NANA LAXMAN SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned counsel for the applicant, the learned A.P.P. for respondent No.1/State and the learned counsel for respondent No.2/victim.

(2.) The applicant seeks suspension of sentence imposed upon him to suffer rigorous imprisonment for ten years for the offence punishable under Sec. 376 of the Indian Penal Code, rigorous imprisonment for two years each for the offences punishable under Ss. 363 and 366 of the Indian Penal Code, by the learned Additional Sessions Judge, Ahmednagar, in Special Case No.190 of 2019, by her judgment and order, dtd. 8/7/2022.

(3.) The learned counsel for the applicant would submit that the prosecution though three witnesses have been examined, did not prove the exact age of the victim and no witness had cogently proved that she was below sixteen years at the time of the incident. He would argue that she was fully grown up and was a major at the time of incident. She admitted in her cross- examination that she was leaving home voluntarily and permanently with the applicant. In the family of the victim, all sisters got married when they were below eighteen years and mostly at the age of fifteen. The applicant never suspected that she was below sixteen. He believed on her statement that since she has left the school from last four to five years and she had attained the majority. It was a solitary incident. The evidence as regards sexual assault, is also not cogent and clear. On the very second day of their eloping, they were arrested and the victim was released. There were no injuries on the person of the victim, allegedly caused during the sexual assault. P.W.No.7 a Medical Officer has opined that it was not the case of penetration. All these material aspects have not been properly appreciated by the learned Additional Sessions Judge and the accused has been erroneously held guilty for the offence of sexual assault with a child. The applicant had no bad past. He never tampered with the prosecution witnesses. The applicant is a young boy of twenty five. Since prima facie material is against him, he was under-trial prisoner. He is behind bars since 2018. The evidence needs to be appreciated. The applicant is sanguine chances of success in the appeal. Hence, his sentence may be suspended.