POPATLAL JETHABHAI SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Appeal by the accused is directed against the Judgment and Order dated may 30, 2001 passed by the 2nd Additional sessions Judge, Kalyan in Sessions Case no. 1307 of 1996. The Appellant/accused has been convicted for having committed offence punishable under Section 376 (2) (f) of the Indian penal Code, 1860 (hereinafter referred to as 'the code') and ordered to undergo sentence of rigorous imprisonment for ten years and to pay fine of Rs. 5,000/- (Rupees Five Thousand Only) , in default, to suffer further rigorous imprisonment for one year.

(2.) In short, the prosecution case is that---------- (PW-2) (hereinafter referred to as 'the prosecutrix') , who was at the relevant time aged 10 years, after coming from her school on 16th November, 1995 at around 12. 30 p. m. happened to visit the grocery shop of the appellant, which was near her house. The appellant called her inside the shop. After the prosecutrix entered the shop, Appellant/accused closed the front door of the shop. The Appellant had residential premises attached to the shop on the rear side. It is stated that after closing the front door of the shop, the Appellant removed the underwear of the prosecutrix. He then removed the chain of his pant and took out his private part. He made the prosecutrix to bend. The accused then stood behind the prosecutrix and lifted the prosecutrix up to his waist by holding the prosecutrix by stomach with both his hands. After lifting her up to his waist height, it is alleged that the accused then placed his penis on the private part of the prosecutrix and then started moving the prosecutrix back and forth and criss-cross, due to which the prosecutrix experienced pain at her private part. As a result, the prosecutrix started shouting, whereupon, the accused put the prosecutrix back on the floor and pressed her mouth. At that time, blood started oozing out from the private part of the prosecutrix. The accused immediately gave paper to the prosecutrix and told her to clean the blood stains. The accused also asked the prosecutrix to wash her underwear, which was bloodstained. As the bleeding did not stop, the accused poured pepsicola on the private part of the prosecutrix. Thereafter, accused gave Rs. 3/- (Rupees Three) and toffee to the prosecutrix and threatened her not to disclose the incident to anybody and go home and sleep. It is stated that prosecutrix, on reaching home, disclosed the incident to her sister and maternal uncle. Her maternal uncle (PW-9) immediately took the prosecutrix for medical examination to Dr. Shyam Trimbak Dhonde (PW-7). However, on disclosing that it was a case of rape, the said doctor PW-7 declined to treat the girl and asked her maternal uncle to inform the police as it was a medicolegal case. The maternal uncle (PW-9) along with the prosecutrix returned home and waited for the mother of the prosecutrix who had gone to the market as she was engaged in business of sale of vegetables. The father of the prosecutrix was away from home, as he was serving as peon in New High School at Kalyan. It is stated that the mother (PW-1) returned home in the evening at around 7. 00 p. m. When the mother returned home, prosecutrix went in the arms of her mother and started weeping. Thereafter, she narrated the incident to her mother. The mother accordingly proceeded to the Police Station and registered the complaint (Exhibit 16). The entire episode as unfolded and disclosed by the prosecutrix was given by the mother to the Police which was reduced into writing. After the complaint was registered, the police Officer commenced investigation. The prosecutrix was referred to hospital for examination on the same night i. e. night between 16th and 17th November 1995. Dr. Vijaya Atul band (PW-6) examined the patient when the patient was admitted to the Kalyan Municipal hospital, the history of injury was given as rape. After examining the prosecutrix, Medical Officer of the Hospital issued medicolegal certificate (Exhibit 31) which reads thus:

(3.) The Police, in the course of investigation, visited the scene of offence and arrested the accused. Arrest panchanama was prepared in the presence of independent panchas. The police also seized the bloodstained clothes from the person of accused as recorded in the seizure panchanama. The bloodstained clothes of the prosecutrix (frock, skirt and nicker stained with blood) were also seized under panchanama. The seized articles were sent for chemical analysis. The Chemical Analyser's report would indicate that the bloodstains found on the clothes of the accused were of 'a' group which resembled the blood group of the prosecutrix. The blood group of the accused is found to be "o". The bloodstains found on the clothes of the prosecutrix were also of the same blood group 'a'. On the basis of material collected during investigation, the Police proceeded to file charge-sheet against the Appellant/accused for offence under Sections 342, 376 (2) (f) and 506 of the Code. The case was committed for trial to the Sessions Court. The Sessions Court framed three charges against the Appellant/ accused. The Appellant pleaded not guilty. Accordingly, the prosecution examined, in all, ten witnesses and also produced and proved the relevant documents and articles such as complaint (Exhibit 16) , panchanama of arrest of accused (Exhibit 20) , panchanama of scene of offence (Exhibit 21) , panchanama of attachment of clothes of prosecutrix (Exhibit 23) , Chemical analyser's reports (Exhibits 25, 26 and 27) , medical certificates of prosecutrix (Exhibits 31 and 32) , certificate regarding date of birth of prosecutrix (Exhibit 36) and panchanama (Exhibit 45). The Appellant/accused himself entered the box as defence witness No. 1. On the analysis of the evidence which came on record during the trial, the Trial Court, by the impugned Judgment and Order proceeded to convict the Appellant for offence under Section 376 (2) (f) of the Code. But acquitted him of offence punishable under Section 342 and 506 (ii) of the Code. The Trial Court passed the following operative order: