KANCHANPRASAD KASHIPRASAD SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE court of 8th Assistant Sessions Judge, Nagpur by judgment dated-27.1.1998 in Sessions Trial No. 248/1996 convicted appellant for commission of offence under section376 of Indian Penal Code and sentenced him to suffer R. I. for 8 years and to pay fine of Rs. 200/- in default to undergo R. I. for one month. THE appellant has preferred this appeal against his conviction.

(2.) THE case of prosecution is that prosecutrix (P. W.1) went to Police Station, M. I. D. C. , Nagpur on11.9.1996 at noon and lodged report Exhibit 13 giving full narration of the incident of rape committed by the appellant on her. She supported her version in F. I. R. Exhibit 13 in her examination in the court. It is stated by her that on11.1.1996 around 11. 00 a. m. she had gone for answering call of nature on the bank of Nallah which is situated near the premises of the company, where the complainant was working. THE appellant came from her backside when she was in sitting position and answering the call of nature and he stood in front of her for passing urine. She asked the appellant as to whether it was proper for him to do so. She then went aside and sat for answering call of nature. THE appellant, however came near to that place from her backside and caught hold her while she was in sitting position. She shouted for help. THEreupon the appellant caught hold her throat and tried to shut her mouth with his hand. THE appellant caught hold of her by both hands and lifted her and dashed on the ground. THE appellant lifted her saree. He caught hold both of her hands by his hand then he removed her underwear. He also removed his pant and underwear and lied on her body. THE accused then had sexual intercourse with the complainant against all resistance offered by her and then accused ran away from there. According to the complainant when she felt discharge of semen she felt and realised that the appellant had forcible sexual intercourse with her.

(3.) I have gone through the evidence with the assistance of Mr. Loney the learned A. P. P. who made his submissions in this matter. He submitted that the trial court has rightly accepted the evidence of prosecutrix in correct perspective and it was found to be sufficient to hold the appellant guilty for committing offence of rape, even in the absence of any injury on the person of the prosecutrix as well as on private parts of the appellant. He submitted with emphasis that the prosecutrix is a married woman. The defence putforth by the appellant - accused that because of demand of amount of credit the appellant came to be involved falsely for offence of committing rape is ex-facie improper and unbelievable having regard to the facts and circumstances of the case and particularly the fact that the prosecutrix was married woman and that there was no enmity or any reason for the prosecutrix to involve the appellant falsely. He submitted that the prosecutrix being married woman absence of injuries on her private part is possible, though the appellant had forcible sexual intercourse with her against her wishes. He also submitted that the defence of the appellant is that of total denial. In view of this, there is no scope to infer even that the prosecutrix was consenting party for appellant to have sexual intercourse with her. That apart manner in which the prosecutrix has stated in her evidence about the occurrence as also immediate conduct in disclosing to witnesses Sarita and Sanjay about the occurrence and immediately apprehending the appellant while he was found present by the premises of the company and then assaulting him by the prosecutrix and the person accompanying her, clinchingly goes to show that the prosecutrix was not a consenting party. He therefore, submitted that the trial court was right in convicting the appellant for the offence of committing rape.