GULAB HUSEN SHAHABUDIN BAGWAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this appeal the appellant challenges the judgment and order dated 31-5-1995 passed by the Additional Sessions Judge, Kolhapur, in Sessions Case No.79 of 1994, whereby he was convicted and sentenced in the manner stated hereinafter : i)Under section 376 IPC to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5000/- , in default to undergo 6 months rigorous imprisonment. ii)Under Section 377 IPC to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 500/-, in default to undergo 6 months rigorous imprisonment : The substantive sentences of the appellant were ordered to run concurrently.

(2.) IN short the prosecution case runs as under: The prosecutrix Hasina Bagwan P. W. 1 is the sister of the appellant. About 2 years prior to the incident she was married to one Ramazan. Out of the wedloc a daughter was born who died after some days. Ramzan thereafter became mentally affected. Consequently she started residing with her mother. On 15.3.1994 in the evening the appellant came to the house of his mother and started abusing her; blaming her that she had killed his father. This was heard by the prosecutrix. The appellant told the prosecutrix that he would settle her second marriage and asked her to accompany him. She replied that it was late night and that she would accompany him the next morning. The appellant threatened to kill her if she did not accompany him. Consequently she relented. The appellant took her to Kanatnagar on a bicycle. He took her in the hut of Sakhira Mujawar P. W.6.IN the said hut she saw a girl and a small boy sleeping. The appellant thereafter removed her clothes ; paid no heed to her request that she was his sister and not his wife; threatened to kill her in case she shouted for help ; removed his clothes; put his penis in her mouth; started sucking her private part; and then inserted his penis in her private part. After raping her he threatened to kill her, in case she shouted. During the commission of rape her bangles were broken. After some time the appellant slept, but she continued sitting near him. Later she got up from the place; wore her clothes; cleaned her private parts; went near the girl who was sleeping in the hut woke her up, and requested her to show her the way to Kanatnagar. The said girl showed her the way. She then came on the road where she found a boy who was sleeping on hand cart; she woke him from sleep ; took Rs. 5/- from him; came near Venus talkies; took a rickshaw; and went to the house of her mother, which she reached at about sunrise. She told her mother, brother Noormahamad and his wife Sakira about the incident. Her mother asked her to remove the clothes and gave her a bath. Her brothers returned home. Her elder brother Chandsab was called. He came some times between 11 a. m. to 12 p. m. Then it was decided to lodge the F. I. R.

(3.) THE case was investigated in the usual manner by P. S. I. Ajit Khadake P. W.9.On 16.3.1994 at about 8.50 p. m. he arrested the appellant and seized the clothes which he was putting on under a panchanama and referred him for medical examination. After usual investigation the appellant was chargesheeted on 12.4.1994.