Bombay High Court
Milind Govind Pandit vs State Of Maha on 1 August, 2016
Bench: A.I.S. Cheema
Criminal Appeal No.678/2003
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.678 OF 2003
Milind s/o Govind Pandit
Age 32 years, Occu. Nil,
R/o Kada, Taluka Ashti,
District Beed ... APPELLANT
(Orig. Accused)
VERSUS
The State of Maharashtra
(Copy to be served through
the Public Prosecutor,
High Court of Judicature
at Bombay, Bench at Aurangabad) ... RESPONDENT
.....
Shri S.P. Chapalgaonkar, Advocate for appellant
Shri K.S. Hoke Patil, A.P.P. for respondent/ State
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 1st August, 2016.
Date of reserving judgment : 15th July, 2016
Date of reserving judgment : 1st August, 2016.
JUDGMENT:
1. The appellant - original accused (hereafter referred to
as "accused") has been convicted in Sessions Case No.17/2003
on 1/10/2003 by IV Adhoc Additional Sessions Judge, Beed. He
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has been convicted under Sections 363, 366-A, 376 and 506 of
the Indian Penal Code, 1860 (I.P.C. in brief) and sentenced to
suffer rigorous imprisonment for terms as mentioned in the
judgment, along with fine.
2. The case of prosecution in short is as under :
The accused was known to the family of complainant
(P.W.1), who resides at Khilad, Taluka Ashti, District Beed. [ I
will not name the complainant, the father of prosecutrix as well
as his wife (P.W.2) and the prosecutrix (P.W.3). I will refer to
P.W.2 as the mother of victim and P.W.3 the prosecutrix as
victim to conceal their identity.] The facts in nutshell are that,
the accused being known to the family of victim, used to visit
them. On 14.9.2002, the mother of victim was not well when the
accused went to their house in the afternoon. He proposed to
take the mother to the hospital at Kada, which is about 14 Kms.
away, in the jeep, which he had brought. The victim and her
mother went along with accused to the hospital of one Gandhi at
Kada. The victim and her mother and accused were sitting in the
middle seat. On the way, the accused misbehaved with the
victim by kissing her and pressing her chest. The mother of
victim objected and even the victim opposed. After returning
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from the hospital, the mother of victim told the facts to the
complainant i.e. the father of victim. The accused started saying
that he will take away the victim with him. In spite of opposition,
he forcibly took away the victim with him to his field at Kada. He
kept her there in a hut. He forcibly committed intercourse on her
that night on two occasions and yet again on 15.9.2002. On
16.9.2002, he took the victim with himself to Jamkhed Bus
Stand. As he had problem of money, he called up Deputy
Sarpanch Sitaram Garje of Khilad, who asked him to wait and he
will come there. Sitaram Garje (P.W.5) went to the Bus Stand at
Jamkhed. However, by that time, the presence of victim had
attracted the attention of one Police Constable Dadasaheb
Kakade (P.W. 8), who was on duty. This Constable questioned
them and took them to the police station. There, statement of
victim (Exh. 34) was recorded and she was sent with the
Constable to Khilad and the victim came back to her family on
16.9.2002. The Constable got a statement-cum-receipt written
from the complainant vide Exh.26 of safe reaching of the victim.
Case of prosecution is that, thereafter the accused started calling
up at the place of P.W.5 Sitaram Garje. It transpired that, he
was quarreling with his family and on their plea, the victim along
with her parents went to Kada. There the accused misbehaved
with the mother of victim and they went to the Outpost and from
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there to Police Station, Ambhora, Tq. Ashti and filed F.I.R.
Exh.12 in the night between 16-17th September 2002 at 12.30 in
the night. The offence came to be registered under Sections 363
and 366-A of the IPC. At that time, the complainant did not
report regarding the victim getting raped in the course of
incident.
3. Investigation was taken up by A.P.I. Shaikh Rauf
(P.W.11). In statement of victim, it transpired that, accused had
also raped her. Sections were accordingly added. The
investigating officer, did spot panchanama (Exh.47) of the house
of complainant. He also recorded spot panchanama Exh.48 of
the hut where the victim had been kept. The undergarments of
the victim and accused were seized vide panchanama Exh.49.
The same were sent to Chemical Analyser and report (Exh.50)
was obtained. The police collected certified copy of transfer
certificate of the victim from the school, which was proved at
Exh.39 through teacher of the school P.W.10 Vijaykumar Pawar.
It was found that, victim was less than 16 years of age.
Statements of witnesses were recorded. It was found in the
investigation that the accused forcibly took the victim promising
her that he will bring about his marriage with his brother-in-law
and took her to the field and raped her. Charge sheet came to
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be filed and accused has been prosecuted.
4. Prosecution examined 11 witnesses. The defence of
the accused is of denial. According to him, he met the victim at
S.T. Bus Stand, Jamkhed and at that time, P.W.5 Sitaram Garje
was with her. He was trying to convince the victim and at that
time, P.W.8 Constable Kakade intervened and took her to police
station. The victim was then taken to the place of her parents.
Her parents asked him as to what about marriage of victim with
his brother-in-law. He stated that the proposal was cancelled
and the parents asked for compensation and when he refused,
false case has been filed.
5. Trial Court considered the oral and documentary
evidence as well as the defence and found the offence proved for
Sections mentioned above. Trial Court convicted the accused
and sentenced him to rigorous imprisonment and fine. Being
aggrieved, present appeal is filed.
6. The learned counsel for appellant-accused has taken
me through the oral and documentary evidence. According to
him, when the victim was allegedly forcibly taken, the father of
victim did not immediately file any report to police. It was only
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after the victim came back that in the concerned night the F.I.R.
was filed. Victim was with the complainant at the time of filing
F.I.R. at police station, but still in the F.I.R. allegations regarding
rape were not incorporated. According to him, it was surprising
that if on 14.9.2002 while going to Kada if the accused
misbehaved with the victim, the mother and daughter still came
back with him in the jeep after meeting the doctor. At the police
station at Jamkhed, statement of victim was recorded, in which
she did not make allegations against the accused. The statement
of P.W.5 Sitaram Garje shows that, the victim was going to Beed
in view of the marriage proposal. According to him, there was no
reason to disbelieve the evidence of P.W.5 in cross-examination
as he is witness of the State. It was argued that, Exh.39, the
copy of transfer certificate exhibited was not duly proved. The
accused had questioned the school register itself which was
brought and copy of which has been marked Exhibit 39-A.
According to the counsel, the victim was going with the accused
for the purpose of settling marriage and it was not kidnapping.
The doctor did not collect evidence of age and documents
regarding radiological evidence were not brought on record. The
transfer certificate from the school was of admission taken one
year before the incident. In the C.A. report, no semen or blood
was found on the clothes. Thus, according to the counsel for
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accused, he deserves to be acquitted.
7. Against this, the learned A.P.P. argued that there was
sufficient evidence of the victim and her parents to show that the
victim was forcibly taken away and the accused took opportunity
to rape her by taking her to the field and kept her in the hut at
Kada. The age of the victim was duly proved on the basis of
school register, which entries were before the incident took
place. The oral evidence of the victim that she was 16 years of
age is also not denied. her date of birth was noted even by the
doctor. According to him, the reasons recorded by trial Court to
convict the accused are correct and proper and the same may
not be interfered with.
8. I have gone through the evidence on record. The
evidence of the victim (P.W.3) and her parents P.W.1 and P.W.2.
In the examination-in-chief and the cross-examination certain
details have come on record which need reference. The evidence
of P.Ws.1 to 3 shows that the accused was known to the family.
Rather he was frequent visitor to their house. The accused is
resident of Kada and is married, having two children. Evidence
shows that, he used to frequently come to Khilad. In the cross-
examination of P.W.2, it was brought on record by the accused
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that, whenever he came to the house of P.W.5 Sitaram Garje, he
used to come to the house of the victim also. The further cross-
examination rather made it clear that he was almost a daily
visitor. Thus, the evidence shows that, the accused was very
well acquainted with P.W.5 Sitaram Garje, the Deputy Sarpanch
and almost daily was going to Khilad and after meeting P.W.5
Sitaram Garje, used to visit the house of victim. Presence of
P.W.5 Sitaram Garje is noticed on the day of incident of
14.9.2002 when victim was allegeldy kidnapped and it can also
be seen from the evidence that on 16.9.2002 also when the
accused wanted money, he called up P.W.5 Sitaram Garje and
this P.W.5 Sitaram Garje did go to the bus stand where the
victim and accused waited. Even after the victim was recovered
by the police at Jamkhed and given in custody of her parents, the
accused appears to have reacted by getting aggressive with his
own family at Kada, due to which the evidence shows that, calls
were made to P.W.5 Sitaram Garje to ensure that the victim and
her parents come to Kada. This Sitaram Garje appears to be
friend of accused and he was Deputy Sarpanch of village Khilad.
9. The evidence of P.Ws.1 to 3 further shows that, the
complainant, although he has 5 1/2 acre land at Khilad, besides
agriculture, is in the profession of Bhikshuki. It appears from the
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evidence of P.W.2, the mother of victim that, she runs an Adult
Education Camp at Khilad. The cross-examination of
complainant shows that, it is night school for illiterate persons
and it was aided by the Government. The said school was being
run by P.W.2. The cross-examiner of complainant brought on
record that, the said school was under supervision of Village
Panchayat, Khilad. As I have just mentioned, P.W.5 Sitaram
Garje's evidence shows him to be friend of the accused and was
Deputy Sarpanch of the village and at the same time, the mother
of victim happened to be running a school on Government aid,
which was under the Village Panchayat. These facts and others
in evidence make it clear as to how the accused who was friend
of Deputy Sarpanch P.W.5 Sitaram Garje and almost a daily
visitor to place of victim, had a dominating position.
10. In the cross-examination of the complainant, it was
suggested to him and brought on record that his brother-in-law
runs a pan shop at Kada. The evidence of victim and her mother
shows that, ,there was talk regarding settling of marriage of the
victim with the said brother-in-law of the accused. The mother
admitted (cross-examination para 6) that the proposal regarding
victim getting married with the said brother-in-law was made by
the brother-in-law and they had given their consent for the
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proposal. The mother deposed that, they had stated that the
marriage will be seen after Diwali. P.W.2 admitted that, she had
a talk with the wife of accused about the proposal of brother-in-
law of the accused. She stated that, at that time they had
financial problem for marriage and had talked about it with the
accused. These facts show that there was a proposal regarding
marriage of victim with the brother-in-law of accused and it also
appears that, the complainant and his family were not rich
people as such.
11. The further facts which emerge from the evidence of
P.Ws.1 to 3 are that, about a month before the incident dated
14.9.2002 took place, the victim had consumed sleeping tablets.
Her cross-examination brought on record that this happened due
to her quarrel with her brother in the house and there was no
special reason for the quarrel. What appears from the record is
that, at that time, the accused had got the victim admitted at the
Gandhi Hospital. The evidence of the mother shows that, when
the victim consumed the sleeping tablets, they had taken the
daughter to the Gandhi Hospital with the help of this accused. As
per P.W.2, the mother, they had waited at the hospital for 3
days. After the victim was discharged from the hospital, it
happened that the wife of accused delivered a child and the
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accused, who had helped the family of victim when she had
consumed sleeping tablets, took the opportunity to ask the family
to take the victim to his house so as to help his wife. Evidence of
P.Ws.2 and 3 shows that, at such time, for about 15 days, the
victim stayed at the house of the accused to help his wife.
Evidence of P.W.2 is that, the victim was taken to help the wife
with intention that the accused will bring about the marriage of
victim with his brother-in-law Hari. Thus, it appears that, the
family of victim had hope that the victim would get married to
the brother-in-law of accused and thus, there was intention to
help the family of accused in time of need.
12. Regarding the facts discussed above, there is hardly
or no dispute if the evidence of P.Ws.1 to 3 are perused. The
facts, however, are material to appreciate the evidence of P.Ws.1
to 3.
13. The evidence of P.Ws.1 to 3 shows that, on
14.9.2002, the accused had gone to the house of victim at about
3.30 - 4.00 p.m. It appears that, P.W.2 was not well and the
accused offered to take her to the hospital at Kada in the jeep
which he had brought while the complainant stayed back at
home as it was on holiday and other younger children were
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there. P.Ws.2 and 3 accompanied the accused in the jeep.
Another person who had come along with accused, namely
Kalyan, stayed back with the complainant when these people
went to the hospital. The evidence of P.Ws.2 and 3 shows that,
on the way to the hospital, P.Ws. 2 and 3 were sitting with the
accused in the middle seat of the said jeep. The victim was
sitting in the middle and accused was on her side. The evidence
of P.Ws.2 and 3 shows that, at such time, the accused took
opportunity to behave indecently with the victim by kissing her
and pressing her breasts. The evidence of P.Ws. 2 and 3 shows
that, the mother objected to such behaviour, telling that the
victim was like niece of accused and he should not behave like
this. The evidence of P.W.2 shows that, the accused at that time
started saying that he wanted to marry with the victim. The
evidence of P.W.3 shows that even she had told the accused that
he was like her maternal uncle and why he was behaving
indecently. The evidence of these two ladies shows that, at the
hospital, while the victim sat in the jeep, the mother went inside
to the Doctor and coming out, they came back in the same jeep.
Learned counsel for the accused expressed surprise
on this evidence, claiming that if the accused had misbehaved
with the victim while going to the hospital, it is unlikely that they
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should have come back with him in the same jeep. However, the
evidence of the victim shows in the cross-examination that, when
they reached Kada, she did quarrel with the accused at Gandhi
Hospital. The evidence of P.W.2 in the cross-examination (para
7) shows that, she did not feel like coming back in the same jeep
while returning. She volunteered that, there was no other
vehicle to go back to their village and they were compelled to go
in the jeep of the accused. The suggestion that S.T. bus and
private vehicles were available, was denied by P.W.2. Thus,
what appears is that, P.Ws.2 and 3 once they were on their way
from Khilad to Kada, which is about 13 Kms. away, when the
accused started misbehaving with the victim, objected to the
misconduct, however, due to circumstances, had to come back in
the same vehicle. The evidence shows that, these people
returned at about 5.30 - 5.45 p.m. to Khilad and P.W.2
complained to her husband regarding the behaviour. Evidence of
complainant P.W.1 is that, at such time, P.W.2 was crying and
she was frightened.
14. The evidence of P.Ws.1 to 3 shows that, on
14.9.2002, after such returning from Kada at about 5.45 p.m.,
the accused started asserting with the parents of the victim that
he would take her away. P.W.1 complainant has deposed that
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the accused started saying that he will take away his daughter
and that he was threatening that he will kill them or will kill
himself at their door. His evidence is that, the accused
thereafter forcibly took his daughter in his jeep at about 8.30
p.m. The accused was telling that he intended to marry with the
victim and so saying, he kidnapped her. The complainant
deposed that, he was under fear of the accused and afterwards
was making only enquiry regarding his daughter on telephone.
The cross-examination of complainant shows that, when his wife
narrated about the incident in the course of travelling in jeep, he
got angry. The accused had come at that time inside the house
along with P.W.2. His cross-examination shows that, between
the time of 5.45 p.m. to 8.30 p.m., when the accused took away
the victim, no villager came to their house. No doubt he
admitted that if call is given loudly, it can be heard in adjoining
house. However, if the spot panchanama Exh.47 proved by
P.W.11 A.P.I. Shaikh Rauf is perused, it can be seen that,
surrounding the house of complainant there was no immediate
resident. Even towards south, there was some dilapidated Wada
and thereafter some resident Namdeo. The cross-examination of
P.W.2 shows that, when the accused started asserting that he
wanted to take the victim, they had called for P.W.5 Sitaram
Garje to their house. In the cross-examination, she deposed
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that, they did inform Sitaram Garje about the said incident. She
deposed that, she asked said Kalyan and P.W.5 Sitaram Garje to
drive away the accused, but the accused was making noise. The
said witness stated that, although accused was making noise, no
neighbourer gathered. The mother P.W.2 has deposed that, the
accused caught-hold of the hand of the victim and was forcibly
taking her and victim was crying at that time. The complainant
did not depose, but the evidence of this mother of victim shows
that, she and her husband made efforts to get the victim
released from the hands of accused. The evidence of the victim
herself also is that, in the evening of 14.9.2002, the accused
started threatening her parents that he will take away the victim
and if he is obstructed, he will commit their murder. She
deposed that, because of such fear, she went along with the
accused. Regarding such evidence of the victim, she was asked
in the cross-examination and she deposed (in para 13) that there
was uproar and commotion at her house when accused said that
he is going away. The cross-examination brought on record that
she resisted accused when he was taking her and that she had
even shouted for help, but nobody came to help her. Her
evidence also shows that, P.W.5 Sitaram Garje was there.
According to her, P.W.5 Sitaram Garje did not resist the
accused at that time. When Deputy Sarpanch did not help,
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helplessness of P.W.1 complainant is understandable where he
deposed that after accused took away victim, due to fear of
accused they did not come out of house but were only making
enquiry of the daughter on telephone. Thus, there appears
delay in going to the police also. Dominating position of
accused; threats; lack of help from even the Deputy
Sarpanch, hope of marriage of victim - various factors appear
as cause for delay.
15. The evidence of these three witnesses- P.Ws.1 to 3
shows that, the accused, who was in a position to assert
himself due to acquaintance, and who was friend of P.W.5
Sitaram Garje, appears to have become obsessed with the
victim who had stayed at his house few days before, to assist
his wife. He forcibly took away the victim in spite of
opposition from the parents of the victim herself. The
accused thus kidnapped the victim.
16. The evidence of the victim then shows that, the
accused, after taking her forcibly from the place of her
parents, took her to his field at Kada. There was a hut. He
took her there and her evidence is that, he removed her
underwear and started pressing her breast and after removing
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his clothes, (her evidence is that), he raped her. Her
evidence is that, such act was committed twice in that night of
14.9.2002. She has deposed that, such act was again
committed with her on the next day i.e. 15.9.2002. She
deposed that, she was shouting, but the accused was
threatening that if she shouts, he will commit her murder and
with such, threat, he committed rape on her. In her cross-
examination (Para 14), it has come on record that, she tried
to rescue herself from the cluthces of the accused and
resisted and that she was pushing accused aside and had even
tried to pinch and scratch the accused. Thus, her evidence
shows that, she did try to resist. The evidence shows that,
she tried to pinch and scratch the accused. May be she did not
succeed. The cross-examiner asked the victim and she stated
that, there are farm houses in the field of accused and people
reside there. She deposed that, she did not know if there are
houses around the field of accused. If the spot panchanama
Exh.48 proved by A.P.I. P.W.11 Shaikh Rauf is seen, it
contains a sketch also and it can be seen from the same that,
the said hut is on the bandh of the field of accused at village
Kada. In fact, the accused has a house with Gotha at the
other end of the field. The spot panchanama does not show
any immediate nearby resident. Thus, the victim was at an
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isolated place in the night of 14.9.2002 and the day of
15.9.2002. The cross-examination of the victim shows (para
14) that the victim did try to contact people, but the accused
did not allow her to talk.
17. The evidence of the victim shows that, on
16.9.2002, the accused took her along to Jamkhed. The
evidence of the victim is that, the accused did not have money
and so he called P.W.5 Sitaram Garje. The evidence of P.W.5
Sitaram Garje is that, on 16.9.2002, he received telephonic
message from accused that he was at Jamkhed taking
daughter of the complainant. Of course, this P.W.5 Sitaram
Garje has tried to say that the accused told him that he was
taking the victim to show to his sister at Beed but that he had
no money. P.W.5 Sitaram Garje deposed that, he informed
about said telephonic message to the parents of the victim.
He deposed that, he asked the accused to wait there and he
will come there. He accordingly, went to the S.T. Stand and
met the accused. In the examination-in-chief, this P.W.5
Sitaram Garje deposed that, before going to the S.T. Stand,
he was told by the parents of the victim that their daughter
had been kidnapped. According to P.W.5 Sitaram Garje, at
the S.T. Stand, he was making enquiry with the victim that if
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her parents are accompanying her, then only she should go
otherwise she should return to the house. This evidence of
P.W.5, who apparently is friend of the accused, shows that, at
that point of time, the victim was under the impression that
she would be getting married to the brother-in-law of the
accused. Otherwise, there was no need for this P.W.5 to try
to persuade the victim not to go further unless she is
accompanied by her parents. The evidence of P.W.5 as well
as the victim and P.W.8 Police Constable Kakade shows that
this constable got attracted to the accused and the victim and
took them to police station out of suspicion. This incident
itself belies the defence that victim was being taken to show
for marriage purposes. It shows that, behaviour of accused
with victim was such that, Constable did not believe them and
took them to Police Station. The evidence shows that, at such
time, the police at Police Station, Jamkhed got a statement
recorded of the victim. The same is at Exh.34. In such
statement, she gave details about her family and stated that,
on 15.9.2002 in the evening she had come from Khilad to
Kada along with the accused and had stayed there in the night
of 15.9.2002 and in the morning of 16.9.2002, they had come
to Jamkhed and that they wanted to go to Beed at the place of
Sandhya Sharadrao Ghayal, who were waiting for P.W.5
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Sitaram Garje from 6.30 a.m. to 1.30 p.m. and that the
constable on duty made enquiries from them and made a
phone call at their house. She then stated that, she now
wanted to go back to her parents at Khilad and did not want
to make any complaint against anybody.
The accused has tried to show that, this Exh.34
shows that, there was nothing wrong going on, however, it is
difficult to accept that a young girl is being sent for marriage
purpose with an outsider and the parents are not
accompanying. This is difficult to accept. The evidence of the
victim shows that, she was a young girl of 16 years of age and
admittedly there was earlier a talk about the marriage with
the brother-in-law. The evidence is that, the brother-in-law
had a pan shop at Kada. However, the victim was taken away
from Kada to Jamkhed for reason which is not clear. At
Jamkhed, when the police caught them, the accused was with
the victim and his friend P.W.5 Sitaram Garje also appears to
have reached. The victim was clearly under the pressure and
threat regarding which she has constantly deposed. In her
cross-examination when she was confronted with this Exh.34,
she stated that, she had made false statement to police as
she was under pressure. Looking to the circumstances in
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which this minor girl was caught, it was possible to pressurise
her so that she does not tell the truth when suddenly the
Police Constable picked them up at the Jamkhed Bus Stand.
18. It has come in the evidence then that, P.W.8
Constable Kakade brought the victim back to the complainant.
The evidence of P.Ws.1 and 2 shows that, the victim was
brought back at Khilad by the Constable around 4.30 p.m. of
16.9.2002.
It appears that, the Constable got a statement
written from the complainant which is at Exh.26. In the
statement, it is recorded that, on 14.9.2002, in the night at
about 9.00 p.m., the victim had gone along with the accused
and "had been found" on 16.9.2002 at Jamkhed S.T. Stand
and on that day (i.e. 16.9.2002), the constable Kakade from
Jamkhed Police Station got her back and given in their
possession and regarding such giving back in possession,
there is no complaint.
19. The learned counsel for the accused has argued
that, even when the Constable thus brought the victim back,
the complainant at that time did not make any allegation of
kidnapping. It has to be understood that, P.W.8 Dadsaheb
Kakde was only a Constable who was given the duty to reach
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back the victim which he did and he got a statement recorded
of bare facts. It needs to be noted that, although in Exh.34
the victim under pressure appears to have stated that she had
left Khilad only on 15.9.2002, in Exh.26, when she was taken
back to her father, he did record that, the accused and the
victim had gone on 14.9.2002 and had been found on
16.9.2002. The tone of Exh.26 clearly is that, the victim had
been taken away by the accused although it was mentioned
that the victim had gone with the accused.
20. The evidence of P.Ws.1 to 3 and P.W.5 Sitaram
Garje shows that, after the intervention of police at Jamkhed,
when the victim was taken away by the police and given back
to her father, the accused vent his anger on his family. The
evidence of P.W.2, the mother of victim shows that, after the
victim was handed over to them, the accused started
telephoning at the house of P.W.5 Sitaram Garje and was
sending message that the victim should be called on the
telephone and that he wanted to talk with her. As per P.W.2,
they asked P.W.5 Sitaram Garje as to why the accused was
making calls and it was then revealed that, the accused at his
own house was quarreling with his wife. P.W.2 has deposed
that, thereafter she along with P.W.5 Sitaram Garje and her
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husband as well as victim went to the house of accused at
Kada. According to her, seeing them the accused started
abusing them in filthy language and he slapped P.W.2. In the
cross-examination of P.W.2 (in para 10), the cross-examiner
brought details that when they went to the house of accused
at Kada, his family members were there. She stated that, she
did not feel like going to the house of accused, bus still they
had gone. The evidence of the victim herself (P.W.3) also
shows that, when she came back to her parents on 16.9.2002,
the accused made phone calls to the place of P.W.5 Sitaram
Garje, claiming that he wanted to talk with her. He called 2-3
times. Her evidence is that, there was telephone of wife of
accused that he was drunk and was making noise and so they
should come to her house. According to her, thereafter she
along with her parents went to the house of accused at Kada
and her evidence is that, seeing them, the accused started
making noise and even assaulted her mother. Regarding this
part of the incident, P.W.5 Sitaram Garje, friend as he is of
the accused, has tried to slightly change the version to depose
that, after the victim was given back to the custody of her
parents, after half an hour, the accused made phone call. He
claimed that, the same was received by the victim. According
to him, at that time, the complainant, his wife (P.W.2) and he
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were convincing the victim and the victim was telling the
accused to wait there and not to be afraid and that she will
come. P.W.5 deposed that, the victim was not in a position to
listen and so they took her to the house of accused and when
they reached there, there was quarrel between P.W.2 and
accused, regarding which the mother made the complaint to
Outpost. In the cross-examination of P.W.5, the accused
asked him and he stated that, the girl was to be taken to Beed
for marriage proposal and that the sister of accused was at
Beed and that the marriage proposal was for brother-in-law of
accused. The suggestion of the counsel for accused was
conveniently accepted by this P.W.5 Sitaram Garje that the
victim was sent by her parents for the said marriage proposal.
The fact that this P.W.5 wanted to support the accused is
apparent from the cross-examination which shows that,
although in the examination-in-chief he stated that before he
went to the Bus Stand, the parents of victim had told that she
was kidnapped, in the cross-examination, he accepted that
this he had stated inadvertently. The evidence of this P.W.5
trying to twist the reasons why in the evening of 16.9.2002
the victim and her parents were required to go to the place of
accused needs to be ignored. There was no reason for the
accused to make phone call to place of P.W.5 Sitaram Garje
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wanting to speak with the victim if he did not have any
extraordinary interest in her. The accused is taking defence
that, he had cancelled the proposal of marriage between the
victim and his brother-in-law. If that was so, and if police had
taken her away from him, there was no reason for him to vent
anger on his own family and make repeated calls so as to get
in touch with the victim. It shows that, P.W.5 Sitaram Garje,
who was Deputy Sarpanch, having got caught as involved due
to incident at Bus Stand, Jamkhed, appears to have tried to
twist the facts to suit the accused who was his friend. The
learned A.P.P. in the trial Court appears to have been aware
of the leaning of PW.5 Sitaram Garje towards the accused as
in the cross-examination of earlier witness P.W.4 Maruti and
even subsequent witness P.W.6 Navnath, the A.P.P. made
suggestions to those hostile witnesses that they were
speaking lie at the instance of this P.W.5 Sitaram Garje.
A.P.P. was aware that this witness has bend of mind in favour
of the accused, but still took the risk of examining him and did
bring on record whatever facts possible. He took the risk as
the presence of this P.W.5 Sitaram Garje was constantly there
in various parts of the incident. The evidence needs to be
properly read and appreciated and it shows that, the accused
had got obsessed with the victim and reacted angrily at his
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own house when police forcibly took away the victim. It could
not have been reaction of a person who piously wanted the
victim to get married with his brother-in-law. It shows that
he had unreasonable interest in the victim. In the
circumstances, it shows that, there is ring of truth to the
evidence of P.Ws.1 to 3 that the victim was forcibly kidnapped
by the accused with the object of violating her.
21.
The evidence of P.Ws.1 to 3 shows that, after the
incident in the evening of 16.9.2002 at the house of accused,
they went to the police station at Ambhora and filed the F.I.R.
in the night between 16-17th September 2002. The F.I.R.
Exh.12 of course limited itself to making complaint that on
14.9.2002 the accused had misbehaved with the victim when
they were travelling from Khilad to Kada in the jeep and that,
in the evening the accused had forcibly taken away the victim
in jeep and that he had kidnapped her promising her that she
would be getting married and that she had been taken away
to establish illicit relations. There is cross-examination and
the learned counsel for the accused has tried to argue that,
when such F.I.R. was filed, the victim was with the
complainant P.W.1, but in the F.I.R. no allegations of rape
were made. The victim has no doubt stated in the evidence
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that, before they went to the police station, she had told
complete details of the incident to her parents, however, in
Exh.12, the complainant does not appear to have incorporated
details about she being raped. There can be various reasons
why father may try to suppress such fact of rape even when
due to circumstances where the accused is repeatedly
asserting himself on them, he is forced to register F.I.R. that
his daughter was kidnapped by the accused. It appears that,
when the police took up the investigation, the victim did tell
the police regarding the fact that she was raped at the field.
The witnesses were cross-examined. There is not a single
contradiction or omission proved by the accused. No such
contradictions or omissions were brought on record from the
cross-examination of A.P.I. P.W.11, who had recorded the
statements.
22. The evidence of P.W.9 Dr. Bharti shows that, on
17.9.2002 at about 3.30 p.m. the victim was brought to her
and she examined the victim. In her examination, she found
that the victim had an abrasion on left buttock. The hymen
was not intact. Her evidence is that, no external injury was
found on her body except one noted on vulva. Her
conclusions were that the victim was habituated to sexual
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intercourse. When the victim was taken to this doctor, she
stated to the doctor, and the doctor recorded in medical
certificate Exh.37 that the date of birth of the victim is
14.11.1986.
23. Then there is evidence of P.W.10 Vijaykumar
Pawar. He is Assistant teacher from the school where the
victim had studied. He had brought the school admission
register. He deposed that, T.C. has been issued to the victim.
From the register, he deposed that the victim had been
admitted to their school on 6.6.2010 in 10th Standard. Her
date of birth recorded was 14.11.1986. The entry was at
Sr.No.418 and T.C. No.184 had been issued. It appears that,
the T.C. had been issued on 14.6.2002. Thus, the admission
in the said school as well as the T.C. taken were all before the
present incident dated 14.9.2002. The witness proved the
document Exh.39. The evidence of this witness shows that,
the T.C. which had been issued, had been signed by this
witness as Class Teacher. Exh.39 is photo copy of the
transfer certificate which had been issued. It shows that, it
was marked as true copy by the Principal. The evidence of
P.W.11 A.P.I. Shaikh Rauf shows that, he had collected this
document from the school and he has also endorsed this
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document when he took it from the school by putting his
signature on the lower left side. In the cross-examination of
this P.W.10, he was asked and stated that, xerox copy is not
issued by the school. This does not mean that, photo copy
cannot be taken to the Principal and cannot be got
authenticated. The evidence of P.W.10 shows that, this
document Exh.39 was photo copy of the school leaving
certificate and had been marked true copy by the Principal.
Apart from this, the evidence proved the contents also from
the school register which he had brought. It appears from the
evidence of P.W.10 that the Court got a photo copy made
from the witness of the school register. The same appears to
have been marked as Exh.39-A. The cross-examiner made
enquiries from this witness regarding why particular columns
in the school register were not filled up etc. The fact remains
that the school register was brought and on the basis of the
school register photo copy was made and the Court marked it
Exh.39-A. Even that has shown the date of birth of the victim
recorded in the school as 14.11.1986. It was suggested to
the witness P.W.10 that the school admission register brought
was not original record. The witness denied the suggestion.
There is no reason to show that the school register was
required to be doubted. It appears to have been maintained
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in ordinary course as can be seen from the evidence of the
witness. It has been argued that, evidence of admission in
the first school should have been brought. However, even if
the State brought the evidence of P.W.10 with regard to the
admission in 10th Standard in that particular school at
Hanuman Vidyalaya, Pangri, it was an act which was done in
ordinary course and it was before the incident took place.
There is no reason to doubt such act committed in ordinary
and official course of business. Apart from this, the evidence
of victim herself who gave her age as 16 years, is not denied.
Even P.W.1 has deposed that the victim was 16 years old at
the time of incident. There is no denial of such evidence and
the evidence on this count is not shattered. The incident
occurred on 14.9.2002. At that time, the victim was yet not
16 years of age. This being so, the consent, if any, of the
victim would be immaterial. Of course, the evidence is that,
the victim was forcibly taken and forcibly ravished. The
evidence where, it appears that, the victim was allured into
believing that she would in fact be married with the brother-
in-law of the accused, cannot be read in favour of the
accused, looking to her minor age.
24. I have gone through the judgment of the trial
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Court. The trial Court properly appreciated the facts and
evidence and has found the accused guilty. The trial Court
found that the accused had threatened the parents of the
victim with dire consequences and had also threatened the
victim while committing rape and while taking her, she was
under threat of injury to her person and her parents. The trial
Court found that, the victim had been forcibly taken from the
lawful guardianship and had been raped. I find no reason to
disagree with the trial Court.
25. There is no substance in the criminal appeal. The
criminal appeal is dismissed. Bail bonds of the accused are
cancelled. Trial Court to ensure execution of sentence.
(A.I.S. CHEEMA, J.)
