DEVAJI RAMA PADAVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellant/Original Accused has preferred this Appeal against the Judgment and order dated 12th April, 2004, passed by the learned Judge, Greater Bombay in Sessions Case No. 750 of 2002. By the said Judgment and order, the learned Sessions Judge convicted the Appellant for the offence under Sections 376 and 506-II of Indian Penal Code. For the offence punishable under Section 376 of Indian Penal Code the Appellant was sentenced to suffer life imprisonment and to pay fine of Rs. 2000/- (Rs. Two Thousand only) in default R.I. for six months. For the offence punishable under Section 506-II the Appellant was sentenced to suffer R.I. for seven years and to pay fine of Rs. 2000/- (Rs. Two Thousand only) in default R.I. for six months. The learned Judge further directed both the substantive sentences of imprisonment to run concurrently. The prosecution case, briefly stated, is as under:

(2.) It is the case of the prosecution that the prosecutrix used to go to Church. P.W. 2 Mrs. Felcy Fernandes used to reside in the compound of the Church. Mrs. Fernandes used to go to the Church every day and she used to meet poor people and help them by giving clothes and money. During her visit to the Church, Mrs. Fernandes come to know the prosecutrix since about one year prior to the incident. From October 2001 the prosecutrix did not go to the Church therefore, Mrs. Fernandes felt bad that the prosecutrix has not come to the Church. Hence, Mrs. Fernandes decided to go and meet the prosecutrix. When she was going in the direction of the house of the prosecutrix, at that time on the way Mrs. Fernandes met the prosecutrix. She asked the prosecutrix why she is not coming to the Church since long time. The prosecutrix told her that her mother was sending her to do work hence, she could not come to Church. Mrs. Fernandes felt bad that the prosecutrix was being sent for work as it is not the age of the prosecutrix to work. Mrs. Fernandes told the prosecutrix whether she should speak to her mother about sending the prosecutrix to school and the prosecutrix showed her willingness to go to school. Then Mrs. Fernandes along with the prosecutrix and one other person went to the house of the prosecutrix and met her mother. Mrs. Fernandes told the mother of the prosecutrix that it was not her age to work and the prosecutrix should be sent to school. She told the mother of the prosecutrix that she will put the prosecutrix in a boarding school and that she will bear the expenses. The mother of the prosecutrix agreed to send the prosecutrix in a boarding school. Then Mrs. Fernandes brought the prosecutrix to her house. On the next day Mrs. Fernandes sent the prosecutrix to Tabor Ashram at Kalyan where there is a training programme wherein people are taught good values of life through prayers. The prosecutrix was in the Ashram for about four days. Thereafter, on 17th April, 2002 the prosecutrix returned to the house of Mrs. Fernandes. Mrs. Fernandes told her to go back to her house, whereupon the prosecutrix started crying. On the next day, the mother of the prosecutrix and the Appellant came to the house of Mrs. Fernandes, but the prosecutrix refused to go with them. Thereafter the Appellant threatened Mrs. Fernandes that she should send the prosecutrix to his house otherwise he would see Mrs. Fernandes. The prosecutrix stayed with Mrs. Fernandes for two days. During this time, Mrs. Fernandes and her friend Fatima Marcos discussed as to how to send the prosecutrix to boarding school when the Appellant had threatened them. At that time, they came to know about Women and Children Welfare Department in the office of the Commissioner of Police. Accordingly, they took the prosecutrix there on 20th April, 2002. In the office they met one social worker and her assistant. P.W. 4 Anagha Sarpotdar was working in the Special Cell for women and children. Komalika Datta was working with her as social worker. On 20th April, 2002 Mrs. Fernandes, the prosecutrix and Mrs. Fatima went to the Special Cell for women and children and they told P.W. 4 Anagha and the other social worker that the prosecutrix was just 13 years old and she wanted to study, however, her mother and step father forced her to work. Mrs. Fernandes and Mrs. Fatima asked whether the Special Cell would help them. Thereupon, Anagha told her that first she would like to speak with the prosecutrix alone and find out as to what the prosecutrix wanted. P.W. 4 Anagha requested Mrs. Fernandes and Mrs. Fatima to sit outside. P.W. 4 Anagha and other social worker started talking to the prosecutrix.

(3.) During the conversation the prosecutrix told P.W. 4 Anagha and Komalika that she had been raped by her step father thrice. She told that he tied cloth around her mouth and committed rape on her. She was very scared as the Appellant had threatened her that if she disclosed this fact to anybody, he would kill her by throwing her under a train. She further told that her mother and one boy Pintoo i.e. son of sister of the Appellant had seen the incident but they were not supporting her. The prosecutrix was scared and did not want to go back to her house. Thereupon, P.W. 4 Anagha and Komalika told her that they would help her. Though they believed her version but before going to the police they wanted to get it confirmed medically that the prosecutrix had been raped. Hence they all went to Cama Hospital for medical examination of the prosecutrix. P.W. 5 Dr. Mahana examined the prosecutrix in Cama hospital. She found that the prosecutrix is about 13 years old and had complaint of three earlier sexual assaults on 7th December 2001, 3rd January, 2002 and 20th March, 2002 by her mother's friend. On examination of the prosecutrix, P.W. 5 Dr. Mahana found that hymen was ruptured. That was consistent with the history given by the prosecutrix. Thereafter on the same day i.e. on 20th April, 2002 the prosecutrix along with P.W. 2 Mrs. Fernandes, P.W. 4 Anagha and others went to the Vikhroli police station. There the First Information Report of the prosecutrix came to be recorded. Thereafter, investigation commenced. After completion of investigation, chargesheet came to be filed.