1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO.486 OF 2010. APPELLANT : State of Maharashtra Through Police Station Officer, Police Station Hingna, District Nagpur. -VERSUS- RESPONDENT: Prem @ Anil S/o Rameshwar Sawat, aged about 20 years, R/o Jamtha, Tah. Hingna, District Nagpur. Smt. B.P. Maldhure, APP for the appellant. Shri Ashwin Wasnik, Advocate for respondent. CORAM: A. H. JOSHI AND A.R. JOSHI, JJ. DATED: 13th OCTOBER 2010. ORAL JUDGMENT :(PER A.H. JOSHI J) 1. This is a State appeal. While granting leave to appeal, this Court had directed it to be heard finally as pendency would frustrate the cause of justice. 2. The appeal is taken up for hearing. 3. The accused was tried for the offences punishable under Sections 454, 376 (2) (f) of the Indian Penal Code and under Section 57 of Bombay Children Act, 1948. 4. The learned Sessions Judge, however, convicted the accused for the offence punishable under Section 511 R/W 376 (2) (f) of the Indian Penal Code, and sentenced him to suffer Rigorous 2 Imprisonment for a period of one year and to pay a fine of Rs.50/- (Rupees Fifty only) and acquitted for the offence punishable under Section 376 (2) (f) of the Indian Penal Code. 5. Perusal of the judgment reveals that based on medical evidence, the learned Sessions Judge found it to be a case of attempt to rape and not of rape. 6. We have perused two medical certificates which are on record. In both these certificates, the Medical Officer has narrated the appearance of the genital organs of both prosecutrixs and found that at the most it could be a case of attempt to commit sexual assault. 7. Learned APP prays for remand and fresh trial on the ground that the date when the accused pleaded guilty, the learned Sessions Judge has forthwith decided the case without permitting the prosecution either to prove charge or calling upon the prosecution to do so. It is further argued that the learned Sessions Judge has straightway proceeded to appreciate the medical certificate. Instead of following this course, Learned Sessions Judge ought to have considered that the prosecutrixes would have been the best witnesses to state that the penis had penetrated in the genital organs of the minor girls which could have proved the act of accused to be of rape. 8. On the other hand, the learned Advocate for the respondent tendered an affidavit stating that the pleading of guilt done by the accused itself was done under duress and was not a statement made with free will. The respondent claims that he is 3 intending to contest the charge upon remand and supports the plea of remand. 9. Considering the factual aspects discussed herein above, this Court is of considered view that in the background that now the respondent wants to retract from his pleading guilty and that the State is also not satisfied with the Judgment since the State was not afforded an opportunity to prove the charge, it is a fit case for setting aside the judgment and order of conviction and remanding the case to the Sessions Court, Nagpur, for trial according to law. 10. In the result, appeal is allowed. 11. The Judgment and order of conviction and sentence is set aside. The accused be given an opportunity to have his plea recorded afresh and trial be decided in accordance with law. 12. The respondent shall appear before the Sessions Court on 15-11-2010 and shall furnish personal bond and solvent surety in a sum of Rs.10,000/- for his appearance on all dates in the process of trial and Sessions Trial be completed in accordance with law expeditiously. JUDGE JUDGE //MULEY//