VISHWAS PANDURANG DHIVAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANT is challenging the Judgment and Order passed by the Additional Sessions Judge, Pune in Sessions case No. 610 of 1988. By the said Judgment and Order, the Additional Sessions judge was pleased to convict the accused for having committed an offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer R. I. for 7 years and to pay fine of Rs. 500/- and, in default, to suffer R. I. for six months.

(2.) PROSECUTION case in brief is that the prosecutrix was a girl aged about 16 to 17 years. She was residing in Hargude along with her parents, brothers, and sister-in-law. On 9-8-1988, Sanjana was alone in the house when the accused-Prakash came to her house along with basket containing lady's fingers. He asked her whether she wanted to buy lady's fingers. Prosecutrix, however, told him that she was not interested in buying vegetables. The accused then came inside the house and embraced the prosecutrix who somehow escaped from the clutches of the accused and tried to run away. However, the accused caught her from behind and made her lie down on the ground and committed sexual intercourse with her without her consent. While leaving the house, he threatened her that she should not disclose the incident to anyone, otherwise he would kill her. After her father returned home, Sanjana narrated the incident to him. A complaint was filed on the next day. Accused was arrested. Charge-sheet was filed against him. The trial Court convicted him on the basis of the evidence adduced by the prosecution.

(3.) THE learned counsel appearing on behalf of the appellant submitted that apart from the testimony of the prosecutrix. there was no other evidence to corroborate her testimony. It is submitted that from the evidence of Dr. Ms. Sucheta Deolay, it can be seen that there was no other injury on her body except a small scratch on her chin. It is submitted that the accused was sent for medical examination. However, medical-certificate was not produced on record. It is submitted that it was a serious lacuna on the part of the prosecution. He submitted that there was no evidence adduced by the prosecution to prove that the appellant had the capacity to indulge in the sexual intercourse. He further submitted that from the chemical Analyser's report it could be seen that no semen was found either on the clothes of the prosecutrix or on the clothes of the accused. It is further submitted that the absence of injuries on the person of the prosecutrix was a strong circumstance which indicated that there was no resistance and that the possibility of consent could not be ruled out. It is further submitted that the age of the prosecutrix which was given in the FIR was 17 years and, therefore, she had reached the age of understanding. It is submitted that the circumstances brought on record indicated that the sexual intercourse had taken place with the consent of the prosecutrix.