DASHRATH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present application has been filed for suspension of sentence. The applicant has been convicted in Sessions Case No.11 of 2016 by learned Additional Sessions Judge, Amalner on 20-01-2020. He has been convicted for the offence punishable under Section 376(2)(j) of the Indian Penal Code and thereby sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- (Rupees Five Thousand only), in default, to suffer rigorous imprisonment for one year. Further, he has been convicted for the offence punishable under Section 376(2)(i) of the Indian Penal Code and thereby sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- (Rupees Five Thousand only), in default, to suffer rigorous imprisonment for one year. Further, he has been convicted for the offence punishable under Section 354-B of Indian Penal Code and thereby sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- (Rupees Two Thousand only), in default, to suffer rigorous imprisonment for six months. Further, he has been convicted for the offence punishable under Section 452 of the Indian Penal Code and thereby sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.3,000/-(Rupees Three Thousand only) in default, to suffer rigorous imprisonment for six months.

(2.) Heard learned Advocate Mr. R. M. Deshmukh for applicant, learned APP Mr. S. W. Munde for respondent No.1 - State and learned Advocate Mr. A. R. Hange for respondent No.2 - victim.

(3.) It has been vehemently submitted on behalf of the applicant/appellant that the learned trial Judge has not appreciated the evidence properly. He failed to consider that the victim is mentally challenged and though she has been examined, she has made material improvements. She has clearly stated that she was taught by police. Informant is her mother, however, her testimony would be hearsay taking into consideration the fact that she was not present in the house. Her testimony has been tried to be connected to the offence on the basis of circumstance told by her that when she was going towards her work for cutting onion crops from the field of one Girdhar Conductor, she met accused near temple of Mariaai. She had a dialogue with accused which indicated that the daughter of the informant is alone in her house. In fact, the house of the informant is situated in a thickly populated area. Nobody else has been examined to prove that they had seen the accused going in the house of informant. Nobody had heard shouts of the victim. Though it is contended that the rape was forceful, yet, the medical evidence would show that there was no physical external injury to the private part of the victim. He also submitted that the examination-in-chief of most of the witnesses have been recorded as per Section 309 of the Code of Criminal Procedure. Though an opportunity has been given to cross examine all the witnesses later on by the learned Judge, yet, a complete fair trial appears to have not been given to the accused. Therefore, for all these points, the appellant has good case in appeal when the appeal is admitted and it is not likely to be taken for final hearing in near future. The applicant who was on bail almost throughout the trial, except from 27-01-2016 to 01-03-2016 and 27-11-2018 to 18-03-2019, he deserves to be released on bail by suspending the sentence.