AYUB BABU IRANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant / accused no.1 is challenging the judgment and order dated 28 th November 2011 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No.410 of 2010 thereby convicting him of offences punishable under Sections 376, 366A and 506(2) of the Indian Penal Code (IPC) and sentencing him rigorous imprisonment for 7 years, 1 year and 1 year respectively, on each count. Apart from this, for the offence punishable under Section 366A of the IPC, the appellant / accused no.1 is also sentenced to pay fine of Rs.1,000/- and in default, to undergo further rigorous imprisonment for 2 years. Co-accused i.e. accused no.2 Rupesh Mhaske, whose appeal is not before this court, is also found guilty of the offence punishable under Section 366A of the IPC and he is sentenced to suffer rigorous imprisonment for 1 year, apart from direction to pay fine of Rs.5,000/- and in default, to undergo further rigorous imprisonment for 1 month. Accused no.3 Imran Jafari came to be acquitted by the impugned judgment and order. For the sake of convenience, the appellant / accused hereinafter be referred to in his original capacity as accused no.1.

(2.) Facts leading to the institution of the present appeal can be summarized thus :

(3.) I have heard Ms.Nasreen Ayubi, the learned advocate appearing for the appellant / accused. By taking me through the evidence of PW1 i.e. the prosecutrix, as well as through the evidence of PW9 Dr.Archana Sankpal, the learned advocate vehemently argued that the prosecutrix is not a witness of truth as on the first occasion, she had reported to the Medical Officer that she was kidnapped by fifteen unknown persons and was taken to an unknown place where she was raped by one Ayub. The learned advocate further argued that cross-examination of the prosecutrix, so also the history narrated by her to PW9 Dr.Archana Sankpal, shows that she was habitual to sexual intercourse. It is further argued that as per version of the prosecutrix, she ran away from the spot in a naked condition and subsequently she was provided with clothes by PW2 Rahul Kamble and PW6 Sandeep Raut. However, those clothes were not seized by police. According to the learned advocate appearing for the appellant / accused no.1, the spot of the incident, according to the prosecution case, is a public place and it is improbable that accused persons or any of them, would have been in a position to kidnap her for committing rape. Though according to the prosecution case, the prosecutrix was raped at a rough surface, she had not suffered any external injury and therefore, the appellant / accused no.1 is entitled for benefit of doubt.