The main legal point established in the judgment is the importance of the victim's testimony, the need for sensitivity in dealing with cases involving sexual assault, and the statutory provision of a minimum sentence of seven years for the offence of rape.

JUDGMENT :

MILIND N. JADHAV, J.

1. Criminal Appeal No.218 of 2013 has been filed by Appellant (accused) against the judgment and order dated 13.02.2013 passed by the learned Additional Sessions Judge, Niphad, District Nashik in Sessions Case No. 32 of 2006 (for short “learned trial court”), convicting Appellant for offences punishable under Sections 376 and 503 of the Indian Penal Code, 1860 (for short “IPC”) and sentencing him to suffer rigorous imprisonment of five years and to pay fine of Rs.1,000/-, in default whereof to undergo simple imprisonment for one year.

2. Criminal Appeal No.309 of 2014 has been filed by the State of Maharashtra for enhancement of the sentence passed by the learned trial court convicting the Appellant.

3. Criminal Suo-Motu Petition No.2 of 2015 has been registered by this court having issued a suo-motu notice for enhancement of the sentence passed by the learned trial court vide order dated 26.06.2013 in Criminal Appeal No.218 of 2013, which reads thus:-

“Heard the learned Counsel for the applicant.

2. The Appeal is admitted.

3. The applicant herein is convicted for the offence punishable under Section 376 of IPC, is sentenced to R.I. for five years and to pay fine of Rs.1,000/- in default S.I. for one month. The minimum sentence for the offence punishable under Section 376 of IPC is seven years. The reasons assigned by the Sessions Court for awarding the sentence less than minimum is not justified. The reasons assigned by the Sessions Judge is that the applicant-accused is facing trial for 6-7 years and, therefore, a lenient view has been taken. Another ground assigned by the Sessions Court is that the applicant is aged about 60 years. However, the fact remains that he has been convicted for the offence punishable under Section 376 of IPC for committing rape of his sister-in-law, who is physically handicapped i.e. she is deaf and dumb. Hence, there was no reason for the Sessions Court to take a lenient view.

4. Issue notice to enhancement of sentence to the accused-applicant. The notice be served upon the applicant in Nashik Central Prison. Notice returnable on 10th July, 2013.

5. The learned Counsel for the applicant submits that he would file private paper book. Time is prayed for is granted. Paper book to be filed within six weeks from today.

6. In the meanwhile, call for R & P.”

4. The facts emerging from the record of the case are as under:-

4.1. Mother of the victim, Meerabai Jairam Gare, first informant filed First Information Report (FIR) No.I-98 of 2005 in respect of the alleged incident of rape on her daughter 'X' with Lasalgaon Police Station against the Appellant. Victim 'X' is wife of Bhausaheb Mudgul, younger brother of accused. Victim, her husband Bhausaheb who is blind and 2 years old son, accused Madhukar, Punjabai, wife of the accused, father of the accused, Nivrutti, brother of the accused and two children of accused all stayed together in the matrimonial house. Victim 'X' is deaf and dumb and as such she communicates with the help of gestures/sign language. Victim was married to Bhausaheb for five years before the date of incident and had given birth to one son.

4.2. First informant received information from Sunil (her son) that victim was unwell, hence on 19.11.2005, her second son Shankar on making enquiry with victim on telephone came to know that she was being brought to her paternal house by her father-in-law. After victim was dropped at her paternal house it was informed by her father-in-law that she was suffering from fever and cold and had visited the hospital for treatment.

4.3. First informant inquired with victim about her wellbeing upon which victim broke down and by gestures informed that accused had ravished her three days ago and threatened her not to divulge the incident to anybody. First informant immediately approached Lasalgaon Police Station and lodged the report. Police Inspector Shri. Sangle recorded statement of victim with help of first informant and referred her fo