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Santosh Bandu There vs The State Of Maharashtra, Thr. … on 15 June, 2018

1 APEAL-196-16.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.196 OF 2016
Santosh Bandu There,
Age 26 years, Occp : Labour,
R/o Ghodpeth, Tah. Bhadrawati,
Dist. Chandrapur. … APPELLANT
(ACCUSED)
…V E R S U S…
The State of Maharashtra
Through Police Station Officer,
Police Station, Bhadrawati,
Dist. Chandrapur. … RESPONDENT
——————————————————————————————-
Shri Anil Dhawas, Advocate for the appellant.
Shri A.M. Deshpande, Additional Public Prosecutor for respondent.
——————————————————————————————-
WITH
CRIMINAL APPEAL NO.232 OF 2016
Hemant s/o Ghanshyam Kalaskar,
Age 25 years, Occp : Labour,
R/o Ghodpeth, Tah. Bhadrawati,
Chandrapur. … APPELLANT
(IN JAIL)
…V E R S U S…
The State of Maharashtra
P.S.O., Police Station,
Bhadrawati, (Chandrapur). … RESPONDENT
——————————————————————————————-
Shri A. C. Jaltare, Advocate for the appellant.
Shri A.M. Deshpande, Additional Public Prosecutor for respondent.
——————————————————————————————-
WITH
CRIMINAL APPEAL NO.397 OF 2017
Pravin s/o Shivram Virdande,
Age about 25 years, presently
detained in Central Prison,
Nagpur (C-9322). … APPELLANT
(ORG.ACCUSED NO.3)

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…V E R S U S…

The State of Maharashtra
Through Police Station Officer,
Police Station, Bhadrawati,
Tah. Bhadrawati,
District – Chandrapur. … RESPONDENT
——————————————————————————————-
Ms. P. P. Chobe, Advocate (Appointed) for the appellant.
Shri A.M. Deshpande, Additional Public Prosecutor for respondent.
——————————————————————————————-
CORAM:- R. K. DESHPANDE AND
ARUN D. UPADHYE, JJ.

DATED : 15/06/2018.

JUDGMENT : (PER ARUN D. UPADHYE, J.)

1. Being aggrieved by the Judgment and order dated

10/05/2016 passed by the learned Sessions Judge, Warora,

District Chandrapur in Sessions Case No.48/2013, the

appellants/accused persons have filed present appeals. By the

impugned judgment and order, the learned Sessions Judge,

Warora convicted the accused persons.

i) The accused Nos.1 to 3 are convicted for the

offence punishable under Section 376-D r/w Section 34 of the

Indian Penal Code and sentenced to suffer rigorous imprisonment

for 20 years and to pay fine of Rs.2,000/- (Rs.Two thousand) each

in default to suffer simple imprisonment for six months.

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ii) The accused Nos.1 to 3 are also convicted for the

offence punishable under Section 450 r/w Section 34 of Indian

Penal Code and sentenced to suffer rigorous imprisonment for 5

years to pay fine of Rs.1,000/- (Rs.One thousand) each in default

to suffer simple imprisonment for 3 months.

iii) The accused No.1 is convicted for the offence

punishable under Section 377 of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for 7 years and to pay

fine of Rs.1500/- (Rs.One Thousand Five Hundred) in default to

suffer simple imprisonment for 4 months.

iv) All the sentences to run concurrently.

This is the impugned Judgment in these appeals.

The brief facts of the case are as under :-

2. The informant / prosecutrix Ramabai Shrawan

Gedam was residing alone at Saywan (new locality) by

constructing a hut. She used to do labour work to earn her

livelihood. Since a month prior to incident, she was doing

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household work in the house of General Manager of W.C.L. at

Urjagram Colony. Her marriage was performed with one Shrawan

Gedam, R/o Chiroli, Tq. Mul before 20 – 22 years. She has one son

and one daughter. Her daughter is married and son is taking

education at Chiroli. Her husband had performed second marriage

and therefore, she was residing alone at Saywan.

3. The prosecution came with case that on

02/09/2013, the prosecutrix worked at Urjagram from 9.00 a.m.

to 5.00 p.m. and returned to her house at about 5.30 p.m. After

taking dinner at about 8.30 p.m., she closed the door from inside

and went to sleep. At about 2.00 a.m., some persons gave a call to

her. Therefore, she woke up and said how they dared to come to

the house of lone lady. Those persons opened the door and

entered her house. She identified them in the light of lamp and

they were Santosh, Pravin and Hemant. The accused Santosh and

Pravin caught her and gave threat to kill her and removed her

clothes. Thereafter, Santosh put the blanket on the earth and fell

down her and after removing his clothes, full pant and underwear

committed forcible intercourse. He also committed unnatural

intercourse with her. Thereafter, Pravin removed his full pant and

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underwear and committed forcible intercourse and thereafter,

Hemant by removing his clothes, pant and underwear, committed

forcible intercourse. Thereafter, by wearing clothes, left the place.

4. The prosecutrix, thereafter wore her clothes and

went to the house of one Namdeo Yergude, her neighbour and

narrated the incident to him. Thereafter, she stayed in the house

of Namdeo Yergude and at about 7.00 a.m., she returned to her

house.

5. The prosecutrix, thereafter went to the Police

Station, Bhadrawati and lodged the report. The police registered

the offence vide Crime No.144/2013 for the offence punishable

under Section 376-D, 377 and 452 of IPC as well as under Section

3(1)(xii) and 3(1)(v) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act. During the course of investigation,

the prosecutrix was referred for medical examination. The police

visited the spot and drew panchnama in the presence of panch

witnesses. The police seized the articles found on the spot. The

police also arrested the accused persons and referred for medical

examination. They seized the samples of blood, pubic heir of the

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accused persons. The clothes of the accused were also seized. The

seized property was sent to the Chemical Analyzer. During the

course of investigation, police recorded the statements of

witnesses. After completion of the necessary investigation, the

police filed the charge sheet against the accused persons before

the Judicial Magistrate, First Class, Bhadrawati.

6. The offence punishable under Section 376-D and

450 of I.P.C. is exclusively triable by the Court of Sessions and

therefore, the J.M.F.C., Bhadrawati committed the case to the

Sessions Court, Warora for trial.

7. The accused Nos.1 to 3 appeared before the

Sessions Court. The learned Sessions Court framed the charge for

the offences punishable under Sections 376-D, 377 and 450 r/w

Section 34 of I.P.C. against the accused persons. The accused

pleaded not guilty and claimed to be tried. The defence of the

accused was of total denial.

8. After recording the evidence in the matter and

hearing both the sides, the learned Additional Sessions Judge,

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Warora by its judgment and order dated 10/05/2016 convicted

the accused Nos.1 to 3 for the aforesaid offences, as mentioned

above. Feeling aggrieved by the said judgment and order, the

accused persons have filed separate three appeals.

9. We have heard learned counsel for the appellants

and learned Additional Public Prosecutor for the State.

10. Shri Dhawas, learned counsel for the appellants has

vehemently submitted that the prosecution failed to prove the

alleged offences beyond reasonable doubt and therefore, the

accused are entitled for acquittal. He further submitted that the

case is rest upon evidence of prosecutrix. However, her evidence is

exaggerated one and not supported by medical evidence. It is also

submitted that there is no identification parade undertaken by the

prosecution so as to ascertain the identity of the accused persons

as the accused were not acquainted with prosecutrix. He also

submitted that the medical as well as Chemical Analyzer’s Report

does not support the prosecution story and there is inordinate

delay in lodging the F.I.R. The learned Additional Sessions Judge

has failed to appreciate the evidence on record in proper

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perspective and wrongly convicted the accused persons. All the

accused, therefore, are entitled for the acquittal by setting aside

the impugned judgment and order.

11. The learned A.P.P., however submitted that the

learned Sessions Judge has rightly considered the evidence of the

prosecutrix and material placed on record and convicted the

accused. The interference of this Court is, therefore, not called for

and the appeals filed by the accused persons, therefore, be

dismissed.

12. In the light of submission put forth on behalf of

parties, we have perused the evidence on record.

13. PW-2 Ramabai Shrawan Gedam is prosecutrix. In

her evidence, she deposed that on the date of incident, some

persons were knocking the door of her hut at night time and

therefore, she asked them how they dared to come to her house.

These persons thereafter entered the house by opening the door of

the hut. She saw them in the light of lamp, as she was knowing

them when she was going to attend her work. She also deposed

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that accused Santosh removed her clothes and committed sexual

intercourse on her and also committed unnatural intercourse with

her and thereafter, accused Pravin committed sexual intercourse

and thereafter, accused Hemant committed sexual intercourse on

her. She further deposed that when one person was committing

sexual intercourse, the other persons were catching hold to her. At

the time of incident, her bangles were broken as well as chain of

beads in her neck was also broken. She also stated that when she

shown the sign of finger for urine, they provided vessel to her for

urination. She also stated that after they again tried to commit

sexual intercourse with her but she shown two fingers for

indicating to attend call of nature, then those persons allowed her

to sit and asked her to attend call of nature in hut itself. She

requested them to attend call of nature out of hut and thereafter,

she managed to run away and went to the house of Namdeo and

stayed whole night in the hut and on the next day, returned to her

house. Thereafter, she lodged the report to the Police Station,

Bhadrawati vide Exh.28. The F.I.R. is at Exh.29. She identified the

articles shown to her by the police. She identified accused in Court

when shown to her.

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14. She was cross-examined at length. In the cross-

examination, the defence is able to bring certain omissions on

record. She has not stated to the police that someone was

knocking the door of hut at night. She has not stated to the police

that she used to see three persons while she was attending her

work. She has not stated that Pravin pressed her neck and Hemant

caught hold of her hands and legs. She has not stated to the police

that every time while committing sex, other two persons were

catching and caught hold of her. She has not stated that she

shown sign of fingers for urination and accused have provided

vessel for urination. She has not stated to the police that accused

tried to commit sexual intercourse with her. She has not stated to

the police that she shown two fingers to the accused for attending

call of nature. She has not stated to the police that the accused

asked her to attend call of nature in hut itself. She has not stated

to the police that she ran away by wearing clothes out of hut. All

these omissions were put to her and the same are proved through

Investigating Officer. In the cross-examination, she has admitted

that at the time of incident, there was darkness outside her hut. In

the cross-examination, it is brought on record that she was

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working with General Manager since 4 – 5 years. In the cross-

examination, she admitted that she narrated the incident to the

wife of the General Manager at about 7.00 a.m. In the cross-

examination, she stated that there are 2000 labourers working in

Urja Nagar. She also admitted that she was not knowing full

names of the persons who came to her house. She also admitted

that she was not knowing that under which contractor, those

persons were working and what work they were doing who came

to her hut.

15. In the cross-examination, it is brought on record

that the police arrested accused persons within half an hour, after

lodging of the report. She also admitted that police told her those

persons and said that these are the persons who came to her

house. In the cross-examination, she admitted that there was no

electric light in her hut. She had shown lamp of her hut to the

police but police had not seized the said lamp. She admitted that

there was very less light in her hut. However, she denied that she

was unable to see those persons properly when they came in hut.

In the cross-examination, she stated that when police shown the

accused persons and at that time, she felt that accused may be the

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said persons who came to her hut. She stated in the cross-

examination that police showed the faces of the accused properly

and she had seen their faces and therefore, today, she is saying

that the accused persons are the same persons who came to her

hut.

16. If the evidence of the prosecutrix is appreciated in

proper perspective, there are number of omissions in her evidence.

She is not knowing the accused before the incident. The

identification of the accused was in the Court by the prosecutrix,

as previously the police showed her the said accused persons

during investigation. The version of the prosecutrix, therefore,

cannot be relied upon unless corroboration. The testimony of the

prosecutrix does not inspire confidence of the Court and therefore,

the other evidence on record will have to be examined.

17. PW-3 Namdeo Giridhar Yergude deposed that the

prosecutrix Ramabai Shrawan Gedam came to his house at about

2.00 a.m. in the night and told her that three boys came to her

house and beat her. He further deposed that this prosecutrix

disclosed that these three boys have committed rape on her and

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she was in frightened condition and therefore, slept in his house

and in the morning, she went to her house and thereafter, she

lodged the report. He was cross-examined by the defence. In the

cross-examination, he stated that there was no electricity in the

house of Ramabai Gedam and there was darkness outside as well

as in the hut of Ramabai. The evidence of this witness will not be

helpful to the prosecution as she has not stated the names of the

boys who committed rape on her. This evidence, therefore, does

not corroborate the version of the prosecutrix.

18. PW-4 Sunita Nandesh Gedam deposed that the

prosecutrix used to come to her shop for purchasing grocery

articles. She deposed that Ramabai told her that three persons

came at night and pressed her neck and committed rape on her. In

the cross-examination, she is unable to tell when Ramabai

disclosed the incident. Subsequently, she stated that Ramabai told

the incident on 09/03/2013. She also stated that Ramabai had not

told about the description, name and address of the persons. The

evidence of this witness also is not helpful to the prosecution to

corroborate the version of the prosecutrix.

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19. PW-6 Dr. Dharmshila Kumari, Medical Officer

deposed that she examined Ramabai Shrawan Gedam, who gave

history of the incident that sexual assault by some persons on her

on 03/09/2013 at about 2.00 a.m. After examination, the doctor

found abrasion present on her right hand having size of 1 cm x 0.5

cm. She found that her vulva was normal, forchette and posterior

commissure normal and healed. She found hymen old tear 3 and 6

O’clock posterier. In the cross-examination, she admitted that she

had not found any sign on the body of victim showing that

recently sexual intercourse was taken place with her. She also

admitted that hymen rupture was old at about years ago. She also

stated that if three persons commit forcible sexual intercourse with

a woman, then the injury may be possible on her private part. She

also stated that if three persons committed forcible sexual

intercourse with a woman and if she does not change clothes or

wash the same, then there may be possibility of getting presence of

semen on her clothes. The medical examination report is at Exh.58

issued by her. There is no sign of sexual intercourse. The medical

evidence thus, is not corroborative to the version of the

prosecutrix. The mere fact that one injury was found on her right

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hand does not mean that she was sexually assaulted on that date.

20. PW-1 Atish Latari Junghare is a punch witness of

spot panchnama at Exh.24 as well as seizure panchnamas at Exhs.

25 and 26. The police seized clothes of the prosecutrix under the

spot panchnama. This witness though not supported to the

prosecution, however, admitted the signature on these

panchnamas. He also identified articles A, B, C, D, E and F shown

to him. PW-7 is an Investigating Officer and proved the spot

panchnama as well as seizure panchnama. It appears that as per

the said panchnama, the police has seized the articles, beads, bow,

blanket, jute bag and pieces of bangles and thread of chain of

pieces of clothes. It has come on record that as per the seizure

panchana at Exhs.36, 41 and 46, the clothes of the accused were

seized. It has come in the evidence of Investigating Officer that the

clothes of the accused Santosh Bandu There and blood phial, pubic

heir seized of the accused vide Exh.36, 37 and clothes, blood

phial, pubic heir of the accused Hemant Ghanshyam Kalaskar were

seized vide Exhs.41 and 42 and as per the panchnama vide

Exhs.46 and 47, the clothes, pubic heir and blood phial of accused

Pravin Shivram Virdande were seized. The seized property was

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sent to the Chemical Analyzer for analysis. The C. A. Reports are

on record at Exhs.7 to 11.

21. As per the C.A. Report at Exh.7, the blood group of

prosecutrix was “AB”. However, no semen was detected on Exhs.1

and 5 i.e. pubic heir and vaginal swab. The result was

inconclusive. As per C.A. Report at Exh.8, the blood group of

Pravin was of Group “B”. However, no semen was detected on

Exh.2 i.e. pubic heir. As per the C.A. Report at Exh.9, the blood

group of Santosh was “B”. No semen was detected on Exh.2 i.e.

pubic heir. As per the C.A.Report at Exh.10, the blood group of

Hemant was “B” but no semen was detected on Exh.2 and 3 i.e.

blood in phial as well as on pubic heir. As per the C.A. Report at

Exh.11, the bangle pieces at Exh.12 tallies with bangle pieces at

Exh.17 and bangle pieces at Exh.13 tallies with bangle pieces at

Exh.18. No incriminating circumstance found in C. A. reports.

Considering the C.A. Report on record, we are of the considered

view that the prosecution utterly failed to connect the accused for

the offences charged. The C.A. Reports thus, do not support the

prosecution case.

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22. The prosecution examined PW-5 Dr. Ravikiran

Kumar Pore to prove the Medical Certificate at Exhs.34, 39, 44.

Dr. Ravikiran has deposed that on 04/09/2013, he was posted at

Rural Hospital, Bhadrawati and he examined accused Santosh

There and found that there is nothing to suggest that he is

incapable of performing the act of sexual intercourse. The doctor

found that there was no injury on his person. The Medical Report

is at Exh.34. The doctor examined Hemant Kalaskar and Pravin

Virdande and opined that there is nothing to suggest that these

persons are incapable of performing the act of sexual intercourse.

The reports are at Exh.39 and 44. According to doctor, the only

accused Hemant Kalaskar was having following injuries.

i) Abrasion on left forearm laterally.
ii) Contuse abrasion on right infrascapular region.

He was cross-examined at length. In the cross-

examination, he admitted that the injuries found on the persons of

Hemant are possible due to coming in contact with hard and blunt

object. In the cross-examination, he admitted that if any person

commits sexual intercourse, then smegma disappears. However, he

denied the suggestion as smegma started producing after 24 hours

from sexual intercourse.

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23. Considering the evidence of this witness, one thing

is clear that no sign of sexual intercourse was found by the doctor.

The fact that the injury was found on the person of accused

Hemant Kalaskar also not connected to the offence of rape.

Moreover, doctor has clearly admitted that this injury is possible

for coming into contact with hard and blunt object. Therefore, this

circumstance also not useful to the prosecution to establish the

guilt of the accused.

24. After considering the evidence of the prosecution

and submission put forth on behalf of the learned counsel for the

parties, we are of the considered view that the sole testimony of

prosecutrix does not inspire the confidence of the Court. The

testimony of the prosecutrix is full of omissions and cannot be

relied upon. The other evidence relied upon by the prosecution

also does not corroborate to the version of the prosecutrix. The

learned Sessions Judge has not appreciated the evidence on record

in proper perspective and wrongly arrived at conclusion that the

prosecution has proved the guilt of the accused beyond doubt. The

prosecution has utterly failed to prove the offences punishable

under Sections 376-D, 377 and 450 of the I.P.C. charged against

the accused persons. The finding recorded by the learned Sessions

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Judge is liable to be quashed and set aside and the accused

persons are entitled for the acquittal. Hence, we proceed to pass

the following order :-

ORDER

I) Criminal Appeal Nos.196/2016, 232/2016 and

397/2017 are allowed. The impugned judgment and order dated

10/05/2016 passed by the Sessions Judge, Warora in Sessions

Case No.48/2013 is hereby quashed and set aside.

II The accused Nos.1 to 3 are hereby acquitted under

Section 235(1) of Cr.P.C. of the offences punishable under

Sections 376-D, 450 r/w Section 34 of the I.P.C.

III) The accused No.1 – Santosh s/o Bandu There, is

hereby acquitted under Section 235(1) of the Cr.P.C. of the

offence punishable under Section 377 of the I.P.C.

IV) Fine amount if paid by the accused be refunded to

them after appeal period is over.

V) The accused Nos.1 to 3 are in jail. They be released

forthwith, if they are not required in any other crime or case.

VI) The order regarding muddemal property however,

is maintained.

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VII) Fees of counsel Ms. P.P. Chobe (Appointed) for the

appellant – Pravin s/o Shivram Virdande is quantified Rs.5,000/-.

VIII) R and P be sent back to the concerned Court.

               (Arun D. Upadhye, J.)              (R.K. Deshpande, J.)
Choulwar

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