PRAKASH JAGANNATH SHIRODKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal the appellant has challenged the judgment and order dated. 24. 11. 1993 passed by the 7th Additional Sessions Judge, Pune in Sessions Case No. 446 of 1992, convicting him under sections 376, 366 and 363 I. P. C. We may mention that under the first count, the learned trial judge awarded a sentence of 7 years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo two months rigorous imprisonment and under the second count a sentence of 3 years rigourous imprisonment and to pay a fine of Rs. 200/- and in default of payment of fine to further under go on one monthts rigorous imprisonment. We may also point out that under Section 363 IPC the learned trial judge has chosen not to award a separate sentence to the appellant. The sentences of the appellant under sections 376 and 366 IPC have been directed to run concurrently.

(2.) THE prosecution story in brief runs as follows: The prosecutrix Shittal Ginnilal Agarwal (P. W. I) was the daughter of Ginnilal Bhadrilal Agarwal (P. W. 3), who was employed at Yogna Poultry Farm. She used to sell coconut. On 9. 6. 1992 at about 5. 30 p. m. her father came at the shop where she used to sell coconut and asked her to go home. After about 1 1/2 hours the prosecutrix again came to the shop. Her father asked her to collect Rs. 65/- from one Shantaram which was due towards payment for coconuts. The shop of Shantaram was situate near Shadal Baba Darga. The prosecutrix went to collect the amount. Shantaram promised that he would come to her house and make the payment. Consequently the prosecutrix started returning back and when she had reached near Cheema Garden the appellant came in a Maruti Van and asked her to accompany him for a pleasure trip. The prosecutrix acceded to the request of the appellant and boarded the aforesaid Maruti Van. The appellant took the vehicle to Deccan College Dambar plant and parked the vehicle near the Vad tree within the premises of Deccan college. He asked the prosecutrix to marry him to which the prosecutrix consented. The appellant also asked her to have sexual intercourse with him. The prosecutrix also consented to this. Thereafter the appellant is alleged to have had sexual intercourse with the prosecutrix. After that both of them sat in the vehicle for 2 hours. Then the appellant brought the vehicle outside the compound of Deccan College. While he and the prosecutrix were sleeping in the vehicle the police I came there and took them to the police chowky along with the vehicle. At about 4. 30 a. m. on 10. 6. 1992 the police came and informed the informant Ginnilal Agarwal (P. W. 3) that his daughter was at Parnakuti Police Chowky along with the appellant. The informant came there and asked the prosecutrix who narrated to him the version mentioned above. The F. I. R. of the incident was lodged by Ginnilal Agarwal, father of the prosecutrix on 10. 6. 92 at Parnakuti Police Chowki, Pune. On the basis of the F. I. R. Maruti Yeswant Jagtap (P. W. 8) registered a case under sections 363, 376, 366 and 354 IPC, against the appellant. After completing the usual investigation he submitted the charge-sheet against the appellant.

(3.) GOING backwards, the medical examination of the prosecutrix was conducted by Dr. Arun Pundlik PW 9 of Sassoon Hospital, Pune. On medical examination Dr. Arun Pundlik found that there was injury on the hymen of the prosecutrix. It was 4 millimeter deep. It was actively bleeding on touch. In the opinion of the doctor the prosecutrix was habituated to sexual intercourse and there was probable evidence of recent forceful intercourse having been committed upon her. The injury report is Exhibit 47. In Exhibit 47 it has also been mentioned that the age of the prosecutrix according to her relations was about 15 years. In order to find out the exact age of the prosecutrix her radiological examination was conducted and on the basis of the same Dr. Perwani (P. W. 7) opined that she was aged about 13 to 14 years.