A.M.BADAR,J. - (1.) By this appeal, the appellant/accused has challenged the judgment and order dated 25.11.2009 in Sessions Case No.224 of 2009 passed by the learned 5th Adhoc Assistant Sessions Judge, Greater Bombay thereby convicting the appellant/accused for the offences punishable under Sections 363, 366(A) and 376(2)(f) of the Indian Penal Code, 1860. For the offence punishable under Section 363 of IPC, the appellant-accused is sentenced to suffer RI for a period of two years with payment of fine of Rs.1,000/- in default he is directed to undergo further SI for a period of two months. For the offence punishable under Section 366(A) of the IPC, the appellant-accused is sentenced to RI for four years and to pay fine of Rs.2,000/- in default, to undergo further SI for a period of four months. For the offence punishable under Section 376(2)(f) of the IPC, the appellant-accused is sentenced to suffer RI for 10 years and to pay fine of Rs.7,000/- in default, to undergo SI for six months.
(2.) Briefly stated, facts leading to the initiation of present appeal can be summarised thus: (a) According to the prosecution case, P.W.2-Amina is resident of Indira Nagar Pipeline slum. The appellant-accused used to visit neighbouring hut and as such, was acquainted P.W.2-Amina and her children. Victim of the crime is stated to be minor daughter of P.W.2-Amina. It is the case of the prosecution that at the time of alleged incident, she was just 9 years old and was studying in 2nd standard. (b) On 31.12.2008 victim female child who is examined as P.W.1, returned from the school and after meeting wife of the appellant-accused went to shop for purchasing chana (Gram). The appellant-accused who is also resident of neighbourhood then told the victim girl that his wife is calling her and on that pretext took her to his house at Dawood Baba Chawl where he is stated to have committed rape on her. P.W.1-Victim girl then returned to her house. As she was weeping her mother, P.W.2-Amina asked her as to what happened. Then, P.W.1-Victim female child disclosed the incident to her mother P.W.2-Amina and thereafter, also to her aunt P.W.6-Sabina Shaikh. (c) P.W.2-Amina along with victim girl and P.W.6-Sabina Shaikh then went to Nirmal Nagar Police Station where P.W.2-Amina lodged FIR Ex.9 against the appellant-accused. This resulted in registration of Crime No.356 of 2008 for the offence punishable under Sections 363, 366(A) and 376(2)(f) of IPC against the appellant-accused. (d) On registration of the offence, Investigating Officer recorded statements of witnesses, spot panchanama and clothes of the victim female child came to be seized by drawing seizure panchanama Exhibit 20. The appellant-accused came to be arrested on 7.1.2009. On 9.1.2009, according to the prosecution case, his statement (Ex.23) came to be recorded in presence of pancha witnesses and consequently, jeans pant, underwear and T-Shirt allegedly worn by him at the time of incident came to be seized vide panchanama Exhibit 23A. P.W.8-Shiva Makwana acted as pancha witness for effecting this recovery. Seized articles were then sent for forensic examination and on completion of investigation, appellant-accused came to be charge-sheeted.
(3.) On commital of case, after due trial, he came to be convicted and sentenced by the learned 5th Adhoc Assistant Sessions Judge, Greater Bombay, on 25.11.2009 as indicated in opening paragraph of this judgment. Feeling aggrieved by this conviction and sentence, this appeal.;