JALANDAR VISHNU WADEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order dated 22nd June, 2012, passed by learned Additional Sessions Judge-1, Amravati, in Sessions Trial No.165 of 2010, by which the appellant Accused No.2 Jalandar was convicted of offence punishable under Section 376 (2) (g) of Indian Penal Code, and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 1,000/-, in default, further Rigorous Imprisonment for two months, the appellant filed the present appeal before this Court.

(2.) In support of the appeal, learned counsel for the appellant submitted that it is the case of the prosecution itself that the present appellant accused Jalandar did not commit any rape on the prosecutrix 'V' and that he was only with the principal accused Rauf Khan son of Noor Khan, who, in fact, committed rape and he has been convicted by Additional Sessions Judge-1, Amravati, by Judgment and Order dated 6th January, 2014 and Imprisonment for Life has been imposed on him. According to the learned counsel for the appellant, the question of holding the appellant guilty of the offence of gang rape, therefore, did not arise, since there is no overt act on the part of appellant and, therefore, he should have been acquitted of the charge levelled against him. He submitted that the appellant could not be convicted by virtue of the definition of the 'gang rape' under Section 376 (2) (g) of Indian Penal Code, looking to the alleged role played by the appellant only of waiting outside the room where the rape was being committed by the principal accused Rauf Khan. He, therefore, submitted that the appellant could not be held guilty of the offence of gang rape.

(3.) Per contra, learned APP for the State supported the impugned Judgment and Order and submitted that though it is true that the appellant did not physically commit rape on the victim 'V', looking to the previous background, so also the evidence on the date of incident of rape and the participation of the appellant, no error has been committed by the Trial Judge in convicting him of the offence of gang rape. He, therefore, prayed for dismissal of the appeal.