.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1256 OF 2006 Mr.Anwarkhan Sarvarkhan Pathan ] age 25, occ.business, ] residing at Saida Plaza, ] Nayanagar, Mira Road (E), ] Dist.Thane. ] (At present in Thane ] Central Jail) ] ..APPELLANT (Orig.Accused) Versus The State of Maharashtra. .... Mr.Indrajeet R.Kulkarni, Adv. for the Appellant. Mr.Rajesh More, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 16th April, 2008. DATED : 16th April, 2008. DATED : 16th April, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant-orig.accused has challenged the judgment and order dated 9th November, 2006 passed by the IIIrd Additional Sessions Judge, Thane in Sessions Case No.97 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant-orig.accused under Section 376 read with 511 and under Section 506 of the Indian Penal Code and sentenced him to R.I. for three years and fine of Rs.1000/- in default, S.I. for fifteen days. .(2). 2. The prosecution case briefly stated is as under : . The prosecutrix (PW-3) was the niece of the appellant. At the time of the incident, Anjum the elder sister of the prosecutrix was missing, hence her parents were searching for Anjum. As her parents were searching for Anjum, the prosecutrix was left in the house of the appellant by the mother of the prosecutrix on 29th November, 2005. It is the case of the prosecutrix that in the night between 1st & 2nd December, 2005 the appellant committed rape on her. The prosecutrix informed this fact to her mother on 13th December, 2005 and thereafter the FIR came to be lodged. 3. Charge came to be framed against the appellant under Sections 376, 506 of IPC. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant, as stated in para-1 above. Hence .(3). this appeal. 4. I have heard the learned Counsel for the appellant-orig.accused and the learned APP for the State. I have also perused the judgment and order passed by the learned Sessions Judge as well as the evidence in the present case. After anxiously considering the matter, I am of the opinion that this Appeal deserves to be allowed. 5. The prosecution case is mainly founded on the evidence of two witnesses i.e. PW-3 Aliya who is the prosecutrix and PW-2 Shahanaj who is the complainant and who is also the mother of the prosecutrix. The prosecutrix has stated that at the time of the incident, Anjum the elder sister of the prosecutrix was missing, hence her parents were searching for Anjum. As her parents were searching for Anjum, the prosecutrix was left in the house of the appellant by the mother of the prosecutrix on 29th November, 2005. It is the case of the prosecutrix that in the night between 1st & 2nd December, 2005 the appellant committed rape on her. The prosecutrix categorically stated that after the incident has occurred in the night between 1st & 2nd December, 2005, the FIR has been .(4). lodged after a period of 13 days. As per the prosecutrix, the incident has occurred in the night between 1st & 2nd December, 2005. Her mother came and met her on 2nd December, 2005, however, she has not disclosed this fact to her mother on that day. According to the prosecutrix, she has not stated anything to her mother, as she was threatened by the accused. The prosecutrix has disclosed this incident to her mother only on 13th December, 2005. The prosecutrix was 13 years old at the time of the incident. If at all the appellant had committed rape on her on the night in between 1st & 2nd December, 2005 she would not have stayed back in the house of the appellant, but, she would have insisted on going back with her mother. However, the prosecutrix chose to stay back in the house of the appellant till 13th December, 2005 and it is only on 13th December, 2005 that she disclosed this fact to her mother. If at all the prosecutrix had been raped on the night in between 1st & 2nd December, 2005, she would have left the house of the appellant at the first opportunity. However, she has not done so. All these facts do raise some doubt in the mind regarding the prosecution case. .(5). 6. Another important fact is that the prosecutrix has categorically stated that the appellant had committed rape on her. However, the medical evidence does not support this fact. No injuries were found on the private part of the prosecutrix. Infact, no injury at all was found on the body of the prosecutrix. Not even a slightest scratch, abrasion or any other injury was found on the body of the prosecutrix. Infact, the medical certificate shows that hymen was intact and there was no sign of forcible sexual intercourse. Thus, the categorical stand taken by the prosecutrix that she had been raped by the appellant is falsified by the medical evidence. Looking to the medical evidence, the learned Sessions Judge did not convict the appellant under Section 376 of IPC, instead he convicted the appellant under Section 376 r.w. 511 of IPC. 7. Let us now examine whether the accused could be guilty of an offence under Section 376 r.w. 511 of IPC. It has come on record that the house of the appellant constituted of one room and one kitchen. In that house the appellant, his wife, his brother Afsar, wife of Afsar were residing. The prosecutrix has admitted that the .(6). accused and his brother along with their respective wives were residing together in one and the same room. It is also seen that on the day of the incident, she, the accused, her brother Farhan and her uncle Afsar and his wife were at home. Brother Farhan was 10 years old at the time of the incident. It does not seem possible that when so many persons were sleeping in one and the same room, the appellant would try to have sexual intercourse with his niece. As stated earlier, not a single injury was found on the body of the prosecutrix. Looking to the above aspects, I find much merit in the submission of Mr.Kulkarni, the learned Counsel for the appellant, that the appellant has been falsely implicated on account of money dispute. In view of the above, I am inclined to allow the appeal. 8. In the result, the appeal is allowed. The judgment and order of conviction and sentence dated 9th November, 2006 passed by the learned III Additional Sessions Judge, Thane, in Sessions Case No.97 of 2006 is set aside. The appellant- Mr.Anwarkhan Sarvarkhan Pathan is acquitted of the offence punishable under Section 376 read with 511 and 506 of IPC. The appellant is in jail. He be .(7). set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)