BHIMRAO SHAMRAO GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against appellant's conviction by the learned Additional Sessions Judge, Pune for the offences punishable under Sections 376(2)(f) and 506 of the Indian Penal Code and sentence of rigorous imprisonment for a period often years with a fine of Rs. 5,000/- or in default of payment of fine further rigorous imprisonment for a period of six months and sentence of rigorous imprisonment for a period of one year with a fine of Rs. 1,000/- or in default of payment of fine further rigorous imprisonment for a period of three months respectively on the two counts imposed upon him on the conclusion of trial of Sessions Case No. 460 of 2005. Facts which are material for deciding this appeal are as under:-

(2.) The learned Additional Sessions Judge to whom the case was made over charged the appellant for the offences punishable under Sections 376 and 506 of the Indian Penal Code. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all five witnesses in its attempt to bring home 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 the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Latabai Dattatraya Madane is victim's mother, who stated about the incident as she learnt from her daughter. She proved her report at Exhibit 19. PW-2 is the victim herself, who stated that the appellant had taken her inside his house and after removing her undergarments, mounted himself upon her. She stated that on her sister's knocking the door, the appellant opened the door and let her go after paying Rs. 3/-. The evidence of PW-3 Mehtabbi Usman Shaikh - Sayyad about the seizure of victim's clothes is rendered unuseful because the reports of the Forensic Science Laboratory at Exhibit Nos. 40 to 42 are inconclusive. PW-4 Dr. Supriya Sharad Kolte had examined the victim on 31st May, 2005 and found that there was recent abrasions present on medial side of both labia majora. Inflammation was present. Hymen was torn at 6 O'clock position. She concluded that the injuries were possible only by penetrative intercourse. PW-5 PSI Ramdas Rajaram Shelke conducted investigation. He denied the suggestion that because the appellant's daughter and other relations had come to the police station and had created commotion, he was annoyed and he, therefore, changed the offence from one punishable under Section 354 to Section 376 of the Indian Penal Code.