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Vijay Uttam Khandare vs State Of Maharashtra Thr. P.S.O. … on 3 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL 469 2017

Vijay Uttam Khandare,
Aged about 33 years,
Occ. Labour,
R/o. Tuptakli, Tahsil Arni,
District Yavatmal …APPELLANT

…V E R S U S…

The State of Maharashtra,
Through Police Station Officer,
Police Station Darwha,
District Yavatmal …RESPONDENT

——————————————————————————————
Shri R.M. Daruwala, (Appointed) counsel for appellant.
Shri N.B. Jawade, Addl. Public Prosecutor for respondent.
—————————————————————————————–

CORAM: ROHIT B. DEO, J.
DATE: rd
3 April, 2018.

ORAL JUDGMENT

The appellant is aggrieved by the judgment and order

dated 21.11.2016 rendered by the Additional Sessions Judge,

Darwha, in Sessions Trial 52 of 2008, by and under which, the

appellant – accused is convicted for offence punishable under

section 376 of the Indian Penal Code (“IPC” for short) and is

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sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs. 1,000/-.

2 Heard Shri R.M. Daruwala, the learned counsel for

the accused and Shri N.B. Jawade, the learned Additional Public

Prosecutor for the respondent / State.

3 Prosecution case:

The prosecutrix (PW 9) is a resident of village Bodhgawhan.

She started residing at village Saikheda alongwith her husband

few days prior to the incident. She lodged a report on 16.6.2008

alleging that at 9.00 a.m. when her husband had gone to work in

the field and she was alone doing household work, the accused

called her, caught hold her hand, forcibly took her inside the

house of his mother in law and subjected her to forcible sexual

intercourse. On the basis of the said report (Exh. 39) and printed

First Information Report (Exh. 40), offence punishable under

section 376 of the IPC was registered against the accused.

Investigation ensued, statement of the prosecutrix was recorded,

spot panchanama was prepared and the prosecutrix was referred

for medical examination and upon completion of investigation,

charge sheet was submitted in the Court of Judicial Magistrate

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First Class, Darwha, who committed the case to the Sessions

Court. The learned Sessions Judge framed charge (Exh. 8) for

offence under section 376 of the IPC. The accused abjured guilt

and claimed to be tried. The defence is of total denial and false

implication. In the statement recorded under section 313 of the

Code of Criminal Procedure, the accused states that he was

working for three days with husband of the prosecutrix, she used

to talk with the accused and since her husband was suspicious, she

lodged the false report.

4 PW 9 is the prosecutrix who has deposed that at 9.00

a.m. on the date of the incident, the accused, who is the son in law

of a neighbour one Gaikwad called her. The accused addressed

her as sister and she responded to the call. The accused caught

hold of her hand and dragged her in the house of her mother in

law. He closed the door, pressed the mouth of the prosecutrix,

and subjected her to forcible sexual intercourse in the kitchen and

then fled. The petticoat and saree of the prosecutrix was stained

with blood. She was feeling giddy and one Mandabai Jire offered

her water. Her husband arrived and he and others took the

prosecutrix to Police Station Darwha and report Exh. 39 was

lodged. The prosecutrix has identified the saree, petticoat and

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blouse which she was wearing at the time of the incident and

further identified the clothes of the accused. The testimony of the

prosecutrix is not shaken in the cross-examination. Not a single

omission much less significant omission partaking the character of

contradiction is brought on record. She denies the suggestion that

accused used to talk with her frequently, which was noticed by the

neighbours. She denies that the neighbours conveyed to her

husband that the accused used to talk frequently with the

prosecutrix. It is elicited in the cross-examination that the

prosecutrix underwent tubectomy operation two months prior to

the incident. The testimony of the prosecutrix is corroborated by

PW 1 Mandabai Jire who has deposed that she heard the

prosecutrix crying and upon inquiry, was told that the prosecutrix

was subjected to forcible intercourse by the accused. PW 1 further

states that the clothes of the prosecutrix were stained with blood.

The evidence has gone unchallenged. The only suggestion given

to the witness is that she had no personal knowledge about the

incident. However, the evidence that the prosecutrix disclosed to

the witness that she was raped by the accused, which evidence is

admissible, is not challenged.

5 PW 6 Dr. Rajni Kamble medically examined the

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prosecutrix on 16.6.2008. She has deposed that the clothes of the

prosecutrix were blood stained, there was tenderness over her

lower abdomen and she was bleeding from her private part. PW 6

detected a tear in posterior fornis of 6 cm and therefore operated

the prosecutrix to stitch the post coital tear. PW 6 has deposed

that in her opinion, the prosecutrix was subjected to forcible

intercourse. The witness has proved the medical certificate Exh.

31. PW 6 categorically states that bleeding was not due to

menstruation. In the cross-examination, PW 6 denies the

suggestion that bleeding can be due to some decease or due to

operation. The evidence of PW 6 has gone substantially

unchallenged.

6 PW 7 is the husband of the prosecutrix who has

deposed that the prosecutrix disclosed that she was subjected to

forcible sexual intercourse by the accused.

7 Shri R.M. Daruwala, the learned counsel submits that

the version of the prosecutrix is inherently improbable considering

that the incident allegedly occurred at 9.00 a.m. in a crowded

locality. He would submit that the absence of injuries would

exclude the possibility of forcible sexual intercourse. It is also

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argued, as was unsuccessfully argued before the learned Sessions

Judge, that even assuming that the accused established sexual

relationship, the prosecutrix was a consenting party. The

submission of the learned counsel that no injuries are detected is

belied by the medical evidence, to which a reference is made

supra. The submission that the sexual relationship was

consensual, is noted only for rejection. It is the version of the

prosecutrix, which has gone unchallenged, that she started

residing in the village alongwith her husband hardly three days

prior to the incident. Nothing is brought on record to suggest a

consensual relationship. The prosecutrix made an immediate

disclosure to PW 1 that she was raped by the accused. The report

is lodged with promptitude. The defence of false implication is

not probabilized even on the touchstone of preponderance of

probabilities.

8 The evidence of the prosecutrix is confidence

inspiring. Nothing is brought to my notice to disbelieve her

evidence. This Court is not obligated to seek corroboration. In

any event, although it is not necessary to seek corroboration, as a

fact, the evidence of the prosecutrix is more than amply

corroborated by the evidence of PW 1 – Mandabai Jire, husband of

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the prosecutrix PW 7 Suresh Dukare and the medical evidence.

The conscious of this Court is satisfied that the prosecution has

proved the offence under section 376 of the IPC beyond

reasonable doubt.

9 The appeal is sans merit and is rejected.

10 Fees of the appointed counsel are quantified at Rs. 5,000/-.

JUDGE

RS Belkhede, PA

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