Bombay High Court
Karunanand S/O Ramesh Moon vs State Of Mah. Through A.C.P. Ajni ... on 17 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 79 OF 2018
Nitin Pritam Bairisal
Aged about 28 years, Occu. Labour, .. APPELLANT
R/o Dhobi Chawl, TB Ward, Nagpur
Versus
State of Maharashtra,
Through Police Station Officer, .. RESPONDENT
Imamwada Police Station, Nagpur
Mr. M.N. Ali, Advocate for appellant
Mr. T.A. Mirza, A.P.P. for respondent
WITH
CRIMINAL APPEAL NO. 38 OF 2019
Ganesh S/o Ramdas Satpute
Aged 25 years, Occ. Labour,
.. APPELLANT
R/o T.B. Ward Servant Quarters, Nagpur
(Presently Central Prison At Nagpur)
Versus
The State of Maharashtra
Through A.C.P. Ajni Division, Police .. RESPONDENT
Station, Imamwada, Nagpur
Mr. C.R. Thakur, Advocate for appellant
Mr. T.A. Mirza, A.P.P. for respondent
WITH
CRIMINAL APPEAL NO. 419 OF 2018
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Cri.appeal-79-2018-J.odt
Karunanand S/o Ramesh Moon,
Aged about 27 years, Occ. Labour,
.. APPELLANT
R/o Behind Ashok Buddha Vihar, Nagpur
(Presently Central Prison At Nagpur)
Versus
The State of Maharashtra
Through A.C.P. Ajni Division, Police .. RESPONDENT
Station Imamwada, Nagpur
Mr. C.R. Thakur, Advocate for appellant
Mr. T.A. Mirza, A.P.P. for respondent
WITH
CRIMINAL APPEAL NO. 323 OF 2021
Rohit s/o Sanjay Tambe
Aged about 25 years,
Occupation : Labour, .. APPELLANT
R/o T.B. Ward Quarter No. 6/11,
District : Nagpur
Versus
State of Maharashtra
Through ACP Ajni Division, Imamwada .. RESPONDENT
Police Station, Nagpur
Mr. P.W. Mirza, Advocate appointed for appellant
Mr. T.A. Mirza, A.P.P. for respondent
CORAM: V.M. DESHPANDE, &
AMIT B. BORKAR, JJ.
DATE : 17/09/2021
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JUDGMENT : (Per : Amit B. Borkar, J.)
Four persons namely Ganesh S/o Ramdas Satpute,
Karunanand S/o Ramesh Moon, Rohit S/o Sanjay Tambe and
Nitin Pritam Bairisal, were tried by the Special Judge, M.C.O.C.,
Nagpur for offences punishable under Sections 376(2)(g), 377,
341, 323, 394, 504 and 506-B read with Section 34 of the
Indian Penal Code (IPC), Section 3 punishable under Section 4
of the Protection of Children from Sexual Offences Act, 2012
(POSCO Act) and Section 3 (1)(i) of the Maharashtra Control of
Organized Crime Act (M.C.O.C. Act). Vide a judgment and order
dated 27/12/2017, the learned Special Judge (M.C.O.C.) and
Additional Sessions Judge - 5, Nagpur convicted and sentenced
them in the manner stated hereinafter;
i. All four accused are sentenced to undergo rigorous
imprisonment for remainder of their natural life and to
pay fine of Rs.10,000/-, in default to suffer simple
imprisonment for one year for offences under Section
376(D) of IPC.
ii. For offence punishable under Section 4 of the POSCO Act,
all four were sentenced to undergo rigorous imprisonment
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for life and to pay fine of Rs.10,000/-, in default to
undergo simple imprisonment for one year;
iii. For offence under Section 506-B of IPC, all four were
directed to undergo rigorous imprisonment for three years
and to pay fine of Rs.1000/- and in default to suffer
simple imprisonment for one month;
iv. Under Section 341 of IPC, accused No.1 to 3 were
directed to undergo simple imprisonment for one month
and to pay fine of Rs.1000/- and in default to suffer
simple imprisonment for 15 days
v. Under Section 323 of IPC, accused No.1 to 3 were
directed to undergo simple imprisonment for six months
and to pay fine of Rs.1000/- and in default to suffer
simple imprisonment for one month.
The Sessions Court acquitted them for offences
under Sections 377, 504, 394 read with Section 34 of the IPC
and also under Sections 3 and 3(4) of the M.C.O.C Act.
Accused No.4 Nitin was acquitted for offences punishable under
Sections 341 and 323 of the IPC.
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2. Aggrieved by the said judgment and order
appellants - Nitin Pritam Bairisal filed Criminal Appeal
No.79/2018, Karunanand S/o Ramesh Moon filed Criminal
Appeal No. 419/2018, Ganesh S/o Ramdas Satpute filed
Criminal Appeal No. 38/2019 and Rohit S/o Sanjay Tambe filed
Criminal Appeal No.323/2021 in this Court. Since all these
appeals arise out of common factual matrix and the impugned
judgment, we are disposing them by one judgment.
3. The prosecution case, in short, is as under :
The victim / informant along with her friend PW 2,
who was on his bicycle were returning from her work towards
her house via T.B. Ward on 24/05/2015. The accused persons
intercepted them near T.B. Ward. The accused persons beat the
victim and her friend PW 2, with the result PW 2 left the spot.
After PW 2 left the spot, the accused persons took the informant
/ victim in the shrubs near the rivulets and forcibly committed
sexual intercourse as well as carnal intercourse with the
informant / victim. The accused persons threatened the victim
not to disclose the incident to anybody else they will kill her
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and her parents. The accused persons dropped her at some
distance and fled away from the spot. The victim was afraid.
The victim reached her house at around 11:00 to 11:30 p.m.
She disclosed the incident to her mother. Her parents along with
the victim went to Police Station Imamwada and narrated the
incident to police. The victim was sent for medical examination
after her report was recorded. The victim was medically
examined by Dr. Pratik Sahdeo Gilbe along with Dr. Ashwin
Sontakke on 25/05/2015 at 7:30 a.m. They found following
injuries on the body of the victim.
"i] Crecentric abrasion over dorsum of left
hand at the base of thumb of size 1 Cm. X 0.1 Cm.
reddish in colour, swelling present, simple. The
injuries were fresh and age was between 8 to 24
hours.
ii] Linear abrasion over left waist on lower
outer quadrant oblique ad-measuring 4 X 0.2 CM.,
Reddish in colour, simple, fresh and age of injury
between 8 to 24 hours.
iii] Abrasion over left lumbar region, ad-
measuring 2 X 1.5 Cm. Reddish in colour, swelling
present, simple, fresh and age of injury was
between 8 to 24 hours.
On local examination, pubic hairs
sparse and stained with blood clots. Labai majora
and minora were normal with blood clot,
adherent. Clitoris normal. Vagina was reddish
inflamed with blood clots adherent. Hymen
present, edges inflamed, bleeding present, oedema
present. Position of hymen tears at 12,3 and 6 'O'
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clock position. On P.S. examination vagina reddish
and inflamed, cervix normal, bleeding present,
oral cavity normal, victim complained of pain in
neck region."
The Duty Officer sent the police party for search of
the accused persons. The police brought three accused persons.
The police seized and sealed clothes of the victim found on her
person. Since the victim was aged about 17 years at the time of
the incident, offence under Section 3 punishable under Section
4 of the POSCO Act was also registered along with offences
under Sections 376(2)(g), 323, 504, 506-B of the IPC were
registered.
4. The investigating agency while carrying out
investigation found that the accused No.1 Ganesh had formed
organized crime syndicate and had committed various offences
for pecuniary gain and more than one charge-sheet had been
filed against him and other members of the gang within period
of 10 years and therefore, offences under Sections 3(1)(i) of the
M.C.O.C. Act was also registered. Shital Hirode (PW 10) carried
out part of the investigation and Dhanaji s/o Bhagwan Shingade
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(PW12) carried out remaining part of the investigation. The
Investigating Officer after completion of investigation submitted
charge-sheet.
5. The learned Special Judge framed charges on the
grounds stated in paragraph No.1 of the judgment. The accused
pleaded not guilty to the charges and claimed to be tried.
6. In the trial Court, the prosecution examined as
many as 18 witlessness. In defence, no witness was examined.
The learned Trial Judge believed the evidence adduced by the
prosecution and convicted and sentenced them in the manner
stated in paragraph No.1 above.
7. Hence, these appeals.
8. We have heard Mr. M.N. Ali, learned Advocate for
the appellant in Criminal Appeal No. 79/2018, Mr. C.R. Thakur,
learned Advocate for appellant in Criminal Appeal No. 38/2019,
Mr. Parwez Mirza, learned Advocate appointed for the appellant
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in Criminal Appeal No. 323/2021 and Mr. C.R. Thakur, learned
Advocate for appellant in Criminal Appeal No. 419/2018, Mr.
T.A. Mirza, learned Additional Public Prosecutor for the
respondent / State in all appeals.
9. We have gone through the depositions of
prosecution witnesses; material exhibits tendered and proved by
the prosecution; statements of appellants recorded under
Section 313 of the Code of Criminal Procedure (Cr.P.C.) and the
impugned judgment and order and after giving our due
deliberation to the matter, we are constrained to observe that
we do not find any substance in these appeals.
10. The crucial evidence in the instant case is of the
victim (identity withheld) (PW1). In short, she stated that on
the date of the incident at about 7:30 p.m. when she was
returning to her house, she met her friend PW 2 (identity
withheld) at Krida Chowk, who was on bicycle. The victim
along with PW 2 started proceeding towards her house. While
passing T.B. Ward three boys intercepted them. She had given
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description and clothing of all three accused persons. She
identified the accused persons, who intercepted them. They
caused PW 2 to leave the spot and after PW 2 left the spot, they
took her in shrubs near rivulets. The accused No.1 Ganesh
Satpute removed her clothes. She told Ganesh Satpute that she
was having menstrual cycle by requesting her not to perform
immoral act. The accused No.1 beat her and put her finger in
her private part and committed forcible sexual intercourse with
her. She stated that thereafter accused No.3 Rohit Tambe had
forcible sexual intercourse with her on the point of knife. She
stated that thereafter accused No.2 Karunanand also performed
forcible sexual intercourse with her and thereafter accused No.4
Nitin Bairisal developed forcible sexual intercourse and
unnatural carnal intercourse with her.
11. The victim was thereafter dropped at some distance
by the accused persons and threatened her not to disclose the
incident to anybody else they will kill her and her parents. The
victim reached her house at around 11:00 to 11:30 p.m. and
narrated the incident to her mother.
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12. The victim along with her mother went to Police
Station and narrated the incident. After the victim gave
description of the three accused persons, the Duty Officer sent
police party for taking search of accused persons and arrested
three accused while recording of the report was in progress ,.
13. We have gone through the statement of the victim
(PW1) and we find it inspire confidence. Her evidence shows
that she identified the appellants on the basis of their physical
description and clothings worn by them. In her cross-
examination, suggestions were given about wrong identification
of the accused persons and absence of light at the time of the
incident, but, the defence was not successful in shattering the
testimony of victim (PW1). She stated that she had seen faces
of the accused persons in the light of DJ and on the night of the
incident it was full moon day. Though there are minor omission
about the flash light of DJ, but, the said omission will not affect
the core of the case of the prosecution as the statement
regarding full moon day and light of DJ were by way of
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explanations.
14. It should be borne in mind that if a witness has no
reason to falsely implicate the accused, the Court is very slow in
rejecting his testimony. The reason is that normally human
experience is that in absence of any rancor or ill-will a person
will not falsely implicate another.
15. It is significant to point out that the victim (PW1)
had no rancor or animosity against the appellants and in our
view, in absence of the same should not have falsely implicated
the appellants.
16. Corroboration to the testimony of the victim (PW1)
comes from hidden witness (PW2), who in his testimony
corroborated the statement of PW 1, till he left the spot of
incident before the incident of actual rape occurred. The
description and clothings of accused persons and their bodily
description is corroborated by PW 2. He also corroborated DJ
music going on in the nearby area. He stated that in order to
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save himself he fled the spot of the incident. In his cross-
examination, the defence tried to make capital out of not
reporting the incident, but, PW 2 explained his act of not
reporting the incident by stating that he was feeling giddy and
was afraid and therefore, he did not lodge the report. On
overall consideration of his evidence, we are of the view that
the testimony of PW 2 inspires confidence.
17. Again corroboration is forthcoming to the statement
of the prosecutrix by the injuries of the victim. As mentioned
earlier on 25/05/2015, the victim was medically examined and
Dr. Pratik Sahdeo Gilbe (PW 3) along with Dr. Ashwin Sontakke
found injuries mentioned above on the person of the victim.
18. The corroboration is lent to the evidence of the
victim by prompt FIR of the incident which was lodged by the
victim at 00:10 AM on 25/05/2015. The incident occurred
between 20:30 to 22:30 on 24/05/2015. The FIR appears to be
lodged within three hours giving description of the accused. It
is pertinent to note that three accused persons were
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apprehended while the process of recording of FIR was lodged.
The Criminal Courts attached great importance to lodging of
prompt FIR. A prompt FIR largely eliminates chances of
improvement and impleadments in the prosecution story.
19. Again clinching corroboration is forthcoming by the
fact that DNA of accused No.4 Nitin and accused No.3 Rohit.
The prosecution examined Vaishali Mahajan (PW 15), who is
Assistant Chemical Analyzer, who verified the seal over the
parcels received by her and found them to be intact. She stated
that she carried out Short Tandem Repeat (S.T.R.) Geno Typing
and get examined DNA profile of the victim and the accused
persons. She found DNA profile of blood stains of the victim
with DNA profile of accused No.3 and 4.
20. In the case of Mukesh and Another Vs. State (NCT of
Delhi) and others reported in (2017) 6 SCC 1, the Hon'ble Apex
Court has held that the DNA report deserves to be accepted
unless it is absolutely dented; for non-acceptance of the same, it
has to be established that there had been no quality or quality
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assurance. If the sampling is proper and if there is no evidence
as to tampering of samples DNA test reports has to be accepted.
It has been further held that the identification of DNA generic
fingerprint is 100% precise and accurate. DNA report and the
findings thereon being scientifically accurate, established clear
link involving the accused persons in the incident.
21. In the present case, though it is submission of Mr. M.N.
Ali, Advocate for the appellant that kit was not used for
collection of DNA, the same by itself does not lead to the
conclusion that there was no quality control. It needs to be
noted that there is no evidence or admission in the cross-
examination to suggest that report was dented or there was no
quality control or quality assurance. The defence has given
suggestion to Vaishali Mahajan (PW15) about the sanctity and
better result of samples, but, suggestions given are general
suggestions. There is no admission by any witness which will
indicate that there was no quality control or quality assurance.
There is no evidence of tampering of samples. Therefore, in our
opinion, the prosecution has clearly established link between
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the accused persons and the victim.
22. The corroboration to the testimony of the victim is
also lent by the report of the Chemical Analyst, who found
human blood on the clothes of the accused No.4 Nitin. The
prosecution has duly proved sealing of clothes from the
evidence of Shital Hirode (PW 10).
23. There is no requirement in law that corroboration
can only be by plurality of evidence for that would be rendering
not the provisions of Section 134 of the Indian Evidence Act,
which rendered conviction on the testimony of single witness
permissibly. It can also be from circumstances, as observed in
paragraph No.12 of the Hon'ble Apex Court in the of quoted
judgment of Vadivelu Thevar Vs. State of Madras reported in
AIR 1957 SC 614.
24. The learned Advocate for the appellants submitted
that this is the case of mistaken identity as there is failure on
the part of the investigating agency to hold test identification
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parade and therefore, the appellants are entitled to the benefit
of doubt. It is well settled that evidence of mere test
identification of accused at the trial for the first time is from its
very nature inherently of a weak character. The purpose of prior
test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered a
safe rule of prudence to general law for corroboration of sworn
testimony of witnesses in the Court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence, however, is
subject to exceptions, when the Court is impressed by a
particular witness on whose testimony it can rely, without such
corroboration. But, failure to hold a test identification parade
would not make inadmisible, the evidence of identification in
Court. The identification parade belong to the stage of
investigation and there is no provision in the Code of Criminal
Procedure, which obliges the investigating agency to hold or
confers a right upon accused to claim a test identification
parade. The test identification parade do not constitute
substantive evidence. The substantive evidence is the evidence
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of identification in Court. In the instant case, the victim had
sufficient opportunity to observe features of the appellants, who
raped her one after another. After the rape was committed she
was threatened and intimidated by the appellants. The
description of the identity of the appellants was provided by the
victim to the police within three hours of the incident while
lodging First Information Report. It was full moon night. She
had a reason to remember their faces as they had committed a
heinous offence and put her to shame. In fact, on account of her
traumatic and tragic experience the faces and identities of the
appellants must have imprinted on her memory and there was
no chance of her making mistake about their identity. The
victim appears to be witness on whom implicit reliance can be
placed. There is no reason why should she falsely identify the
appellants as perpetrators of crime if they had not actually
committed the offence.
25. The evidence of Ujwala Andhare (PW8), the birth
certificate (Exh.95) entries in school register stating birth of
victim of 13/12/1998 sufficiently proves that the victim was
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child within the meaning of Section 2 (1)(d) of the POSCO Act
at the time of incident.
26. While ordinarily there is presumption of innocence
in a relation to the accused, Section 29 of the POSCO Act
creates a presumption of guilt on the part of the accused if he is
prosecuted for committing, abating or attempting certain
offences under the said Act. Section 29 of the said Act reads as
under :
"29. Presumption as to certain offences. - Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3,5,
7 and section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted
or attempted to commit the offence, as the case may
be unless the contrary is proved."
27. The question when presumption of guilt gets
triggered has been addressed, by various High Courts in POSCO
Act, holding that such presumption comes into play only when
the prosecution established facts that form basis of such
presumption. In our view, in the instant case, the prosecution
has been able to establish foundational facts to trigger
presumption under Section 29 of the said Act.
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28. Considering evidence of victim (PW1), hidden
witness (PW 2), PW4, Vaishali Mahajan (PW15), Shital Hirode
(PW 10), DNA reports and CA reports, the prosecution has
proved beyond doubt that the appellants have committed
offences under Sections 376(D), 506-B, 341, 323 read with
Section 34 of the Indian Penal Code and Section 4 of the
POSCO Act. So far as sentences of the appellants are concerned,
the nature of act committed by the appellants and the nature in
which they committed the same calls for deterrent sentence and
the learned Trial Court was justified in imposing imprisonment
for life for remainder of their life.
29. We therefore, feel that the sentences of the
appellants are not excessive. At any rate, they have been
directed to run concurrently with their major sentences.
30. For the said reasons, we confirm the conviction and
the sentences of the appellants on all counts and dismissed
these appeals.
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31. The appellants are in jail and shall remain there till
they served out their sentences.
32. We appreciate the efforts taken by Mr. Parvez Mirza,
learned counsel who was appointed to represent the appellant
in Criminal Appeal No. 323/2021. He graciously submitted
before the Court that he will not be accepting the professional
fees for drafting and conducting the appeal. We appreciate this
gesture of Mr. Parvez Mirza.
Rule is discharged.
JUDGE JUDGE
MP Deshpande
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