Govind Vithoba Kengar vs The State Of Maharashtra And Ors.
2002 Latest Caselaw 849 Bom

JUDGMENT

J.G. Chitre, J.

1. Miss Darshana Shah. Advocate appointed for defending the appellant and Shri K.V. Saste, A.P.P. appearing for the prosecution, have been heard in detail with reference to the evidence on record. The appellant Govind Vithoba Kengar is hereby assailing correctness, propriety and legality of the order of conviction and sentence passed against him by the Additional Sessions Judge, Sangli in sessions trial conducted against him for the offences punishable under Sections 395, 397, 376 read with Section 114 of Indian Penal Code. The appellant was tried with other co-accused viz. Dinkar Kale, Anil Bhosale, Badamya Shinde, Sarjerao Bhosale. The appellant was convicted and sentenced for the offences punishable under Sections 395, 397, 376(g) of Indian Penal Code. The appellant has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 2000/-, in default to undergo further rigorous imprisonment for six months for the offence under Section 395 of I.P.C. He has been sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 1000/-, in default to undergo further rigorous imprisonment for six months for the offence under Section 397 of I.P.C. He has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 2000/-, in default to undergo further rigorous imprisonment for six months for the offence under Section 376 of I.P.C. The substantive sentences have been directed to run concurrently. Out of the fine paid by the accused. Rs. 5000/- have been directed to be given to victim P.W. Shashikala Abaji Mane.

2. Prosecution case in brief can be narrated as under:

In the night intervening 25/5/1995 and 26/5/1995 between 12.30 A.M. to 1 A.M. the appellant with other associates committed dacoity at the house of Bapusaheb Abaji Mane and Kundlik Tukaram Jamadade at Mauje Sawarde and Manerajuri. They assaulted Bapusaheb Abaji Mane. Shashikala Abaji Mane, Subhash Mane, Rangarao Jyoti Mane, Anjana Bapusaheb Mane wit weapons and took away their ornaments worth Rs. 5750/- or so. The prosecution alleged that in the course of said dacoity the present appellant and his associates viz. Dinkar kale, Anil Bhosale, Badamya Shinde committed ape on prosecution witnesses Shashikala Mane and Anjana Mane by taking them outside. After the F.I.R. was lodged by Bapusaheb Mane in the police station, investigation started. The appellant and his associates were arrested and they were put to identification parade. Prosecution witnesses Bapusaheb Mane, Subhash Mane, Shashikala Mane, Anjana Mane had identified the appellant and his associates. Shashikala Mane identified the present appellant as the person who had committed rape on her during the incident of said dacoity after assaulting her and taking her out side. It is the prosecution case that prosecution witnesses mentioned above, could identify the appellant and his associates in the light of lantern which was burning inside the house.

3. Miss Darshana Shah, Counsel appointed to defend the appellant, by making reference to the prosecution evidence, submitted that the learned trial Judge committed the error in accepting the evidence of the prosecution witnesses examined against the present appellant and committed error in holding that he was present when the dacoity took place, and that he assaulted the inmates and committed the rape on P.W. Shashikala Mane by assaulting her. She pointed out in support of her submission that identification parade was held late and necessary safeguards were not taken at the time of holding the said identification parade. She further submitted that the learned trial Court committed the error in believing the identification of concerned prosecution witnesses by ignoring that there was darkness and in the said darkness the prosecution witnesses could not have identified the appellant. She submitted that so far as allegation of rape on Shashikala Mane is concerned, the present appellant did nothing. She prayed that the present appellant be acquitted. Shri Saste, Additional Public Prosecutor appearing for prosecution, submitted that the light of lantern was sufficient for enabling the prosecution witnesses to identify the appellant correctly. He submitted that the appellant has been identified by the concerned prosecution witnesses in the identification parade as well as before the Court when the prosecution witnesses gave the evidence. He submitted that it is the practice prevalent in the villages that the villagers do sleep in their houses by keeping a burning lantern and therefore, there is nothing unnatural in the prosecution evidence that the prosecution witnesses identified the appellant and his associates in the light of said lantern. Shri Saste further submitted that the identification by Shashikala deserves to be believed and acted on because, she was raped by the appellant and some of his associates. He justified the order of conviction and judgment and prayed that the appeal be dismissed.

4. If the evidence of prosecution witnesses Bapusaheb Mane, Subhash Mane, Anjana Mane and Shashikala Mane is carefully examined, it would be revealed that the present appellant has been identified by Anjana Mane and Shashikala Mane in the identification parade as well as before the Court when they were giving evidence on oath. Anajana and Shashikala have given the evidence as to how they were assaulted and thereafter raped. It is the evidence of Anajana Mane P.W. 16 that in the night of said dacoity, she was sleeping wit her husband Bapusaheb Mane and in the night at about 12.30 a.m. to 12.45 A.M. she heard the voice of her Sisiter-in-law Shashikala who was saying, "do not beat, we would take out". It is her evidence that after hearing that, they both got up and came at the door and at that time they saw 4 to 5 persons in the light of lantern which was burning throughout the night. She further stated that those persons were wearing baniyan, white boots and they were having torches and sticks. She stated further that Shashikala was not allowing them to remove her dorale (Mangalsutra), which was around her neck. Therefore, she was assaulted by sticks. Those dacoits took out her dorale, nose rings, and painjan forcibly. Her evidence shows that two dacoits out of them ran after her brother-in-law Subhash Mane who had fled for saving himself.

5. Her evidence further shows that two persons were by the side of her mother-in-law, who told her mother-in-law to keep quiet. Thereafter, they pulled Anjana Mane to the room where goats were tied and by removing her saree accused Sarjerao and Goving Kengar committed sexual intercourse against her will and without her consent by inserting their penis in her vagina.

6. P.W. 14 Shashikala Abaji Mane stated in her evidence that at about 12.45 A.M. dacoits entered the Courtyard of her house, came near her brother who was sleeping on the cot and they started beating her brother Subhash who shouted, "Aai ga Chor, Chor" and at that time she saw 7 persons standing in the courtyard and all of them were wearing Baniyan and half pant. She further stated that they came near her, snatched out her ear rings, Painjan and nose ring from her person, so also snatched out necklace (Sar); ear rings, "karnafule" from the person of her mother. She further stated that by her shouts her brother and his wife Anjana woke up and came near them and at that time some of the dacoits snatched out the mangalsutra, painjan from the person of Anajana. She stated that her brother Subhash fled out. According to her evidence, thereafter two, out of those dacoits dragged Anjana and took her to the room where goats were tied and two of them dragged herself to the same room and by removing her house and petty coat, dacoit Dinkar Kale and Badamya Shinde committed sexual intercourse wit her by inserting their penis in her vagina, against her will and without her consent.

7. P.W. Bapusaheb Mane stated in his evidence as to how dacoits came, assaulted him and his wife, sister Shashikala, mother, brother and as to how they took away their ornaments. He also stated in his evidence that they committed rape on his wife, and sister. His evidence also shows that his wife and sister were medically examined by concerned medical officer during the course of investigation. He identified the present appellant, accused Anil, accused Dinkar, accused Badamya as those dacoits. He also identified his signature on the F.I.R. which was lodged by him so also testified the correctness and veracity of the contents of said F.I.R. in which he had given the description of the ornaments, which were stolen by those dacoits as well as the description of some blouse pieces and sarees of different designs.

8. Another prosecution witness, Mandodari, mother of Bapusaheb Mane, also gave the evidence about the acts committed by the dacoits and the acts committed by them for committing rape on Anjana and Shashikala as well as acts committed by them while snatching out the ornaments from herself and Anjana and Shashikala. Same is the evidence of Subhash Mane.

9. These witnesses were grilled in the cross-examination to maximum length but their evidence has not been shattered at all. On the contrary, they answered the questions in cross-examination in a very straight forward way.

10. P.W. Raghunath Vithal Chavan, Tahsildar and Taluka Executive Magistrate, Satara had stated that on 7/9/1995 he performed test identification parade in presence of panch witnesses in the premises of Tahsildar office between 3 to 4.30 p.m. It is his evidence that in presence of panch witnesses, two lady witnesses who had come for identification, and identified, 7 accused in all. It is his evidence that first lady witness identified 4 accused and second lady witness had identified three accused. Unfortunately, the said witness did not remember the names of accused persons whom those witnesses identified but he was careful enough to state that their names were mentioned in the identification parade panchanama Exh. 70. Raghunath Chavan also stated in his evidence that in his presence Bapusaheb Mane, Mandodari Mane and Subhash Mane had also identified the accused. His evidence and the identification parade panchanama show that 29 persons were used as dummies for the said identification parade. At the time of identification by the each witnesses, suspect were given option of changing places. Dummies were selected so as to be of same type in context with the suspects who were to be identified. Sufficient precaution was taken that witnesses do not see the suspects to be identified before the identification parade. The evidence of Raghunath Chavan and identification parade shows that the present appellant was identified by P.W. Anjana.

11. Prosecution examined Rajaram Bhosale, Finger Print Expert, who stated in his evidence that he found finger print of present appellant on steel pot. His evidence shows that the specimen finger prints of appellant were tallying with said chance print on steel pot. He denied the suggestions made by the defence that there could be dissimilar prints of individuals.

12. Thus, the appellant has been identified by P.W. Bapusaheb Mane, mandodari Mane and Anjanabai whose identification cannot be disbelieved for reasons stated hereunder. When the appellant was snatching the ornaments from Anjanabai, her husband Bapusabe Mane was naturally to be near her. When Manodari Mane was threatened by the appellant and his associates, she was also found to be naturally present near Anjanabai, because after threatening her immediately Anajanabai was taken to a room where goats were tied and in that room she was raped by the appellant and his associates. So also Shashikala was also raped there by other associates of the appellant. It is to be noted that those dacoits were holding torches. The dacoits are bound to use those torches for the purpose of finding out the places where the ornaments should have been kept, so also they must have been using those torches for the purpose of finding out the places on the body of the victims for snatching out the ornaments. It is to be noted here that at that time a lantern was burning that was giving sufficient light for those prosecution witnesses to see the faces and features of those dacoits, whom they identified in the identification parade as well as before the Court on oath. It is to be noted that the persons who commit rape comes in close proximity of the victim while committing sexual intercourse and therefore, victim is very much likely to identify such person. Therefore, Anjanabai must have been having fullest opportunity of having identified the appellant as the dacoit who snatched away the ornaments from her person and committed rape on her after assaulting her. Above mentioned prosecution witnesses must have also identified the appellant correctly when they were being assaulted by him and his associates. The learned Counsel appearing for the appellant submitted that the identification parade has been held late and therefore, identification should be disbelieved. This Court does not agree with the said submission because identification parade has not been held so late so as to allege the prosecution witnesses to lose the impression of the dacoits. It is pertinent to note at this juncture that Anjanabai was a real victim because she was beaten by the appellant and his associates, her ornaments were stolen and she was raped also. How she is supposed to lose the impression of her culprit. Such victim rarely commit a mistake in identifying the person committing a crime against them.

13. Thus the learned trial Judge has appreciated the evidence on record correctly by examining the evidence adduced by the prosecution. The conclusion drawn by him are consistent with the evidence on record. The findings recorded by him therefore, are justified by the evidence on record as well as a correct process of appreciation of the evidence. Therefore, he has rightly held the appellant guilty of the charges levelled against him.

14. Thus, the appeal stands dismissed and the order of conviction and sentence stands confirmed. The appellant to suffer imprisonment in appropriate prison. No interference in the order assailed by this appeal.

The parties are hereby directed to act on the copy of this judgment duly authenticated by the Sheristedar of this Court.