Bombay High Court
Raju S/O. Madhav Kasture (In Jail) vs The State Of Maharashtra Thr. ... on 19 September, 2017
Bench: Swapna Joshi
1 Judg 190917 apeal 104.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.104 of 2017
Raju Madhav Kasture,
aged about 26 years, Occ.- Cultivator,
R/o.-Somanpalli, Tq. Chamorshi,
District Gadchiroli .... Appellant.
-Versus-
The State of Maharashtra,
through P.S.O. Chamorshi, District Gadchiroli .... Respondent.
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Mr. I.G. Meshram, Counsel for appellant.
Mr. S.B. Bissa, Additional Public Prosecutor for respondent/State.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 19
September, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant (hereinafter
will be referred as 'the accused') against the judgment and order passed
by the learned Sessions Judge, Gadchiroli in Sessions Trial No.2 of 2014
on 24-07-2015, whereby the learned trial Judge had convicted the accused
for the offence punishable under Section 376(2)(k)(l) of the Indian Penal
Code and sentenced to suffer rigorous imprisonment for ten years and to
pay a fine of Rs.1000/-, in default, to suffer rigorous imprisonment for three
months.
2 Judg 190917 apeal 104.17.odt
2] I have heard Mr. I.G. Meshram, the learned counsel for the
appellant and Mr. S.B. Bissa, the learned Additional Public Prosecutor for
the respondent/State. With their assistance, I have carefully gone through
the record of the prosecution case.
3] The facts leading to prefer this appeal can be summarised as
under :-
The victim was aged about 19 years mentally retarded girl
and daughter of the complainant Vishwanath (PW-13), resident of
Somanpalli. She was residing along with her family members i.e father,
mother and sister at Somanpalli, Tq. Chamorshi, District Gadchiroli. It is
the case of the prosecution that, on 30-09-2013, at about 3.00 pm,
complainant PW-6-Ganpati was in his field situated behind his
residential house. Since 12 o' clock in the noon he was sitting below the
tree and taking care of his field and he was expelling parrots from his
field. At that time his wife was with him. When he was expelling parrots in
his field, he heard somebody's voice "to lie down properly". On this, the
complainant went ahead and he noticed that in his field where Maize
crops were there, accused was committing sexual intercourse with the
prosecutrix, on pressing her mouth. On this PW-6 called PW-7-Police
Patil Smt. Mangalabai Bhendare whose house was adjacent to his house.
PW-6-Ganpati called PW-7-Smt. Mangalabai and asked her to come to his
field. In the meantime, wife of complainant PW-8-Shewantabai also came
to that place. The complainant narrated the incident to his wife. PW-7-
Smt. Mangalabai and her husband also came to that place and they all
3 Judg 190917 apeal 104.17.odt
rushed to the field of the complainant. They all saw that the accused was
committing sexual intercourse with the prosecutrix. On seeing the
incident, PW-7-Smt. Mangalabai called the accused. On hearing this, the
accused immediately got up and started running away by holding his pant.
The accused was asked to put on his pant. Thereafter, the accused was
brought in front of the house of Chakradhar Bhendare. Similarly, the
prosecutrix was also asked to put on her clothes and she was also
brought in front of the house of Chakradhar. Thereafter, PW-7-Smt.
Mangalabai called the Police and handed over the accused to the Police.
PW-6-Ganpati, PW-7-Smt. Mangalabai and her husband Chakradhar
proceeded to the Police Station along with the victim and the accused.
PW-6-Ganpati lodged his complaint (Exhibit-40). On the basis of the said
complaint, the offence was registered.
4] During the course of investigation, the prosecutrix was
referred to District Hospital, Gadchiroli for her medical examination. The
Police visited the place of incident and prepared the spot panchanama
(Exhibit-60) in the presence of the panch witnesses. The Police also
referred the accused for his medical examination. The clothes of the victim
as well as the accused were taken charge by the Police under seizure
panchanama (Exhibit-20). The samples of blood, pubic hair of the
accused and the victim were collected (Exhibits-19 and 21 respectively)
and sent to CA office for analysis. Similarly, the samples of vaginal swab
of the victim and the semen of the accused were also collected and sent
to the CA for analysis. The CA reports were collected (Exhibits-82 and 83
4 Judg 190917 apeal 104.17.odt
respectively). The statements of the witnesses were recorded and on
completion of the investigation, the chargesheet came to be filed in the
Court of learned JMFC, Chamorshi. The case was committed to the
Court of Sessions. The learned trial Judge framed the charge. The
accused pleaded not guilty to the charge levelled against him and claimed
to be tried. On conducting the trial, on appreciation of the evidence and
hearing both the sides, the learned trial Judge convicted the accused as
aforesaid. Hence, this appeal.
5] I have heard Mr. I.G. Meshram, the learned Counsel for the
appellant and Mr. S.B. Bissa, the learned APP for the State. I have
carefully gone through the record and proceedings of the case.
6] Mr. I.G. Meshram, the learned Counsel for the appellant
vehemently argued that the learned trial Judge has committed an error on
relying upon the testimony of the alleged eye witnesses and has
erroneously come to the conclusion that the accused has committed the
offence of rape. According to the learned Counsel for the appellant, the
appellant has been falsely implicated in the case. The Ld. APP Mr. Bissa
contended that the Ld. trial Judge has relied upon the evidence of the eye
witnesses & the medical evidence & has rightly convicted the accused.
7] In order to verify the rival contentions of both the sides, it
would be advantageous to go through the evidence led by the prosecution.
The prosecution has mainly relied upon the testimony of the alleged eye
witnesses i.e. PW-6-Ganpati, PW-7-Smt. Mangalabai and PW-8-
Shewantabai. Apart from that the prosecution has relied upon the
5 Judg 190917 apeal 104.17.odt
testimony of PW-1-Dr. Pravin and PW-14-Dr. Purushottam who are the
Medical Officers. The prosecution has not examined the prosecutrix for
the reason that the prosecutrix was brought in the Court for examination
however she was not found fit to be examined and the said fact was
observed by the learned Sessions Judge and he passed order below
Exhibit-1 in respect of the incapacity of the victim to depose before the
Court. Looking to the case of the prosecution that the prosecutrix was
mentally retarded girl and she was incapable to depose before the Court,
considering this aspect, the prosecution case is to be scrutinized
carefully.
8] PW-6- Ganpati, the complainant deposed that, at the time of
incident he was present in his field (Sandwadi). He was expelling the
parrots which had come to his field. His wife was also present with him.
At that time, he heard the voice of one person. Hence, he went ahead
towards the place where he heard the voice. At that time he saw that,
accused Raju was committing sexual intercourse with the prosecutrix on
pressing her mouth. PW-6 returned back and informed about the same to
his wife. He informed his wife to bring the Police Patil as the house of
the Police Patil was near his field. Accordingly, PW-7-Smt. Mangalabai,
the Police Patil and her husband Chakradhar came to that place.
Thereafter, they all went to the place of incident. The accused was seen
committing sexual intercourse with the prosecutrix. On noticing this,
PW-7-Smt. Mangalabai called the accused. The accused tried to put on
his pant and run away from the spot. However, Chakradhar caught hold of
6 Judg 190917 apeal 104.17.odt
him. Thereafter, the wife of complainant PW-8-Shewantabai and PW-7-
Smt. Mangalabai put on the clothes of the prosecutrix. The accused and
the prosecutrix were brought to the house of the Police Patil. Thereafter,
PW-7-Smt. Mangalabai called the Police. PW-7-Smt. Mangalabai took the
accused and the prosecutrix to the Police Station at Chamorshi. The
complainant lodged the complaint (Exhibit-40). In the cross examination
PW-6 failed to state as to where from the accused and the prosecutrix
had come to his field. PW-6-Ganpati categorically stated that the
prosecutrix being of unsound mind was escaping attention of her parents
and she used to move in the village. Finally it was suggested to PW-6-
Ganpati that he had committed sexual intercourse with the prosecutrix and
at that time his wife was not present in the field and to conceal the said
fact he has falsely implicated the accused in this case. PW-6-Ganpati has
denied the said suggestion. On careful scrutiny of the testimony of PW-6-
Ganpati, it is found that, his testimony is not shattered in the cross
examination and his testimony is supported by the testimony of PW-7-
Smt. Mangalabai.
9] PW-7-Smt. Mangalabai, the Police Patil of the village stated
that on the date of incident at about 2.00 to 3.00 pm, when she was
present in the courtyard of her house PW-6-Ganpati called her in a low
tone. At that time her husband and wife of PW-6-Ganpati were also
present there. PW-6-Ganpati told her that accused Raju is committing
sexual intercourse with the prosecutrix in his field and asked her to come
to his field and see the same. Accordingly, they all went to the field and
7 Judg 190917 apeal 104.17.odt
saw that accused Raju was committing sexual intercourse with the
prosecutrix by pressing her mouth. PW-7-Mangalabai called the accused.
The accused got up and tried to run away from that place along with his
clothes. However, Chakradhar caught hold of him. The accused was
directed to put on his clothes, so also the prosecutrix was also asked to
put on her clothes. Thereafter, they all came to the house of PW-7-Smt.
Mangalabai. PW-6-Ganpati informed the Police about the said incident
on telephone and at about 6.00 pm, the Police visited her house. The
Police apprehended the accused. It was suggested to PW-7-Smt.
Mangalabai that the prosecutrix is mentally retarded and she wonders in
the village and goes with any person who offers her 'Kharra' or tobacco.
PW-7-Smt. Mangalabai denied the said suggestion given to her. It was
suggested to her that due to cordial relations with PW-6-Ganpati, she
falsely implicated the accused in the offence. PW-7-Smt. Mangalabai
denied the said suggestion given to her. Nothing has been elicited from
the cross examination of PW-7-Smt. Mangalabai and her testimony is not
shattered in cross examination on the material aspect.
10] The testimony of PW-8-Shewantabai, who is the wife of
PW-6-Ganpati reveals that on the date of incident she along with her
husband was present in the field. Her husband was expelling the parrots
from the field. Her husband called her and asked her to accompany him
to the field. Her husband informed her that Raju is committing sexual
intercourse with the prosecutrix in their field and asked her to call the
Police Patil. PW-8-Shewantabai then gave a call to Police Patil and
8 Judg 190917 apeal 104.17.odt
Police Patil along with her husband came to the field of PW-8-
Shewantabai. PW-8-Shewantabai was declared hostile by the
prosecution. However, during the course of cross examination she
admitted that, she had visited the place of incident and had seen the
incident. She had seen accused Raju committing sexual intercourse with
the prosecutrix. She admitted that PW-7-Smt. Mangalabai called the
accused. Accused Raju got up and ran away along with his clothes.
Chakradhar caught hold of Raju and then Raju was taken to the Police
Station. She stated that as she did not remember all these facts earlier,
she had not stated those facts before the Court. A suggestion was also
put to her that her husband had committed sexual intercourse with the
prosecutrix and to conceal the same, she is deposing falsely before the
Court. PW-8- Shewantabai denied the said suggestion. It was suggested
to PW-8-Shewantabai that she had not seen the accused committing
sexual intercourse with the prosecutrix. PW-8- Shewantabai denied the
said suggestion. On careful scrutiny of PW-8-Shewantabai she has
supported the case of the prosecution on the material aspects.
11] As regards the testimony of PW-13-Vishwanath, who is the
father of prosecutrix, he has deposed that the prosecutrix is his daughter
and she is mentally retarded. He further stated that on the date of incident
he had gone for labour work in the field. On that day, in the noon time,
his daughter Sangita came to the field and informed about the incident.
12] The testimony of PW-9-Sangita who is the sister of
prosecutrix shows that on the date of incident at about 12 o'clock in the
9 Judg 190917 apeal 104.17.odt
noon, accused Raju was wondering near their house. As she was
frightened, she had gone alone out of the house and returned back at
about 2.00 pm. At that time there was no one present in the house. She
stated that the prosecutrix was not present in the house. She searched
the prosecutrix in the village. At about 2.30 pm, she heard the
commotions near the house of PW-6-Ganpati. Therefore, she went to
that place and she came to know from PW-7-Smt. Mangalabai that
accused committed rape on prosecutrix. PW-8-Shewantabai asked her to
bring her parents and accordingly she went to her parents.
13] As far as the medical evidence is concerned, PW-1-
Dr. Pravin stated that on 01-10-2013, he examined the prosecutrix.
According to him, the prosecutrix was mentally retarded lady with history
of Epilepsy. On examination he found that the hymen of the prosecutrix
was torn and it was bleeding to touch. Her vagina was admitting two
fingers. In his opinion, sexual intercourse had taken place with the
prosecutrix at least before 24 hours of examination. Therefore, PW-1-
Dr. Pravin issued medical certificate of prosecutrix (Exhibit-12). It is
noticed that the medical evidence corroborates the ocular testimony of the
complainant as well as the other eye witnesses i.e. PW-7-Mangalabai and
PW-8-Shewantabai. On careful scrutiny of the testimony of all the
witnesses, their testimony is found cogent, reliable and trustworthy. Their
testimony is not shattered in cross examination. Apart from that it is
suggested to the witnesses that the complainant had committed sexual
intercourse with the prosecutrix. All the witnesses denied the said
10 Judg 190917 apeal 104.17.odt
suggestion. No material has been brought on record by the defence to
shake the case of the prosecution.
14] It is significant to note that, in the testimony of PW-14-
Dr. Purushottam he states that, on 26-11-2009, he was medically
examined the prosecutrix. On examination he found that, she was not in
a position to talk, she was not acquainted with the social environment.
PW-14-Dr. Purushottam came to the conclusion that the prosecutrix is
having severe mental retardation. He advised that someone should
always remain with her and her special care should be taken. He issued
certificate (Exhibit-72). PW-14-Dr. Purushottam categorically stated that
prosecutrix was 80% disabled. From the testimony of PW-14-
Dr. Purushottam, it is amply clear that, the prosecutrix was mentally
retarded lady and she was treated by PW-14 since 26-11-2009.
15] Exhibit-71 is the identity card of the disabled person
supported the case of the prosecution that the prosecutrix was mentally
retarded. The accused had taken undue advantage of the said situation
and he committed sexual intercourse with her. The injuries mentioned by
the Medical Officers make amply clear that the injures to the private part
of the prosecutrix were fresh and they were bleeding on touch. Thus,
the prosecution has established the case beyond reasonable doubt.
16] In my opinion, the learned trial Judge had properly
appreciated the facts brought on record by the prosecution. In view of
the fact that, the learned trial Judge has rightly appreciated the evidence
brought on record and rightly passed the order, consequently, the appeal
11 Judg 190917 apeal 104.17.odt
fails and it is liable to be dismissed. Hence, the following order is passed:-
O r d e r
(a) Criminal Appeal No. 104 of 2017 is dismissed.
(b) The judgment and order delivered by the learned
Sessions Judge, Gadchiroli in Sessions Trial No.2 of
2014 stands confirmed.
(c) The judgment and order delivered by the learned
Sessions Judge, Gadchiroli in Sessions Trial No.2 of
2014, thereby convicted the appellant for the offence
punishable under Section 376(2)(k)(l) of the IPC and
sentenced to suffer rigorous imprisonment for ten
years and to pay a fine of Rs.1000/-, in default, to
suffer rigorous imprisonment for three months, is
maintained.
(d) Muddemal property be dealt with as directed by
trial Court after the appeal period is over.
JUDGE
Deshmukh
