SHAKIL KARIM TAMBOLI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) It is the appeal preferred by the appellant - original accused No. 3 against the sentence and order passed by the 3rd Ad hoc Additional Sessions Judge, Sangli (hereinafter referred to as ("the trial Court") dated 18.3.2004. By the said impugned judgment and order present appellant, along with co - accused Nos. 1 and 2 was convicted for the offence punishable under Section 376(2)(g)(a) read with Section 34 of the Indian Penal Code (I.P.C. for short) and was sentenced to suffer R.I., for ten years and fine of Rs. 2,000/- in default to suffer further R.I., for one year. He was also convicted along with co-accused Nos. 1 and 2 for the offence punishable under Section 376, read with Section 34 of the Indian Penal Code and sentenced to suffer R.I., for seven years and fine of Rs. 500/- in default R.I., for one year. Similarly, the appellant was convicted along with accused Nos. 1 and 2 for the offence punishable under Section 452 r.w. Section 34 of the I.P.C., and sentenced to suffer R.I., for three years and fine of Rs. 500/- in default R.I., for six months, so also the appellant was convicted along with coaccused for the offence punishable under Sections 324, 323, 506, 504 read with Section 34 of the I.P.C., and sentenced to suffer R.I., respectively for one year, six months, three years and six months. All the substantive sentences were directed to run concurrently. Perused R and P and the substantive evidence of total seven prosecution witnesses led before the Trial Court. Also, heard rival submissions at length on earlier dates and also on today.

(2.) In order to appreciate the rival arguments and also mainly the arguments advanced on behalf of the appellant accused No. 3, the case of the prosecution, as unfolded before the Trial Court, can be narrated as under.

(3.) Prosecutrix P.W.1 was married with one Balasaheb Shitole in the year 1990. However, thereafter, there were disputes between them. Her husband started residing with another woman. Prosecutrix and her husband started staying separately since about seven to eight years prior to the incident, which took place on 11.9.2002. Prosecutrix had constructed one hut like room on the plot of the land which she got from the brother of the present appellant-accused No. 3. She resided in that place along with her son P.W.4, then aged about 13 years. The incident of rape happened on the night between 11 and 12 September, 2002 when prosecutrix and her son were sleeping at home. At about 10.00 p.m., or so, there was knocking on the door and accused Nos. 1 and 2 were asking the prosecutrix to open the door. They used filthy language to the prosecutrix. Suspecting steps of the accused persons, she initially did not open the door. However, subsequently one neighbour P.W.3 Smt. Kashibai arrived on the spot. She was knowing the accused persons. She asked the prosecutrix to open the door saying that the outsiders were known persons. On this, the prosecutrix opened the door and then accused Nos. 1 and 2 entered the room. Present appellant accused No. 3 remained outside watching the situation. Accused Nos. 1 and 2 gave threat to P.W.3 Kashibai of dire consequences and asked her to leave to place and to keep quite. On such threats, Kashibai took the young son of the prosecutrix along with her and left the place. Both accused Nos. 1 and 2 after entering the room closed the door from inside and uttered filthy language to the prosecutrix. They forcibly make her naked by removing her clothes. They also, one after the another, removed their clothes and had forcible intercourse and also indulged in unnatural intercourse with the prosecutrix. In order to see that she should not raise any shouts her mouth was gagged by hands of accused Nos. 1 and 2.