AMOL NILKANTH AWAGHAN Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by judgment and order dated 28.11.2012 in Sessions Case No.126/2011, by which the appellant was convicted for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.7,000/ in default to undergo rigorous imprisonment for one year, this appeal was preferred by the appellant.

(2.) It is the case of the prosecution that on 10.06.2011 at about 7.00 a.m. the prosecutrix, who is a minor girl of 9 years, was at house when the appellantaccused Amol Nilkanth Awaghan came to her house, watched television for some time and then told her that her toys were lying in the field and should collect them. At about 8.30 a.m., she went to bring her toys when the appellant followed her in the field and took her to cattleshed and committed rape on her. Thereafter, he went away. The prosecutrix came from the road weeping and told the incident to her mother and, thereafter, the FIR was lodged with Police Station vide Crime No.11/2011. The accused pleaded not guilty and as such was tried. The appellant was convicted for the offence of rape of minor girl and was sentenced as above. Hence, this appeal.

(3.) Mr. Daga, learned counsel for the appellant, submitted that the evidence of PW1Ku. S. ought to have been rejected by the trial court since she was a child witness and she admitted in the crossexamination that she was deposing before the Court as told to her by police. He then submitted that she was, therefore, tutored to depose against the appellant in the court and there was enmity between the parties as earlier a quarrel took place between father of the accused Amol and uncle and aunt of prosecutrix for keeping bullocks in the shed as bullocks of the accused who used to tie them in the cattleshed of father of the prosecutrix. He, therefore, submitted that it was risky to rely on the evidence of the prosecutrix. At any rate, according to him, in the alternative, looking to the medical evidence, there was hardly any evidence about the actual commission of rape and at the most, looking to the entire medical evidence, it can be said that an offence of attempt to commit rape could be constituted and nothing more and, therefore, sentence of appellant deserves to be reduced. Learned counsel for the appellant relied on judgments in Vijay Abhiman Barahate..vs..State of Maharashtra, 2013 ALLMR(Cri) 2004, Umesh s/o Ramesh Supe ..vs.. The State of Maharashtra, 2014 ALLMR(Cri) 3863 and Vasant Hindurao Patil ..vs.. The State of Maharashtra, 2012 ALLMR(Cri) 160.