KHEMRAJ BHAYYALAL SHARNAGAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal preferred by Khemraj Bhaiyyalal Sharnagar, challenging the judgment and conviction passed by the ad hoc Assistant Sessions judge, Bhandara on 3rd August, 2001 convicting him for offence under section 376 (2) (g) of Indian Penal Code and sentencing him to R. I. for 10 years and to pay fine of Rs. 5,000/-, in default to under further R. I. for one year.

(2.) AS per the prosecution case the incident which gave rise to this prosecution against the appellant took place on 28th February, 1998 at the house of one Tirwantabai (P. W. 8) who happened to be the maternal aunt of prosecutrix Muktabai (P. W. 6 ). On the date of occurrence, the prosecutrix in the evening was in the house, when her maternal aunt-Tirwantabai had gone to the field and her husband had gone to Bazar. Bablu Sharnagat who was coaccused along with appellant was known to the prosecutrix in as much as he was maternal brother of her friend Usha Bopche. In the evening on that day around 5. 00 p. m. deceased-accused Bablu accompanied by the present appellant came to the house where the prosecutrix alone was doing the work and deceased Bablu asked for water while his companion i. e. present appellant asked the prosecutrix to give nut and tobacco. The prosecutrix refused to give them water, nut and tobacco The appellant and deceased-Bablu went near her and caught hold her and when she tried to run away due to fear, it was Bablu who pushed her and fell her down and then after holding her legs, the appellant having caught hold her hands, lifted her and brought her in the varanda of the house and then from there she was brought in the inner room of the house, where deceased-Bablu had sexual intercourse with the prosecutrix after removing her clothes and at that time the appellant is said to have facilitated the deceased-Bablu by holding both the hands of the prosecutrix. The appellant is said to have pressed the breasts of the prosecutrix. The prosecutrix was left in the house and both the accused persons went away. After some time one Dr. Titarmare, who was passing by the road saw the prosecutrix weeping and therefore, inquired with her, when she narrated to him the incident that has taken place. The maternal aunt-Tirwantabai, her husband Brijlal and mother of prosecutrix came from Chulhad and the prosecutrix then narrated the incident to them and lodged report in Police Station on the next day i. e. 1-3-1998 vide Exhibit 27. On the basis of that report first information report Exhibit 28 was drawn and offence was registered against deceased-accused Bablu and the appellant. The prosecutrix was sent for medical examination. Dr. Rekha Dhakate (P. W. 7) who was Medical Officer, Goveminent Hospital Tumsar examined the prosecutrix on 1-3-1998 around 2. 00 p. m. and found on P. V. Examination that her hymen was ruptured and menstruation bleeding was present. She also noticed one abrasion mark on the right thigh medically 3 c. m. x 1/10 c. m. , she opined that no opinion about intercourse could be given as she was under menstruation period. In respect of this findings the Doctor Rekha Dhakate issued certificate-Exhibit 30. Blood sample, semen, sample and pubic hair of the prosecutrix were taken and same were handed over to the Police Constable who brought the prosecutrix for medical examination. During the course of investigation the police came to know that accompanying person of the accused-Bablu was Khemraj i. e. the present appellant and therefore, the offence against him was registered. He was arrested and sent for medical examination. The clothes of the prosecutrix which she was wearing at the time of incident also were seized by the police in the presence of the panchas and the property seized was sent to Chemical Analyser for analysis. After completing the investigation, the charge-sheet was submitted against the accused in the Court of Judicial magistrate, First Class who in turn committed the case to the Court of Ad hoc Assistant Sessions Judge. The learned Sessions Court framed the charge against both the accused to which they pleaded not guilty and claimed to be tried. The accused-Bablu died during the pendency of the trial. The prosecution in support of its case examined in all 9 witnesses including urkuda Mirase (P. W. 3) who acted as panch, on identification panchnama exhibit 21, prosecutrix-Muktabai (P. W. 6) who admittedly gave oral report-Exhibit 27 at Police Station, Sihora on the basis of which first information report-Exhibit 28 was drawn, Dr. Rekha Dhakate (P. W. 7) Medical officer who examined the prosecutrix, Tirwantabai Thakare (P. W. 8), maternal aunt of the prosecutrix and Asaram Khobragade (P. W. 9) the Police Constable who conducted investigation in the crime. The appellant was examined by the trial Court under section 313 of Criminal Procedure Code. He denied the circumstances appearing against him, particularly the act committed by him to facilitate the accused-Bablu to commit sexual assault on the prosecutrix and his presence at the time of alleged occurrence. The trial Court accepting the evidence of the prosecutrix coupled with the medical evidence came to conclusion that deceased accused-Bablu committed sexual intercourse on prosecutrix and that the appellant also was present at that time and he assisted to accused -Bablu to commit sexual assault on the prosecutrix, she was brought in the house by lifting her and then the appellant by holding her hands and also pressing her breast when accused Bablu performed the act of sexual intercourse. Consequently, the appellant was found guilty for the offence under section 376 (2) (g) Indian Penal Code and accordingly he was sentenced as stated earlier. Hence this appeal.

(3.) I have heard learned Counsel for the appellant Mr. Paliwal and Mr. Lanjewar, learned A. P. P. for the State-respondent. With their assistance I have gone through the evidence on record so also the judgment of the trial court. Before coming to the submissions of the learned Counsel for the parties, let us examine the evidence on record to see whether the prosecution has proved the factum of commission of sexual intercourse by deceased - accused bablu. It is necessary to decide that issue as the involvement of the present appellant in commission of crime is much dependent on that. The prosecutrix in her evidence has clinchingly stated as to what happened at the time of occurrence when she was in the house. It has come in her evidence that the accused persons brought her in the house literally lifting her and then accused-Bablu committed sexual intercourse with her. It is pertinent to note that the evidence of prosecutrix on the point of sexual intercourse committed by the accused Bablu has not been controverted by the present appellant at the trial. There is no reason to discard her testimony. Nothing has been shown before the trial Court to discard the testimony of the prosecutrix. It is a matter of record that after the incident took place, the prosecutrix disclosed to maternal aunt and her mother and then on the next day she was brought to the police Station, where she lodged report Exhibit 27. In that report, which we read with the assistance of the learned Counsel for the appellant, she has categorically stated that accused- Bablu had sexual intercourse against her wish and despite of all possible resistance by her. She has stated about the injury she has sustained as a result of she having been thrown on the floor of the house after she was brought in the house by lifting her by deceased Bablu-accused and the appellant. It is pertinent to note that whatever the prosecutrix has stated in her evidence before the Court in all respects gains assurance by the report Exhibit 27. It is a matter of record that the prosecutrix was on the same day examined by Dr. Rekha Dhakate and in the certificate Exhibit 30 issued by her she has stated her categorical findings on examining the prosecutrix. The learned Counsel for the appellant tried to point out that there are interpolations in the certificate issued by the Doctor suggesting that deliberate attempt has been made to incorporate the finding without any opinion as to the sexual intercourse was given I do not think that inspite of the fact that there is interpolation and scoring in the certificate Exhibit 30, the evidence of the Doctor about his finding on examining the prosecutrix immediately on 1-3-1998 in the hospital is any way impaired. Apart from that for the Medical Officer, there was absolutely no reason to give false certificate. That apart the factum of commission of rape as has been deposed by the prosecutrix is further corroborated through evidence of Tirwantabai-mater-nal aunt of the prosecutrix. It is no doubt true that this witness-Tirwantabai has not supported the prosecution, and therefore, she was declared hostile. But then her evidence as to the fact of sexual intercourse committed by the deceased-accused-Bablu was as stated by her in her examination-in-chief remained undisturbed. That is not challenged by the present appellant though the appellant had opportunity to cross-examine the witnesses. It is true that witness-Tirwantabai was not an eye-witness to the incident of commission of offence, but what she stated in her evidence, about disclosure by the prosecutrix, that accused-Bablu outraged her modesty which she clarified further saying that outraging of modesty means of the sexual intercourse, lends assurance to the claim of the prosecutrix. There is no reason to discard this statement of the witness-Tirwantabai. Though she did not support the prosecution on other particulars. Regarding presence of the present appellant at the time of occurrence. In my opinion the present appellant having not controverted the claim of the prosecutrix as well as witnesses-Tirwantabai, about commission of rape by accused-Bablu, it is very difficult to accept the submissions as to learned Counsel for the appellant-Mr. Paliwal who tried to make out an infirmity in the evidence on the point of sexual intercourse /rape committed by the accused-Bablu. It is true that though the sample of blood, semen and vaginal swab was taken, the prosecution is deprived of the report of Chemical Analyser in that regard. That is so to say that evidence circumstantial as it could be, is lacking. But in my opinion that by itself does not bring out any infirmity in the prosecution case much less in the version of the prosecutrix about the commission of rape on her by accused-Bablu.