Mangesh Pandurang Bokade vs The State Of Maharashtra Through ...
2017 Latest Caselaw 8444 Bom

                                     1                                     apeal383.12




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 383 OF 2012


 Mangesh s/o Pandurang Bokade,
 Aged about 24 years, 
 Occupation - Labour Work,
 R/o Bramhni, Ward No.4, 
 District Nagpur.                                          ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Police Station Officer, 
 Kalmeshwar, District Nagpur.                              ....       RESPONDENT

 ______________________________________________________________

                         None for the appellant, 
         Shri A.V. Palshikar, Addl.P.P. for the respondent/State.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.


  DATE OF RESERVING THE JUDGMENT          
                                          : 02-11-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 06-11-2017


 JUDGMENT : 

The appellant is assailing the judgment and order dated

19-7-2012 delivered by the learned District Judge-1 and Additional

Sessions Judge, Nagpur in Special Case 36/2011, by and under which

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the appellant (hereafter referred to as the "accused") is convicted for

offences punishable under Section 376(2)(f) read with Section 511 of

the Indian Penal Code and under Section 3(1)(xi) and 3(2)(v) of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as the "Atrocities Act") and is

sentenced to suffer rigorous imprisonment for a period of seven years

and to payment of fine of Rs.1,000/- for offence punishable under

Section 376(2)(f) read with Section 511 of the Indian Penal Code, to

suffer rigorous imprisonment for a period of six months and to

payment of fine of Rs.500/- for offence punishable under Section 3(1)

(xi) of the Atrocities Act and to suffer rigorous imprisonment for a

period of five years and to payment of fine of Rs.1,500/- for offence

punishable under Section 3(2)(v) of the Atrocities Act.

2. The appeal was called out on 10-10-2017, there was no

appearance on behalf of the appellant. The appeal was adjourned to

11-10-2017 as part-heard since the learned Additional Public

Prosecutor Shri A.V. Palshikar was heard in some detail. The Counsel

for the appellant was put on notice that should there be no appearance

on behalf of the appellant on 11-10-2017, the appeal would be decided

on merits. Again, there was no appearance on behalf of the appellant

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when the appeal was called out on 11-10-2017. This Court intended to

directed that the appeal be listed in the week commencing from

30-10-2017. However, due to inadvertence, it was recorded that the

appeal be listed in the week commencing from 02-11-2017. In this

view of the matter, although the appeal was called out on 31-10-2017

and there was no appearance on behalf of the appellant, this Court

directed that the appeal be listed on 02-11-2017. Since there was no

appearance on behalf of the appellant when the appeal was called out

on 02-11-2017, this Court scrutinized the record with the able

assistance of the learned Additional Public Prosecutor Shri

A.V. Palshikar and reserved the judgment.

3. The case of the prosecution as can be culled out from the

report lodged by the complainant Sangita Madavi on 05-6-2011, is

thus:

The complainant Sangita, an employee of a rubber pipe

manufacturing company located at M.I.D.C. Kalmeshwar, is a resident

of Gire Layout, Bramhani, Tahsil-Kalmeshwar, District-Nagpur. The

husband of the complainant Sudhakar is an employee of Espat

Company MIDC, Kalmeshwar. The complainant is blessed with a

daughter then aged 8 years and son Amit then aged 6 years.

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The accused Mangesh Bokade then occupied a tenanted

premises alongwith his brother and mother Ashabai, situated at the

rear side of the residence of the complainant.

The complainant returned home from her work at 6-00

p.m. on 04-6-2011 and found the child victim and son sitted in the

courtyard of the house. The child victim was visibly sad and sickly in

appearance. The complainant asked the child victim to arrange the

cleaned and washed utensils in the rack and was told by Amit that the

child victim is suffering from pain in the private part and may not be

asked to do the said chore. The complainant asked the child victim as

to why she was suffering from pain and burning sensation in the

private part. The child victim disclosed that accused Mangesh, to

whom child victim used to refer to as "Mangesh Dada", had visited the

house, taken the child victim to his house, closed the door from inside,

made child victim lie down on the bed, removed her knicker, applied

oil on her private part and then Mangesh unzipped his full pant, took

out his penis and touched the same to the private part of the child

victim and slept on her person. The child victim disclosed to the

complainant that since the accused Mangesh inserted his penis in her

private part, she cried out aloud due to pain. Mangesh got up from her

person and offered Rs.10/- to the child victim and told her not to

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disclose the incident to the complainant. The child victim did not

accept the amount and told Mangesh that he would disclose the

incident to her mother. The accused Mangesh opened the door of the

house and ran away. The child victim wore her knicker and returned

home. The child victim further told the complainant that the incident

occurred between 1.30 to 2-00 p.m.

The report was lodged on the next day since the

complainant waited for her husband to return and her husband

returned home late night. On the basis of the said report, offences

punishable under Section 376 of the Indian Penal Code and under

Section 3(2)(xi) of the Atrocities Act were registered at Police Station

Kalmeshwar. The culmination of investigation led to submission of

charge-sheet before the learned Judicial Magistrate First Class,

Kalmeshwar who committed the proceedings to the Sessions Court.

The learned Sessions Judge framed charge for offences punishable

under Section 376(2)(f), Section 376(2)(f) read with Section 511 of

the Indian Penal Code and under Section (3)(1)(xi) and Section 3(2)

(v) of the Atrocities Act. The accused abjured guilt and claimed to be

tried. The defence, as is discernible from the statement recorded under

Section 313 of the Criminal Procedure Code and the tenor of the cross-

examination, is of false implication.

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4. The prosecution examined eight witnesses including the

complainant Sangita (P.W.1), Sudhakar, the father of the child victim

(P.W.2), Rahul Deshmukh (P.W.3) who was examined to prove the

spot panchanama, the child victim (P.W.4), Onkar Sarode (P.W.5), Dr.

Sachin Wankhede (P.W.6) who examined the child victim, Devanand

Kuril (P.W.7) who proved the oral report and the printed first

information report (Exhibit 22 and Exhibit 23 respectively), Anil

Shivrao Raut (P.W.8) who proved the arrest form Exhibit 68.

Accused did not dispute seizure memo pertaining to

seizure of clothes of child victim Exhibit 24, caste certificates Exhibit 25

and 26, hospital card Exhibit 31, referral card Exhibit 32, requisition

for medical examination of accused Exhibit 33, medical report Exhibit

34, form II Exhibit 35, special report Exhibit 36, order deputing

investigating officer Exhibit 37, certificates Exhibits 38, 39, 40, 41 and

42 seizure memo pertaining to seizure of samples regarding child

victim Exhibit 45, seizure memo pertaining to seizure of clothes of

accused Exhibit 46, seizure memo regarding seizure of samples

regarding accused Exhibit 47, forwarding letter alongwith muddemal

sent for chemical analysis Exhibit 49, and invoice challan Exhibit 48.

The accused did not dispute arrest form Exhibit 68 and correspondence

made by investigating officer during investigation Exhibits 65, 66 and

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67.

5. The child victim is examined as P.W.4. She was aged 9

years when her evidence was recorded. She was not administered

oath. Her version in the examination-in-chief is consistent with the

oral report lodged by the complainant. The version of the child victim

is not seriously challenged. The only suggestion given in the cryptic

cross-examination is that the child victim fell down while playing

which was the cause of pains in private part and that she was narrating

the incident on the say and at the instance of the complainant. Both

the suggestions are denied. The evidence of the child victim is

confidence inspiring.

6. The complainant Sangita is examined as P.W.1. She has

deposed consistent with the contents of the oral report. She has

proved the oral report Exhibit 22 and the printed first information

report Exhibit 23. She has proved the seizure memo Exhibit 24 and the

caste certificates Exhibit 25 and 26. Her evidence that she belongs to

Gond community and that the accused belongs to the Kunbi caste has

gone unchallenged. Indeed, virtually the entire testimony of the

complainant (P.W.1) has gone unchallenged. The only suggestion

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given to the complainant, who is the mother of the child victim, is that

the child victim fell while playing which caused pain in her private

part. A general suggestion is given that the incident did not happen

and that the report lodged was false. Both the suggestions are denied.

7. The father of the child victim Sudhakar is examined as

P.W.2 who states that when he returned home at 9-00 p.m. on the day

of the incident, he was informed about the incident by the

complainant. Both the child victim and the son of P.W.2 Sudhakar

were asleep and on the next day the complainant accompanied by

P.W.2 and the children lodged the report. P.W.3 Rahul has proved

spot panchanama Exhibit 29. P.W.5 Onkar, a neighbour of accused

and P.W.1 complainant, states that on the day of the incident the

accused threw earth upon the mentally challenged mother-in-law of

the complainant and the child victim confronted the accused. P.W.7

police head constable Devanand recorded the first information report

on the basis of the oral report of the complainant and registered the

crime. P.W.7 Devanand also sent the child victim for medical

examination vide request letter Exhibit 64. P.W. 8 PSI Anil has proved

arrest form Exhibit 68. Dr. Sachin Wankhede who alongwith Dr. Singh

and Dr. Shinge examined the child victim on 05-6-2011, is examined as

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P.W.6. The hymen was found intact, redness was visible over

fourchette. P.W.6 did not notice any evidence of semen on the genitalia

of the child victim. He has deposed that redness can be caused by an

attempt to have sexual intercourse. P.W.6 has proved medical report

Exhibit 62.

8. In view of the absence of the Counsel for the appellant, at

the request of the Court, the learned Additional Public Prosecutor has

assisted in careful and considered scrutiny of the record. The C.A.

reports Exhibits 18, 19 and 20 coupled with medical evidence would

render unsafe and hazardous finding of rape and the learned Sessions

Judge is absolutely right in so holding. Equally unexceptional is the

finding of the learned Sessions Judge in the teeth of the evidence on

record conviction of the accused for attempt to commit rape is in order.

9. It must be noted that the evidence of every material

witness has gone virtually unchallenged on significant aspects. The

defence has miserably failed to probablize the defence of false

implication even on the touchstone of preponderance of probabilities.

The evidence of the child victim is implicitly reliable and confidence

inspiring. The conviction could well have rested even on the

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uncorroborated testimony of the child victim. The testimony of the

child victim is corroborated, by that of the complainant and the

medical evidence on record. I have no hesitation in upholding the

finding of the learned Sessions Judge that the prosecution has

successfully brought home the charge under Section 376(2)(f) read

with Section 511 of the Indian Penal Code.

10. The conviction of the accused under Section 3(1)(xi) and

3(2)(v) of the Atrocities Act is unsustainable in law. It is well settled

that the provisions of Section 9 of the Atrocities Act and Rule 7 of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Rules, 1995 (hereinafter referred to as the "Atrocities Rules") are

mandatory. The prosecution has not proved that the investigation in

the offences under the Atrocities Act is conducted by an authorised

officer as is envisaged under the said statutory provisions. The

statement in the examination-in-chief of Anil Raut, PSI Kalmeshwar

(P.W.8) that the investigation was made by SDPO Shri Aadewar is not

sufficient to prove compliance with the mandatory provisions of

Section 9 of the Atrocities Act and Rule 7 of the Atrocities Rules. The

judgment impugned, to the extent the accused is convicted for offences

punishable under Section 3(1)(xi) and Section 3(2)(v) of the Atrocities

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Act is manifestly erroneous.

11. In the light of the discussion supra, the appeal is partly

allowed. The conviction of the accused under Section 3(1)(xi) and

Section 3(2)(v) of the Atrocities Act is set aside. The conviction of the

accused under Section 376(2)(f) read with Section 511 of the Indian

Penal Code is confirmed. The bail bond of the accused shall stand

discharged. The accused be taken into custody forthwith to serve the

sentence and compliance report be submitted in the registry of this

Court within two weeks.

JUDGE adgokar