APPASAHEB MARUTI SHEDGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANT is challenging the judgment and order passed by the 7th Ad-hoc Additional Sessions Judge, Pune in Sessions Case No. 420 of 2002 dated 26/11/2002 whereby the appellant was convicted under section 376 (2) of the Indian Penal Code and was sentenced to undergo R. I. for seven years and to pay fine of Rs 5,000/- and in default suffer S. I. for one year.

(2.) PROSECUTION's case is that the daughter of the complainant while returning home after purchasing the vegetables from the market was called by the accused in his house and she accompanied the accused in his room on the first floor. Thereafter? the accused closed the door and committed rape on her and, thereafter, when the prosecutrix went back to her house, she narrated the incident to her mother. The incident in question is alleged to have taken place on 12/7/2002. Thereafter, the complainant had gone to see the accused and had given two slaps on his face and asked as to what he had done to her daughter. At that time, landlady Latabai Shedge and a neighbour Saira Bhabhi were present when the complainant told them what the accused has done to her daughter. Then she became unconscious and was taken to the hospital. After regaining the consciousness in the hospital, the complainant came back to the house and took her daughter to Dr. Sunita Jain and narrated the incident to her. After giving primary aid, the complainant was asked to go the Police Choki for lodging the complaint and a letter was given by Dr. Sunita Jain referring the prosecutrix too the Sasoon Hospital. The complainant went to the Police Station on 18/7/2002 i. e. after a lapse of six days. On 17/7/2002, the complainant had shown the prosecutrix to Dr. Pritish Aher and got sonography of the prosecutrix done. The report, thereafter, was submitted to Dr. Sunita Jain. Offence under section 376 (1) 377 of the Indian Penal Code was registered and the prosecutrix was referred to Sasoon Hospital for medical examination. The accused was arrested on 18/7/2002. The Investigation Officer completed investigation and a charge was framed against the accused under section 376 (2) (f) of the Indian Penal Code. The Trial Court convicted the accused under section 376 (2) (f) of the I. P. C. and sentenced him to undergo R. I. for seven years and to pay fine of Rs 5,000/ -. Against the said judgment and order? the appellant has preferred this appeal.

(3.) IT is strenuously urged by the learned Counsel appearing on behalf of the appellant that there was a gross delay in filing the complaint which was not explained by the prosecution. He further submitted that the prosecutrix was not examined by the prosecution. It is submitted that the prosecutrix Ramiza was a child capable of understanding and was, therefore, a competent witness. He submitted that the finding given by the Trial court accepting the explanation of the prosecution for non-examination of the prosecutrix was illegal. It is submitted that the conviction was based on mere suspicion and that there was no legal proof to sustain the order of conviction. It is submitted that the complainant made number of improvements in the case on material aspects. Further? it is submitted that there was a contradiction between the evidence of the complainant and her brother Razaaq - P. W. 4. It is further submitted that the medical evidence did not support the prosecution's case. The sonography report which was given to the Police by P. W. 4 was not even filed or proved by the prosecution. It is further submitted that the statements of Latabai Shedge and Baby Shedge were not recorded. It is further submitted that though the accused was sent for medical examination at Sasoon hospital; the medical certificate was not obtained by the Investigating Officer. He further submitted that the prosecution also has not submitted the report of the Chemical Analyser in evidence. The learned Counsel appearing on behalf of the appellant accused has also relied upon the number of judgments of the Apex Court as also of this Court.