Bombay High Court
Radhesham @ Rajesh S/O. Sampat Wakle vs State Of Maharashtra Thr. Police ... on 27 February, 2019
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
apeal628.17 17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.628 OF 2017
Radhesham @ Rajesh s/o
Sampat Wakle, aged about 40
years, r/o Butai No.2,
Arjuni/Mor, Tahsil Arjuni/Mor,
District Gondia. ..... Appellant.
:: VERSUS ::
State of Maharashtra,
Through Police Station Officer,
Police Station, Arjuni/Mor,
District Gondia. ..... Respondent.
================================
Ms S.B.Khobragade, Counsel for the Appellant.
Shri M.K.Pathan, Additional Public Prosecutor for the
Respondent/State.
================================
CORAM : V.M. DESHPANDE, J.
DATE : FEBRUARY 27, 2019.
ORAL JUDGMENT
1. By this appeal, the appellant (hereinafter referred to as, "the accused" for the sake of brevity) is challenging judgment and order of conviction dated 20.3.2017 passed by learned Additional Sessions, Gondia in Spl.(Atro) Case .....2/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:04 ::: Judgment apeal628.17 17 2 No.25/2013.
2. By the impugned judgment and order of conviction, learned Judge of the Court below convicted the accused for offence under Section 376(1) of the Indian Penal Code and directed to suffer rigorous imprisonment for 14 years and to pay a fine of Rs.10,000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 1 month.
The accused is also convicted for offence under Section 341 of the Indian Penal Code and directed to suffer simple imprisonment for 1 month and to pay a fine of Rs.500/- and in default of payment of the fine amount to suffer simple imprisonment for 1 month.
3. On 19.8.2013, victim (PW1) came to Arjuni/Morgaon Police Station and lodged her oral report. The said oral report is at Exhibit 13. As per the said report, she is having two sons and one daughter. Out of that, her one .....3/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:04 ::: Judgment apeal628.17 17 3 son and daughter are already married and another son who is unmarried also resides outside village as her married son and daughter. As per the First Information Report, she stays with her husband Kewalram (PW3). The report further states that on 18.8.2013 she went to Mahagaon in dispensary of Dr.Baghele for treatment as she was not keeping good health. When she was returning at 4:00 p.m. from Mahagaon to her village butai No.2, near the village, in hilly area, Radhesham, the accused, came, pressed her mouth, and took her to nearby bushes and after removing her clothes, he committed sexual intercourse.
4. On the basis of the oral report (Exhibit 13), crime was registered vide Crime No.58/2013 for offences under Sections 376, 341, and 506 of the Indian Penal Code and initial investigation was done by Police Inspector Sandip s/o Kisanrao Bhagwat (PW13). During the investigation, it was revealed that the first informant and the victim (PW1) belongs .....4/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 4 to the Scheduled Castes. Therefore, he also registered offence under Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short, the SC and SC Act). Prior to addition of the penal provisions under the Atrocities Act, Sandip Bhagwat prepared spot panchnama (Exhibit 55). He also issued letter (Exhibit 56) to tahsildar for drawing sketch of the spot. He obtained the sketch of the spot (Exhibit 57). He also sent the victim to Arjuni/Morgaon Rural Hospital for her medical examination vide requisition letter (Exhibit 42). Medical officer of the Arjuni/Morgaon Rural Hospital referred the victim to BGW General Hospital at Gondia. Sandip Bhagwat obtained medical reports (Exhibit 43 and 44) of the victim. He also arrested the accused on 19.8.2013 under arrest panchnama (Exhibit 58). He seized clothes of the accused under seizure panchnama (Exhibit 26). So also, he seized clothes of the victim under seizure panchnama (Exhibit 27).
.....5/-
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5. Further investigation was carried out by Sub Divisional Police Officer Gajanan s/o Shivling Rajmane (PW12). After taking over the investigation, Gajanan Rajmane recorded statements of various witnesses. He also sent seized samples of the accused and the victim (PW1) to Chemical Analyzer's Office at Nagpur for its analysis. After completion of the investigation, he filed chargesheet.
6. Learned Additional Sessions Judge, Gondia framed charge against the accused for offences under Sections 341, 506, and 376 of the Indian Penal Code and under Section 3(1)
(xii) of the SC and the ST Act.
7. In order to prove the guilt of the accused, the prosecution examined in all 13 witnesses and also relied upon various documents duly proved during Trial. After a full fledged Trial, though learned Judge of the Court below acquitted the accused of offences under the SC and the ST Act and under Section 506 of the Indian Penal Code, convicted him for offences under .....6/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 6 Sections 376(1) and 341 of the Indian Penal Code.
Hence, this appeal.
8. Heard learned counsel Ms S.B.Khobragade for the appellant and learned Additional Public Prosecutor Shri M.K.Pathan for the respondent/State.
9. It is submission of learned counsel for the appellant that the appellant is falsely implicated in the crime because of enmity between him and the victim (PW1). It is also her submission that learned Judge of the Court below placed reliance on Chemical Analyzer's Report (Exhibit 49). However, the said was not put to him when the accused was examined under Section 313 of the Code of Criminal Procedure. In that behalf, she placed reliance on decision of the Honorable Apex Court in the case of Raj Kumar Singh alias Raju alias Batya vs. State Rajasthan, reported at 2013 CRI.L.J. 3276 and on an unreported decision of this Court decided on 11.2.2019 in the case of Sanket s/o Anil Sidam vs. The State .....7/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 7 of Maharashtra. It is also her submission that medical report (Exhibit 44) at the most shows that it was unsuccessful attempt on the part of the appellant to commit rape. She also submitted that evidence of the victim is not trustworthy and, therefore, in absence of any positive medical report showing injuries on the private part of the victim, it will be unsafe to uphold the conviction recorded against the appellant.
10. Per contra, learned Additional Public Prosecutor for the State submitted that the accused was examined under Section 313 of the Code of Criminal Procedure. Question No.78 was put to him which shows that Chemical Analyzer's Reports (Exhibits 49, 50 and 51) were obtained and for that answer given was evasive one. In that contest, he relies on an authoritative pronouncement of the Honourable Apex Court in the case of Alister Anthony Pareira vs. Stte of Maharashtra, reported at AIR 2012 (Vol.99) 3802. He submitted that medical certificate (Exhibit 43) is supportive to version of the .....8/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 8 victim (PW1) to show that force was applied upon the victim while committing sexual intercourse. He, therefore, prays for dismissal of the appeal.
11. The law on appreciation of evidence of victim in rape cases by now is well crystallized. Solitary version of victim is sufficient to record finding of guilt if the version inspires confidence. Status of victim in rape cases cannot be equated in injury case. Corroboration from supportive evidence in rape cases is not a rule but by way of caution.
12. Printed First Information Report is at Exhibit 14. The said shows that information about occurrence of the incident was reported on 19.8.2013 at 00:10 hours. Exhibit 14 further shows that village Butai No.2, where the victim (PW1) resides, is 15 kilometers away from the police station.
Further, evidence of the victim (PW1) shows that after returning home, she narrated the incident to her husband Kewalram (PW3). Thereafter, that couple went to .....9/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 9 house of one Bhendarkar, however after narration of the incident, he shown his helplessness. Thereafter, as per version of Kewalram, the couple went to house of Yerpude, who is not examined, and narrated the incident to him and said Yerpude asked Kewalram to go to police patil and, thereafter, they went to Police Patil Hemlata Deshmukh who advised them to lodge a report in the police station. Thereafter, they proceeded and lodged the report at wee hours.
Thus, in my opinion, there is no delay in lodging the First Information Report.
13. Prompt lodgment of the First Information Report always rules out false implication since possibility of deliberation is not there.
14. In the present case, as seen above, the couple whose sons and daughter are residing away from their village and the victim (PW1), being illiterate, tried to obtain help from respectable persons of the village and upon their advice, .....10/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 10 after the incident was narrated to them, the report is lodged.
15. Witnesses, on spot panchnama (Exhibit 55), Sau. Nirmala w/o Jairam Yerpude (PW4) and Sunil s/o Pandhari Bhendarkar (PW9) have turned hostile. However, the said spot panchnama is duly proved by Investigating Officer Sandip Bhagwat (PW13) whose evidence is sufficient.
16. Police Patil Madhukar s/o Pandhari Parvate (PW6) is panch witness for seizure of clothes of the accused and the victim (PW1) and also blood sample of the accused.
17. Gopal s/o Pandurang Dongarwar (PW5) though turned hostile, his evidence is supportive to the prosecution case that the victim (PW1) narrated him that when she was returning from dispensary, the accused took her to below hill in bushes.
Thus, the said particular portion of the evidence .....11/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 11 can very well and safely be accepted and merely because the said witnesses turned hostile, their evidence is not erased. The law on the said aspect is also settled by the Honourable Apex Court, as to what extent evidence of hostile witnesses could be relied upon, in the case of Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, reported at (1991)3 SCC 627 and in one of recent decision in the case of Devraj vs. State of Chattisgarh reported at AIR (2016) SC 3498.
18. Evidence of Sheshrao s/o Pandhari Lonare (PW2) is of no use to the prosecution since his evidence is of hearsay evidence.
19. Dr.Amit s/o Gulabrao Chede (PW7) who examined the accused on 21.8.2013 found no injury on the person of the accused. He proved examination report (Exhibit 31).
20. Police Head Constable Ramesh s/o Ramkrushna Khandate (PW8) carried muddemal to chemical analyzer.
.....12/-
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21. Assistant Police Inspector Vaishnavi Udaysingh Patil (PW11) recorded statement of the victim (PW1).
22. In view of the settled law that conviction can be recorded on solitary evidence of victim, the Court needs to examine evidence of the victim (PW1) as to whether her evidence is having that of quality which inspires confidence in judicial mind and is safe for recording conviction.
23. Evidence of the victim (PW1) shows that on 18.8.2013 she was not feeling well and, therefore, she had gone to Dr.Baghele at village Mahagaon. At 2:00 p.m., she went there on foot. After taking treatment, when she was returning from Mahalgaon and when she reached upto Dongri, suddenly the accused came, pressed her mouth, and took her to behind bushes. He removed her saree from her person and committed sexual intercourse and also extended threats to her. Her evidence shows that after getting released from the accused, she went to her house and narrated the incident to .....13/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 13 her husband.
24. Kewalram (PW3) is husband of the victim (PW1). His evidence shows that the victim narrated the incident to him after coming to the house.
Thus, there is immediate disclosure of the happening to her husband Kewalram (PW3) which, in my view, is relevant factor.
25. In preceding paragraph of this judgment, it is observed that the couple took steps for lodging report by narrating the incident to respectable persons in the village. Defence of the accused is of false implication.
26. During course of cross-examination of the victim (PW1), it was suggested to her that since there was enmity between her and the accused prior to the incident, false report is lodged. Needless to mention that the said suggestion was stoutly denied by the victim.
.....14/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 14 In cross-examination of Kewalram (PW3), the accused took a defence that there was quarrel between Sampat, the father of the accused, and in that quarrel he sustained injury and lodged report against Kewalram.
Had really there was quarrel between Sampat, the father of the accused, and Kewalram (PW3), in which Sampat sustained injures and he would lodge report against Kewalram, in my view, the said ought to have been attempted to be brought on record. In absence of that, in my view, much importance cannot be given to such half-hearted cross-examination.
27. Exhibit 42 is requisition letter to Medical Officer, Rural Hospital, Arjuni/Morgaon by Investigating Officer Sandip Bhagwat (PW13) for examination of the victim (PW1).
Perusal of Exhibit 42 shows that the victim (PW1) was referred to KTS/BGW Hospital at Gondia for examination from lady doctor. Accordingly, the victim was brought at KTS/BGW Hospital, Gondia where Dr.Bhavna Pandurangji .....15/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 15 Bajare (PW10) was Medical Officer. On 19.8.2013, she examined the victim and found following injuries on her person:
"there were multiple abrasion on her chest. Approximately 12 to 15 in numbers, irregular in shape, approximately in size from 1 cm to 3- 4 cm long and 0.2 to 0.5 in broad."
According to evidence of Dr.Bhavna Bajare, no injury was found on the private part of the victim. According to her opinion, sexual intercourse might have occurred but expert opinion should be taken for this answer. Evidence of the doctor shows that to obtain expert opinion, she called Gynaecologist Dr.Dipti Agrawal who was on duty to examine the victim and as per the examination done by Dr.Dipti Agrawal, she gave certificate (Exhibit 44) which shows that, "as per gynaecological opinion, sexual attempt/intercourse might have occurred but unsuccessfully." Evidence of Dr.Bhavna Bajare is very clear to show that she noticed multiple abrasions on the chest of the victim approximately .....16/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 16 12-15 in numbers irregular in shape.
What is important to note is that Dr.Bhavna Bajare (PW10) strongly refuted suggestion given to her that these injuries can be self inflicted one.
28. Here, it is to be noted that while drawing samples of the victim (PW1), her nail clippings were also taken by the Medical officer which could be seen from seizure memo (Exhibit 25). The nail clippings of the victim were sent to Chemical Analyzer. In that behalf, Chemical Analyzer's Report is at Exhibit 50. The said Chemical Analyzer's Report (Exhibit
50) shows that neither blood nor tissue matter is detected on the nail clippings, which firmly shows that injuries found on the chest of the victim were not self inflicted.
29. Learned counsel for the appellant submitted that no injury was found on labia minora and labia majora of the victim (PW1) and, therefore, she submitted that the medical evidence in the nature of medical certificate (Exhibit 44) given .....17/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 17 by Dr.Dipti Agrawal will have to be accepted by holding at the most there was an attempt of commission of rape.
Though at the first blush, the said submission appears to be attractive, in my view, it will have to be rejected since the victim is not a girl or a woman but she is a married woman. Her one daughter and one son have already married and her another son though unmarried, is major one. At the time of the incident, her age was 53 years. In that view of the matter, tissues of the private part always get relaxed and there is absolutely no possibility of injuries to the private part.
30. During the course of the investigation, clothes of the victim (PW1) were seized under seizure memo (Exhibit
27). Whereas, clothes of the accused were seized under seizure memo (Exhibit 26).
Perusal of these documents shows that those were sealed at the time of its seizure.
.....18/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 18 Evidence of Police Head Constable Ramesh Khandate (PW8) shows that he carried the muddemal to chemical analyzer and the Chemical Analyzer's Reports show that it was received in the office in a sealed condition.
The Chemical Analyzer's Report (Exhibit 51) shows Blood Group "A" of the accused. Whereas, the Chemical Analyzer's Report (Exhibit 50) shows Blood Group "O" of the victim. The Chemical Analyzer's Report (Exhibit 49) is relevant. The said Chemical Analyzer's Report shows that saree of the victim and undergarments of the accused were found to be stained with human blood. The saree of the victim was found to be stained with Blood Group "O."
The above said particular evidence in the nature of scientific evidence is corroborative piece of evidence to the version of the victim which is otherwise inspiring confidence and can safely be relied on.
31. At this stage, the Court would like to opine about .....19/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 19 submission of learned counsel for the appellant that these Chemical Analyzer's Reports were not put specifically to the appellant when he was examined by learned Judge of the Court below under Section 313 of the Code of Criminal Procedure. Insofar as reliance by learned counsel for the appellant, in the case of Sanket s/o Anil Sidam vs. The State of Maharashtra cited supra, is not useful at all since in the said case it was noticed by this Court that though Chemical Analyzer's Report was used as an incriminating evidence against the accused, the said was not put to him. However, in the present case, when the accused was examined, question No.78 put to him, is as under:
"It has further come in his evidence that he obtained C.A. reports vide Exh.49, 50 & 51. What you have to say about it?"
The accused gave evasive replies to the said question.
In the case of Raj Kumar Singh alias Raju alias .....20/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 20 Batya vs. State Rajasthan cited supra, the Honourable Apex Court ruled that, "in a criminal trial, the purpose of examining the accused person under Section 313 of the Code of Criminal Procedure, is to meet the requirement of the principles of natural justice and opportunity has to be given to the accused to offer explanation.
In the case of Alister Anthony Pareira vs. State of Maharashtra cited supra, the Honourable Apex Court has, while dealing the said aspect, elaborately discussed the position about the law in paragraph Nos.53 to 58. The said paragraphs are reproduced herein under:
"53. CA Report (Ex.49) too has not been specifically put to the appellant at the time of his examination under Section 313 of the Code but it is pertinent to notice that PW-18 (Investigating Officer) deposed that he had forwarded blood sample of the accused and the bottle found in the car to the chemical analyzer (CA) on 14.11.2006 and 15.11.2006 respectively. He further deposed that he collected the medical certificate from Bhabha Hospital and he had received the CA report (Ex. 49). PW-18 has also not been cross .....21/-::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 :::
Judgment apeal628.17 17 21 examined by the defence in respect of the above. In the examination under Section 313 of the Code the following questions were put to the appellant: Question 9: "What you want to say about the further evidence of above two witnesses that police while drawing spot panchanama seized one ladies chappal, remote, lighter, cigarette perfume and so called liquor bottle from the vehicle i.e. MH-01-R-580?" The appellant answered `I do not know' Question 16: "What you want to say about the evidence of Meenakashi Patil who has stated that initial investigation as carried out by her and further investigation was entrusted to PI Phulsunder from 13.11.2006 and on due investigation police concluded themselves that your rash and negligent driving caused the death of seven persons and injury to the eight persons by vehicle No.MH-01-R-580 by consuming alcohol so police have charge sheeted you?" He answered, `It is false'.
54. The above questions in his examination under Section 313 of the Code show that the appellant was fully aware of the prosecution evidence relating to his rash and negligent driving in the drunken condition. In the circumstances, by not putting to the appellant expressly the CA report (Ex.49) and the evidence of PW 1, no prejudice can be said to have been caused to the appellant. The words of P.B. Gajendragadkar, J. (as he then was) in Jai Dev Vs. State of Punjab speaking for three-Judge Bench with reference to Section 342 of the Code .....22/-::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 :::
Judgment apeal628.17 17 22 (corresponding to Section 313 of the 1973 Code) may be usefully quoted:
"21 . . .. . the ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. . . . . . . . ."
55. In Shivaji Sahabrao Bobade and Anr. Vs. State of Maharashtra (AIR 1973 SC 2622) a Judge Bench of this Court stated:
"16. ........It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an .....23/-::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 :::
Judgment apeal628.17 17 23 omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction".
56. The above decisions have been referred in Asraf Ali Vs. State of Assam. The Court stated:
"21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the .....24/-::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 :::
Judgment apeal628.17 17 24 accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice.
24. In certain cases when there is .....25/-::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 :::
Judgment apeal628.17 17 25 perfunctory examination under Section 313 of the Code, the matter is remanded to the trial court, with a direction to retry from the stage at which the prosecution was closed".
57. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.
58. Insofar as present case is concerned, in his statement under Section 313, the appellant was informed about the evidence relating to the incident that occurred in the early hours (between 3.45 a.m. to 4.00 a.m.) of November 12, 2006 .....26/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 26 and the fact that repairs were going on the road at that time. The appellant accepted this position. The appellant was also informed about the evidence of the prosecution that vehicle No. MH- 01-R-580 was involved in the said incident. This was also accepted by the appellant. His attention was brought to the evidence of the eye-witnesses and injured witnesses, namely, PW-2, PW-3, PW- 4, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10 that at the relevant time they were sleeping on the pavement of Carter Road, Bandra (West) outside the temporary huts and there was an accident in which seven persons died and eight persons got injured. The attention of the appellant was also drawn to the evidence of the spot panchas (PW-11 and PW-16) that they had noticed that the car no.MH-01-R-580 at the time of preparation of spot panchnama was in a heavily damaged condition with dislodged right side wheel and some blood was found on the earth and the huts were found damaged. The prosecution evidence that the appellant was seen driving car no.MH-01-R-580 at high speed from Khar Danda side and that rammed over the footpath and crushed the labourers sleeping there was also brought to his notice. The evidence of the mechanical expert (PW-15) that he checked the vehicle and found no mechanical defect in the car was also brought to his notice. During investigation, the police concluded that the rash and negligent driving of the appellant by consuming alcohol caused the death of seven persons and injury to the eight persons. The conclusion drawn on the completion of .....27/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 27 investigation was also put to him. The appellant's attention was also invited to the materials such as photographs, mechanical inspections of the car, seized articles, liquor bottle, etc.. Having regard to the above, it cannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence." From the law laid down by the Honourable Apex Court in the said case, it is clear that the accused was having full opportunity to say what he wants to say about the prosecution case vis-a-vis the Chemical Analyzer's Reports.
32. As observed above, it is clear that it was brought to the notice of the accused that there exists 3 Chemical Analyzer's Reports. However, the answer given to that question was evasive one.
33. In that view of the matter, I am of the opinion that the Chemical Analyzer's Reports which are otherwise in the nature of corroborative piece of evidence can be relied upon.
.....28/-
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34. In my view, the evidence of the victim (PW1) is of sterling quality and the said remained totally unshaken during cross-examination. Not only that, medical report (Exhibit 43) clearly shows that violence was practised on the victim since Dr.Bhavna Bajare (PW10) noticed multiple injuries on the breast of the victim which are not of self inflicted in nature. Once, evidence of the victim inspires confidence about the act committed on her by the accused and also the said is supportive of physical violence on her, in my view, much importance cannot be given to Exhibit 44, the opinion of Dr.Dipti Agrawal, in which also the doctor is not firmly opining that, "no sexual intercourse has occurred."
35. Conspectus of the aforesaid discussion permits me to record and confirm the findings of the guilt against the appellant. The appellant is sentenced to suffer rigorous imprisonment for 14 years. In my view, leniency can be shown in favour of the appellant. The record shows age of the .....29/-
::: Uploaded on - 07/03/2019 ::: Downloaded on - 22/03/2019 03:54:05 ::: Judgment apeal628.17 17 29 appellant as 40 years and he is not having any criminal record against him. In that view of the matter, it is my considered opinion that the punishment of 14 years is on excessive side. I, therefore, impose punishment which is required to be imposed for offence under Section 376 of the Indian Penal Code i.e. rigorous imprisonment for 7 years, which was the minimum punishment provided at the time of commission of the offence.
36. In view of the above, I pass following order:
ORDER
(i) The criminal appeal is partly allowed.
(ii) The judgment and order of conviction dated 20.3.2017 passed by learned Additional Sessions, Gondia in Spl.(Atro) Case No.25/2013 convicting the appellant for offences under Sections 376(1) and 341 of the Indian Penal Code stands confirmed.
.....30/-
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(iii) The appeal of the appellant challenging his conviction stands dismissed.
(iv) So far as the sentence imposed upon the appellant, by learned Judge of the Court below, of rigorous imprisonment for 14 years is concerned, the appellant shall suffer rigorous imprisonment for 7 years instead of 14 years rigorous imprisonment.
(v) The appellant who is in jail shall serve out remainder of the jail sentence.
(vi) The fine amount is maintained.
JUDGE !! BRW !! ...../-
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