STATE OF MAHARASHTRA Vs. SURENDRA KUMAR MEVALAL MAHESH

JUDGEMENT

(1.) THROUGH this appeal, preferred under section 378 (1) Cr. P. C. , the State of Maharashtra impugns the judgment and order dated 26-4-1985 passed by the Additional Sessions Judge, Nasik in Sessions Case No. 72 of 1984 acquitting the respondent for an offence under section 366 I. P. C.

(2.) IN short, the prosecution case as contained in the statement of the prosecutrix is as under the prosecutrix Nirmala Pandurang Bachke P. W. 1 lived with her parents in the premises of Artillery Centre, Nasik Road. On the date of the incident i. e. 3-1-1984, she was studying in 9th standard in the Central School. About 2/3 days prior to 3-1-1984 her father under the influence of alcohol abused her and her mother. The respondent who lived in the same locality and knew her from before and used to study in the Central school, told her that since her father was illtreating her, she should elope with him and he would marry her. On the night of 2-1-1984, he gave her a letter Exhibit 9 mentioning therein that she should leave her home on the pretext of going to school and meet him and thereafter the two of them would go to Delhi and marry. She told him the same night, as also the next morning, that she could not come with him but since he threatened that he would commit suicide, she was left with no option but to give in. She kept the letter in her school bag. On 3-1-1984, sometimes in the morning, she started from her house ostensibly for going to the school but, instead went to her cousin sisters place. While she was sitting on the door of the latter, the respondent came on a cycle, signalled to her and made her forcibly sit on the same. In order to avoid an embarassing situation, she relented. Thereafter, he took her to the house of his maternal aunt Anguribai Manulal Pardeshi P. W. 2 at Bhagur. The same evening, she along with the respondent came to Deolali Camp Railway station by a rickshaw. There she told the respondent that she would go back but he insisted that they would go to Delhi. At about 11. 30 p. m. the same night they boarded Janta Express and reached Bhusawal at 4 a. m. At Bhusawal, she asked the respondent to take her to Nasik but the respondent made her board a train at 8 a. m. which was proceeding for Agra telling her that they would reach Nasik by 8 p. m. Thereafter, by the said train she and the respondent reached Agra where they stayed at the house of maternal aunt of the respondent. Next day, they went to Delhi. At Delhi, they stayed at the place of the elder sister and brother-in-law of the respondent, one Prabhudayal Bansilal Sore P. W. 3. The prosecutrix has stated all along she was taken by the respondent against her wishes. Prabhudayal Sore sent a telegram to the father of the respondent on 8-1-1984. On 11-1-1984, he (Prabhudayal) received the telegram that the latter was coming to Delhi. Same night, police came, took the prosecutrix and the respondent and brought them to Nasik. Going backwards, it would be pertinent to point out that on 5-4-1984 Chandrakumar Pandurang Bachke P. W. 8 brother of the prosecutrix lodged a report at Nasik Road Police Station alleging therein that his sister Nirmala Pandurang Bachke was missing. On the basis of the said report, PHC Popat Narher Sali P. W. 10 registered a case that the prosecutrix was missing.

(3.) THE prosecutrix Nirmala was medically examined on 17-1-1984 at General Hospital Nasik by Dr. (Mrs.) I. S. Matha. Since the genuineness of the medical report has been admitted under section 294 Cr. P. C. Dr. (Mrs.) Matha was not examined. Dr. (Mrs.) Matha found her hymen torn, the vagina admitting one finger easily and absence of injuries on her body. She got radiological examination done to determine her age and on its basis opined that she was aged between 15 to 17 years. She also opined that there were no signs of intercourse within 48 hours.