STATE OF MAHARASHTRA Vs. SURESH SHANKAR JADHAV

JUDGEMENT

(1.) The Accused Suresh Shankar Jadhav was charged for an offence punishable under Section 376 of the indian Penal Code hereinafter referred to as the "code" and Section 57 of Bombay Children Act, 1948. The learned Trial Court, vide its judgment dated 30th November, 1989, found the accused not guilty and acquitted him'of the charge above-referred. The State being aggrieved from the said judgment of acquittal recorded by the Trial court (IInd Additional Sessions Judge, Satara)filed an application for leave to appeal which was granted by a Division Bench of this Court on 25th June, 1990. The case came up for regular hearing before another Division Bench of this Court and the Court, vide its Judgment dated 4th May, 2007 upheld the order of the trial Court acquitting the accused of the offence punishable under Section 376 of the code, however, convicted him for an offence punishable under Section 376 read with Section 511 of the Code as well as Section 57 of the bombay Children Act. The Court sentenced the accused under Section 376 read with Section 511 of the Code to suffer rigorous imprisonment for a period of five years and to pay fine of rs. 3,000/- in default to suffer rigorous imprisonment for three months. The Court also sentenced the accused under Section 57 of the bombay Children Act to suffer rigorous imprisonment for two years and to pay fine of rs. 1,000/- in default to suffer rigorous imprisonment for one months. This judgment of the Court was assailed by the accused in appeal before the Supreme Court where the leave was granted and Criminal Appeal No. 1454 of 2007 was heard and the same was disposed of by passing the following order : "the Appeal abovementioned being called on for hearing before this Court on the 22nd day of October, 2007, UPON perusing the record and hearing counsel for the parties herein, THIS COURT, inter alia, PASS the following ORDER :

(2.) Resultantly, upon remand, this appeal has came up for hearing before this bench. Various contentions have been raised, the merit or otherwise of which can be examined by this Court but before that, reference to the facts of case of prosecution would be necessary.

(3.) The learned trial Court had framed charge against the accused for committing an offence punishable under section 376 of IPC and under section 57 of the Bombay Children act vide charge dated 23rd October, 1989 (Exhibit 3 ). Upon completion of the prosecution evidence, statement of the accused was recorded under section 313 of the Criminal procedure Code (Exhibit 4) wherein the accused stated that the prosecution story was false. Finally, the learned trial court came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and consequently, acquitted the accused of both the offences. As already noticed, the State has preferred present appeal against the judgment of acquittal of which leave has been granted by the court. It is contended on behalf of the State that the learned trial court has ignored the relevant piece of oral as well documentary evidence. The evidence of the expert (Doctor pw-11) was in total contradiction to the other evidence and ought not to have been relied upon solely to acquit the accused. It is also argued in the alternative while relying upon the judgment of the Supreme Court in the case of Premiya @ Prem Prakash Vs. State of Rajasthan, 2008 AllMR(Cri) 3203 that the offence under section 354 read with section 511 had been proved and the learned trial court in any case should have convicted the accused for that offence. The statement of the prosecutrix was fully corroborated and supported by the statement of other witnesses i. e. Investigating Officer as well as the report of the Chemical Analyser (Exhibit 41 ). As such, there was no justification before the learned trial court to acquit the accused of a heinous crime like raping a minor girl. However, on the other hand, it is contended while relying upon Ghurey lai Vs. State of U. P., 2008 AllMR(Cri) 2873 on behalf of the respondent-accused that in case of an acquittal, normally the Appellate court should not interfere. It is also contended that there was expert and other evidence which has been rightly taken note of by the learned trial court in addition to the fact that the FIR itself was lodged after great delay and that justifies the acquittal of the accused and as such this court should not interfere in the finding of the judgment under appeal.