Bombay High Court
Rajesh Sangamlal Jaiswal vs The State Of Maharashtra on 10 October, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
HEMANT
2024:BHC-AS:40867-DB
CHANDERSEN
SHIV Amol 1.APEAL-575-2014.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2024.10.15
18:26:27 +0530 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 575 OF 2014
Rajesh Sangamlal Jaiswal
Age: 25 years, Occu: Service,
Residing at: Sainath Chawl Committee,
Ambedkarnagar Kurar Village,
Malad (East), Mumbai. .... Appellant
( Accused No.2)
v/s.
The State of Maharashtra,
at the instance of Kurar Police Station,
Mumbai. ....Respondent
WITH
CRIMINAL APPEAL NO. 990 OF 2014
Mr. Suraj Nepali @ Suraj Lalsingh Chand
Indian Inhabitant,
Residing at: Bal Vikas Rahiwashi Sangh,
Pimpripada, Near Shivsena Shakha,
Malad (East), Mumbai 400 097. .... Appellant
(Accused No.1)
v/s.
The State of Maharashtra
at the instance of Kurar Police Station
Mumbai. ....Respondent
Mr. Yashpal Thakur, a/w Mr. Mukund Pandya, for the Appellant in
Appeal/575/2014.
Mr. Ashish Dubey, i/b Mr. Rishi Bhuta, for the Appellant in
Appeal/990/2014.
Mrs. Kranti T. Hiwrale, APP, for the Respondent-State.
1
::: Uploaded on - 15/10/2024 ::: Downloaded on - 15/10/2024 22:16:09 :::
Amol 1.APEAL-575-2014.doc
CORAM : REVATI MOHITE DERE &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 27th SEPTEMBER, 2024
PRONOUNCED ON : 10th OCTOBER, 2024
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) Although the aforesaid Appeals were heard on 1st July, 2024
and reserved for Judgment, whilst dictating the Judgment, we found that
certain issues were unanswered and hence, the Appeals were again listed
on 27th September, 2024 under the caption 'for direction' to re-hear the
learned counsel appearing for the respective parties. Pursuant thereto, we
have heard learned counsel for the respective parties on certain
points/issues on 27th September, 2024 and accordingly, reserved the
Judgment.
2) Present Appeals impugn the Judgment and Order dated 18 th
and 23rd January 2014, passed by the learned Additional Sessions Judge at
Dindoshi, Mumbai in Sessions Case No. 184 of 2011. By the said
Judgment and Order, the Appellants Rajesh Jaiswal and Suraj Nepali @
Suraj Lalsingh Chand have been convicted under Sections 376 (2) (g),
Amol 1.APEAL-575-2014.doc
366A, 292, 500 and 506 (II) and r/w. 34 of the Indian Penal Code, (for
short, "I.P.C.") and Appellant Rajesh Jaiswal has been convicted under
Section 67 of the Information Technology Act, 2000, (for short, "I.T.
Act"). The Appellants have been sentenced as follows: (Hereinafter the
Appellants Rajesh Jaiswal and Suraj Nepali @ Suraj Lalsingh Chand are
being referred to as per their original status before the trial Court i.e.,
accused no.2 and accused no.1 respectively).
Accused I.P.C. / I.T. Act Sentence
Nos. Sections
1&2 376 (2) (g) Imprisonment for life.
366A RI for 7 years and fine of Rs.5000/-,
in default to suffer RI for 6 months.
292 RI for 2 years and fine of Rs.2000/-,
in default to suffer. RI for 2 months.
500 SI for 1 year and fine of Rs.5000/-,
in default to suffer SI for 6 months.
506 (II) RI for 7 years and fine of Rs.5000/-,
in default to suffer RI 6 for months.
2 Section 67of RI for 3 years and fine of Rs.5000/-,
the I. T. Act in default to suffer RI for 3 months.
3) Heard, Mr. Dubey, learned Counsel for accused no. 1, Mr.
Thakur, learned Counsel for the accused no. 2 and Mrs. Hiwrale, learned
APP for the Respondent-State. Perused the record.
Amol 1.APEAL-575-2014.doc
4) The prosecution story is that, on 1st July 2011, at about 8.30
p.m., PW2-A.P.I. Marathe, a Detection Officer attached to Kurar Police
Station, received an information from his friend and superior that, on
India TV channel a video recording ( for short 'video') of rape committed
on PW1-Victim was being shown as a news item under the title ' Gang
Rape on a Woman, at Gokuldham, Flimcity, Goregaon '. PW2-A.P.I.
Marathe saw the video along with Senior P.I. Mr. Nalawade and verified
the said news. On the same day, an anonymous caller called at the Police
Station and informed that, the person who committed rape on the woman
in the video was accused no.1 and he resides at Pimpri Pada, Malad (East);
that the persons who had caught hold the hands of PW1-Victim were
juvenile boys (JBs) namely "R" and "SS" and they reside at Bhakadbaba
Compound, Sanjay Nagar area; that the accused no.2 and one JB - "LL"
were also involved in the rape; that the girl raped was PW1-Victim namely
XXXX (The victim's name is withheld to protect her identity).
4.1) Immediately, a Police team including PW2-A.P.I. Marathe
went to search the accused. PW13-P.I. Gosavi arrested the accused no.2 on
2nd July, 2011 from his residence at Sainath Chawl, Ambedkar Nagar,
Amol 1.APEAL-575-2014.doc
Malad (East) vide arrest panchnama (Exh.58) and seized a mobile from his
possession. On the same day, PW13-P.I. Gosavi arrested the three JBs -
"BN (@ LL)", "R" and "SS", under separate arrest panchnama. PW13-P.I.
Gosavi seized one NOKIA mobile, cash Rs.40 and two rings from "BN";
that he seized one ring and cash Rs.7/- from "R"; and that he seized two
mobiles i.e. LAVA & NOKIA, two rings and cash Rs.50/- from "SS".
4.2) On enquiry by PW2-A.P.I. Marathe, accused no.2 disclosed
the commission of the offence, as revealed in the said video. Acting on that
revelation by accused no.2, PW2-A.P.I. Marathe lodged a report (Exh.21).
It was registered at Crime No.148 of 2011, under Sections 376 (2) (g), 506
(II) and 500 of I.P.C. (vide Exh.22). PW13-P.I. Gosavi conducted the
investigation.
4.3) On 2nd July, 2011 accused no.2 gave a disclosure statement
(Exh.51) and then he showed to the police and panchas the spot of the
incident situated at Nimboli Pada. Accordingly, Police recorded the
Panchanama (Exh.52). Pursuant to the police letter dated 2nd July, 2011
(Exh.25), PW3-Iqbal Mamdani, a journalist of the India TV, produced a
CD (Article-8) containing a copy of the video of the rape. It was seized
Amol 1.APEAL-575-2014.doc
under panchanama (Exh.31). On 3rd July, 2011, police recorded the
statement of the victim's father. The investigation revealed that the
accused no.2 had shown the said video to his friend PW6-Salim Khan.
Hence, his statement was recorded. Further, Police arrested the accused
no.1 on 4th July, 2011 under arrest panchnama (Exh.35). One Mircomax
mobile (Model No.X-265), three sim cards and cash of Rs.70/- were seized
from accused no.1.
4.4) On 7th July 2011, PW1-Victim returned from her native place,
at Uttar Pradesh, pursuant to which the police recorded her statement.
PW1-Victim disclosed that, from last three months prior to the incident
she and her friend 'D' were visiting Siddhivinayak Temple for darshan.
That accused no.2 was residing in her vicinity. That both the accused were
friends. Both the accused and their friends were visiting the said temple on
every Monday night, therefore she knew them. That accused no.2 was
insisting her to marry him, but she had refused him, therefore, he was
annoyed. On 16th May 2011, at about 10.30 p.m. she, along with her
friend 'D', accused nos.1 and 2 and their certain friends had gone to
Siddhivinayak Temple for darshan. After darshan, at about 4.00 a.m., they
Amol 1.APEAL-575-2014.doc
went to Elphinstone Road railway station. That some boys, with whom
accused no.2 had a quarrel in the past, came at the said station and
quarreled with accused no.2, therefore, there was stamped. However, she
and accused no.1 stayed at the said station; that accused no.2 called the
accused no.1and asked him to come to Dadar, hence, they went to Dadar
by taxi; that at Dadar the accused no.1asked her to travel by taxi to which
she refused, however, accused no.2 made her sit in a taxi by threatening at
knife point. Thereafter, when the taxi arrived at Nibonipada, near
Mounibaba Zhil, Pimpri Pada, Malad (East), both the accused stopped the
taxi and caused the taxi driver to go after beating him and without giving
the taxi fare. Thereafter, both the accused and the JBs took her to the spot
and asked her to serve intoxicated beer to a watchman there, to ease
commission of theft, to which she refused, and hence, both the accused got
angry; that the accused no.2 tore the visiting card and phone diary in her
purse; and that then the accused no.1 raped her at the instance of accused
no.2 and with the aid of the JBs, and the accused no.2 video recorded the
rape, as stated above.
4.5) On 8th July 2011, PW1-Victim was referred for medical
examination. On 10th July 2011, the accused no.1 gave a disclosure
Amol 1.APEAL-575-2014.doc
statement (Exh.46) and recovered the clothes which he had worn at the
time of the incident. Said clothes were seized under recovery panchanama
(Exh.47). On the same day accused no.2 made a disclosure statement
(Exh.59) leading to recovery of the knife, used in the offence. It was seized
under recovery panchanama (Exh.60). On 11th July, 2011 both the accused
were sent for medical examination. On 12th July, 2011, the video in CD
(Article-8) was displayed in presence of panchas and accused no.2. On
viewing the video, accused no.2 disclosed the name of the persons seen in
the video. Accordingly, panchanama (Exh.34) was recorded. On 18 th July,
2011 blood samples of PW1-Victim and the accused were sent to R.F.S.L.
for chemical analysis. On 1st August, 2011 the clothes of PW1-Victim were
seized under panchanama (Exh.27). Further, all the seized clothes were
sent for chemical analysis. On 20th August, 2011, the CD (Article-8) and
the seized mobile phones etc. were sent for analysis to an expert.
4.6) Investigation revealed, that both the accused and the JBs had
committed the aforesaid crime on PW1-Victim. Accordingly, charge-sheet
under Sections 376 (2) (g), 506 (II), 292, 366A and 500 r/w. 34 of the
I.P.C. and under Section 67 of the I.T. Act, was submitted in the Court of
the Metropolitan Magistrate, Borivali, Mumbai, who complied with
Amol 1.APEAL-575-2014.doc
Section 207 Cr.P.C. and committed the case to the Court of Sessions. The
JBs were prosecuted before the Juvenile Justice Board.
5) The learned trial Court framed charge under Sections 376 (2)
(g), 506 (II), 292, 366A and 500 read with 34 of I.P.C. and under Section
67 of the I.T. Act. Both the accused denied the charge and claimed to be
tried.
6) The prosecution examined the following 13 witnesses to bring
home the charge to accused :-
PW1 XXXX (name hidden) Victim of the incident.
PW2 A.P.I. Sanjay Marathe First Informant.
PW3 Iqbal Ismail Mamdani Journalist in India TV. He gave the CD
(Article-8) containing the video of rape.
PW4 Ms.Komal Waghmare Panch- sezure of victim's clothes.
PW5 Narendra G. Gohil Panch- seizure of the CD (Article-8).
PW6 Mohd. Salim Khan He was shown the video of the incident by
accused no.2.
PW7 Dr. Kiran Kalyankkar Medical Officer, Examn. of PW1-Victim.
PW8 Dr. Pratap D. Anand Medical Officer, Examn. of both accused.
PW9 Santosh R. Tiwari Panch - memorandum statement of accused
no.1.
PW10 Akbar Mehmud Khan Panch - memorandum statement of accused
no.2.
PW11 Manoj Kopil Saha Panch- body search of accused no.1.
PW12 Anil D. Chavan Muddemal clerk-cum-career to CA.
PW13 P.I.Hemant K. Gosavi Investigating Officer
Amol 1.APEAL-575-2014.doc
7) After closure of the prosecution evidence, statements of both
the accused were recorded under Section 313 of Cr.P.C.. The defence of
the accused was of denial and false implication. It was specific defence of
the accused that, as accused no.2 refused to marry PW1-Victim and
accused no.1 being friend of accused no.2, she had falsely implicated them
in this case, and she has deposed false against them at the instance of the
police. Further, as police did not get the real culprits, the police falsely
implicated both the accused and the JBs in this case.
8) On appraisal of the oral and documentary evidence in the
light of rival submissions, the learned trial Court convicted and sentenced
both the accused as stated above. Hence, the Appeals.
9) Learned Counsel Mr. Ashish Dubey and Mr. Yashpal Thakur
for accused nos. 1 and 2 respectively have advanced almost the same
arguments. It is their submission that the video in the CD (Article-8) is
not proved to be the copy of the alleged original video recorded in the
mobile phone of accused no.1 and hence, the said video is not admissible
in evidence. Consequently, the evidence of the witnesses that accused no.2
Amol 1.APEAL-575-2014.doc
showed the said video to PW6; that the said video was published on the
India TV channel; that it was copied by PW3; that it was played by PW13-
P.I. Gosavi in the presence of panchas and accused no.2; and that accused
no.2 identified the accused no.1, the JBs, gave their name etc.; is neither
admissible nor reliable.
9.1) Learned counsel submit that, despite having sufficient
opportunities and time, PW1-Victim did not immediately disclose the
incident to her relatives or family members; that, even though, PW1-
Victim had the support of said relatives or family members, she did not
attempt to lodge a prompt report of the incident and instead, she went to
her native place and kept silent about the rape for a long time, which is
unnatural looking at the facts and circumstances of the case. They submit
that, the medical evidence does not support the story of rape and rather, it
indicates that PW1-Victim was habituated to sexual intercourse. They
submit that, the testimony of PW1-Victim is suffering from significant
improvements and discrepancies and therefore, it was risky to place
implicit reliance on her testimony without corroborative evidence.
Therefore, according to the learned counsel, there is reasonable doubt
Amol 1.APEAL-575-2014.doc
about the truthfulness of the prosecution case and hence the benefit of
doubt should go to the accused. As a result, both the Appeals, be allowed.
10) Learned A.P.P. Mrs. Hiwrale for Respondent-State submitted
that, there is sufficient, cogent and reliable evidence which did not meet
adequate challenge in the cross-examination of the prosecution witnesses
and, that the said evidence has proved the offences for which both the
accused have been convicted. She submitted that the sentences imposed
are reasonable and as such no interference is warranted in the impugned
Judgment and Order of conviction and sentence.
11) Considering the rival submissions and nature of the charge,
first it would be appropriate to look at the evidence of the victim. PW1-
Victim has deposed that, she has studied up-to Std. X, from XXX High
School and that her date of birth is 17 th July, 1994. She has deposed that
she was frequently going to Siddhivinayak Temple at Dadar along with her
friend 'D' on Monday night; that accused no.2 was residing in her area;
and that accused no.1 was a friend of accused no.2; and that the latter had
proposed marriage to her, however, she had refused.
Amol 1.APEAL-575-2014.doc
11.1) PW1-Victim has deposed that, on 16th May 2011, she had
gone to the Siddhivinayak Temple along with her friend 'D'; that first,
they came to Malad station at about 10.00 p.m. by an auto rickshaw, there
accused no.2 and his friends met them and, that then they all came to
Goregaon by train. She has deposed that, accused no.1 contacted them at
Goregaon station; from there, they came to Bandra by train, and then they
went to Siddhivinayak Temple by walk. She has deposed that, after
darshan, at about 4.30 a.m., they went to Elphinstone Road railway
station; that some boys came at the said station and quarreled with accused
no.2; that she and her friends, therefore, escaped in different directions;
that she ran towards the backside of the railway station; that accused no.1
came towards her and contacted accused no.2 on his mobile phone and
asked his whereabouts; that in turn accused no.2 called them to Dadar
railway station. She has deposed that accused no.1 told her to accompany
him to Dadar; that they went to Dadar station by taxi where accused no.2
and his three friends were present; and that they all had tea there.
11.2) PW1-Victim has deposed that, then accused no.2 suggested
that she should go home by taxi, but she refused saying that the train was
Amol 1.APEAL-575-2014.doc
about to start and asked the accused no.2 to travel by train, however, the
accused no.2 threatened her at the point of knife and forced her to sit in a
taxi, and hence, she sat on the rear seat of the taxi; that accused no.2 and
his three friends sat besides her and accused no.1 sat next to the driver, in
the front; that then the taxi arrived at Pimpri Pada, Goregaon, near a water
tank where the accused stopped the taxi. She has deposed that from there
the accused took her to Mauni baba Zil; that there were big stones, and it
was a lonely place; that the accused did not pay the taxi fare and instead
assaulted the taxi driver and caused him to run away.
11.3) PW1-Victim has further divulged that, then accused nos.1 and
2 asked her to mix an intoxicating substance in a beer and serve it to a
watchman there, to help them commit theft, however, she refused. She has
deposed that, then accused no.2 told his friends that, she knew everything
about them and she should not be left; therefore, accused no.1 snatched
her purse, took out her diary and visiting card and tore the same. She has
deposed that, then accused no.1said to accused no.2 not to leave her and
that, in case they leave her, she would contact the police and report against
them. She has deposed that, then accused no.1 pushed her on a big stone
Amol 1.APEAL-575-2014.doc
lying there; that the accused no.2 sent one of his friends towards the road
to keep a watch on the passers by; that two friends of the accused no.2
held her hands; that the accused no.1 forcibly removed her clothes; and
that at that time, the accused no.2 was recording a video of the said act.
She has deposed that, she resisted the accused no.1, requested him not to
behave indecently and not to do anything wrong to her; that, she also
requested the accused No.2 saying "aisa mat karo, aisa mat karo", however,
it fell on deaf ears of the accused no.2, and he continued the video
recording. She has deposed that, then accused no.1 raped her.
11.4) PW1-Victim has deposed that, thereafter, the accused no.1
threw her clothes at her and asked her to accompany him or else they
would commit gang rape on her. She has deposed that, the accused
threatened her and took her to Popat compound auto rickshaw stand; that
there, accused nos.1 and 2 threatened her not to disclose the incident to
anyone otherwise they would set her house on fire and kill her family
members, and further threatened to defame her by circulating the video on
internet and mobile. She has deposed that, thereafter she went to her
maternal sister namely RJ, at 'K' Nagar, Mumbai; that her sister asked her
Amol 1.APEAL-575-2014.doc
as why she was frightened, disturbed and pale; that she replied that, she
was suffering from a headache and went to sleep. She has deposed that,
thereafter, she came home at night; that her father was at home, however,
she did not disclose the incident to him as he was suffering from paralysis
and the doctor had cautioned that he may die if he suffered a mental shock.
11.5) PW1-Victim has deposed that, after 4/5 days of the incident,
they went to her native place, at U.P., as her grandmother was unwell; that
there they met the grandmother and stayed for two days; that thereafter,
they went to her maternal aunt at XXX, where she stayed for a month and
then, she returned to Mumbai. She has deposed that, her parents learnt
about the incident through TV news and internet, hence, they took her to
the Police Station where police recorded her statement and seized clothes.
11.6) As noted in the evidence, the video of the incident was shown
to PW1-Victim while recording her deposition. On viewing the video, she
identified the accused nos.1 and 2 seen in the video and informed the role
played by them and others; that the juvenile wearing the red shirt had held
her hand; that accused no.1 had forcibly removed her clothes; and that she
had resisted him. (It appears that the victim was unable to view the video
Amol 1.APEAL-575-2014.doc
further and she did not want to see the same.) Further, PW1-Victim has
deposed that the accused no.2 had recorded the incident on the mobile
phone of accused no.1. She has deposed that the accused had threatened
her with dire consequences at the knife point if she disclosed the incident
to anyone. Further, she identified her seized clothes which matched with
the video. She identified the spot of the incident seen in the video. She has
identified the knife (Article-5). She has deposed that, accused no.1
threatened her to leave the spot, else they would again commit rape on
her; that she was terribly afraid due to the incident; that accused no.1
threatened to kill her; and that somehow she wore her clothes. She has
deposed that the police recorded her statement after one month of the
incident as the accused had threatened to kill her and her family members
and to set her house on fire if she disclosed the incident to anyone.
11.7) In the cross-examination, PW1-Victim has admitted that, she
knew the accused for 7 to 8 months prior to the incident; that she was
visiting Siddhivinayak temple from the last 1 to 1½ months prior to the
incident; they used to go by train sometimes to Bandra and sometimes to
Andheri; and that from there, they used to walk up to the temple. She has
Amol 1.APEAL-575-2014.doc
admitted that, usually, they used to start walking at 9.30 p.m. and reach
the temple at about 2.00 a.m. to 3.00 a.m. She has denied that every time
she used to go to the temple with a different boyfriend.
11.8) PW1-Victim has admitted that, one Imran was the boyfriend
of her friend 'D'; that she, said Imran, accused nos.1 and 2, Gotya and
Ramya were friends; they used to go to the temple in a group; that there
was another group of friends, who were also visiting the temple for
darshan; that after darshan, they used to have breakfast and then return
home; that both the groups were going separately.
11.9) PW1-Victim has admitted that, on 17th May 2011, at 6.30 a.m.,
there was a scuffle in between two groups at Elphinstone Road station. At
that time, accused no.1 and she ran towards different directions.
11.10) PW1-Victim has admitted that, till she was in Mumbai, she
did not disclose the incident to anyone; that she returned to Mumbai one
month after the incident; that her father and one police had come to the
railway station to receive her; that she did not watch the video of the
incident anytime before her examination-in-chief; that she did not shout
Amol 1.APEAL-575-2014.doc
for help when she was threatened by accused at Elphinstone Road railway
station; that when the accused pointed a knife at her, she did not try to get
down from the taxi even though she was seated at the side of the door; that
she did not shout for help from Elphinstone Road railway station up-to
Pimpripada as the accused had pointed a knife at her; that she has never
been to Pimparipada at any time; that she tried to shout for help after she
got down from the taxi but the accused held her hand and gagged her. She
has denied that the video she viewed in the examination-in-chief did not
relate to her and accused no.1.
11.11) PW1-Victim has admitted that she did not lodge a report of
this incident at her native place. She has denied that she has not lodged
such a complaint or informed about the incident to anybody, because no
such incident had occurred.
11.12) PW1-Victim has admitted that, before the incident, accused
no.1 had not done anything wrong to her; that four persons were seated on
the rear seat of the taxi; that the accused persons did not commit anything
wrong to her after the incident of scuffle at Elphinstone Road station till
Amol 1.APEAL-575-2014.doc
they had been to the hotel to have tea; that she did not shout for help from
Goregaon up-to the spot of incident; and that she has never been to the
spot of the incident at anytime except on the day of incident. She admits
that she knew there was a place by the name Mauni baba Zhil but she did
not know exactly where it was located. She has admitted that she came to
know about Mauni baba Zhil as the accused were talking about it at the
spot of the incident.
11.13) PW1-Victim has admitted that, after the incident, neither she
nor the accused ran away; that fifteen minutes were required to reach the
Popat compound rickshaw stand; that there was a rush at the rickshaw
stand; that she did not disclose the incident either to the rickshaw driver or
to anyone present at the rickshaw stand; that at that time she was weeping
but not loudly. She has admitted that nobody threatened her during the
4/5 days after the incident when she was at home; that her father was with
her when she went to her native place; that she stayed at her native place
for one month but during that period she did not lodge any complaint
against the accused or disclose the incident to anybody. She has further
admitted that she would not have filed any complaint if her parents had
Amol 1.APEAL-575-2014.doc
not disclosed the incident to her. She has denied that as accused no.2
refused to marry her, and as accused no.1 was friend of accused no.2, she
has falsely implicated them in this case.
12) PW4-Komal Waghmare has deposed that, in her presence the
police had seized the clothes of PW1-Victim and recorded the seizure
panchnama (Exh.27). She has identified the said clothes. The defence
declined to cross-examine this witness, hence, her testimony has gone
unchallenged.
13) PW6-Mohd. Salim Khan has testified that he knew both the
accused and the three JBs; that in the year 2011, he was sitting in Mohd.
Chacha Garden; that at that time, the accused no.2 showed him a video on
his mobile phone, but the display of the mobile was not good; that
therefore, accused no.2 removed the memory card from his mobile and
inserted it in his mobile and showed him the video; that he saw the
accused no.1 and the three JBs in the video; that accused no.1 was doing
sexual intercourse with a girl and the JBs had held her hands. PW6-Mohd.
Salim Khan has deposed that, the accused no.2 had also disclosed to him
that there was quarrel between him and the PW1-Victim; that due to said
Amol 1.APEAL-575-2014.doc
quarrel, all the accused persons had taken the victim near a Dargah, when
she had visited the Siddhivinayak temple; and that the accused no.1
committed rape on PW1-Victim and other three accused persons had held
her hands.
13.1) In his cross-examination, PW6-Salim Khan has admitted that
video similar to the video shown to him is available in market. He has
denied that he has not seen anybody in the said video; that he has not seen
the accused no.1 while committing rape in the video; that he has deposed
false that he had seen the accused no.1 while committing rape in the said
video; and, that he identified the accused on the say of police.
14) The testimony of PW2-A.P.I. Marathe is as verbatim to his
report (Exh.21). In the cross-examination, PW2-A.P.I. Marathe has
admitted that he has not disclosed the name of his friend who told him
about the news of the incident on India TV; that he has denied that the
faces of accused were not clear when he watched the news. He has denied
that as he failed to arrest the real culprits, he filed a false case against the
accused under pressure of the media. He has admitted that, the reporter of
Amol 1.APEAL-575-2014.doc
India TV or officer of the said channel has not lodged any complaint about
the incident before lodging the report (Exh.21); and that he has lodged the
report (Exh.21) before disclosure of the names of accused by PW1-Victim.
He has denied that he has wrongly identified the accused.
15) Evidence of PW3-Iqbal Mamdani is that, on 18 th June 2011,
his informer informed him that he had an urgent story; that he contacted
the informer at Gokuldham Goregaon (East) at 9.00 p.m.; that the
informer showed him a video of this incident on his mobile; that he sent
the said video to his mobile by blue-tooth and asked the informer to delete
it from his mobile; that thereafter, he consulted the National Editor of
Delhi and Mumbai bureau head; that on 1 st July 2011, at 8.00 p.m. he
published the news of the gang rape on India TV; that the face of PW1-
Victim was blurred before publishing the video; that on 2nd July, 2011 he
received a letter from the police demanding the video of this incident; that
he copied the said video in the CD (Article-8) and gave it to the police;
that on 4th July 2011, the police seized the said CD under the panchanama
and sealed the same. During his examination-in-chief, the said video was
played in the open Court which he identified to be of this incident.
Amol 1.APEAL-575-2014.doc
15.1) In the cross-examination PW3-Iqbal Mamdani has admitted
that for the first time he saw the video of the incident on the mobile phone
of the informant who informed him the incident; that immediately after
viewing the video, he informed his superiors at Delhi and Mumbai offices;
that there was no written permission from his office to publish the video in
media; that he came to know from the said informer that he had viewed
the said video on the mobile phone of one of the offenders; and that he
has not disclosed the name of the person on whose mobile the said video
was first viewed.
15.2) PW3-Iqbal Mamdani has admitted that he had prepared the
CD when the police demanded it after publication of the news; that, the
CD was prepared on his office computer; and that he prepared the CD
only of the material which he had copied from the mobile phone of the
informer. He has denied that he manipulated the said CD for promotion
of his channel; that he has not received any video from any informer; and
that no CD was prepared by him and given to the police.
16) PW5-Narendra Gohil has testified that, on 4th July 2011, in
Amol 1.APEAL-575-2014.doc
presence of him and co-panch Krishna More, PW3-Iqbal Mamdani
produced the CD (Article-8); that Police seized the CD under seizure
panchnama (Exh.31); that on 12th July 2011, Police played the video in the
said CD in his presence, the co-panch and accused no.2; that in the video
some persons had held the victim; and that one person was committing
rape on the victim. However, he has deposed that he is unable to identify
the accused persons due to lapse of time. He has deposed that, after
viewing the video, police re-sealed the CD and recorded the panchnama
(Exh.,34). Nothing material has emerged in the cross-examination of this
witness to disbelieve his aforesaid testimony.
17) PW7-Dr. Kalyankar, Medical Officer has deposed that,
pursuant to the letter of police (Exh.38), he examined the PW1-Victim
physically and clinically with her prior consent; that she narrated the
history of the sexual assault on her; that the victim's hymen was
completely torn, the tear was old (healed) and there were few tags of
hymen, therefore, it was difficult to state the position of tear. He collected
the vaginal swab and blood samples for grouping. He referred the X-ray
plate (Exh.40) and deposed that as per the ossification test PW1-Victim
Amol 1.APEAL-575-2014.doc
was aged 17 to 18 years at the time of examination, and accordingly, he
issued the medical certificate (Exh.39). In the cross-examination PW7-Dr.
Kalyankar has admitted that based on the aforesaid mdical examination,
PW1-Victim may be habituated to sexual intercourse. He has denied that
no history was given by PW1.
18) PW8-Dr.Anand, Medical Officer, has testified that, as per the
police letter (Exh.42) he examined the accused nos.1 and 2. That on the
physical and local examination, nothing was found suggesting that accused
nos.1 and 2 are impotent and accordingly, he issued the medical certificates
(Exhs.43 & 44). The defence declined to cross-examine this witness.
19) PW9-Santosh Tiwari deposed that on 10 th July 2011, at Kurar
Police Station in the presence of him and co-panch Vilas Gorile, accused
no.1 voluntarily disclosed that he is ready to produce the clothes which he
had worn at the time of incident. The Police prepared the memorandum
of the said disclosure (Exh.46); that thereafter, the accused no.1 led the
Police and panchas to Ekpal Vikas Rahiwasi Sangh Malad (East); that from
there the accused no.1 took them to one room near a wall; that Lalsingh
Chand, father of accused no.1 was present in the room; that the accused
Amol 1.APEAL-575-2014.doc
no.1 produced one blue jeans pant and brown colour T-shirt (Articles-6 &
7) which were hanging in the room; and that the Police seized the same
and recorded the panchanama (Exh. 47).
19.1) Except suggestions of denial, nothing significant was put to
PW9 in the cross-examination, and he has not caved into any suggestion.
Hence, his testimony cannot be brushed aside.
20) PW10-Akbar Khan has testified that, on 2 nd July 2011, police
had called him at Kurar Police Station; that at that time, accused no.2
disclosed that he would show the place where he recorded the aforesaid
video; that police recorded the said disclosure (Exh.51); that then they
proceeded in a police vehicle; that the accused no.2 led them near one hill
in Adiwasi Pada; there, the accused no.2 showed them a stone, which was
4/5 feet in breadth; that accordingly, the Police recorded the panchanama
(Exh.52).
20.1) The Advocate for accused no.1 declined to cross-examine this
witness. In the cross-examination for accused no.2, PW10-Akbar Khan
admitted that, police informed him that they have to visit at Adiwasi Pada
and panchanama is to be recorded at the place where the video shooting
Amol 1.APEAL-575-2014.doc
was recorded. PW10-Akbar Khan has denied that the contents of the said
panchanama were read over to him outside the Court hall; that he was not
aware of the contents of the said panchanama; and that, on 2nd July, 2011
the accused did not give the disclosure statement and did not lead them to
the spot of incident, as above.
21) PW11-Manoj Saha deposed that on 4 th July 2011 in the
presence of him and co-panch Ashok Nirman, police arrested the accused
no.1 and searched his person. One Micromax mobile and cash Rs.70/-
(Articles-9 & 9A) were found on the person of accused no.1. The police
seized the same and recorded its panchanama (Exh.35). The defence
declined to cross-examine this witness.
22) PW12-Anil Chavan, police-cum-muddemal clerk of Kurar
Police Station has testified that, the aforesaid muddemal articles seized
during the course of investigation were deposited in his custody from time
to time; and that he carried and deposited the same with the office of the
R.F.S.L. concerned for chemical analysis. In this regard, he referred to the
muddemal entries (Exh.56, 56-A and 56-B).
Amol 1.APEAL-575-2014.doc
23) PW13-P.I. Gosavi has stated that, on 2nd July 2011 at about
8.00 p.m. to 8.30 p.m., the video of this incident of rape was being shown
at India TV channel; that the face of PW1-Victim was blurred, however,
faces of the accused persons were clearly shown; that the said video was
pertaining to an incident of rape that had occurred in the National Park,
Goregaon; that he identified the accused no.1 from the video, that during
enquiry police received an information that the accused no.2 recorded the
video of the incident and his name was Rajesh Jaiswal. He has deposed
that the accused no.2 was arrested on 2nd July 2011; that PW2-API
Marathe enquired with accused no.2 and lodged the report (Exh. 21); that
he registered the crime under FIR (Exh.22); that he arrested the accused
no.2 and recorded the arrest panchanama (Exh.58). He has deposed that
on 2nd July 2011, accused no.2 made the disclosure statement (Exh.51)
that he would show the place of the incident; that the accused no.2 led
him and the panchas to Nimboni Pada, National Park Forest and showed
the spot of the incident; and that accordingly, he recorded the panchama
(Exh.52).
23.1) PW13-P.I. Gosavi has deposed that, the accused no.2 disclosed
the name of PW1-Victim; that he recorded the statement of the victim's
Amol 1.APEAL-575-2014.doc
father on 3rd July 2011; that on 2nd July 2011, he gave the letter (Exh.25) to
India TV to provide a copy of the video of the incident; that on 4 th July
2011, PW3-Iqbal Mamdani produced the CD (Article-8) containing copy
of the said video; that he seized the same under the panchanama (Exh.31);
that the investigation revealed that accused no.2 showed the video of the
incident to PW6-Mohd Salim who had transferred that video to his own
mobile phone from the memory card of the accused no.2.
23.2) PW13-P.I. Gosavi has deposed that, crime branch police
arrested the accused no.1 on 4th July, 2011 and seized from his possession a
mobile and cash Rs.70/- (Article-9 and 9/A) under panchanama (Exh.35);
that on 10th July, 2011 accused no.1 made the disclosure statement
(Exh.46) that he would show the place where he kept his clothes which he
had worn at the time of incident; that then, accused no.1 led him and
panchas to his house at Pimpri Pada and recovered the said clothes, i.e.,
Jeans pant and T-shirt (Article-6 & 7); and that the clothes were seized
under the panchanama (Exh.47). He has deposed that accused no.2 made
the disclosure statement (Exh.59) pursuant to which the knife (Article-5)
was recovered; that it was seized under a recovery panchanama (Exh.61).
Amol 1.APEAL-575-2014.doc
He has deposed that pursuant to the willingness of accused no.2, he played
the video in the CD (Article-8) in the presence of the panchas; that on
viewing the video, the accused no.2 identified and disclosed the name of
accused no.1 and the JBs from their role as seen in the video; and that
accordingly, he recorded the panchanama (Exh.34) and resealed the CD.
23.3) PW13-P.I. Gosavi has deposed that, on 8 th July 2011, he
referred the victim for medical examination along with letter (Exh.38);
that on 11th July, 2011 the accused nos.1 and 2 were referred for medical
examination under the letter (Exh.42) and then, he obtained their medical
certificates. He forwarded the blood samples and the muddemal articles for
chemical analysis under forwarding letters under Exhs. 61 and 62,
respectively. On 20th August 2011, he forwarded the seized mobile and the
CD for forensic analysis under letter (Exh.64). He referred the relevant
CA reports (Exh.65 to 70).
23.4) In cross-examination, PW13-P.I. Gosavi has admitted that he
has not verified the device (equipment) by which the CD (Article-8) was
prepared. He has denied that the actual culprits were not traced,
therefore, he has falsely implicated the accused no.1 in this case. He has
Amol 1.APEAL-575-2014.doc
admitted that, he did not find any video in the mobile phone of accused
no.2; that, he did not seize the mobile phone of the person who gave the
video recording to India TV; that no mobile was detected during the
investigation to show that said video was transferred from the mobile
phone of the accused; that no video was found with accused no.1. He has
denied that, accused no.1 has not made the disclosure statement leading to
discovery of the spot. He has denied that he has falsely implicated the
accused in this case.
24) Having considered the prosecution evidence in detail thus,
first we deal with the question of admissibility of the video of the incident
in evidence. Learned Advocates for the accused vehemently submitted that
the video of the rape incident in the CD (Article-8) is not proved for
several reasons. Firstly, it is not a copy of the original video allegedly
recorded by accused no.2 in the mobile phone of accused no.1. Secondly,
there is no documentary evidence that said video was really copied by
PW3-Iqbal Mamdani from the mobile phone of his informer by using
blue-tooth. Thirdly, there is no evidence as to when, where and how the
informer of PW3-Iqbal Mamdani copied the video of incident. Therefore,
Amol 1.APEAL-575-2014.doc
according to the learned counsel for the accused, the subject video cannot
be rated as a computer output covered within the expression 'electronic
evidence'. The next objection is that the video in the CD is not supported
by a certificate issued under Section 65-B of the Indian Evidence Act.
Therefore, the alleged video of the incident contained in the CD is not
legally admissible evidence, and hence, it be discarded.
25) As against this, learned A.P.P. emphatically submitted that, the
defence has not sufficiently challenged the evidence of PW3-Iqbal
Mamdani that he copied the video in the CD; that the defence has not
raised the aforesaid grounds and objected the video in the CD when the
said video was viewed in presence of the witnesses in open Court, was
identified by the witnesses and the said CD was marked in the evidence as
Article-8. She submits that, therefore, at this belated stage, the Appellants
cannot dispute the admissibility of the said video, raising the said grounds.
26) Looking at the aforesaid rival submissions, it is apt to refer the
decision of this Court in the Nitin Gorakhnath Sartape & Ors. Vs. The
State of Maharashtra1, wherein this Court has considered several decisions
1 2024 SCC OnLine Bom 1047.
Amol 1.APEAL-575-2014.doc
of the Apex Court on the aspect of 'electronic record'. Firstly; in para 300,
this Court referred the case of Sundar @ Sundarrajan Vs. State by
Inspector of police2. In this case the Apex Court in detail considered the
admissibility of CDR; and how evidence of CDR is to be considered i.e.,
the law as it then stood, at the time of trial. The relevant paragraphs are
paragraphs 31 and 32 of the said Judgment, which read thus:-
"31. One of the earliest decisions on the provision was of a two judge
bench of this Court in State (NCT of Delhi) vs. Navjot Sandhu-
(2005) 11 SCC 600, where the Court held that Section 65-B was only
one of the provisions through which secondary evidence by way of
electronic record could be admitted and that there was no bar on
admitting evidence through other provisions. The Court noted that:
150. According to Section 63, "secondary evidence" means
and includes, among other things, 'copies made from the
original by mechanical processes which in themselves ensure
the accuracy of the copy, and copies compared with such
copies'. Section 65 enables secondary evidence of the contents
of a document to be adduced if the original is of such a nature
as not to be easily movable. It is not in dispute that the
information contained in the call records is stored in huge
servers which cannot be easily moved and produced in the
court. That is what the High Court has also observed at para
2 2023 SCC OnLine SC 310.
Amol 1.APEAL-575-2014.doc
276. Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official of the
service-providing company can be led in evidence through a
witness who can identify the signatures of the certifying officer
or otherwise speak of the facts based on his personal
knowledge. Irrespective of the compliance with the
requirements of Section 65-B, which is a provision dealing
with admissibility of electronic records, there is no bar to
adducing secondary evidence under the other provisions of the
Evidence Act, namely, Sections 63 and 65. It may be that the
certificate containing the details in sub-section (4) of Section
65-B is not filed in the instant case, but that does not mean
that secondary evidence cannot be given even if the law
permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, Sections 63 and
65.
(emphasis supplied)
32. The principle which was enunciated in Navjot Sandhu was
overruled by a three judge bench of this Court in Anvar P.V. where it
was held that:
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yield to the same. Generalia
Amol 1.APEAL-575-2014.doc
specialibus non derogant, special law will always prevail over
the general law. It appears, the Court omitted to take note of
Sections 59 and 65-A dealing with the admissibility of
electronic record. Sections 63 and 65 have no application in
the case of secondary evidence by way of electronic record;
the same is wholly governed by Sections 65-A and 65-B. To
that extent, the statement of law on admissibility of
secondary evidence pertaining to electronic record, as stated
by this Court in Navjot Sandhu case, does not lay down the
correct legal position. It requires to be overruled and we do
so. An electronic record by way of secondary evidence shall
not be admitted in evidence unless the requirements under
Section 65-B are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the certificate in
terms of Section 65-B obtained at the time of taking the
document, without which, the secondary evidence pertaining
to that electronic record, is inadmissible."
(emphasis supplied)
27) In para 301, this Court noted that, the Apex Court Judgment
dated 4th August 2005 in (NCT of Delhi) Vs. Navjot Sandhu3, was
subsequently overruled in Anvar's case on 18th September 2014.
According to the learned A.P.P., in the case on hand, the last witness was
3 (2005) 11 SCC 600.
Amol 1.APEAL-575-2014.doc
examined before January, 2014 and the impugned Judgment and Order
was passed on dated 23rd January, 2014, therefore, the law governing
Section 65-B certificates will have to be applied, as it then stood i.e., at the
time of recording the evidence at the trial stage, i.e., in consonance with
the ruling in Navjot Sandhu's case, which relaxed the need for a 65-B
Certificate, for proving electronic records.
28) In para 302, this Court observed that, the Apex Court in Sonu
@ Amar Vs. State of Haryana4, was called upon to consider whether the
judgment in Anvar P.V. Vs. P.K. Basheer5 should be retrospectively applied
or whether it should find a prospective application. Accordingly, in para
40, the Apex Court held as under:
"40. This Court did not apply the principle of prospective
overruling in Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10
SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108]. The dilemma is whether we should.
This Court in K. Madhava Reddy v. State of A.P. [K. Madhava
Reddy v. State of A.P., (2014) 6 SCC 537 : (2014) 2 SCC (L&S)
305] held that an earlier judgment would be prospective taking
note of the ramifications of its retrospective operation. If the
judgment in Anvar's case is applied retrospectively, it would
4 (2017) 8 SCC 570.
5 (2014) 10 SCC 473.
Amol 1.APEAL-575-2014.doc
result in unscrambling past transactions and adversely affecting
the administration of justice. As Anvar's case was decided by a
three-Judge Bench, propriety demands that we refrain from
declaring that the judgment would be prospective in operation.
We leave it open to be decided in an appropriate case by a three-
Judge Bench. In any event, this question is not germane for
adjudication of the present dispute in view of the adjudication of
the other issues against the accused." (emphasis supplied)
29) In para 303, this Court noted that, since, the question was left
open in Sonu (supra), the aforementioned legal labyrinth of Section 65-B
certificate, was finally navigated in Sundar @ Sundarrajan (supra), where
the Apex Court held in para 44 as under:
"44. Therefore, we are inclined to agree with the ratio in
Sonu by not allowing the objection which is raised at a belated
stage that the CDRs are inadmissible in the absence of a Section
65B certificate, especially in cases, where the trial has been
completed before 18 September 2014, i.e., before the
pronouncement of the decision in Anvar P.V.. ... ."
30) In para 304, this Court observed that, "... it was canvassed in
Sonu (supra), that there are two categories of objections which can be
Amol 1.APEAL-575-2014.doc
raised regarding the admissibility of documents, the first category is, where
the document is per se inadmissible i.e., inherently inadmissible; and, the
second category is, where the objection is regarding the mode of proof,
which is procedural. In the latter case, if the objection is raised at any stage
subsequent to the marking of the document as an exhibit, the said
objection regarding the mode of proof cannot be allowed. It was held, that
the crucial test, is whether the parties tendering the evidence would have
had the opportunity to cure the defect by resorting to such mode of proof
as would be regular, if such an objection was raised at the time of marking
such documents as exhibits".
31) In this connection, in para 305 this Court held that, "... it
would be apposite to place reliance on Sonu (supra), in particular,
paragraph 32, of the said judgment:"
"32. It is nobody's case that CDRs which are a form of electronic
record are not inherently admissible in evidence. The objection is
that they were marked before the trial court without a certificate as
required by Section 65-B (4). It is clear from the judgments referred
to supra that an objection relating to the mode or method of proof
has to be raised at the time of marking of the document as an exhibit
and not later. The crucial test, as affirmed by this Court is whether
the defect could have been cured at the stage of marking the
Amol 1.APEAL-575-2014.doc
document. Applying this test to the present case, if an objection was
taken to the CDRs being marked without a certificate, the Court
could have given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that objections
regarding admissibility of documents which are per se inadmissible
can be taken even at the appellate stage. Admissibility of a document
which is inherently inadmissible is an issue which can be taken up at
the appellate stage because it is a fundamental issue. The mode or
method of proof is procedural and objections, if not taken at the trial,
cannot be permitted at the appellate stage. If the objections to the
mode of proof are permitted to be taken at the appellate stage by a
party, the other side does not have an opportunity of rectifying the
deficiencies. The learned Senior Counsel for the State referred to
statements under Section 161 CrPC, 1973 as an example of
documents falling under the said category of inherently inadmissible
evidence. CDRs do not fall in the said category of documents. We
are satisfied that an objection that CDRs are unreliable due to
violation of the procedure prescribed in Section 65-B(4) cannot be
permitted to be raised at this stage as the objection relates to the
mode or method of proof."
(emphasis supplied)
32) Lastly; in para 306, this Court concluded that, "It is thus
evident from the aforesaid judgments and in particular, the judgment of
the Apex Court in the case of Sundar @ Sundarrajan (supra), that an
Amol 1.APEAL-575-2014.doc
objection that the CDRs are inadmissible in the absence of a 65-B
Certificate, if raised at a belated stage, will not be allowed in cases where
the trial has been completed before 18th September, 2014. ...".
32.1) There is no difference between a hard copy of a CDR and a
copy of a video recording, as both are computer output and thus, an
electronic record. In the case in hand, evidence of the last witness was
completed on 15th November, 2013, and the judgment was delivered on
23rd January, 2014. Absolutely, there is no challenge to the evidence of
PW3-Iqbal Mamdani that the electronic evidence i.e., video in the CD
(Article-8) was copied by him from the video available with him. On the
contrary, in his cross-examination it has been brought that he copied the
said video using a computer in his office. That apart, when the said video
was viewed in the open Court during the trial and identified by the
material witnesses, it was not objected by the defence for want of
certificate under Section 65-B of the Evidence Act. However, the said
objection has been raised for the first time in these Appeals, which, in view
of the reported cases we have discussed above, is not sustainable at such a
belated stage. There is nothing in the cross-examination of PW3-Iqbal
Amol 1.APEAL-575-2014.doc
Mamdani and PW13-P.I. Gosavi as regards non-compliance with the other
conditions stated in Section 65-B of the Evidence Act, in relation to the
video in the CD (Article-8). Thus, in the present case, we hold that the
video of the incident in the CD (Article-8) can be looked into, the same
having been marked in the prosecution evidence so.
32.2) Be that as it may, as provided in Section 167 of the Evidence
Act, the improper admission or rejection of evidence shall not be ground
of itself for a new trial or reversal of any decision in any case, if it shall
appear to the Court before which such objection is raised that,
independently of the evidence objected to and admitted, there was
sufficient evidence to justify the decision, or that, if the rejected evidence
had been received, it ought not to have varied the decision. As such even if
we ignore the evidence adduced by the prosecution vis-a-vis the video of
the incident, we in the facts find the testimony of the victim of a sterling
quality, inspiring confidence to safely rely upon it for reasons herein under.
33) In so far as the evidence of PW6-Mohd. Salim Khan is
concerned, he has specifically deposed that the accused no.2 had shown
Amol 1.APEAL-575-2014.doc
him the video of the incident. There is no competent challenge to this
evidence in the cross-examination. Admittedly, accused no.2 was not
covered in the video, as it was recorded by accused no.2 on his mobile
phone, as such, there was nothing incriminating against the accused no.2
in the video. It appears from the Victim's evidence, that the accused no.2
was shooting the incident on his mobile and hence, the accused no.2
showed the said video to PW6-Mohd. Salim Khan. For these reasons, the
claim of PW6-Mohd. Salim Khan, that the accused no.2 had shown him
the video of the incident, cannot be ignored. No doubt PW6-Salim Khan
has given certain admissions in the cross-examination, that he was
deposing against the accused at the instance of police, however, no undue
value can be attached to said admissions considering the evidence that has
come on record as a whole. It appears that said admissions were given
deliberately as PW6-Mohd. Salim Khan and accused no.2 were
schoolmates.
34) Now, before adverting to other material aspects in the
evidence, it would be apposite to refer to the principles relating to
appreciation of evidence of a victim of rape, as enunciated by the Apex
Amol 1.APEAL-575-2014.doc
Court in Raju and others Vs. State of M.P.6, in paragraphs 11 and 12. The
relevant part is as under :
"11. ... It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation
and damage to the accused as well. The accused must also be
protected against the possibility of false implication,
particularly where a large number of accused are involved. It
must, further, be borne in mind that the broad principle is that
an injured witness was present at the time when the incident
happened and that ordinarily such a witness would not tell a
lie as to the actual assailants, but there is no presumption or
any basis for assuming that the statement of such a witness is
always correct or without any embellishment or exaggeration.
12 ... insofar as allegations of rape are concerned, the evidence
of a prosecutrix must be examined as that of an injured witness
whose presence at the spot is probable but it can never be
presumed that her statement should, without exception, be
taken as the gospel truth. Additionally, her statement can, at
best, be adjudged on the principle that ordinarily no injured
witness would tell a lie or implicate a person falsely. We believe
that it is under these principles that this case, and others such
as this one, need to be examined."
34.1) In Rai Sandeep alias Deepu Vs. State (NCT of Delhi) [(2012)
8 SCC 21), the Hon'ble Supreme Court had an occasion to consider who
can be said to be a "sterling witness". In paragraph 22, it is observed and
6 (2009) 3 SCC (Cri) 75.
Amol 1.APEAL-575-2014.doc
held as under:
"22. In our considered opinion, the "sterling witness" should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till
the end, namely, at the time when the witness makes the initial
statement and ultimately before the Court. It should be natural
and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version
of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give
room for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of other
supporting material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific evidence
and the expert opinion. The said version should consistently
match with the version of every other witness. It can even be
stated that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any missing
link in the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of such a
witness qualifies the above test as well as all other such similar
tests to be applied, can it be held that such a witness can be
called as a "sterling witness" whose version can be accepted by
the Court without any corroboration and based on which the
Amol 1.APEAL-575-2014.doc
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the
charge alleged."
34.2) Guided by the aforestated observations, when we subjected
the evidence of PW1-Victim to necessary scrutiny, we find that, despite
lengthy cross-examination, nothing material has emerged to discard PW
1's testimony that both the accused and the JBs abducted her by
threatening her on knife point; that the accused no.1 committed rape on
her with the aid and assistance of accused no.2 and the 3 JBs,; that the
accused no.2 video recorded the rape on the mobile phone of accused no.1.
It is trite that, if the totality of the circumstances appearing on record of
the case disclose that the prosecutrix does not have a strong motive to
falsely involve the person charged, the Court should ordinarily have no
hesitation in accepting her testimony. Here, the testimony of PW1-Victim
is natural and inspires confidence even without any corroboration.
Amol 1.APEAL-575-2014.doc
35) It is pertinent to note that, on viewing the video in the CD
(Article-8), PW1-Victim has clearly identified both the accused in the
video and informed the role played by them and the JBs. Further, she has
identified her seized clothes which matched with the video. Seizure of the
clothes and its identification is not at all challenged in the cross-
examination of PW1-Victim and PW4-Komal Waghmare. As held above,
the video in the CD cannot be disbelieved. The said video evinces that the
PW1-Victim was forcibly raped by accused no.1 and the others with him
aided in the said act. Thus, the said video has strongly corroborated her
entire testimony. In short, the evidence of PW1-Victim vis-a-vis the video
of the incident, if juxtaposed, is found to be very consistent in so far as the
date, time and place of the rape and its video recording is concerned.
36) PW1-Victim wept during the examination-in-chief when she
was reminded that her diary and visiting card were torn by the accused.
Further, when the video of the incident in the CD (Article-8) was shown
to her in the open Court, she could not face it or gather courage to view
the video completely, and recalling the severe psychical trauma caused due
to the incident, several times she wept/cried before the trial Court. This
Amol 1.APEAL-575-2014.doc
demeanor was quite natural, looking at her tender age when she was
ravished and when she testified before the Court, just after one year of the
incident. The rapist degrades the very soul of the helpless female.
Therefore, said demeanor makes thePW1-Victim's version more reliable.
37) The prosecution has also heavily relied on the evidence of
PW13-P.I. Gosavi that pursuant to the willingness of accused no.2, he
displayed the video in the CD (Article-8) in the presence of the panchas;
that on viewing the video the accused no.2 identified and disclosed the
names of the co-accused from their role as seen in the video; that
accordingly, he recorded the panchamana (Exh.34) and resealed the CD.
This evidence is corroborated with the testimony of PW5-Narendra Gohil.
No doubt some parts of the evidence of PW13-P.I. Gosavi cannot be
considered it being in the nature of a confession before a police by an
accused, however, on viewing the video by accused no.2 his subsequent
conduct of disclosing the name, role and identity of accused no.1, the JBs
and identification of the spot of the incident as seen in the video, is
admissible under Section 8 and 27 of the Evidence Act. Therefore, to that
extent, the evidence of PW13-P.I. Gosavi and the proportionate narration
Amol 1.APEAL-575-2014.doc
in the report (Exh.21) cannot be spurned in to-to. Thus, said evidence also
corroborate the evidence of PW1-Victim. Moreover, in the cross-
examination, it was specifically suggested to PW13-P.I. Gosavi that as he
failed to arrest the real culprits, he filed a false case against the accused
under pressure of media, meaning, thereby the accused have not disputed
that the woman seen in the video was raped and what they disputed is only
the identity of that woman and the culprits, which otherwise has been well
established by the witnesses by identifying both the accused and the JBs on
viewing the video and in the open Court.
38) The evidence of PW10-Akbar Khan and PW13-P.I. Gosavi
that the accused no.2 made the disclosure statement and discovered the
spot of the incident did not meet enough challenge in their cross-
examination. Thus, said evidence is admissible under Section 8 and 27 of
the Evidence Act as it is a physical discovery of the spot of the incident,
thereby confirming the electronic discovery of the spot when accused no.2
identified the said spot on viewing the said video in presence of the
panchas and PW13-P.I. Gosavi (vide Exh.34). PW1-Victim has specifically
deposed that there was a big stone, and that she was raped by accused no.1
Amol 1.APEAL-575-2014.doc
on the same stone. Further, she identified the said spot of the incident on
seeing the same in the subject video when played in the open Court.
Besides that, she has also informed the name of the place where the said
spot is located/situated. Therefore, the spot of incident stands established.
39) The evidence of PW13-P.I. Gosavi that the accused no.2 made
the disclosure statement (Exh.59) leading to recovery of the knife (Article-
5) was not sufficiently challenged in the cross-examination. PW13-P.I.
Gosavi had no reason to foist that knife against accused no.2. Therefore,
the said discovery is dependable. PW1-Victim has identified the said knife
as one used in the offence. Thus, it added additional strength to her
version that the accused threatened her at the knife point, then abducted
her and at the end she was raped. The medical evidence reveals that, the
accused no.2 was capable of performing sexual intercourse. Thus, it
corroborates the testimony of PW1-Victim.
40) The police letter (Exh.64) seeking forensic examination of the
seized mobiles, memory card and sim cards coupled with the Forensic
Report (Exh.68) indicate that, total 19 porn videos were found in the
Amol 1.APEAL-575-2014.doc
memory card, allegedly seized from the accused no.2. However, the Arrest
Form of accused no.2. is silent about the said memory card. There is no
other evidence about the seizure of that memory card. Hence, the Forensic
Report (Exh.68) in that regard is of no avail to the prosecution.
41) Learned Advocates for the accused pointed some discrepancies
in the evidence of the witnesses and in particular of PW1-Victim, however,
said discrepancies are not significant so as to throw the prosecution case on
board. In this context, it is advantageous to refer the decision in the case of
Arumugam Vs State of Tamil Nadu.7, wherein it is held that, " normal
discrepancies in evidence are those which are due to normal errors of
observations, normal errors of memory due to laps of time, due to mental
disposition such as shock and horror at the time of occurrence and those
are always there, however honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not expected of a
normal person. Courts have to label the category to which a discrepancy
may be catagorized. While normal discrepancies do not corrode the
credibility of a party's case, material discrepancies do so" . In other words,
in case discrepancies pointed out are in the realm of pebbles, Court should
7 AIR 2009 SC 331
Amol 1.APEAL-575-2014.doc
tread upon it, but if the same are boulders, Court should not make an
attempt to jump over the same.
42) No doubt the medical evidence indicates that PW1-Victim
was habituated to sexual intercourse. Therefore, according to the learned
Advocates for the accused, corroboration is lacking in this case. Said fact,
however, is not sufficient to disbelieve the PW1-Victim's claim about rape
on her by accused No.1. In this regard, it is useful to refer the decision in
the case of Ganga Singh Vs. State of M.P.8, wherein it has been held that,
"Even though there was no medical evidence to corroborate the
testimony of the prosecutrix, such corroboration is not necessary
where the evidence of the prosecutrix was otherwise consistent and
stood corroborated by other circumstances and the FIR".
Thus, it can be seen that medical evidence is not sine qua non for proof of
the prosecution case relating to sexual offence. The litmus test is the
victim's credibility, her veracity, her truthfulness and how far she has
withstood the test of cross-examination. If she has, then notwithstanding
absence of medical evidence her sole testimony is sufficient to prove the
occurrence of incident.
8 (2013) 7 SCC 278.
Amol 1.APEAL-575-2014.doc
42.1) Contextually, a decision in the case of State of H.P. Vs. Manga
Singh9, cited by learned A.P.P is also considered here, wherein in para 12 it
is held as under :
(12) "It is well settled by a catena of decisions of the Supreme
Court that corroboration is not a sine qua non for conviction in
a rape case. If the evidence of the victim does not suffer from
any basic infirmity and the 'probabilities factor' does not render
it unworthy of credence. As a general rule, there is no reason to
insist on corroboration except from medical evidence.
However, having regard to the circumstances of the case,
medical evidence may not be available. In such cases, solitary
testimony of the prosecutrix would be sufficient to base the
conviction, if it inspires the confidence of the Court".
43) Learned Counsels for both the accused at pains submitted that
post-incident conduct of PW1-Victim was very unnatural as she did not
divulge the incident to her relatives and family members for long time. She
did not even try to lodge a report of the incident at her native place with
the support of her father or any other relative. Thus, there was inordinate
delay on her part in disclosing the incident to police and that, said delay
has not been properly explained by the prosecution. Therefore, the learned
Counsel submitted that, it is probable that as the accused No.2 refused
9 (2019) 16 SCC 759.
Amol 1.APEAL-575-2014.doc
marriage with PW1-Victim, she falsely stated that rape was committed on
her. The learned Counsel submitted that, as India TV channel had
published the news about the rape incident, there was pressure from the
media on the police. Therefore, the learned counsel submitted that, both
the accused and the JBs have been made scapegoat by the police with the
help of the Victim's statement, to show that the crime was detected. As
such, the prosecution story is not free from a reasonable doubt.
44) Facing a similar question as to delay in lodging an F.I.R. of the
incident of a gang rape, in the case of Mohammed Ashfaq Dawood Shaikh
Vs. The State of Maharashtra10, in paragraph 79, this Court observed that,
"... the law on the aspect of delay in lodging the F.I.R in such cases is no
more res integra and by a catena of decisions, it has been held that if delay
has been properly explained, then there should not be any reason to
suspect any embellishment or afterthought. ...The Hon'ble Supreme
Court in the case of Amar Singh Vs. Balwinder Singh and others 11, held
thus;
"Mere delay by itself is not enough to reject prosecution case
unless there are clear indications of fabrication. Delay by itself
10 2022 All MR (Cri) 402.
11 (2003) 2 SCC 518
Amol 1.APEAL-575-2014.doc
is not a circumstance to doubt the prosecution case. At the
most, it will call upon the Court to subject the evidence to a
closer scrutiny. However, unless there are indications of
fabrication, the court cannot reject the prosecution version as
given in the FIR and later substantiated by the evidence merely
on the ground of delay. These are all matters of appreciation
and much depends on the facts and circumstances of each case
and for this a host of circumstances like the condition of the
informant, the nature of offence, the circumstances in which
the incident has taken place etc. have to be taken into
consideration". In the words of the Apex Court, "There is no
mathematical formula by which an inference can be drawn
either way, merely on account of delay in lodging the FIR".
44.1) In paragraph 80 thereof, this Court referred the decision in
case of Ravindra Kumar and another Vs. State of Punjab 12, wherein the
Apex Court has held as under;
"The attack on prosecution cases on the ground of delay in
lodging FIR has almost bogged down as a stereotyped
redundancy in criminal cases. It is a recurring feature in most
of the criminal cases that there would be some delay in
furnishing the first information to the police. It has to be
remembered that law has not fixed any time for lodging the
FIR. Hence a delayed FIR is not illegal. Of course, a prompt
and immediate lodging of the FIR is the ideal as that would
give the prosecution a twin advantage. First is that it affords
commencement of the investigation without any time lapse.
Second is that it expels the opportunity for any possible
concoction of a false version. Barring these two plus points for
12 (2001) 7 SCC, 690.
Amol 1.APEAL-575-2014.doc
a promptly lodged FIR, the demerits of the delayed FIR cannot
operate as fatal to any prosecution case. Even a promptly
lodged FIR is not an unreserved guarantee for the genuineness
of the version incorporated therein. Hence, when there is a
criticism on the ground that FIR in the case is delayed, the
court has to look into the reason, why there was such a delay.
"There can be a variety of genuine causes for FIR lodgment to
get delayed. Hence the stale demand made in the criminal
courts to treat the FIR vitiated merely on the ground of delay
in its lodgment cannot be approved as a legal corollary. In any
case, where there is delay in making the FIR, the Court has to
look into the causes for it and if such causes are not attributable
to any effort to concoct a version, no consequence shall be
attached to the mere delay in lodging the FIR".
44.2) In paragraph 81, this Court observed that, in the case of sexual
offence, law is more than well settled and it is very common to come across
the delay in lodging the F.I.R. In the words of the Hon'ble Supreme Court
in the landmark decision in the case of State of Punjab Vs. Gurmit Singh
and others13,
"In sexual offences delay in lodging of the FIR can be due to
variety of reasons, particularly the reluctance of the prosecutrix
or her family members to go to the police and complain about
the incident which concerns the reputation of the prosecutrix
and the honour of her family. It is only after giving it a cool
thought that a complaint of sexual offence is generally lodged.
Hence, even if there is some delay in lodging FIR in respect of
13 AIR 1996 SC 1393.
Amol 1.APEAL-575-2014.doc
offence of rape, if it is properly explained and the explanation
is natural in the facts and circumstances of the case, such delay
would not matter".
44.3) Further in paragraph 82, this Court noted that it was further
observed by the Hon'ble Supreme Court as under;
"In the normal course of human conduct, an unmarried minor
girl, would not like to give publicity to the traumatic
experience she had undergone and would feel terribly
embarrassed in relation to the incident to narrate it to others
over-powered by a feeling of shame and her natural inclination
would be to avoid talking about it to any one, lest the family
name and honour is brought into controversy".
As per the Apex Court, the girl in a tradition bound
non-permissive society in India, would be extremely reluctant
even to admit that any incident which is likely to reflect upon
her chastity had occurred, being conscious of the danger of
being ostracized by the society or being looked down by the
society".
45) Coming back to the case in hand. The testimony of the PW1-
Victim clearly indicates that, when she wanted to go home from Dadar by
train, the accused no.2 threatened her at knife point and forced her to sit
in a taxi; then she was driven to Pimpri Pada, Goregaon, near a water tank;
there, accused stopped the taxi and then took her on foot to the spot of the
incident. This conduct of the accused was sufficient to create the needed
Amol 1.APEAL-575-2014.doc
terror in the mind of the PW1-Victim, as they were five. Even after the
commission of rape, twice the accused threatened PW1-Victim of dire
consequences if she disclosed the incident of rape to anybody. Therefore,
looking at PW1-Victim's tender age at the time of incident, considering
the traumatic impact of the rape and its video recording on her psyche and
having regard to her socio-economical plus educational background and in
particular, her trustworthy version about the incident, we are of the
considered opinion that mere delay in disclosing the incident to the police
by PW1-Victim and the consequent delay in the F.I.R., which stand well
explained in the evidence, is not sufficient to reject the prosecution case.
46) It is important to note that the accused no.2 was friend of the
PW1-Victim and there was no enmity between them. Similarly, there was
no dispute or enmity of any kind between PW1-Victim, accused no. 1 and
the three JBs. On the contrary, the PW1's evidence indicates that, there
were friendly relations between her and accused No.1. As such, the PW1-
Victim had no reason to make a false statement before the Police and then
depose falsely on oath before the trial Court to secure a conviction of both
the accused for such a serious crime. PW1-Victim was less than 18 years of
Amol 1.APEAL-575-2014.doc
age at the time of incident. Moreover, there were no love relations between
her and accused no.2, prior to the incident. Therefore, it is highly
improbable that, she would blame the accused no.1 for rape just because
accused no.2 refused the marriage with her. If really PW1-Victim wanted
to falsely implicate both the accused along with the JBs in this crime, she
could have easily blamed the accused no.2 for the rape instead of accused
no.1 as he only had refused the marriage. Moreover, she would not
implicate the JBs along with him. Last but not least, the marriage refusal
by the accused No.2 was the personal matter between him and PW1-
Victim and, police had no business with that. Therefore, it is highly
improbable that, being pressurised by media the police would book the
five innocent young boys in this serious crime with the help of a young
and poor girl. As such, there is no substance in the version of the defence.
47) Upshot of the aforesaid discussion is that, the prosecution has
proved that the accused nos.1 and 2 along with the JBs threatened PW1-
Victim at Dadar Station at the point of knife, took her in the taxi to the
spot of the incident and then accused no.1raped on her with the aid and
assistance of others. Considering the date of birth of the PW1-Victim, it is
clear that she was minor at the time of incident. Therefore, the learned
Amol 1.APEAL-575-2014.doc
trial Court convicted the accused for the offence punishable under Section
366A of I.P.C. Said Section 366A of I.P.C. reads as under :
"Section 366A. Procuration of minor girl.- Whoever, by
any means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do any act
with intent that such girl may be, or knowing that it is
likely that she will be, forced or seduced to illicit
intercourse with another person shall be punishable with
imprisonment which may extend to ten years, and shall
also be liable to fine".
47.1) On plain reading of Section 366A it is clear that, inducement
is an essential ingredient to attract the penal liability under the said
Section. The evidence of the PW1-Victim clearly indicates that, when she,
both accused and others with her came to Elphinstone Road station to
return home, the quarrel had occurred there, therefore she and her friends
ran in different directions; that this was followed by a telephonic talk
between accused nos.1 and 2; that thereafter, the accused no.2 called them
to Dadar. These circumstances are sufficient to presume that, the PW1-
Victim was scared due to the quarrel and that she needed someone's
support to return home. Therefore, expecting that accused no.2 and others
Amol 1.APEAL-575-2014.doc
will take her home safe, she accompanied accused no.1 to Dadar.
Thereafter, when she refused to travel home by taxi, the accused no.2
showed her the knife and with the aid of accused no.1 and the JBs, he
forcibly driven her to the spot. Thus, it is evident that, first the PW1-
Victim was induced by the accused to come to Dadar by impressing upon
her that she would be taken back home safe. Then instead of taking her
home from Dadar, the accused party caused her to accompany them in the
taxi and travel to the spot and immediately thereafter, she was raped by the
accused no.1. This is amounting to procuration of the then minor PW1-
Victim by accused no.2 with intent to force her to illicit intercourse with
accused no.1. We, accordingly, hold that both the accused are liable to be
convicted under Section 366A r/w.34 of I.P.C. Looking at the manner in
which this crime is committed and the other facts and circumstances, we
are disposed to maintain the sentence imposed for the said offence of
Section 366A r/w.34 of I.P.C.
48) In so far as the impugned conviction under Sections 292, 500
and 506 II r/w.34 of I.P.C. is concerned, there is more than sufficient
evidence to prove the same, we, accordingly hold the same. The impugned
conviction under Section 67 of the I.T. Act is also free from error.
Amol 1.APEAL-575-2014.doc
Similarly, the sentences imposed for the aforestated offences are justifiable,
therefore, we refrain from interfering with the same.
49) Since the impugned sentence of imprisonment, i.e., 'For Life'
is also questioned by learned counsel for both accused, it must be
answered. The incident took place in the year 2011 i.e., prior to
amendment of Section 376 of I.P.C. Before it is amended in the year
2013, the offence of Section 376 (2) (g) was punishable with rigorous
imprisonment for a term which shall not be less than ten years but which
may be for life and shall also be liable with fine. There cannot be second
opinion that, the accused is liable for punishment which is prescribed by
law and in force at the time of commission of the offence. Therefore,
learned counsel for both the accused submitted that, looking at the young
age of both the accused at the time of commission of the offence, their
social, educational and economical background coupled with the fact that
both the accused are behind bars since their arrest on 2 nd/4th July 2011, the
sentence of the life imprisonment may be reduced to the period already
undergone in the jail, till date. To record our agreement with this
proposition, Mr. Thakur, learned counsel for accused no.2 has relied on
the following decisions, which Mr. Dubey learned counsel wants us to
Amol 1.APEAL-575-2014.doc
consider for accused no.1 :
Thongam Tarun Singh Vs. The State of Manipur others14. In this
case, Appellant No.1 was a police driver and Appellant No.2 was a
singer having good reputation; that they were aged about 24-25
years, at the time of the occurrence; that they had no criminal
antecedents; that they were from backward area; that their conduct
in the Jail (post conviction) was very good and they were
participating in the sports/garden and other activities of the jail. In
view thereof, their sentence of imprisonment of 15 years under
Section 376 (2) (g) of the I.P.C. for raping a girl aged 16 years was
reduced to 8 years.
Bavo Vs. State of Gujarat15. In this case, the accused was awarded life
imprisonment under Section 376 (2) (f) of I.P.C. for raping a girl
aged 7 years. However, the Appellant was aged 18/19 years at the
time of incident. The incident had occurred nearly 10 years ago. The
Appellant had already served nearly 10 years of imprisonment.
Considering these facts, his sentence reduced to RI for 10 years with
the fine of Rs.1,000/- with default clause.
Manoj Mishra Vs. The State of Uttar Pradesh16. In this case, the
victim girl aged 14 years was taken away by 3 accused. The
Appellant subjected the victim to sexual intercourse for 4 months.
As a result, she became pregnant. The Appellant was convicted and
sentenced to 20 years RI with fine of Rs.25,000/− for the offence
under Section 376−D IPC. Additionally, he was convicted for the
offences punishable under Sections 363, 366 and 506 of I.P.C. and
under Section 4 of POCSO Act, however, he was sentenced to lesser
imprisonment and fine for these offences.
14 AIR 2019 SC 2456.
15 AIR 2012 SC 979.
16 AIR 2021 SC 5032.
Amol 1.APEAL-575-2014.doc
The crime was committed prior to the amendment of Section
376. Therefore, the conviction was modified to pre-amended
Section 376 of I.P.C. which was punishable with rigorous
imprisonment but not less than seven years and extendable to
imprisonment for life and with fine. The Appellant had no criminal
antecedents. He was a father of 5 children and the eldest son was
more than 18 years. There was no scope to apprehend that the
Appellant would indulge in similar acts in the future. The Appellant
was in custody for more than 08 years. Hence, the sentence was
reduced to the period undergone.
Pradip Vs. The State of Maharashtra17. In this case, the Appellant
was convicted under Section 376 (2) (i) of I.P.C. and under Sections
4 and 6 of the POCSO Act, for raping a minor girl aged 7 years. He
was sentenced to suffer imprisonment for life, which shall mean
imprisonment for the remainder of his natural life and to pay fine of
Rs.25,000/ under Section376 (2) (i) of I.P.C.
However, the Appellant was a young boy of 20 years,
shouldering responsibility of his widowed sister and her son; that he
had no father. He was in jail but for the period near about 4 years 2
months, approximately. Therefore, it is held that, if he has been
incarcerated for considerable period, that would teach him a lesson
and serve the purpose. Therefore, maintain the conviction, the
Court reduced the Appellant's to rigorous imprisonment for 14
years with fine along with default clause.
50) In Mohd. Firoz Vs. State of Madhya Pradesh18, the Hon'ble
Supreme Court commuted the sentence of death of the Appellant for the
sentence of imprisonment for life, for the offence punishable under
17 2022(4) BomCR (Cri) 631.
18 (2022) 7 SCC 443.
Amol 1.APEAL-575-2014.doc
Section 302 of I.P.C. and reduced the imprisonment for the remainder of
Appellant's natural life to the imprisonment for a period of twenty years,
for the offence under section 376A of I.P.C. In this regard, while balancing
the scales of retributive justice and restorative justice, the Hon'ble
Supreme Court held as under :
"61. ... One of the basic principles of restorative justice as developed
by this Court over the years, also is to give an opportunity to the
offender to repair the damage caused, and to become a socially
useful individual, when he is released from the jail. The maximum
punishment prescribed may not always be the determinative factor
for repairing the crippled psyche of the offender. ...".
51) Certainly, always the imposition of appropriate sentences is an
issue of cautiousness. The Court has to consider variety of circumstances
namely-manner of crime, atrocities committed by the accused, victims
condition, age of the accused and other related factors. In the case in hand,
both the accused are in jail since their arrest on 2nd/4th July 2011. Even if
both the accused having convicted for the offence of rape, the role of
accused no.2 is limited to recording the video of the rape. Having regard
to this fact, we deem it appropriate to sentence the accused no.2 to suffer
an imprisonment till the period he has undergone in jail.
51.1) However, considering the manner in which accused no.1 raped
the then minor PW1-Victim, that said incident become viral in the media
Amol 1.APEAL-575-2014.doc
and the brutal impact on the body, mind and soul of the PW1-Victim, we
consider it just to uphold the sentence of life imprisonment recorded
against the accused no.1.
52) In view thereof, the Appeal of accused no.2 deserves to be partly
allowed and the Appeal of accused no.1 is liable to be dismissed. Hence,
we pass the following Order :
- ORDER -
i) Criminal Appeal No. 575 of 2014 is partly
allowed.
ii) Criminal Appeal No. 990 of 2014 is dismissed.
iii) The impugned Judgment and Order dated 18th and
23rd January 2014, passed by the learned Additional Sessions
Judge at Dindoshi, Mumbai in Sessions Case No. 184 of 2011
is upheld to the extent of the conviction and sentence of
Appellants Rajesh Sangamlal Jaiswal (accused no.2) and Mr.
Suraj Nepali @ Suraj Lalsingh Chand (accused no.1) for the
charge of the offences punishable under Sections 366A, 292,
500 and 506 (II) and r/w 34 of the Indian Penal Code, 1860
and the conviction and sentence of the Appellant Rajesh
Sangamlal Jaiswal for the charge of the offence punishable
under Section 67 of the Information Technology Act, 2000.
Amol 1.APEAL-575-2014.doc
iv) The impugned conviction of the Appellants Rajesh
Sangamlal Jaiswal and Mr. Suraj Nepali @ Suraj Lalsingh
Chand for the charge of the offence punishable under 376 (2)
(g) of the Indian Penal Code is upheld. However, the
impugned sentence of the Appellant Rajesh Sangamlal Jaiswal
under said Section 376 (2) (g) the Indian Penal Code is set
aside.
Instead, the Appellant Rajesh Sangamlal Jaiswal is
sentenced to suffer rigorous imprisonment till the period he
has undergone in the jail.
v) The sentence of life imprisonment of the Appellant
Suraj Nepali @ Suraj Lalsingh Chand for the charge of the
offence punishable under 376 (2) (g) of the Indian Penal
Code, is upheld.
vi) Both Appellants are in the jail since 2nd/4th July,
2011, therefore, the benefit of set-off be given to them.
vii) The Appellant Rajesh Sangamlal Jaiswal shall be
released forthwith if not required to be detained in any other
case/crime.
viii) Appeals are disposed of in the aforesaid terms.
53) All concerned to act on the authenticated copy of this Judgment and
Order.
SHYAM C. CHANDAK, J. REVATI MOHITE DERE, J.
