Dhiraj S/O Pruthwiraj Jambhulkar ... vs State Of Maharashtra Through ...
2017 Latest Caselaw 5005 Bom

                                                   1                                                  apeal551.14.J

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR

                        CRIMINAL APPEAL NO. 551 OF 2014

       Dhiraj S/o Pruthwiraj Jambhulkar,
       Aged about 20 years, Occup-Labour.
       R/o-Block No.42, Mahada Colony,
       Nari Road, Nagpur.
       (At present Central Jail, Nagpur)                                       ...APPELLANT.

                        - V E R S U S -

       The State of Maharashtra,
       Through PSO, P. S. Yashodhara Nagar,
       Nagpur.                                                                 ...RESPONDENT.

       - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
       Shri S. N. Gaikwad, Advocate for the Appellant. 
       Shri N. R. Patil, A. P .P. for the Respondent/State.
       - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

                                         CORAM :  Z.A.HAQ, J.

DATED : 25 th

JULY, 2017.

ORAL JUDGMENT.

The advocates,who represented the appellant,was not present

when the matter was called out on 27 th March, 2017, 5th April, 2017 and

3rd May, 2017. On 19th July, 2017, Shri L. B. Thawkar, Advocate who

represented the appellant submitted that the appellant/accused wants to

undergo sentence, however, on being asked whether he is in position to

make statement that appellant/accused wants to withdraw the appeal, he

could not make such statement. As the advocates who represented the

appellant were not interested to argue the appeal, Shri S. N. Gaikwad,

Advocate was appointed to represent the appellant.

                                         2                                                  apeal551.14.J

   02]            Heard   Shri   S.   N.   Gaikwad,   Advocate   for   the   appellant   and

   Shri N. R. Patil, learned A. P. P. for the State.



   03]            The accused has filed this appeal to challenge the judgment

passed by the Sessions Court convicting him of the offence punishable

under Section 376(2)(f) of the Indian Penal Code and sentencing him to

undergo Rigorous Imprisonment for 7 years and to pay fine of Rs.2,000/-

and in default of payment of fine to undergo further Rigorous

Imprisonment for 3 months.

04] The case of the prosecution is :

The accused had been residing in the locality where Sangeeta

Rajesh Ramteke (maternal grand mother of the victim) resided and the

victim had been visiting her maternal grand mother and therefore, the

victim was knowing the accused. On 11 th December, 2011 the

complainant Nilima (mother of the victim), father of the victim and the

victim had gone to attend a marriage in the area where maternal grand

mother of the victim resided. The accused had also attended that

marriage. The accused sought permission of father of the victim to take

victim for eating ice-cream, Divyani and Dolly (friends of the victim) also

accompanied the accused and the victim, the accused bought balloons

and gave them to Divyani and Dolly and they returned to the Lawn where

function was going on and accused took the victim behind a hut erected

at the backside of the Lawn and committed the crime. The mother and

3 apeal551.14.J

father of the victim could not locate the victim and therefore, they

enquired from Divyani about the victim, she told that the victim was with

accused. Then Gudiya, elder sister of Dolly, called accused on his

cellphone and mother of the victim talked to the accused and accused told

her that the victim was with him and they were coming back. After

sometime, the victim came to the Lawn and then mother and father of the

victim returned to their home alongwith the victim. When the victim

changed her clothes, her mother noticed blood stains on her clothes and

therefore, she enquired with the victim about it next morning and the

victim informed her mother about the incident. The mother of the victim

took the victim to the house of Sangeeta (maternal grand mother of the

victim), and then they went to police station and lodged the complaint.

05] After the complaint was lodged, First Information Report was

registered, investigation was undertaken and after completing the

investigation and necessary formalities, charge-sheet was filed before the

Court of Judicial Magistrate First Class. The offence being triable by the

Court of Sessions, the case was committed to the Sessions Court, charges

were framed, charges were read over and explained to the accused, the

accused did not accept the guilt and claimed to be tired and therefore, the

trial was conducted. After conducting the trial, the Sessions Court

concluded that the prosecution has proved its case and convicted the

accused and imposed sentence as per the order.

                                         4                                                  apeal551.14.J

   06]            The learned  advocate for the appellant/accused has argued

that the case of the prosecution/complainant is improbable and it cannot

be believed that the accused committed crime just at a distance of few

feet from the Lawn where marriage function was going on. It is submitted

that the report of medical examination of the victim and the evidence of

Dr. Neha (PW-13) does not support the case of the prosecution. It is

pointed out that no injuries were found on the person of the victim and

even as regards the finding of hymen in torn condition, Dr. Neha has not

expressed any firm view that it is because of penetration/forceful

intercourse. It is argued that the prosecution has not been able to

establish its case beyond doubt and the conviction of the

appellant/accused is unsustainable.

07] After examining the material on record, I find that the

prosecution has proved beyond doubt that crime is committed by the

appellant/accused on minor victim aged about 11 years. The victim has

deposed about the incident and the defence has not been able to shatter

the testimony of the victim. The evidence of Dr. Neha (PW-13) and the

report of medical examination of the victim shows that fresh hymenal tear

was found suggesting that sexual intercourse might have taken place.

The submission made by the learned advocate for the appellant/accused

that Dr. Neha has not expressed any definite view looses its significance

because of the report of medical examination of the accused and the

evidence of Dr. Avinash (PW-10). The report of medical examination

5 apeal551.14.J

of the accused (Exh.43) shows that dry blood stains were found on

glans penis and smegma was absent. Dr. Avinash has stated in his

examination-in-chief that presence of dry blood stains on glans penis and

absence of smegma suggested that the appellant/accused might have

been involved in sexual intercourse within 24 hours prior to the

examination.

08] I find that the learned Additional Sessions Judge has properly

appreciated the evidence on record and has rightly concluded that the

prosecution has proved its case. I see no reason to interfere with the

judgment. The appeal is dismissed.

09] The fees of Shri S. N. Gaikwad, Advocate, who is appointed to

represent the appellant, is quantified at Rs.5,000/- (Rs. Five Thousand).

JUDGE PBP