SUNIL KASHINATH SHELKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellant vide Judgment and Order dated 13th February, 2014, passed by learned District Judge - 5 and Additional Sessions Judge, Thane, in Sessions Case No.41 of 2010, has been convicted and sentenced as under:-

(2.) According to the prosecutrix (PW1), on 10th March, 2009, i.e. on the Holi day, at around 9.00 p.m. PW2 (a friend of the prosecutrix) came to her house to play holi; that at around 10.00 p.m. when she was playing holi in her pada, 3 accused including the appellant dragged her to the river, which was approximately 10 minutes walking distance; that the appellant raped her at the said spot; that thereafter, the appellant held her; that in the morning she removed the appellant's hand and returned home, after he fell asleep. According to the prosecutrix, her relatives were looking for her for the whole night and that on her return, she informed the incident to her parents and to the villagers and that there was some settlement that took place in writing. She has stated that as the appellant refused to marry her, she lodged a complaint, as against the appellant for the offences punishable under Sections 366A, 376(2)(g), 341, 504, 506 r/w 34 etc., of the Indian Penal Code. During investigation, the appellant and other two co-accused came to be arrested. The clothes of the prosecutrix were seized under a panchanama and after investigation, charge-sheet was filed as against the accused including the appellant in the Court of learned Judicial Magistrate First Class. Since the offence under Section 376(2)(g) of I.P.C. was triable by the Court of Sessions, the case was committed to the Court of Sessions, for trial.

(3.) Mr.Vivan, learned Amicus Curiae submitted that the prosecution had miserably failed to prove that the prosecutrix was a minor, below 16 years at the time of the alleged incident. He further submits that the medical injuries do not corroborate the allegations of rape; that the prosecutrix had not spelt out the nature of the act of "rape" in order for it to constitute an offence; that the Settlement Deed does not show that the appellant had raped her, but it only shows that they were together through the night. He submits that on the basis of this evidence, conviction of the appellant cannot be sustained.