JUDGMENT
1. Vide Judgement and Order dated 26-8-1993, passed in Sessions Case No. 135/1992, the IIIrd Additional Sessions Judge, Thane, convicted and sentenced the appellant in the manner stated hereinafter :-
i) u/S. 457 I.P.C. to two years R.I. and to pay a fine of Rs. 2000/- i/d to undergo 6 months R.I.
ii) u/S. 376 I.P.C. r/w 511 I.P.C. to five years R.I. a five of Rs. 5000/- i/d undergo RI for a period of one year.
iii) u/S. 354 I.P.C. but, no separate sentence was awarded on that count; and.
iv) u/S. 506(II) I.P.C. to two years RI and to pay fine of Rs. 2000/- i/d 6 months RI.
The substantive sentences of the appellant were ordered to run concurrently.
2. Feeling aggrieved by the aforesaid convictions and sentences, the appellant has come up in appeal before this Court.
3. The prosecution case in breif is that, the prosecutrix Sugandha Laxman Mhatre PW-1 is blind since her birth. She, her mother Bharati Mhatre, her father Laxman Mhatre and the appellant reside in village Bhadwad District Thane. On the night of 14th and 15th of December, 1991, at about 12.30 a.m. the prosecutrix, her parents and other members of her family were sleeping inside their house. At that time, the prosecutrix felt that someone had put a hand on her hand. Naturally, she enquired as to who he was. She recognised the appellant by his voice. It is alleged that when the prosecutrix asked the appellant as to who he was, he told her not to disclose his name, otherwise she would be killed. He had also brandished a knife towards her. It is further alleged that the appellant removed the quilt by which the prosecutrix had covered herself and thereafter, inserted his hand in her midi. At that, the prosecutrix had shouted ‘mother’. On that the parents of the prosecutrix got up reprimanded the appellant who thereafter ran away.
4. Initially, the parents of the prosecutrix were not inclined to lodge an F.I.R. because, the appellant was a goonda and they were afraid of him. However, some respectable pearsons in the village asked the mother of the prosecutrix to lodge an FIR and on 16-12-1991 the informant Bharati Mhatre PW-2 along with her husband Laxman Mhatre P.W. 3 went to police station Shantinagar. There at 12.45 noon. Bharati Mhatre lodged her FIR. In the aforesaid F.I.R. the appellant is named. The FIR lodged by the prosecutrix was proved in the Trial Court as Exhibit 9 by Head constable Rangnath Kamerkar who had registered a case on its basis under Sections 354/457/506 I.P.C. against the appellant.
5. Investigation of the case was conducted by PSI Balu Guidhani PW-19. Immediately, after lodging of F.I.R. on 16-12-1991, he visited the place of the incident, where in the presence of public pancha PW-4 Ravikant Patil, he prepared the spot panchanama. He also interrogated the prosecutrix, her parents and some other withnesses under S. 161, Cr.P.C. In the presence of public panch, PW-5 Gurunath Patil, he arrested the appellant. Finally, he submitted a charge sheet against the appellant.
6. The case was committed to the Court of Session in the usual manner. In the trial Court, charges under Sections 354, 457, 506 I.P.C. and Sections 376 r/w 511 I.P.C. were framed against the appellant to which he pleaded not guilty and claimed to be tried. In the trial Court, as many as seven witnesses were examined by the prosecution.
In defence, the appellant examined his wife Shobha who deposed that the appellant was innocent and had been falsely implicated in the instant case. The trial Judge belived the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above.
7. I have heard Mr. A. G. Toraskar for the appellant and Mr. D. A. Nalawade, Additional Public Prosecutor for the State of Maharashtra.
I have also perused the depositions of the witnesses examined in the trial Court, the material exhibits tendered in the Court, the statement of the appellant recorded under Section 313 Cr.P.C. and the impugned judgment.
8. After giving my anxious consideration to the matter, I am of the view that this appeal must succeed in part. In my view, the conviction of the appellant under sections 376 r/w 511 is unsustainable and the deserves to be acquitted on that count.
In the instant case, there is a solitary eye witness of the incident namely the prosecutrix. It was on the basis of the averments contained in her examination-in-chief that I have set out the prosecution story narrated in para 3 of my judgment. In my view, no fruitful purpose would be served by repeating the same. As I see it, even if the averments contained in her statement, recorded in the trial Court, are accepted as gospel truth, no offence under Ss. 376, I.P.C. r/w 511 I.P.C. is made out against the appellant. All what the prosecutrix says is that on the night of 14th/15th December, 1991, the appellant touched her hand; thereafter set aside the quilt with which she was covering herself; and finally, put his hand in her midi. To the same effect, is the statement of PW-2 Bharti mother of the prosecutrix and PW-3 Laxman Mhatre father of the prosecutrix. To them, she had disclosed the incident after the appellant had runaway.
In my view, the act of the appellant in touching the hand of the prosecutrix; in removing the quilt with which she was covering herself; and in putting his hand in her midi, can by no stretch of imagination be construed as an attempt to commit rape, upon her. In respect of appellants conviction u/Ss. 376 I.P.C. r/w 511, I.P.C. Obviously, the impugned judgment is unsustainable and has to be set aside.
In my view, the aforesaid act of the appellant would clearly fall within the ambit of Section 354 I.P.C. on which count also, the learned trial Judge has convicted the appellant but, has chosen not to award a separate sentence as the appellant has been sentenced under Sections 376 r/w 511, I.P.C.
9. I am also in agreement with the trial Judge that the appellant committed offences punishable under Sections 457 I.P.C. and 506(ii) I.P.C. The learned counsel for the appellant failed to show any infirmity in the conviction of the appellant on those two counts. Consequently, I am inclined to confirm the same.
10. I am not impressed with the contention of Mr. Toraskar that the entire case against the appellant appears to be a tissue of lies. In my view, it would be impossible to believe that the prosecutrix would have made false and dressed-up allegations reflecting adversely on her respectability and honour. For similar reasons, it would be difficult to discard the testimony of the parents of the prosecutrix Sugandha Mhatre to whom she disclosed the incident immediately after the appellant had run away.
I am not impressed with the testimony of the defence witness Shobha Naik, the wife of the appellant who deposed that since there had been a quarrel between herself and the parents of the prosecutrix, this false case has been concocted against the appellant. Firstly, because this story is seeing the light of the day for the first time, when she was examined in the Trial Court. Secondly, in my view, no parents would manufacture such allegations which would threaten the prospects of the marriage of their unmarried daughter (the prosecutrix).
11. In the result, this appeal is partly allowed and partly dismissed. The conviction of the appellant recorded under Sections 376 r/w 511 I.P.C. and the sentence of five years RI and fine of Rs. 5000/- imposed on the appellant on that count is set aside. He is acquitted on that count. In case the appellant has paid the fine, the same shall stand refunded to him. However, the conviction and sentence of the appellant under Sections 457, I.P.C. and 506(ii) I.P.C. is confirmed. The conviction of the appellant under S. 354 I.P.C. is also confirmed and he is awarded a sentence of two years R.I. on that count. This sentence shall run concurrently with the sentence of the appellant under Sections 457 I.P.C. and 506(ii) I.P.C. from the date the appellant was taken into custody.
I am informed by Mr. Toraskar that the appellant is continuously in jail since 20-12-91 If this is so, then not only has the appellant served the substantive sentences under Sections 457, 506(ii) I.P.C. and 345, I.P.C. but, also those in default of payment of fine, on the first two counts.
12. Office shall immediately send the operative part of this judgment to the Superintendent of the Jail in which the appellant is detained and the Trial Court.
In case the appellant has served out his sentence, he shall be released forthwith unless wanted in some other case.
13. Order accordingly.