Bombay High Court

Madhukar Sitaram Dhavare vs The State Of Maharashtra on 28 March, 2023

Bench: R. G. Avachat

                                                             Cri.Appeal No.490/2018
                                        :: 1 ::


            IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD



                       CRIMINAL APPEAL NO.490 OF 2018



 Madhukar Sitaram Dhavare,
 age 60 years, Occu. Labour,
 R/o Pohner, Taluka and
 District Osmanabad                                    ... APPELLANT

          VERSUS

 The State of Maharashtra
 through Police Station Officer
 Police Station (Rural) Osmanabad,
 District Osmanabad
 Copy to be served on Public Prosecutor,
 High Court, Bench at Aurangabad.        ... RESPONDENT

                                .......
 Mrs. A.N. Ansari, Advocate for appellant
 Mr. N.T. Bhagat, A.P.P. for respondent
                                 .......

                                 CORAM :          R.G. AVACHAT, J.

                                 DATE      :      28th MARCH, 2023

 ORAL JUDGMENT :

Heard. This appeal has been filed by the appellant

against the judgment and order of conviction and sentence

dated 1/2/2018, passed by learned Additional Sessions Judge,

Omanabad in Sessions Case No.72/2017, whereby the appellant

has been convicted for the offence punishable under Sections

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376(2)(j)(1) and 506 of the Indian Penal Code and, therefore,

sentenced to suffer rigorous imprisonment for 10 years and 1

year respectively and fine with default stipulation. Both the

substantive sentences have been directed to run concurrently.

2. It is the case of the prosecution that the appellant

committed rape of victim "A", a mentally challenged woman of

30 years of age, on 5/6/2017. the victim related the said

incident to her mother on 23/7/2017. The same day the

mother approached the concerned police station and lodged the

F.I.R. (Exh.21).

3. Based on the said F.I.R., Crime vide C.R.

No.231/2017 came to be registered against the appellant. He

was arrested. Scene of offence panchanama was drawn.

Statements of the persons acquainted with the facts and

circumstances of the case were recorded. On completion of the

investigation, the appellant was proceeded against by filing a

charge sheet.

4. The case came to be committed to the Court of

Sessions, Osmanabad for trial in accordance with law.

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5. The learned Additional Sessions Judge framed the

charge (Exh.5). The appellant pleaded not guilty. His defence

is of false implication on account of some dispute between the

appellant and mother of the victim over grazing of goats.

6. To establish the charge, 8 witnesses were examined.

It was the case of the prosecution that the victim was mentally

challenged to the extent of 70%. An assistance of expert was,

therefore, taken during recording of her evidence.

7. Let us first advert to the evidence of the victim

(P.W.4). It is in her evidence that she was staying along with

her mother. On the day of the incident, she was alone at home.

Madhu came her home. He kissed her. He laid himself on her

person. Touched her private part. Fondled her breast. Pressed

her legs. She stated him "Don't do so". Madhu removed

clothes on her person. Then he again laid himself on her

person. The victim pointed out her private part. Madhu also

removed clothes on his person. She again referred to her

private part. She described the act of accused by signs. She

further testified that, after completion of the act, Madhu asked

her to come him to meet him again and if she did not come, he

would beat her.

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During her cross-examination, she testified that, she

used to go to her land along with her mother. She denied to

have given evidence on the say of her mother.

8. Then there is evidence of the informant, mother of

the victim (P.W.2). It is in her evidence that the victim was her

daughter. The appellant is their distant relative. On the given

day, she left home to graze goats. It was 11.00 in the morning.

The victim alone was at home as she (victim) was not keeping

well. It is further in her evidence that the victim had her period

regularly. After the alleged incident, there was cessation of her

period. She, therefore, enquired with the victim. Thereupon

the victim narrated what the appellant did with her. Thereafter

she lodged the F.I.R. (Exh.21). The informant was suggested

that there was dispute between her and the appellant over

grazing of she-goats. She has flatly refused the suggestion.

9. Then there is evidence of P.W.3 Rupali, who is a

Psychologist. Her evidence is of not much assistance for the

prosecution. It is in her evidence that the victim's police

statement was recorded in her presence.

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10. Evidence of P.W.5 Netaji and P.W.6 Mesa is not of

much assistance for the prosecution to bring home the charge.

11. Then there is evidence of the Medical Officer, P.W.7

Dr. Sonali. It is in her evidence that she examined the victim

on 23/7/2017. The victim was brought to her by her mother. A

lady Police Constable had also accompanied them. Both, the

victim and her mother gave history of sexual assault. The same

was recorded in verbatim. Although the victim was found to be

mentally retarded, she found her in disposition of mind and

understanding of her queries. On medical examination of the

victim, no injuries were noticed at her private part. Hymen was

ruptured. Pregnancy test was negative. She collected the

samples of public hair, nail clippings etc. and handed them to

police officer for chemical analysis. Although in her opinion as

per overall findings were consistent with sexual assault on

victim, she reserved her findings until receipt of FSL report.

She issued medical examination certificate Exh.38.

12. It is surprising that when the incident took place on

5/6/2017 and the medical officer examined the victim on

23/7/2017, she gave her opinion on clinical examination that

overall findings are consistent with sexual assault on the victim.

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Be that as it may. The record indicates that C.A. reports have

not been produced in evidence. An adverse inference in that

regard, therefore, needs to be raised.

13. As such, to hold the appellant guilty of the offence

of rape, the only evidence before the Court is a testimony of the

victim herself. The victim in her evidence could not describe

the entire acts which constitute an offence of rape. When the

alleged offence took place on 5/6/2017, the F.I.R. came to be

lodged on 23/7/2017 i.e. after 46 days after the alleged

incident. There is no corroborative evidence to support the

testimony of the prosecutrix. F.I.R. was lodged since the

mother found the victim to have missed her period. The same

turned out to be incorrect. Pregnancy test was negative. As

such, it can at the most be observed that the incident as alleged

might have taken place. The prosecution was required to travel

a long between from 'might' to 'must'. The appellant is in jail

for little over 5 years and 8 months. On the basis of the

aforesaid evidence, the trial Court ought not to have convicted

the appellant. Interference with the order of conviction and

consequential sentence is, therefore, warranted. Hence the

order :

Cri.Appeal No.490/2018 :: 7 ::


                                     ORDER


 (i)      The Criminal Appeal is allowed.


 (ii)     The order of conviction and consequential sentence dated

 1/2/2018,         passed      by   learned      Additional    Sessions        Judge,