SAGAR @ SHIVA BHARAT PAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/convicted accused is challenging the judgment and order dated 31 st August 2015 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Greater Mumbai, in Sessions Case No.599 of 2014, thereby convicting him of offences punishable under Sections 366 and 376(1) of the Indian Penal Code. On first count, the appellant/convicted accused is sentenced to suffer rigorous imprisonment of 7 years apart from direction to pay fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for 4 months. On second count, he is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for 4 months.

(2.) Facts, in brief, leading to the prosecution and resultant conviction of the appellant/accused, can be summarized thus :

(3.) I have heard Ms.Anjali Awasthi, the learned counsel appearing for the appellant/convicted accused, at sufficient length of time. She took me through entire record and proceedings and contended that in order to prove the fact that the appellant/convicted accused is a married person, the prosecution ought to have examined mother of the appellant/convicted accused, who was, allegedly, maintaining his children. Non- examination of mother of the appellant/convicted accused creates doubt in the prosecution case and alleged misconception of fact is not proved by the prosecution. By drawing my attention to evidence of PW5 Dr.Dhruv Gohil as well as papers of medical examination of the prosecutrix/PW1, the learned counsel argued that this witness had opined that there is no evidence of any forcible sexual penetration of the victim, and as such, Charge under Section 376 of the Indian Penal Code must fail. She further argued that even according to the prosecution case, the prosecutrix/PW1 was more than 18 years of age at the time of the alleged incident, and therefore, the offence punishable under Section 366 of the Indian Penal Code is not proved by the prosecution.