SUNIL RAJYA KALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Appeal has been preferred by the appellants who had been convicted under section 302 r/w section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life. They have also been convicted under section 394 r/w 34 of the Indian Penal Code and sentenced to 7 years imprisonment. Appellant No.1 has been found guilty of the offence punishable under section 376 of the Indian Penal Code and has been convicted to suffer rigorous imprisonment for 7 years. Both the appellants have been acquitted of the offences punishable under sections 307 and 337 of the Indian Penal Code.

(2.) The case of the prosecution is that on 23.3.1998 between 1 and 1.30 at night, the appellants assaulted one Balu Kute, fatally. They also assaulted one Govind Maharaj, leading to a loss of his eye sight. After the assaults on these two persons who were sleeping in the courtyard outside the house, the appellants entered the house and robbed the wife of Balu Kute by snatching her Mangalsutra and then raped her. Thereafter he fled from the scene of offence and were found sleeping in a field on 24.3.1998. A gupti was seized from the appellants. This gupti had blood stains on it. The cloth pieces tied on the appellants' heads were stained with blood. A shawl which was found with them was also stained with blood. The appellants were arrested and were charged for having committed offences under section 302, 394, 376 r/w 34 as well as 307 and 337 of the Indian Penal Code.

(3.) PW1 Vandana is the wife of the victim Balu Kute and the complainant in this case. She has deposed that on the night of the incident religious discourses were being held in her house by Govind Maharaj, PW6. This discourse continued till 10 pm after which the other villagers returned to their respective homes. She and the deceased continued talking with PW6 till midnight. The deceased, his son Somnath and PW6 all slept in the courtyard. PW1 and her 2 younger sons slept in the house. She has further stated that she woke up when the empty pot which she had placed against the door fell. She saw the appellants entering the house. She has described the appearances of both the appellants and the clothes that they were wearing at that point of time. She has then stated that appellant No.1 snatched her Mangalsutra when she refused to hand it over to him. He asked for the cash box and when PW1 told him that there was none, appellant No.2 started searching the house, scattering all the articles. Appellant No.1 gave a blow to the left hand and left leg of PW1 with the wooden handle of the axe that he was carrying. He also gave a blow with the handle on the cheek of the elder of the two sons sleeping with this witness. When the witness cried out, appellant No.1 threatened to kill her. He then ravished her despite her resistance. There was a sound of some persons approaching the house, the appellants ran away. PW1 went out of the house and found PW6 injured. She did not find her husband in the courtyard but in the carrot field. The husband of PW1 was injured on his head, eye and other parts of his body. The brothers in law of PW1 rushed to the spot. Both the deceased and the injured PW6 were taken by these two persons to hospital on different motor cycles. The complainant has been examined medically. She has deposed that the police brought the appellants to the house when she identified them. Thereafter she also identified them at the test identification parade. This witness has withstood the cross examination and she has reiterated that appellant No.1 raped her. She has also disclosed that she was able to see both the appellants clearly because an electric bulb was lit, both inside the house as well as in the courtyard, when the appellants entered her house. This witness has not departed from the complaint lodged by her with the police. There are no material discrepancies or omissions in her testimony when juxtaposed with the complaint lodged by her. Therefore, it is evident from the deposition of this witness that she has not seen who assaulted her deceased husband and PW6. However, she has been able to identify Appellant No.1 as the person who snatched her Mangalsutra and raped her. She has also identified appellant No.2 as the person who was rummaging through the household articles for the cash box.