FULCHAND VASANT BHAIRAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant, Fulchand Vasant Bhairat who was tried in Sessions Case No.66/2001 before IInd Addl. Adhoc Session Judge, Ambajogai for offence under Section 376(2)(f)of the Indian Penal Code, on the allegations of committing rape on minor girl referred to as 'prosecutrix' in this judgment, has filed this appeal challenging, the judgment and order dated 11th July, 2003, whereunder he was convicted and sentenced for offence punishable under Section 376 of the Indian Penal Code to a term of seven years R. I. and to pay fine of Rs.5000/-, in default to undergo further R.I. for six months. The learned Sessions Judge by the same order directed to pay amount of Rs.3000/- to the prosecutrix out of the fine amount by way of compensation. By the same order, the appellant was given benefit of set-off under Section 428 of Criminal Procedure Code, 1973 in respect of detention from 05-12-2000 to 20-01-2001. As per the records on the date of pronouncement of the judgment by the trial court, the appellant was taken in custody. After the appeal filed by him in this court was admitted, he had prayed for bail and suspension of sentence, however, District Court by order dated 22-09-2003 rejected his application. That is how the appellant is undergoing sentence.

(2.) THE incident which gave rise to this prosecution against the appellant took place on 24-11-2000 at about 10.00 a.m. in the vicinity of village Umari which comes under police station Kaij in regard to the offence under Section 376 of the Indian Penal Code, being registered while crime No. 214 of 2000 on the basis of first information report (Exh.17) lodged by the prosecutrix on 27th November, 2000. Appellant is resident of village Umari having agricultural land in the revenue limits of village Umari. As per the prosecution case on the day of occurrence, the prosecutrix was returning to her house from a floor mill carrying a bundle of flour of 'Jawar' on her head around 9.00 a.m. when she was accosted by the appellant on her way and after having silenced her on pressing his hand on her mouth she was lifted and brought to the field nearby where crop of yellow 'Jawar' was standing and was thrashed on the ground and after having removed her cloths under threats to cause her death, appellant having removed clothes first outraged her modesty by pressing and fondling with her breast and then having fallen her down on the ground, had forceful sexual intercourse with her, despite resistance to the extent she could and after having satisfied his lust the appellant left the spot, leaving the prosecutrix crying. Two persons Bhagwat Mule and Balu Raikar who were passing by the road having noticed that state of affairs of prosecutrix when disclosed by her revealed that the prosecutrix was ravished by the appellant. The prosecutrix after having reached her house, disclosed her mother Shamal (P.W.3) and also to her father Ranjit Sonwane (P.W.2) on the next day i.e. on 26th November, 2000, after he returned home from the place where he had gone in the morning of 25th November, 2000 and then immediately she was taken to the police station where PSI Pardeshi after having recorded her statement (Exh.17) was referred to Medical Officer Dr. Shalini Bhalchandra (P.W. 8) who was then attached to S.R.T.R. Medical College, Ambajogai who issued certificate (Exh.31). In the certificate she has given her findings on clinical examination of the prosecutrix. She has also taken blood sample, sample of pubic hair and vaginal swab. On her examination of prosecutrix, she gave specific findings as 'no urinary trouble. No difficulty in walking. Contusion over back in middle 1/2' x 1/2' bluish in colour.' As regards examination of private part of the prosecutrix, her findings as detailed in the certificate are 'pubic hairs scanty. Not mattered together. No blood of foreign stain. No injuries on private parts. Hymen intact.' In Exh.31, she has not given any opinion whether the prosecutrix had sexual intercourse or rape was committed on her. However, in her evidence before the court, the Medical Officer stated that 'as per the history and police letter rape was committed on 25-11-2000. The prosecutrix was brought to the hospital for medical examination on 27-11-2000. The witness further stated that after going through the history of the patient and after medical examination and evaluation of C. A. report, I reached at final opinion that attempt of rape must have been committed in this case.' In cross-examination this witness has clarified that she has taken history of the patient and same was recorded in M.L.C. register. It was the history of patient 'attempt to rape'. She candidly admitted that she has not mentioned in the provisional medicolegal certificate that it was a case ' attempt to commit rape.' She has also admitted that if a person falls down while walking, there may be contusion over back in the middle, an injury which she has noted in the provisional medicolegal certificate (Exh.31), by coming into contact with hard and blunt surface.

(3.) AFTER the offence was registered the Investigating Officer P.S.I. Pardeshi recorded statement of parents of the prosecutrix and other witnesses. The clothes of prosecutrix which includes her petticoat (article No.2) and nicker (article No.1) came to be seized under panchanama (Exh.38). The appellant was arrested on 05-12-2000 and his clothes were seized some time after a month. The articles seized were sent to C. A. for examination including the blood sample, sample of semen of the appellant. As per the report of C. A. (Exh.10/C) one semen stain of about 5c.m. in diameter on front, upper portion two semen stains were detected on (Exh.3) the nicker (underwear) of the appellant. No blood is detected on the cloths of appellant and the prosecutrix. No semen is detected on the clothes of the prosecutrix and the pant of the appellant. The semen detected on the underwear of the appellant, was of human. Neither semen, nor blood was detected in the vaginal swab of the prosecutrix taken by the Medical Officer.