MANOHAR RUSTAM BUNDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. R. L. Khapre and Mr. Amol Deshpande, Advocates for the appellants and Mr. Y. B. Mandape, A. P. P. for the state. 1a. This is an appeal challenging the judgment and order passed by the Additional Sessions Judge, Buldana in Sessions Case No. 81/2000 convicting the appellant for offence under section376 (2) (f) of Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for a period of 10 years and to pay fine of Rs. 1000/-, in default to suffer Rigorous Imprisonment for six months.

(2.) THE appellant who happened to be one of the family members of the prosecutrix - Archana a minor girl aged about9 years, stood tried on the allegation that on9-6-2000 in the afternoon at around 4. 30 p. m. had sexual assault with the prosecutrix.

(3.) THE reference letter given by Dr. Kale recording his finding was given to Dr. Rathod who ultimately examined the prosecutrix in Civil Hospital, Buldana where she was brought. Dr. Rathod examined prosecutrix - Archana on16-6-2000. In the certificate issued by him (Exhibit 22) he has given his finding on examination of the prosecutrix. But at the same time, he was referred to the letter from the Primary Health Center, Sakharkherda, he has clinchingly stated in his evidence that the findings in the reference letter were suggestive of having sexual intercourse with the prosecutrix before 6-7 days. It is no doubt true that when Dr. Rathod examined the prosecutrix on16-6-2000 there was no fresh injury on her private part. Dr. Rathod had admitted that for injury the normal time for healing is of seven days. THErefore, it was in that context Dr. Rathod had stated that such injuries to her private part is also possible in coming contact with a substance like a stick. THE fact remains that Dr. Rathod when he stated that the findings in the reference letter were suggestive of having sexual intercourse with the prosecutrix before 6-7- days lends assurance to what has been stated on oath by Dr. Kale who admittedly examined the prosecutrix immediately after the occurrence on9-6-2000. THErefore, when this evidence of Dr. Kale was accepted that the opinion expressed by Dr. Rathod, it is conclusively established that the prosecutrix - Archana suffered injuries to her private part as a result of sexual intercourse with her. In other words, what was claimed by Sindhubai - the mother of prosecutrix as well as the prosecutrix - Archana in their evidence about the sexual assault on the prosecutrix and injury resulting there from to her private part, is clinchingly established. THErefore, there is no substance in the submission of learned counsel for the appellant that the victim - Archana suffered injury on her private part as a result of fall or as a result of insertion of stick in her private part, that can not be accepted to be plausible even though Dr. Rathod in his evidence has expressed the possibility of injury being caused due to coming in contact with a substance like a stick or a stone. It is needles to say that negative finding or absence of any positive finding when Dr. Rathod examined the prosecutrix is of no consequence when admittedly Doctor examined the victim after seven days of the occurrence i. e. much more so when it is not disputed that the victim had bleeding injury on her private part as noticed by Dr. Kale who treated it for seven days. That fact is not disputed. It is self eloquent that the injury suffered by victim was that her hymen was torn and the tear was extending from vagina to anus.