Bombay High Court
Ahmad Baig Alias Bashir Akbar (In ... vs The State Of Maharashtra, Through ... on 21 June, 2017
Bench: V.M. Deshpande
apeal no.295.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 295 OF 2015
Ahmad Baig alias Bashir Akbar Baig,
aged about 40 years, Occ:Labourer,
R/o Mozri,Tq.Teosa,District-Amravati.
(Presently in Central Prison,Amravati) ..... APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Teosa,Tq.Teosa,
District: Amravati. ...RESPONDENT
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Shri Vinay V.Dahat,Advocate for appellant.
Shri R.S.Nayak,Addl.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 21,2017
ORAL JUDGMENT
By the present, the appellant is challenging his
conviction recorded by Learned Additional Sessions Judge,
Amravati dated 14/8/2015, in S.T.No.238/2014. By the
impugned judgment the appellant is convicted for the offence
punishable under Section 376(1) of Indian Penal Code and is
directed to suffer R.I. for seven years and to pay fine of Rs. 1000/-
and in default of payment of fine to undergo further R.I. for 6
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apeal no.295.15 2
months. He is also sentenced for the offence punishable under
Section 324 of the Indian Penal Code and on that count he is
directed to suffer R.I. for 3 years and to pay fine of Rs. 500/- and
in default of payment of fine he has to suffer R.I. for 3 months.
2. I heard Shri Vinay V.Dahat , learned advocate for
appellant and Shri R.S.Nayak, learned Addl. P.P. for for the State.
With their able assistance I have gone through the notes of evidence
and other proceedings on record.
3. It is the submission of learned counsel for the appellant
that appellant is falsely implicated in the offence and the case of the
prosecution is not at all probable one. Beside this no other
submissions were made before this Court.
4. A FIR(Exh.12) was lodged by the prosecutrix herself. On
the basis of the oral report of the prosecutrix, Anirudda
Puri(PW10)A.P.I. attached to P.S.Tiwsa registered a Crime vide
Crime No.64/2014. He took himself the investigation of the said
crime. He sent victim for her medical examination. He also seized the
clothes of the prosecutrix in presence of panchas under seizure
memo (Exh.14). He caused arrest of appellant under arrest
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apeal no.295.15 3
panchnama(Exh.40). The clothes of the appellant were also seized
under seizure memo(Exh.41). Spot panchnama (Exh.29) was also
prepared in presence of panchas. All seized articles were sent by him
to C.A. The statements of witnesses were also recorded by him. He
completed the entire investigation, however due to his transfer
chargesheet was submitted by P.S.I.Tambe.
5. After the committal, case was registered as
S.T.No.238/2014. Learned Additional Sessions Judge-3,Amravati
framed charge against appellant under Exh.2. Appellant denied
charge and claimed for his trial. In order to bring home guilt of the
appellant the prosecution has examined in all 10 witnesses and also
relied upon various documents which were proved during the course
of trial.
6. P.W.1 is the victim girl. She lodged F.I.R. at 2.00 a.m. in
respect of the incident that happened to her in the midnight of
28/4/2014. Thus, the F.I.R. is lodged immediately. Immediate
lodging of F.I.R. rules out false implication.
7. As per the evidence of victim girl she was sleeping in the
court yard of her house. Her grand father was also sleeping at some
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apeal no.295.15 4
distance and also her mother was in deep sleep at some distance. Her
evidence shows that in the midnight she awoke to found that
appellant was sleeping on her body. She noticed that her salwar was
removed. She identified appellant as a person who was sleeping on
her person. Victim specifically states that she knows appellant and
she called him as " mama"(maternal uncle). Her evidence also shows
that she could see his face in the light. Though, learned counsel for
appellant tried to challenge her testimony about the identification of
the appellant on the ground that there is no electric connection in
the victim's house, her cross-examination shows that the electric
connection was taken from the house of neighbor. Therefore, merely
because authorised electric connection was not available in the house
of victim that does not mean that there was no electric connection in
the house of victim. Further there is no challenge to her testimony
that appellant is known to her.
It is the submission of learned counsel for the appellant
that the version of victim is improbable in as much as according to
learned counsel for appellant it is impossible that without any
attention her salwar can be removed. This submission in my view
cannot be accepted since there is nothing available on record in
respect of degree of the sleep of the victim and further that the victim
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apeal no.295.15 5
was sleeping is not at all challenged by the appellant during her
cross-examination.
8. The appellant was caught at the spot itself. P.W.2
Kamrunissa mother of the victim also corroborated the version of
victim in respect of her shoutings and the fact that he was
apprehended at the spot itself.
9. Dr.Adwait Punjabrao Choudhari(PW4) examined victim
girl on 29/4/2014 itself. He noticed that her hymen was torn and
there was also injury on the left middle finger. He proved his
medical certificate (Exh.23). Dr.Chandrashekhar Gangadharrao
Patil(PW3) examined appellant and he noticed abrasion injury of
size ½ cm in length by ¼ cm. in width by ¼ cm in depth on nasal
bridge at middle part of subconguntival hemorrhage in right eye due
to blunt trauma. He also found that he is capable of sexual
intercourse. His report is at Exh.20.
10. All the seized articles were reached to chemical
analyser ,Amravati in sealed condition. C.A. report is placed on
record and it is at Exh.47. Kurta of the victim girl was found to be
stained with semen,also quilt on which victim girl was sleeping was
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apeal no.295.15 6
also found to be stained with semen. So also, sando banian and
fullpant were stained with semen.
The DNA profile obtained from semen stains cutting from
kurta of victim girl(Exh.2),quilt (Exh.4),sando banian(Exh.6) and
fullpant of appellant(Exh.7) were found to be identical and from one
and the same source of male origin and matched with the DNA
profile of appellant.
11. Dr.Adwait Punjabrao Choudhari(PW4) who examined
victim stated that her hymen was torn. The evidence of victim is
found to be trustworthy and it is free from exaggeration. There is
nothing in her cross-examination by which it can be said that she was
falsely implicating the appellant. Further, scientific evidence in a
nature of C.A.report and DNA report clearly implicate the appellant
as a perpetrator of the crime. In view of the matter, I see no reason
to disturb the well reasoned judgment of the learned trial Court.
Hence, appeal is dismissed.
ORDER
Appeal is dismissed.
JUDGE
kitey
