Samaru S/O Sakaru Marhaskolhe vs The State Of Mah. Thr. Police ...
2017 Latest Caselaw 8633 Bom

 apeal415of12.odt                          1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.


                     CRIMINAL APPEAL NO.415 OF 2012


 Samaru S/o. Sakaru Marhaskolhe,
 Aged about 30 years, Occ. Labour,
 R/o.Bharveli Dist. Balaghat,
 Presently at Mandavghorad,
 Police Station Hingna,
 District. Nagpur                                                       ...APPELLANT


          ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Officer
 Police Station Hingana, Nagpur                                       ...RESPONDENT
 -------------------------------------------------------------------------------------------
          None for the Appellant.
          Mr. A.V. Palshikar, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT     
                                             
                                             :09.10.2017
  DATE OF PRONOUNCING THE JUDGMENT        
                                             : 13.11.2017


 JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 29.8.2012 in sessions Trial 564 of 2011 passed by the

Additional Sessions Judge, by and under which the appellant

(hereinafter referred to as "the accused) is convicted for offence

punishable under section 376 read with section 511 of the Indian

Penal Code ("IPC" for short) and is sentenced to suffer rigorous

imprisonment for three years and six months and to payment of

fine of Rs. 3,000/-.

2 The appeal was called out for hearing on 4.10.2017.

The learned counsel for the appellant was absent and this Court

directed that the appeal be listed on 9.10.2017 under the caption

"order matters". This order was made in view of the note of the

Registry dated 28.9.2017 that the accused Samru s/o. Sakaru

Marhaskolhe is released from jail on 6.8.2014 after having

undergone the entire sentence imposed by and under the

judgment impugned dated 29.8.2012. This Court expected the

learned counsel for the appellant to clarify as to why, despite the

order dated 22.1.2013 of suspension of sentence and grant of bail,

the accused was not released. However, again the learned counsel

for the accused did not appear on 9.10.2017. This Court,

consistent with the dictum of the Hon'ble Apex Court in Bani

Singh Vs. State of Uttar Pradesh, AIR 1996(4)SCC720,

scrutinized the record with the assistance of the learned Additional

Public Prosecutor Shri. A.V. Palshikar, and the appeal is being

decided on merits.

3 The genesis of the prosecution lies in oral report Exh.

11 lodged by the prosecutrix, the gist of which is thus:-

The prosecutrix, then aged 55 years, is a labour who resides

with her brother Shyamrao Bhobe and works as agriculture labour

in the field of one Narhari Dorlikar. The incident occurred on

30.8.2011. The prosecutrix and Shyamrao worked in the field till

evening, at 7.00 pm, Shyamrao switched on the light and went to

the village to purchase sugar. The prosecutrix was cooking in the

Varandah, the accused came near the house of the prosecutrix, he

was asked by the prosecutrix as to what was the propriety of

coming at night, the accused removed the wire of light, caught

hold of the prosecutrix, gagged her mouth, inflicted 2 to 3 slaps

and threatened to kill the prosecutrix. The accused dragged the

prosecutrix near a lemon tree, undressed, lifted the saree of the

prosecutrix after bringing her down on the ground, inserted his

private organ in the vagina and committed sexual intercourse with

rocking motions. After discharge of semen, the accused got up,

threatened the prosecutrix, put on nickers and full pant and fled

through the field with crop of lady's finger. Shyamrao reached

home, the prosecutrix narrated the incident to Shyamrao who

followed the accused who was passing through the field of lady's

finger, the accused beat Shyamrao and fled. The prosecutrix and

Shyamrao approached the Police Station and the prosecutrix

lodged an oral report which was reduced to writing on the basis of

which offence punishable under section 376 and 506 of the IPC

was registered. The printed First Information Report (Exh. 12)

reveals that the report was lodged on 31.8.2011 at 2.00 hours.

The prosecutrix was sent for medical examination and was

examined by Dr. Smt. Sarita Khodge, who issued certificate Exh.

32. Shyamrao was also send for medical examination to Rural

Hospital, Hingana and the medical report is at Exh. 36. The

accused was arrested and sent for medical examination and the

report is at Exh. 30. The blood sample of accused was collected

and seized vide Exh. 26, the clothes which the prosecutrix

produced were seized vide Exh. 13, spot panchanama Exh. 17 was

drawn which reveals the presence of pink coloured piece of cloth,

pieces of broken bangle, loop of pant of blue colour and two pieces

of loop with three hooks, which were seized vide spot

panchanama Exh. 17. On completion of investigation, chargesheet

was submitted in the Court of Judicial Magistrate First Class,

Hingana, who committed the case to the Sessions Court. The

learned Sessions Judge framed charge vide Exh. 4, the accused

pleaded not guilty and claimed to be tried. The defence of the

accused is of total denial and false implication.

4 The prosecution has examined 8 witnesses namely:-

                  P.W. 1       Prosecutrix Ashabai at Exh. 10

                  P.W. 2       Shyamrao Bhobe - brother of Ashabai Exh. 


                  P.W. 3       Ankush Adbaile - vide Exh. 16 - panch on 
                               spot panchanama, seizure panchanama of  
                               clothes and seizure panchanama of blood  
                               sample of prosecutrix.

                  P.W. 4       Leeladhar   Maraskolhe   at   Exh.   19   whom  
                               Shyamrao   narrated   the   incidence   of   his  
                               beating and rape upon prosecutrix.

                  P.W. 5       Kawadu   Kate   at   Exh.   20   -   who   reached  
                               prosecutrix and her brother to police 
                               station.

                  P.W. 6       Vinod   Rokde   at   Exh.   21   -   Investigating  
                               Officer.

                  P.W. 7       Dr. Sarika Khodge - Medical Officer at Exh. 
                               31 - Who issued medical certificate of 

prosecutrix on examination at Exh. - 32 and answered the queries made by the Investigating Officer vide Exh. - 33. She also issued medical certificate of Shyamrao after his examination vide Exh. 35.

P.W. 8 Ashok Kate at Exh 41, who reduced into writing oral report vide Exh. 11 and registered first information report vide Exh. 12 and sent injured Shyamrao for medical examination.

5 The evidence of prosecutrix - PW 1 is substantially

consistent with the contents of the report Exh. 11. She has

deposed that on the day of incident, she was alone since her

brother Shyamrao had gone to the market to purchase sugar, the

accused forcibly took her to the lemon tree situated at distance of

100 fts or thereabout from the kitchen, lifted her saree and

inserted his male organ in her private part. The testimony of the

prosecutrix is corroborated by PW 2 Shyamrao who deposed that

the accused assaulted him on his head by stick when Shyamrao

confronted the accused.

While it is true that both PW 2 Shyamrao and PW 5

Kawadu, the driver of the autorickshaw who reached the

prosecutrix and Shyamrao to Police Station between 9.30 to 10.00

pm on 30.8.2011, had admitted that the prosecutrix is slightly

mentally challenged, the learned Sessions Judge on a holistic

appreciation of the evidence of the prosecutrix, has found most of

her evidence confidence inspiring. I have re-appreciated the

evidence and having done so, I find no reason to take a view

different from that taken by the learned Sessions Judge, in so far

as the offence of attempt to commit rape is held to be proved.

6 The report is lodged with promptitude. The fact that

the report was lodged after discussion with Shyamrao and other

villagers, is not sufficient to doubt the veracity of the report.

7 The evidence of PW 2 Shyamrao is equally

trustworthy. The evidence of prosecutrix, although, need not be

corroborated, is corroborated not only by the evidence of PW 2

Shyamrao, but is further corroborated by the spot panchanama

and the seizure panchanama Exh. 17. PW 6 Vinod Rokade, who is

the Investigating Officer, deposed that at the time of recording the

spot panchanama, he seized loop of pant of blue colour and two

pieces of loop having three hooks and other articles from the spot.

The clothes of accused is seized vide Exh. 24 pursuant to

memorandum under section 27 of the Indian Evidence Act. The

evidence of Investigating Officer on the aspect of seizure of clothes

from the house of the accused is virtually unchallenged. The

report of the Chemical Analyzer Exh. 43 reveals that Exh. 9 cloth

piece and cloth strip tallies with half pant Exh. 6 as regards hue

physio chemical and textile characteristic.

8 The prosecutrix suffered abrasions on the lower side

of both scapular region and left hand, as is evident from medical

examination report Exh. 32 issued pursuant to the examination by

Dr. Sarita Khaodge on 30.8.2011. In response to queries made

vide Exh. 33, Dr. Khodge issued medical certificate Exh. 34

recordingthat no injury was seen on the genetelia of the

prosecutrix. However, abrasions were noticed on the scapular

region.

An admission is extracted in the cross-examination of the

prosecutrix which is to the effect that the accused did not remove

his clothes. The solitary and stray admission is undoutedly

inconsistent with the testimony of the prosecutrix that the ccused

inserted male organ in her private part. The learned Sessions

Judge has noted that there is no medical or scientific evidence to

corroborate the insertion of the male organ in the private part of

the prosecutrix and in the teeth of the said admission has recorded

a finding that the only offence which is proved is that an attempt

to commit rape.

9 Benefit of the doubt must necessarily go to the

accused if an alternate hypothesis is possible. I do not find

anything wrong in the finding recorded by the learned Sessions

Judge that the only offence which is proved is that of an attempt

to commit rape.

10 The evidence of the prosecutrix PW 1, save and accept

to the actual fact of insertion of the private organ in the vagina is,

as noted earlier, confidence inspiring. While the learned Sessions

Judge has rightly extended the benefit of doubt to the accused in

so far as the charge of having committed rape is concerned, the

finding that an attempt to commit rape is proved, is

unexceptionable.

The appeal is sans merit and is dismissed.

It is reported that the accused has already undergone the

sentence. In this view of the matter, no further direction is

necessary.

JUDGE

RS Belkhede