Bombay High Court
The State Of Maharashtra vs Amin Shaikh Khwaja And Ors on 26 July, 2017
Bench: T.V. Nalawade
Criminal Appeal No.287/2000
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.287 OF 2000
The State of Maharashtra,
through Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad ... APPELLANT
(Original Complainant)
VERSUS
1. Amin Shaikh Khwaja,
Age 22 years,
R/o Backside to New Village
Chajed Oil Mill, Chalisgaon,
District Jalgaon.
2. Jagan Chintaman Chavan,
Age 20 years,
R/o Ramwadi, Chalisgaon,
District Jalgaon.
3. Bapu Vithal Dhumal,
Age 21 years,
R/o as above.
4. Suresh Shantaram Mahajan,
Age 21 years,
R/o Narayanwadi, Chalisgaon,
District Jalgaon
5. Bandu Ramesh Deshmukh,
Age 21 years,
R/o Ramwadi, Chalisgaon,
District Jalgaon. ... RESPONDENTS
(Original Accused)
.....
Shri P.G. Borade, A.P.P. for appellant/ State
Shri R.R. Shaikh, Advocate for respondent No.1
Shri B.R. Kedar, Advocate for respondent No.2 (appointed)
Shri P.R. Patil, Advocate for respondents No.3 to 5
.....
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Criminal Appeal No.287/2000
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CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 13th July 2017
Date of pronouncing judgment : 26th July 2017
J U D G M E N T (PER SUNIL K. KOTWAL, J.):
1. This Criminal Appeal is directed by State of
Maharashtra against the judgment and order dated 28/7/1999,
passed by learned Additional Sessions Judge, Jalgaon in Sessions
Case No.155/1998, acquitting the respondents (original accused
No.1 to 5) of the offences punishable under Sections 363, 366,
323, 504, 506 read with Section 34; and Section 376(2)(g) of the
Indian Penal Code (hereinafter referred to as "I.P.C. for short).
2. Shorn of necessary details :-
Prosecution case in brief is that, at the relevant time
of the occurrence, victim (P.W.1) was 16 years old, a student of
9th Standard. She used to reside at Muktainagar along with her
parents. Smt. Kalpanabai (P.W.5) is the mother of victim. In the
month of May 1998, after annual examinations, victim (P.W.1)
came to Chalisgaon to the house of her maternal uncle Rajendra
Dattatraya Sonar, who lived in Afu Lane. On 14/5/1998, the
parents of the victim went to the hospital of Dr. Nikam at evening
hours. Till 8.30 p.m. they did not return and, therefore, as per
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instructions of maternal aunt, victim went towards bicycle shop of
her maternal uncle to call her parents. When she was proceeding
through lonely lane near Ghat Road, that time, suddenly accused
No.1 to 5 pressed her mouth and tied blind fold on her eyes. By
autorickshaw No.MH-19/J-5178, accused took the victim towards
Kannad Road (Ghat Road). Accused assaulted the victim by fists
and kicks and threatened her to keep mum. When rickshaw was
stopped at one place, that time the victim tried to rescue herself
from the clutches of accused. However, they chased the victim
and again apprehended her. By severely beating the victim, the
accused persons again took her in the autorickshaw and took her
outside Chalisgaon city by Kannad Road and took her in one
lonely field which is on the eastern side of Kannad Road. Despite
resistance by the victim, all the accused turn by turn committed
rape on victim. During that scuffle, Salwar of the victim was torn
at the groin portion. Even Gangawan (artificial set of hair) of the
victim fell on the spot of the incident. Whenever victim tried to
run away, accused assaulted her by fist blows. After satisfying
their lust, again accused took the victim towards Chalisgaon city
by same autorickshaw. By that time, Kalpana (P.W.5), mother of
the victim approached to Police Station, Chalisgaon at about
11.00 p.m. and requested the police to search her missing
daughter. P.S.I. Patil, who was incharge of the Police Station,
directed A.S.I. Bhalerao (P.W.6) to help the parents of victim for
taking search of their daughter. A.S.I. Bhalerao (P.W.6) was on
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night patrolling duty at Ghat Road Police Outpost and, therefore,
initially he went to Ghat Road Police Outpost. At Police Outpost,
A.S.I. Bhalerao (P.W.6) learnt from Police Constable Kureshi that
one girl was taken towards field properties and she was crying for
help. Police Constable Kureshi probably had that information
from some unknown person. Therefore, A.S.I. Bhalerao (P.W.6)
rushed towards field properties nearby Kannad Road by
autorickshaw along with Police Constable Kureshi. On way, A.S.I.
Bhalerao (P.W.6) noticed the approaching autorickshaw and,
therefore, when he stopped it, accused No.4, who was sitting on
the left side of rickshaw driver, i.e. accused No.1, bolted away
from that spot. However, A.S.I. Bhalerao (P.W.6) and Police
Constable Kureshi succeeded in apprehending accused No.1 to 3
and 5 in the same autorickshaw. When A.S.I. Bhalerao (P.W.6)
enquired with victim (P.W.1) who was in the autorickshaw, she
disclosed the occurrence to him. Therefore, A.S.I. Bhalerao
(P.W.6), with the help of Police constable Kureshi, immediately
took the victim and accused No.1 to 3 and 5 to Police Station,
chalisgaon by the autorickshaw of the accused persons. When
the apprehended accused No.1 to 3 and 5 were produced before
P.S.I. Patil along with the victim, that time, on enquiry, the
apprehended accused disclosed the name of absconded accused
No.4 as Suresh Mahajan. At Police Station, victim cried as soon
as she saw her mother Kalpana (P.W.5) and informed her
regarding the rape committed by accused persons. P.S.I. Patil
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obtained F.I.R. of the victim (Exh.35) at about 1.25 a.m. Victim
was referred for medical examination to Dr. Chavan (P.W.7) who
was the Medical Officer at Municipal Dispensary, Chalisgaon. Dr.
Chavan (P.W.7) examined the victim and issued Medico Legal
Certificate (Exh. 60). Even accused persons were arrested under
arrest panchanamas (Exhibits 62 to 66) and they were referred
for medical examination to Dr. Chavan (P.W.7). Dr. Chavan
(P.W.7) examined all the accused persons and issued Medico
Legal Certificates as well as obtained relevant samples.
3. P.S.I. Patil conducted investigation of this crime along
with A.S.I. Bhalerao (P.W.6). Spot panchanama (Exh.38) of the
scene of offence was drawn and Gangawan of the victim as well
as her slippers were found on the spot. These articles were
seized. Even specimen of earth from the spot was sealed.
During investigation, clothes of the victim (Articles 1 to 3) and
clothes of the 5 accused persons were seized and referred to
Chemical Analyser for chemical analysis. After completion of the
investigation, charge sheet was filed against the accused before
the Judicial Magistrate, First Class, Chalisgaon.
4. Offence punishable under Sections 366, 376(2)(g) of
the Indian Penal Code being exclusively triable by Court of
Sessions, the case was committed to the Sessions Court, Jalgaon.
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5. Charge (Exh.16) was framed against accused No.1 to
5 for the offence punishable under Sections 323, 363, 366, 376(2)
(g), 504 and 506 read with Section 34 of the Indian Penal Code by
II Additional Sessions Judge, Jalgaon. Accused pleaded not guilty
and claimed trial. After considering the evidence led by the
prosecution, the learned trial Court was pleased to acquit the
accused. Therefore, this appeal arises.
6. Learned Additional Public Prosecutor for the
appellant/ State assailed the judgment and order of acquittal on
the ground that, though the sole testimony of victim (P.W.1) was
reliable, the learned trial Court rejected it illegally. According to
learned Additional Public Prosecutor, otherwise also, testimony of
victim was corroborated by medical evidence and other
circumstantial evidence.
7. Learned defence counsel supported the judgment and
order passed by the trial Court on the ground of improper
identification of accused persons, improbable theory of the
prosecution and infirmities in medical evidence.
8. After hearing learned Advocates for both sides, it
reveals that, the fate of the prosecution case revolves around the
point whether sole testimony of victim (P.W.1) is free from all
infirmities to base the conviction of the accused. It is also to be
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examined whether the testimony of A.S.I. Shri Bhalerao (P.W.6) is
trustworthy to ascertain whether he intercepted the accused
persons and apprehended the accused in autorickshaw along
with the victim and produced them at Police Station, Chalisgaon.
Third important point is to be considered as to whether the
medical evidence of Dr. Chavan (P.W.7) is helpful to the
prosecution for corroboration.
9. Before proceeding to analyse the evidence of victim
(P.W.1), we must observe that, before the occurrence of the
incident, she was not connected with any accused in any manner.
Even it is not defence of the accused persons that the victim had
strained relations with any of the accused for some reasons or
she has any reason to falsely implicate the accused for
commission of such heinous crime of rape. Even defence cannot
bring on record that on the date of incident i.e. on 14/5/1998,
offence of road robbery was registered at Police Station,
Chalisgaon and for investigation of such offence, accused were
apprehended and brought to Police Station, Chalisgaon.
Therefore, the defence of the accused is not acceptable that they
were brought to Police Station for investigation of road robbery
and because no evidence was available against them they were
falsely involved in this crime. Thus, false implication of the
accused in this case is out of question. Even then, we have to
examine the testimony of victim (P.W.1) to ascertain whether,
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even in absence of test identification parade of accused persons
prosecution can establish beyond reasonable doubt the
commission of offence of rape by accused persons.
10. Version of victim (P.W.1) in brief is that, on the date
of occurrence i.e. on 14/5/1998 at about 8.00 p.m., when she was
proceeding towards the shop of her maternal uncle to call her
parents for dinner, that time, from one lonely lane, she was lifted
by the accused after pressing her mouth and after tying blindfold
on her eyes, and by autorickshaw, accused took her to one lonely
field on the eastern side of Ghat Road and ravished her.
According to victim (P.W.1), four accused persons committed
rape on her in the field despite her resistance and she was
severely beaten by fist blows by accused whenever she tried to
run away from their clutches. After commission of the rape,
again accused made the victim to sit in autorickshaw and when
they were proceeding by autorickshaw by road, that time, two
police officers intercepted that rickshaw and apprehended the
four accused along with the victim in the same autorickshaw.
A.S.I. Shri Bhalerao (P.W.6) has fully corroborated the version of
victim (P.W.1). From the testimony of A.S.I. Shri Bhalerao
(P.W.6), it emerges that, on 14/5/1998 at about 11.00 p.m., when
he went to Police Station, Chalisgaon for reporting his night round
duty, that time, mother of the victim (P.W.5) came to Police
Station and informed P.S.I. Shri Patil about her missing daughter.
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Therefore, P.S.I. Shri Patil directed A.S.I. Shri Bhalerao (P.W.6) to
help the parents of victim to trace out their missing daughter. As
A.S.I. Shri Bhalerao (P.W.6) was on night patrolling duty at Ghat
Road Police Outpost, he first went to Ghat Road Police Outpost
and there Constable Rashid (B.No. 964) informed him that he also
received information that one girl was taken towards field by
autorickshaw and she was crying for the help. Therefore, A.S.I.
Shri Bhalerao (P.W.6) rushed to the side of Kannad Road by other
autorickshaw along with Police Constable Shri Kureshi, and at
about 11.45 p.m., intercepted one autorickshaw which was
coming from Rajangaon Juna Ghat cart road to the main road. In
the headlight of autorickshaw used by A.S.I. Shri Bhalerao, they
found that one girl and two boys were sitting inside the rickshaw
and two boys were sitting on the both sides of rickshaw driver.
The boy sitting on left side of rickshaw driver fled away, but A.S.I.
Shri Bhalerao (P.W.6), with the help of Police Constable Kureshi,
apprehended the four boys and victim girl in the autorickshaw
and by the autorickshaw used by the accused, they were taken to
Police Station, Chalisgaon along with the victim. From the
testimony of A.S.I. Bhalerao (P.W.6), it emerges that, on enquiry
with victim, he came to know that she was the missing daughter
of Kalpana (P.W.5) and she was raped by all the accused turn by
turn. Therefore, A.S.I. Bhalerao (P.W.6) presented the four
accused before P.S.I. Shri Patil. On enquiry with these four
accused, it revealed that, the name of the boy who fled away was
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Suresh Shantaram Mahajan (present accused No.4). The
apprehended accused No.1 to 3 and 5 were detained at Police
Station, Chalisgaon for enquiry. Initially, the F.I.R. of victim
(P.W.1) (Exh.35) was obtained by P.S.I. Patil and she was referred
for medical examination. The absconding accused No.4 Suresh
Mahajan was also arrested on 15/5/1998 at about 9.00 p.m. All
accused and victim were medically examined by Dr. Chavan
(P.W.7) at Municipal Dispensary, Chalisgaon. Dr. Chavan (P.W.7)
opined that, hymen of the victim was found ruptured and her
vulva as well as labia majora and labia minora were swollen. He
also found that, there was bleeding from vagina of the victim and
internal genital examination under deep sedation showed that
vaginal examination was painful. He opined that the victim was
raped. The testimony of Kalpana (P.W.5) shows that, when at
night her daughter was brought to police station by police along
with four boys, that time her daughter was in bad condition and
her daughter informed this witness about rape committed by four
boys.
11. After going through the judgment of the learned trial
Court, it emerges that the testimony of victim (P.W.1) was
disbelieved mainly on the ground that there is variance in
between oral testimony of victim (P.W.1) and F.I.R. Exh.35. Trial
Court also observed that, identification of accused persons by
victim (P.W.1) is not reliable because she did not furnish
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description of the rapists in the F.I.R. and identification of
accused No.4 Suresh Mahajan in absence of test identification
parade is not believable.
12. Before proceeding to comment regarding the
correctness and assessment of the evidence by trial Court, we
must point out that, while testing the reliability of evidence of
victim of rape, Judges are expected to be more sensitive. The
reason for this is that, in Indian society, chastity of a woman and
especially of young unmarried girl carries great importance. In
ordinary course of the nature, no Indian will label unmarried
daughter as victim of the rape, when chastity of that young girl is
at the stake in public at large. Hon'ble Supreme Court had
occasion to consider this aspect in Bharwada Bhoginbhai
Hirjibhai Vs. State of Gujarat, reported in (AIR 1983 SC
753), in which it is held that :
"A girl or a woman in the tradition bound non-
permissive society of India would be extremely
reluctant even to admit that any incident which
is likely to reflect on her chastity had ever
occurred. She would be conscious of the danger
of being ostracized by the society or being
looked down by the society including by her
own family members, relatives, friends, and
neighbours. She would face the risk, of losing
the love and respect of her own husband and
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near relatives, and of her matrimonial home and
happiness being shattered. If she is unmarried,
she would apprehend that it would be difficult to
secure an alliance with a suitable match from a
respectable or an acceptable family. In view of
these and similar factors the victims and their
relatives are not too keen to bring the culprit to
book. And when in the face of these factors the
crime is brought to light there is a built-in
assurance that the charge is genuine rather
than fabricated.
On principle the evidence of a victim of
sexual assault stands on par with evidence of an
injured witness. Just as a witness who has
sustained an injury (which is not shown or
believed to be self inflicted) is the best witness
in the sense that he is least likely to exculpate
the real offender, the evidence of a victim of a
sex-offence is entitled to great weight, absence
of corroboration notwithstanding. And while
corroboration in the form of eye-witness
account of an independent witness may often
be forthcoming in physical assault cases, such
evidence cannot be expected in sex offences,
having regard to the very nature of the offence.
It would therefore be adding insult to injury to
insist on corroboration drawing inspiration from
the rules devised by the Courts in the Western
World. If the evidence of the victim does not
suffer from any basic infirmity, and the
'probabilities-factor' does not render it unworthy
credence, as a general rule, there is no reason
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to insist on corroboration except from the
medical evidence, where, having regard to the
circumstances of the case, medical evidence
can be expected to be forthcoming subject to
the following qualification :
Corroboration may be insisted upon when a
woman having attained majority is found in a
compromising position and there is a likelihood
of her having levelled such an accusation on
account of the instinct of self-representation. Or
when the 'probabilities factor' is found to be out
of tune."
In the same case, while observing the
importance of minor discrepancies normally emerges in
prosecution witnesses, the Apex Court observed that :
"Overmuch importance cannot be attached to
minor discrepancies. the reasons are obvious :
(1) By and large a witness cannot be
expected to possess a photographic memory
and to recall the details of an incident. It is not
as if a video tape is replayed on the mental
screen.
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not
have anticipated the occurrence which so often
has an element of surprise. The mental
faculties therefore cannot be expected to be
attuned to absorb the details.
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(3) The powers of observation differ from
person to person. What one may notice,
another may not. An object or movement might
emboss its image on one person's mind,
whereas it might go unnoticed on the part of
another.
(4) By and large people cannot accurately
recall a conversation and reproduce the very
words used by them or heard by them. They
can only recall the main purport of the
conversation. It is unrealistic to expect a
witness to be a human tape recorder.
(5) In regard to exact time of an incident, or
the time duration of an occurrence, usually,
people make their estimates by guesswork on
the spur of the moment at the time of
interrogation. And one cannot expect people to
make very precise or reliable estimates in such
matters. Again, it depends on the time-sense of
individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected
to recall accurately the sequence of events
which take place in rapid succession or in a
short time span. A witness is liable to get
confused, or mixed up when interrogated later
on.
(7) A witness, though wholly truthful, is liable
to be overawed by the Court atmosphere and
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the piercing cross-examination made by counsel
and out of nervousness mix up facts, get
confused regarding sequence of events, or fill
up details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being disbelieved
though the witness is giving a truthful and
honest account of the occurrence witnessed by
him - perhaps it is a sort of a psychological
defence mechanism activated on the spur of the
moment."
13. The learned defence counsel assailed the testimony
of victim (P.W.1) on the ground that her oral version before the
Court is in variance with recitals of the F.I.R. Exh.35 on material
particulars. The learned trial Court disbelieved the evidence of
victim (P.W.1) mainly on the ground that her testimony is in
variance with the contents of the F.I.R. regarding the sequence of
occurrence and other minute details. However, as observed by
Apex Court in the case of "Bharwada Bhoginbhai Hirjibhai" (cited
supra), the witness cannot be expected to possess photographic
memory and he cannot recall the details of the incidence as if
video tape is replayed on the mental screen. Even witness
cannot be expected to recall accurately the sequence of events
which takes place in rapid succession or in a short time span. A
witness is liable to get confused due to atmosphere of the Court.
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14. If the oral version of victim (P.W.1) is considered
along with recitals of F.I.R. Exh.35, it becomes clear that victim
(P.W.1) is consistent with the recitals of the F.I.R. that on the date
of incident at about 8.30 p.m. at the instance of her maternal
aunt, she had gone outside to call her parents from the shop of
her maternal uncle and while crossing second lane, she was
intercepted, her mouth was pressed and blind fold was tied
around her eyes, and despite her resistance, she was kept in
rickshaw and she was taken in field. In the F.I.R. Exh.35 also,
same occurrence is mentioned with slight variance that the
second lane was already crossed by her and that time 4 to 5 boys
who came by autorickshaw, forcibly pressed her mouth, closed
her eyes and moved her away in autorickshaw. In F.I.R., she has
mentioned an additional event that on a way, when the rickshaw
was stopped on road in dark place, she tried to run away, but she
was caught by those boys and she was beaten by those boys and
again by rickshaw she was taken in the field by the side of
Kannad Road. In her deposition also victim P.W.1 reproduced
almost same theory, the difference is only regarding place where
the rickshaw was stopped for the first time. In the deposition
before the Court, she deposed that, when her blind fold was
removed, she noticed that it was field and thereafter when boys
tried to commit rape, that time she escaped from their clutches
and ran towards road for help, but the vehicle passing by the
road did not stop. Ultimately, she was again dragged by those
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boys in the field and she was beaten by fist blows. According to
victim (P.W.1), 4 boys committed rape on her in the field. Same
occurrence is mentioned in the F.I.R. that turn by turn 4 boys had
forcible sexual intercourse with her. Thus, by no stretch of
imagination it can be said that the oral version of victim (P.W.1)
before the Court differs with the recitals of F.I.R. on material
particulars.
15. The further oral testimony of victim (P.W.1) is that
after commission of the rape those boys made her to sit in the
rickshaw and started proceeding towards the town and the
rickshaw was intercepted by two police. Same occurrence is
mentioned in the F.I.R. The slight variance in between oral
testimony and recitals of the F.I.R. is nothing but normal error
which might have occurred due to Court atmosphere or time
passage in between date of incident and recording of evidence of
victim on 5/7/1999.
16. The next objection of defence counsel is that,
identification of the accused by victim (P.W.1) as well as by A.S.I.
Bhalerao (P.W.6) is not trustworthy. Learned trial Court also
disbelieved the evidence of victim (P.W.1), though she identified
accused No.2 to 5 before the Court as the same persons who
committed rape on her. According to trial Court, the testimony of
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victim (P.W.1) regarding identification of accused No.2 to 5 before
the Court is not reliable for the reason that she deposed before
the Court that accused No.1 was not present on the spot. The
second reason assigned by learned trial Court is that, victim
(P.W.1) did not furnish description of rapists and due to darkness
in the field, she was not in position to identify the rapists.
17. No doubt, at the stage of recording evidence, victim
(P.W.1) has absolved accused No.1 Amin Shaikh Khwaja.
However, on that count alone the testimony of victim (P.W.1)
cannot be discarded, when otherwise it is free from all infirmities.
18. It is to be noted that, in the cross-examination of
victim (P.W.1), when defence counsel was trying to bring on
record that there was total darkness in the field where rape was
committed, that time victim has made clear that it was moonlight
night. Unfortunately, this statement of the victim is not included
in the English deposition of the victim. The contention of victim
(P.W.1) that it was moonlight night, is not challenged in her
further cross-examination by defence counsel. Therefore, by no
stretch of imagination it can be said that there was total darkness
in the field where rape was committed.
19. Otherwise also, on the basis of testimony of victim
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(P.W.1) and A.S.I. Bhalerao (P.W.6), prosecution has established
that, after commission of rape, when accused were proceeding
towards the town by the same autorickshaw, it was intercepted by
A.S.I. Bhalerao (P.W.6) and Police Constable Kureshi; and
accused No.2, 3 and 5 and rickshaw driver (accused No.1) were
taken to Police Station, Chalisgaon along with the victim. In other
words, accused No.2, 3 and 5 were caught red-handed along with
the victim (P.W.1), who claimed that she was raped by the same
accused persons. Therefore, identification of the accused No.2, 3
and 5 by holding test identification parade is out of question. On
the other hand, as accused No.2, 3 and 5 were apprehended from
the rickshaw along with the victim, their mistaken identity by
victim (P.W.1) in the Court is ruled out. At the stage of evidence,
the victim (P.W.1) has also identified accused No.2, 3 and 5 as the
same rapists who committed rape on her in the field on
14/5/1998. So also, as accused No.2, 3 and 5 were arrested red-
handed with the victim, it is not expected that victim shall again
furnish their description in the F.I.R. Exh.35. Thus, the reasons
assigned by learned trial Court to disbelieve the version of victim
(P.W.1) regarding identification of accused No.2, 3 and 5 is
absolutely incorrect.
20. However, so far as identification of accused No.4
Suresh Mahajan, the evidence of prosecution falls short to
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establish his identity in absence of test identification parade. No
doubt, in view of Apex Court judgment in Ronny Alias Ronald
James Alwaris Vs. State of Maharashtra reported in (AIR
1998 SC 1251), if the witness had opportunity to interact with
the accused or to notice his distinctive features, he can be
identified even in absence of corroborative evidence by way of test
identification parade. However, in the case at hand, from the lane
till arrival to the spot of rape the eyes of victim were blind folded.
Even on the spot of rape, the victim does not say that she had any
interaction with accused No.4 Suresh Mahajan to watch his
features. On the other hand, as per prosecution case, when A.S.I.
Bhalerao (P.W.6) intercepted the autorickshaw by which the
accused were traveling with victim, that time accused No.4 Suresh
Mahajan fled away and he was arrested only on next day at 9.00
p.m. Even A.S.I. Bhalerao (P.W.6) had no opportunity to watch
the face and features of accused No.4 Suresh Mahajan because,
as soon as the rickshaw was stopped, accused No.4 Suresh
Mahajan managed to run away and vanished in darkness. Even at
the stage of evidence before the Court A.S.I. Bhalerao (P.W.6)
could not identify accused No.4 Suresh Mahajan as same boy who
fled away when the rickshaw was intercepted. Thus, identification
of accused No.4 Suresh Mahajan by the victim for the first time in
the Court is not reliable in absence of prior test identification
parade. Even arrest panchanama of accused No.4 Suresh
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(( 21 ))
Mahajan (Exh.45) shows that no abrasion was found on his knees.
Even Dr. Mahajan (P.W.7) did not find any injury on the body of
accused No.4 Suresh Mahajan. (Medico Legal Certificate of
Suresh at Exh.66). Therefore, absolutely no circumstantial
evidence is available against accused No.4 Suresh Mahajan to
connect him with the alleged crime.
21. Now, again turning towards testimony of victim
(P.W.1), it is noticed that, learned trial Court disbelieved the
identification of accused No.2, 3 and 5 by her on the ground that
she lost sense at the time of rape and she regained it only at
Police Station. However, after going through the deposition of
victim (P.W.1) (Marathi version), it becomes clear that, till arrival
of the police, she was in full sense and consciousness. She
nowhere admitted or deposed that she became unconscious at the
time of commission of rape. On the other hand, in her cross-
examination, defence has brought on record that she lost sense
after arrival of the police. Thus, the ground assigned by trial
Court for rejecting the evidence of victim (P.W.1) regarding
identification of accused No.2, 3 and 5, is absolutely incorrect and
against record.
22. Learned trial Court disbelieved the evidence of victim
(P.W.1) also on the ground that it did not notice the rickshaw
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(( 22 ))
parked in the lane. However, this observation of trial Court is
absolutely incorrect because, victim (P.W.1) nowhere deposed
that the rickshaw used by accused was parked in the lane.
Learned trial Court disbelieved the evidence of victim (P.W.1) for
the reason that in her deposition she did not say that at the time
of rape she was undressed by accused persons. However, it is
suffice to say that victim of the rape need not reproduce each and
every step taken by the accused persons at the time of
commission of rape.
23. After going through the judgment passed by the trial
Court, it reveals that the trial Court discarded the evidence of
prosecution because thorns were not found pierced in the legs of
victim and because Kalpana (P.W.5) who is mother of the
accused, did not examine the body of victim to ascertain any
damage caused to her when the victim was brought to Police
Station by police. The trial Court ignored circumstance that Dr.
Chavan (P.W.7) noticed abrasion on the back, injuries on chest
and face of the victim, which corroborates the testimony of victim
that she was ravished by the accused in the field.
24. Most important observation of the trial Court to be
noted by us is that, trial Court was expecting that, after arrival of
victim to Police Station, Chalisgaon along with Police and accused
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(( 23 ))
persons, the mother Kalpana (P.W.5) would examine each part of
the body of the victim to ascertain whether any injury was caused
to her body. This observation of the trial Court itself shows that
the learned Judge is not sensitive as expected while examining the
evidence of victim of rape cases. On the other hand, in normal
course also no mother is expected to check the body of her
daughter in presence of police and the accused persons at police
station. Thus, the reasons assigned by trial Court for rejecting the
evidence of Kalpana (P.W.5), mother of the victim regarding bad
condition of victim when she was brought to police station by
police, are totally incorrect. On the other hand, Kalpana (P.W.5)
has categorically deposed before the trial Court that, when victim
was brought to police station, her hair were scattered, there was
swelling on her eyes and thorns pierced the legs of victim. This
description of victim is definitely corroborative piece of the
evidence, which supports the version of victim that she was raped
by accused persons in the field. We do not find any reason to
disbelieve the version of Kalpana (P.W.5) that when the victim
was brought to Police Station by police along with four persons,
that time victim cried and informed her mother that four boys
made her to lie in the field and had done evil thing with her. It is
surprising to note that, in cross-examination of Kalpana (P.W.5),
the defence counsel has brought on record that the victim
informed her mother that four boys committed rape on the victim.
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(( 24 ))
Thus, the immediate disclosure of occurrence to the mother of
victim is definitely material corroboration to the oral testimony of
victim (P.W.1).
25. Learned defence counsel assailed the prosecution
evidence on the ground that there was delay in recording F.I.R.
After going through the judgment passed by the trial Court, it
emerges that, even the trial Court disbelieved the prosecution
evidence on the ground of delay in recording complaint.
26. After going through the F.I.R. Exh.35, it emerges that,
it was recorded at about 1.25 a.m. on 15/5/1998. It is to be
noted that, from the cross-examination of A.S.I. Bhalerao (P.W.6),
it has been brought on record by defence that after apprehending
the accused and victim in autorickshaw, this witness reached to
the Police Station, Chalisgaon along with apprehended accused
and victim at about 12.30 midnight hours. In natural course,
when rape victim was rescued from the clutches of rapists and
after arrival at police station, she met to her mother, definitely
such a rape victim would need sufficient time to calm down and to
come out of the shock of trauma due to commission of rape.
Thus, the time gap of about one hour after arrival of victim to
Police Station till registration of the offence at 1.25 a.m. cannot be
termed as inordinate delay in lodging F.I.R. Thus, the possibility
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(( 25 ))
of concoction of false story by police and victim against the
accused persons as imagined by learned trial Court and observed
in the judgment, is absolutely not acceptable in the eyes of law.
On the other hand, taking the risk of repetition, we must observe
that the learned trial Court considered the evidence of rape victim
in most insensitive manner.
27. A.S.I. Gangadhar Bhalerao (P.W.6) is the police
officer, who was directed by P.S.I. Patil to take the search of
missing victim when mother of the victim approached Police
Station at about 11.00 p.m. From the testimony of A.S.I.
Bhalerao (P.W.6), it emerges that, on that date, he was on night
patrolling duty at Ghat Road Police Outpost and, therefore, initially
he went to that Police Outpost and there, from Police Constable
Kureshi he learnt that one girl was taken in autorickshaw towards
side of field and she was crying for help. Therefore, he went
towards Kannad Road along with Police Constable Kureshi by
another autorickshaw and found that at about 11.45 p.m., one
autorickshaw came from Rajangaon Juna Ghat cart road towards
main road. When this witness intercepted that autorickshaw, the
accused No.4 who was sitting on the left side of rickshaw driver,
managed to run away. However, accused No.1 to 3 and 5 were
apprehended on the spot along with victim in the said
autorickshaw. After necessary enquiry, when A.S.I. Bhalerao
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(( 26 ))
(P.W.6) came to know that, that girl was the missing victim and
she was raped by accused persons, he took all the persons to
Police Station, Chalisgaon and produced them before the P.S.I.
Patil.
28. This evidence of A.S.I. Bhalerao (P.W.6), who is a
responsible police officer, is disbelieved by learned trial Court on
the ground that, on the date of occurrence since 11.00 p.m. till
next day morning, A.S.I. Bhalerao (P.W.6) was on night patrolling
duty and, therefore, he was not expected to reach on the spot
where the accused were apprehended. However, from the
evidence of A.S.I. Bhalerao (P.W.6), it has come on record that,
he had gone in search of that missing girl as per directions of
P.S.I. Patil who was one of the senior police officer from Police
Station, Chalisgaon. In cases of such emergency, no written order
is required. Therefore, non production of such written order by
A.S.I. Bhalerao (P.W.6) cannot be a ground to doubt his
testimony. On the other hand, A.S.I. Bhalerao (P.W.6) was a
natural witness, who came to know about the place where the
victim was probably taken by the accused persons and
accordingly, with the help of Police Constable Kureshi, accused
No.1 to 3 and 5 were apprehended red-handed along with victim
girl.
Criminal Appeal No.287/2000
(( 27 ))
29. Learned trial Court doubted the testimony of A.S.I.
Bhalerao (P.W.6) only because he could not identify the accused
No.4 before the Court as the same boy who fled away at the time
of interception by police. However, from the evidence on record,
it becomes clear that, the incidence of interception of
autorickshaw and vanishing of accused No.4 from that spot
occurred within few moments. Therefore, in the headlight of
autorickshaw, A.S.I. Bhalerao (P.W.6) could get only glimpse of
the accused No.4 who bolted away from the spot. In such
situation, identification of accused No.4 before the Court by A.S.I.
Bhalerao (P.W.6) was not possible in ordinary course of the
nature. It cannot be ignored that, evidence of A.S.I. Bhalerao
(P.W.6) was recorded after about one year from the date of
incident. Therefore, due to lapse of such time gap in between
incident and recording of evidence, it was natural that A.S.I.
Bhalerao (P.W.6)could not identify the accused No.4 as the same
boy who fled away. On the other hand, this conduct of A.S.I.
Bhalerao (P.W.6) indicates that he was a truthful and fair witness
who has admitted his inability to point out the boy who fled away
at the time of interception of autorickshaw. Therefore, when
accused No.1, 2, 3 and 5 were apprehended red-handed with
kidnapped girl and when they were produced at Police Station by
A.S.I. Bhalerao (P.W.6), he had full opportunity to watch their
feature and their faces carefully. In such circumstances, in view
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(( 28 ))
of "Ronny Alias Ronald James Alwaris Vs. State of Maharashtra"
(cited supra), identification of these accused persons by A.S.I.
Bhalerao (P.W.6) before the Court is certainly trustworthy and
cannot be doubted.
30. Learned trial Court disbelieved the evidence of A.S.I.
Bhalerao (P.W.6) on the ground that his statement regarding the
boys sitting near the rickshaw driver is inconsistent. However,
after careful examination of Marathi version of evidence of A.S.I.
Bhalerao (P.W.6), it becomes crystal clear that A.S.I. Bhalerao
(P.W.6) has made it clear that, when the autorickshaw was
intercepted, one boy was sitting on the left side and other boy was
sitting on the right side of the driver of autorickshaw and two boys
were sitting inside the rickshaw along with the girl. Thus, we do
not find any glaring inconsistency in the testimony of A.S.I.
Bhalerao (P.W.6) to create doubt regarding truthfulness of the
version of this witness.
31. For discarding evidence of A.S.I. Bhalerao (P.W.6)
regarding arrest of the accused persons red-handed with victim
girl, learned trial Court assigned reason that it was not possible
for A.S.I. Bhalerao (P.W.6) and Police Constable Kureshi to take
accused No.1 to 3 and 5 and the victim girl in one and the same
autorickshaw. However, it is a matter of common sense that, in
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(( 29 ))
case of such emergency, if one autorickshaw is available at lonely
place, then even 7 passengers including driver can easily travel in
one autorickshaw. Non-examination of Police Constable Kureshi is
one of the ground assigned by trial Court to reject the testimony
of prosecution witnesses. However, when testimony of A.S.I.
Bhalerao (P.W.6) is free from all doubts and when this witness
stood consistent despite searching cross-examination by defence
counsel, examination of Police Constable Kureshi would have been
only additional burden on record. So also, due to non-
examination of Police Constable Kureshi, no material fact is
suppressed from the Court. Therefore, non-examination of Police
constable Kureshi cannot be a ground to discard the prosecution
case.
32. Accordingly, after careful examination of testimony of
A.S.I. Bhalerao (P.W.6), we have come to the conclusion that, he
is trustworthy witness and his testimony fully corroborates the
version of victim (P.W.1) regarding the occurrence of entire
incident, especially regarding the arrest of accused No.1 to 3 and
5 red-handed with the victim girl.
33. In support of the testimony of victim (P.W.1),
prosecution has also examined Dr. Chavan (P.W.7) who was the
then Medical Officer at Municipal Dispensary, Chalisgaon. From
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(( 30 ))
the evidence of Dr. Chavan (P.W.7), it emerges that, on
15/5/1998, victim was referred to him for medical examination
and age of the victim was about 16 years. Dr. Chavan (P.W.7)
found that, there was rupture of hymen and there were abrasions
over back, and blunt injuries on face, mouth and chest of the
victim. He also found that, vulva, labia majora and labia minora
were swollen and pink in colour. Internal genital examination with
deep sedation showed that, per vaginal examination was painful
and rupture of hymen was "8.00 o'clock" position. There was
bleeding from vagina and it contained sticky fluid. According to
this witness, the injuries found on the body of victim were caused
within 6 hours. Dr. Chavan (P.W.7) has proved Medico Legal
Certificate (Exh.60) of the victim. This Certificate shows that, the
medical examination of the victim was done at 3.30 a.m. Thus,
obviously, the injuries found on the body of victim correspond
with the time of commission of rape and assault by accused
persons. These signs and injuries found by Dr. Chavan (P.W.7)
certainly indicate that somebody had recently forcible sexual
intercourse with the victim. This report fully corroborates the
version of victim (P.W.1) regarding commission of rape by 4 boys
at late night on 14/5/1998.
34. This important piece of medical evidence is discarded
by the learned trial Court for the reason of certain irresponsible
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(( 31 ))
admissions given by Dr. Chavan (P.W.7) in his cross-examination.
In examination-in-chief, Dr. Chavan (P.W.7) opined that, the
injuries found on the chest, face and back of the girl were all signs
of struggle and resistance and the external genital examination
results of swelling of vulva, labia majora and labia minora are
indications of coitus. However, Dr. Chavan (P.W.7) admits in his
cross-examination that few abrasions may also be caused in case
of intercourse with consent on rough substance and clothes can
also get torn on back side. He also admitted that if there is single
intercourse, then rupture of hymen is of "8.00 o'clock" shape. In
case of repeated intercourse on the same day, number of injuries
are possible. He also opined that the patient was intercoursed for
once only. These admissions of Dr. Chavan (P.W.7) are absolutely
incorrect and hypothetical admissions. In fact, Medical Officer is
not expected to opine whether it was the case of rape or not. He
can only opine that there were certain signs found on the body
which are noted in the medical examination report He can also
note down the injuries found on the body. Whether it was the
case of rape or it was a case of sexual intercourse with consent of
the girl is to be examined only by the court of law and not by the
Medical Officer. In fact, Dr. Chavan (P.W.7) has transgressed his
limitations by giving opinion that in case of single sexual
intercourse, the rupture of the hymen will be "8.00 o'clock" in
shape. This admission is baseless as well as appears to be
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(( 32 ))
deliberately given to help the accused persons. The subsequent
admission given by Dr. Chavan (P.W.7) that number of injuries
are possible in case of repeated sexual intercourse in one day and,
therefore, it was a case of single intercourse, is also an
irresponsible admission. Because, Medical Officer is not expected
to opine as to how many persons had sexual intercourse with the
victim girl. On the basis of medical examination, no expert can
count the number of persons who had sexual intercourse with the
girl in one day. We have also noted that, on 15/5/1998, at the
time of medical examination, by issuing letter to P.I., Police
Station Chalisgaon (Exh.61), Dr. Chavan (P.W.7) informed him
that he cannot opine as to how many persons had committed rape
on the victim. Thus, on one hand Dr. Chavan (P.W.7) gives
correct opinion to the police that he cannot tell the number of
persons who had intercourse with the victim, but at the stage of
evidence, to help the accused persons, he admits that, in case of
repeated intercourse, there will be number of injuries, and it was
case of single intercourse. Thus, such false admissions knowingly
given by Dr. Chavan (P.W.7) deserve to be discarded. Instead of
discarding such deliberate admission, the learned trial Court has
unnecessarily given importance to such admissions while rejecting
the truthful testimony of victim (P.W.1).
35. However, the signs noted by Dr. Chavan (P.W.7) i.e.
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(( 33 ))
swelling on labia majora and labia minora of the victim, bleeding
from her vagina and torn hymen together with injuries on the
body of victim, indicate that, she was raped on the relevant date
and time as deposed by the victim (P.W.1).
36. Before parting with discussion regarding medical
evidence, we must observe that the learned trial Court has
unnecessarily given importance to the admission of Dr. Chavan
(P.W.7) that smegma was collected on the glans penis of two
boys and it vanishes during intercourse. However, the medical
examination certificates of accused persons (Exhibits 62, 63, 64,
65 and 66) do not show any smegma was present on the glans
penis of any accused. Only in the certificate Exh.62 there is
reference of taking of smegma swab for chemical analysis. In
other certificates, there is no reference of smegma. Otherwise
also, when medical examination of accused persons was
conducted, after 4.45 p.m. onwards, the presence or absence of
smegma alone cannot be a ground to discard the oral testimony of
victim (P.W.1). The learned trial Court has given unnecessary
importance to the irrelevant and deliberate admission given by Dr.
Chavan (P.W.7) while coming to the absolutely wrong conclusion.
37. In this case, circumstantial evidence placed on record
by the prosecution is spot panchanama (Exh.38) of the both spots
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(( 34 ))
where the victim (P.W.1) was raped. Prosecution has also placed
reliance on arrest panchanama of accused No.1 to 5 (Exhibits 62
to 66). Exh.46 is seizure panchanama of the clothes of the victim
which were on her person at the time of incident. The Medico
Legal Certificate regarding examination of the accused No.1 to 5
are at Exhibits 62 to 66.
38. Learned Advocate for appellants submitted that, if the
arrest panchanama of accused persons is read together with their
medical examination certificates, then it reveals that, accused
No.1 to 3 and 5 sustained abrasion on their both knee joints. He
also pointed out that, spot panchanama (Exh.38) shows that
Gangawan with Bo (hair band) as well as slipper of the accused
were found on the spot of the incident. This circumstantial
evidence fully corroborates the version of victim of other evidence.
39. On the other hand, learned defence counsel assailed
this circumstantial evidence on the ground that all the panchas on
spot panchanama, arrest panchanama and seizure panchanama
have turned hostile and even the investigating officer P.S.I. Patil is
dead. According to defence counsel, A.S.I. Bhalerao (P.W.6) was
not present at the time of preparation of these panchanamas and,
therefore, he cannot prove all these panchanamas in accordance
with law. However, A.S.I. Bhalerao (P.W.6) deposed on oath that,
Criminal Appeal No.287/2000
(( 35 ))
during investigation he was accompanying P.S.I. Patil and visited
the spot of incident along with P.S.I. Patil and panchas. From the
testimony of A.S.I. Bhalerao (P.W.6), it emerges that the spot of
the incident was shown by victim and slipper and Gangawan of the
victim were found lying on the spot of the incident. Marks of
violence and scuffle were also noticed on that spot, which is field
property situated on the eastern side of Kannad Road. He has
identified the signature of P.S.I. Patil.
40. It is to be noted that, as observed above, because
A.S.I. Bhalerao (P.W.6) was on night patrolling duty on
14/5/1998, it cannot be said that he did not accompany the
investigating officer when his participation in the investigation in
this case begins since the search of the victim. Therefore, it was
natural that P.S.I. Patil obtained his assistance at the time of
further investigation of this crime. Only because this witness did
not sign any panchanama or any document, it does not mean that
he was not present at the time of investigation. Name of the
assisting staff member is not mentioned in the panchanamas or
his signature is not obtained on any document, therefore, absence
of his signature on any panchanama cannot be a reason to doubt
his presence at the time of investigation. On the other hand, in
cross-examination of A.S.I. Bhalerao (P.W.6), the defence has
brought on record that as per request of P.S.I. Patil, this witness
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(( 36 ))
accompanied him during the investigation. We are fully satisfied
that A.S.I. Bhalerao (P.W.6) can prove the preparation of all
relevant panchanamas when investigating officer is dead and
when panchas have turned hostile. Thus, on the basis of spot
panchanama (Exh.38), prosecution has established that there
were signs of struggle, and Gangawan and slipper of the victim
were lying on the spot of the incident in the field where rape was
committed on victim (P.W.1). This circumstantial evidence
definitely corroborates the testimony of victim (P.W.1).
41. A.S.I. Bhalerao (P.W.6) has also proved the seizure of
Salwar, Kurta and Knicker of the victim as per seizure memo
(Exh.46). He has also identified these clothes as Articles No.1 to
3 produced before the Court. The seizure panchanama of the
clothes shows that the Salwar as well as Knicker of the victim
were in torn condition. This indicates violence by accused with the
victim at the time of commission of rape. Only because Dr. Chavn
(P.W.7) did not examine these clothes and did not notice the torn
condition of these clothes, this important circumstantial evidence
cannot be discarded.
42. A.S.I. Bhalerao (P.W.6) has also proved arrest
panchanama of accused No.1 to 5 at Exh.41 to Exh.45 and seizure
of their clothes as Articles 4 to 18. The arrest panchanama of
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(( 37 ))
accused Bapu Vithal Dhumal (accused No.3) shows that, earth
was found on both palms of this accused and abrasions were
found on his both knee joints. Even teeth bite signs were found
on his right thumb.
43. In the medical examination certificate of Bapu Vithal
Dhumal (accused No.3) (Exh.63), abrasions were found by
Medical Officer on both knee joints. The arrest panchanama of
accused No.1 (Exh.42) also shows that earth was found at his
both palm and abrasions were found on both knee joints. Same
abrasions are noted by Medical Officer in his Medico Legal
Certificate (Exh.64). In the arrest panchanama of accused No.2
Jagan Chavan, it is noted that, earth was found on his both palms
of the hands with minor abrasions as well as on his both knee
joints abrasions were found. Even in his Medico Legal Certificate
(Exh.62) abrasions are noted on his both knee joints. Learned
defence counsel has assailed this evidence on the ground that age
of these abrasions is 6 hours before medical examination of these
accused persons. It is pointed out that, medical examination of
accused No.1 to 3 and 5 was conducted on 15/5/1998 at about
4.45 p.m. to 5.30 p.m. and, therefore, age of the injuries does not
correspond with time of the occurrence which occurred prior to
more than 6 hours from their medical examination. However, we
do not find any substance in this objection for the simple reason
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(( 38 ))
that the opinion of the Medical Officer is not binding on the Courts
and age of the abrasions cannot be calculated mathematically.
Whatever age of injuries is noted by Medical Officer is only
approximate assessment. When these arrest panchanamas are
prepared in between 3.10 a.m. till 4.10 a.m. on 15/5/1998, and
when these all abrasions are noted on the body of accused No.1 to
3 and 5, only on the basis of age mentioned in Medico Legal
Certificates, this important evidence cannot be discarded. Thus,
we find that, abrasions on the both knee joints of the accused
No.1 to 3 and 5 found at the time of preparation of their arrest
panchanamas and at the time of medical examination, fully
corroborate the testimony of victim (P.W.1).
44. Learned defence counsel raised objection that
prosecution cannot establish that at the relevant time of the
incident victim was below the age of 18 years. However, we do
not find any substance in this objection because the oral version
of victim (P.W.1) that she was 16 years old is not at all disputed
in her cross-examination. So also, the age of the victim is
mentioned in the Medico Legal Certificate as 16 years old. Dr.
Chavan (P.W.7) has also deposed that she was about 16 years of
age. Only this witness has admitted that he has taken her age as
told by her. However, in his further cross-examination, the
defence has not challenged the age of the victim as 16 years old
Criminal Appeal No.287/2000
(( 39 ))
at the time of occurrence of the incident. Therefore, we have no
hesitation to hold that at the time of incident the victim was below
the age of 18 years.
45. In the circumstances, we are fully satisfied that the
oral evidence of victim (P.W.1) and A.S.I. Bhalerao (P.W.6) is fully
corroborated by other circumstantial evidence such as finding of
articles of the victim on the spot of incident, abrasions on both
knee joints of accused No.2, 3 and 5 as well as seizure of torn
Salwar and Knicker from the person of the victim. In other words,
the direct evidence of victim is fully corroborated by circumstantial
evidence as well as medical evidence.
46. In the case of State of Punjab Vs. Ramdev Singh,
reported in (AIR 2004 SC 1290), the Apex Court ruled that :-
"It is well settled that a prosecutrix complaining
of having been a victim of the offence of rape is
not an accomplice after the crime. There is no
rule of law that her testimony cannot be acted
upon without corroboration in material
particulars. She stands on a higher pedestal
than an injured witness. In the latter case, there
is injury on the physical form, while in the
former, it is both physical as well as
psychological and emotional. However, if the
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(( 40 ))
Court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it
may search for evidence, direct or
circumstantial, which would lend assurance to
her testimony. Assurance, short of
corroboration, as understood in the context of an
accomplice would do."
Similar view is also taken by Apex Court recently in
State of Himachal Pradesh Vs. Sanjay Kumar reported in
2017 Cri.L.J.1443 (Supreme Court).
Thus, assuming that above discussed circumstantial
evidence is not free from doubt, even then, the truthful testimony
of victim (P.W.1) corroborated by evidence of A.S.I. Bhalerao
(P.W.6) and Kalpana (P.W.5) - mother of victim about condition of
the victim when she was released from the clutches of the
accused, is sufficient to establish beyond reasonable doubt that on
14/5/1998, accused No.2, 3 and 5 abducted the victim from the
lonely lane at Chalisgaon at about 8.30 p.m. and took her to
lonely field property on the eastern side of Kannad Road and in
that field accused No.2, 3 and 5 had forcible sexual intercourse
against the wishes of victim and thereby committed offence
punishable under Sections 323, 363, 366 read with Section 34;
and Section 376(2)(g) of the Indian Penal Code. However, no
substance is available against any accused to prove offence
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(( 41 ))
punishable under Sections 504 and 506 read with Section 34 of
the Indian Penal Code. That acquittal under those Sections is
proper.
47. Accordingly, after careful analysis of evidence of victim
(P.W.1) together with testimony of her mother Kalpana (P.W.5),
A.S.I. Bhalerao (P.W.6) and Dr. Chavan (P.W.7), we find that,
their testimony is trustworthy and sufficient to establish that on
14/5/1998 at night hours, victim was forcibly taken to one lonely
field and she was raped by accused No.2, 3 and 5. As victim has
not uttered a word against accused No.1 and as identification of
accused No.4 is doubtful, benefit of doubt was rightly given to
them while acquitting them. However, learned trial Court
committed glaring error while acquitting the accused No.2, 3 and
5 of the offence punishable under Section 376(2)(g) of the Indian
Penal Code. The view taken by learned trial Court is totally
impossible view. On the other hand, the learned trial Court ought
to have convicted the accused No.2, 3 and 5 for the offences
punishable under Sections 323, 363, 366 read with Section 34;
and Section 376(2)(g) of the Indian Penal Code. Therefore, this
appeal deserves to be partly allowed.
48. While sentencing the accused, their age as well as the
heinous crime committed by them is to be considered. No doubt,
Criminal Appeal No.287/2000
(( 42 ))
all accused persons are young boys. However, considering the
heinous act of the accused i.e. commission of the rape on teenage
girl, they do not deserve leniency. Sexual violence, apart from
being a dehumanizing act, is an unlawful intrusion on the right of
privacy and sanctity of a female. It is a serious blow to her
supreme honour and offends her self-esteem and dignity. It
degrades and humiliates the victim and where the victim is a
helpless innocent child or a minor, it leaves behind a traumatic
experience. A rapist not only causes physical injuries but more
indelibly leaves a scar on the most cherished possession of a
woman, i.e., her dignity, honour, reputation and not the least her
chastity. Rape is not only a crime against the person of a woman,
it is a crime against the entire society. It destroys, the entire
psychology of a woman and pushes her into deep emotional crisis.
The Courts are, therefore, expected to deal with cases of sexual
crime against women with utmost sensitivity. Such cases need to
be dealt with sternly and severely. Hence the following order :
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) The judgment and order of acquittal of respondents
original accused No.2 Jagan Chintaman Chavan, accused No.3
Bapu Vithal Dhumal and accused No.5 Bandu Ramesh Deshmukh,
passed by learned Additional Sessions Judge, Jalgaon in Sessions
Criminal Appeal No.287/2000
(( 43 ))
Case No.155/1998, dated 28/7/1999 is quashed and set aside.
(iii) The accused No.2 Jagan Chintaman Chavan, accused
No.3 Bapu Vithal Dhumal and accused No.5 Bandu Ramesh
Deshmukh are held guilty for commission of offences punishable
under Sections 323, 363, 366 read with Section 34; and Section
376(2)(g) of the Indian Penal Code.
(iv) Accused No.2 Jagan Chintaman Chavan, accused No.3
Bapu Vithal Dhumal and accused No.5 Bandu Ramesh Deshmukh
are sentenced to suffer rigorous imprisonment for three months
each for offence under Section 323 read with Section 34 of the
Indian Penal Code.
(v) Accused No.2 Jagan Chintaman Chavan, accused No.3
Bapu Vithal Dhumal and accused No.5 Bandu Ramesh Deshmukh
are sentenced to suffer rigorous imprisonment for two years each
and to pay fine of Rs.1000/- (Rupees one thousand) each, in
default to suffer rigorous imprisonment for one month each for the
offence under Section 363 read with Section 34 of the Indian Penal
Code.
(vi) Accused No.2 Jagan Chintaman Chavan, accused No.3
Bapu Vithal Dhumal and accused No.5 Bandu Ramesh Deshmukh
are sentenced to suffer rigorous imprisonment for five years each
and to pay fine of Rs.2000/- (Rupees two thousand) each, in
default to suffer rigorous imprisonment for three months each for
Criminal Appeal No.287/2000
(( 44 ))
the offence under Section 366 read with Section 34 of the Indian
Penal Code.
(vii) Accused No.2 Jagan Chintaman Chavan, accused No.3
Bapu Vithal Dhumal and accused No.5 Bandu Ramesh Deshmukh
are sentenced to suffer rigorous imprisonment for ten years each
and to pay fine of Rs.2000/- (Rupees two thousand) each, in
default to suffer rigorous imprisonment for one year each for
offence under Section 376(2)(g) of the Indian Penal Code.
(viii) All the substantive sentences of imprisonment shall
run concurrently.
(ix) Accused No.2 Jagan Chintaman Chavan, accused No.3
Bapu Vithal Dhumal and accused No.5 Bandu Ramesh Deshmukh
shall surrender to their bail bonds before the trial Court
immediately to undergo the sentence of imprisonment.
(x) Set off be given to them under the provisions of
Section 428 of the Code of Criminal Procedure.
(xi) Appeal against acquittal of accused No.1 Amin Shaikh
Khwaja and accused No.4 Suresh Shantaram Mahajan is
dismissed.
(xii) Accused No.1 and 4 shall execute before the trial Court
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(( 45 ))
bail bonds with sureties for the amount of Rs.5000/- (Rupees five
thousand) each to appear before the Supreme Court as and when
notices are issued to them in respect of any proceedings filed
against this judgment vide Section 437-A of the Code of Criminal
Procedure and the said bail bonds shall remain in force for a
period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
