[Cites 6, Cited by 0]
Bombay High Court
Maruti Jalindar Sarvade vs The State Of Maharashtra And Another on 13 January, 2026
2026:BHC-AUG:1495
(1) 910criapl3554.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
910 CRIMINAL APPEAL NO.894 OF 2025
Maruti Jalindar Sarvade,
Age-23 years, Occu-Labour,
R/o. Holi, TQ. Lohara,
Dist. Osmanabad ...APPELLANTS
VERSUS
1. The State of Maharashtra
Through Officer-in-charge of
Lohra Police Station, Tq. Lohra,
Dist. Osmanabad
2. XYZ ...RESPONDENTS
Mr. S. B. Bobade, Advocate for the appellant
Mr. V. K. Kotecha, APP for the respondents/State
Ms M. V. Narwade, Advocate for the respondent No. 2
CORAM : RAJNISH R. VYAS, J.
DATE : 13th JANUARY, 2026
ORAL JUDGMENT :
1. In this appeal, a challenge is to the judgment of
conviction rendered by the Additional Sessions Judge, Omerga in
Sessions Case No. 5/2022 dated 20-07-2023 by which the
appellant/sole accused was convicted for the commission of the
offences punishable under Sections 376 read with section 511, 452 of
the Indian Penal Code (for short 'the IPC'). For the offences
punishable under Sections 376 read with section 511 of the IPC the
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appellant was directed to suffer rigorous imprisonment for 10 years
and to pay fine of Rs.5000/-. In default he was directed to suffer
rigorous imprisonment for 6 months. The accused was also convicted
for the commission of the offence punishable under section 452 of
the IPC and directed to suffer rigorous imprisonment for 7 years and
to pay fine of Rs.5000/-. In default he was directed to suffer rigorous
imprisonment for 6 months. The sentences were ordered to run
consecutively.
2. According to the case of prosecution, first information
report was registered on 25-11-2021 at the instance of PW-2/mother
of the victim, on the basis of which offences punishable under
Sections 452 and 376 (2) (j)(l) of the IPC was registered.
3. On the day of incident i.e. on 24-11-2021 at about 09.00
pm the victim took her dinner and slept in a tin shed. At about 11.00
pm one Savitribai/PW-3 (neighbour) heard a shout and therefore,
woke-up and informed PW-2. PW-2 along with one Shankar
Pawar/PW-4 rushed to the spot of the incident where victim was
sleeping. At that time they saw the appellant committing sexual
assault on the victim.
4. At the relevant time clothes of the victim were lifted upto
the neck and the appellant was in a nude condition. Therefore, PW-2
went to the police station and on second day the first information
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report was registered at Exh.17.
5. On the basis of said information criminal law was set in
motion and during the course of which, the appellant was arrested on
25-11-2021. At the relevant time, the appellant was 23 years old
whereas the victim was 19 years old. During course of investigation,
clothes of accused as well as victim came to be seized. After the
completion of the investigation charge-sheet was filed. Charge was
framed against the appellant on 07-04-2022 below Exh.4 for the
commission of the offences punishable under Sections 376(2)(j)(l)
and 452 of the IPC. As the accused did not plead guilty, prosecution
in order to bring home the charge, examined total 7 witnesses.
6. The accused was thereafter asked questions under
Section 313 of the Code of Criminal Procedure. The defense of the
accused was of total denial and false implication. According to the
accused, he was falsely implicated since on the earlier occasion he
had taken initiative to register a case against one Pappu Rathod who
was arrested in that case. Further cousin of the appellant and the said
Pappu were on enemical terms and said Pappu had threatened that
one day he would send the appellant behind the bar. Appellant stated
that he was innocent and falsely implicated in the case.
7. At this juncture, it is necessary to mention here that
victim of the crime died after three months after the incident. The
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reason of death has not come on record. Be that as it may, neither her
statement was recorded by the police authority nor evidence by the
court.
8. In order to appreciate the evidence rendered by the
prosecution, it is necessary to discuss the testimony of PW-1 who is a
Medical Officer. The Medical Officer/PW-1 who was examined by the
prosecution has stated that on 25-11-2021, she examined the victim
and found her to be paralyzed below waist. She also found the victim
mentally ill. She stated that in her opinion possibility of sexual
intercourse could not be ruled out. Be that as it may, since the
appellant has been charged for attempt to commit rape, the medical
evidence, in peculiar facts and circumstances may not be very much
relevant.
9. So far as actual incident is concerned, testimony of PW-2,
PW-3 and PW-4 is of importance. PW-2 is the mother of the victim
who in her deposition has categorically stated that at the time of
incident age of the victim was 20 years and victim was handicap and
mentally retarded. According to her before 9 months of deposition
the incident had taken place. On the day of incident, the victim was
sleeping in a tin shed when one of her relatives, PW-3 heard some
shouting and therefore, she informed the said fact to the PW-2. PW-2
then alongwith PW-3 and PW-4 reached the spot of incident where
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she found that the clothes of the victim were lifted upto neck. The
accused was over the person of the victim and was committing the
rape and was pushed by the PW-2. Thereafter police had recorded her
report on the next date.
10. In the cross-examination various suggestions were given
in order to support the defense that it was a case of false implication.
It was also stated in the cross-examination that the appellant was
beaten mercilessly on that day. It was also brought on record that
when PW-2 visited the police station 3-4 other persons from the
locality also accompanied with her. It was suggested to her that a
false case was lodged.
11. PW-3 is one Savitribai who in her examination-in-chief
had stated that on the day of incident she heard some shout and
therefore, she came out of the house, at which time, one Shankar was
also standing out side. When all these persons reached the spot they
saw that one boy was sleeping on the person of the victim and he was
in a naked condition whereas the clothes of the victim were lifted
upto her neck. Said witness had further stated that PW-2 took out the
said person and the person who committed the rape was the present
appellant.
12. In cross-examination a suggestion was given to this
witness that she was relative to PW-2 which was admitted by her. If
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line of defense of this witness is perused, it would reveal that
prosecution is trying to suggest that she was able to speak and
therefore, could have disclosed the fact to the police by narrating the
incident. An omission was tried to be proved by way cross-
examination regarding the name of the present appellant was
informed by the Bhaurao. Said witness had admitted that she came to
know the name of appellant from one Bhaurao. Said omission was
put to the Investigating Officer/PW-7 who had duly proved it.
13. PW-4 is one Shankar who has also deposed on the same
line as of PW-3. He had categorically stated in his deposition that on
the day of incident he heard shouting of victim and therefore,
reached the spot along with other two witnesses, at which time, he
noticed that one boy was committing 'the act' on the victim [the
name is not disclosed in order to protect the identity] Suffice it to say
that the name uttered by PW-4 is the name of father of the appellant.
14. In the cross-examination again it was stated to this
witness that it was due to earlier enemical terms, the appellant was
falsely implicated. This witness has admitted that the victim was
mentally unfit. He denied the fact that the victim was not in a
position to speak. This witness has stated that the victim could talk a
little. If the testimony of all three witnesses are perused, it would
reveal that same was consistent as far as the all of them visiting spot
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of incident and noticing the appellant in a nude condition, so also the
victim in a semi nude condition.
15. Learned Advocate for the appellant Mr. S. G. Bobade, has
categorically contended that the entire story adduced by the
prosecution is nothing but a striking example of after thought and
concocted story. He further submitted that according to the PW-3
victim was in a position to speak and therefore, the incident could
have been narrated by her to the police authority. He further stated
that there was a omission in the statement of PW-2 regarding the
name which is duly proved through the Investigating Officer. He
submitted that PW-4 also cannot be relied upon since he has
mentioned the name of father of the appellant and not of the
appellant.
16. Mr. Bobade, learned Advocate further contended that the
best evidence was not collected by the Investigating Officer by
examining the father of the victim. According to him, panchanama
cannot be relied upon as timing of the panchanama clearly shows
that same are planted documents since the first information report
was registered at 08.30 on 25-11-2021 whereas the panchanama was
drawn after 11.30 on the same day. Considering the distance of 29km
between two spots it was not possible to conduct the panchanama at
such timing.
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17. He further submitted that the victim was studying in a
school which is crystal clear from the testimony of PW-7. In fact it
was the duty of the Investigating Officer to produce the record of the
school where victim was studying but since the Investigating Officer
did not do so it was the appellant who by way of prosecution brought
relevant documents on record.
18. He further contended that if the cross-examination of
PW-7- the Investigating Officer is perused, it seems that he has stated
that victim was studying in a school. Further if Exh.46 (page No. 79
of the paper book ) is perused it would reveal that the victim studied
up to 7th std which was not the school where deaf and dumb students
were taught. Thus, according to the learned Advocate for the
appellant the prosecution has suppressed the genesis of crime and
has not come with clean hand.
19. Per contra, the learned APP Mr. Kotecha has vehemently
contended that the evidence produced by the prosecution was cogent
and reliable and in fact the case has been proved beyond the
reasonable doubt.
20. Ms. Narwade, learned Advocate for the victim has
supported stand taken by the prosecutrix and has contended that
there is no reason to disbelieve the story advanced by the
prosecution.
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21. Rival contention falls for further consideration.
22. It is necessary to mention here that the appellant is
convicted for the commission of offence of attempt to commit rape
and not for the rape. The appellant was also convicted for the
commission of offence punishable under Sections 452 of the IPC.
23. In order to prove the ingredients of aforesaid sections,
the testimony of PW-2, PW-3 and PW-4 is required to be taken into
consideration holistically. PW-2, PW-3 and PW-4 have categorically
stated in their depositions that on the day of incident it was PW-3
who heard shouts and therefore, she woke up PW-2. When PW-2, PW-
3 and PW-4 went to the spot of the incident where the victim was
sleeping they found the appellant in a nude condition sleeping on the
person of the victim. The clothes of the victim were lifted up to her
neck. This particular of testimony was not seriously challenged by the
defense in prosecution. Though the various contentions were raised
regarding delay in lodging the first information report and the
omission which was put to PW-2 and proved through the
Investigating Officer, but suffice it to say that said minor omission
cannot destroy the case of the prosecution.
24. It is further pertinent to mention here that though the
defense has been taken that it was due to initial registration of case
against the Pappu in which, the present appellant had taken active
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part, the appellant was falsely implicated but nothing has been
brought on record to show that any case was registered against the
said Pappu.
25. According to the defense the victim was in a position to
speak and she had studied up to 7 th std and thus could have made
resistance, but the fact remains that the victim was physically
handicapped. The said testimony of the Medical Officer that the
victim was handicapped and testimony of other witnesses in that
regard has remained unchallenged.
26. As far as non-examination of witness i.e. victim by the
police is concerned, it is necessary to consider the relevant portion of
the testimony of the PW-6 examined by the prosecution below
Exh.33. She was a Special Teacher working with the deaf and Dumb
School. She stated that for recording the statement of the victim she
had received a letter from the office of Social Welfare Office. She
along with police visited the house of the victim and met the victim.
The victim was mentally unfit and handicapped. According to PW-6
when she enquired victim was not in position to reply, since she was
mentally unfit. This witness also enquired from the victim by making
signs, but, she could not reply. Thus, it is crystal clear that the victim
was not in a position to narrate the incident. Nothing has been
brought on record to disbelieve the deposition of PW-6- Special
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Teacher.
27. So far as PW-5 is concerned (a panch witness) he has
stated about seizure of the clothes of the victim and the appellant.
The clothes were forwarded to the Chemical Analyzer but nothing
incriminating was found. In fact, CA report supports the case of the
appellant.
28. Be that as it may, considering the fact that the testimony
of PW-2, PW-3 and PW-4 as discussed supra, is trust worthy, I come to
conclusion that the conviction rendered by the trial court is just and
proper. Trial Court has dealt with the said aspect at length in the
judgment and has rightly awarded the conviction.
29. In the aforesaid background, I am of the opinion that
prosecution has proved the case beyond the reasonable doubt. In that
view of the matter, the appeal is dismissed. It is directed that
substantive sentences shall stand run concurrently.
30. It is worth noting that Ms. Narwade who was appointed
counsel to represent the victim has assisted the court in a short time.
Her fees be quantified at Rs.7000/-
21. In view of dismissal of appeal, pending applications, if
any, stand disposed of.
[RAJNISH R. VYAS, J. ]
VishalK/910criapl3554.25
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