GOVIND SHRIPAT MARASKOLHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against judgment and order dated 05.04.2007 passed by Ad hoc Additional Sessions Judge1, Wardha in Sessions Trial No. 56/2006 whereby the appellant has been convicted for offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for seven years and fine in the sum of Rs.1000/, in default, to suffer R.I. for one month and for offence punishable under Section 363 of the Indian Penal Code and sentenced to suffer R.I. for two years and fine in the sum of Rs.500/, in default, to suffer R.I. for 15 days and for offence punishable under Section 366 of the Indian Penal Code and sentenced to suffer R.I. for three years and fine in the sum of Rs.500/, in default, to suffer R.I. for 15 days.

(2.) Briefly stated facts are :First informant (PW1) lodged report FIR No. 126/2004 at Deoli Police Station, District Wardha on 29.10.2004 at about 04:00 p.m., complaining about kidnapping of his daughter Ku. Manisha aged about 14 years by the accused Govinda aged about 25 years and offence under Sections 363 and 366 of the Indian Penal Code was registered and taken up for investigation by PSI Adhav (PW8). Victim was traced on 14.11.2004 and brought to Police Station and her statement was recorded which revealed incident that the accused had in the guise of promise to marry her had enticed the victim and had developed affair with her and taking disadvantage of her loneliness at her parent's home and raped her. On 20.10.2004 at about 07:00 p.m., the accused met her at village Fair and enticed her by auto rickshaw to Wardha, Majra and Sawad. They stayed at Sawad in the house of one Sudhakar Uike till 13.11.2004. The accused had regularly committed sexual intercourse with her. Afterward the accused had asked victim to bring money from her relatives. On 14.11.2004 at about 09:00 a.m., victim could meet her maternal uncle who was searching for her. She was then taken to nearest police station and then to Deoli Police Station. Thus offence punishable under Section 376 of the Indian Penal Code was added to report already lodged. The victim and the accused after his arrest were referred for medical examination. Upon completion of investigation the accused was charge sheeted before JMFC, 3rd Court, Wardha who committed the case to the Court of Session at Wardha. The charge was framed on 09.08.2006 to which the accused pleaded not guilty and claimed trial. The prosecution examined 11 witnesses to prove the case against the accused. The trial Court found the accused guilty and convicted the accused as above.

(3.) Learned Advocate for appellant submitted that the appellant/accused had love affair with the prosecutrix and she was consenting party to relationship. Learned Advocate further submitted that the prosecution has failed to prove that prosecutrix was a minor girl at the time of incident. It is contended that ossification test of prosecutrix was suppressed which if disclosed could have shown that prosecutrix was not minor girl. Learned Advocate for the appellant placed reliance upon ruling in the case of Shyam and another .v. State of Maharashtra, 1995 AIR(SC) 2169 to submit that if prosecutrix did not resist being taken away by the accused she must be held as willing party to go with the accused on her own in such cases conviction under Section 366 of the Indian Penal Code was held unsustainable. Reliance is then placed upon ruling in the case of Y. Srinivasa Rao .v. State of A.P.,1995 2 Crimes(AP) 451) to argue that the school certificate showing date of birth from the first school wherein prosecutrix was admitted is required to establish her date of birth. Reliance is then placed upon ruling in the case of Ashok Bhaurao Gaikwad .v. State of Maharashtra, 2009 AllMR(Cri) 131 to argue that prosecutrix who was on the verge of majority was well acquainted with the accused and had voluntarily accompanied with the accused to various places without raising alarm and made no attempt to flee from the company of accused. In such case in the absence of medical evidence to prove that she was below 16 years of age and while no injury was found on her private parts it was held that intercourse was voluntary and conviction was set aside. Learned Advocate for the appellant lastly submitted in view of ruling in the case of Yogesh Sitaram Dhage .v. State of Maharashtra, 2009 AllMR(Cri) 3676 that in case of love affair when prosecutrix was below 16 years of age the sentence was reduced to three years from seven years.