S. R. Dongaonkar, J. - (1.)Challenge of the appellant State in this appeal is to the judgment of the learned Sessions Judge, Buldana, in Criminal Appeal No. 9/1990, by which he allowed the appeal preferred by the respondents who were held guilty by the Assistant Sessions Judge, Buldana, for the offences punishable under Section 376 and 354 r/w Section 34 of Indian Penal Code, each of them being sentenced to suffer R.I. for 7 years and to pay fine of Rs. 1000/- each, in default R.I. for 6 months, in Sessions Case No. 61/1988, and acquitted them of the charge.
(2.)The prosecution case in nutshell is that, prosecutrix PW-5 Ku. Savita d/o Narhari Jaware is the resident of village Antri. She has a sister by name Manda, PW-8. She has a maternal aunt by name Sou. Kasturabai w/o Mukinda Jaware PW-6. Police Patil of the said village is PW-7 Ganpat Devman Mahajan. On the day of incident i.e. on 12-11-1987, prosecutrix Ku. Savita, was asked to go to the field of her father at Antri to protect the crops. At that time she was aged about 16 years. The time was about 7 a.m. Her father had gone to village Motala. Her mother had gone to the other field. Prosecutrix went to the said field known as "Ambewali" field with a dog. When she reached to the field, it was at about 7.30 a.m. She tied her dog to Beri tree and she sat below the Bel tree. She started reading 'Gajanan Stotra', as it was her fast day. There was standing crop of cotton in the field. It is alleged that accused No. 1 i.e. respondent No. 1 - Rameshwar Shridhar Jaware, who was aged about 22 years, came in the field. He asked her whether there was anybody in the field. She told that she was alone. Thereafter accused No. 2 i.e. Respondent No. 2 - Eknath Onkar Jaware, aged about 21 years also came to the field. He told that his bullocks had entered in the standing crops of cotton in her field, so he was going to catch the bullocks. All of a sudden, respondent No. 1 caught hold her hands and dragged her towards the standing crops of cotton. She was crying and questioning him as to why she was being dragged. At that time Respondent No. 2 came running there. They both, then, dragged her despite her resistance. They took her to the crops of cotton. They made her to lie down forcibly. Respondent No. 2 by his both hands pressed her mouth and put his leg on her neck. He pressed her breast. Respondent No. 1 removed her inner pant by lifting Maxi. Respondent No. 1 also removed his inner pant and he committed forcible intercourse with her. She suffered severe pain. Respondent No. 1 threatened her for not telling about the incident to anybody. He also threatened her saying that if she tells about the incident to anybody, it would not be good. There was bleeding. Respondent No. 1 then hurriedly took his clothes and fled away, so also respondent No. 2. According to her, respondent No. 1 had committed rape on her by penetrating his penis into her vagina. Because of this, she had suffered severe pain. It is alleged that there were stains of blood and semen on her Maxi and inner pant. She went to her house weeping along with her dog. Her elder sister Manda, PW-8 was there. She narrated the incident to her on her questioning as to why she was weeping. Thereafter her mother who had gone to 'Tikkewali' field and her father who had gone to Motala, were called. It is alleged that, at the relevant time i.e. while committing the offence, respondent No. 1 was wearing Manila, full-pant and inner pant and respondent No. 2 was wearing full-shirt and trouser. Her aunt Sou. Kasturabai PW-6 came there. The incident was narrated to her also. After reaching of the father of the prosecutrix PW-5 Ku. Savita, they went to Police Patil PW-7 Ganpat Mahajan. He was apprised about the incident and thereafter they i.e. prosecutrix Ku. Savita, her father, her aunt Sou. Kasturabai and Police Patil started going to police Station. On the way, Police Patil PW-7 Ganpat Mahajan asked PW-6 Kasturabai to verify the fact of rape and whether there were any signs of rape on the person or on the clothes of the prosecutrix Ku. Savita. They went in the field by name 'Mala'. PW-6 Kasutrabai verified that her inner pant and Maxi had blood stains and white semen stains. Then they went to Police Station Borakhedi.
(3.)Prosecutrix PW-5 Ku. Savita lodged report in Police Station as per Exh. 41. The offence under Sections 376, 354 of the Indian Penal Code was registered against the respondents. PW-10 PSI Bhimrao Wankhede conducted the investigation. The prosecutrix was referred for medical examination. PW-1 Dr. Dilip Kulkarni examined her at about 6.45 p.m. on that day and issued a certificate of his findings vide Exh. 22. He had also collected the samples of vaginal smear, pubic hairs. He also seized the clothes of the prosecutrix. Upon x-ray examination, he had issued the certificate to the Investigating Officer, Exh. 23, opining that the age of the prosecutrix at the relevant time was 16-18 years 13 years. It may be stated that during the course of investigation, after arrest, both the respondents were also referred for medical examination. Accordingly PW-2 Dr. Ashok Surushe examined them and issued certificates of his findings which are at Exh. 27 and Exh. 29. During investigation, the spot panchnama was prepared in presence of PW-9 Pralhad Suradkar as per Exh. 52. The clothes of the prosecutrix Ku. Savita were also seized as per Seizure Panchnama Exh. 34 in his presence. After due investigation and on receipt of C.A. Report Exh. 24, the respondents were charge-sheeted for the aforesaid offences.