Anuja Prabhudesai, J.

1. The appellant herein has impugned the judgment dated 21st June, 2011 passed by the learned Assistant Sessions Judge, Greater Mumbai in Sessions Case No. 645 of 2009, whereby he has been convicted for the offence punishable under Section 376 of the Indian Penal Code (for short 'IPC') and sentenced to undergo Rigorous Imprisonment for seven years with fine of Rs. 5,000/- in default, to undergo further R.I. for 3 months. The fine amount, if deposited by the accused has been ordered to be paid to the prosecutrix towards the compensation. Briefly stated the case of the prosecution is as follows: The prosecutrix, who is a married woman with two children, was residing in a room at Pathan Wadi, Aarey Road, Mumbai. The husband of the prosecutrix has been convicted in a murder case, and is undergoing imprisonment for life. The appellant (hereinafter referred to as the accused), is the brother-in-law of the prosecutrix. On 2nd August 2009 at about 12.30 a.m. the accused and one Daud, the juvenile offender, came to the room of the prosecutrix and requested her to permit them to stay in her room for a while as they were being chased by the police. Conceding to their request, the prosecutrix permitted them to take refuge in her room. She provided a pillow and a that to the juvenile offender and prepared snacks and tea for the accused. It is alleged that while the prosecutrix was sitting on the bed, the accused placed a sickle on the chair and started molesting her. On being resisted, the accused threatened to kill her. The accused thereafter removed her clothes and raped her, while the juvenile offender, who was sitting near the door, watched the entire incident. The accused and the juvenile offender left the room threatening the prosecutrix not to disclose the incident to anyone.

2. Later in the morning, the prosecutrix phoned her parents. She also informed her brother-in-law and sister-in-law about the incident. Her parents came to her room at about 9.00 a.m. and took her to Rajewadi Hospital. PW-2 Dr. Priti Hatkar, Assistant Professor of Sion Hospital, examined the prosecutrix. PW-2 informed the Aarey Police Station that the prosecutrix was admitted in the hospital with the history of rape. On receipt of the said information, PW-4 PSI Ashok Salve visited the hospital and recorded the statement of the prosecutrix, at Exh. 24 and registered the crime vide Crime No. 273/09 under Section 376r/w 34 of the I.P.C. against the accused and the juvenile offender.

3. The accused came to be arrested on 3rd August, 2009. The cloths of the accused were seized under panchanama at Exh. 26 and he was referred to the hospital for medical examination. PW-4 visited the scene of offence on 4th August, 2009 and conducted the scene of the offence panchnama at Exh. 25 and seized the bed sheet at article 'C. Vide letters dated 06.08.2009 and 27.08.2009 at Exh. 39 and 40, PW-4 forwarded the clothes of the prosecutrix and the material collected by the Medical Officer as well as the clothes of the accused and the bed-sheet recovered from the scene of offence to the Chemical Analyzer for examination.

4. On 5th August 2009 the accused volunteered to show the place wherein he had concealed the sickle. The said memorandum statement at Exh. 37 was recorded in presence of panchas and pursuant to the said statement the sickle at Art. 'A' was recovered from bushes near the road at unit No. 22 Powai Checknaka and the same was seized under panchanama at Exh. 38. PW-4 recorded the statements of the witnesses and on completion of the investigation; he filed the charge sheet against the accused and the juvenile offender for committing offence punishable under Section 376 r/w 34 of the IPC.

5. On committal of the case, the learned Sessions judge conducted the inquiry under section 7A of Juvenile Justice Act and held Dawood to be a juvenile in conflict with law and directed filing of separate charge sheet against him before the Juvenile Justice Board