Bombay High Court
Maruti Suresh Pavale And Anr vs The State Of Maharashtra And Anr on 2 March, 2017
Bench: A.M. Badar
APPEAL-415-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.415 OF 2012
1) MARUTI SURESH PAVALE )
2) NITIN VITTHAL PAVALE )...APPELLANTS
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Nasreen Ayubi, Advocate for the Appellants.
Mr.A.R.Kapadnis, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 2nd MARCH 2017.
JUDGMENT :
1 Appellants / accused by this appeal are challenging the
judgment and order dated 16th August 2011 passed by the learned
Special Judge under Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Pune, in Special Case No.35 of
2008, thereby convicting both of them of offence punishable
under Sections 376(2)(g), 323 read with 34 and 506 read with 34
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of the Indian Penal Code (IPC). For the offence punishable under
Section 376(2)(g) of the IPC, they are sentenced to suffer rigorous
imprisonment for 10 years apart from payment of fine of
Rs.5,000/- by each of them, in default, to suffer simple
imprisonment for 6 months. For the offence punishable under
Section 323 read with 34 of the IPC, both the appellants are
sentenced to suffer rigorous imprisonment for 6 months. For the
offence punishable under Section 506 read with 34 of the IPC,
they are further sentenced to suffer rigorous imprisonment for 6
months. However, both of them are acquitted of offence
punishable under Sections 3(1)(xi) and 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.
2 Briefly stated, facts of prosecution case are thus :
Informant prosecutrix PW1 as well as her husband
PW2 Pravin were residents of Village Vardade in Haveli Taluka of
Pune District. They are both blind. On 29th August 2008 they had
both come to Pune and after finishing off their work. At about 8
p.m., they boarded the bus and reached Khadakwasla at about 9
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p.m. They both then waited for a bus for going to their village
Vardade. They made inquiry about the arrival of the bus for
village Vardade to owner of a pan stall situated at Khadakwasla.
At about 9.30 p.m., a passenger jeep came there and PW1 - the
prosecutrix and her husband PW2 Pravin boarded that passenger
jeep which was going to Panshet as the driver of the said jeep
assured to take them to their village Vardade. The blind couple
noted from the voice of people in that passenger jeep that there
were three men and one woman in that jeep besides the driver.
After some time, two men and a woman alighted from the jeep
which proceeded further at village Khanapur. At that place, the
driver of the jeep called out to his associate Keshav by taking his
name and asked Keshav to bring a bottle of water. When Keshav
left with other persons, the driver of the jeep made inquiry from
PW2 Pravin as to whether PW1prosecutrix is his wife and whether
they both are blind. There was some conversation between them
and thereafter the person who was addressed as Keshav returned
back with a bottle of water. Then onwards journey started. The
jeep then proceeded further and after ten minutes the driver of
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the jeep stopped the jeep and asked PW1 prosecutrix and her
husband PW2 Pravin to get down from the jeep by stating that
they have reached their village Vardade. They both alighted but
while treading the road found that they have not reached village
Vardade.
3 According to prosecution case, at this juncture, the
man who was addressed by the driver as Keshav, caught hold of
the prosecutrix - PW1 and pushed her to the ground. She was
then dragged to the nearby pit. It is the case of prosecution that,
then, the driver of the jeep so also the person addressed as Keshav,
who was in company of the driver of the jeep, committed rape on
the prosecutrix - PW1. They, then, made the couple sit in the
same jeep and reached them to their village Vardade. The jeep
then went towards Panshet. The prosecutrix - PW1 and her
husband PW2 Pravin, then returned to their house. PW2 Pravin
called on phone number 100 and he was informed by the police
that they should go to Khadakwasla police outpost. On the next
day, the couple narrated the incident to their neighbor Ramesh
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Yadav. The couple was frightened. Ultimately, they mustered
courage and went to police station on 1 st September 2008 and
lodged the report. Ultimately crime number 399 of 2008 came to
the registered at Police Station Haveli, for the offences punishable
under Sections 376(2)(g), 323, 506(2) read with 34 of the IPC.
4 Routine investigation followed. On the basis of
information from the pan stall owner, both the appellants /
accused came to be arrested. Their clothes were seized. The
prosecutrix was sent for medical examination. As it was revealed
that she and her husband belonged to Scheduled Castes, the
offence punishable under Section 3(1)(xi) and 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act came to be added to the case diary of the crime in question.
Statement of witnesses came to be recorded. Seized articles were
sent for forensic examination. The vaginal swab of the prosecutrix
as well as sample of blood of accused persons was sent for forensic
examination. Identification parade was held. On completion of
the investigation, appellants / accused came to be charge-sheeted.
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5 The learned Special Judge framed and explained
charges to the appellants /accused. They pleaded not guilty and
claimed trial. In order to bring home the guilt to appellants
/accused, the prosecution has examined in all twenty witnesses.
Ultimately, appellants / accused came to be convicted of offences
punishable under Sections 376(2)(g), 323 read with 34 and 506
read with 34 of the IPC and they are sentenced accordingly, as
indicated in the opening paragraph of this judgment.
6 I have heard Ms.Ayubi, the learned advocate appearing
for appellants / accused persons. She argued that there is no
proper identification of appellants / accused. PW1 - prosecutrix
as well as PW2 Pravin are blind and as such, their evidence
regarding identification of appellants / accused cannot be
accepted. She further argued that, other evidence of prosecution
is also discrepant. No proper Test Identification Parade was
conducted and therefore, appellants / accused are entitled for
benefit of doubt.
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7 As against this, the learned APP supported the
impugned judgment and order of conviction and contended that
by adducing clear and cogent evidence, the prosecution has
proved guilt of both accused persons.
8 I have carefully considered the rival submissions and
also perused record and proceedings including oral evidence as
well as documentary evidence adduced by the prosecution. As it is
the case of prosecution that both appellants / accused persons
have committed rape on PW1 - the prosecutrix, apart from
causing hurt to her and criminally intimidating PW1 - the
prosecutrix and her husband PW2 Pravin, fate of the prosecution
case, to a large extent, hinges on testimony of both these
witnesses. If ultimately, testimony of both these witnesses is
found to be trustworthy and truthful, then the conviction recorded
by the trial court will have to be maintained. Therefore, it is
apposite to consider testimony of PW1 - the prosecutrix and PW2
Pravin at the outset.
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9 It is in evidence of PW1 - the prosecutrix and her
husband PW2 Pravin that on 29 th August 2008, they had been to
Pune and at about 8.00 p.m., they boarded the bus for returning
to their village Vardade. They alighted from the bus at
Khadakwasla at about 9.00 p.m. for going to their village Vardade.
There they met pan stall owner PW4 Prashant Badade and
inquired with him about mode of travel to village Vardade. They
remained at the bus stop of Khadakwasla up to 9.03 p.m. Both
these witnesses further deposed that at about 9.03 p.m., one
passenger jeep came there and the driver of that jeep asked them
as to where they wanted to go. The driver informed them that he
is going to Panshet and he would drop them at village Vardade.
Evidence of PW1 - the prosecutrix and her husband PW2 Pravin
shows that, therefore, they boarded that passenger jeep. Apart
from them, there were three men and one woman as well as the
driver in the said jeep. Both these witnesses stated that after
travelling some distance, two men and one woman alighted from
the jeep. The jeep then stopped at village Khanapur. The driver
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asked one person by calling out to him as Keshav to bring a bottle
of water. When that person left, the driver had a talk with PW2
Pravin for making inquiries about their marital status, place of
residence, whether they can see etc. Then, the man who left for
bringing the water bottle, returned and the jeep proceeded
further. As per their version, apart from both of them, except the
driver and the another person, there was nobody in the passenger
jeep. After treading some distance, the driver of the jeep stopped
the jeep and informed both of them that they had reached their
village. The couple then alighted from the jeep. It is in evidence
of both these witnesses that then they started walking ahead with
the help of sticks with them. However, they felt a pit instead of
their routine road of the village. PW2 Pravin noticed that the way
was not a familiar way.
10 What happened next is seen from evidence of PW1 -
the prosecutrix. She deposed that, then, the person other than the
driver, who was called as Keshav by the driver, caught her and
pushed her in the pit. The driver of the jeep caught hold of her
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husband. Thereafter, the person who was called as Keshav lifted
her saree, removed her nicker and attempted to commit rape on
her. The attempt was not successful. Then, as per version of the
prosecutrix, the driver of the vehicle committed rape on her, and
thereafter, the person, who was called as Keshav, committed rape
on her.
11 PW2 Pravin has deposed that after alighting from the
jeep and noticing that they are not on a familiar way, he heard
sound of the scuffle and shouts of his wife "save save." PW2
Pravin deposed that the driver of the jeep caught hold of him and
threatened him to keep quiet. He heard sound of dragging his
wife. After sometime, as per version of this witness, the driver
went away and he was still hearing sound of cries of his wife. As
deposed by PW2 Pravin, after about 15 minutes, the driver and
the person who was addressed by the driver as Keshav, came back
along with his wife. They were made to sit in the vehicle and both
of them were then dropped at village Vardade.
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12 Evidence of the couple further shows that then PW2
Pravin called on telephone number 100, contacted the police, but
he was advised to go to police out post at Khadakwasla. Because
of frightened state of mind, they could not go to police out post at
Khadakwasla in night hours. It is in their evidence that they had
disclosed the incident to their neighbor, named Ramesh Yadav. On
1st September 2008, they both went to Khadakwasla police out
post and the report came to be lodged. PW1 - the prosecutrix
deposed that the person who was addressed as Keshav was having
beard. She stated that clothes worn by her, at the time of the
incident, were handed over to police, and she was taken for
medical examination. both these witnesses deposed that they
were called for identification parade. Evidence of PW2 Pravin
shows that he had identified accused persons. PW2 Pravin
further deposed that he was also called by police to identify the
vehicle and from five similar vehicles he identified the passenger
jeep, in which they travelled, as its back seat was in torn condition
and there was an iron rod below the seat.
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13 Evidence of both these witnesses came to be criticized
on the ground that there is delay of about two days in lodging the
FIR. However, delay in lodging the report in rape cases cannot be
ritualistic formula to discard case of the prosecution. In the case
in hand, the couple is a blind couple. They had reached at their
home in a remote village named Vardade, after the incident at late
night. Police station was not situated in the village. Rather, the
nearest available police out post was at Khadakwasla, in a totally
distant village. The blind couple had suffered the trauma of rape
on the wife. In such a situation, it is not expected of a blind
couple to approach police immediately. It is seen that their
neighbour had also not offered necessary help to them. This,
satisfactorily explains the delay in lodging FIR, as even immediate
phone call to phone number 100 meant for help by police to the
citizens, did not yield the desired result. Apart from this, there
seems to be no material from cross-examination of both these
witnesses, to disbelieve their version about the incident in
question.
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14 Now let us examine whether other evidence adduced
by the prosecution corroborates version of both these witnesses
and identity of both appellants / accused is established therefrom.
PW4 Prashant Badade, owner of the pan stall at village
Khadakwasla, shows that his pan stall is at Khadakwasla bus stop.
On 29th August 2008, at about 9.30 p.m., one blind couple
alighted from the bust at the said bus stop. PW4 Prashant Badade
further deposed that the couple was waiting for a bus. In the
meanwhile, a Mahendra jeep driven by appellant accused no.2
Nitin Pavale came there from the side of Pune. It was carrying
2/3 other passengers. As seen from the evidence of PW4 Prashant
Badade, the blind couple boarded in Mahendra jeep driven by
appellant / accused Nitin Pavale for their onwards journey.
15 PW6 Sachin Javalekar is one of the passengers
travelling in the passenger jeep in which the victim of the crime
was travelling. It is in evidence of PW6 Sachin Javalekar that
from Dandekar bridge area of Pune, at about 8.15 p.m. of 29 th
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August 2008, he boarded the passenger jeep driven by appellant /
accused no.2 Nitin Pavale for going to Khanapur. This witness was
knowing appellant / accused no.2 Nitin Pavale. He deposed that
appellant / accused no.1 Maruti Pavale was also in the said jeep.
As per version of this witness, when the jeep reached at
Khadakwasla bus stop, a blind couple boarded that jeep. At that
time, two ladies and one passenger named Narayan Javale, apart
from both appellants / accused were travelling in that jeep. As
per version of PW6 Sachin Javale, at village Gorekhand, other
ladies passengers from the jeep alighted the jeep. He further
deposed that he himself as well as co-passenger Narayan Javale
got down a Khanapur, leaving the blind couple in the jeep in
company of both appellants / accused. The jeep then went
towards Panshet. Evidence of PW4 Prashant Badade and PW6
Sachin Javale as such, goes to show that PW1 - the prosecutrix
and PW2 Pravin were in company of both appellants / accused up
to village Khanapur and then continued to be in company of
accused persons when the passenger jeep left Khanapur and went
towards Panshet.
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16 Test Identification Parade (TIP) was conducted by the
prosecution for identifying accused persons on 18 th November 2008.
As PW1 - the prosecutrix and her husband PW2 Pravin are blind, the
identification was adopted through voice and evidence of PW11
Jagdish N. - the Executive Magistrate, who conducted this parade
shows that twelve dummies were used apart from appellants /
accused for the purpose of conducting voice identification parade.
Each person was asked to read a paragraph selected from Marathi
newspaper. Evidence of PW11 Jagdish N. - the Executive Magistrate
shows that PW2 Pravin has pointed both appellants / accused
persons from their voice and accordingly, Memorandum of Test
Identification Parade at Exhibit 51 came to be prepared. There is no
reason to disbelieve version of PW11 Jagdish N. Cumulative effect
of evidence coming from mouth of PW1 - the prosecutrix, her
husband PW2 Pravin, PW4 Prashant Badade, PW6 Sachin Javale and
PW11 Jagdish N. - the Executive Magistrate, is that of establishing
identity of appellants / accused as the perpetrators of the crime in
question. However, this is not the only evidence which is available
against both appellants / accused persons.
17 During the course of investigation, the Investigator
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had collected and seized vaginal swap of the prosecutrix PW1.
The sample was collected in presence of the Resident Medical
Officer of the hospital, apart from the other nurses and Dr.Pankaj,
the lecturer of the unit. That sample came to be dispatched by the
Sassoon General Hospital of Pune to the forensic laboratory at
Mumbai vide letter Exhibit 98. Sample of blood of both appellants
/ accused was drawn for conducting the DNA test and it was
carried to the forensic laboratory by PW15 Uttam Kamble.
Evidence of PW18 Shrikant Lad, Assistant Chemical Analyser of
the forensic laboratory at Mumbai shows that upon chemical
analysis of the vaginal swap of the prosecutrix and sample of
blood of both appellants / accused persons, it was revealed that
DNA profile of the semen detected in the vaginal swab of the
victim and the DNA profile of the blood of both appellants /
accused persons are of the same paternal progeny. The semen i.e.
sperms found in the vaginal swap of the prosecutrix were those of
appellants / accused persons. PW18 Shrikant Lad, Assistant
Chemical Analyser, proved the report at Exhibits 96 and 97 which
corroborates his version. With this evidence on record, complicity
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of both appellants / accused persons in the crime in question of
commission of rape on the prosecutrix, is fully established.
18 Evidence of prosecutrix PW1 shows that she was
dragged by appellants / accused person and was taken to the pit
where she was subjected to sexual violence. It is seen from the
evidence of the prosecutrix PW1 as well as her husband PW2
Pravin that the couple was criminally intimidated by appellants /
accused persons. In the wake of this evidence, no fault can be
found in the finding of the learned Special Judge recording guilt
of both appellants / accused persons for offences punishable
under Sections 376(2)(g), 323 read with 34 and 506 read with 34
of the IPC. Proportionality is also maintained by the learned
Special Judge while sentencing both appellants / accused persons,
by keeping in mind, nature of proved offence.
19 In the result, the appeal is devoid of merits and the
same is dismissed.
(A. M. BADAR, J.)
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