The State of Maharashtra v. Dipak Balaji Shirsat & Ors.

This Appeal against Judgment Order 29th November 1988 passed learned Additional Sessions Judge, Solapur, 4th Respondents acquitted offences punishable section 376 sections 363 366 with section 34 of the Indian Penal Code (hereinafter referred to as "the said Code"). : 2 :

One Khandu Govind Kamble, employee Indian Railways, complainant. The Complainant daughters a son. The victim offence question younger daughter Complainant Sunanda. The prosecution Respondents/Accused 28th March 1987 kidnapped Sunanda Kamble lawful custody Complainant forced illicit intercourse. The prosecution Respondent No.1/Accused kidnapping Sunanda No.1 Laxman Mohan Kokate at Dighe, Taluka Haveli, District Pune and committed rape on her.

The prosecution shortly mid-night 27th March 1987, Complainant attending duty. The prosecutrix i.e. younger daughter Complainant School

7.00 a.m. the morning 28th March

1987. returned recess

9.00 After having house, returned School. As Prosecutrix return She a.m. School a time, Complainant’s Kallappa enquiries sister. He started a search sister. He Prosecutrix entering Accused No.2/Respondent No.2. The brother : 3 : a Prosecutrix Police Station lodged missing report. On i.e. 29th March 1987 morning Complainant returned

4.30 a.m. informed incident. The Complainant conducted search Prosecutrix. From P.W.5 Mohan Lavate, Complainant learnt Accused No.1/ Respondent No.1 Sunanda. Therefore, Complainant lodged a complaint Vijapurnaka Police Station 29th March

1987. Ultimately Police Prosecutrix Alka Ahire Dighi, Pune. The prosecution examined 20 witnesses. The Complainant P.W.1 Khandu, P.W.15 Kallappa, Prosecutrix Sunanda P.W.16 examined prosecution. Apart witnesses, prosecution examined P.W.5 Mohan Lavate Accused No.1 Prosecutrix Solapur village Kondi. P.W.6 Chandrakant Shinde driver taxi. Accused No.1 prosecutrix driven P.W.6 Kondi Pune. The prosecution examined P.W.11 Laxman Kokani. Accused No.1 initially Prosecutrix Laxman stayed wherein offence allegedly committed him. P.W.11 Laxman Alka Accused No.1 Prosecutrix Ahire Police located Prosecutrix : 4 : Accused No.1. The prosecution evidence P.W.18 employee Sholapur Municipal Corporation Prosecutrix. P.W.12 Dr.Vaijayanti Medical Officer examined Prosecutrix. The learned Sessions Judge impugned Judgment

Order prosecution failed commission offence kidnapping rape. The learned Sessions Judge Prosecutrix voluntarily accompanied Accused No.1 Pune. The learned Sessions Judge prosecution failed the Accused No.1 had sexual intercourse with the Prosecutrix.

14 Shri Mhaispurkar, learned A.P.P. submitted evidence record establish incident Sunanda years. He submitted reason disregard evidence Sunanda. He submitted her evidence inspires confidence and conviction could have been based on her sole testimony. He submitted enough evidence record necessary assurance testimony Sunanda. He submitted certificate issued Headmaster School Sunanda taking education discloses 9th April

1973. He : 5 : invited attention deposition various witnesses. He stated prosecutrix Sunanda evidence Respondent No.1 intercourse without consent accepted. He submitted entire approach learned Sessions Judge was erroneous considering the nature of offence committed by the Respondent.

Shri Mane, learned Counsel appearing Respondents submitted a finding evidence record recorded learned Sessions Judge prosecution failed sexual intercourse. He pointed relevant portion examination-in-chief cross-examination prosecutrix contended prosecutrix Respondent No.1 standing relationship. He submitted evidence prosecutrix voluntarily accompanied Respondent No.1. He submitted material omissions evidence prosecutrix brought record. He submitted evidence prosecutrix trustworthy therefore, cannot conviction. He submitted prosecution supported medical evidence therefore, assurance cannot evidence : 6 : record evidence prosecutrix. He submitted that no interference was called for in the appeal against acquittal.

necessary For considering submissions, evidence record. P.W.1 Khandu Govind Kamble complainant father prosecutrix. He deposed Sunanda fourth daughter relevant taking education 14 Mahatma Phule Vidyalaya Solapur. He stated shortly mid-night 27th March 1987 i.e. 28th March 1987 reporting duty. He morning

4.30 a.m. 29th March 1987 members family disturbed condition. He learnt members family Sunanda

7.00 a.m. 28th March

1987. She returned recess school

9.00 a.m. Thereafter school returned house. He stated Kallappa lodged a missing report Vijapur Naka Police Station. He stated 29th March 1987 conducted search enquiries. At 5

5.15 p.m. Shri Lavate, a Tempo Driver, informed Respondent : 7 : No.1/Accused No.1 Sunanda another Tempo. Therefore, Police Station lodged report against Respondent No.1. In cross-examination certain suggestions P.W.1 correctness denied him. One omission regarding failure religion complaint brought record. P.W.2 a witness. He Police Respondent No.2 presence Prosecutrix Sunanda pointed hiding house. Panchanama offence prepared presence. In presence witness Police Station, P.W.1 produced extract prosecutrix Sunanda. The documents attached Police Station panchanama signed P.W.2 a witness proved Panchanama evidence. He called

1987. Vijapur Naka Police Station 13th April At Nagnath Kale produced a register measurement blouse prosecutrix Sunanda. The register attached a panchanama P.W.2 a signatory a witness. He proved panchanama evidence. In cross-examination nothing relevant has been brought on record in favour of the Accused. a : 8 :

P.W.3 Narayan a witness. At relevant working Shivaji Gandmal. The Shri Shivaji produced duplicate receipt Shri Ganesh Saree Centre attached Police a panchanama. P.W.3 witnesses proved panchanama evidence. His cross-examination material nothing relevant extracted witness. P.W.4 a pancha witness panchanama a receipt Shri Ganesh Ramchandra Apte silver proved attached. The receipt a purchased 26th March

1987. P.W.4 panchanama evidence. Only certain suggestions cross-examination the correctness of which was denied by him.

P.W.5 Mohan working driver

1987. He employed Shri Sherkhane a driver Metador bearing registration No.MXO

5156. He stated incident observing fast. stated accused No.1 Deepak attending duty. He stated Accused No.1 Deepak enquiry him whether Tempo He : 9 : available desirous visiting Tulzapur persons. P.W.5 Deepak Tempo available a Rs.200/- Tulzapur trip. The accused Deepak agreed amount. He boarded tempo. As direction P.W.5 Utkarsha Nagar wherein Accused No.2 Pushpabai located. At Accused Deepak, Accused No.2 Pushapabai boarded Tempo. Deepak Tempo Bhagatsing Market Hotgi Road. As direction, P.W.5 stopped Tempo Bhagatsing Market accused persons asking there. After 10 20 minutes accused, rickshaw Accused Deepak boarded a Tempo. Accused No.2 Pushpabai away. When P.W.5 Pancharapol Square Accused No.1 desirous Pune. Accordingly vehicle Bale Road purchased diesel Bale Petrol Pump. P.W.5 identified prosecutrix Sunanda Court. He stated Pune village Kondi engine vehicle getting heated. He, therefore, stopped vehicle. He noticed a transporting passengers coming Solapur Pune . By giving signal Taxi stopped : 10 : enquired Driver whether willing passengers returning Pune. The driver agreed passengers stated person Rs.50/- paid. The driver stated leaving parcels Solapur. He stated Accused Deepak willingly agreed amount. Accordingly P.W.5 Accused prosecutrix Sunanda Kondi Siddheshwar Hotel returned Solapur. In cross-examination P.W.5 stated accompanying Accused Deepak dressed happy. He stated created engine, conversation between them. He stated petrol purchased diesel number hotels shops. He admitted petrol accused No.1 Deepak petrol diesel. He stated that journey from Sholapur to Pune by road takes about 2 to 2-1/2 hours by car.

P.W.6 Chandranat person allegedly driving belongs father MXQ

5542. He stated father driven himself. He deposed passed village Kondi Solapur : 11 : a signal. He therefore stopped taxi. The driver passengers Tempo whether Pune. He driver deliver parcels Solapur thereafter passengers. informed driver hour’s required purpose. stated passengers Kondi him. stated delivering parcels Solapur, He He He The passengers Kondi. passengers boarded taxi. passengers Pool Gate Pune informed they were Yerawada. stated Rs.100/- Accused No.1 Deepak. He identified Accused No.1-Deepak prosecutrix Sunanda Court stated passengers. He stated sitting taxi. He stated village Bhigwan stopped passengers taking tea. omission brought record. The omission regarding failure before Police One the passengers told P.W.6 that they were going to Yerawada. The : 12 :

P.W.7 Neeta Narayan Kulkarni. This witness a working Apte Jewellers Solapur. She deposed accused "D" They demanded a silver letter inscribed. They demanded silver rings. purchased articles Rs.150/- prepared signed another girl. No.1. The prepared Accused She proved duplicate produced record. In cross-examination suggested number customers visiting shop, a position identify accused. However, denied correctness suggestion. She admitted customers prior to the date on which the said articles were purchased.

P.W.8 Keshav Balaram Gaikwad who a witness presence garments person Accused No.1 Deepak attached. He identified articles proved panchanama garments attached. Nothing material brought cross-examination. P.W.9 Vasanti Vasantrao Kulkarni a witness presence clothes person Prosecutrix attached. She identified clothes proved : 13 : panchanama under which the clothes were attached. Her cross-examination is also hardly material.

P.W.10 Raiz carries business preparing Mangalsutra Apte Jewellers. He stated 24th March 1987 Accused approached request prepared a Mangalsutra description stated him. He identified Mangalsutra produced before Court. He stated charged Rs.6/- preparing Mangalsutra charges Accused No.1. In cross-examination admitted cannot reason identified Mangalsutra. He admitted stated reason statement identifying Mangalsutra recorded. He admitted maintained any note about the customers and the transactions.

P.W.11 Laxman maternal Accused No.1 Deepak. He stated 28th March 1987

9.00 p.m. Accused No.1 Deepak a Sunanda. At the Accused No.1 carrying air-bag. The Accused No.1 casually house. P.W.11 believe correct. However, : 14 : Accused No.1 Deepak Solapur having bearing travelling expenses therefore, Accused No.1 He month. stated approve this. therefore, day, parent’s house. He, therefore, arrangement residence Deepak Sunanda neighbour Alka. According stayed Alka Thereafter Constable days. Constable Alka, Constable Accused No.1 Sunanda custody. In cross-examination Laxman admitted Sunanda desired Pune seeing therefore, Deepak accompany her. The learned Sessions Judge recorded during course cross-examination P.W.11 Laxman taking considerable answering question. He recorded appears witness answer. During course cross-examination witness declared hostile instance cross-examination learned Public Prosecutor. Public Prosecutor stated In that he did feel that bringing such a girl to his house by his nephew was a serious offence. : 15 :

P.W.12 Dr.Vaijaynati, Medical Officer, examined prosecutrix Sunanda. examination-in-chief, stated examined prosecutrix 2nd April

1987. There violence person. She stated present tear. She stated finger PV easily without In difficulty. From x-ray plates prosecutrix opined between 14 16 years. In cross-examination admitted finding PV examination accustomed sexual intercourse. She stated that opinion regarding age is always given keeping in mind the extent of marginal error.

P.W.13 Nagnath employee Solapur Municipal Corporation. He produced original Register period 14th March 1973 3rd June

1973. The register contains Sr.No.4650 a female Parvatibai Kamble father Khandu Govind kamble. In cross-examination stated filled informant. P.W.14 Raosaheb headmaster Mahatma Phule Vidya Mandir

1976. He proved : 16 : certificate 13th April 1987 issued issued entries General Register School. He stated according General Register Sunanda April

1973. He stated Sunanda admitted School 9th December 1981 School 9th 13th July

1983. She admission School 21st September 1985 a separate was made in the register. There is nothing significant in his cross-examination.

He P.W.15 Kallappa brother prosecutrix. stated 28th March 1987 Sunanda 7

7.30 a.m. School. She

9.00 a.m. taking School. Fifteen twenty minutes thereafter proceeding another sister Anupama. While returning Anupama Sunanda Accused No.2 Pushpa. He, therefore, enquiries Accused No.2 Pushpa. Pushpa informed Sunanda house. He a Tempo bearing No.MXO 5156 parked Pushpa. He therefore School Sunanda School, After informing mother searched sister sister located, An her. : 17 : recorded a complaint Police. He stated P.W.5 Lavate informed evening Accused No.1 sister Sunanda Pune. omission brought record cross-examination. The omission effect before Police Sunanda entered him. He admitted that at that time he did not make enquiries with the driver of the Tempo.

P.W.16 prosecutrix Sunanda. She supported prosecution. She stated showing a Accused No.1 Accused threatened Accused No.1 cries. As instructions remained No.2 Accused No.2. According Accused No.2 threat. One Balu a present Accused No.2 threatened She compelled a Accused No.1 threatening a knife. She described circumstances Accused required a Pune. She stated though provided Accused No.1 Deepak food. She stated Accused No.1. After reaching Pune a autorickshaw : 18 : Laxman, maternal Accused No.1. stated She Accused No.1 a kitchen Laxman slept. She stated committed Accused No.1 giving threats. On a quarrel between Laxman wife. Laxman a Accused No.1 compelled Mangalsutra rings. She stated thereafter Alka a meal. She stated Alka inside Accused No.1 Deepak outside room. However, subsequent nights Deepak inside Alka outside. She stated the nights the Accused No.1 had forcible sexual intercourse with her.

In cross-examnation, prosecutrix stated Alka, compelled coloured Gudipadva day. She stated Laxman Alka wife. In cross-examination certain photographs. She admitted appearing photographs. She admitted Accused No.1 threatened her. She stated statement before Police a : 19 : having a picture flower written "S.D." Sunanda Deepak. She admitted mention Police statement Deepak threatened a a threat school premises. She denied the suggestion that her age was 20 years.

P.W.17 Ashok a witness search conducted Police Laxman, maternal Accused No.1 Deepak. From Accused No.1 Deepak certain clothes attached. He a signatory panchanama proved panchanama evidence. P.W.18 Headconstable Yakub Laxman Laxman Alka Accused No.1 Deepk Prosecutrix staying. He recorded statement certain witnesses. P.W.19 Appa Madhavrao Patil Investigating Officer deposed various statements recorded investigation. Certain portions statements witnesses recorded proved evidence. P.W.20 Srinivas Ganesh Centre. He examined duplicate purchased M/s.Ganesh Saree Centre. However, he could not identify the Accused and : 20 : therefore, the witness was declared as hostile.

P.W.11 Laxman the maternal Accused No.1 Deepak testified examination-in-chief Accused No.1-Deepak Prosecutrix a separate kitchen. The Prosecutrix however deposed effect. The prosecutrix 28th April 2004 Accused No.1 Deepak Laxman his wife kitchen. According Prosecutrix Laxman’s protested. Laxman’s examined prosecution. Moreover allegation Prosecutrix Accused No.1 committed offence rape, Prosecutrix shouted atleast protested. The Prosecutrix stated stayed Alka, Deepak outside house. However, subsequent Alka outside Deepak forcible intercourse her. This version difficult accept. It understood Alka a outside consecutive nights. It appears evidence number occasions Prosecutrix opportunity protest. But protested. The driver Tempo stated evidence petrol : 21 : Accused No.1 Deepak Tempo diesel charges visiting petrol pump. After Accused No.1 Prosecutrix Tempo, a restaurant a locality number restaurants shops. School without protest In Accused No.1 Deepak. The Prosecutrix confronted certain photographs Accused No.1. She admitted photographs. However, stated Photographs forcibly. She admitted Photographs 3 4 months before Pune. From Accused No.1 Prosecutrix School Police Constable arrived Alka, efforts Prosecutrix alarm. The Prosecutrix Accused No.1 place. In medical evidence concerned P.W.12 Dr.Vaijayanti examined prosecutrix 2nd April 1987 i.e. alleged rape. She seen. present She admitted findings PV examination shows that the Prosecutrix was accustomed to sexual intercourse.

It a settled conviction : 22 : section 376 Code testimony Prosecutrix. Whenever Court satisfied evidence Prosecutrix, Court assurance evidence witnesses. In present case, assurance cannot evidence Medical Officer examined Prosecutrix. In evidence Laxman concerned, stated Accused No.1 Deepak Prosecutrix together a house. Alka residence offence allegedly committed examined. Therefore, material record assurance support testimony Prosecutrix. Considering nature evidence Prosecutrix, witnesses, absence assurance a conviction testimony. That reason learned Sessions Judge the conclusion that the offence under section 376 of the Code is not established.

So offence kidnapping concerned, learned Sessions Judge evidence record indicates Prosecutrix protection parents own. The conclusion learned Sessions Judge : 23 : evidence record scanning evidence are of the view that the conclusion drawn by the learned Sessions Judge is right.

There is no merit in the Appeal and the appeal is dismissed. (Smt. Ranjana Desai, J.) (Abhay S.Oka, J.)