DUDESHWAR S/O RAMDAS MADAVI Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2017-2-95
HIGH COURT OF BOMBAY (AT: STATE)
Decided on February 06,2017

Dudeshwar Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

A.S. Chandurkar, J. - (1.) The appellant in this appeal filed under Section 374(2) of the Criminal Procedure Code, 1973 takes exception to his conviction in Sessions Trial No.10/2013 vide judgment dated 07/08/2014 whereby he has been convicted for the offence punishable under Section 394 read with Section 397 and Section 376 of the Indian Penal Code. For the offence punishable under Section 394 read with Section 397 of the Penal Code he has been sentenced to suffer rigorous imprisonment for a period of ten years and to pay fine of Rs.5000/-. For the offence punishable under Section 376 of the Penal Code, he has been sentenced to suffer imprisonment for life and to pay fine of Rs.15,000/.
(2.) It is the case of the prosecution that one Kalyan Raut on 05/12/2012 he received information from his cousin brother that two unknown persons had robbed the gold ornaments belonging to their cousin sister Vandana Waghmare by causing hurt. The said informant Kalyan Raut complainant has stated that said Vandana had informed him that when she was going to fetch medicines for her daughter, two unknown persons proceeding on motorcycle had given her a lift. They had dropped her at village Mundipar Sadak after which she proceeded towards village Miregaon by foot. Said two persons had followed her and after suddenly assaulting her, caused her injuries. She became unconscious and after regaining consciousness, she noticed that her gold earrings were snatched. She also noticed that her gold chain having beads as well as a gold necklace worth Rs.34,000/- were stolen. Said victim was thereafter given primary treatment and then referred to Government Hospital. On that basis, crime was registered for the offence punishable under Section 394 read with Section 34 of the Penal Code. During the course of investigation, the victim further disclosed that the appellant had forcible sexual intercourse with her on the basis of which offence under Section 376 of the Penal Code was further added. After completion of investigation, a charge sheet was filed against the appellant and two others accused persons. The accused did not plead guilty and at the conclusion of trial, the appellant was convicted in the manner stated herein above. Accused No.2 Pravin was convicted for the offence punishable under Section 202 of the Penal Code and was sentenced to suffer imprisonment for the period for which he was in police as well as judicial custody. Accused No.3 Chandrakant came to be acquitted. The appellant being aggrieved by the aforesaid conviction has challenged the same.
(3.) Shri Amit S. Band, learned counsel for the appellant submitted that the learned Judge of the Sessions Court was not justified in convicting the appellant. He submitted that as per the initial report at Exhibit-53 lodged at the instance of PW1 Kalyan Raut, there is no reference whatsoever of any sexual offence being committed on the victim. As per said report, the victim has stated that two unknown persons had forcibly removed her gold ornaments and on account of injuries suffered by her she had fallen unconscious. According to the learned counsel this fact was further evident from the document dated 06/12/2012 at Exhibit-166 by which the Investigating Officer had sought the opinion of the Medical Officer as to whether any sexual offence had been committed on the victim when she was unconscious. It is submitted that the offence under Section 376 of the Penal Code came to be added subsequently and if the entire evidence is taken into consideration, it is clear that conviction of the appellant for said offence cannot be sustained. In so far as conviction for the offence punishable under Section 394 read with Section 397 of the Penal Code is concerned, it was submitted that the evidence brought on record by the prosecution was not sufficient to sustain the same. The appellant had been implicated merely on the basis of suspicion. The seizures effected are not in accordance with law and therefore the appellant is entitled for acquittal.;


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