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2014 DIGILAW 222 (BOM)

Bandu Ramrao Meshram v. State of Maharashtra

2014-01-28

A.S.CHANDURKAR, B.R.GAVAI

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JUDGMENT A.S. CHANDURKAR, J. The present appeal takes exception to the order of conviction of the appellant vide judgment dated 29-4-2010 whereby the learned Additional Sessions Judge, Yavatmal in Sessions Trial No. 12 of 2009 has convicted the appellant for an offence punishable under Section 376(2) of the Indian Penal Code (hereinafter referred as the Penal Code) and has sentenced him to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs. 2000/-, in default to suffer R.I. for six months. The appellant, however, has been acquitted of the offence punishable under Section 363 of the Penal Code. 2. The case of the prosecution, as can be gathered from the material on record, is that on 14-5-2008 at about 12 noon, the appellant came to the house of the complainant - Geeta Atram and at about 1 p.m., took her daughter "S" aged 7 years with him for giving her biscuits. At about 1.30 p.m. "S" returned home crying and on enquiry being made, she disclosed that the appellant had taken her to the Nallah of the village and had inserted his penis into her vagina. There was blood stains on the frock and underwear of "S". After arrival of the complainant's husband, a report was lodged. Crime No. 16 of 2008 was duly registered. On completion of necessary investigation and obtaining medical report, charge-sheet was presented before the learned Judicial Magistrate First Class, Kalamb. The case was thereafter transferred to the Court of learned Judicial Magistrate First Class, Ralegaon. After receiving the charge-sheet, as offence punishable under Sections 363 and 376 of the Penal Code was exclusively triable by the Court of Sessions, the case was accordingly committed. The appellant was charged for the offence punishable under Sections 363 and 376(2) of the Penal Code. The appellant pleaded not guilty and hence, was tried. On conclusion of the trial, the appellant was convicted as mentioned above. Hence, the present appeal against the conviction by the appellant. 3. Shri M.P. Lala, the learned Counsel appointed to represent the appellant has submitted that the learned Sessions Judge has wrongly convicted the appellant for the aforesaid offence. It is submitted that the prosecution has failed in proving its case and the appellant has been convicted merely on the basis of surmises. It is submitted that the case of the prosecution has not been proved beyond reasonable doubt. It is submitted that the prosecution has failed in proving its case and the appellant has been convicted merely on the basis of surmises. It is submitted that the case of the prosecution has not been proved beyond reasonable doubt. It is further submitted that the seizure of the appellant's clothes has not been duly proved. According to the learned Counsel, the appellant was falsely implicated in the aforesaid case. He, therefore, submitted that the appellant was entitled to be acquitted of the aforesaid offence. 4. On the other hand Mrs. B.H. Dangre, the learned Additional Public Prosecutor submitted that the appellant has been rightly convicted under Section 376 of the Penal Code. It is submitted that "S" who was the victim had duly identified the appellant as the person who had first taken her from her house and had thereafter committed the alleged act. It is further submitted that the medical report Exh.51 as well as deposition of PW-5 Dr. Shilpa clearly established the fact that the offence of rape had been committed on "S". The blood stains found on the clothes of the appellant matched with the blood group of "S" and hence, it was proved beyond reasonable doubt that it was the appellant who was guilty of committing aforesaid offence. It was, therefore, submitted that no interference was called for with the order of conviction recorded by the trial Court. 5. With the assistance of the learned Counsel for both sides, we have minutely scrutinized the entire material on record. PW-1 Geeta who is the mother of "S" has deposed vide Exh.26 that on 14-5-2008, the appellant had taken "S" for giving her biscuit packet. At about 1.30 p.m. "S" returned to the house and disclosed that the appellant had removed her underwear and his pant and thereafter had inserted his penis in her vagina. PW-1 also noticed blood stains on the frock underwear and private part of "S". Report to that effect was immediately lodged by PW-1 vide Exh.27. This witness has been duly cross examined, but her version has not been shattered so as to doubt the same. The victim "S" has been duly examined as PW-2 vide Exh.30. She has also narrated in detail the alleged act committed by the appellant. She has also stated that she had shown the spot of the incident to the police. This witness has been duly cross examined, but her version has not been shattered so as to doubt the same. The victim "S" has been duly examined as PW-2 vide Exh.30. She has also narrated in detail the alleged act committed by the appellant. She has also stated that she had shown the spot of the incident to the police. Said witness has been duly cross examined, but nothing material therein has been extracted so as to disbelieve the version as stated in her examination-in-chief. 6. The prosecution has thereafter examined PW-3 Tatoba Atram - Exh.43 who has stated that at about 1.30 p.m. on the date of the incident "S" had come to his house for having water. He saw that her Paijama had blood stains. Though he enquired with "S" as to what had happened, she did not tell anything to him and went towards her house weeping. This witness has also been duly cross examined. PW-4 - Bhagwan Exh.44 has stated that at about 12 noon on said date he had seen "S" with the appellant as the appellant was taking her outside the village. 7. PW-5 Dr. Shilpa has been examined vide Exh.50. She has stated that "S'" was medically examined by her. She noticed that hymen of "S" was torn and there was possibility of rape having occurred. This witness has also given her medical report Exh.51 which refers to the hymen being torn with mid-line perineal tear. It is also stated that the blood sample of "S" was taken for identifying the blood group. 8. The seizure memo - Exh.57 revels a full sleeved shirt and black full pant being seized on 15-5-2008. There is reference to blood stains from the lower left front portion of the shirt as well as on the white cloth lining inside the pant. The Investigating Officer has been examined as PW-7 vide Exh.63. Said witness has referred to the spot panchanama, seizure panchanama as well as report of the Chemical Analyzer. Nothing material has been extracted from said witness in his cross examination. In the report of the Chemical Analyzer dated 5-7-2008 - Exh.64, the results show that the frock, Paijama and the full sleeved shirt that was worn by the appellant was stained with blood of blood group "B". Similarly, Exh.65 shows that the blood group of the victim "S" is of group "B". 9. In the report of the Chemical Analyzer dated 5-7-2008 - Exh.64, the results show that the frock, Paijama and the full sleeved shirt that was worn by the appellant was stained with blood of blood group "B". Similarly, Exh.65 shows that the blood group of the victim "S" is of group "B". 9. The appellant in his statement under Section 313 of the Criminal Procedure Code has denied his involvement and has stated that the case against him was false. While answering question No. 34 as regards seizure of white coloured shirt and black coloured pant under seizure panchanama Exh.57 from the appellant, the appellant has, however, admitted the seizure. 10. Perusal of the aforesaid material reveals that PW-1 Geeta had seen the appellant taking "S" with him at about 12 noon. This fact was further corroborated by PW-4 Bhagwan. PW-3- Tatoba has deposed seeing "S" coming back at about 1.30 p.m. with blood stains on her Paijama. "S" has duly identified the appellant as being the person who took her to the field and thereafter, committed the act in question. It has come on record in the deposition of PW-1 Geeta that the appellant was her husband's relative and he used to visit their house frequently. The medical examination of "S" reveals that her hymen was torn. The blood sample collected from "S" matched with the blood stains that were found on the full-sleeved shirt belonging to the appellant. As stated above, seizure of the full shirt from the appellant vide Exh.57 has been duly admitted by him in his statement recorded under Section 313 of the Criminal Procedure Code. It is thus clear that there is voluminous evidence on record indicating the involvement of the appellant. He was seen taking the victim by the victim's mother as well as by PW-4 Bhagwan who is a natural witness being resident of the same village. The medical evidence on record conclusively proves commission of aforesaid act on "S". The blood stains of Blood Group 'B' having been found on the full-sleeved shirt of the appellant, it conclusively proves the guilt of the appellant. It is, therefore, proved beyond reasonable doubt that it was the appellant who committed the act of rape upon "S" on 14-5-2008. 11. The blood stains of Blood Group 'B' having been found on the full-sleeved shirt of the appellant, it conclusively proves the guilt of the appellant. It is, therefore, proved beyond reasonable doubt that it was the appellant who committed the act of rape upon "S" on 14-5-2008. 11. The learned Judge of the Sessions Court has considered the entire material on record and has thereafter held the appellant guilty of having committed offence punishable under Section 376(2)(F) of the Penal Code. Being an appeal against conviction, we have independently scrutinized the entire material on record. Having done so, we are convinced that the appellant had committed aforesaid offence. Similarly, we find that the learned Sessions Judge has properly appreciated the entire material on record and there is no reason whatsoever for us to take a different view. We, therefore, find that the learned Judge of the Sessions Court has rightly convicted the appellant for the offence punishable under Section 376 (2)(f) of the Penal Code and rightly sentenced him to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs. 2000/-. in default to suffer Rigorous Imprisonment for six months. We find no merit whatsoever in the appeal. The same is accordingly dismissed. 12. Counsel fees are quantified at Rs. 5000/-. Appeal dismissed.