Bombay High Court
Raju Natthuji Fule vs State Of Maharashtra ... on 30 January, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.691 OF 2002
WITH
CRIMINAL APPEAL NO 694 OF 2002
CRIMINAL APPEAL NO.691 OF 2002
Shri Raju alias Rajendra s/o. Natthuji Fule,
Aged 27 years, Occupation Agriculturist,
R/o. Singarkheda, Tahsil Narkhed,
District Nagpur ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Police Station Narkhed, District Nagpur ...RESPONDENT
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Mr.R.M. Patwardhan, counsel for appellant.
Ms. T.H. Udeshi, Addl. Public Prosecutor for respondent / State.
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CRIMINAL APPEAL NO 694 OF 2002
Sheshrao Mahadeo Waghmare,
Aged 21 years, Occupation Agriculturist,
R/o. Singarkheda, Tahsil Narkhed,
District Nagpur ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Narkhed, District Nagpur ...RESPONDENT
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Mr. M. Hussain, counsel for appellant.
Ms. T.H. Udeshi, Addl. Public Prosecutor for respondent / State.
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2
CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 15.11.2017
DATE OF PRONOUNCING THE JUDGMENT
: 30.01.2018
JUDGMENT
Criminal Appeal 691 of 2002 is preferred by accused Raju alias Rajendra Fule who is convicted for offences punishable under section 323, 342 and 376 of the Indian Penal Code ("IPC") and Criminal Appeal 694 of 2002 is preferred by accused Sheshrao Waghmare who is convicted for offence punishable under section 324 read with section 107 of IPC, by and under judgment dated 12.11.2002 rendered by the 7th Adhoc Assistant Sessions Judge, Nagpur in Sessions Case 85 of 2001. Accused Raju is sentenced to suffer rigorous imprisonment for three months and to payment of fine of Rs. 1,000/- for the offence punishable under section 323 of IPC, is further sentenced to undergo rigorous imprisonment for four months and to payment of fine of Rs 1,000/- for offence punishable under section 342 of IPC and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 5,000/- for offence punishable under section 376 of IPC. Accused Sheshrao Waghmare is sentenced to suffer simple imprisonment for three months and to payment of fine of Rs. 1,000/- for offences punishable under section 324 and 107 of IPC. ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 3
The co-accused Arun Harle is acquitted of all offences. 2 The case of the prosecution is that the complainant - prosecutrix was residing at village Singarkheda alongwith her parents and sister. The incident occurred on 3.8.2000. The prosecutrix (PW 1), alongwith other women, was working in the agricultural field of one Lilabai (PW 5). The accused came to the field and demanded of Lilabai that the prosecutrix and her sister Archana should not be permitted to work in the field and should be driven out. The other women asked the accused to leave but in vain. An angry prosecutrix proceeded towards her house and when she reached the tar road in front of the field, the accused again accosted her. Accused Raju pulled her by holding her hand. Accused Sheshrao said that the prosecutrix be assaulted with Ubhari (wooden stump of bullock cart). She was man handled, accused Raju assaulted on her breast, back and mouth with fist blows and then dragged her to the field having rows of Soyabin and Jowar crops. Raju took her in the field with standing Soyabin crop. Accused Arun and Sheshrao stayed out of field. Accused Raju removed her gown and petticoat, tore and threw away her brassiere and nicker and forcibly ravished her. The prosecutrix shouted for help, but then there was anybody around. The ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 4 prosecutrix started weeping and shouted and was dealt a fist blow on teeth by accused Raju. She suffered abrasion on back, the bangles broke due to which she suffered a wrist injury. The accused assaulted her on lower abdomen by fist blows. The prosecutrix told the accused that she would go home, inform her father and lodge a report. Accused Arun fled, however, accused Raju and Sheshrao stayed back and detained her in the field till 7.00 p.m. and only thereafter did they allow the prosecutrix to go home. She reached home and narrated the incident to her uncle Namdeo and her father and lodged the report.
On the basis of the said report (Exh. 9) offence punishable under section 376, 342, 506 read with section 34 of Indian Penal Code was registered against the accused, investigation ensued and upon completion thereof, charge sheet was submitted in the Court of Judicial Magistrate First Class, Narkhed who committed the proceedings to the Session Court. The learned Sessions Judge framed charge under sections 324, 354, 342 read with section 34 of IPC, 324 read with section 107 of IPC and 376 of IPC, the accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is total denial and false implication.
::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 5 3 The prosecutrix is examined as PW 1. Her deposition is broadly consistent with the contents of the oral report. She has proved the oral report Exh. 9- and the First Information Report (Exh. 9-A).
In the cross-examination, she has denied the suggestion that she and accused Raju were in a relationship, which was not liked by her family members. She has further denied the suggestion that her uncle Namdeo and accused Raju are not on good terms. The cross-examination is most cryptic and no serious effort is made to challenge the version of PW 1, except giving 2 or 3 suggestions to buttress the defence of false implication. In cross examination on behalf of accused Arun and Sheshrao, PW 1 is suggested that accused 2 and 3 did some work in the field of the prosecutrix and were not paid labour charges by her father which non payment led to a altercation.
4 The medical evidence may now be considered. PW 4 Dr. Supriya Sood, who was then deputed to Daga Hospital as lecturer in gynecology, examined the prosecutrix and issued examination report Exh. 22. PW 4 has deposed that since there was no injury on external genital region and the hymen was intact, she did not examine the vagina. PW 4 has deposed that she ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 6 noticed contusion on lower lip and abrasion on left breast of the prosecutrix.
The only suggestion given on behalf of accused Raju is that PW 4 did not examine the prosecutrix while accused 2 and 3 declined to cross-examination PW 4.
5 PW 7 Dr. Sanjay Solanki who examined the accused has deposed that he noticed an abrasion on left neck of accused Raju admeasuring 2 x 1 cm. No injury was detected on the genital region. PW 7 has deposed that accused Sheshrao had multiple abrasion on the right side chest of size 2 x 1 cm.
6 PW 3 Abdul Razaq is the witness to the spot panchanama (Exh. 13) and seizure panchanamas (Exh. 14) and (Exh. 15). The spot panchanama records that pieces of red coloured bangles, beri (ear ornament) of yellow metal, one hook of pant, a pin and a packet containing tobacco are noticed on the spot. PW 3 is also panch to the seizure memo evidencing the seizure of the clothes of the accused Raju. However, since PW 3 admits in the cross-examination that the seized clothes were lying at the police station and he is deposing on the basis of the information given by the police that the clothes belonged to ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 7 accused Raju, the evidence of PW 3 as regards the seizure of the clothes of accused Raju must be kept out of consideration. However, PW 3 has proved the seizure of the articles lying on the spot and recorded in the spot panchanama, by proving seizure panchanama Exh. 13. The other panch Arun Zade (PW 9) has proved the spot panchanama Exh. 12, but has deposed that no articles were seized in his presence and that his signatures were obtained in the Police Station after 2 to 4 days. His testimony is of scant assistance to the prosecution.
7 PW 5 Lilabai has not supported the prosecution. Nothing is elicited in her cross-examination to assist the prosecution. The witness who is material, other than the prosecutrix herself, from the perspective of the prosecution is PW 6 - Archana who is the younger sister of the prosecutrix. She states that the accused came to the field of Lilabai, they were under the influence of liquor, the prosecutrix was abused and Lilabai asked the prosecutrix to return to her house. She states that when the prosecutrix was proceeding her house, the accused were accompanying her. She states that when she returned home at 6.00 p.m., she came to know from her father that the prosecutrix had not come home. PW 6 conveyed to her father that ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 8 the prosecutrix left the field to go home in the afternoon, the prosecutrix came home at 7.30 or 8.00 p.m., her lips were bleeding and clothes were smeared with mud and were torn. PW 6 states that the prosecutrix told her that she could not come home as she was detained by the accused. The statement that when the prosecutrix proceeded towards her house, the accused followed her is brought on record as omission.
8 PW 2 Sahebrao is the father of the prosecutrix who has deposed that when the prosecutrix returned at 7.30 p.m., her clothes were soiled with mud and she narrated that she was detained by the accused and that Raju committed sexual intercourse with her.
The statement that when the prosecutrix came home, the clothes were with mud is an omission. PW 2 has denied the suggestion that the accused 2 and 3 are falsely implicated since there was a dispute on the issue of payment of labour charges. 9 Shri R.M. Patwardhan, the learned counsel for the appellant submit that the version of the prosecution that she was forcibly detained against her will from 1.30 p.m. or thereabout to 7.00 p.m., is doubtful. The conduct of PW 6 Archana of continuing with her work in the agricultural field despite the ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 9 abuses and threats hurled at the prosecutrix by the accused who followed the prosecutrix when she proceeded towards house, is unnatural. The medical evidence is not consistent with forcible and violent sexual intercourse, is the submission. Per contra, Ms. T.H. Udeshi, the learned Additional Public Prosecutor submits that the evidence of the prosecutrix is consistent with First Information Report which is lodged with promptitude. The evidence is not shaken in the cross-examination and indeed, in the cryptic cross- examination there is hardly any challenge to the core or substratum of the testimony of the prosecutrix, is the submission. That the hymen was not ruptured, does not exclude rape, since even the slightest penetration in the vulva, with or without emission of semen or rupture of hymen constitutes rape, is the submission.
10 The prosecutrix is not an accomplice. Insisting on corroboration is adding insult to the injury, unless the Court is impelled to search for corroboration in view of any infirmity in the evidence which renders the evidence unworthy of implicit reliance and credence. The pivotal question is whether the evidence of the prosecutrix is implicitly reliable, trustworthy and confidence inspiring. The First Information Report is lodged with reasonable ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 10 promptitude. The testimony of the prosecutrix (PW 1) is consistent with the First Information Report lodged by her. The substratum of the testimony has gone virtually unchallenged. In the cryptic cross examination, two suggestions are given to her to bring on record the defence that the accused are falsely implicated. The first suggestion is that she and accused Raju were in a relationship, which her family disliked. The other suggestion given to her is that her uncle Namdeorao and the accused are on inimical terms. The testimony of the prosecutrix is not shaken in the cryptic cross examination. Indeed, as noted supra, there is no attempt made to impeach the testimony on the substratum or core thereof. The suggestions are denied. The suggestion that the prosecutrix and accused Raju were in a relationship which the family of the prosecutrix did not like, does not take the case of the defence any further. Nothing is brought on record to suggest that the prosecutrix lodged report at the behest of her family. If the prosecutrix and accused were in love with each other, as is the defence, why would the prosecutrix falsely implicate accused Raju in a heinous offence and that too putting her own dignity and honour and future life at stake, is not answered by the defence, even on the touchstone of preponderance of probabilities. The prosecutrix made an immediate disclosure to her father Sahebrao ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 11 (PW 2). The evidence of prosecutrix PW 1 is corroborated by the medical evidence. PW 4 Dr. Supriya Sood has proved the medical examination report Exh 22. The prosecutrix had an abrasion over her left breast and contusion on lower lip. The fact that the hymen was intact does not exclude rape. Slightest penetration of the male organ in the vulva, with or without emission of semen or rupture of hymen constitutes rape. The evidence of PW 4 Dr. Sood has gone unchallenged. PW 7 Dr. Solanki who examined accused Raju noticed an abrasion with size 2 x 1 cm on the left neck. The corroborative evidence lends assurance to the evidence of the prosecutrix PW 1, which is even otherwise is confidence inspiring and free from any infirmity. The conscious of this court is satisfied that the conviction can rest solely on the testimony of PW 1 and this Court is not obligated to search for corroboration. The fact that in the factual matrix the testimony of the prosecutrix is corroborated by the evidence of PW 2 Sahebrao, PW 6 Archana and the medical evidence and the seizure of articles like broken bangle pieces, or ring, hook of trouser only fortify and strengthen the conviction that the prosecution has proved the offence against accused Raju Fule beyond reasonable doubt.
11 However, the evidence on record is not cogent ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 12 enough to hold that the offence against accused Sheshrao is proved beyond reasonable doubt. Accused Sheshrao is convicted of offence under section 324 read with section 34 of IPC. The solitary statement in the evidence of the prosecutrix is that he instigated other accused to beat the prosecutrix with Ubhari (wooden stump of bullock cart). Concededly, it is not even the case of the prosecution that pursuant to the instigation the prosecutrix was assaulted with Ubhari. The prosecutrix was indeed assaulted by accused Raju, the assault was in view of resistance put up by the prosecutrix when she was sexually ravished. It is difficult to hold that the offence punishable under section 324 read with section 107 of IPC is proved against accused Sheshrao. He is entitled to be acquitted of the said offence.
In the result I pass following order:
(i) The conviction of accused Raju Fule for offence punishable under section 323, 342 and 376 of IPC and sentence imposed is affirmed and maintained. Criminal Appeal 691 of 2002 filed on behalf of accused Raju Fule is dismissed.
(ii) The conviction of accused Sheshrao under section 324 and 107 of IPC is set aside. His bail bond stand discharged. Criminal Appeal 694 of 2002 filed on behalf of ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 ::: 13 accused Sheshrao Waghmare is allowed.
(iii) Accused Raju Fule be taken into custody forthwith to serve the sentence. He shall be entitled to benefit under section 428 of Code of Criminal Procedure.
(iv) Police Station Narkhed to assure that the accused is taken into custody and compliance report submitted in the Registry of this Court, within 15 days from the date receipt of the judgment and order.
(v) Registry to communicate the order to Police Station Officer, Narkhed, forthwith.
JUDGE Belkhede, PA ::: Uploaded on - 30/01/2018 ::: Downloaded on - 31/01/2018 02:18:03 :::