Partly allowed

Eknath Shivaji Patil and Ors. v. the State of Maharashtra

Bombay HC9 Dec 2004APEAL/516/1995

Case brief

AI extract

What is this about?

In criminal appeal challenging conviction for illegal termination of pregnancy and cheating, the High Court set aside convictions of most appellants under IPC 313/506 due to unreliable evidence, but upheld conviction of one appellant under IPC 419 for impersonation. Sentence reduced for the latter.

What did the court decide?

Conviction under Section 313 and 506 IPC set aside; conviction under Section 419 IPC confirmed with imprisonment reduced to sentence undergone and fine increased; bond of appellant No.4 stayed pending

Eknath Shivaji Patil and Ors. Vs the State of Maharashtra — Cheating and Forgery | Bombay HC (2004)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 516 OF 1995

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 1. Eknath Shivaji Patil,
 Age 23 years,
 2. Shiva Dadu Patil,
 Age 55 years,
 3. Krishna Shiva Patil,
 Age 28 years,
 4. Ananda Dattu Gurav,
 Age 60 years,
 5. Sampat Vithal Kumbhar,
 Age 29 years,
 6. Raghunath Rama Patil,
 Age 32 years,

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 All R/o village Bachani,
 Taluka Karvir,
 District Kolhapur.

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 7. Dagadu @ Ananda Kerba
 Koigade, Age 32 years,
 R/o. Kurkuli, Tq. Karvir,
 District Kolhapur ...Appellant

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 Versus

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 The State of Maharashtra ...Respondent.
 .....
 Shri. N.J. Patil, Advocate for the appellants.
 Shri. A.S. Shitole, A.P.P. for Respondent.

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 .....
CORAM: SMT. V.K. TAHILRAMANI, J.
DATED: 9/10TH DECEMBER, 2004

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ORAL JUDGMENT:-

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 1. Through this appeal, the appellants i.e.
 original accused Nos. 1 to 7 challenge the
 judgment and order dated 30.8.1995 passed by the
 III Additional Sessions Judge, Kolhapur in Sessions
 Case No. 251 of 1991. By the said judgment and
 order, the learned Sessions Judge convicted all the
 appellants for the offence under Section 313 r.w.
 34 of I.P.C. and under section 506 r.w. 34 of
 I.P.C. and sentenced them to R.I. for one year
 and to pay fine of Rs.1,000/- each i/d S.I. for
 three months under section 313 r.w. 34 of I.P.C.
 and under section 506 r.w. 34 of I.P.C. sentenced
 them to R.I. for six months and to pay a fine of
 Rs.1000/- each i/d R.I. for one month each. In
 addition thereto, the learned Sessions Judge
 convicted the appellant No.4 for the offence under
 section 419 of I.P.C. and sentenced him to R.I.
 for one year and to pay fine of Rs.2,000/- i/d S.I.
 for six months

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 2. Brief facts relating to the present case are as
 under:-

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 . The complainant P.W.1 Mangal Bhiva Jadhav was
 residing in village Bachani alongwith her parents,
 brother and sister. The appellant No.1 was her
 distant relation. He was also residing in the same
 village. The field of Mangal and that of the

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 appellant No.1 were adjoining. About four months
 prior to the filing of the complaint, Mangal had
 gone to her field, there the appellant No.1
 committed rape on her. Thereafter, whenever Mangal
 went to her field, the appellant No.1 had sexual
 intercourse with her. This happened about four to
 five times. Mangal became pregnant and she
 insisted that the appellant No.1 should marry with
 her. On 7.3.91 there was a marriage of cousin
 brother of Mangal i.e. the son of Shankar Jadhav
 in the village. All family members had gone to
 attend the said marriage. Only Mangal and her
 uncle P.W.4 Shiva Jadhav remained at their house.
 At about 4.00 p.m. appellant No.5 Sampat Kumbhar
 came to her house in a jeep and told that he was
 sent by appellant No.1. Appellant No.5 stated that
 the appellant No.1 has sent him to bring her saying
 that Mangal and appellant No.1 were to get married
 at Narsobachiwadi. Mangal asked her uncle P.W.4
 Shiva Jadhav to accompany her and he accompanied
 them. The jeep went to village Haladi, there
 appellant Nos. 1 to 3 and 7 were present, they got
 into the jeep. From there the jeep proceeded to
 Kolhapur. The jeep stopped near a hospital.
 Appellant No.4 and 6 were sitting on the steps of
 the hospital. Uncle of Mangal P.W.4 Shiva Jadhav
 was given threat and was made to sit in the jeep.
 P.W.1 Mangal was taken into the hospital by all the

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 appellants. P.W.2 Dr. Jadhav gave injection to
 Mangal due to which she became unconscious. When
 she regained consciousness, she found that her
 pregnancy had been terminated. It is the case of
 Mangal that the appellants caused miscarriage
 without her consent and when she was taken to the
 hospital she did not know that her pregnancy was to
 be terminated. Thereafter on 2.4.91 her complaint
 came to be lodged against all the appellants. The
 complaint was under Section 376 of I.P.C. against
 the appellant No.1 who committed rape on her and
 under Section 313 r.w. 34 of I.P.C. against all
 appellants. After completion of investigation,
 charge sheet came to be filed under Section 376,
 313 and 506 r.w. 34 of I.P.C. and under Section
 416 of I.P.C. Charge under Section 416 of I.P.C.
 was added as it is the prosecution case that the
 appellant No.4 has signed on consent form in Doctor
 Jadhav’s hospital pretending to be Shiva Rama
 Jadhav who is the paternal uncle of Mangal.

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 3. In due course the case was committed to the
 Court of Sessions. Charge came to be framed
 against all the appellants for the offence under
 Section 313 r.w. 34 of I.P.C. In addition thereto
 the charge came to be framed against the appellant
 No.1 Eknath Patil for the offence under section 376
 of I.P.C. So also an additional charge came to be

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 framed against the appellant No.4 Anand Gurav for
 the offence under Section 419 of I.P.C. All the
 appellants pleaded not guilty to the said charges
 and claimed to be tried. After going through the
 evidence adduced by the prosecution, the learned
 Sessions Judge acquitted the appellant No.1 Eknath
 Patil for the offence under Section 376 of I.P.C.
 The learned Sessions Judge held that the act of
 sexual intercourse had taken place by consent and
 it was not a case of rape. However, the learned
 Sessions Judge convicted and sentenced all the
 appellants as stated in para 1 above. Hence, this
 appeal.

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 4. I have heard Shri. N.J. Patil, the learned
 advocate for the appellants and Shri. Shitole, the
 learned A.P.P. for the State. I have also perused
 the entire record pertaining to the present case.
 After carefully considering the matter, I am of the
 opinion that the conviction of all the appellants
 under Section 313 r.w. 34 of I.P.C. deserves to
 be set aside.

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 5. The main witness in the present case is P.W.1
 Mangal Jadhav. As the prosecution story in para 2
 above has been taken from the examination in chief
 of Mangal Jadhav, I do not find it necessary to
 repeat the same here, as it would only overburden

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 the judgment. The evidence of P.W.4 Shiva Jadhav
 in his examination in chief in respect of incident
 of 7.3.91 is on the same lines as that of Mangal.
 The learned Sessions Judge has disbelieved the case
 of Mangal Jadhav that the appellant No.1 Eknath
 Jadhav had committed rape on her on five to six
 occasions. The learned Sessions Judge held that
 the sexual intercourse had taken place with
 consent. Moreover, Mangal was over 18 years of age
 at the time of incident, hence, it was not even a
 case of statutory rape. However, the learned
 Sessions Judge held on the basis of evidence of
 P.W.1 Mangal Jadhav and P.W.4 Shiva Jadhav that all
 the appellants are guilty of the offence under
 Section 313 r.w. 34 of I.P.C. In such case, it
 would necessary to scrutinise the evidence of these
 two witnesses minutely.

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 6. P.W.1 Mangal Jadhav was about three and half
 months pregnant on the date when her pregnancy was
 terminated i.e. on 7.3.91. On that day there was
 a marriage in the village of her paternal uncle’s
 son i.e. son of Shankar Jadhav. Mangal had three
 paternal uncles i.e. P.W.4 Shiva, Shankar and
 Dinkar. However, Mangal did not attend the
 marriage and according to her she and her uncle
 Shiva stayed at home. When the appellant No.5 came
 to her house in a jeep and told her that the

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 appellant No.1 has sent him to fetch Mangal to get
 married with appellant No.1 at that time Mangal
 asked her uncle P.W.4 Shiva Jadhav to accompany her
 and she and her uncle both went in the jeep with
 appellant No.5. Mangal made no effort to call her
 parents, brother and sister though she was going to
 get married on that day. Though it was such an
 important step, neither Mangal nor her uncle P.W.4
 Shiva felt it necessary to inform the other family
 members that Mangal was getting married and hence
 they should come to attend the marriage. On the
 very same day there was marriage in the village of
 the son of Shankar Jadhav who is one of the
 paternal uncles of Mangal. The said marriage was
 to take place at 5.00 p.m., the appellant No.5 came
 to the house of Mangal at about 4.00 p.m. The
 appellant No.1 was the son of brother-in-law of
 Dinkar Jadhav who is one of the paternal uncles of
 P.W.1 Mangal. When the marriage of son of Shankar
 was to take place, on that very day P.W.4 Shiva
 Jadhav could very well have informed the appellant
 No.1 that in the same pandal they could get Mangal
 married to appellant No.1. However, P.W.4 Shiva
 states that Mangal’s parents were at the marriage
 place of son of Shankar and he did not feel that he
 should take Mangal’s parents with them. Nor did he
 feel that it was necessary to inform parents of
 Mangal in respect of the marriage of Mangal with

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 appellant No.1. He also stated that he did not
 feel it necessary to inform the parents of Mangal
 that they were going to Narsobachi Wadi for
 performing the marriage of Mangal with the
 appellant No.1. According to him Mangal asked him
 to accompany her when she was going to get married
 with the appellant No.1, hence, he accompanied her.
 This conduct on the part of P.W.4 Shiva Jadhav is
 most unnatural conduct. The said conduct is not at
 all consistent with that of a normal person when
 his niece is to get married. This conduct is more
 consistent with the fact that Mangal was being
 taken for terminating her pregnancy and that Mangal
 asked him to accompany her.

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 7. So also the conduct of Mangal herself is not a
 natural and probable conduct. It is not the case
 of Mangal that her family was against her marriage
 with the appellant No.1. In such case if she
 received message from appellant No.1 calling her to
 get married with him on that day, she would have
 certainly informed her parents, brother and sister.
 However, she has stated in her evidence that she
 did not feel it necessary to do so. This conduct
 on her part shows that she was in fact being taken
 to terminate her pregnancy and this fact was known
 to her. Otherwise, there was no reason for her to
 suppress from her parents and other relatives the

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 fact that she was going away with the appellant
 No.5 to Narsobachiwadi to get married with the
 appellant No.1.

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 8. The conduct of P.W.4 Shiva Jadhav who is the
 uncle of P.W.1 Mangal is consistent with the fact
 that he knew that Mangal was being taken to
 terminate her pregnancy. No doubt, this witness
 has stated that when they reached the hospital at
 Kolhapur, the appellants took Mangal inside the
 hospital and threatened him to keep mum otherwise
 they would kill him there only, hence, he remained
 sitting in the jeep. According to this witness as
 well as Mangal, all the appellants were in the
 hospital. None of the appellants remained sitting
 in the jeep or next to the jeep where P.W.4 Shiva
 Jadhav was sitting. According to P.W.4 Shiva
 Jadhav the road in front of the hospital was a
 vehicular road and he remained sitting in the jeep
 for about three hours. When Mangal was taken to
 the hospital for causing her miscarriage, according
 to P.W.4 Shiva Jadhav during those three hours, he
 was sitting quietly in the jeep and during those
 three hours he did not feel like going in the
 hospital and seeing Mangal who was in the hospital.
 The story put forth by P.W.4 Shiva is that he
 remained in the jeep for three hours when the
 appellants went in the hospital alongwith Mangal.

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 At that time as he was alone in the jeep he could
 have sought the help of police or the help of any
 of the passer by. However, he did not do so. This
 clearly shows that he knew the reason for which
 Mangal was taken to the hospital from the beginning
 and he had no objection to the pregnancy being
 terminated.

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 9. P.W.4 Shiva Jadhav has stated that after a long
 time the appellants came out, at that time Mangal
 was not with them. Thereafter the appellants
 reached him to the door of his house. In case the
 appellants had done the act of getting the
 pregnancy terminated forcibly, they would not have
 had the courage to go back to the village with
 Shiva and to drop him at his house. It has also
 come on record that the family of Mangal was in the
 majority in the village.

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 10. Even according to Mangal as well as P.W.2 Dr.
 Jadhav, Mangal remained in the hospital upto
 9.3.91. P.W.4 Shiva has stated that after he
 returned, the family members and other brothers of
 Shiva did not ask him about Mangal. Nor did Shiva
 tell anyone about this incident till arrival of
 Mangal. Even according to Mangal after her uncle
 was reached to his house, she was in the hospital,
 she was in the hospital for two days thereafter and

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 nobody came to the hospital from her house to see
 Mangal and it was the appellant No.1 who was
 present in the hospital during that time. If at
 all the pregnancy of Mangal was terminated without
 her consent, when P.W.4 Shiva Jadhav was reached at
 his house by the appellants, he could have gathered
 all the family members and could have told them
 about the incident. He has stated that their
 family i.e. Jadhav family was in the majority in
 village Bachani. In such case he would have
 gathered all the families in the village who were
 his relations and they could have gone to the
 hospital to see Mangal or taken any action against
 the appellants. However, P.W.4 Shiva Jadhav has
 categorically admitted that he reached home about
 7.00 to 8.00 p.m. on 7.3.91 and when the other
 family members returned in the village from the
 marriage, he did not tell about the incident to
 anybody. Even on the next day he did not tell
 anybody about the incident. In fact till the
 arrival of Mangal he did not tell about the
 incident to anybody. He has further stated that no
 family member made any eqnuiry with him about
 Mangal. Shiva and Mangal were the only two persons
 in the house, in such case if Mangal is found
 missing, the first thing the family members would
 do, is to make enquiries with Shiva about Mangal.
 It is very strange and unnatural that a young

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 unmarried girl aged about 18 to 20 years, is
 missing from her house for over two days and no
 family member makes any enquiry or makes any search
 for her. All these facts lead only to one
 conclusion, i.e. the family members of Mangal knew
 that she was pregnant and she had gone to terminate
 her pregnancy.

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 11. Mangal has stated that on 9.3.91 she was
 reached to her house by the accused. If at all the
 appellants had done something without the consent
 of Mangal i.e. they had got terminated her
 pregnancy forcibly and without her consent, the
 accused would not have reached Mangal to her house.
 Mangal has clearly stated in her cross examination
 that the appellant No.3 Krishna Patil took her from
 the hospital and reached her home. As stated
 earlier none of the family members had shown any
 anxiety regarding disappearance of Mangal. This
 shows that they knew that Mangal had gone to get
 her pregnancy terminated and therefore, they kept
 quiet.

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 12. The conduct of P.W.1 Mangal is also to be
 seen. Mangal has stated that when she returned
 home she did not tell anybody that her miscarriage
 was caused. She has no talk with her uncle Shiva
 though her uncle Shiva and she were residing in the

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 same house. It is also pertinent to note that the
 incident of termination of pregnancy took place on
 7.3.91, however, the complaint came to be lodged
 almost a month later i.e. on 2.4.91. P.W.4 Shiva
 Jadhav has stated that he did not tell anyone about
 the incident after returning home and it is only
 for the first time that he told about the incident
 when his statement came to be recorded by the
 police on 2.4.91. So also no complaint was lodged
 by Mangal prior to 2.4.91. No plausible
 explanation has come on record regarding the delay
 in lodging the complaint. Thus, this delay in
 lodging the complaint is also fatal to the
 prosecution. The evidence as regards the offence
 under section 313 of I.P.C. is based only on the
 evidence of these two witnesses. Looking to the
 evidence of P.W.1 Mangal and P.W.4 Shiva Jadhav, I
 do not find their evidence to be reliable and
 trustworthy.

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 13. Now only one point remains for consideration
 i.e. the conviction of appellant No.4 for the
 offence under Section 419 of I.P.C. It is the
 prosecution case that when Mangal was taken to the
 hospital, appellant No.4 Ananda Gurav impersonated
 himself to be Shiva Rama Jadhav i.e. the paternal
 uncle of P.W.1 Mangal Jadhav. The appellant No.4
 represented himself to be the paternal uncle of

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 Mangal and had signed on the consent form (Exh.27)
 inthe hospital. P.W.2 Dr. Jadhav who performed
 the operation on Mangal on 7.3.91 has identified
 the appellant No.4 Ananda Gurav to be the person
 who signed on the consent form (Exh.27) as Shiva
 Rama Jadhav. P.W.2 Dr. Jadhav has stated that the
 appellant No.4 Ananda Gurav represented himself to
 be the paternal uncle of Mangal. Dr. Jadhav is an
 independent witness. He has no grudge or enmity
 against the appellant No.4 so as to implicate him
 falsely. Moreover, the prosecution has examined
 P.W.11 Jaysingrao Landge who is the handwriting
 expert. He has stated that he examined the
 questioned documents Q-1 and he found it tallied
 with specimen i.e. S-8 to S-14 (Exh.43 to 49). He
 has also stated that he compared Q-1 (Exh.27) with
 the specimens i.e. S-1 to S-7 (Exh. 32 to 38) and
 found that they did not tally. It is pertinent to
 note that S-8 to S-14 are specimens in writing of
 appellant No.4 and S-1 to S-7 are those of P.W.4
 Shiva Rama Jadhav. Nothing has been elicited in
 the cross examination of this witness i.e. the
 hand writing expert so as to disbelieve his
 testimony that the questioned documents (Exh.27)
 was in the hand writing of appellant No.4. Looking
 to the evidence on record it can very well be
 stated that the prosecution has proved its case
 under section 419 of I.P.C. against the appellant

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 No.4. Hence, the conviction of the appellant No.4
 for the offence under section 419 of I.P.C.
 deserves to be confirmed.

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 14. At this stage Shri. Patil, the learned
 advocate for the appellants submitted that the
 appellant No.4 is a poor agriculturist and his
 family is dependant on him. He has submitted that
 the incident in question has occurred in the year
 1991 and more than 14 years have passed since then
 and about 10 years have passed since his conviction
 by the trial Court. Looking to all these facts, he
 has prayed that the sentence of imprisonment
 imposed on the appellant No.4 be reduced to the
 period undergone by him. Looking to these facts, I
 am inclined to reduce the sentence of imprisonment
 to the period undergone by the appellant, however,
 I am inclinedto increase the amount of fine.

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 15. In the result the conviction and sentence of
 appellant Nos. 1 to 7 under Section 313 r.w. 34
 of I.P.C. is set aside. The conviction of
 appellant No.4 Ananda Dattu Gurav under section 419
 of I.P.C. is confirmed. However, looking to the
 facts and circumstances of the case I am inclined
 to reduce the sentence of imprisonment to the
 period undergone by the appellant No.4, however,
 the fine amount is increased from Rs.2000/- to

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 Rs.5000/-.

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 16. It is submitted by the learned advocate for
 the appellants that the fine amount of Rs.2000/- as
 imposed by the trial Court has already been
 deposited in the trial Court. In such case the
 appellant No.4 would have to pay additional fine
 amount of Rs.3,000/- only. The learned advocate
 for the appellants prays for eight weeks time to
 deposit additional fine amount. The said prayer is

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 accepted. The appellant No.4 is granted eight
 weeks time to deposit additional fine amount. The
 appellants are on bail. The bail bonds of
 appellant Nos. 1 to 3 and 5 to 7 shall stand

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 cancelled. As far as the appellant No.4 is
 concerned, his bail bond shall stand cancelled
 after he deposits additional fine amount of

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 Rs.3000/- in the trial Court.

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 17. Criminal appeal is partly allowed.

Eknath Shivaji Patil and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Eknath Shivaji Patil and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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