SARJERAO NAGOJI LAHANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal takes exception to the Judgment and Order passed by the Additional Sessions Judge, Brihan mumbai dated June 21, 2001 in Sessions Case no. 1425 of 1999 convicting the appellant/accused for offence punishable under section 376 r/w 511 of I. P. Code. Broadly stated, the prosecution case is that the accused was seen holding victim girl on his lap. victim, at the relevant time, was only 5 to 6 years of age. Meena (P. W. 2) , happens to be the maternal aunt of said victim. P. W. 2 claims to have witnessed the scene including the fact that the accused was inserting his finger in the private part of victim. As soon as P. W. 2 noticed that scene, she raised shouts whereupon accused threw away victim and escaped from the scene. P. W. 2 claims to have immediately informed her husband Babulal, who has been examined as p. W. 3. Both took her to the nearest Police station. Thereafter, they were directed to the government Hospital. she was admitted in the government Hospital and treated for the injury suffered by her. P. W. 6 Dr. Vilas R. Dhanuk has spoken about the nature of injuries found on the private part, to be of third degree. It is relevant to note that prosecution did not examine victim for the reasons mentioned by the investigating Officer (P. W. 8). The trial Court has accepted that explanation. Accordingly, the evidence regarding factum of rape has come on record only in the form of evidence of p. W. 2, who claims to have witnessed the incident.

(2.) As noted earlier, P. W. 2 in her statement before the police had stated that she saw accused holding victim on his lap and inserting finger in her private part. There is no specific mention of the fact that "his pant zip was open". However, before the Court P. W. 2 asserted that at the relevant time the chain of his (accused) pant was open. The witness has been cross-examined and she has admitted in paragraph-1 at page-36 of the cross-examination that she had told police that accused had inserted finger in the private part of her niece by taking her on his lap. She has further stated that she did inform the police that the accused had opened zip of "his" pant. The trial court has made note that the Spl. Public prosecutor accepted that there is no specific mention in the Statement of P. W. 2 before the police about the fact that zip of the pant of the accused was seen open by her. On this basis, the trial Court ruled that there was omission in respect of the words "his own pant's zip open". Referring to the above said evidence, the trial court in paragraph-17 of the impugned judgement has noted that even though the evidence of P. W. 6 Medical Officer establishes the fact that victim had sustained third degree injuries on her private part and was required to be operated, but then proceeded to hold that the substantive evidence regarding offence of rape was only of P. W. 2, in which the specific case established against the accused was only that she had seen the accused inserting finger in the private part of victim. The trial Court thus proceeded to hold that it cannot be said that the accused had committed rape on her as such. The trial Court then proceeded to hold that if P. W. 2 had not reached at the spot at that time, the accused would have been successful to satisfy his lust by committing rape on the girl of tender age. Inspite of this finding, the trial Court proceeded to convict the appellant for offence punishable under section 376 r/w. 511 of I. P. Code and directed that the appellant shall suffer rigorous imprisonment for period of 10 years. This decision is subject matter of challenge in the present appeal.

(3.) Indeed, the counsel for the appellant made fervent effort to persuade this court that the accused deserves to be acquitted having regard to the fact situation of the present case. According to him, the evidence of P. W. 2 was not sufficient to hold the accused guilty of the offence under section 376 or 511 of I. P. C. Firstly, her evidence is of interested person and given out of animosity. Besides, P. W. 2 did not identify the accused in court victim, who allegedly suffered the unsavoury act of the accused has not been examined by the prosecution. Other infirmities were also pressed into service to contend that the appellant should be acquitted of the charge.