MUNJA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Convict for offence punishable under Sec. 376 of the Indian Penal Code [IPC] is hereby assailing the judgment and order passed by learned Additional Sessions Judge dtd. 13/11/2019 in Session Trial No. 161 of 2011 wherein appellant is sentenced to suffer seven years rigorous imprisonment and to pay fine.

(2.) Bori police station filed challan against the present appellant for offence punishable under Ss. 363, 366-A, 376, 506 of IPC alleging that, when victim PW2 was proceeding towards village at around 6.00 a.m. on 9/8/2011, accused appellant approached her, offered to marry her and further suggested that they should run away and perform marriage. Around 10.00 a.m., her parents went to work in the field and her other siblings went to Jintur and school respectively and around 7.00 p.m. that day, when she was alone in the house, she left the house and accompanied accused, who took her towards a mal near water tank and on promise of marriage, he had forcible intercourse with her and thereafter he threatened to finish her if she reports the incident to anyone. Accused then took her to Sailu and then to Nashik and kept her in the house of his relative for two days. Subsequently, he also refused to marry her. Therefore she came back to Parbhani on 12/8/2011, narrated the incident to her family members and approached Bori Police Station on 13/8/2011 and on her report, crime no. 96/2011 was registered which was investigated and after gathering sufficient evidence, chargesheet against the appellant was submitted before learned Sessions Court. On assignment of case to the learned Additional Sessions Judge-3, Parbhani, trial was conducted, during which prosecution examined in all six witnesses and on appreciating the evidence, learned trial Judge reached to a finding that prosecution has established the charges but only for offence punishable under Sec. 376 of IPC and there being no cogent, reliable evidence for commission of offence under Ss. 363, 366-A and 560 of IPC, accused stood acquitted for the same. Said judgment is now taken exception to by filing instant appeal.

(3.) Learned counsel would submit that apparently implication is false. That, there is delay of almost 5 days in reporting the occurrence. That victim is above 18 years of age. That, her own evidence suggested that she left the house on her own. There is no cogent, reliable evidence regarding accused calling her or taking her towards any water tank. He would point out that in fact she had stayed with accused at Nashik for three days and there was no resistance or complaint to anyone. Medical evidence is also not supporting prosecution but learned trial court, though acquitted accused from charge under Ss. 363, 366-A and 506 of IPC, has unfortunately held him guilty for offence under Sec. 376 of IPC. He submits that, there is improper appreciation to that extent and therefore, he seeks indulgence of this court for setting aside the impugned judgment. He also pointed out that very Investigating Officer has not been examined. He seeks reliance on the rulings of the Hon'ble Apex Court in State of H.P. v. Suresh Kumar @ Chhotu AIR 2009 SC 1109 and State of Maharashtra v. Lingabai Maroti Sahane 2018 (2) ABR (Cri) 187.