HARIBHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by the accused against the order of conviction and sentence passed against him by the learned Additional Sessions Judge, Parbhani in Sessions case No. 5 of 1980 on his file and it arises out of the following facts : -

(2.) The date of offence is 1st July 1979 i. e. throughout the whole night. The place of offence is the shop of accused at village Matkarla in Parbhani district. Nearest police station is Parbhani, rural police station and the F. I. R. in this case is at Ex. 6. PW 1 Kesarbai, prosecutrix is a married woman and she was residing with her husband Pralhad in her house in the same village. Laxman is her husband's brother and this Laxman has 2 wives and they are also staying with him. Laxman is PW 2. Prayag, PW 4 is the sister of Pralhad and Laxman and on that day she had come there from her husband's house to parental house. That night all these persons had their dinner and thereafter Kesarbai went for easing herself as she had stomach pain. It was about 8 p.m. or so. The easing ground was in the bed of a nalha just adjacent to river Dudhna. The accused had an evil eye on her and was waiting for an opportunity. He has a grocery shop about 150 paces from this easing ground and there are some houses beyond the shop of the accused. The accused alone runs the shop and his residential house is away from the shop. The accused saw that Kesarbai alone had gone to the easing ground and immediately after she stood up after easing herself, the accused came to her all of a sudden and caught hold of her. He put his hand on her mouth so that she should not shout and he lifted her, and embraced her and brought to his shop. Kesarbai is about 17-18 years of age. He took her inside the shop and closed its door. He gagged her mouth and committed rape upon her, under the threat of dagger. Accused wanted to repeat the performance but Kesarbai told him that she should better kill her instead of committing rape upon her. Thereafter he did not repeat the performance but detained her in his shop till about 5 a.m.

(3.) Here in the house of Kesarbai, the male members had gone to the terrace for sleeping and the female members were in the house. They saw that Kesarbai did not return although she had left for easing herself. They awoke Laxman, PW 2 and Pralhad. They then went in search of Kesarbai. They searched her for about 2-3 hours but they did not trace her and so they came back to the house. Then again at about 4 or 5 a.m. they started in search of her. One plank of the door of the shop of the accused was opened and they saw that Kesarbai was coming out of the shop. Accused also was following her. Laxman questioned her about her coming out of the shop and Kesarbai narrated to him the whole story of rape. One Saheb was there and he caught hold of the accused but the accused escaped. Laxman then called the police patil there and she narrated the whole story to the police patii when they decided to go to parbhani rural police station to lodge a complaint. When they were on the way they came to know that P. S. I. Parbhani Rural Police station Sk. Chand, PW 7 was at Samsapur village. So they approached the P. S. I. and Kesarbai gave her oral complaint, Ex. 6 which was recorded by him. Then P. S. 1. sent the complaint and the complainant the to police station. These were received by police station officer Ahmed Shahkhan, PW 5. He seized the Saree of Kesarbai after drawing the panehanama in the presence of the panchas. There were stains of blood as well as of semen on the Saree. She was later sent to the Civil Hospital at Parbhani and Dr. Mrs. Suman, PW 6 examined her.