MANOHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by judgment and order dated 01.12.2005 passed by third Assistant Sessions Judge, Amravati in Criminal Appeal No. 51/2003, dismissing the appeal filed by the revision -applicant and confirming the judgment and order dated 18.06.2003 passed by Third Assistant Sessions Judge, Amravati in Sessions Trial No. 221/2002, thereby convicting the applicant for an offence punishable under Sec. 376 of the IPC and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/ -, the instant revision application has been filed by the applicant.

(2.) In support of the revision application, learned counsel for the revision applicant vehemently submitted that the courts below recorded conviction on the basis of the sole testimony of the prosecutrix M (PW3). According to him, the lower appellate Court itself has reversed the finding of fact recorded by the trial Judge holding that the age of the prosecutrix was about 18 years and not 14 years as was concluded by the trial Judge and, therefore, the theory of consent ought to have been examined by the Courts below in proper perspective. Relying on the decision of this Court in the case of Suryakant Yadao Gaikwad vs. State of Maharashtra; : 1991 (4) Bom. C. R. 603, he submitted that even if no suggestion or denial is made in the cross -examination of the prosecutrix, the Court always has a power to find out whether there was consent or not. He then submitted that the fact that there was consent of the prosecutrix is writ large from her evidence and, therefore, there is a reason to believe that the incident took place because of the consent of the prosecutrix. He, therefore, submitted that as such, no offence of rape is at all proved against the prosecution. He further submitted that the medical evidence does not support the solitary testimony of the prosecutrix in the absence of which no conviction could have been recorded. He then submitted that evidence of Chandrakala (PW4) mother of the prosecutrix shows that she was told about the incident by her daughter -prosecutrix in the night itself and report was lodged in the morning, which is material inconsistency in the evidence of the prosecution witnesses. He then submitted that there was love affair between the applicant and prosecutrix and, therefore, in the appellate Court, an affidavit was filed but the appellate Court did not take cognizance thereof. He then cited several judgments as under: -

(3.) Per contra, Mr. Mirza, learned A.P.P. submitted that there are concurrent findings of facts recorded by the Courts below for arriving at a conclusion regarding the incident of rape or consent which cannot be disturbed in revisional jurisdiction as there is no jurisdictional error committed by the courts below. He further contended that though the appellate Court reversed the finding of fact about the age or the prosecutrix that would make no difference since the prosecution amply proved want of consent to which, there is no suitable answer in the cross -examination and as a matter of fact, her evidence went unchallenged. Mr. Mirza, further submitted that the affidavit filed before the lower appellate Court does not at all help the accused because it does not speak anything about the incident and, therefore, the same was rightly kept out of consideration. He then submitted that the prosecutrix and her mother came to the village Mardi, three months before the incident and, therefore, there was remote possibility of love affair, as contended by the revision applicant. He, therefore, submitted that the heinous offence of rape was committed by the applicant and no interference can be made with the same in the present jurisdiction.