ANIL MOTIBABA BAROKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ON 3-3-1993, the Additional Sessions Judge, Nagpur, on conclusion of Sessions Trial No. 198/92, convicted the accused/appellant for the offence punishable under Section 376 (g) I. P. C. and sentenced him to suffer rigorous imprisonment for 5 years and by this criminal appeal, the accused/appellant is challenging his conviction and sentence passed by the Additional Sessions Judge, Nagpur.

(2.) THE incident is indeed tragic in which an insane woman aged about 25 to 27 years was gang raped and done to death. According to the prosecution case in between 21-11-1991 at 6. p. m. to 22-11-1991 at 9 a. m. , the accused/appellant Anil Motibaba Barokar and three other accused persons namely Yogesh Laxman Gakhare, Hemraj Narayan Hingve and Arun Yadaorao Hingve gang rapud one insane lady (name not known) at Khapri Barokar in the field of one Abdul Haaz and in furtherance of their common intention committed her murder. The oral report was lodged by P. W. l Ajabrao on 22-11-1991 at Police Station Kondhali at about 1 p. m. and on the basis of the said report, Crime No. 220/91 was registered. Investigation commenced in the said crime and the Investigating Officer prepared inquest panchanama (Exh. 16), spot panchanama (Exh. 18), seized mud and other articles from the spot (Exh. 23), photograph of deceased lady (Exh. 45), drew sketch map (Exh. 44), sent the dead body of the lady for autopsy and post-mortem report (Exh. 62) was obtained. The accused/appellant and two other accused persons namely Yogesh and Hemraj were arrested on 23-11-1991 and the fourth accused Arun was arrested on 24-11-1991. At the instance of the accused/appellant, a stone was seized on 23-11-1991 vide seizure memo (Exh. 57) and seizure panchanama, (Exh. 58 ). The accused/appellant and three other accused persons were sent for medical examination on 26-11-1991 and injury report of accused/appellant in Exh. 65 and the injury reports of other three accused persons are Exhs. 67, 69 and 71. The seized articles were sent for chemical analysis and the C. A. report regarding blood group of accused/appellant and other accused persons were obtained and the said C. A. reports are Exhs. 78, 79, 80 and 81 on record. As regards other articles, C. A. report is Exh. 76. On conclusion of investigation, the investigating officer submitted charge sheet against the accused/appellant and three other accused persons and since the case was exclusively triable by the Sessions Judge, the appellant/accused and three other accused persons were committed to the Court of 5th Additional Sessions Judge, Nagpur, on 19-9-1992. Charge was framed against the accused/appellant and three other accused persons to the effect that all four accused persons in between 21-11-91 at 6 p. m. to 22-11-91 at 9 a. m. at Khapri Barokar in the field of one Abdul Hafiz committed gang rape on the lady (name not known) aged about 25 to 27 years and thereby committed an offence punishable under Section 376 (2) (g) I. P. C. and that all the accused persons in furtherance of their common intention on the same date, time and place committed murder by intentionally or knowingly causing the death of unknown female aged about 25 to 27 years and there by committed an offence punishable under Section 302 read with Section 34 I. P. C. The accused/appellant as well as the other accused persons pleaded not guilty. Prosecution produced 7 witnesses in all and also exhibited number of documents. P. W. 1 Ajabrao is the person who lodged the oral report on 22-11-91 at 1 p. m. at police Station Kondhali. He is the labour working in the field of Abdul Hafiz where the dead body of that lady was found. P. W. 2 Ramdas Hingwe and P. W. 3 Madhukar Kinkar, who according to the prosecution, were the persons who heard the accused/appellant and three other accused persons/deliberating and conspiring to commit rape on that insane lady. P. W. 4 Nandkishore Sharma is the panch witness of the seizure memo (Exh. 58) P. W. 5 Dr. Haribhau Katade, Professor and Head Forensic Medicine and Toxicology Department, Medical College, Nagpur, is the witness who conducted the autopsy of the dead body of that lady and gave post mortem report (Exh. 62 ). P. W. 6 Dr. Suni1 Sanghai, - Assistant Lecturer, Government Medical College, Nagpur, examined the accused/appellant as well as the other accused persons on 26-11-91 and gave injury reports Exh. 65, 67, 69 and 71 and P. W. 7 Ramnath Awasthi, is the Police Sub Inspector, who conducted the investigation. The prosecution also exhibited and proved inquest panchanama (Exh. 16), spot panchanama (Exh. 18), seizure of mud and other articles (Exh. 23) post mortem report (Exh. 62), photograhps of the deceased (Exh. 46), seizure memo and seizure panchanama (Exhs. 57 and S8), injury reports of the accused persons (Exhs. 65, 67, 69 and 71), C. A. reports (Exhs. 78, 79, 80, 81 and Exh. 36), the oral report (Exh. 48) and the printed first information report (Exh. 74 ). Statements of the accused/appellant and three other accused persons were recorded and the accused/appellant as well as the other accused persons denied their involvement in the said crime. In answer to question No. 43, the accused/appellant Anil stated that after his arrest by the police, he was made naked and asked to crawl in the premises of police station and he was beaten and also scratched by nails. According to him he has been falsely implicated because he is having enmity with P. W. 7 P. S. I. Awasthi. He further stated that the reason of the enmity was that he was working as Manager at Bombay-Pune Dhaba and the owner of the said Dhaba had one air gun. According to him, P. W. 7 P. S. I. Awasthi wanted that air gun but he refused to oblige. He also stated that P. W. 7 P. S. I. Awasthi also wanted his help to nab one Amrutsingh Sardar, who was also running a Dhaba nearby, on the charge of selling opium but he did not help P. W. 7 P. S. I. Awasthi and for these reasons he has been falsely implicated.

(3.) THE Additional Sessions Judge Nagpur, acquitted all the four accused persons for the offence punishable under Section 302 read with Section 34 of I. P. C. and also acquitted other three accused persons for the offence punishable under Section 376 (g) I. P. C. but as regards the accused/appellant" the trial Court found that prosecution has been able to prove the involvement of the accused/appellant that he committed offence of rape on that lady and consequently convicted him for the offence punishable under Section 376 (g) I. P. C. and sentenced him to suffer rigorous imprisonment for five years.