Waman S/O Mahadeo Uparikar vs State Of Maharashtra
2016 Latest Caselaw 2454 Bom

     Judgment                                                1                               apeal311.00.odt




                                                                                          
                      
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                                 
                                CRIMINAL APPEAL NO. 311  OF 2000




                                                                
     Waman S/o. Mahadeo Uparikar,
     Aged about 22 years, Occupation:
     Labour, R/o. Nehru Ward, Tumsar,
     District : Bhandara. 




                                                  
                                ig                                                ....  APPELLANT.

                                              //  VERSUS //
                              
     The State of Maharashtra,
     through the Police Station Officer,
     Tumsar, Tahsil : Tumsar, 
      

     District : Bhandara.
   



                                                        .... RESPONDENT
                                                                         . 
      ___________________________________________________________________
     Shri P.S.Wathore, Advocate for Appellant. 
     Shri R.S.Nayak, A.P.P. for Respondent. 
     ___________________________________________________________________





                                  CORAM : Z.A.HAQ, J.

DATED : MAY 10, 2016.

ORAL JUDGMENT :

1. Heard learned advocates for the respective parties.

2. The appellant has challenged the judgment passed by the

Sessions Court convicting the appellant for the offence punishable under

Judgment 2 apeal311.00.odt

Section 376 of the Indian Penal Code and sentencing the appellant to

undergo rigorous imprisonment for two years and to pay fine of Rs.200/- and

in default payment of fine to undergo rigorous imprisonment for 15 days.

3. The case of the prosecution is :

The prosecutrix-Anusayabai was working as labour at the

relevant time. The construction site being near the house of the accused, on

the night of the incident when the prosecutrix was sleeping in Chhapri, the

accused committed rape on her under the threat to kill her. According to the

prosecutrix, the accused assured to marry her if she became pregnant and

because of his assurance she did not disclose about the incident to anybody.

The accused repeated the act on 2-3 occasions.

On the report of the prosecutrix, the crime was registered,

investigation was undertaken, charge-sheet came to be filed before the

Sessions Court. Charges were framed and explained to the accused, the

accused did not accept the guilt and claimed to be tried. The learned

Additional Sessions Judge conducted the trial and by the impugned judgment

concluded that the prosecution has proved that about 8-9 months prior to

13th February, 1996, the accused had committed rape on the prosecutrix and

convicted the appellant and imposed sentence.

Judgment 3 apeal311.00.odt

The appellant has challenged the above judgment before this

Court. By the order dated 9th November, 2000, the appeal was admitted and

the sentence was suspended.

4. With the assistance of the learned advocate for the appellant/

accused and the learned A.P.P. for the respondent, I have examined the

record. Though the prosecution claimed that at the time of incident, the

prosecutrix was minor, the prosecution has failed to establish that the

prosecutrix was minor at the time of incident. There is no evidence on

record about the age of the prosecutrix at the time of the incident.

5. The prosecution has not been able to prove beyond doubt that

the incident had not taken place with consent of the prosecutrix, considering

the admission of the prosecutrix that the appellant had repeated the act on 3-

4 occasions and the prosecutrix had not disclosed about it to anybody. In

paragraph 8 of the impugned judgment, the learned Additional Sessions

Judge has recorded that the prosecutrix stated that before going to Court for

giving evidence the marriage between the prosecutrix and accused was

solemnized in a temple.

Shri P.S. Wathore, advocate for the appellant has stated that the

appellant and the prosecutrix are living together as husband and wife and

are having daughter Rushika aged about 15 years and son Krish aged about

10 years.

Judgment 4 apeal311.00.odt

6. Considering the evidence on record and the facts, I find that the

conviction of the appellant is unsustainable as the prosecution has failed to

prove beyond doubt the commission of the offence by the appellant.

Hence, the following order :

i)

The appellant is acquitted of the offence punishable under

Section 376 of the Indian Penal Code.

ii) The learned advocate for the appellant, on instructions, submits

that the appellant is not interested in refund of the amount of

fine paid by him.

The appeal is allowed in the above terms.

JUDGE

RRaut..