Cri. Appeal No.238/2006
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.238 OF 2006
The State of Maharashtra,
(Through Sakhubai Ravindra
Gavhane of Bahute, in Cr. No.
151/1997 of Parola P.S.) … APPELLANT
(Original Complainant)
VERSUS
1. Chotulal Kalu Patil
Age 39 years,
2. Kashinath Kalu Patil
Age 51 years,
3. Bhatulal Kalu Patil
Age 51 years,
4. Ranjit @ Ashok Bhatulal Patil
Age 20 years,
5. Hirabai w/o Bhatulal Patil,
Age 45 years
6. Shilabai w/o Chotulal Patil,
Age 35 years
7. Hirabai @ Sulochana w/o Kashinath
Patil, Age 38 years
All R/o Bahute, Tq. parola
District Jalgaon … RESPONDENTS
(Original Accused No.1 to 7)
…..
Shri V.M. Kagne, A.P.P. for appellant/ State
Shri A.K. Tiwari, Advocate for respondents
…..
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Cri. Appeal No.238/2006
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CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
DATED : 19th January, 2018.
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. Vires of the judgment dated 29.10.2005, passed by
Adhoc Additional Sessions Judge, Amalner in Sessions Case
No.7/1998 is challenged by the State, wherein accused No.1
was acquitted of the offence punishable under Section 376 of
the Indian Penal Code and all accused Nos.1 to 7 were
acquitted of the offense punishable under Sections 452, 313,
504, 506 read with Section 34 of the Indian Penal Code and of
the offence punishable under Section 3(1)(xi) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act (in short the Atrocities Act) as well as under
Section 7(1)(d) of the Protection of Civil Rights Act (P.C.R. Act
for short).
2. The prosecution case is that, the prosecutrix widow
used to reside at village Bahute, Taluka Parola, District
Jalgaon along with her three minor children, jointly with her
mother Dagubai Baburao Bawiskar and family members of two
brothers namely Pundlik Baburao Baviskar and Ravindra
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Baburao Bawiskar. Accused Nos.1 to 7 are also residents of
same village. Accused No.1 is financially sound agriculturists.
Accused Nos.2 and 3 are brothers of accused No.1. Accused
No.4 is son and accused No.5 is wife of accused No.3.
Accused No.6 is wife of accused No.1. Accused No.7 is wife of
accused No.2.
3. Six months prior to registration of F.I.R. at Police
Station Parola, the prosecutrix (P.W.2) was engaged by
accused No.6 along with other female labours for performing
certain agricultural work in the field of accused Nos.1 to 7.
On that day, as the victim was not having the required articles
for performing the said agricultural work, she requested the
accused No.6 to provide those articles. In response, the
prosecutrix was directed to get those articles from the hut
situated nearby the field of accused persons. However, when
the prosecutrix alone went to that hut to fetch those articles,
that time, suddenly accused No.1 entered in that hut and
without consent of prosecutrix, despite her resistance, had
forcible sexual intercourse with her inside the said hut. After
occurrence of this incidence, the prosecutrix performed the
agricultural labour work in the field of accused persons as she
was threatened by accused No.1. Being unprotected helpless
woman, the prosecutrix kept mum. However, two days
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thereafter, again when prosecutrix went to nearby forest area
at village Nagaon to collect fuel, that time again accused no.1
committed rape on the prosecutrix in the nearby water
streamlet. Despite this second incident of rape, the
prosecutrix maintained silence only on account of threatening
by accused No.1. Thereafter for number of times in the same
forest area the accused No.1 had committed rape on the
prosecutrix, which resulted into her pregnancy. When the
prosecutrix disclosed this condition to her mother Dagubai and
when she disclosed the name of the accused No.1 as a person
responsible for her pregnancy, Dagubai and brothers of the
prosecutrix approached accused no.1 and informed him about
the condition of the prosecutrix. However, they were also
threatened by accused No.1. That time, accused No.1
informed the family members of the prosecutrix that he would
arrange for termination of pregnancy of the prosecutrix. As
the accused No.1 was financially sound and politically
influential person, due to his terror in the area, even the
family members of the prosecutrix did not take any action
against the accused persons.
4. On 9.8.1997 at about 3.00 p.m., accused persons
paid visit to the residence of the prosecutrix and they took her
and her mother Dagubai to Godawari hospital at Jalgaon by
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private Matador. At Godawari Hospital, Jalgaon, the
prosecutrix was admitted under fictitious name and ultimately
her pregnancy was terminated against her wishes. After this
occurrence, prosecutrix and her mother returned to her
residence. However, even thereafter accused kept watch on
the prosecutrix and her family members. Thereafter accused
persons started abusing the prosecutrix and her family
members on account of their caste and thereby insulted them.
At last, on 31.8.1997, the prosecutrix lodged report to Police
Station, Parola. In the result, above said offences came to be
registered. Accused were arrested and after completion of
investigation, charge sheet was filed before the Judicial
magistrate, First Class, Parola against accused Nos.1 to 7.
5. The offence punishable under Section 376 of the
Indian Penal Code being exclusively triable by Sessions Court,
this case was committed to Additional Sessions Judge,
Amalner. The then Additional Sessions Judge framed charge
Exh.8 against accused No.1 for the offence punishable under
Section 376 of the Indian Penal Code and against accused
Nos.1 to 7 for the offence punishable under sections 452, 313,
504, 506 read with Section 34 of the Indian Penal Code;
under Section 3(1)(xi) of the Atrocities Act and under Section
7(1)(d) of the P.C.R. Act.
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6. Prosecution examined total 7 witnesses. After
considering the oral and documentary evidence placed by the
prosecution, the learned trial Court pleased to acquit the
accused persons of all the charges. The said judgment is
challenged in the present appeal by the State of Maharashtra.
7. Heard strenuous arguments submitted by learned
A.P.P. for the State and Shri A.K. Tiwari, learned counsel for
the accused persons. Learned A.P.P. submitted that, the
prosecutrix being unprotected helpless widow, the delay in
lodging the F.I.R. cannot be viewed with suspicion. His next
submission is that, the testimony of prosecutrix, though not
supported by any witness, can be relied upon to base the
conviction of the accused. He has drawn our attention
towards the testimony of Dr. Patil (P.W.4), who has identified
the accused at Blood Bank.
8. Learned counsel for the respondents/ accused
submitted that, no evidence has been placed on record by
prosecution to prove that the victim belongs to Scheduled
Caste and, therefore, the provisions of Atrocities Act or P.C.R.
Act are not attracted. His next submission is that, the
testimony of victim is so contradictory that reliance cannot be
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placed to base the conviction.
9. With the help of learned counsel for both sides, we
have gone through the evidence of all prosecution witnesses.
Dilip Akhade (P.W.1) is a panch witness. He deposed
regarding the preparation of the spot panchanama (Exh.29) in
the hut. However, as per recitals of the panchanama Exh.29,
no incriminating article was seized from the said hut.
Therefore his evidence is useless piece of evidence. Dr.
Bhanudas Patil (P.W.3) examined the accused No.1 and
opined that the accused No.1 was capable of committing
sexual intercourse. However, evidence of this witness is also
of no use unless the testimony of prosecutrix is proved to be
trustworthy to establish the occurrence of the incident.
10. The prosecutrix entered in witness box as P.W.2.
She deposed regarding commission of rape by accused No.1
inside one hut and the second incident of rape near forest
area. However, it cannot be ignored that, after these two
incidents of rape, the report was lodged after nearabout six
months. Learned A.P.P. for the State tried to give explanation
that due to threatening by accused No.1 the prosecutrix might
have kept mum. However, as rightly pointed out by learned
defence counsel, after commission of the rape, when
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prosecutrix returned to home, she was in the company of her
mother and two brothers. At least at her house she had no
reason to keep mum if she was really raped by the accused
No.1. Keeping total silence by prosecutrix till she conceived
the pregnancy period of four months is definitely abnormal
behaviour of the prosecutrix.
11. Another important aspect is that, despite
commission of the rape, for that entire day prosecutrix worked
in the field of accused No.1. In natural course, she would
have definitely disclosed the occurrence of such mishap to
other female companion labours. Total inaction on the part of
prosecutrix for the period of six months from the alleged
incident of forcible sexual intercourse by accused No.1 is
absolutely doubtful circumstance. Thus, possibility cannot be
ruled that, prosecutrix had sexual intercourse with the
accused No.1 with her full consent.
12. Another important aspect is that, the prosecutrix
named the accused No.1 as responsible person for her
pregnancy. From the testimony of Dr. Ulhas Patil (P.W.4),
who was the incharge of Godawari Hospital, Jalgaon, where
the pregnancy of prosecutrix was terminated, it emerges that,
on 9.8.1997 the prosecutrix visited the Godawari Hospital with
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her mother and not with anyone of the accused person. Dr.
Ulhas Patil (P.W.4) has only identified the prosecutrix in the
Court as the same woman whose pregnancy was terminated.
From the cross-examination of Dr. Patil (P.W.4), it becomes
clear that, though he enquired with the prosecutrix (P.W.2),
she did not inform him about the alleged commission of rape
by accused No.1 or even regarding presence of accused No.1
in the hospital. Even the testimony of Dagubai (P.W.5), who
is the mother of prosecutrix, falls short to connect the accused
with the alleged crime for the simple reason that, from her
cross-examination, it becomes clear that, she deposed before
the Court as per the instructions of her daughter. Thus, the
testimony of Dagubai (P.W.5) was rightly discarded by learned
trial Court. Even the evidence of Dr. Ulhas Sonwane (P.W.6),
who used to work as Blood Transfusion Officer at Pravara
Medical Trust, Loni, can only establish that, on 9.8.1997, he
received request letter from Godawari hospital for Unit of
Blood of Group B+. From his further testimony, it emerges
that, one Kashinath Patil and Pramod Chavan donated blood to
the said Blood Bank. However, this witness did not identify
accused No.2 as the same Kashinath Patil who donated blood
on 9.8.1997. Therefore, the evidence of Dr. Sonwane (P.W.6)
is nothing but useless piece of evidence.
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13. Laxman Dusane (P.W.7) is the investigating officer,
who investigated this crime. However, his evidence is only
formal in nature. Thus, after careful scanning of the evidence
placed on record, it emerges that, no substance is placed on
record to prove that the victim belonged to Scheduled Caste.
Therefore, obviously provisions of the Atrocities Act or P.C.R.
Act will not be attracted in the present matter. As observed
above, due to total abnormal behaviour of prosecutrix
(P.W.2), her evidence regarding commission of rape by
accused No.1 in hut as well as in water streamlet is not
acceptable without any corroboration. No evidence is on
record to show that at any time accused Nos.1 to 7 took the
prosecutrix to Godawari Hospital for termination of her
pregnancy. There remains no evidence on record to connect the
accused No.1 even with the alleged pregnancy of the prosecutrix.
In the circumstances, when testimony of prosecutrix (P.W.2) is
not trustworthy, there is no evidence on record to establish any
offence against any of the accused person. In the circumstances,
we have no hesitation to hold that the view taken by the learned
trial Court while acquitting all accused persons of all the charges
is most possible view and cannot be interfered in the present
appeal. The appeal being devoid of merits, deserves to be
dismissed. Hence the following order :
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(i) The Criminal Appeal No.238/2006 is dismissed.
(ii) Bail bonds of respondents/ accused shall stand
cancelled.
( SUNIL K. KOTWAL ) ( T.V. NALAWADE )
JUDGE JUDGE
fmp/
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