Bombay High Court
Anil Balu Kambale vs The State Of Maharashtra on 5 April, 2016
Bench: A.M. Thipsay
5-APPEAL-738-2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.738 OF 2015
ANIL BALU KAMBLE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Shri Abhaykumar Apte, Appointed Advocate for the Appellant.
Shri A.R.Patil, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 5th APRIL 2016.
ORAL JUDGMENT :
1 The appellant and one Prakash Kambale were
convicted of offences punishable under Section 376 of the IPC and
Section 506 of the IPC by the Additional Sessions Judge, Khed.
They were sentenced to suffer Rigorous Imprisonment for 10 years
and to pay a fine of Rs.5,000/- each, with respect of the offence
punishable under Section 376 of the IPC, and to suffer Rigorous
Imprisonment for 1 year and to pay a fine of Rs.2,000/- each, with
respect to the offence punishable under Section 506 of the IPC.
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5-APPEAL-738-2015.doc
Being aggrieved by the order of conviction and the sentences
imposed upon him, the appellant has preferred the present appeal.
2 The co-accused Prakash Kambale, who was also
convicted as aforesaid, had preferred a separate appeal, being
Criminal Appeal No.1099 of 2013, before this court, which was
allowed by an order dated 23rd January 2015 (Coram :
Smt.I.K.Jain, J.) and the said Prakash Kambale was acquitted of
the said offences. This court held that it was unsafe to rely on the
prosecution evidence to hold the said co-accused guilty.
3 Shri Abhaykumar Apte, the learned counsel for the
appellant, submitted that the case of the present appellant is on
par with that of the said Prakash Kambale, and that the nature of
evidence against the present appellant is in no way different from
that against the said Prakash Kambale. The learned APP, on
examination of the record, conceded that the case of the present
appellant is on par with that of the said Prakash Kambale, who
was acquitted, on appeal, as aforesaid.
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4 I have, nevertheless, gone through the relevant parts
of the impugned judgment and the judgment delivered by this
court in Criminal Appeal No.1099 of 2013.
5 I find that the victim had not disclosed to anyone
about the alleged incidents of rape, and that, the disclosure came
only after it was revealed that the victim was in advanced stage of
pregnancy. The victim named the present appellant, the said
Prakash Kambale, and one more, who could not be prosecuted
along with the appellant and the said Prakash Kambale, as he was
a juvenile. Enquiry against him was required to be held by the
Juvenile Justice Board.
6 Except the bare statement of the victim, there was no
other material against the appellant. The disclosure of the alleged
incident, as aforesaid, was made belatedly, and only after the fact
that the victim was pregnant, was disclosed. The victim gave birth
to a child. The result of the DNA Test that was carried out
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indicated that the juvenile offender was the father of the child that
was born to the victim.
7 This court has already held while disposing of Criminal
Appeal No.1099 of 2013 that it was unsafe to rely on the bare
testimony of the prosecutrix. The case of the appellant, being on
par with that of the said co-accused Prakash Kambale, the
appellant also deserves to be acquitted similarly.
8 The appeal is allowed.
The judgment of conviction of the appellant and the
sentences imposed upon him are set aside.
The appellant is acquitted.
He be set at liberty forthwith, unless required to be
detained in connection with any other case.
Fine, if paid, be refunded to him.
The Appeal is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY, J.)
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