Criminal Appeal No. 61 of 1988. Case: Ashok Nivruti Desai Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 61 of 1988 |
| Counsel | For Appellant: Mrs. V. V. Thorat, Advs. and For Respondents: B. G. Vaidya, Advs. |
| Judges | V. Sahai, J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 376, 109 |
| Citation | 1995 CriLJ 826 |
| Judgement Date | July 27, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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Vide order dated 30-11 -1987 passed by the IInd Additional Sessions Judge, Satara in Sessions Case No. 38 of 1987 the appellants were convicted and sentenced as under:
Appellant No. 1 Ashok Nivruti Desai was convicted under Sections 363, 366, 376, and 506, IPC and Section 57 of the Bombay Children Act and was sentenced to undergo 4 years' rigorous imprisonment and a fine of Rs. 500/- and in default to further undergo 6 months' R. I. under the first count and to undergo 5 years' R. I. and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo 6 months' R. I., separately, under the second and third counts. However, no separate sentence was awarded to him under the 4th and 5th counts.
Appellant Nos. 2 and 3 viz. Pandurang Bapu Gaikwad and Sou. Shantabai Pandurang Gaikwad, respectively, were convicted under Sections 376, read with 109, IPC and sentenced to undergo 3 years' R. I. and a fine of Rs. 500/- and in default to further undergo 6 months' R. I. In addition appellant No. 2 Pandurang Bapu Gaikwad was convicted under Section 354, IPC and sentenced to undergo 1 year's R. I. and to pay fine of Rupees 500/- and in default to undergo 3 months' R. I.
The substantive sentences were ordered to run concurrently.
The aforesaid convictions and sentences of the appellants have been challenged in this appeal.
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The prosecution case in brief as emerging from the evidence of the prosecutrix Sangita Bhagwat Kale (P.W. 5) is that the prosecutrix was staying with her parents at Shivangar, taluka Karad, District Satara. On 16th October, 1986 there was a quarrel between her and Sanjaya the daughter of her maternal uncle. Apprehending that she may be assaulted by her maternal uncle on that score she is alleged to have run away from her house taking with her Rs. 7/- and wearing 3 petty coats and two blouses. According to her she had decided to go to the house of her aunt in village Nandgaon. The prosecutrix took an S. T. bus from Chandoli for Karad. There she contacted a rickshaw driver (appellant No. 1 Ashok Nivruti Desai) and asked him about the rickshaw fare from Karad to Nandgaon. After the fare had been settled at Rs. 5/- she boarded the rickshaw for going to Nandgaon. It is alleged that appellant No. 1 took her in his rickshaw up to Dhebewadi-Phata and there he stopped his rickshaw and also took his friend in the rickshaw who also wanted to go to Nandgaon. It is stated that the appellant No. 1 took his rickshaw near Krishna Hospital where the aforesaid person got down. At about 6 p. m. the prosecutrix and appellant No. 1 reached Gajanan Mandir and leaving the prosecutrix in the rickshaw the appellant No. 1 went to a hut and after some time came back with a bag. Naturally, the prosecutrix enquired from him as to why he had brought her there and on that he told her that he would drop her to her aunt's house in Nandgaon. Thereafter appellant No. 1 took the prosecutrix to village Enake. There at a hotel he asked her to take some refreshments but she declined, saying that she only wanted a glass of water. He brought a glass of water from the aforesaid hotel and the prosecutrix drank it.
From Enake the appellant No. 1 took the prosecutrix to the bank of river Wang. At about 7 p. m. both of them crossed the river on foot. All along the prosecutrix was believing that the appellant No. 1 was taking her to Nandgaon. There after the appellant No. 1 told the prosecutrix that he belonged to the Maratha community and disclosed his name to her. He also asked her as to what her name was. Then he took a black thread from his neck and asked the prosecutrix to put it on her neck. It is said that he wanted that the prosecutrix should marry him and tied the black thread over her neck. He also alleged to have told her that she should treat this black thread as 'Mangalsutra'. Thereafter the appellant No. 1 took out a sheet from his bag, caught hold of the prosecutrix and forced her to lie down on the aforesaid sheet. Then he is alleged to have forced her to sleep by his side and threatened her that in case she did not relent he would commit her murder. The prosecutrix refused to sleep by his side and the appellant again forced her to lie down on the aforesaid sheet. Thereafter he took off his clothes and those of the prosecutrix and committed rape on her. It is said that while he was committing rape on the prosecutrix she was weeping and crying. It is also said that the appellant pressed the breasts of the prosecutrix and threatened to kill her if she raised cries. In order to restrain her from raising cries he is alleged to have caught hold of her mouth. It is said that on account of this forcible sexual intercourse the petty coat of the prosecutrix and the bed sheet which the appellant No. 1 had spread became stained with blood and semen. On account of the extreme discomfort she started weeping but the appellant No. 1 is alleged to have assured her that he would take her to a doctor.
Thereafter the appellant No. 1 Ashok Nivruti Desai took the prosecutrix to a hut inside which were appellant Nos. 2 and 3, Pandurang Bapu Gaikwad and Sou. Shantabai Pandurang Gaikwad respectively. In the aforesaid hut appellant No. 3 is alleged to have served meals to the prosecutrix and appellant No. 1 Ashok. Thereafter the prosecutrix went to answer the call of nature but all along she was accompanied by appellant No. 3 Shantabai. It is said that she narrated the incident to her but she paid...
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