Bombay High Court
Ranjeet Shahaji Gade And Anr vs The State Of Maharashtra on 28 September, 2021
Bench: S.S. Jadhav, S. V. Kotwal
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CRI-APPEALS-184-310-2012-GR.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.184 OF 2012
1. Ranjeet Shahaji Gade, &
2. Ganesh Uttam Kamble. .... Appellants
Versus
The State of Maharashtra .... Respondent
......
WITH
CRIMINAL APPEAL NO.310 OF 2012
Subhash Hiralal Bhosale ....Appellant
Versus
The State of Maharashtra .... Respondents
......
WITH
INTERIM APPLICATION NO.1387 OF 2020
IN
CRIMINAL APPEAL NO.184 OF 2012
Ranjeet Shahaji Gade ....Applicant
Versus
The State of Maharashtra ....Respondent
....
Ms. Anjali Patil, Advocate a/w. Mr. Nauman Shaikh, for the Appellant in
Criminal Appeal No.310/2012.
Mr. P.G. Sarda, Advocate for the Appellants in Criminal Appeal
No.184/2012.
Ms.S.V. Sonawane, APP for the Respondent-State.
Digitally
....
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2021.09.28
17:01:39
+0530
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CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
RESERVED ON : 08th SEPTEMBER, 2021
PRONOUNCED ON : 28th SEPTEMBER, 2021
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1 Both these appeals are decided by this common judgment
because in both these appeals the same judgment and order of
conviction is challenged. For the sake of convenience, the
appellants are mentioned as accused and are referred by their
names.
2 The appellant in Criminal Appeal No.310/2012 Subhash
Bhosale was the accused No.1. Appellant No.1 Ranjeet Gade in
Criminal Appeal No.184/2012 was the accused No.3 and appellant
No.2 Ganesh Kamble in Criminal Appeal No.184/2012 was the
accused No.2 in Sessions Case No.489/2010 on the file of the
Additional Sessions Judge, Pune. Vide judgment and order dated
21.10.2011 passed in Sessions Case No.489/2010, the learned
Additional Sessions Judge, Pune convicted and sentenced the
appellants as follows :
i. All of them were convicted for commission of offence
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punishable under Section 120-B of the Indian Penal Code
and they were sentenced to suffer imprisonment for life
and to pay fine of Rs.5,000/- each; and in default, to suffer
further R.I. for six months.
ii. All of them were convicted for commission of offence
punishable under Section 342 read with Section 120-B of
the Indian Penal Code and they were sentenced to suffer
imprisonment for one year each and to pay fine of
Rs.1,000/- each; and in default, to suffer further R.I. for
one month.
iii. All of them were convicted for commission of offence
punishable under Section 366 of IPC read with Section
120-B of the Indian Penal Code and they were sentenced to
suffer R.I. for ten years and to pay fine of Rs.2,000/- each;
and in default, to suffer further R.I. for three months.
iv. All of them were convicted for commission of offence
punishable under Section 506(2) read with Section 120-B
of the Indian Penal Code and they were sentenced to suffer
R.I. for seven years and to pay fine of Rs.2,000/- each; and
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in default, to suffer further RI for three months.
v. All of them were convicted for commission of offence
punishable under Section 376(2)(g) read with Section 120-
B of the Indian Penal Code and they were sentenced to
suffer imprisonment for life and to pay fine of Rs.5,000/-
each; and in default, to suffer further R.I. for six months.
vi. All the substantive sentences of imprisonment were
directed to run concurrently.
3 The prosecution case, in brief, is as follows:
3.1 From 4:30 p.m. of 1.4.2010 till 12:45 a.m. in the
midnight of 2.4.2010, the prosecutrix, who was examined as PW-1,
was taken to various places from Mankar Square to Karat Pate
Vasti, Wakad, Tech Mahindra Company, Hinjewadi and finally to a
secluded place where all the three accused-appellants committed
rape on her one after the other. After that she was left near her
residence. In the meantime, the police were informed by the
prosecutrix's relatives who were searching for her. The police came
to her house. She was taken for medical examination. Her
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statement was recorded and FIR was lodged vide C.R. No.87/2010
at Hinjewadi police station under various sections including
section 376(2)(g) of the Indian Penal Code. The investigation was
carried out. The accused Ganesh Kamble and Ranjeet Gade were
arrested on 2.4.2010, accused Subhash Bhosale was arrested on
3.4.2010. The Indica Car in which the prosecutrix was taken to
various places was seized from a place near the house of accused
No.1 Subhash. Some blood stains and semen stains were found in
the car. Panchnama was drawn. Chance finger print was found on
the rear view mirror of the car which matched with the finger-print
of Ganesh. The prosecutrix's mobile phone was recovered from the
house of accused No.1 at his instance. The weapon and articles
used in the crime i.e. knife, beer bottles and food packets were
recovered at the instance of accused No.1. The blood samples and
semen samples were sent for chemical analysis. The report was
received. In the meantime, the statements of various witnesses
including mother, aunt and others were recorded. The statements
of the friends of the prosecutrix's brother were recorded. The
prosecutrix had contacted these two friends when she was being
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taken to various places by the accused.
3.2 The medical papers were collected and finally the charge-
sheet was filed after completion of the investigation.
3.3 During trial, the prosecution examined 24 witnesses. The
defence of the accused in their statements recorded under Section
313 of Cr.P.C. is of total denial. However, the suggestions given to
PW-1 on behalf of accused No.1 Subhash suggested that according
to this accused, sexual intercourse between accused No.1 Subhash
and the prosecutrix did take place but it was with her consent. All
the accused took a defence that they were implicated falsely at the
behest of the police. Accused No.1 had other offences registered
against him and even an externment order was passed against him.
That order was revoked. He was the President of a Rikshaw
Union. The police held grudge against him and, therefore, he was
falsely implicated. According to the suggestions given, it is the
case of the defence and in particular that of accused No.1 Subhash,
that, the prosecutrix was not willing to lodge FIR, but police forced
her to do so by pressurizing her.
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4 We have heard Smt. Anjali Patil, learned counsel for the
appellant in Criminal Appeal No.310/2012, Shri P.G. Sarda, learned
counsel for the appellants in Criminal Appeal No.184/2012 and
Smt. S.V. Sonawane, learned APP for the State.
5 The prosecution case can be categorized according to
different points on which the evidence is led. The evidence is
discussed in the following paragraphs.
Evidence of the prosecutrix
6 The most crucial piece of evidence in this case, of course,
is the evidence of the prosecutrix, who was examined as PW-1. She
was an educated lady. At the time of deposition, she was attached
to a private hospital and was holding a responsible post. She had
obtained a degree in Masters in Hospitalization. She was originally
from Nagpur. She had got married on 5.10.2007. Her husband
was working in a Software Company. She had accompanied her
husband to America from 1.3.2008 to 1.3.2010. After their return,
they came back to Pune on 16.3.2010. They were residing in a flat
at Wakad. On 28.3.2010, her husband again left for America in
connection with his job. Her brother's two friends SB and SBP
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were residing in a neighbouring building of the prosecutrix. Their
names are mentions thus to protect identity of the prosecutrix.
Both these friends were Software Engineers. The prosecutrix was
having a Blackberry mobile phone.
7 The incident took place on 1.4.2010. At about 12:00
p.m., PW-1 received an email regarding a seminar, which was to
take place at Bhandarkar Road, Pune. PW-1 wanted to attend that
seminar. At about 3:30 p.m., she went to Mankar Square to get a
bus to go to Bhandarkar Road. However, she did not get the bus for
more than half an hour. She wanted to reach the venue of the
seminar by 5:00 p.m.. She was told that it took one hour to reach
Bhandarkar Road from her place. When she was waiting for the
bus, a maroon coloured Indica car bearing registration No.MH-14-
AV-3015 came there. The driver offered to take her to her desired
destination. PW-1 was aware that some vehicles operating for the
Call Centers were used to take other passengers. She was under
the impression that this car was one of those vehicles. She was
getting late and, therefore, she decided to go to Bhandarkar road in
that car as the driver told her that he was going in the same
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direction. In her deposition, she gave description of the driver.
There was one more person sitting next to the driver. His
description was also mentioned in her deposition. It is her case that
the driver was accused No.1 Subhash and other person was
accused No.2 Ganesh. They started from the bus-stop. On the way,
accused No.1 Subhash got his mobile recharged at one Ganesh
Mobile Centre. The car was taken to Aundh side and then towards
Pune University. The driver took the car to a garage where
rickshaws were standing. Accused No.1 had a talk with one of the
garage owners. After that, the car was driven for about an hour but
she was not taken to Bhandarkar road. PW-1 kept asking as to
where they were going. She gave a call to aforementioned SBP
and sent him an SMS. However, he was busy and did not respond.
In her SMS to SBP she had mentioned that the driver of the vehicle
was not looking good. Thus, she had expressed her suspicion
against him. Then she called the other friend SB when the car had
reached Nigadi. SB had a talk with accused No.1 on PW-1's mobile
phone. He gave directions to accused No.1. However, by that time
it was already 6:30 p.m. and PW-1 told accused No.1 that she did
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not want to go to Bhandarkar road any more and she should be
dropped at the nearest bus stop. Accused No.1 agreed. However,
instead of taking her to a bus-stop he took the car on the highway.
During that time, both the accused were talking with each other
and, therefore, PW-1 came to know their names as Subhash and
Ganesh. After some time, these accused called accused No.3
Ranjeet, who joined them at some spot. Accused No.3 Ranjeet
started driving the car. Accused No.1 sat besides the prosecutrix.
In the meantime, at about 7:00 p.m., PW-1 had received a call from
her mother, who was in Nagpur but accused No.1 did not allow
PW-1 to make conversation. She was slapped and gagged. She
was shown a knife and she was threatened. Accused No.2 Ganesh
came and sat on the back seat. Thus, PW-1 was made to sit
between accused No.1 and accused No.2. She was completely
helpless. She was threatened with the knife. She was told that
they would call 8-10 persons more and all of them would commit
rape on her. The car was taken to a distant place. The accused
bought beer from one hotel. They also bought some food. The
accused consumed beer and ate that food.
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8 Accused No. 1 asked PW-1 to make a call to her mother
for informing her that she would be late. This was apparently done
so that nobody started searching for her. When PW-1 called her
mother, she had a conversation with her mother and father. During
conversation, she referred them as "Mavashi" (aunt) and "Kaka"
(uncle) instead of calling them "Mummi" and "Papa" as she
normally did. Her mother got suspicious and contacted PW-1's
aunt in Pune, who in turn started searching for her. In the
meantime, PW-1 was taken to a secluded place and all the accused
committed rape on her one after the other. After that, the
prosecutrix was dropped near her residence. On reaching home,
PW-1 immediately called her mother from her landline. It was
12:45 a.m. at that time. Within 5 to 10 minutes, her aunt and two
friends came to her flat. The police also came there. There was
one lady constable. That time, PW-1 narrated the entire incident to
them. She was taken to YCM Hospital for medical examination.
Her statement was recorded. It was treated as FIR. It is produced
on record at Exhibit P-70. The prosecutrix, while deposing,
identified all the accused in the Court. She deposed that on
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15.4.2010, Test Identification Parade was held where she had
identified all the accused. Her clothes were seized for the purpose
of investigation. PW-1 identified her Blackberry mobile cell phone
Article P-1, her own clothes which she was wearing at the time of
incident and clothes of all the three accused which they were
wearing at the time of incident.
9 As far cross-examination of PW-1 is concerned, we have
to make serious comments about it at the appropriate place in this
judgment. The cross-examination of PW-1 was quite lengthy but
was devoid of much substance. Most of the cross-examination was
directed towards her educational qualification, background, her
marital life and her stay in America. This hardly had any effect on
the prosecution case.
10 There was some cross-examination about her knowledge
of Pune city, but, here again nothing was elicited from her to show
that she was aware of the place where she intended to go i.e.
Bhandarkar road. Some questions were asked about the seminar
which she wanted to attend. In her cross-examination, PW-1 had
accepted the suggestion that till the vehicle reached highway she
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did not suspect anything in respect of the driver of the vehicle and
his companion. This suggestion, in fact supports her case that
initially for quite some time she did not raise alarm when they
were in Pune city because she did not suspect anything against the
accused.
11 As far as the main incident is concerned, some
suggestions were given on behalf of accused No.1 which show that
the defence was trying to develop a theory of consensual sex. PW-1
denied the suggestion that when their vehicle reached the hotel
they decided to consume beer and that she also consumed beer
along with the accused. Thereafter, again similar suggestions were
given that PW-1 developed close intimacy with accused No.1
Subhash. She denied these suggestions.
12 On similar lines, it was suggested to her that she herself
told the accused that the vehicle be taken to Hinjewadi I.T. Park
area and that she herself told accused No.1 to take her to his
residence. Strangely it was further suggested that by that time she
had developed so much love for accused No.1 Subhash that she did
not inform her mother that she was getting late. She of course
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denied these suggestions.
13 Further suggestions were given that she and accused
No.1 decided to have sexual intercourse and it was performed with
her consent. PW-1 had vehemently denied these suggestions. The
suggestions did not stop there. Some more suggestions regarding
the details of the act were put to her. These suggestions given in
this case can hardly be called as proper cross-examination. There
were no questions put in respect of improbability of the entire
incident. Merely putting these suggestions did not affect the
prosecution case at all and did not help the defence in any manner.
Once she had denied suggestion of consensual sex, further
suggestions were put to her regarding graphic details of the act.
These further suggestions were wholly unnecessary.
14 We strongly disapprove all these suggestions put to the
witness. We are more pained because of the passive approach
adopted by the learned Judge in allowing these questions. These
suggestions crossed all lines of basic dignity. Under the garb of
giving suggestions, graphic details of the act were put to the
witness. This was wholly unwarranted. The learned Judge has
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recorded that at that stage the witness was sobbing. The learned
Judge should have intervened and stopped this line of cross-
examination. While it is true that the accused has a right to
conduct cross-examination to prove his innocence but these
suggestions can by no stretch of imagination be called as proper
cross-examination. Even under Section 152 of the Indian Evidence
Act, the Court was duty bound to forbid any question which
appeared to be intended to insult or annoy or which though proper
in itself appeared to the Court needlessly offensive in form. Section
151 of the Indian Evidence Act also empowers the Court to forbid
any questions or inquiries which it regards as indecent or
scandalous, although such questions or inquiries may have some
bearing on the questions before the Court, unless they relate to
facts in issue, or to matters necessary to be known in order to
determine whether or not the facts in issue existed. The learned
trial Judge failed in his duty in not protecting the dignity of PW-1
and not exercising his powers under Sections 151 and 152 of the
Indian Evidence Act.
15 These questions were not necessary for establishing or
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destroying the facts in issue. At this stage, it is necessary to remind
the trial Courts that under Section 148 of the Indian Evidence Act,
it is their duty to decide when the witness shall be compelled to
answer. In particular, the Court was duty bound to decide whether
or nor the witness would be compelled to answer such questions
and the Court is expected to warn the witness that he is not obliged
to answer if such questions are improper and if there is a great
disproportion between the importance of the imputation made
against the witness's character and the importance of his evidence.
In the present case, such suggestions were totally uncalled for
which PW-1 was made to answer. In any case, PW-1 had denied
the theory of consensual sex and, therefore, all further suggestions
in respect of the actual act of intercourse were totally unnecessary.
Such suggestions were, as mentioned earlier, violative of basic
dignity and the learned Judge failed in his duties under Section
148, 151 and 152 of the Indian Evidence Act. Having observed
thus, we also take note of the fact that the learned Judge has
conducted and concluded the trial with a lot of sincere efforts
otherwise.
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16 We are also not happy with the silence kept by the
learned Special Public Prosecutor by not objecting to these
suggestions.
. It is necessary to remind the Prosecutors that under the
scheme of Cr.P.C., they are in-charge of the conduct of the
prosecution. They are supposed to perform their duties responsibly
and they are supposed to render sincere assistance to the Court. It
is their responsibility to protect the interest of the victims and the
witnesses before the Court. Of course, at the same time, they have
to maintain a balance by not being unfair to the defence. But, they
have to protect their witnesses. In this particular case, there was
absolutely no objection from the prosecution to this line of
suggestions. The Prosecutors cannot only concentrate on securing
conviction, but the conduct of proper trial is also their duty. In this
particular case, the learned Special Public Prosecutor failed to
protect PW-1 from this torture of cross-examination.
17 This line of cross-examination has taken further turn for
the worse when it was suggested to her that she reached her house
under influence of liquor and admitted her act with accused No.1
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when narrating the incident. Further strange suggestion is given
that her aunt informed her mother regarding her misdeeds. It is
further suggested that PW-1 knew that accused No.1 was a good
person and she did not want to lodge FIR against him and that she
was pressurized into lodging report against him. Otherwise the
police would publish that she was roaming with criminals during
night hours. All these suggestions were vehemently denied by PW-
1. No questions eliciting the response about the incident or lodging
of the FIR or any relevant matters were asked. Most of this cross-
examination is in the form of suggestions. There are certain
questions asked about some omissions from her supplementary
statement recorded on 3.4.2010, but, these minor omissions are
hardly of any consequence and we are not even taking note of such
minor omissions.
18 Some questions were asked to her in the cross-
examination regarding identification parade. However, here again
there was no cross-examination about the actual procedure and
conduct of Test Identification Parade except giving a suggestion
that since accused No.1 had not raped her she did not state
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anything against him regarding the parade. This suggestion was
also denied by her.
19 The cross-examination conducted on behalf of accused
No.2 was slightly different. On behalf of accused No.2, suggestion
was given to her that on 3.4.2010, the police had shown the
accused persons. She denied this suggestion. PW-1 as the answer
to the question put on behalf of accused No.3 clarified that as she
was seated between the two accused, she did not make any
attempt to open the door during the entire journey, though, she
had tried to escape from their clutches. This answer elicited from
PW-1 in fact harms the defence case. Otherwise, most of the cross-
examination was again in the form of suggestions which she had
denied.
20 Learned counsel for accused No.3 had also suggested that
he was shown to PW-1 on 2.4.2010. She had denied that
suggestion.
Relatives and friends of PW-1
21 The prosecution examined PW-1's mother as their witness
No.2. PW-2 was an educated lady and was working as a Sub-
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Divisional Engineer in a Company. Her husband i.e. PW-1's father
had retired as a Lecturer. Thus, PW-1 is coming from an educated
family and she herself was highly educated. PW-2 has stated in her
deposition about the events that took place at her end on 1.4.2010.
She had called PW-1 at about 6:30 p.m. regarding the seminar. PW-
1 had abruptly cut the phone call. For quite some time PW-1's
phone was not reachable and it was switched off. PW-2 kept trying
to contact her. At about 8:45 p.m., she received a call from PW-1
and strangely PW-1 addressed her as Mavashi (aunt). She told her
that she would return late as she was planning to stay at her
friend's residence. Strangely, PW-1 further told her that this should
not be informed to her mother as she would get worried.
Significantly at that time PW-1 was talking to her own mother PW-
2. PW-1 continued to address PW-2 as her aunt. PW-2 gave her
phone to her husband. There again, PW-1 spoke with him by
referring to him as uncle. She further told him that they should
not send her elder brother. This conversation was quite strange.
There was no question of sending PW-2's son to fetch PW-1. She
strangely referred to PW-2 as her 'aunt' and her own father as
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'uncle'. PW-2 immediately realized that there was something
wrong. She got frightened and called her cousin staying in Pune.
She also called her son's friends SB and SBP to visit PW-1's flat.
After some time, they informed PW-2 that the flat was locked. By
11:00 p.m., PW-2 instructed them to approach the police. At about
12:45 a.m. in the midnight, PW-2 received a call from PW-1. She
was weeping. PW-1 told her that she had reached home. PW-2
immediately called her cousin (who is examined as PW-3). She
was at the police station. PW-2 informed her that PW-1 had
returned home. Therefore, PW-3, her son Mandar and
aforementioned two friends SB and SBP came back to PW-1's flat.
PW-1 told everybody about the incident. PW-2 and her husband
rushed to Pune by flight. Here again, the cross-examination on
behalf of all the accused has not yielded any answers in their
favour. Most of the cross-examination was again in the form of
suggestions which were on similar lines which were put to PW-1.
22 PW-3 is cousin of PW-2 and hence maternal aunt of
PW-1. She had deposed that she had received a call on 1.4.2010
from Nagpur made by PW-2 at about 9:00 p.m.. She was told by
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PW-2 that PW-1 had informed her that she was staying at her
friend's place for the night and that her elder brother should not be
sent to fetch her. PW-2 further informed PW-3 that said friend of
PW-1 was residing at Nagpur and PW-1's elder brother was in
America. Therefore, this message had some hidden meaning. PW-3
along with her son went to PW-1's flat. It was locked. They were
joined by aforementioned SB and SBP. They got worried and all of
them went to Hinjewadi police station. When they were at the
police station, she received a call from PW-2 who told her that PW-
1 had returned home and that PW-3 should immediately rush
there. Therefore, without lodging any report they came back to
PW-1's flat. They found that PW-1 was frightened and she was
weeping. In the meantime, the police officers including one lady
constable also reached there. All of them made enquiries with
PW-1. She narrated the entire incident. Thereafter the police took
her to YCM Hospital. This witness had also accompanied her.
Again there was nothing much in the cross-examination. Again
some suggestions in bad taste were given to her. It was suggested
to her that the security guard informed this witness that a boy in a
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car had dropped PW-1 at her flat. When PW-3 reached there, she
found PW-1 to be under the influence of liquor and that PW-1
herself told her about her consensual sexual acts. PW-3, of course,
denied this suggestion.
23 She was also suggested that PW-1 told the name of
accused No.1 Subhash as her friend. This suggestion was also
denied. She also denied the suggestion that she and the police
officers forced PW-1 to lodge FIR. She denied the suggestion that
she herself told PW-1 that if it was known to people that she was
roaming around with criminals in the night that would affect her
marriage.
24 The prosecution examined PW-6 SBP. He was friend of
PW-1's brother. He and SB were residing in a nearby building. He
deposed about the messages sent by PW-1 on his mobile phone at
around 6:30 P.M., which PW-1 had referred to in her deposition.
This witness has deposed about the phone call made by PW-2 to
him regarding PW-1's phone call in frightened condition and about
her incoherent conversation. Importantly, this witness had deposed
about the exact message sent by PW-1 to him, wherein she had
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mentioned that she was already late and hence she was returning
back and that 'the driver of the car was not looking good'. Thus,
PW-1 had expressed her apprehension about accused No.1 through
this message.
25 In the cross-examination, PW-6 answered that he had not
suggested to PW-1 that she should not continue the journey in that
vehicle. The rest of the cross-examination was regarding taking
print out of that SMS. However, his deposition about the contents
of the SMS was not shaken.
26 PW-1's husband was examined as PW-5 but on the date of
the incident he was in America and, therefore, his evidence is not
material in this case.
Medical evidence
27 The prosecution examined PW-12 Dr. Rapol. She was
attached to YCM Hospital, Pimpari as a Medical Officer from
1.4.2010 to 8.4.2010. She had examined PW-1 at about 5:45 a.m.
She has deposed that PW-1 was referred for her medical
examination by Hinjewadi police station and she was brought by a
lady constable. PW-1 had given the history of the incident to her
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and there she had categorically informed this witness about the
gang rape committed by three persons at around 11:00 p.m. on the
same night by giving threats to her life. The history was mentioned
by this witness in the medico legal certificate. PW-1's
undergarments were found stained with discharge. There were
bite marks on her left breast. There was tenderness on her
genitals. The labia majora and labia minora were inflamed. P.V.
examination was painful. This witness, PW-12, then took vaginal
smear, vaginal swab etc.. This witness has categorically stated
that PW-1's examination revealed findings which were suggestive
of forceful intercourse. She issued a medico legal certificate which
is produced on record at Exhibit P-105. The samples taken by her
were sealed and given to police with forwarding letter addressed to
Directorate of Forensic Laboratory. The cross-examination was
mainly in respect of maintaining the record and absence of
outward number on the medico legal certificate. She was also
cross-examined about the time of examination. The perusal of the
medico legal certificate shows that the MLC number was
mentioned there. Registration number of indoor patient is also
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mentioned. Therefore, there is not much force regarding absence
of outward number on the medico legal certificate Exhibit P-105.
The other findings mentioned by this witness in her deposition are
recorded in that certificate. This evidence supports the prosecution
case that the sexual intercourse was forceful and not consensual.
Significantly, the information was given by PW-1 herself
immediately when she was taken to hospital and when she was
examined at 5:45 a.m. on 2.4.2010. There is no scope to argue
that the allegations were made by PW-1 as an afterthought. The
incident of rape had taken place.
28 The prosecution also examined Dr. Pathre as PW-24. He
had examined accused No.2 Ganesh and accused No.3 Ranjeet on
2.4.2010. He has deposed that on examination he had noticed
smegma over glans of both these accused. This witness also
noticed redness of glans. He has deposed that redness of glans
suggested the intercourse. He had also deposed that he did not
notice any uniform layer of smegma. He did not agree to the
suggestion put by learned counsel for accused No.3 that smegma
over glans suggested recent sexual intercourse. He agreed that
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redness of glans may be due to various reasons.
. We do not find that evidence of this witness is very
material as he has not given clear opinion about the medical
examination. In any case, it neither helps the prosecution nor the
defence.
Evidence regarding extra judicial confession
29 The prosecution has examined Arun Rithe as PW-7. He
was knowing accused No.1 Subhash since 5 to 7 years prior to his
deposition. He has deposed that accused No.1 was the President of
Autorickshaw union in respect of an auto-rickshaw stand. This
witness has deposed that accused No.1 was using Indica car
bearing No.MH-14-AV-3015. He was also knowing other two
accused. On 2.4.2010 at about 1:00 p.m., he received a phone call
from accused No.1 Subhash. This witness was asked to bring his
rickshaw as there was break-down of accused No.1's car. This
witness and accused No.1 went to a hotel. Accused No.1 consumed
liquor. This witness has deposed about the extra judicial confession
made by accused No.1 to him. According to this witness, accused
No.1 told him that he along with other two accused Ganesh and
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Ranjeet were going to Pune city by Indica car. On their way one
lady asked for lift. She wanted to go to Deccan. Accused No.1 told
this witness that initially only accused No.1 and Ganesh were in the
car. Ranjeet joined them later at Wakad. Accused No.1 told him
that he had taken the vehicle to a secluded place and all of them
committed rape on her. After this disclosure this witness and
accused No.1 went to Pavana dam and then to hotel "Sher-E-
Punjab" and then to "Shital Hotel". The police apprehended the
accused Subhash at "Shital Hotel". This witness was also taken to
police station. This witness told the police about the confession
made by accused No.1 to him. His statement was recorded. The
cross-examination was on the line to suggest that the police had
threatened him of implication in the case if he did not give the
statement against accused No.1. This suggestion was denied by
him.
Evidence of pancha witnesses
30 The prosecution examined PW-9 Nana Paul, who was a
pancha for the panchnama under which the clothes of PW-1 were
seized.
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31 PW-10 Pandurang Gughe was a pancha in whose
presence accused No.1 made a statement regarding accused's
willingness to produce mobile phone from his house. That mobile
phone was belonging to PW-1 and it was produced at the instance
of accused No.1 from his house from a cupboard.
32 PW-13 Somnath Shelar was a pancha for recovery of
knife, beer bottles and an empty packet at the instance of accused
No.1. He has made statement in presence of this witness leading to
recovery of these articles from the bushes near the spot where the
offence was committed. A knife, two beer bottles and a packet
containing some food were recovered from that secluded spot,
which was not used by public as such.
33 The prosecution examined PW-14 Hemraj Jambulkar as
a pancha in respect of examination of and taking samples from the
vehicle bearing registration No. MH-14-AV-3015. This panchnama
was carried out on 2.4.2010. The vehicle was locked. It was
opened by inserting one strip in the window-glass. Stains on the
seat cover were seized by cutting the pieces of the seat cover. Some
stains were found on the gunny-bag in the car. Stains of gutka
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were collected. This panchanama was produced on record vide
Exhibit P-113. The panchnama was carried out between 12:15
p.m. and 1:15 p.m. on 2.4.2010 in respect of C.R. no.87/2010 of
Hinjewadi police station.
Witnesses who were knowing the accused and who deposed about
some events on that day
34 The prosecution examined PW-8 Shardul Sonavane. He
was working in the shop, where cushions were made for rickshaws.
This witness was knowing accused No.1 Subhash as he was their
regular customer. Accused No.1 Subhash was also having a
rickshaw. PW-8 has deposed that on 31.3.2010, accused No.1 had
placed some orders for hood and cushions for his rickshaw. On
1.4.2010 at about 5:00 p.m., accused No.1 had come to this
witness's shop in his Indica car bearing No.MH-14-AV-3015. At
that time, accused No.2 was with accused No.1 in the car.
Importantly this witness has deposed that a lady was sitting in the
car on the rear seat. This witness has identified PW-1 as the same
person who was sitting in the car. This evidence has gone
unchallenged and it supports the prosecution case that PW-1 was
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taken to his shop around that time.
35 PW-16 Malhari Ware was having mobile shop and he was
approached by accused No.1 for getting his mobile phone
recharged at about 4:15 p.m. on 1.4.2010. This witness has seen
that person who had recharged the mobile phone had come in
Indica car. One lady was sitting on the rear seat. He has not
identified either accused No.1 or PW-1. His evidence, therefore, is
not much of use either to the prosecution or to the defence.
36 PW-22 Ajit Gogavale was knowing all the accused. This
witness was a rickshaw driver and he was a member of the union
of which accused No.1 was the President. On 1.4.2010 at around
9:00 p.m., accused No.2 Ganesh had come to the rickshaw stand
and had taken auto-rickshaw of accused No.3 Ranjeet. This
witness was examined to show that accused No.3 Ranjeet had
joined other accused at about 9:00 p.m.. No questions were asked
in the cross-examination by and on behalf of any of the accused as
to how accused No.3 accompanied accused Nos.1 and 2 from that
place. Not even a suggestion is given in that behalf.
37 The prosecution had examined PW-21 Shrimant Londhe,
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who was also a rickshaw driver. But, he did not support the
prosecution case and he was declared hostile. He was cross-
examined by the prosecution. He has given evasive answers when
he was confronted with his statement before the police to the effect
that accused No.2 Ganesh had come to the rickshaw stand and had
told accused No.3 Ranjeet that accused No.1 Subhash had called
him and that accused No.1 Subhash was waiting near a road.
Witnesses on other corroborative pieces of evidence :
38 The prosecution examined PW-18 Sachin Shinde, who
was a Nodal Officer of a Telephone Service Provider at Pune. He
had produced the Call Data Record of accused No.1 Subhash and
aforementioned SB.
39 PW-19 was Sanjay Bhorade, was a fingerprint expert
attached to Fingerprint Bureau, Pune. He had inspected the car
parked in the police station on 2.4.2010 and had found a chance
print on the rear view mirror of that Indica car. It was compared
with the fingerprints of the accused and it was found that the
chance fingerprint was that of the thumb print of accused No.2
Ganesh. His opinion was produced on record vide Exhibit P-138.
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He was not cross examined on the reasons for his conclusion. He
denied the suggestion that he had not taken the chance print as
deposed by him.
Police witnesses regarding investigation
40 PW-4 ASI Janardhan Yele was in-charge of Hinjewadi
police station from 9:00 p.m. on 1.4.2010 till 3:00 a.m. on
2.4.2010. At about 12:15 a.m. in the midnight of 2.4.2010, PW-3
along with 2-3 persons approached his police station and told him
that PW-1 had left her residence in the afternoon and she had not
returned till midnight and that they had come to the police station
to lodge the report about her missing. While they were still in the
police station, at about 12:45 a.m. they informed this witness that
they had received a telephonic information that PW-1 had returned
home and, therefore, without lodging any report, PW-3 and others
had left the police station. This witness had noted this information
in the station diary at 12:45 a.m. on 2.4.2010. A copy of the
extract of the station diary entry was produced by this witness on
record at Exhibit P-78.
41 PSI Narayan Gavade was examined as PW-11. At about
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12:45 a.m. on 2.4.2010, he was informed by PW-4 that PW-3 had
come to Hinjewadi police station to lodge a report about PW-1 not
returning home for quite some time. PW-4 was told that PW-1 had
returned home. However, to verify the situation PW-4 asked this
witness to go to PW-1's flat. Accordingly this witness went to the
flat. He was accompanied by his driver and a lady police constable.
He found that PW-1 was in the flat. She was frightened and was
weeping. This witness made enquiries and at that time PW-1
narrated the horrible ordeal which she had to face. She even
disclosed the names of all the three accused. This witness issued
medical requisition to YCM Hospital for medical examination of
PW-1. He recorded the statement of PW-1 with the help of his
assistant. It was treated as FIR and it is produced on record, as
mentioned earlier, at Exhibit P-70. This witness has deposed that
he took said report at about 2:35 p.m. on 2.4.2010 and came to
Hinjewadi police station at 3:00 a.m.. This witness took charge of
the police station from PW-4. This witness has stated that he
registered the offence at 3:10 a.m. on 2.4.2010. He took station
diary entry to that effect. He made endorsement on the report to
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that effect. That endorsement is specifically marked as Exhibit 70-
A. This witness had taken charge of clothes of PW-1 and carried
out panchnama to that effect. At 9:00 a.m. on 2.4.2010 he handed
over investigation to PI Bhosale Patil. The proforma of the FIR
registered vide C.R. No.87/2010 showed that the information was
received at the police station at 15:10 hours on 2.4.2010. This was
a mistake because the endorsement vide Exhibit 70-A showed that
the station diary entry was taken at 6:10 a.m. and the report was
taken down at 3:10 a.m. on 2.4.2010. There is no cross-
examination on this aspect on behalf of the defence.
. The cross-examination was specifically directed towards
the fact that the full names of the accused were mentioned on
the proforma which was produced on record and marked at Exhibit
D-103. While answering the questions in the cross-examination
this witness has stated that at the time of recording of FIR, PW-1
had given description of the accused and, therefore, she was shown
album of photographs of habitual criminals that was in the police
station and from that album she had identified the photograph of
accused No.1 Subhash Bhosale and on the basis of available record
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of accused No.1 his name and address was incorporated in the
printed FIR. In respect of other two accused, their names were
already with the police on record in connection with miscellaneous
offences and, therefore, their names and addresses were
incorporated in column No.7.
42 The defence wanted to contend that since the
photograph of accused No.1 was shown to PW-1, his identification
is not free from doubt. This aspect shall be discussed a little later
in the judgment. This witness was given a suggestion that the FIR
was lodged against the wishes of PW-1 and she was pressurized
and she was forced to lodge this FIR. This witness has denied this
suggestion.
43 PW-15 API Dhananjay Jagdale has deposed about the
seizure of the car. He has deposed that on 2.4.2010 at about
11:00 a.m. the investigating officer Shri Bhosale Patil instructed
him to bring that Indica car bearing registration No.MH-14-AV-
3015 parked in front of the house of accused No.1. By that time,
accused Nos.2 & 3 were already arrested and accused No.1
Subhash was absconding. This witness had gone to the spot and
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had brought the car to Hinjewadi police station at 12:00 p.m. by
towing it with the help of a crane. The panchas were called. The
doors were opened and the articles as well as the stains from the
cushion covers bearing different stains were seized. After arrest of
accused No.1 Subhash Bhosale during investigation, mobile phone
of PW-1 was recovered at his instance. At that time this witness
had gone to the house of accused No.1 at his instance. He had
denied the suggestion that the panchnama of seizure of mobile was
done only at the police station. He stated that since the offences
were previously registered against accused No.1 Subhash Bhosale
he was knowing his house, though he was not an investigating
officer in the previous cases against accused No.1.
44 PW-17 API Ramesh Pawar has supervised recovery of
knife, two empty beer bottles and some food packets at the
instance of accused No.1. This recovery was effected on 4.4.2010.
45 PW-20 Police Naik Dilip Ghate was the carrier who had
carried the samples and articles to the Forensic Science Laboratory
at Mumbai.
46 PW-23 Senior P.I. Nandkishore Bhosale Patil was the
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investigating officer. He had taken over the investigation of C.R.
No.87/2010 at 3:10 p.m. on 2.4.2010. He was in-charge of the
investigation. He had gone to the house of accused No.1. He had
arrested accused Nos.2 & 3 but accused No.1 had absconded.
Accused Nos.2 & 3 were sent for medical examination. This
witness had instructed PW-15 to bring the car in question to the
police station. He obtained the fingerprints of accused Nos.2 & 3.
He received a tip on 3.4.2010 regarding the whereabouts of
accused No.1 Subhash Bhosale. According to the information, he
was to arrive at "Shital Hotel", Kanhe Phta, Pune. A trap was
arranged and accused No.1 was arrested. He recorded the
supplementary statement of PW-1 and the statements of other
witnesses. He collected the C.A. report from the laboratories. He
received the DNA report on 28.4.2010. They are produced at
Exhibit P-165 and P-166. The fingerprint expert's report was also
collected by him. On conclusion of investigation, charge-sheet was
filed by this witness on 23.6.2010. This witness had proved the
portion from statement of PW-21 Shrimant Londhe, who had
turned hostile. He was cross-examined about various places where
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PW-1 was taken. He was suggested that in the absence of accused
No.1, who was absconding this witness had misbehaved with
accused No.'1 wife who had lodged a complaint with this witness's
superiors. This witness PW-23 has denied this suggestion. The
contradictions from the statements of witnesses were put to him in
the cross-examination and they were marked as Exhibits-172, 173,
174, 177 and 179. He denied the suggestion that PW-1 was
pressurized into lodging that report and that she was subjected to
medical examination against her wishes. A specific suggestion is
given to this witness mentioning that sexual intercourse was with
consent but it was given a colour of rape because the externment
order passed against accused No.1 was revoked and that the police
held grudge against him.
47 Forensic Science Laboratory report, the DNA profiling
report was produced on record vide Exhibit P-165. The DNA
profile of PW-1 matched with the hair found on the back-seat of
India car bearing No.MH-14-AV-3015. The DNA report also shows
that the semen detected on vaginal smear and vaginal swab of PW-
1 as well as on the back-seat of the cover of said car matched with
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the DNA in respect of blood sample of accused No.1 Subhash
Bhosale. Similarly, the semen detected on the back-seat cover of
the said car also matched with the blood sample of accused No.2
Ganesh Kamble though in the report his name is mentioned as
"Uttam Kamble". As per the further prosecution case, the sample
of blood of all the accused were sent for DNA profiling.
Submissions on behalf of all the accused and the prosecution :
48 Smt. Anjali Patil, appearing for accused No.1 and Shri P.
G. Sarda appearing for accused Nos.2 & 3 made their submissions.
They are as follows:
48.1 The proforma of the FIR shows that the information was
received at the police station at 3:15 p.m. on 2.4.2010. Hence,
there was delay in registration of FIR. When PW-3 went to lodge a
report about missing of PW-1, no further steps were taken and the
report about PW-1's missing was not lodged, which is a suspicious
circumstance against the prosecution.
48.2 The semen stains found in the car were result of planting
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of evidence by the police and, therefore, the forensic science
laboratory report should not be taken into consideration. There are
omissions and contradictions in the evidence of the witnesses.
48.3 The case of PW-1 does not seem probable.
48.4 Most importantly the test identification parade memo
was not exhibited. The SEM who had conducted that test
identification parade was not examined. Identification of the
accused is not clearly established. The police officer had admitted
that the photograph of accused No.1 was shown to PW-1 in the
police station before lodging of the FIR. The names and addresses
of the accused appeared on the proforma at the FIR and, therefore,
it indicates that the police had already disclosed the identity of the
accused without investigation which shows false implication on
their part. Finally, both learned counsel for the appellants
submitted that in the alternative leniency be shown to the accused
considering that they are in custody since April, 2010.
48.5 As against these submissions, learned A.P.P. Smt.
Sonavane supported the prosecution case. She submitted that the
identification parade is not necessary in every case. There are some
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exceptions when, without identification parade the identity can still
be established and accepted during the trial. She relied on the
judgment of the Hon'ble Supreme Court passed in the case of Raja
Vs. State by the Inspector of Police .
48.6 Smt. Sonavane submitted that PW-1 was constantly put
under threats. Knife was shown to her and, therefore, she could not
resist or raise alarm. There was nothing improbable or
unacceptable in the version of PW-1. There was no reason for PW-1
to falsely implicate the accused. Her evidence is amply
corroborated by PW-2, PW-3 and PW-6 in respect of events which
took place on that particular day.
Reasons :
49 We have carefully considered the evidence on record and
we have taken into consideration the submissions made before us.
The prosecution case rests basically on the version of PW-1. We
have bestowed our careful attention on her evidence and we are
1 Dated 10.12.2019 passed in Criminal Appeal No.740/2018 (Raja
Vs. State by the Inspector of Police) with Criminal Appeal
Nos.1608-1609/2018 (Govindaraj and others Vs. State by the
Inspector of Police, Singarapattai police station, Krishnagiri
District)
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satisfied that she is a truthful witness. There are no infirmities in
her evidence at all. PW-1 was new to Pune City and was not well
versed with the topography. She wanted to reach Bhandarkar Road
to attend a seminar. She was looking for a bus. The bus was not in
sight and did not arrive for quite some time. She, therefore, took
lift from accused No.1's car as accused No.1 offered to take her to
that place. He had claimed that he was going in the same
direction. The dishonest intention on the part of accused No.1 was
clear right from the inception as he claimed that he was going
towards the same direction where PW-1 wanted to go and yet he
did not take her to that place and made a show that he did not find
that place.
50 After roaming around for quite some time, on the pretext
of taking her to that particular place, finally she was taken to
highway and she was threatened at the point of knife. Accused
No.3 joined other two accused. Accused Nos.1 & 2 sat on either
side of PW-1 and, therefore, it was impossible for her to raise any
alarm. She was frightened. Accused No.1 had shown her knife. He
had also threatened that he would call 8-10 of his associates which
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would have been even more dangerous. Therefore, it was not
unnatural that PW-1 could not raise alarm at any place including
the place from where beer and food were purchased.
51 PW-1's subsequent call to her mother and her unusual
conversation by referring her parents as "uncle" and "aunt" also
shows her state of mind and her desperate attempt to seek help
without making the accused aware of what she was doing.
52 After she returned home, PW-1 had immediately narrated
the incident to her aunt and to police officers. There was no scope
to fabricate the story as an afterthought.
53 PW-1 was immediately sent for medical examination. The
samples were collected and even before the medical officer, she had
narrated the incident of gang rape. She had given her statement
immediately. It is impossible to believe that she developed love
affair with accused No.1 during a very short time while they were
in the car and immediately had sexual intercourse with mutual
consent. The theory developed during the cross-examination is
neither believable nor acceptable and we discard it outrightly. An
attempt was made to give suggestion that PW-1 had consumed
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alcohol, had sexual intercourse with accused No.1 and had roamed
around with criminals, and this was not liked by PW-3 and others
and, therefore, to save her marriage she was made to lodge the
FIR. The theory itself is absurd. PW-3 was PW-1's aunt. None of
the witnesses were from her husband's side. It is not possible to
believe that PW-3 and the police forced PW-1 to falsely depose
against the accused.
54 As mentioned earlier, the DNA sample reports
conclusively establish that her vaginal swab and smear showed
presence of accused No.1's semen. His semen was also found on
the back-seat of the car. Accused No.2 Ganesh's semen was also
found on the back-seat as is revealed from the DNA profiling.
55 These circumstances on their own sufficiently prove the
guilt of these accused. The chance finger print of the accused No.2
Ganesh's thumb print found on the rear view mirror is another
strong circumstance.
56 It is not possible to accept Shri Sarda's submission that
the evidence of semen stains was planted in the car by the police.
The car was seized and the samples from the car were collected on
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2.4.2010 whereas accused No.1 Subhash was arrested on the next
day i.e. on 3.4.2010.
57 The evidence of Pws-2, 3 & 6 sufficiently corroborates the
prosecution case. PW-2 has spoken about the cryptic phone call
conversation whereby PW-1 was trying to give hidden message to
her parents. PW-2 got worried and contacted PW-3, who along
with aforementioned two friends immediately rushed to police
station. When PW-1 came to home, she contacted her mother
through her landline. PW-2 has deposed about the state in which
PW-1 was when she had returned home.
58 PW-6 has spoken about the message sent by PW-1
expressing her apprehension against the driver of the vehicle. All
these factors go on to establish all the connecting pieces of
evidence against the accused as these circumstances have
strengthened the prosecution case.
59 One of the important aspects in this case is about the
identity of the culprits. Learned counsel Shri Sarda and Smt Patil
submitted that identification parade memo is not produced on
record and the SEM who conducted the identification parade was
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not examined. In ordinary course, this submission would have
assumed importance. However, in the light of the evidence in this
particular case, non production of the test identification parade
memorandum and non examination of the SEM who conducted the
test identification parade is not important.
60 Learned A.P.P. has rightly relied on the judgment of the
Hon'ble Supreme Court in the case of Raja (supra). In that
judgment in paragraph-15, the Hon'ble Apex Court has observed
that what weightage must be given to T.I.P. is a matter to be
considered in the facts and circumstances of each case.
. Paragraph-16 of the same judgment makes reference to
various other judgments of the Hon'ble Supreme Court. One of
such judgments is in the case of Malkhansingh Vs. State of M.P. .
Paragraph-7 of that judgment reads thus :
"7. It is trite to say that the substantive
evidence is the evidence of identification in
court. Apart from the clear provisions of
Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of
this Court. The facts, which establish the
2 (2003) 5 SCC 746
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identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a
general rule, the substantive evidence of a
witness is the statement made in court. The
evidence of mere identification of the accused
person at the trial for the first time is from its
very nature inherently of a weak character.
The purpose of a prior test identification,
therefore, is 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
proceedings. This rule of prudence, however,
is subject to exceptions, 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 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 the accused to claim, a test
identification parade. They do not constitute
substantive evidence and these parades are
essentially governed by Section 162 of the
Code of Criminal Procedure. Failure to hold a
test identification parade would not make
inadmissible the evidence of identification in
court. The weight to be attached to such
identification should be a matter for the
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courts of fact. In appropriate cases it may
accept the evidence of identification even
without insisting on corroboration."
61 In paragraph-18 of Raja's case (supra), it is observed that
if material on record sufficiently indicates that reasons for "gaining
an enduring impression of the identity on the mind and memory of
the witnesses" are available on record, the matter stands in a
completely different perspective; and in such cases, even non-
holding of identification parade would not be fatal to the case of
the prosecution.
. Applying this test to the facts of the present case, certain
aspects are required to be considered. All the accused were in the
same car with PW-1 for sufficiently long time. They committed a
heinous crime. PW-1 had no escape and had no option but to be in
close contact with all the accused during the entire journey through
her entire ordeal. Therefore, it is not only natural for her to
remember their faces but it is impossible for her to forget their
faces. After such a traumatic experience she was unlikely to forgot
their features. She was examined in the Court in May, 2011 i.e.
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hardly after one year from the incident. Therefore, in this case
identification of the accused in the Court can safely be relied on.
62 Importantly accused No.1 through his counsel had taken
up a defence through suggestions that it was a consensual act.
Thus, occurrence of the incident and their journey together in the
car is admitted by accused No.1. Therefore, though the police
officer has deposed that his photograph was shown to PW-1 in the
police station before his arrest, it will not affect the prosecution
case. There is no evidence to suggest that photographs of other two
accused were shown or any of the accused was shown to PW-1 by
the police. Apart from this circumstance, as mentioned earlier,
there are other important clinching pieces of evidence against the
accused and, therefore, non-production of identification parade
memo and non-examination of the SEM, who had conducted the
identification parade, will not affect the prosecution case.
63 As far as the timing in the format of the FIR is concerned,
there is no cross-examination in that behalf and in any case the
endorsement on Exhibit 70-A shows that PW-1 had given statement
at 3:00 a.m. in the night itself and there is no delay.
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64 The medical evidence shows that PW-1 was subjected to
forceful sexual intercourse. This again establishes commission of
offence.
65 The last circumstance is about extra judicial confession
made by accused No.1 to PW-7 Arun Rithe. This witness was with
accused No.1 when accused No.1 was arrested. Thus, he was a
natural witness and, therefore, the confession made by accused
No.1 to him has to be given its due importance. It is a substantive
piece of evidence against accused No.1. It can also be used against
accused Nos.2 & 3 under Section 30 of the Indian Evidence Act to
lend assurance to the conclusion of guilt reached by the Court
against accused Nos.2 & 3. Through our earlier discussion, we
have already reached a conclusion that all the accused have
committed this offence. Therefore, this extra judicial confession
can be used against accused No.1 as a substantive piece of evidence
and can be used against accused Nos.2 & 3 to lend assurance to
the conclusion of guilt which we have reached against accused
Nos.2 & 3.
66 On the basis of this discussion, we are convinced that the
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prosecution has established its case against all the accused beyond
all reasonable doubt.
67 The next question which needs consideration is about
quantum of sentence. Both learned counsel submitted that
considering the fact that the accused were in custody since April,
2010 and since they were young at the time of commission of
offence, leniency be shown to them.
68 Smt Anjali Patil relied on the judgment delivered by a
Division Bench of the High Court Punjab and Haryana at
Chandigarh in the case of Kulwinder Singh @ Billu Vs. State of
Punjab . In that case, considering the age of the accused the
sentence of imprisonment for life was reduced to 12 years without
remission for offence under Section 376(2)(g) of IPC.
69 Learned A.P.P., on the other hand, relied on the judgment
of the Hon'ble Supreme Court in the case of Purushottam Dashrath
Borate and another Vs. State of Maharashtra . That was a case in
which the victim was murdered after commission of rape. That
3 Passed in CRA-D-242-DB-2013 dated 13.3.2019 (Punjab &
Haryana High Court).
4 2015 Cri.L.J. 2862
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was also a case from Pune where the victim was working in the
night shift. It was observed that in recent years, the rising crime
rate, particularly violent crimes against women had made the
criminal sentencing by the Courts a subject of concern. The
sentencing policy adopted by the Courts, in such cases, ought to
have a stricter yardstick so as to act as a deterrent. There are a
shockingly large number of cases where the sentence of
punishment awarded to the accused is not in proportion to the
gravity and magnitude of the offence thereby encouraging the
criminal and in the ultimate making justice suffer by weakening the
system's credibility. The object of sentencing policy should be to
see that the crime does not go unpunished and the victim of crime
as also the society has the satisfaction that justice has been done to
it.
70 In this particular case, PW-1 innocently took lift from
accused No.1. Accused Nos.1 & 2 and accused No.3 who joined
them subsequently, took advantage of her helplessness condition.
They committed rape on her. She was threatened. PW-1 has
suffered extreme trauma. The manner of commission of offence
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was cruel. Therefore, applying the principles laid down and the
observations made by Hon'ble Supreme Court in the case of
Purushottam Borate (supra), we are not inclined to reduce the
sentence.
71 We find no reason to interfere with the judgment and
order of conviction and sentence passed by the trial Court. Hence,
both the appeals are dismissed. In view of dismissal of the appeal,
nothing survives in Interim Application No.1387/2020 and same
also stands disposed of.
(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)
Deshmane (PS)
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