Bombay High Court
State Of Maharashtra Thr. The ... vs Umesh S/O Wasudeo Burde on 11 May, 2017
Bench: B.R. Gavai
Apeal433.12 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.433 OF 2012.
APPELLANT: State of Maharashtra,
through Police Station Officer,
Police Station, Lakhandur, Tq.
Lakhandur,Distt.Bhandara.
: VERSUS :
RESPONDENT: Umesh Wasudeo Burde,
aged about 22 years, r/o Parsodi/Nag,
Tq.Lakhandur, Distt.Bhandara.
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Smt.K.S.Joshi, Additional Public Prosecutor for the State.
Mr.P.V.Kavre, Advocate for the respondent.
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CORAM: B.R.GAVAI AND
N.W.SAMBRE,JJ.
DATED: 11th MAY, 2017.
ORAL JUDGMENT : (Per B.R.Gavai, J.)
1. Being aggrieved by the judgment and order passed by the
learned Additional Sessions Judge, Bhandara, in Special Case No.02 of
2007, dated 28th November, 2011, thereby acquitting the
respondent/accused of the offence punishable under Sections 376, 417
of the Indian Penal Code and under Section 3(i)(vii) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, the State
has approached this Court by way of present appeal.
2. It is the case of prosecution that oral report dated 17 th June,
2010 was lodged by prosecutrix Bhumika Haridas Borkar stating therein
that prosecutrix and accused no.1 Umesh were residing near each other
and were resident of the same village. Prosecutrix used to go for work
with her friend so also accused no.1 Umesh used to go for work to his
field. On one day, accused no.1 Umesh approached prosecutrix and
stated that he loves her. He also gave promise that he would marry her
and on false pretext of marriage committed sexual intercourse with her.
It is the further case of prosecution that they used to have sexual
intercourse every after 1 - 2 days. It is further case of prosecution that
she gave consent for sexual intercourse since accused no.1 Umesh had
promised to marry her. However, when she became pregnant, Umesh
told her that she would marry her and went away.
3. It is further prosecution case that after some days, accused
no.2 Wasudeo, father of Umesh, came to her house and told her that
since she had become weak, he would take her to the doctor. Again on
next day, he came to her house and told her that he would take her to
the doctor. She sat on the motorcycle of accused no.2 and came to
Government hospital, Lakhandur. She was admitted in the said
hospital. Medical Officer Dr.Rangari who is subsequently joined as
accused no.4 and one nurse took her in one room and she was
administered one injection. She became unconscious. After 1 - 2
hours, she regained consciousness and found that the said doctor and
nurse were taking out blood from her private part. On the next day she
was discharged. Accused no.2 reached her to village. Mother of
prosecutrix came to know about said incident. Thereafter on 17 th June,
2006 she went to Lakhandur Police station and lodged report below
Exh.46 against accused nos.1 and 2. On the basis of said oral report FIR
came to be registered vide Crime No.100 of 2006.
4. During investigation, role of accused nos. 3 and 4 came to be
revealed and as such they were added. It was also revealed that the
prosecutrix was belonging to Scheduled Castes and as such offence
under the provisions of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act came to be added. After completion of
investigation, charge-sheet came to be filed in the Court of learned
Judicial Magistrate (F.C.), Sakoli. Since the case was exclusively triable
by the Special Court i.e. Sessions Court, the same came to be committed
to the Court of Sessions.
5. Charges were framed against the accused. Accused pleaded
not guilty and claimed to be tried.
6. Insofar as accused no.1 is concerned, he stands charged for
committing the rape on prosecutrix and for the offence under the
provisions of Prevention of Atrocities Act. Rest of the accused are
charged with an offence of voluntarily causing miscarriage of first
informant Bhumika, not being caused in good faith for the purpose of
saving life of first informant.
7. Insofar as offence of rape is concerned, it is the allegations
made by the prosecutrix against the accused no.1 that he threatened
her to commit suicide if she refused to love him and that after she
accepted his request he started to have sexual relations with her. He
was all the while assuring her that he will marry with her. Thereafter,
prosecutrix became pregnant and she informed accused Umesh that her
menstrual has been stopped. Accused told her that he will go to Nagpur
and perform marriage with her. From her evidence it could reveal that
on the date of her evidence she was 21 years old and on the date of
lodging the report she was around 18 years. The learned trial Judge
has therefore found that on the date of sexual intercourse she was of
consenting age. It has been found that the prosecutrix was continuously
having sexual intercourse with the accused for a period of one year and
she did not disclose about the same to anyone and lodged report only
after she got pregnanted of about two months. It could thus be seen
that when the prosecutrix had sexual relations with the accused she had
reached age of understanding what is wrong or right for her and she
was consenting party and as such, learned trial Judge has rightly found
that the accused no.1 cannot be convicted for an offence under Section
376 of the Indian Penal Code.
8. Insofar as charges against accused nos.2 to 4 of causing
miscarriage of fetus of the prosecutrix is concerned, it would be relevant
to refer to an enquiry conduced by Dr.S.G.Ramteke and Dr.J.V.Kukday
as per directions of the Civil Surgeon. The enquiry report reveals that
one Dr.Parshuramkar to whom the prosecutrix had gone since she was
pregnant for 1½ months, had given her prescription of certain
medicines. She had purchased said medicines from medical shop
Parsodi. On account of consumption of said medicines there was
bleeding and as such, accused no.4 had admitted her in the hospital at
Lakhandur and treated her and saved her life. The enquiry report is
duly exhibited by Dr.Ramteke (PW 1). The prescription which is given
to the prosecutrix is also exhibited below Exh.37.
9. The defence has also examined Mahendra as D.W.1. He runs
'Talaj Medical and General Stores' at Parsodi. He has deposed that on
6th June, 2006 one woman named Bhumika had come to his shop for
purchasing medicine and she had brought prescription of
Dr.R.D.Parshuramkar and he had sold her medicines prescribed in the
said prescription on that day. He has further stated that the
prescription as mentioned below Exh.98 are generally prescribed for
termination of irregular menstrual period.
10. The defence has also examined Prajakta Deshmukh as DW 2,
who was working as staff nurse in Gramin Hospital, Lakandur. She has
stated that on 11th June, 2006 when she was in the hospital, prosecutrix
had come there for medical treatment. She was complaining of
stomachache and bleeding from private part. This witness called
Dr.Rangari for examining her and Dr.Rangari examined and asked her
history and at that time prosecutrix told him that on earlier night she
had taken some medicines for abortion. Dr.Rangari examined her and
found that blood and blood clots are coming out from her private part.
Dr.Rangari informed the persons accompanying her that Bhumika was
suffering from excessive bleeding and the attempt of abortion done by
her by taking medicine was incomplete and the process of abortion has
to be completed in order to avoid danger to the life of Bhumika.
Thereafter, Dr.Rangari performed procedure for abortion of Bhumika.
She was discharged on the next day from hospital. She has further
stated that on the said date she had assisted Dr.Rangari as staff nurse.
11. It could thus be seen from the material placed on record that
accused no.4 rater than committing any crime had in fact attempted to
save the life of prosecutrix.
12. The scope for interference in an appeal against acquittal is
very limited. Unless the Court finds that the view taken by the trial
Court is either impossible or perverse, it is not permissible for this Court
to interfere with the findings of acquittal. No impossibility or perversity
is found in the judgment and order of learned trial Judge warranting
interference. Appeal is, therefore, dismissed with no order as to costs.
JUDGE JUDGE
chute
