JUDGMENT- VISHNU SAHAI, J.:---Through this appeal the appellants challenge the judgment and order dated 29-3-1995 passed by the Assistant Sessions Judge, Thane, in Sessions Case No. 359 of 1988, whereby they have been convicted and sentenced to undergo 10 years R.I. and to pay a fine of Rs. 3000/- each, in default to undergo 4 months R.I. for the offence under section 376(2)(g) of the Indian Penal Code.

2.In short the prosecution case runs as under :

The informant victim Bayobai Dabhade P.W. 3 is the wife of Mangal Dabhade P.W. 5. At the time of the incident she was residing in her field in a hut, with her husband and her six children. On 20th April 1998 at about 9 p.m. while she was in her hut situate in Bhoyachapada, Dist. Thane, Mangal Dabhade, her husband asked her to call her mother. While she was on her way to her mother's place the appellants caught hold of her. When she tried to raise cries the appellant Parashuram Ladakya Sambare kept his hand on her mouth and thwarted her endeavour to do so. Parashuram also threatened to kill her in case she raised cries. Thereafter both the appellants committed rape on her in the field of Katekar. When she escaped from their clutches she went to the house of her mother Gangubai. She did not inform her about the incident but returned with her to her hut. When she informed Mangal about the incident he slapped her and sent her away the next morning to her mother's house. Five days later Mangal asked her to prove that the appellants had raped her and threatened that if she failed to do so he would not keep her.

3.On 26-4-1988 Bayobai went to the house of Pandharinath Patil, P.W. 4, Police Patil, and informed him that the appellants had raped her on 20-4-1988 at about 9 p.m. The same day Pandharinath Patil brought her to Bhiwandi Taluka Police Station, where her F.I.R. was recorded by P.S.I. Shantaram Ravale P.W. 6.

4.After recording the F.I.R. P.S.I. Ravale P.W. 6 sent victim Bayobai for medical examination. She was medically examined on 27-4-1988 at 11 a.m. at Municipal Dispensary, Bhiwandi. Her medical report shows absence of injuries over her body and vagina admitting two fingers. The opinion of the doctor was that there was no evidence that Bayobai had undergone sexual intercourse.

5.The investigation of the case was conducted in the usual manner. Thereafter the appellants were charge-sheeted and put up for trial. They were charged for the offence under section 376(2)(g) of the Indian Penal Code to which they pleaded not guilty and claimed to be tired.

During trial in all the prosecution examined 7 witnesses, out of which the informant victim Bayobai rendered occular account.

The defence of the appellants was denial but they examined no witness to substantiate it. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in para 1.

Hence this appeal.

6.We have heard Mr. A.V.S. Paradkar for the appellants and Mrs. Usha Kejariwal for A.P.P., the respondents. In our view this appeal deserves to be allowed for the evidence on record does not warrant that it would be safe to act on the solitary statement of the informant victim Bayobai Dabhade P.W. 3.

7.In para 2 we have set out the prosecution story on the basis of the recitals contained in the statement of Bayobai Dabhade P.W. 3. In short she stated that on the date of the incident, at about 9 p.m., her husband Mangal asked her to call her mother and while she was on her way, the appellants met her; caught hold of her; appellant Parashuram Ladakya Sambare pressed her mouth and threatened to kill her if she raised cries; and thereafter the appellants raped her. She stated that after the incident she went to her mother but did not inform her about the incident. She further stated that when she returned with her mother, she informed her husband Mangal about the incident who slapped her and sent to her mother's place. After five days he came and asked her to prove tha

Click Here to Read the rest of this document