GOVIND VITHOBA KENGAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) MISS Darshana Shah. Advocate appointed for defending the appellant and Shri K. V. Saste, A. P. P. appearing for the prosecution, have been heard in detail with reference to the evidence on record. The appellant Govind Vithoba Kengar is hereby assailing correctness, propriety and legality of the order of conviction and sentence passed against him by the Additional sessions Judge, Sangli in Sessions trial conducted against him for the offences punishable under Sections 395, 397, 376 read with section 114 of Indian Penal Code. The appellant was tried with other co-accused viz. Dinkar Kale, Anil Bhosale, Badamya Shinde, sarjerao Bhosale. The appellant was convicted and sentenced for the offences punishable under Sections 395, 397, 376 (g) of indian Penal Code. The appellant has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 2000/-, in default to undergo further rigorous imprisonment for six months for the offence under Section 395 of IPC. He has been sentenced to undergo rigorous imprisonment for 7 years and to pay fine of rs. 1000/-, in default to undergo further rigorous imprisonment for six months for the offence under Section 397 of IPC. He has been sentenced to undergo rigorous imprisonmei. . . for 10 years and to pay fine of rs. 2000/-, in default to undergo further rigorous imprisonment for six months for the offence under Section 376 of IPC. The substantive sentences have been directed to run concurrently. Out of the fine paid by the accused. Rs. 5000/- have been directed to be given to victim P. W. Shashikala Abaji mane.

(2.) PROSECUTION case in brief can be narrated as under : in the night intervening 25-5-1995 and 26-5-1995 between 12. 30 a. m. to 1 a. m. the appellant with other associates committed dacoity at the house of Bapusaheb Abaji mane and Kundlik Tukaram Jamadade at mauje Sawarde and Manerajuri. They assaulted Bapusaheb Abaji Mane. Shashikala abaji Mane, Subhash Mane, Rangarao Jyoti mane, Anjana Bapusaheb Mane with weapons and took away their ornaments worth rs. 5750/- or so. The prosecution alleged that in the course of said dacoity the present appellant and his associates viz. Dinkar kale, Anil Bhosale, Badamya Shinde committed rape on prosecution witnesses shashikala Mane and Anjana Mane by taking them outside. After the FIR was lodged by Bapusaheb Mane in the Police Station, investigation started. The appellant and his associates were arrested and they were put to identification parade. Prosecution witnesses Bapusaheb Mane, Subhash Mane. Shashikala Mane, Anjana Mane had identified the appellant and his associates. Shashikala Mane identified the present appellant as the person who had committed rape on her during the incident of said dacoity after assaulting her and taking her out side. It is the prosecution case that prosecution witnesses mentioned above, could identify the appellant and his associates in the light of lantern which was burning inside the house.

(3.) MISS Darshana Shah, Counsel appointed to defend the appellant, by making reference to the prosecution evidence, submitted that the learned trial Judge committed the error in accepting the evidence of the prosecution witnesses examined against the present appellant and committed error in holding that he was present when the dacoity took place, and that he assaulted the inmates and committed the rape on P. W. Shashikala Mane by assaulting her. She pointed out in support of her submission that identification parade was held late and necessary safeguards were not taken at the time of holding the said identification parade. She further submitted that the learned trial Court committed the error in believing the identification of concerned prosecution witnesses by ignoring that there was darkness and in the said darkness the prosecution witnesses could not have identified the appellant. She submitted that so far as allegation of rape on Shashikala Mane is concerned, the present appellant did nothing. She prayed that the present appellant be acquitted. Shri Saste, Additional Public Prosecutor appearing for prosecution, submitted that the light of lantern was sufficient for enabling the prosecution witnesses to identify the appellant correctly. He submitted that the appellant has been identified by the concerned prosecution witnesses in the identification parade as well as before the Qourt when the prosecution witnesses gave the evidence. He submitted that it is the practice prevalent in the villages that the villagers do sleep in their houses by keeping a burning lantern and therefore, there is nothing unnatural in the prosecution evidence that the prosecution witnesses identified the appellant and his associates in the light of said lantern. Shri Saste further submitted that the identification by Shashikala deserves to be believed and acted on because, she was raped by the appellant and some of his associates. He justified the order of conviction and judgment and prayed that the appeal be dismissed.