Bombay High Court
Abdul Salim @ Sallu S/O. Abdul Rashid vs The State Of Maharashtra on 30 July, 2020
Equivalent citations: AIRONLINE 2020 BOM 1073
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
913 CRIMINAL APPLICATION NO.3892 OF 2019
IN
CRIMINAL APPEAL NO. 1179 OF 2019
ABDUL SALIM @ SALLU S/O. ABDUL RASHID
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. S.S. Gangakhedkar
APP for Respondents: Mrs. Vaishali P. Patil-Jadhav
Advocate for Respondent No.2 : Mr. A.S. Savale
.....
CORAM : V. K. JADHAV, J.
DATED : 30 th JULY, 2020
PER COURT:-
1. Heard.
2. Pending the criminal appeal No. 1179 of 2019 preferred
against the judgment and order of conviction passed by the Sessions
Judge, Nanded dated 03.10.2019 in Sessions Case No. 24 of 2012,
convicting thereby the applicant-accused for the offence punishable
under Section 376(2)(g) of I.P.C. and sentencing him to suffer R.I. for
10 years and imposing fine of Rs.5000/-, the applicant has preferred
this application for suspension of substantive part of sentence and
getting released on bail.
3. Learned counsel for the applicant submits that the victim is
deaf and dumb girl and she is allegedly gang-raped by the present
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applicant and other juvenile accused in conflict with law. Learned
counsel submits that since P.W.1 Sheela Waghmare was unable to
communicate verbally, the court has recorded the evidence of victim
with the assistance of P.W. 2 Rajesh Sonale (special teacher) from
deaf and dumb school. Learned counsel submits that however, while
recording the statement of victim, the learned Judge of the trial court
has not recorded the gestures of the victim and also the
interpretation made by the teacher of the said gestures. Learned
counsel submits that P.W.1 the complainant Sheela Waghmare, who
accompanied the victim in the police station, had admitted in her
cross examination that from the gestures of the victim, she could not
understand the names stated by the victim, and therefore, the police
called P.W.2 Rajesh Sonale (special teacher).
4. Learned counsel for the applicant submits that even the
evidence of Medical Officer P.W.11 Dr. Somani is also confusing.
She has also not noticed any scar or injury mark on the private part
of the victim and even hymen of the victim was found intact. P.W.11
Dr. Somani has given provisional certificate of the victim girl on
27.8.2012, though examined her on 5.9.2011. It is further mentioned
that at the time of issuing final report on 31.10.2012, Dr. Somani has
cancelled the provisional certificate dated 27.8.2012. Learned
counsel submits that the P.W. 11 Dr. Somani has observed that there
may be possibility of premature ejaculation, however, in that case
there should have been a case of outraging the modesty and not for
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commission of rape. Learned counsel for the applicant submits that
there is no identification parade and only on the basis of the
identification before the court, the applicant accused was convicted.
5. Learned A.P.P. assisted by advocate Mr. Savale, has strongly
resisted the application on the ground that prima facie there is
evidence against the applicant. The victim is deaf and dumb girl and
she has deposed before the court through gestures, which are
explained by P.W.2 Rajesh Sonale (special teacher). The victim had
also identified the accused-applicant present before the court. The
Medical Officer has considered the case from all angles and as such,
given final opinion which supports the prosecution case. Learned
A.P.P. submits that the C.A. report Exh.81 indicates that on the
seized clothes of the victim, human blood stains of 'O' group and the
semen detected. Learned A.P.P. submits that the accused has come
forward with the defence of impotency, however, P.W.9 Dr. Chavan
has ruled out the said defence. Learned A.P.P. submits that the
application is thus liable to be rejected.
6. On careful perusal of prosecution evidence, particularly the
evidence of victim P.W.8 and evidence of P.W.2 Rajesh Sonale
(special teacher), it appears that the learned Judge of the trial court
has not taken any pains to record the gestures made by the victim
during the course of recording her evidence nor there is any
reference as to how those gestures came to be interpreted by P.W.2
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Rajesh Sonale (special teacher). In fact, while recording the
evidence of deaf and dumb girl, the above compliance is mandatory
in terms of the provisions of Section 119 of the Evidence Act. Apart
from this, the evidence of P.W.11 Dr. Somani is also confusing. She
has specifically deposed that no evidence of any scar or injury mark
on the private part of the victim was noticed and on gentle P.V.
examination of the victim, her hymen was found intact. As per the
prosecution case, the victim was subjected to gang-rape by three
accused persons and still then P.W.11 Dr. Somani had not found any
semen on pubic hair and also found hymen intact. Even after receipt
of C.A. report, P.W. 11 Dr. Somani observed that there is no semen
on pubic hair and vaginal swab of the victim girl. Though it is
nobody's case, P.W. 11 Dr. Somani has considered the possibility of
premature ejaculation. The incident had taken place in the year
2011. The amendment to Sections 375 and 376 of I.P.C. came into
force w.e.f. 3.2.2013. Prior to the year 2013, in terms of the
provisions of Section 375 of I.P.C. a man is said to commit rape who,
except in the case hereinafter excepted, has sexual intercourse with
a woman under the circumstances falling under six descriptions and
in terms of the explanation, the penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape.
7. In the instant case, the Medical Officer P.W. 11 Dr. Somani
has failed to give any opinion as to penetration to constitute the
sexual intercourse necessary for the offence of rape and on the other
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hand, considered the possibility of premature ejaculation. Apart from
this, there is no identification parade conducted during the course of
investigation. P.W.1 complainant, when took the victim to the
concerned police station, admitted in her cross examination that she
could not understand the names stated by Priti from her gestures and
therefore, the police called P.W.2 Rajesh Sonale (special teacher). It
is pertinent to note that on 10.9.2011 when the police recorded the
supplementary statement of P.W.2 Rajesh Sonale (special teacher),
identification parade was arranged by the investigating officer in the
police station calling 5/6 boys of 18/20 years of age and then the
victim was asked to identify 3 boys out of them. This particular
procedure is unknown to the criminal law violating all norms and
guidelines as framed by the High Court which is part of criminal
manual for conducting the identification parade. So far as the C.A.
report is concerned, it is not clear from the observations made by the
learned Judge of the trial court about the blood group of the present
applicant so also the victim. Thus, considering entire aspects of the
case, I proceed to pass the following order:-
ORDER
I. Criminal application is allowed. II. Pending criminal appeal No. 1179 of 2019, the substantive part of the sentence passed by the Sessions Judge, Nanded dated ::: Uploaded on - 31/07/2020 ::: Downloaded on - 01/08/2020 03:11:51 ::: cran3892.19 -6- 03.10.2019 in Sessions Case No. 24 of 2012 stands suspended and till then, the applicant Abdul Salim @ Sallu s/o Abdul Rashid be released on bail on furnishing P.B. of Rs.20,000/- (Rupees Twenty thousand) with one solvent surety of the like amount.
III. Bail before the lower court. IV. Criminal application is accordingly disposed of.
( V. K. JADHAV, J.) rlj/ ::: Uploaded on - 31/07/2020 ::: Downloaded on - 01/08/2020 03:11:51 :::