IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.451 OF 2022 Nilesh Prabhakar Jadhav, aged 35 years, occupation agriculturist, r/o Sungaon Ves, Jalgaon Jamod, tahsil Jalgaon Jamod, district Buldhana. ….. Appellant.

:: V E R S U S ::

State of Maharashtra, trough PSO Police Station Jalgaon Jamod, tahsil Jalgaon Jamod, district Buldhana. ….. Respondent.

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Shri U.J.Deshpande, Counsel for the Appellant.

Shri S.M.Ghodeswar, Additional Public Prosecutor for the State.

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CORAM : URMILA JOSHI-PHALKE , J.

CLOSED ON : 28/06/2023 PRONOUNCED ON : 08/08/2023 JUDGMENT

1. The challenge in this appeal is to judgment and order of conviction and sentence dated 9.5.2022 rendered by learned Additional Sessions Judge, Khamgaon, district Buldana in Sessions Trial No.65/2017.

2. By the said judgment and order of conviction, the trial court convicted the appellant (accused) for offence under Section 375 punishable under Section 376(2)(l)(n) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 12 years and to pay fine Rs.15,000/-, in default, to suffer simple imprisonment for 1 month.

The accused was also convicted for offence punishable under Section 506 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 1 year and to pay fine Rs.1000/-, in default, to suffer simple imprisonment for 15 days.

The trial court directed that all the sentences of the accused shall run concurrently. The accused was also given set-off under Section 428 of the Code of Criminal Procedure since he was in jail.

3. Brief facts of the prosecution run as under:

Informant, who is sister-in-law of victim, has lodged report on 13.9.2017 alleging that the victim, aged 38 years, is her sister-in-law and is handicapped and of low I.Q.. According to the informant, the victim is unmarried. On 28.8.2017, the victim complained abdominal pain and, therefore, she had brought the victim in the government hospital at Khamgaon. The medical officer examined the victim and disclosed that the victim is having pregnancy of three months. On enquiry, the victim disclosed that prior to three months, when she had been to bring green leaves for she-goats at Sungaon Road, the accused subjected her for sexual assault by showing her knife. The said incident is witnessed by Mangesh Raut. On the basis of the said report, the police have registered the offence, vide Crime No.328/2017, against the accused.

4. After registration of the crime, investigating officer has visited the alleged spot of incident and drawn spot panchanama. He referred the victim for medical examination. The accused was arrested. The blood samples of the victim; the accused, and child delivered to the victim were referred for DNA Examination. After completion of the investigation, he has submitted chargesheet against the accused.

5. The trial court framed charge against the accused vide Exhibit-6. The contents of the charge are denied by the accused. The prosecution has examined as many as 19 witnesses to prove the charge against the accused, which are as follows:

PW1 :- victim (due to the mandate of Section 228-A of the Indian Penal Code, name of the victim is not mentioned), Exhibit-21;

PW2 :- Nandkishor Vasantrao Amale, pancha on spot and seizure memos of samples of the victim and the accused, Exhibit-41;

PW3 :- Yogesh Ramkrushna Raut, eyewitness, Exhibit-48;

PW4 :- sister-in-law of the victim, the informant, Exhibit-50;

PW5 :- Dr.Mrs.Jakera Salim, Exhibit-54;

PW6 :-Umesh Maroti Vandale, villager, Exhibit-

55;

PW7:- Dr.Rohan Ramakant Jadhav, who examined the accused and obtained his blood samples, Exhibit-59;

PW8 :-Umesh Sukhdeo Bharsakale, police naik, who has taken the accused for medical examination, Exhibit-64;

PW9 :-Deepmala Shriram Wankhade, police constable, who took the victim for medical examination, Exhibit-67;

PW10 :- Shankar Rambhau Wadhe, carrier, Exhibit-72;

PW11 :-Pravin Devidas Jadhav, c