JUDGMENT - Mane A.D, J.:—This appeal is preferred by the rape convict who was tried in Sessions Case No. 20/1995 by the learned IInd Additional Sessions Judge, Latur, for offences under sections 366, 376 read with section 34 of the Indian Penal Code.

2. In nutshell, the prosecution story is as under :

The Appellant (Original accused No. 1) is the brother of the original accused No. 3 who is married to original accused No. 2. Original accused Nos. 2 and 3 were residing in the Railway quarters at Nevli since original accused No. 2 is working as Porter at Nevli Railway Station in district Latur. The Appellant was residing with the accused Nos. 2 and 3 at Nevli. One Vishwanath Maske was also working as Gangman and having his quarter nearby the quarter of the accused No. 2. Vishwanath has daughter by name Nutan who was studying in 7th standard. On 12-10-1994 she went to the school at Borgaon which is about 1½ kms. away from Nevli. Usually she ought to have returned home by 5.30 p.m. on that day. She did not return home. Vishwanath and his wife Shashikalabai went in search of Nutan but she could not be traced. In consequence, Vishwanath filed his complaint, exhibit 32, on 24-10-1994 with the Murud Police Station.

3. The offence was registered at Crime No. 19/94 under sections 363 and 366 of the Indian Penal Code. During the course of the investigation, the appellant came to be arrested on 11-11-1994 when he and the prosecutrix Nutan were found coming to Nevli Police Station. Nutan was sent to the Medical Officer at Latur. On the same day the Medical Officer Dr. Sandhya Warad examined her and it was revealed that Nutan was subjected to sexual intercourse, and she was below 16 years of age.

4. After recording the statements of various witnesses, the police filed charge-sheet on the basis of which charge came to be framed against the appellant and original accused Nos. 2 and 3 for offences punishable under sections 366, 376 read with section 34 of the Indian Penal Code. It may be stated that the charge framed at exhibit 3 also contained a separate charge against the appellant under section 376 of the Indian Penal Code. However, the accused denied the charge and pleaded not guilty. It appears from the trend of cross-examination of the witnesses for the prosecution that according to the appellant, Nutan was major and she accompanied with him to conduct marriage with him at her free will.

5. At the trial, the prosecution examined as many as 10 witnesses, namely; P.W. 1 Pandurang Sawla Admane, P.W. 2 Mathurabai Mahadev Admane, P.W. 3 Mahadev Vithoba Admane, P.W. 4 Nutan Vishwanath Maske, prosecutrix, P.W. 5 Manik Shankar Kulkarni, Head Master of C.P.S. School, Borgaon; P.W. 6 Vishwanath Nivrati Maske, father of the prosecutrix Nutan; P.W. 7 Dr. Sandhya Sanjay Warad, P.W. 8 Shashikala Vishwanath Maske, mother of the prosecutrix Nutan, P.W. 9 Sushila Manohar Taskure, Head Mistress M. C. School No. 4 Kurudwadi District Solapur and P.W. 10 Dagdoba Yadavrao Hinge, Police Head Constable B. No. 716.

6. On going through the evidence of these witnesses, the learned Additional Sessions Judge firstly held that the prosecutrix was a minor girl below 16 years of age and secondly that the prosecution was successful in proving that the appellant kidnapped or abducted the prosecutrix with intent that she may be compelled either to marry with him against her will or she may be forced or seduced to illicit sexual intercourse. The learned Additional Sessions Judge also found from the medical evidence that the appellant committed sexual intercourse with the prosecutrix against her wish. In consequence, the learned Additional Sessions Judge while acquitting the original accused Nos. 2 and 3 convicted the appellant under sections 366 and 376 of the Indian Penal Code.

7. The appellant has, therefore, questioned the legality or validity of the judgment and order of the conviction and sentence passed against him in this appeal.

8. Mr. Jadhav, learned Counsel appearing

Click Here to Read the rest of this document