AKHTAR ABBASKHAN PATHAN Vs. THE STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Akhtar Abbaskhan Pathan
THE STATE OF MAHARASHTRA
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A. I. S. Cheema, J. -
(1.) The Appellant (hereafter referred as "Accused") was charged with offence under Section 376 and 506 of the Indian Penal Code, 1860 ("IPC" in brief) in Sessions Case No.14 of 2003 before Ist Adhoc Additional Sessions Judge, Aurangabad.
Accused came to be convicted for lesser offence of Section 354 of IPC and sentenced to suffer rigorous imprisonment for two years with fine of Rupees One Thousand and in default, to suffer further rigorous imprisonment for three months. He was acquitted, by the Judgment dated 29th July 2003, for offence punishable under Section 376 and 506 of IPC. Thus, this Appeal.
(2.) The case of prosecution, in short, is as follows:
(A). On 6th October 2002 the prosecutrix (PW6) (hereafter referred as "Victim"), (I am not putting her name on record. I will not put the name of mother (PW1) and her father (PW7) also on record to conceal their identity.) filed F.I.R. at Phulambri Police Station, DistAurangabad which was received by PW8 A.P.I. Shriram Ghuge. The F.I.R. Exhibit 30, in brief, can be stated to be as under:
The Victim informed that she has a blind father and six sisters and one brother. Four sisters are married. She is unmarried. Her father has field in Dhamangaon Shivar and with her parents she was residing at the field. She never went to school. Near her field, there is field of Abbas Pathan, the father of Accused. This Abbas Pathan is brother of her father. The Accused is son of said Abbas. F.I.R. refers to the mother of victim giving Rs.50/ to the Accused for bringing medicine Entrane for spraying on crop and how the Accused was being reminded to bring the same and he was avoiding. Then it is mentioned that on 5th October 2002 Accused was called to the field and mother of the Victim again asked him regarding the medicine as she had given him Rs.50/. Accused told that he has brought the said medicine and the Victim be sent with him so that he will give it to her from his field. The Victim was sent with the Accused along with an empty tin. She was taken to the field of one Kadar Pathan and Accused asked him for measure, which he did not have. Then Accused asked the Victim to come along to his field for the medicine. On the way, there was a field of one Dadarao Dwarkunde (PW2) where there was sugarcane crop. At about 11.00 a.m. when the Victim was near that field along with the Accused, the Accused held her hands and pulled her inside the field. In the crop the Accused forcibly removed her clothes and removed his own clothes and the F.I.R. gives details as to how intercourse was done against her wish. The F.I.R. mentions that thereafter the Accused gave her the concerned medicine and she went back crying and told the incident to her mother. Thus the F.I.R. came to be filed giving such details and crime was registered at 75 of 2002 at 11.00 a.m. on 6th October 2002.
(B). The Investigating Officer PW8 Shriram Ghuge registered the offence and investigated the same. The Victim as well as the Accused were referred for medical examination. The clothes of the Victim as well as the Accused were seized. The samples of pubic hair, genital swab and nail clippings of the Accused as well as Victim were collected. Blood samples were also collected. The clothes along with such samples were sent to C.A. and the reports were obtained. Reports regarding medical examination of the Victim as well as Accused were collected. Statements of witnesses were recorded. After the investigation, chargesheet came to be filed.
(C). In Sessions Court the Accused denied the charge under Section 376 and 506 of IPC as explained against him. The Accused pleaded not guilty. Defence of the Accused is that Shaikh Lal, brother of mother of Victim has dispute with the Accused on the count of sharing of water of well and because of such dispute, the present case was filed and that it is false.
(3.) In the trial Court, evidence of eight witnesses was brought on record. The trial Court, after considering the evidence, found that offence of rape and criminal intimidation was not established, however, the offence of outraging of modesty of the Victim was proved. Consequently, the conviction and sentence as mentioned above, was imposed.;
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