YUNUS TURAB SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY the ORDER and order dated the 6th of November, 1986, passed by the learned Additional Sessions Judge for Greater Bombay in Sessions Case No. 508 of 1985, the appellant original accused is acquitted of the charge under Section 376 of the Indian Penal Code but is convicted under Section 661. P. C. and is sentenced to suffer rigorous imprisonment for nine months. The aforesaid order of conviction and sentence is impugned in the present appeal. Initially, four accused were prosecuted. However, accused Nos. 2, 3 and 4 were discharged as no material was found against them to justify the framing of a charge.

(2.) THE prosecutrix in the case is P. W. 2 Mangala. At the relevant time she was studying for S. S. C. at Bhandup Peoples Education Society High School. The accused is a resident of the locality where Mangala was residing. She knew him since her childhood. She was in fact his pupil in school. The accused used to give her tuitions. Mangala used to go to his house for taking tuitions. She used to remain with him late till 11. 00 p. m. In school, she used to take leading part in extra-curricular activities. She was proficient in sports and singing. According to her Principal P. W. 5 Smt. Indira Kartha, she was a bold student and not a shy-type of a girl nor was she timid. Theirs was a coeducation school. One third strength of the students consisted of girls. Mangala had finished her S. S. C. examination by the 30th of March, 1985. She, however, continued to go to the accused for tuitions. Her father, P. W. 1 Vinayak Naik, used to reside in Saudi Arabia for doing a job of an electrician. In March, 1985 he lost the job and he came to India. In her deposition, Mangala has stated that even though she used to be exhausted the accused used to force her to take tuitions till late. She has further stated that while taking tuitions accused used to tell her that he loves her and he would marry her. Mangala used to keep quiet. Even, after her examinations were over the accused used to call her at his house for tuitions.

(3.) ACCORDING to the prosecution, on the 5th of April, 1985 accused sent one Rajendra to the house of Mangala to call her at his house. Mangala set him back stating that she would not go. The accused again sent Rajendra in order to call her. Mangala was, thus, forced to go the accused. Accused told her that they were going out for some work and asked her to accompany him. He asked her to go and wait for him at Konkan Nagar Rickshaw Stand. She accordingly proceeded there and waited for the accused. The accused followed her and asked her to sit in a rickshaw. The accused was then carrying a leather bag. The accused brought her to Mulund Check Naka in the rickshaw. He changed the rickshaw there and brought her to Thane S. T. Stand. They boarded one S. T. Bus and reached Kalyan and thereafter proceeded to Panvel another S. T. Bus. From there, they went to Pune by train. Thereafter by another train they went to Kurduwadi and by yet another train to Latur. At Latur, the accused booked a room in one lodge near the S. T. Stand. Mangala asked the accused as to where he was taking her. He asked her to quietly accompany him lest he would slur her name and honour. In the room of the lodge, they had food and thereafter, went to the market where the accused brought her a frock and an underwear. They returned to the lodge at about 8. 45 p. m. In the room, it is the case of tile prosecution, the accused forcibly removed her clothes and committed an act of sexual intercourse with her under a threat that if she made noise he would leave her there and go away. They got up at about 6. 00 a. m. in the morning and proceeded to Sapatane, the village of the accused. There, the accused introduced Mangala to his grandmother as his wife. They stayed there for a day with her. There also the accused committed sexual intercourse during night time. Next day they went to village Nazare where accuseds uncle resides. There they stayed for one week. There also the accused introduced her as his wife. During their stay, the accused committed sexual intercourse every day. From there, they came to village Bhose near Pandharpur and stayed with the sister of the accused for one week. There also the accused continued to have sexual intercourse every day. He told his sister that they had married each other. From there, they went to village Khupsungi and stayed with the eldest sister of the accused. There also he introduced her as his wife and stayed there for a week and had sexual intercourse every day. Then they came back to village Bhose. On 15th of May, 1985 her father and police came and they were apprehended and brought to Pandharpur police station. Mangala showed the police the places where they had moved in the company of each other. According to the prosecution, Mangala was born on the 5th of March, 1965. She was, therefore, a minor on the date of the incident. On the aforesaid facts, the accused was charged under sections 363, 366 and