The main legal point established in the judgment is the requirement for the prosecution to prove the elements of the alleged offences beyond reasonable doubt.

JUDGMENT

V M Deshpande, J. - By the present appeal, appellant Subhash and his mother Leelabai are challenging their conviction and sentence, respectively, imposed on them by the learned Additional Sessions Judge, Akot by the judgment and order 07.03.2005 in Sessions Trial No.08/2005 (old No. 116/2001).

Appellant No.1 Subhash stands convicted for the offence punishable under Section 376 of the Indian Penal Code and for that he was sentenced to undergo imprisonment for seven years and to pay a fine of Rs.500/- with default clause of sufferance of further rigorous imprisonment for one year. He was also convicted for the offence punishable under Sections 363 and 366 of the Indian Penal Code and for that he was sentenced to undergo rigorous imprisonment for three years on each count and to pay a fine of Rs.500/- on each count with default clause of sufferance of further rigorous imprisonment for six months on each count.

Appellant no.2 Smt. Leelabai was convicted for the offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code and for that she was sentenced to suffer rigorous imprisonment for three years on each count and to pay a fine of Rs.500/- on each count with default clause of sufferance of further rigorous imprisonment for six months on each count.

The Court below directed that all the sentences shall run concurrently.

2. I have heard Mr. R. M. Daga, the learned counsel for the appellants and Mr. S. S. Doifode, the learned Additional Public Prosecutor for the State. Also perused the record and proceedings.

3. It is the submission of Mr. Daga, the learned counsel for the appellants that in the present case, age of the victim (PW1) is not conclusively proved to show that she was minor at the time of alleged incident. It is also his submission that the evidence of the victim is not trustworthy and in absence of any corroborative piece of evidence available in the prosecution case, appellant no.1 Subhash cannot be convicted for the offence punishable under Section 376 of the Indian Penal Code. He also submitted that the prosecution case cannot be accepted in respect of kidnapping inasmuch as according to him, the prosecution case is shorn of enticement. He also submitted that there is an unexplained delay in the prosecution case which cast serious doubt about its truthfulness. He, therefore, submitted that the appeal be allowed.

Per contra, Mr. Doifode, the learned Additional Public Prosecutor would vehemently submit that the victim was raped by taking her from her school at Khamgaon. He submits that the age of the victim is proved by the prosecution by examining PW5 Arun Kale, a Teacher of the school in which the victim was taking education. He supports the reasoning given by the Court below and prays for dismissal of the appeal.

4. The criminal law was set into motion by the victim (PW1) herself. Her oral report is at Exh.30. It is dated 29.01.2001. the report was reduced into writing by PW7 PI Suresh Deshpande, who ultimately conducted the entire investigation in view of the oral report (Exh.30). He registered the crime at Telhara police station, District Akola for the offences punishable under Sections 363,366A,342,506 read with Section 34 of the Indian Penal Code vide Crime No. 06/2001. The printed first information report is at Exh.31. The offence was registered against four accused persons. Apart from present appellants, Namdeo Ukarda Bharsakale, father of appellant no.1 and husband of appellant no.2 was also made accused along with one Ashok Suryawanshi. The Investigating Officer arrested them.

On 4th February,2001, the victim gave another report in writing making allegation against appellant no.1 Subhash about commission of rape and therefore, an offence punishable under Section 376 of the Indian Penal Code was also added.

5. The Investigating Officer, during the course of the investigation, procured the birth certificate of the victim. She was also referred for her medical examination