Bhausaheb Bapu Sangolkar vs The State Of Maharashtra
2022 Latest Caselaw 7162 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 636 OF 2019

Bhausaheb Bapu Sangolkar                            ..Appellant
     Versus
The State of Maharashtra                            ..Respondent

                           __________
Ms. Manisha A. Devkar for Appellant.
Mr. Yogesh Y. Dabke, APP for State/Respondent.
                           __________

                         CORAM : SARANG V. KOTWAL, J.
                         DATE : 26th JULY 2022.
JUDGMENT:

1. This is an Appeal challenging the Judgment and order

dated 08/01/2019 passed by the learned Extra Joint Additional

Sessions Judge, Pandharpur in Sessions Case No.7 of 2014. By the

impugned Judgment and order the Appellant was convicted for

commission of offence punishable U/s.376 of I.P.C. and was

sentenced to suffer R.I. for 10 years and to pay a fine of Rs.5000/-

and in default to suffer R.I. for one month.

The Appellant was also convicted for commission of

offence punishable U/s.452 of I.P.C. and was sentenced to suffer

R.I. for one year and to pay a fine of Rs.1000/- and in default to

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suffer R.I. for one month.

In addition, the Appellant was convicted for

commission of offence punishable U/s.506 of I.P.C. and was

sentenced to suffer R.I. for one year and to pay a fine of Rs.1000/-

and in default to suffer R.I. for one month. Substantive sentences

were directed to run concurrently. The Appellant was given benefit

of set off U/s.428 of the Cr.p.c.

2. The prosecution case is that, the prosecutrix and the

appellant were neighbours. In the night of 20/11/2013 and

21/11/2013 when the prosecutrix was alone in her house, the

Appellant entered her house and committed rape on her. On the

next day, she informed about this incident to her husband and

thereafter lodged this F.I.R. The investigation was carried out. The

Appellant was arrested on 23/11/2013. During trial the

prosecution examined 9 witnesses.

PW-1 Chaya Dattatraya Aldar was Pancha for the

panchanama under which clothes of the prosecutrix were seized.

PW-2 was the victim herself.

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      PW-3 was her husband.

PW-4 Madhukar Narayan Khadatare and PW-5 Ramesh Bagal

Jadadhane were the Panchas for spot panchanama; they had

turned hostile. Their evidence is not important.

PW-6 Kallappa Dhondappa Bansode was the police officer

who had taken down the F.I.R.

PW-7 Dr. Girnar Sudhakar Gavali had proved the medical

evidence in this case.

PW-8 Sandeep Rangrao Kolekar, P. I. had carried out some

part of investigation and filed the charge-sheet.

PW-9 Sunil Shivaji Chavan, Police Naik had carried out

major part of the investigation.

After recording of evidence, the appellant's statement

U/s.313 of Cr.p.c. was recorded. The defence of the appellant was

that, there was a dispute regarding right of way through the land

of the victim. There was also dispute between the appellant and

his nephew and on the instigation of that nephew this false case 4 of 9 209-apeal-636-19

was created and lodged by the victim.

3. As mentioned earlier, the important evidence is that of

the victim herself. She has stated that, she was working as

Anganwadi helper. Her husband was a plumber and was working

at an Engineering college at Gopalpur. He was residing there. The

prosecutrix - PW-2 used to stay at village Redde. Her husband used

to visit village Redde over the weekends. They had two sons. One

son was staying with her husband at Gopalpur and the other son

was staying with PW-2. On 20/11/2013 her son who was staying

with her had gone to Pandharpur for treatment of his eye.

However, as it was late, he stayed with the husband of PW-2 at

Gopalpur. PW-2 was alone in the house. The appellant was her

neighbour. At around 11.00p.m. the Appellant made a phone call

to the victim. He suggested that he could visit her house, but the

victim told him that since she was alone in the house, he should

not come to her house. She switched off her phone. She locked the

door and went to sleep. At about 2.00a.m. the Appellant knocked

the door of PW-2. She opened the door. The Appellant pushed the

victim, came inside and committed rape on her. He threatened her.

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PW-2 was in a shock. On the next day at about 5.00p.m. she

informed her husband about the incident telephonically. Her

husband came to village Redde and then they went to

Mangalwedha to lodge F.I.R. The F.I.R. is produced on record at

Exhibit 34. It was lodged at 10.40p.m. on 21/11/2013 at

Mangalwedha police station. The police came to her house. She

showed the spot of incident. Police seized her clothes. She gave her

mobile phone to the police.

In the cross-examination she stated that, there are

houses of others in the area. Those houses were situated at around

30ft. to 40ft. distance from from her house. She has admitted that,

there was a common well in her land near her house. Her family,

appellant's family and her neighbour Sitaram's family used the

water from that well. For going to the well they have to pass

through the land of their neighbour Sitaram. She denied the

knowledge as to whether Sitaram was having strained relations

with the appellant on the count of using that common way to the

well. She denied the suggestion that, she always used to speak

with Sitaram on mobile phone. She also denied that between 6 of 9 209-apeal-636-19

20/11/2013 and 21/11/2013 there was frequent conversation

between PW-2 and Sitaram on telephone. Beyond that there is

hardly anything in her cross-examination which helps the

appellant.

4. PW-3, husband of PW-2 has corroborated her version

that on 21/11/2013 PW-2 had informed him telephonically about

the incident. Thereafter he had gone to village Redde and then to

the police station where the F.I.R. was lodged.

5. PW-7 Dr. Girnar Sudhakar Gavali has produced the

report in the form of reply to the questionnaire of the police. That

report is produced at Exhibit 43. It is mentioned in that report

that, there were no fresh injuries on the private parts of the victim.

6. The Investigating Officer's evidence shows that, articles

and clothes were sent for Chemical analysis, however, C.A. report

does not throw light on the case. There is nothing significant either

in favour or against the appellant's case.

7. Learned Judge relied on the evidence of the victim. He

has observed that, the incident had taken place in the night and 7 of 9 209-apeal-636-19

she could not have raised hue and cry. He did not agree with the

submission of learned counsel for the accused that, delay in

lodging of F.I.R. in this case is fatal to the prosecution. Learned

Judge also considered the defence of the appellant and rejected it.

8. Learned counsel for the appellant submitted that, except

for the evidence of the prosecutrix there are no incriminating

circumstances against the appellant. The medical report does not

show that PW-2 had suffered any injuries. To elaborate on this

aspect, medical certificate is not produced on record at all. She

submitted that, conduct of PW-2 was unnatural. She did not raise

any shouts. She could have sought help of her neighbour. There

was delay in registration of F.I.R. She submitted that, the appellant

was 30 years of age and some leniency should be shown to him.

9. Learned APP, on the other hand, opposed this Appeal and

supported the Judgment of the trial Court. He submitted that,

there is no reason to discard the evidence of PW-2.

10. I have considered these submissions in the backdrop of

the evidence led by the prosecution in this case. The deposition of 8 of 9 209-apeal-636-19

PW-2 is absolutely trustworthy. There are hardly any loopholes in

the entire evidence. There is no force in the submission that the

victim could have sought help from the neighbours. It was

2.00a.m. in the night when the appellant entered the house. Since

the appellant had overpowered the victim, there was hardly any

possibility to raise shout and seek help from her neighbours. The

victim had informed her husband on the next day. She has stated

that, she was in a shock. This is also understandable that only

when her husband came to the village, she gathered courage and

went to the police station to lodged the F.I.R. From her entire

evidence, no circumstances are brought on record in her cross-

examination to suggest as to why she would implicate the

Appellant falsely. The defence taken by the Appellant in his

statement recorded U/s.313 of Cr.p.c. does not inspire confidence

in his theory. There was no reason for the victim to implicate the

Appellant just because his own nephew instigated her to lodge the

F.I.R. Nothing is brought on record to show that, there was any

serious dispute between the victim and the appellant. There was

no record of any past complaints between the parties.

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11. Though, medical evidence shows that there was no

injuries to the private parts, it has to be noted that the victim was

overpowered by the appellant and she could hardly resist him. She

was also threatened. The report tendered by Dr. Gavali by itself

does not exonerate the Appellant. Taking into account entire

circumstances on record, I do not find any reason to disbelieve the

version of PW-2. Learned trial Judge has rightly and correctly

appreciated the evidence on record.

12. So far as sentence part is concerned, the trial Judge has

observed that the Appellant was a neighbour and was on good

terms with the victim, despite that he has committed this offence,

therefore, no undue leniency could be shown to him. I am also in

agreement with this reasoning of learned trial Judge. This is not

the case where leniency can be shown to the Appellant.

13. In this view of the matter, the Appeal fails and, therefore,

is dismissed.

(SARANG V. KOTWAL, J.) Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.07.29 17:40:47 +0530