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Uttam S/O. Ratiram Raut (In Jail) vs State Of Maharashtra Thr. Pso … on 2 April, 2018

1 apeal437.17.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.437 OF 2017

Uttam s/o. Ratiram Raut,
Aged 50 years, Occ. Labour,
r/o. Nainpur, Tq.Desaiganj,
District Gadchiroli (In Jail). ………. APPELLANT

// VERSUS //

The State of Maharashtra,
Through P.S.O., Desaiganj,
Tq.Desaiganj, District
Gadchiroli. ………. RESPONDENT

Mr.S.K.Sable, Advocate (appointed) for the Appellant.
Mr.N.R.Patil, 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 dated 27th December, 2016 passed by

the learned Special Court, Gadchiroli in Special POSCO Case No.1 of

2016 whereby he is convicted for the offence punishable under

Sections 376(2)(n) of the Indian Penal Code and sentenced to suffer

imprisonment for life and to pay a fine of Rs.1,000/-, in default to

suffer rigorous imprisonment for one year. The appellant is also

convicted for the offence punishable under Section 506 (II) of the

Indian Penal Code and sentenced to suffer rigorous imprisonment for

three years and to pay a fine of Rs.1,000/-, in default to suffer

further rigorous imprisonment for six months.

2. The prosecution story, in nutshell, is thus :

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On 3.10.2015, victim Mayuri, who was aged about 11

years at the time of incident, returned home from school at around

9.00 a.m. and disclosed her mother about pain in her private part.

On inquiry, the victim told that the accused had come to their house

in the afternoon on 21.9.2015 when she was playing with her

brother. She further informed that the accused had sent her brother

away and took her inside the house. Then he shut the door. Despite

her resistance, he removed her clothes and raped her. Thereafter, he

threatened to kill her if she discloses the incident to anyone and left

therefrom. The victim further disclosed that the accused had earlier

also come to their house twice, once on the pretext of taking

vegetable and then to take tobacco. On both the occasions also, he

had raped her. After the father of victim came home, Nita

Gangadhar Naxine (PW-1) – the first informant, informed about the

incident to him. Accordingly, oral report was lodged by Nita (PW-1)

to Desaiganj Police Station. On the basis of oral report, the First

Information Report came to be registered vide Crime No. 005/2015.

After completion of investigation, charge sheet came to be filed.

3. Charge was framed below Exh.4 for the offences

punishable under Sections 376(2)(n) and 506 (II) of the Indian

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Penal Code and Section 4 of the Protection of Children from Sexual

Offences Act, 2012. The accused pleaded not guilty and claimed to be

tried.

4. Heard Mr.S.K.Sable, learned Counsel for the appellant

and Mr.N.R.Patil, learned A.P.P. for the Respondent/State.

5. In the present case, the most important evidence would

be that of the prosecutrix Mayuri Nakshane (PW-2). It will be

relevant to refer to the following paragraphs in her deposition :

1. I know the accused produced through video
conferencing. His house is behind our house. The incident
occurred on 21.9.2015. I used to call accused as Uttam
Mama. On that day in the afternoon me and my elder
brother Lomesh were at home. Our parents had gone out
for work. Accused then came to our house and sent away
Lomesh to play marbles. When Lomesh went away I was
standing outside the house. The accused then shut my
mouth with his hand and also held my hands with other
hand and took me inside the house. He then bolted the
door from inside. He then made me lie on the bed. Then he
removed my slacks and nicker. Then he inserted his private
part into mine.

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2. Before that incident also accused had come to our
house 4-6 days after Pola. I alone was at home at that
time. He asked me to give him vegetable. That time also he
had raped me. Thereafter again he had come to our house
on the pretext of demanding tobacco and committed rape
on me.

3. The accused had also threatened to kill me if I would
narrate about the acts to my parents. During the incident
dtd. 21.9.2015 I had bleeding in my private parts. Then
accused had left our house. I narrated the incident to my
mother on 3.10.2015. I had pain in the organ of urinating
and, therefore, I told about the incident to my mother.
Police had recorded my statement. My statement was
recorded in Wadsa Court as well. Police had sent me to
Government hospital, Gadchiroli for examination. ”

6. Though this witness has been thoroughly cross-

examined, the defence has not been in a position to damage her

evidence. The evidence of Mayuri (PW-2) is also corroborated by the

evidence of Nita (PW-1) – the first informant and Gangadhar Naxine

(PW-4). Perusal of evidence of Dipchand Krushnaji Soyam (PW-7)

would reveal that the medical evidence also supports the version as

given by the victim Mayuri (PW-2). From the medical report, it will

reveal that the medical expert has given an opinion that there was

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possibility of an attempt to commit forceful sexual intercourse.

There were old torn hymen healed injuries over 10, 2, 5 and 8 O’

clock position. He has further stated that the victim was admitted in

the hospital for two days.

7. We find that the prosecution has established the guilt of

accused beyond all reasonable doubts. As such, no case is made out

for interference in the present appeal. Hence, the appeal is dismissed.

8. Fees of the learned Counsel for the appellant are

quantified at Rs.5,000/-.

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

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

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

of sickle on right side of stomach.

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