SACHIN JAMANAPRASAD MISHRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellant stands convicted for the offences punishable under section 363, 376(2)(g) and 376 of the Indian Penal Code and is sentenced to suffer R.I. for three years and fine of Rs. 300/- i.d. to suffer R.I. to one month; R.I. for ten years and fine of Rs. 400/- i.d. to suffer R.I. for one month and R.I. for 7 years and fine of Rs. 400/- i.d. to suffer R.I. for one month, respectively, by the learned Ad hoc Additional Sessions Judge, Sewree, Mumbai vide judgment and order dated 23/04/2010 passed in Sessions Case No. 685 of 2009. The Appellant by this appeal questions the correctness of his conviction and sentence. Few facts, as are necessary to decide the said appeal are as under:

(2.) On filing of the charge sheet, the Court of the learned Metropolitan Magistrate, 32nd Court, Bandra, Mumbai, committed the case to the Court of Sessions, Mumbai. The learned Ad hoc Sessions Judge, vide Exh. 2, framed charge on 16/12/2009 as against the Appellant for the offences punishable under section 363 r/w. 34 and under section 376 of the Indian Penal Code. The Appellant was charged for kidnapping and for having committed the offence of rape on the prosecutrix from 30/07/2008 to 02/08/2009 in the hut at Unpatiya, Surat, Gujarat. It is pertinent to note, that during the recording of the evidence of the prosecutrix, the charge came to be altered by the learned Additional Sessions Judge, Mumbai on 21/04/2010 and an additional charge under section 376(2)(g) of the Indian Penal Code came to be framed as against the Appellant. In the altered charge, it was stated that the Appellant alongwith the absconding co-accused-Karan committed gang rape on the prosecutrix, aged about 14 years on 27/07/2008 at 9.00 p.m. and on 28/07/2008 at 1.00 a.m. respectively in the kitchen of 'Uncle's Kitchen' canteen, Vakola Pipeline, Santacruz (E), Mumbai.

(3.) The Appellant denied the said charge and claimed to be tried. The prosecution in support of its case examined 9 witnesses. In order to effectively deal with the submissions advanced by the learned counsel appointed for the Appellant and the learned A.P.P. for the State, it would be useful to refer to the evidence of the prosecution witnesses, that has come on record.