First and foremost, the testimony of PW/1 - the prosecutrix was recorded on 13/02/2002, while the alleged incident is of the year 1996 i.e. after 6 years of the incident.Evidently, at the relevant time, her age was 13 years.She was studying in 5th standard.She deposed that the incident took place on Sunday, at about 9.00 am.Her sister - Savita and one neighbour - Ravindra were present in her house.Her mother had gone to Chandrapur as there was an accident of her brother.Her father went on his morning duty.The accused came there, pressed her mouth and took her in the room which was::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 5 beside the kitchen room.He removed her nicker and committed intercourse with her and therefore, she became unconscious.She was taken to the hospital but she was not knowing.Her vagina was swelled.She gave report at Police Chowki, Sasti.apeal 423.02 5To support her testimony, the prosecution examined PW/2 - Savita.She deposed that the prosecutrix is her elder sister.At the relevant time, she was 11 years old.On the day of the incident, she herself, Ravindra and the prosecutrix were present in their house.Her father had been to his duty.The accused came to their house and he sent her for bringing biscuit packet.It was about 10.00 am.The accused send Ravindra outside and took the prosecutrix in the room by holding her hand and shut the door.Then the accused put down the curtains of the door.She and Ravindra saw from the window that the accused was sleeping on the person of the prosecutrix.Yes, smears from vagina collected and slides sealed and handed over to the police.In the cross-examination of PW/1 - the prosecutrix, it has brought on record that her father, accused and one Navnath Khanke were working in W.C.L. Their houses are situated in the same ward.At the relevant time, she was suffering from piles deceased and because of that, she was sick.The accused was on visiting terms with them.On the day, when she was going for lodging report, at about 9.00 am, a meeting took place at the house of Navnath where 25-30 ladies and 10- 12 gents were present.She was also called in that meeting.Then they went from the house of Navnath to the house of the accused.At that time, the accused had gone for the meeting of W.C.L. Union.The wife of the accused was present.The people::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 9 in the meeting did not give her idea to lodge report.Navnath gave information to the Police.When the accused was coming from union meeting, Police restrained him and took him to the Outpost and then to the Rajura Police Station.She herself, Navnath, 30-40 ladies and 10-12 gents went to the Rajura Police Station.She lodged report as per the say of Navnath.She has admitted that in their village, election of the Gram Panchayat took place before lodging the report and in that election, Navnath was defeated.apeal 423.02 9From the tone and tenor of the cross-examination of the prosecutrix, it appears that the accused tried to take the defence that because of political rivalry and on the say of Navnath, who was defeated in the Gram Panchayat elections, false report was lodged against the accused.In the written submission of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973, he has stated that as the parents of the prosecutrix did not want to lodge any complaint, Navnath organized a meeting in his house, men and women of::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 10 the ward were gathered and took the procession to his house, but he had left the house at 7.30 in the morning for attending a gate meeting, being the president of the Union.While returning home from the meeting at about 11.00-11.15 am, 35-40 men and women obstructed him on his way.The family of Navnath and his brother's family were present in the mob.The Police from the Police Station, Sasti came and took him to the Police Chowki without stating any reason.JUDGMENT : (PER PUSHPA V. GANEDIWALA, J.) These appeals are directed against the judgment and order dated 16/07/2002 passed by the 3rd Ad-hoc Additional Sessions Judge, Chandrapur in Sessions Trial No.78/1996 whereby the accused was convicted for the offence punishable under Section 376 of the Indian Penal Code, 1860 (In short "I.P.C.") and sentenced to suffer Rigorous Imprisonment for three years and to pay fine of Rs.5,000/-, in default, to suffer further Rigorous Imprisonment for three months.Criminal Appeal No.423/2002 is preferred by the accused against his conviction while Criminal Appeal No.581/2002 is preferred by the State for enhancement of sentence.The case of the prosecution in brief is that on 22/01/1996, the accused committed rape on a minor girl, aged around 13 years.The crime was registered against the accused::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 3 vide Crime No.18/1996 at Police Station Rajura, District Chandrapur after which the matter was investigated and the accused was arrested.The accused was charged for the offence punishable under Section 376 of the I.P.C. The prosecution examined as many as 11 witnesses in support of the charge.The Trial Court found the accused guilty of the offence punishable under Section 376 of the I.P.C. and he was sentenced as aforesaid.The impugned judgment is challenged by the accused as well as by the State.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 3We have heard Shri R.P. Joshi, learned counsel for the accused and Mrs. M.H. Deshmukh, learned A.P.P. for the State.We have also perused the record.The sole testimony of the prosecutrix is not reliable.The accused has been falsely involved in this crime due to political rivalry.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 4::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 4On the contrary, Mrs. M.H. Deshmukh, learned A.P.P. appearing on behalf of the State, while supporting the conviction of the accused, argued for enhancement of sentence up to 7 years, which is the minimum sentence provided for the offence punishable under Section 376 of the I.P.C.We have heard learned counsel for the parties.We have also perused the evidence on record with the assistance of learned counsel for the accused.She identified her signature and contents in the report and F.I.R. which are at Exhibit Nos.12 and 13 respectively.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::He was committing rape on the prosecutrix.Then the accused went away from the spot.She narrated about the incident to::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 6 her father in the evening.On the very next day, the prosecutrix gave report at Police Station.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 6The prosecution also examined PW/3 - Ravindra in support of the testimony of PW/1 - the prosecutrix and PW/2 - Savita. PW/3 - Ravindra also deposed in the same line as deposed by PW/1 - the prosecutrix and PW/2 - Savita.He deposed that he saw that the accused removed the clothes of the prosecutrix and also removed his pant.The accused committed sexual intercourse with the prosecutrix.The accused told him that if he discloses about the incident, the accused will beat him.11. PW/8 - Mangala is the lady Police Constable, who deposed about taking the prosecutrix at Rural Hospital, Rajura on 22/01/1996 for medical examination, however, as there was no lady Medical Officer in Rajura Hospital, she took the prosecutrix in the Civil Hospital, Chandrapur.She produced on record the supporting documents (Exh.32, 33, 34 and 35).::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 7::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 7PW/11 - Dr. Mrs. Sharmili Amol Potdar is the Medical Officer at the General Hospital, Chandrapur at the relevant time.She deposed that on 22/01/1996, she examined the prosecutrix as per the requisition (Exh.32).On examination, she found that the prosecutrix was a young girl, looking sick, may be due to agony of pain.Her general condition was fair.She found tenderness over valva (labia majora), hymen torned and can introduce one finger easily.She gave following answers to the queries made by the Investigating Officer:-Yes, she can undergo sexual intercourse forcefully.Yes, it has been done.Yes, on examination of private part, there shows evidence of injuries on hymen.She handed over the public hair and blood sample after sealing it.There may be pain over back, may be due to injury to the back.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 8 Accordingly, she gave certificate (Exh.50).::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 8However, she denied the submission that she gave false report on the say of Navnath.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::From there, they took him to the Police Station, Rajura and arrested him.The Police registered a false case against him at the instance of opponents in the village.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 10On comparing the cross-examination of the prosecutrix and the written submissions of the accused, they are mutually corroborated.From these facts, it can safely be inferred that the parents of the prosecutrix (step mother and father, who was in the habit of drinking liquor and was not performing his duty properly) were not ready to lodge report.However, Navnath took initiative, called meeting of the residents of the ward, and the report came to be lodged.The::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 11 report was lodged on the next day of the incident.The prosecutrix was sent for medical examination.With regard to her age, there is no serious dispute.At the relevant time, she was aged about 13 years.PW/11 - Dr. Mrs. Sharmili, the Medical Officer noticed tenderness over valva (labia majora), hymen torned and can introduce one finger easily.In her report (Exh.50), the Medical Officer has opined that the prosecutrix can undergo sexual intercourse forcibly and it was being done.She also opined that on examination of private part, it shows coitus has been done.She also noticed signs of blunt injury over her back.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 11Learned counsel for the accused vehemently argued that the Medical Report is not clear with respect to the time of sexual intercourse and there are inconsistencies in the report of the Medical Officer (Exh.50) and the testimony of the Medical Officer before the Court.We are unable to accept this submission.It is true that the answer to query No.3 in the report (Exh.50) is " "Yes", on examination of private part, it shows coitus has been done", and in her evidence, she gave answer::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 12 " "Yes", on examination of private part, there shows evidence of injuries on hymen".A perusal of both the said answers would reflect that these answers support the case of the prosecution.Evidently, on the next day of the incident, the prosecutrix was medically examined where tenderness over valva (labia majora) and tearing of hymen were seen.Evidently, she was 13 years of age at the relevant time.As per medical report (Exh.50), her secondary sexual characters were not very well developed and her menarche was not started.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 12Learned counsel for the accused also strenuously argued that there can be many other reasons for tearing of hymen.There is no dispute with regard to this proposition.However, considering the facts which are brought on record in this case, mainly the testimony of the prosecutrix coupled with the opinion of the Medical Officer, the reason for tearing of hymen of the prosecutrix and tenderness over valva, in our::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 13 considered view, was only due to the forcible sexual intercourse with the victim and we do not find any other reason.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 13Much has been argued by the learned counsel Shri Joshi with regard to the false involvement of the accused in this crime by Navnath, who is the political rival of the accused.The defence counsel during the cross-examinations of the prosecution witnesses could not bring on record any material omission or contradiction to disbelieve the witnesses and the prosecution story.Though, the testimony of PW/1 - the::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 14 prosecutrix, PW/2 - Savita and PW/3 - Rajendra - the eye witnesses were recorded after 6-7 years of the incident, they supported the prosecution case and stood up firmly during the cross-examination.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 14Learned counsel in support of his submissions placed reliance on the bunch of judgments of the Hon'ble Supreme Court as well as the other High Courts.In the instant case, looking to the oral testimony of the prosecutrix coupled with the testimony of the eye-witnesses, expert witness and medical evidence, there is no semblance of doubt about the false implication of the accused.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 15With regard to the State's appeal for enhancement of sentence, at the relevant time of commission of the offence in this case, the minimum sentence of imprisonment was seven years, however, with special reasons, the Court was empowered to reduce the same.Considering the time gap from the date of offence till date i.e. 24 years, in our view, there is no point in enhancing the sentence.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 ::: apeal 423.02 16::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::apeal 423.02 16For the foregoing reasons, we do not find merits in both appeals filed by the State as well as by the accused and accordingly, the same are dismissed.The bail bonds of the accused are cancelled.He be taken in custody forthwith to undergo remaining part of his sentence.::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 05:29:20 :::

Sections cited: Section 376 in The Indian Penal Code