RAVI SHANKAR BHAKRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant / accused by this appeal is taking exception to the judgment and order of his conviction and the sentence recorded by the learned 3rd AdHoc Additional Sessions Judge, Kalyan, recorded on 4th Nov. 2004, in Sessions Case No.164 of 2002, whereby, he was convicted of the offences punishable under Sections 363 and 376 of the IPC. The appellant/accused was sentenced to suffer rigorous imprisonment for a period of 2 years and to pay fine of Rs.500/, in default, to suffer rigorous imprisonment for 1 month, and for the offence punishable under Sec. 376 of the IPC, the appellant / accused was sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.3,000/, in default, to suffer rigorous imprisonment for 3 months.

(2.) According to the prosecution case, PW1 Yeshwant Bhima Sonawane was having two wives. His second wife PW2 Nirmala was residing at Village Soniwali with her two daughters namely, Kumudini, aged about 11 years and the victim girl, aged about 4 1/2 years. Her minor son, Siddharth Sonawane, aged about 1 year, was also staying with PW2 Nirmala. Kumudini and minor victim girl are step daughters of PW1 Yeshwant Sonawane. It is averred by the prosecution that on 27th Feb. 2002, at about 9.15 p.m., the accused came to the house of Nirmala at village Soniwali and slept there on the cot. Angry with this conduct of the accused, PW2 Nirmala then went to the house of her husband PW1 Yeshwant at village Eranjad, Mohpada, which is just adjacent to Village Soniwali. When the duo returned to the house of PW2 Nirmala at Village Soniwali, they found minor daughter of PW2 Nirmala missing. Pointing the finger of accusation against the accused, PW1 Yeshwant lodged report against him, which has resulted in registration of Crime No.I30/2002 for the offence punishable under Section 363 of the Penal Code against the accused. Within short time thereafter, missing minor daughter of Nirmala was found nearby her house by PW2 Nirmala. The minor female daughter was bleeding from her private part. She was then taken to the hospital. Sec. 376 of the Penal Code was then added to the case diary of crime in question, upon finding that the accused had committed rape on the minor female daughter of Nirmala. The investigation resulted in filing of the charge sheet against the accused and after due trial, the appellant / accused was convicted and sentenced as indicated in opening paragraph of this judgment.

(3.) Heard learned counsel Ms.Yogita Deshmukh appearing for the appellant / accused. She vehemently argued that evidence of PW2 Nirmala is coming on record by way of omission. This witness has not stated any material facts to police at the first instance, and therefore, her testimony needs to be ignored, as the same is result of improvement over her previous statement. The learned counsel further argued that PW3, who is alleged minor victim of crime in question has not identified the accused while in dock and she being a child witness, her evidence cannot be accepted to confirm the finding of guilt of the accused. Therefore, according to Ms.Yogita Deshmukh, the learned counsel for the appellant / accused, the appellant / accused cannot be convicted for the offence alleged against him, particularly when the alleged eye witness PW4 Ranjana Hatgade has not supported the prosecution case.