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2012 DIGILAW 1298 (BOM)

Changdeo Dnyanu Buchade v. State of Maharashtra

2012-07-17

R.C.CHAVAN

body2012
JUDGMENT This appeal is directed against appellant's conviction by the learned Additional Sessions Judge, Sangli for the offences punishable under Sections 376 and 341 of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs. 3,000/- and simple imprisonment for one year with a fine of Rs. 500/- imposed upon him for the two offences on conclusion of Sessions Case No. 151 of 1992 before him. 2. Facts which are material for deciding this appeal are as under :- The victim, who was about 17½ years old, was working in the field of one Shivaji Nikam along with her mother and other labourers. At about 2:30 p.m., the appellant is alleged to have pulled her inside sugar cane crop and then committed a rape upon her, as the co-accused, who has been acquitted, was instigating the appellant to go ahead. On a report by the victim, an offence was registered. The victim was sent for medical examination, in course of which necessary biological samples were taken. Her clothes were seized. She showed the spot and police drew up a panchanama of the spot. The appellant was immediately arrested. His clothes were seized and were also sent for medical examination. In course of investigation, police recorded statements of witnesses and on completion of investigation, sent charge sheet to the Court of Judicial Magistrate F.C., Islampur, who committed the case to the Court of Session at Sangli. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant for the offences punishable under Sections 376 and 341 of the Indian Penal Code and charged co-accused for the offence punishable under Section 109 read with Section 376 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all six witnesses in its attempt to bring home guilt of the accused persons. After considering their evidence in the light of defence of denial of false implications, the learned trial Judge convicted and sentenced the appellant as aforementioned and acquitted the co-accused. Aggrieved thereby, the appellant has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 victim had turned hostile. Aggrieved thereby, the appellant has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 victim had turned hostile. Even in course of cross examination by the learned APP, she went only so far as to state that the appellant pulled her inside sugar cane crop but stopped short of stating that she was raped. PW-3 her mother, Godabai Sheshappa Sarje also turned hostile and did not support the prosecution case. She stated in her cross examination that a false complaint was filed against the appellant at the instance of Balu Patil to prevent the appellant from visiting the victim. PW-2 Gajanan Maruti Dambe is a panch on spot panchanama at Exhibit 12. PW-4 Dr. Bhikaji Nivrutti Vanjare referred the victim to the Civil Hospital at Sangli. PW-5 Dr. Manohar Shankar Chavan did not actually examine the victim but prepared Certificate on the basis of observations of Dr. Deshpande and Dr. Kulkarni. PW-6 API Kallappa Ramchandra Sarde had conducted the investigation. 5. In spite of refusal by prosecutrix and her mother to support case of rape, the learned trial Judge convicted the appellant holding that there would have been no occasion for the victim to immediately report about rape to the police, if there was no such incident. The learned Judge seems to have overlooked the report from the Forensic Science Laboratory which does not show any stains of semen on the victim's biological samples taken by the Medical officer or on her clothes. The learned Judge also failed to note that the Medical Certificate at Exhibit 25 is not indicative of complete penetrative intercourse. The Certificate mentions about two old tears at 2nd and 10th O’ clock position and a fresh tear of hymen at 6th O’ Clock position. The learned Judge should, therefore, have seen that the victim was possibly telling the truth when she stated about her being pulled inside sugar cane crop and stopped short of stating that there was intercourse with her. In the face of this evidence, the learned Judge was thoroughly unjustified in holding the appellant guilty of the offences punishable under Sections 376 and 341 of the Indian Penal Code. 6. The appeal is, therefore, allowed. In the face of this evidence, the learned Judge was thoroughly unjustified in holding the appellant guilty of the offences punishable under Sections 376 and 341 of the Indian Penal Code. 6. The appeal is, therefore, allowed. Conviction of the appellant for the offences punishable under Sections 376 and 341 of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs. 3,000/- and simple imprisonment for one year with a fine of Rs. 500/- is set aside. Appellant is acquitted for the above said offences. Appeal allowed.