STATE OF MAHARASHTRA Vs. NATHU BURBURE

JUDGEMENT

(1.) The appellant State, is challenging the order of acquittal of the respondents, in Sessions Trial no. 81/1989, wherein they were prosecuted for the offences punishable under sections 376 and 109 of the Indian Penal Code.

(2.) Respondents were prosecuted for the aforesaid offences on the allegation that on 3. 5. 1988 at about at 1. 00 a. m. at village selu [murpad] respondent No. 1 Natthu committed rape on one lady by name Jijabai wife of Janardhan Bhagat and respondent no. 2 - had abeted the commission of the said offence. Prosecution case was that between the night of 2. 5. 1988 and 3. 5. 1988 the prosecutrix Jijabai wife of Janardhan bhagat resident of Selu [murpad] was present in her house along with her two sons namely Manoj @ 12 years and Vinod @ 10 years and a daughter Vidhya @ 5 years. Her husband had gone to village narayanpur. In the evening of 2. 5. 1988 one gautam s/o Urkuda Burbure resident of nandori who is the son of the sister of husband of prosecutrix Jijabai, respondent no. 1 Natthu s/o Soma Burbure resident of Sindi and respondent No. 2 Mahadeo s/o shankar resident of Hinganghat had came to her house as guests. They took dinner in the night and went to sleep. In the midnight, at about 1. 00 a. m. prosecutrix Jijabai went out of the house for making water. It is alleged that respondent No. 1 followed her and caught her and asked her to keep quiet and gagged her mouth with the help of one hand. He made her to fell down on the ground and pressed her breasts. He tried to have sexual intercourse by loosening her saree. By that time respondent No. 2 mahadeo also came there, he caught hold the hands of the prosecutrix. Respondent no. 1 had sexual intercourse with the prosecutrix forcibly. The prosecutrix raised hue and cry, however, no one came to rescue her. It is alleged that after this incident respondent No. 1 ran away. As her husband was out of station, so also because she did not have enough money to go to police Station, she did not go any where. When her husband returned on next day, at the noon time, she narrated the incident to him. He then went to Police Station hinganghat to lodge the complaint. Her husband Janardhan at about 9. 45 p. m. went to the Police Station and gave information about the incident. It was alleged by him that the prosecutrix had told him that the respondents and one Gautam burbure had committed the offence of rape against the prosecutrix. The said complaint was reduced into writing by P. S. I. Thuse. Thereafter, P. S. I. Thuse came to village Selu (Murpad) , he recorded statements of some witnesses. He prepared spot Panchnama etc. He brought the prosecutrix to Police Station, hinganghat and recorded her statement. On recording statement of Jijabai, First information Report Ex. 22 was recorded and offence was registered. She was sent for medical examination. Dr. Jyoti Waghmare who was attached as Medical Officer to government Dispensary, Hinganghat examined her on 4. 5. 1988 at about 4. 45 a. m. She issued certificate of her medical examination, She noticed brown stains on the saree of the prosecutrix and also some dried white stains on the pubic area of the prosecutrix. She had taken samples of vaginal fluid on the swab. Medical certificate issued by her is at Ex. 33. The Investigating officer, also seized Saree from the prosecutrix. He also seized the other articles. The accused was arrested on 20. 10. 1988. He was sent for medical examination. Dr. Jyoti Waghmare examined him, collected blood sample of the respondent No. 1, so also semen sample. Seized articles were sent to the Chemical analyser for report. Report of Chemical analyzer is at Exhibit 42. After due investigation, P. S. I. Thuse, submitted charge-sheet against the respondents for the offence under section 376, 354, read with section 34 of the Indian Penal Code in the Court of Judicial Magistrate, First Class, hinganghat. As the offence punishable under section 376 was alleged against the respondents, said case was committed to the Court of Sessions at Wardha.

(3.) Learned Assistant Sessions Judge, wardha framed charge for the offence punishable under section 376 read with section 109 of the Indian Penal Code against the respondents. Same was explained to them. They pleaded not guilty. Their defence was that of total denial and false implication. It is claimed by the respondent No. 1 that due to longstanding quarrel, the prosecutrix and her husband have implicated him falsely. He has also contended that prior to this incident also prosecutrix had imputed such type of allegations against one Urkuda burbure, the matter which was compromised later on payment of certain amount which this respondent had assured to pay and as he did not pay, there was quarrel and hence he has been falsely implicated. Respondent No. 2 also contended that he has been falsely involved in this case, because he was along with respondent No. 1.