Bombay High Court
Keshav Pandurang Dhadwad vs The State Of Maharashtra on 6 April, 2016
Bench: I.K. Jain
1
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THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 346 OF 2001
Keshav Pandurang Dhadwad,
age : 35 years, r/o: Vihir,
Tq. Akole, Dist. : Ahmednagar. ... APPELLANT
V E R S U S
The State of Maharashtra.
(Copy to be served on the
Public Prosecutor, High Court
of Judicature of Bombay,
Bench at Aurangabad.) ... RESPONDENT
...
Mr. Shivaji T. Shelke, Advocate for Appellant.
Mr. S. N. Morampalle, APP for Respondent / State.
...
CORAM : INDIRA K. JAIN, J.
DATE : 06th April, 2016.
ORAL JUDGMENT:
. This appeal takes an exception to the judgment and order
dated 20th August, 2001 passed by the learned Additional Sessions
Judge, Sangamner in Sessions Case No.10 of 2001 convicting the
Appellant of the offences punishable under Sections 376 and 506 of
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the Indian Penal Code as under:
Conviction under Sentence
Section
376 Rigorous Imprisonment for seven years and fine
of Rs.2,000/- in default Rigorous Imprisonment
for six months.
506 Rigorous Imprisonment for one year and fine of
Rs.500/- in default Rigorous Imprisonment for
three months.
2 Briefly stated the facts of prosecution case are as under:
i. Prosecutrix Lahanbai Dighe was resident of village
Vihir, Taluka Akole, District Ahmednagar. She was
residing with her husband and children. Parents of
prosecutrix were also residing in the same village.
ii. Complainant was a labourer. She used to go from
place to place in search of labour work. On 15th
December, 2000 Complainant with other labourers
had been to Dhamangaon Pat-Ghulewadi to work in
the field of Machindra Ghule. She was required to
stay there till completion of work. In the night she
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and other lady labourers were sleeping in a room.
According to prosecution at around 10:30 p.m.
Accused and PW-5 Gorakh Sable went to the room
in which prosecutrix was sleeping. They came on
motorcycle. Accused told prosecutrix that her
daughter Shaila was ill and her brother had asked
him to bring her. Prosecutrix then accompanied
Accused and Gorakh on motorcycle. Gorakh was
riding the motorcycle. Accused and prosecutrix
were the pillion riders.
iii. When they reached to Deviche Ghat Accused
under the pretext to go for urination asked Gorakh
to stop motorcycle. Gorakh stopped the bike.
Accused then asked Gorakh to proceed with bike
and told him that they would come on foot. Gorakh
left the place. It is alleged that Accused then took
Complainant to the side of the road and under
threats twice committed sexual assault on her.
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iv. Report of the incident was lodged. Crime was
registered against the Accused. PW-9 P.I.
Janardhan Tivate conduced investigation and filed
charge-sheet.
3 Charge was framed against the Accused. He pleaded not
guilty and claimed to be tried. He raised the defence that it was a
case of love affair. The husband of Complainant learnt about love
affair and so he was falsely implicated.
4 Prosecution examined in all 9 witnesses to substantiate
the alleged guilt of Accused. On hearing both the sides learned
Additional Sessions Judge came to the conclusion that there was
sufficient evidence to prove the guilt of Accused and convicted and
sentenced the Accused as stated herein before in para 1. Appellant
had challenged the correctness of said judgment and order in this
appeal.
5 Heard the learned counsel for parties. Upon carefully
going through the evidence of prosecution witnesses this Court finds
that there is merit in the submissions advanced on behalf of
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Appellant / Accused as the prosecution could not prove guilt of
Appellant / Accused beyond all reasonable doubt for the reasons
stated below.
6 PW-1 Lahanbai Dighe is the star witness for prosecution.
She stated that at the time of incident she had been to village
Dhamangaon Pat-Ghulewadi for labour work. She was required to
stay in the village till completion of work. She stated that other
labourers were with her. During night lady labourers were sleeping in
one room and male labourers were sleeping in another room.
Evidence of prosecutrix shows that at around 10:00 to 10:30 p.m.
Accused with Gorakh had been to the room and informed her that her
daughter was ill so she was required to accompany them. Since she
was knowing the Accused she accompanied him on the motorcycle on
which Gorakh and Accused had come to her. Evidence of prosecutrix
further indicates that Gorakh was driving the motorcycle. She and
Accused were pillion riders. On the way to her village at around 11:00
p.m. when they reached Deviche Ghat Accused told Gorakh to stop
vehicle and asked him to proceed. Gorakh left the place. She states
that Accused then threatened to kill her and her husband. He took
her to the distance of 40-50 feet from road, undressed her and
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committed sexual intercourse with her forcibly.
7 It is also stated by prosecutrix that after incident she wore
her clothes. Accused also put on his clothes. When they were
proceeding on foot again second time Accused committed sexual
intercourse with her. She then came to her house. Informed the
incident to her mother and brother. After arrival of her husband, he
was also informed about the incident. She proved FIR Exhibit 13.
8 In the cross-examination prosecutrix admitted that she
was knowing Accused since before incident. She also admits that she
did not ask Gorakh not to leave when Accused asked him to proceed.
She admitted that she did not resist Accused when he undressed her.
She did not try to run away when Accused was removing his clothes.
She did not raise any alarm. She further admits in an unequivocal
terms that both the time she did not resist the act of Accused.
9 The evidence of prosecutrix clearly shows that after the
first incident she on her own followed the Accused and accompanied
him. There is no evidence to show that she attempted to resist the
alleged act of Accused. Facts elicited in her piercing cross-
examination would make it clear that she was a consenting party
926 CRI. APPEAL.346.01.odt
throughout. Medical evidence does not indicate any injury on the
person of prosecutrix. She was a married lady having children.
10 Accused has come with a defence that it was a case of
love affair but at the instance of husband, Complainant has falsely
involved him. In view of the conduct of prosecutrix, defence raised by
Accused appears to be more probable and acceptable. This Court
thus finds that prosecution could not prove the guilt of Accused
beyond reasonable doubt. Appeal therefore deserves to be allowed.
Hence the following order -
O R D E R
I. Criminal Appeal No.346 of 2001 is allowed.
II. The judgment and order dated 20th August, 2001
passed by the learned Additional Sessions Judge,
Sangamner in Sessions Case No.10 of 2001, is set
aside and Appellant Keshav Pandurang Dhadwad is
acquitted of the offences punishable under Sections
376 and 506 of the Indian Penal Code.
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III. Bail bonds of Appellant stand cancelled.
IV. Fine amount if any paid shall be refunded to the
Appellant.
[ INDIRA K. JAIN, J. ]
ndm
