SHAIKH FEROZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge in this appeal is to judgment rendered in Sessions Case No.3/ 2009 by learned Additional Sessions Judge, Basmathnagar, whereby and where under the appellant came to be convicted for offence punishable u/ss.376 and 363 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for seven years along with fine of Rs. 10,000/- in default to suffer rigorous imprisonment for six months on first count and rigorous imprisonment for three years and to pay fine of Rs.500/- in default to suffer rigorous imprisonment for three months on the second count.

(2.) The prosecution case, as unfolded during trial before the Court of Sessions, is that the prosecutrix - (PW 2) was a school going girl at the relevant time and was minor, aged about 14 years and 9 months. She used to reside with her parents in Tirupati Nagar locality behind S.T. Stand at Basmath. Her father is illiterate. He used to earn livelihood by doing manual work. On 12.2.2008, the prosecutrix alone was in the house. Her father had gone to attend the manual work as a daily wager, whereas her mother had gone to attend a marriage at outstation along with her brother. When they returned home, they noticed that the prosecutrix was missing from the house. Her father lodged a missing report after about one week when he could not locate her in spite of hectic search. The appellant had taken away the prosecutrix from lawful guardianship of her father in the relevant noon. He allured her to go with him under false pretext that he will marry her. He, however, did not marry her though she repeatedly asked him to marry and fulfill the promise. He committed sexual intercourse with her at Devas (M.P.) where both of them had gone. Ultimately, she was located during course of investigation and was brought back to Basmath. Her medical examination revealed that she was no more virgin. It was noticed by the medical officer that the prosecutrix was subjected to sexual intercourse. On the basis of material gathered during the course of investigation, the appellant was charge-sheeted for the offences punishable u/ss.363 and 376 of the Indian Penal Code.

(3.) The prosecution examined in all 10 witnesses in support of its case. The learned Sessions Judge held that the prosecutrix was minor at the relevant time and, therefore, her consent for sexual intercourse was not a lawful consent as such. The learned Sessions Judge further held that the prosecutrix was subjected to sexual intercourse by the appellant under false promise of marrying her and, therefore, even though there was consent of the prosecutrix, yet it could not be deemed as lawful consent. The learned Sessions Judge came to the conclusion that the prosecutrix was taken away by the appellant from lawful guardianship of her father and that she was sexually exploited by him. In keeping with such findings, the impugned judgment of conviction and sentence is rendered by the Court of Sessions.