1
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.530 OF 2004
Shakil Karim Tamboli,
age 30 years, r/o
Kavathe Mahankal
District Sangli at
present Lodged in
Sangli District
Prison, Sangli.
...Appellant.
Versus
1. The State of
Maharashtra
2. Sunita Balasaheb
Shitole r/o
Vidyanagar, Kavathe
Mahankal, Dist.
Sangli.
...Respondents.
Shri Dilip Bodake, Advocate for the Appellant.
Mrs M. H. Mhatre, A.P.P., for the State.
CORAM: A.R.JOSHI,J.
DATE : 08TH MAY,2009.
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ORAL JUDGMENT:
1. It is the appeal preferred by the appellant – original
accused no.3 against the sentence and order passed by the 3rd
Ad hoc Additional Sessions Judge, Sangli (hereinafter
referred to as (“the trial Court”) dated 18.3.2004. By the
said impugned judgment and order present appellant, along
with co – accused nos. 1 and 2 was convicted for the offence
punishable under Section 376(2)(g) (a) read with Section 34
of the Indian Penal Code (I.P.C.for short) and was sentenced
to suffer R.I.,for ten years and fine of Rs. 2,000/- in
default to suffer further R.I., for one year. He was also
convicted along with co-accused nos. 1 and 2 for the offence
punishable under Section 376, read with section 34 of the
Indian Penal Code and sentenced to suffer R.I., for seven
years and fine of Rs. 500/- in default R.I., for one year.
Similarly, the appellant was convicted along with accused
nos. 1 and 2 for the offence punishable under section 452
r.w.s. 34 of the I.P.C., and sentenced to suffer R.I., for
three years and fine of Rs. 500/- in default R.I., for six
months, so also the appellant was convicted along with co-
accused for the offence punishable under sections 324, 323,
506, 504 read with section 34 of the I.P.C., and sentenced
to suffer R.I., respectively for one year, six months, three
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years and six months. All the substantive sentences were
directed to run concurrently. Perused R and P and the
substantive evidence of total seven prosecution witnesses
led before the Trial Court. Also, heard rival submissions
at length on earlier dates and also on today.
2. In order to appreciate the rival arguments and
also mainly the arguments advanced on behalf of the
appellant accused no.3, the case of the prosecution, as
unfolded before the Trial Court, can be narrated as under.
3.
Prosecutrix P.W.1 was married with one Balasaheb
Shitole in the year 1990. However, thereafter, there were
disputes between them. Her husband started residing with
another woman. Prosecutrix and her husband started staying
separately since about seven to eight years prior to the
incident, which took place on 11.9.2002. Prosecutrix had
constructed one hut like room on the plot of the land which
she got from the brother of the present appellant-accused
no.3. She resided in that place along with her son P.W.4,
then aged about 13 years. The incident of rape happened on
the night between 11 and 12 September, 2002 when prosecutrix
and her son were sleeping at home. At about 10.00 p.m., or
so, there was knocking on the door and accused nos. 1 and 2
were asking the prosecutrix to open the door. They used
filthy language to the prosecutrix. Suspecting steps of the
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accused persons, she initially did not open the door.
However, subsequently one neighbour P.W.3 Smt. Kashibai
arrived on the spot. She was knowing the accused persons.
She asked the prosecutrix to open the door saying that the
outsiders were known persons. On this, the prosecutrix
opened the door and then accused nos. 1 and 2 entered the
room. Present appellant accused no.3 remained outside
watching the situation. Accused nos. 1 and 2 gave threat to
P.W.3 Kashibai of dire consequences and asked her to leave
to place and to keep quite. On such threats, Kashibai took
the young son of the prosecutrix along with her and left the
place. Both accused nos. 1 and 2 after entering the room
closed the door from inside and uttered filthy language to
the prosecutrix. They forcibly make her naked by removing
her clothes. They also, one after the another, removed their
clothes and had forcible intercourse and also indulged in
unnatural intercourse with the prosecutrix. In order to see
that she should not raise any shouts her mouth was gagged by
hands of accused nos. 1 and 2.
4. When the above incident of sexual assault and
forcible sexual intercourse on the prosecutrix was going on
in her room, P.W.3 neighbour Kashibai had been to her other
tenants and apprised them of the incident and thereafter
went to the local police station and obtained police help.
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Police persons arrived on the spot in police vehicle. P.W.6
arrived on the spot. According to said P.W.6 present
accused no.3 ran away from outside the room of prosecutrix
after seeing the arrival of police party. Directions were
given to the prosecutrix to open the door saying that the
police persons had arrived on the spot. The prosecutrix
opened the door and came out at the same time accused nos. 1
and 2 also tried to come out and they were wearing their
clothes. They were apprehended and detained by the police
party
lodged
and
her
were
taken
complaint
to the
immediately
police
at
station.
the early
Prosecutrix
hours on
12.9.2002. On her complaint narrating the incident of sexual
assault and forcible sexual inter course by accused nos. 1
and 2 and disclosing the presence of accused appellant no. 3
outside the room during the entire episode of gang rape,
F.I.R., came to be lodged at about 00.35 on 12.9.2002.
5. Admittedly, accused nos. 1 and 2 were apprehended
on the spot, their clothes were taken charge under
panchnama. Subsequently, scene of offence panchnama was
conducted. Thereafter, revealing the role of the appellant,
he was put under arrest on 12.9.2002, in that night itself.
Admittedly, since then the appellant is in jail till today.
Prosecutrix and the arrested accused nos. 1 and 2 were sent
for medical examination and medical certificates were
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obtained. Biological samples of prosecutrix and accused
persons were sent for chemical analysis, so also the clothes
were sent for analysis and relevant C.A. Reports were
obtained. After completion of investigation charge sheet was
filed and matter was committed to the Court of Sessions
being Sessions case no. 169 of 2002 and was disposed of by
the impugned judgment and order, as mentioned above.
6. Reportedly, original accused no.1 preferred
separate appeal however, the same came to be dismissed for
no steps
preferred
taken.
any
ig Also,
appeal.
reportedly
Present
accused
appeal is
no.2
preferred
has not
by
appellant-accused no.3. Admittedly, it is the case of the
prosecution that appellant accused no.3 was not the person
who actually indulged in the activity of sexual assault and
forcible sexual intercourse on the prosecutrix. However, he
was one of the associates of main accused nos. 1 and 2 and
was guarding the house and in fact instigated accused nos. 1
and 2 to commit such sexual assault on the prosecutrix. In
the present appeal, it is to be ascertained whether the
presence of the appellant outside the house of the
prosecutrix during the entire incident was accepted rightly
and so also his involvement in the said incident is taken as
established.
7. During the arguments, learned Advocate Shri Dilip
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Bodake appearing for the appellant submitted that there is
no any active role taken by the appellant in the actual
commission of offence of gang rape and what is alleged
against him is only his association with the co-accused and
his alleged presence outside the house and as to his escape
after seeing the police party. It is also argued that
considering the admitted relationship between the
prosecutrix and one Afsar Tamboli, brother of the present
appellant, false implication of the appellant could not be
ruled out. Duringig the arguments, it
according to the substantive evidence of the prosecutrix
is submitted that
P.W.1 herself, she had admitted the illicit relations with
said Afsar Tamboli and that her room was constructed on
about one guntha plot belonging to Afsar Tamboli and which
was given to her by the said Afsar Tamboli on executing a
bond of Rs.100/- stamp paper. During the arguments it is
also brought to the notice of this Court by referring to the
contents of Exhibit 5 which is an affidavit, allegedly sworn
by the prosecutrix and which is dated 3.1.2003. After going
through the record and proceedings of the matter, it appears
that the said exhibit 5 came to be taken on record by the
Trial Court at the time of hearing of the bail application.
Reliance was placed on the contents of the said affidavit to
substantiate the case of the appellant accused no.3 that his
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name was falsely taken due to misunderstanding by the
prosecutrix and that only accused nos. 1 and 2 were the
culprits. The learned counsel appearing for the appellant
place his reliance on the following authorities.
(1) 2007 (2) Bom. C.R. (Cri) 145
Baban Govind Tope & ors. vs. State of Maharashtra &
Ors.
(2) 1991 (1) Mh.L.J. 692.
Anmol Shridhar Gharde and others vs. State of
Maharashtra.
(3)
2004 ALL MR (Cri) 2955 Navnath Namdeo Maske & Anr
vs. State of Maharashtra.
8. Counter to the above arguments, it is brought to
the notice by the learned A.P.P., Mrs M.H. Mhatre for the
State that had the contents of such affidavit Exhibit 5 were
true and correct to the knowledge of the prosecutrix herself
then there would not have been a detail cross-examination of
prosecutrix and only the question as to she taking the name
of accused no.3 due to misunderstanding would have served
the purpose. It is further brought to the notice of the
Court on behalf of the State that during the cross-
examination of the prosecutrix P.W.1, when she was
confronted with the contents of the said affidavit Exh.5,
she had specifically stated that she was put under the fear
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of killing and as such her signature was obtained on the
said affidavit. On this aspect, it is significant to note
that the prosecutrix is an illiterate woman and studied upto
3rd standard as per her substantive evidence. The contents
of the affidavit though are in Marathi, it is a typed
document and bearing the signature of the prosecutrix at the
end and it speaks to the effect that she was not sure
whether Shakil Tamboli (the appellant) had been to her house
or not on the night of the incident and that she had taken
inside the
the intimation of accused No.3 as Accused Nos. 1 and 2 who
were room were taking the name of ‘Shakil’,
‘Shakil’. It must be said that the contents of the said
affidavit have been repudiated by the prosecutrix and she
had given a reason under what circumstances it was signed by
her. Definitely, much after filing of such affidavit
recording of evidence in the matter started and if it was
her own say as to inadvertently taking the name of accused
no.3 in the complaint, such type of evidence would have
occurred when she was put to cross-examination on behalf of
accused no.3. However, it is not the case and in the
result, in the opinion of this Court the contents of such
affidavit Exhibit 5 cannot be taken shelter on behalf of the
appellant accused no.3. In other words, it cannot be
accepted that the prosecutrix has inadvertently and
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mistakenly taken the name of Shakil Tamboli, appellant
accused no.3 as the person remaining outside the courts
during the incident of rape.
9. Apart from the above, there is substantive
evidence of the neighbour of the prosecutrix P.W.3 Smt.
Kashibai, P.W.4 a young 13 years old Pratap Shitole, son of
the prosecutrix and also the evidence of P.W. 6 Police Naik,
Tatyasaheb Patil. In the opinion of this Court, on careful
scrutiny of the substantive evidence of above referred
prosecution witnesses goes to show that there was definitely
an involvement of appellant accused no.3 and that he was the
associate of main accused nos. 1 and 2.
10. Apart from the above, even the defence witness
examined on behalf of the appellant-accused does not inspire
confidence, inasmuch as, apart from his words there is
nothing to substantiate that the appellant was not on the
spot and was at home till 12 mid night. The said defence
witness is the brother of appellant. He specifically
submitted as to having illicit relations with the
prosecutrix and as to giving her the plot of the land, about
one guntha, on which the prosecutrix had constructed her
house and stayed there along with her son. He also
specifically mentioned as to having the frequent visits with
her. However, further came with a case that his brother
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Shakil Tamboli was at home since 9.00 p.m., to 12.00 mid
night of the night of 11th September, 2002 and only at about
2:30 in or when the police party came to his house, he and
his brother Shakil Tamboli then sleeping at the house were
dragged out by the police and were taken to the police
station.
11. Considering the substantive evidence of earlier
referred prosecution witnesses, defence of the accused even
on preponderance of probability cannot be accepted and it
12.
was rightly considered by the Trial Court.
In the above circumstances, in the opinion of this
Court, the involvement of accused no.3 has been rightly
established in the offences charged. However, considering
the specific case of the prosecution and the role given to
the appellant accused no.3, as to through out the incident
remaining outside the house, in the opinion of this Court,
the case against him can be viewed differently than that
which is against accused nos. 1 and 2. In other words, the
circumstances prompt this Court to take recourse to the
proviso to Section 376 (2) (g) of the Indian Penal Code
which speaks that for adequate reasons the punishment of
imprisonment can be less than the minimum ten years
prescribed by law. In the opinion of this Court, here it is
a matter in which it would be just and proper to exercise
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such discretion and to treat the matter under the proviso as
mentioned above.
13. In that event, it would be just and proper to
lower down the sentence of ten years imposed for the offence
punishable under section 376 (2) (g) of the I.P.C., to seven
years. Apart from this modification there is nothing to
alter the impugned judgment and order.
14. In the result, the conviction of the appellant
accused no.3 is upheld for the offence for which he is
convicted by the impugned judgment and order. However, the
sentence is accordingly reduced as under.
ORDER
1. Criminal Appeal No. 530 of 2004 is partly allowed.
Conviction of the appellant accused no.3 for the
offence charged and for which he is convicted by the
impugned judgment and order dated 18.3.2004 shall
sustain.
2. The imprisonment of ten years awarded for the offence
under Section 376 (2) (g) of the Indian Penal Code is
reduced to the imprisonment for seven years.
3. Remaining part of the impugned judgment and order shall
sustain.
A.R.JOSHI,J.
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Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.530 OF 2004
Shakil Karim
Tamboli, age 30
years, r/o Kavathe
Mahankal District
Sangli at present
Lodged
District
Sangli.
in ig Sangli
Prison,
..
Appellant..
Versus
1 The State of
. Maharashtra
2 Sunita Balasaheb
. Shitole r/o
Vidyanagar, Kavathe
Mahankal,
Dist.Sangli.
...Respondents.
Shri Dilip Bodake, Advocate for the Appellant.
Mrs M. H. Mhatre, A.P.P., for the State.
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CORAM: A.R.JOSHI,J.
DATE : 08TH MAY,2009.
OPERATIVE ORDER
1. Criminal Appeal No. 530 of 2004 is partly allowed.
Conviction of the appellant accused no.3 for the
offence charged and for which he is convicted by the
impugned judgment and order dated 18.3.2004 shall
sustain.
2. The imprisonment of ten years awarded for the offence
under Section 376 (2) (g) of the Indian Penal Code is
reduced to the imprisonment for seven years.
3. Remaining part of the impugned judgment and order shall
sustain.
A.R.JOSHI,J.
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