Decided on February 22,2017

Ashok Ramji Khardekar Appellant


B. R. Gavai, J. - (1.) Being aggrieved by the judgment and order passed by the learned Sessions Judge, Bhandara in Sessions Trial No.9 of 2013 dated 19.08.2014 thereby convicting the appellant for the offence punishable under Section 376 (2)(g) of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to suffer rigorous imprisonment for one year, the appellant has approached this Court.
(2.) The prosecution story as could be gathered from the material placed on record is thus:- Accused No.1 Ashok is a son of maternal uncle of prosecutrix Dipali. He is resident of village Sangadi. The prosecutrix is resident of village Bhugaon (Mendha). On 28.11.2012 there was a Mandai (Drama) in the village of prosecutrix. On the said date, various relatives of prosecutrix including her sister, her sister's husband, his friends, the present appellant and his friends etc. had gathered. The Mandai was over by 3.30 a.m. and, therefore, the guests had gathered at the house of the prosecutrix for tea etc. The guests started dispersing and at around 5 a.m. the prosecutrix started doing her usual work of cleaning courtyard etc. Her sister and mother were asleep in the house. Accused Ashok along with his two friends i.e. original accused No.2 Kunjilal and PW5 Roshan came there. Accused Ashok asked for water for him and his friends. They started talking with the father of the prosecutrix by sitting on his cot. When the prosecutrix started cleaning the courtyard, the appellant and his friends said goodbye to her father and left. The prosecutrix asked the cycle to be removed. One of the friends of the appellant took the cycle and kept it aside. The other friend started taking the cycle on road. Thereafter both the accused came near her and accused No.1 made an attempt to force himself upon the prosecutrix. However, since it was not possible at that spot, accused No.1 took her below mango tree in the backside of her house and forcibly committed intercourse with her. Accused No.2 also attempted to force himself upon the prosecutrix. However, since the prosecutrix kicked him, he dashed with a mango tree and suffered an injury. Thereafter both the accused ran away. The mother of the prosecutrix came there and asked her as to what had happened since the prosecutrix was crying. Thereafter oral report came to be lodged below Exh.26 by the prosecutrix. On the basis of the said oral report, first information report below Exh.27 came to be registered. The investigating machinery was set in motion. The prosecutrix as well as both the accused were medically examined. At the conclusion of the investigation, a charge-sheet came to be filed in the Court of the learned Judicial Magistrate First Class, Lakhani. Since the case was exclusively triable by the learned Sessions Judge, it came to be committed to the Sessions Court.
(3.) The learned trial Judge framed the charge for the offence punishable under Section 376(2)(g) of the Indian Penal Code below Exh.8. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction against both the accused and sentenced the appellant as aforesaid. However, insofar as accused No.2 Kunjilal is concerned, he was sentenced to suffer rigorous imprisonment for the period already undergone. Being aggrieved thereby, the present appeal.;

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