Bombay High Court
Kailash Bhimrao Khandare vs State Of Mah.Thr.Pso Akola on 5 July, 2017
Bench: Z.A. Haq
1 appeal23.06.J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 23 OF 2006
Kailash S/o Bhimrao Khandare.
Aged about 22 years,
R/o-Sirsa, Plot : Murtizapur.
District - Akola. ...APPELLANT.
- V E R S U S -
State of Maharashtra,
Through : PSO Murtizapur,
District - Akola. ...RESPONDENT.
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Shri. N. H. Samundre, Advocate for the Appellant.
Shri. N. R. Patil, A. P. P. for the Respondent/State.
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CORAM : Z.A.HAQ, J.
DATED : 5 th
JULY, 2017.
ORAL JUDGMENT.
As there was no appearance on behalf of the appellant, this
Court passed order on 27th June, 2016 directing issuance of bailable
warrant to secure the presence of the appellant before this Court. Though
bailable warrant was executed, none appeared for the appellant and
therefore, by order passed on 11 th July, 2016, this Court directed issuance
of non-bailable warrant to secure the presence of the appellant. The non-
bailable warrant was executed and the appellant was produced before
this Court on 8th August, 2016. This Court cancelled the bail bonds of the
appellant and sent him to Magisterial custody remand for 15 days and
directed that he be produced before the concerned Sessions Court which
2 appeal23.06.J.
convicted him and thereafter, the Sessions Court to pass appropriate
orders regarding the custody of the appellant.
When the appeal was listed for hearing on 16 th August, 2016,
the advocate appearing for the appellant was not present and therefore,
this Court directed issuance of notice to the appellant seeking his
willingness to be represented by an advocate from free Legal Aid Scheme.
On 31st March, 2017 this Court recorded that the appellant had submitted
an application dated 27th October, 2016 requesting that an advocate from
Legal Aid be appointed to represent the appellant. Shri. S. K. Sable,
Advocate was appointed to represent the appellant, however, he was not
present when the matters was called out on 5 th June, 2017 and therefore,
the appointment of Shri. S. K. Sable, Advocate was cancelled by an order
passed on 5th June, 2017 and Shri. N. H. Samundre, Advocate came to be
appointed to represent the appellant.
02] Heard Shri. N. H. Samundre, Advocate for the appellant and
Shri. N. R. Patil, A. P. P. for the respondent/State.
03] The appellant has challenged the judgment passed by the
Sessions Court by which the appellant is convicted for the offence
punishable under Section 376 of the Indian Penal Code and Section
506(II) of the Indian Penal Code and is sentenced to undergo Rigorous
Imprisonment for 7 years and 6 months respectively and to pay a fine as
per the order passed by the Sessions Court.
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04] The case of the prosecution is :
On 03.01.2003 at about 6.30 p. m., the mother of prosecutrix
(aged about 14 years) had gone out for work and father of the prosecutrix
had also gone for work and the prosecutrix was alone and was required to
go out to answer nature's call, when she was returning the accused went
to her, gagged her mouth, showed a knife and forcibly took her to a field
and committed the crime. According to the prosecution, when the
prosecutrix was returning home, she met her step-father and she narrated
the incident to him, both of them went to the spot where mother of
prosecutrix was working and then the prosecutrix and her parents went to
police station and lodged report against the accused. The First
Information Report was registered, the investigation was undertaken and
after completing the formalities, charge-sheet was filed before the Judicial
Magistrate showing the accused absconding. The accused came to be
arrested subsequently and his blood samples were taken and some
additional investigation was undertaken and supplementary charge-sheet
was filed and as the offence for which charge-sheet came to be filed is
triable by the Court of Sessions, the case was committed to the Sessions
Court. The charges were framed against the accused, read over and
explained to him in vernacular, the accused did not accept the guilt and
therefore, trial was conducted. After conducting the trial, the Sessions
Court recorded that the prosecution has proved that the accused has
committed rape on the prosecutrix and has committed offence of criminal
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intimidation by giving threat to the prosecutrix. The Sessions Court
accordingly convicted the accused and sentenced him as per the order.
05] The learned advocate for the appellant has submitted that the
case of prosecution suffers from flaws as the mother of prosecutrix to
whom the prosecutrix had narrated the incident is not examined. It is
argued that the evidence of Dr. Rashmi Vikram Sharma (PW-2) and the
report of medical examination of prosecutrix (Exh.26) and Chemical
Analyzer's reports (Exh.16, Exh.17 and Exh.17-A) do not support the case
of the prosecution. It is argued that the Sessions Court has given undue
weightage to the injuries on the person of prosecutrix overlooking the
opinion given by Dr. Rashmi Vikram Sharma that the injuries noticed on
the person of prosecutrix are possible while doing labour work. It is
argued that the claim of the prosecutrix that the accused committed the
crime on the point of knife and removed the clothes of prosecutrix and
himself, cannot be accepted, as if the accused was holding knife in one
hand as alleged, it is not possible that he could have removed the clothes
of himself and the prosecutrix by the other hand.
It is prayed that the impugned judgment be set aside and the
appellant/accused be acquitted.
06] The learned A.P.P. has submitted that the Sessions Court has
dealt with the evidence on record exhaustively and has rightly
appreciated it.
5 appeal23.06.J.
07] With the assistance of the learned advocate for the appellant
and the learned A. P. P., I have examined the record and have gone
through the judgment given by the Sessions Court. The report of
Medical Officer (Exh.26) shows that the prosecutrix had four injuries on
her person when she was examined on 4th January, 2003 at about 00.15
hour i.e. at midnight. The opinion of Dr. Rashmi Vikram Sharma, who
examined the prosecutrix showed that the probable age of injuries was
within 12 hours. Dr. Rashmi Sharma has been examined and the accused
has not been able to bring anything on record in her cross-examination
on the basis of which her testimony can be doubted.
08] In paragraph No.6 of the judgment, the Sessions Court has
examined the evidence of prosecutrix and then the evidence of Syed
Jabir Syed Wahab-PW-4 (step-father of the prosecutrix) is considered in
paragraph No.7. Then in paragraph No.8, the evidence of Dr. Rashmi
Vikram Sharma (PW-2) is considered and then after verifying the
veracity of the evidence of the witnesses, the Sessions Court has found
that the evidence of prosecutrix is reliable and trustworthy and is
supported by the other evidence on record.
I do not find that the learned Sessions Judge has failed to
take into consideration any relevant material on record or that there is
any perversity in appreciation of the evidence. I see no reason to
interfere with the judgment. The appeal is dismissed. The muddemal
property be dealt with according to law after the period of appeal.
6 appeal23.06.J.
09] The fees of Shri. N. H. Samundre Advocate, who is
appointed to represent the appellant, is quantified at Rs.5,000/- (Rs.
Five Thousand). However, Shri. N. H. Samundre, Advocate has
submitted that this amount be deposited with the Legal Aid Welfare
Fund. The office to act accordingly.
JUDGE
PBP
