Ravindra Sudhakar Mangulkar vs The State Of Maharashtra And Anr
2022 Latest Caselaw 12298 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 210 OF 2018

Ravindra Sudhakar Mangulkar
Age: 30 years, Occu.: Autodriver,
R/o Kasar Galli, Mudkhed, Tq. Mudkhed,
Dist. Nanded                                                       ..APPELLANT
         VERSUS
State of Maharashtra and Another                                   ..RESPONDENTS

                                      ....
Mr. S.J. Salunke, Advocate for appellant
Mr. A.M. Phule, A.P.P. for respondent no.1 - State
Mr. D.Y. Nandedkar, Advocate for respondent no.2
                                      ....

                                         CORAM        : R.G. AVACHAT AND
                                                         R.M. JOSHI, JJ.
                                         RESERVED ON   : 15th NOVEMBER, 2022
                                         PRONOUNCED ON : 29th NOVEMBER, 2022

JUDGMENT ( PER : R.G. AVACHAT, J. ) :

1. This is an appeal from conviction. The appellant has been

convicted by the Court of Additional Sessions Judge, Bhokar by it's judgment

and order dated 28th February, 2018 passed in Special Atrocity Case No. 3 of

2016. The details of conviction and consequential sentences imposed are as

under :-

Sr.No.                 Section                                  Sentence
     1              376 of I.P.C.         R.I. for ten years and fine of Rs.5,000/-, in default
                                          S.I. for six months
     2      3(2)(v) of S.C. & S.T. Act    Life imprisonment and fine of Rs.10,000/-, in
                                          default S.I. for eight months


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     3    3(1)(w)(i) of S.C. & S.T. Act R.I. for two years and fine of Rs.2,000/-, in
                                        default S.I. for two months
     4              324 of I.P.C.        R.I. for one year and fine of Rs.1,000/-, in default
                                         S.I. for one month
     5              506 of I.P.C.        R.I. for one year and fine of Rs.1,000/-, in default
                                         S.I. for one month

2. The facts giving rise to the present appeal are as follows :-

P.W.1 - X (prosecutrix) was resident of Nanewadi (name

changed) in one of the talukas of Nanded district. It it her case that her

husband expired one year before the incident dated 03 rd July, 2016. She

would, therefore, reside at her parental house. Her parents and brother were

agriculturists. The prosecutrix would do tailoring work. On the given day i.e.

on 03rd July, 2016, the parents and brother of the prosecutrix were away in

the field. Her five years old son - Karan was with her. It was about 01:30

p.m. The appellant came her house. He asked her to allow him to have

sexual intercourse with her. The prosecutrix got enraged. She abused him

and asked to leave her house. The appellant overpowered her. He made her

lie on the cot and then committed sexual intercourse. It is further her case

that to compel her to submit to his lust, the appellant assaulted her with a

tailoring scissor. On hearing shouts, her neighbor - Anita (P.W.3) (name

changed) came. The appellant then left. While leaving the house, the

appellant gave his name and asked her to do whatever she wanted to do

against him.

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3. It is further case of the prosecutrix that on return of her parents in

the evening, she related them the incident. On the following day she lodged

the First Information Report ('F.I.R.') (Exh.27). A Crime vide C.R. No. 132 of

2016, therefore, came to be registered for the offences punishable under

Sections 376, 323 and 506 of the Indian Penal Code ('I.P.C.') and under

Section 3(2)(5) of the Schedule Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 ('S.C. & S.T. Act'). Provisions of the S.C. & S.T. Act

came to be invoked since the prosecutrix claimed to have belonged to Andh

Adivasi Community (tribe). The prosecutrix came to be medically examined.

Clothes on her person at the relevant time came to be seized. Scene of

offence panchanama (Exh.36) was drawn. Statements of the persons

acquainted with the facts and circumstances of the case were recorded. The

appellant was arrested. Blood samples of both, the appellant and the

prosecutrix were obtained and forwarded to Regional Forensic Science

Laboratory, Nanded for analysis and report. On completion of investigation,

the appellant came to be proceeded against by filing the charge-sheet.

4. The trial Court, on appreciation of evidence in the case, convicted

the appellant and consequently sentenced him to various punishments as

stated hereinabove. Hence, the present appeal.

5. Learned counsel for the appellant would submit that provisions of

the S.C. & S.T. Act have been wrongly invoked. According to him, it is not

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the case of prosecution that the appellant committed offence because the

prosecutrix belonged to the Scheduled Tribe. He would further submit that

there was long standing acquaintance between the appellant and the

prosecutrix. Both of them have stayed in live-in-relationship for some

months. There is delay in lodging of F.I.R. The medical examination report

(Exh.43) does not support the prosecution. On the date of offence of rape,

the appellant allegedly committed, the punishment provided for the said

offence was for a term which shall not be less than seven years but which

may extend to life imprisonment and fine as well. According to learned

counsel, the appellant is blessed with a child of not more than five years. He

has a wife to maintain. He was just twenty-seven years of age when the

offence was committed. Sentence for imprisonment for life imposed against

him is grossly disproportionate. The appellant is in jail for little over four and

half years. Learned counsel ultimately urged for reducing the sentence to a

minimum term prescribed for the offence punishable under Section 376 of

the I.P.C.

6. Learned A.P.P. would, on the other hand, submit that the offence

is serious one. The appellant assaulted the prosecutrix with a scissor.

Considering the nature of offence, the appellant does not deserve leniency.

Learned counsel for the prosecutrix would submit that the appellant had

threatened the prosecutrix during pendency of trial. Learned counsel took us

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through the evidence in the case to ultimately submit it to be a case

warranting no interference.

7. Considered the submissions advanced. Perused the evidence

relied on. The appellant, in short, urged for his acquittal of the offfences

punishable under the S.C. & S.T. Act and for reduction into quantum of

sentence imposed for the offences punishable under the I.P.C.

8. So far as regards conviction of sentence for the offences

punishable under Sections 3(2)(v) and 3(1)(w)(i) of the S.C. & S.T. Act are

concerned, it is to be stated that there is nothing in the evidence to infer the

appellant to have committed these offences merely because the prosecutrix

belongs to the Scheduled Tribe. The Division Bench of this Court in case of

State of Maharashtra Vs. Dnyaneshwar Pandurang Bhokare, 2006 All

MR(Cri.) 404, has observed thus :-

"7. The charge in respect of offences punishable under the various Clauses of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was indeed uncalled for. Merely because the victim belongs to Scheduled Caste or the accused is upper caste Hindu, it does not follow that the offence punishable under Section 3 of the SC & ST (Prevention of Atrocities) Act, 1989 would be made out. It is not the allegation of the prosecution that the accused committed the offences because the victim belonged to the Scheduled Caste. It was simply a case of two young persons committing an

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indiscretion. Therefore, the learned Special Judge rightly held that the charges in respect of offences punishable under Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were not proved."

9. Although the prosecutrix belongs to the Scheduled Tribe, it is not

her case that the appellant committed the offence merely because she belongs

to the Scheduled Tribe. In our view, therefore, the conviction and

consequential sentences imposed against the appellant for the offences

punishable under Sections 3(2)(v) and 3(1)(w)(i) of the S.C. & S.T. Act

require to be recalled.

10. So far as regards offences punishable under the I.P.C. are

concerned, it is necessary to advert to the evidence in the case.

11. It is in the evidence of the prosecutrix that her husband passed

away a year before the alleged incident dated 03rd July, 2016. Her son -

Karan was five years old at the material time. Due to untimely death of her

husband, she had to return back to her parental house. Her parents and

brother were agriculturists. One Manika of Nanewadi (name changed) was

of her acquaintance. She was dealing in ganja (contraband). Persons from

outside of the village would visit her house for purchase and consumption of

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ganja. About 4-5 days before 03rd July, 2016, the prosecutrix was present in

the courtyard of her house. Her parents were away in the field. The

appellant came to her and threatened of committing rape of her on one or

other day. She had related the said fact to her parents.

12. It is further in her evidence that by 01:30 p.m. on 03 rd July, 2016,

she was at her house. Parents and brother were away in the field. She was

engaged in tailoring work. The appellant came her house. He asked her to

allow him to have sexual intercourse with her. She abused him and asked to

leave her house. The appellant dragged her and made her sleep on the cot.

When she resisted, the appellant took a tailoring scissor and assaulted her

therewith. The appellant then committed sexual intercourse against her wish

and without her consent. On hearing shouts, her neighbour - Anita (P.W.3)

(name changed) came. She dragged the appellant out of house of the

prosecutrix. The appellant, while leaving the house, gave his name,

"Ravindra Sudhakar Mandulkar, resident of Mudkhed" and asked her to take

action against him as she deems fit. It is further in her evidence that her

parents returned by 06:30 p.m. She related them the incident. Her mother

made her take bath. She washed all the clothes on her person. As it was

somewhat late in the evening, she approached the police station on the

following day and lodged the F.I.R. (Exh.27). It is further in her evidence

that she was medically screened at Civil Hospital, Nanded. She gave the

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medical officer history of the incident. It is further in her evidence that she

belongs to Andh Adivasi community. Her caste certificate is at Exhibit 32.

13. The prosecutrix was subjected to a searching cross-examination.

She denied to have had any acquaintance with the appellant. She admitted

to have completed a tailoring course at Mudkhed. She used to shuttle

between Mudkhed and her village. It is further in her evidence that for little

over one month she had stayed in the premises taken on rent at Krushna

Nagar, Mudkhed. She, however claimed ignorance about name of the

landlord. She then admitted to have had stayed at Mudkhed from January to

April in the year 2016. She, however denied to have had come in contact

with the appellant at Mudkhed. It is further in her evidence that after the

appellant had his lust satisfied, both of them put on their clothes. In the

second breathe, she stated that the appellant put on his clothes when her

neighbour came her house and took him out. She denied to have lived with

the appellant in marriage-like relationship. It is further in her evidence that

the appellant had come to her house. Her parents asked him to bring his

parents along to settle the dispute. It was suggested to the prosecutrix that

the appellant had consensual sexual intercourse with her many a time before

the one in question. On the given day she did not have mood. She,

therefore, resisted the appellant to have sex with her. She also denied to had

stayed with the appellant at Aurangabad.

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14. P.W.3 - Anita (name changed) was admittedly the neighbour of

the prosecutrix. She did not stand by the prosecution. In response to the

question put to her during cross-examination by the learned A.P.P., she stated

that the appellant, while leaving the house of the prosecutrix, gave his full

name. While he left the house, the prosecutrix was crying. She has suffered

injuries with the scissor. Saree and blouse of the prosecutrix were torned.

She denied the prosecutrix to have told her to have been raped by the

appellant. During cross-examination conducted by learned counsel for the

appellant, she testified to have had not seen any person coming out of the

house of the prosecutrix. She claimed ignorance of name and address of that

person. She had accompanied the prosecutrix to the Court on the day her

evidence was recorded. She belongs to the community to which the

prosecutrix belongs. The evidence of P.W.3 suggests that she tried to run

with hare and hunt with hounds.

15. Then we have evidence of P.W.4 - Dr. Mohan Gushinge. He

medically screened the prosecutrix on 04th July, 2016. The prosecutrix gave

him history of rape by 01:30 p.m. the previous day. He noticed following

injuries on her person :-

"(I) Abrasion on right side of chest, 1 x 0.5 cm, margin regular, red in colour, no swelling, simple in nature. (II) Laceration present on right middle finger of size 1.5 cm x 0.5cm tissue deep, margin irregular, red in colour, swelling present, simple in nature.

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(III) Two linear abrasion present on left forearm of size 4x0.2 cm, 3x0.5 cm, margin regular, red in colour, no swelling, simple in nature.

(IV) Laceration present on left knee joint on lateral surface of size 1x1cm, skin deep, irregular margin, red in colour, simple in nature.

(V) Abrasion on left leg, 4x1 cm, regular margin, red in colour, simple in nature."

It is further in his evidence that after local examination of genitals,

it is found that contusion present on vagina of size 0.3 x 0.2 cm, reddish in

colour, oval shape and multiple old hymeneal irregular tear at 3-7-9-11 O-

clock position and presence of defence of struggling injuries on hand and legs

were found. Four samples i.e. (1) blood, (2) vaginal swab, (3) nails and (4)

pubic hairs were sent for chemical analysis. In his opinion, evidence of sexual

intercourse or assault cannot be ruled out. However, final opinion was kept

pending till receipt of forensic science laboratory report. The medical officer

observed the prosecutrix to have been habitual to sexual intercourse. The

medical examination report is at Exhibit 43.

16. Regional Forensic Science Laboratory reports (Exhs.56, 57 and 58)

do not support the prosecution. Neither the blood nor semen was detected

on the articles submitted for analysis and report.

17. The appellant examined two witnesses in his defence. Both of

them were the landlords, in whose premises the appellant and the prosecutrix

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were stated to have stayed together. D.W.2 - Dattarao was the resident of

Mudkhed. It is in his evidence that he knew both, the prosecutrix and the

appellant. Both of them had stayed together as tenant in his premises. It was

brought on record during his cross-examination that his house was situated at

Krushna Nagar. The prosecutrix admitted in her cross-examination to have

had stayed in a premises at Krushna Nagar, although she denied in her

evidence to have stayed alongwith the appellant. Close reading of evidence

of D.W.2 - Dattarao indicates that his evidence in examination-in-chief has

not been taken exception to during his cross-examination.

18. The prosecutrix in her examination-in-chief itself denied any

acquaintance with the appellant. According to her, the appellant while

leaving her residence gave his name. The same indicates the prosecutrix was

economical with truth. Evidence of D.W.2 - Dattarao goes a long way to

infer the appellant and the prosecutrix to have had lived together in his

premises on rent for 3-4 months. The evidence of prosecutrix would further

suggests that the appellant was at her residence for about half an hour when

the offence took place. On completion of the alleged act, both of them put

their clothes on. When the appellant had been to her parents, they asked him

to come along with his parents to settle the matter. The F.I.R. has been

lodged twenty-seven hours after the incident. The C.A. reports do not

support the prosecution case. The appellant has a wife to maintain and a

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small child to bring up. He was just twenty-seven years of age at the material

time. All these facts lead us to reduce the quantum of sentence in respect of

offence punishable under Section 376 of the I.P.C. from ten years to seven

years.

19. In the result, appeal partly succeeds. Hence, the following order :-

ORDER

(I) Criminal appeal is partly allowed.

(II) Impugned order dated 28th February, 2018 to the extent convicting the appellant for the offences punishable under Sections 3(2)(v) and 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is hereby set aside.

(III) Appellant is acquitted of the said offences.

(IV) Fine amount, if any, in respect of those offences be paid back to him.

(V) Sentence of imprisonment for the offence punishable under Section 376 of the Indian Penal Code is reduced from ten years to seven years.

(VI) Rest of the terms of the impugned order of conviction and consequential sentence to stand unaltered.

             ( R.M. JOSHI, J. )                           ( R.G. AVACHAT, J. )

SSD




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