BARKYA Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Criminal Appeal No.525 of 2016 is filed by original accused no.2 Barkya @ Barku Hilam whereas Criminal Appeal No.658 of 2016 is filed by original accused no.1 Prabhakar Mukne. By these appeals, both these appellants/convicted accused are challenging the judgment and order dated 17 th December 2015 passed by the learned Additional Sessions Judge, Nashik, in Sessions Case No.78 of 2013 thereby convicting both of them of the offence punishable under Section 376(2)(g) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.1,000/- by each of them and in default, to undergo rigorous imprisonment for 3 months.

(2.) Facts, in brief, leading to the prosecution as well as resultant conviction of the appellants/convicted accused, can be summarized thus :

(3.) I have heard the learned advocates appearing for both the appellants/convicted accused. They vehemently argued that evidence regarding identity of the appellants/convicted accused coming from the mouth of the prosecutrix/PW1 is highly doubtful. Her cross-examination reveals that she was shown some photographs and by looking at those photographs, she has implicated the appellants/convicted accused persons. It is further argued that the prosecutrix/PW1 is implicating the appellants/convicted accused persons on the say of her husband PW2 Ratnakar. According to the learned advocates appearing for the appellants/convicted accused persons, Test Identification Parades conducted by the prosecution were not proper. The appellants/convicted accused persons were seen by the prosecutrix/PW1 earlier to conducting of the Test Identification Parades and as such, that evidence is of no consequence. Medical evidence is also not supporting the case of the prosecution and therefore, appeals need to be allowed.