ASHISH ANANT PARAB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant takes exception to the judgment and order dated 27/8/2010 passed by the Addl. Sessions Judge, Greater Mumbai at Sewree in Sessions Case No. 42 of 2009 convicting the appellant ("Accused" for short) for the offences punishable under Section 376(2)(f) and 450 of IPC and sentenced him to undergo RI for ten years and to pay fine of Rs.1000/-, in default to suffer RI for six months on first count and to suffer RI for three years and to pay fine of Rs.500/-, in default to suffer RI for one month on second count. The accused has been acquitted of the offence punishable under Section 324 IPC. Both the sentences are ordered to run concurrently.

(2.) Briefly the prosecution case is as under: On 6/10/2008 at about 00.30 hrs. PW 1 Rehana Shaikh, the first informant was standing on the road outside her house. Her husband had gone to his paan shop. Her three sons and the prosecutrix were sleeping in the house which was nearby. She heard hue and cry from the place near to her house and therefore, she immediately went there. She saw that the accused was caught by her neighbours and the prosecutrix was crying. The prosecutrix disclosed that the accused had removed her nicker and had committed rape on her and, therefore, she was having pains and crying. The accused tried to run away. The first informant noticed that the nicker of the prosecutrix was stained with blood and her private part was bleeding.

(3.) Mr. Vagal, learned advocate for the applicant submitted that non-examination of the prosecutrix is fatal to the prosecution case inasmuch as there is no cogent reason given by the prosecution for non-examination of the prosecutrix. He further submitted that panchnama of seizure of the clothes of the accused does not disclose that blood was seen on the clothes of the accused, however, C.A. Report discloses that blood was found on the clothes of the accused which clearly establishes that the accused has been falsely implicated. Learned advocate further submitted that there is no evidence that from the time of seizure of clothes of the accused till they were sent for analysis, the seized articles were kept in sealed condition and there is absolutely no evidence as to in whose custody the seized articles were kept from the date of seizure till they were sent for analysis on 10/10/2008. Learned advocate further submitted that there is variance on major aspects in the evidence of PW 1 Rehana, PW 4 Santosh, PW 5 Kalu and PW 6 Raju Mulla and, therefore, serious doubt is created about the prosecution case. Learned advocate further submitted that Sitabul, the brother of the accused, who is alleged to have disclosed about the sexual assault on the prosecutrix has not been examined and as such adverse inference deserves to be drawn against the prosecution. Learned advocate further submitted that PW 6 Mulla does not make reference to the presence of PW 4 or PW 5 nor PW 4 and PW 5 make reference to the presence of PW 6 and as such the evidence of all these three witnesses do not inspire confidence. Learned advocate further submitted that the accused has been falsely implicated since he had threatened to complain to the authorities regarding the prostitution going on in the area. Learned advocate further submitted that the medical evidence does not conclusively establish that the injuries on the prosecutrix were caused on account of sexual intercourse and the injuries on the person of the prosecutrix could have been caused by pressing of the finger by PW 1 on the private part of prosecutrix. Learned advocate therefore, submitted that the conviction of the accused for the offences punishable under Sections 376 and 450 of IPC is liable to be set aside and the accused be acquitted of the said offences.