ATUL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant is challenging the judgment and order dated 10.10.2009 in Sessions Case No. 102/2007 decided by the learned Sessions Judge, Chandrapur who was pleased to convict the appellant /accused for offence punishable under Section 376 of the Indian Penal Code ( in short "IPC") and sentenced him to suffer RI for a period of seven years and fine of Rs.3000/in default, to undergo further RI for six months. In addition, the appellant was also found guilty for offence punishable under Section 323 IPC and sentenced to suffer RI for one year ; and also for offence punishable under section 506 Part II and sentenced to suffer RI for five years and fine in the sum of Rs. 1000/- in default, RI for six months, with direction that sentences to run concurrently.

(2.) The prosecution case in brief is that: prosecutrix Mangala, aged about 17 years, was residing with her parents and younger sister Laxmi at Kantapeth Mul Dist. Chandrpaur. Since the appellant also hails from the same village, he was known to her. On 29.3.2007 at about 8.00 p.m. when the prosecutrix proceeded to answer nature's call, she noticed the appellant standing at the Pan kisok of Kashinath Sopankar. While prosecutrix sat to ease herself, the appellant came near the prosecutrix. According to her, there was moonlight at that time; and all of sudden the appellant came, caught hold her hands and said that he wanted to have sex with her and started pulling her under threat that if she will shout, he would kill her. He had also pressed her neck so that she did not shout. The appellant took her to the other part of the field where she had gone to answer nature's call and behind the compound bushes, forcibly removed her salwar and knicker and committed sexual intercourse with her. During the incident her bangles were broken and she had received abrasion on her body including her breasts. In the meantime, her younger sister happened to come at that place and seeing them, went to inform her father. Thereafter father of the prosecutrix accompanied with younger sister and her sister's husband, by name Praashant, came there, caught hold of the appellant and took him to the village. The prosecutrix then proceeded to Police Station along with her father and her sister's husband Prashant and lodged FIR (Exh.26), recorded by Head Constable Anandrao Bhagat (PW 5) on 30th March, 2007. Thus the crime was reported as No. 43/2007 under Sections 376, 506 and 323 IPC. The prosecutrix was referred to medical examination along with requisition letter (Exh.37). The investigation followed by Shri Mule Police Inspector (PW 6) who was attached to Mul Police Station who visited the spot and drawn spot Panchnama (Exh.59). Thus, the appellant was arrested on 30.3.2007 under Arrest memo (Exh.63); his clothes were seized under Panchnama (Exh.33) and was referred for medical examination at Rural Hospital Mul along with requisition letter Exh.41 ; whereas the medical certificate was issued as per Exh.41A. Clothes of the prosecutrix were also seized under Panchnama Exh.28. Muddemal articles were referred to C.A. with forwarding letter (Exh.48); pursuant to which three CA reports (Exh. 64 collectively) were received. The accused was charge-sheeted before the learned Judicial Magistrate, First Class on 18.9.2007 and was committed to the Court of Sessions on 9.10.2007. The trial Court framed charge against the appellant, to which the appellant pleaded not guilty and claimed to be tried. The prosecution examined as many as six witnesses and closed its case. The trial Court upon evidence led, proceeded to pass the order of conviction and sentence, as stated supra.

(3.) Learned Advocate appearing on behalf of the appellant in support of the appeal, vehemently submitted that the appellant ought to have been granted benefit of doubt on the ground that on the clothes of the prosecutrix semen stains were absent. According to him, had the prosecutrix been raped as stated by her, traces of semen would have been found on her clothes. It is further contended that according to the prosecutrix her sister had came at the scene of the incident and then returned back to call her father, who along with his son in law came there ; but she was not examined as prosecution witness and, therefore adverse inference ought to have drawn against the case of the prosecution for non-examination of the sister of the prosecutrix, who was material witness.