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2015 DIGILAW 2290 (BOM)

Amit Prakash Pawar v. State of Maharashtra

2015-10-06

V.M.DESHPANDE

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JUDGMENT V.M. Deshpande, J. 1. By the present appeal, the appellant has challenged judgment and order of conviction dated 17th January 2014 in Sessions Case No. 52 of 2013 by which he is convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 2000/- and in default of payment of fine, to suffer further RI for three months. Appellant is also convicted for the offence punishable under Section 506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default of payment of fine, to suffer further RI for five days. Both the sentenced were directed to run concurrently. Heard Ms. Smita Deshpande, learned counsel for the appellant and Mr. R.S. Nayak, learned Additional Public Prosecutor for respondent-State. Records & Proceedings were perused with the able assistance of both the learned counsel. Both the learned counsel submitted their respective cases. According to learned counsel for the appellant, he is falsely implicated in the crime. According to learned counsel for the appellant, due to political rivalry, the appellant is made scape-goat. It is the further submission of learned counsel that the evidence brought on record by the prosecution is not sufficient to hold that the prosecution has proved its case beyond reasonable doubt. She is relied upon following cases: (1) 2012 ALL MR (Cri) 844 Arvind Bhagwant Datal v. The State of Maharashtra & Anr. (2) 2012 ALL MR (Cri) 160 Vasant Hindurao Patil v. The State of Maharashtra Per contra, Mr. R.S. Nayak, learned Additional Public Prosecutor vehemently submitted that the prosecution has proved all the ingredients for the offences for which the appellant was charged. He submitted that there is overwhelming evidence to show that the prosecution was subjected to forcible sexual intercourse. He submitted that the evidence of the prosecutrix inspires confidence and there is no reason to disbelieve her version. He supported the impugned judgment. 2. The prosecution case is as under: Dnyaneshwar Damande (PW 8) reduced into writing the First Information Report lodged by prosecutrix. Her report is dated 23.10.2012, it is at exhibit 14 whereas the printed FIR is at exhibit 15. As per FIR, on 23.10.2012 at 06.00 o'clock in the morning, prosecutrix went to tuition class. He supported the impugned judgment. 2. The prosecution case is as under: Dnyaneshwar Damande (PW 8) reduced into writing the First Information Report lodged by prosecutrix. Her report is dated 23.10.2012, it is at exhibit 14 whereas the printed FIR is at exhibit 15. As per FIR, on 23.10.2012 at 06.00 o'clock in the morning, prosecutrix went to tuition class. She returned from the tuition class at 08.30 a.m. That time her parents left the house for attending their work. Her two brothers were playing outside in the vicinity. She was having intention to attend extra class of mathematics at 10.30 a.m. Therefore, after returning to the house at 08.30 a.m., she took bath, took the clothes and went towards nullah for washing the clothes. The village was facing acute water scarcity and, therefore, villagers were required to go to nullah for washing the clothes. When she was washing clothes, that time, she felt somebody standing behind her. Naturally, her attention was drawn and at that time, she noticed that the appellant was standing there. He caught hold of her and against her wishes, forcibly committed sexual intercourse. She started weeping and uttered that she will disclose this incident to her parents. That time, she was threatened by the appellant of dire consequences. She returned to her house and immediately informed the said fact to Indirabai Shendre, neighbour as well as her paternal aunt. 3. After registration of crime, Dyaneshwar Damande (PW 8) reached to the spot of occurrence along with pancha witnesses. The spot was shown by prosecutrix. He inspected the spot and prepared spot panchanama. He seized one rubber chhapal and one black thread from the spot of incident. The spot panchanama is at exhibit 26. The prosecutrix was referred for her medical examination. PW 8 Dyaneshwar Damande seized sample of blood of vaginal swab and pubic hair of the prosecutrix under seizure memo (exhibit 24). He also seized clothes of the prosecutrix under seizure memo (exhibit 23). Anil Raut (PW 9) took investigation of the crime from PW 8 Dyaneshwar Damande. He arrested appellant on 23.10.2012 under arrest memo (exhibit 33). After completion of usual investigation, he submitted charge-sheet before the Court. 4. Learned Additional Sessions Judge, Nagpur framed charge vide exhibit 2 against the appellant for the offences punishable under Sections 376 and 506 of the Indian Penal Code. He arrested appellant on 23.10.2012 under arrest memo (exhibit 33). After completion of usual investigation, he submitted charge-sheet before the Court. 4. Learned Additional Sessions Judge, Nagpur framed charge vide exhibit 2 against the appellant for the offences punishable under Sections 376 and 506 of the Indian Penal Code. The appellant denied charge and claimed for his trial. 5. During the course of trial, prosecution examined ten witnesses and relied upon various proved documents. 6. The prosecution in order to prove the date of birth of the prosecutrix has placed reliance on Birth Certificate issued by the Competent Authority of Gram Panchayat, Chulhad, issued under the Birth and Death Registration Act, 1969. The said certificate is at exhibit 18. As per the said certificate, date of birth of prosecutrix is 20.2.1997. Gajanan Neware (PW 3) is the father of prosecutrix. He is prosecution witness No. 3. His evidence shows that prosecutrix is his eldest daughter. As per his testimony, prosecutrix was born at Chulhad. In that view of the matter, issuance of Birth Certificate by Gram Panchayat Authorities of Chulhad under the relevant provisions of the Act to register birth and death, cannot be doubted. Further, the prosecution has examined Jaiwant Bhosle (PW 10). This prosecution witness is Head-master in navbharat Vidyalaya, Gondkhairi. At the time of evidence of this witness, he brought Admission Register of the School. The Admission Register shows that prosecutrix was admitted in the school in 5th standard. Relevant extract of the Admission Register is duly proved and it is at exhibit 45. That shows that the date of birth of the prosecutrix is 20.2.1997. 7. If the evidence of the prosecutrix inspires confidence, it can be the basis for conviction. The prosecutrix is examined as prosecution witness No. 2. Her evidence is in conformity with the facts which were asserted by her in her oral report. Immediate recording of the FIR rules out possibility of false implication. The First Information Report as well as the testimony of prosecutrix shows that since her parents were not available in the house, she immediately disclosed happening to her to Indirabai Shendre who is a neighbour as well as her paternal aunt. It was most natural on the part of the prosecutrix to narrate the incident to her paternal aunt in view of non-availability of her parents. The prosecutrix is corroborated in that behalf by Indirabai (PW 5). It was most natural on the part of the prosecutrix to narrate the incident to her paternal aunt in view of non-availability of her parents. The prosecutrix is corroborated in that behalf by Indirabai (PW 5). Indirabai thereafter immediately contacted Hemraj (PW 8) and requested him to make a photone call to the father of prosecutrix. Accordingly, Hemraj (PW 6) made a telephone call to PW 3 Gajanan, father of prosecutrix. PW 3 Gajanan deposed from witness box that when he was at his work, that time, he received phone call from Hemraj (PW 6) by which it was informed to him that his sister Indirabai (PW 5) has informed Hemraj that prosecutrix is weeping. On getting such information, father of the prosecutrix immediately rushed to his house to notice that prosecutrix was weeping and she narrated the incident to him. Therefore, he with the prosecutrix proceeded to the Police Station. In the meanwhile, Asha (PW 4), mother of the prosecutrix also got information about the incident and she also came from agricultural field where she was working. She joined her husband and the prosecutrix while they were on their way to Police Station. That time, prosecutrix narrated the incident to her also. Thus, it is crystal clear that without losing any time, at the first opportunity, the prosecutrix has informed the atrocity committed on her by the appellant to Indirabai (PW 5) and immediate steps were taken to book the appellant. Insofar as submission of learned counsel for the appellant that he has been made scape-goat due to political rivalry, is of no basis. From cross-examination of the prosecutrix itself it is brought on record that her father is a driver whereas her mother works on agricultural field. Thus, it is clear that the prosecutrix belongs to lower strata of the society and her parents are neither influential persons nor involved in any political activities. According to learned counsel, prior to the incident, Gram Panchayat elections were held on 21.10.2012. In that, one Mohan Zodape contested the election. From the suggestions given to Gajanan in his cross-examination, learned counsel for the appellant tried to submit that ex-Sarpanch lata Bhosle is having quarrel with Mohan Zodape who is having good relations with Gajanan. According to learned counsel, in view this Gram Panchayat elections, present appellant is falsely implicated, because Lata Bhosle is maternal aunt of the appellant. From the suggestions given to Gajanan in his cross-examination, learned counsel for the appellant tried to submit that ex-Sarpanch lata Bhosle is having quarrel with Mohan Zodape who is having good relations with Gajanan. According to learned counsel, in view this Gram Panchayat elections, present appellant is falsely implicated, because Lata Bhosle is maternal aunt of the appellant. All the suggestions made in this behalf to Gajanan were soutly denied by him. Even assuming that relations between Mohan Zodape and Lata Bhosle were strained, for that, prestige of the family of prosecutrix will not be put to stake especially when there is nothing in the evidence to show that family of the prosecutrix was in any way concerned with political activities or having any political connections. 8. Evidence of the prosecutrix that she was subjected to rape and during that, a black-colour thread which was around the neck of the appellant was snatched/removed by the prosecutrix, gets corroboration from the contemporaneous document (exhibit 26), the spot panchanama. The relevant portion of the spot panchanama reads as under:- The aforesaid recital of the document which was drawn by the Investigating Officer clearly fortifies the claim of the prosecutrix that she was subjected to forcible intercourse which was resisted by her. 9. The prosecutrix was sent for medical examination under the requisition (exhibit 5). Dr. Padmakar Ramteke (PW 1) examined the prosecutrix. Dr. Ramteke was examined as prosecution witness No. 1. He has proved the medical certificate of the prosecutrix. It is at exhibit 8. His evidence discloses as under: "1) ..... 2) ..... 3) As her hymen is ruptured the sexual intercourse could have been occurred within last 12 hours. Considering the tenderness at Fourchette and hymen and blood inside vagina. It was 27.9.2012. 4) There was abrasion at left sided labia minora superficial with the size of 0.5 c.m. x 0.25 c.m. actually bleeding on toush seen. 5) ..... 6) Bloody discharge was seen from inside vagina...." According to the doctor, the last menstruation period of the prosecutrix was 27.9.2012. Dr Ramteke also observed blood in the private part of the prosecutrix and as per his evidence, the said blood was not of menstruation, but it was the blood oozing out of sexual intercourse. The evidence of doctor has remained unshaken during his cross-examination. Dr Ramteke also observed blood in the private part of the prosecutrix and as per his evidence, the said blood was not of menstruation, but it was the blood oozing out of sexual intercourse. The evidence of doctor has remained unshaken during his cross-examination. Though a suggestion is given to the doctor that the abrasions which the doctor noticed on the private part of the prosecutrix are possible if the patient scratches the private part by means of nails, in my view, the said suggestion is of no use for the defence since when the prosecutrix was in the search of cross-examination of the learned defence counsel, no such suggestion was given to her. Therefore, there is no reason to disbelieve Dr. Ramteke. 10. The muddemal property which was sent to the chemical analyser was examined and report of the chemical analyser is at exhibit 39. The garment of the prosecutrix was stained with blood. Thus, it is a corroborative piece of evidence to the version of Dr. Ramteke that he noticed blood. 11. The judgments cited by learned counsel for the appellant are distinguishable on facts involved in the present case. Hence, the same are not applicable to the facts and circumstances of the present case. 12. Thus, on re-appreciation of the prosecution case, I see no reason to upset the judgment and order of conviction. In the result, the appeal is dismissed.