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2018 Supreme(Bom) 1826
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.L. WADANE, J.
RAMDAS ALIAS RAMKISAN - Appellant
Vs.
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No. 494 of 2016
Decided On : 23-10-2018
Rajandre S. Deshmukh, Adv., K.D. Munde, Adv., A.L. Kanade, Adv.
Headnote:
Charges of rape - Sexual molestations - Sexual assaults - Evidence of prosecutrix -Indian Penal Code 1860 - SC and ST [Prevention of Atrocities] Act 1989 - Section 376 , 452 , 323 , 506 , 3 [2] [V] - Criminal appeal is being directed against impugned judgment and by which appellant is convicted for offence punishable under S 376 of IPC and sentenced to suffer rigorous imprisonment for ten years and to pay fine -He is further convicted for offence punishable under S 452 of IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine - Accused is convicted under S323 of IPC and sentenced to suffer rigorous imprisonment for six months and to pay a fine - Accused is further convicted under S 506 of IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine - Appellant is also found guilty for offence punishable under S 3 [2] [V] of Act, 1989 and sentenced to suffer rigorous imprisonment for 10 years and to pay - PW1 Victim lodged a complaint to Police Station Ambajogai alleging that her husband Manoj went to Barshi and sent a message through brother-in-law Ashok that he is coming late to house, therefore, prosecutrix slept in her house without latching door from inside Accused entered into house and latched door from inside - At that time prosecutrix awakened and inquired with accused as to why he entered into house - At that time prosecutrix tried to make hue and cry, however,accused pressed her mouth and also threatened to kill - Accused committed sexual intercourse - At that time, husband returned to her home and knocked door - Prosecutrix pushed accused, she received injuries on her neck - Prosecutrix removed latch of door then her husband tried to caught hold but accused ran away by giving jerk to PW3 Manoj - In order to establish offence leveled against appellant prosecution has examined in all 9 witnesses –Held, Court are conscious that courts shoulder a great responsibility while trying an accused on charges of rape - They must deal with such cases with utmost sensitivity -Courts should examine broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in statement of prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case - it may look for evidence which may lend assurance to her testimony, short of corroboration required in case of an accomplice - Testimony of prosecutrix must be appreciated in background of entire case and court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults - Court have carefully gone through above observation - In present case evidence of prosecutrix inspires confidence - In addition other evidence is available in form of corroboration - Thus in totality of circumstances, Court inclined to take a view that prosecution has succeeded in proving that act committed by accused was a forcible act and not consensual - Appeal, therefore, has to fail - It is, accordingly, dismissed - Conviction and sentence of accused appellant is upheld – Appeal dismissed
K.L. Wadane, J.
This criminal appeal is being directed against the impugned judgment and order dated 25.07.2016 by which the appellant is convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 2,000/-. He is further convicted for the offence punishable under Section 452 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000/-. The accused is convicted under Section 323 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-. The accused is further convicted under Section 506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/-. The appellant is also found guilty for the offence punishable under Section 3 [2] [V] of SC and ST [Prevention of Atrocities] Act, 1989 and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2,000/-.
2. PW1 Victim lodged a complaint to the Police Station Ambajogai on 22.05.2015 alleging that on 21.05.2015 her husband Manoj went to Barshi and sent a message through brother-in-law Ashok that he is coming late to house, therefore, the prosecutrix slept in her house without latching the door from inside.
3. On 22.05.2015 at about 2:30 am, suddenly the accused entered into the house and latched the door from inside. At that time the prosecutrix awakened and inquired with the accused as to why he entered into the house. At that time prosecutrix tried to make hue and cry, however, the accused pressed her mouth and also threatened to kill.
Thereafter, the accused committed sexual intercourse. At that time, the husband returned to her home and knocked the door. The prosecutrix pushed the accused, she received injuries on her neck. The prosecutrix removed the latch of the door then her husband tried to caught hold but the accused ran away by giving jerk to PW3 Manoj. In order to establish the offence leveled against the appellant the prosecution has examined in all 9 witnesses :
PW1 - prosecutrix,
PW2 - Dinesh s/o Bhima Shinde Panch Spot,
PW3 - Manoj s/o Laximan Waghmare, the husband of PW1,
PW4 - Ravindra Vishwanath Shinde Police Personnel who carried the Muddemal Article to CA.
PW5 - Dr. Samata Onkardas Agrwal and
PW6 - Dr. Khan Shahin Banu Iliyas both examined the prosecutrix.
PW7 - Yashwant Kondiram Waghmare Panch Spot.
PW8 - Dr. Tushar Vasant Deshmukh who examined the accused.
PW9 - Maheboob Ismail Shaikh Retd. Dy. S.P. Majalgaon.
4. Beside the oral evidence of the aforesaid witnesses, prosecution has relied upon the contents of Spot Panchnama Exh. 20, CA report Exh. 28, 29 and 30. Injury Certificate Exh. 39, Report Exh. 40, Medical Certificate of the accused Exh. 55. After recording the evidence of the aforesaid witnesses, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure and after hearing both side accused/appellant is convicted as referred above.
5. Looking to the line of the cross-examination and the statement of accused under Section 313 of Cr.P.C., the defence of the accused appears to be the prosecutrix was the consenting party for the sexual intercourse, therefore, looking to the defence of the accused, it is not necessary to reexamine and reassess the evidence of the CA report and other formal evidence adduced on behalf of the prosecution. Since the sexual intercourse between the PW1 and the accused has been admitted, therefore, the very short question arose for consideration is that, whether the prosecutrix was consenting party to the sexual intercourse or not. To examine this limited issue it is necessary to look into the oral evidence as well as medical evidence adduced on behalf of the prosecution.
6. Mr. Deshmukh the learned counsel for the appellant submits that the accused-appellant is residing in the same lane where the house of the prosec
