RAMCHARAN RAMAVADH YADAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Revision Application is directed against the judgment dated 12th Aug., 2016 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Appeal No. 549 of 2014 and also the order dated 8th May, 2014 passed by the learned Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai in C.C. No. 673/PW/2012 thereby convicting the accused for the offences punishable under sections 377, 387 r/w. 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and fine of Rs.5,000.00, i/d. To suffer S.I. for 15 days. This Revision Application is heard finally at the stage of admission, as the accused is convict and is in prison since last 4 1/2 years.

(2.) The victim is 32 years mentally ill man. His mother is a complainant. The incident has occurred on 24th June, 2012 in the evening. It is the case of the prosecution that the applicant/accused knew the victim and his family. On 24th June, 2012, the victim left the house along with his friend to go to Siddhivinayak temple. The victim received phone call from the applicant/accused that he is alone at his office and told the victim to come to him. So, the victim went to the office at 3rd floor, EBuilding, Joshiwadi, Kalbadevi. The accused removed the trousers of the victim and committed unnatural sexual intercourse with the victim. Thereafter he took the victim to Chowpatty to meet his brother and he told the victim that accused would be going soon to his native place and in his absence, he should allow his brother to do some things with the victim. The victim refused to do so. The accused then dropped the victim at his home. He informed this fact to his mother PW-4. The mother shared it with his father PW5. The injuries were found on the private part of the victim.

(3.) The learned counsel for the applicant/accused has submitted that the accused is innocent and he has not committed any offence. There are discrepancy in the evidence of the victim especially the time and date. He submitted that the medical evidence and ocular evidence are not consistent. He relied on Exhibit 32, which is the medical certificate issued on examination of the accused. He pointed out that in the said certificate, no injuries were found on the person of the accused after immediate examination of the accused. The learned Judges of the trial Court and the Sessions Court ought to have taken into account this fact and have acquitted the accused from the offence. It is a concocted case against the applicant/accused. Hence both the judgments of the trial Court and Appellate Court are to be set aside and the accused be acquitted. The learned counsel alternatively argued that if the Court is going to confirm the judgment and order, then the accused prays for leniency in sentence. He pointed out on the basis of record that the accused was taken in custody on 25th June, 2012. The learned Additional Chief Metropolitan Magistrate convicted him on 8th July, 2014. The learned Additional Sessions Judge confirmed the sentence given by the learned Additional Chief Metropolitan Magistrate on 12th Aug., 2016 and on the same day, the accused was taken in custody. Thus, the applicant/accused has gone imprisonment of 4 years out of 7 years, so his sentence be reduced for a period undergone.