LAWS(BOM)-1996-4-24

MANOJ MANDREKAR Vs. STATE OF MAHARASHTRA

Decided On April 17, 1996
MANOJ MANDREKAR Appellant
V/S
STATE (THROUGH P.P.) Respondents

JUDGEMENT

(1.) THE appellant was tried for the offence of rape on prosecutrix aged 7 years and has been convicted by the impugned judgment, which is challenged in this appeal, to undergo Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default. six months Rigorous Imprisonment. The period of detention during the trial with effect from 27-1-92 to 27-2-92 has been ordered to be set-off in accordance with Section 428, Cr. P. C. The appellant has been convicted under Section 376 (2) (f) of the I. P. C.

(2.) THE prosecution case lies in a narrow compass. The appellant along with his parents are staying in a house in separate portion and the other portion of the house is occupied by the father of the prosecutrix. The father of the appellant and the father of the prosecutrix are brothers. Besides the said brothers, the other brothers are also occupying the joint house, but all of them live in separate portions. The prosecution case is that on 26th January, 1992 prosecutrix went to the School at about 8. 00 a. m. to attend flag hoisting ceremony in the School and returned back at about 10. 00 a. m. The father of the prosecutrix and her mother had left the house and the only other member of their family namely the brother of the prosecutrix was also not there in the house on that day. After the prosecutrix returned from the flag hoisting ceremony, she removed her dress which she had worn for the purpose of attending flag hoisting ceremony and put on a petticoat after which she went out of the house to look for her mother. When she reached near the Tulsi plant, which is in front of their house, the appellant caught hold of her mouth, lifted her and took her to the cattle shed. Thereafter the appellant removed her underwear as well as his own underwear and had sexual intercourse with her. The prosecutrix had bleeding injuries and swelling on her private parts. In the evening at about 6. 00 p. m. , the mother of the prosecutrix, who has been examined as P. W. 8, returned home and found the prosecutrix lying on a bench. On seeing her mother, the prosecutrix started crying. P. W. 8, mother of the prosecutrix made inquiries with the prosecutrix as to what had happened, but initially she was reluctant to say anything. However, when she persisted in making inquiries with her, she revealed that the appellant had sexual intercourse with her and as a result of which she was bleeding and there was pain in her private parts. P. W. 8 found that the underwear of the prosecutrix was missing and the private parts of the prosecutrix were swollen. The prosecutrix was even finding it difficult to stand or sit. In the meantime the father of the prosecutrix also arrived. The mother of the prosecutrix informed him what had happened. He also independently made inquiries with the prosecutrix and the prosecutrix also revealed to him as to what had happened. The father of the prosecutrix tried to contact the appellant and his father, but they were not available in the house. Thereafter the father of the prosecutrix took her to the Police Station and lodged F. I. R. (Exh. PW. I/a ). The said F. I. R. was lodged at 22. 15 hours on 26-1-92 itself. On the same night, the Police recorded the statement of P. W. 8, mother of the prosecutrix. On 27-1-92 the prosecutrix was sent for medical examination to Goa Medical College where Dr. Audi, P. W. 4 examined her. On examination he found that on the private parts of the prosecutrix there was a bruise of 4 x 3 cms. in inner part of both libia majora and besides that there was a tear of 0. 5 cms. x 0. 5 cms. on the fourchette. He did not find any injury on the hymen. The margin of tear in the fourchette was bleeding on touch and swollen. In the opinion of Dr. Audi, P. W. 4 a hard and blunt object may be erected penis penetrated in the private part causing tear in the private part. The age of the tear was less than 24 hours at the time of examination and at any rate it could not be more than 36 hours.

(3.) ON 27-1-92 the appellant was found lying near the house of his Aunt and she reported the same to Arvind Pednekar, P. W. 10. The said Arvind Pednekar informed the Police. The appellant was sent for examination to Asilo hospital where he was examined by Dr. Maria Silva, P. W. 3 at 6. 00 p. m. on 27-1-92. According to her, she examined the appellant, who was brought by Mapusa Police, with the history of consumption of poison. The appellant was arrested and after completing the investigation charge-sheet was filed.