1 apeal551.14.J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 551 OF 2014
Dhiraj S/o Pruthwiraj Jambhulkar,
Aged about 20 years, Occup-Labour.
R/o-Block No.42, Mahada Colony,
Nari Road, Nagpur.
(At present Central Jail, Nagpur) ...APPELLANT.
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The State of Maharashtra,
Through PSO, P. S. Yashodhara Nagar,
Nagpur. ...RESPONDENT.
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Shri S. N. Gaikwad, Advocate for the Appellant.
Shri N. R. Patil, A. P .P. for the Respondent/State.
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CORAM : Z.A.HAQ, J.
DATED : 25 th JULY, 2017.
ORAL JUDGMENT.
The advocates,who represented the appellant,was not present when the matter was called out on 27 th March, 2017, 5th April, 2017 and 3rd May, 2017. On 19th July, 2017, Shri L. B. Thawkar, Advocate who represented the appellant submitted that the appellant/accused wants to undergo sentence, however, on being asked whether he is in position to make statement that appellant/accused wants to withdraw the appeal, he could not make such statement. As the advocates who represented the appellant were not interested to argue the appeal, Shri S. N. Gaikwad, Advocate was appointed to represent the appellant. ::: Uploaded on - 04/08/2017 ::: Downloaded on - 08/08/2017 01:35:19 :::
2 apeal551.14.J 02] Heard Shri S. N. Gaikwad, Advocate for the appellant and Shri N. R. Patil, learned A. P. P. for the State. 03] The accused has filed this appeal to challenge the judgment
passed by the Sessions Court convicting him of the offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for 7 years and to pay fine of Rs.2,000/- and in default of payment of fine to undergo further Rigorous Imprisonment for 3 months.
04] The case of the prosecution is :
The accused had been residing in the locality where Sangeeta Rajesh Ramteke (maternal grand mother of the victim) resided and the victim had been visiting her maternal grand mother and therefore, the victim was knowing the accused. On 11 th December, 2011 the complainant Nilima (mother of the victim), father of the victim and the victim had gone to attend a marriage in the area where maternal grand mother of the victim resided. The accused had also attended that marriage. The accused sought permission of father of the victim to take victim for eating ice-cream, Divyani and Dolly (friends of the victim) also accompanied the accused and the victim, the accused bought balloons and gave them to Divyani and Dolly and they returned to the Lawn where function was going on and accused took the victim behind a hut erected at the backside of the Lawn and committed the crime. The mother and ::: Uploaded on - 04/08/2017 ::: Downloaded on - 08/08/2017 01:35:19 ::: 3 apeal551.14.J father of the victim could not locate the victim and therefore, they enquired from Divyani about the victim, she told that the victim was with accused. Then Gudiya, elder sister of Dolly, called accused on his cellphone and mother of the victim talked to the accused and accused told her that the victim was with him and they were coming back. After sometime, the victim came to the Lawn and then mother and father of the victim returned to their home alongwith the victim. When the victim changed her clothes, her mother noticed blood stains on her clothes and therefore, she enquired with the victim about it next morning and the victim informed her mother about the incident. The mother of the victim took the victim to the house of Sangeeta (maternal grand mother of the victim), and then they went to police station and lodged the complaint. 05] After the complaint was lodged, First Information Report was registered, investigation was undertaken and after completing the investigation and necessary formalities, charge-sheet was filed before the Court of Judicial Magistrate First Class. The offence being triable by the Court of Sessions, the case was committed to the Sessions Court, charges were framed, charges were read over and explained to the accused, the accused did not accept the guilt and claimed to be tired and therefore, the trial was conducted. After conducting the trial, the Sessions Court concluded that the prosecution has proved its case and convicted the accused and imposed sentence as per the order.
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4 apeal551.14.J 06] The learned advocate for the appellant/accused has argued
that the case of the prosecution/complainant is improbable and it cannot be believed that the accused committed crime just at a distance of few feet from the Lawn where marriage function was going on. It is submitted that the report of medical examination of the victim and the evidence of Dr. Neha (PW-13) does not support the case of the prosecution. It is pointed out that no injuries were found on the person of the victim and even as regards the finding of hymen in torn condition, Dr. Neha has not expressed any firm view that it is because of penetration/forceful intercourse. It is argued that the prosecution has not been able to establish its case beyond doubt and the conviction of the appellant/accused is unsustainable.
07] After examining the material on record, I find that the prosecution has proved beyond doubt that crime is committed by the appellant/accused on minor victim aged about 11 years. The victim has deposed about the incident and the defence has not been able to shatter the testimony of the victim. The evidence of Dr. Neha (PW-13) and the report of medical examination of the victim shows that fresh hymenal tear was found suggesting that sexual intercourse might have taken place. The submission made by the learned advocate for the appellant/accused that Dr. Neha has not expressed any definite view looses its significance because of the report of medical examination of the accused and the evidence of Dr. Avinash (PW-10). The report of medical examination ::: Uploaded on - 04/08/2017 ::: Downloaded on - 08/08/2017 01:35:19 ::: 5 apeal551.14.J of the accused (Exh.43) shows that dry blood stains were found on glans penis and smegma was absent. Dr. Avinash has stated in his examination-in-chief that presence of dry blood stains on glans penis and absence of smegma suggested that the appellant/accused might have been involved in sexual intercourse within 24 hours prior to the examination.
08] I find that the learned Additional Sessions Judge has properly appreciated the evidence on record and has rightly concluded that the prosecution has proved its case. I see no reason to interfere with the judgment. The appeal is dismissed.
09] The fees of Shri S. N. Gaikwad, Advocate, who is appointed to represent the appellant, is quantified at Rs.5,000/- (Rs. Five Thousand).
JUDGE PBP ::: Uploaded on - 04/08/2017 ::: Downloaded on - 08/08/2017 01:35:19 :::