SURESH GOVINDA NAGDEVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant No. 1 Suresh and appellant No. 2 Hivraj are taking exception to the judgment and order of conviction and sentence recorded by the learned First Ad-hoc Additional Sessions Judge, Gondia, dated 29-3-2006 in Sessions Trial No. 72/2004 by which he has convicted these appellants for the offence punishable under Section 376 (2) (g) of the I.P.C., and appellant No. 2 Hivraj being convicted for the offence punishable under Section 506(II) of the I.P.C. in addition. They were sentenced to suffer R.I. for 7 years and to pay fine of Rs. 2000/- in default to suffer R.I. for 6 months for the offence under Section 376(2) (g) of the I.P.C.

(2.) Brief facts leading to the prosecution of the appellants were that; they are resident of Boda, Tah. Tiroda, District Gondia. Prosecutrix Sangharsha PW-1 is a minor girl aged about 15 years. At the time of incident, her father was serving in Mahindra and Mahindra Automotive concern at Nagpur. She along with her mother PW-3 Sangita, brother, sister and grandfather were residing at Boda. Her grandfather owned agricultural land at the same place. The same is situated at a short distance from their residential house. The house of present appellant No. 1 faces the house of the prosecutrix. Both are acquainted with each other. Prosecutrix Sangharsha used to call him as 'Ajoba ' (grand-pa) with respect. There is one juvenile offender by name Durga who is also alleged to have committed this offence. He was working as labourer with (accused No. 2) appellant No. 2 Hivraj who resides at Sejgaon. On 1-10-2004, father of the prosecutrix had asked appellant Suresh to hire oil-engine for irrigating his land, as his oil engine was out of order. After giving such instructions, her father had gone to Nagpur to attend his duties. On 1-10-2004 i.e. the date of incident, the appellant Suresh and the juvenile offender Durga (against whom the charge sheet was submitted before the Juvenile Court) hired the oil engine and at about 10 p.m. the same was installed in the field of the prosecutrix Sangharsha. Appellant No. 2 Hivraj was engaged to operate the said engine for irrigation purpose. At about 10.30 p.m. prosecutrix Sangharsha (PW-1), her mother PW-3 Sangita, sister Priyadarshana, brother Vyankesh and Dakshina, wife of appellant No. 1, went to the field. At about 11 p.m., oil engine started working. At that time prosecutrix Sangharsha and the juvenile offender Durga got wet. They went to their houses and returned after changing the clothes. Little after midnight at about 1.30 a.m., appellant Suresh requested PW-3 Sangita to bring tea. Thereafter Dakshina, her younger brother etc., went to the home. Appellant Suresh also asked prosecutrix Sangharsha to show the area of the field to be irrigated. Thereafter, as the mother of the prosecutrix etc., had gone to the house, the present appellants ' and the juvenile offender Durga and the prosecutrix Sangharasha remained in the field. At about 2 a.m., prosecutrix showed the field area to juvenile offender Durga. Appellant No. 2 Hivraj came there, so also appellant No. 1 Suresh. Prosecutrix Sangharsha thereafter went to another Dhura. It is alleged that appellant No. 2 Hivraj followed her. It is alleged that, all of a sudden, appellant No. 2 Hivraj embraced prosecutrix and started pressing her breast. She raised hue and cry. Appellant No. 2 Hivraj gagged her mouth. At that time juvenile offender Durga came to the spot. Prosecutrix Sangharsha requested him to rescue her, but, it is alleged, she was asked to keep quiet. Appellant Hivraj threatened her of dire consequences, even to chop off by Tangya and bury her in Nallah. It is alleged that she was held firmly when juvenile offender Durga removed her slack and underwear. Appellant Hivraj firmly held her on his thigh while juvenile offender Durga raped her. It is also alleged that he bit on her breast. Prosecutrix Sangharsha tried to raise cry, however, appellant Hivraj gagged her mouth. Then appellant Suresh raped her. He was followed by juvenile offender Durga to again rape her, so also such act was done by appellant Hivraj. All these rapes by these three persons were committed by threatening her to kill. It is alleged that meanwhile Priyadarshana came to the spot and gave call to the prosecutrix Sangharsha, however, she could not respond because of the threats and because appellant Hivraj had gagged her mouth. Thereafter she was made free because her mother was to bring tea. She immediately returned to her home and narrated the entire incident to her mother Sangita. She was weeping. At that time her neighbours gathered there. They were made aware of the incident by the prosecutrix Sangharsha. These neighbours include PW-4 Bholaram and PW-6 Babu amongst others. Then she was taken to the police station where she lodged report orally which was got recorded by A.P.I. PW-9 Bhaurao. Offences under Sections 376 (2)(g) and 506 of the I.P.C. were registered against the accused vide Crime No. 65/2004. It was registered at about 7.30 a.m. on 2-10-2004. Prosecutrix Sangharsha was then sent for medical examination to B.G.W. Hospital at Gondia, however, the Doctor refused to examine her as her parents were not present. Thereafter, when she was again sent for medical examination with her mother, Medical Officer PW-7 Dr. Sayas Kendre examined her and issued certificate of her medical examination. She also collected vaginal swab as well as blood samples for investigation. During investigation, spot panchnama was prepared in presence of PW-4 Bholaram vide Exh. 42. Accused persons were arrested and they were also medically examined by PW-2 Dr. Rajendra Tripathi, who had issued certificates in respect of the medical examination of the accused i.e. present appellants as well as juvenile offender; as per Exh. 35, 36 and 38. After due investigation, the appellants were charge sheeted and juvenile offender Durga was sent to Juvenile Justice Board for trial.

(3.) The learned Additional Sessions Judge framed charge against the present appellants for the offence punishable under Sections 376(2)(g) and 506 of the I.P.C. so also under Section 3(1)(x) of S.C. and S.T. (Prevention of Atrocities) Act, against appellant Hivraj. The same was explained to the appellants. They pleaded not guilty to the same. Their defence is that of total denial and false implication on account of the fact that appellant Suresh and his wife were living with the husband of PW-3 Sangita at Nagpur and this was not liked by her. It is claimed by the appellant Hivraj that he is innocent and he has been falsely implicated.