PANDURANG NAGO SAKINLAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was charged and tried for an offence punishable under sections 354, 376, 506 and 511 of the Indian Penal Code (for short 'ipc') for committing rape on his own 11 years old daughter Ku. Geeta on15-2-1999 in his house at about11. 00-11. 30 a. m. , when the wife of the appellant had gone out for labour work. In Sessions Trial No. 147 of 1999, the learned Additional Sessions Judge, Yavatmal found the appellant guilty of the offence charged with and, therefore, convicted him under sections 354 and 376 of the Indian Penal Code and sentenced him to suffer R. I. for six months and seven years respectively. Hence, this appeal.

(2.) THE prosecution case as it emerges from the evidence of the prosecutrix stated briefly is that on15-2-1999 at about11. 00 a. m. the prosecutrix Geeta and her younger brother Ravindra were at home. THE appellant returned home at about11. 00 a. m. and asked the Geeta to serve meal for him. After lunch, the appellant asked Geeta to bring a quilt and to lay it on the floor. In the meanwhile, younger brother Ravindra had left the house. THE appellant closed the door and lied on the quilt with Geeta. She was wearing skirt and body-frock at the relevant time. She was not wearing knicker. It seems that the appellant, thereafter, forcibly penetrated his private part into the private part of Geeta, and gave two jerks. Geeta could not offer resistance as a result thereof, she suffered pain, and therefore, requested the appellant to allow her to go for urination. While leaving her, the appellant made her to swear that she would return after the urinating. Geeta, while urinating had bleeding from her private part and, therefore, went to her mother Baby (PW2), who at the relevant time was working at the house of one Babarao, and narrated her the evil act of the appellant. Baby PW2 took her to the house of one Mayabai (PW3), kept her there and went to Police Station, Shirpur, and lodged First Information Report. Baby (PW2) was, thereafter, asked by the police to bring Geeta and accordingly Geeta was taken to the Police Station. Geeta was sent for medical examination to the Primary Health Centre, Shirpur and from there, she was sent to the Hospital at Yavatmal. THEre Geeta was examined by Dr. Abhay Jawale (PW6 ). Her vagina slides, blood group was collected by the Doctor which was handed over to police Constable. THE investigating officer (PW5) sent those articles alongwith the clothes of Geeta to Chemical Analyser. During investigation, the appellant, after his arrest, was also sent for medical examination. His blood sample, semen sample and pubic hair were also collected and sent to Chemical Analyser. On completion of the investigation, the chargesheet was filed in the court of Judicial Magistrate, First Class, Wani, who in turn committed the case to the Court of Sessions, Yavatmal.

(3.) AT the very outset, I would like to consider the evidence of Geeta (PW1 ). Mr. Kasat, learned counsel for the appellant, has criticized her evidence mainly on the ground that she has deposed in the present case against her father at the instance of her mother (PW2 ). He further submitted that the hymen of Geeta was torn by PW2 by inserting finger in her private part only with a view to falsely implicate the accused. In support of his submission he invited my attention to the admission given by Geeta, in her cross, that her mother used to say to the appellant that either he should die or go behind bar. He also invited my attention to the admission of the doctor (PW6) that hymen could be torn by inserting finger. In the light of these submissions I examined the evidence of the prosecutrix. AT the outset, I found her testimony free from contradictions, inconsistencies and omissions. In so far as sexual assault is concerned, it would be advantageous to quote the relevant portion from her examination-in-chief to better appreciate the submissions of the learned counsel for the appellant. The relevant portion of the deposition as recorded by the trial court reads thus : " Incident took place at about12. 00 noon. My father asked me to serve the dinner. I served the meal to the accused. Accused took his lunch. Thereafter accused asked me to bring mattress (bothri) and to lay down it. Accused closed the door of the house from inside. I asked the accused why he closed the door. Accused lied myself down on the ground of the mattress. I had not worn the underpant. There was skirt, shirt and body frock on my body. Accused had tied the lungi to his waist. Accused took my both legs besides. Accused penetrated his penis in vagina. There was pain to me. Accused gave 2 jerk to me. I told to the accused that I have to go for urinal purpose. Accused told that I will not return, therefore, I should take oath of God. I took oath of the God. Then I went for urinal in my bathroom. I sat for urinal purposes. AT that time one stain blood fell down from my vagina. I went to my mother who was present at the house of one Babarao. I narrated the incident while weeping to my mother. My mother hidden myself at the house of Mayabai. Then myself and my mother came to Police Station, Shirpur to lodge report. "