1. This is an appeal by accused no.1 Shiva, who was convicted by the Sessions Judge for having committed an offence under Section 376, 342 and 352 of Indian Penal Code and who was sentenced to imprisonment for period of ten years for offence under Section 376 of the Indian Penal Code, Six months for offence under Section 342 of the Indian Penal Code and one month for offence under Section 352 of the Indian Penal Code. The appellant shall hereinafter be referred to as accused no.1 Shiva.

2. The facts may be narrated thus - On 4/9/2000, the prosecutrix Vinanti Tayade was sleeping at her house along with her husband and children. At about 10 O'clock, accused no.1 Shiva knocked the door of her house and called her. She and her husband woke up and opened the door. Accused no.1 Shiva took out a knife for assaulting the husband of prosecutrix and he assaulted him with fist blows. She asked Shiva accused no.1 to go away. Accused no.2 Dinesh was also standing by the side and was giving threats. Accused no.1 Shiva then pulled the prosecutrix out of the house, pushed her husband inside and chained the door of her house from outside. Accused no.1 Shiva took the prosecutrix in the bath-room adjacent to the house and accused no.2 Dinesh was standing outside to guard. When Shiva was trying to have sexual intercourse with her, her husband unchained the door, came out of the house. Accused Shiva then rushed to assault her husband once again with a knife. Prosecutrix snatched the said knife from the hands of Shiva and kept it with her. Then, she was taken behind a school by both of them. Accused no.1 Shiva again went to the house of the prosecutrix for assaulting her husband. Accused no.2 Dinesh then caught hold of her hand and took her to a public latrine where he committed rape on her. Thereafter, he took her to his own house and at his house his younger brother Umesh also committed rape on her. Thereafter, it is alleged that, Umesh sensed that accused Shiva Sardar had come for assaulting him. Accused no.2 Dinesh hid himself in the bath room as well as the prosecutrix. The prosecutrix, however, escaped and came to the Police Station and lodged report with the Police. The Police arrested all the accused and sent Vinanti for medical examination. She was immediately medically examined. The accused were also medically examined. The statements of witnesses were recorded and charge-sheet was filed against all the accused.

3. The Judicial Magistrate (F.C.) committed the case to the court of Sessions. Charge against all the accused was framed and they pleaded not guilty. However, subsequently, accused nos.2 and 3 absconded and their trial has been separated. Trial was only against accused no.1 Shiva and upon consideration of the evidence, the Sessions court held him guilty and sentenced him to 10 years rigorous imprisonment. It is against this order of conviction that this appeal has been preferred.

4. I have heard Mr. J.B.Kasat, Advocate for the accused and Mr.A.S.Sonare, Additional Public Prosecutor for the State.

5. The undisputed fact is that prosecutrix is a married woman and lives with her husband.

6. The prosecution has examined PW 1 Anil Khandare as panch, PW 2 Vinanti Tayade is prosecutrix, PW 3 Dr.Mangala is Medical Officer, PW 4 Mukesh is son of prosecutrix and strangely PW 1 Anil is once again examined as PW 5, PW 6 is P.S.I. Ramesh More . the Investigating Officer. It is deposed by PW 1 Vinanti that on date of incident, she had gone to bed along with her husband and children at her home. She states that accused no. 1 Shiva came around 10 p.m., knocked the door of her house and she opened the door. She states further that accused no.1 Shiva and accused no.2 Dinesh were standing at the door of the house and accused no.1 Shiva was holding a knife and he rushed to assault her husband. She further states that accused no.1 Shiva then gave fist blows to her husband and pushed her husband inside the house, pulled her out of the hou