Bombay High Court
Mohd. Afroz S/O Jiyauddin Pathan vs State Of Mah., Thr Pso on 20 July, 2022
Bench: S.B. Shukre, G. A. Sanap
1 331 apeal748.18+3(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 748 OF 2018
with
CRIMINAL APPEAL NO. 63 OF 2019
with
CRIMINAL APPEAL NO. 308 OF 2019
with
CRIMINAL APPEAL NO. 409 OF 2019
.......
CRIMINAL APPEAL NO. 748 OF 2018
APPELLANT : Ashwin S/o Ashok Donode,
Aged about 28 years, R/o Hudkeshwar,
Nagpur (Presently Central Prison at Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
With
CRIMINAL APPEAL NO. 63 OF 2019
APPELLANTS : 1] Anil S/o Raju Ingle,
Aged about 35 years, R/o Goregaon,
Santosh Nagar, Mumbai
2] Roshan @ Ashish S/o Madhukarrao Ingle,
Aged about 25 years,
R/o Nandanwan, Nagpur.
(Both presently Central Prison at Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
2 331 apeal748.18+3(J).odt
With
CRIMINAL APPEAL NO. 308 OF 2019
APPELLANT : Pundlik S/o Domaji Bhoyar,
Aged about 34 years,
R/o Sanjay Gandhi Nagar, Nagpur.
(presently in Central Prison, Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
With
CRIMINAL APPEAL NO. 409 OF 2019
APPELLANT : Mohd. Afroz S/o Jiyauddin Pathan,
Aged about 38 years, R/o Behind Kharbi
Police Chowki, Nagpur.
(Presently Central Prison at Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
----------------------------------------------------------------------------------------------
Shri C. R. Thakur, Advocate for the Appellants in Cri. Appeal
Nos.748/18, 63/19 and 409/19
Shri S. R. Shinde, Advocate for the appellant in Cri. Appeal
No. 308/19.
Shri S. S. Doifode, Addl.P.P. for the respondent / State
----------------------------------------------------------------------------------------------
CORAM : SUNIL B. SHUKRE and G. A. SANAP, JJ.
Judgment Reserved on : JUNE 28, 2022.
Judgment Pronounced on : JULY 20, 2022
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JUDGMENT : (Per : G. A. SANAP, J.)
1. These four appeals arise out of the judgment and order
dated 23rd of October, 2018 passed by the learned Additional Sessions
Judge, Nagpur in Sessions Trial No. 278 of 2016 and the same are
being disposed of by this common judgment.
2. Criminal Appeal No.748 of 2018 is filed by appellant -
Ashwin Ashok Donode/original accused no.4. Criminal Appeal No.63
of 2019 is filed by appellants Anil Raju Ingle / original accused Nos.3
and Roshan @ Ashish S/o Madhukarrao Ingle / original accused no.6 ;
Criminal Appeal No. 308 of 2019 is filed by appellant - Pundlik S/o
Domaji Bhoyar / Original accused No.5, Criminal Appeal No. 409 of
2019 is filed by appellant - Mohd. Afroz S/o Jiyauddin Pathan /
original accused no.1.
3. The learned Additional Sessions Judge convicted all the
appellants for the offences punishable under Sections 376(D), 366,
506(II), 170 read with Section 34 of the Indian Penal Code. They are
awarded sentence for these offences as follows :
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(i) For the offence punishable under Section 376(D) read with
Section 34 of the Indian Penal Code, they are sentenced to suffer
rigorous imprisonment for twenty years and to pay a fine of
Rs.10,000/- each and in default to suffer rigorous imprisonment for
one year.
(ii) For the offence punishable under Section 366 read with
Section 34 of the Indian Penal Code, they are sentenced to suffer
rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-
each and in default to suffer rigorous imprisonment for six months
each.
(iii) For the offence punishable under Section 506(II) read with
Section 34 of the Indian Penal Code, they are sentenced to suffer
rigorous imprisonment for five years and to pay a fine of Rs.5,000/-
each and in default to suffer rigorous imprisonment for six months
each.
(iv) For the offence punishable under Section 170 read with Sec.
34 of the Indian Penal Code, they are sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs. 1,000/- each and in
default to suffer rigorous imprisonment for three months each.
5 331 apeal748.18+3(J).odt
4. The learned Judge acquitted original accused no.2 -
Sudarshan Gajanan Mhaiskar of all the offences. In this judgment, the
appellants would be referred to by their numbers and nomenclature
before the trial Court. The prosecutrix would be referred to as "the
victim".
5. The report was lodged by the victim herself at Kalamna
Police Station on 2nd December, 2014. The facts unfolded from the
report reveal that she resides at Mangaldeep Nagar-2, Besa Road,
Manewada, Nagpur with her family. At the relevant time, she was
serving as an Assistant Teacher in St. Paul High School, Hudkeshwar,
Nagpur. One Shailesh Sheware (PW4) got acquainted with the victim
on facebook. They became friends. They used to meet with each other
on account of their friendship. It is stated that on 1 st December, 2014
at about 2.00 pm Shailesh made a phone call to the victim and they
decided to meet at Swaminarayan Temple, Wathoda, Nandanwan in
the evening. The victim left a message with her neighbour Smt. Swati
Bhongade and left her house at 6.15 p.m. on her Honda Activa moped
bearing registration No. MH-31/ER-5226. Shailesh met her at Kharbi
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square. They together went to Swaminarayan Temple. After offering
prayers, they proceeded towards H.B.Town square by highway. After
proceeding on the highway at some distance, they took 'U' turn and
stopped at one place and were talking to each other.
6. It is the case of the prosecution that at about 8.00 p.m.,
five persons came on motorcycles from behind and proceeded ahead of
the victim and her friend Shailesh from the spot they were standing.
Those five persons saw the victim and her friend Shailesh. They
turned back and came to the victim and Shailesh. They made enquiry
with them. They told them that they were police officials. The victim
and Shailesh requested them to show their identity. On that they got
annoyed and one of them admonished the victim as "pqi cSB] T;knk
'kkuh er cu- chBk budks xkMh is" (keep quite. Don't be over smart. Make
them to seat on the vehicle. ) Thereafter, two persons amongst them
carried the victim and forced her to sit on her Activa moped between
rider and pillion rider. Shailesh (PW4) was also forced to sit on
another motorcycle between the rider and pillion rider. One person
amongst them was riding one motorcycle. They took the victim and
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Shailesh towards over bridge. After traveling some distance, accused
sitting on the motorcycle came near Activa moped and informed the
rider and pillion rider of Activa moped that the friend of the victim
had managed to run away.
7. It is stated that the victim, therefore, raised hue and cry
for help. The person sitting behind the victim on Activa moped
covered the face of the victim by her scarf. He pressed her hands and
gagged her month. In this condition, they carried the victim on a
straight road for 15 - 20 minutes. Thereafter, they took right turn and
proceeded by kachcha (unmetal) road for about five minutes. They
stopped the vehicle. They removed odhani from her face. The victim
was scared after looking at her surroundings. The victim realized that
she was brought at some distance away from highway. The victim
pleaded with the accused persons to allow her to go to her house. The
victim saw that two persons were of slim built and were in the age
group of 20-25 years. The remaining three persons were having strong
built and were in the age group of 35-40 years. It is stated that one
person out of them pointed a knife at her and told her that " T;knk ukVd
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er dj- tSlk cksyrs gS oSlk dj ugh rks dkVdj ;gh Qsd nsaxs" (Don't do any
drama. Listen to us. Do whatever we want otherwise they would cut
her into pieces and throw away.)
8. The victim was frightened. Those persons overpowered
her. Two persons caught hold her hands and legs and the remaining
persons removed all her clothes. One person spread a scarf on the
ground. The victim pleaded them with folded hands to leave her. It is
stated that all the five persons threatened to kill her with knife and
committed forcible sexual intercourse with her one by one. The victim
disclosed that six persons were involved in the crime. It is stated that
when the victim was carried to the spot by five persons, one more
person came there on motorcycle. In the head light of said motorcycle,
she could see the faces of all the persons. The victim also stated that
near the spot there were white colour tree-guards. On the spot, two
persons opened the dicky of her Activa moped. They checked the
same. One of them made enquiry about her name and address. She
gave false answer to the question. They took out scarf from the dicky
and one person put the same on his shoulder.
9 331 apeal748.18+3(J).odt
9. It is stated that after the beastly act of satisfying the lust,
accused persons asked the victim to wear her clothes. They brought
her back on the road. After traveling some distance, the victim saw a
sign board of Renuka College and realized that she was at village Besa.
The victim requested those persons to leave her there because one of
her friends was residing in the same area and from there she would
return to her house with her friend. Those persons left the victim at
the said place and went away. The victim did not go to the house of
her friend. She came back to her house at about 9.00 pm. She
narrated the incident to her father. The father took her to Kalamna
police station. The victim reported the entire incident to police. On
the basis of the report, Crime bearing No.401/2014 came to be
registered against unknown persons. The victim was sent for medical
examination at Mayo Hospital, Nagpur. She was medically examined.
The Medical Officer (PW9) collected the clothes on the person of the
victim. The Medical Officer also obtained blood sample of the victim.
10. The Investigating Officer conducted the investigation.
Senior Inspector of Police, Crime Branch, Nagpur informed Kalamna
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Police Station about arrest of the accused persons. The Investigating
Officer, therefore, obtained their custody and arrested them in above
crime on 22nd December, 2014. The Investigating Officer drew the
spot panchanama. He recorded the statements of the witnesses. At the
instance of the accused persons, five knives were discovered. Blood
samples of all the accused were collected. A Test Identification Parade
of all the accused was conducted. Muddemal and samples seized
during the course of investigation were forwarded to the Chemical
Analyser for analysis. The Investigating Officer obtained medical
examination report of the victim and opinion of the Medical Officer.
On completion of the investigation, he filed charge-sheet in the Court
of learned Judicial Magistrate, First Class, Nagpur. The offence being
exclusively triable by the Court of Sessions, the learned Magistrate
committed the case to the Court of learned Additional Sessions Judge,
Nagpur. On committal of the case, the learned Additional Sessions
Judge framed Charge (Exhibit-30) against all the accused persons.
They pleaded not guilty. Their defence is of total denial and false
implication.
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11. The prosecution has examined 21 witnesses and proved
the number of documents to bring home the guilt against the accused.
Learned Additional Sessions Judge, on consideration of the evidence
and material on record, found five accused guilty of the above offences
and sentenced them as mentioned above. Being aggrieved by this
judgment and order, the appellants have come before this Court in
appeal.
12. We have heard Shri C. R. Thakur, learned advocate for
the appellants in Cri. Appeal Nos. 748/18, 63/19 and 409/19, learned
Advocate Shri S. R. Shinde for the appellant in Cri. Appeal No.308/19
and Shri S. S. Doifode, learned Additional Public Prosecutor for the
respondent/State in all the appeals. With their able assistance, we have
gone through the record and proceedings.
13. Learned advocate Shri C.R. Thakur for the appellants in
Cri. Appeal Nos. 748/18, 63/19 and 409/19 submitted that evidence
of the victim (PW11) and her friend Shailesh (PW4) is full of
omissions and inconsistencies and therefore, it do not inspire
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confidence. He submitted that identity of the accused persons has not
been established beyond doubt. He took us through their evidence
and submitted that the version of the victim (PW11) and Shailesh
(PW4) would show that there was no electric or natural light on the
spot and therefore, they had no chance to see the faces of the accused
persons. The learned advocate submitted that during the course of
investigation, photographs of the accused persons were shown to the
victim and Shailesh (PW4) and therefore, the evidence of identification
parade and identification of the accused persons in the said parade is
not reliable. The learned advocate further submitted that if the
incident of forcible sexual intercourse, as narrated by the victim, had
occurred with her, then there would have been number of injuries on
her body and particularly on her private part. In the submission of the
learned advocate, absence of such injuries belies the version of the
victim on actual occurrence of the incident of sexual intercourse. The
learned advocate submitted that evidence of Shailesh (PW4) is not
reliable. He is a got up and tutored witness. Evidence of Shailesh
(PW4) is not corroborating the version of the victim on material
aspects. The learned advocate further submitted that the C.A. reports
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and DNA report cannot be relied upon to establish the guilt of the
appellants. He submitted that there is no cogent, concrete and reliable
evidence adduced by the prosecution to establish that there was no
possibility of tampering with the blood samples. The learned advocate
took us through the evidence and pointed out the lacunae in the said
evidence. The learned advocate submitted that the learned Additional
Sessions Judge, in the backdrop of shaky evidence led by the
prosecution, ought to have given benefit of doubt to the accused
persons and acquitted them.
14. Shri S.R. Shinde, learned advocate for appellant/ original
accused no.5 Pundlik Bhoyar in Criminal Appeal No. 309/2019,
besides adopting the above submissions advanced by learned advocate
Shri C.R. Thakur, submitted that on the basis of evidence of the victim,
the learned trial Judge ought to have given benefit of doubt to accused
no.5 and acquitted him. Learned advocate Shri Shinde submitted that
the victim has categorically stated that the person having ailment such
as leg fracture had attempted to commit rape on her. However, since
his leg was fractured, he was unable to do intercourse. The learned
14 331 apeal748.18+3(J).odt
advocate submitted that the learned Judge based on positive DNA
report of cervical swab taken from cervix of the victim found accused
no.5 guilty and convicted him. The learned advocate submitted that in
view of the positive statement of the victim, conviction of accused no.5
cannot be sustained.
15. Shri S. S. Doifode, learned Additional Public Prosecutor
submitted that the victim has narrated the first hand account of the
incident and which the learned Judge has found sufficient to prove the
incident. The learned APP has submitted that evidence of the victim
(PW11) and Shailesh (PW4) is beyond pale of doubt. Their evidence
has not been shaken in their cross-examination. Learned APP
submitted that oral evidence of the victim on the actual occurrence of
rape has been corroborated by her medical examination report, C.A.
reports and DNA reports. He submitted that evidence of Test
Identification Parade of the accused persons conducted by the
Executive Magistrate (PW15) proves beyond doubt that the procedure
was scrupulously followed and after scrupulously following the
procedure, the victim and her friend Shailesh identified the accused
15 331 apeal748.18+3(J).odt
persons in the said Test Identification Parade. Learned APP, in short,
submitted that oral testimony of the victim and independent witness
Shailesh has been corroborated by other cogent evidence.
16. We have minutely scrutinized the evidence on record.
The victim (PW11) in her evidence before the Court has placed on
record vivid account of the unfortunate incident occurred with her.
On the date of the incident, the victim was working as a Teacher. She
was unmarried. The victim, as stated by her, got acquainted with
Shailesh (PW4) on facebook and they became friends. They were
frequently meeting each other. At the time of the incident, the victim
was 21 years of age. She was gainfully employed as a Teacher. At this
stage of her life, she would be dreaming and planning to find a suitable
match and settle in her life. The unfortunate and unforeseen incident
would have scattered her dream to smithereens. The victim would not
have imagined such a fait accompli in her wildest dreams. The accused
were not known to the victim prior to the incident. It can be seen from
the judgment of the learned trial Judge that accused Mohd. Afroz, Anil
Ingle and Pundlik Bhoyar were convicted and sentenced vide
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judgment and order dated 24th August, 2017 in Special MCOC Case
No.3/2005 by the learned Special Judge, Nagpur for the offences
punishable under Sections 376-D, 366, 504, 506-B, 377 and 394 read
with Section 34 of the Indian Penal Code. It is seen that the said
incident had occurred on 26.11.2014. The girl in the said case was
abducted and subjected to forcible sexual intercourse by these accused.
In the said case, these accused had impersonated before the victim and
her boyfriend as forest personnel and under the threat of knife, they
abducted the girl and committed rape. It is seen that these accused
persons in the past had tasted the blood and satisfied their lust by
committing gang rape.
17. It would be necessary in the above backdrop to appreciate
the evidence of the victim. The victim has stated that on 11 th
December 2014, she and Shailesh decided to visit Swaminarayan
Temple in the evening. At about 5.00 p.m. the victim proceeded on
her Activa moped bearing registration No. MH-31/ER-5226. As
decided, Shailesh came to Kharbi square and from there they went to
Swaminarayan Temple and offered prayers. After having tea at
17 331 apeal748.18+3(J).odt
canteen, they proceeded ahead by Kalamna road till H.B. town square.
At village Lihigaon, they took 'U' turn for returning back to Nagpur.
They stopped at the side of the road and were chit-chatting. The victim
has stated that at that time, two motorcycles came from behind and
went ahead of them. However, the persons on the bike returned back
to them. They made enquiry with the victim and Shailesh. They
impersonated them to be the policemen and told the victim and
Shailesh that they would have to accompany them to Pardi police
station. The victim has stated that she made an enquiry with them
about their identity cards inasmuch as they were not wearing police
uniform. She has stated that at this point of time, one person amongst
them told her as "T;knk 'kk;uh er cu" (don't be oversmart) and
brandished a knife at her. Those persons thereafter forcibly made the
victim to sit on her Activa moped between the rider and pillion rider
and Shailesh on another motorcycle between the rider and pillion rider.
On the way, the rider of the motorcycle came near Activa moped and
informed that companion of the victim has ran away. The victim at
that time raised alarm by shouting " cpkvks] cpkvks" (save, save). She has
further stated that thereafter her face was covered by a scarf and a knife
18 331 apeal748.18+3(J).odt
was pointed at her waist. They carried the victim on the spot. The
victim has narrated that they threatened her of dire consequences. She
raised alarm. She has stated that at that point of time, one more person
came there on the motorcycle. She saw all the accused persons clearly.
She has stated that thereafter the accused persons removed her clothes
forcibly and they all committed sexual intercourse with her. The
victim has stated that she requested the accused with folded hands to
let her go. Evidence of the victim would show that the accused persons
did not free her before satisfying their beastly lust. The victim has
elaborately stated about arrival of the accused persons on the spot,
occurrence of the incident, the place where she was dropped by the
accused persons after crime and narration of the incident to her father
by her. Evidence of the victim is consistent with the facts stated in the
report. The crime was registered against unknown persons. The
victim was sent for medical examination. Clothes on the person of the
victim at the time of occurrence of the incident were collected by the
Medical Officer. Those were seized and handed over to the police
officer. The Medical Officer collected the blood sample of the victim.
The Medical Officer found two injuries on the back of the victim. The
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Medical Officer on examination, prima facie, opined that the victim
was subjected to forceful sexual intercourse.
18. The victim was subjected to grueling cross-examination
on behalf of the accused persons. Perusal of the cross-examination of
the victim would show that her testimony was assailed on the ground
that there was no sufficient light either on the road or on the spot,
which would enable the victim to see the accused persons with clarity
and identify them. In our view, this line of cross-examination, has not
caused any dent to the evidence of the victim. The victim has narrated
in great detail the plight she had undergone at the hands of the accused
persons and she has also narrated the interaction by the accused
persons with her during the course of the incident. They subjected her
to sexual intercourse. The victim, therefore, had an occasion to see the
faces of the accused persons from a very close distance. The victim has
further stated that there was a moon light as well as there was sufficient
light of the bike when sixth accused later on came on the spot on a
motorcycle. It has been proved in this case that the victim was carried
on her Activa moped by two accused persons and other two accused
carried her friend Shailesh on another motorcycle on the highway. The
20 331 apeal748.18+3(J).odt
victim has stated that she saw the faces of all the accused persons with
clarity in the headlight of the vehicles coming from opposite direction.
It has come on record in her evidence that they travelled on the road
for 15-20 minutes continuously. Her face was covered when she
raised hue and cry after getting knowledge that her friend Shailesh had
escaped from the clutches of two accused persons riding on another
motorcycle. After this, her face was covered with her scarf. Therefore,
the evidence on record clearly indicate that the victim had an
opportunity to see the faces of the accused persons. Besides, in order
to test the capacity and power of her observation, she was called upon
to identify the accused persons in Test Identification Parade. The
victim has stated that at the time of identification parade of the accused
persons, she went to the prison and in the identification parade she
identified the accused persons. It is to be mentioned at this stage that
the evidence of Test Identification Parade can be used for the purpose
of corroboration. Identification of the accused by the witness in Court
is the substantive piece of evidence
19. On a perusal of evidence of the victim, it is seen that at
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the time of evidence, the victim has identified each and every accused.
Perusal of her evidence would show that in the Court she pointed out
each and every accused person to the Court and described the overt act
done by each and every accused. In our opinion, her cross-
examination has not caused a slightest dent to this part of the evidence
of the victim. The core of her evidence on identification of the accused
persons has not been shaken. Identification of the accused persons in
the Test Identification Parade and the actual identification of the
accused persons in the Court is consistent. The learned trial Judge has
not given any weightage to this cross-examination. This line of cross-
examination and the answers given by the witness are not worthy of
credence to discard evidence of the victim on this point.
20. It is not the case of the accused persons that for one reason
or the other or on account of some enmity they have been falsely
implicated in this case. The unfortunate victim at prime age of her life
was subjected to a beastly attack of the accused persons. The manner in
which she was treated during the course of the incident indicates that
her womanhood, pride, prestige and dignity was defiled. The accused
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persons satisfied their lust in a shameful manner. The accused persons
took advantage of the situation. The victim has categorically stated
that the accused who came lastly was having some ailment like fracture.
He attempted to do sexual intercourse with her, however since his leg
was fractured, he was unable to do so. The said person in order to
satisfy his lust made her to turn but even thereafter he was unable to
perform sexual intercourse with her. It is to be noted that this accused
seems to have been spared on this count, however the DNA report and
semen report of this accused is positive. It is to be noted that the
victim in such a fearful state of mind, might not have sensed the
penetration. However, positive DNA report clearly indicates that this
accused also had a penetrative sexual intercourse with the victim,
otherwise, there was no reason to detect his semen in the cervix of the
victim. The victim, as can be seen from her cross-examination, has
successfully weathered the storm of grueling and searching cross-
examination. Perusal of the cross-examination in entirety would show
that the cross-examiners despite their efforts to discredit her, could not
deviate her an inch from the core of her evidence on the actual
occurrence and the presence of the accused persons/appellants in these
23 331 apeal748.18+3(J).odt
appeals on the spot. On re-appreciation of the evidence of the victim,
we are convinced that the victim has narrated before the Court a
truthful account of the incident occurred with her and involvement of
the appellants.
21. In order to seek corroboration to the evidence of the
victim (PW11), reliance has been placed on the evidence of Shailesh
(PW4). In his evidence, Shailesh has stated that on the date of the
incident at about 7.00 to 8.00 pm, he along with the victim were
proceeding on Kamptee highway. They took 'U' turn from Lihigaon to
come back to Nagpur. He has stated that after taking 'U' turn they
stopped at the side of the road and were chit-chatting. His evidence is
consistent with the evidence of the victim on the point of arrival of five
persons on the spot on two motorcycles. He has categorically stated
that those five persons went ahead of them but again returned back to
them on their motorcycles. Those five persons made enquiry with
them. On being questioned by the victim, those persons stated that
they were police officers and insisted to accompany them to police
station. He has categorically stated that the victim enquired with them
24 331 apeal748.18+3(J).odt
about their identity cards. On such an enquiry, one person told victim
as "rq T;knk 'kk;uh cu jgh D;k" (are you trying to become oversmart) .
In his further evidence, he has stated that two persons out of them
forced the victim to sit on her Activa moped between rider and pillion
rider. Similarly, he was forced to sit on a motorcycle by the accused
between rider and pillion rider. They carried them towards Umred.
He has stated that one person on another motorcycle was following
Activa moped and the motorcycle on which he was made to sit.
Shailesh (PW4) has categorically stated that his pillion rider had
gagged his moth and pointed knife at his waist. He was frightened.
He apprehended that those persons would kill him. At that time, he
observed the object pointed at his chest and realized that it was
covered. He has stated that he caught hold the said object (knife) and
made an attempt to remove the hand of said person from his mouth.
He has stated that in this process the motorcycle lost its balance and
the rider stopped it. He has stated that as soon as the motorcycle
stopped, he gave a forcible push to the person sitting behind him and
escaped from his custody. He ran away towards bridge. His further
evidence would show that he went to a pan shop and narrated the
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incident to that pan stall keeper and sought his help. The pan stall
keeper suggested him to go to the police, who were at some distance
from his pan stall and inform the incident to them. Shailesh went
there and found two police officials. He narrated the incident to them.
He has stated that in his presence the police officials immediately
conveyed this information on wireless to some other person. He has
stated that he and two police officials took search of the victim upto
10.00 p.m., however they could not trace out her. He has stated that at
about 10.00 pm he came to know from the police officials that the
victim had reached her house. The police officials carried him to
Kalamna police station. He has stated that the victim came to the
police station after about one hour.
22. Perusal of evidence of Shailesh (PW4) would further show
that on the part of the incident witnessed by him, his evidence is
consistent with the victim and as such corroborates the version of the
victim. His conduct as can be seen from his evidence is consistent with
the man of ordinary prudence placed in the similar situation. He tried
his level best to save the victim from the clutches of five persons who
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had kidnapped her. He made all possible efforts with the police to
trace out the victim. His evidence would have become doubtful if he
had not made any effort to locate and rescue the victim from the
clutches of the five person.
23. It has come on record in the evidence of Shailesh (PW4)
that one person out of five had a problem to one of his legs. He was
not knowing the accused persons before the incident. He was called by
the police for identification of the accused in Test Identification
Parade. He has stated that on two occasions he was called to jail to
identify the accused. His evidence would show that he could not
identify some accused persons at the time of Test Identification Parade.
It has come on record that on first occasion he identified accused Anil
Ingle and Pundlik Bhoyar and on second occasion he identified
accused Roshan Ingle. It is, therefore, apparent that on 23 rd January,
2015 Shailesh (PW4) identified accused Anil Ingle, Pundlik Bhoyar
and Roshan Ingle. On the date of second Identification Parade namely
29th January, 2015, he identified accused Mohd. Afroz. He could not
identify accused Sudarshan Mhaiskar and Ashwin Donode. While
27 331 apeal748.18+3(J).odt
appreciating his evidence on the identification of the four accused by
Shailesh (PW4), it needs to be borne in mind that he did not witness
the entire incident. He was witness to the part of the incident. It is
further pertinent to note that all of a sudden the victim and Shailesh
were made to sit on the motorcycles. Shailesh's evidence indicates that
a knife like object was pointed at his chest and his mouth was gagged
by the pillion rider. He managed to escape from the clutches of the
pillion rider of the motorcycle, on which he was made to sit. His
evidence before the Court would show that in the Court he identified
Pundlik Bhoyar, Sudarshan Mhaiskar and Mohd. Afroz. It is
submitted on the basis of this statement of PW4 that he was not an
eye-witness even to the part of the incident.
24. We have minutely perused the cross-examination of
Shailesh (PW4). Perusal of his cross-examination would show that on
the point of part of the incident deposed by him, his evidence has not
been shaken. The answers given by him in his cross-examination are
consistent and are sufficient to conclude that he is not a got up witness.
It has further come on record that there are two independent witnesses,
28 331 apeal748.18+3(J).odt
one is the pan stall keeper (PW13) to whom Shailesh had approached
for the first time and the another is a police officer (PW10) to whom
he narrated the incident. It is pertinent to mention that failure to
identify some of the accused persons may not go against this witness
inasmuch as he had not witnessed the entire incident. Identification of
some of the accused by Shailesh is consistent with his evidence on the
point of the part of the incident. On a minute scrutiny of the evidence
of this witness, we are convinced that the evidence of this witness is
consistent with the part of the incident narrated by the victim. His
evidence proves beyond doubt that he was present on the spot, when
the accused came on the spot and forcefully made them to sit on the
motorcycles and carried them to an unknown destination. The other
corroborative evidence adduced by the prosecution as discussed above
lends an assurance to the testimony of Shailesh (PW4). We, therefore,
do not see any reason to discard and disbelieve his evidence.
25. Evidence of the victim (PW11) has been corroborated on
the first part of the incident by Shailesh (PW4). It is further pertinent
to note that the victim in her evidence has narrated the first hand
29 331 apeal748.18+3(J).odt
account of the entire incident. Even if it is assumed for the sake of
argument that there is no corroborative evidence, in that event also this
Court would not have rejected the evidence of the victim. In this
context, we may usefully refer to the decisions of the Hon'ble Apex
Court in the case of State of Punjab .vs. Gurmit Singh and others,
reported at AIR 1996 SC 1393 and in the case of Ganga Singh .vs.
State of Madhya Pradesh, reported at (2013) 7 SCC 278.
26. In the case of State of Punjab .vs. Gurmit Singh (supra), it
is held that the testimony of a victim in sexual assault cases is vital and
unless there are compelling reasons, which necessitated looking for
corroboration to her statement, the Court should not find it difficult to
act on the testimony of the victim of sexual assault alone to convict an
accused, where the testimony inspires confidence and is found to be
reliable. It is further held that insistence of seeking corroboration to
the testimony of the victim in such offences before relying on the same
as a rule, amounts to adding insult to the injury. In the case of Ganga
Singh .vs. State of Madhya Pradesh (supra) , it is held that the
prosecutrix is a victim and not an accomplice in the offence and there
30 331 apeal748.18+3(J).odt
is no provision in the Evidence Act requiring corroboration in material
particulars to the evidence of the prosecutrix as is required in case of
evidence of an accomplice. It is held that sole testimony of the victim
can be sufficient to prove the guilt of the accused. It is further held
that at the most, the Court can look for other evidence, which may
lend some assurance to her evidence, short of corroboration required in
the case of an accomplice. The nature of evidence required to lend an
assurance to the testimony of a prosecutrix most necessarily depend
upon the facts and circumstances of each case. In our view, the
decisions referred to above would be squarely applicable to this case.
27. In the case at hand, evidence of the victim (PW11), on
minute scrutiny, is found to be worth credible. Her evidence inspires
confidence. The first hand account of the incident narrated by the
victim and involvement of the accused persons in commission of a
crime has been proved. The evidence of the victim on the part of the
incident has been fully corroborated by the evidence of Shailesh
(PW4). The testimony of Shailesh (PW4) equally inspires confidence.
31 331 apeal748.18+3(J).odt
28. Before proceeding to the medical evidence, at this stage it
would be appropriate to consider evidence of the Executive Magistrate
Shri Ravindra Bhope (PW15) who had conducted the Test
Identification Parade. In his evidence he has stated about the
identification parade of the accused persons conducted by him. In his
evidence in great detail he has narrated the procedure followed by him
at the time of conducting Test Identification Parade of the accused. He
has categorically stated that in the identification parade conducted on
23rd January, 2015, the victim had identified accused Anil Ingle and
Pundlik Bhoyar in first round and accused Roshan Ingle in second
round. He has stated that Shailesh (PW4) had identified accused Anil
Ingle and Pundlik Bhoyar in the first round and accused Roshan Ingle
in the second round. Shri Bhope (PW15) has stated that on 29 th
January, 2015 again he had conducted Test Identification Parade of the
other accused persons. He has stated that in the said identification
parade the victim identified accused Mohd. Afroz and Sudarshan
Mhaiskar in the first round and accused Ashwin Donode in the second
round. He has categorically stated that Shailesh (PW4) identified
accused Mohd. Afroz only. Shailesh (PW4) could not identify accused
32 331 apeal748.18+3(J).odt
Sudarshan Mhaiskar and Ashwin Donode. The memorandums of Test
Identification Parade conducted on 23 rd January, 2015 are at Exhibits-
90 to 93 and the memorandums of Test Identification Parade
conducted on 29th January, 2015 are at Exhibits-96 to 99. Evidence of
Shri Bhope (PW15) corroborates the version of the victim (PW11) and
Shailesh (pw4) on the point of identification of the accused persons by
them in the identification parade. We do not see any reason to doubt
the evidence of Shri Bhope (PW15), who is an independent witness.
By no stretch of imagination he could be said to be an interested
witness. Evidence of Shri Bhope (PW15) has been corroborated by
contemporaneous record of the Test Identification Parade maintained
by him.
29. The evidence of medical examination of the victim in the
given set of facts would be the vital corroborative piece of evidence.
The victim (PW11) has deposed in her evidence about her examination
by the Doctors. It has come on record that after lodging the report, she
was referred to Mayo Hospital, Nagpur. The victim has identified her
clothes, which were taken in custody by the Medical Officer at the time
33 331 apeal748.18+3(J).odt
of her medical examination. Dr. Rajesh Chintalwar (PW9) is the
Medical Officer, who has testified about medical examination of the
victim. He has deposed that the victim was referred by the CMO
Gynec Department to his Department. The victim was brought by
WPC Sheela. He has stated that he himself, Dr. Zafar and Dr. Anuja
examined the victim in the Labour Room with her consent. Dr.
Chintalwar (PW9) has deposed that greenish yellow colour scarf
(odhni) on the person of the victim was found stained with sticky fluid
with adherent soil particles on the same. They found yellow colour top
and blue leggings were having white stains. On actual examination of
the victim, they found abrasion on her back in mid line at Level-1
vertebra of size 2 x 2 cm, dark red in colour and two linear abrasions
parallel to each other over back to mid line of 7 cm, just above injury
no.1. Dr. Chintalwar (PW9) has deposed that they collected perianal
swab, vaginal swab, cervical swab, blood sample and nail clippings of
the victim. Dr. Chintalwar (PW9) has categorically stated that
immediately after examination of the victim and collection of the
samples, clothes on the person of the victim, which were taken by him
in his custody, were packed and sealed. Similarly all the samples were
34 331 apeal748.18+3(J).odt
packed and sealed. The sealed samples were handed over to WPC
Sheela Bisen (PW6). The medical examination report of the victim is at
Exhibit-68.
30. Perusal of the medical examination report of the victim at
Exhibit-68, inter alia, indicates that history of assault was narrated by
the victim to the Medical Officers Dr. Chintalwar (PW9) and his
associates and the same was recorded by the him in the report. The
history of assault narrated by the victim to the Medical Officers and
found recorded in the medical examination report at Exh.68 would
further lend an assurance to the evidence of the victim as well as
evidence of the Medical Officer Dr. Chintalwar (PW9). The Medical
Officer gave opinion that there was evidence of application of force on
the victim. The final opinion was reserved subject to the FSL report.
On receipt of FSL report of the samples, the Medical Officer gave an
opinion that the victim was recently subjected to forceful sexual assault
and the sexual assault was committed by the accused persons.
Evidence of Dr. Chintalwar (PW9) was assailed in cross-examination
on the ground that in absence of serious injuries either on the private
35 331 apeal748.18+3(J).odt
part or on other parts of the body of the victim, he has given a report
supporting the case of the prosecution. It is sought to be contended
that if evidence of the victim is considered at its face value, then there
ought to have been number of injuries on her body as well as on
private part. In our opinion, on this ground evidence of the Medical
Officer and the version of the victim cannot be disbelieved. It has
come on record in the evidence that five accused were carrying knives.
They brandished knives in presence of the victim. One of the accused
had pointed the knife at her body.
31. On the basis of the first hand vivid account of the incident
narrated by the victim, one can visualize the precarious position of the
victim in the custody of the accused. The accused had threatened the
victim of dire consequences, if she did not submit to their lust. There
were two injuries on her back. It, therefore, cannot be said that there
were no injuries at all. The major injuries might not have caused
because the victim was helpless and could not resist. There was no
alternative before the victim than to submit to the commands of the
accused. Evidence of the Medical Officer Dr. Chintalwar (PW9),
36 331 apeal748.18+3(J).odt
therefore, corroborates the version of the victim on this material aspect.
An attempt has been made in the cross-examination of the Medical
Officer to indicate that packing and sealing of the samples and articles
was not done properly. Perusal of his cross- examination would show
that this attempt has been proved unsuccessful.
32. The next corroborative piece of evidence is C.A. and
DNA reports. At the outset, on this point we may usefully refer to the
decision of the Hon'ble Apex Court in the case of Mukesh and another
.vs. State for NCT of Delhi and others, reported in 2017 All M.R. (Cri)
2448 (SC). The law as regards admissibility and evidentiary value of
DNA report has been authoritatively laid down in this case. It is held
that it is quite clear that DNA report deserves to be accepted unless it is
absolutely dented and for non-acceptance of the same it has to be
established that there had been no quality control or quality assurance.
It is held that if the sampling is proper and if there is no evidence as to
tampering of the samples, DNA test report is to be accepted. It is held
that DNA test is scientifically accurate.
33. In this case, the prosecution has adduced more than
37 331 apeal748.18+3(J).odt
sufficient evidence to establish that possibility of tampering of the
samples has been completely ruled out. The blood sample and vaginal
samples of the victim had been collected by Dr. Chintalwar (PW9).
The clothes on the person of the victim at the time of commission of
rape had also been taken in custody by Dr. Chintalwar (PW9). The
clothes and samples collected by PW9 had been sealed by him. He has
testified about the packing and sealing of the samples. Dr. Chintalwar
(PW9) had examined the victim and collected the samples on 2 nd
December, 2014. WPC Sheela Bisen (PW6), who had taken the victim
for medical examination to Mayo Hospital, has testified that on
examination of the victim by Dr. Chintalwar (PW9), he handed over to
her the samples in packed and sealed condition along with 'B' form and
the same were handed over by her to the Investigating Officer. The
Investigating Officer immediately forwarded those samples to the
Regional Forensic Science Laboratory (RFSL), Nagpur in sealed
condition. There is no material on record even to suggest that there
was possibility of tempering with the seals on the sample packets.
34. In the context of the above, it would be necessary to
38 331 apeal748.18+3(J).odt
appreciate the evidence of Smt. Shivangi Apte (PW16), Assistant
Director of RFSL, Nagpur, who had analyzed the samples. In her
evidence she has narrated the condition of the samples and the seals
put on the sample packets. She has stated that she had conducted
analysis of the samples for finding blood and semen, if any, on the
clothes of the victim. She has stated that on examination of 'odhani',
she found one stain of blood mixed with semen and few semen stains.
On further analysis she found that blood and semen stains were of
human origin. She accordingly prepared the report, which is at
Exhibit-109. She has further deposed that she examined and analyzed
the blood sample, cervical swab, perianal swab, vaginal swab and nail
clippings. She referred those samples for DNA analysis to the DNA
Division of RFSL, Nagpur. The report is at Exhibit-110. She was
cross-examined on behalf of accused no.1. Except suggestions, no
other questions were put to this witness. There is no denial to the
evidence of Shivangi Apte (PW16) that she received the samples in
sealed condition. On appreciation of the evidence, we are satisfied that
the samples were immediately forwarded to the Chemical Analyser,
Nagpur. It has been proved that there was no tampering of the seals of
39 331 apeal748.18+3(J).odt
the samples. This evidence corroborates the version of the victim on
the point of her examination by the Medical Officer (PW9), seizure of
clothes on her person and drawing of the samples.
35. It has come on record that on 22nd December, 2014,
accused persons were arrested in the crime. The Investigating Officer
on 23rd December, 2014 made a request to RFSL, Nagpur to provide
DNA kits for collection of the blood samples of the accused persons.
Vijay Khangar (PW7), Naib Police Constable was deputed to collect
the DNA kits. He has deposed about the same. Exhibit-59 is the
requisition letter addressed by the Investigating Officer to the Deputy
Director, RFSL, Nagpur in this connection. The Investigating Officer
has deposed that immediately on the next day he arranged to send the
accused to Mayo Hospital with written request to the Medical Officer
to collect their blood samples for DNA analysis. NPC Vijay Khangar
(PW7) has deposed that on the next day of bringing DNA kits, he
along with the other police staff members, carried six accused persons
to Mayo Hospital, for obtaining their DNA samples. He has stated
that the Medical Officer collected the blood samples of all the accused
40 331 apeal748.18+3(J).odt
persons. The samples were handed over to him in sealed condition.
The request letter to the Medical Officer is at Exh.60. The Medical
Officer acknowledged the receipt of said letter (Exh.60) on 24 th
December, 2014. He has stated that on the same day, namely 24 th
December, 2014, he carried the DNA samples to RFSL, Nagpur. The
forwarding letter addressed by the Investigating Officer to the Deputy
Director, RFSL, Nagpur is dated 24th December, 20124. It is at
Exhibit-61. Exhibit-62 is the acknowledgment issued by the Receiving
Clerk from the office of RFSL, Nagpur in token of receipt of the
articles. It has come on record in the evidence of the Investigating
Officer that the accused were referred to the Medical Officer for their
examination to opine whether they were capable of performing sexual
act. They were examined and the reports are on record.
36. Dr. Sandeep Gajbhiye (PW12), on 26th December, 2014
conducted medical examination of accused Anil Ingle, accused Roshan
@ Ashish Ingle, accused Pundlik Bhoyar and accused Mohd. Afroz.
Their examination reports are at Exhibits-80 to 84. He has
categorically stated in his reports that there was nothing to suggest that
41 331 apeal748.18+3(J).odt
they were incapable of performing sexual intercourse. For the purpose
of testing the veracity and credibility of the version of the victim, it
would be necessary to consider the medical examination report of
accused Pundlik Bhoyar (Exhibit-83). It is the case of the prosecution
that the Medical Officer found that he was having infected wound over
his left foot covered with white hospital bandage. Accused-Pundlik
had narrated the history of orthopedic surgery on his both upper limbs
and left leg five years back. It is necessary to mention at this stage that
this deformity was noticed by the victim at the time of the incident.
Her evidence on this point has already been considered in great detail.
Evidence of Dr. Gajbhiye (PW12), despite being subjected to searching
cross-examination, has not been shaken on this material aspect.
37. Dr. Prasad Saigaonkar (PW17), is the Medical Officer who
had examined accused Sudarshan Mhaiskar. He had collected the
samples. His medical examination report is at Exhibit-113. He has
opined that there was nothing to suggest that accused Sudarshan was
incapable of performing sexual intercourse.
42 331 apeal748.18+3(J).odt
38. Dr. Pawan Raut, (PW20) is the Medical Officer, who on
24th December, 2014 had examined accused Ashwin Donode. He had
collected the samples of accused Ashwin. His medical examination
report is at Exh.165. The Medical Officer opined that there was
nothing to suggest that he was incapable of performing sexual
intercourse. In our opinion, evidence of the Medical Officers (PW12,
PW17 and PW20) corroborate the case of the prosecution on material
aspects.
39. The clothes of the accused persons seized during the
course of investigation as well as their blood and other samples drawn
by the Medical Officers were forwarded to the Regional Forensic
Science Laboratory (RFSL), Nagpur. An acknowledgment to that
effect is at Exh.145. The samples had been carried to the Chemical
Analyzer, Nagpur by NPC Shekhar Kabhe. The Investigating Officer
has deposed about the same in great detail.
40. In the above backdrop, it would be necessary to consider
the evidence of Dr. Neha Bhandarkar (PW21). She had collected the
43 331 apeal748.18+3(J).odt
blood samples of all the accused for the purpose of DNA analysis. She
has deposed that after establishing identity of the accused persons, she
obtained their consent for collection of the blood samples. Accused
gave their consent. She has categorically stated that blood samples
were collected with the help of needle and syringe. She has deposed
about the precautions taken by her at the time of collection of the
blood samples and packing and sealing of the same along with the
identification forms. The identification forms are at Exhibits-169 to
174. Evidence of Dr. Bhandarkar (PW21) has been corroborated by
contemporaneous documentary evidence. The evidence of Dr.
Bhandarkar has proved beyond doubt that there was no possibility of
manipulation or tampering with the samples of the accused persons.
41. Neha Bhale (PW18) at the relevant time was attached to
RFSL, Nagpur as an Assistant Chemical Analyzer. She had analyzed
the DNA samples received in DNA Division of RFSL, Nagpur. At this
stage it is necessary to state that DNA which is found in chromosomes
of the cells of living beings is the blueprint of an individual. DNA is
the genetic blue print for life and is contained in every cell of the body.
44 331 apeal748.18+3(J).odt
No two persons, except identical twins can have identical DNA.
Therefore, DNA profiling is an extremely accurate method to draw
comparison of a suspect's DNA with crime scene specimen, victim's
DNA in the form of a blood stain, semen or any other part of the body
of the accused. DNA evidence is as such now a predominant forensic
technique for identifying criminals based on the biological tissues left
behind at the seen of the crime or for the purpose of identifying the
source of blood found on any article or clothes etc. either found on the
spot or recovered from the accused or from the witnesses. DNA
analysis of the samples such as saliva, skin, blood, hair or semen with
certainty, not only helps to convict the criminal, but also to extend
benefit to the criminal.
42. Neha Bhale (PW18), as stated above, analyzed the DNA
samples. She has stated that she received one blood mixed semen stain
cutting from odhani, simple semen stains cutting from odhani, blood
and medical samples of the victim from Biological Section and the
blood samples of six accused persons in Crime No. 401/2014 of Police
Station, Kalamna. She carried out the analysis to extract DNA from
45 331 apeal748.18+3(J).odt
the samples. She has stated that the extracted DNA from the samples
was subjected to Polymerized Change Reaction (PCR) technique.
With the help of PCR technique, she obtained DNA profile from the
samples. She has stated that she found blood mixed semen stains on
odhani. She has stated that mixed DNA profile obtained from blood
mixed semen detected on odhani (Ex.5) matched with the DNA
profile obtained from blood of the victim and blood of accused Roshan
@ Ashish Madhukar Ingle. She has further stated that DNA profile
obtained from semen stain Nos. 1, 3, 4, 5, 7 and 8 detected on odhani
(Ex.5) were identical and from one and same source of male origin and
matched with DNA profile obtained from blood of Roshan @ Ashish
Ingle. She has further stated that mixed DNA profile obtained from
semen stain no.2 detected on odhani (Ex.5) matched with DNA
profile obtained from blood of accused Anil Raju Ingle, Ashwin Ashok
Donode and the victim. She has further stated that the mixed DNA
profile obtained from semen stain nos.6 and 9 detected on odhani
(Ex.5) matched with DNA profile obtained from blood of Mohd.
AfroZ Jiyauddin Pathan, Roshan @ Ashish Madhukar Ingle and the
victim. She has stated that DNA profile obtained from Ex.2 cervical
46 331 apeal748.18+3(J).odt
swab matched with DNA profile obtained from blood of Mohd. Afroz
Jiyauddin Pathan, Anil Raju Ingle, Ashwin Ashok Donode, Pundlik
Domaji Bhoyar, Roshan @ Ashish Madhukar Ingle and the victim.
She has stated that DNA profile obtained from Ex.3 perianal swab was
of female origin and the same matched with DNA profile obtained
from the blood of the victim. She has stated that on completion of
analysis, she prepared the report on 31st January, 2015. The report is at
Exh.116. She has stated that she has recorded her interpretation on
DNA samples at page no.4 of her report.
43. Before proceeding to consider the cross-examination of
Smt. Bhale (PW18), it would necessary to advert to one important part
of her evidence. She has stated that all the samples either received
from Biological Section of RFSL, Nagpur or from the Investigating
Officer, were in sealed condition. Document at Exhibit-117 is the
DNA report. The description of sample parcels has been noted down
in this report. It has been mentioned that the blood samples of six
accused persons were received in six plastic containers. The seals were
intact and were as per the copy sent. It is also mentioned that the
47 331 apeal748.18+3(J).odt
samples received from Biological Section of RFSL, Nagpur were also in
sealed condition. The oral evidence of Smt. Bhale (PW18) coupled
with the documentary evidence in the form of DNA report (Exhibit-
117) and the evidence of Shivangi Apte (PW16) attached to Biological
Section of RFSL, Nagpur, would show that the samples were in sealed
condition. This evidence in our opinion rules out the possibility of
tampering of the samples in any manner.
44. The line of cross-examination of Smt. Bhale (PW18)
suggests that there was scope for tampering with the samples. We are
not prepared to accept this line of cross-examination in view of cogent,
concrete and reliable evidence discussed above. A perusal of the cross-
examination of Shivangi Apte (PW16) and Smt. Bhale (PW18) would
indicate that there is no scope to infer about tampering with the
samples. It was further suggested to the witnesses in the cross-
examination that it would be difficult to obtain correct result in case of
the analysis of multiple DNA samples. Smt. Bhale (PW18) has
categorically stated that it is not impossible to obtain the accurate result
in case of analysis of multiple DNA samples. She has categorically
48 331 apeal748.18+3(J).odt
stated that the components of semen used for obtaining DNA profile
were subjected to PCR technique. She has categorically deposed that
on the basis of the tests conducted, she obtained 100% accurate result
of analysis of the samples. On the basis of answers given by the witness
in her cross-examination, it is seen that her opinion as to the result of
the analysis has been fortified. We do not see any reason to discard
and disbelieve her evidence.
45. The chain from the time of collection of the samples till
the analysis of the samples has been established on the basis of oral and
documentary evidence. The possibility of tampering with the samples
has been completely ruled out. In the facts and circumstances,
therefore, the law laid down by the Hon'ble Apex Court in the case of
Mukesh and another .vs. State for NCT of Delhi and others (supra)
would be squarely applicable to this case. In our opinion, the above
evidence of collection of samples, its preservation, analysis and the
final result of the analysis of the samples fully corroborate the evidence
of the victim and another eye-witness Shailesh (PW4). On the basis of
the evidence as discussed above, involvement of the five accused
49 331 apeal748.18+3(J).odt
persons, who have been convicted in the case, has been established
beyond reasonable doubt.
46. It would be necessary to consider the evidence of Amar
Wasnik (PW1), who is the panch witness to the spot panchanama. The
Investigating Officer has deposed that PI Ramteke had visited the spot.
It has come on record in the evidence that initially the spot could not
be located inasmuch as the victim was mentally disturbed. Amar
(PW1) has stated that on 2nd December, 2014, though, the victim
accompanied the police and two panchas, the spot could not be
located. The document at Exhibit-33 is the panchanama in that
respect. It has come on record in the evidence of the Investigating
Officer that the victim pointed out the spot on 15 th December, 2014.
The victim at the time of the incident had noticed a white painted wall
near the spot. The spot of the incident was revealed during the course
of further investigation. The panchanama is at Exhibit-123. Even if it
is assumed that evidence of the Investigating Officer and the panch
witness on the spot panchanama is unacceptable, in our opinion, it
would not materially affect the case of the prosecution. It is seen that
50 331 apeal748.18+3(J).odt
no article was seized form the spot. The incident had occurred at an
isolated place. Perusal of the panchanama (Exh.123) would show that
the spot identified and pointed out by the victim was at some distance
away from the highway.
47. The prosecution has relied upon the evidence of panch
witness Amar Wasnik (PW1) and Ashwan Gaikwad (Shahu) (PW2) to
prove the discovery of the knives used by the accused persons at the
time of commission of the crime. Amar (PW1) has supported the case
of the prosecution. Ashwasn (PW2) has not supported the case of the
prosecution. He turned hostile. The Investigating Officer has deposed
about the confessional statements made by the accused persons and the
discovery of the knives at their instance, pursuant to the confessional
statements. In our opinion, even if this evidence is eschewed from
consideration, it would not make the case of the prosecution doubtful.
It is undisputed that no injury was caused with the knife either to the
victim or to her friend Shailesh (PW4) by the accused. It is the case of
the prosecution that one or two accused pointed the knife at the chest
and waist of the victim and Shailesh. Use of knives by the accused to
51 331 apeal748.18+3(J).odt
threaten and terrorize them has been proved on the basis of the
evidence of the victim and Shailesh (PW4). Recovery of knives and its
strict proof could have assumed great importance if the same had been
used for causing injury either to the victim (PW11) or Shailesh (PW4).
48. PI Satyaveer Bandiwar (PW19) is the Investigating
Officer. In his evidence he has placed on record all the facts related to
the investigation. On the basis of his evidence, arrest of the accused in
this case has been proved. He has categorically deposed about
forwarding of the samples seized in the crime to the Chemical
Analyser. His evidence would show that without any delay he had
forwarded the samples to the Chemical Analyzer. Perusal of his
evidence would show that he had conducted fair investigation. No
material has been brought on record in his cross-examination to
indicate that he attempted to falsely implicate the innocent persons in
the crime. He conducted the investigation in a serious crime solely
with an object to take the same to its logical conclusion.
49. The prosecution has also relied upon the evidence of
52 331 apeal748.18+3(J).odt
Prashant Misal (PW10), Chandrakant Rajutkar (PW13) and Nandlal
Dhomne (PW14). It is the case of the prosecution that Shailesh (PW4)
after escaping from the clutches of the accused, first went to
Chandrakant Rajutkar (PW13), who is the pan shop keeper near Kapsi
gate. Chandrakant (PW13) took Shailesh (PW4) to Prashant Misal
(PW10), who at the relevant time along with HC Jagdish, B. No.978
was on patrolling duty in Indora area. Chandrakant (PW13) has stated
that at about 9.00 to 9.30 p.m. on 2nd December, 2014, he was at his
shop. At that time one boy came to his shop and asked him for help.
He has stated that he took the said boy to Traffic Police officials who
were at some distance from his shop. NPC Prashant Misal (PW10),
has supported the evidence of Chandrakant (PW13) and Shailesh
(PW4) on this point. He has stated that on 2nd December, 2014 he
along with HC Jagdish were doing patrolling duty in Indora area. At
that time, one pan shop keeper bought one person by name Shailesh to
them. Shailesh informed them about kidnapping of the victim by
unknown persons. He has stated that immediately he conveyed the
information of the incident by walkie talkie to the control room. They
took search of the girl, however they could not trace out her and the
53 331 apeal748.18+3(J).odt
kidnappers. He has further stated that on receiving message from
Control Room, Charlie Five Constable Shri Dhomne had come to
make an enquiry about the incident. He has stated that Shailesh
(PW4) went to Kalamna police station with Nandlal Dhomne (PW14).
In order to prove that the information of the incident was conveyed to
the control room, the prosecution has placed reliance on the
documentary evidence at Exhibit-151, which is a certified copy of the
log book showing entry about the information of the incident received
on wireless. Nandlal Dhomne (PW14), a Naib Police Constable has
deposed that on the given date he was having charge of Charlie No.5
on patrolling duty. At about 20.00 hours, he received wireless message
about kidnapping of one girl. He has stated that he thereafter along
with his colleague Vijay Pendam went to Kapsi bridge and met police
officials namely Jambhulkar and Misal. One person was with them.
The said person was Shailesh (PW4). He has stated that Shailesh
informed the incident in brief. They together took search of the girl
however they could not trace out the girl and the kidnappers. He has
stated that therefore, along with the boy he came back to Kalamna
police station.
54 331 apeal748.18+3(J).odt
50. Evidence of Prashant Misal (PW10), Chandrakant
Rajutkar (PW13) and Nandlal Dhomne (PW14) is consistent on the
point that Shailesh (PW4) first met Chandrakant (PW13), a pan shop
keeper and he brought Shailesh to NPC Prashant (PW10). It has also
been proved that NPC Prashant (PW10) conveyed information of the
incident to control room. On receipt of the information, Nandlal
(PW14) went to Kapsi gate to verify the information. Evidence of
Shailesh (PW4) on this point has been fully corroborated by these
three witnesses, who are the independent witnesses. Besides, there are
contemporaneous documentary evidence to corroborate
communication of the incident to the control room by walkie talkie.
51. On consideration of the evidence, we are convinced that
on the basis of the same, the guilt of five accused has been proved. On
the basis of available evidence, no case has been made out to give
benefit of doubt to Pundlik Bhoyar, who is the appellant in Criminal
Appeal No. 308/2019. It has come on record in the evidence of the
victim that a man with fractured leg could not establish sexual
55 331 apeal748.18+3(J).odt
intercourse with her. Pundlik Bhoyar is the said person. He, therefore,
asked the victim to turn and even thereafter he could not perform
intercourse with her. The evidence on record clearly indicates that he,
at least, attempted to commit rape on the victim. The fact that his
semen was detected in cervix, is also a pointer towards some kind of
penetrative act on his part, within the contemplation of law, though the
penetrative act may not have been sensed by the victim due to her
fright or otherwise there was no reason why his semen would get
lodged in the cervix of the victim. Besides, he was part of the gang
which committed gang rape on the victim. On the basis of the
evidence, particularly DNA report, complicity of accused Pundlik
Bhoyar in commission of crime stands proved. At the cost of
repetition, we say that detection of his semen in the cervix of the
victim would indicate that at the time of intercourse there was
ejaculation by Pundlik and therefore, his semen was detected in the
cervical swab sample of the victim, which perhaps may not have been
felt by the victim, she being terrified. In our view, therefore, there is no
doubt about complicity of this accused in the crime.
56 331 apeal748.18+3(J).odt
52. On re-appreciation of the entire evidence led by the
prosecution, we are satisfied that the prosecution has proved its case
against accused persons beyond reasonable doubt. In view of above,
we conclude that there is no substance in the appeals. The appeals are,
therefore, dismissed. The conviction and sentence awarded by the
learned Additional Sessions Judge, Nagpur dated 23 rd October, 2018 in
Sessions Trial No. 278 of 2016, are hereby maintained.
(G.A.SANAP, J.) (SUNIL B. SHUKRE, J.)
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:20.07.2022
18:13
