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.)
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