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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO: 691/2008
WITH
CRIMINAL APPEAL NO. 717/2008
WITH
CRIMINAL APPEAL NO. 728/2008
CRIMINAL APPEAL NO: 691/2008
Rammurti s/o Bapurao Bominwar
Aged about 35 years, occu: Labourer
R/o Akoli (Khurd)
Post & Tah. Pandharakwada Dist. Yavatmal ... ...APPELLANT
v e r s u s
The State of Maharashtra
Through Police Station Officer
Pandharakwada Dist. Yavatmal ... ...RESPONDENT
CRIMINAL APPEAL NO. 717/2008
Sk. Javed @ Bablu Sk.Kurban
Aged about 27 years,
occu: Private R/O at & Po: Akoli
Po: Sonbirdy
Tah. Kelapur Dist. Yavatmal. ... ...APPELLANT
v e r s u s
The State of Maharashtra
Through Police Station Officer
Pandharakwada Dist. Yavatmal ... ...RESPONDENT
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CRIMINAL APPEAL NO. 728/2008
Praful Narsingrao Padelwar
Aged about 26 years
R/o Akoli (Khurd)
P.S. Pandharakwada Dist. Yavatmal ... ...APPELLANT
v e r s u s
The State of Maharashtra
Through Police Station Officer
Pandharakwada Dist. Yavatmal ... ...RESPONDENT
............................................................................................................................
Mr. M I Dhatrak, Adv.for appellant (in Cri.Appeal No.691/2008)
Mr S.V.Dongre, Adv.for appellant(in Cri.Appeal No. 717/2008)
Mr Apurva De,Adv.for appellant (in Cri.Appeal No.728/2008)
Mr Anup Parihar, Addl.Public Prosecutor for Respondent
CORAM: A.P.BHANGALE, J.
DATE OF RESERVING: 30.09.2009
DATE OF PRONOUNCEMENT: 15.10.2009
ORAL JUDGMENT :
1. The appellants were charge-sheeted and prosecuted for
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commission of offence punishable under section 376(2)(g) of the Indian
Penal Code ( in short “IPC”) for having committed rape upon prosecutrix on
27.1.2004 at about 00.20 hours. By judgment and order dated 11.9.2008
in Sessions Trial No.11/2004, the learned Special Judge, Pandharakwada
Dist. Yavatmal, found them guilty and imposed punishment for offence of
rape awarding jail sentences for ten years each and fine in the sum of Rs.
1000/- ,in default, to undergo further imprisonment for three months to
each of the appellants for offences of house trespass, punishable under
section 450, for period of thee years and fine in the sum of Rs. 1000/-each,
and further imprisonment of three months.
2. The said judgment and order is under challenge by means of
these Appeals.
3. The prosecution case briefly stated is : On 27.1.2004 at
about 8.00 p.m. the prosecutrix-Sujata took her meals was alone in house at
Akoli (Khurd), Taluqa Kelapur ;while her husband Kapil had gone to
Nagpur. At about 12.00 midnight, as she heard a knock on the door she
got up and saw accused coming from outside the door. Accused
Ramamurti, Praful and Sheikh Javed Sk.Kurban R/o Akoli were playing
carrom in the locality and, therefore, were known to the prosecutrix. They
had asked prosecutrix to open the door and also asked whether Kapil
( husband of prosecutrix) was in the house. Prosecutrix told them that her
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husband was not in the home and she would not open the door.
Preosecutrix went again to sleep on the cot. After about 20 minutes,
those three accused persons had trespassed in the house form the rooftop
removing the Mangalore tiles on the house. Accused Praful Padelwar woke
her up by his hand and by another hand pressed her mouth so that she
should not raise shouts; while accused Sk. Javed opened buttons of her
blouse. Ramamurti caught her hands and legs. They did not allow the
prosecutrix to move or raise shouts. Sk. Javed removed her saree, lifted her
petticoat and removed her nicker. He forcibly pressed her breasts and
committed sexual intercourse. Then he opened the door and went outside.
Thereafter, Ramamurthi Bominwar committed forcible sexual intercourse
with her in same manner. Lastly, Praful pressed her mouth and did not
allow prosecutrix to shout. Praful had helped other two to commit sexual
intercourse through he himself did not commit sexual intercourse. On
28.1.2004 at about 8.00 a.m., the prosecutrix narrated the incident o her
nighbour-Gulabrao Bhanarkar who advised prosecutrix to wait till arrival of
her husband from Nagpur and then to lodge a complaint at Police Station.
Thus, after arrival of her husband, she narrated the whole incident to him and
then both of them approached the Police Station. Her complaint gave rise
to Crime No. 16/2004 registered at Pandharkwada Police Station on
28.1.2004 at 23.00 hours. The prosecutrix-Sujata (PW 1) deposed before
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the Court about the incident and oral report and FIR (Exhs. 34 and 35). FIR
was recorded by Deelip Tidke (PW 5). Learned APP submitted that her
evidence as above, remained unshaken in material particulars so as to
identify the accused since prior to the incident, as also the incident of gang-
rape. According to prosecutrix, her hands and legs were caught and her
mouth was gagged and, therefore, she could not resist. She had also
suffered injury on her private part and her chests (breasts) were swollen. PW
2-Kapil (husband of prosecutrix) had returned to Akoli on 28.1.2004 when
prosecutrix narrated the incident to him. One Gajanan Madikuntwar
(Accused No.4), {maternal uncle of the accused -Ramamurthi} tried to
bribe the witness Kapil in order to prevent lodging of FIR. PW 3 Siddhartha
is a panch witness about Panchnama Exh.38; seizure of nicker; bed-sheet,
shawl; petticoat. Spot Panchnama (Exh.39) mentions that three tiles of roof
above hearth near northern wall, was seen removed from which place
accused trespassed in. Semen stains were seen on mattress.
4. Dr. D.A. Chaudhary (PW 4) deposed as to the certificate (Exh.
44) issued by him. According to him, the prosecutrix was capable of
performing intercourse. Although he could not give expert opinion as to
commission of forcible sexual intercourse, he had collected pubic hair,
vaginal swab, blood sample sealed and handed over to lady Head Constable
Vanmala.
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5. About medical examination of accused – Praful, Dr. Chaudhary
found that all accused were capable to do sexual intercourse.
6. Dr. Choudhary did not notice general symptoms of forceful
sexual intercourse on prosecutrix on the person of Sujata (Prosecutrix).
6. PW6-Sheshrao Pande deposed about investigation done in the
case.
7. The accused led defence evidence of Matil Shaikh and Arun
Bontawar who deposed about accused who were friends of Kapil ( husband
of prosecutrix) were often visiting house of Kapil. The identity of the
accused, therefore, is beyond dispute as they were known to prosecutrix
prior to the incident.
8. Learned Advocates for appellants contended that the appellants
could not have entered from the roof by removing Mangalore tiles and by
that time the prosecutrix would have raised shouts to invite attention of
neighbours. It is further submitted that the prosecutrix had stated that she
narrated the incident to Gulabrao Bhanarkar on the next morning ; but he
was not examined to prove this fact. Kapil, husband of the prosecutrix, came
back from Nagpur at about 4.00p.m. Then prosecutrix narrated the incident
to him; but the FIR was lodged after much delay which ought to have been
explained. It is lastly submitted that suspicion howsoever strong can not
amount to proof and, therefore, for want of legal proof the appellants
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ought to have been acquitted by the trial Court. Reference is made to the
ruling in Krishna Raut vs. State of Maharashtra : 2008 All.M R (Cri) 656.
9. Learned APP in support of the impugned judgment and order
submitted that the accused/appellants were known to the prosecutrix
because they were friends of Kapil. (her husband) and as such, they were
well-acquainted with house; had climbed on roof, chose to remove big
Mangalore tiles of the roof to make an entry in the house from rooftop as
they intended to commit the heinous crime. Considering the time of arrival
of her husband Kapil at about 4.00 p.m. on next day, the prosecutrix
waited for his arrival and after narrating the incident to him, they must have
pondered over to decide to lodge a complaint at nighttime by going to
Pandharkwada Police Station. Therefore, there was no inordinate delay to
lodge the complaint. According to learned APP, necessary evidence was led
by the prosecution to prove the charge and non-examination of Gulabrao
Bhanarkar was of no consequence as it was of a hearsay nature.
10. I have considered the submissions advanced at the Bar and
perused the evidence on record. From the evidence on record, it appears
that the incident had occurred on 27.01.2004 at about 12 O’ clock mid-
night when husband of prosecutrix had gone to Nagpur. He returned at 4.00
p.m. On 28.1.2004. After prosecutrix narrated the incident to him, they
went to Pandharkwada Police Station to lodge report. Thus, there was
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reasonable and plausible reason for delay which was not inordinate, in the
facts and circumstances considering that a lady who is raped go through
great emotional turmoil before deciding to lodge the complaint.
12. Although the prosecutrix was cross-examined at length, her
evidence as to the incident remained unshaken in the main and, therefore,
veracity of her evidence can not be doubted. There is no reason to doubt
evidence of her husband Kapil (PW 2) also.
13. It is also argued that there were no injuries on her private part
and on physical body, according to medical evidence led in this case. This
submission is advanced with an argument that the trial Court should have
disbelieved the prosecutrix. However considering the fact that prosecutrix is
a married lady, it was not necessary that injuries should have been found on
her private part. The defence suggested, in the course of cross-examination
of the prosecutrix, “it is not true to say that in the absence of my husband I
was calling boys in the village in day and night”. The appellants had not
taken plea of a consensual sex in their statement u/s 313 of the Cr.P.C.
There was no evidence of any political enmity as suggested, which can lead
to such serious complaint about gang rape by a married lady.
14. Thus, looking to the totality of evidence there was enough,
cogent, reliable and trustworthy evidence. Hence the conviction and
sentence awarded by the trial Court was well-founded and there is no merit
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or substance whatsoever in these Appeal. In the result, all Appeals are
dismissed.
JUDGE
sahare
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