HUSSAIN ALIAS PATIYA OSMANKHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two Criminal Appeals are filed by two different accused against the same decision given by the learned Additional Sessions Judge, Aurangabad in Sessions Case No. 38 of 1979 and they arise out of the following facts.

(2.) The date of offence is 19-11-1977 and the time is about 10 or 10.30 p.m. The place of offence is a room situated in Kiradpura area of Aurangabad city. Prosecutrix Jijabai (P. W. No. 1) was married to one Uttatm, a resident of village Naigaon Peshor in Kannad Tahsil of Aurangabad District. She was deserted by her husband, who married a second wife and that is why she was staying in Shah Bazar area of Aurangabad with her mother Bhagabai (P. W. No. ). On 19-11-1977, after the dinner both these ladies were sleeping inside their house by bolting the door from inside. In all three persons, that is, these two Appellants and one Kalia, who is a juvenile offender and case against whom is sent to the Juvenile Court, nocked the door and that is why Jijabai oper ed the door. Appellant Kadar Khan, who is accused No. 1 and who has filed Criminal Appeal No. 1441 of 1979, questioned Jijabai as to who had given application against him. Jijabai pleaded ignorance about it and thereafter accused No. 1 asked her to accompany him. She refused, but accused No. 1 whisked out a knife from the pocket and threatened her to cut to pieces in case she did not accompany him. Her mother Bhagabai was also helpless and that is why Jijabai accompanied accued No. 1 due to fear Accused Nos. 2 and 3 also went along with them. They took her lo a room in Kiradpura area and accused No. 1 asked his two companions to fear Accused Nos. 2 and 3 also went along with them. They took her to a room in Kiradpura area and accused No. 1 asked his two companions to bring food from hotel. After these two other accused went away, accused No. 1 bolted the door from inside, spread a carpet and committed rape upon Jijabai. Thereafter he opened the room and the other two accused brought food which was taken by all the three accused. Thereafter Jijabai started returning home and on her way. she came across Milind (P. W. No. 3) and one Habib. She narrated the story to both of them. Meanwhile, Bhagabai also was crying in her house and this was seen by some others. Jijabai came home and immediately narrated the story to her mother Bhagabai. Immediately they both went to City Chowk Police Station where JiJabai lodged complaint(Exh. No. 14) and an offence under section 376 of the Indin Penal Code was registered. P. S. I. Yevatikar (P. W. No. 8) recorded her complaint, attached her wearing clothes which consisted of a lenga and a saree. There were stains of semen on this lenga. The clothes were securely sealed and she was sent for medical examination. All the three accused were arrested in due course of time and after completion of usual investigation, a charge sheet was sent against all the three accused in the Committing Court.

(3.) It appears that the learned Committing Magistrate committed all the three accused to the Court of Sessions. But it appears that the learned Additional Sessions Judge entertained a doubt about the age of accused No. 3 Kalia and he was sent for medical examination for ascertaining his age. Ultimately, the learned Additional Sessions Judge came to the conclusion that Kalia was a juvenile offender and so case against him was separated and Sessions Case No. 38 of 1979 proceeded against the two accused, that is, Kadar Khan accused No. 1 Appellant in Criminal Appeal No. 1441 of 1979 and Hussain alias Patiya accused No. 2 Appellant in Criminal Appeal No. 1433 of 1979.