DADA LAXMAN GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present Appeals are preferred by the appellant challenging the judgment delivered by the Additional Sessions Judge, Pune on 26/2/2002 thereby convicting him (the accused) for the offences punishable under Sections 363, 376, 506 and 342 of the Indian Penal Code (Hereinafter referred to as "IPC"). By the impugned judgment, the appellant has been sentenced to suffer imprisonment of 7 years for the offence punishable under Section 376, sentence of 1 year for the offence punishable under Section 363 and for a period of 6 months each for the offences punishable under Sections 506 and 342 of IPC respectively. All the sentences have been directed to run concurrently.

(2.) Today the matter is taken up for final hearing. Shri Abhaykumar Apte is representing the appellant and learned APP Shri Ajay Patil is representing the State. In order to appreciate the contentions raised in Appeal, it would be necessary to briefly refer to the case of the prosecution and the findings recorded by the Sessions Court about the guilt of the appellant.

(3.) The learned counsel Shri Apte would vehemently submit that the Trial Court has felled into gross error in convicting the appellant on the basis of the material on record. He would submit that the prosecution has failed to prove its case beyond reasonable doubt and he would invite the attention of this Court on the two important aspects of the matter on which the Trial Court has grossly erred in observing the findings as against the present appellant. He would submit that prosecution has failed to establish the ingredients of Section 376 and did not adduce any cogent material on record to establish that the prosecutrix was below 18 years of age. He would submit that the prosecution ought to have discharged the said burden to demonstrate that the sexual intercourse alleged to be committed would amount to rape within the purview of Section 375 of IPC warranting the penalty under Section 376 of the said Code. He would also submit that in order to establish the crime of sexual intercourse, the doctors have been examined by the prosecution but the doctor i.e. PW 9 had categorically stated that there are no external injuries found on the body of the prosecutrix and he would also criticize the testimony of this witness on the ground that at the conclusion derived that there was evidence of "recent forceful penetrating sexual intercourse" was not based on any material but it was only an observation made by the medical practitioner without any basis. He would thus submit that the prosecution has failed to bring any evidence on record to rope in the accused person for commission of offences with which he is charged. He would also submit that when the age of the prosecutrix was in doubt, he could not have been connected with the said offence when his specific case was that the prosecutrix was not of the age of which has been depicted by the prosecution. He would thus submit that the Court below has committed gross illegality in convicting the accused.