MILIND AMBADAS MHASKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN these appeals, the appellants impugned the Judgment and order dated 13-9-1993 passed by the Additional sessions Judge for Greater Bombay in Sessions Case no. 153/92 whereby they were convicted and sentenced for the offence under section 376 read with section 34 of the Indian Penal Code to undergo R. I. for 10 years and to pay a fine of Rs. 1,000/- each, in default to undergo further R. I. for one year each. They were also convicted by the impugned judgment under section 506 (Part II) of the Indian Penal Code and sentenced to undergo r. I. for six months and to pay a fine of Rs. 200/-each, in default to undergo further R. I. for one month. They were further found guilty of the offence punishable under section 135 of the Bombay police Act, 1951 but no separate sentence is passed. Against the said conviction and sentence, original accused No. 1, Milind Dharma Babar filed appeal No. 152/95 and Milind Ambadas Mhaske original accused No. 2 filed Appeal No. 422 of 1994. Since these two Appeals arise out of common judgment and we propose to dispose of these appeals by this common judgment.

(2.) THE charge against the two accused was that they along with the absconding accused Anil ambadas Mhaske on 19-10-1991, between 1. 00 a. m. and 3-15 a. m. at Khadi Machine Hut and ground floor of Lokmala Apartments at Ajit Baug, Chembur, bombay-74, in furtherance of their common intention committed gang-rape on one Mrs. Saira salim Shaikh P. W. 1 and thereby committed an offence punishable under section 376 read with section 34 of the Indian Penal Code and also on the same date, and place the appellants along with the absconding accused while committing the aforesaid act, did impart threats to the life of said Mrs. Saira Salim Shaikh, that she will be finished if she will raise the cry against the said act and thereby the appellants committed an offence punishable under section 506 (II) of the indian Penal Code. The charge also contained that while committing the aforesaid offences they were possessing deadly weapons like swords and knives and used the same and thereby committed an offence punishable under section 135 of the Bombay Police act, 1951.

(3.) ACCORDING to the prosecution, on 19th october, 1991 between 1. 00 a. m. and 3-15 a. m. at khadi Machine Hut and ground floor of Lokmala apartments, Ajit Baug, Chembur, Bombay-75, the accused No. 1 i. e. appellant in Criminal Appeal no. 152 of 1995 and accused No. 2 Milind Ambadas mhaske, the appellant in Criminal Appeal No. 422 of 1994 and the absconding accused Anil Mhaske whose whereabouts are not known have committed the aforesaid offence. According to the prosecution on 18th/19th October, 1991, the prosecutrix Saira salim Shaikh P. W. 1 was returning from her duties at about 12 O clock at midnight. She had her place of service in a Beer Bar at Kurla as a waitress. After finishing her work on that day i. e. night of 18th October, 1991, she got down from the Bus and was proceeding towards her residence. She has two sons. Her husband is a tempo Driver who visits the house only in fortnights. After getting down from the bus, the prosecutrix, Saira, was proceeding towards her residence through a lonely way. There was nobody in the night but the street lights were on. After walking some distance, according to the case of the prosecutrix, she felt that someone was coming behind her and when she looked back, she found that one person was following her. That person came near her and put his hand on her right shoulder. She raised objections for such act. On her opposition, the said man showed a knife to her and at the point of knife, he directed the prosecutrix to go along with him silently. Against her will, at the point of knife, since she had no other option but to be silent, that man forcibly took her to one hut which was in a dilapidated condition. Nobody was staying in the hut. After taking the prosecutrix into the hut, the said man pointed a knife at her neck and forcibly made her to sit on a chair and he threatened that she would be killed if she made any shouts. She was also threatened that she will not be allowed to reside in the area in case she opposed him and he forcibly fell on her down on the ground. He moved her saree upwards and he also removed his underwear and had sex with her. The prosecutrix was murmuring throughout. At the time of sexual intercourse, he was threatening her that if she disclosed to anybody she would not be left free and she would be killed. This is the act she alleged against accused No. 2 Milind Ambadas mhaske.