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2015 Supreme(Bom) 1813
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
V.M. DESHPANDE, J.
Ravi - Appellant
Versus
The State of Maharashtra, through P.S.O. Arvi, District Wardha - Respondent
Criminal Appeal No. 306 of 2013
Decided on : 12.10.2015
Advocate Appeared:
Mr. Mahesh Rai Advocate for the appellant.
Mr. A.K. Bangadkar, Addl. Public Prosecutor, for the Respondent.
Headnote:[INDIAN] PENAL CODE, 1860 - Sections 376(2)(f) and 511 Attempt to rape with minorConviction. Where from perusal of evidence on record it was clear that appellant had removed nicker of the girl up to her knees and he was lying on the body said minor girl as it was disclosed by evidence of PW 2 and it was intervention of PW 2. Which prevented the commission of rape; in such circumstances, conviction of accused appellant was upheld. The evidence of witness further reveals that while he was taking third round, he noticed in the source of light that once person was sleeping facing the ground. The said invited the attention of this witness and, therefore, he immediately reached there. On reaching there, this witness noticed that the said person, the appellant, was having his ant and nicker removed up to his knee. At the same time, (PW 2) also noticed one minor girl was lying on the floor beneath the appellant. This witness further noticed the private part of that man (appellant) in an erected position. By removing his ant and nicker up to knee, the appellant exposed his private part. (PW 2) also noticed that the nicker of the girl was also removed up to her knee. With erected position of private part when the appellant was on the body the minor girl, thus it is amply clear that the appellant has travelled beyond the point of preparation and has tried to commit rape on the girl. However, the said act was frustrated and could not be completed because of the intervention at the right point of time by PW 2. Had PW 2 been not there at that particular point of time, the act of commission of rape would have been completed.
The present appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Wardha, in Sessions Case No. 52 of 2012 on 09.4.2013, thereby convicting the present appellant for the offence punishable under Section 376 (2)(f) read with Section 511 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for three months. The trial Court also directed that on payment of fine, Rs.4,500/- be paid to the prosecutrix by way of compensation.
2. The prosecution case, as it was unfolded during the course of trial, is narrated as under :
(a) Kailash Kurhade (P.W.2) is the first informant. He has lodged oral report with police station Arvi on 10.2.2012. The report is at Ex.26 whereas printed F.I.R. is at Ex.27.
(b) The first informant was discharging his duties as Chowkidar in a school at Arvi known as Gandhi Vidyalaya. His duty hours used to be from 6 p.m. to 8 O' clock of next day morning. He used to take round of the school premises while on duty. There is no compound wall to the school.
(c) On 10.2.2012 the first informant joined his duties at 6 O' clock in the evening. He started taking round of the school. At about 7-30 p.m. in front of Chemistry Laboratory of the school he noticed one person lying on the ground. His face was towards the floor. He was having shirt on his person. However, his pant and under garment, i.e. nicker, were removed up to his knees. Therefore, the first informant went there and found that the said man was sleeping on a minor girl. Nicker of the minor girl was also removed up to her knees and he was trying to insert his private part into the private part of minor girl. Therefore, the first informant caught hold the collar and lifted the said person from the body of the minor girl. The minor girl was the daughter of the peon working in Anna Bhau Sathe Prathmik Shala. The age of the girl was five years. The said person tried to give some jerks to the first informant. Therefore, he called for help. One person by name Sudhakar Kangali came there and with his help apprehended the said person, who is appellant before this Court. Then both of them took the appellant and the minor girl to the police station where Kailash narrated the entire incident to police.
(d) P.W.3 Dashrath Dhurve, who on the relevant day was on duty at police station Arvi, registered the oral report of the first informant and registered the offence vide Crime No. 32/12. He visited the spot of incident along with the first informant. The spot was shown by the first informant. In presence of panch witnesses, panchanama was drawn which is at Ex.20. He arrested the accused under arrest panchanama (Ex.30);. He seized the clothes of the prosecutrix under seizure panchanama (Ex.21). Clothes of the accused were also seized under seizure panchanama (Ex.22).
(e) The investigation was then handed over to P.W.8 Yunis Lakade. He recorded statements of witnesses. He collected medical papers of the prosecutrix and also sent Muddemal to chemical analyser along with forwarding letter Ex.46. Reports of chemical analyser were received which are at Exs.48 and 49. After completion of usual investigation, the Investigating Officer presented charge-sheet in the Court of law.
3. After committal of the case to the Court of Sessions, it was registered as Sessions Case No. 52/12. The learned Additional Sessions Judge framed a charge against the appellant under Ex.5 for the offence punishable under Section 376(2)(f) of Indian Penal Code and also under Section 376 read with Section 511 of Indian Penal Code. The appellant abjured his guilt and claimed for his trial.
4. In order to bring home guilt of the appellant, prosecution has examined following witnesses. They are –
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