Ajay IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 816 OF 2017 Anil Ramesh Kolhe, Aged : 22 years, Occ. Labourer, Residing at Siddharthnagar, Kasara, Tal. Sahapur, Dist. Thane, (At present lodged in Nasik Road Central Prison, Nasik Road, Dist. Nasik) .. Appellant (Ori. Accused)

Versus

1. State of Maharashtra, (Through Sahapur Police Station, C.R. No.I-119/2014.)

2. Manki Panga Karade Age : 19, Occ.: Nil Add.: Aatkar Pada, Tal. - Shahapur, District – Thane.

3. Sonya Panga Karade, Age : 25, Occ.: Labour, Add.: Shahapur, Dist. Thane. .. Respondents Mr. Aniket Vagal a/w. Mr. Kunal Pednekar, Advocate for Appellant.

Mr. Ajay Patil, APP for the Respondent – State.

CORAM :A.S. GADKARI &

MILIND N. JADHAV, JJ.

DATE :03rd August 2022.

JUDGMNET (PER : MILIND N. JADHAV, J.)

. The present Appeal questions the legality of the conviction and sentence delivered by Judgment and Order dated 28.01.2016 passed by the Court of Additional Sessions Judge, Kalyan in Sessions Case No.301 of 2014, convicting Appellant for offence punishable under Section 376(2)(l) of the Indian Penal Code, 1860 (for short “IPC”) and sentencing him to undergo imprisonment for life which shall mean imprisonment for the remainder of his natural life and payment of fine of Rs.10,000/-, and in default thereof to undergo rigorous imprisonment for 6 months.

2. The gist of the prosecution case is as under:-

2.1. First informant i.e. PW-1 is brother of victim. Victim resided with first informant and her family members at Aatkarpada, Village Kalambhe, Taluka Shahapur, District Thane. Victim is mentally retarded since her childhood and used to wander throughout the day outside and travel upto Asangaon Station, Shahapur, Washind Station, Kalyan Station and Thane Station and used to beg. Since victim was mentally retarded, she was not married.

2.2. PW-1 was informed by female members of his family two months prior to the filing of First Information Report (FIR) that they suspected victim to be pregnant.

2.3. On 08.05.2014, victim underwent sonography at Kamakhya Sonography Center, Shahapur and it was revealed that she was pregnant. On enquiry by family members, victim did not reveal any details as to how she became pregnant. PW-1, therefore approached Shahapur Police Station and lodged FIR against an unknown person. After lodging FIR, Investigation Officer (IO) recorded statements of family members of victim. Lady PSI recorded statement of victim and handed it over to IO. This statement of victim revealed that victim had physical relations with Appellant and victim also divulged the mobile number of Appellant. Investigating Officer obtained Call Detail Records (CDR) of the mobile number disclosed by victim which revealed that the number belonged to one Dharma Mohankar. Investigating Officer recorded statement of Dharma Mohankar and another person Pandhari Ganpat Kambale and learnt that the mobile number belonged to Appellant who resided in Kasara. Appellant was traced by police and brought to the police station. In the police station, victim identified the Appellant. Appellant was arrested and thereafter showed his willingness to disclose the spot of incident near Kasara Railway Station to the IO. IO prepared spot panchnama and also obtained blood samples of Appellant and victim and sent them for chemical analysis.

2.4. On 01.07.2014, victim gave birth to a male child in Sion Hospital. IO obtained blood sample of the newly born child from Sion Hospital and sent it for chemical analysis. Since victim was not in a position to take proper care of the newly born child, with the help of Child Welfare Committee, the child was given to Janani Ashish Charitable Trust, Dombivali, District Thane.

2.5. On 27.01.2015, victim was referred to J.J. Hospital for examination, ossification test and test of her mental health.

Ossification test and mental health report was obtained vide Exhibit-31 from J.J. Hospital.

2.6. Since offence was punishable under Section 376(2