SURESH S/O RAMESH WARKHEDE Vs. STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY (AT: NAGPUR)
Suresh S/O Ramesh Warkhede
STATE OF MAHARASHTRA
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Z. A. Haq, J. -
(1.) Heard Shri D.A. Sonwane, learned Advocate for the appellant and Shri S.S. Doifode, learned Additional Public Prosecutor for the respondent. The appellant has challenged the judgment passed by the learned Additional Sessions Judge convicting him for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000/- and in default of payment of fine, to suffer further rigorous imprisonment for period of three months.
(2.) The case of the prosecution is:
"The complainant Ku. Shalini (aged about 14 years 11 months 9 days at the time of incident) filed report with the police station stating that she was having love affair with the accused No. 1 (appellant) and the accused No. 1 assured her that he will marry her and had sexual intercourse with her forcibly. The complainant alleged that accused No. 2-Sunil had embraced her on road and outraged her modesty."
On the complaint made by the complainant, the investigation was undertaken and chargesheet was filed before the Judicial Magistrate First Class who committed the case to the Court of Sessions as the offence is triable by the Court of Sessions. The Sessions Court framed the charge and explained it in verna cular to the accused. Both the accused did not accept the guilt and claimed to be tried. The trial is conducted and by the impugned judgment the accused No. 1 (appellant) is convicted for the offence punishable under Section 376 of the Indian Penal Code and the accused No. 2-Sunil Kisanji Shrirame is convicted for the offences punishable under Sections 354 and 506 of the Indian Penal Code.
(3.) Shri D.A. Sonwane, learned Advocate for the appellant has submitted that considering the averments made in the complaint and the evidence of the prosecutrix (P.W. 1), it is clear that there was a love affair between the appellant and the prosecutrix and the sexual intercourse was with the consent of the prosecutrix and therefore, the appellant cannot be held guilty for the offence punishable under Section 376 of the Indian Penal Code.
The submission cannot be accepted as undisputedly age of the prosecutrix was below sixteen years. Even if it is considered that the intercourse was with consent of prosecutrix, in view of the fact that at the time of incident the prosecutrix had not completed sixteen years of age, in view of the sixth description below Section 375 of the Indian Penal Code, as it stood at the time of incident, it has to be held that the appellant is guilty of offence punishable under Section 376 of the Indian Penal Code. The findings recorded by the learned Additional Sessions Judge on this point are proper.;
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