Bombay High Court
Shaikh Jamil Shaikh Husain Bagwan vs The State Of Maharashtra And Another on 22 September, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:25673-DB
1 Judgment in Cri. Appeal 1248-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1248 OF 2019
Shaikh Tayyab Shaikh Babulal,
Age : 36 years, Occu.:
R/o.: Sunderwadi, Aurangabad,
Taluka & District : Aurangabad .... APPELLANT
(Ori. Accused No.1)
VERSUS
1. The State of Maharashtra,
Through the Officer Incharge
Chikalthana Police Station,
Aurangabad, Taluka &
District : Aurangabad
2. X.Y.Z. (Victim) .... RESPONDENTS
....
Senior Advocate Mr. Rajendra Deshmukh a/w Mr. Vishal Chavan
i/b Mr. Devang Deshmukh, Advocate for the Appellant
Mr. A. S. Shinde, APP, for Respondent No.1-State
Mrs. Kalpana S. Kulkarni (Sonpawale), Advocate for Respondent
No.2 (Appointed through Legal Aid)
...
WITH
CRIMINAL APPEAL NO.1141 OF 2019
1. Taleb Ali s/o Shaukat Ali,
Age : 23 years, Occu.: Nil
R/o.: Hinanagar, Chikalthana
Taluka & District : Aurangabad
2. Shaikh Jamil s/o Shaikh Husain Bagwan,
Age : 22 years, Occ.: Nil,
R/o.: Hinanagar, Chikalthana
Taluka & District : Aurangabad
3. Shaikh Ashpaq s/o Shaikh Husain,
2 Judgment in Cri. Appeal 1248-19
Age : 25 years, Occu.: Nil
R/o.: Hinanagar, Chikalthana
Taluka & District : Aurangabad .... APPELLANT
(Ori. Accused Nos.2 to 4)
VERSUS
1. The State of Maharashtra,
Through the Officer Incharge
Chikalthana Police Station,
Aurangabad, Taluka &
District : Aurangabad
2. X.Y.Z. .... RESPONDENTS
....
Mr. Imran G. Durani, Advocate for the Appellant
Mr. A. S. Shinde, APP for Respondent No.1-State
Mr. S. P. Salgar, Advocate for Respondent No.2 (Appointed through
Legal Aid)
....
WITH
CRIMINAL APPEAL NO.174 OF 2024
Shaikh Jamil Shaikh Husain Bagwan,
Age : 26 years, Occu.: Nil
R/o.: Heena Nagar, Chikalthana,
Taluka & District : Aurangabad .... APPELLANT
(Ori. Accused No.3)
VERSUS
1. The State of Maharashtra,
Through the Officer Incharge
Chikalthana Police Station,
Aurangabad, Taluka &
District : Aurangabad
2. X.Y.Z. (Victim) .... RESPONDENTS
....
Mr. Sudarshan J. Salunke, Advocate for the Appellants
Mr. A. S. Shinde, APP for Respondent No.1-State
....
3 Judgment in Cri. Appeal 1248-19
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 12/08/2025
PRONOUNCED ON : 22/09/2025
JUDGMENT :
( Per Sandipkumar C. More, J.)
1. The original accused in Sessions Case No.263 of 2015, have
filed all these appeals challenging their conviction recorded by the
learned Additional Sessions Judge, Aurangabad (hereinafter
referred to as 'the learned trial judge') for the offence under Section
376(D), 323, 504 & 506 read with Section 34 of the Indian Penal
Code (IPC for short) vide judgment and order dated 18/10/2019.
The learned trial judge has convicted all these appellants - accused
as follows :
i) The accused No.1 Shaikh Tayyab Shaikh Babulal, Age
: 32 years, R/o.: Sunderwadi, Tq. Dist. Aurangabad,
No.2 Taleb Ali Shaukat Ali, Age : 20 years, No.3
Shaikh Jamil Shaikh Husain Bagwan, Age : 19 years,
years, all R/o.: Hinanagar Chikalthana, Tq. Dist.
Aurangabad are hereby convicted as per section
235(2) of the Code of Criminal Procedure for the
offence punishable under section 376(D) 323, 504 &
506 of the Indian Penal Code, 1860.
4 Judgment in Cri. Appeal 1248-19
ii) The accused No.1 Shaikh Tayyab Shaikh Babulal,
No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil Shaikh
Husain Bagwan and No.4 Shaikh Ashpq Shaikh
Husain are convicted for the offence punishable under
section 376(D) of I.P.C. and sentenced to suffer
rigorous imprisonment for life each and to pay fine of
Rs.50,000/- (Rs. Fifty Thousand only) each.
iii) The accused No.1 Shaikh Tayyab Shaikh Babulal,
No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil Shaikh
Husain Bagwan and No.4 Shaikh Ashpq Shaikh
Husain are convicted for the offence punishable under
section 323 r.w. 34 of I.P.C. and sentenced to suffer
rigorous imprisonment for six months each.
iv) The accused No.1 Shaikh Tayyab Shaikh Babulal,
No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil Shaikh
Husain Bagwan and No.4 Shaikh Ashpq Shaikh
Husain are convicted for the offence punishable under
section 504 r.w. 34 of I.P.C. and sentenced to suffer
rigorous imprisonment for one year each.
v) The accused No.1 Shaikh Tayyab Shaikh Babulal,
No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil Shaikh
Husain Bagwan and No.4 Shaikh Ashpq Shaikh
Husain are convicted for the offence punishable under
section 506 r.w. 34 of I.P.C. and sentenced to suffer
rigorous imprisonment for one year each.
2. Criminal Appeal No.1248 of 2019 is filed by the original
accused No.1, whereas Criminal Appeal No.174 of 2024 is filed by
5 Judgment in Cri. Appeal 1248-19
original accused No.3. Likewise, Criminal Appeal No.1141 of 2019
is filed by original Accused Nos.2 & 4.
3. Prosecution case can be summarized as follows :
The victim (PW-1) i.e. present respondent No.2 lodged a report
on 28/08/2015 at about 2.30 a.m. to 3.00 a.m. with Chiklathana
Police Station, Aurangabad alleging that on 27/08/2015 at about
8.30 p.m. she had gone with her friend Maruti Waghmare (PW-5) in
the instant case, for roaming on Cambridge School road on
motorcycle. When they were chatting after parking their motorcycle
on the side of the road, all the appellants - accused came on one
motor bike. They passed the victim and Maruti and went ahead.
However, all of them again returned back to the victim and Maruti.
They parked their motorcycle bearing Registration No.MH-20-CD-
7980. Then all of them started assaulting her. Out of the
appellants- accused, two started beating Maruti (PW-5) and took
him aside. Rest of the two appellants dragged her to Bajra crop
and tore her clothes. When the victim protested, one of them
gagged her mouth and one of them threatened her to kill on the
point of knife. Thereafter, they forcibly removed her clothes and
committed forcible sexual intercourse with her. Somehow, the
victim escaped and came to Maruti and thereafter they went to
6 Judgment in Cri. Appeal 1248-19
Cambridge Square for help. Fortunately, they noticed a patrolling
van of police. Thereafter, when they again went to the spot in
search of the appellants - accused, but by then the appellants -
accused had fled from the spot. Then the victim and Maruti came
to MIDC CIDCO Police Station and the police authorities of that
police station after inquiry brought them to Chikalthana Police
Station, where the victim lodged the report. Accordingly,
Chikalthana police authorities registered a crime against unknown
accused persons initially for the offence punishable under Section
376(D), 323, 504, 506, 109 & 114 of IPC. After lodging the initial
report on 28/08/2015, the victim also gave supplementary
statements from time to time and contended that all the appellants
- accused had in fact committed gang rape on her and that
registration number of their motor bike was in fact MH-20-CD-
7989 and not MH-20-CD-7980.
API, Kalpana Rathod (PW-13) from Chikalthana Police Station
took over the investigation of the crime and sent the victim for
medical examination, where her samples were collected by the
medical officer Dr. Shamalee Mistry (PW-10). During the
investigation, API Kalpana Rathod arrested the appellants -
accused and held Test Identification Parade through Executive
7 Judgment in Cri. Appeal 1248-19
Magistrate- Ms. M. B. Varade. API, Kalpana Rathod then drew
necessary panchanamas including the spot panchnama and other
seizure panchanamas. The samples of the appellants - accused
were also obtained and their bike bearing Registration No. MH-20-
CD-7989 was also seized. On completion of investigation, the
appellants - accused were charge sheeted as mentioned above.
The learned trial judge conducted the trial by examining as
many as 14 witnesses and thereafter convicted all the appellants -
accused as mentioned above on the basis of evidence.
4. Learned senior counsel Mr. Rejendra Deshmukh raised so
many doubts about the evidence of prosecution and pointed out
loop holes therein. According to him, the victim (PW-1) and her
friend Maruti (PW-5) are the main witnesses in the instant crime.
He submits that both of them were not knowing the appellants /
accused prior to the incident and therefore, the report was lodged
by the victim against unknown persons. He further submits that
the victim has made improvement in her statement to implicate the
appellants - accused. According to him, the victim was not able to
see the appellants - accused as she admitted in her cross-
examination that there was no sufficient light on the spot of
incident. He contended that there was no full moon night on the
8 Judgment in Cri. Appeal 1248-19
day of incident as claimed but it was in fact after two days of the
incident. He further, pointed out that Maruti (PW-5) admitted in
his cross-examination that there was shower after the incident and
therefore, it can easily be inferred that there was cloudy condition
at the time of incident and thus, the possibility of having moon
light was very much doubtful. He further submitted that only
details of bike of the appellants - accused were given and not of
Maruti (PW-5). Initially, the registration number of bike of the
appellant - accused was wrongly stated, which was corrected
thereon and therefore, the involvement of all the appellants-
accused in the present crime, is doubtful. He further submitted
that even in spite of allegation of gang rape by four persons, no
injuries are found on her person. As such, obvious inference can
be drawn that there was no resistance on her part and therefore, it
cannot be said that forceful sexual intercourse was committed by
all the appellants - accused with her. He pointed out that spot
panchanama is also doubtful since how the police machinery was
able to give correct measurement as mentioned therein when it has
come on record that they have not carried any measurement tape.
He pointed out that all the panchanamas of seizure of clothes of
appellants - accused are stereo type. Further, on the spot of
9 Judgment in Cri. Appeal 1248-19
incident everything was within 24 fits but Maruti (PW-5) deposed
that he was 100 meters away from the victim when the alleged act
of gang rape was being committed. The investigating officer did not
seize mobiles either of the appellants - accused or the victim and
Maruti (PW-5) to establish their proximity with the spot of the
incident at the relevant time. He further submitted that the victim
has stated that motorcycle of the appellants - accused was with
milk cans but Maruti (PW-5) is silent on this aspect. Moreover, the
photographs of the said motor bike of the appellants - accused do
not show any fixtures or arrangement to attach such milk cans. He
also raised doubt about place where Test Identification Parade of
the appellants - accused was conducted. According to him, there
were open windows to the wall where the Test Identification Parade
was conducted and therefore, possibility of watching the accused
was very much there for the victim and Maruti (PW-5) prior to the
Test Identification Parade. Moreover, the medical history given by
the victim to Medical Officer Dr. Shamalee Mistriy is different from
the contents of the FIR. He further submitted that there were no
marks of dragging the victim on the spot and despite cutting the
petrol tube of bike of Maruti (PW-5), no residues of petrol were
found on the spot. He further submitted that the investigating
10 Judgment in Cri. Appeal 1248-19
officer did not bother to call sketch artist even after the victim had
given descriptions of all the appellants - accused. He accused the
investigating officer for sending the samples and clothes of the
victim as well as appellants - accused for chemical analysis and for
matching DNA profiles belatedly and thus, raised doubt that the
samples of the victim could have spread on the clothes of the
appellants -accused to connect them with the crime. Thus, the
learned senior counsel Mr. Deshmukh submits that the appellant
i.e. accused No.1, has been falsely implicated in the present crime.
He also relied on following judgments :
Kattavellai @ Devakar vs. State of Tamilnadu,
2025 LiveLaw (SC) 703;
5. Learned counsel for appellant Nos.2 & 4 also supported the
submissions made on behalf of accused No.1 and additionally
submitted that the victim has given two different statements in
respect of her clothes. He, thus, pointed out possibility of planting
of clothes. He also pointed out that Maruti (PW-5) has admitted
that after the incident there was rain and therefore, there could not
be any marks of scuffle. He pointed out that in the seizure of
clothes of accused No.2, nothing is mentioned that on the clothes
of accused No.2 long and short hair were found. He specifically
11 Judgment in Cri. Appeal 1248-19
pointed out that there was delay of 8 to 9 days in conducting Test
Identification Parade of the appellants - accused and in between
there was every possibility that the victim and Maruti (PW-5) must
have seen them. He also pointed out that the samples collected by
the investigating officer were in her custody for about three days
and no semen of accused No.2 and 4 were forwarded. Thus, he
submitted out that there is no trustworthy evidence in respect of
alleged act of the gang rape at the hands of the all the appellants -
accused.
6. Learned counsel Mr. S. J. Salunke for accused No.3 i.e.
appellant in Criminal Appeal No.174 of 2024, vehemently
submitted that the victim has improved her statements from time
to time and therefore, her evidence cannot be treated as of starling
quality. He pointed out that though the victim stated that all the
four appellants / accused committed forcible sexual intercourse
with her, but after considering evidence the learned trial judge has
come to the conclusion that only two persons committed sexual
intercourse with the victim and other two only facilitated for the
same. He pointed out that since beginning the victim is not
consistent in respect of the manner in which the incident had
taken place. He pointed out that the story of the victim is
12 Judgment in Cri. Appeal 1248-19
unbelievable since despite dragging her on the spot incident, there
were no injuries found on her person. He pointed out that opinion
of Dr. Shamalee Mistry (PW-10), who examined the victim after the
incident, has erred in giving opinion about sexual assault on the
victim since no reasons are given by her to that effect. He also
pointed out that the Test Identification Parade held to identify the
appellants - accused is doubtful and conducted against the
guidelines laid down in Criminal Manual. According to him, only
two persons at one time are to be identified but in the instant case,
the victim initially identified one accused and subsequently
identified three accused in the same Test Identification Parade. He
further pointed out that in spite of seizure of the clothes of the
appellants - accused, only 10 minutes gap is there in all the
panchanamas. Therefore, it can be inferred that the investigating
officer must have prepared all these panchanamas while sitting in
the police station only. He, thus, submitted that due to such
doubtful panchanamas, scientific evidence namely chemical
analysis and matching of DNA profile, cannot be believed. He also
expressed doubt of planting of evidence against the appellants -
accused. According to him, the learned trial judge definitely erred
in awarding life imprisonment to the appellants when minimum
13 Judgment in Cri. Appeal 1248-19
punishment for the offence is only 20 years imprisonment. In
support of his submissions, he relied on following judgments.
A) Paramjeet Singh @ Pamma vs. State of
Uttarakhand, 2011 AIR (SC) 200;
B) Suraj Mal vs. The State (Delhi Administration),
1979 Cri.L.J. 1087;
C) Rai Sandeep @ Deepu and another vs. State of
NCT of Delhi, 2012 AIR (SC) 3157;
D) Lalliram and another vs. State of M.P., 2009
Supp.AIR (SC) 902;
E) Mayur Panabhai Shah vs. State of Gujarat, AIR
1983 SC 66;
F) Mahindra vs. Sajjan Galpha Rankhamb, AIR
2017 SC 2397;
G) Lalchand Cheddilal Yadav vs. State of
Maharashtra, 2000 ALL MR (Cri) 1485;
H) State of Goa vs. Sanjay Thakran and another,
(2007) 3 SCC 755 &
I) Umesh Chandra and others vs. State of
Uttarakhand, 2021 Supreme (SC) 1190.
7. As against this, the learned APP Shri. A. S. Shinde supported
the impugned judgment and pointed out that the evidence of eye
witness, Maruti (PW-5), has supported the evidence of the victim.
Moreover, recovery during the course of investigation is also proved
by Dinkar Wagh (PW-3). Further, the procedure adopted for Test
14 Judgment in Cri. Appeal 1248-19
Identification Parade, is also proved by Narayan Bomble & Avinash
Chobe (PW-6 & 7). According to him, the DNA Report on record
supports the allegations against the appellants - accused. He
pointed out that the prosecutrix has given minute details about the
incident and immediately lodged the FIR. He further submitted
that on the very next day of lodging of the FIR, her statement under
Section 164 of Cr.P.C. and supplementary statement were recorded.
He pointed out that though there was mistake in respect of stating
the correct registration number of motor bike of the appellants -
accused by the victim, but in the statement of Maruti (PW-5)
recorded during the course of investigation, correct number of the
motorcycle of the appellants - accused, is mentioned. He pointed
out that the defence counsel though gave suggestions about having
no source of light at the time of incident, but the victim as well as
Maruti (PW-5) have straight way denied those suggestions.
Further, he contended that when the alleged act of gang rape was
committed on the point of knife, then obviously the victim must
have remained silent and without any resistance. However, he
pointed out that Bajra crop on the spot of the incident was found
destructed as mentioned in the spot panchanama. So far as
allegation of tampering of sample as levelled by the learned counsel
15 Judgment in Cri. Appeal 1248-19
for the appellants - accused is concerned, the learned APP
submitted that when the appellants- accused were not having
criminal antecedents and the victim was also not known to the
investigating officer, then there was no reason for the investigating
officer for such tampering of sample to implicate the appellants/
accused.
8. He further pointed out that all the recovery panchanamas in
respect of seizure of clothes of the appellants / accused, were
recorded one by one within the similar time gap since all the
appellants / accused were residing in the same area. Moreover,
Dinkar Wagh (PW-3) and Kalpana Rathod (PW-13) were not given
such type of suggestions in the cross-examination rendering
recoveries doubtful. He pointed out that no illegality was
conducted in holding Test Identification Parade of the appellants /
accused, which was in fact conducted after due permission from
the concerned Magistrate. The witnesses have specifically denied
the suggestions given by the defence counsel that they had already
seen photographs of the appellants / accused and that they were
aware of their names after the same were disclosed on TV and in
newspapers. He pointed out that the appellants / accused through
their defence counsel never raised any objection in respect of
16 Judgment in Cri. Appeal 1248-19
manner in which Test Identification Parade was conducted. He
pointed out that semen of accused Nos.2 & 4 was detected on the
clothes of the victim and the history given by the victim
immediately on the next day to the Medical Officer, indicates that
four persons committed rape on her. Thus, he pointed out that all
the incriminating circumstances against these appellants /
accused, are properly established by the prosecution and therefore,
no interference is required in the impugned judgment. Thus, he
prayed for dismissal of all the appeals. The learned APP relied on
following judgment.
Laxman Madhavrao Chamalwar vs. State of
Maharashtra and another in Criminal Appeal
No.274 of 2017 & Criminal appeal No.294 of
2017, delivered by this court on 19/07/2022.
9. On the other hand, the learned counsel for respondent No.2 -
victim in Criminal Appeal Nos.1141 of 2019 supported the
impugned judgment and adopted the submissions of the learned
APP. The learned counsel Mr. S. P. Salgar for the victim in Criminal
Appeal No. 1141 of 2019 has added that Maruti (PW-5) also stated
correct number and make of the vehicle i.e. motor bike on which all
the appellants - accused had come on the spot. He submitted that
minor contradictions and lapses in the procedure conducted in Test
17 Judgment in Cri. Appeal 1248-19
Identification Parade can be ignored, since those are not on
material aspect. Learned counsel Mr. S. P. Salgar relied on
following judgments.
A) Rafiq vs. State of U.P., (1980) 4 SCC 262;
B) State of Punjab vs. Gurmit Singh and others,
(1996) 2 SCC 384;
C) Wahid Khan vs. State of Madhya Pradesh,
(2010) 2 SCC 9;
D) State of Maharashtra vs. Suresh, (2000) 1 SCC
471 &
E) Mohammed Ashfaq Dawood Shakh @ Baba vs.
State of Maharashtra in Criminal Appeal
No.210 of 2015, delivered by this court at
Principal Seat, on 25/11/2021.
10. The learned counsel Ms. Kalpana Kulkarni - Sonpawale for
respondent No.2 victim in Criminal Appeal No.1248 of 2019 also
submitted that the learned trial judge has rightly convicted all the
appellants / accused. She pointed out that the victim has stated
everything about the incident by specifically mentioning that the
act of gang rape was committed by all the appellants / accused.
She further added that the evidence of the victim as well as eye
witness - Maruti (PW-5) is reliable and trustworthy and there was
no proper explanation by the appellants / accused in respect of
18 Judgment in Cri. Appeal 1248-19
their false involvement as alleged by prosecution. Thus, she prayed
for dismissal of their appeals.
11. Heard rival submissions. Also perused the entire material on
record alongwith record and proceedings of the original case.
12. The prosecution has in all examined 14 witnesses. So far as
main incident is concerned, the evidence of victim (PW-1) and
Maruti (PW-5) i.e. her boyfriend is of utmost important. Further,
there are other witnesses i.e. panch witnesses of the spot of the
incident, seizures of clothes of accused and in respect of Test
Identification Parade. The evidence of Medical Officers, who
examined the victim, Maruti (PW-5) and the accused is also there.
Apart from the aforesaid oral evidence, the prosecution has also
relied on following documentary evidence.
Sr. Name of the document Exhibit No.
No.
Cr.P.C.
Maruti Waghmare
6. Memorandum statements, discovery 56 to 63
panchanamas
7. The medical examination of accused 66 & 67
No.1 Sk. Tayyab
19 Judgment in Cri. Appeal 1248-19
8. Test identification parade panchanamas 89, 93 and 94
panchanama of bike
10. Medical certificates of PW-5 Maruti 114 & 115
Waghmare
11. Letters issued to Medical Officers 119, 120, 122, 134,
135, 136, 145, 146
& 147
13. Identification of accused persons 123 to 126
14. Medical examination of vitim 131 & 132
15. Forensic Medical Examination of accused 121
17. The correspondence made by the -
investigating officer for providing panch
witnsses and report of dog squad,
property receipts, arrest panchanamas of
accused persons, correspondence made
with J.M.F.C., Aurangabad and Forensic
Sciences Lab, letter to Tahsildar,letter to
G.M.C.H. for vaccine carrier and letters
to FSL were also exhibited by the
prosecution during the evidence of PW-
13 Kalpana Rathod.
21. Letter for registration particulars of 183 & 184
motorbike No. MH-20-CD-7989 and
insurance particulars of said vehicle
22. Registration particulars of motor bike No. -
MH-20-BS-1754
24. The reports of Chemical Analyser 181 & 191
20 Judgment in Cri. Appeal 1248-19
13. On perusal of record it appears that police had recorded
statements of the victim many times. Initially, victim had stated
commission of rape on her only by two accused but during
supplementary statement, she came with the case that all four
accused committed forcible sexual intercourse with her. On
perusal of evidence of victim (PW-1) it is evident that on
27/08/2015 at about 8.30 p.m. she alongwith Maruti (PW-5), her
boyfriend, had gone to bypass road behind Cambridge School on
his motorcycle. After parking the motorcycle there, they stayed
there for some time. At the relevant time, four persons came on
one Discover motorcycle bearing No. MH-20-CD-7989. Though
they crossed them, but returned back and came near them. Two
of them caught hold of Maruti (PW-5) and started beating him. The
remaining two started outraging her modesty and they forcibly took
her to nearby field. One was around 28 - 29 years of age having
little beard and other was 20 to 23 years old having fair complexion
and height around 5 feet. Further one of the accused also cut the
petrol pipe of their motorcycle. At the time of incident, victim was
wearing a green Patiyala dress. Those accused persons tried to
remove her clothes and also removed their pants and committed
rape on her. The accused having beard, committed rape on her
21 Judgment in Cri. Appeal 1248-19
and thereafter other accused committed rape on her when first one
had caught hold of her hands. The third accused person having
age of 20 - 22 years with fair complexion came there and
committed rape on her. Some of them also performed oral sex
with her. When all three of them committed forcible sexual
intercourse with her, fourth person having age of 28 to 29 years
and 5.5 fit height also came there and committed rape on her.
However, upon seeing the police jeep, they fled from the spot.
According to the victim (PW-5) they were speaking in Hindi
language.
14. Victim (PW-1) further stated that police jeep then came near
her and Maruti (PW-5) was accompanying with the police and his
shirt was torn. Police tried to trace the accused persons, but could
not succeed. Victim and Maruti were taken to CIDCO, Police
Station and thereafter Chikalthana Police Station where the victim
lodged report of the incident i.e. FIR Exhibit-35. The offence was
accordingly registered with Chikalthana Police Station at 2.30 to
3.00 a.m. on the next day i.e. 28/08/2025. She got medically
examined at Ghati Hospital by Dr. Shamalee Mistry (PW-10). She
was admitted in the hospital, wherein police seized her clothes,
consisting green Kurta, red Patiyala, red-green Othani, Mehandi
22 Judgment in Cri. Appeal 1248-19
coloured nicker. She also stated about recording of her statement
before concerned Judicial Magistrate First Class on 29/08/2025
under Section 164 of Cr.P.C.
15. Then she has deposed about Test Identification Parade in
Harsool Central Jail for which she was directed to remain present
on 01/09/2015. According to her, the Test Identification Parade
was conducted between 1.00 to 1.30 p.m. and at that time Maruti
(PW-5) was taken out side and thereafter she was taken to a hall
where Tahsildar Warade was present. Seven persons of a similar
age group were made to stand in a queue, and Warade Madam
asked her to identify the accused from among them . Accordingly,
she identified one of them. Thereafter, on 09/09/2015, she was
again called to Harsool Jail and during the Test Identification
Parade held at that time, she identified three persons who
committed rape on her from among the 21 persons standing in the
queue. She also admitted about her signatures on both
panchanamas dated 01/09/2015 and 09/09/2015. Her DNA
samples were also taken in Ghati Hospital. She identified accused
No.1 Shaikh Tayyab and accused No.3 Shaikh Jamil as the persons
who were holding Maruti (PW-5), assaulted her and damaged pipe
of their motor bike. She deposed that accused No.4 had committed
23 Judgment in Cri. Appeal 1248-19
rape on her by pressing her mouth and threatening her at the point
of knife. She identified accused No.2 Taleb Ali as a person, who
attempted to remove her clothes. She also identified her clothes
consisting Article-1 green torn piece of top, Article-2 Mehandi
colour nicker, Articel-3 red Salar, Articel-4 Red-green Odhani and
Article-5 green top.
16. In her cross-examination, she admitted her affair with Maruti
(PW-5) and that she had mentioned only two assailants in the FIR
and the bike number stated as MH-20-CD-7980 instead of 7989.
However, it seems that she has clarified later on the number of bike
as MH-20-CD-7989. Though she admitted that there was some
darkness and no street lights on Swangi bypass road but according
to her it was a day of full moon night. She denied the height of
Bajra crop wherein she was taken by the accused was less then her
height. She denied as that it was raining on the day of incident.
She specifically denied the suggestion that she alongwith Maruti
(PW-5) had gone to Swangi bypass road for having sex but since
people noticed them in comprising position, they went to
Cambridge Chowk.
24 Judgment in Cri. Appeal 1248-19
17. To support the version of the victim (PW-1), the prosecution
has examined her boyfriend Maruti (PW-5), who was with her at
the time of the incident. According to Maruti (PW-5) they had gone
near Cambridge School at about 8.00 to 8.30 p.m. and when they
had stopped there, four persons came on a bike and started
assaulting them. According to him, the bike of assailants was
Discover and two of them dragged the victim in Bajra crop and
other two started assaulting him. He has deposed that accused
were tearing clothes of the victim and the victim was shouting as '
okpok okpok'. One of the two accused who was assaulting him, went to
two others who dragged the victim. He also gave description of the
accused as having black face and the person who was assaulting
him was thin and fair in complexion. He was wearing a peacock
coloured shirt. He further stated that he somehow escaped from
the accused and ran towards Cambridge School. He disclosed the
incident to police and went towards victim in the police vehicle
thereafter. Victim was lying in Bajra crop who told him that two of
the accused committed rape on her and further told that after
noticing the police vehicle, all four fled from the spot. He further
stated that they were taken to MIDC CIDCO Police Station and
since the spot of incident was within the limit of Chikalthana Police
25 Judgment in Cri. Appeal 1248-19
Station, they were taken to Chikalthana Police Station. He then
showed the spot to police on 28/08/2015. His clothes were also
seized. He stated about recording of his statement on 29/08/2015
by Judicial Magistrate (First Class), Aurangabad.
18. Like victim, he has also stated about Test Identification
Parade held on 01/09/2015, wherein he identified one of the
accused persons as standing at serial No.4 in the queue. He
admitted his signature on the panchanama to that effect on
Exhibit-83. He also deposed about second Test Identification
Parade dated 09/09/2015, wherein he identified remaining three
accused persons standing at serial Nos.5, 10 & 16 in the queue. He
specifically deposed that when all the accused committed rape on
victim, she was frightened and therefore, could tell him about two
persons only. He specifically identified Accused No. 2, Taleb Ali and
Accused No. 3, Shaikh Jamil, as the persons who caught hold of
him and assaulted him. He further admitted that accused No.1
Shaikh Tayyab and and accused No.4 Sk. Ashafak being the
persons who committed rape on the victim. He identified the
clothes he was wearing at the time of the incident namely, a T-shirt
and a banian at Article -31.
26 Judgment in Cri. Appeal 1248-19
19. In the cross-examination, he stated that he was at a distance
of 100 meters from the victim when some of the accused were
assaulting him. He spoke about raising shout by him and also
admitted that he was having a mobile handset at the time of the
incident. According to him, police remained at the spot of incident
for about 20 to 25 minutes and then they were taken to MIDC
Police Station. He admitted that police from MIDC CIDCO Police
Station did not enter in Bajra crop, but only verified the spot from
the road. He then stated that there was rain after the incident and
on the next day he noticed the condition of Bajra crop. According
to him, the victim was not in condition to speak when the police
persons arrived at the spot. Further, according to him on
28/08/2015 he went to G.M.C.H. Aurangabad alongwith the victim
in one vehicle and there he was confronted with the history given
by him before Medical Officer i.e. PW-4. He specifically denied that
he had gone to Test Identification Parade alongwith the victim and
her parents. He also denied that he changed his statement before
the police and Judicial Magistrate First Class to avoid falsity.
20. Then comes the evidence of PW-3 Dinkar Wagh, who is a
panch witness. According to him, the memorandum statements of
all the accused persons, were recorded and the accused showed
27 Judgment in Cri. Appeal 1248-19
their willingness to produce their clothes and bike used in the
crime. Accused No.4 had in fact shown willingness to produce
vehicle. Accordingly, memorandum panchanama and discovery
panchnama Exhibits-56 to 62 were carried out, which are duly
proved by Dinkar Wagh (PW-3). Despite searching cross-
examination, nothing adverse to the prosecution case, has been
brought on record. Though this witness admitted that accused
were seated at the back side of the vehicle, but he remained firm on
the point that at the instance of accused persons, police persons
and panch witnesses went to their respective houses and recovery
panchanamas were prepared. Though the learned counsel for all
the accused raised suspicion that all these discovery panchanamas
are stereotype and were made successively by leaving short time
gaps in between. However, it is pertinent to note that all the
accused are resident of one and the same area and therefore, the
recovery at the instance of accused persons cannot be doubted.
This witness has specifically denied that he deposed falsely only
out of acquaintance with API Rathod and that the bike was seized
from accused No.1 in his presence. It is to be noted that Maruti
(PW-5) was having best opportunity to note the number of the bike
which according to him was MH-20-CD-7989. This witness has
28 Judgment in Cri. Appeal 1248-19
also deposed that API Rathod seized one Bajaj motorcycle bearing
No. MH-20-CD-7989 from accused No.1. As such, the evidence of
this witness in respect of memorandum and discovery panchnamas
appears reliable and trustworthy.
21. Narayan Bomble (PW-6) and Avinash Chobe (PW-7) are the
witnesses on Test Identification Parade. Both of them supported
the prosecution's case stating that Test Identification Parades of
the accused persons were held on 01/09/2015 and 09/09/2015 at
Harsul Central Jail by Executive Magistrate Warade. According to
Narayan (PW-6), victim (PW-1) and Maruti (PW-5) had identified the
accused on 01/09/2015. He has given specific details about the
manner in which the Test Identification Parade was conducted and
also admitted the panchanama to that effect. Despite searching
cross-examination, nothing adverse which could render Test
Identification Parade doubtful, is brought on record through these
two witnesses. Avinash (PW-7) has also given details of the Test
Identification Parade and stated as to how the victim and Maruti
(PW-5) identified all the three accused on 09/09/2015. Thus, it
appears that the prosecution has definitely proved the panchnamas
in respect of Test Identification Parades.
29 Judgment in Cri. Appeal 1248-19
22. The learned counsel for the appellants - accused raised
serious doubt in respect of procedure adopted for holding the Test
Identification Parade. They specifically pointed out that the Test
Identification Parade held on 09/09/2015 was in fact contrary to
the guidelines for holding Test Identification Parade as mentioned
in Criminal Manual under Chapter- I para / clause 16. They
specifically pointed out that a separate Test Identification Parade
has to be conducted for separate accused or at the most two
accused can be identified in one Test Identification Parade, but in
the instant case, three accused persons were asked to stand in the
queue at once. However, learned counsel Mr. Suresh Salgar for
respondent No.2 victim submits that considering the object of
holding Test Identification Parade the above said irregularities i.e.
identifying three persons in one Test Identification Parade, cannot
be said to be illegal or preserve. For that purpose, he heavily relied
on judgment of the Hon'ble Apex Court in the case of State of
Maharashtra vs. Suresh, (2000) 1 SCC 471, wherein it is held in
para 22 as follows:
"22. If potholes were to be ferreted out from the
proceedings of the Magistrates holding such
parades possibly no test identification parade can
escape from one or two lapses. If a scrutiny is
30 Judgment in Cri. Appeal 1248-19
made from that angle alone and the result of the
parade is treated as vitiated every test identification
parade would become unusable. We remind
ourselves that identification parades are not
primarily meant for the court. They are meant for
investigation purposes. The object of conducting a
test identification parade is twofold. First is to
enable the witness to satisfy themselves that the
prisoner whom they suspect is really the one who
was seen by them in connection with the
commission of the crime. Second is to satisfy the
investigating authorities that the suspect is the real
person whom the witnesses had seen in connection
with the said occurrence. So the officer conducting
the test identification parade should ensure that the
said object of the parade is achieved. If he permits
dilution of the modality to be followed in a parade,
he should see to it that such relaxation would not
impair the purpose for which the parade is held."
Thus, in view of the above discussion, there might be
irregularity in holding the Test Identification Parade of
09/09/2015, but it cannot be said totally perverse and illegal since
the victim as well as other eye witness Maruti (PW-5) had identified
three accused being the persons who committed forcible sexual
intercourse with the victim. As such, the submission of the
31 Judgment in Cri. Appeal 1248-19
learned counsel for the appellants in respect of Test Identification
Parade being conducted illegal has to be discarded.
23. The prosecution has further examined PW-4 Dr. Syed Aqeeb,
who had examined accused No.1 Shaikh Tayyab Shaikh Babulal on
29/08/2015. According to this witness, he collected samples of
accused No.1 and forwarded to Chikalthana Police Station. He also
issued a medical certificate as per Exhibit-67 in respect of accused
No.1. Though faced searching cross-examination, but nothing
beneficial to the accused has come on record from this witness.
This witness has also examined Maruti (PW-5) and issued injury
certificates at Exhibits-114 & 115. The injury certificate Exhibit-
114 indicates history of assault on 27/08/2015 at back side of
Cambridge School, Jalna Road. The injuries sustained by Maruti
(PW-5) in the said certificate, are in nature of abrasion and blunt
trauma. Though the colour of the injury is not mentioned by this
witness, but he has specifically stated the age of injuries within 24
hours before examination. Further, as per Exhibit-114 there was
simple injury to Maruti (PW-5) and it has also mentioned in the
history about the place of assault being at back side of Cambridge
School. Thus, nothing doubtful is found in the evidence of this
witness Dr. Syed Aqeeb (PW-4).
32 Judgment in Cri. Appeal 1248-19
24. Pratik Jain (PW-9) is the person, who had examined accused
No.4 Shaikh Ashfak. During examination, he also collected
samples of accused No.4 and samples for DNA. According to him,
he sealed these samples and sent to investigating officer Kalpana
Rathod. The form Exhibits-120 & 121 indicate that examination of
accused No.4 was conducted and samples were taken out with his
consent. He also deposed that on 02/09/2015 API Kalpana
Rathod forwarded the letter Exhibit-122 for collection of samples of
accused in DNA kits and also provided four DNA kits to him.
Accordingly, this witness filled identification form of all accused
persons and collected blood samples of all accused persons in DNA
kits and after sealing it handed over it to concerned constable.
This witness has denied that DNA kit was expired. This witness
had collected eight samples during the examination of accused
No.4 Shaikh Ashafak and noticed one planter injury to him.
25. Thereafter, the prosecution has examined Dr. Shamalee
Mistry (PW-10), who had examined the victim on 28/08/2015.
According to her, she recorded history narrated by the victim,
examined her and thereafter collected her samples. From her
evidence, it transpires that she noticed signs of penetrative sexual
assault on the victim and there was also possibility of oral
33 Judgment in Cri. Appeal 1248-19
intercourse with the victim. She examined the victim with her
consent and prepared the medical report Exhibit-132. She has
admitted that Exhibit-130 does not bear endorsement of G.M.C.
Hospital. The entry recording arrival of the victim, was also not
taken in the hospital record. She deposed that she had given
counseling to the victim and also emergency contraception. She
was unaware whether the victim had taken a bath before medical
examination. Further, according to her, signature of examining
doctor does not necessary on survivor's consent form. According to
her the victim was habituated to sexual intercourse since four
months and the last intercourse with the victim was one month
before the incident which was with Maruti (PW-5).
26 Dr. Priya Salve (PW-14) had collected the samples of the
victim for DNA purpose and according to her on 09/09/2015 she
collected those samples with the consent of the victim and also
admitted identification form to that effect at Exhibit-196. She
collected the samples and then sealed and handed over to LPC
Badge No.1242. According to her, she had conducted general
examination of the victim on 09/09/2015. Though she stated that
2ml blood was to be collected for DNA purpose but the investigating
officer did not provide the DNA kits. However, it appears that she
34 Judgment in Cri. Appeal 1248-19
had sealed the samples and same were handed over to police. She
had also verified the identity of the victim and according to her, it
was not necessary to mention the blood group in identification
form at Exhibit-196. She has specifically denied that she deposed
falsely at the instance of police. It is extremely important to note
that though this witness admitted that DNA kit was not provided to
her, but the letter Exhibit 172 clearly indicates that API Rathod had
sent the victim to GMCH Aurangabad through LPC Rukhmini
alongwith DNA kits for collection of DNA samples of the victim.
Therefore, the aforesaid admission on the part of Dr. Priya Salve
(PW-14) cannot be given any significance.
27. Prosecution has examined Dr. Somyya Siraj (PW-11), who had
examined accused No.3 Shaikh Jamil Shaikh Hussain. From her
evidence it transpires that she had received a letter for medical
examination of accused No.3 and collection of samples. API Rathod
also requested to verify the age of accused No.3. This witness
examined accused No.3 and collected his samples namely venous
blood, pubic hair, nails, scalp hair, swab from glans and swab from
urethral orifice. She sealed collected samples and forwarded the
same under her letter Exhibit-135 to the police station. According
to this witness, accused No.3 Shaikh Jamil was competent for
35 Judgment in Cri. Appeal 1248-19
committing sexual intercourse. She also issued medical certificate
to that effect as per Exhibit-136. Though she admitted that she did
not mention the age of injury of accused No.3, the colour of injury
which denotes the age of injury is mentioned. According to her,
injuries such as contusions and abrasions are possible while doing
mason work or due to a fall on a rough surface. She specifically
admitted that semen sample of accused No.3 was not collected.
The defence has not seriously disputed the medical examination of
accused no.3. The X-ray for his age verification was also taken.
28. Evidence of Dr. Farhana Khan (PW-12) is in respect of
examination of accused No.2 Taleb Ali Shaukat Ali on 31/08/2015.
According to her, two abrasions on left elbow and forearm were
found on the person of accused No.2. She also noticed some scars.
According to her, accused had taken a bath after the incident and
changed his clothes. She forwarded the samples of accused in a
sealed condition to CA. As per her opinion and certificate issued
by her as per Exhibit-147, accused No.2 Taleb Ali was competent to
perform sexual intercourse. According to her the semen sample of
accused No.2 could not be obtained for want of discharge. She
admitted that if a person takes a bath, then any incriminating
36 Judgment in Cri. Appeal 1248-19
circumstance is not possible. Thus, it appears that semen samples
of accused No.2 and accused No.3 were not collected.
29. Then comes the evidence of Kalpana Rathod, API (PW-13),
who has investigated the present crime. This witness has deposed
about her entire investigation. At the relevant time, she was
serving as API at Chikalthana Police Station and on 28/08/2015
investigation of this crime was handed over to her. According to
her, she prepared spot panchanama Exhibit-51, seized petrol tube
of bike of witness Maruti (PW-5), foot wear, one single chappal and
piece of dress of the victim. She also snapped pictures of the spot
and called dog squad and searched accused with the help of dog
squad. Admittedly, accused persons could not be traced with the
help of dog squad. She then sent the victim and Maruti (PW-5) for
medical examination, seized their clothes and prepared receipts.
During the investigation, she arrested the accused persons, seized
bike bearing registration No. MH-20-CD-7989, clothes and knife.
She also arranged Test Identification Parade, wherein the victim
and Maruti (PW-5) identified the accused on 01/09/2015 and
09/09/2015. She then sent the victim and accused for medical
examination and collected samples and forwarded the same to FSL,
Kalina. She then collected the reports after filing the charge sheet.
37 Judgment in Cri. Appeal 1248-19
She has also identified the articles, panchanamas letters shown to
her. She has specifically stated that FSL Kalina had returned the
sent up in muddemal articles except DNA samples, which might
have used for analysis.
30. In the cross-examination she has given certain admissions
such as she was handed over the investigation of offence under
Section 376(d) of IPC for the first time, except accused No.3 she did
not verify age of other accused. According to her, the victim was
having affair with Maruti (PW-5). She admitted that, at the time of
lodging the report, the victim was not wearing the clothes she had
worn at the time of the incident and also that she did not record
the statement of LPC of MIDC CIDCO Police Station, who had
provided clothes to the victim. She also admitted that the foot wear
found on the spot did not belong to any of the accused persons and
that the victim and Maruti (PW-5) were using mobile phones, but
she did not seized the same. She admitted that from 28/08/2015
to 03/09/2015 the samples of the victim were in her custody and
the mental condition of victim was not proper when she came to
lodge the report.
38 Judgment in Cri. Appeal 1248-19
31. Learned senior counsel Mr. Rajendra Deshmukh argued that
the evidence of the victim as well as her boyfriend Maruti (PW-5)
appears doubtful. He pointed out that the victim stated in her
testimony that it was dark on Swangi Bypass Road, and therefore,
the possibility of recognizing the appellants-accused was very dim.
However, it is significant to note that the victim has stated that at
the relevant time, there was full moon night and in the light of
moon, she had seen the appellants - accused. It is to be noted that
the learned senior counsel upon verifying calendar of the relevant
date, submitted that it was not actual full moon night but the full
moon night was after two days from the day of the incident. Even
considering that also the inference can safely be drawn that on the
day of incident also there was sufficient moonlight as stated by the
victim. Learned senior counsel further pointed out that Maruti
(PW-5) admitted that there was rain just after the incident and
therefore, possibility of not having moonlight on that night due to
cloudy weather cannot be ruled out. However, it is important to
note that even though it was admitted by Maruti (PW-5) that after
the incident there was rain but he has not specifically stated that
heavy clouds were there and no moonlight was available.
Therefore, it cannot be inferred that the sky was totally cloudy.
39 Judgment in Cri. Appeal 1248-19
Admittedly, the victim had stated registration number of the bike of
the appellants - accused incorrectly at initial stage. However, she
later on corrected the same by changing only last digit of the said
number. Moreover, Maruti (PW-5), who had an opportunity to see
registration number of that bike has correctly stated the same.
Therefore, mistake at initial stage in stating the number cannot be
said to be adverse to the case of the prosecution. Learned senior
counsel further pointed out that the police have admitted the fact
that they were not carrying any measurement tape at the time of
spot panchanama but still the distance in meter has been stated in
the spot panchanama itself. Thus, he stated that the spot
panchanama must have been prepared without going to the spot.
However, the spot panch Mr. Umakant Dhatinge (PW-2) supported
the story of the prosecution that the spot panchanama was drawn
at the spot of incident. The distance in meters is mentioned only at
one place in the spot panchnama; otherwise, the actual spot where
the rape was committed is described only with approximate
dimensions. Moreover, it has come in the evidence of spot panch
that Bajra crop on the spot was destructed. Therefore, in the light
of this evidence, the spot panchanama cannot be doubted.
Learned senior counsel also pointed out that the victim stated that
40 Judgment in Cri. Appeal 1248-19
there are milk cans attached to the bike of the appellants - accused
but in the photo of said bike, no such arrangement for affixing milk
cans is shown. Admittedly in the photograph of the said bike no
such arrangement can be seen but merely because of absence of
such arrangement the testimony of victim cannot be doubted since
the milk cans can be tied with the help of strings to that bike
which can be removed after untying those milk cans. Moreover,
this cannot be treated as doubtful circumstance and cannot wash
out the entire story of prosecution since it is not on the material
aspect. Therefore, the prosecution story cannot be doubted on the
basis of aforesaid discrepancies.
32. The learned counsel Mr. S. J. Salunke, as well as the learned
senior counsel Mr. Rajendra Deshmukh, vehemently argued that
the victim has been found improvising her version from time to
time since the beginning, and therefore, her testimony cannot be
relied upon. They further contended that, due to this aspect, the
prosecutrix cannot be considered a witness of sterling quality, and
as such, her entire evidence deserves to be discarded. For that
purpose, learned counsel Mr. S. J. Salunke relied on judgment of
Rai Sandeep @ Deepu and another vs. State of NCT of Delhi
41 Judgment in Cri. Appeal 1248-19
(supra), Delhi, wherein it is observed in para Nos.15 & 16 as
follows :
"15. 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 everyone of other
supporting material such as the recoveries made,
the weapons used, the manner of offence
42 Judgment in Cri. Appeal 1248-19
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 similar such tests to be
applied, it can 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 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.
16. In the anvil of the above principles, when we test
the version of PW- 4, the prosecutrix, it is
unfortunate that the said witness has failed to
pass any of the tests mentioned above. There is
total variation in her version from what was stated
43 Judgment in Cri. Appeal 1248-19
in the complaint and what was deposed before the
Court at the time of trial. There are material
variations as regards the identification of the
accused persons, as well as, the manner in which
the occurrence took place. The so-called eye
witnesses did not support the story of the
prosecution. The recoveries failed to tally with the
statements made. The FSL report did not co-relate
the version alleged and thus the prosecutrix failed
to instill the required confidence of the Court in
order to confirm the conviction imposed on the
appellants".
33. To determine the nature of evidence being of sterling quality,
the facts of each case are to be considered. Here it is a case of gang
rape and therefore, the evidence of victim needs to be considered
with utmost sensitivity. The Hon'ble Apex Court in the case of
State of Punjab vs. Gurumit Singh and others (supra) and
others, has discussed as to how the evidence of victim of gang rape,
is to be appreciated. It is observed in para No.8 & 21 of the said
judgment as follows :
"8. The grounds on which the trial court disbelieved the version
of the prosecutrix are not at all sound. The findings recorded
by the trial court rebel against realism and lose their sanctity
and credibility. The court lost sight of the fact that the
prosecutrix is a village girl. She was a student of Xth Class. It
44 Judgment in Cri. Appeal 1248-19
was wholly irrelevant and immaterial whether she was
ignorant of the difference between a Fiat, an Ambassador or a
Master car. Again, the statement of the prosecutrix at the trial
that she did not remember the colour of the car, though she
had given the colour of the car in the FIR was of no material
effect on the reliability of her testimony. No fault could also be
found with the prosecution version on the ground that the
prosecutrix had not raised an alarm while being abducted.
The prosecutrix in her statement categorically asserted that as
soon as she was pushed inside the car she was threatened by
the accused to keep quiet and not to raise any alarm
otherwise she would be killed. Under these circumstances to
discredit the prosecutrix for not raising an alarm while the
car was passing through the Bus Adda is travesty of justice.
The court over-looked the situation in which a poor helpless
minor girl had found herself in the company of three
desperate young men who were threatening her and
preventing her from raising any alram. Again, if the
investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the
driver or the car, how can that become a ground to discredit
the testimony of the prosecutrix? The prosecutrix had no
control over the investigating agency and the negligence of an
investigating officer could not affect the credibility of the
statement of the prosecutrix. Trial Court fell in error for
discrediting the testimony of the prosecutrix on that account.
In our opinion, there was no delay in the lodging of the FIR
either and if at all there was some delay, the same has not
only been properly explained by the prosecution but in the
facts and circumstances of the case was also natural. The
45 Judgment in Cri. Appeal 1248-19
courts cannot over-look the fact that in sexual offences delay
in the 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. The
prosecution has explained that as soon as Trilok Singh PW6,
father of the prosecutrix came to know from his wife, PW7
about the incident he went to the village sarpanch and
complained to him. The sarpanch of the village also got in
touch with the sarpanch of village Pakhowal, where in the
tube well kotha of Ranjit Singh rape was committed, and an
effort was made by the panchayats of the two villages to sit
together and settle the matter. It was only when the
Panchayats failed to provide any relief or render any justice
to the prosecutrix, that she and her family decided to report
the matter to the police and before doing that naturally the
father and mother of the prosecutrix discussed whether or not
to lodge a report with the police in view of the repercussions it
might have o n the reputation and future prospects of the
marriage etc. of their daughter. Trilok Singh PW6 truthfully
admitted that he entered into consultation with his wife as to
whether to lodge a report or not and the trial court appears to
have misunderstood the reasons and justification for the
consultation between Trilok Singh and his wife when it found
that the said circumstance had rendered the version of the
prosecutrix doubtful. Her statement about the manner in
which she was abducted and again left near the school in the
early hours of next morning has a ring of truth. It appears
46 Judgment in Cri. Appeal 1248-19
that the trial court searched for contradictions and variations
in the statement of the prosecutrix microscopically, so as to
disbelieve her version. The observations of the trial court that
the story of the prosecutrix that she was left near the
examination center next morning at about 6 a.m. was "not
believable" as `the accused would be the last persons to
extend sympathy to the prosecutrix" are not at all intelligible.
The accused were not showing "any sympathy" to the
prosecutrix while driving her at 6.00 a.m. next morning to the
place from where she had been addicted but on the other hand
were removing her from the kotha of Ranjit Singh and leaving
her near the examination center so as to avoid being detected.
The criticism by the trial court of the evidence of the
prosecutrix as to why she did not complain to the lady
teachers or to other girl students when she appeared for the
examination at the center and waited till she went home and
narrated the occurrence to her mother is unjustified. The
conduct of the prosecutrix in this regard appears to us to be
most natural. The trial court over-looked that a 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. Her not informing the
teachers or her friends at the examination center under the
circumstances cannot detract from her reliability. In the
normal course of human conduct, this 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 her teachers and others
47 Judgment in Cri. Appeal 1248-19
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.
Therefore her informing to her mother only on return to the
parental house and no one else at the examination center
prior thereto is an accord with the natural human conduct of
a female. The courts must, while evaluating evidence, remain
alive to the fact that in a case of rape, no self-respecting
woman would come forward in a court just to make a
humiliating statement against her honour such as is involved
in the commission of rape on her. In cases involving sexual
molestation, supposed considerations which have no material
effect on the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix should not,
unless the discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution case.
The inherent bashfulness of the females and the tendency to
conceal outrage of sexual aggression are factors which the
Courts should not over-look. The testimony of the victim in
such cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her statement,
the courts should find no difficulty to act on the testimony of a
victim of sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be reliable.
Seeking corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl of a woman who
complains of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The Court while appreciating
the evidence of a prosecutrix may look for some assurance of
48 Judgment in Cri. Appeal 1248-19
her statement to satisfy its judicial conscience, since she is a
witness who is interested in the outcome of the charge levelled
by her, but there is no requirement of law to insist upon
corroboration of her statement to base conviction of an
accused. The evidence of a victim of sexual assault stands
almost at par with the evidence of an injured witness and to
an extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not found to
be self inflicted, is considered to be a good witness in the
sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component of
judicial credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be over-
looked that a woman or a girl subjected to sexual assault is
not an accomplice to the crime but is a victim of another
persons's lust and it is improper and undesirable to test her
evidence with a certain amount of suspicion, treating her as if
she were an accomplice. 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. Courts cannot cling to a
fossil formula and insist upon corroboration even if, taken as
a whole, the case spoken of by the victim of sex crime strikes
the judicial mind as probable. In State of Maharashtra Vs.
Chandraprakash Kewalchand Jain, J. (1990 (1) SCC 550)
49 Judgment in Cri. Appeal 1248-19
Ahmadi, J. (as the Lord Chief Justice then was) speaking for
the Bench summarised the position in the following words:
"A prosecutrix of a sex offence cannot be put on par
with an accomplice. She is in fact a victim of the crime.The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars. She
is undoubtedly a competent witness under Section 118 and her
evidence must receive the same weight as is attached to an
injured in cases of physical violence. The same degree of care
and caution must attach in the evaluation of her evidence as
in the case of an injured complainant or witness and no more.
What is necessary is that the court must be alive to and
conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of the charge levelled
by her. If the court keeps this in mind and feels satisfied that it
can act on the evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act similar to
illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the court is hesitant to place
implicit reliance on the testimony of the prosecurtix it may
look for evidence which may lend assurance to her testimony
short of corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to the
testimony of the prosecutrix must necessarily depend on the
facts and circumstances of each case. But if a prosecutrix is
an adult and of full understanding the court is entitled to base
a conviction of her evidence unless the same is shown to be
infirm and not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely involve
50 Judgment in Cri. Appeal 1248-19
the person charged, the court should ordinarily have no
hesitation in accepting her evidence."
21. Of late, crime against women in general and rape in
particular is on the increase. It is an irony that while we are
celebrating women's rights in all spheres, we show little or no
concern for her honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of human
dignity of the victims of sex crimes. We must remember that a
rapist not only violates the victim's privacy and personal
integrity, but inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely a physical
assault - it is often destructive of the whole personality of the
victim. A murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The
Courts, therefore, shoulder a great responsibility while trying
an accused on charges of rape. They must deal with such
cases with utmost sensitivity. The Courts should examine the
broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the statement
of the prosecutrix, which are not of a fatal nature, to throw out
an otherwise reliable prosecution case. If evidence of the
prosecutrix inspirers confidence, it must be relied upon
without seeking corroboration of her statement in material
particulars. If for some reason the Court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be alive
51 Judgment in Cri. Appeal 1248-19
to its responsibility and be sensitive while dealing with cases
involving sexual molestations."
34. Though it appears that the investigating officer has recorded
statements of the victim repeatedly and that though the victim
initially stated that rape was committed by two persons, but
thereafter, stated that all the four appellants - accused committed
rape on her. Further, she has also given description of the
appellants - accused and in the manner in which they assaulted
her and raped her. It is also to be borne in mind that after such
incident of gang rape, she must have gone into shocked state and
therefore, it is quite possible for her to take some time to recollect
the entire incident and for that purpose she must have taken time
to state before the police machinery about involvement of all the
appellants - accused in the crime. Therefore such improvisation on
the part of the victim cannot be said as unreliable or not of sterling
quality. As such, we discard the submissions of learned counsel
Mr. Salunke to that effect.
35. On going through the evidence of the victim (PW-1) and eye
witness Maruti (PW-5) it appears that the victim has specifically
stated that the appellants had torn her top and the piece of the top
was recovered from the spot when the spot panchanamam was
52 Judgment in Cri. Appeal 1248-19
carried out. Umakant Dhatinge (PW-2) i.e. the panch witness of
the spot panchanamma, has already stated bout the seizure of
such piece of cloth. It is extremely important to note that as per
the Chemical Analyser Report (Exhibit-181) the piece of top of the
victim and the piece of cloth seized from the spot of incident, were
found same. Therefore, it is clearly established that the appellants
- accused had torn the clothes of victim. Moreover, she has
minutely described the manner in which all the appellants -
accused committed rape on her. We have already mentioned the
said fact earlier while discussing the evidence of victim, wherein
she deposed as to how the incident took place. Moreover, the
victim as well as Maruti (PW-5) have identified all the appellants -
accused in Harsool Jail, wherein Test Identification Parades of the
appellants - accused were conducted. Their evidence in respect of
identification of the accused is also supported by PW-6 & 7, who
were the panch witnesses to those Test Identification Parades. We
have already discarded the objection of the learned counsel for the
appellants in respect of conducting those Test Identification
Parades contrary to the Criminal Manual. Therefore, the evidence
of the victim, PW-5, PW-6, PW-7 and PW-13 has clearly established
53 Judgment in Cri. Appeal 1248-19
the identification of the appellants - accused persons in the
aforesaid Test Identification Parades.
36. Learned counsel for the appellants - accused strenuously
argued that despite such forceful sexual intercourse with the victim
by the appellants - accused, not a single injury was found either on
the private part of the victim or rest parts of her body. Learned
counsel Mr. S. J. Salunke heavily relied on the judgment of the
Hon'ble Apex Court in the case of Lalliram and another vs. State
of M. P. (supra), wherein it is observed that it is true that injury is
not a sine qua non for deciding whether rape has been committed,
but it has to be decided on factual matrix of each case. Thus,
relying on this observation, the learned counsel Mr. Salunke
submitted that the victim must have resisted for the criminal act of
accused and while dragging her, certain injuries must have
sustained to her, but in the absence of such injuries, the
prosecution's case has certainly become doubtful and raised
suspicion. However, considering the fact of this case it is extremely
important to note that all the appellants - accused committed rape
on the victim at the point of knife. The said knife is also recovered
at the instance of one of the appellants and therefore, it is quite
possible that due to fear of life, the victim must have remained
54 Judgment in Cri. Appeal 1248-19
silent. Moreover, the appellants - accused must have overpowered
her and therefore, there was no resistance. Under such
circumstance absence of injury on the person of the victim cannot
be treated as doubtful circumstance since Dr. Shamalee Mistry
(PW-10) has clearly stated that the victim had given history of
sexual assault by four persons coupled with allegations of oral sex
also. Dr. Shamalee Mistry (PW-10) has also opined that there was
forceful intercourse with the victim. Even though there was an old
tear to her hymen, which could be possible due to her physical
relations with Maruti (PW-5) earlier to the incident, but it does not
lead to the inference that no rape was committed on her. Besides,
the scientific evidence also supports the case of the prosecution.
37. The evidence of witnesses from medical profession namely
PW-4, 9, 10, 11, 12 and 14, who had examined the victim and the
appellants - accused persons and collected their respective
samples, reveals that the same were separately collected and duly
sealed. Further the identification forms in respect of all the
appellants - accused are duly proved by PW-9, whereas PW-14 has
proved the identification form of the victim at Exhibit-196. All the
samples of the appellants-accused and the victim were sealed
while being forwarded to the police, from where they were sent for
55 Judgment in Cri. Appeal 1248-19
chemical analysis and DNA profiling. Though the semen samples
of accused Nos.2 & 3 were not collected by PW-2 & 3 but blood
samples of all the accused and the victim were sent for DNA
profiling after duly collected by PW-9 and PW-14. The report
Exhibit-191 issued by FSL, Kalina Mumbai is also important one.
In fact clothes of the victim consisting nicker and Salwar at
Articles-2 & 3 alongwith her samples namely oral swab, vavinal
awab, nail clipping and swab, pubic hair and DNA samples of the
appellants - accused were sent to examination to FSL, Kalina,
Mumbai. The report Exhibit-191 indicates that hair found on
nicker of the victim was of accused No.4 Shaikh Ashpak Hussain.
Hair found on underwear of Shaikh Tayyab and accused No.2
Shaikh Taleb Ali, accused No.3 Shaikh Jamil and the hair of the
victim, were found identical and from the same female origin. The
report further indicates that semen detected on nicker and Salwar
of the victim and the blood sample of accused No.4 Shaikh Ashpak
and accused No.2 Taleb Ali were from same paternal progeny. It is
to be noted that the victim has stated that all the appellants -
accused committed rape on her but samples of accused Nos.1 & 3
were not traced on her clothes. However, the hair found on
underwear of accused Nos.1 & 3 found identical with the hair of
56 Judgment in Cri. Appeal 1248-19
the victim. Therefore, the DNA report Exhibit-191 has definitely
proved the proximity of accused No.1 and 3 with the prosecutrix at
the time of the incident. It is to be noted that the learned Trial
Judge opined that only Accused Nos. 2 and 4 committed rape on
the victim, while Accused Nos. 1 and 3 were treated merely as
facilitators. However, when the prosecutrix has stated that all four
accused committed rape on her, then in the light of observation of
the Hon'ble Apex Court in the case of State of Panjab vs. Gurumit
Singh and others (supra) the testimony of the prosecutrix needs to
be believed being reliable and trustworthy. Other minor
discrepancies in her evidence has to be kept aside. Therefore,
merely because samples of accused Nos.1 & 3 did not match with
the samples of the victim, it cannot be finally concluded that they
did not commit rape on her. The testimony of the victim definitely
inspires confidence and therefore, it can safely be inferred that all
the appellants- accused must have committed gang rape on the
victim.
38. Further, the evidence of the victim and Maruti (PW-5) clearly
indicates that two accused persons had first caught hold of Maruti
(PW-5) and remaining two dragged the victim in Bajra crop and
committed rape on her. Further, it is also evident that Maruti (PW-
57 Judgment in Cri. Appeal 1248-19
5) was beaten initially by the appellants - accused persons, who
had caught hold him and thereafter they both committed rape on
the victim. The medical certificate Exhibit-115 issued by PW-4 has
indicted that Maruti (PW-5) had sustained contusions and abrasion
and trauma to his stomach. According to Syed Aqeeb (PW-4) those
injuries were caused within 24 hours of his examination. As such,
it is established that Maruti (PW-5) was beaten by those appellants
- accused in furtherance of their common intention. The knife
used for threatening the victim at the time of incident, is also
recovered at the instance of accused No.2 Taleb Ali. Moreover, the
victim herself has given description of all the appellants - accused
to police and also subsequently identified them in Test
Identification parades. The ocular evidence in the instance case is
well supported by medical as well as scientific evidence.
39. Thus, considering all these aspects, the prosecution has
definitely established the presence of all the appellants - accused
on the spot. It is also established that the appellants - accused
threatened the victim and Maruti (PW-5) by assaulting them and
thereafter by dragging the victim in Bajra crop committed gang
rape on her. The conduct of all the appellants - accused definitely
indicates that they shared common intention to commit the offence.
58 Judgment in Cri. Appeal 1248-19
Thus, the prosecution has clearly established the guilt of all the
appellants - accused beyond all reasonable doubts. The learned
trial judge by rightly appreciating the entire evidence on record has
convicted the appellants - accused as mentioned above. On
independent scrutiny of the entire evidence and material on record,
we are also of the same opinion. In view of the same, there is no
reasons to interfere with the impugned judgment and order. In the
result, all the appeals stand dismissed.
40. The fees of both learned counsel appointed through Legal Aid
to represent the victim shall be quantified as per the rules and paid
to them as expeditiously as possible.
(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)
VS Maind/-
