w. Sections 3, 4 and 7 of the

Prevention of Drugs and Black Magic Act, 1954. After investigation

was complete, charge sheet came to be filed in the Court of Judicial

Magistrate, First Class, Bhatkuli. Since the case was exclusively

triable by the learned Sessions Judge, it was committed to the Court

of learned Sessions Judge, Amravati. Learned trial Judge framed

charges below Exh.60. The accused pleaded not guilty and claimed

to be tried. At the conclusion of trial, the learned trial Judge

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convicted the appellant, as aforesaid. However, he was acquitted of

the offence punishable under Sections 3, 4 and 7 of the Prevention of

Drugs and Black Magic Ac, 1954. Being aggrieved by his conviction

as stated above, the present appeal is filed by the appellant.

3. With the assistance of the learned A.P.P., we have

scrutinized the evidence on record.

4. Vilas Ramkrushna Madar (PW-1) is the first informant.

In his evidence, he has stated that there was a mad woman in their

village roaming around. Both the accused had come to the village

and offered to treat her. The villagers agreed for the same and

collected money as a contribution for treatment of prosecutrix Vimal.

It is stated in evidence that, in the room of water pump of water

supply, treatment was started. He and the villagers were present

outside the room. After sometime, Jalandar came out of the room.

Accused Rauf Khan closed the door from inside. Jalandar was

standing beside the room at some distance. He pipped inside the

room so as to see what type of treatment was going on inside. He

saw the appellant on the body of Vimal. His pant and nicker was pull

down. Saree of Vimalbai was lifted up. He was having sexual

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intercourse with her. Thereafter, he immediately called the other

persons including Pramod Wankhade and Arun Sawai. He abused the

appellant. He asked the appellant whether this was the treatment.

They were asking appellant Rauf Khan to open the door, but he was

not opening the same. Vimalbai opened the door. The appellant

washed the stains on his clothes. The villagers caught hold of the

appellant. He informed the incident to Police Patil of village so as to

inform the same to Police Station. Police came on the spot. Vilas

(PW-1) has been thoroughly cross-examined. Though there are

certain minor omissions and contradictions in his evidence with

regard to the appellant committing sexual intercourse with the

prosecutrix, the same have remained unshattered. The evidence of

this witness is corroborated by the First Information Report, which is

lodged immediately after the incident.

5. Evidence of Pramod Pralhadrao Wankhade (PW-2) is on

the similar lines. He corroborates the version given by Vilas (PW-1).

Evidence of these two witnesses i.e. Vilas (PW-1) and Pramod (PW-

2) is further corroborated by the evidence of Sahebrao Mahadu

Jagdale (PW-5), who was a Police Sub-Inspector of Badnera Police

Station at the relevant time. He states that, after Police Patil of

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village Kawtha Bahale informed regarding the incident, he went to

the spot. The villagers informed him that two persons who were

caught had committed rape on the victim. Evidence of Dr.Samta

Pandurangrao Dhole (PW-4) also corroborates the version of other

witnesses.

6. Learned trial Judge has found that the evidence of eye

witnesses was reliable. Learned trial Judge had an occasion to

witness the demeanor of eye witnesses. We see no reason to

disbelieve the ocular testimonies of the two eye witnesses, which are

duly corroborated by the First Information Report and the evidence

of Investigating Officer. In the result, no merit is found in the appeal.

Hence, the appeal is dismissed.

JUDGE JUDGE

[jaiswal]

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The case of prosecution against the appellant, in short, is as

under :

Kisanrao Bobde was sleeping in the night in front of his house

on road. Previously, his son Santosh used to sleep at that place since

several days. Prior to 3-4 days from the time of incident, Kisanarao

Bobde was sleeping on that place. They had purchased a cooler

before 3-4 days of incident. However, the air of cooler not suited

him. Therefore, he was sleeping outside the house. Kisanrao was in a

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deep sleep. At about 2.00 a.m., accused dealt a sickle blow to his left

side of stomach. He shouted loudly by saying “are baapre”. He saw

the accused. When he turned on left side, accused dealt second blow

of sickle on right side of stomach.

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