ISHWAR RAJARAM KUTHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) MR. M. R. Daga, Advocate for the appellant and Mr. Lanjewar, A. P. P. for respondent - State. The appellant has filed this appeal challenging the Judgment and order passed by the 2nd Ad-hoc Additional Sessions Judge, gadchiroli in Special Case No. 3/2002 dated 18-8-2003 convicting him for offence under section 376 (1) of I. P. C. and sentencing to R. I. for 7 years with fine of Rs. 1000/-, in default to undergo further R. I. for 2 months.

(2.) THE victim of sexual assault. prosecutrix (P. W. 1) aged about 14 years was daughter of witness - Kashiram (P. W. 4 ). The incident in question took place on 10-1 -2002 in the morning at about 10. 00 a. m. when the prosecutrix accompanied by her friend - Rekha (P. W. 2) was proceeding to attend school which is at a distance of about 1 k. m. from her village. On their way near a canal, the prosecutrix went to answer call of nature telling her friend Rekha to proceed and stop near the bridge. The prosecutrix after answering call of nature when proceeded on her way, the appellant who was son-in-law of the village of prosecutrix met her and he caught her by her neck and took her towards canal in bushes and after having fallen her on the ground and removing her underwear so also his pant, had sexual intercourse with her by penetrating his private part in her vagina. He also threatened her and pressed her throat so that she should not raise shouts. After committing rape on her, the appellant left the place on his bicycle. The prosecutrix went to her house from there. In the evening when her parents came she disclosed them the incident that took place in the morning stating specifically that the appellant committed rape on her. Her father sent message for Police Patil - Pandurang (P. W. 5) who advised them to take the prosecutrix to Police Station to lodge report. Accordingly, the prosecutrix was brought to police station by her father where she lodged complaint - Exhibit 18 on the basis of which the first information report Exhibit 19 was drawn and after the offence was registered against the appellant. The prosecutrix was referred to the Medical Officer - Dr. Sadhana jaiswal (P. W. 12) who was attached to the general Hospital, Gadchiroli. She was examined on 11-1 -2002 at 5. 00p. m. Dr. Sadhana (P. W. 12)in her evidence gave in detail her finding on examination of the prosecutrix as has been given in the certificate - Exhibit 15 issued by her. In addition to that in her evidence she has stated that no definite opinion about forceful sexual intercourse can be given. But on examination of the prosecutrix she found that her vagina admitted tip of finger with difficulty. She found her hymen was ruptured. She stated that there was possibility of sexual intercourse with the prosecutrix, at the same time she did not notice any bleeding injury on her private part or her body. Police Inspector - Sawarkar (P. W. 13)carried out investigation in the matter. He visited the place of occurrence and prepared panchanama - Exhibit 22 in the presence of panch witness - Ashok Budhe (P. W. 3 ). It is mentioned in the spot panchnama that books and note-books of complainant - prosecutrix were found lying at the place of occurrence, so also her greenish colour chaddi which came to be seized by making separate panchanama. The prosecutrix was referred to the Medical Officer, Radiologist for ossification test. The Medical Officer after carrying out the ossification test gave report exhibit 49 wherein the age of the prosecutrix was stated to be between 12 years to 13 years (not less than 12 years and not more than 14 years ). The witness - Omprakash (P. W. 7) who was Headmaster of the school where the prosecutrix was taking her education from the school records gave date of birth of the prosecutrix as 24-11-1987. The appellant was arrested on 11 -1 -2002 and at that time his clothes came to be seized in panchanama - Exhibit 31 in presence of panch witness - Prabhatkumar (P. W. 6 ). The property seized was sent to the chemical Analyser for analysis. The report of the Chemical Analyser received vide Exhibit 15 shows that on the articles examined which included the clothes of the prosecutrix, the clothes of the appellant and vaginal swab, neither blood nor semen was detected. After completing the investigation, investigating officer filed charge-sheet on the basis of which the appellant was sent up for trial before the Special Judge.

(3.) THE appellant before the Sessions judge, when charge was framed pleaded not guilty to the charge and claimed to be tried. The prosecution examined in all 14 witnesses. The appellant was examined under section 313, wherein he denied the evidence and circumstances appearing against him. His defence, from the tenor of cross-examination appears to be that of total denial. However, it is not disputed that the appellant had gone on that day on his bicycle by that way carrying vegetables for sell. The witness - Gopika (P. W. 9) who happens to be mother-in-law of appellant in her evidence stated that the appellant was residing with them along with her daughter and on the day of occurrence he had been in the morning gone to the village for selling vegetables. She has stated that he returned home, and on that day in the evening police had come and took away with them the appellant. The trial court accepting the evidence of the prosecutrix coupled with other evidence which comprised of disclosure by the prosecutrix to her father, Police Patil -Pandurang and other persons in the village came to the conclusion that the appellant has committed sexual assault on prosecutrix, a minor girl - below 16 years of age and accordingly proceeded to convict and sentence him for offence under section 376 (1) as stated in the earlier part of the judgment. Hence this appeal.