Bombay High Court
Vijay S/O. Sarjerao Bade vs The State Of Maharashtra on 4 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25215-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 576 OF 2016
WITH
CRIMINAL APPLICATION NO. 4406 OF 2022
IN CRIMINAL APPEAL NO. 576 OF 2016
Abhay @ Abhi @ Abhya
s/o Bhaskar Pore
Aged : 34 years, Occ: Nil,
R/o Shivajinagar, Kalyan Road,
Ahmednagar. ... Appellant
[Orig Accused No.2]
Versus
The State of Maharashtra
Through the Police Station Officer,
Ambhora Police Station,
Dist. Beed. ... Respondent
WITH
CRIMINAL APPEAL NO. 542 OF 2016
WITH
CRIMINAL APPLICATION NO. 3971 OF 2022
IN CRIMINAL APPEAL NO. 542 OF 2016
Deepak s/o Dattatraya Jawale,
Age 36 years, Occ : Nil
R/o Shedi Pokhardi, Tq. and
District Ahmednagar. ... Appellant
[Orig Accused No.1]
Versus
The State of Maharashtra ... Respondent
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WITH
CRIMINAL APPEAL NO. 482 OF 2023
Sunil @ Gajanan Vishwambhar Ekhande
Age : 44 years, Occ. Nil,
R/o. Tawle Nagar, Ahmednagar.
Tq. & Dist. Ahmednagar. ... Applicant
[Ori. Accused No.4]
Versus
1. The State of Maharashtra
Through : Police Station Ambhora,
Tq. Ashti, Dist. Beed.
2. Deepak s/o Dattatraya Jawale,
Age : 43 years, Occu. : Nil,
R/o. : Shedi Pokhardi,
Tq. and Dist. Ahmednagar.
3. Abhay @ Abhi @ Abhya
Bhaskar Pore, Age : 43 years,
Occu. : Nil, R/o. : Shivaji Nagar,
Kalyan Road, Ahmednagar.
4. Vijay s/o Sarjerao Bade,
Age: 36 years, Occu. : Chinchpur Pangul,
Now R/o : Wakdi, Tq. Rahata,
Dist. Ahmednagar.
5. Baliram s/o Arjun Ralebhat
Age: 44 years, Occu: Nil,
R/o. Ralebhat Galli Jamkhed,
tq. & Dist. : Ahmednagar. ... Respondents
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WITH
CRIMINAL APPEAL NO. 57 OF 2019
WITH
CRIMINAL APPLICATION NO. 4424 OF 2022
IN CRIMINAL APPEAL NO. 57 OF 2019
Vijay s/o Sarjerao Bade
Age: 23 years, Occ: Nil,
Resident of, Chinchpur Pangul,
Presently residing at Wakdi,
Ta.: Rahata, Dist: Ahmednagar,
Maharashtra. ... Appellant
[Orig. Accused No.3]
Versus
The State of Maharasthra
Through, the Ambhora Police Station,
Tal: Ashti, Dist: Beed. ... Respondent
.....
Mr. Abhaykumar D. Ostwal, Advocate for appellant in Criminal
Appeal No. 57 of 2019.
Mr. Abhaykumar D. Ostwal, Advocate (appointed) for appellants in
Criminal Appeal Nos. 542/2016, 576/2016 and 482/2023.
Mrs. V. S. Choudhari, APP for Respondent-State in all appeals.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 07.11.2023
Pronounced on : 04.12.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. By way of distinct appeals, convicts for offence under Sections
392, 394, 366, 341, 354 and 376 (2)(g) r/w 34 of the Indian Penal
Code [IPC] and Sections 3 (1)(ii), 3(2) of the Maharashtra control of
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Organized Crime Act, 1999 [MCOC Act] are hereby assailing
judgment and order of conviction passed by learned Special Judge,
Aurangabad dated 22.08.2016 in Special Case No. 02 of 2010.
Above appeals being dealt together and heard together, are
decided by way of common judgment.
PROSECUTION STORY UNFOLDED IS AS UNDER
2. While PW6 Lalasaheb, in his private car/cab was returning
towards Pune after dropping passengers at Aurangabad, he was again
hired by accused persons near Ahmednagar Bus Stand to go towards
Pune. After travelling short distance, when PW6 Lalasaheb halted his
vehicle to purchase water bottle, accused appellants decamped with
his vehicle and so, when his chase turned out futile, he lodged report.
These accused persons further intercepted PW1 informant, who was
travelling with his family and domestic help in his own vehicle after
paying religious visit to Parali Vaijinath. After intercepting his vehicle,
prosecution claims that, PW1 informant, his watchman, wife of
watchman and informant's son were forced to come out of the vehicle
and threatened and beaten and thereafter in his own car, his wife was
abducted by two of them and after taking her to some distance, she
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was raped and then abandoned on the road and car of PW1 was also
taken by those two persons. Remaining two accused had driven the
vehicle of PW6 Lalasaheb and they all subsequently fled. PW1 sought
help of PW10 Shrikant who used his motorcycle to bring back PW2
and thereafter, PW2, who was stripped of her clothes, borrowed saree
from PW5 Sunita. By that time, nephew of informant PW1 passed
information to police, who accordingly reached there and thereafter
PW1 lodged FIR and PW2 gave statement of being raped.
Investigating machinery swung into action and investigation
revealed complicity of appellants and they were duly arrested,
interrogated and on their disclosures, recovery of vehicle and
ornaments etc. was caused. Detailed investigation revealed they to be
committing organized crimes and therefore, along with the penal
provisions of IPC, charge under MCOC Act was also applied and they
were duly challaned on conclusion of investigation. Their case was
tried by special Judge, who on appreciating the evidence adduced by
prosecution, held the case and charges proved and passed following
order:
1. Accused no.1 Deepak Dattatraya Jawale, accused
no.2 Abhaya @ Abi @ Abhay Bhaskar Pore, accused no.3
Vijay Sarjerao Bade, accused no.4 Sunil @ Gajanan
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Vishwambhar Ekhande are convicted under the provisions
of Section 235 (2) of the Cr.P.C. for the following
offences:-
A. U/sec. 392 of I.P.C., and sentenced to suffer
rigorous imprisonment for 12 years and to pay fine
of Rs.5000/- each i.d. suffer further R.I. for 01 year.
B. U/sec. 394 of I.P.C., and sentenced to suffer
rigorous life imprisonment and to pay fine of
Rs.5000/- each i.d. suffer further R.I. for 01 year.
C. U/sec. 366 of I.P.C., and sentenced to suffer
rigorous imprisonment for 05 years and to pay fine
of Rs.1000/- each i.d. suffer further R.I. for six
months.
D. U/sec. 341 of I.P.C., and sentenced to suffer
rigorous imprisonment for one month.
E. U/sec. 3(1)(ii) of MCOC Act and sentenced
to suffer rigorous imprisonment for seven years and
to pay fine of Rs.5,00,000/- each, i.d. suffer further
R.I. for 03 years.
F. U/sec. 3(2) of MCOC Act and sentenced to
suffer rigorous imprisonment for seven years and to
pay fine of Rs.5,00,000/- each, I.d. suffer further
R.I. for 03 years.
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2. Accused no.1 Deepak Dattatraya Jawale and
accused no.2 Abhaya @ Abi @ Abhay Bhaskar Pore are
convicted under the provisions of Section 235 (2) of the
Cr.P.C. for the following offences :-
I. U/sec. 376(2)(g) of I.P.C., and sentenced to
suffer rigorous life imprisonment and to pay fine of
Rs.10,000/- each i.d. suffer further R.I. for 01 year.
II. As they are convicted and sentenced for
major offences of Section 376(2)(g) of I.P.C., no
separate punishment has been imposed for offences
punishable U/sec. 354 R/w. 34 of I.P.C.
3. Accused Nos. 1 to 4 are hereby acquitted U/sec. 235
(1) of the Cr.P.C., for the offence punishable U/sec. 509
R/w. 34 of I.P.C. and U/sec. 3(3) of MCOC Act.
4. Accused no.5 is hereby acquitted U/sec. 235(1) of
the Cr.P.C., for the offences punishable U/sec. 216(a) of
the I.P.C. and U/sec. 3(3) of the MCOC Act.
5. Bail bonds of accused no.5 stands cancelled.
6. The seized muddemal property consists of clothes of
accused and victim, they being of no use be destroyed
after appeal period is over.
7. The various cards, license and other documents, if
any, of complainant, victim, and P.W.6 Mr. Dargude
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seized during investigation be returned to them after
appeal period is over.
8. The seized ornaments and mobile hand sets of
complainant, and witnesses be returned to victim and
Kushawartabai after appeal period is over.
9. Cool cab of P.W.06 and Spark Car of complainant
are already returned to them.
10. Seized knives and iron rods be sold as scrap and its
sell proceeds be credited to State after appeal period is
over. Seized amount is hereby confiscated to the State.
11. All above sentences of accused nos. 1 to 4 shall run
concurrently.
12. Accused nos. 1 to 4 are entitled to get benefit of set
off of period of detention already undergone by them
during investigation and pendency of trial of this case."
PROSECUTION EVIDENCE
4. To establish their case, prosecution seems to have adduced
evidence of as many as 34 witnesses which could be categorized as
and the sum and substance of their evidence is also dealt in brief
which is as under:
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After taking into account story of prosecution, in our opinion,
evidence of PW1 informant, PW2 informant's wife, PW4 Kushavarti,
PW5 Sunita, PW6 Lalasaheb and PW10 Shrikant is crucial. Rest of the
witnesses are medical experts, panchas, police officers.
Going by the sequence of events which took place that night,
evidence of PW6 Lalasaheb is required to be dealt at the threshold as
accused had first stolen his vehicle and used the same to commit
further offences of robbing, abduction and rape.
First episode of theft of Indica Car
PW6 Lalasaheb in his substantive evidence at Exhibit 75,
narrated that he initially dropped passengers at Aurangabad
and while he was returning back to Pune, he was again
hired by four persons at Ahmednagar bus stand to proceed
towards Pune. He deposed that after reaching Kedgaon, he
got down to purchase water bottle. At that time, the
passengers fled with his vehicle. He reported the occurrence
to Kotwali police. He has identified all the four passengers
i.e. accused for stealing his car.
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Second episode of commission of offence u/s 395 IPC, abduction and
rape of PW2
PW1 Informant, who is husband of PW2, a victim of rape, in his
evidence at exhibit 49, narrated about his journey to Parli
Vaijinath from Pune and back. According to him, while they
were returning to proceed to their place at Pune, there
vehicle was intercepted by vehicle (owned by PW6
Lalasaheb which was stolen by accused persons). He has
given details about he, his son, his watchman and wife of
watchman being made to alight out of the vehicle, beaten
and thereafter his wife abducted by two of them in his own
car. He has narrated about informing motorcyclist (PW10
Shrikant) about abduction of his wife and about requesting
the motorcyclist to go in search of his wife and accordingly
PW10 gave a chase, thereafter they reaching Chichondi
Phata by boarding a bus and there, said motorcyclist PW10
Shrikant brought his wife back. He has narrated about
arrival of police and further he lodging FIR. He also
deposed about statement given by his wife regarding she
being raped by two accused. He identified accused persons
in the court as well as his complaint.
PW2 Victim also narrated as like her husband about leaving Pune
to go to Parli Vaijinath in their vehicle and while returning
towards Pune, their vehicle being intercepted by persons
who came in Indica car. Her husband, son, watchman and
his wife made to get out of the vehicle and she being taken
on knife point by two persons. She has also narrated the
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ordeal faced by her after being taken to some distance i.e.
regarding both accused taking turns to force themselves on
her in the moving car and then abandoning her on the way
and speeding away with their car. She also narrated
regarding she being robbed of her ornaments and left in
bare clothes on the road and she meeting PW10 who
brought her to Chichondi Phata. She also narrated about
PW5 Sunita, a woman from the village, lending her a saree
to cover herself and thereafter, on arrival of police, they
going to show the spot and after reaching Nagar, she passed
information of being sexually assaulted and accordingly her
statement to be recorded and she to be subjected to medical
examination. She also identified accused present in the
court to be the perpetrators of above crime.
PW4 Kushavarti is the wife of watchman Dnyanoba. She too was
one of the co-passengers in the car of PW1 informant. In her
evidence is at Exhibit 70, she too has deposed about their
car being intercepted by an Indica car, four persons
alighting the Indica car, forcing PW1, his son, this witness
and her husband to come out of the car, giving thrashing to
them and after snatching ornaments of this witness, two of
them abducting PW2 in their own car and remaining two
fleeing from the spot in the Indica car, a motorcyclist
arriving there and on being informed about incident, he
giving chase and bringing PW2 back to them at Chichondi
Phata. According to this witness, at that time PW2 had put
on shirt of that motorcyclist. Thereafter, she has deposed
about one lady lending a saree to PW2, police approaching
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and taking them to Ambhora police station, PW1 and PW2
showing the spot to police and thereafter police recording
statement of this witness.
This witness too, has further deposed about
Identification Parade at Ashti and she identified all four
accused as well as her ornaments.
PW10 Shrikant Namdeo Shamgire, resident of Patoda, District
Beed, deposed that on 11.04.2010, while he along with a
boy were proceeding towards Ahmednagar on motorcycle,
he was stopped by four persons, told about abduction of
victim by thieves and was requested to bring her to them if
found. He further deposed that while proceeding ahead,
near Takli, a lady having only a towel on her person,
stopped him and narrated the incident. According to this
witness, he gave his shirt and mobile to her and she called
her relatives and got their location to be at Chichondi. This
witness further deposed about taking said lady to her
relatives at Chichondi, her husband giving his shirt to the
lady and shirt of this witness was returned to him. He also
deposed about his statement being recorded by police as
well as before the court.
PW5 Sunita w/o Dhondiram Aglave, resident of Chitondi Pati,
District Ahmednagar, deposed about her house to be
situated abutting the road. About the incident, she deposed
that she had been to the temple of Vithal Rukhmini for
attending bhajan and while she was returning home, she
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saw a lady wearing a towel over her person. According to
this witness, said lady demanded a sari from her and this
witness provided the same. This witness claims to have
heard about the incident from said lady.
PW3 Nitin is nephew of informant. He deposed that he had
received phone call from informant in the midnight i.e. at
1.30 a.m. on 11.04.2010 and informant had narrated the
the incident. He has deposed that he had forwarded the
said information to police by dialing number 100.
PW7 Bapusaheb Kanhoji Ghemud, Branch Manager, Sonai
Branch of State Bank of India, who deposed about handing
over details of ATM transaction on 11.04.2010 during 2.20
a.m. to 2.30 a.m, along with CCTV footage from the camera
at said ATM center.
PW15 Namdev Dattatraya Ralebhat, Manager of Suyog Beer Bar
and relative of accused no.5 Baliram, deposed about arrival
of accused persons at his hotel for meal on 10.04.2010 at
5.00 to 5.30 p.m.
PW25 Sambhaji Bhagwan Veer, driver of a bus, a hostile witness.
Medical Experts
PW9 Dr. Satish Raghunath Tamble, is the medical officer, who
examined victim. In his evidence at Exhibit 85, he deposed
that on 12.04.2010, when he was attached to District
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Hospital, Beed, he examined victim aged 43 years, who was
referred by Ambhora Police Station. On examination, he
claims to have noticed abrasion on left side of neck, size
3x2 cm, hymen ruptured old, tear old. He has accordingly
issued medical certificate Exhibit 86 which he identified.
PW12 Dr. Mrs. Sandhya Munjaji Kshirsagar, who medically
examined accused Deepak and Abhay and issued certificates
Exhibits 96, 97 and 98, which she identified while in the
witness box.
PW18 Dr. Nilesh Bhagwan Pawar, who deposed about medically
examining accused Deepak on 11.04.2010 at 6.10 a.m.
Pancha witnesses
PW8 Mahesh Kachru Chavan, acted a pancha to seizure of
clothes of accused persons. He identified Exhibits 160 to
164.
PW11 Ansar Khan acted as pancha to seizure of car of Spark
company, along with articles found inside it, from Shirdi.
PW17 Vipin s/o Premchand Lodha acted as pancha to
memorandum of disclosure Exhibit 131 at the instance of
accused Abhay and seizure panchanama of ornaments
Exhibit 132 He identified said panchanamas, accused as
well as the ornaments.
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PW19 Natha Raosaheb Shelke, who acted as pancha to
memorandum of disclosure Exhibit 140 at the instance of
accused Deepak and seizure panchanama Exhibit 141 of
white colour Indica Car, two knives and two iron rods.
Investigating machinery
PW13 Arvind Shankarrao Bolange, Naib Tahsildar, who conducted
identification of ornaments. He identified Exhibits 102 and
103.
PW14 Ramlal Mhatarba Jadhav, Thasildar, who conducted
identification parade of accused Deepak, Vijay, Abhay and
Sunil on 20.01.2010. He identified Exhibits 106 to 120.
PW16 PI Bapusaheb Shantaram Mahajan, while on patrolling
duty, on receipt of information on 11.04.2010 at 1.30 a.m.,
went to Chilcholi fata, met victim and her family members,
brought and produce them API Rathod [PW21-IO] at
Ambhora Police Station.
PW20 PI Suresh Khade, who showed photographs of history
sheeters to informant and other witnesses, who identified
two accused person from the photographs. He arrested
accused Abhay, Deepak.
PW21 PI Anant Dhanaji Rathod is the first Investigating Officer
PW22 PHC Bhagwat Bhanudas Waghmare
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PW23 PHC Sk. Juberoddin,
are carriers.
PW24 API Somnath Shivaji Kohle, who carried accused Vijay and
Sunil for recording their statements.
PW26 P. S. Sinha, Special IG, Aurangabad, who accorded prior
approval for invoking provisions of MCOC Act accused.
PW27 Sudarshan Laxmanrao Mundhe, PI, LCB, Beed, is the
Investigating Officer.
PW28 Krushipal Tarachand Raghuvanshi, Additional Director
General of Police, Law and Order, Mumbai, who accorded
sanction to prosecute accused under Section 23(2) of the
MCOC Act on 27.07.2010.
PW29 Deelip Wasudeorao Deshpande, Adhoc District Judge and
Additional Sessions Judge, Osmanabad, who recorded
verification statement of confessions given by accused
persons.
PW30 Dattatraya Yadav Mandlik, SP, Osmanabad, who recorded
confessional Statement of accused Deepak and Abhay.
PW31 Arving Harischandra Chavriya, Additional SP, Aurangabad,
who recorded confessional statement of accused Baliram.
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PW32 PI Sikandar Khan took accused Deepak and Abhay from
Shivaji Nagar Police Station to Beed to Osmanabad SP
office for recording their statements.
PW33 Additional SP Sanjay Bhaskar Darade recorded confessional
statements of accused Vijay Bade and Sunil Ekhande.
PW34 SDPO Sambhaji Sudamrao Kadam is the Investigating
Officer
5. While exercising jurisdiction under Section 374 of the Code of
Criminal Procedure [Cr.P.C.] and this being first appellate court, we
undertook the exercise of re-appreciating and re-analyzing the entire
evidence adduced by the prosecution in the trial court.
ANALYSIS OF FIRST AND SECOND EPISODE
6. On carefully sifting above evidence, it transpires that accused
persons first robbed PW6 Lalasaheb of his vehicle and used it to
commit second offence. Evidence of PW6 Lalasaheb has remained
intact in spite of being cross-examined at length. His testimony about
his vehicle being hired and it being forcibly taken away when he got
down to purchase water bottle, has not been rendered doubtful. This
witness was called to participate in TI parade and he has identified
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accused persons. He is an independent witness and also in a way a
victim of offence of theft of his vehicle. There is no reason for false
implication. For all above reasons, first episode of stealing Indica car
is cogently brought on record through evidence of PW6 Lalasaheb
whose vehicle has been traced and recovered at the instance of
accused persons itself.
7. So far as second occurrence is concerned, evidence of PW1
informant, PW2 informant's wife, PW4 Kushavarti, PW5 Sunita and
PW10 Shrikant is of vital importance and we have already dealt and
discussed their testimonies in the witness box. All these witnesses are
subjected to extensive searching cross. However, what is noticed is
that they all withstood the lengthy cross and actual occurrence of
interception, beating to PW1 and his son, forcibly making PW4 and
her husband to step out of the car and taking away PW2 forcibly on
knife point has also remained intact. In fact, the manner of cross
clearly suggests that there is no serious dispute about the actual
occurrence. PW1 and PW2 are unanimous about their Indica car
being intercepted by four unknown persons who were allegedly
armed with knife and iron rods. PW4 Kushavarti, an incumbent of the
car and the domestic help of PW1 and PW2 also lends support and
corroborates their evidence. She has also been robbed of her
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mangalsutra. She has also narrated the actual occurrence in her
presence, of which she too is a victim, and she also deposed about
PW2 being abducted by two accused. PW1 informant and PW4
Kushavarti are consistent about hiring a traveller vehicle to reach to
Chichondi Phata and information being passed to nephew of PW1. All
these witnesses are categorical and consistent about arrival of a
motorcycle at Chichondi Phata and PW1 narrating occurrence to the
motorcyclist who further gave chase and brought back PW2 in bare
bodied condition.
8. PW2, who was abducted in her own car, has given a detail
account of the ordeal faced by her after forcibly taken on knife point.
She has narrated about she being stripped and raped in the rear seat
of the vehicle while other accused was steering the vehicle on the
road and after being raped by accused no.1, accused no. 2 occupying
rear seat and he too raping her. This victim of rape has given detail
account of the entire episode. She has spent almost half an hour in
the company of both accused. Therefore she had ample opportunity to
identify them. She has initially identified the photographs which were
confronted by police who had maintained record of all history-
sheeters. Considering the modus operandi and nature of crime, police
got a clue regarding involvement of accused who were habitual in
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committing such crimes and were history-sheeters. She and her
husband PW1 both have identified accused not only in the
photograph but have also identified them in Test Identification
parade. Medical expert, who had examined PW2 has also been
examined by prosecution to establish the offence. Evidence of PW2 is
also not rendered doubtful. Though she immediately did not report
the occurrence, considering the nature of offence and her own status
to be a married woman, a few hours delay in reporting the occurrence
is insignificant. PW2, a victim of rape is also subjected to extensive
cross and an unsuccessful attempt has been made to discredit her
testimony but all efforts apparently went in vain as she has withstood
the extensive cross by defence counsel representing accused persons.
There is nothing in her cross which would render her evidence
unworthy of credence.
9. We have carefully gone through the lengthy cross undertaken
by each of the defence counsel, but we have noticed that numerous
irrelevant questions are put to PW1 and PW2 like, for how much
distance chase was given, whether there were wheel marks, whether
culprits were in masked condition, whether medical treatment for
alleged beating was taken, registration number of the traveller vehicle
used to travel to Chichondi Phata, distance between two places, time
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at which PW2 reached back to the spot at Chichondi Phata, how many
times vehicle was overtaken, whether other villagers gathered and at
what time report was reduced into writing and for how long PW2 was
inquired with by Ambhora police and what time she was subjected to
medical examination, who accompanied her, whether her statement
was recorded at the hospital itself. Surprisingly, questions are posed
about geographical location of the spot even when PW1 and PW2
were victims of serious offence which allegedly took place during the
dead hours of night.
10. Independent witness like PW10 Shrikant, who had come to the
rescue of PW2, has also stepped in the witness box. He has also lent
support to the testimony of PW1 and PW2. Nothing damaging has
been brought in his cross.
11. Likewise, PW5 Sunita, a villager, has also deposed about she
returning after attending a religious function and seeing PW1, PW2
and others and finding PW2 in bare bodied condition, she has lent her
own saree to PW2. She also corroborates the story of prosecution.
Resultantly, here, there is corroboration from independent corners
and these witnesses ie. PW5 Sunita and PW10 Shrikant have also
sufficiently corroborated prosecution version.
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12. Panchas to the recovery discovery have also supported the
prosecution. Recovery of Indica car, which was stolen from PW6
Lalasaheb and used in commission of crime, is at the instance of
accused Deepak and the same is proved by prosecution by examining
pancha witness PW19 Natha. Seizure of informant's Spark vehicle,
along with clothes of PW2 victim found in it, from Shirdi, is also
brought on record through pancha witness PW11 Ansar Khan. The
ornaments robbed from the informant party are also established to be
recovered after short span at the instance of and from the house of
accused Abhay by adducing evidence of pancha PW17 Vipin.
Ornaments so robbed are also got identified through PW2-victim and
PW4-Kushavarti. PW11 pancha Ansar Khan and PW2-victim have also
identified clothes which were on the person of PW2 on the day of
incident. PW8 Mahesh, who has acted as pancha to seizure of clothes
of accused persons, has also supported prosecution.
13. C.A. reports Exhibits 258 to 261 revealed blood group of victim
to be "O" and that of accused Deepak to be "B". Blood group of
accused Abhay could not be detected. However, human semen of
blood group "B" was detected on the underwear/nicker of rape victim
as well as both accused of rape i.e. Deepak and Abhay. This evidence
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in the form of C.A. reports also lends corroboration to the victim's
version.
14. Therefore, on critical analysis of testimony of PW6 Lalasaheb
regarding first episode, prosecution has cogently brought on record
that his vehicle was stolen by four accused and he has received his
vehicle back which was seized from none other than the accused
persons.
15. Testimony of PW1 informant, PW2 informant's wife and PW4
Kushavarti is consistent about their vehicle being intercepted and they
along with son and PW1 informant and husband of PW4 to be beaten
and forced out of the car and wife of PW1 to be abducted in their own
car after ornaments of PW4 were snatched.
16. Two accused i.e. accused no. 3 Vijay and accused no. 4 Sunil
seem to have parted whereas accused nos. 1 and 2 i.e. Deepak and
Abhay took wife of PW1 i.e. PW2 and in moving car they seem to
have committed forcible rape on her by taking turns. Evidence of PW2
is intact about she being raped in a car which was on wheels i.e. in
moving condition by both accused by taking turns. She claims that she
has overheard name while they both were interacting with each other.
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17. PW5 Sunita, PW6 Lalasaheb and PW10 Shrikant, who are
independent witnesses, have also remained steadfast in their
evidence. Resultantly, their versions are supporting evidence of PW1
and PW2.
18. Therefore, here, there is not only clinching evidence but
overwhelming evidence against all accused for committing highway
robbery, forcefully snatching ornaments, stealing car, accused nos. 1
and 2 abducting PW2 and committed forcible rape on her. Victim of
rape has also narrated the ordeal faced by her since being abducted.
Medical evidence confirms sexual assault. Therefore, all charges are
firmly and cogently proved. The ingredients to attract these charges
are available in the evidence. Hence, penal sections viz. 392, 394,
366, 341, 354 and 376 (2)(g) r/w 34 of IPC are squarely attracted.
19. The upshot of the analysis is that evidence of PW6 Lalasaheb,
PW1 informant, PW2 informant's wife, PW4 Kushavarti, PW5 Sunita
and PW10 Shrikant is that prosecution version has been proved
beyond reasonable doubt. Apprehended Accused are not only
identified by PW1 informant, PW2 victim, PW4 Kushavarti and PW6
Lalasaheb in court but also in Test Identification parade.
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20. Learned counsel for the appellants fervently submitted that
there is no material to implicate accused for provisions under MCOC
Act. That, even learned trial court has deviated from the accepted
principles of sentencing policy. Exorbitant fine has been slapped and
for all above counts, he seeks indulgence of this Court to that extent
also.
21. In the light of above submissions, more particularly here, there
being charge of offence under MCOC Act and specific points to that
extent determined by way of point nos. 9, 10 and 11 of the impugned
judgment, we have gone through the evidence of all high ranking
police officers who have received directions from the Head of the
Police Department of the State to record confessional statements and
gather record of the crimes committed by them. Prosecution seems to
have undertaken the exercise of gathering criminal antecedents of
accused persons. The same are made part of record. It needs to be
borne in mind that in the current offence, accused were apprehended
only on the basis of photographs identified by PW1 and PW2 and
further investigation unfolded their involvement beyond reasonable
doubt and in the light of complete chain of circumstances which has
remained consistent, intact and unbroken.
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22. According to prosecution, accused no.1 Deepak is the main
accused. Involvement of such accused and other co-accused has been
documented, of which chart is also handed over by prosecution, and it
is reflected and reproduced in the judgment of learned trial court in
para 59 and 60. It transpires that documents from Exhibit 170 to 203
is a compendium of the criminal antecedents of accused documented
by Police Department and further proposal was put up before Special
I.G., Aurangabad Range through S.P. Beed under MCOC Act and the
same is, on application of mind by such authority, approved by
invoking Section 23(1-a) of MCOC Act. In pursuance to it, Additional
D.G., Dy.S.P. and S.P. ranking officers have worked in co-ordination
and recorded confessional statements of accused and thereafter,
learned CJM, Osmanabad was approached for verification. He further
seems to have recorded statements under 164 of Cr.P.C. by following
the guidelines and the procedure contemplated in the statute. All such
officers from Investigation Officer to Director General, have appeared
and deposed before the court. Therefore, extra care seems to have
been taken while invoking provisions under MCOC Act. Record
gathered and maintained by police authorities finds names and
involvement of present appellants in various grievous offences of
similar nature which clearly suggests that the modus operandi is well
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planned and in organized manner. Therefore, provisions of MCOC Act
are rightly attracted and applied.
23. Except raising a plea before us, learned counsel for the
appellants could not point out that there is false implication and that
there is no material against these accused persons to face charge
under MCOC Act. Police machinery has gathered sufficient material
which has been meticulously considered and studied by higher police
officers reflecting application of mind while granting sanction. There
is nothing brought to our notice regarding deviation or non
compliance of mandatory procedure. Even learned trial court has
extensively dealt and appreciated available evidence adduced by
prosecution. Therefore, no fault can be found for guilt recorded by
learned trial court for such offence.
24. Learned counsel for appellant at the end would plead that as
regards to accused Deepak and accused Abhay, there is sufficient
material regarding their involvement in various cases however, as
regards to remaining two accused, their involvement is shown only in
two to three cases and they have already undergone more than seven
years of imprisonment and hence, at least their sentence be reduced
and brought down to already undergone and they be let off.
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According to learned counsel, minimum sentence be imposed for all,
as the period of incarceration already undergone is huge and further,
recent trend in law calls for consideration of reformative theory and
so he seeks concession in the sentence awarded by trial court.
25. We have pondered over the above submission. We have also
perused the list of offences involving accused produced by the
prosecution, which is as under :
Sr. Case Police Station Name of accused Description of
No. No./Crime and Sections documents and
No. exhibit numbers
1. RTC No. P.S. Nagar 1. Deepak Jawale and Charge Exh. 170,
419/2008, Taluka, U/sec. three others (who are Chargesheet Exh.
C.R. No. 394, 341, 403 of not accused in this 171
154/2007 IPC case)
2. Sessions Case P.S. Nagar Camp, 1. Deepak Jawale Chargesheet Exh.
No.180/09, U/sec. 395 of IPC 2. Abhay Pore 173, Committal
C.R. 3. Vijay Bade and two Order Exh. 174
No.42/09 others (who are not
accused in this case)
3. R.T.C. No. P.S. MIDC Nagar, 1. Deepak Jawale Chargesheet
608/09, C.R. U/Sec. 394, 342 2. Abhay Pore and two Exh.175
No.63/09 R/w. 34 of IPC others (who are not
accused in this case)
4. R.T.C. No. P.S. Nagar, 1. Deepak Jawale Chargesheet
429/09, C.R. U/sec. 399, 408 2. Vijay Bade Exh.177, arrest
No. 65/09 of IPC 3. Abhay Pore and five panchanama of
others, (who are not Deepak Jawale
accused in this case). Exh.178,
committal order
Exh.179.
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5. R.T.C. No. P.S. Kotwali, 1. Deepak Jawale Chargesheet
455/09, C.R. U/sec. 379 2. Abhay Pore Exh.180.
No.131/09 R/w. 34 of 3. Vijay Bade and six
I.P.C. others, (who are not
accused in this case).
6. R.T.C. No. P.S. Kotwali, 1. Deepak Jawale Chargesheet
482/09, U/sec. 395 of 2. Abhay Pore Exh. 182
C.R. No. I.P.C. 3. Vijay Bade and four
134/09 others, (who are not
accused in this case).
7. R.T.C. No. P.S. Newasa, 1. Deepak Jawale Chargesheet Exh.
117/10, U/sec. 379 and one another, 184, FIR Exh.
C.R. No. R/w. 34 of (who is not accused 185, complaint
232/09 I.P.C. in this case). Exh.186.
8. R.T.C. No. P.S. Kotwali, 1. Deepak Jawale FIR Exh.187,
219/11, U/sec. 379 2. Abhay Pore Complaint
C.R. No. R/w. 34 of 3. Vijay Bade Exh.188,
107/10 I.P.C. 4. Sunil Ekhande spot panchanama
Exh.189.
9. R.T.C. No. P.S. Tofkhana U/ 1. Deepak Jawale Chargesheet
25/10, C.R. sec. 392 and three others, Exh.196.
No. 403/09 R/w. 34 of (who are not accused
I.P.C. in this case).
10. R.T.C. No. P.S. M.I.D.C. 1. Deepak Jawale Chargesheet
138/10, Ahmednagar, and one another, Exh.197.
C.R. No. U/sec. 392, (who is not accused
160/09 341, 427 R/w. in this case).
34 of I.P.C.
11. R.T.C. No. P.S. Tofkhana, 1. Deepak Jawale Chargesheet
5/10, C.R. U/sec. 4/25 of and one another, Exh.197/A.
No. 117/09 Arms Act and (who is not accused
U/sec.37(1)(3), in this case).
135 of B.P. Act.
12. R.T.C. No. P.S. M.I.D.C. 1. Deepak Jawale Chargesheet
249/10, Nagar, U/sec. and two unknown Exh.198.
C.R. No. 394 R/w. 34 of absconded accused,
5/10 I.P.C. (who are not accused
in this case).
Apart from above 12 cases, prosecution has also brought on
record following five cases :
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Sr. Case Police Station Name of accused Description of
No. No./Crime and Sections documents and
No. exhibit numbers
1. R.T.C. No. P.S. Tofkhana 1. Deepak Jawale and Chargesheet
496/07, U/sec. 379 R/w. two others (who are Exh.183.
C.R. No. 34 of I.P.C. not accused in this
160/07 case)
2. R.T.C. No. P.S. Kotwali, 1. Sunil Ekhande and Chargesheet
178/10, U/sec. 379 R/w. two others (who are Exh.199.
C.R. No. 34 of I.P.C. not accused in this
393/09 case)
3. R.T.C. No. P.S. Kotwali, 1. Sunil Ekhande Chargesheet
127/10, U/sec. 379 R/w. and one another Exh.200
C.R. No. 34 of I.P.C. (who is not accused
366/09 in this case)
4. R.T.C. No. P.S. Kotwali, 1. Sunil Ekhande Complaint
308/10, U/sec. 379 R/w. and one another Exh.201,
C.R. No. 34 of I.P.C. (who is not accused Chargesheet Exh.
368/09 in this case) 202.
5. R.T.C. No. P.S. M.I.D.C. 1. Sunil Ekhande and FIR Exh. 203,
335/10, Nagar, U/sec. two others (who chargesheet
C.R. No. 379 R/w. 34 of are not accused in this Exh.297.
162/09 I.P.C. case)
26. Sentence always commensurate with the gravity of offence.
Prayers are made before us that excessive sentence has been awarded
and the same should be lowered. Needless to say, here, offences of
highway dacoity, robbery, rape has been committed and as such,
grave offences have been committed. Only in deserving cases,
considering the nature of crimes, age and mitigating circumstances,
powers can be exercised by appellate courts to lower the sentence.
However, having taken into account the list of cases registered against
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each of the above appellants, it is abundantly clear that they are
hardened criminals. Repeatedly they have committed grave offences
of which record has been accumulated and therefore, we are doubtful
whether they at all could be reformed even if given a chance. They
are involved in serious offences like under MCOC Act and it is only
upon sufficiency of material, they are indicted for such serious
charges. Multi-layered enquiry confirms their involvement. Therefore,
we are not inclined to interfere in the sentencing policy adopted by
learned trial Judge. Learned trial Judge has appreciated the evidence
as required by law and sound reasons are assigned for the findings
and conclusion reached at. Therefore, we do not find any fault in the
sentence awarded by learned trial Judge. However, we do find that
learned trial Judge has slapped exorbitant fine of Rs. 5,00,000/- and
therefore, only to that extent interference is called for. Hence, we
proceed to pass the following order:
ORDER
I. The appeals are partly allowed.
II. The conviction of all appellants/accused nos. 1 Deepak, 2
Abhay, 3 Vijay and 4 Sunil under Sections 392, 394, 366, 341 of IPC
and Sections 3(1)(ii) and 3(2) of the MCOC Act and the conviction of
appellants/accused nos. 1 Deepak and 2 Abhay under Section 376(2)
(g) of IPC, vide judgment and order dated 22.08.2016 passed by
CriAppeal-576-2016+
learned Special Judge (MCOC Act), Aurangabad in Special Case No.
02 of 2010, is maintained.
HOWEVER
III. The amount of fine imposed on all four appellants/accused vide
clauses 1(E) and 1(F) of the operative part of the order is hereby
reduced to Rs.50,000/- each.
IV. Excess fine deposited, if any, to be refunded to the
appellants/accused after the statutory period.
V. Rest of the judgment and order is maintained.
VI. All the appeals are accordingly disposed off.
VII. In view of disposal of appeals, all pending applications also
stand disposed of.
VIII. We quantify fees of Mr. Abhaykumar D. Ostwal, Advocate
appointed to represent the appellants in Criminal Appeal Nos. 542 of
2016, 576 of 2016 and 482 of 2023 collectively to be at Rs.10,000/-
which is to be paid the High Court Legal Services Sub-Committee,
Aurangabad.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
vre
