apeal415of12.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.415 OF 2012
Samaru S/o. Sakaru Marhaskolhe,
Aged about 30 years, Occ. Labour,
R/o.Bharveli Dist. Balaghat,
Presently at Mandavghorad,
Police Station Hingna,
District. Nagpur ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer
Police Station Hingana, Nagpur ...RESPONDENT
-------------------------------------------------------------------------------------------
None for the Appellant.
Mr. A.V. Palshikar, Additional Public Prosecutor for
Respondent /State.
-------------------------------------------------------------------------------------------
CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
:09.10.2017
DATE OF PRONOUNCING THE JUDGMENT
: 13.11.2017
JUDGMENT:
The appellant is aggrieved by the judgment and order dated 29.8.2012 in sessions Trial 564 of 2011 passed by the Additional Sessions Judge, by and under which the appellant (hereinafter referred to as "the accused) is convicted for offence ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 2 punishable under section 376 read with section 511 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for three years and six months and to payment of fine of Rs. 3,000/-.
2 The appeal was called out for hearing on 4.10.2017. The learned counsel for the appellant was absent and this Court directed that the appeal be listed on 9.10.2017 under the caption "order matters". This order was made in view of the note of the Registry dated 28.9.2017 that the accused Samru s/o. Sakaru Marhaskolhe is released from jail on 6.8.2014 after having undergone the entire sentence imposed by and under the judgment impugned dated 29.8.2012. This Court expected the learned counsel for the appellant to clarify as to why, despite the order dated 22.1.2013 of suspension of sentence and grant of bail, the accused was not released. However, again the learned counsel for the accused did not appear on 9.10.2017. This Court, consistent with the dictum of the Hon'ble Apex Court in Bani Singh Vs. State of Uttar Pradesh, AIR 1996(4)SCC720, scrutinized the record with the assistance of the learned Additional Public Prosecutor Shri. A.V. Palshikar, and the appeal is being decided on merits.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 3 3 The genesis of the prosecution lies in oral report Exh. 11 lodged by the prosecutrix, the gist of which is thus:-
The prosecutrix, then aged 55 years, is a labour who resides with her brother Shyamrao Bhobe and works as agriculture labour in the field of one Narhari Dorlikar. The incident occurred on 30.8.2011. The prosecutrix and Shyamrao worked in the field till evening, at 7.00 pm, Shyamrao switched on the light and went to the village to purchase sugar. The prosecutrix was cooking in the Varandah, the accused came near the house of the prosecutrix, he was asked by the prosecutrix as to what was the propriety of coming at night, the accused removed the wire of light, caught hold of the prosecutrix, gagged her mouth, inflicted 2 to 3 slaps and threatened to kill the prosecutrix. The accused dragged the prosecutrix near a lemon tree, undressed, lifted the saree of the prosecutrix after bringing her down on the ground, inserted his private organ in the vagina and committed sexual intercourse with rocking motions. After discharge of semen, the accused got up, threatened the prosecutrix, put on nickers and full pant and fled through the field with crop of lady's finger. Shyamrao reached home, the prosecutrix narrated the incident to Shyamrao who followed the accused who was passing through the field of lady's ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 4 finger, the accused beat Shyamrao and fled. The prosecutrix and Shyamrao approached the Police Station and the prosecutrix lodged an oral report which was reduced to writing on the basis of which offence punishable under section 376 and 506 of the IPC was registered. The printed First Information Report (Exh. 12) reveals that the report was lodged on 31.8.2011 at 2.00 hours. The prosecutrix was sent for medical examination and was examined by Dr. Smt. Sarita Khodge, who issued certificate Exh.
32. Shyamrao was also send for medical examination to Rural Hospital, Hingana and the medical report is at Exh. 36. The accused was arrested and sent for medical examination and the report is at Exh. 30. The blood sample of accused was collected and seized vide Exh. 26, the clothes which the prosecutrix produced were seized vide Exh. 13, spot panchanama Exh. 17 was drawn which reveals the presence of pink coloured piece of cloth, pieces of broken bangle, loop of pant of blue colour and two pieces of loop with three hooks, which were seized vide spot panchanama Exh. 17. On completion of investigation, chargesheet was submitted in the Court of Judicial Magistrate First Class, Hingana, who committed the case to the Sessions Court. The learned Sessions Judge framed charge vide Exh. 4, the accused pleaded not guilty and claimed to be tried. The defence of the ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 5 accused is of total denial and false implication. 4 The prosecution has examined 8 witnesses namely:-
P.W. 1 Prosecutrix Ashabai at Exh. 10
P.W. 2 Shyamrao Bhobe - brother of Ashabai Exh.
14
P.W. 3 Ankush Adbaile - vide Exh. 16 - panch on
spot panchanama, seizure panchanama of
clothes and seizure panchanama of blood
sample of prosecutrix.
P.W. 4 Leeladhar Maraskolhe at Exh. 19 whom
Shyamrao narrated the incidence of his
beating and rape upon prosecutrix.
P.W. 5 Kawadu Kate at Exh. 20 - who reached
prosecutrix and her brother to police
station.
P.W. 6 Vinod Rokde at Exh. 21 - Investigating
Officer.
P.W. 7 Dr. Sarika Khodge - Medical Officer at Exh.
31 - Who issued medical certificate of
prosecutrix on examination at Exh. - 32 and answered the queries made by the Investigating Officer vide Exh. - 33. She also issued medical certificate of Shyamrao after his examination vide Exh. 35.
P.W. 8 Ashok Kate at Exh 41, who reduced into writing oral report vide Exh. 11 and registered first information report vide Exh. 12 and sent injured Shyamrao for medical examination.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 6 5 The evidence of prosecutrix - PW 1 is substantially consistent with the contents of the report Exh. 11. She has deposed that on the day of incident, she was alone since her brother Shyamrao had gone to the market to purchase sugar, the accused forcibly took her to the lemon tree situated at distance of 100 fts or thereabout from the kitchen, lifted her saree and inserted his male organ in her private part. The testimony of the prosecutrix is corroborated by PW 2 Shyamrao who deposed that the accused assaulted him on his head by stick when Shyamrao confronted the accused.
While it is true that both PW 2 Shyamrao and PW 5 Kawadu, the driver of the autorickshaw who reached the prosecutrix and Shyamrao to Police Station between 9.30 to 10.00 pm on 30.8.2011, had admitted that the prosecutrix is slightly mentally challenged, the learned Sessions Judge on a holistic appreciation of the evidence of the prosecutrix, has found most of her evidence confidence inspiring. I have re-appreciated the evidence and having done so, I find no reason to take a view different from that taken by the learned Sessions Judge, in so far as the offence of attempt to commit rape is held to be proved. 6 The report is lodged with promptitude. The fact that ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 7 the report was lodged after discussion with Shyamrao and other villagers, is not sufficient to doubt the veracity of the report.
7 The evidence of PW 2 Shyamrao is equally trustworthy. The evidence of prosecutrix, although, need not be corroborated, is corroborated not only by the evidence of PW 2 Shyamrao, but is further corroborated by the spot panchanama and the seizure panchanama Exh. 17. PW 6 Vinod Rokade, who is the Investigating Officer, deposed that at the time of recording the spot panchanama, he seized loop of pant of blue colour and two pieces of loop having three hooks and other articles from the spot. The clothes of accused is seized vide Exh. 24 pursuant to memorandum under section 27 of the Indian Evidence Act. The evidence of Investigating Officer on the aspect of seizure of clothes from the house of the accused is virtually unchallenged. The report of the Chemical Analyzer Exh. 43 reveals that Exh. 9 cloth piece and cloth strip tallies with half pant Exh. 6 as regards hue physio chemical and textile characteristic. 8 The prosecutrix suffered abrasions on the lower side of both scapular region and left hand, as is evident from medical examination report Exh. 32 issued pursuant to the examination by ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 8 Dr. Sarita Khaodge on 30.8.2011. In response to queries made vide Exh. 33, Dr. Khodge issued medical certificate Exh. 34 recordingthat no injury was seen on the genetelia of the prosecutrix. However, abrasions were noticed on the scapular region.
An admission is extracted in the cross-examination of the prosecutrix which is to the effect that the accused did not remove his clothes. The solitary and stray admission is undoutedly inconsistent with the testimony of the prosecutrix that the ccused inserted male organ in her private part. The learned Sessions Judge has noted that there is no medical or scientific evidence to corroborate the insertion of the male organ in the private part of the prosecutrix and in the teeth of the said admission has recorded a finding that the only offence which is proved is that an attempt to commit rape.
9 Benefit of the doubt must necessarily go to the accused if an alternate hypothesis is possible. I do not find anything wrong in the finding recorded by the learned Sessions Judge that the only offence which is proved is that of an attempt to commit rape.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 ::: apeal415of12.odt 9 10 The evidence of the prosecutrix PW 1, save and accept to the actual fact of insertion of the private organ in the vagina is, as noted earlier, confidence inspiring. While the learned Sessions Judge has rightly extended the benefit of doubt to the accused in so far as the charge of having committed rape is concerned, the finding that an attempt to commit rape is proved, is unexceptionable.
The appeal is sans merit and is dismissed.
It is reported that the accused has already undergone the sentence. In this view of the matter, no further direction is necessary.
JUDGE RS Belkhede ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:00 :::