Partly allowed

Machhindra Kannusingh Chavan v. the State of Maharashtra and Anr.

Bombay HC21 Apr 2011APEAL/35/1994

Case brief

AI extract

What is this about?

High Court allowed appeal of police constable Balu, acquitting him of rape and abduction charges. For co-appellant Machhindra, conviction for unnatural sex and rape was set aside but Section 377 conviction maintained with reduced sentence.

What did the court decide?

Balu acquitted of all charges; Machhindra acquitted of rape/abduction but convicted under Section 377 IPC with sentence reduced to time already undergone.

Machhindra Kannusingh Chavan Vs the State of Maharashtra… — Cheating and Forgery | Bombay HC (2011)

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APEAL-JG-25.94

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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CRIMINAL APPEAL NO.25 OF 1994

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Balu Ramdas Sangle,
Age: 32 years,
Occ: Police Constable,
r/o Police Vasahat,
Shivajinagar,
Pune-5..... Appellant
- Versus -
State of Maharashtra.... Respondent

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WITH

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CRIMINAL APPEAL NO.35 OF 1994

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Machhindra Kannusingh Chavan,
aged about 38 years,
Occ: Police Constable,
r/o Old Police Line,
Shivajinagar,
Pune-5..... Appellant
- Versus -
The State of Maharashtra.... Respondent

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S/Shri M.S. Mohite with Amol A. Deshpande
for the Appellant in Appeal No.25/1994.
S/Shri Uday Warunjikar with Nitesh Bhutekar
for the Appellant in Appeal No.35/1994.
Shri Y.M. Nakhwa, Addl. Public Prosecutor,
for the State in both Appeals.

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2 APEAL-JG-25.94

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CORAM: R.C. CHAVAN, J.

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DATED: APRIL 21, 2011

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ORAL JUDGMENT:

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1.These two appeals have been filed by
two Police Constables who had been convicted by
the learned Addl. Sessions Judge, Pune for the
offences of rape, abetment to commit rape and
abduction and sentenced to suffer various terms
of imprisonment ranging from five years to ten
years. The appellant in Criminal Appeal No.35
of 1994 was also convicted for the offence
punishable under Section 377 of the Indian
Penal Code (for short, �IPC�) and sentenced to
suffer RI for five years.

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2.Facts which are material for deciding
these appeals are as under:

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The prosecutrix had been abandoned by
her husband as well as the other members of her
family and was living virtually on the streets.
On 1-4-1992 she claims to have gone to Chandni
Chowk area in search of some work. There, in
the afternoon, she met the two Police
Constables who took her to a deserted house on
the pretext of finding a seat for her in a bus

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3 APEAL-JG-25.94

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for going to Deccan Gymkhana area. There
appellant Machhindra is alleged to have first
performed oral sex with the victim and then
raped her in spite of her protestations.
Appellant Balu was possibly standing guard
outside the deserted house where this incident
took place. Some persons working at a hotel
nearby claimed to have heard shouts of a woman
and therefore rushed to the deserted house and
one of those persons, on finding the victim
being raped, took away the trousers of
appellant Machhindra. Appellant Machhindra got
up, put on his undergarments, wrapped himself
of in a sari which had been left by the victim
and then both the appellants are alleged to
have blown whistles to attract the attention of
the police van which was patrolling nearby. The
police party seems to have picked them up and
taken them to the hotel. The manager of the
hotel had also informed the nearby police
station on telephone. A police party from the
police station had also come. The victim
identified the appellants. The victim�s report
was taken. The clothes of the victim as well as
the appellants were seized. The victim and the
appellants were sent for medical examination.
Biological samples of the victim and the
appellants were taken. Incriminating articles

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4 APEAL-JG-25.94

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were sent to the forensic science laboratory,
statements of witnesses were recorded and on
completion of the investigation, charge-sheet
was sent to the Court of Judicial Magistrate,
First Class, Pune, who committed the case to
the Court of Sessions at Pune.

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3.To the charge of offences punishable
under Sections 366 and 376(2)(a) r/w Sections
109, 377 and 506 of the IPC framed against the
appellants, they pleaded not guilty and claimed
to be tried. In its attempt to bring home the
guilt of the appellants, the prosecution
examined in all thirteen witnesses. After
considering their evidence in the light of
defence of denial, the learned Judge held
appellant Machhindra guilty of the offence of
rape as well as of unnatural sexual
intercourse,abductionandcriminal

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intimidation, and sentenced him to suffer RI
for ten years for the offence punishable under
Section 376, five years each for the offence
punishable under Sections 366 and 377 and RI
for one year for the offence punishable under
Section 506 of the IPC. He also sentenced him
to pay fine for each of the above offences. He
also convicted appellant Balu for the offences
punishable under Sections 366 and 506 of the

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5 APEAL-JG-25.94

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IPC and also for the offence punishable under
Section 376(2)(a) r/w Section 109 of the IPC
and inflicted similar sentences upon appellant
Balu. Aggrieved thereby, the appellants are
before this Court.

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4.I have heard the learned counsel for
the respective appellants and the learned APP
for the State. With the help of learned counsel
I have gone through the entire evidence on the
record. PW-1 Shrirang is a witness to the
seizure of clothes, including the sari which
appellant Machhindra was wrapped in when
accosted by the police party. PW-2 Yanappa is a
witness to the seizure of the victim�s clothes.
PW-3 Ashish, manager of the hotel, is a witness
to the spot panchnama drawn by the police. PW-4
Sunil and PW-5 Datta are the persons who were
working at the hotel and had witnessed the
incident on being attracted by the cries of the
woman. PW-6 PSI Walture had come to the hotel
on receiving a telephone call from the hotel
manager after the incident. PW-7 PSI Babar was

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in the patrolling police van which was
attracted by the whistles blown by the
appellants. PW-8 is the prosecutrix herself.
PW-9 Tanksale, Circle Officer in the Revenue
Department, drew the sketch of the spot on the

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6 APEAL-JG-25.94

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requisition of the police, PW-10 Dr. More had
examined the prosecutrix and PW-12 Dr. Ughade
had examined the appellants. PW-11 Walvekar is
also a manager of the hotel and PW-13 PI Shinde
conducted the investigation.

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5.The learned counsel for the appellants
submitted that the entire incident is a figment
of imagination and the appellants have been
falsely implicated in the offence, possibly
because they had noticed nefarious activities
of the prosecutrix and her friends. They
pointed out that the prosecutrix was a vagrant
and had no means of livelihood. There was no
business for the prosecutrix to be in the area
at the relevant time and she had been propelled
to lodge a false report at the instance of her
friends. The learned APP submitted that there
would be no occasion for a woman to falsely
accuse a policeman of such a ghastly act and
also submitted that it would be difficult to
imagine young boys accusing a policeman or
framing a policeman because they were found
doing any indecent activities. He submitted
that the very fact that one of the appellants
was found wrapped up in the sari of the
prosecutrix after the incident shows that the
incident narrated by the prosecutrix is

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APEAL-JG-25.94

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truthful.

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6.It may be useful to recount as to what
the prosecutrix had stated about the incident.
She stated that she had been deserted by her
husband since about three years prior to the
incident. On 1-4-1992 she had left in search
for some work for herself and had come to
Chandni Chowk area at about 3:30 p.m.. Though
she could not get any work there and should
have ordinarily returned to a more secure
location from the deserted place at Chandni
Chowk and though buses were available every
twenty minutes to enable her to return, she
seems to have loitered in the area till 8:00
p.m. for no apparent reason. She claims that
the two appellants told her that they would
manage a seat for her in the bus and that she
should accompany them. She claims to have
declined their offer but agreed to accompany
them since they threatened to prosecute her.
She states that she was then taken to a
deserted house near a hillock. While appellant-
Balu remained outside the house, appellant
Machhindra took her inside, made her lie down,
undressed himself suitably and committed
unnatural sexual intercourse upon her by asking
her to perform oral sex. He is then alleged to

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8 APEAL-JG-25.94

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have also committed rape upon the prosecutrix.
She was asking him to leave her. She claims
that 4-5 boys came there, saw the incident, and
on seeing those boys appellant Machhindra got
up but one of the boys ran away with the
trousers and belt of appellant Machhindra. She
claims to have accompanied those boys to the
hotel and thereafter the hotel manager called
the police. She stated that thereafter
appellant Machhindra came to the hotel wearing
his shirt and her sari wrapped around his
waist. In cross-examination she curiously
stated that it was her problem how to earn
money or to maintain herself and stated that if
she was paid money, she would have no complaint
or grievance against the accused persons. She
admits that when the appellants took her from
Chandni Chowk towards the deserted house, she
did not raise any cries or try to run away. She
denied the suggestion that she had illicit
intimacy with PW-4 Sunil and PW-5 Datta or that
the police had seen her with those boys in the
room and therefore she ran away from the room
along with those boys. She admitted that after
the incident she had been referred to a
psychiatrist but denied having told the
psychiatrist of having maintained herself from
selling her person or having undergone

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9 APEAL-JG-25.94

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termination of pregnancy four or five times in
the past. The victim had also admitted in her
cross-examination that after her experience of
trying to secure work for her maintenance, she
had come to know that it was not possible for
her to maintain herself by doing some work. She
had also stated that during the entire act, she
did not resist in any manner.

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7.PW-4 Sunil and PW-5 Datta are the eye-
witnesses who were at the hotel and claim to
have heard the cries of the victim. They state
that both of them took two different routes to
the deserted house and found the victim being
raped by appellant Machhindra. Sunil claims to
have carried away appellant Machhindra�s
trousers with belt which he had produced before
the police officers when they came to the
hotel. The learned counsel for the appellants
submitted that the evidence of these two
witnesses is thoroughly unreliable, since there
was no reason for them to be at the hotel, as
indicated by them. There is also some
discrepancy about whether a stall vending
beetle leaves which was nearby was open or not.
The learned counsel state that the entire story
of these two witnesses would show that they
were acquainted with the victim and it is only
therefore that the victim accompanied them to

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10 APEAL-JG-25.94

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the hotel. The learned counsel for the
appellants also pointed out to the fact that
PW-11 Walvekar, manager of the hotel, stated
that the victim was in the bathroom of the
hotel. The learned counsel submitted that this
normally happens when raid is conducted at
hotels and persons in nefarious business hide
themselves in bathrooms.

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8.As rightly pointed out by the learned
APP, all these things would pale out into
insignificance when contrasted with the fact
that appellant Machhindra had admittedly come
to the hotel wrapped in a sari. There would
have been no business for the appellant to drop
his pants to wrap himself in a sari if nothing
had happened in the deserted house nearby. The
claim of appellant Machhindra that he had gone
to answer an urgent call of nature and he had
kept his pants, which was taken away by a dog,
was rightly rejected by the learned trial
Judge, as in that case the other constable who
was with him would have definitely secured the
pants from the dog. In any case, it would have
been a mystery as to how the pants came to be
possessed by PW-4 Sunil, if it was taken away
by a dog. Therefore, there is no escape from
the fact that appellant Machhindra did indulge

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11 APEAL-JG-25.94

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in some sexual act with the victim.

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9.The learned counsel for the appellants
pointed out that the victim was in her menses
according to the evidence of PW-10 Dr. More. If
that was so, according to the learned counsel,
upon appellant Machhindra wearing his underwear
and wrapping himself of in the victim�s sari,
his underwear would have stains of some
menstrual blood. But the reports of the
forensic science laboratory, which are at
Exhibit-61, do not show presence of any blood
of the victim on the underwear of appellant
Machhindra. Therefore, the story of the victim
having been raped appears doubtful. This may be
consistent with the fact that appellant
Machhindra is also alleged to have committed
unnatural sexual intercourse with the victim.
Such an occasion should have arisen only upon
the victim telling the appellant that she was
in her menses or the appellant so finding.
Therefore, the conviction of appellant
Machhindra for the offence punishable under
Section 376(2)(a) of the IPC should not have
been recorded by the learned trial Judge.

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10. As far as the appellant Balu Ramdas
Sangle is concerned, he is not alleged to have

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12 APEAL-JG-25.94

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indulged in any sexual act. He is alleged to
have only accompanied appellant Machhindra.
There is nothing to show that appellant Balu in
any manner instigated or abetted the criminal
act of appellant Machhindra. Therefore, the
conviction of appellant Balu for the offences
punishable under Sections 376(2)(a) and 366 r/w
Section 109 of the IPC was thoroughly uncalled
for.

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11.As far as the offence punishable under
Section 506 of the IPC is concerned, except for
one allegation that the appellants threatened
the victim that they would prosecute her, there
is no other act of intimidation attributed to
the appellants. The victim seems to have
merrily accompanied the appellants from Chandni
Chowk to the deserted house. She is not shown
to be mentally deficient, as could be seen from
the psychiatrist�s report at Exhibit-54.
Therefore, the conviction of the appellants for
the offences punishable under Sections 366 and
506 of the IPC also should not have been handed
down.

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12.In view of this, Criminal Appeal No.25
of 1994 is allowed and the appellant Balu
Ramdas Sangle is acquitted of the offences

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13 APEAL-JG-25.94

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punishable under Sections 376(2)(a), 366, 376
r/w Section 109 and Section 506 of the IPC. His
conviction for those offences and the sentences
imposed upon him are set aside. His bail bonds
stand cancelled.

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13.Criminal Appeal No.35 of 1994 is
partly allowed. The conviction of the appellant
Machhindra Kannusingh Chavan for the offence
punishable under Sections 376(2)(a), 366 and
506 of the IPC is set aside. His conviction for
the offence punishable under Section 377 of the
IPC is maintained.

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14.This takes me to the question of
sentence. The appellant Machhindra had been
sentenced to RI for five years with fine of Rs.
300/- for the offence under Section 377 of the
IPC by the learned Additional Sessions Judge.
The learned counsel for the appellant is right
in submitting that the incident occurred on
1-4-1992, that is almost 19 years ago. The
conviction was handed down on 26-11-1993, that
is about 18 years ago. The appellant was in
jail throughout the trial, that is from
25-8-1992 till he was bailed out pursuant to
the orders of this Court on 1-2-1994, that is
for almost one-and-half year. The learned APP

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14 APEAL-JG-25.94

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submitted that this cannot be a consideration
for reducing the sentence imposed upon the
appellant since the appellant had abused his
position as a police constable and had
disgraced the Department by indulging in such a
dastardly act. He submitted that therefore the
sentence of RI for five years imposed upon him
for the offence punishable under Section 377 of
the IPC should be maintained.

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15.Considering the genesis of the act and
the fact that the appellant has been convicted
almost 18 years ago for an incident which took
place 19 years ago and has been living in the
shadow of the conviction all along and must
have lost his job in the process, it may be
appropriate to reduce the sentence to that
already undergone, which is upwards of one-
year-and-six months with increase the fine from
Rs.300/- to Rs.10,000/-, or in default to
suffer RI for a period of three months. If the
appellant does not pay the amount of fine
within four weeks, the learned Sessions Judge
would take the appellant in custody and send
him to suffer RI for three months in default of
payment of fine. If the amount of fine is paid

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15 APEAL-JG-25.94

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within the period stipulated, his bail bonds to
stand cancelled.

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 Sd/-
 (R.C. CHAVAN, J.)

Machhindra Kannusingh Chavan v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Machhindra Kannusingh Chavan v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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