ISHWARBHAI RANCHODDAS PARMAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant is hereby assailing correctness, propriety and legality of the judgment and order passed by 3rd Additional Sessions Judge, Thane in Sessions case No. 769 of 1993, by which he convicted the appellant for offence punishable under provisions of Section 376 (2) (f) of Indian Penal Code and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for period of two months.

(2.) THE prosecution case, in brief, is that prosecutrix P. W. 1, Manisha was aged 5 years at the time of incident and had come to the hut of her grandmother Kamal Yadav, who was residing in hutment opposite United Carbon Company at Thane, Belapur Road, Thane. On 1-5-1993 at about 11. 30 a. m. when prosecutrix Manish was playing opposite the hut of her grand-mother P. W. 2 Kamal Yadav, the appellant called her to his hut, closed the door of the hut and made the prosecutrix to lie on a mattress. Thereafter, he removed her underwear, took her frock up and removed his underwear and started committing sexual intercourse with her. After his lust was fulfilled, the appellant asked her to go and therefore, prosecutrix returned to her house. She informed her grand-mother Kamal Yadav about the incident. Thereafter, Kamal Yadav took her to Rabale Police Station and gave the first information. In order to ascertain the truth of her complaint, Police Station Officer sent prosecutrix to Civil Hospital, where she was examined by Dr. Ubale, who noticed that there were injuries on Her Vagina and other parts of the body. Thereafter again Kamal and prosecutrix came back to Rabale Police Station and at about 5 p. m. or so, her F. I. R. was recorded. The investigation proceeded and ended in the adjudication of the trial in the nature of conviction and sentence.

(3.) SHRI Tiwari, Counsel appearing for the appellant pointed out the examination of the present appellant. More particularly, question No. 37 asked to the appellant which happens to be like this "dr. Bhausaheb has deposed that on examination he found that you were not in a position in performing sexual intercourse. What have you to say about this? Answer : - This is true. " He submitted that as this question was asked to appellant and he has given the answer that he was incapable of performing the intercourse, the trial Court should have acquitted the appellant but it did not do so and therefore, landed in error of law. Shri Tiwari submitted that on this count alone, the appellant is entitled to get acquittal but apart from that there are other questions which make the case of the appellant strong for acquittal.