Dismissed

Premnath Vishvanath Kokate v. State of Maharashtra

Bombay HC24 Nov 2011APEAL/399/1998

Case brief

AI extract

What is this about?

Defended a rape conviction under IPC 376. The High Court upheld the trial court's judgment, finding the victim's testimony credible supported by semen stains on her petticoat, and confirmed the sentence of rigorous imprisonment and fine.

What did the court decide?

The appeal was dismissed and the conviction and sentence under Section 376 IPC were confirmed. The appellant was ordered to surrender on bail.

Premnath Vishvanath Kokate Vs State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.399 OF 1998

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Premnath s/o Vishvanath Kokate,
Age 35 years, Occ. Agriculture,
r/o Salgara (Maddi), Tq. Tuljapur,
Dist. Osmanabad

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APPELLANT

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VERSUS

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The State of Maharashtra

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RESPONDENT

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Shri. M.D.Shinde, Advocate for the appellant
Shri. K.S.Patil, Advocate for the respondent

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CORAM : R.Y.GANOO, J.
DATE : 24.11.2011

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JUDGMENT :

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1.The appellant faced trial under section 376 of

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the Indian Penal Code in Sessions Case No. 55/96 in the
Court of learned Sessions Judge, Osmanabad. The learned
Sessions Judge, Osmanabad, by judgment and order dated
19.11.1998 convicted the appellant under section 376 of
Indian Penal Code and sentenced the appellant to suffer

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rigorous imprisonment for 3 years and to pay fine of
Rs.500/-. It was also ordered that in default of
payment of fine, the appellant should undergo rigorous
imprisonment for 3 months. It was also ordered that out
of fine amount, a sum of Rs.300/- be paid to the
complainant Nirmala w/o Ambadas Rankhamb by way of
compensation. This order and judgment dated 19.11.1998
is challenged by this appeal by the original accused.

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2.The prosecution case in gist is as under.

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P.w.no.1 Nirmala is a labourer and is required

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to go near percolation tank to attend to her job.
According to prosecution, in the morning of 06.03.1995,

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she left her house situated in village Salgara (Maddi),
Tq. Tuljapur to go to percolation tank. According to

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the prosecution, on the said date she had gone alone.
According to the prosecution, as Nirmala reached nearby

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the field of Vitthal Sidram, the appellant caught her
and had sexual intercourse with her in the bed of nala
against her wishes. He then left towards his village.

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Nirmala attended her work and in the evening she went to
the house of Limbaji Kokate, brother of the appellant to
inform him. Limbaji was not present at home but
Limbaji's wife Gajarabai was present. Nirmala narrated
the incident of rape near nala to Gajarabai. Gajarabai
assured her that she would inform her husband about the
sexual assault on Nirmala. On 06.03.1995, Nirmala did
not file any police complaint. She went to bed in the
space out of her hut alongwith her son. According to
prosecution, at midnight, the appellant approached
Nirmala and much against her wishes committed sexual
intercourse with her. Nirmala thereafter approached the
police at Naldurg in the morning of 08.03.1995 and
lodged F.I.R. The said F.I.R. is at Exh.12. Police
Head Constable Mr. Suresh Pawar recorded the said F.I.R.
and registered crime vide F.I.R. no.40/95 under section
376 of Indian Penal Code against the appellant.
Investigation was conducted. Statements of witnesses
were recorded. Scene of offence panchanama in regard to
two places where the sexual intercourse alleged to have

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been committed by the appellant were recorded being
exhs. 13 and 23. Nirmala was sent for medical
examination on 09.03.1995. The doctor attached to
General Hospital, Osmanabad examined her and gave a
report immediately on 09.03.1995 in the evening. The
petticoat and saree of Nirmala were seized under
panchanama exh.21 on 09.03.1995. Those articles were
sent to C.A., who gave his report dated 06.07.1995. He
reported that on petticoat semen is found and no blood
stains were found. On saree, no semen or blood stains
were found. Vaginal swab as well as pubic hairs were
also sent to C.A. and no semen was found on these
articles. These samples were taken on 09.03.1995 i.e.
two days after the incidents.

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3.After carrying out necessary investigation,
chargesheet came to be filed and the case was committed
to the Court of Sessions. The learned Sessions Judge,
Osmanabad framed charge against the appellant on
30.06.1998 at Ex.6 under section 376 of the Indian Penal

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Code for having committed an offence of rape on
06.03.1995 as well as in the night of 07.03.1995. The
appellant pleaded not guilty and claimed to be tried.

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4. The prosecution examined following witnesses.

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1. P.w.no.1 Nirmala Rankhamb, the complainant

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2. P.w.no.2 Pradip Rankhamb is a young son of Nirmala p.w.no.1 who is said to have seen the incident of rape which had taken place in the night of 07.03.1995.

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3. P.w.no.3 is Mohan Ghuge, a panch regarding seizure of petticoat and saree.

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4. P.w.no.4 Anant Patil is a panch regarding scene of offence at exh.13.

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5. P.w.no.5 Suresh Pawar is Police Head Constable B.No. 739, who recorded F.I.R. at exh.12 and registered crime vide C.R.No.40/95.

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6. P.w.no.6 Navnath Dhole is a P.S.I. who carried

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out investigation and filed chargesheet.

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5.I have heard Shri.M.D.Shinde, learned Advocate

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for the appellant and Shri.K.S.Patil, learned A.P.P. for
the State. Shri.Shinde, learned Advocate for the
appellant took me through entire record. He pointed out
that Nirmala P.w.no.1 and appellant were residing very
close to each other and were on friendly terms.
According to him, evidence of Nirmala shows that she had
consented for sexual intercourse on both the occasions.
Learned Advocate Shri. Shinde submitted that though
according to Nirmala, first incident is alleged to have
taken place on 06.03.1995, no F.I.R. was filed on the
very day and F.I.R. came to be filed on 08.03.1995.
According to him, there is delay in filing F.I.R. Shri.
Shinde, learned Advocate for the appellant had taken me
through the notes of evidence of Nirmala and had
submitted that first incident is said to have taken
place in open space i.e. in the bed of nala. According
to him, it is improbable that a person would have sexual

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intercourse in such a public place. He, therefore,
submitted that it is impossible that appellant indulged
in the sexual intercourse on 6.3.1995. In so far as
incident of 07.03.1995 is concerned, he had submitted
that it is improbable that in the night, the appellant
would go to the house of victim and indulge in a sexual
intercourse. Learned Advocate Shri. Shinde had
submitted that Nirmala, in consultation with her
husband, had created false story and had falsely
implicated the appellant. Shri. Shinde, learned
Advocate had submitted that though the prosecution
claims that Pradeep was an eye witness to the incident
of night of 07.03.1995, said Pradeep is not narrating in
clear terms as to what he had seen and he is narrating
what was told by his mother to him. According to him,
the mother of Pradeep created a story and told Pradeep
accordingly to prove her case. He submitted that
evidence of Pradeep p.w.2 should be discarded.

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6.Shri. Shinde, learned Advocate submitted that

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no blood stain is found on the clothes of Nirmala which
falsifies the case of the prosecution. He further
submitted that the appellant was not subjected to
medical examination and this is an important lacuna in
the investigation and to that extent benefit of doubt
should go to the appellant.

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submitted that the doctor who examined Nirmala has not
been examined and therefore, medical certificate issued
by doctor attached to General Hospital, Osmanabad should
not be treated as a document properly proved and
therefore, medical certificate issued by the General
Hospital, Osmanabad, should not be accepted. The
learned Advocate for the appellant, therefore, submitted
that on consideration of his submissions, this Court
should acquit the appellant.

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8.Shri. K.S.Patil, learned A.P.P. for the State

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opposed the submissions. He pointed out that words of

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Nirmala have gone unchallenged so far as overt acts of
having sexual intercourse with Nirmala by the appellant
are concerned. He submitted that there is no effective
cross examination to dislodge the evidence of Nirmala as
regards allegations of sexual intercourse. He further
submitted that Limbaji's wife was informed about the
incident and that is how Nirmala thought it fit to
attend to the matter. He pointed out that Nirmala has
stated in the cross examination that she was afraid of

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the appellant and therefore, she did not lodge F.I.R.
with the police on 06.03.1995. Learned A.P.P. Shri.

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Patil had submitted that after the incident of
07.03.1995, Nirmala came forward and lodged F.I.R. He,
therefore, submitted that conduct of Nirmala should be
treated as a conduct of a lady who was subjected to
sexual assault. He submitted that Nirmala must have
taken some time to get out of shock. Learned A.P.P.
Shri. Patil submitted that words of Nirmala should be
accepted in any case as regards incident of 07.03.1995
as the learned Sessions Judge, Osmanabad, has

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disbelieved the incident of 06.03.1995. Learned A.P.P.

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Shri. Patil had submitted that finding of semen on
petticoat of Nirmala is a circumstance against the
appellant as the clothes were taken charge on 09.03.1995
itself. He submitted that though blood stains were not

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found on petticoat and saree, that does not affect the
case of the prosecution. In so far as the evidence of

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P.w.no.2 Pradeep, learned A.P.P. Shri. Patil had
submitted that at the time when the evidence was
recorded he was a boy of 13 years. Said evidence was
recorded in November, 1998. The incident had taken
place in 1995 which means at the time when the incident

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had taken place he was a boy of 10 years. He pointed
out that evidence of Pradeep goes to show that the
appellant was present at the night of 07.03.1995 in the
house of Nirmala. He further submitted that being the
mother, Nirmala was initially finding it difficult to

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tell Pradeep, a boy of 10 years as to what happened.
Ultimately Nirmala told Pradeep a gist of the incident
in a very modest manner i.e. to say she told Pradeep

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that the appellant had removed her saree and had sat on
her body. P.w.no.2 Pradeep had seen Nirmala weeping.
According to Shri. Patil, learned A.P.P. this factor
goes against the appellant.

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9.Learned A.P.P. Shri. Patil had, therefore,
submitted that looking to entire case and appreciating
the evidence in the light of his submissions, this Court
should accept the case of the prosecution. He further
submitted that the findings given by the learned
Sessions Judge, Osmanabad that the appellant committed
rape on Nirmala should also be accepted by this Court.
He, therefore, submitted that the impugned order dated
19.11.1998 should be confirmed by this Court.

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10.After having considered the rival submissions,
I am inclined to dismiss the appeal and confirm the
judgment and order dated 19.11.1998 passed by the
learned Sessions Judge, Osmanabad.

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11.Firstly coming to the evidence of Nirmala.

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Nirmala may be staying nearby the appellant but there is
nothing to show that she had consented for sexual
intercourse. Her evidence shows that she was subjected
sexual intercourse much against her wishes. In the

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entire evidence of Nirmala, there is no material to
disbelieve her evidence and no omissions or
contradictions have been brought on record to disbelieve
the evidence given by her. Nirmala visited the house of
Limbaji and narrated the first incident. She did not go
to the police station on 06.03.1995 because she was
scared and this explanation was found in the examination
in chief. When the incident of 07.03.1995 took place,
Nirmala went to police station on 08.03.1995 and lodged
F.I.R. It is pertinent to note that Nirmala is a

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married lady and had 2 children. In such a situation,
there is no question of Nirmala coming out with a false

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case solely to implicate the appellant. A married lady
would not stake her married life by filing a false
complaint. In my view, word of Nirmala has to be

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accepted and it is required to be observed that
prosecution has been able to prove that the appellant
committed rape on Nirmala.

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12.It is true that the medical examination of

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Nirmala was conducted by the Doctor at General Hospital,
Osmanabad. Medical certificate has been marked as
exh.15 and the concerned Doctor has not been examined.
The said document is marked without any objection. It
is true that Medical Officer has not been examined but
as the medical certificate has been marked, same can be

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read. It is true that the medical certificate does not

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show any sign of Nirmala having suffered injuries
however that by itself is not sufficient to discard the
oral testimony of Nirmala p.w.no.1. I have already

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indicated that Nirmala is a married lady and that she
showed courage to go to police soon after the incident

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of 07.03.1995 had taken place. Hence, though the

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medical certificate does not show any signs of injury to
Nirmala that by itself does not mean that Nirmala had

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consented for sexual intercourse.

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13.The petticoat seized on 09.03.1995 shows semen
stains and it is detected as human. Finding of the
semen stains on the petticoat is a factor in favour of
the prosecution. No semen stains are found on saree.
This would not be against prosecution. Finding of semen
on petticoat is a factor which supports the case of the
prosecution and to that extent, the learned Sessions
Judge was right in coming to the conclusion that the
appellant had committed sexual intercourse on Nirmala
without her consent.

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14.I have perused the evidence of Suresh, a police
constable, who had recorded F.I.R. Some effort was made
by the appellant to bring on record two omissions
regarding Nirmala having gone to the field alone and
appellant had come from the field to Vitthal Sidram.
Since learned Sessions Judge discarded the incident of
06.03.1995 these omissions pertain to the said incident,

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these omissions have no relevance so far as this
appellant is concerned.

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15. In view of aforesaid discussion, I am inclined
to observe that the stand of the appellant that he
should be acquitted cannot be accepted. The learned
Sessions Judge has considered the entire evidence and
has come to the conclusion that the appellant committed
sexual intercourse with Nirmala at least on one occasion
i.e. in the night of 07.03.1995. This incident having
been proved, the learned Sessions Judge was right in
convicting the appellant under section 376 of Indian
Penal Code.

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16.The learned Advocate Shri. Shinde for the

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appellant had submitted that if the Court comes to the
conclusion that appeal is required to be dismissed, he

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had prayed for mercy for the appellant. He had
submitted that the incident is of 1995 and therefore,
lenient view be taken. The learned A.P.P. for the State

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opposed this prayer. After considering the arguments on
the question of sentence, I am inclined to observe that
as it is the learned Sessions Judge has shown mercy on
the applicant, I do not think that this Court should
reduce the sentence imposed upon the appellant. To that
extent the argument advanced on behalf of appellant is
rejected. For the reasons mentioned aforesaid, following
order is passed to dispose of this appeal.

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ORDER

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1. The appeal is dismissed.

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2.The judgment and order dated 19.11.1998
passed by the learned Sessions Judge,
Osmanabad in Sessions Case No. 55/96
thereby convicting the appellant under
section 376 of Indian Penal Code and
sentencing the appellant for imprisonment
as well as fine as set out in the order
dated 19.11.1998 is confirmed.

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3.As of today, the appellant is on bail.
Since the order of sentence is confirmed
and since the appellant will have to
undergo imprisonment, the appellant shall
surrender to his bail. Bail bonds of the
appellant stand cancelled. The appellant
shall surrender to his bail on or before
22.12.2011. If he fails to surrender on
or before 22.12.2011, the learned Sessions
Judge, Osmanabad, shall issue appropriate
warrant to arrest the appellant to undergo
unserved imprisonment.

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vsm/criappeal399.98

Premnath Vishvanath Kokate v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Premnath Vishvanath Kokate v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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