SANTOSH ALIAS GOTU LALJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the conviction of the appellants/original accused Nos. 2 and 3 along with two others for offences punishable under Section 366 and 376(2)(g) of the Indian Penal Code (for short, "IPC") and sentence of rigorous imprisonment of 3 years with fine of Rs. 100/- or in default rigorous imprisonment for 15 days, and rigorous imprisonment of 10 years with fine of Rs. 300/ - or in default rigorous imprisonment for one month respectively on the two counts imposed by the learned Additional Sessions Judge, Mumbai, on conclusion of Sessions Case No. 659 of 2006 before her. Facts which are relevant for deciding this appeal are indeed tragic. The victim was possibly a girl of about 18 who had been brought up in a hostel for destitute children. Her father was not well and therefore had asked the girl to get some money from her uncle whose whereabouts she was trying to locate on the incidental day, that is, 30-4-2006. Since she could not locate her uncle, she went back to her father. But her father asked her to go back and see that some money was secured. She claims to have overslept in a suburban train and ultimately found herself in the dead of night at Chhatrapati Shivaji Terminus (for short, "CST") at Mumbai. She was hungry and she accompanied one Ujwala, another girl who was also on the platform of CST station, for having a cup of tea outside. It is alleged that the two appellants along with two others then carried the duo forcibly towards Azad Maidan, a ground nearby. While the other girl managed to escape, the victim was subjected to rape by three of the four miscreants and when the fourth miscreant was to have his turn, the other girl returned with a Police Constable and, therefore, the persons took to their heels. On a report by the victim, an offence was registered. The victim herself was referred for medical examination, where-after necessary biological samples were taken. Since the victim had heard the miscreants calling each other by their names, she had named them in the First Information Report. The names were of course not complete names but what she had heard. This enabled the police to arrest the miscreants who were also likewise sent for medical examination and necessary biological samples were taken. Their clothes were also seized. One of the accused persons also took the police to the spot where the offence was allegedly committed. The police had also drawn panchnama of the spot. Soil from the spot was also seized. The police caused the victim and the other witnesses to identify the miscreants at a test identification parade held before a Special Executive Officer in Arthur Road Prison, at which the victim as well as the witness identified the accused persons. Articles which had been seized were sent to the Forensic Science Laboratory and on completion of investigation, charge-sheet was sent up, which was committed to the Court of Sessions by the Additional Chief Metropolitan Magistrate, 30th Court, Ballard Pier, Mumbai.

(2.) The learned Additional Sessions Judge to whom the case was made over charged the appellant and the two other persons of offences punishable under Sections 376(2)(g) and 363 of the IPC, which charge was altered subsequently to one under Section 366 of the IPC. Since the appellants and their co-accused pleaded not guilty, they were put on trial at which the prosecution examined in all ten witnesses in its attempt to bring home the guilt of the accused. After considering the evidence of these witnesses in the light of defence of false implication, the learned Additional Sessions Judge convicted and sentenced the appellants, as indicated earlier. Aggrieved thereby, two of the four convicts have preferred this appeal. The Registry has noted that the other two convicts, that is original accused Nos. 1 and 4, have not preferred any appeal.

(3.) I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the entire evidence on the record.