SAMUNDERSING MAHIPAL SING Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellants have impugned the judgment and order dated 6th May 2013 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No. 639/2010, convicting and sentencing them as under :

(2.) The prosecution case in brief is as under :

(3.) Mr. Gupte, learned senior counsel for the appellant No. 1 submitted that the appellants have been falsely implicated in the said case. He submitted that the conduct of the prosecutrix, prior, at the time of the incident and post incident, renders her evidence with respect to sexual assault by the appellants on her, doubtful. He further submitted that the incident of sexual assault by the appellants also becomes doubtful, considering the prosecutrix's admission that post the sexual assault on her by the appellants and prior to the registration of the FIR, she had physical relations with her boyfriend (PW 5). He submitted that the FIR has been lodged belatedly, after deliberation on the next day i.e. on 8th April 2010. He further submitted that the test identification parade cannot be relied upon, inasmuch as, the prosecutrix as well as PW 5 had the opportunity to see the appellants at the police station, soon after their arrest and as such, reliance cannot be placed on the said test identification parade. He further submitted that the medical certificate shows that there were no injuries on the person of the prosecutrix, thus, belying the prosecutrix's case that she was taken near a ditch, were she was sexually assaulted by the appellants. He further submitted that the prosecutrix and PW 5 have falsely implicated the appellants, as the prosecutrix and PW 5 were caught behaving indecently in the military area and as such were reprimanded by the military men. According to the learned senior counsel, feeling humiliated, a false complaint was lodged against the appellants. He further submitted no disclosure of sexual assault was made by the prosecutrix either to PW 5 or to her parents. He further submitted that the spot where the incident took place is far away from her residence and that there was no reason for the prosecutrix to come near Pimpale Saudagar. Learned counsel further submitted that the injuries sustained by PW 5 were not sufficient to make him unconscious, thus, belying the case of the PW 1, that he was assaulted by the appellants, as a result of which, he became unconscious. Alternatively, learned senior counsel submitted that the evidence on record does not suggest that it was a case of consent, inasmuch as, the prosecutrix had deposed that the appellants had called her on the next day and offered her money.