SALIM ALIM SHAMSHER SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant/accused was in Sessions Case No.266/2003 convicted by the learned Additional sessions Judge, Greater Mumbai, for the offence punishable under Section 376 IPC and was sentenced to undergo R.I.for ten years and to pay fine of Rs.2,000/- and in default to pay fine, to undergo further R.I. for six months. In addition, he was also convicted for the offence punishable under Section 354 IPC and was sentenced to undergo S.I. for two years and to pay fine of Rs.500/- and in default to pay fine, to undergo further S.I. for three months. He challenged the conviction and sentence.

(2.) The prosecution case, in brief, is that on 14.8.2002 at about 1.50 a.m., the accused was commuting on the local train running between Malad to Borivli. The prosecutrix, a girl aged 17 years, was mentally sick and retarded. She was also in the said local train. The accused without her consent forcibly committed rape on her and outraged her modesty in the running train between Malad and Borivali. There were some commuters in the bogie who had seen the incident. When the train reached Borivali Railway Station, the accused jumped from the train as soon as it had slowed down. The prosecutrix also alighted after the train was stopped. PW-3 - Ambarish J.Mishra, who was a press reporter of "The Times of India" approached a railway police constable, who was present at the platform and informed him that the accused had committed rape on the girl in the running train. Some other passengers also came there. the Police constable with the help of PW-3 - Ambarish Mishra and others caught the accused and took him to the Borivali Railway Police Station. The officer on duty asked the constable to search for the girl and accordingly, the said police constable, PW-3 Ambarish Mishra and some others searched for the girl and found her on a platform. She was also taken to the officer on duty. FIR lodged by PW-3 was reduced to writing and Crime No.153/2002 came to be registered against the accused.They were also referred for medical examination. During investigation, the clothes of the accused as well as the clothes on the person of the victim girl were seized under a panchnmama.The clothes of the accused as well as the prosecutrix as well as the blood samples and blood articles were referred to C.A. The girl was initially referred to Children Remand Home and then to Psychiatric Dept. with J.J. Hospital which confirmed that she was mentally sick and was unable to understand and to reply questions.Later on, sister of the girl was found and she identified her. After investigation, police filed charge-sheet. The case was committed to the Court of Sessions for trial.

(3.) The accused was charged for the offences punishable under Sections 376, 354, 506 IPC as well as under Sections 3 (10(xi) and 3(2)(v) of Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty. On behalf of prosecution, in all 9 witnesses were examined. After trial, the learned Additional Sessions Judge convicted the accused for the offences punishable under Sections 376 and 354 IPC and sentenced him as stated above. He was acquitted of remaining charges.