Criminal Appeal No. 86 of 1995. Case: Kisan Chimaji Boarate Vs State of Maharashtra and another. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 86 of 1995 |
| Counsel | For Appellant: P.P. Hudlikar, Adv. and For Respondent: D.T. Palekar, Adv. |
| Judges | V. Sahai, J. and T. K. C. Das, J. |
| Issue | Indian Penal Code (45 of 1860) - Section 376 |
| Citation | 1998 CriLJ 1331 |
| Judgement Date | October 06, 1997 |
| Court | High Court of Bombay (India) |
Judgment:
Vishnu Sahai, J.
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Through this appeal, the appellant challenges the Judgment and Order dated 1-2-1995 passed by the II Additional Sessions Judge, Satara, in Sessions Case No. 180/91, convicting and sentencing him to undergo 7 years' RI and to pay a fine of Rs. 1000/-, in default to undergo six months' RI for an offence punishable under Section 376, IPC.
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In short, the prosecution case runs as follows:
The appellant and the prosecutrix Swati Mohite P.W. 5, who was aged about 9 years' at the time of the incident were residing at Sarjapur, Taluka Jawali, District Satara. Appellant was known to the prosecutrix from before the incident.
On 9-12-1990 at about 10.00 a.m., the grand-mother of the prosecutrix Tarabai Mohite PW 8 asked her to carry lunch box for her grand-father, in village Kudal. Accordingly the prosecutrix carried the lunch box from Sarjapur to Kudal. She handed over the same to her grand-father at Kudal. At about 3.00 p.m. while returning from Kudal to Sarjapur she met the appellant on the way near the stream. The appellant told her that his daughter Ashwini would accompany her to house. Since the prosecutrix knew Ashwini, she believed the appellant and followed him. The prosecutrix and the appellant reached a sugarcane field by the side of the road. The appellant took her in the sugarcane field; caught her throat with one hand; removed her nicker by the other hand; untied his trouser; made her lie down; and inserted his penis in her vagina. The prosecutrix cried because there was pain in her vagina.
Thereafter, the prosecutrix came to the village and told her grand mother Tarabai Mohite about the incident.
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The FIR of the incident was lodged by the prosecutrix Swati Mohite PW 5, on the same day at 9.20 p.m. at Police Station, Medha. On its basis, C.R. No. 80/90 under Section 376, IPC was registered against the appellant.
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The prosecutrix was medically examined by Dr. Baliram Shinde PW 11 on 9-12-1990 at 10.45 p.m. at Civil Hospital, Satara. Dr. Shinde found abrasions present over right thigh, left thigh and right cheek. In his opinion, they were caused as a result of friction of the body surface with a hard object having rough surface. He also opined that they were possible on account of sugarcane leaves.
Dr. Shinde also found rupture of hymen vertically downwards at 6'O Clock position. He found that the tear present was one cm. in length by 1/2 cm.
In the opinion of Dr. Shinde rupture of hymen was possible...
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