ABDUL R PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The accused has preferred this appeal against his conviction and sentence under section 376 of the Indian Penal Code, passed by the learned Additional Sessions Judge, Greater Bombay.

(2.) The prosecution case is that the accused and the victim girl Zarina reside in Pathan Building, S.V. Road, Bombay. Zarina was at the relevant time living in Room No. 28, with her mother Khatunbi, her sister Hasina and her brother Gulam Kasam. The accused was residing in Room No. 38 on the second floor. Room No. 24 which is the scene of offence belongs to the brother of the accused by name Abdul Khalif. In that room Abdul Khalif resides with his wife and carries on embroidery business under the firm name and style of Fine Art Embroidery Works.

(3.) On 14th May, at about 5.30 p.m. Zarina was playing in the passage of Pathan Building. It is alleged that at that time, the accused called her to Room No. 24 but as Zarina refused, the accused forcibly took her in that room and there the accused committed sexual intercourse on her. The shouts of Zarina, occasioned by the pain which she got, brought her mother Khatunbi to Room No. 24. It is the prosecution case that Khatunbi took Zarina from that room to her room. She also took with her the underwear of Zarina which was soaked in blood. Zarina was bleeding from the vagina. Khatunbi wanted to file a complaint, but as her brother Sayed Yusuf Sayed Amin was not present as also her husband, she waited till her brother came and ultimately she lodged the complaint at the Dongri Police Station. S.I. Arjun Jaunjan is the Investigating Officer. He drew up the panchanama Exhibit 7 of Room No. 24 and her sent Zarina to J.J. Hospital for medical examination. Zarina was examined by Dr. D. J. Karnik (P.W. 4) in the O.P.D. and on finding that Zarina was bleeding from the vagina and was complaining of abdomen pain, Dr. Karnik referred her to the Gynecologist Ward where she was examined by Dr. Jasmine Lopes (P.W. 6). Zarina was admitted in J.J. Hospital for 11 days and was thereafter discharged. On these facts, the accused was charged under section 376 of the Indian Penal Code and in the alternative under section 57 of the Bombay Childrens Act, 1948. The accused pleaded not guilty to the charge. His case is that because of enmity he has been falsely involved in this case.