NARHARI KISAN KHODAVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD learned counsel for the appellants/original accused and also learned A. P. P. for the respondent/state. Perused the records including evidence of prosecution witnesses and the Judgment of the trial Court with the assistance of learned counsel for the parties.

(2.) BOTH the appellants were tried for offences under Sections 366, 376 and 506 read with Section34 of the Indian Penal Code for having in furtherance of common intention abducted prosecutrix, Sudhamati w/o. Goroba Deorkunde (P. W.1), a married woman with the intention to commit rape on her and also held threats to her life and then committed rape on her. The learned Addl. Sessions Judge, Udgir, Camp at Ahmedpur, convicted both the appellants by his Judgment dated-25th January, 2002 for offence under Sections 366, 376 and 506 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs. 1,000/-, in default to suffer simple imprisonment for six months and sentenced to suffer rigorous imprisonment for one year each and to pay fine of Rs. 200/- each, in default to suffer simple imprisonment for 15 days each respectively. This judgment of conviction and sentence passed against the appellants is the subject matter of challenge in this appeal.

(3.) BEFORE we consider the submissions of learned counsel for the parties, it is necessary to note few facts which are either not disputed or established on the evidence. The prosecutrix Sudhamati was a married woman having two children. She was no doubt examined by Medical Officer on16-05-1997 at about7. 00 p. m. and in the certificate which Dr. Sandhya Shiral (P.W.4) issued vide Exh. 18, she could not give any comments on rape and the reason for not expressing her candid opinion was that the Vagina of prosecutrix was roomy. She did not find spermatozoa or vaginal swab even on microscopic examination. But in spite of that she has made a guaranteed statement that even in the absence of spermatozoa there may be possibility of intercourse. In her cross-examination she has denied the suggestion that absence of spermatozoa in microscopic examination means there was no intercourse. It is not disputed that the prosecutrix did not suffer any injury on her private part and on other part of her body. The prosecutrix in her evidence has stated the manner in which she was carried by appellant no.1 from her house to the field and then appellant no.1 committed sexual intercourse on her in spite of some resistance by her. She has stated in clear words that the appellant no.1 has inserted his penis in her Vagina and in that manner he had sexual intercourse with her for about five minutes. As per the report of C. A. in respect of examination of petticoat (Exh. 34), three semen stains were detected. It is true that in vaginal swab as per the report of C. A. Exh. 33 no semen has been detected. That is of no consequence, as the Medical Officer has emphatically stated in her evidence that even in the absence of detection of spermatozoa there is possibility of rape. Therefore, finding of semen stains on the petticoat of the prosecutrix lends corroboration to the version of prosecutrix Sudhamati that appellant no.1 had sexual intercourse with her. It is also in her evidence that appellant no.1 lifted her while she was in sleep and when she woke up she raised shouts and offered resistance when she was being taken out from her house but it was appellant no.2 who held her hands and put a piece of cloth in her mouth, which rendered fruitless her resistance. This evidence of prosecutrix though she was subjected to cross-examination, remained undisturbed. It is also pertinent to note that prosecutrix immediately lodged complaint which was on the basis of her statement recorded at3. 05 on16-05-1997. It means that leaving scope to the variance of timing as pointed out by the learned counsel for the appellants, fact remains that prosecutrix after having disclosed about the incident of rape to her husband and Police Patil, immediately, rushed to Kingaon Police Station, where her complaint was lodged. It is in this sense what has been stated in the report Exh. 13 was the out come of immediate disclosure by the prosecutrix and her evidence before the court is substantial intoned that what has been disclosed by her in her statement Exh.13. This was also found to be intoned that what has been stated by her husband Goroba and Police Patil and their evidence before the court. In substance her evidence gains corroboration from the contents of the complaint (Exh. 13) as well as what has been stated by the witness before the court.