Shankar @ Shekhar Devrao Mundhe vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 12069 Bom

Judgment

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

                   CRIMINAL APPEAL NO.372 OF 2018

Shankar @ Shekhar Devrao Mundhe,
Aged 24 years,
R/o Village Rajanda,
Tahsil Barshitakli,
District Akola (In Jail).      ..... Appellant.

                                  :: V E R S U S ::

The State of Maharashtra,
Through Police Station Officer,
Police Station Barshitakli,
District Akola.                  ..... Respondent.
===================================
Shri V.M.Moon, Counsel for the Appellant.
Shri S.M.Ghodeswar, Additional Public Prosecutor for the
Respondent/State.
===================================


             CORAM              : V.M.DESHPANDE, & AMIT B.BORKAR, JJ.

DATE : AUGUST 30, 2021

ORAL JUDGMENT (Per : V.M.Deshpande, J.)

1. This appeal challenges judgment and order of

conviction dated 27.4.2018 passed by learned Additional Sessions

Judge, Akola in Sessions Trial No.123/2016. By the said, the

appellant was convicted for offences punishable under Sections

376-D, 392, and 447 read with Section 34 of the Indian Penal

.....2/-

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Code.

For his conviction under Section 376-D of the Indian

Penal Code, he was directed to suffer rigorous imprisonment for a

term of 20 years and to pay fine Rs.26000/- and in default of

payment of the fine amount was directed to suffer simple

imprisonment for a term of 1 year.

For his conviction under Section 392 read with Section

34 of the Indian Penal Code, he was directed to suffer rigorous

imprisonment for a term of 5 years and to pay fine Rs.5000/- and

in default of payment of the fine amount was directed to suffer

simple imprisonment for a term of 6 months.

For his conviction under Section 447 read with Section

34 of the Indian Penal Code, he was directed to suffer rigorous

imprisonment for a term of 3 months and to pay fine Rs.1000/-

and in default of payment of the fine amount was directed to suffer

simple imprisonment for a term of 15 days.

Learned Judge directed that all sentences shall run

concurrently.

.....3/-

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2. Learned Additional Sessions Judge, Akola framed

charge against the appellant charging him that on 28.2.2016, at

11:30 p.m., in agricultural field at Sindkhed, he along with

absconded accused Ashish @ Dubya in furtherance of their

common intention committed forcible sexual intercourse with

prosecutrix by pointing a knife on the neck of her husband Govind

and thereby they committed offence punishable under Section

376-D read with Section 34 of the Indian Penal Code.

He was also charged along with the absconded

accused that they committed robbery of spray pump, torch, and a

mobile, which were properties in possession of Govind, between

sunset and sunrise and thereby they committed offence punishable

under Section 392 read with Section 34 of the Indian Penal Code.

Third charge against the appellant was that he along

with the absconded accused committed agricultural trespass by

entering into field, in possession of the prosecutrix, with an intent

to commit the offence and thus they committed offence punishable

under Section 447 read with Section 34 of the Indian Penal Code.

.....4/-

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3. The appellant denied the charge and claimed for his

trial. During trial, to bring home the guilt of the appellant, the

prosecution examined in all 7 witnesses and also relied on various

documents duly proved during course of trial.

4. The appellant was arrested on 15.3.2016. Co-accused

Ashish @ Dubya could not be arrested and, therefore, after

completion of investigation, final report was filed against the

appellant and chargesheet under Section 299 of the Code of

Criminal Procedure was filed against the the co-accused. While

pronouncing the judgment of the conviction against the appellant,

learned Judge ordered that case against the absconded co-accused

be kept pending in a dormant file along with original deposition of

witnesses and standing Non-Bailable Warrant be issued against

him, till arrest and production before the Court for trial in view of

provisions of Section 299 of the Code of Criminal Procedure.

Learned Judge also ordered to preserve seized muddemal property

for the said purpose.

5. Since the appellant was aggrieved by his conviction

and sentence, he approached to this Court by filing the appeal.

.....5/-

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6. We have heard learned counsel Shri V.M.Moon for the

appellant and learned Additional Public Prosecutor Shri

S.M.Ghodeswar for the respondent/State. With their able

assistance, we have gone through record and proceedings, notes of

evidence, and proved documents.

7. Learned counsel for the appellant contended that the

appellant is falsely implicated in the crime. To buttress the point,

he submitted that scientific evidence, i.e. DNA Report, is not

showing finger of guilt towards the appellant. He submitted that

semen sample of the prosecutrix's husband was not collected. He

submitted that, therefore, the appeal be allowed.

8. Per contra, learned Additional Public Prosecutor for

the State submitted that testimonies of the prosecutrix and her

husband are trustworthy and those inspire confidence inasmuch as

according to him, their versions are supported by injuries found on

their persons by doctor at the time of their examination. He,

therefore, submitted that the appeal has no merit and it be

dismissed.

.....6/-

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9. One Jagdish Manohar Tarapure (PW3), is having his

agricultural land at Sindkhed. Initially, there, he sowed soyabean

crop. Thereafter, he cultivated the farm of pomegranate. In his

agricultural land, the work was given to Govind (PW2), the

husband of the prosecutrix (PW1), and the prosecutrix and they

used to stay in a small house constructed in the field only. A

cellphone was also given to them by him for contact.

10. In the month of January 2016, Jagdish (PW3) noticed

an unknown person in company of Vishnu Mundhe to whom he

gave work of digging a bore well in his field. He also found that

the said unknown person used to roam around the house

constructed in the field in suspicious circumstances and was

attempting to develop intimacy with the prosecutrix. Noticing the

said, he enquired with Vishnu about identity of the said unknown

person. Upon that, his identity was disclosed as Shankar @

Shekhar Devrao Mundhe, the appellant. Due to suspicious

activities, Jagdish asked Vishnu to restrain the appellant from

entering into his agricultural field.

11. On 29.2.2016, at about 7:30 a.m., when Jagdish

.....7/-

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(PW3) was reaching to his field, on road beside his field, he

noticed Govind (PW2) and prosecutrix (PW1) standing along with

their children and hence he stopped. That time, the said couple

narrated incident to him that appellant along with an unknown

person came in the agricultural field and has committed incident in

question. Jagdish noticed injury on the throat of Govind. The

couple asked Jagdish to take them to police station. While taking

them to police station, he made a phone call to Dr.(Smt.)Asha

Mirge, the Chairperson of Women Commission (PW5) and

narrated the incident to her. She also came in police station.

12. On 29.2.2016, prosecutrix (PW1), lodged her report

with Barshitakli Police Station, Akola. Her report is at Exhibit-19.

Whereas, printed First Information Report is at Exhibit-20. The

prosecutrix disclosed that at night, on 28.2.2016, after taking

dinner with her husband and children, they were sleeping. Her

husband was sleeping in veranda. At 11:30 p.m., there was a dog

barking which caused her husband awoke. When her husband was

proceeding to see happening, the appellant, along with an

unknown person, who was dark (lkoyk) in colour, aged about 25

.....8/-

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years and somewhat fat, accosted her husband and the unknown

person put a knife on the neck of her husband and snatched a cell

phone from his possession and, thereafter, Shankar started making

advances towards the prosecutrix and, therefore, out of fear she

ran away towards the field. She was followed by Shankar and

caught hold her and in presence of her husband he committed rape

on her. That time, the unknown person had his knife on the neck

of her husband, she could not resist Shankar due to fear that

something untoward will happen to her husband. The report

further states that after the rape from Shankar, he took out the

knife from his accomplice and he started threatening Govind, the

husband, and, thereafter, the unknown person committed rape on

her in presence of her husband. It is also narrated that while

leaving the place, after commission of the rape, they took along

with them a motor pump of spray. It is stated in the report that

since the cell phone was snatched away, they could not intimate

the fact in the night itself to their employer. In the morning, when

their employer came, along with him they came to police station.

13. When the prosecutrix and her husband reached to

.....9/-

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police station for lodging report in respect of the rape, the crime

was registered. Police Sub Inspector Sanjay Gangacharan Korche

(PW7), who at the relevant time was discharging his duties at

Barshitakli Police Station, Akola, sent the prosecutrix to Barshitakli

Rural Hospital for her medical examination along with Lady Police

Constable Priyanka Gawande B.No.2201. He also sent her

husband for his medical examination with a Police Constable

B.No.1301. The said couple returned to the police station between

2:00 p.m. and 2:30 p.m., after their medical examinations.

Thereafter, complaint of the prosecutrix was formally reduced into

writing. After registration of the crime, investigation was formally

handed over to Police Sub Inspector Sanjay Korche.

14. During investigation, firstly, Investigating Officer

Sanjay Korche (PW7) reached to Sindkhed Woodland. The spot of

the incident was shown by prosecutrix (PW1) which was

agricultural field of Jagdish Tarapure (PW3). The Investigating

Officer, in presence of panch witness Haridas Bhatkar (PW6),

recorded spot panchnama. The said spot panchnama is at Exhibit-

41. He also seized a petticoat and a saree of the prosecutrix, under

.....10/-

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seizure panchnama. The said seizure panchnama is at Exhibit-21.

At the time of the seizure, it was found that there were semen

stains on the petticoat. The Investigating Officer encircled said

stains and, thereafter, he deposited seized articles in the police

station.

15. On 8.3.2016, the appellant was arrested. The arrest

panchnama is at Exhibit-51. Investigating Officer Sanjay Korche

(PW7) seized a mobile phone handset and a sim card from the

accused, in presence of panch witness Haridas Bhatkar (PW6),

under seizure panchnama. The said seizure panchnama is at

Exhibit-42. The accused was also sent to Barshitakli Rural Hospital

for his medical examination and for his blood collection. The

blood and other samples, collected by the Investigating Officer,

were seized under seizure panchnama (Exhibit-44). During his

custody remand, the appellant gave his disclosure statement in

presence of panch witness Haridas Bhatkar. Admissible portion of

his memorandum statement is at Exhibit-45 and he agreed to show

place where he concealed the knife and the motor pump of spray.

Accordingly, the police party, which was led by the accused,

.....11/-

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reached to place where articles were concealed. Those were

seized under recovery panchnama (Exhibit-46). Similarly, clothes

of the accused were also seized under seizure panchnama

(Exhibit43). After completion of other usual investigation, the

chargesheet was filed.

16. Principle for appreciation of evidence of prosecutrix is

well settled in the case of Bharwada Bhoginbhai Hirjibhai vs. State

of Gujarat, reported at AIR 1983 SCC 753. The Honourable Apex

Court, in paragraph Nos.7 and 9, has ruled as under:

"para No.7 : It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v. State of Rajasthan, (1952)3 SCR 377 at p.386: (AIR 1952 SC 54 at p.57), has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court-

"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a

.....12/-

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conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, .....

The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

para No.9 : In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. 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?"

Keeping the aforesaid principle in mind, now we are

proceeding to examine the version of prosecutrix (PW1).

17. We have already seen that in oral report (Exhibit-19)

itself prosecutrix (PW1) narrated that rape was committed on her

by Shankar, the appellant, and his unknown accomplice in

.....13/-

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presence of her husband Govind (PW2) by putting a dagger on his

neck. Therefore, the Court will also require to appreciate version

of her husband.

18. Evidence of prosecutrix (PW1) is on line of facts

disclosed by her in her oral report (Exhibit-19). During her

evidence, she also stated on oath that when rape was committed

on her, in scuffle she sustained injury below knee of left leg. Of

course, the said particular version is not appearing in the First

Information Report. However, only for that, the version of the

prosecutrix does not become doubtful inasmuch as purpose for

lodging of the First Information Report is set criminal law into

motion. The First Information Report is not an encyclopedia of the

prosecution case.

19. Substantive evidence of prosecutrix (PW1), that she

suffered injury below knee of left leg, stands corroborated when

she was examined by Dr.Prakash Panditrao Deshmukh (PW4).

Evidence of the doctor shows that on 29.2.2016 when he examined

the prosecutrix, he found "one abrasion 1 cm x 1 cm lateral 1/3rd

part of left leg." Her injury certificate is at Exhibit-28. In our view,

.....14/-

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though corroboration is not at all necessary, if version given by the

prosecutrix is found to be trustworthy by the Court in this case,

noticing injury as stated by her, further lends assurance to the

Court.

20. During cross-examination of prosecutrix (PW1), it is

brought on record that place where rape was committed was

agricultural field where there was no stone. Therefore, no one

could doubt version given by the prosecutrix that when the rape

was committed on her, there was no injury on her back. In her

cross-examination, it is brought on record that Shankar, the

appellant, left her after he discharged his semen.

21. The prosecution also examined Govind (PW2), the

husband of prosecutrix (PW1). He fully corroborates the version

of his wife about the rape committed on her by putting him under

fear and putting a dagger on his neck causing injury to his neck.

The said prosecution witness was also examined by Dr.Prakash

Deshmukh (PW4). On his examination, he found injury in the

nature of lenier superficial clean cut 1 cm. in length, right lateral

part of neck. His injury certificate is at Exhibit-29. There is

.....15/-

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nothing in the cross-examination of the doctor that injury found on

the neck of Govind could be self inflicted injury.

22. Even, prior to medical examination of Govind (PW2),

injury on his neck was noticed by Dr.(Smt.) Asha Mirge (PW5),

who is the Chairperson of Women Commission, who reached to

Barshitakli Police Station after receiving a telephonic call from

Jagdish (PW3) informing her that two persons have committed

rape on wife of his servant who resides in his agricultural field. Her

evidence shows that when she reached to police station, she

noticed that Govind was having injury on his neck and, therefore,

she requested police to send him also for his medical examination.

23. The couple was residing in agricultural field of Jagdish

(PW3). The appellant was not having any concern whatsoever

either with agricultural field of Jagdish or with the couple. Still, as

per evidence of Jagdish, he noticed initially, the appellant was

roaming unnecessarily near prosecutrix (PW1) and when his

identity was disclosed to him by Vishnu Mundhe, he asked him not

to enter into his agricultural field. There was no reason or

occasion for the appellant to take entry in agricultural field of

.....16/-

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Jagdish in the night hours along with absconded accused Ashish @

Dubya.

24. Evidences of prosecutrix (PW1) and Govind (PW2),

the husband of the prosecutrix, are absolutely free from any

improvements or contradictions. There is nothing available on

record by which the Court can deduce any inference that the

prosecutrix or her husband was having any motive to implicate the

appellant falsely. We find testimonies of these two material

prosecution witnesses trustworthy and safe to place reliance on

their versions.

25. The submission of learned counsel for the appellant

that DNA Report absolves the appellant appears to be correct. The

DNA Report is at Exhibit-36. Dr.Prakash Deshmukh (PW4),

admitted in his evidence that semen sample obtained from

petticoat is of unknown male origin and failed to match with DNA

profile obtained from blood stain of Shankar, the appellant.

However, only because of that, the case of the prosecution or

evidence of prosecutrix (PW1) does not come under clouds of

suspicion for simple reason that the prosecutrix was raped by two

.....17/-

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persons one is the appellant and another is the absconded accused.

This aspect, in our view, is very rightly considered by learned

Judge in the judgment and order impugned in this appeal and we

record our stamp of approval to the said reasoning supplemented

by learned Judge.

26. Another submission of learned counsel for the

appellant that semen was purposefully sprayed on underwear of

the appellant, is required to be rejected. Exhibit-43 is seizure

panchnama which is duly proved by independent panch witness

Haridas Bhatkar (PW6). It shows that two blood samples were

seized. The said panchnama does not show that his semen

samples were seized. Even, Dr.Prakash Deshmukh (PW4), who

examined the appellant, deposed from witness box that after

medical examination of the appellant, he only collected blood

sample and pubic hair. If that be so, at no point of time the semen

of the appellant was available with Investigating Officer to spray

the same on his underwear, as tried to be argued by learned

counsel for the appellant. We, therefore, reject his submission.

27. Clothes of the appellant were sent to Chemical

.....18/-

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Analyzer under requisition Exhibit-56. Chemical Analyzer's Report

is at Exhibit-59. It shows that on underwear of the appellant there

were semen stains. The appellant could not offer any plausible

explanation for the same.

28. The submission of learned counsel for the appellant

that semen sample of husband of the prosecutrix was not collected,

has no relevance after decision of this case.

29. On re-appreciating of the entire prosecution case, we

are of view that learned Judge was right and he did not commit

any error holding the appellant as guilty for offences for which he

was charged. Consequently, we pass following order:

ORDER

The criminal appeal is dismissed and disposed of

accordingly.

            JUDGE                                    JUDGE

!! BRW !!


                                                                       ...../-