Bombay High Court
Anil S/O Vasanta Dhoke vs The State Of ... on 21 July, 2017
Bench: Z.A. Haq
Judgment 1 apeal90.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 90 OF 2002
Anil S/o. Vasanta Dhoke,
Aged about 18 years, Occu.: Student,
Resident of Kharasi, Post : Palandur,
Tq. Lakhani, Distt. Bhandara.
.... APPELLANT.
// VERSUS //
The State of Maharashtra,
through P.S.O. Palandur,
Distt. Bhandara.
.... RESPONDENT
.
___________________________________________________________________
Ms F.N.Haidari, Adv. H/f. Shri R.M.Daga, Advocate for Appellant.
Shri T.A.Mirza, A.P.P. for Respondent.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JULY 21, 2017.
ORAL JUDGMENT :
1. Heard learned advocate for the appellant and the learned
Additional Public Prosecutor for the respondent.
2. The appellant/accused has filed this appeal to challenge the
judgment passed by the Sessions Court by which he is convicted for the
offence punishable under Section 376 read with Section 511 of the Indian
Penal Code and is sentenced to undergo rigorous imprisonment for five years
Judgment 2 apeal90.02.odt
and pay fine of Rs.Three Thousand and in default of payment of fine to
undergo further rigorous imprisonment for three months.
3. The case of the prosecution is:-
Rajkanya wife of Ramesh Gajbhiye (mother of victim aged
about 5 years) lodged report on 16 th February, 1998 at about 8.20 p.m. that
the accused told the victim that he will give her pencil, lured her to his house
and attempted to commit crime. On the report of Rajkanya, F.I.R. came to
be registered, the investigation was undertaken, accused was arrested and
after undertaking the formalities, charge-sheet came to be filed.
Charges were framed, read-over and explained to the accused,
the accused did not accept the guilt and claimed to be tried and therefore,
trial was conducted. On conclusion of the trial the Sessions Court concluded
that the accused is liable to be convicted and imposed the sentence as per the
order.
4. Ms F.N.Haidari, learned advocate for the appellant/ accused
has pointed out that the first information report did not refer to the name of
the accused. It is further submitted that in the report lodged by her, the
complainant has specifically stated as follows:
Judgment 3 apeal90.02.odt
".... My daughter Sushma told me that one boy gave her a
pencil and took her inside his house. Then, he sat on her
person and therefore blood come out of her vagiana.
Therefore I saw her underware and came to know that she
was raped. There were blood stains and stains."
It is pointed out that even in paragraph 2 of her examination-
in-chief the complainant-Rajkanya stated as follows:
"2. On the day of incident, I went on field. I came back
from field at about 3.30 P.M. My daughter was in the
house. I have seen the blood stain on her clothes. I was
taken by my daughter at the house of said boy. Accused
was identified by my daughter on the road. My daughter
told that accused told her that he will give her pencil and
taken her in side of the house. The accused sat on her
body. My daughter told me that accused inserted his penis
in her vigina. ...."
It is argued that the claim made by the complainant is not
supported by the evidence of Dr. Vandana (P.W.4). The relevant evidence of
Dr. Vandana (P.W.4) is as follows :
"1. She was a small girl, conscious and well oriented,
abut place and time and speak and understand Marathi
language, Her clothing were blood stained. There was no
injury marks over her body, and the patient was no
matured enough to allow the gynaecalogical examination
in details, on gentle examination, there were no blood and
other stains over the private part, There was no evidence of
any injury hymen appeared to be intact. There was no
tenderness or induration. I issued a certificate. It is at
Ex.17. It bears my signature. I answered the queries of
police."
6. The learned A.P.P. has not been able to point out any other
evidence which supports the claim of the complainant.
Judgment 4 apeal90.02.odt
7. In the above facts, it cannot be said that the prosecution has
proved its case beyond reasonable doubt. The conviction of the appellant/
accused is, therefore, unsustainable. Hence, in my view, the learned Ad-hoc
Additional Sessions Judge has committed an error in convicting the
appellant/ accused.
8. Hence, the following order:
i) The impugned judgment is set aside.
ii) The conviction of the appellant / accused for the offence
punishable under Section 376 read with Section 511 of the
Indian Penal Code is quashed.
iii) Giving benefit of doubt the appellant/accused is acquitted of
the charge for the offence punishable under Section 376 read
with Section 511 of the Indian Penal Code.
iv) As the appellant /accused is acquitted giving benefit of doubt
he is not entitled for refund of the amount of fine deposited by
him and which is directed to be paid to the victim.
v) The Bail bonds executed by the appellant shall stand cancelled.
Judgment 5 apeal90.02.odt
vi) Muddemal property be dealt with according to law after the
period of appeal is over.
The appeal is allowed in the above terms.
JUDGE
RRaut..
