KISHOR BALAJI KHADSE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was found guilty of the offence u/s. 376 of the Indian Penal Code for having committed rape on a minor child aged about three years and was sentenced to imprisonment for life and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month by the IInd Additional Sessions Judge, Amravati by her judgment and order dt: 9-4-1999. THE appellant has filed the present appeal challenging the judgment of conviction and sentence.

(2.) THE incident which gave rise to this prosecution against the appellant took place on4th November, 1997 between 7. 00 P. M. to 9. 45 P. M. at Sanjay Gandhi Nagar, Amravati within the jurisdiction of Police Station, Frazorpura. THE prosecutrix who was about three years old, was residing with her parents namely Ramdas (P. W.1) and Rama (P.W.7 ). One Prakash Khadse was residing as a tenant in the house of Ramdas, father of prosecutrix. On the day of incident, appellant Kishor Khadse, who happens to be brother of Prakash Khadse, had been to his house to attend some programme. At about7. 00 P. M. , prosecutrix was out of the house. After about9. 00 P. M. , Ramdas, when came out of his house, found that his daughter was not there and therefore, he inquired as to her whereabouts. Ravi Khadse, who is the son of Prakash Khadse, disclosed Ramdas that the appellant Kishor had taken her with him. THE parents namely Ramdas and Rama thought that for giving chocolates or biscuits, the appellant might have taken her and therefore, they waited of till 9. 00 P. M. But then, when found that neither she nor the appellant returned home, they started searching for the appellant and prosecutrix. At about9. 45 P. M. , appellant came and when inquired by the parents of prosecutrix, he pointed out his finger and showed prosecutrix who was coming home following the appellant. Her parents noticed that she was weeping and she was coming from the hill. Rama, mother of prosecutrix, when inquired with her, she disclosed that Kishor, the appellant, had taken her to Tekadi, made her lie down and when she was not ready, the appellant beat her and lifted her and then she felt pricking sensation. THEy also noticed that her private part was wet with blood and there was also blood on her frock. they confirmed that the appellant committed rape on her and immediately Ramdas lodged report in the Police Station she was sent for medical examination. She was admitted in the hospital and she was in the hospital for 7 to 8 days.

(3.) WE have heard Mr. Daga, the learned counsel for the appellant and Mr. Mirza, the learned A. P. P. for the State. Mr. Daga, Adv. took us through the evidence on record and particularly, through the evidence of parents of prosecutrix and the medical evidence of Dr. Vidya Dande (P.W.5), Mr. Daga, Adv. basically questioned the finding by the trial Court as to commission of offence of rape. While referring to the evidence of witness Rama, to whom the prosecutrix disclosed about what was done to her and also the medical evidence of Dr. Dande, the learned counsel vehemently submitted that the factum of penetration is not at all made out and established beyond reasonable doubt. The learned counsel submitted that as to disclosure made by victim to her, about which she stated in her evidence before the Court, does not find place in her statement recorded by police. The witness claimed that she had stated to the police that prosecutrix was not in a position to stand when she asked her to stand up and that she stated that there was pain in her private part and Anus. But the witness could not assign any reason for its omission in her statement. So, referring to this omission, the learned counsel vehemently submitted that the evidence of witness Rama as it stands is not at all sufficient to infer even that the appellant committed rape. As regards the finding by the Medical Officer Dr. Dande as to laceration, the learned counsel submitted that in absence of any evidence regarding actual penetration, mere laceration by itself is not sufficient to hold that the appellant committed rape. That there could be laceration on private part of victim of rape on account of itching and insect bite or by insertion of pointed and rough substance. The learned counsel, in the alternate, submitted that having regard to the nature of crime committed and the facts and circumstances attending the case, sentence of imprisonment for life is not called for. He submitted that having regard to the fact that the appellant is in jail since the date of commission of offence, lenient view in the matter be taken.