Bombay High Court
Raghunth Narayan Patekar vs The State Of Maharashtra on 2 November, 2017
Bench: V.K. Tahilramani
jdk 7.cr.apeal.405.14.j.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 405 OF 2014
IN
SESSIONS CASE NO. 34 OF 2010
Mr. Raghunath Narayan Patekar ]
Age 63 years, Hindu, ]
Indian Inhabitant, Residing at ]
Rampur Tambi, Taluka Chiplun, ]
Dist. Ratnagiri (Maharashtra) ]
(At present in Kolhapur Central Prison ]
Kolhapur) ].. Appellant
[Ori. Accused ]
Vs.
The State of Maharashtra ]
Through Chiplun Police Station ].. Respondent
....
Ms. Rohini Dandekar Advocate appointed for the Appellant
Mr. Arfan Sait A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
M.S.KARNIK, JJ.
DATED : NOVEMBER 02, 2017
ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]
1 This appeal is preferred by the appellant-original
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accused against the judgment and order dated 17.7.2013
passed by the learned Additional Sessions Judge, Khed, in
Sessions Case No. 34 of 2010. By the said judgment and
order, the learned Sessions Judge convicted the appellant under
Sections 376, 325, 392 and 394 of IPC. For the offence under
Section 376 of IPC, the appellant has been sentenced to life
imprisonment and fine of Rs. 10000/- i/d S.I. for six months,
for the offence under Section 325 of IPC, the appellant has
been sentenced to R.I. for three years and fine of Rs. 1000/- in
default R.I. for three months, for the offence under Section 392
of IPC, the appellant has been sentenced to R.I. for seven years
and fine of Rs. 3000/- in default R.I. for six months and for the
offence under Section 394 of IPC, the appellant has been
sentenced to life imprisonment and fine of Rs.5000/- in default
R.I. for six months. All the sentences were directed to run
concurrently.
2 The prosecution case, briefly stated, is as under:
(1) Marriage of the prosecutrix i.e. PW 1 took place on
2.6.2010 with one Dattaram. Dattaram was resident of village
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Kapare in District Ratnagiri. The parents of the prosecutrix
resided in village Anjanwel, Taluka Guhagar Dist. Ratnagiri. The
prosecutrix was about 21 years of age on the date of the
incident.
(2) On 17.6.2010 the prosecutrix had gone to her
parental house with her father. On 21.6.2010, she came along
with her father to Guhagar. From Guhagar she came along with
her father to Ganesh-Khind by Chiplun S.T. Bus. At about 10.15
a.m. Maldoli Bus came to Ganesh-Khind. In order to go to her
matrimonial house, she along with other passengers boarded
the said Bus. Her father told the conductor that as she was
new, the conductor should tell her to alight at Suparibaug
Kapare. One of the passengers who boarded the Bus, told her
father that he was also going to the same place, hence, he
would tell the prosecutrix to alight at the same place. That
person was the appellant. Then the prosecutrix sat on the last
seat of the S.T. Bus. The appellant who had spoken to her
father, sat next to her. He told the prosecutrix that he knew her
husband. He paid for her fare. After traveling for half an hour,
the appellant told the prosecutrix to alight at one spot.
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Thereafter, the prosecutrix and the appellant started walking.
They walked for about 1 km. The appellant then told the
prosecutrix to stop below one tamarind tree. He went into one
house and after some time, returned back. He then asked the
prosecutrix to come with him. She went with him with her bag.
Thereafter they reached near the forest. The appellant then
caught her hand. The prosecutrix questioned him why he was
behaving in this manner. The appellant then twisted her hand
and made her fall down on the ground. There were stones lying
on the spot, due to which, the prosecutrix sustained injuries
below both her eyes. The appellant then removed her clothes
and committed rape on her. The prosecutrix was shouting for
help but there was nobody nearby. Thereafter the appellant
wore his clothes. He snatched ornaments which were on the
prosecutrix i.e. Mangalsutra, earring, ring and bangles. The
appellant inserted some stones in the private parts of the
prosecutrix. Then he took stone and assaulted the prosecutrix.
Thereafter he took umbrella, saree and ornaments of the
prosecutrix and ran away from the spot. On hearing the shouts
of the prosecutrix, some women including PW 2 Sujata reached
the spot. They took the prosecutrix to their village. They
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enquired about her name and village. Then they telephoned
the Sarpanch of her village. Sarpanch of her village and other
persons came and took her to Kamathe hospital at Chiplun.
Police then came to the hospital and recorded the statement of
the prosecutrix which was treated as F.I.R. (Exh.20). The
prosecutrix gave the description of the appellant. She also
informed the police that the appellant was some-what bald and
his age was about 45 to 50 years. The appellant came to be
arrested on the same day. The appellant was sent for medical
examination. Fresh injuries were found on the appellant. He
was examined by PW 11 Dr. Prafulla Mishra. Dr. Mishra found
seven injuries on his person which were mostly scratch marks.
During the course of investigation, at the instance of the
appellant, the ornaments of the prosecutrix came to be
recovered. After completion of investigation, the charge-sheet
came to be filed.
3 Charge came to be framed against the appellant
under Sections 376, 307, 392 and 394 of IPC. The appellant
pleaded not guilty to the said charge and claimed to be tried.
The defence of the appellant is that of total denial and false
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implication. After going through the evidence adduced in the
present case, the learned Judge convicted and sentenced the
appellant as stated in para 1 above, hence, this appeal. It may
be stated here that the learned Judge convicted and sentenced
the appellant under Section 325 of IPC instead of offence under
Section 307 of IPC as the offence under Section 307 of IPC was
not proved against the appellant.
4 We have heard the learned counsel for the appellant
and the learned A.P.P. for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the parties, the
judgment delivered by the learned Judge and the evidence on
record, for the below mentioned reasons, we are of the opinion
that the appellant committed rape on the prosecutrix and also
assaulted her with stones and robbed her of her ornaments.
5 The conviction of the appellant is mainly based on the
evidence of the prosecutrix. The prosecutrix has stated that
village Anjanvel in Taluka Guhagar in District Ratnagiri is her
parental home. Her marriage was performed with Dattaram on
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2.6.2010. She was educated upto 9th Standard. The
prosecutrix PW 1 stated that on 17.6.2010 she had gone to her
parental house with her father. On 21.6.2010, she came along
with her father to Guhagar. From Guhagar she came along with
her father to Ganesh-Khind by Chiplun S.T. Bus. At about 10.15
a.m. Maldoli Bus came to Ganesh-Khind. In order to go to her
matrimonial house, she along with other passengers boarded
the said Bus. Her father told the conductor that as she was
new, the conductor should tell her to alight at Suparibaug
Kapare. One of the passengers who boarded the Bus, told her
father that he was also going to the same place, hence, he
would tell the prosecutrix to alight at the same place. That
person was the appellant. Then the prosecutrix sat on the last
seat of the S.T. Bus. The appellant who had spoken to her
father, sat next to her. He told the prosecutrix that he knew her
husband. He paid for her fare. After traveling for half an hour,
the appellant told the prosecutrix to alight at one stop.
Thereafter, the prosecutrix and the appellant alighted and
started walking. They walked for about 1 km. The appellant
then told the prosecutrix to stop below one tamarind tree. He
went into one house and after some time, returned back. He
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then asked the prosecutrix to come with him. She went with
him with her bag. Thereafter they reached near a forest. The
appellant then caught her hand. The prosecutrix questioned
him why he was behaving in this manner. The appellant then
twisted her hand and made her fall down on the ground. There
were stones lying on the spot, due to which, the prosecutrix
sustained injuries below both her eyes. The appellant then
removed her clothes and committed rape on her. The
prosecutrix was shouting for help but there was nobody nearby.
Thereafter the appellant wore his clothes. He snatched
ornaments which were on the prosecutrix i.e. Mangalsutra,
earring, ring and bangles. The appellant inserted some stones
in the private parts of the prosecutrix. Then he took stone and
assaulted the prosecutrix. Thereafter he took umbrella, saree
and ornaments of the prosecutrix and ran away from the spot.
On hearing the shouts of the prosecutrix, some women
including PW 2 Sujata, reached the spot. They took the
prosecutrix to their village. They enquired about her name and
village. Then they telephoned the Sarpanch of her village.
Sarpanch of her village and other persons came and took her to
Kamathe hospital at Chiplun. Police then came to the hospital
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and recorded the statement of the prosecutrix which was
treated as F.I.R. (Exh.20).
6 According to the prosecutrix, when the appellant
committed rape on her, she shouted for help. The appellant
then robbed her of her ornaments and also took away her
umbrella and saree and ran away. The evidence of the
prosecutrix is corroborated to certain extent by the evidence of
PW 2 Sujata. Sujata has stated that when she was grazing her
she-goats at about 1.00 p.m., she heard shouts of a woman
shouting "save save". At that time, her brother-in-law Vasant
and one woman Archana were along with her. On hearing
shouts, they all went to the spot. There they saw one woman
lying in naked condition. She was about 22 years of age. She
had injuries on her person. Her face was stained with blood.
She was moaning due to pain. They kept cloth on her body and
brought her to the house of Sujata. On enquiry, the lady
informed that her parent's house is at Anjanwel and her
matrimonial house is at Kapare. She also told that one man
brought her to the spot and committed rape on her. Sarpanch
of the village of Sujata, telephoned Sarpanch of village Kapare.
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After about half an hour, they came and took the lady to the
Doctor.
7 The prosecutrix has stated that after the appellant
made her alight from the Bus, they walked for about 1 km.
Then the appellant told her to stop below one tamarind tree.
The appellant then went into one house and after some time
came back. The appellant then asked her to come with him and
she followed him. This part of the evidence of the prosecutrix is
corroborated by PW 12 Dattaram. Dattaram was the police
patil of village Bhom. He knew the appellant. He knew that the
appellant was resident of Rampur Tambi. The appellant had
exchanged the bullocks with the bullocks of Dattaram and the
appellant had to pay additional amount of Rs.7000/- to
Dattaram. The appellant had paid Rs.5000/- and assured that
he will pay remaining amount of Rs.2000/- after two days.
Dattaram stated that on 21.06.2010, the appellant had come to
his house between 11.00 a.m. to 11.15 a.m. One woman was
along with the appellant and the woman was standing below
the tamarind tree. She was wearing saree of yellow colour. The
appellant came and gave Rs. 2000/- to Dattaram. Dattaram
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enquired with the appellant about who was the lady,
whereupon, the appellant told Dattaram that she was his
relative. Thereafter, the appellant and that woman went away.
At about 3.00 p.m. in the afternoon, PSI Kakade had come to
the house of Dattaram. He asked him whether the person who
was tall, wheatish and bald, was seen by him. Thereupon
Dattaram told him that the appellant had come to his house
and he gave address of the appellant to PSI Kakade.
Thereafter, Dattaram went to Lalbag stop for bringing fertilizer.
Thereafter he came to know that one woman was raped by
someone. He also came to know that the said woman was
admitted to Kamathe hospital, therefore, Dattaram went to
Kamathe hospital to verify. On seeing the lady in the hospital,
he realized that it was the very same woman who had come
along with the appellant to his house. Thus, the evidence of
Dattaram, establishes that the appellant and the prosecutrix
were together at about 11.15 a.m. on 21.6.2010.
8 The prosecutrix has stated that on 21.6.2010 she
boarded Maldoli Bus at 10.15 a.m. in order to go to her
matrimonial house at village Kapare. She has stated that the
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appellant also boarded the Bus at Ganesh-Khind. When the
appellant was boarding the Bus, the father of the prosecutrix
told the conductor that as she was new hence, he should get
her to alight at Supari-bag, Kapare. Thereupon, one of the
passengers i.e. the appellant who boarded the Bus, told her
father that as he was also going to the same place, he would
see that the prosecutrix also alights at the said place.
Thereafter, the appellant sat next to her. After traveling half an
hour, the appellant told her to alight at one stop, hence, she
alighted at that stop and the appellant and the prosecutrix
started walking. This part of the evidence of the prosecutrix is
corroborated by the evidence of PW 5 Pawar. Pawar was the
Conductor of the said S.T. Bus in which, the appellant and the
prosecutrix were traveling. Pawar has stated that at about
10.20 a.m. Bus came to Ganesh-Khind when 7 to 8 passengers
boarded his Bus. One person told him that one lady was going
to Bhom and the Conductor should make her alight at Bhom.
The said lady, according to Pawar, was 21 years of age. Pawar
has further stated that the appellant also stepped into the Bus
at the very same Stop. The appellant and the prosecutrix sat
on the last seat of the Bus. The appellant purchased tickets for
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himself as well as for the lady to Lalbag - Bhom. On the next
day, Pawar read the news published in the newspaper regarding
rape. On 23.6.2010 he was called to the police station. As the
appellant had traveled in his Bus, Pawar was called for enquiry.
He was called for identification parade in the Tehsil office. In
identification parade, Pawar has identified the appellant as the
same person, who was traveling in his Bus.
9 It is the categorical case of the prosecutrix that after
committing rape on her, the appellant robbed her of her
ornaments and also took away her saree and umbrella with
him. These ornaments, saree and umbrella were recovered at
the instance of the appellant. PW 3 Deepak is the panch
witness. Deepak has deposed about this aspect. Deepak has
stated that on 23.6.2010, he was called to Chiplun police
station. The appellant was in the custody of the police. The
police told him to listen to what the accused was stating. The
accused i.e. the appellant stated that he was ready to show the
place where he kept the ornaments and will produce the same.
The appellant then led the police and the panchas to Rampur
Tambewadi. The appellant took them to his house. The
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appellant then produced one bag which was kept under the
bed. The appellant also produced the umbrella, mangalsutra,
earring, ring, bangles and one saree. This recovery of these
ornaments at the instance of the appellant, further corroborates
the case of the prosecutrix.
10 That the prosecutrix was raped is borne out by the
medical evidence. PW 9 Dr. Kanchan Madar examined the
prosecutrix on 21.6.2010 at about 3.55 p.m. On external
examination of the prosecutrix, he found following injuries:
"1) CLW over left eye-lid admeasuring 1.5 x 0.5
cm.
2) CLW over right eye-brow and forehead 1.00
cm. x 0.5 cm. x 1.00 cm.
3) Periorbital oedema present;
4) CLW over lower lip 0.5 x 0.5 cm. oedema
present;
5) Abrasion 1.00 x 1.00 cm. over left shoulder".
11 Dr. Kanchan Madar has stated that injuries 1 to 5 are
possible while resisting rape and injuries on the private part of
the victim are possible due to rape. Dr. Kanchan Madar opined
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that the rape might have been committed 3 to 4 hours before
examination and injuries sustained by the victim were grievous
and fresh injuries.
12 The prosecutrix has specifically stated that after
committing rape on her, the appellant inserted some stones in
her private parts. This is corroborated by the evidence of PW 9
Dr. Kanchan Madar who has stated that three stones were
found in the vagina of the prosecutrix and she removed the said
stones. The said stones were measured.
13 Dr. Kanchan Madar has stated that on examination of
breast, Dr. Kanchan Madar found bite mark present over left
side. During the examination of vulval region, Dr. Madar found
bleeding was present with mud and dirt. On perineum region,
she found broken glass bangle pieces present. During
examination of labia minora, she found CLW 0.5 x 1.00 x 0.2
cm. and on right labia minora lacerations were present. Mud
over clitoris, fourchette, majora, minora, urethra, bleeding from
vulva was present. There was mud present over all external
genitalia. Hymen tear as well as perineum tear second degree
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4.00 x 2.00 x 2.00 cm. and bleeding was found. Dr. Madar
found hard stones in her vagina and felt patient / victim should
be taken for emergency operation. In operation theater, Dr.
Madar found CLW i.e. tear to sub-urethral region admeasuring
0.2 x 0.2 cm. Dr. Madar removed three stones from vagina.
The stones removed were admeasuring 1) 4.5 x 2.5 x 1.00 cm.
2) 5.00 x 3.00 x 4.00 cm. and 3) 2.00 x 2.00 x 3.00 cm.
14 The appellant was arrested on the same day. The
appellant was sent for medical examination. PW 11 Dr. Mishra
examined the patient. On examination, he found following
injuries on the appellant:
"(1) Scratch mark on the left shoulder,
admeasuring 0.5 cm. red brown in colour;
(2) Scratch mark on the upper limb i.e. near the
shoulder right side admeasuring 4 cm.
(3) Scratch mark over both the buttocks inferior
side (lower buttock) admeasuring 5 cm.
(4) CLW over the right great toe of the lower
limb i.e. right leg with swelling, also bleeding positive
of about 1 x 1 cm.
(5) Scratch mark over the right dorsal aspect of
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the feet (above the feet) at about 1 cm.
(6) Scratch mark over the back in the lumbar
region on the right side near the spine about 5 cm.
(7) Scratch mark on the right hand near palms
about 0.5 cm."
15 According to Dr. Mishra, the said injuries have been
caused within 24 hours. The said injuries are possible if
resistance is put up by victim while committing rape. Dr.
Mishra has stated that the appellant was capable of sexual
intercourse.
16 When the appellant was arrested, his clothes came to
be seized. Panch witness PW 4 Prabhakar has deposed about
this aspect. The panchnama regarding the seizure of the
clothes of the appellant is at Exh. 31. These clothes along with
the clothes of the prosecutrix, blood samples of the appellant
and the prosecutrix were sent for chemical analysis.
17 The prosecutrix had sustained bleeding injuries which
is clear from the evidence of PW 9 Dr. Kanchan Madar. As per
the C.A. Report (Exh. 68), the shirt of the appellant which was
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sent to C.A., had blood stains of "B" group on it. The C.A.
Report (Exh. 56) shows that the blood group of the prosecutrix
was "B". The blood group of the appellant is "A" group which is
seen from the C.A. Report Exh. 68. Thus, finding of blood of "B"
group on the shirt of the appellant, is another highly
incriminating circumstance against the appellant.
18 We would also like to refer to the evidence of PW 8
Nisha Jadhav, Chief Intelligence Officer. S.I.D. Karad. She has
stated that she has recorded the statement of the prosecutrix.
She has further stated that during the investigation, it was
revealed that the appellant was working in Military Force and he
was convicted for committing rape on a seven year old girl
when he was in Military service and after his conviction, he was
removed from Military service. The Investigating Agency had
entered into correspondence with the Headquarters of the
Military Department regarding the previous conviction of the
appellant and in reply, the Military Department had sent all the
necessary information regarding the conviction of the appellant
and discharging him from the Military service. The said
correspondence has been exhibited.
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19 On going through the evidence on record, we are of
the opinion that the prosecution has proved its case against the
appellant beyond all reasonable doubt. Thus, we find no reason
to interfere with the conviction or sentence. Appeal is
dismissed.
[ M.S.KARNIK, J.] [ SMT.V.K.TAHILRAMANI,J.]
kandarkar
