ROHIT B.DEO,J. -
(1.) The appellant is aggrieved by the judgment and order dated 09-9-2002 passed by the learned Sessions Judge, Akola in Sessions Trial 96/1999, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1,000/- and is further convicted for offence punishable under Section 452 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/-. The accused is, however, acquitted of offence punishable under Section 506 of the Indian Penal Code.
(2.) The prosecution case, as is unfolded during the course of trial is thus :
The complainant Ganga is a resident of Bhim Nagar locality in Akola. The prosecutrix, who is the niece of the complainant is a resident of district Amravati and at the relevant time was visiting Ganga on the occasion of Diwali. The prosecutrix, then aged 18 to 20 years, was suffering from polio due to which the left side of the body including left arm and left leg of the prosecutrix was totally paralyzed. The prosecutrix is, to a certain extent, intellectually challenged. The complainant Ganga and her husband Avinash are engaged in labour work and leave home early in the morning in connection with the said work. The complainant has two issues, then aged 4 years and 6 years. One Sangita, is the wife of the brother of the complainant and is residing in the same locality.
The accused was seen by both Ganga and Sangita prior to the incident passing by the road on the fateful day on 23-10-1998. The complainant and her husband Avinash left home early in the morning, the prosecutrix and two children of the complainant were at home. The TV set is in the first room of the house of the complainant and the only other room is rear side of the first room. There is a courtyard infront of the first room of the house.
The prosecution case is that on 23-10-1998 at 4.30 p.m. Sangita was alerted by abnormally loud volume of the TV in the house of the complainant and went inside to check. The entrance door of the house of the complainant was closed. Sangita pushed open the door and noticed the prosecutrix lying on the floor of the first room and one person by her side. The said person attempted to put on his pant when he saw Sangita. The petticoat of the prosecutrix was lifted upwards to waist level. Sangita confronted the said person who responded that he was in the house to demand money from the husband of the complainant Avinash. When the said person was leaving the house, Sangita called a neighbour Gajanan Gorle who had come home for lunch. Gajanan Gorle is a vegetable vendor. He identified the said person as the accused Nandu Sardar.
Sangita enquired with the prosecutrix who disclosed that the accused entered the house, closed the entrance door, raised the volume of the TV set, gagged her and committed forcible sexual intercourse. When Ganga returned from work at 7-00 p.m., Sangita narrated the incident to Ganga. The prosecutrix, in response to enquiries from Ganga, also narrated the incident to Ganga. The husband of Ganga returned home after sometime. Stains of semen were noticed on the petticoat of the prosecutrix. The accused was noticed by the residents when he was passing by the side of the house of the complainant at 9-00 p.m. to 9-30 p.m. He was apprehended and beaten by the residents of the locality.
In the night between 23-10-1998 and 24-10-1998, at 12-00 Ganga went to Civil Lines Police Station, Akola alongwith the prosecutrix and lodged a report, on the basis of which offence under Sections 376 , 452 and 506 of the Indian Penal Code was registered against the accused who was immediately arrested. Signs of assault were visible on the face of the accused. The accused claimed that he was assaulted by the husband of the complainant and others. Both the prosecutrix and the accused were referred to Government Hospital for medical examination.
Nivrutti Dambelkar, then attached to the Civil Lines Police Station as Assistant Police Inspector recorded the supplementary statement of Ganga on 24-10-1998 and statements of other witnesses including Sangita, the prosecutrix, Avinash, Digambar Bajad and Gajanan Gorle. The petticoat with semen stains was produced by the prosecutrix on 24-10-1998, the said petticoat was seized in presence of panch witnesses. The investigation officer drew spot panchanama, collected blood samples, vaginal swab, etc. The underwear of the accused was seized. The seized articles were sent for chemical analysis. Semen was detected on the petticoat of the prosecutrix. The completion of investigation led to submission of the charge-sheet before the learned Judicial Magistrate First Class, Akola who committed the case to the Sessions Court. The learned Sessions Judge framed charge for the offence under Sections 376 , 452 and 506 of the Indian Penal Code, the accused pleaded not guilty and claimed to be tried. The defence of the accused, as is discernible from the statement recorded under Section 313 of the Criminal Procedure Code and the evidence of the defence witnesses is that Avinash, the husband of the complainant, bother of Avinash and one Ramdas were engaged in B.C. business. The said person did not return the money contributed by residents of the locality. The accused insisted for the return of the money and he was assaulted and falsely implicated.
(3.) The prosecution examined nine witnesses, to wit- P.W.1 Ganga Avinash Bajad, complainant at Exhibit 13, P.W.2 Ghanshyam Shankarlal Sahu at Exhibit 16, P.W.3 Sangita Dnyaneshwar Katole, wife of brother of the complainant at Exhibit 18, P.W.4 Bharat Laxman Dube, panch witness on the spot panchanama and seizure panchanama of petticoat at Exhibit 19, P.W.5 Gajanan Motiram Gorle, a person residing in the locality at Exhibit 25, P.W.6 Sunita Jagannath Rithe, the prosecutrix at Exhibit 26, P.W.7 Digambar Mukinda Bajad, brother-in- law of the complainant at Exhibit 27, P.W.8 Kailash Manohar Pundkar, Police Sub-Inspector at Exhibit 28 and P.W.9 Nivrutti Rambhau Dambelkar, Assistant Police Inspector at Exhibit 30.
The three witnesses examined by the defence were D.W.1 Sitaram Rajaram Deokar, resident of the locality at Exhibit 48, D.W.2 Suman Rameshrao Deshmukh, resident of the locality at Exhibit 49 and D.W.3 Ashok Govindrao Karale, friend of the accused at Exhibit 50. ;