MILIND JANU KHARAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the appellant's conviction by the learned Additional Sessions Judge, Pune for the offence punishable under Section 376 r/w Section 511 of the Indian Penal Code (for short, "IPC"), as also Section 323 of the IPC and sentence of rigorous imprisonment for five years with fine of Rs. 2,000/- and rigorous imprisonment for one month with fine of Rs. 500/- imposed upon the two counts on conclusion of Sessions Case No. 37 of 1993 before him. The facts which are material for deciding this appeal are as under:

(2.) The learned Sessions Judge charged the appellant of offences punishable under Sections 363, 366, 376(2)(f) and 323 of the IPC. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all seven witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant is before this Court.

(3.) I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the evidence on the record. PW-1 Dr. Charulata Bhalerao had examined the victim and had proved the medical certificate at Exhibit-12. The certificate would rule out the possibility of complete penetrative intercourse. The doctor opined that an attempt of intercourse could not be ruled out. PW-2, the victim herself, deposed as to how she was taken by the appellant near the water tank. She stated that the appellant slapped her on her cheek. She claims to have shouted but the appellant pressed her throat. She then claims that she was made to fall down on the ground and in spite of her resistance the appellant fell upon her. She states that in fact the appellant was successful in having intercourse. She stated about accompanying her father to the police station and also states that she identified the appellant at the test identification parade held in Yerwada Prison on 31-10-1992. In the course of cross-examination she admitted that there was none else who had come to drop children at the school. She stated that the appellant may be lying on her for about half-an-hour.