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 abovereferred. 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 punisable 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 :

(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 case of the prosecution reflect that the victim, lodged a complaint with vaduj Police Station on 11th August, 1987 stating that a person from her village by name Suresh Shankar Jadhav had committed rape on her at 1. 30 p. m. Thereafter, first Information Report was recorded. This complaint came to be registered as Crime no. 78 of 1987 under section 376 of the code and Entry No. 18 was made in the station Diary. The victim was examined during the trial as P. W. 7 where she stated the facts which are quite in line with the complaint lodged by her. The prosecutrix was studying in 7th standard. Her father is a Tailor, brother Mahesh is a Painter and elder sister Manjusha was doing household work. According to her, on 11th August, 1987, she along with her brother and sister was going to Balubai Devi of Umbarda. She was going on cycle with her brother. They all met in the temple Balubai. They were returning while walking upto umbarda, when Suresh Shankar Patil was coming from behind on his cycle. Brother of the prosecutrix asked Suresh Patil to carry her on his cycle. She was sitting on the bar of cycle and he had kept some books etc. on the carrier of the cycle. The accused instead of dropping the victim on the hillock of the road, carried her to his house. The house was locked. The accused asked her to wait there with his books and went to bring key from his land. After nearly 5 to 10 minutes, he returned and after opening the lock, he entered into the house and called the victim and told her that he would provide her with groundnuts. She went to the house of the accused. According to the victim, the accused closed the door, caught hold of her, made her lie on the ground on the gunny bag, and after lifting her parkar, lowering her nicker and removing his pant, he inserted his penis in the private part of the victim. Because of this, there was bleeding from her private part. There was some whitish liquid and blood spread over on gunny bags and her clothes which were wiped out by the accused by using paper from exercise book and threw it near the door. Thereafter, he released the victim and opened the door. When the victim was wearing the clothes, her brother came. Her brother inquired frpm her as to what had happened. When the accused was asked by her brother, the accused told him that the victim was eating groundnuts in the house and then she went back with her brother to the house.