PRAKASH @ JAYWANT VASUDEO WANKHEDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application by appellant/accused under Section 391 of the Code of Criminal Procedure, 1973 (Cr.P.C. for the sake of brevity) for recording of additional evidence of Sonali Manoj Deore mother of the minor girl - an alleged victim of sexual abuse and Sunanda Suresh Deore paternal grandmother of alleged victim as well as for further cross -examination of PW -10 the alleged minor victim of sexual abuse. The applicant/accused is father of Sonali Deore and grandfather of the minor girl alleged to be victim of sexual abuse by him. Keeping in mind social object of preventing social victimization of the victim and the object of Section 228 -A of the Indian Penal Code, 1860, we consider it appropriate not to give name of the victim. Rather we intend to describe her as minor victim girl. At the request of the learned counsel for the applicant/accused, the application is taken up for hearing prior to final hearing of the appeal.

(2.) THE FIR lodged on 25.8.2009 by PW -7 Major Suresh Deore - son in law, has resulted in prosecution of the applicant/accused for the offences punishable under Sections 376, 376 read with Section 511 and 506 of Indian Penal Code 1860(IPC for the sake of brevity) vide Sessions Case No. 160 of 2010. After trial, the learned Additional Sessions Judge, Dhule, by impugned judgment and order dated 18.2.2012 has been pleased to convict the applicant/accused of the offences punishable under Sections 376 r/w. 511 and 506 of the IPC. The applicant/accused came to be acquitted of the offence punishable under Section 376 of the IPC.

(3.) SHRI Dhorde, learned Senior Counsel appearing for the applicant/accused, after pointing out the relevant dates coming on record from the evidence of informant - PW -7 - Manoj Deore, contended that the minor victim girl was having tons of opportunity to disclose the incident to her own mother - Sonali Deore. He further argued that the mother is most natural witness in such case and as the alleged victim girl stayed with her grandmother - Sunanda Deore, evidence of said Sunanda ought to have been recorded by the learned trial court. According to the learned Senior Counsel, the Investigating Officer has recorded statement of both these witnesses under Section 161 of the Cr.P.C. However, the prosecution has failed to examine these witnesses and thereby, prejudice is caused to the applicant/accused. According to the learned Senior Counsel, there used to be constant quarrels between informant Manoj and his wife Sonali and because of this matrimonial discord, the applicant/accused is roped in a false case after procuring the medical evidence. The applicant/accused is deprived of fair trial due to non -examination of these material witnesses by the prosecution. Placing his reliance on SudevanandVs. State through CBI reported in (2012) 3 SCC 387, Shri Dhorde, learned senior counsel submitted that delay in filing an application under Section 391 of Cr.P.C. does not come in way of entertaining the same.