Sudhakar Domaji Hazare And Anr vs The State Of Mah,. Thr The Pso ...
2017 Latest Caselaw 6775 Bom

                                                    1                             Judg.050917 apeal 436.03.odt 

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

                                            Criminal Appeal No.436 of 2003

                1]  Sudhakar Domaji Hazare,
                    aged about 41 year, 

              2] Prafulla @ Pravin Anandrao Sangidwar,
                 aged about 31 years,
                 Both residents of village Antargaon, Tah. Pathari, 
                 District Chandrapur.                                                      ....  Appellants.

                                                             -Versus-

                 The State of Maharashtra,
                  through the Police Station Officer,
                 Police Station Pathari, Tah. Pathari, 
                  District Chandrapur.                                                          ....  Respondent.
                 --------------------------------------------------------------------------------------------------
                 Mr.  N.H. Joshi, Additional Public Prosecutor for State.
                 None for the appellants.
                 --------------------------------------------------------------------------------------------------
                                                                  Coram : Mrs. Swapna Joshi, J.

th Dated : 05 September, 2017.

ORAL JUDGMENT

This appeal has been directed against the judgment and

order passed by the learned Additional Sessions Judge, Chandrapur in

Sessions Trial No.61 of 1996 delivered on 04-07-2003, thereby the learned

trial Judge had convicted the appellants under Section 376(2)(g) of the

Indian Penal Code and each of them sentenced to suffer rigorous

2 Judg.050917 apeal 436.03.odt

imprisonment for three years and to pay a fine of Rs.1500/- each, in

default to suffer imprisonment for three months.

2] I have heard Mr. N.H. Joshi, the learned Additional Public

Prosecutor for the State. The appellants and the learned Counsel for the

appellants remained absent. With the assistance of the learned APP, I

have gone through the entire record.

3] The facts leading to prefer this appeal can be summarised

as under :-

The prosecutrix was residing with her husband and two

children at village Antargaon, Taluka Sawali, District Chandrapur. The

appellants (hereafter referred as the accused) are also residents of the

same village. The incident took place on 17-01-1996. At the time of

incident, Vandana was in her house along with her children. Her husband

(PW-6) had gone out of the house. The prosecutrix had dinner with her

husband and thereafter her husband went out to the Pan Stall and the

prosecutrix went to sleep along with her small daughter on the bed. At

about 8.00 pm or 8.30 pm, when the prosecutrix was resting in her

house, she had simply shut the door without bolting it from inside as her

husband was expected to return shortly. At that time she suddenly felt

some weight on her body. Therefore, she opened her eyes and saw the

appellant no.1 lying on her person. The appellant caught hold of her both

hands and asked the prosecutrix for sexual favour. He also threatened

that if she refused to do so, he would kill her. On this, the prosecutrix got

frightened. The prosecutrix, therefore, could not raise any alarm. At that

3 Judg.050917 apeal 436.03.odt

time the prosecutrix noticed accused no.2. She tried to shout. However,

accused no.2 immediately gagged her mouth. It is the case of the

prosecution that at that time both the appellants threatened her that if she

did not allow them to have sexual intercourse with her they would kill her

as well as her husband. Thereafter, the appellant no.1 removed her

clothes. The appellant also removed his clothes and committed sexual

intercourse with her. Thereafter, the appellant no.2 committed forcible

intercourse with the prosecutrix. At that time the appellant no.1 gagged

the mouth of the prosecutrix. After satisfying their lust, both the appellants

released the prosecutrix. They again threatened her by saying that, she

should keep her mouth shut or otherwise they would kill her & her

husband. Thereafter, the appellants fled away from the place of incident.

It is the case of the prosecution that, while leaving the house of the

prosecutrix the appellants stated that they had sexual intercourse with wife

of Patru on that day and next time it would be the turn of wife of Patru's

brother. The appellant then left that place. On hearing the cries of the

prosecutrix, her brothers in law namely Kavindra (PW-7) came to the

house of the prosecutrix. They asked her as to what had happened. At

that time the prosecutrix disclosed the incident to them. By that time the

husband of the prosecutrix also returned home. The prosecutrix

narrated the incident to him. Since it was night time, the prosecutrix did

not go to the Police Station and so also the distance between the village

Antargaon to Pathari Police Station was 10 to 12 Kms., therefore, on the

next day morning the prosecutrix along with her husband proceeded to

4 Judg.050917 apeal 436.03.odt

the Police Station to lodge the complaint. At the relevant time, PSI-

Nandkishor Shelke (PW-10) the Investigating Officer was attached to the

Police Station Pathari. He recorded the complaint of the prosecutrix

(Exhibit-9). On the basis of the said complaint, the offence was registered

under Sections 376(2)(g), 452 and 506 of the IPC vide Crime No.7 of

1996. He referred the prosecutrix for medical examination. He arrested

both the accused and referred to them for their medical examination. He

visited the place of incident and recorded the spot panchanama

(Exhibit-11). From the place of incident, he took charge of pieces of

broken bangles and mattress. From the complainant he took charge of

her clothes under seizure panchanama (Exhibit-12). PW-10 recorded the

statements of the witnesses. He took charge of the clothes of the accused

and the appellants. All the seized articles were sent to C.A. by the

investigating agency. On completion of investigation, chargesheet was

filed. The learned trial Judge framed the charge. After conducting the

trial, on analysis and appreciation of the evidence & hearing both the

sides, the learned trial Judge convicted the appellants/accused as

aforesaid.

4] The Mr. N.H. Joshi, the learned APP contended that the

learned trial Judge has rightly convicted the appellants on relying upon the

evidence of the prosecutrix and other supporting witnesses.

5] As far as the case of the prosecution is concerned, in order

to substantiate its case the prosecution has heavily relied upon the

evidence of prosecutrix (PW-1), Patru (PW-6) her husband, Sudhakar

5 Judg.050917 apeal 436.03.odt

(PW-8) her brother in law, Dr. Jayashree (PW-9) the Medical Officer and

Nandkishor (PW-10) Investigating Officer.

6] The prosecutrix (PW-1) is a married lady having two

children. She was working as a labourer. According to her, on 17-01-1996,

at about 7.30 pm, she along with her husband had dinner. Thereafter, her

husband went to Pan Stall for having a Pan. She arranged for the bed and

she went to bed with her one and half year old daughter. As her husband

had gone out she simply shut the door without bolting it. While she was

sleeping she felt something heavy. Therefore, she opened her eyes and

saw appellant no.1-Sudhakar on her body. The accused no.1 caught hold

of her hands. The prosecutrix got frightened. She noticed accused no.2

Praful in the room & he gagged her mouth. The prosecutrix tried to free

her hands from the clutches of the appellant no.1. During the said scuffle,

her bangles were broken. The appellant no.1 threatened by saying, she

should not allow him to have sexual intercourse with him or else he would

kill her as well as her husband. On saying so he committed rape on her.

Thereafter, he gagged her mouth and appellant no.2-Prafull committed

rape on her. Again both the accused threatened her that she should not

raise any alarm and should also not disclose this incident to any one,

otherwise they would kill her as well as her husband. Thereafter, they

went away. The prosecutrix sat there weeping and crying. On hearing her

cries, her brothers in law namely Kavindra (PW-7) and Vijay came there.

The prosecutrix narrated the entire incident to them. In the meantime her

husband arrived home and she disclosed the incident to him. The

6 Judg.050917 apeal 436.03.odt

prosecutrix went to the house of Police Patil. However, he was not

available in his house. According to the prosecutrix, as it was night time

and no means were available for going to the Police Station, on next day

morning at 7.30 am she proceeded to Pathari Police Station for lodging

her complaint. The prosecution specially stated that at the Police Station

Pathari some police were present. However, they refused to take down

her report by saying that Head Constable was not present at the Police

Station. The Head Countable arrived at 3.00 pm or 4.00 pm, then the

prosecutrix narrated the incident to him which was reduced into writing.

She narrated the incident to the Head Countable. He asked to submit

written report, which she accordingly submitted (Exhibit-9). The

prosecutrix was then referred to Sindewahi hospital at about 7.00 pm or

8.00 pm for her medical examination. She was medically examined by the

doctor. He issued medical certificate (Exhibit-23). The police took charge

of her clothes. The police also took charge of mattress as well as broken

pieces of bangles and buttons of the blouse under panchanama.

7] On careful scrutiny of the evidence of PW-1 it is noticed that

a suggestion was given, to her which she denied that on the date of

incident at about 7.30 pm on the road her husband along with 2/3 persons

assaulted accused no.1-Sudhakar due to which there were commotions

and at that time those persons also assaulted accused no.2-Praful and

therefore at about 7.30 pm accused no.1-Sudhakar went to the Police

Station and lodged the report against her husband (PW-1). She also

denied that, on the next day morning two police personnel came to her

7 Judg.050917 apeal 436.03.odt

house and enquired about her husband and a report was lodged against

her husband and therefore false report was filed against the appellants.

Few discrepancies were pointed out in her statement that after the

incident she was crying and on hearing her cries her brothers in law

Kavindra and Vijay came to that place. I do not find any material

discrepancies in the testimony of PW-1. PW-1 has deposed in most

natural manner. Her testimony is not at all shattered in cross examination

and she is found to be a reliable and trustworthy witness. PW-1 has

immediately disclosed the incident to her brothers in law as well as her

husband. The broken pieces of bangles and buttons of blouse lying at

the place of the incident clearly indicate that the prosecutrix had

struggled with the appellants and she tried her level best to resist the act

of the appellants. At this stage it is significant to note that, the medical

report of the prosecutrix reveals liner abrasions over the right wrist of the

length of 3-4 cm and three in number side by side and reddish brown in

colour. The Medical Officer has opined that these abrasions were

possible by broken bangles and those abrasions are 12 to 24 hours old.

It is significant to note that, from the place of incident broken pieces of

bangles and buttons of the blouse of the prosecutrix were taken charge

by the Police under seizure panchanama (Exhibit-12). It is well settled

that in a rape case, sole testimony of the prosecution can be relied upon

& no corroboration to her version is necessary, if she is found to be a

reliable & trustworthy witness.

                                                     8                             Judg.050917 apeal 436.03.odt 

             8]                In   case   of  State   of   H.P.   v.   Sanjay   Kumar   alias   Sunny 

reported in 2017(3) Mh.L.J. (Cri.)(S.C.) 68, the Hon'ble apex Court has

held in paragraph 31 as under :-

"31. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborate in material particulars, as in the case of an accomplice to crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance."

                                                     9                             Judg.050917 apeal 436.03.odt 



             9]                In  (1996) 2 SCC 384  in case of    State of Punjab v. Gurmit  

Singh and others, in paragraph 8 the Hon'ble apex Court has held as

under :-

"8. .......The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."

10] In case of Aman Kumar and another v. State of Haryana,

reported in (2204) 4 SCC 379, the Hon'ble apex Court has held as

under :-

"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional."

11] In case of Jugendra Singh v. State of Uttar Pradesh,

reported in (2012) 6 SCC 297, the Hon'ble apex Court in paragraphs 41,

42, 43 and 49 has held as under :-

10 Judg.050917 apeal 436.03.odt

"41. In State of U.P. v. M.K. Anthony (1985) 1 SCC 505 this Court has observed (SCC p. 331, para 15) that in case of "[m]inor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole".

42. In Rammi v. State of M.P. (199) 8 SCC 649, this Curt has held as follows :(SCC p. 656, para 24) "24.When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness were so incompatible with the credibility of the version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."

43. In Appabhai v. State of Gujarat (1988 Supp SCC

24) this Court has ruled thus :(SCC pp.246-47, para 13).

"13. ... The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be

11 Judg.050917 apeal 436.03.odt

given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witlessness altogether if they were otherwise trustworthy.

49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. "

Thus the testimony of prosecutrix is found to be trustworthy.

12] The testimony of the prosecutrix is supported by the

testimony of her husband (PW-6). Patru (PW-6) deposed that at about

7.30 pm he went to the Pan stall after having dinner. He returned back

home at about 8.00 to 8.30 pm and found his wife weeping in the house.

By that time his brothers Kavindra and Sudhakar had visited his house.

The prosecutrix disclosed the incident of commission of rape by accused

nos. 1 and 2. Thereafter, Patru (PW-6) along with PW-1 went to the

house of Police Patil. However, he was not present in his house. He

12 Judg.050917 apeal 436.03.odt

stated that as it was night time and there was no means available to go

to Pathari as his village is situated in a forest area, they proceeded to the

Police Station Pathari by bus on next day at 7.00 to 7.30 am., there the

complaint of his wife recorded by the Police. The testimony of Patru

(PW-6) is not shattered in his cross examination on material aspect & it

corroborates with the testimony of PW-1 on material aspect.

13] The testimony of Sudhakar (PW-8) disclosed that, on the

date of incident in between 8.00 to 8.30 pm, when he was present in his

house he heard some noise and therefore he went to the house of the

prosecutrix. At that time, prosecutrix was inside her house whereas

Kavindra and Vijay and his wife were standing at that door of her house.

The prosecutrix was sitting and crying. She was sitting on the bed which

was on the floor. On asking the prosecutrix as to what had happened she

informed that, Sudhakar and Prafull had committed rape on her and they

threatened her to the effect that if she opened the mouth they would kill

her. After about 10 to 15 minutes her husband returned home and the

prosecutrix narrated the incident to her husband also. PW-8 specifically

stated that as Pathari Police Station had 9 to 10 Kms away from the

house of prosecutrix and it being a dense forest area, the prosecutrix and

her husband could not go to the Police Station during that night and on

the next day morning both of them went to the Police Station to lodge the

complaint. PW-8 specifically stated that he had seen the broken

bangles and buttons of blouse at the place on incident. He identified

those articles in the Court as the articles lying at the place of incident.

13 Judg.050917 apeal 436.03.odt

PW-8 stated in the cross examination that when he reached to the house

of the prosecutrix, he saw her sitting in naked condition and she narrated

the incident to him. The testimony of PW-8 is not shaken in cross

examination at all & from his testimony it can be gathered that his

presence on the spot is natural one & the prosecutrix disclosed the

incident of rape immediately. He has stated as to what had transpired to

him at the place of incident.

14] Dr. Jayashree (PW-9) the Medical Officer has noticed liner

abrasions over the right wrist of 3-4 cm in length side by side and reddish

brown in colour. According to her these abrasions can be caused by

broken bangles and are 12 to 24 hours old. She issued medical certificate

of the victim (Exhibit-23).

15] The testimony of PW-6 and PW-8 corroborates with the

testimony of prosecutrix on all material aspect, particularly, there is no

reason for the prosecutrix to falsely implicate the accused in such an

heinous offence. The alleged rivalry between the prosecutrix, her

husband with the accused can not be a reason for the prosecutrix to foist

a false complaint against the accused by putting her reputation at stake.

The medical evidence makes amply clear that the accused succeeded in

committing forcible sexual intercourse with the prosecutrix although she

resisted the act. That was the reason she received injuries on her wrist

during the scuffle. In view of above, it is clear that, both the accused

have committed rape on the prosecutrix.

                                                     14                             Judg.050917 apeal 436.03.odt 

             16]                As far as the CA report is concerned, it is manifest from the 

CA report that on the petticoat of the prosecutrix semen stains and blood

stains of the groups of the accused were detected, which confirm their

involvement in the crime.

17] In my opinion, the learned trial Judge had properly the

evidence on record and rightly passed the order, consequently, the appeal

fails and it is liable to be dismissed. In view of the facts and

circumstances, the following order is passed:-

O r d e r

(a) Criminal Appeal No. 436 of 2003 is dismissed.

(b) The judgment and order dated 04-07-2003 delivered

by learned Additional Sessions Judge, Chandrapur

in Sessions Case No.61 of 1996 stands confirmed.

(c) The Judgment and order passed by the learned

Additional Sessions Judge, Chandrapur in Sessions

Trial No.61 of 1996 delivered on 04-07-2003,

convicting the appellants under Section 376(2)(g) of

the Indian Penal Code and each of them sentenced to

suffer rigorous imprisonment for three years and to

pay a fine of Rs.1500/- each, in default to suffer

imprisonment for three months, is maintained.

(d) The appellants are on bail. Their bail bonds stand

cancelled. They are directed to surrender before

the learned Additional Sessions Judge, Chandrapur

15 Judg.050917 apeal 436.03.odt

to undergo the remaining period of sentence. If they

do not surrender within a period of four weeks from

today, the learned trial Court is directed to take

appropriate action in accordance with law.

(e) Muddemal property be dealt with as directed by

trial Court after the appeal period is over.

JUDGE

Deshmukh