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{1} CRI APPEAL 793 OF 2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 793 OF 20031.Dilip s/o Sandipan PatilAge: 38 years, Occu.: Agri.,R/o. Mandwa, Taluka Kallam,District Osmanabad.2.Sarjerao s/o Tukaram PatilAge: 38 years, Occu.: Agri.,R/o. Mandwa, Taluka Kallam,District Osmanabad.….Appellants (Ori. Accused)Versus1.The State of Maharashtra2.Tolabai Bhima ShindeAge: 41 yrs., R/o. Mandwa,Ta.Kallam, Dist.Osmanabad.…..Respondents …..Advocate for Appellants : Mr.Mayur Salunke h/f. Mr. V.D.SaluneAPP for Respondent : Mrs.Uma S.Bhosale….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 27 JUNE, 2024 PRONOUNCED ON : 04 JULY, 2024 JUDGMENT :- 1. Convicts in Sessions Case No.72 of 1999 are hereby takingexception to judgment and order dated 31-10-2003 passed bylearned Ad-hoc Additional Sessions Judge, Osmanabad by which {2} CRI APPEAL 793 OF 2003present appellants were held guilty for offence under Sections 376(2)(g) of the Indian Penal Code (IPC). FACTS LEADING TO THE TRIAL 2. Prosecutrix PW2 Tolabai, mother of five daughters, had been toher own land to collect grass on 07-09-1998. At around 12:00 Noon,while she was carrying a bundle of grass over her head andproceeding towards home, at that time, near the land of one Gaffar,accused Dilip Patil and accused Sarjerao Patil approached her.Accused Sarjerao caught hold of her hands and dragged her in thecorner of a hybrid crop. They made her lie on the ground. AccusedSarjerao got undressed and he raped her while accused Dilip kept hisleg on her left knee. She shouted but no one was present around.According to her, Sarjerao committed rape on her. After the incident,at around 7:00 p.m., her husband came and they approached KallamPolice Station and lodged report, on the strength of which crimebearing no.227 of 1998 was registered and on gathering sufficientevidence, accused persons were chargesheeted for offence u/s 376(2)(g), 354, 506 r/w 34 of IPC and finally tried by Ad-hoc AdditionalSessions Judge, Osmanabad vide Sessions Case No.72 of 1999.In support of its case, prosecution had adduced evidence of
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{3} CRI APPEAL 793 OF 2003four witnesses. After appreciating evidence, learned trial Courtconvicted both accused, but only for offence under Section 376(2)(g)of the IPC and sentenced them to suffer rigorous imprisonment forseven years and to pay fine of Rs.2000/- each and in default to sufferrigorous imprisonment for six months each. It is the above judgment that is now questioned before thisCourt by filing appeal under Section 374 of the Code of CriminalProcedure. SUBMISSIONSOn behalf of appellant :3. Learned Counsel for the appellants pointed out that at presentmain accused no.2 - Sarjerao Tukaram Patil has expired. Death certificate of accused no.2 Sarjerao Tukaram Patil isplaced on record and therefore, as against him, appeal stands abated.4.As regards to remaining sole accused no.1 Dilip Sandipan Patilis concerned, learned Counsel for appellants would submit that he isfalsely implicated on mere allegation of putting leg on the knee ofprosecutrix. He did not commit offence of rape. That there is nocorroboration to the testimony of prosecutrix, who is already a {4} CRI APPEAL 793 OF 2003married lady. 5.It is his further submission that here charge was framed underSections 354, 376(2)(g) and 506 of the IPC. He pointed out thatinfact learned trial Judge has acquitted both accused from offenceunder Sections 354 and 506 read with Section 34 of the IPC. Thatcharge remained was only of Section 376(2)(g), but according tohim, said provisions ought not to have been attracted as offence wasnot committed during communal or sectarian violence. 6.He further submitted that going by the accusations ofprosecutrix, the only offence that could be made out is of Section 354of the IPC, but appellant no.1 is already acquitted from the saidcharge by the learned trial Court. That while recording statement ofappellant no.1 under Section 313 of the Code of Criminal Procedure,there was no specific question to him regarding commission ofoffence under Section 376(2)(g) of the IPC and so he cannot beconvicted for the said offence. Learned Counsel seeks reliance ondecision in the case of Raj Kumar v. State (NCT of Delhi), 2023 SCCOnLine SC 609. On behalf of State :7. Opposing the above submissions, learned APP pointed out that {5} CRI APPEAL 793 OF 2003serious offence is committed. Prosecutrix has named both accusedand while narrating forceful rape by Sarjerao, specifically appellantDilip is named for keeping his leg on her knee and therebyfacilitating the rape. Therefore, learned trial Court committed noerror in convicting both of them. There is medical evidencesupporting prosecutrix’s version. Therefore, impugned judgment isthe correct view and the same need not be disturbed. EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT8.In support of its case, prosecution has examined threewitnesses. Sum and substance of their evidence is as under : PW1 Dr.Sunanda Vishnupanth Gore, Medical Officer at exh.18deposed that on 08-09-1998, Kallam Police referred victim of rape forexamination. History was of alleged rape dated 07-09-1998 at 12:30Noon. On external examination, she noticed following marks ofviolence.(i) Abrasion, scratches present over left forearm, supinator aspect (3 in nos. admeasuring 7 cm. x ¼ cm. in size).(ii) Abrasion over left clavical ½ x 3 cm.(iii) Abrasion over lumber region of back 5 x 1 cm. and 2 x ½ cm. {6} CRI APPEAL 793 OF 2003She further opined that patient was habituated to intercourse.She issued certificate exh.19 after collecting swab for CA and alsonoted identification marks of victim.According to her, injury nos.1 and 2 are possible when personresists at the time of rape. Injury no.3 is possible if person isdragged. In cross-examination, Medical Officer answered that she didnot note age of injuries in the certificate and admitted that injurynos.1 and 2 to be possible due to fall and 3 to be possible by slipping.She identified exh.19.PW2 Tolabai w/o Bhima Shinde, who is examined at exh.24deposed that she has three sons and five daughters. She cultivatesland, which is adjacent to land of Dilip. That on 07-09-1998, she hadbeen to the land to collect grass. That while she was carrying bundleof grass over her head and proceeding towards her house, at 12:00Noon, when she reached near land of one Gaffar, Dilip Patil andSarjerao Patil asked her where she was proceeding. That Sarjeraoheld her both hands, dragged her in hybrid crop. That they made herlie on the ground. She deposed that Sarjerao was wearing whitepant, which he removed and thereafter, removed his red underwearand inserted his private part in her private part. That Dilip put his {7} CRI APPEAL 793 OF 2003leg on her left knee. That Sarjerao committed rape on her. That sheshouted but no one was present there. That her husband returnedhome at 7 p.m. That she narrated him the occurrence andthereafter, they went to Police Station and she lodged report exh.25.On second day, she was medically examined. PW3 Chaturabai w/o Saheba Shinde Stated that after shereturned from land at 6 p.m., she went to Kallam alongwith PW2Tolabai, who lodged report in Police Station. She denied that PW2Tolabai produced clothes in her presence and thereby finding her notsupporting, she was declared hostile.PW4 Bhimrao, husband of victim, at exh.27 stated that whenhe returned home from Washi on 07-09-1998, his wife came homeweeping and told that Sarjerao committed rape on her and Dilip kepthis leg on her left knee. They went to Kallam Police Station and hiswife lodged report.ANALYSIS 9. Admittedly, in view of death certificate of appellant no.2Sarjerao Tukaram Patil placed on record, and he is reported to bedead, therefore, appeal to his extent is abated. Both accused are convicted by learned trial Court for offence {8} CRI APPEAL 793 OF 2003under Section 376(2)(g) of the IPC. In the light of objection raised by learned Counsel forappellants, it is necessary to ascertain whether charge was properlyframed and explained. Charge at exh.10 for proper comprehension is reproduced asunder : “C h a r g e Exh.No.10I, L.A.Borde, Adhoc Add. Sessions Judge, Osmanabad herebycharge you : 1. Dilip Sandipan Patil, age 35 yrs., r/o Mandwa, Tq.Kallam.2.Sargerao Tukaram Patil, age 35 yrs., r/o as above,as follows :- That on 7-9-98 at about 12-30 p.m. in Gat no.581 situated atMandwa, Tq.Kallam, Dist.Osmanabad you accused no.2 i.e. SarjeraoTukaram Patil committed rape on Tolabai w/o Bhima Shinde againsther will and without her consent and there by committed an offencepunishable under section 376 of I.P.C.Secondly, on same date, time and place you accused no.1 DilipSandipan Patil Assaulted Tolabai Bhima Shinde and used criminalforce intending to outrage or knowing it to be likely that, you wouldthere by outraged her modesty and there by committed an offencepunishable under sec. 354 of I.P.C.Thirdly, on the same date, time and place, you accused infurtherance of your common intention criminal intimidation bythreatening Tolabai with injury to his person reputation property andwith intent to cause alarm to Tolabai and thereby committed anoffence punishable under sec.506 r.w. 34 of I.P.C. {9} CRI APPEAL 793 OF 2003And I hereby direct you that you be tried by me for the abovesaid charge. (L.A.Borde)dt. 14-1-2002Adhoc Addl. Sessions Judge,Osmanabad.”Therefore, what is emerging from above charge is that in trialCourt, sole surviving appellant Dilip was tried for commission ofoffence under Section 354, 506 read with 34 of the IPC and not foroffence under Section 376(2)(g). However, operative part of theimpugned judgment and order shows that both accused are alreadyacquitted by learned trial Judge for offence under Sections 354, 506read with 34 of the IPC. Surprisingly, State has not challenged theabove judgment by filing distinct appeal. Therefore, as againstappellant no.1 Dilip Sandipan Patil, nothing has remained to bedealt. 10.Even though appellant Dilip was convicted by learned trialJudge alongwith deceased Sarjerao for commission of offence underSection 376(2)(g) of the IPC, said charge is misplaced, as this penalsection gets attracted when rape is committed during communal orsectarian violence. Prosecution has not put-forth any case aboutcommission of rape during communal or sectarian violence. {10} CRI APPEAL 793 OF 2003Even as pointed out by learned Counsel for appellants, onvisiting questions faced by present appellant Dilip under Section 313of the Code of Criminal Procedure, by way of question no.20, he ismerely asked what he has to say regarding the version of prosecutrixthat he put his leg on the knee of prosecutrix, to which appellantDilip has answered it to be false. There is no specific question to himunder Section 313 of the Code of Criminal Procedure aboutcommitting offence of rape and therefore, as rightly pointed out bylearned Counsel for appellants, in absence of specific question andexplanation for the charge for which he is held guilty, definitelyprejudice has been caused to appellant no.1. SUMMATION11.To sum up, here firstly charge is misplaced. Improper chargehas been framed and explained as regards to surviving appellantDilip is concerned. Therefore, the charge for which he was tried, heis already acquitted, and for the charge which was not explained tohim, he cannot be held guilty. Consequently, appellant no.1 Dilipsucceeds. Accordingly, I proceed to pass following order : ORDERI)Criminal Appeal No.793 of 2003 stands abated to theextent of Appellant no.2 - Sarjerao s/o Tukaram Patil. {11} CRI APPEAL 793 OF 2003II)Criminal Appeal No.793 of 2003 is allowed to the extentof Appellant no.1 – Dilip s/o Sandipan Patil.III)The conviction awarded to appellant no.1 – Dilip s/oSandipan Patil in Sessions Case No.72 of 1999 by thelearned Ad-hoc Additional Sessions Judge, Osmanabad on31-10-2003 for the offence punishable under Section 376(2)(g)of the Indian Penal Code, stands quashed and set aside. IV)The appellant stands acquitted of the offence punishableunder Section 376(2)(g) of the Indian Penal Code.V)The bail bonds of appellant no.1 – Dilip s/o Sandipan Patilstands cancelled. VI)The fine amount deposited, if any, be refunded toappellant no.1 - Dilip s/o Sandipan Patil after the statutoryperiod.VII)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT