SOPAN GOKUL KASHIKAR Vs. STATE OF MHARASHTRA

JUDGEMENT

(1.) 1. Heard Mr. Motghare, learned Advocate for the appellant and Mr. Lanjewar, learned A. P. P. for State. In this appeal by the appellant - Sopan gokul Kashikar has challenged the judgment and order passed by Third Additional Sessions judge, Bhandara dated 19-4-2003 whereby the appellant came to be convicted and sentenced for offence under section 376 (2) (f) read with sections 511 and 451 of I. P. C. to R. I. For 5 years and fine of Rs. 1000/-, in default to undergo R. I. 6 months and to undergo R. I. for six months respectively.

(2.) THE prosecution case in brief is that the prosecutrix (P. W. 1) is - daughter of chokeshwar Khedikar (P. W. 2) resident of village Pohara which comes within the jurisdiction of Police Station, Lakhani. The appellant, Sopan is also resident of same village. The incident which gave rise to this prosecution against the appellant took place on the night of 26/8/1998 around 8. 30 p. m. The parents of the prosecutrix on that night had gone to the house of one Nimba Gotefode to attend religious function on the eve of ganesh Festival. While the prosecutrix had gone to the house of her uncle for watching T. V. Programme. The appellant, is admittedly residing in the neighbourhood of prosecutrix, his house being behind the house of the prosecutrix. The prosecutrix returned to her house and went to bed in the courtyard of the house. It is alleged by the prosecution that the accused came in the house of prosecutrix and on lifting her by his hands brought her in the kitchen room and after removing his under garments and also that of the prosecutrix laid on her person and tried to insert his penis in her vagina. She tried to raise shouts but appellant put piece of cloth in her mouth. In the meantime parents of the prosecutrix came and gave call to prosecutrix and when they entered the house, her father found the accused coming out of their house. He also saw his daughter i. e. prosecutrix weeping and before the appellant could say anything, the father of the prosecutrix slapped him. That the accused went away from there. The prosecutrix disclosed to her parents that the appellant tried to insert his private part in her vagina. The parents of prosecutrix saw the stains of semen on the floor. The father of prosecutrix immediately went to the house of Police Patil rajendra (P. W. 5) and informed him as to what was disclosed to him by his daughter and what was done by the accused - appellant. The police patil advised them to lodge report in the police station on the next day. That is how the witness Chokeshwar (P. W. 2) on the next day taking his daughter went to Police Station lakhani and lodged written report - Exhibit 23 at 7. 30 A. M. It was received by A. P. I. Shri. Gokuljprasad Fulsunge (P. W. 6) who prepared first information report - Exhibit 21 and registered offence against the appellant.

(3.) THE prosecutrix was referred to primary Health Center, Lakhani where she was examined by Dr. Bina Nakhle (P. W 8 ). On examining her Doctor issued Certificate exhibit 37. Doctor did not find any semen or blood stains on her vagina nor there was any external injury on the private part of the prosecutrix. But her hymen was slightly torn, but she could not give any positive opinion as to whether the hymen was torn due to penetration of penis in the vagina of prosecutrix. She has also stated in her evidence that if the hymen is ruptured, there are blood stains in fifty percent cases. According to Doctor when there is forcible intercourse on a 9 years girl, there would be injury.