Bombay High Court

Machindra Gulab Gaikwad vs The State Of Maharashtra on 23 January, 2024

2024:BHC-AUG:1361


                                                                CriAppeal-644-2018+
                                                  -1-

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 644 OF 2018
                                              WITH
                              CRIMINAL APPLICATION NO. 1634 OF 2023
                                IN CRIMINAL APPEAL NO. 644 OF 2018

                Rupchand s/o Tekchand Tirchhe
                Age: 32, Occ : Labour,
                R/o. Tisgaon, Aurangabad.                     ... Appellant

                     versus

                1.   The State of Maharashtra

                2.   XYZ                                      ... Respondents

                                              WITH
                                 CRIMINAL APPEAL NO. 619 OF 2018
                                              WITH
                              CRIMINAL APPLICATION NO. 1635 OF 2023
                                IN CRIMINAL APPEAL NO. 619 OF 2018

                Machindra Gulab Gaikwad
                Age 27 years, Occ : Labour,
                R/o. Tisgaon,
                Taluka and District Aurangabad.               ... Appellant

                     versus

                1.   The State of Maharashtra

                2.   XYZ                                      ... Respondents

                                                  .....
                Mr. Shaikh Kayyum Najir, Advocate for the Appellant in Criminal
                Appeal No. 644 of 2018
                Mr. M. P. Bhaskar, Advocate h/f Mr. Ravindra B. Wankhede, Advocate
                for the Appellant in Criminal Appeal No. 619 of 2018
                Mr. N. D. Batule, APP for Respondent No.1-State in both appeals.
                Mr. Ujwal S. Patil, Advocate for Respondent No.2 in both appeals.
                                                  .....
                                                        CriAppeal-644-2018+
                                   -2-

                         CORAM :         ABHAY S. WAGHWASE, J.
                         Reserved on            : 16.01.2024
                         Pronounced on          : 23.01.2024

JUDGMENT :

1. Vide both above appeals, convicts i.e. accused no.1 Rupchand

and accused no.3 Machindra are taking exception to the judgment

and order passed by learned Additional Sessions Judge, Aurangabad

dated 17.07.2018 in Special POCSO Case No. 119 of 2015 thereby

questioning its legality and maintainability.

PROSECUTION CASE IN BRIEF

2. Chawani Police Station registered crime and chargesheeted

accused Rupchand, Baban (since deceased), Machindra and Shaikh

Sattar for offence punishable under Sections 376-D, 323, 504, 506,

394, 201 r/w 34 of the Indian Penal Code [IPC] and Section 4 of the

Protection of Children from Sexual Offences Act, 2012 [POCSO Act]

alleging that on 21.09.2015 when victim PW1 was having talks with

her friend PW6 on Tisgaon road, around 6.30 to 6.45 p.m., accused

persons approached them. One of them caught hold of victim and

dragged her and remaining two started beating PW6. Accused no.1

raped victim during which she raised shouts which invited attention

of a passer by. So all accused persons took to heels. Victim and her CriAppeal-644-2018+

friend approached police and lodged report on the strength of which

crime bearing no. I 307/2015 was registered and investigated and all

four accused were duly chargesheeted.

3. During trial before learned Additional Sessions Judge,

prosecution adduced evidence of in all 10 witnesses and also adduced

documentary evidence various panchanamas, reports etc. After

appreciating the evidence on record, learned trial Judge convicted

present appellants and hence the appeals assailing above judgment

and findings reached at by learned trial Judge.

SUBMISSIONS

4. Learned counsel Mr. Shaikh Kayyum Najir, Advocate for the

Appellant in Criminal Appeal No. 644 of 2018 would submit that

implication is false. That, victim was caught red handed having

become intimate with her friend PW6 and therefore, to save

themselves, there is false implication by leveling false allegations. He

further submitted that behaviour of victim herself was doubtful. That,

even otherwise prosecution evidence, more particularly answers given

by prosecution witnesses in cross, renders case of prosecution

doubtful. He submitted that considering the very evidence of victim,

she can be said to be consenting party. According to him, there were CriAppeal-644-2018+

no injuries or marks of forceful sexual assault. That, accused were

strangers and victim could not identify them beyond reasonable

doubt. Even age of victim has not been proved by prosecution and for

all above counts, he submits that, the findings and conclusion reached

at by learned trial Judge is either in absence of cogent and reliable

evidence or based on assumptions and presumptions. That, in fact

prosecution has not proved charges beyond reasonable doubt.

Learned counsel has placed reliance on Vilas Namdeo Roundal

v. The State of Maharashtra 2015 All MR (Cri) 1596; Lalliram and

another v. State of Madhya Pradesh (2008) 10 SCC 69; State of

Maharashtra v. Mahadu Dagdu Shinde 2021 SCC OnLine Bom 336;

Anish Rai s/o Sunil Rai v. State of Sikkim 2018 SCC OnLine Sikk 141;

Smt. Firoja @ Puja Maihjur Shaikh v. The State of Maharashtra (with

connected appeal) 2017 SCC OnLine Bom 9084; State of Madhya

Pradesh v. Muna @ Shambhoo Nath 2015 DGLS (SC) 917; Rajak

Mohammad v. State of Himachal Pradesh (2018) 9 SCC 248 and

Surjan and others v. State of M.P. (2002) 10 SCC 214.

5. Learned counsel Mr. M. P. Bhaskar appearing for the Appellant

in Criminal Appeal No. 619 of 2018 at the outset submits that his

client was not properly represented by any legal professional in the CriAppeal-644-2018+

trial court. Therefore there was no proper defence. According to him,

victim was already having affair with her friend. That, they were

spotted together and therefore false case of rape has been set up.

Even according to him, neither age nor occurrence of rape is proved

and corroborated. Therefore, according to him also, there is no

appreciation of evidence and therefore findings reached at by learned

trial Judge cannot be allowed to be sustained.

6. Learned APP pointed out that prosecution had established

victim to be minor. That, while she was with PW6 i.e. her friend,

accused had together approached them and accused no.1 raped

victim while rest of the accused beat PW6. Both, PW1 and PW6, have

stuck to their version and their testimony has remained unshaken

during cross. Medical evidence confirms occurrence of rape as well as

minority of the victim. Even other charges are proved by prosecution

by adducing evidence of independent witnesses and panchas, whose

testimony is also reliable and trustworthy. That, therefore all

necessary ingredients for attracting the charges being available,

learned trial Judge has rightly recorded the guilt and convicted the

accused and that there is no merit in the appeals and so he prays to

dismiss the same.

CriAppeal-644-2018+

EVIDENCE BEFORE THE TRIAL COURT

7. After hearing submissions of both sides and on appreciation of

evidence adduced in the trial court, it seems that case of prosecution

is rested on the testimony of in all 10 witnesses and their status is an

under:

PW1       Victim


PW2       Milind is pancha to spot panchanama and seizure of articles

vide Exhibit 34. This witness is also examined as PW5 at Exhibit 48 where he deposed about acting as pancha to seizure of clothes of victim and PW6 vide panchanama Exhibits 49 and 50 respectively.

PW3 Kunalsingh is pancha to seizure of clothes of all accused vide Exhibits 40 to 43.

PW4 Ganesh is pancha to memorandum of disclosure Exhibit 45 at the instance of deceased accused Baban and recovery of wallet of PW6 along with articles found in it, i.e. aadhar card and passport size photographs of PW6, visiting cards and three currency notes of Rs.100/- each, vide Exhibits 46.

PW6       Friend of victim.


PW7       Dr. Vinayak Nanekar who, on radiological test of bone of

victim, assessed her age to be 16 to 17 years and issued report to that extent vide Exhibit 61.

CriAppeal-644-2018+

PW8 Dr. Sk. Mohiyoddin examined all four accused on 02.10.2015.

PW9 Dr. Shweta Gajabhiye, Gynecologist, who examined victim on 22.09.2015 and issued report Exhibit 84.

PW10 PI Sable is the Investigating Officer [IO].

8. Taking into account the nature of accusations, in the considered

opinion of this court, at the outset it needs to be seen whether

prosecution has established victim to be below 18 years of age. To

ascertain this legal aspect, on visiting evidence of victim herself at

Exhibit 25, she seems to have given her age at 17 years and her

parents seem to be labours. However she has not given her date of

birth. In cross, she stated that she was born in village Bhira and

shifted to village Sajapur when she was 8 to 10 years old. Resultantly,

from her evidence her date of birth is not coming on record.

Unfortunately her biological parents are not examined. She being

daughter of labours, apparently she did not undertake education and

therefore there may not be record to that extent.

In the judgment of Jarnail Singh v. State of haryana 2013

Cri.L.J. 3976; State of Uttar Pradesh v. Chhoteylal LEX (SC) 2011 p.

697 and very recent case of P Yuvaprakash v. State 2023 LiveLaw CriAppeal-644-2018+

(SC) 538, the Hon'ble Apex Court has reiterated the nature of

evidence that would be necessary for determination of age. Here, first

two contingencies spelt out in para 13 of P Yuvaprakash (supra) are

admittedly not available and therefore, under such circumstances, this

court can shift to the last mode of ascertainment of age i.e.

ossification test.

9. Here, PW7 Dr. Vinayak Nanekar, who claims to have conducted

X-ray examination and who was working in the very Radiology

Department, has opined that on the basis of his assessment of bone,

age of victim is around 16 to 17 years. On visiting his cross, except

suggestion that age depends upon geographical circumstances and it

depends upon family history and body structure of their parents,

there is nothing adverse as regards the ossification test is concerned.

Taking the evidence of PW7 into consideration, there is no hurdle to

accept that victim was around 16 to 17 years of age and taking the

same into consideration, she can be said to be below 18 years of age.

Therefore, here, prosecution has succeeded in establishing that victim

was minor at the time of occurrence. Resultantly, the first contention

of both the learned counsel that prosecution failed to establish that

victim was a child or below 18 years of age has no merits and is

required to be discarded forthwith.

CriAppeal-644-2018+

OCULAR EVIDENCE [VICTIM PW1 AND HER FRIEND PW6]

10. Now let us see whether there is evidence suggesting offence as

alleged. Again evidence of victim PW1 and her friend PW6 is crucial

and assumes significance and is therefore required to be carefully

assessed and re-examined.

11. Victim who has deposed in the capacity of PW1 has given the

date of occurrence and about PW6 calling and meeting her and they

both going on his motorcycle firstly to Sidharth garden and leaving

said place around 6.00 p.m. and going in the vicinity of Tisgaon.

According to her, around 6.15 to 6.30 p.m., three persons came, one

of them hold her by her hair whereas other two started beating PW6.

She stated that the person who held her by her hair also slapped her.

She gave his description to be in the age group of 30 to 35 years, fat,

normal in colour, was wearing khaki colour shirt and white colour

pant. According to her, he dragged her to some distance and even she

tried to resist by biting on his forearm. He again assaulted her and

then he forcibly made her lie on the ground, removed her clothes and

his own clothes and raped her. She further deposed that she was

crying and shouting and at that time one person came on motorcycle

and on hearing her cries the person approached them and that time, CriAppeal-644-2018+

she put on her clothes. That time she saw two persons who were

beating PW6 had come and alerted the accused. They all were talking

to her in Hindi but among themselves they were talking in Marathi.

They fled from the spot. She further deposed that PW6 informed his

friend as well as police on phone. Thereafter police reached the spot

and took victim to police station where she lodged report Exhibit 26.

In para 5 and 6 she deposed that after 7 days of the incident, she was

taken to court and her statement under Section 164 was recorded and

2-3 days thereafter, she was again called at Harsool jail and there,

amongst 25-26 persons who were standing in queue, she identified

four persons. She deposed that she could identify the person who had

caught her by hair that day and she pointed towards accused who

turned out to be Rupchand. She also identified rest of the three

accused in court.

12. PW6 friend of victim, who is examined at Exhibit 51 also

supported victim by stating that on 21.09.2015, he called victim and

they both met and reached Sidharth garden on his motorcycle and

from there they started to go towards Aurangabad-Ahmednagar Road

and they stopped at a kachha road in Tisgaon Shivar. While victim

was sitting on the motorcycle and he was standing in front of

motorcycle, at that time three persons came. One of them extorted CriAppeal-644-2018+

mobile from him and gave blow on his back and two of them caught

hold of him, whereas one held victim by her hair and they all started

beating them. When victim requested not to beat, she was given blow

on her mouth and was dragged towards remote place. He also gave

description of the person who dragged as he to be healthy, in the age

group of 30 to 35 year having long mustache. He also stated that two

persons were beating him. They took out wallet and belt from him. At

that time, he had Rs.300/-, aadhar card, passport size photograph and

document of his vehicle. According to him, they said that they would

commit sexual assault on victim. He also claims to have tried to

escape and after reaching main road, he claims to have informed his

friend about the incident. He claims that he was obstructing vehicles.

Four to five vehicles stopped and he narrated the incident to them

and took all those persons towards the spot. When they reached the

spot, they found victim lying on the ground and she was crying and

she allegedly told him that one of those persons committed forceful

act of rape on her.

13. Therefore, as regards the occurrence is concerned, both, PW1

and PW6, are found to be lending support to each other and are

consistent about they meeting, going to the garden, returning towards

road leading to Tisgaon and they being approached by three persons, CriAppeal-644-2018+

one of them dragging victim and other two beating PW6. Victim is

categorical about she being made to lie down and forced upon. Both

of them have given description of all three persons.

MEDICAL EVIDENCE

14. Evidence of PW9 at Exhibit 83, who is a gynecologist, shows

that on 22.09.20015, i.e. on the very next day, victim was produced

by LPC for medical examination and this witness PW9 deposed about

noting history and coming across blood stains on her clothes. She

found abrasions of 0.5 x 0.5 at 6 O'clock position over posterior

hymen. She deposed that hymen was ruptured. She opined that as per

history given old healed hymen tear present, but further stated that

there is possibility of penetrative and forcible intercourse. She has

identified medical report Exhibit 84.

While under cross, there are questions about not noting number

of ward and that most of the doctors refer medical jurisprudence

authored by Parikh and Modi. She further answered and admitted

that during her examination, she did not notice abrasions on victim's

thighs and hips. She also admitted that if forceful sexual assault is

done on a victim on hard and blunt surface, then there is possibility

that victim will have abrasions over her back, hips and thighs.

CriAppeal-644-2018+

15. On analysis of medical evidence discussed above, it is clear that

victim was examined by this doctor on the very next day of the

occurrence. She has noted history. Though doctor has noticed old

hymen tear, she has come across abrasion over posterior hymen and

she gave its measurement. She has expressly answered that there is

possibility of penetrative forcible intercourse and abrasion to be

possible in case there is forcible intercourse. Even in report, she has

opined that penetrative vaginal intercourse could not be ruled out.

Taking into consideration evidence of doctor and the manner of her

cross, it is evident that on 21.09.2015 there was forceful sexual

assault on victim. There was no reason for victim to falsely depose.

Therefore, medical evidence corroborates the testimony of PW1

victim.

16. Though all four accused are shown to be subjected to medical

examination, unfortunately they seem to be produced before PW8 Dr.

Sk. Mohiyoddin on 02.10.2015. Therefore, doctor on examination did

not notice any kind of violence marks on their body.

17. Much hue and cry is made by both learned counsel by

submitting that accused persons were unknown to the victim as well

as PW6. They had merely given description and therefore

identification of accused is not proved beyond reasonable doubt.

CriAppeal-644-2018+

On minute scrutiny of evidence of PW10 IO, we find him

stating in his examination-in-chief about making communication to

the Tahsildar for getting Test Identification parade conducted. Victim

PW1 also in her examination-in-chief stated about participating in TI

parade at Harsool Jail and identifying all accused persons standing in

a queue and she has also identified accused persons in court. Nothing

has been brought during cross of any of the witnesses suggesting

confrontation of accused prior to being made to face TI parade. Even

otherwise, identification parade is mere corroborative piece of

evidence and it is the substantive evidence that would prevail. Here,

victim has identified accused to be present in the court and therefore,

above submissions regarding identification is rendered valueless.

Moreover, in the instant case, learned trial court has marked and got

the TI parade panchanama exhibited. No objection to that was raised

during appeal or even before this court.

Above view of this court gets fortified from the observations of

the Hon'ble Supreme Court in a landmark case of Vijay @ Chinee v.

State of Madhya Pradesh (Criminal Appeal No. 660 of 2008 decided

on 27.07.2010), wherein, in para 17 to 19, by referring the rulings of

Malkhan Singh v. State of M.P. AIR 2003 SC 2669 and Mulla & Anr.

v. State of Uttar Pradesh (2010) 3 SCC 508, it is held as under:

CriAppeal-644-2018+

"17. In Malkhan Singh Vs. State of M.P. AIR 2003 SC 2669, this Court has observed as under:

"It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine."

18. In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3 SCC 508, this court (one of us, Hon'ble P. Sathasivam, J.) placed reliance on Matru @ Girish Chandra Vs. The State of Uttar Pradesh AIR 1971 SC 1050; and Santokh Singh Vs. Izhar Hussain & Anr. AIR 1973 SC 2190, wherein it had been held that the Tests Identification Parades do not constitute substantive evidence. They are primarily meant for the purpose of providing the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. The Test Identification Parade can only be used as corroboration of the statement in Court. The necessity for holding the Test Identification Parade can arise only when the accused persons are not previously known to the witnesses. The test is done to check the veracity of the witnesses. The court further observed as under :-

"The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The CriAppeal-644-2018+

Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court."

19. Thus, it is evident from the above, that the Test Identification is a part of the investigation and is very useful in a case where the accused are not known before hand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."

18. Prosecution has also adduced evidence of pancha witness PW4

Ganesh who claims that in his presence memorandum was given by

deceased accused Baban and in pursuance to the memorandum,

seizure of wallet, aadhar card of PW6 and money was caused and

therefore it is also a value addition. Nothing doubtful has been

brought in cross of this pancha witness.

CriAppeal-644-2018+

19. Therefore, in the totality of above discussed oral and

documentary evidence, in the considered opinion of this court,

prosecution has established beyond reasonable doubt that on the day

of occurrence, victim was below 18 years of age. While she was in the

company of PW6, accused approached them. Medical evidence