Bombay High Court
Jija Lalsing Rathod vs The State Of Maharashtra on 21 February, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:5080-DB
1 Criappeal-605-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.605 OF 2020
WITH CRIMINAL APPLICATION NO. 38 OF 2025
Amol s/o Madan Kaste
Age - 37 years, Occu - Labour / Agri.
R/o. Pachegaon, Tq. Georai, Dist. Beed .... Appellant
Versus
1] The State of Maharashtra
Through Police Station Georai,
Dist. Beed.
2] ABC
Age - 33 yrs., Occu: Household,
C/o Santosh Arvind Patil,
R/o Pachegaon, Tq. Georai,
Dist. Beed. .... Respondents
....
WITH
CRIMINAL APPEAL NO.630 OF 2020
Navnath S/o Baburao Jadhav
Age - 28 years, Occu. Service [Now in Jail]
R/o Vasantnagar Tanda, Pachegaon,
Tq. Gevrai, Dist. Beed. ... Appellants
Versus
1] The State of Maharashtra
Through Police Inspector,
Georai Police Station,Tq. Georai, Dist. Beed.
2] ABC
Age - 33, Occu: Household,
C/o Santosh Arvind Patil
R/o - Pachegaon, Tq. Georai, Dist. Beed. ... Respondents
....
WITH
CRIMINAL APPEAL NO. 669 OF 2020
WITH CRIMINAL APPLICATION NO.37 OF 2025
Jija s/o Lalsing Rathod,
Age - 35 years, Occu: Driver,
R/o - Jairam Tanda, Pachegaon,
Tq. Georai, Dist. Beed. ... Appellant
2 Criappeal-605-20.odt
Versus
1] The State of Maharashtra
2] ABC
Age - 33, Occu: Household,
C/o Santosh Arvind Patil
R/o - Pachegaon, Tq. Georai, Dist. Beed. ... Respondents
....
WITH
CRIMINAL APPEAL NO.671 OF 2020
Kundlik S/o Bansi Rathod,
Age - 29 years, Occu - Education,
R/o - Kharadi @ Aurangpur Tanda,
Now Nipani Jawalka Tq. Georai,Dist. Beed.
[At present the Appellant is in
Beed Dist. Prison, Division - 2,
Beed, Tq. & Dist. Beed] ... Appellant
Versus
1] The State of Maharashtra
Through the Police Station Officer,
Georai Police Station
Tq. Georai, Dist. Beed.
2] ABC
Age - 33, Occu: Housewife,
C/o Santosh Arvind Patil
R/o - Pachegaon, Tq. Georai,
Dist. Beed. ... Respondents
Appearance :-
Mr. Sudarshan J. Salunke, Advocate for the Appellants in
Criminal Appeal No.605/2020 and Criminal Appeal
No.669/2020
Mr. Pralhad C. Bagure holding for Mr. Vinod N. Rathod,
Advocate for Appellant in Criminal Appeal No.630/2020
Mr. Sandip P. Rathod, Advocate for Appellant in Criminal
Appeal No.671/2020
Mrs. S. N. Deshmukh, APP for the Respondents - State in
All Appeals
Mr. Mahesh S. Bhosle, Advocate for Respondent No.2 in All
Appeals
3 Criappeal-605-20.odt
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 05/02/2025
Pronounced On : 21/02/2025
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. These Criminal Appeals filed under Section 374[2] of
the Criminal Procedure Code, 1973 [hereinafter referred to
as 'Cr.P.C.'] arise out of the Judgment and Order dated
22/10/2020, passed by the learned Sessions Judge, Beed, in
Sessions Case No.54/2015, convicting and sentencing the
Appellants as under :-
"1. The accused No. 1 to 4 are convicted for the offence
punishable under 376(D) of the Indian Penal Code vide section
235(2) of the Code of Criminal Procedure and sentenced to suffer
life imprisonment (however, not below the minimum sentence
provided under Sec. 376-D of IPC) and fine of Rs.5,000/- (Rupees
Five thousand) each in default to suffer rigorous imprisonment for
fifteen days.
2. Accused are further convicted for the offence punishable
under Sec. 366 r/w. 34 of the Indian penal Code vide section 235(2)
of the Code of Criminal Procedure and sentenced to suffer rigorous
imprisonment for Seven years and to pay a fine of Rs.2,000/-
(Rupees Two thousand) each in default to suffer rigorous
imprisonment for one month.
3. Accused are further convicted for the offence punishable
under Sec. 458 r/w. 34 of the Indian penal Code vide section 235(2)
of the Code of Criminal Procedure and sentenced to suffer rigorous
imprisonment for Seven years and to pay a fine of Rs.2,000/-
(Rupees Two thousand) each in default to suffer rigorous
imprisonment for one month.
4. Accused are further convicted for the offence punishable
under Sec. 324 r/w. 34 of the Indian penal Code vide section 235(2)
of the Code of Criminal Procedure and sentenced to suffer rigorous
imprisonment for Two years and to pay a fine of Rs.1,000/- (Rupees
One thousand) each in default to suffer rigorous imprisonment for
fifteen days.
5. Accused are further convicted for the offence punishable
under Sec.394 of the Indian penal Code vide section 235(2) of the
4 Criappeal-605-20.odt
Code of Criminal Procedure and sentenced to suffer rigorous
imprisonment for Ten years and to pay a fine of Rs.2,000/- (Rupees
Two thousand) each in default to suffer rigorous imprisonment for
one month.
6. Accused are further convicted for the offence punishable
under Sec. 506 r/w. 34 of the Indian penal Code vide section 235(2)
of the Code of Criminal Procedure and sentenced to suffer rigorous
imprisonment for Two years and to pay a fine of Rs.1,000/- (Rupees
One thousand) each in default to suffer rigorous imprisonment for
one month.
7. .... .... .... .... .... .... ..... .... ....
8. .... .... .... .... .... .... ..... .... ....
9. .... .... .... .... .... .... ..... .... ....
10. .... .... .... .... .... .... ..... .... ....
11. .... .... .... .... .... .... ..... .... ....
12. .... .... .... .... .... .... ..... .... ....
13. .... .... .... .... .... .... ..... .... ....
14. .... .... .... .... .... .... ..... .... ....
15. .... .... .... .... .... .... ..... .... .... "
2. The Prosecution's case, as revealed from the Police
Report, is as under : -
[I] The Victim, who was 28 years of age, was the resident
of Beed. She was residing with her husband, who was
working in a Bank at Beed. They were having three [3]
daughters. Her parental house and ancestral property
including agriculture land of her father was at Pachegaon,
Taluka Georai, District Beed. For cultivating the land, she
used to visit Pachegaon.
On 01/01/2015, she left Beed for Pachegaon
around 2.00 p.m. She reached Pachegaon. While she was
searching for engaging the services of labourers to pluck
cotton bolls, she was informed by some of the women from
the village that, due to rain in the night, plucking cotton
bolls would not be feasible. As the woman at Pachegaon by
name Godabai was not well, she visited her house. After
5 Criappeal-605-20.odt
meeting another women, she started for going back to Beed
around 6.00 p.m. and came on Pachegaon road, where she
saw a Jeep bearing No.MH-22-7007 of the Appellant - Jija
Lalsing Rathod, who was from Beed. When she asked him
as to within what time he was proceeding towards Beed, he
told her that, he was going till Padalsingi. The Victim
requested him to allow her to come till Padalsingi and she
boarded the Jeep. The Appellant - Jija Lalsing Rathod took
the Jeep via Kurla Road. When she asked him about the
said road, he told her that, it was the nearest road. He
stopped the Jeep at some distance at a place near the
cattle-shed from where the Appellant - Amol Madan Kaste
boarded the Jeep. Thereafter, the Jeep was turned and
taken towards Padalsingi. On the way, they called someone
on the phone. At some distance, the Appellants - Kundlik
Bansi Rathod and Navnath Baburao Jadhav were standing
on a motorcycle. Both of them boarded the Jeep and on
taking turn the Jeep proceeded further. When the Victim
questioned them about the same and asked them to allow
her to alight the Jeep, the Appellants - Kundlik Bansi
Rathod and Navnath Baburao Jadhav asked her to keep
mum and they gagged her mouth. Three of them outraged
her modesty by touching inappropriately. She could not
shout as her mouth was gagged. It was 08.00 to 08.30 p.m.
The Jeep was taken to the Gairan land. The Appellants got
down from the Jeep and made the Victim to alight. They all
committed rape on her turn-by-turn by removing her
clothes. In the incident, her bangles broke and hair pin fell
down. In the meanwhile, her husband called on the mobile
phone two to three times, however, her mobile was taken
6 Criappeal-605-20.odt
by one of the Appellants. They removed Rs.2,000/- from
her purse. When the Victim was weeping, they handed over
the mobile phone to her. Thereafter, they made her to sit in
the Jeep and brought her near her parental house at
Pachegaon. It was midnight. The lock of door was broke
open and all the Appellants took the Victim inside the
house. When the Appellants started removing her clothes,
she requested them to spare her. The Appellants - Navnath
Baburao Jadhav and Jija Lalsing Rathod banged her head on
the wall and she suffered injury. The Appellant - Kundlik
Bansi Rathod removed the lime from his pocket and applied
the same on her injury. Thereafter, the Appellants removed
her clothes and committed rape on her turn-by-turn.
Thereafter, the Appellants left the house by threatening her
not to disclose about the rape to anyone or else she will
again be subjected to rape. The Victim could not sleep for
the whole night. In the morning, she saw the condoms
lying over there. As her saree was smeared with mud, she
went to the neighbouring house and brought the water in a
bucket and washed her saree. As it was cloudy, her saree
did not dry and she borrowed a saree from the
neighbouring woman. She was in dual mind whether to
lodge the report or not due to the threat. However,
considering that she may be subjected to such act by the
Appellants again, she went to the Police Station and lodged
the First Information Report [F.I.R] against the Appellants
and Crime No.2/2015 came to be registered for the offence
punishable under Sections 363, 452, 354, 376[D], 324 and
506 of the Indian Penal Code, 1860 [hereinafter referred to
as 'I.P.C.'].
7 Criappeal-605-20.odt
[II] During the investigation, the Victim was referred for
medical examination, the Spot Panchnama came to be
drawn, the clothes of Victim came to be seized, the
Appellants came to be arrested, the statements of the
witnesses came to be recorded, the muddemal seized
during the course of investigation was referred to the
Chemical Analyzer, the relevant documents came to be
collected and on completion of investigation, the Appellants
came to be Charge-sheeted. The Test Identification Parade
[T.I.P] was conducted for the two [2] unknown Appellants,
wherein, the Victim identified them. One shirt and
Rs.1,500/- came to be seized at the instance of Appellant -
Navnath Baburao Jadhav.
[III] On committal, the learned Trial Court framed the
Charge against the Appellants for the offence punishable
under Sections 363, 366, 376[D], 376 [2][n], 452, 324, 394,
458, 201 and 506 read with Section 34 of I.P.C vide Exhibit
- 55, to which, the Appellants did not plead guilty and
claimed to be tried. To prove the Charge, Prosecution
examined in all ten [10] witnesses and brought on record
the relevant documents. After filing of evidence closure
pursis by the Prosecution, the learned Trial Court recorded
the statement of the Appellants under Section 313[1][b] of
Cr.P.C. The Appellants denied the case and evidence of
Prosecution. The Appellants stated that, they were falsely
implicated on account of financial transactions. After
hearing both the sides and appreciating the evidence
available on record, the learned Trial Court passed the
impugned Judgment and Order convicting the Appellants
for the offences as referred above in Paragraph No.1.
8 Criappeal-605-20.odt
3. Heard the learned Advocates for the Appellants,
learned A.P.P. for Respondent No.1 - State and the learned
Advocate for Respondent No.2 - Victim. Scrutinized the
evidence available on record.
4. It is submitted by the learned Advocates for the
Appellants that, the case largely rests on the testimony of
Victim, who is examined as PW - 1. Her evidence shows
that, the story put-forth by her was not truthful. Her
evidence goes to show that, she was not the reliable
witness. The date of incident given by the Victim was the
weekly bazaar day. The Victim was not the witness of
sterling quality. There are inherent improbabilities in her
testimony. No conviction can be based on the unreliable
testimony of Victim. The T.I.P was conducted after a period
of one and half [1½] months from the arrest of the
Appellants. The Prosecution examined the husband of
Victim whose evidence was also improbable and
unbelievable. The panchas did not support the case of
Prosecution. The CA reports do not corroborate the
testimony of Victim. The testimony of the Investigating
Officer will not be sufficient to prove the Charge. The
Judgment and Order of conviction and sentence be set aside
and the Appeals be allowed. They relied on the Judgments
in support of their submissions, which are considered in the
later part of the Judgment.
4.1 The learned Advocate for the Appellant in Appeal
No.630/2020 tendered the additional documents on record
with the Application at the time of hearing. The documents
9 Criappeal-605-20.odt
are the copy of Judgment passed by the learned Magistrate,
Georai in R.C.C. No.135/2007 and the copy of F.I.R bearing
Crime No.702/2018 registered with Shivajinagar Police
Station, Beed.
5. It is submitted by the learned A.P.P. and learned
Advocate for Respondent No.2 - Victim that, looking to the
background of Victim, it requires lot of courage to come
forward to lodge the report and step into the witness box.
There is detailed evidence of the Victim, which went
unchallenged on most vital aspect. She lodged prompt
report with the concerned Police Station after the incident.
Her testimony is fully corroborated by her report. She had
no reason to lodge false report against the Appellants. On
arrival of her husband at the Police Station, she gathered
courage and lodged the report. There is medical evidence
on record, which corroborate the testimony of the Victim.
The pieces of bangles were found in the four wheeler of the
Appellants, which was used in the Crime. The cross-
examination of the Investigating Officer was general and
nothing has come to discard the case of Prosecution. In
313 statement of Cr.P.C., the Appellants only denied the
evidence. The Judgments cited by the learned Advocates
for the Appellants are not applicable to the case at hand.
The learned Trial Court rightly passed the impugned
Judgment and Order, hence the Appeals be dismissed. The
learned A.P.P and learned Advocate for Respondent No.2 -
Victim relied on the Judgments, which would be considered
at later point of time.
10 Criappeal-605-20.odt
6. Before adverting to the appreciation of evidence on
record, the Judgments relied upon by both the sides are
considered.
Judgments relied upon by the learned Advocate for the
Appellant
[i] Paramjeet Singh @ Pamma Vs. State of Uttarakhand;
2010 [7] Supreme 26 ;
[ii] Rai Sandeep @ Deepu & Another Vs. State of NCT of
Delhi; 2012 [5] Supreme 402 ;
[iii] Lalliram and Another Vs. State of M.P; 2008 [6]
Supreme 501 ;
[iv] S. D. Soni Vs. State of Gujarat; 1991 2 Crimes [SC] 4 ;
[v] State of Maharashtra Vs. Sanjay S/o Digambarrao
Rajhans; 2004 [8] Supreme 138 ;
Judgment relied upon by the learned A.P.P. for Respondent
No.1 - State
[i] State of Punjab Vs. Gurmit Singh and Others; [1996] 2
SCC 384;
Judgments relied upon by the learned Advocate for
Respondent No.2 - Victim
[i] Phool Singh Vs. The State of Madhya Pradesh in
Criminal Appeal No.1520/2021 of Supreme Court of
India ;
[ii] Selvamani Vs. The State Represented by the Inspector
of Police in Criminal Appeal No.906 of 2023 of the
Supreme Court of India ;
7. From the above referred decisions of the Hon'ble Apex
Court, the following principles can be culled out ;
11 Criappeal-605-20.odt
"[a] To hold an accused guilty for commission of an
offence of rape, the solitary evidence of the
prosecutrix is sufficient, provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality.
[b] The injury is not a sine qua non for deciding whether
rape has been committed. But it has to be decided on
the factual matrix of each case.
[c] 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.
[d] The evidence of the Victim of sexual assault, need not
necessarily have corroboration, unless there are
compelling reasons for seeking corroboration.
[e] The evidence of a Victim of sexual assault stands
almost on a par with the evidence of an injured
witness and to an extent is even more reliable.
[f] Ever case, in the final analysis, would depend upon its
own facts.
[g] Though an offence may be gruesome and revolt the
human conscience, an accused can be convicted only
on legal evidence and not on surmises and conjecture.
[h] The law does not permit the court to punish the
accused on the basis of a moral conviction or
suspicion alone.
[i] The burden of proof in a criminal trial never shifts and
it is always the burden of the prosecution to prove its
case beyond reasonable doubt on the basis of
acceptable evidence.
[j] More serious offence, the stricter degree of proof is
required, since a higher degree of assurance is
required to convict the accused.
[k] Between 'may be true' and 'must be true' there is
inevitably a long distance to travel and the whole of
this distance must be covered by legal, reliable and
unimpeachable evidence.
12 Criappeal-605-20.odt
[l] The prosecution must stand or fall on its own legs and
it cannot derive any strength from the weakness of
the defence and that it is not the law where there is
any infirmity or lacuna in the prosecution case, the
same could be cured or supplied by a false defence or
a plea which is not accepted by a Court.
[m] Fouler the crime, higher the proof.
[n] Inferences have to be drawn from a given set of facts
and circumstances with realistic diversity and not
dead uniformity lest that type of rigidity in the shape
of rule of law is introduced through a new form of
testimonial tyranny making justice a casualty."
8. Heard both the sides. Scrutinized the evidence on
record. It is the Prosecution's case that, the Victim was
abducted, was raped by all the Appellants twice in the
evening of 01/01/2015, was robbed of Rs.2000/-, caused
house trespass of the Victim's house, voluntarily caused
hurt to her, threatened the Victim with similar
consequences and caused disappearance of the evidence to
save themselves. The Prosecution examined the Victim as
PW - 1, husband of the Victim as PW - 2, the panch for Spot
Panchnama as PW - 3, the panch for seizure of clothes of
Victim as PW - 4, the panch for disclosure and recovery as
PW - 5, the Medical Officer, who examined the Victim as
PW - 6, the panch for seizure of the four wheeler as PW - 7,
the Nayab Tahsildar, who conducted the Test Identification
Parade [TIP] as PW - 8, the Investigating Officer as PW - 9
and the Police Officer who took the report of the Victim and
registered the Crime as PW - 10.
9. The Prosecution's case largely rests upon the
testimony of the Victim, who is examined as PW - 1. She
was married to PW - 2 [15] fifteen to [16] sixteen years
13 Criappeal-605-20.odt
prior to the date of incident. PW - 2 was working as a
Cashier in the Multi State Credit Co-operative Society at
Neknoor. The Victim and her husband were residing at
Beed with their three [3] daughters. The Victim's maternal
place was Pachegaon. As the Victim's parents were no
more and she had no brother, she was looking after the
property of her father at Pachegaon comprising house and
agricultural land. The Victim used to visit Pachegaon
intermittently to look after the said property. On
01/01/2015, she started from Beed at 2.00 p.m. and
reached Pachegaon at 3.00 p.m. As she wanted to pluck
cotton bolls, she interacted with the women by name
Godabai and Tarabai. The Victim was informed that, it
rained in the last night and so it was not advisable to pluck
cotton bolls. The Victim cancelled the work of plucking
cotton bolls. She visited the house of said Godabai and
Tarabai.
10. At 6.00 p.m., the Victim came to the Pachegaon Phata
for going to Beed. She saw the Jeep of Appellant - Jija
Lalsing Rathod [Accused No.1], who was known to her, at
the said place. The Victim asked Appellant - Jija Lalsing
Rathod whether he was going to Padalsingi and the
Appellant - Jija Lalsing Rathod replied in the affirmative.
The Victim asked him to allow her to travel till Padalsingi
and she boarded the Jeep. Appellant - Jija Lalsing Rathod
started the Jeep and took it via village Kurla by telling the
Victim that, it was the nearer way. The Jeep was stopped
by the Appellant - Jija Lalsing Rathod on Dhangar Kotha
where Appellant - Amol Madan Kaste [Accused No.2]
14 Criappeal-605-20.odt
boarded the Jeep. The Jeep was taken in reverse direction
by Appellant - Jija Lalsing Rathod and thereafter proceeded
towards Padalsingi via Wahegaon Pati. The Appellant -
Amol Madan Kaste made a phone call to someone. When
the Jeep reached Wahegaon Phata, two [2] unknown
persons [Accused No.3 - Kundlik Bansi Rathod and Accused
No.4 - Navnath Baburao Jadhav] boarded the Jeep. The
Jeep was taken reverse by the Appellant - Jija Lalsing
Rathod. The Victim asked them as to why the Jeep was
being taken in reverse direction and asked them to allow
her to get down from the Jeep, however the Accused
gagged her mouth and started misbehaving with her. The
Appellants started touching her inappropriately. When the
Victim tried to shout, the Appellants did not allow her to
shout. The Jeep was taken via Kurla to Gairan land. The
Appellants were talking with each other that, they will
commit rape on the Victim. On reaching the Gairan land,
the Victim was pulled out of the Jeep, the Victim was
undressed and the Appellants committed rape on her one
by one. Due to the previous night rain, her saree got
muddy. There was phone call of her husband, however, one
of the Appellants took the mobile phone from her. The
Appellants took Rs.2000/- from her or the money fell down.
Her hair pin also fell down and her green colour bangles
broke into pieces. She suffered injury to her right elbow.
Thereafter, the Victim put on her clothes and the
Appellants took her in the Jeep. The phone was returned to
her by the Appellants and its battery was discharged.
15 Criappeal-605-20.odt
11. Thereafter, the Victim was taken by the Appellants to
the house of her father. The Appellants gagged her mouth
and Appellant - Kundlik Bansi Rathod broke open the lock
of her father's house. It was between 11.00 p.m. and 11.30
p.m. The Victim was taken inside the house and the
Appellants started sexually assaulting her. When the
Victim told the Appellants not to do as she was suffering,
the Appellant - Navnath Baburao Jadhav banged her head
against the wall due to which she suffered bleeding injury
on her head. The shirts of all the Appellants got stained
with her blood. The Appellant - Kundlik Bansi Rathod put
lime on her injury. Thereafter, all the Appellants committed
rape on her one by one on the Bed having rug. The
Appellants - Jija Lalsing Rathod, Kundlik Bansi Rathod and
Amol Madan Kaste used condoms while committing rape on
her. After the rape, the Victim was threatened by the
Appellants not to disclose the incident to any one, or else
she would be raped by ten [10] persons. The Victim stayed
in the house till the next day morning.
12. On the next day morning, she saw the condom packets
in the house, which she threw outside. She noticed two
condom packets on the wall. The used condoms, which
were lying on the floor, were thrown outside by her. As
there was mud on her saree, she brought the water from
woman called Malin Mawashi, in one bucket and washed
her saree and put it for drying. As her saree did not dry,
she brought a saree from her neighbourer - Kantabai Gulve
[this name she deposed in her cross-examination].
Thereafter, the Victim went to the medical store and
16 Criappeal-605-20.odt
purchased one lock for her house. She was thinking
whether to lodge the report or not. At 3.00 p.m., she went
to the Georai Police Station and lodged the report with the
Police, which was at Exhibit - 79.
13. On the next day, she went to the Police Station and
from there to the Court of Magistrate, where her statement
under Section 164 of Cr.P.C. was recorded, which is at
Exhibit - 80. Thereafter, she was referred to the Civil
Hospital, Beed for medical examination. She pointed the
spot of incident to the Police, which was the house and
informed the Police that, the first incident occurred at
Gairan land. The Police seized the condom packets, broken
lock, bed-sheet and blood stain handkerchief from the spot
of incident which was the house of Victim's father. The
Police seized the clothes, which she was wearing at the
time of incident, which were at Articles - 8 - red colour
saree, 9 - black colour blouse, 10 - brown colour petticoat
and 11 - red colour nicker. On 18/02/2015, she went to the
Jail at Beed for T.I.P, in which, she identified the Appellants
- Navnath Baburao Jadhav and Kundlik Bansi Rathod. She
identified the Appellants as the Accused persons, who
committed rape on her, at the time of her evidence.
14. The above is the evidence of Victim in support of the
Prosecution. Her further evidence in the nature of cross-
examination shows that, the day of incident i.e. 01/01/2015,
was a weekly market day at Pachegaon being Thursday.
There used to be passenger vehicles on the Pachegaon
17 Criappeal-605-20.odt
Phata. According to her, on that day, there was no vehicle
except the Jeep of Appellant - Jija Lalsing Rathod. When the
passenger vehicles used to be available on the said spot i.e.
Pachegaon Phata, from where, the Victim boarded the Jeep
of Appellant - Jija Lalsing Rathod, it is strange that, though
it was a market day, there was no vehicle except that of the
Appellant - Jija Lalsing Rathod. Her evidence that, she
received a phone call from her husband at the time of
incident at Gairan land, is contrary to the evidence of her
husband - PW - 2 that, when he called the Victim on her
phone, her phone was switched off. His evidence shows
that, he called Victim in the evening of 01/01/2015 and also
in the morning of next day, however her phone was
switched off. From the evidence of Victim's husband, it has
come on record that, whenever the Victim used to get late,
she used to stay at Pachegaon and come on the next day.
This shows that, the Victim was an independent woman and
used to stay at Pachegaon at her father's house whenever
she used to get late.
15. The Victim attributes the role of gagging her mouth to
all the Appellants. Her evidence is not specific in that
regard. She gave a general statement that, they all gagged
her mouth. It is out of imagination that, how come all the
four [4] accused persons would gag her mouth at the same
time. If the Victim is to be believed that, she was raped by
four [4] accused persons on the Gairan land, there would
have been injuries on her back side due to mud and stones
etc. However, the medical evidence on record shows that,
only two injuries i.e. CLW on right parietal region
18 Criappeal-605-20.odt
admeasuring 2 x 1 c.m. and abrasion on right fore-arm and
right elbow joint admeasuring 2 x 1 c.m. were noticed on
the Victim. It has clearly come in the evidence of PW - 6
[Dr. Prakash Madhukarrao Shivanikar], who examined the
Victim that, except the aforesaid injuries, there were no
injuries on the Victim. His evidence shows that, there was
no mention of the age of aforesaid injuries in the medical
examination report. In absence of evidence in respect of
the age of aforesaid injuries, the testimony of Victim in
respect of banging her head against the wall by Appellant -
Navnath Baburao Jadhav fall short of full corroboration by
the medical evidence. The Victim was an agriculturist and
in absence of the age of aforesaid injuries on her person, it
cannot be conclusively held that, the aforesaid injuries were
suffered by her due to sexual assault. Further, the
evidence of Medical Officer shows that, he examined the
gait of the Victim and he found it to be normal.
16. According to the Victim, she was raped by four [4]
accused persons, twice within a very short span of time in
the night of 01/01/2015, however, she does not utter a
single word to Malin Mawashi and Kantabai Gulve, from
whom, she brought the bucket and saree, respectively in
the morning of 02/01/2015. Not telling about such a
ghastly incident to those women, who were residing nearby
her father's house is unnatural and strange. Moreover, the
said two women are not examined by the Prosecution. Not
only this, the Victim goes to the shop in the same village
and purchases new lock for the door. Her evidence shows
that, on the back side of her father's house, there was
19 Criappeal-605-20.odt
Muslim locality, towards north side there were houses of
Musale and Barbade and on the other side of road towards
east side, there was house of Shivling Gulave. Her
evidence goes to show that, in the village, there were
houses on both the sides of road and there were electricity
poles besides the road. Her evidence nowhere shows that,
when she was brought to the village, she did not raise any
alarm though, it was the village with which she was
acquainted and knew the neigbourers. It was not a foreign
place for her. Again she deposed that, after she was taken
in front of her father's house, the accused persons gagged
her mouth. She again attributes the role of gagging her
mouth to all the accused persons. This is the general
statement against all the accused persons. Her evidence
nowhere shows that, her mouth was gagged while she was
being raped by the accused persons. When she was being
raped in the house of her father, which was situated in the
village surrounded by the residential houses, her shouts
would have facilitated the neighbourers to wake up and
come to her rescue. However, nothing of that sort was
done by her.
17. Though, in her evidence, the Victim deposed that,
her phone was discharged, it is strange that, after she goes
to the Police Station in the afternoon of next day, the Police
used her mobile phone to call her husband. This is clear
from the evidence of her husband - PW - 2, wherein, he
deposed of receiving the phone call from the phone of his
wife [Victim]. Her evidence shows that, while committing
rape on her in the house of her father, the condoms were
20 Criappeal-605-20.odt
used by the accused persons. When she was raped by four
[4] accused persons by using the condoms, her conduct of
throwing the condoms out of the house in the morning is
strange. The said conduct is required to be taken note of.
This indicates that, she was facilitating disappearance of
evidence. Though during the investigation, PW - 9
[Gauravsingh Shyam Avadhsing], who investigated the
Crime, visited the spot of incident and seized one blanket,
two stones, broken lock, three [3] used condoms, [2] two
unused condoms and one [1] handkerchief, CA report at
Exhibit - 113 do not show Semen and blood on the
condoms. The blood detected on the handkerchief was
human. The letter by which the Articles were referred to
the Chemical Analyzer at Exhibit - 133 shows that, three
[3] condoms, which are referred in the said CA report, were
the used condoms. The scientific evidence do not
corroborate the testimony of Victim.
18. The evidence of Victim goes to show that, on the next
day, she went to the Police Station at 03.00 p.m. According
to PW - 10 [Raju Asaram Talekar], who was posted at the
Georai Police Station, shows that, the Victim came to the
Police Station on 02/01/2015 at about 04.00 to 04.15 p.m.
Though the Victim was being raped twice in the night, she
neither calls her husband nor goes to the Police Station
immediately. Her evidence shows that, she was thinking
whether the incident was to be reported or not. If the
Victim is to be believed in respect of rape by four [4]
accused persons, her evidence shows that, the Appellants
left her house in the night, there is nothing to show that,
21 Criappeal-605-20.odt
she was prevented from immediately going to the house of
her neighbourers whom she very well knew. However, she
remains silent and goes to the Police Station after a period
of twelve [12] hours from the second incident of rape. This
indicates that, the Victim had sufficient time to think before
lodging the report. Under such circumstances, merely
because there is no inconsistency in her testimony, can be
no ground to accept her evidence.
18.1 True it is that, the CA report [Exhibit-113] shows
the Semen having blood group 'B' which was similar to that
of blood group of Appellant - Amol Madan Kaste, was found
on the petticoat of the Victim, that cannot be the conclusive
proof to prove the Charge of rape. The evidence of the
Medical Officer shows that, when he carried the local
examination, he noticed external organs were normal,
hymen ruptured with old tears and he noticed tenderness
on internal examination on finger test and he gave final
opinion suggestive of sexual assault. In light of the above
improbabilities in the testimony of the Victim, the medical
and scientific evidence would not be sufficient to come to
the conclusion that, the Victim was subjected to rape. The
suggestion is given to the Victim in her cross-examination
that, she knew all the accused persons before the incident
and she met them at Padalsingi and they had food together
and the accused did nothing against her wish. On re-
appreciating the evidence of the Victim as discussed above,
the said defence cannot be said to be improbable. The
pieces of bangles in the Jeep show that, she boarded or
traveled in the Jeep. That cannot be the conclusive proof to
22 Criappeal-605-20.odt
prove the Charge. As regards the Charge of robbery, the
Victim herself was not sure whether the money was robbed
from her or they fell down.
19. The learned Advocate for the Appellant tendered the
Application No.464/2025 for placing on record the
additional documents, which were the copy of Judgment
passed in R.C.C. No.135/2007 dated 06/03/2012 passed by
the learned Judicial Magistrate, First Class, Georai and the
copy of F.I.R. No.702/2018 registered with Shivajinagar
Police Station, Beed for offence punishable under Sections
376[2][i] of I.P.C. and Sections 4 and 8 of the Protection of
Children from Sexual Offences (POCSO) Act, 2012. The
said Application was allowed by the order dated
05/02/2025 after issuance of the notice and waiving the
notice by the learned A.P.P. on behalf of State. We need
not consider the copy of said F.I.R No.702/2018, since it
was in respect of the daughter of Victim speaking of some
other incident with the Victim's daughter.
20. The copy of said Judgment shows that, the report was
lodged by the Victim with the Georai Police Station for an
incident dated 13/01/2007 for the offence punishable under
Sections 452, 323, 354 and 504 read with Section 34 of
I.P.C. against Shaikh Isaq Shaikh Shaukat, Shaikh Ijaj
Shaikh Shaukat and Shaikh Chand Shaikh Shaukat. The
said Judgment shows that, neither the Victim nor her
mother went to depose before the said learned Magistrate
despite issuance of summons and warrants. The accused
persons therein were acquitted by the said Judgment. The
23 Criappeal-605-20.odt
evidence of the Victim in Paragraph No.11 of her cross-
examination shows that, she knew the said accused persons
i.e. Shaikh Isaq Shaikh Shaukat, Shaikh Ijaj Shaikh
Shaukat, who were the accused in the said case bearing
No.135/2007. She accepted that, she filed report against
them. In her evidence, she deposed that, it was out of land
dispute. The said version of the Victim that, the said report
was in respect of the land dispute, gets falsified by the said
decision dated 06/03/2012 delivered by the learned
Magistrate in R.C.C. No.135/2007. This material on record
gives a serious blow to the veracity of Victim. This
evidence and material on record makes the Victim an
unbelievable witness.
21. As discussed above, the testimony of the Victim does
not inspire confidence. The Victim's testimony suffers from
inherent improbabilities. The other evidence, does not take
the case of Prosecution any further. The panch witnesses
have not supported the case of Prosecution. The evidence
of Police Officers is in respect of investigation done by
them. The medical evidence and the CA reports are already
discussed. The medical examination report at Exhibit - 154
of Appellant - Jija Lalsing Rathod, though admitted by the
defence, wherein alleged history of rape by him on the
Victim is mentioned, is inadmissible pursuant to the
provisions of Section 26 of the Indian Evidence Act, 1872,
as during the medical examination, the Appellant - Jija
Lalsing Rathod was in the custody of Police. The Appellants
were Charged and convicted for a very serious offence. As
per the settled position under the law, graver the offence,
24 Criappeal-605-20.odt
stricter the requirement of proof. The Prosecution's
evidence do not satisfy the said parameters. The testimony
of Victim is shrouded with doubts. It is true that, for the
offence of rape, the testimony of Victim can be accepted
without corroboration, provided it should inspire the
confidence. The evidence of the Victim do not inspire
confidence and is full of doubts. The Victim cannot be
called a witness of sterling quality. In this view of the
matter, it is not possible to maintain the conviction and
sentence awarded by the learned Trial Court against the
Appellants. The Appeals succeed. Hence, the following
order :-
ORDER
[I] The Appeals are allowed.
[II] The conviction and sentence awarded by the learned
Trial Court against the Appellants for the offence
punishable under Sections 376[D], 366 read with
Section 34, 458 read with Section 34, 324 read with
Section 34, 394 and Section 506 read with Section 34
of I.P.C., is quashed and set aside.
[III] The Appellants are acquitted for the offence
punishable under Sections 376[D], 366 read with
Section 34, 458 read with Section 34, 324 read with
Section 34, 394 and Section 506 read with Section 34
of I.P.C.
[IV] The Appellant - Navnath Baburao Jadhav is on bail.
His Bail Bond stands cancelled and he is set at liberty.
[V] The Appellants - Jija Lalsing Rathod, Amol Madan
Kaste and Kundlik Bansi Rathod are behind bars.
They be released forthwith, if not required in any
other offence.
25 Criappeal-605-20.odt
[VI] The fine amount, if paid by the Appellants pursuant to
the Judgment and Order of learned Trial Court, be
refunded to them.
[VII] The Record and Proceedings be sent back to the
learned Trial Court.
[VIII] In view of the disposal of Appeals, the Criminal
Applications are also disposed of.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 24/02/2025 17:35:21
