Mahadeo Sampat Lokhande vs The State Of Mah. Thr. P.S.O., P.S. ...
2017 Latest Caselaw 7334 Bom

                                                                                                                CRI.APPEAL.9.11
                                                                       1


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

                                                 CRIMINAL APPEAL NO. 9/ 2011

            Mahadeo Sampat Lokhande
            Aged 65 years, R/o Titawa
            Taluka Barshi Takli, Diost. Akola.                                        ..           APPELLANT

                        versus

            The State of Maharashtra
            Through P.S.O.
            Police Station Pusad,
            Dist. Yavatmal.                                                            ..         RESPONDENT

...............................................................................................................................................
            Shri R.R. Shrivastava, Advocate for the appellant
            Shri S.B.Bissa, Additional Public Prosecutor for respondent -State
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

DATED: 20th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 30.12.2010 in

Sessions Trial No.23/2010 delivered by the learned Extra Joint Ad-hoc Additional

Sessions Judge, Pusad, convicting the appellant (hereinafter referred to as 'the

accused') for the offence punishable under section 363 of the Indian Penal Code

and sentencing him to suffer R.I. for two years and to pay a fine of Rs.200/-, in

default, to suffer R.I. for fifteen days, the present Appeal is filed. The accused

was, however, acquitted of the offence punishable u/ss. 366A, 376 of the IPC.

CRI.APPEAL.9.11

2. Brief facts giving rise to the instant Appeal may be summarized as

under:-

Natthu Tembare (complainant ) was a labourer and was residing

at Chikhali Camp, Tq. Pusad, Dist. Yavatmal along with his family. Prosecutrix

(PW10) is his daughter. The accused was the Guru of the complainant. At the

relevant time, the prosecutrix was aged about 14-years and was studying in Vth

standard in Vasantrao Naik Ashram Shala, Chikhali camp. Since last 8 to 10

years,the accused used to visit the house of the complainant. At the relevant

time, the accused was aged about 65 years. The incident had occurred on

24.1.2010. Since last six months prior to the incident, the accused used to reside

in the house of the complainant. On the day of the incident, the accused told

PW3-Natthu that he was going to Pusad and accordingly he left the house of

PW3. On the same day at about 8.00 a.m, the daughter of PW3 (prosecutrix) told

her mother that she was going to answer nature's call and left the house. Since

the prosecutrix did not return home for a long time, PW3-Nathhu as well as his

wife searched the prosecutrix, however, she was not traced out. PW3 then

lodged a missing complaint in respect of his daughter (Exh.14). PW3 then

visited village Kalamatra-Wadi. One Vikram Dhakre (not examined) from Wadi

informed PW3 that his daughter was seen with the accused and he also informed

that the accused would come after two days at Kalamatra for attending the fair.

PW3 stayed at Kalamatra for about 4 days, thereafter he proceeded to

CRI.APPEAL.9.11

Mangrulpir. He stayed there and then he returned to his house. Since he could not

trace out his daughter, he lodged the complaint on 9.10.2010 at Police Station

Pusad (Exh.15). On 15.10.2010, PW3-Natthu, again, lodged a complaint with

Pusad Police Station stating that his daughter is missing since 24.1.2010 and he

came to know that the accused-Mahadeo Sampat Lokhande kidnapped his

daughter and an action be taken against him (Exh. 16).

3. On the basis of the said complaint, offence came to be registered.

On 2nd March 2010, PW3 came to know from Police Patil from Titawa that his

daughter was seen with the accused at Titawa. PW3 then proceeded along with

the police to Titawar. Accused along with his daughter was found in the house of

one Parvatibai at Titawa. Police brought both of them to Police Station Pusad.

The custody of prosecutrix was given to PW3 on 5.3.2010. The prosecutrix was

examined by the Medical Officer at Pusad. Head Constable Ashok Raut (PW12)

was attached to police station, Pusad at the relevant time i.e. On 16.2.2010. He

visited the place of the incident at Titawa. PW 12 then arrested the accused and

the prosecutrix was referred for medical examination. After conducting the

investigation, PW12 submitted the charge sheet in the court of learned JMFC. The

case was committed to the court of sessions. The learned trial Judge framed the

charge. The accused pleaded not guilty and claimed to be tried. On appreciation

of the evidence on record and hearing both the sides, the learned trial Judge

convicted the accused, as aforesaid. Hence this Appeal.

CRI.APPEAL.9.11

4. Mr. R.R.Shrivastava, the learned counsel for the appellant

vehemently argued that the trial Court has rightly acquitted the accused for

offence punishable u/ss. 376 and 366A and has erroneously convicted him u/s

363 of IPC. The learned APP contended that the learned trial Judge has rightly

convicted the accused u/s 363 of IPC. At this juncture, the learned APP

admitted that no appeal has been preferred by the State against the acquittal of

the accused u/s 366A and 376 of IPC.

5. After hearing the arguments of both sides, it is necessary to go

through the prosecution witnesses. It is noticed that the learned trial Judge has

examined in all 12 witnesses. However the material witnesses are PW3-Natthu,

father of the prosecutrix, PW 4 Trambak Lokhande, who has shown the house of

Parvatibai where the prosecutrix was found with the accused, PW10, the

prosecutrix, PW 7-Jagdev who had seen the victim and the accused together,

PW 11,Gopichand Chavan, the headmaster of the school and PW 12-Ashok

Raut, the Investigating officer.

6. So far as the testimony of PW3 -Natthu is concerned, he has

deposed that the accused was his Guru and he used to stay with them for about

six months, prior to the incident, which had taken place on 24.1.2010. PW 3

deposed that on the date of incident in the morning, accused left the house for

proceeding to Pusad. His daughter too left the house at about 9.00 am, however,

she did not return home for a long time. Therefore, PW3 and his wife searched

CRI.APPEAL.9.11

their daughter. However she was not traced out. PW3 then lodged a missing

complaint (Exh.14). PW3 himself took search of his daughter at village

Kalamatra-Wadi. He came to know from one Vikram that his daughter was seen

with the accused. PW3 stayed at Kalamatra for two days. He did not find his

daughter. So also, he proceeded to Mangrulpir to search his duaghter. However

he did not find his daughter at that place also. Then he returned to his house.

PW3 then lodged his complaint on 9.2.2010 at Police station Pusad (Exh.15).

According to PW3, he again lodged his complaint on 15.2.2010 (Exh.16). PW3

then came to know from Police Patil of Titawa on 2nd March 2010 that his

daughter was seen with the accused at Titawa. PW1 then proceeded to Titawa

along with the Police. He found his daughter in the house of one Parvatibai at

Titawa. The police brought his daughter to Pusad. The police then apprehended

the accused. His daughter was medically examined at Pusad. PW3 stated that at

that time his daughter did not disclose him anything against the accused due to

his pressure. However after few days his daughter disclosed him that the

accused had committed rape on her at Titawa, in the house of Parvatibai. She

informed that she stayed for about 2/3 days in the house of Parvatibai. His

daughter informed him that the accused said that if she would discuss about the

rape to anyone she would get disappeared and therefore she had not disclosed

the incident of rape to him. Thus, the daughter informed that the accused had

raped her for about five to six times and threatened to kill her if she discloses the

CRI.APPEAL.9.11

same to anybody.

7. It was suggested to PW3 during his cross-examination that as the

accused had not offered the amount for the meals which he had in the house of

PW3, he had submitted a false report against him. The testimony of PW 3 has

not been shattered in the cross-examination and is found to be a reliable and

trustworthy.

8. The prosecutrix PW10 stated that the accused used to stay in her

father's house. The accused asked her to accompany him to visit the fair at

Titawa. PW 10 stated that she would take permission of her parents and then

accompany him. However the accused said that her parents would come to

Titawa on next day and she should accompany him on that day itself, therefore,

PW 10 accompanied the accused for proceeding to Parwa, then they went to

Ansing and thereafter to Washim, from there they proceeded to Dawa and finally

at Kalamatra. One person at Kalmatra enquired with the accused about her father

and, at that time, the accused informed him that she is the daughter of his Chela.

Thereafter the accused took her to Titawa. On on the way, the accused visited

his son's house. At Titawa, PW 10 stayed for two days and two nights. PW 10

stated that the accused had sexual intercourse with her during that period.

Thereafter they went to one Gangaram's house at Nawegaon and stayed there

for 7 to 8 days. Thereafter, the accused had sexual intercourse with her.

Thereafter they returned to Titawa and stayed there for a night. However on the

CRI.APPEAL.9.11

next day, the police came and brought her to Pusad and her statement was

recorded by the police. It was put up to the prosecutrix during her cross-

examination that she had not informed to any person that the accused was taking

her to Titawa, till reaching Titawa. Nothing adverse was elicited from the cross-

examination of PW 10 and she is found to be reliable witness. It is not at all

shattered in the cross-examination to the fact that PW 10 she was taken by the

accused at different places and ultimately the police visited the place at Titawa

and she was taken to Pusad from Titawa.

9. The testimony of PW4-Trambak shows that he was working as a

Police Patil of village Titawa. On 2nd March 2010 in the evening the police asked

him to show the house of Parvatibai Tondkar. Accordingly, he pointed out the

house of Parvatibai wherein the accused as well as the victim was present. The

police apprehended the accused, so also the police took the prosecutrix with them.

There is nothing to disbelieve the testimony of PW4-Trambak and, thus, it is clear

that the accused as well as the victim were found together on 2 nd March 2010 in

the house of Parvatibai Tondkar.

10. The testimony of PW7-Jagdeo indicates that on 25.1.2010 at about

5.30 p.m, when he was in the field, he noticed that the accused was coming with

a girl by pathway from his field and went to the house of Parvatibai. PW7 made

enquiry with the son of Parvatibai, namely, Kisan, as to for what purpose the

accused came to their house along with the girl. On this, Kisan informed him that

CRI.APPEAL.9.11

the girl was brought for visiting the fair. On 2 nd March 2010 on the enquiry

made by the police, he pointed out the house of Parvatibai and at that time the

accused and the girl were present in the house of Parvatibai. The accused was

apprehended by the police and the police took custody of the girl. The testimony

of PW7 corroborates with the testimony of PW4-Trambak on the point that the

accused and the victim were found in the house of Parvatibai and the police

apprehended the accused from that place, so also the police took custody of the

prosecutrix from the house of Parvatibai.

11. On going through the testimony of the witnesses, it is amply clear

that the accused stayed in the house of PW 3- Natthu since last six months prior

to the date of occurrence i.e. 24.1.2010. He pretended to be the guru of PW3 and

therefore in this manner he came in contact with the prosecutrix, who is the

daughter of PW3. Considering her tender age i.e about 14 to 15 years, the

accused enticed her that he would take her to fair at Titawa and, accordingly,

took her at different places and finally at the house of Parvatibai and committed

forcible sexual intercourse with her. So far as the allegations against the

accused with regard to the fact that he had committed rape on the prosecutrix,

as already discussed above, the learned trial Judge has acquitted the accused of

the said charges. As such, it is not necessary to discuss the medial evidence of

the victim. So far as the allegation of kidnapping is concerned, the testimony of

PW3-Natthu i.e. father of the prosecutrix shows that his daughter informed him

CRI.APPEAL.9.11

that the accused said to her that if she disclose about the rape to anyone, she

would get disappeared. It appears that the accused influenced the victim that he

was her Guru and he would get her disappear if at all she complains to anyone

against him. At this juncture, it would be proper to discuss the age of the victim.

However it may be mentioned that the age of the victim is not seriously disputed

by the defence. At the relevant time she was studying in Vth standard and as per

the school record her date of birth is shown as 19.6.1996 i.e. on the date of

incident 24.1.2010 i.e. 13 years 7 months and five days, that is, she was

certainly below the age of 18 years at the time of the incident. Thus, the

prosecution has proved that the prosecutrix was enticed by the accused who had

taken away her out of the custody of her lawful guardians i.e her parents when

she was below the age of 18 years and thus had kidnapped her from the lawful

guardianship of her parents, as alleged by the prosecution. The learned trial

Judge has rightly convicted the accused u/s 363 IPC. Hence the judgment and

order passed by the learned trial Judge needs to be maintained. Hence the order :

-

ORDER

I) Criminal appeal No. 9/2011 is dismissed.

ii) The judgment and order dated 30.12.2010 in Sessions Trial No.23/2010

delivered by the learned Extra Joint Ad-hoc Additional Sessions Judge, Pusad,

convicting the appellant for the offence punishable under section 363 of the Indian

CRI.APPEAL.9.11

Penal Code and sentencing him to suffer R.I. for two years and to pay a fine of

Rs.200/- , in default, to suffer R.I.for fifteen days, is hereby maintained.

iii) The appellant shall surrender to his bail bond, to undergo the remaining

sentence, within a period of four weeks.

iv) Professional fees of Mr.R.R.Shrivastava, Advocate (appointed) for

appellant are quantified at Rs.5,000/-. However, he requests that the fees be

given to the District Bar Association, Nagpur. Request accepted. The professional

fees be remitted to District Bar Association, Nagpur.

JUDGE

sahare