ANANDA GYANA NARWADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal preferred by the original accused against the order of conviction and sentence dated 31. 5. 2000 passed by II additional Sessions Judge, Nanded, in Sessions Case No. 108 of 1998, whereby the accused has been convicted and sentenced for the offence punishable under Section 376 of Indian Penal Code to undergo R. I. for 7 years and to pay a fine of Rs. 3,000/-, in default to suffer S. I. for six months.

(2.) THE prosecution case arises out of First Information Report dated 15. 4. 1998, Exh. 18, lodged by prosecutrix Rukhmini d/o Nagorao Dalve, aged 12 years, resident of Wadepuri, taluka Loha. The prosecutrix, the minor girl, lives with her parents, sisters and brothers. The father of the prosecutrix is a small agriculturist and as such the members of the family used to do labour work. On 15. 4. 1998 at about 3. 30 p. m. the prosecutrix along with her mother Anusayabai pw 4 and sister Sarjabai had been to the field of one Vinayak Savkar. The wife of Vinayak Savkar was present in the field. The appellant was the servant of Vinayak Savkar. He was performing the ploughing operations in the field of his master. The mother and the sister of the prosecutrix were cutting the grass in the field as they had taken contract of removing the grass from the field of Vinayak Savkar. Anusayabai pw 4 the mother of the complainant instructed the prosecutrix to collect grass for the cow from the field of maize. Therefore, Rukhmini went to the field of maize for collecting the grass for the cow. Having seen Rukhmini, the appellant Ananda stopped the work of ploughing. He followed Rukhmini in the field of maize. He told her to do his work and for that purpose he would pay the amount. Rukhmini refused to take money from the accused. He lifted her and carried her in the middle portion of the field of maize. He made her to lie on the ground and committed forcible intercourse with her. Due to intercourse, there was profuse bleeding on the private part of the prosecutrix. She was wearing shirt, petticoat and nicker. All her clothes were stained with blood. She went to her mother. At that time she was weeping and she narrated the incident to her mother Anusayabai pw 4, sister Sarjabai and Sumanbai. After the incident, the accused ran away. The mother of the prosecutrix approached her husband who was present in the house. The prosecutrix was taken to the police station. Prosecutrix lodged report which was reduced into writing at Exh. 18. On the basis of the said report, crime no. 38 of 1998 was registered under Section 376 of Indian Penal Code. P. S. I. Jakkawad pw 8 took up the investigation. He noticed that clothes of rukhmini were stained with blood. Therefore, he attached the clothes under seizure panchanama in presence of two panchas. Prosecutrix was then referred to the Medical Officer for medical examination. As the offence was serious, S. D. P. O. Salunke took over the investigation immediately and he made further investigation. He visited the spot in the field of Vinayak Savkar, where he noticed standing maize crop. He drew panchanama in presence of two panchas. He noticed that the place of incident was trampled. Dr. Deshpande pw 2 examined the prosecutrix and issued certificate Exh. 28. Prosecutrix was also referred for the medical opinion as regards her age. Dr. Khadse pw 7 is the Radiologist. After taking the x-ray, he expressed his opinion that the age of the prosecutrix girl was between 12 and 14 years. The accused was found absconding. He was arrested on 2. 5. 1998. He was also referred to the medical Officer for medical examination. When he was in the custody of police, he expressed his desire to make a statement. Therefore two panchas were called and in their presence, accused made a statement that he had concealed his underwear in the field of Vinayak Savkar in the crop of maize, and that he would produce the same. The said statement was reduced into writing. Thereafter he took the police and panchas to the said field and produced the underwear. The underwear was seized under seizure panchanama Exh. 63-A. During investigation, the Medical officer collected samples of vaginal swab, pubic hair and venous blood of the prosecutrix. The sample of blood and semen of the accused were collected. All these samples were sent to Chemical Analyser for chemical analysis. Similarly, the blood stained clothes of the prosecutrix and the underwear of the appellant accused were also sent to Chemical Analyser. After completion of the investigation, the accused was chargesheeted for the aforesaid offence under Section 376 of Indian Penal Code in the court of Judicial Magistrate, First Class.

(3.) OFFENCE under Section 376 of Indian Penal Code is exclusively triable by the court of Sessions, hence, the learned Magistrate committed the case for trial to the court of Sessions under Section 209 of Criminal procedure Code. The accused was produced before the Sessions Court. Charge under Section 376 of Indian Penal Code was framed against the accused. It was read over and explained to him. He pleaded not guilty and claimed to be tried. His defence is one of total denial. According to the appellant accused, there is dispute between the father of the prosecutrix and him, and, therefore, the father of the prosecutrix implicated him by making a false case. He had not adduced any evidence in the defence.