CRI.APPEAL.9.11
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 9/ 2011
Mahadeo Sampat Lokhande
Aged 65 years, R/o Titawa
Taluka Barshi Takli, Diost. Akola. .. APPELLANT
versus
The State of Maharashtra
Through P.S.O.
Police Station Pusad,
Dist. Yavatmal. .. RESPONDENT
...............................................................................................................................................
Shri R.R. Shrivastava, Advocate for the appellant
Shri S.B.Bissa, Additional Public Prosecutor for respondent -State
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 20th September, 2017 ORAL JUDGMENT:
Being aggrieved by the judgment and order dated 30.12.2010 in Sessions Trial No.23/2010 delivered by the learned Extra Joint Ad-hoc Additional Sessions Judge, Pusad, convicting the appellant (hereinafter referred to as 'the accused') for the offence punishable under section 363 of the Indian Penal Code and sentencing him to suffer R.I. for two years and to pay a fine of Rs.200/-, in default, to suffer R.I. for fifteen days, the present Appeal is filed. The accused was, however, acquitted of the offence punishable u/ss. 366A, 376 of the IPC. ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 :::
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2. Brief facts giving rise to the instant Appeal may be summarized as under:-
Natthu Tembare (complainant ) was a labourer and was residing at Chikhali Camp, Tq. Pusad, Dist. Yavatmal along with his family. Prosecutrix (PW10) is his daughter. The accused was the Guru of the complainant. At the relevant time, the prosecutrix was aged about 14-years and was studying in Vth standard in Vasantrao Naik Ashram Shala, Chikhali camp. Since last 8 to 10 years,the accused used to visit the house of the complainant. At the relevant time, the accused was aged about 65 years. The incident had occurred on 24.1.2010. Since last six months prior to the incident, the accused used to reside in the house of the complainant. On the day of the incident, the accused told PW3-Natthu that he was going to Pusad and accordingly he left the house of PW3. On the same day at about 8.00 a.m, the daughter of PW3 (prosecutrix) told her mother that she was going to answer nature's call and left the house. Since the prosecutrix did not return home for a long time, PW3-Nathhu as well as his wife searched the prosecutrix, however, she was not traced out. PW3 then lodged a missing complaint in respect of his daughter (Exh.14). PW3 then visited village Kalamatra-Wadi. One Vikram Dhakre (not examined) from Wadi informed PW3 that his daughter was seen with the accused and he also informed that the accused would come after two days at Kalamatra for attending the fair. PW3 stayed at Kalamatra for about 4 days, thereafter he proceeded to ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 3 Mangrulpir. He stayed there and then he returned to his house. Since he could not trace out his daughter, he lodged the complaint on 9.10.2010 at Police Station Pusad (Exh.15). On 15.10.2010, PW3-Natthu, again, lodged a complaint with Pusad Police Station stating that his daughter is missing since 24.1.2010 and he came to know that the accused-Mahadeo Sampat Lokhande kidnapped his daughter and an action be taken against him (Exh. 16).
3. On the basis of the said complaint, offence came to be registered. On 2nd March 2010, PW3 came to know from Police Patil from Titawa that his daughter was seen with the accused at Titawa. PW3 then proceeded along with the police to Titawar. Accused along with his daughter was found in the house of one Parvatibai at Titawa. Police brought both of them to Police Station Pusad. The custody of prosecutrix was given to PW3 on 5.3.2010. The prosecutrix was examined by the Medical Officer at Pusad. Head Constable Ashok Raut (PW12) was attached to police station, Pusad at the relevant time i.e. On 16.2.2010. He visited the place of the incident at Titawa. PW 12 then arrested the accused and the prosecutrix was referred for medical examination. After conducting the investigation, PW12 submitted the charge sheet in the court of learned JMFC. The case was committed to the court of sessions. The learned trial Judge framed the charge. The accused pleaded not guilty and claimed to be tried. On appreciation of the evidence on record and hearing both the sides, the learned trial Judge convicted the accused, as aforesaid. Hence this Appeal. ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 :::
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4. Mr. R.R.Shrivastava, the learned counsel for the appellant vehemently argued that the trial Court has rightly acquitted the accused for offence punishable u/ss. 376 and 366A and has erroneously convicted him u/s 363 of IPC. The learned APP contended that the learned trial Judge has rightly convicted the accused u/s 363 of IPC. At this juncture, the learned APP admitted that no appeal has been preferred by the State against the acquittal of the accused u/s 366A and 376 of IPC.
5. After hearing the arguments of both sides, it is necessary to go through the prosecution witnesses. It is noticed that the learned trial Judge has examined in all 12 witnesses. However the material witnesses are PW3-Natthu, father of the prosecutrix, PW 4 Trambak Lokhande, who has shown the house of Parvatibai where the prosecutrix was found with the accused, PW10, the prosecutrix, PW 7-Jagdev who had seen the victim and the accused together, PW 11,Gopichand Chavan, the headmaster of the school and PW 12-Ashok Raut, the Investigating officer.
6. So far as the testimony of PW3 -Natthu is concerned, he has deposed that the accused was his Guru and he used to stay with them for about six months, prior to the incident, which had taken place on 24.1.2010. PW 3 deposed that on the date of incident in the morning, accused left the house for proceeding to Pusad. His daughter too left the house at about 9.00 am, however, she did not return home for a long time. Therefore, PW3 and his wife searched ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 5 their daughter. However she was not traced out. PW3 then lodged a missing complaint (Exh.14). PW3 himself took search of his daughter at village Kalamatra-Wadi. He came to know from one Vikram that his daughter was seen with the accused. PW3 stayed at Kalamatra for two days. He did not find his daughter. So also, he proceeded to Mangrulpir to search his duaghter. However he did not find his daughter at that place also. Then he returned to his house. PW3 then lodged his complaint on 9.2.2010 at Police station Pusad (Exh.15). According to PW3, he again lodged his complaint on 15.2.2010 (Exh.16). PW3 then came to know from Police Patil of Titawa on 2nd March 2010 that his daughter was seen with the accused at Titawa. PW1 then proceeded to Titawa along with the Police. He found his daughter in the house of one Parvatibai at Titawa. The police brought his daughter to Pusad. The police then apprehended the accused. His daughter was medically examined at Pusad. PW3 stated that at that time his daughter did not disclose him anything against the accused due to his pressure. However after few days his daughter disclosed him that the accused had committed rape on her at Titawa, in the house of Parvatibai. She informed that she stayed for about 2/3 days in the house of Parvatibai. His daughter informed him that the accused said that if she would discuss about the rape to anyone she would get disappeared and therefore she had not disclosed the incident of rape to him. Thus, the daughter informed that the accused had raped her for about five to six times and threatened to kill her if she discloses the ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 6 same to anybody.
7. It was suggested to PW3 during his cross-examination that as the accused had not offered the amount for the meals which he had in the house of PW3, he had submitted a false report against him. The testimony of PW 3 has not been shattered in the cross-examination and is found to be a reliable and trustworthy.
8. The prosecutrix PW10 stated that the accused used to stay in her father's house. The accused asked her to accompany him to visit the fair at Titawa. PW 10 stated that she would take permission of her parents and then accompany him. However the accused said that her parents would come to Titawa on next day and she should accompany him on that day itself, therefore, PW 10 accompanied the accused for proceeding to Parwa, then they went to Ansing and thereafter to Washim, from there they proceeded to Dawa and finally at Kalamatra. One person at Kalmatra enquired with the accused about her father and, at that time, the accused informed him that she is the daughter of his Chela. Thereafter the accused took her to Titawa. On on the way, the accused visited his son's house. At Titawa, PW 10 stayed for two days and two nights. PW 10 stated that the accused had sexual intercourse with her during that period. Thereafter they went to one Gangaram's house at Nawegaon and stayed there for 7 to 8 days. Thereafter, the accused had sexual intercourse with her. Thereafter they returned to Titawa and stayed there for a night. However on the ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 7 next day, the police came and brought her to Pusad and her statement was recorded by the police. It was put up to the prosecutrix during her cross- examination that she had not informed to any person that the accused was taking her to Titawa, till reaching Titawa. Nothing adverse was elicited from the cross- examination of PW 10 and she is found to be reliable witness. It is not at all shattered in the cross-examination to the fact that PW 10 she was taken by the accused at different places and ultimately the police visited the place at Titawa and she was taken to Pusad from Titawa.
9. The testimony of PW4-Trambak shows that he was working as a Police Patil of village Titawa. On 2nd March 2010 in the evening the police asked him to show the house of Parvatibai Tondkar. Accordingly, he pointed out the house of Parvatibai wherein the accused as well as the victim was present. The police apprehended the accused, so also the police took the prosecutrix with them. There is nothing to disbelieve the testimony of PW4-Trambak and, thus, it is clear that the accused as well as the victim were found together on 2 nd March 2010 in the house of Parvatibai Tondkar.
10. The testimony of PW7-Jagdeo indicates that on 25.1.2010 at about 5.30 p.m, when he was in the field, he noticed that the accused was coming with a girl by pathway from his field and went to the house of Parvatibai. PW7 made enquiry with the son of Parvatibai, namely, Kisan, as to for what purpose the accused came to their house along with the girl. On this, Kisan informed him that ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 8 the girl was brought for visiting the fair. On 2 nd March 2010 on the enquiry made by the police, he pointed out the house of Parvatibai and at that time the accused and the girl were present in the house of Parvatibai. The accused was apprehended by the police and the police took custody of the girl. The testimony of PW7 corroborates with the testimony of PW4-Trambak on the point that the accused and the victim were found in the house of Parvatibai and the police apprehended the accused from that place, so also the police took custody of the prosecutrix from the house of Parvatibai.
11. On going through the testimony of the witnesses, it is amply clear that the accused stayed in the house of PW 3- Natthu since last six months prior to the date of occurrence i.e. 24.1.2010. He pretended to be the guru of PW3 and therefore in this manner he came in contact with the prosecutrix, who is the daughter of PW3. Considering her tender age i.e about 14 to 15 years, the accused enticed her that he would take her to fair at Titawa and, accordingly, took her at different places and finally at the house of Parvatibai and committed forcible sexual intercourse with her. So far as the allegations against the accused with regard to the fact that he had committed rape on the prosecutrix, as already discussed above, the learned trial Judge has acquitted the accused of the said charges. As such, it is not necessary to discuss the medial evidence of the victim. So far as the allegation of kidnapping is concerned, the testimony of PW3-Natthu i.e. father of the prosecutrix shows that his daughter informed him ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 9 that the accused said to her that if she disclose about the rape to anyone, she would get disappeared. It appears that the accused influenced the victim that he was her Guru and he would get her disappear if at all she complains to anyone against him. At this juncture, it would be proper to discuss the age of the victim. However it may be mentioned that the age of the victim is not seriously disputed by the defence. At the relevant time she was studying in Vth standard and as per the school record her date of birth is shown as 19.6.1996 i.e. on the date of incident 24.1.2010 i.e. 13 years 7 months and five days, that is, she was certainly below the age of 18 years at the time of the incident. Thus, the prosecution has proved that the prosecutrix was enticed by the accused who had taken away her out of the custody of her lawful guardians i.e her parents when she was below the age of 18 years and thus had kidnapped her from the lawful guardianship of her parents, as alleged by the prosecution. The learned trial Judge has rightly convicted the accused u/s 363 IPC. Hence the judgment and order passed by the learned trial Judge needs to be maintained. Hence the order :
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ORDER I) Criminal appeal No. 9/2011 is dismissed.
ii) The judgment and order dated 30.12.2010 in Sessions Trial No.23/2010 delivered by the learned Extra Joint Ad-hoc Additional Sessions Judge, Pusad, convicting the appellant for the offence punishable under section 363 of the Indian ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 ::: CRI.APPEAL.9.11 10 Penal Code and sentencing him to suffer R.I. for two years and to pay a fine of Rs.200/- , in default, to suffer R.I.for fifteen days, is hereby maintained.
iii) The appellant shall surrender to his bail bond, to undergo the remaining sentence, within a period of four weeks.
iv) Professional fees of Mr.R.R.Shrivastava, Advocate (appointed) for appellant are quantified at Rs.5,000/-. However, he requests that the fees be given to the District Bar Association, Nagpur. Request accepted. The professional fees be remitted to District Bar Association, Nagpur.
JUDGE sahare ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:53:28 :::