BHASKAR DAULAT VAIRALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence dated 27th June 1988, passed by the learned Sessions Judge, Ahmednagar in Sessions Case No.8 of 1988, convicting the appellant-accused for the offence punishable u/s. 376 of I.P.C. and sentencing him to suffer R.I. for 3 years and to pay a fine of Rs.1000/- in default, R.I. for 6 months. He was also convicted for the offence punishable u/s. 506 I.P.C. and sentenced to suffer R.I. for 3 months. The substantive sentences were ordered to run concurrently.

(2.) THE prosecution case in brief is that the prosecutrix Dwarka was living with her father Keru Jadhav at Rahuri Budruk and was working in the field of one Suresh Unde. On 25.8.1987 at about 7.30 a.m. she carried vegetables to Rahuri Market and after handing over vegetables when she reached along the road by the side of sugarcane field of Orig. accused No.2, the appellant-accused suddenly emerged from the field and caught hold of her hand. He then gagged her mouth with small napkin and lifted her to the shed in the field and committed forcible sexual intercourse with her against her wish. It is alleged that thereafter the appellant-accused and original accused No.2 threatened the prosecutrix with dire consequences. It is alleged that the prosecutrix disclosed the incident to her mother by reaching the house. THEreafter, complaint was lodged in the form of F.I.R. (Exh.18) at Rahuri Police Station by the prosecutrix. THE prosecutrix was referred to Civil Hospital, Ahmednagar for medical examination. Panchanama of the place of offence was also done and the appellant-accused was arrested. THEreafter, necessary investigation was carried out.

(3.) HAVING gone through the record and proceedings of the prosecution case, it is settled law in the case of rape that if the evidence of prosecutrix inspires confidence and if the court is fully satisfied with her evidence, then it that case, conviction could be based on sole evidence of the prosecutrix and it need not require any corroboration. In the instant case, evidence of P.W.4 the prosecutrix is a clinching evidence which need not require any corroboration to the fact that the appellant-accused had forcibly committed sexual intercourse with her. However, the medical evidence Exhibit 16 does not say that there was a recent intercourse with the prosecutrix. Further, the medical opinion is that there was no symptom found of recent intercourse by the appellant-accused. The learned counsel Mr. Thorat urged that no offence has been committed by the appellant under section 376 I.P.C.. In view of the clinching evidence of the prosecutrix, P.W.4, I am unable to accept this submission of the learned counsel. However, the Exhibit 13 medical certificate speaks much about the veracity of the prosecutrix. In the examination of genitals, it is stated - Vagina - distensibility 2 fingers. If we take this medical evidence as it is, it shows that the prosecutrix might be habitual in sexual intercourse before this incident also. In view of these facts and circumstances, I hold that the order of conviction passed by the learned Judge is legal and just but in view of the above discussion regarding the medical certificate, I think the ends of justice will be met if the order of conviction is maintained and the order of sentence is reduced to the period already undergone by the appellant-accused. The appellant-accused is an agriculturist as well as the prosecutrix is also an agricultural labour. It is quoted at the bar that the appellant-accused is a married man having wife and three children to feed. Further, the learned counsel has stated at the bar that the prosecutrix has also got married and settled in her life. Under these facts and circumstances, the order of sentence is modified to this extent.