DIPAK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 28.3.2008 in Session Trial No. 54/2006 passed by the Additional Sessions Judge, Akola, convicting the appellant/original accused for the offence punishable under Section 377 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and fine of Rs. 1,000/- (Rupees One Thousand Only) in default rigorous imprisonment for one month and further convicting him for the offence punishable under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing him to suffer imprisonment for life and fine of Rs. 5,000/- (Rupees Five Thousand Only), in default simple imprisonment for fifteen days, the appellant above named has preferred this appeal. In support of the appeal, the learned Counsel for the appellant made the following submissions.

(2.) Per contra, the learned A.P.P. supported the impugned judgment and order. She relied on the evidence tendered by the prosecution. She also argued that the evidence of the mother of the victim is fully corroborated by the F.I.R., which was immediately lodged so also the medical report and there is no reason why the prosecution case should be disbelieved on that score. She, thus, prayed for dismissal of the appeal.

(3.) We have gone through the entire evidence that was adduced by the prosecution before the trial Court. We have heard learned Counsel for the rival parties. P.W. 3-Sadhana Solanke, the mother of the victim lodged complaint with the Police Station, Murtizapur on the next day of the incident, which took place on 17.3.2004. In her deposition before the trial Court, she clearly deposed that on the date of the incident in the night while she was cooking food, her 11 months' daughter Pinky was weeping in the cradle when the appellant came and told her that he would take her care. Accordingly, he took her outside and returned back at 11:00 p.m. with the girl when she was crying loudly and continued to cry for the whole night. In the morning, when she examined her daughter, she found some blood while washing her anus and that the anus was reddish, inflamed and torn. On the next day, she went immediately to the hospital but then Doctor there told her to go to police station. Accordingly, she lodged report to the police station and thereafter process of examination by Doctor etc. was undertaken. She denied the suggestion given to her that she had borrowed Rs. 4,000/- from the accused and that she was required to repay that amount to him. The accused also gave her suggestion that he had returned the girl to her after taking her at about 9:00 p.m. within 5 to 10 minutes. Thus, it is the case of the accused that he had taken away the girl at 9:00 p.m. outside the house of this witness and thus there should be no difficulty in rejecting the defence of total denial. According to her, the girl was brought back at 11:00 p.m. by the accused. She produced her caste certificate that she belongs to the Scheduled Tribe 'Pardhi' caste. This certificate has not been seriously challenged. In our opinion, the caste certificate of this witness P.W. 3-Sadhana, the mother of the victim is of no relevance since the prosecution failed to produce caste certificate of father of the victim.