STATE OF MAHARASHTRA Vs. GOPINATH TANAJI JADHAV

JUDGEMENT

(1.) BOTH these Criminal Appeals are directed against the judgment and order dated 4/5-1-1984 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 138 of 1982 and can be disposed of by this common judgment and order.

(2.) CRIMINAL Appeal No. 719 of 1985 is filed by the appellant/state of Maharashtra for enhancement of sentence of the respondent/original accused Gopinath Tanaji Jadhav, who was convicted for offence punishable under section 376 of Indian Penal Code but was awarded only one year R. I. Criminal Appeal No. 720 of 1985 is filed by the State of Maharashtra being aggrieved by the order of acquittal of the said accused Gopinath Tanaji Jadav vide the impugned judgment and order for offence punishable under section 366 of I. P. C.

(3.) FEW facts which are required to be stated are as follows: The prosecution case is that the respondent/accused Gopinath Tanaji Jadhav was residing at 216/8459, Kannamwar Nagar No. 1, Vikhroli (East), Mumbai- 400 083. Kumari Nanda, a minor girl of 15 years of age, was residing in the same locality in building No. 117/6133, Kannamwar Nagar No. II, Vikhroli (East), Mumbai- 400 083. The accused and the said Nanda were knowing each other as the accused used to visit his aunt Mrs. More, who was residing on the third floor of the building where Nanda was residing. Nanda was residing alongwith her brother Balkrishna. Gopinath used to visit Balkrishnas place also. As per the prosecution story, on 19-2-1981, Gopinath came to the residence of Nanda at about 10. 00 a. m. when she was alone in the house. He asked her to leave the house and accompany him. When she refused, the accused gave her threats that he would assault her brother Balkrishna, in case she did not accompany him. He also insisted that she should write a note in Marathi that she was leaving the house on her own accord and that she would be getting married with Gopinath. Accordingly, Nanda was constrained to write a note in Marathi and leave the said note at her residence while she left alongwith the accused Gopinath. The prosecution story further is that the accused then took Nanda to Ghatkopar in a hut belonging to one Danis Sabastine Saldanna, an acquaintance of Gopinath. Wife of Danis by name Vimal (P. W. 3) and her small child were there at that time. The accused and Nanda then stayed there. The accused committed rape on Nanda during that night. Nanda continued to stay in the same hut on the next day also and on the night of 20-2-1981 also, the accused committed rape on Nanda. On 21st also, the accused and Nanda were in the said hut till 2. 00 p. m. Then the accused took Nanda to the place of maternal uncle of the accused, who told him that Nandas brother had already lodged complaint against the accused with the police. The accused then took Nanda to Dadar and had a photo of both of them together taken at the studio of one Bhatia. At that time, Nanda had worn a saree belonging to Vimal (P. W. 3 ). On the same day, in the evening, the accused brought Nanda back to her residence at Kannamwar Nagar and left her there. Thereafter, on 23-2-1981, at about 11 a. m. , Nanda lodged a complaint with the police which came to be recorded as the First Information Report. Thereafter, police started investigating the matter. The accused came to be arrested. Nanda and the accused both were sent for medical examination. The police also attached the clothes of Nanda and the accused under panchanama. Panchanama of the place (hut) of Danis Saldanna was drawn. Thus, after completion of routine investigation, chargesheet came to be filed in the 14th Court of Metropolitan Magistrate, Vikhroli, Mumbai against the accused on 11-11-1981. The accused was committed to the Court of Sessions on 15-3-1982. Charge came to be framed against the accused under sections 366 and 376 of Indian Penal Code and under section 57 of the Bombay Children Act. The accused pleaded not guilty and claimed to be tried. The defence of the accused was that of the total denial. The prosecution, to prove its case, examined eight witnesses. P. W. 1 was one Mr. Dattatreya Tukaram Abhang, who was the headmaster of N. M. Joshi Marg Municipal Secondary School in which the victim girl Nanda was studying upto 8th standard. He produced the school Leaving Certificate (Exhibit 8) which showed the date of birth of Nanda as 10-9-1965. P. W. 2 was the victim girl Nanda herself. P. W. 3 was Mrs. Vimal Danis Saldana, in whose hut, Nanda and the accused were allegedly staying after Nanda left her brothers place on 19-2-1981. P. W. 4 was Mr. Balkrishna Raghu Jamsutkar, who was the brother of Nanda. P. W. 5 was Mr. Sadanand Suraj Bharti, who was one of the panch-witnesses in whose presence clothes of Nanda came to be seized. P. W. 6 was the photographer Mr. Bhatia, who produced the negative and photograph of Nanda and the accused taken together. P. W. 7 Mr. Bhimrao Brahmne was a Doctor, who examined Nanda on 23-3-1981 after the alleged incident of rape and so also Gopinath, on 5-3-1981. P. W. 8 Subhedhar was P. S. I. , attached to Vikhroli Police Station at the relevant time, who conducted investigation of this case and filed chargesheet in the Metropolitan Magistrates 14th Court, Vikhroli. The learned Additional Sessions Judge, after recording the evidence of the prosecution witnesses and after hearing both the sides, came to the conclusion that the prosecution had succeeded in establishing beyond reasonable doubt that the accused was guilty of offence punishable under section 376 of I. P. C. He accordingly sentenced the accused to one years rigorous imprisonment. He also convicted the accused for offence punishable under section 57 of the Bombay Children Act, 1948 and sentenced him to suffer R. I. for one year. Both the sentences were ordered to be run concurrently. The learned Additional Sessions Judge, however, acquitted the accused Gopinath of the offence punishable under section 366 of the I. P. C. The State felt aggrieved by inadequacy of sentence as far as the offence under section 376 I. P. C. was concerned. It also felt aggrieved because of the order of acquittal passed by the learned Sessions Judge as far as offence under section 366 of I. P. C. was concerned. Hence, these appeals.