Bombay High Court
Bhola Maroti Chakole (In Jail) vs State Of Maharashtra Thr. P.S.O. P.S. ... on 26 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.182 OF 2017
Bhola Maroti Chakole,
Aged about 35 years, Occ. - Labour,
R/o Mohadi, Tq. Mouda, District -
Nagpur. .. APPELLANT
VERSUS
State of Maharashtra,
Through P.S.O., P.S. Mouda,
District - Nagpur (M.S.). ..RESPONDENT
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Shri R.M. Daruwala, Counsel for the appellant, Shri S.S. Doifode, Additional Public Prosecutor for the respondent
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CORAM : ROHIT B. DEO DATE : 26TH MARCH, 2018 The appellant is aggrieved by the judgment and order dated 16-4-2016 rendered by the learned Additional Sessions Judge-8, Nagpur in Sessions Trial 209/2014, by and under which the appellant-accused is convicted for offence punishable under Section 376 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.10,000/- and is further convicted for offence punishable ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 02:17:04 ::: 2 Apeal182.17 under Section 506 of the IPC and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/-.
2. Heard Shri R.M. Daruwala, learned Counsel for the accused and Shri S.S. Doifode, learned Additional Public Prosecutor for the respondent.
3. The prosecutrix (P.W.1), then aged 60 years, lodged oral report dated 13-1-2014 (Exhibit 20) at Mouda Police Station, alleging that she was subjected to forcible sexual intercourse by the accused. The gist of the oral report is that the prosecutrix was proceeding to Government Hospital, Mouda to change her spectacles, between 10-00 to 10-30 a.m. on 13-1-2014. The accused came on a motorcycle and offered to reach the prosecutrix to the hospital. The prosecutrix boarded the motorcycle. The accused, after travelling some distance from Marodi village, turned the motorcycle towards the babul (cutban) forest. The prosecutrix asked the accused as to why he was taking her in the direction of the babul (cutban) forest and the response was that the accused was expecting a friend who is also wanting to go to Mouda. The prosecutrix told the accused to fetch his friend and that she would wait on the road. The accused stopped the motorcycle at some distance, dragged the prosecutrix to the babul (cutban) forest, threatened her and subjected her to forcible sexual intercourse by issuing threats that should the prosecutrix resist, she would be killed. Since the prosecutrix started shouting the accused fled on his motorcycle. The accused came on the road and with the help ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 02:17:04 ::: 3 Apeal182.17 of a school going boy came to Jaistambh Chowk, Mouda. She then went to her son's father-in-law's house. The prosecutrix and her son then lodged the report.
The Mouda Police, on the basis of the oral report (Exhibit 20) and printed first information report (Exhibit 21) registered offence punishable under Sections 376 and 506 of the IPC against the accused, investigation ensued, P.W.7 Wasudeo Burade conducted the investigation and submitted the charge-sheet in the Court of Judicial Magistrate First Class, Mouda, who committed the proceedings to the Sessions Court.
The learned Sessions Judge framed charge (Exhibit 10) for offence punishable under Sections 376 and 506 of the IPC against the accused. The accused abjured guilt and claimed to be tried. The defence of the accused is of total denial and false implication. The prosecution examined seven witnesses. P.W.1 is the prosecutrix who deposed that at 9-00 a.m. or thereabout on 13-1-2014 she left her house on foot to go to Mouda to bring the spectacles. The accused met her near the nullah and asked her to sit on the pillion seat and told the prosecutrix that he is going to Mouda. The prosecutrix declined since her son was to come on motorcycle, the accused repeatedly requested the prosecutrix to board his motorcycle. She conceded. The motorcycle reached till the highway from where the accused turned the motorcycle in the left direction. The prosecutrix was take to a babul (cutban) forest. The prosecutrix was dragged to some distance, pushed on the wet earth and was asked to submit to sexual intercourse, she was threatened by the accused who was brandishing a knife. Her clothes were removed and she ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 02:17:04 ::: 4 Apeal182.17 was subjected to forcible intercourse. The accused then fled from the spot. The prosecutrix wore her clothes and reached highway and narrated the incident to a person who came there on motorcycle. The said person dropped the prosecutrix at Jaistambh Chowk, Mouda. The prosecutrix went to the house of the father-in-law of her son one Pramod Mankar. Her son was waiting at Mankar's house. The prosecutrix narrated the incident to her son and then the report was lodged. She has identified the knife and the clothes which she was wearing. She has also identified the bangle pieces seized from the spot.
The endeavour in the cross-examination is to demonstrate that considering the distance between the house of the prosecutrix and the spot at which she was asked by the accused to board the motorcycle, it is inconceivable that independent witnesses did not see the prosecutrix boarding the motorcycle. Shri R.M. Daruwala, learned Counsel for the accused also urged that failure of the prosecution to examine independent witnesses renders the version of the prosecutrix suspect. The prosecutrix is suggested that the accused is falsely implicated since there was a dispute between the prosecutrix and the accused on the issue of grazing of she-goats and throwing of waste material in the land of Jitendra Ghube and a quarrel between the prosecutrix and the accused which took place during Bhagwat Saptah in the village. The suggestions are denied.
4. The version of the prosecutrix is corroborated by P.W.3- Shaktikumar, her son to whom she narrated the incident. The version of the ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 02:17:04 ::: 5 Apeal182.17 prosecutrix is further corroborated by the medical evidence on record. She was medically examined by P.W.5 Dr. Sachin Wankhede who noticed injuries on her person which he describes thus :
1) abrasion just below left scapular region of size 1 x 0.5 cm.
2) contusion generalized over back of varying size from 3 x 3 to 1 x 1 cm.
3) abrasion over left breast of size 1 cm.
4) abrasion over right wrist of size 1 cm.
5) tear of 1.5 x 1 cm. by fourchette.
5. P.W.6 Dr. Inamdar examined accused Bhola on 31-1-2014 and noticed the following injuries :
1) superficial abrasion over left knee anterior,
2) abrasion over right knee.
The injuries were fresh.
6. The knife used to threaten the prosecutrix was recovered and seized at the instance of the accused from the dickey of motorcycle, vide seizure panchanama (Exhibit 48). The memorandum pursuant to which discovery and seizure effected is Exhibit 47. The spot panchanama records the presence of pieces of broken bangle, which were seized and which pieces the prosecutrix identified in the Court. The panchas did not support the prosecution. However, it is a settled position of law that if the evidence of the Investigating Officer is found ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 02:17:04 ::: 6 Apeal182.17 to be reliable, notwithstanding that the panchas did not support the prosecution, which a phenomenon noticed with disturbing regularity, the seizure proved by the Investigating Officer cannot be disbelieved.
7. The evidence of the prosecutrix is implicitly reliable. Nothing is brought on record for this Court to disbelieve the prosecutrix, who was then sixty years. The defence that the accused is falsely implicated must be noted only for rejection. Beyond suggesting to the prosecutrix that there was a dispute on the issue of throwing waste material, grazing of she-goats and there was a quarrel, the details of which are not put to the witness, between the prosecutrix and the accused on the occasion of Bhagwat Saptah nothing is brought on record to probabilize the defence even on the touchstone of preponderance of probabilities. Since the evidence of the prosecutrix is confidence inspiring, this Court is not obligated to search for corroboration. The submission of Shri R.M. Daruwala that failure of the prosecution to examine independent witnesses to show that the prosecutrix boarded the motorcycle of the accused, is fatal to the case of the prosecution, is unacceptable. Corroboration is not necessary. In any event, the evidence of the prosecution is supported by strong corroborative evidence by way of testimony of P.W.3 and the medical evidence on record. It must be noted that the accused did not explain the injuries detected on his person. The conscience of this Court is satisfied that the prosecution has proved the offence beyond reasonable doubt.
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8. The appeal is sans merit and is dismissed.
9. The fees of the learned Counsel Shri R.M. Daruwala appointed for the accused are quantified at Rs.5,000/- (Five Thousand).
JUDGE adgokar ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 02:17:04 :::