Bombay High Court
Bhansing Harnamsingh Bundele vs State Of Maharashtra & Others on 21 November, 2017
Bench: T.V. Nalawade
1 Appeals 144, 151 158, 216, 306 of
1999
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 144 of 1999
* Mahesh Vasantrao Motaphale,
Age 31 years, Occupation : Nil,
R/o Parbhani,
Taluka and District Parbhani. .. Appellant.
Versus
1) The State of Maharashtra.
2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.
3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.
----
Shri. A.B. Kale, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
----
With
Criminal Appeal No. 151 of 1999
* Munna alias Ravindrasingh
Dilipsisngh Parihar
Age 38 years,
Occupation : Agriculture,
R/o Parbhani. .. Appellant.
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2 Appeals 144, 151 158, 216, 306 of
1999
Versus
1) The State of Maharashtra.
2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.
3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.
----
Shri. Joydeep Chatterjee, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
----
With
Criminal Appeal No. 158 of 1999
* Bhansing s/o Harnamsingh Bundele
Age 37 years,
Occupation : Railway Service,
R/o Parbhani. .. Appellant.
Versus
1) The State of Maharashtra.
2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.
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3 Appeals 144, 151 158, 216, 306 of
1999
3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.
----
Shri. Shirish Gupte, Senior Counsel, instructing by Shri.
Mahesh Kale, Advocate, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
----
With
Criminal Appeal No. 216 of 1999
* Raju s/o Eknath Mahalge
Age 28 years,
Occupation : Labour,
auto-rickshaw driver,
R/o Parbhani
Taluka & Dist. Parbhani. .. Appellant.
Versus
1) The State of Maharashtra.
2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.
3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.
----
Mrs. R.V. Daxini, Advocate, with Mr. H.F. Pawar, Advocate
appointed for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
----
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4 Appeals 144, 151 158, 216, 306 of
1999
With
Criminal Appeal No. 306 of 1999
* The State of Maharashtra
Through PSO Kotwali
Police Station Parbhani. ... Appellant,.
Versus
1) Abbas Baig s/o Afzal Baig
Age 33 years,
Occupation : Labour,
R/o Parbhani,
Taluka and District Parbhani.
2) Ashok s/o Tulshiram Sarode
Age 38 years,
Occupation: Service,
R/o Parbhani,
Taluka and District Parbhani.
3) Tabuka Ramlu Kishtayya
Age 32 years,
Occupatin : Railway Service,
R/o Secundrabad (Andhra Pradesh)
4) Bhansing s/o Harnamsingh Bundele,
Age 32 years,
Occupation : Service
R/o Parbhani.
5) Raju s/o Eknath Mahalge,
Age 28 years,
Occupation: Labour, auto-rickshaw
Driver, R/o Parbhani.
6) Munna alias Ravindra Singh
S/o Dilip Singh Parihar,
Age s33 years,
Occupation: Agriculture
R/o Parbhani.
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5 Appeals 144, 151 158, 216, 306 of
1999
7) Mahesh s/o Vishwanathrao Motaphale,
Age 28 years, Occupation: Nil,
R/o Parbhani,
Taluka & District Parbhani.
8) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.
9) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.
----
Shri. S.J. Salgare, Additional Public Prosecutor, for
appellant.
Shri. Shirish Gupte, Senior Counsel holding for Shri. N.G.
Kale, Advocate, for respondent Nos.4 and 5.
Shri. A.B. Kale, Advocate, for respondent No.7.
Appellants Nos.1 to 3 are deleted from the appeal.
----
Coram: T.V. NALAWADE &
S.M. GAVHANE, JJ.
Judgment reserved on: 22 September 2017
Judgment pronounced on : 21 November 2017
JUDGMENT (Per T.V. Nalawade, J.):
1) All the appeals are filed against the judgment
and order of Sessions Case No.139/1994 which was
pending in the Court of the learned Sessions Judge,
6 Appeals 144, 151 158, 216, 306 of
Parbhani. The learned Sessions Judge has convicted and
sentenced accused Nos.4 to 7 for offence punishable
under section 366 read with section 34 of Indian Penal
Code and for offence punishable under section 376(2)(g)
of Indian Penal Code. Accused Nos.4 and 5 are convicted
and sentenced for offences punishable under section 342
read with section 34 of IPC also. The convicted accused
persons have filed the first four appeals. The State has
filed Criminal Appeal No.306/1999 as the trial Court has
given jail sentence of 10 years rigorous imprisonment to
accused Nos.4 to 7 and the State wants to see that they
get imprisonment for life. Both the sides are heard.
2) In short, the facts leading to the institution of
the appeals can be stated as follows :--
3) Two minor village girls were ravished in
Parbhani city and at the outskirts of Parbhani city by
different persons. In respect of these incidents two
separate charge-sheets were filed and two cases were
tried separately against those persons in respect of
7 Appeals 144, 151 158, 216, 306 of
different incidents. In respect of some incidents, Sessions
Case No.121/1994 was filed and that case is also decided
by the same learned Judge of the Sessions Court. In that
case some accused persons are convicted. That decision
is also challenged by the State and the convicted accused
and those appeals are being decided separately. In view of
the nature of allegations made by the two victim girls in
the two cases, the case of the prosecution in its entirety
mentioned in both these cases need to be mentioned for
better appreciation of the facts and also to understand the
plight of the two victim girls.
4) The two victim girls PW-1 and PW-2 were
friends. They were residents of Partur, District Jalna. At
the relevant time they had not crossed age of 16 years.
Mother of PW-1 was working as maid servant to earn
livelihood and she was required to maintain not only the
prosecutrix but also other issues as her husband is dead.
The parents of PW-2, other prosecutrix, hail from
Hiwarkheda. The parents of PW-2 are very poor and as
they could not afford to maintain PW-2, they had kept PW-
8 Appeals 144, 151 158, 216, 306 of
2 in the house of sister of mother of PW-2 in Partur. PW-2
was not happy due to poverty and also due to bad
treatment which she was receiving in the house of her
aunt on maternal side.
5) On 3-7-1994, PW-2 had some dispute with her
maternal aunt. As she was being starved she met PW-1
and expressed that she wanted to work to earn for her
livelihood. PW-1 has a relative by name Sham Agrawal and
he was running a shop in Parbhani city, District Parbhani.
PW-1 expressed that Sham Agrawal can help them in
giving job in Parbhani. Due to these circumstances on 3-7-
1994 PW-1 and PW-2 left Partur for Parbhani without
informing anything to anybody from Partur.
6) PW-1 and PW-2 first walked up to Raipur where
there is a field of relative of PW-1. Persons working in the
field knew PW-1 and they gave food and shelter to PW-1
and PW-2. PW-1 and PW-2 slept in the field from Raipur on
the night between 3-7-1994 and 4-7-1994. On 4-7-1994
early in the morning they went to Osmanpur railway
9 Appeals 144, 151 158, 216, 306 of
station on foot and there they boarded a train proceeding
to Parbhani.
7) On the train, PW-1 and PW-2 met Raju and
Abhay, the boys who were known to PW-2. These boys
were also proceeding to Parbhani as they were doing
some diploma course in Parbhani. During talk, PW-1 and
PW-2 disclosed to these boys that they were going to
Parbhani in search of job. These boys advised the victim
girls not to go to Parbhani and return to home. They
informed that it was not safe for them to go to Parbhani.
PW-1 and PW-2 and the two boys alighted at Parbhani
from train. As the boys were advising the girls to return
home but as there was no train up to 3 p.m. the boys gave
tea and food to these girls in a hotel. As there was time
upto 3 p.m., the boys took these two girls to Talreja
Talkies to see a movie. It was a matinée show and after
seeing the movie the girls were expected to return by
train to home.
10 Appeals 144, 151 158, 216, 306 of
8) In Talreja Talkies three youngsters namely
Suryakant Dhage, Arun Mapari and Suresh Kopre
(accused Nos.1 to 3 from Sessions Case No.121/1994)
occupied the seats by the side of the two girls. They
opened talk with the two girls and during talk the three
accused realised that these two girls wanted to go to
Sham Agrawal. Accused Nos.1 to 3 from Sessions Case
No.121/1994 falsely represented to these girls that they
knew Sham Agrawal and Sham Agrawal was their friend.
They gave false promise to the victim girls that they would
take them to Sham Agrawal. After arrival of accused
Nos.1 to 3 from Sessions Case No.121/1994 in the theatre,
the aforesaid two boys viz Raju and Abhay left the theatre.
of 1994 took the two girls in an auto-rickshaw first to the
house of a friend where they provided meals to the girls.
From this house accused Nos.1 to 3 from Sessions Case
No.121/1994 took the girls to a banana garden situated at
the outskirts of Parbhani city. In the banana garden,
accused No.1 of Sessions Case No.121/1994 took PW-1 to
11 Appeals 144, 151 158, 216, 306 of
one side and then he committed rape on her. Similarly,
accused Nos.2 and 3 of the same case took PW-2 to other
side and there they committed rape on PW-2. After that
accused No.1 to 3 from that case took PW-1 and PW-2
towards side of a brook known as Pingad-Gad-Nala. There
was water in the brook. There also accused Nos. 1 to 3
committed rape on PW-1 and PW-2. Here accused No.1
committed rape on PW-1. PW-1 and PW-2 could not resist
as threats were given to them.
10) From the side of the brook accused No.1 to 3 of
Sessions Case No.121/1994 took PW-1 and PW-2 towards
the side of road. There they met accused No.4 of that case
namely Rameshwar. From there, accused Nos.1 to 4 of
Sessions Case No.121/1994 took PW-1 and PW-2 to a
lodge of Parbhani by name Visawa Lodge. They reached
there at about 10.00 p.m. There accused Nos.1 to 4 of
Sessions Case No.121/1994 informed to PW-1 and PW-2
that two Sahibs, accused Nos.6 and 7 of Sessions Case
No.121/1994, were to come to the lodge and they would
12 Appeals 144, 151 158, 216, 306 of
help PW-1 and PW-2 for getting work. After some time
accused Nos.6 and 7 of that case namely Nitin
Dudhgaonkar and Kalyan Renge came to the lodge. Under
threat, accused No.6 committed rape on PW-2 and
accused No.7 committed rape on PW-1. They gave threats
not to disclose the incident to anybody. Accused Nos.8 and
9 of Sessions Case No.121/1994 were managing the lodge
and they kept watch to see that there was no interference
or there was no help to the victim girls. When accused
Nos.6 and 7 left the lodge, accused Nos.1 to 4 of Sessions
Case No.121/1994 took PW-1 and PW-2 to campus of
Shanti Niketan school. There accused Nos.1 to 4
consumed liquor. In the campus of the school, accused
Nos.1 and 2 of Sessions Case No.121/1994 committed
rape on PW-2 and accused Nos.3 and 4 committed rape on
PW-1. Accused Nos.2,3 and 4 then left the campus of the
school.
11) From the campus of the school, accused No.1
took the two victim girls to other place which is called as
Wada, big house, where accused No.5 Tukaram Kharat of
Sessions Case No.121/1994 was present. Tukaram gave
13 Appeals 144, 151 158, 216, 306 of
threats to PW-1 and PW-2 to facilitate rape which accused
No.1 wanted to commit. Accused No.1 then committed
rape on PW-2 and accused No.5 committed rape on PW-1.
12) From the last place accused No.1 took the two
victim girls to Parbhani Railway Station and there he left
them. While leaving, he again gave threats to them not to
disclose the incident to anybody. In respect of the
aforesaid five incidents of rape separate charge sheet was
filed and Sessions Case No.121/1994 was tried against the
aforesaid 9 accused persons. In that case accused Nos.1
to 4 and accused Nos.6 and 7 are convicted and sentenced
for offence of gang rape. Accused Nos.1 to 3 are also
convicted and sentenced for offence punishable under
section 366 read with 34 of IPC. These accused are
convicted for different incidents mentioned above.
13) The second part of the prosecution case starts
from the incident which took place at Parbhani Railway
Station. As per the case of the prosecution, accused No.1
had left PW-1 and PW-2 at Parbhani Railway Station on
14 Appeals 144, 151 158, 216, 306 of
night between 4-7-1994 and 5-7-1994 and the last incident
of rape was committed by accused No.7 of Sessions Case
No.121/1994 on the night between 4-7-1994 and 5-7-1994.
14) In the early hours of 5-7-1994 when PW-1 and
PW-2 were sitting on the stair case of the bridge situated
on the platform of the railway station, accused No.1 of the
present case, Sessions Case No.139/1994, Abbas Baig,
who was working as coolie at the railway station
approached PW-1 and PW-2. Under the pretext that he
would help PW-1 and PW-2 he took these two girls to
retiring room situated at railway platform. Abbas Baig
then called accused No.2 Ashok, who was working as
Police Head Constable and accused No.3 Tabuka, who was
working as Railway ticket booking clerk to the room. One
more person also came with them. The retiring place had
many rooms. Accused No.3 Tabuka and the other person
took PW-1 to one room and there they raped her. Accused
No.1 Abbas and accused No.2 Ashok raped PW-2. After
committing the rape these persons allowed the victim girls
to leave the retiring room. The victim girls were very
15 Appeals 144, 151 158, 216, 306 of
much frightened and in that condition they went to the
bridge of the railway and from there in search of water
they went towards railway quarters situated by the side of
the railway station. It was day time. There, accused No.4
Bhansing Bundele, who was occupying a railway quarters
as he was employee of railway, promised them to help and
took them to his residential quarters. In his quarters,
accused No.5 Raju was already present and one young boy
aged about 12 years was also present. accused No.4
supplied water to the victim girls and then he left the
railway quarters by informing to accused No.5 that he
would return after some time (after attending the duty).
While leaving, he took care to see that the railway
quarters was locked from outside and the key is given to
accused No.5.
15) At about 2.30 p.m. of 5-7-1994 accused No.4 of
the present matter returned to the railway quarters. He
had brought with him a bottle of liquor and some food
items. He gave the food items to the victim girls and
asked the aforesaid young boy to leave the quarters. When
the young boy left the quarters, accused No.5 took PW-1
16 Appeals 144, 151 158, 216, 306 of
to one room and there he raped her. Accused No.4 raped
PW-2. In this railway quarters, a lace of the Salwar which
PW-2 was wearing got broken and so the lase of shoe of
accused No.4 was used for the Salwar by PW-2.
16) Accused Nos.4 and 5 of the present matter
virtually used PW-1 and PW-2 upto 4.00 p.m. of 5-7-1994
and then they called accused No.6 Munna @ Ravindra
Singh and accused No.7 Mahesh to the railway quarters.
They were friends of accused Nos.4 and 5. From the
railway quarters PW-1 and PW-2 were taken by accused
Nos.4 and 5 in an auto-rickshaw to other place by name
Shakti Bungalow from Parbhani. Accused No.6 and 7 had
come on their motor cycle and they followed auto
rickshaw to that place on their motor cycle. In Shakti
bungalow accused No.6 Munna @ Ravindrasingh raped
PW-2. After that accused No.4 raped PW-2. After that
accused No.7 Mahesh raped PW-2. Accused No.5 also
raped PW-2. This incident was going on upto early hours
of 6-7-1994 (upto 3 A.M.). PW-1 somehow saved her by
giving information regarding her menstruation period. On
17 Appeals 144, 151 158, 216, 306 of
the night between 5-7-1994 and 6-7-1994 the two victim
girls were present in Shakti Bungalow.
17) On 6-7-1994, in the morning when PW-2 woke
up from sleep, she noticed that PW-1 was not there.
Accused No.5 Rameshwar from the present matter was
present in Shakti Bungalow and he informed that PW-1
had already left the building. PW-2 searched for some time
to find PW-1 and then she went to Parbhani Railway
Station as she intended to return to home by railway. In
the meantime PW-1 had gone to other station viz. Purna
and from there a lady police constable took her in railway
to Parbhani Railway Station. At Parbhani Railway Station
PW-1 pointed PW-2 to the lady constable and due to that
the lady constable took PW-2 to Railway Police Chowki
and PW-2 was asked to stay there.
18) The lady police constable Giribai reached PW-1
to Partur by train. After returning from Partur, Giribai
took PW-2 to Purna Railway Police Station. There, the FIR
of PW-2 came to be recorded and the crime came to be
18 Appeals 144, 151 158, 216, 306 of
registered. PW-2 was taken to Parbhani for medical
examination on 7-4-1994 and she was medically examined.
During course of investigation her clothes were taken
over.
19) On 9-7-1994 PW-2 was taken to New Mondha
Police Station Parbhani where another FIR came to be
recorded and another crime came to be registered.
Sessions Case No.121/1994 is filed in the crime registered
at New Mondha Police Station Parbhani in respect of the
incidents which took place in banana garden, near Pingad-
Gad-Nala, Visawa Lodge, Shanti Niketan school and one
Wada. On 7-7-1994 police from Kotwali Police Station
Parbhani went to Partur and they brought PW-1 to Kotwali
Police Station. There the report given by PW-1 came to be
recorded and that report is a part of Sessions Case
No.121/1994. PW-1 was then sent to New Mondha Police
Station and in the crime registered there, her statement
came to be recorded. PW-1 was also sent for medical
examination and she was medically examined on 7-7-1994.
19 Appeals 144, 151 158, 216, 306 of
20) Separate complaint of the incidents which took
place in retiring room of the railways station, railway
quarters and Shakti Bungalow came to be recorded as per
the narration made by PW-2 and Sessions Case No. 139 of
1994, present matter, was filed after making investigation
of that crime. During course of investigation statements of
PW-1 and PW-2 came to be recorded under section 164 of
the Code of Criminal Procedure. PW-2 took police to
various places where the offence was committed against
them. Accused persons came to be arrested. Some
incriminating articles like clothes, carpets came to be
recovered on the basis of statements given by accused
persons. Blood samples of the accused persons came to be
sent to CA office along with blood samples of the two
victim girls along with vaginal swabs collected by medical
officer. Charge sheet came to be filed in the present
matter in Crime No.29/1994 registered in Purna Railway
Police Station and Crime No.82/1994 registered in New
Mondha Police Station Parbhani.
20 Appeals 144, 151 158, 216, 306 of
21) After making investigation of the two crimes
like Crime No.73/1994 registered with Kotwali Police
Station and Crime No.81/1994 registered with New
Mondha Police Station Parbhani and the case came to be
registered as Sessions Case No.121/1994.
22) Charge was framed against accused separately
in accordance with the allegations made against him by
the two victim girls and the material collected against
accused. All the accused pleaded not guilty. Prosecution
examined 23 witnesses who include the two victim girls.
All the accused took the defence of total denial. No
defence evidence is given.
23) The prosecution relied on both, direct and the
circumstantial evidence. The trial Court has believed both
the victim girls so far as the evidence given by them as
against accused Nos.4 to 7 is concerned. The evidence
given as against accused Nos.1 to 3 is not believed by the
trial Court. The trial Court has held that there is
circumstantial check to the evidence given as against
21 Appeals 144, 151 158, 216, 306 of
accused Nos.4 to 7 and the evidence as against these
accused given by the two victim girls is consistent with
each other. The appeal is filed by the State only for
enhancement of sentence given to accused Nos.4 to 7 and
it is not against the decision of acquittal given in favour of
accused Nos.1 to 3. In view of these circumstances the
evidence of prosecution given as against accused Nos.4 to
7 only and with regard to the incidents in which they were
involved need to be considered and appreciated.
24) Both the victim girls have given evidence in
respect of the incidents which took place between 4-7-
1994 till early hours of 5-7-1994 and that evidence shows
that prior to the incidents in which accused Nos.4 to 7
were involved both the victim girls were ravished by other
persons at various places like banana garden, near brook,
in a lodge, in the campus of a school, in Wada and also in
the retiring room of Parbhani Railway Station. It needs to
be mentioned here that the Court has not believed the
victim girls in respect of the incidents of rape took place
in the retiring room in which accused Nos.1 to 3 and one
unknown person were involved.
22 Appeals 144, 151 158, 216, 306 of
25) PW-1 (hereinafter referred to as "the victim girl
No.1") has given evidence that when the incident which
took place in retiring room was over, she and PW-2 (victim
girl No.2) came out of the retiring room, went to the stairs
of the bridge and stayed there for some time. She has
deposed that they wanted to have drinking water and so
they started to proceed towards railway quarters of the
railway employees situated by the side of the railway
station. She has given evidence that on the way one man
who was known, accused No.4, Bhansing, met them. This
accused is identified by both the victim girls in the Court.
She has given evidence that accused No.4 took them to
his railway quarters by promising to give them drinking
water. She has given evidence that inside of this quarters,
accused No.5 was already present and he was a friend of
accused No.4. She has given evidence that one boy aged
about 12 to 13 years was also present in this residential
quarters. She has given evidence that accused No.4 gave
water to them and then said that there was train for
Partur at 3.00 p.m. and he would arrange to send them by
train to Partur. She has given evidence that by saying so
23 Appeals 144, 151 158, 216, 306 of
he left the quarters but while leaving, he closed the
entrance door of the quarters and put a lock on it from
outside. She has given evidence that this way they were
virtually confined in the railway quarters of accused No.4.
According to her, the key of the lock was given by accused
No.4 to accused No.5.
26) PW-1 has deposed that accused No.4 returned
to his quarters at about 2.00 p.m. and till that time they
were kept in the quarters of accused No.4. She has
deposed that accused No.4 had brought liquor bottle with
him. She has given evidence that accused No.4 supplied
consumed liquor. She has given evidence that the boy
aged about 12-13 years was virtually driven out of the
quarters by accused No.4.
27) PW-1 has given evidence that accused No.4
then took PW-2 to a room of the quarters and closed the
door of the room from inside. She has given evidence that
accused No.5 then raped her by removing her clothes. She
24 Appeals 144, 151 158, 216, 306 of
has described the incident of rape in her evidence. She
has given evidence that after some time PW-2 came out of
the aforesaid room and she informed that accused No.4
had raped her. She has given evidence that accused No.5
gave threats to finish them by braking glass and so they
could not resist and they stayed inside of the quarters.
28) PW-2 (second victim girl) has given similar
evidence against accused Nos.4 and 5. She has given
specific evidence as against accused No.4 that in the noon
time, when accused No.4 returned to the railway quarters,
accused No.4 raped her. She has given evidence that the
act was against her will. She has given particulars of the
incident of rape. She has given evidence that during the
incident the lace of her Salwar got broken and so accused
No.4 gave lace of his shoe for using it as lace of her
Salwar and she used that lace for her Salwar. She has
identified accused Nos.4 and 5 in the Court and she has
also identified her Salwar having lace of the shoe which
was produced by her during course of investigation before
police. She has given evidence that when accused No.4
25 Appeals 144, 151 158, 216, 306 of
was committing the offence, accused No.5 had done the
same thing against PW-1 and that incident was disclosed
by PW-1 to her. PW-2 has given evidence that the offence
was committed by accused Nos.4 and 5 at about 4.00 p.m.
in the railway quarters of accused No.4. The evidence
given by PW-1 and PW-2 as against accused No.4 and 5 on
the incident of rape which took place in the railway
quarters of accused No.4 is consistent with each other.
There is also circumstantial check and those
circumstances are being discussed at other place.
29) PW-1 has given evidence that at 7.30 p.m. two
unknown persons came to the railway quarters of accused
No.4. PW-1 has identified accused No.6 Munna @
Ravindrasingh and accused No.7 Mahesh Motaphale as
the two persons who had come to the railway quarters of
accused No.4. She has given evidence that they had talk
with accused No.4. PW-2 has given similar evidence as
against accused Nos.6 and 7 and their evidence leads to
inference that it is accused No.4 who had called accused
No.6 and 7 to his railway quarters. PW-2 has identified
26 Appeals 144, 151 158, 216, 306 of
accused Nos.6 and 7 in the Court and she gave their
description also.
30) PW-1 has given evidence that from the railway
quarters of accused No.4 she and PW-2 were taken in an
auto-rickshaw by accused Nos.4 and 5 to one bungalow
viz. Shakti Bungalow. She has given evidence that accused
Nos.4 and 5 were sitting on the two sides of PW-1 and PW-
2. Similar evidence is given by PW-2 and their evidence
shows that this incident took place at about 7.30 p.m. of 5-
7-1994. PW-1 has given description of this bungalow and
the substantive evidence which is being discussed shows
that only due to information given by PW-2, police could
trace both, the railway quarters of accused No.4 and
Shakti bungalow. Some articles were also recovered in
connection with the crime by police at the instance of one
accused and on the basis of statement given under section
27 of the Evidence Act.
31) PW-1 has given evidence that in Shakti
Bungalow accused Nos.4,5,6 and 7 committed rape on
27 Appeals 144, 151 158, 216, 306 of
PW-2. She has given evidence that she was not raped
because she was in menses. She has given evidence that
accused Nos.4 to 7 ravished PW-2 till 3.00 a.m. of 6-7-
1994. She has deposed that after coming from the room
where rape was committed, PW-2 narrated the incident to
her by saying that all the four accused (accused Nos.4,5,6
and 7) had raped her. She has deposed that PW-2 was
weeping, she was feeling tired and she was having pains.
32) PW-2 has given evidence that in Shakti
bungalow she was taken to one room by one of the
accused from accused Nos.4 to 7. She has specifically
pointed accused No.6 in that regard. She has deposed that
first, accused No.6 raped her against her will by removing
her clothes. She has described the incident of rape in her
evidence. She has given evidence against accused No.4
that he had raped her in Shakti bungalow against her will.
She has given evidence that accused No.7 then committed
rape on her and at the end accused No.5 committed rape
on her. She has identified these four accused persons in
the Court as the persons who had raped her in Shakti
28 Appeals 144, 151 158, 216, 306 of
bungalow. She has given evidence that she was ravished
for long time by these four persons, till early hours of the
next day. She has given evidence that when she came out
of the room she saw PW-1 and she informed the incident
to PW-1. She has given evidence that she was having
pains, she could not walk and she was frightened and as
she was not able understand what to do, she slept in
Shakti bungalow on that night for the remaining period.
33) The remaining evidence given by PW-1 and PW-
2 is with regard to their subsequent conduct. The
evidence shows that after the incident of rape which took
place in Shakti bungalow they were allowed to leave
Shakti bungalow. Their evidence shows that they could not
meet each other on the morning of 6-7-1994. Their
evidence shows that first PW-1 left the Shakti bungalow,
she went to Purna station where a lady constable made
inquiry with her and by way of precaution the lady
constable took PW-1 with her. Evidence of PW-2 shows
that after searching for PW-1 for some time, she went to
Parbhani Railway Station as she wanted to return to
29 Appeals 144, 151 158, 216, 306 of
Partur and there the aforesaid lady constable came to her
and then she was taken to railway police Chowki by the
said lady constable. The evidence of PW-1 shows that from
Purna Railway Station she was taken to Partur to her
residential place by the lady constable and she was
reached to her house. The evidence of PW-1 shows that
when train reached Parbhani, she showed PW-2 to the
lady constable and so the lady constable took aforesaid
step.
34) The evidence of PW-2 shows that from Railway
Police Chowki Parbhani the aforesaid lady constable took
her to Purna Railway Station in the night time i.e. on the
night between 6-7-1994 and 7-7-1994. The evidence of
PW-2 shows that in the Parbhani Railway Police Station
one PSI Khan made inquiry with her and he recorded her
statement. PW-2 has tried to say that her entire version
was not recorded by Khan and only the portion which he
felt necessary was recorded by him. On that statement her
signature was obtained by Khan. She has given evidence
that on 7-7-1994 she was taken to Parbhani from Purna
30 Appeals 144, 151 158, 216, 306 of
for her medical examination and there she was medically
examined.
35) PW-2 has given evidence that on 8-7-1994 her
clothes were taken over by police which were Salwar and
Kurta and they were the clothes which were on her person
when she was raped in railway residential quarters of
accused No.4 and in Shakti Bungalow. She has identified
articles 9,10 and 11 as her clothes which were produced
before police by her. She has deposed that her signature
was obtained on the seizure panchanama (Exhibit 28)
when the clothes were taken over by police. She has given
evidence that on 8-7-1994 P.S.I. Yeshwant took over inner
wear, nicker, which is article 6 and separate panchanama
in that regard was prepared.
36) PW-2 has given evidence that on 10-7-1994 she
showed the places where the incidents narrated by her
had taken place. The places were the railway quarters of
accused No.4 and the Shakti Building. The evidence as
regards the other place viz. retiring room of railway
31 Appeals 144, 151 158, 216, 306 of
station need not be considered as that matter is not before
this Court. PW-2 has deposed that panchanama of the
incidents in which she showed the places was prepared in
her presence.
37) PW-2 has given evidence that during
investigation, she was given opportunity to identify the
accused persons. She has deposed that in the test
identification parade dated 2-8-1994 she identified
accused No.4 Bhansing and accused No.5 Raju. This
witness has identified accused Nos.4 and 5 during the
deposition in the Court also. PW-2 has given evidence on
test identification parade dated 20-8-1994 in which she
identified accused No.6 Ravindra @ Munna and accused
No.7 Mahesh. PW-2 identified accused Nos.6 and 7 during
deposition in the Court also.
38) PW-2 has given evidence that the Judicial
Magistrate recorded her statement (under section 164 of
the Cr.P.C.) during the course of investigation. It is
brought on the record in her evidence that the term used
32 Appeals 144, 151 158, 216, 306 of
in Marathi by her viz. "Angawar Haat Takla" (v ax koj gkr
Vkdyk ) means the commission of rape.
39) PW-1 has given evidence that on 7-7-1994 PSI
Yeshwant took her from her residential place from Partur
to Parbhani Police Station and then her report was
recorded. That report is a part of Sessions Case
No.121/1994. PW-1 has given evidence that PSI Khan
recorded her statement in Parbhani on 8-7-1994 but that
statement was not recorded as per the version given by
her. PW-1 has deposed that her clothes viz. article Nos.4
and 5 (shown to be seized in Sessions Case No.121/1994)
were taken over during investigation and she was wearing
these clothes viz. Salwar and Kurta at the time of the
incidents in question.
40) PW-1 has given evidence that opportunity was
given to her to identify accused persons in test
identification parades. She has deposed that in the test
identification parade dated 2-8-1994 she identified
accused No.4 Bhansing and on that occasion she was
33 Appeals 144, 151 158, 216, 306 of
asked to identify associate of the accused who raped her.
She has deposed that accused No.4 had raped PW-2. PW-1
has deposed that on 20-8-1994 in other test identification
parade she identified accused No.6 Munna and accused
No.7 Mahesh. In the Court during deposition, PW-1
identified accused Nos.4,6 and 7.
41) PW-1 has given evidence that her statement
was recorded by the Judicial Magistrate (under section
164 of the Cr.P.C.) but she could not give the narration of
the incidents correctly when the statement was recorded
as she was still in shock. She has given evidence that she
was referred for medical examination and she was
medically examined.
42) The prosecution has given other circumstantial
evidence. Eknath (PW-3) panch witness is examined to
prove the seizure of the clothes of PW-1 on 8-7-1994. His
evidence shows that PW-1 produced Salwar and Kurta
and they came to be seized. Panchanama of seizure of the
clothes of PW-2 is also proved in his evidence as Exhibit
37and there were blood stains on the underwear of PW 2.
34 Appeals 144, 151 158, 216, 306 of
43) Shivaji (PW-4) is examined as panch witness on
the following panchanamas :
(i) Statement was given by accused No.4 Bhansing
dated 17-7-1994 in which he stated that he would show
the places of the incidents like residential quarters of the
railway and Shakti bungalow. No recovery or seizure of
articles took place on the basis of the statement. The
memorandum in respect of statement and panchanama of
incidents of showing places cannot be used in evidence in
view of the object behind the provision of Section 27 of
Evidence Act and as it cannot be said that these places
were not known to police.
(ii) Panchanama of arrest of accused Nos.6 and 7. These
panchanamas are proved at Exhibits 41 and 42. These
panchanamas are of no help to prosecution. However,
there is circumstance that only after showing the places
of the incidents by PW-2 and after arrest of accused No.4,
accused Nos.6 and 7 were traced and arrested. They were
not known to PW-2 prior to the date of incident.
35 Appeals 144, 151 158, 216, 306 of
(iii) The memorandum panchanama of statement of
accused No.6 which was in respect of carpet used at the
time of the incident and it is proved at Exhibit 43. Carpet
came to be recovered and seized from the house of
accused No.6 under panchanama at Exhibit 44.
(iv) Memorandum of the statement of accused No.7 with
regard to his clothes which were kept by him in his house
and it is proved at Exhibit 45. The accused then took
police and panchas to his house from where his clothes
came to be recovered and seized under panchanama at
Exhibit 47.
(v) Memorandum of statement of accused No.6 in
respect of his clothes which were on his person on the
date of the incident and it is proved at Exhibit 47.
Panchanama of seizure of underwear and 'T' shirt of
accused No.6 is proved at Exhibit 48 and the clothes were
recovered on the basis of statement mentioned in Exhibit
47.
36 Appeals 144, 151 158, 216, 306 of
(vi) Panchanama of seizure of motor cycle of accused
No.6 is proved at Exhibit 49. The evidence on record
shows that this motor cycle is not identified by the two
victim girls. The evidence is given that on a motorcycle
accused No.6 and 7 had come upto Shakti bungalow from
the residential quarters of accused No..4.
44) Vaijnath (PW-12) is another panch who has
given evidence on the seizure of clothes of accused No.4
Bhansing and on his arrest panchanama. The clothes are
given article Nos.9,10 and 16 and they were shown to be
seized in CR No.82/1994.
45) Abdul Samad (PW-13) is examined as panch
witness to prove the seizure of some articles from the
residential quarters of accused No.4. His evidence shows
that PW-2 was with police and panchas when they visited
the quarters. The evidence shows that on 10-7-1994 the
articles like empty liquor bottle, two glasses, two mats
having some stains came to be taken over under
panchanama at Exhibit 76 from railway quarters of
37 Appeals 144, 151 158, 216, 306 of
accused No.4. One underwear having stains of blood was
also taken over. A pair of shoes was taken over and to one
shoe there was no lace. Here only it needs to be again
mentioned that it is the case of PW-2 that she was given
lace of this shoe by Bhansing as the lace of her Salwar got
broken during the incident. Another document at Exhibit
77 is proved in the evidence this witness. This document
shows that Shakti bungalow, the other place of the
incident, was also shown by PW-2.
46) Dr. Jaishri Deshpande (PW-14) is examined by
prosecution to give medical evidence. She examined PW-2
on 7-7-1994 at about 4.p.m. She examined PW-1 on 8-7-
1994. On local examination she noted following things in
respect of PW-2 :-
1. Matting of pubic hair was seen.
2. Blood stains on clothes and genitals.
3. No evidence of external injuries over
genitals.
4. Hymen - torn, congested+ oozing through tear
present.
5. P.S. : Speculum could be passed with difficulty
tenderness i.e. severe tenderness.
38 Appeals 144, 151 158, 216, 306 of
On PV examination she found following things :
Vagina admits one finger with pains i.e. severe
tenderness.
Bleeding through cervical was present.
She has given specific evidence that on clinical
examination she formed opinion that there was sexual
intercourse with PW-2. She had collected vaginal swab,
pubic hair and the blood of PW-2. The medical certificate
prepared by her is proved in her evidence at Exhibit 79.
This document is consistent with the oral evidence of the
witness.
47) Dr. Jaishri (PW-14) examined PW-1 on 8-7-1994
at 9.00 p.m. She has deposed that on local examination
she found following things :-
1. Matting of pubic hair not seen
2. Blood stains on the clothes and genitals were seen
3. Posterior fourchette congested and redness. Lebia
minora was slightly congested.
4. Hymen torn (old tear), no oozing bleeding through
vagina was present.
5. No evidence of injury over the external genitals.
39 Appeals 144, 151 158, 216, 306 of
Dr. Jaishri (PW-14) found following things on PV
examination of PW-1.
"Medium size speculum passed with a minimum
tenderness means pains. Bleeding through cervical os
seen. The vaginal mucosa is contested. Vagina admits two
fingers with tenderness. Uterus - normal size, retroverted
bleeding through cervical seen. No living or dead
spermatozoa. "
48) The evidence of Dr. Jaishri Deshpande shows
that on microscopic examination no living or dead
spermatozoa were revealed. Her evidence, however,
shows that living spermatozoa can be seen within 2 to 3
hours after sexual intercourse and dead spermatozoa can
be seen within 24 hours of sexual intercourse. The
evidence on the record shows that both the victim girls
were examined after 24 hours of the last incident of rape.
49) Dr. Jaishri (PW-14) has given evidence on the
examination done by her of both the victim girls to
ascertain their age. Her evidence shows that she had
taken X-rays and she had done clinical examination also.
In respect of PW-2 she has deposed that iliac crest had
appeared but not fused. The process of fusion of lower end
was not yet started but the head of radius was found
40 Appeals 144, 151 158, 216, 306 of
fused. The X-ray plates are produced in the Court. On the
basis of the clinical and radiological examination she gave
opinion about the age of PW-2 as age between 14 and 16
years which include margin of error which is 1 to 2 years.
She has given specific opinion that the age of PW-2 was
less than 16 years.
50) Dr. Jaishri (PW-14) has given similar evidence in
respect of PW-1. She has given evidence that the age of
PW-1 was between 14 and 16 years which include margin
of error. She has given specific evidence that the age of
PW-1 was not more than 16 years on the date of
examination. X-ray plate of this victim girl was also
produced. The certificate in respect of age of PW-2 is at
Exhibit 79 and the certificate in respect of the age of PW-1
is at Exhibit 80. This record is consistent with the oral
evidence of Dr. Jaishri. Specific opinion was obtained by
police from this doctor by putting some queries and that
opinion is given at Exhibit 81 which is proved in her
evidence. At Exhibit 82 there is the record with regard to
radiological examination.
41 Appeals 144, 151 158, 216, 306 of
51) Prosecution has given evidence on the dates of
birth also in respect of two victim girls. Krishnarao
Choudhari (PW-15) is working as Clerk in Dhapibai
Maternity Home Amarawati. He has given evidence that
as per the record one Kirandevi Mor was admitted in this
hospital for delivery on 12-3-1979 and on the same day
she delivered a female child at 1.30 p.m. According to
him, as per the record, it was second female child to
Kirandevi. Certificate was issued by this hospital and the
original certificate is produced in Sessions Case No.121/
1994. This certificate is signed by Dr. Ladda of the
hospital and it is at Exhibit 84. He has given evidence
that after the delivery, information was given to local body,
Municipal Corporation by this hospital. Challenge with
regard to the surname of the mother mentioned in the
register is being discussed at later place. It is the case of
the prosecution that this record is in respect of PW-1.
Original record was brought to the Court and Exhibit 84 is
consistent with the original record.
42 Appeals 144, 151 158, 216, 306 of
52) Dr. Rajkumar (PW-16) who is working as
medical officer in the Department of Registration of Births
and death of Municipal Corporation Amarawati is
examined by the prosecution to prove the registration of
birth of PW-1 on the basis of information give by Dhapibai
Maternity Home, mentioned above. He had brought
original record to the Court and it was for the period from
5-3-1979 to 14-5-1979. Entry was made at Sr. No.2131 in
the register in respect of PW-1 and he has given evidence
that it is in respect of female child name of whose father
was Rameshwar Gangabhishan Mor and the name of the
mother of the child was Kiran. The date of birth is
recorded as 12-3-1979 and the girl was born in Dhapibai
Maternity Home Amarawati. It was the second female
child to this couple. Copy of this entry of birth register is
produced on record at Exhibit 86. Thus, the prosecution
has given medical evidence that age of PW-1 was around
16 years and the evidence is given on the date of birth as
she was born on 12-3-1979.
43 Appeals 144, 151 158, 216, 306 of
53) Arjun Kukde (PW-22), Headmaster of Lal
Bahadur Shastri High School Partur is examined by the
prosecution to prove the date of birth of PW-2 on the basis
of her school record. His evidence shows that prior to the
admission of PW-2 in his school, she was student of C.P.S.
Partur (Ganj) and she was admitted in his school on the
basis of transfer certificate issued by C.P.S. Partur on 25-
6-1991. The transfer certificate issued by C.P.S. is proved
in Sessions Case No.121/1994 as Exhibit 229 and its copy
is produced in the present matter. He has given evidence
that as per original transfer certificate which was received
by his school, the PW-2 was admitted on 10-7-1981 and
accordingly the date of birth was recorded by his school.
The original admission form which was filed in his school
for admission of PW-2 was also brought to the Court and
its copy is produced at Exhibit 176. The original form is
given Exhibit 270 in Sessions Case No.121/1994. Copy of
the transfer certificate is taken on the record at Exhibit
175 in the present matter. In the school register entry of
the admission was taken and the original school record
was also brought to the Court. The entry of admission of
44 Appeals 144, 151 158, 216, 306 of
PW-2 in this school is on record at Exhibit 177. This school
had issued school leaving certificate in favour of PW-2 and
this document is at Exhibit 178. All this record shows that
the date of birth of PW-2 is 10-7-1981. Thus, there is
medical evidence and also the evidence given on the basis
of school record by the prosecution to show that the age
of PW-2 was not more than 16 years at the relevant time.
The dates of birth of both the victim girls show that their
age was less than 16 years at the relevant time.
54) Namdeo Jadhav (PW-17), Executive Magistrate,
has given evidence on test identification parades
(hereinafter referred to as "T.I. Parade") held by him in the
campus of Parbhani Jail. He has given evidence that after
receipt of letter of police, he collected information about
the case and then he arranged for conducting T.I. parade.
The correspondence with police is at Exhibits 88 and 89.
The evidence of T.I. parade was seriously challenged
before the trial Court. Though the learned Senior Counsel
for the present appellants-accused submitted that the trial
Court has discarded the evidence of T.I. parade, the
45 Appeals 144, 151 158, 216, 306 of
judgment does not show that there is such specific
finding. The trial Court has held that two victim girls were
in the position to identify the accused, who were identified
by them in the Court and identification in Court is
sufficient.
55) Namdeo Jadhav (PW-17) has given evidence
that in the T.I. parade held on 2-8-1994 PW-2 identified
accused Nos.4 and 5 of the present matter. The evidence
of Jadhav shows that he used 7 dummy persons for T.I.
parade dated 2-8-1994 and they were resembling to the
accused persons in appearance, in age and in height. He
has given evidence that opportunity was given separately
to PW-1 and PW-2 to identify accused Nos.4 and 5 though
accused Nos.4 and 5 were standing in the same group of
aforesaid 7 dummy persons. He has given evidence that
PW-1 and PW-2 were asked to identify the accused
persons who had raped them and also the persons who
had acted as associates in the incidents. He has given
evidence that PW-1 identified accused No.4 Bhansing as
an associate.
46 Appeals 144, 151 158, 216, 306 of
56) Jadhav (PW-17) has given evidence that report
of T.I. parade was prepared by him which is at Exhibit 90.
This record is consistent with the evidence of Jadhav and
also the substantive evidence given by PW-1 and PW-2 on
T.I. parade.
57) On 20-8-1994 Jadhav (PW-17) held T.I. parade
in which opportunity was given to PW-1 and PW-2 to
identify accused Nos.6 and 7 of the present matter. The
correspondence in respect of this T.I. parade is at Exhibits
94 and 95 and the memorandums of the T.I. parade are at
Exhibits 96 and 97. On this occasion he used six dummy
persons. Evidence of Jadhav shows that in the T.I. parade
dated 20-8-1994 the position of accused Nos.6 and 7 was
changed and second opportunity was given to both PW-1
and PW-2 to identify these two persons. His evidence and
the record show that in the first opportunity PW-1
identified both accused Nos.6 and 7 but in the first
opportunity PW-2 could identify only accused No.6. In the
second opportunity PW-2 identified both, accused Nos.6
and 7.
47 Appeals 144, 151 158, 216, 306 of
58) The prosecution has given evidence of the
investigating officers also. Khan (PW-18) is the first
investigating officer and he was attached to Purna
Railway Police Station as Police Sub Inspector. He was in
charge of Parbhani Railway Police Station also. According
to him, the railway quarters of the employees of the
railway like accused No.4 is not within his local
jurisdiction. This circumstance needs to be kept in mind
as some incidents are omitted in the report recorded by
Khan (PW-18).
59) The evidence of Khan (PW-18) shows that he
took over the investigation of the matter on 7-7-1994 at
4.00 p.m. According to him, he recorded the first
disclosure of PW-2. According to him, after recording the
report of PW-2 he took steps like sending PW-2 for medical
examination on 7-7-1994. He took over the clothes of PW-
2 which were on her person like Salwar, Odhani and Kurta
(articles Nos.9,10 and 11) under Exhibit 28 in CR
No.29/1994 registered by him in Purna Railway Police
Station. According to him, during investigation he
48 Appeals 144, 151 158, 216, 306 of
collected record of Lal Bahadur Shastri High School in
respect of PW-2 to ascertain the date of her birth. His
evidence shows that he arrested accused No.5 Raju and
he seized the clothes of Raju after his arrest (articles 7
and 8) under panchanama at Exhibit 60. He has given
evidence that he had sent PW-1 and PW-2 to the Judicial
Magistrate First class for recording their statements
under section 164 of the Cr.P.C. He has given evidence
that he had sent articles which were seized by him to C.A.
office on 14-7-1994 with covering letter. He has given
evidence that he was required to hand over the
investigation of the case to C.I.D. Crime on 11-8-1994.
60) Khan (PW-18) was cross-examined by learned
Special Public Prosecutor. The evidence of both the victim
girls shows that they had the grievance against PW-18
that their versions were not completely and correctly
recorded by PW-18 Khan. It is suggested to him that he
did not record the incidents which took place near brook,
the incident of rape which took place in Visawa Lodge and
the incident of rape which took place in the campus of a
49 Appeals 144, 151 158, 216, 306 of
school even when they were disclosed. These incidents
are not involved in the present matter but due to these
circumstances, Khan was cross-examined by the learned
Special Public Prosecutor.
61) In the examination-in-chief itself Khan (PW-18)
has deposed that PW-2 was appearing weak and she was
not able to speak and so he had obtained the information
by putting some questions to her. This evidence also needs
to be kept in mind as some incidents were not recorded by
him. After giving such evidence, he has given evidence
that PW-2 did not disclose the aforesaid incidents to him
and so he did not record those incidents in the report of
PW-2.
62) Here only it needs to be observed that the
mental condition of these two girls needs to be kept in
mind at the time of the appreciation of the evidence of
PW-1 and PW-2 and at the time of consideration of
absence of some incidents in the first disclosures made by
them to police. They had left the shelter of their parents/
50 Appeals 144, 151 158, 216, 306 of
guardians, they were minor and were afraid of some
action against them. It also needs to be kept in mind that
their evidence shows that their guardians/parents
preferred to stay away from them and they did not opt for
the custody of these two minors and the minors were
required to be kept in Remand Home. These victims girls
must have felt that they were responsible for everything
including the incidents that had taken place against them.
The circumstance that PW-1 had given her age as 18 years
at the relevant time also needs to be kept in mind.
However, PW-2 had given her age as 14 years. It can be
said on the basis of evidence of PW-1 that she was little
more mature than PW-2 at the relevant time. Even when
their evidence was being recorded, they were kept in
Female Reformatory school.
63) Chandrabhan (PW-19) was attached to Kotwali
Police Station Parbhani as Police Sub Inspector. He has
deposed that he recorded statement of PW-1 and then sent
her to New Mondha Police Station Parbhani. He
registered crime at CR No.73/1994 in Kotwali Police
51 Appeals 144, 151 158, 216, 306 of
Station on the basis of report recorded by him. He has
given evidence that he took over the clothes of PW-1
(articles 4 and 5) in CR No.73/1994 under panchanama at
Exhibit 36. His evidence shows that this record was used
in Sessions Case No.121/1994 which was in respect of the
incidents which took place in Banana garden, near brook,
in the lodge, in the campus of the school and then in one
Wada. He has given evidence that during investigation he
seized under-wear of PW-2 (article 6) in CR No.73/1994
under panchanama Exhibit 37. On the basis of the
evidence of Chandrabhan it can be said that only after
recording of the statement by Chandrabhan of PW-1, he
realised that some more incidents had taken place and
then PW-1 was referred to other Police Station, New
Mondha Police Station as other incidents had taken place
within local jurisdiction of New Mondha Police Station.
Police realised that in the disclosure recorded on 7-7-1994
of PW-2 by Khan (PW-18) many incidents were not
recorded. Evidence is given by PW-18 that after recording
statement of PW-1 he referred PW-1 for medical
examination on 8-7-1994. He recorded the age of PW-1 as
52 Appeals 144, 151 158, 216, 306 of
16 years and the age of PW-2 as 14 years when he
recorded their statements.
64) Shaikh Mujib (PW-20) is other investigating
officer who was working as Assistant Police Inspector in
New Mondha Police Station. He has deposed that on 9-7-
1994 he recorded statement of PW-2 and in that statement
she narrated all the incidents including the incidents of
retiring room of Railway Station Parbhani. This statement
of PW-2 is given Exhibit 29 and on that basis crime at CR
No.82/1994 was registered in New Mondha Police Station
Parbhani. Shakti bungalow where one incident took place
is within local jurisdiction of New Mondha Police Station.
According to PW-20 he recorded two separate F.I.Rs (after
realising the aforesaid things). PW-20 has given evidence
that the first F.I.R. was recorded by him in respect of the
incidents of Banana garden, brook, Visawa Lodge, school
campus and one Wada (Munde Wada) and these places
were situated within the local jurisdiction of Kotwali
Police Station. He has deposed that Circle Police Inspector
Chalak was having jurisdiction over both New Mondha
53 Appeals 144, 151 158, 216, 306 of
Police Station and Kotwali Police Station. Thus, Chalak
could have made investigation of all the incidents of rape.
65) Chalak (PW-21), Circle Police Inspector, has
given evidence that aforesaid two police stations were
under his jurisdiction he had power to make investigation
of all the incidents. However, he has given evidence that
he took over the investigation of CR No.82/1994
registered in New Mondha Police Station from Shaikh
Mujib (PW-20). He has given evidence that he arrested
accused No.4 Bhansing on 9-7-1994 and during his arrest
he took over the clothes of Bhansing (articles, 9,10 and
16) under seizure panchanama at Exhibit 74 prepared in
CR No.82/1994.
66) Chalak (PW-21) has given evidence that on 10-
7-1994 PW-2 showed to him the places where the
incidents of rape had taken place. He has deposed that
the railway quarters of Bhansing, accused No.4 was also
shown by PW-2 and during that incident he took over the
articles like a pair of shoes in which one shoe was not
having lace under panchanama at Exhibit 77.
54 Appeals 144, 151 158, 216, 306 of
67) Chalak (PW-21) has given evidence on the
arrest of accused No.5 Raju in Crime No.82/1994. It
appears that Raju was already arrested and he was taken
in custody by Chalak after transfer of this accused in CR
No.82/1994.
68) Evidence is given by Chalak that during the
course of investigation he collected blood sample of
accused No.4 and it was sent to CA office along with
covering letter at Exhibit 168. He has given evidence
that he had requested the learned Executive Magistrate to
hold T.I. parade. Chalak has given evidence that accused
Nos.6 and 7 from the present matter, CR No.82/1994 of
New Mondha Police Station, were absconding and so he
had requested the Judicial Magistrate to take action
against them under sections 82 and 83 of the Cr.P.C. He
has given evidence that he could arrest accused Nos.6 and
7 on 7-8-1994 and then he prepared panchanamas at
Exhibits 41 and 42. He has given evidence that he
collected blood samples of these persons and sent them
to CA office along with covering letter which is at Exhibit
55 Appeals 144, 151 158, 216, 306 of
169. He has given evidence that he had sent PW-1 and
PW-2 to the learned Judicial Magistrate for recording
statements under section 164 of the Cr.P.C.
69) Chalak (PW-21) has given evidence that during
investigation, accused No.6 Munna gave statement to him
in the presence of panchas and he prepared memorandum
statement which is at Exhibit 43. He has given evidence
that after giving statement, accused No.6 produced one
carpet from his house and the carpet came to be seized
under panchanama at Exhibit 44 in CR No.82/1994 and
the carpet is Article No.8.
70) Chalak (PW-21) has given evidence that he
seized clothes of accused No.7 on the basis of statement
given by accused No.7. He prepared memorandum of the
statement which is at Exhibit 45 and the panchanama of
the seizure of the clothes of accused No.7 is at Exhibit 46.
Articles 5, 6 and 7 are the clothes of this accused in CR
No.82/1994.
56 Appeals 144, 151 158, 216, 306 of
71) Chalak (PW-21) has given evidence that
accused No.6 also gave statement to him and he prepared
memorandum of his statement. He has given evidence
that on the basis of this statement, articles 1,2,3 and 4,
which were the clothes of accused No.6 were recovered
and they were seized under panchanama Exhibit 48.
72) Chalak (PW-21) has given evidence that he had
sent some articles to CA office on 10-8-1994 with covering
letter Exhibit 170 but after that he was required to hand
over the investigation to CID on 11-8-1994.
73) Sahebrao Vyavahare (PW-23) was working as
Police Inspector in CID and he made remaining
investigation of the case. He has deposed that, he took
over the investigation of CR No.29/1994 registered in
Purna Railway Police Station by PSI Khan and he also took
over the investigation of CR No.82/1994 registered with
New Mondha Police Station which was with Chalak. He
has deposed that he took over investigation of CR Nos.
73/1994 and 81/1994 which were registered in Kotwali
Police Station from P.S.I. Yeshwant and P.S.I. Jagadale.
57 Appeals 144, 151 158, 216, 306 of
74) Sahebrao (PW-23) has deposed that he
requested the Executive Magistrate to hold T.I. parade in
respect of accused No.6, Munna and accused No.7
Mahesh who were arrested in CR No.82/1994. He has
given evidence that he had sent a lace of the shoe which
was recovered from the house of accused No.4 in the
present case along with lace of PW-2 to CA office for
comparison purpose along with covering letter at Exhibit
182.
75) The record of investigation and the aforesaid
evidence show that blood samples of all the accused were
collected and the samples of blood of the two victim girls
were collected. Similarly, vaginal swab collected by the
medical officer along with pubic hair so also the clothes of
the accused mentioned above and the mattresses used at
the time of rape in the lodge, in railway quarters of
accused No.4 and in the Shakti bungalow were sent to
C.A. office. The CA reports in respect of these articles are
produced before the Court. The trial Court has considered
all the aforesaid evidence for giving conviction against the
appellants in the present appeals.
58 Appeals 144, 151 158, 216, 306 of
76) The C.A. reports in respect of the clothes of
PW-2 is at Exhibit 189, the articles like clothes Salwar,
Odhani, Kurta. Covering letter dated 12-7-1994 is there.
On the article Salwar, blood mixed with semen stains was
found. Group of the blood of PW-2 is "A" and the stains
gave reaction for both "A" and "B" groups. C.A. report at
Exhibit 194 is in respect of carpet shown to be recovered
on the basis of statement given by accused No.6 and blood
group "B" was found on it. Though it was sent to C.A.
office on 11-8-1994 as this accused came to be arrested
late, the fact remains that there was blood on the carpet
which ought to have been explained by accused No.6.
Similarly, on the clothes of PW-1 like Salwar, Kurta,
jangiya human blood was found. Though it is true that she
was observing menses, as per CA report, on other article
like Kurta blood was found and this fact needs to be kept
in mind. The blood group of PW-2 is "B". These
circumstances give corroboration to the versions of PW-1
and PW-2.
59 Appeals 144, 151 158, 216, 306 of
77) The evidence and the record show that though
it transpired that accused Nos.6 and 7 were involved in
the incident of rape which took place in Shakti bungalow,
they were not available and they came to be arrested after
about one month. This circumstance also is not explained
by these accused persons.
78) Challenges of the accused to the aforesaid
evidence of the prosecution and other contentions of the
accused made during arguments of these matters are as
under :
CHALLENGES
(i) Both the victim girls did not disclose the incidents
immediately even when they had opportunity to disclose
the incidents to the persons in the vicinity and even to the
parents. They disclosed the incidents only when police
specifically made inquiry with them.
(ii) Both the victim girls gave different versions when
different police officers recorded the reports. Both the
victim girls did not narrate some of the incidents of rape
60 Appeals 144, 151 158, 216, 306 of
when they made first disclosure and then did not disclose
some incidents even when their statements were recorded
by the Judicial Magistrate under section 164 of the Cr.P.C.
(iii) The victim girls had left the shelter of their
guardians/parents on their own and so no offence of
kidnapping or abduction was committed by any of the
accused.
(iv) The evidence given by the prosecution on age is not
that convincing and the victim girls had probably crossed
the age of 16 years at the relevant time.
(v) There is probability that the victim girls were major
and they consented to the alleged acts of the accused.
(vi) The medical evidence is not that convincing and it
does not give corroboration to the versions of the
prosecutrix. Other circumstantial evidence like CA reports
also do not corroborate the case of the prosecution.
(vii) The evidence of T.I. parade cannot be relied upon as
the procedure laid down in Criminal Manual of this High
Court was not followed. The Executive Magistrate did not
61 Appeals 144, 151 158, 216, 306 of
act fairly and he arranged even second T.I. parade for
giving one more opportunity to the victim girls.
(viii) The evidence of the investigating officers shows that
the State was required to change the officers many times.
Their evidence creates probability that they were not fair
during conducting the investigation.
79) This Court is considering the aforesaid
challenges one by one. The first challenge regarding the
age of the victim girls needs to be considered first.
AGE OF THE VICTIM GIRLS.
80) The evidence of the prosecution on the age of
the victim girls needs to be considered first. The finding
on the age of the victim girls will help in deciding the
other points like the possibility of consideration of defence
of consent. Finding on the age of the victim girls will also
help in appreciating the evidence of the two girls in
entirety as the conduct and reaction of minor is ordinarily
different than the conduct and approach of an adult. The
evidence on the record shows that these two girls were in
62 Appeals 144, 151 158, 216, 306 of
distress as the financial condition of their parents/
guardians was not that good and they were feeling that
they had no prospects with their guardians/parents.
81) For proving the age of PW-1 the prosecution
has relied on the evidence of PW-1, the evidence of entry
in the birth register, the entry in the hospital where PW-1
was born, the evidence of opinion of doctor about age
which is on the basis of clinical and radiological
examination.
82) Learned Single Judge of this Court (one of us)
had occasion to consider the evidence which can be
available for proving the date of birth, the age of a person
and the importance of various kinds of evidence which can
be available for proving the date of birth or the age. In the
case reported as 2014(2) Mh.L.J. (Cri.) 353 (Mahesh vs.
State of Maharashtra) this Court has made following
observations on the basis of the observations made by the
Supreme Court in the case reported as AIR 1982 SC 1297,
Jaya Mala vs. Home Secretary, Government of Jammu and
Kashmir and others).
63 Appeals 144, 151 158, 216, 306 of
"13. 'Age' as ingredient of both the aforesaid offences
is required to be proved beyond reasonable doubt. This
'proved' under section 3 of Evidence Act need to be
proved like any other fact in criminal case. Oral
evidence as to the age may always be available in such
a case. Where a person gives evidence on oath, the
Court is expected to start with presumption that he has
spoken the truth. Only because in a case like present
one, when there is oral evidence on age and it is given
by the interested witnesses like mother or father, the
Court is expected to look for corroboration.
Corroboration need not be only of expert evidence.
Corroboration may be of circumstances which may
differ for each case. The opinion of doctor on clinical
or radiological examination cannot be accepted
straight way as a legal proof. The margin of error is of
two years on either side even when the age is
ascertained on the basis of radiological examination.
(Reliance placed on AIR 1982 SC 1297, Jaya Mala vs.
Home Secretary, Government of Jammu and Kashmir
and ors.]. It is only medical opinion and other evidence
including oral evidence cannot be discarded only
because the medical evidence is in conflict with the
oral evidence. Further, the medical evidence cannot
stand against entries made in birth register, which are
properly authenticated. Entry made in birth register
has presumptive value in view of section 17(2) of Birth
and Death Registration Act, 1969 and this position of
law needs to be kept in mind, when there is conflict
between medical evidence and the other evidence.
14. In view of section 35 of Evidence Act, the entry
made in school register about the date of birth also
needs to be treated as relevant. Such register is kept
in regular discharge of duty by school and it is
required to be kept as per the Rules made by the State
Government. When such entry was made before
starting of dispute, many years prior to the
commission of offence and when entry is proved by
giving oral evidence of the concerned, due weight
needs to be given to such entry. Such entries need to
be treated as relevant and admissible in evidence,
though such entry cannot form sole clinching factor for
determining the age. It has no presumptive value like
64 Appeals 144, 151 158, 216, 306 of
in the case of entry made in birth register as already
observed."
This Court is endorsing the view expressed by the learned
Single Judge in the case of Mahesh (cited supra).
83) PW-1 has given evidence that she was born at
Amarawati on 12-3-1979 but she received education in
Partur upto 5th standard. She has given evidence that one
Gangabhishan Mor was her grand father of parental side.
She has given name of her father as Rameshwar. She has
given evidence that her mother had informed to her the
date of birth. In the cross-examination of PW-1 it is
brought on record that Rekha is her elder sister and
Rekha was given in marriage about 1 and half years prior
to the date of incident. Her evidence shows that she was
daughter No.2 to her parents.
84) It is brought on record in the cross-examination
of PW-1 that she received eduction upto 4th standard in
Ganj school Partur and then she was admitted to other
school. It is brought on the record that when her
65 Appeals 144, 151 158, 216, 306 of
statement was recorded by police, she had not informed
the date of birth to police. It is already observed that the
mind set of such girls needs to be kept in mind at the time
of considering the discrepancies which can be there in the
disclosures made by them and the record which is
available. Further the record in respect of date of birth in
such cases has the precedence. It appears that PW-2 had
given age more than 16 years on different occasions to
police. Her evidence shows that she was frightened and
she did not want to inform the incident even to her
mother. The evidence on the record also shows that when
she was reached to Partur by a lady constable she did not
disclose the incident to her mother and she disclosed the
incident only when the report of PW-2 was recorded and
she was brought to Parbhani from Partur for the purpose
of investigation.
85) In the cross-examination, PW-1 has specifically
deposed that at the time of the incident her age was 15
years. In the cross-examination some questions were to
put to her in respect of her two sisters. Even if the
66 Appeals 144, 151 158, 216, 306 of
answers given by PW-1 to those questions are accepted as
they are, those answers have not created probability that
she had crossed the age of 16 years at the relevant time.
In any case, if there is a record of date of birth which has
presumptive value, that record needs to be given more
weight than the information supplied to police by the
victim girl like PW-1.
86) In the record of birth register initially the
surname of her parents was recorded as "Mor" and the
surname "Agrawal" was shown as other surname. PW-1 is
cross-examined at length to test as to whether she was
knowing the particulars of the family of her grandfather
from paternal side, Gangabhishan Mor @ Agrawal. She
successfully faced the test of cross-examination and she
gave the particulars of the family of Gangabhishan. Father
of PW-1 is dead though mother is alive. Mother of PW-1 is
not examined in Sessions Case No.139/1994. The record
shows that evidence of PW-1 is on the basis of information
supplied by mother and it can be said that it is also on the
basis of the record of her birth. She has received eduction
67 Appeals 144, 151 158, 216, 306 of
at least for some time and so it can be said that she can
give evidence about the birth date also.
87) Evidence of Krishnarao Choudhari (PW-15), one
employee of the hospital where PW-1 was born, is on the
basis of record of the hospital. If the evidence of PW-1 is
compared with the description of the parents given in the
register of the hospital, the description tallies. The record
shows that second daughter was born to Kirandevi
Rameshwar Mor (Agrawal), the mother of PW-1. Original
register was brought to the Court and it showed that it
was regularly maintained. As per the oral evidence and
the record, intimation of this birth was given by the
hospital to the local body, Amarawati Municipal
Corporation. In view of this check and the manner in
which the record was maintained, this Court has no
hesitation to observe that there was no possibility of
interpolation. There is only suggestion from defence that
surname Agrawal was added subsequently in the register.
68 Appeals 144, 151 158, 216, 306 of
88) Evidence of Dr. Rajkumar (PW-16), the officer
in-charge of the birth and death register of Amarawati
Municipal Corporation is there on the certificate of birth
issued in favour of PW-1. This register was also regularly
maintained. Names of father and mother mentioned in
the register of the issue tally with the names given in the
present matter. The entry was made on the basis of
information supplied by Dhapibai Maternity Home. In the
cross-examination of this witness it is brought on record
that in the original register there is one correction and
name of the hospital which was initially mentioned as
"Ji.Stri.Ru." was changed to make it as Dhapibai Maternity
Home. This change was not only for the present entry but
it was for many entries. Entries were made on the basis of
information given by Dhapibai Maternity Home at Sr.
Nos.2116 to 2124 and after correction these entries were
also made from Sr. Nos.2125 to 2131. The present entry is
shown at Sr. No.2131. Thus, the correction was made in
respect of many entries viz. 2125 to 2131 and it does not
look probable that for the present matter any
manipulation was done by the local body. In this register
69 Appeals 144, 151 158, 216, 306 of
the date of birth which was informed by the hospital was
recorded as 12-3-1979. Thus, at the relevant time, in July
1994, the age of PW-1 was below 16 years.
89) PW-2 has given evidence that her date of birth
is 1-7-1981. She has given evidence that she received
education in Lal Bahadur Shastri High School Partur till
6th Standard. Her evidence shows that she was kept in
Partur by her parents who are residents of Hiwarkheda
and so she was admitted in this school by her uncle living
there. Her evidence shows that prior to her admission in
Lal Bahadur Shastri High School she was receiving
education in Ganj school Partur. Even before police she
had given her age as 14 years. Her cross-examination
shows that when she was a kid, she was shifted to Partur.
She does not know even the particulars about her brother
and sister, what they are doing. Her evidence shows that
her parents visited Partur only twice after sending her to
Partur from Hiwarkheda. These circumstances show that
whatever happened to her was due to her poverty and
absence of care and protection of the parents.
70 Appeals 144, 151 158, 216, 306 of
90) The evidence of Kukde (PW-22), Headmaster of
Lal Bahadur Shastri High School Partur shows that it is on
the basis of the original admission form in respect of PW-
2. His evidence shows that Ganj school had given transfer
certificate and on that basis PW-2 was admitted in Lal
Bahadur Shastri High School. In the school register, on
the basis of transfer certificate and the date mentioned on
the admission form the date of birth was recorded as 10-3-
1981. Original register was brought to the Court and it
was found to be regularly maintained. Though Kukde (PW
22) could not say as to who had admitted PW-2 in the
school on the basis of the signature, there is evidence of
PW-2 that her uncle/guardian at Partur had admitted her
in the school. In view of nature of evidence and the record
there was no possibility of interpolation or manipulation.
This record is very old and it is relevant in view of
provision of section 35 of the Evidence Act.
91) In the evidence, Dr. Jaishri (PW-14) has given
approximate age of PW-2 as already quoted. There is no
reason for not accepting the opinion given by Dr. Jaishri in
71 Appeals 144, 151 158, 216, 306 of
view of the aforesaid record and the substantive evidence.
The medical evidence of the doctor of opinion is consistent
with the school record and the evidence of PW-1. No other
probability is created during cross-examination of this
witness. It is not even suggested to PW-2 that she was
studying in any other institution. At the cost of repetition
this Court feels it necessary to mention here that due to
the incidents in question, the parents and guardians of
PW-1 and PW-2 disowned them, they did not even turn up
to give evidence for the prosecution.
92) The provisions of Birth and Death Registration
Act, 1969 quoted already, and the provision of section 35
of the Evidence Act show that even without examining the
official, certified copy of entry made in the birth register
is admissible in evidence. Further, when there is such
record giving specific date of birth, such record needs to
be given precedence over the school record if there is
inconsistency between the two records. Similarly, the
opinion given by doctor on age if it is inconsistent,
ordinarily precedence needs to be given to the record of
72 Appeals 144, 151 158, 216, 306 of
birth date prepared under the aforesaid Act. In the
present matter, the medical evidence is also consistent
with this record and no probability is created in this
matter that age of PW-1 was more than 16 years at the
relevant time.
93) Evidence of Dr. Jaishri on opinion as expert
under section 45 of Evidence Act is challenged by
submitting that she is not Radiologist and the X-rays were
not taken by Radiologist. It was also argued that Dr.
Jaishri used a chart given by civil hospital for ascertaining
the age in which tests/data were given. There is no force
in both the challenges. Evidence of Dr. Jaishri shows that
under her instructions and supervision the X-rays were
taken by the technician. She has completed post graduate
course after completing MBBS. The trial Court has rightly
observed that the chart used by this witness has the basis
of the chart given in Modi's book on medical
jurisprudence in Edition 21. Thus, it cannot be said that
Dr. Jaishri committed error when she used the chart for
giving her opinion on the basis of radiological
73 Appeals 144, 151 158, 216, 306 of
examination. Evidence of Dr. Jaishri shows that no other
criteria or tests were confronted by showing the book of
another expert. Thus, no probability is created that the
opinion given by the doctor is not correct. To challenge
the evidence of expert like doctor the opinion of the other
expert needs to be confronted and then the matter needs
to be left to the court to decide the point. When the
opinion is based on some data and the Court is satisfied
with the opinion given by such expert, it becomes the
opinion of the Court. In view of these circumstances it is
not possible to interfere in the finding given by the trial
Court on the age of PW-1 and PW-2 which is to the effect
that both the victims had not completed 16 years of age at
the relevant time. This Court holds that the age of both
the victims was below 16 years at the relevant time.
94) Both the sides placed reliance on some
reported cases. In the case reported as (2011) 2 SCC 385
(Alamelu v. State), there was inconsistency in the opinion
given by the medical officer which was on clinical
examination and the opinion given by Radiologist. The
74 Appeals 144, 151 158, 216, 306 of
Radiologist had given higher age and the age was given
approximately. The Apex Court considered the possible
margin of error. Further the school record was not proved
properly. Thus, the facts of the reported case were
altogether different. Similarly, in the case reported as
(2016) 1 SCC 696 (State of M.P. v. Munna) the facts were
different. There was no record of birth register. Mother's
evidence on factual aspect was not found convincing and
the Court held that the opinion of the Radiologist was
necessary, which was not available.
95) In the case reported as (2010)1 SCC 742 (Sunil
v. State of Haryana) on which reliance was placed by the
counsel for the accused, the facts were different. The
prosecutrix was not certain about her age and there was
no record on the basis of which she had given age. In that
case the doctor had clinically examined the prosecutrix
and had sent the prosecutrix to Dental Surgeon/
Radiologist for verification but such verification was not
done. Thus, the doctor who had done clinical examination
was also not sure about the opinion which was possible on
75 Appeals 144, 151 158, 216, 306 of
the basis of clinical examination. In view of these
circumstances, the Apex Court held that the age of the
prosecutrix was not below 16 years. However, the Apex
Court made it clear that there is no rule as such that such
examination needs to be done in every case.
96) In the case reported as 2010 Cri.L.J. 192 (State
of H.P. v. Jarnail Singh) , in view of the facts and
circumstances of that case the school record and the
Panchayat record was not believed by the Court. The
learned Additional Public Prosecutor placed reliance on
the case reported as (2015) 7 SCC 773 (State of M.P. v
Anoop Singh). In this case the importance of the
documents in respect of date of birth is discussed by the
Apex Court. It is laid down by the Apex Court that such
record has the precedence over medical opinion. There
cannot be dispute over this proposition.
Evidence on wrongful confinement and abduction:
97) The evidence given by PW-1 and PW-2 against
accused No.4-Bhansing that he took them to his
76 Appeals 144, 151 158, 216, 306 of
residential quarters under pretext that he will supply
drinking water is consistent with each other. It can be said
that there could have been charge against accused No.4
for this incident also. There was intention of accused No.4
right from the beginning to commit the offence of rape by
exploiting the situation in which PW-1 and PW-2 were
found. Both these girls have given evidence that they were
kept in the railway quarters and the quarters was locked
from outside by accused No.4 and the key was handed
over to respondent No.5 Raju by accused No.4. The
evidence shows that accused No.5 did not allow them to
leave from the quarters when the key was with him. In
the noon time, accused No.4 returned to the quarters and
even after that they did not allow the two victim girls to
leave the railway quarters. Both the victim girls were kept
in the railway quarters and from there they were taken to
Shakti Bungalow by accused Nos.4 to 7 in the evening
time. This evidence is sufficient to prove that there was
wrongful confinement from accused Nos.4 and 5 of PW-1
and PW-2 and they committed offence punishable under
section 342 read with 34 of Indian Penal Code.
77 Appeals 144, 151 158, 216, 306 of
98) PW-1 and PW-2 have given evidence that after
returning to the railway quarters from the office, some
food items were supplied to them by accused No.4.
Accused No.4 then consumed liquor along with accused
No.5. PW-1 has given evidence that accused No.5
committed rape on her. PW-2 has given evidence that
accused No.4 committed rape on her. The trial Court has
considered some omissions in the first disclosure made by
the girls in respect of this incident and that point is being
discussed at later place. It can be said that accused Nos.4
and 5 both wanted to commit offence as both the victim
girls were available. Considering the intention of accused
Nos.4 and 5 and the fact that both girls were kept in the
railway quarters with that intention, this Court holds that
the act amounts to gang rape.
99) The evidence of PW-1 and PW-2 given on rape
committed on PW-2 in Shakti Bungalow is consistent with
each other. The evidence of these two girls shows that
after every incident they used to disclose about the
incident to each other as they had no other option. The
78 Appeals 144, 151 158, 216, 306 of
evidence shows that to Shakti Bungalow PW-1 and PW-2
were taken by accused Nos.4 and 5 in a vehicle and
accused Nos.6 and 7 had followed that vehicle up to
Shakti Bungalow. The evidence on the record shows that
accused Nos.6 and 7 were using that premises, Shakti
Bungalow. The very nature of the evidence given by PW-1
and PW-2 shows that it is accused Nos.4 and 5 who had
contacted accused No.6 and 7 and it was informed to
accused No.6 and 7 that these two victim girls were
available for commission of rape. The evidence of PW-2
shows that accused Nos.4 to 7 raped her one by one by
many hours on that night, till 3.00 a.m. Thus there is
specific evidence from PW-2 that in Shakti Bungalow
accused Nos.4 to 7 raped her one after other and they
committed offence of gang rape.
100) The record which is referred during cross-
examination of PW-1 and PW-2 by the defence counsels for
proving the inconsistencies in the versions of the PW-1
and PW-2, the omissions and the contradictions show that
the relevant portions were confronted to the witnesses
79 Appeals 144, 151 158, 216, 306 of
and on proof, the relevant portions are exhibited. Much
was argued on this circumstance by the learned Senior
Counsel and other counsels for the appellants. At the time
of considering these inconsistencies or omissions, it is
necessary to keep in mind in a case like the present one
that many police officers have recorded the statements of
PW-1 and PW-2 and many supplementary statements were
recorded by them. Even statements under section 164 of
the Cr.P.C. were recorded many times. It can be said that
the statements were recorded from 7-7-1994 till 29-7-
1994. PW-1 and PW-2 have made allegations against
investigating officer Khan (PW-18) that their versions
were not correctly and completely recorded by him. It
needs to be kept in mind that two girls are from very poor
families and there was no support of anybody to them at
the relevant time. Some accused persons from the two
cases were employees in Railway and some were involved
in politics. The evidence and the record is sufficient to
prove that the incidents did take place as disclosed by PW-
1 and PW-2 but the police officers recorded only some
instances when they recorded the statements and the
80 Appeals 144, 151 158, 216, 306 of
supplementary statements of PW-1 and PW-2. It can be
said that only the officer of C.I.D., who ultimately took
over the investigation, made an attempt to record the
statements in detail and those statements cover all the
incidents. Police officers acted as per their notions. Even,
the learned Judicial Magistrate did not record the
statements in respect of all the incidents and it can be
said that the learned Judicial Magistrate had not gone
through the record of the investigation already made by
police before recording the statements. When statement is
being recorded under section 164 of the Cr.P.C., it is the
duty of the learned Judicial Magistrate to ascertain the
nature of allegations, disclosures already made by the
witnesses and then elicit the information from the witness
by putting questions if they are missing something while
disclosing the incidents before him. It can be said that
most casual approach was used by the Judicial
Magistrates while recording statements under section 164
of the Cr.P.C. What is important in a criminal case like the
present one is the substantive evidence given by the
victim girls. Due to the existence of the circumstances like
81 Appeals 144, 151 158, 216, 306 of
above, the Court can look for corroboration but the Court
cannot discard the substantive evidence only due to the
existence of such circumstances. In the present case, the
accused persons were not known to PW-1 and PW-2
though a probability is created that PW-1 knew accused
No.4 Bhansing. This point is discussed afterwards. The
circumstance that the two victim girls did not know the
accused and only on the basis of disclosures made by
them the accused were traced and police went to the
various places where the incidents took place need to be
kept in mind while considering the defence of the
aforesaid nature of the accused.
101) It is true that in the initial disclosure, PW-1 had
not informed that she was raped by accused No.5 in the
railway quarters of accused No.4. PW-2 had not
specifically contended that accused No.4 had raped her in
his quarters though she had indirectly contended that
after making her to drink liquor, something was done
against her in the railway quarters by accused No.4.
There was contention that due to something which was
82 Appeals 144, 151 158, 216, 306 of
done against her (when she was under intoxication) she
had suffered pains in the private part. While ascertaining
the exact omissions in the evidence of the victim girl,
narrations of the victim girl before police in entirety need
to be considered and then the nature and extent of the
omission needs to be ascertained by the Courts.
102) PW-2 has given evidence on the rape committed
on her by accused Nos.4 to 7 in Shakti Bungalow. In that
regard also some omission is brought on record in the
previous statement about the actual act. In the previous
statement, PW-2 had stated before police that she was
feeling drowsy due to liquor but she was feeling that these
persons were doing something against her and she could
see that. What is said above, needs to be applied in
respect of this omission also. In the subsequent disclosure
made to police they had specifically contended that
accused No.4 had raped PW-2 and accused No.5 had
raped PW-1 in the railway quarters. PW-2 had disclosed
that she and PW-1 both were raped in Shakti bungalow
one by one by accused Nos.4 to 7 and it can be said that
83 Appeals 144, 151 158, 216, 306 of
to some extent there is inconsistency and even
contradiction in the evidence of PW-2 in relation to such
previous statement. PW-1 has deposed that as she was
observing menstruation period and that disclosed by her
to the accused, she was not raped in Shakti Bungalow.
While considering such inconsistencies, omissions and
contradictions the evidence as a whole needs to be
considered and the evidence as a whole shows that they
had named accused Nos.4 to 7 as the persons who had
exploited the situation, who had raped them at two places.
103) In the statements recorded under section 164,
Cr.P.C. of PW-2 there are some omissions and also
inconsistencies. If the evidence of PW-2 is compared with
the disclosures made to Judicial Magistrate on 29-7-1994
it can be said that in the statement dated 29-7-1994 these
witnesses did not disclose the incidents of Shakti
Bungalow. Necessary observations in respect of this
omissions are already made by this Court.
84 Appeals 144, 151 158, 216, 306 of
104) There is corroboration of medical evidence
given by Dr. Jaishri (PW-14) to the versions of PW-1 and
PW-2. PW-2 had recent tear of hymen. There were other
signs showing that there was sexual intercourse with
these two minor girls. Dr. Jaishri was extensively cross-
examined by the defence counsel on the opinion given by
her on the basis of her observations but she stood to the
test of the cross-examination. PW-1 was examined on 8-7-
1994 when PW-2 was examined on 7-7-1994. The last
incident as against PW-1 took place in the railway
quarters on 5-7-1994.
105) Dr. Jaishri (PW-14) has given evidence that she
found blood stains on the clothes and genital of PW-2.
Such things were there as from the railway quarters itself
on 7-7-1994 PW-2 was picked up and she was referred by
police for medical examination. PW-14 Jaishri noticed
bleeding through cervical OS. On PV examination,
speculum tenderness and vagina admitted one finger with
pains. The record of the examination of PW-2 is at Exhibit
79 and it is consistent with the oral evidence of the doctor.
85 Appeals 144, 151 158, 216, 306 of
106) Dr. Jaishri (PW-14) has given evidence that she
noticed posterior fourchette congested and redness and
she noticed that hymen was congested. She found that
vagina was admitting one finger with minimum pains,
bleeding through cervical was present. The record of the
examination is at Exhibit 79 and it is consistent with the
oral evidence.
107) Many persons had raped these two victim girls.
Though it is possible for the accused from the present
case to say that these two victim girls were raped already
in other incidents which had already taken place and so
the medical evidence cannot be used for the purpose of
corroboration in the present matter, that proposition could
not have been accepted by the trial Court. These persons
exploited the situation in which PW-1 and PW-2 had found
themselves and there are specific allegations against the
accused from the present matter. As the acts against PW-
2 were continued till 3.0 a.m. of 7-7-1994, there were
aforesaid signs of rape. Only due to the period expired,
living spermatozoa could not be noticed by the doctor.
86 Appeals 144, 151 158, 216, 306 of
This Court has no hesitation to hold that the medical
evidence gives corroboration to the ocular version of PW-1
and PW-2.
108) While considering the challenge to the
prosecution evidence on the ground of delay caused in
giving F.I.R. and on that ground it is very difficult to
ascertain as to which was the first statement given in
respect of the incident by PW 2, this Court holds that
whatever is said in respect of approach and conduct of
PW-1 and PW-2 already is applicable as explanation to the
delay caused in making the disclosure. To add few more
circumstances it can be said that these girls were new in
the city and they must have been shocked due to the
behavior of the accused persons with them and the things
which were done to them by many persons who included
some influential persons and some persons holding posts
in Government departments. Further, PW-1 has given
specific evidence that she did not want to disclose the
incident out of fear to anybody including to her mother.
They had left the shelter of their guardians without
87 Appeals 144, 151 158, 216, 306 of
informing anything to anybody and they must have guilty
feeling that they were responsible for whatever had
happened to them. It can be said that the first disclosure
of PW-2 was made only due to the inquiry made by police
specifically with her on 7-7-1994. If police had not
intervened, the girls would not have even approached
police on their own. Due to these circumstances, this
Court holds that not much can be made out due to delay
caused in disclosing the incidents to police. In such cases
due to delay caused in making disclosures, the Court can
scrutinize the evidence minutely but only on that ground
the Court cannot discard the substantive evidence.
109) In respect of the challenge to the evidence
given on T.I. parade it can be said that there is substance
in the contentions that there was no strict compliance of
the guidelines given in Criminal Manual in paragraph 16
of Chapter I by this Court. Number of dummies used by
Jadhav at the time of conducting T.I. parade were less
than the number expected in the guidelines. There is no
record to support the evidence of Jadhav that the dummy
88 Appeals 144, 151 158, 216, 306 of
persons had appearance which was similar to the accused
persons. However, the evidence of Jadhav shows that he
was satisfied about the identification of the accused
persons made by the two victim girls during T.I. parade.
110) Accused No.4 was identified by PW-1 though as
associate. PW-2 identified all the remaining accused in T.I.
parade. Though accused No.5 was not identified by PW-1,
he is identified by PW-2 and there is no reason to discard
the evidence of T.I. parade given as against accused No.5
by PW-2. These two girls were together. There is
possibility that PW-1 was misled at the time of
identification as, according to her, she was asked to
identify the associate and so she identified accused No.4.
Evidence of PW-1 shows that accused No.4 had not raped
her. Thus, the evidence of PW-2 on identification given as
against accused No.5 can be used in the present matter.
111) The trial Court has considered the CA reports
in respect of incriminating articles recovered during
investigation by police. Different police officers had taken
89 Appeals 144, 151 158, 216, 306 of
over different articles. The beds, the carpets were
recovered from the lodge, from the railway quarters of
accused No.4 and also on the basis of statement given by
accused No.6. Some stains of blood were found on those
articles as per the CA reports. Similarly, some stains of
blood were found on the clothes of some accused persons.
Accused Nos.6 and 7 came to be arrested after many days
though accused Nos.4 and 5 were arrested immediately.
Due to the circumstances of the present matter even if
this circumstantial evidence is ignored, there is more than
sufficient evidence against accused Nos.4 to 7 to hold
them guilty for the offences for which they were charged
and tried.
112) The prosecution has proved that both the victim
girls had not crossed the age of 16 years at the relevant
time. As per the old provision of section 375 IPC the age
for defence of consent which could have been considered
was 16 years. The learned counsel for the appellants have
placed reliance on some observations made by the Apex
Court in the case of S. Varadrajan v. State of Madras ,
90 Appeals 144, 151 158, 216, 306 of
reported as AIR 1965 SC 942. The observations were
made after interpreting the term "taking" used in section
361 of IPC. When there is a case of rape, the Court is not
expected to consider the defence of consent when the age
of the prosecutrix is below 16 years. The accused cannot
take defence that he was under impression that the
prosecutrix had crossed 16 years of age. Whenever such
incidents take place, Courts need to adhere strictly to the
provisions of law and the Court needs to go with the
presumption that it was up to the accused to take decision
and if he takes the risk, he should be ready to face the
penalty. Thus the defence of consent is not available to
any of the accused from the present appeals. The tenor of
the cross-examination made by learned counsels of the
accused show that indirectly it was suggested that the
prosecutrix was the consenting party. It was also
suggested that the prosecutrix did not resist or did not
raise hue an cry when the offence was taking place. It is
already observed that the accused persons were not
known to both PW-1 and PW-2 though by referring to
previous statement of PW-2 the defence tried to show that
91 Appeals 144, 151 158, 216, 306 of
probably PW-1 had initial talk with accused No.4 before
going to his railway quarters. The circumstance that PW-1
had disclosed that she had girl friend at that place or
probability that she knew accused No.4 cannot make
difference in the present matter. This is because the first
disclosure about the incident was made by PW-2 and not
by PW-1. Admittedly PW-2 was not acquainted with any of
the accused and it is due to the information supplied by
her the police traced accused persons. There was no
reason for PW-1 and PW-2 to falsely implicate accused
Nos.4 to 7. These circumstances show that there is ring of
truth in the versions given by PW-1 and PW-2. Further,
the evidence of the investigating officer does not show
that at any time they treated PW-1 as an accused person.
The evidence given by her is already discussed and it
shows that she was also raped. Thus, there was no
question of giving of consent by PW-1 and PW-2.
113) Some argument was advanced by the counsels
for the accused on the circumstance that Sham Agrawal, a
person from Parbhani who is relative of PW-1 was not
92 Appeals 144, 151 158, 216, 306 of
traced. This lacunae is not that material as tracing of said
Agrawal would not have made difference in the present
matter. Even if it is presumed that the girls had left the
shelter of their guardians on their own, they had no such
relative in Parbhani, that cannot make difference in the
case of the prosecution. The fact remains that the accused
persons exploited the situation in which PW-1 and PW-2
found themselves in Parbhani.
114) The learned Senior Counsel for the accused
placed reliance on some observations made by Apex Court
in the case reported as (2003) 1 SCC 240 (Sarwan Singh
v. State of Punjab). While discussing the provision of
section 9 of the Evidence Act, the requirement of test
identification in a case when the accused are not known to
the witnesses, the Apex Court has laid down that
identification of the accused in such a case first time in
Court may not become admissible and in such case the
Court may expect corroboration of evidence of T.I. parade.
However, the Apex Court has not laid down a rule that in
each and every case there should be corroborative
93 Appeals 144, 151 158, 216, 306 of
evidence of T.I. parade. In para 16 of this case the Apex
Court has quoted some observations made by the Apex
Court in the case of Budhsen v. State of U.P. reported as
(1970) 2 SCC 128 and the observations are as under :
"7. . . . The evidence in order to carry conviction
should ordinarily clarify as to how and under what
circumstances he came to pick out the particular
accused person and the details of the part which the
accused played in the crime in question with
reasonable particularity. The purpose of a prior test
identification, therefore, seems to be to test and
strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to them, in the form of
earlier identification proceeding. There may, however,
be exceptions to this general rule, when for example,
the court is impressed by a particular witness, on
whose testimony it can safely rely, without such or
other corroboration. The identification parades belong
to the investigation stage. They are generally held
during the course of investigation with the primary
object of enabling the witnesses to identify persons
concerned in the offence, who were not previously
known to them. This serves to satisfy the investigating
officers of the bona fides of the prosecution witnesses
and also to furnish evidence to corroborate their
testimony in court. Identification proceedings in their
legal effect amount simply to this: that certain
persons are brought to jail or some other place and
make statements either express or implied that
certain individuals whom they point out are persons
whom they recognise as having been concerned in the
crime. They do not constitute substantive evidence.
These parades are essentially governed by Section
162 of the Criminal Procedure Code."
94 Appeals 144, 151 158, 216, 306 of
Thus the purpose of T.I. parade is given by the Apex Court.
There is no rule of law showing that if the guidelines given
for T.I. parade are not followed strictly, the evidence of
T.I. parade is not admissible. This Court holds that in the
present matter also the evidence of T.I. parade needs to
be considered as a piece of corroborative evidence.
Further it is a case of rape where the victim girls had
opportunity to observe the accused closely and due to this
circumstance what can be said in other cases like case of
murder etc. cannot be said in a case of rape.
115) The learned Senior Counsel for the accused
persons placed reliance on a case reported as AIR 1957
SC 614(1) (Vadivelu Thevar v. The State of Madras) on
the point of appreciation of evidence. Some more cases
were cited like (2007) 2 SCC 170 (Ramdas v. State of
Maharashtra). At para 13 of the first case following
observations are made by the Hon'ble Apex Court :
"13. . . . . The first question which the court has to
consider in a case like this, is whether the accused
has been proved, to the satisfaction of the court, to
have committed the crime. If the court is convinced
about the truth of the prosecution story, conviction
95 Appeals 144, 151 158, 216, 306 of
has to follow. The question of sentence has to be
determined, not with reference to the volume or
character of the evidence adduced by the
prosecution in support of the prosecution
case. . . . . "
In the second case the Apex Court has considered the
defences like delay caused in filing F.I.R. and also the
circumstance where there is the sole testimony of the
prosecutrix. It is observed by the Apex Court that delay
has to be considered in the background of the facts and
circumstances of each case and it is a matter of
appreciation of evidence by the Court. It is further laid
down that conviction on the basis of sole testimony of the
prosecutrix is sustainable where the Court is convinced
about the truthfulness of the prosecutrix and where there
is no circumstance which casts a shadow of doubt over
her veracity. There cannot be dispute over these
propositions. It is further laid down that, however, similar
the circumstances, facts of one case cannot be used as a
precedent to determine the conclusion on the facts in
other. There cannot be dispute over this proposition also.
96 Appeals 144, 151 158, 216, 306 of
116) The learned Additional Public Prosecutor has
placed reliance on the case reported as 2010 ALL MR
(Cri) 3326 (S.C.) (Vijay @ Chinee vs. State of M.P.) . In this
case, the Apex Court has laid down that the evidence
under section 3 of the Evidence Act of a witness needs to
be appreciated after considering it as a whole. Minor
discrepancies on trivial matters, which do not affect the
core of the prosecution case, should not be taken into
consideration and they cannot form grounds to reject the
evidence as a whole. There cannot be dispute over this
proposition also. The Apex Court has further laid down
that the circumstance of non resistance on the part of the
prosecutrix because of fear and conduct of the prosecutrix
cannot be held to be unnatural and that conduct would not
amount to consent. The circumstances that the
prosecutrix did not know the accused prior to the incident
and she had no reason to enrope the accused falsely need
to be kept in mind and the circumstances that the
evidence on the places where the incidents occurred is
convincing also needs to be kept in mind by the Court in
such cases at the time of appreciation of the evidence of
97 Appeals 144, 151 158, 216, 306 of
the prosecutrix. This Court has considered the law laid
down in the cases cited supra while appreciating the
evidence of the two victim girls and this Court has come
to the conclusion that there is no reason to disbelieve the
two victim girls.
117) The learned Senior Counsel for the accused
persons placed reliance on a landmark case reported as
AIR 1959 SC 1012 (Tahsildar Sing v. State of U.P.) . The
learned Senior Counsel submitted that due to variations in
the versions given to the police from time to time and the
omissions and contradictions proved by the defence in
relation to the previous statements, the two victim girls
could not have been believed. The Apex Court has made
observations in this regard at paragraphs 11 and 12 and
they are as under.
"11. It is, therefore, seen that the object of the
legislature throughout has been to exclude the
statement of a witness made before the police
during the investigation from being made use of
at the trial for any purpose, and the amendments
made from time to time were only intended to
make clear the said object and to dispel the cloud
cast on such intention. The Act of 1898 for the
first time introduced an exception enabling the
said statement reduced to writing to be used for
98 Appeals 144, 151 158, 216, 306 of
impeaching the credit of the witness in the
manner provided by the Evidence Act. As the
phraseology of the exception lent scope to defeat
the purpose of the legislature, by the Amendment
Act of 1923, the section was redrafted defining
the limits of the exception with precision so as to
confine it only to contradict the witness in the
manner provided under section 145 of the
Evidence Act. If one could guess the intention of
the legislature in framing the section in the
manner it did in 1923, it would be apparent that
it was to protect the accused against the user of
the statements of witnesses made before the
police during investigation at the trial
presumably on the assumption that the said
statements were not made under circumstances
inspiring confidence. Both the section and the
proviso intended to serve primarily the same
purpose i.e. the interest of the accused.
12. Braund J., in Emperor v. Aftab Mohd. Khan, AIR
1940 All 291, gave the purpose of S.162 thus at
p.299:
"As it seems to us it is to protect accused
persons from being prejudiced by statements
made to police officers who by reason of the
fact that an investigation is known to be on foot
at the time the statement is made, may be in a
position to influence the maker of it and, on the
other hand, to protect accused persons from the
prejudice at the hands of persons who in the
knowledge that an investigation has already
started. are prepared to tell untruths:.
A division Bench of the Nagpur High Court in
Baliram Tikaram v. Emperor, AIR 1945 Nag 1,
expressed a similar idea in regard to the object
underlying the section, at p.5, thus :
"The object of the section is to protect the
99 Appeals 144, 151 158, 216, 306 of
accused both against over-zealous police
officers and untruthful witnesses.:
The Judicial Committee in Pakala Narayana Swami v.
Emperor, 66 Ind App. 66 : (AIR 1949 PC 47), found
another object underlying the section when they said
at p.78 (of 1nd App) : (at p.51 of AIR):
"If one had to guess at the intention of the
Legislature in framing a section in the words
used, one would suppose that they had in mind
to encourage the free disclosure of information
or to protect the person making the statement
from a supposed unreality of police testimony
as to alleged statements or both."
Section 162 with its proviso, if construed in a manner
which we will indicate at the late stage of the
judgment, dearly achieves the said objects."
118) There is no dispute over the propositions made
in the aforesaid case by the Apex Court. When the
investigating agency does not act competently or there
are other reasons and the Court finds that the substantive
evidence given by the victim in a rape case, is in respect
of many incidents and some of the incidents were not
recorded in the first recorded disclosure which was either
recorded under section 154 or section 162 of the Cr.P.C., it
becomes the duty of the Court to consider all surrounding
circumstances. The circumstance that the disclosures
100 Appeals 144, 151 158, 216, 306 of
were made many times to many police officers needs to be
kept in mind. The circumstance that it is the case of gang
rape and the prosecutrix must have been in shock needs
to be kept in mind by the Court. The circumstance that in
respect of every incident of rape separate registration of
the crime is possible under section 154 of the Cr.P.C.
needs to be kept in mind and crime can be registered in
respect of every disclosure made in respect of cognizable
offence. When two or more victim girls are involved in a
case like the present one, this circumstance also needs to
be kept in mind by the Court. It is practically not possible
that two victim girls will give similar versions on all the
incidents when their statements are recorded by different
police officers. In view of the provision of Section 154
Cr.P.C., the so called omissions or contradictions need to
be ascertained in relation to the first disclosure made in
respect of that incident only by the Court. If the Court is
satisfied that the incident which does not find place in the
first disclosure, was disclosed in the subsequent
statement and the Court is convinced that the other
incident which was disclosed in the subsequent disclosure
101 Appeals 144, 151 158, 216, 306 of
did take place, the Court cannot hold that the omission of
such incident in the first disclosure is fatal and the
substantive evidence in respect of that incident needs to
be discarded. What is said about Section 154 Cr,.P.C. can
be said in respect of Section 162 of the Cr.P.C. also and
when the Court is satisfied that the incident disclosed in
the subsequent statement recorded under section 162 of
Cr.P.C. did take place, not much can be made out from the
circumstance that the first disclosure which was recorded
either under section 154 or 162 Cr.P.C., such incident was
not disclosed. The procedure laid down for proving
contradictions and omissions with reference to section
145 of the Evidence Act as given by the Hon'ble Apex
Court in the case of Tahsildar Sing (cited supra) needs to
be followed in respect of each incident and in relation to
the disclosure made about that incident first time before
the police or even under section 164 of the Cr.P.C. If that
is not done the purpose behind the provisions of Sections
154 and 164 of Cr.P.C. will be defeated. If that is done,
the purpose of provision of section 162 of the Cr.P.C.
mentioned above will get served.
102 Appeals 144, 151 158, 216, 306 of
119) In the case reported as (1999)2 SCC 126 (Paras
Yadav v. State of Bihar) the Apex Court has discussed the
effect of such omissions in the F.I.R. due to investigating
agency and the procedure which is required to be
followed by the Court. The Apex Court used the
observations made by it in the past in the case of Ram
Bihari Yadav v. State of Bihar reported as (1998) 4 SCC
517. The observations are as under:
"In such cases, the story of the prosecution will have
to be examined dehors such omissions and
contaminated conduct of the officials otherwise the
mischief which was deliberately done would be
perpetuated and justice would be denied to the
complainant party and this would obviously shake
the confidence of the people not merely in the law-
enforcing agency but also in the administration of
justice."
The law laid down by the Apex Court in this reported case
is considered by this Court while making the aforesaid
observations.
120) The learned Senior Counsel for the accused
persons placed reliance on another case reported as AIR
1960 SC 490(1) (State of Delhi v. Shri Ram Lohia) . This
103 Appeals 144, 151 158, 216, 306 of
case is on the point of use of statement recorded under
section 164 of the Cr.P.C. It is laid down that the contents
of such statement cannot be used as substantive evidence.
There is no dispute over this proposition. In the case
reported as AIR 2013 SC 651 (R. Shaji v. State of Kerala)
the Apex Court has made following observations with
regard to duty of the Magistrate who is recording
statement under section 164 of the Cr.P.C. and the
observations are as under :-
"In a case where the Magistrate has to perform the
duty of recording a statement under S.164 Cr.P.C.,
he is under an obligation to elicit all informations
which the witness wishes to disclose, as a witness
who may be an illiterate, rustic villager may not be
aware of the purpose for which he has been brought,
and what he must disclose in his statements under
S.164 Cr.P.C. Hence, the Magistrate should ask the
witness explanatory questions and obtain all
possible information in relation to the said case.
So far as the statement of witnesses recorded under
S.164 is concerned, the object is twofold; in the first
place, to deter the witness from changing his stand
by denying the contents of the his previously
recorded statement, and secondly, to tide over
immunity from prosecution by the witness under
S.164. Statement recorded under S.164 Cr.P.C., can
be relied upon for the purpose of corroboration of
statements made by witnesses in the Committal
Court or even to contradict the same."
104 Appeals 144, 151 158, 216, 306 of
In view of the aforesaid observations and the object
behind provision of section 164 Cr.P.C. the circumstance
that some incidents were not mentioned by the victim girl
in the statement recorded under section 164 Cr.P.C.
cannot make much difference and that circumstance
cannot give benefit to the accused if the Court is satisfied
that the other incidents which were not mentioned in the
statement under section 164 Cr.P.C. did take place.
121) The learned Senior Counsel for the accused
placed reliance on another case reported as (2007) 3 SCC
755 (State of Goa v. Sanjay Thakran) and it is on the point
of evidentiary value of the test identification parade. The
procedure which needs to be followed for conducting test
identification parade is also discussed. In that case, the
Courts below had declined to place reliance on the
evidence of test identification parade due to the
circumstances of that case. The Apex Court has held that
the Courts below had not committed error in rejecting
that evidence. That was done in view of the facts and
circumstances of that case. Husband and wife were
105 Appeals 144, 151 158, 216, 306 of
involved as offenders and they were placed in the same
test identification parade with six dummy for each. The
Court had held that this was contrary to the provision of
paragraph 16(2)(h) of the Criminal Manual of Bombay
High Court and the Courts below had rightly rejected this
evidence. It was held that the officers who conducted the
test identification parade did not act fairly. It was held
that it was necessary in that case to hold two separate test
identification parades by using different persons for each
parade. It was case filed for offences punishable under
sections 302, 392, 120-B, 34 etc. of Indian Penal Code.
122) On the point of evidentiary value of the test
identification parade, the learned APP had placed reliance
on the observations made by the Apex Court in the case
reported as (2000) 1 SCC 471 (State of Maharashtra v.
Suresh). The Apex Court has made observation as under :
"Identification parades are not primarily meant for the
court. They are meant for investigation purposes. the
object of conducting a test identification parade is
twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is
really the one who was seen by them in connection
106 Appeals 144, 151 158, 216, 306 of
with the commission of the crime. Second is to satisfy
the investigating authorities that the suspect is the
real person whom the witnesses had seen in
connection with the said occurrence. So the officer
conducting the test identification parade should
ensure that the said object of the parade is achieved.
If he permits dilution of the modality to be followed in
a parade, he should see to it that such relaxation
would not impair the purpose for which the parade is
held. The safeguards adopted in this case by the
Executive Magistrate were quite sufficient for
ensuring that the parade was conducted in a
reasonably foolproof manner."
The observations made by the Apex Court in the case
cited supra show that facts and circumstances of each and
every criminal case are always different and in one case in
view of the facts of that case the Court may be inclined to
hold that the evidence is reliable and it can be used as a
corroborative piece of evidence but in other case the
Court may not come to that conclusion. Further, peculiar
circumstances in the case of rape or gang rape need to be
kept in mind by the Court at the time of appreciation of
such evidence. In murder case the witnesses may not
have that opportunity to see the assailants from close
distance or for longtime. When there is rape or gang rape,
the victim girl had always the opportunity to see the
accused from close distance and it is very difficult for
107 Appeals 144, 151 158, 216, 306 of
such victim girl to forget such person. In view of the
object behind the test identification parade the
satisfaction of the officer who conducted test
identification parade about capacity of the witness to
identify the offender is important. Further at the end, on
the basis of the substantive evidence of such witness and
other evidence which can be used as check and counter
check the Court decides the matter. Thus, not much can
be made out of the irregularity pointed out in the
procedure followed in the present matter for conducting
the test identification parades.
123) The learned counsel for the accused persons
placed reliance on two reported cases viz. (2006) 10 SCC
92 (Sadashiv Ramrao Hadbe v. State of Maharashtra) and
1970 (3) SCC 21 (Ram Murti v. State of Haryana) . On the
basis of the observations made in these two cases it was
submitted that the medical evidence does not corroborate
the versions of the victim girls and so the evidence of the
victim girls needs to be rejected. The proposition in
respect of ratio decidendi in criminal case made by the
Apex Court is already quoted. In each and every case it is
108 Appeals 144, 151 158, 216, 306 of
upto the Court to decide as to whether the medical
evidence gives corroboration or it is inconsistent with
the ocular versions of the victim girls. This Court has
considered all the aspects in respect of the medical
evidence in relation to the facts of the present mater and
this Court has formed opinion that the medical evidence
needs to be accepted as the piece of corroborative
evidence.
124) The learned Senior counsel for the accused
placed reliance on some observations made by this Court
in the case reported as 1998(2) Mh.L.J. 64 (Milind
Ambadas v. State of Maharashtra) . This Court had
occasion to discuss the provision of section 376(2)(g) of
Indian Penal Code. This Court has mentioned the
necessary ingredients for proving this offence like
common intention, concerted meeting of mind of more
than one person. There is no dispute over this proposition
made by this Court in this case also. The provision of
section 376(2)(g) which was applicable at the relevant
time is as under:
109 Appeals 144, 151 158, 216, 306 of
"376(2) Whoever,
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be
for life and shall also be liable to fine.
Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term
of less than ten years.
Explanation 1.-- Where a woman is raped by one or more
in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to
have committed gang rape within the meaning of this sub-
section.
Explanation 2.-- "Women's or children's institution" means
an institution, whether called an orphanage or a home for
neglected women or children or a widow's home or by any
other name, which is established and maintained for the
reception and care of women or children.
Explanation 3.-- "Hospital" means the precincts of the
hospital and includes the precincts of any institution for
the reception and treatment of persons during
convalescence or of persons requiring medical attention
or rehabilitation."
On this point the latest case of the Apex Court decided in
the case reported as AIR 2017 SC 2161 (Mukesh v. State
for NCT of Delhi) can be quoted. The Apex Court has laid
down that if there is evidence that more than one accused
were involved in the offence and they were together
having common intention as mentioned in the aforesaid
provision, all the accused can be held guilty even if only
110 Appeals 144, 151 158, 216, 306 of
one or more of them had committed the rape. This
ingredient is considered by the trial Court also. In view of
this position of law, not much can be made out due to so
called omissions in the previous disclosure of PW 1 in
relation to the incidents of railway quarters of accused
No.4. In this landmark case the Apex Court has laid down
that dock identification by the prosecutrix can be
accepted as reliable identification in the case of gang
rape.
125) The discussion of the facts and circumstances
of the present matter and the position of law discussed
above, show that the trial Court has not committed any
error in holding the present accused person guilty of the
offence of gang rape and also of the other offences. This
Court sees no reason to interfere in the findings of the
trial Court.
126) The learned Additional Public Prosecutor
argued for enhancement of the sentence. Relevant
provision is already quoted. Relevant facts and
111 Appeals 144, 151 158, 216, 306 of
circumstances of the present matter are quoted and they
show that there symptoms of rape on the private part but
no other injuries were found on the person of PW-1 and
PW-2. They have given evidence that they were supplied
with food. This Court has already observed that the
accused persons exploited the situations in which the PW-
1 and PW-2 had put themselves. The evidence does hot
show that much violence was done like assaulting the PW-
1 and PW-2. On the other hand, PW-1 admitted that in
Shakti Bungalow when she disclosed that she was
observing menstruation accused Nos.4 to 7 did not rape
her. Due to these circumstances this Court holds that it
not a case where penalty of life imprisonment is
warranted. This Court holds that the penalty given by the
trial Court is just and proper and interference on that
point is also not possible. In the result, all the appeals
stand dismissed. The appellants-accused to surrender to
bail bonds for undergoing sentence.
Sd/- Sd/-
(S.M. GAVHANE, J.) ( T.V. NALAWADE, J.)
rsl
112 Appeals 144, 151 158, 216, 306 of
127) Learned Advocate Shri. H.F. Pawar was
appointed for the appellant in Criminal Appeal No.216 of
1999. His fees is quantified at Rs.5000/- (Rupees Five
Thousand only).
128) Learned Senior Counsel requests for giving
time to surrender. This being appellate Court, giving time
to surrender would amount to give stay to the substantive
sentence. So, the prayer is rejected.
Sd/- Sd/-
(S.M. GAVHANE, J.) ( T.V. NALAWADE, J.)
