AJABRAO PRALHAD WARDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE order under challenge in this appeal was passed by the Second Additional Sessions Judge, Akola in Sessions Trial No. 82/97 whereby she convicted the accused who is the appellant herein, of the offence under section 376 (2) (f) read with section 511 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for six years and to pay a fine of Rs. 2,000/- or in default to suffer rigorous imprisonment for six months more.

(2.) THE case of the prosecution is as follows : a)At the relevant time, prosecutrix Savita D/o Harischandra Khandare was residing at Sirso with her parents, 2 sisters and 2 brothers. That time, the prosecutrix was aged 11 years. Her sisters and brothers were younger to her. On the date of incident i. e. on 8-12-1996, the parents of the prosecutrix had gone for agricultural work. Since it was holiday it being a Sunday, the school was closed and the prosecutrix was at home only. Around 1 to 2 p. m. the prosecutrix left the house for answering the call of nature. Her sisters and brothers were present at home only. The prosecutrix was accompanied by Anta and Pinki. All the three went for answering the call of nature by Hirpur road. After easing, all of them were returning home. The accused/appellant came and told the prosecutrix that her mother was calling her in the field of one Narayanbuwa. The prosecutrix thereupon went to the field of Narayanbuwa. On reaching there she gave a call to her mother, but her mother was not there in the field. So, the prosecutrix got scared and she started running from that place. The accused who had followed the prosecutrix in the field shut her month by pressing his hand on her mouth. Then he removed the knicker of the prosecutrix and pressed her breasts. He made her lie down. He also undid his clothes and inserted his penis in the vagina of the prosecutrix. The prosecutrix felt some gummy substance on her private part. She started shouting. The accused thereupon fled from the spot. The prosecutrix went home weeping. (B)On the arrival of her mother P. W. Gokarna at home in the evening, the prosecutrix narrated the incident to her. Gokarna informed the incident to the father of the prosecutrix. The father of the prosecutrix P. W. Harischandra saw the clothes of the prosecutrix and noticed the stains of gummy substance thereon. He also observed the private part of the prosecutrix and noticed that it had a swelling. He took the prosecutrix to the house of Police Patil, but the Police Patil was not available. He then took the prosecutrix to Police Station, Murtizapur and the prosecutrix lodged an oral report. P. S. I. Muley who was attached to Police Station, Murtizapur recorded the said report and registered the crime. (C)P. S. I. Muley referred the prosecutrix to Laxmibai Municipal Hospital, Murtizapur for her medical examination. He also seized the knicker of the prosecutrix which she was wearing. The accused was brought from the village and was arrested. The clothes from the person of the accused i. e. Payjama and knicker were seized from him. He was also referred for medical examination. (D)In the next morning, P. S. I. Shinde who had received the case papers from P. S. I. Muley for further investigation, visited the spot and drew the spot panchanama. He then seized the other clothes of the prosecutrix on the production thereof by her mother Gokarnabai from the house. He also seized one tumbler produced by Anta from the house which was taken by the prosecutrix at the time when she went for answering the call of nature. The further investigation was carried out. (E)The prosecutrix was medically examined by Dr. (Mrs.) Japsare on 8-12-1996 itself at 11. 30 p. m. on external examination, she did not notice any injury on the back, thigh or abdomen of the prosecutrix. On local examination, Dr. (Mrs.) Japsare noticed a slight edema on the middle aspect on right and left labia majora. She also noticed the tenderness of labia majora. The labia minora was normal and there was no injury on that part. Her hymen was also not ruptured. In the opinion of Dr. (Mrs.) Japsare, the edema with tenderness which was present with labia majora was due to forcible attempt of coitus. (F)On the same date, i. e. on 8-12-1996 at 10. 45 p. m. Dr. Sharma who was the Medical Officer attached to L. D. Hospital, Murtizapur examined the accused medically. The secondary sexual characters of the accused were well developed and he was found able to perform normal sexual act. No external injuries were noticed on his body, pubic area and penis. No signs of forcible intercourse were noticed. The smegma underneath the glans penis was absent. (G)The property i. e. garments of the prosecutrix as well as accused were forwarded to Chemical Analyser, Nagpur for examination. So also the vaginal swab and smear collected by the Medical Officer and the phials of the blood of the accused and prosecutrix were sent to Chemical Analyser for examination. The Chemical Analysers reports were received. The reports of examination in respect of garments show that the Payjama of the accused was stained with human blood. So also few semen stains were detected on the jangiya of the accused as well as body frock of the prosecutrix. However the group of blood of semen could not be determined as the results were inconclusive. No semen or spermatozoa was detected on the vaginal swab or smear. (H)On completion of the investigation, the accused was charge-sheeted.

(3.) THE learned Additional Sessions Judge, Akola framed the charge of the offence under section 376 (2) (f) Indian Penal Code. It was read over and explained to the accused and he pleaded not guilty. At trial the prosecution in all examined 15 witnesses on its side. The accused claimed enmity with the father and uncle of the prosecutrix. According to him, his father and the father and uncle of the prosecutrix named Harischandra and Vikram respectively were on rival terms with each other. He also pleaded that the father of the prosecutrix demanded money, but he refused to pay. For the above reasons, as per the accused, a false report came to be lodged against him and he was falsely implicated.