[Cites 39, Cited by 0]
Bombay High Court
Wasim Samand Shaikh vs The State Of Maharashtra And Anr on 5 May, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-AS:21298-DB CR. APEAL 229 OF 2017 COMMON, J.ODT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 191 OF 2018
WITH
INTERIM APPLICATION NO. 1539 OF 2024
WITH
INTERIM APPLICATION NO. 3078 OF 2024
WITH
INTERIM APPLICATION NO. 1147 OF 2023
IN
CRIMINAL APPEAL NO. 191 OF 2018
Ajay Mahavir Gechand ...Appellant/
Applicant
Versus
The State of Maharashtra ... Respondent
CRIMINAL APPEAL NO. 1260 OF 2022
WITH
INTERIM APPLICATION NO. 3475 OF 2024
WITH
INTERIM APPLICATION NO. 428 OF 2023
IN
CRIMINAL APPEAL NO. 1260 OF 2022
Wahid Kayyum Khan @ Kalu ... Appellant/
Applicant
Versus
The State Of Maharashtra ...Respondents
WITH
CRIMINAL APPEAL NO. 229 OF 2017
Mahesh Ramchandra Maragaj ... Appellant
Versus
The State Of Maharashtra ...Respondent
Digitally
signed by WITH
RAJESHRI
RAJESHRI PRAKASH
PRAKASH AHER CRIMINAL APPEAL NO. 254 OF 2017
AHER Date:
2026.05.05 WITH
18:48:18
+0530 INTERIM APPLICATION NO. 1918 OF 2021
IN
Page 1 of 73
::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:43:12 :::
CR. APEAL 229 OF 2017 COMMON, J.ODT
CRIMINAL APPEAL NO. 254 OF 2017
Dastagir Abdul Khan ...Appellant/
Applicant
Versus
The State Of Maharashtra And Anr. ...Respondents
WITH
CRIMINAL APPEAL NO. 305 OF 2017
WITH
INTERIM APPLICATION NO. 3247 OF 2024
WITH
INTERIM APPLICATION NO. 2154 OF 2024
IN
CRIMINAL APPEAL NO. 254 OF 2017
Vishal Ashwini Sood ...Appellant/
Applicant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 1082 OF 2017
WITH
INTERIM APPLICATION NO. 1254 OF 2025
IN
CRIMINAL APPEAL NO. 1082 OF 2017
Wasim Samand Shaikh ...Appellant/
Applicant
Versus
The State Of Maharashtra And Anr. ...Respondent
WITH
CRIMINAL APPEAL NO. 1187 OF 2018
Manpritsingh Kashmirsing Gill ... Appellant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 1075 OF 2022
WITH
INTERIM APPLICATION NO. 3381 OF 2022
Page 2 of 73
Rajeshri Aher
::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:43:12 :::
CR. APEAL 229 OF 2017 COMMON, J.ODT
WITH
INTERIM APPLICATION NO.1742 OF 2023
WITH
INTERIM APPLICATION NO. 1772 OF 2024
IN
CRIMINAL APPEAL NO. 1075 OF 2022
Dhiraj @ Dhiru Prakash Panchal ...Appellant/
Applicant
Versus
The State Of Maharashtra And Anr. ...Respondents
WITH
CRIMINAL APPEAL NO. 229 OF 2018
WITH
INTERIM APPLICATION NO. 2800 OF 2025
WITH
INTERIM APPLICATION NO. 38 OF 2023
IN
CRIMINAL APPEAL NO. 229 OF 2018
Bhuvan Lalbahadur Hamal ... Appellant/
Applicant
Versus
1. The State of Maharashtra
Through Public Prosecutor Sessions
Court, Mumbai.
2. Victim X
(Name, Age, Identity of victim
concealed to protect identity) ...Respondents
Through Senior Police Inspector,
Mulund Police Station, Mumbai.
...
Mr. Vinod Kashid a/w Mr. Abdul Shaikh, for Appellant in Cri.
Appeal/191/2018.
Mr. Veerdhawal Deshmukh, appointed Advocate, for the
Appellant in Cri. Appeal/1260/2022.
Ms. Anima Mishra a/w Mr. Anuj Singh, Mr. Vinod Patil, i/by
Dhaara Legal, for Appellant in Cri. Appeal/305/2017.
Page 3 of 73
Rajeshri Aher
::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:43:12 :::
CR. APEAL 229 OF 2017 COMMON, J.ODT
Ms. Ilsa Shaikh a/w Mr. Husen Shaikh i/by Mr. Shantanu
Phanse, for the Appellant in Cri. Appeal /1082/2017.
Mr. Rajesh Bhosle, appointed Advocate, for the Appellant in
Cri. Appeal/1075/2022.
Mr. Abbas Z. Mookhtiar a/w Mr. Bhushan Ove, for the
Appellant in Cri. Appeal/229/2018.
Ms. Anjali Patil a/w Mr. Tohid Shaikh and Mr. Onkar Gurav,
for the Appellant in Cri. Appeal/229/2017.
Mr. Kartik Garg, Appointed Advocate a/w Aashka Shell, for
the Appellants in Cri. Appeal/1187/2018 and Cri.
Appeal/254/ 2017.
Mr. Tanveer Khan, APP for the Respondent-State.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 4th FEBRUARY, 2026.
PRONOUNCED ON : 5th APRIL, 2026.
ORDER/JUDGMENT (PER MANJUSHA DESHPANDE, J.) :-
1. All these appeals are arising out of common judgment
of conviction passed by the Additional Sessions Judge,
Greater Bombay in Sessions Case No. 78 of 2014 (old 537 of
2014), recorded vide judgment dated 22nd February, 2017
convicting Accused Nos. 1, 2, 4, 5, 6, 7 and 8 under Section
235(1) of Cr.P.C., for offence punishable under Section
376(D) read with 120(B) of the IPC, and sentenced to suffer
rigorous imprisonment for 20 years with fine of Rs.25,000/-
each, in default to suffer rigorous imprision of one year each.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Accused Nos. 3 and 9 are convicted under Section 235(1) of
Cr.P.C. for offence under Section 376(D) read with 120(B) of
IPC and sentenced to suffer rigorous imprisonment for life,
which shall mean the imprisonment of remainder of their
lives, and to pay a fine of Rs.25,000/-, each, in default to
suffer rigirous imprisonment for one year each. Accused Nos.
1 to 9 have been convicted under Sections 235(1) of the
Cr.P.C. for the offence punishable under Section 366 and 377
read with 120(B) of the Indian Penal Code (IPC), sentencing
them to undergo rigorous imprisonment for 10 years for each
offence, and also to pay fine of Rs. 20,000/- each, and in
default of payment of fine to undergo further rigorous
imprisonment for one year; with conviction for the offence,
punishable under Section 354 read with 120 B of the IPC,
sentencing them with rigorous imprisonment of five years,
each and a fine of Rs.5000/- each and in default of fine, to
further undergo rigorous imprisonment, for three months.
All the accused are also convicted under Section 235(1) of
Cr.P.C. for the offence punishable under Sections 341, 342,
read with 120(B) of the IPC, and are sentenced to undergo
rigorous imprisonment of one year and fine of Rs.500/- each,
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
and in default of payment of fine, to undergo rigorous
imprisonment for one month each. Conviction is also
recorded under Section 235(1) of Cr.P.C. for offence
punishable under Section 323, read with 120(B) of the IPC
with rigorous imprisonment for one year and fine of Rs.1000
each and in default of payment of fine, to undergo rigorous
imprisonment for further one month each. All the accused
are convicted under Section 235(1) of Cr.P.C. for the offence
punishable under Section 506(II) read with 120(B) of the
IPC and sentenced them to undergo rigorous imprisonment
for five years each and also to pay fine of Rs.1,000/- each, in
default of payment of fine, to undergo rigorous imprisonment
for further six months each.
Accused nos. 1, 2 and 4 to 8 are further convicted as
per section 235(1) of Cr.P.C. for the offence punishable,
under Section 120-B of Indian Penal Code and sentenced to
suffer Rigorous Imprisonment for twenty years each.
Accused Nos. 3 & 9 are further convicted as per section
235(1) of Cr.P.C. for the offence punishable under Section
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
120-B of Indian Penal Code and sentenced to suffer Rigorous
Imprisonment for life each.
All the accused are held to be entitled for set off under
Section 428 of the Code of Criminal Procedure (Cr.P.C.) for
the period already undergone in jail except Accused No.3 and
Accused No.9 punishment under section 376D as it implies
that life imprisonment shall mean imprisonment for
remainder of their life.
In view of the conviction recorded against them all the
accused have approached this court by preferring
independent Appeals, which are heard and decided
analogously.
2. The conviction recorded against the appellants is
arising out of alleged offence of Gang rape, on the prosecutrix
aged 38 years on the night of 20th September, 2013. The
prosecutrix lodged report at the Mulund Police Station
informing that she was originally resident of a village Nandi,
Tahsil Loha, District Nanded. Her husband had expired long
ago, she was having two sons and one daughter. Since last
few years, she was visiting Mumbai to earn her livelihood, by
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
collecting scrap. Intermittently, she used to visit her native
place after purchasing some clothes etc., for her children.
Recently she had stopped visiting Mumbai as she was
receiving sufficient income from the work at her native place.
However, on account of being annoyed with the behaviour of
her elder son, who was under continuous influence of liquor
and was constantly demanding more money from her, she
left her house due to his abuses and came to Mumbai.
3. When she came to Mumbai, she came to know that her
friend Rajshree, with whom she used to reside while in
Mumbai, had got married, therefore, she started staying in a
tempo in front of Hill residency at Amar Nagar Dargah Road,
Mulund. During the day, she used to collect scrap and after
selling it, she used to buy her dinner and have it at the house
of one Sumanbai and then came back to the tempo for
spending her night. She used to spend her night in the tempo,
which was parked in the street.
4. On 20th September, 2013, as usual, after completing her
entire work, she went to tempo at about 9 PM for sleeping. At
about 03:00 a.m. in the morning, due to the noise of the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
approaching milk van, she woke up. After sometime she
noticed that 5 to 6 boys were peeping inside the tempo. Out of
those boys, she knew the name of one Vishal. She enquired
the reason for their peeping inside the tempo, she scolded
them and ordered them to leave immediately, but accused
Vishal entered the tempo, and called upon the co-accused
Ajay by uttering the words, 'Ae Ajay tiche pay pakad aani
baher khech'. Thereafter, Vishal and Ajay dragged her out of
the tempo, and Vishal told Wasim 'tu age chal' and then took
her at a distance of 25 to 40 feet from the tempo, beside one
Om Sai Chinese hotel. Accused Vishal removed her sari and
petticoat and threw it away. He thereafter told Ajay to
remove her blouse, Ajay removed her blouse. Accused Vishal
was the first to commit sexual assault on her, during which 5
to 6 boys were standing around her. All of them one after the
other committed forcible sexual assault on her. After that,
Vishal made phone calls to some other boys. During
commission of offence, they were calling each other by names
as Ajay, Vishal, Kalu, Wasim, Dastagir. All these boys
committed rape on her near Om Sai Chinese hotel, but she
did not remember the names of remaining boys. She further
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
stated that Vishal told Kalu to take her in Jungle. After
which, she was made to wear her blouse and saree, her
petticoat remained on the roof of Om Sai Chinese Centre. Out
of these boys, two of them took her near the building behind
Chinese hotel and forcibly made her sit on one bike and took
her to Rahul Nagar jungle.
5. At the Rahul Nagar jungle, two more boys joined them.
In the Jungle, all of them, one by one, had sexual intercourse
with her. During this forceful sexual intercourse, her 'Kali
poat' and ' bead poat' (string of beads), were broken and it
was thrown on the spot in the forest area. While committing
the act of forcible sexual intercourse, they were calling each
other's names as, 'Kalu', Wasim, Dastagir, Viru, etc. Kalu
repeatedly inserted a stick in her vagina and took it out, as a
result, she started bleeding profusely from her vagina, which
stained her saree, and because of the act, she felt dizzy and
became unconscious. When she regained consciousness it
was dawn and all the accused had already fled away from the
spot. She was having persistent pain in her abdomen, but she
somehow managed to reach the police station by asking
directions from the people present on the road. She reported
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
the incident to the police and gave description of the accused,
Vishal, Ajay, Kalu, and Dastagir. She stated that, she can
identify those 8 to 9 persons if shown to her, and also
volunteered to show the spot of incident. Based on the
aforesaid allegations, First Information Report (FIR) came to
be registered in the Mulund Police Station vide Crime No.
426 of 2013.
6. The offence was investigated by two police officers, P.W.
46, Senior Police Inspector R. R. Sawant and P.W. 47 Mustaq
Liyabhai Shaikh, P.W. 43 Prakash Mansukh. After visiting
the spot of incident, the saree, petticoat, blouse, 'Bead poat',
'kali poat' and one stick were seized from the spot in
presence of Panch witness. The prosecutrix was referred for
medical examination; her statement under Section 164 of the
Cr.P.C. was duly recorded; the TI Parade was conducted and
the CDRs of the mobile phones of some of the accused were
collected. The motorbike used during the offence was seized.
After collecting evidence against the accused, charge-sheet
was filed in the Court. After framing of charge, the accused
pleaded not guilty and claimed to be tried, their defence was
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
of total denial, they claimed that they have been falsely
implicated in the offence.
7. The following charge is framed against the respective
accused:
Accused Nos. 1 to 8 have been charged with offences
under Sections 323, 354, 366, 376, 376 D, 377, 375B, read
with 120 B of IPC, 341, 342, 323 read with 120 B of the IPC.
All of the accused have been charged under section 376,
whereas Accused Nos. 2, 3, 4, 5, 6, 7, 8 and 9 have been
charged under Section 377 of the IPC. All the accused
pleaded not guilty and claimed to be tried. After the trial, the
learned Additional Sessions Judge, Greater Bombay, has
convicted all the accused vide its judgment and order dated
22nd February, 2017.
8. During the trial, the prosecution has examined 47
witnesses and various documents were placed on record to
establish the guilt of the accused, including the statement of
the prosecutrix recorded under Section 164 of the CRPC at
Exhibit 47 recorded on 23 September 2013.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Ajay Ghechand, is the accused 1, and appellant in
appeal no 191 of 2018, Mr. Vinod Kashid, advocate, appearing
for him submitted that, there is no evidence about
involvement of accused Ajay Ghechand in the offence, he has
been falsely implicated in the offence. His name does not
appear in the FIR, his description given by the prosecutrix
also does not match. There is no specific role attributed to
him. He further submits that the incident has allegedly taken
place at about 3 AM in the morning when, it was pitch dark,
therefore identification of the accused by the prosecutrix is
not reliable. It is submitted that if the prosecutrix was
knowing the accused prior to the incident, there was no
necessity of conducting TI parade.
9. The learned Advocate has drawn our attention to the
cross examination of the prosecutrix, where she admits that
she had never met, A-1 and A-8 before the incident. She also
admits that, she did not know names of the accused prior to
the incident. Except the statement of the prosecutrix which
is full of omissions, and contradictions there is no other
corroborating evidence, against the accused no.1. It is
submitted that the conviction is based solely on the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
statement of prosecutrix, who was in the habit of lodging
false complaints. The prosecutrix had lodged a similar
complaint of rape against one, Kushal Patil and Suresh
Mukadam at Wadhwane Police Station, a copy of the
complaint is part of record at Exhibit 355, and this aspect
has not been appropriately appreciated by the learned
Additional Session Judge, Greater Bombay. Even the medical
evidence is not consistent with the statement of the
prosecutrix. Most importantly, the blood sample of accused
no.1 did not match with the hymenal and blood swab of the
prosecutrix. The stains of blood mixed with semen on the
saree and petticoat of the prosecutrix, did not match with the
blood sample of accused no.1. It is thus submitted that in
absence of cogent and reliable evidence, the appellant has
been wrongly convicted for the offences.
10. Ms. Anjali Patil representing accused no 2 namely
Mahesh Ramchandra Margaje in appeal number 229 of 2017,
submitted that, name of the appellant neither appears in the
FIR nor in the statement of the prosecutrix recorded under
Section 164 of the Cr.PC. She submits that heavy reliance is
placed on the Test Identification Parade (TI Parade) at
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Exhibit 193, by the prosecution to establish the identity of
the Accused No.2. However, the TI Parade itself is unreliable,
since it was conducted by PW 20 Naib Tahsildar, who had no
authority to conduct such parade. P.W. 20 has not produced
any order of delegation authorising him to conduct the TI
Parade. The dummies used in the T.I. Parade were of different
ages and appearance, who did not match the appearance of
accused. Some of the dummies were even repeated in the
other set of TI Parade, conducted for the co-accused. The TI
Parade looses its credibility since the prosecutrix had
already seen the accused in the police station on 21 st, 22nd
and 23rd September 2013, while the accused were in the
police custody. Thus, the TI Parade gets vitiated and
becomes unreliable piece of evidence, which does not inspire
confidence.
11. Ms. Anjali Patil further submits that, the medical as
well as the forensic evidence, does not support the case of
prosecution. The DNA report Exhibit 126 records that, the
DNA profile of A-2 does not match with the DNA of the
prosecutrix. The Chemical Analysis Report (C.A. Report) also
does not reveal any incriminating biological material,
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
connecting the appellant with the alleged offence. The
medical examination of A-2 did not reveal any injuries on
his body, which is not consistent with the allegations of
violent sexual assault made against him.
Relying on the testimony of PW 10 Dr. Ahire, PW 11
Dr. Phad, and PW 13 Dr. Bhise, it is submitted that the
medical examination by all these Doctors did not find any
bite marks, assault, or injuries, suggesting of insertion of
foreign object as alleged by the prosecutrix. Thus, there is no
corroborative medical and scientific evidence, supporting the
allegations against Accused No.2.
12. It is further submitted that, the testimony of the
prosecutrix suffers from serious contradictions and
omissions, rendering it unreliable and unsafe for recording
conviction, solely on the basis of her statement. In her cross-
examination, the prosecutrix has admitted that, she had not
seen A-2 prior to the incident. She has not stated his name to
the police, nor in her statement under Section 164 of the
Cr.P.C. The prosecution has failed to examine natural and
independent witness, more, particularly Sumanbai and
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Rajeshree, with whom she was friends. Failure to examine
the material witnesses, weakens the case of the prosecution.
13. Our attention is also invited to the admission of the
investigating officer, PW 46 senior PI Sawant, who admitted
that except the accused named in the FIR, no other accused
were involved in the offence. Hence, conviction against A-2
cannot be sustained.
14. Coming to the next accused, Advocate Mr. Veer, Dhaval
Deshmukh. for Accused no. 3, Wahid Kayyum Khan alias
'Kalu'. submits that, there are following material omissions in
the evidence of prosecutrix, which are duly proved by the
P.W. 41 Investigating Officer who has admitted that, (i) the
prosecutrix has not stated that it was a day of Ganpati
Visarjan and the boys peeping inside the tempo were Ajay,
Vishal, Wasim and Dastagir; (ii) there is a material omission
in the statement of the proseturix, where she omitted to state
the words uttered by the passerby milkmen who said 'mat re
kalu mat mar' (iii) the prosecutrix had not given description
of her Saree, blouse and petticoat as well as the description of
the clothes of the accused, worn by them at the time of
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
incident; and (iv) omission by the prosecutrix that, at the
time when she was taken beside Om Sai Chinese Hotel,
Wasim, Ajay, Dastagir and Vishal, were present.
15. Mr. Deshmukh submits that the aforementioned
material omissions cast doubt about the credibility and
truthfulness of the testimony of the prosecutrix. The
prosecutrix has admitted that, she did not know the names of
the accused, but could gather it since they were addressing
each other by names. However, she could not explain how she
connected 'Kalu' with Wahid Kayyum Khan. The prosecutrix
had not given any identification or description of the accused,
so as to identify them. Hence, the identification of the
accused itself is doubtful. There is no evidence to connect
accused Wahid Kayyum Khan with the name 'Kalu'.
He submitted that, the glaring discrepancy in evidence
is that, the prosecutrix in her compliant has stated that Kalu
inserted stick in her private part, but has failed to mention it
in her statement under Section 164 of the Cr.P.C. P.W.No.9
(milkman), was not called upon to identify the accused in TI
parade.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
16. It is submitted that the medical evidence is brought on
the record by the prosecution, through P.W.10 Doctor at J.J.
Hospital. P.W.11 Doctor, at Nagpada Police Hospital, P.W. 17
Doctor, who examined the prosecutrix at J.J. Hospital at the
request of P.W.10 and P.W.13 i.e. the Doctor, who examined
the prosecutrix at J.J. Hospital. It is submitted that inspite of
being examined by the four Doctors, none of the Doctors have
positively stated that, there was forceful sexual assault on
the prosecutrix. The prosecutrix has given an admission that
she has failed to identify the accused namely, Kalu, Manu,
Vishal and Hamal at the TI Parade. The only evidence
available against A-3, is the report of the DNA Test, which
matched with the blood and semen on the saree of the
prosecutrix and the stick, allegedly inserted in her vagina by
him.
However, the whole process of seizure, sealing,
collection, storage and transport of blood samples for
conducting the DNA analysis is doubtful and not fully proved
by the prosecution, by examining witnesses. Therefore,
merely matching the samples of the blood of the A-3 with the
DNA samples of the prosecutrix is not sufficient.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
17. In this context, the learned advocate is relying on the
judicial pronouncement of the Hon'ble Supreme Court in the
case of Manoj Vs. State of M.P.1. He further submits that, DNA
report is a corroborative evidence therefore it is not
sufficient to sustain conviction. In view of the admission
given by the prosecutrix that she did not identify the accused
no. 3 during the TI Parade, itself is sufficient to demolish the
case of the prosecution. In absence of cogent and reliable
evidence against A-3, the conviction of the accused cannot be
sustained.
18. Mr. Kartik Garg, learned advocate represents Accused
Nos.4 and 6 i.e. Dastagir Abdul Khan and Manpreet Singh
Kashmir Singh Gill, respectively, the Appellants in Appeal
Nos. 1187 of 2018 and 2054 of 2017. He submitted that
although the prosecutrix has named Accused No. 4 Dastagir
in the complaint as well as in her testimony before the Court,
it is admitted fact that she was not knowing the names of the
accused before the incident. She has admitted that she had
not given description of the accused, and she has failed to
identify Manu i.e. Manpreet Singh Gill during the TI Parade.
1 2023 2 SCC 353.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Thus, the question that arises is that on what basis the
accused has been arrested.
Relying on the guidelines for test identification,
provided in the Criminal Manual, it is submitted that various
irregularities have been committed during the TI Parade.
Referring to Clause 16 Sub-clause (iii) of the Criminal
Manual it is submitted that P.W.20, has failed to verify
whether the witnesses in the IT Parade are independent and
not connected with the Mulund Police Station, Mumbai.
19. Relying on Clause 5 of the Criminal Manual, it is
submitted that, for one accused at least six dummies are
required. Similarly, for two accused atleast 10 to 12 dummies
are necessary. It is required to be ensured that such
dummies are more or less of same physical appearance and
approximately of same age, of that of the accused. P.W. 20
admitted that he did not select dummy's himself, but the
Jailer selected them. The physical resemblance of dummies
is important aspect of the TI Parade. There is an admission
by P.W. 20 that, he has not mentioned that the dummies are
of same height, complexion and physique and further same
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
set of dummies were repeated in the two set of TI Parade for
all the accused. In this context reliance is placed on the
judicial pronouncement of the Hon'ble Supreme Court in the
case of Gireesan Nair & Ors. v. State of Kerala2.
20. It is further submitted by Mr. Garg that, isolation and
privacy during the TI Parade is required to be ensured.
Clause 6 of the Criminal Manual provides that, except two
respectable persons and the accused, no one else is allowed to
remain in the room during TI Parade. P.W.20, admits that,
there was a wall only on one side of the room while rest of the
three sides of the room, were enclosed with grills above the
level of three feet. As a result, the person standing outside
the room, were visible from inside, leading to an inference
that there were no safeguards and isolation. P.W.20 has also
failed to question the prosecutrix whether she had the
occasion to see the accused at any time subsequent to or
after their arrest. He also failed to question the accused
whether they were shown to the prosecutrix after their
arrest. Thus, the above fatal irregularities in the IT Parade
makes it unreliable.
2(2023) 1 SCC 180
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Even after the completion of TI Parade, P.W.20 has
failed to make an endorsement on the memorandum of TI
Parade, to the effect that it was conducted by him personally,
and he obtained signatures of witnesses. No such
endorsement certifying the correctness of memorandum of
TI Parade is placed on record.
It is, therefore, submitted that, from the
aforementioned blatant irregularities, whole TI Parade
stands vitiated, and cannot be read in evidence.
21. Mr. Shantanu Phanse, advocate for accused no.5 Wasim
Samand Shaikh in Criminal Appeal No.1082 of 2017
submitted that, there is a specific charge under Section 377
of the IPC against the accused no.5 alongwith the other
charges. Though there are charges of carnal unnatural
intercourse with the prosecutrix, the medical evidence is
completely silent about any such act being committed by the
A-5. He relies on the following material omissions in the
testimony of the prosecutrix, such as, (i) the accused persons
were peeping inside the tempo; (ii) the act of accused no.1
committing unnatural act; (iii) about knowing the accused
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
merely by face and not by name; (iv) about asking help from
the milkman and his presence on the spot; (v) about the
accused following prosecurtix to the forest and assaulting
her; (vi) the prosecutrix naming the accused, without their
description while registering the FIR.
It is submitted that, irrespective of the fact that, the
prosecutrix named the accused no.5 in the FIR, while
recording the medical history, she attributes the assault to
unknown persons, this amounts to major inconsistency in
the evidence of the prosecution.
22. Ms. Phanse has submitted that the testimony of the
prosecutrix is full of omissions and contradictions and not
supported by any evidence. Relying on the testimony of
P.W.41 Sarita Sarjerao Bhosale, he submits that she has
stated that, even after enquiring about the details of the
accused persons, prosecutrix was unable to provide any
clue . She also admits that, the prosecutrix did not inform
her that she knows A-5 Wasim by face. As regards medical
evidence, the learned advocate points out the inconsistencies
in the Medical opinion given by the Doctors after examining
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
the prosecutrix. The prosecutrix was examined by P.W. 11 Dr.
Suchita Phad at 05:00 p.m., at the Nagpada Police Hospital.
As per her report there were multiple tears on vaginal walls.
However, no bruises or body injuries are mentioned in it,
which is not consistent with the version of the prosecutrix.
When the prosecutrix was referred to J.J. Hospital, P.W.10
Dr. Prajakta Ahire, has examined her, according to her,
vaginal walls were normal with few bruises and scratch mark
on her body. Thus, there is a contradiction about presence of
vaginal tears in the version of P.W.11 and P.W.10. He further
refers to the medical opinion at Exhibit-183 given by P.W. 17
Dr. Aftab Shaikh, who has given an opinion to obtain Forensic
Report for confirming possibility of rape, thereby referring
the prosecutrix to forensic medicine department of J.J.
Hospital. Pursuant to which, P.W. 13 Dr. Sadanand Bhise,
conducted the examination at 09:25 p.m. on the same day.
According to his report at Exhibit-178, there are 26 injuries,
her mucosa was reddish with small tears and odema,
multiple tears with blood infiltration on vaginal mucosal
walls. It is submitted that this report at Exhibit 178, does not
mention about genital injuries, due to sexual intercourse or
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
foreign object. On the contrary, the injuries no.2, 4, 11 and 12
are mentioned to be caused by nails. Importantly, no traces of
foreign object are detected despite allegation of insertion of
foreign object i.e. the stick, as reported by the prosecutrix.
Thus, according to him, there is no consistency in the
medical evidence produced by the prosecution, in the
backdrop of the allegations made by the prosecutrix. Thus, in
view of the inconsistencies in the medical opinion by the
respective Doctors, it is not safe and reliable corroborative
evidence.
23. As regards identification of A-5, he would submit that,
A-5 is having a mole on the upper side of the left lip. Inspite
of this distinct mark, the prosecutrix has not mentioned the
identifying mark of the accused, which weakens the
reliability of identification of the accused. As regards TI
Parade, he would point out the various lapses and
discrepancy in the procedure undertaken by the authority
conducting the TI Parade. He submits that same set of
dummies were used for all the accused, which is a serious
procedural lapse, and creates doubt about genuineness of the
procedure. It is submitted that the Accused no.5 was
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
arrested on 21st September, 2013, while he was in police
custody, and thereafter the prosecutrix had visited the police
station more than once due to which there is every
possibility that, she had seen the accused prior to the TI
Parade.
24. About the other corroborative evidence that is the DNA
profile, it is submitted that, the semen on petticoat of the
prosecutrix matched with the accused no.5, but the DNA on
the saree and blouse did not match with his DNA. There is no
possibility of any semen being found on the petticoat of the
prosecutrix for the reason that, as per her own testimony,
her petticoat was removed by the accused persons before
committing the sexual assault. The prosecution has also
failed to establish that appropriate procedure during the
collection, storage and forwarding/sending of the blood
sample of the prosecutrix has been followed. The extraction
sealing, and storage of the samples is required to be done by
conducting due panchanamas, which is not proved by
examining the witnesses, which makes the DNA report
unreliable.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
25. It is alleged that A-5 was using mobile number
9987968668. The tower location and call details of the calls
made from that number are brought on record, however, the
prosecution has failed to establish that the said mobile
number belongs to A-5. It is therefore submitted that
considering the inconsistency and omissions in the
statement of prosecutrix, coupled with the unreliable
corroborating evidence, prosecution has failed to establish
complicity of the Accused No.5.
26. Mr. Kashid, the learned advocate for Accused no. 7
Bhuvan Hamal in Criminal Appeal No. 229 of 2018,
submitted that the accused is shown to be arrested on 23 rd
September, 2013 at 13:30 hrs. However, the arrest memo is
signed by the police officer on 22nd September, 2013. It is
submitted that the description and photograph of A-7 clearly
shows that he is of Nepal origin with distinct features, which
distinguishes him from other accused. Inspite of that the
prosecutrix has failed to give his description. Since the
prosecutrix had visited the police station on 23rd September,
2013, hence, there is every likelihood that, she has seen A-7
at the police station. He further submits that, A-7 is neither
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
named in the FIR, nor in the statement of the prosecutrix
recorded under Section 164 of the Cr.P.C. Although the
prosecution claims to have identified the accused in the TI
Parade, however, in the cross-examination, she admitted to
have failed to identify the accused. She has also given an
admission that she had not seen A-7 prior to the incident
therefore she has not given his name in her statement under
Section 164 of Cr.P.C.
27. It is submitted that most importantly, the conduct of
A-7 after the incident needs consideration. The CDR of the
accused indicates that he did not abscond after committing
offence, but remained at his workplace, this conduct fortifies
his stand of innocence. As per the DNA report, the specimen
of A-7 did not match with the blood mixed with semen on the
saree of the prosecutrix. He is alleged to be using cell no.
7738252467. As per the CDR placed on record, the last call
received on the said cell number was at 00.48.21 hrs. on 21 st
September, 2013, from a Mobile No. 9004629880, which does
not belong to any of the accused. After the call received on
00.48.21 hrs, till 10.09.38 on 21 st September, 2013, there
was no call made or received on the said number. Although, it
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
is alleged that A-7 was using mobile number 7738252467,
the learned trial judge has committed an error by linking
mobile no. 7738236490 to A-7. Thereby, linking the call
received from accused no. 3 Wahid @ Kalu to A-7 is a serious
error committed by the learned trial Judge. Hence, it is
submitted that, considering the serious discrepancies in the
evidence, complicity of A-7 is doubtful, which makes
conviction unsustainable.
28. Dhiraj @ Dhiru Prakash Panchal accused no. 8 (A-8),
has filed Criminal Appeal No.1075 of 2022. Advocate Mr.
Rajesh Bhosle, representing him would submit that, in the
FIR as well as in her statement under Section 164 of Cr.P.C.,
the prosecutrix has named one 'Viru' and had not specified
his role. The name of the accused no. 8 is Dhiru @ Dhiraj.
There is no evidence placed on record to prove that 'Dhiru', is
erroneously named as, 'Viru'. There is one more accused
named, Gurumukh @ Guru, who is still absconding.
Therefore, there is a lot of confusion about the names of the
accused given by the prosecutrix and their identity making
their complicity doubtful.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
29. He submits that in her testimony, the prosecutrix has
stated that A-8 Dhiru @ Dhiraj had committed rape on her,
whereas she has identified him as 'Viru'. The only specific
allegation made against Dheeru is that, he has forced her to
sit on a motor cycle between himself and Kalu. Although, the
prosecutrix is claiming that Dheeru had carried her on the
motor cycle, in the memorandum statement of A-9, he has
stated that Ajay and Kalu took the prosecutrix to hilly area.
Even while framing charges, it is alleged that Kalu alongwith
Vishal forced the prosecutrix to sit on the motor cycle. Thus,
there is no consistency in the evidence of the prosecution
about the role of A-8, coupled with a lot of confusion in the
names mentioned by the prosecutrix. Neither the medical
report nor the DNA report of A-8 matches with the
prosecutrix; no mobile instrument has been recovered from
A-8. Although P.W. 25 Mr. Ajay Utekar, has stated that Dhiru
was possessing Mobile No. 8452850970, investigation
revealed that the SIM card with that number was registered
in the name of one Mr. Manoj Sindhu Bhagwat Tadpe, and the
location of the said number was not traceable. Thus, the
prosecution could not establish that, A-8 had made calls
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
from the spot of the incident. Hence, the prosecution has
failed to make out any case against A-8. Therefore, his
Appeal needs to be allowed by setting aside the sentence of
conviction. In support of his submissions, reliance is placed
on the judicial pronouncement of the Hon'ble Supreme Court
in the case of Ganga Singh Vs. State of Madhya Pradesh3.
30. Advocate, Ms. Anima Mishra, for accused no.9 (A-9)
Vishal Ashwini Sood in Appeal No.305 of 2017, submitted
that, the major allegations against A-9 are that, he alongwith
5 to 6 boys were peeping inside the tempo and the
prosecutrix was knowing his name as Vishal. He entered the
tempo and closed her mouth with his hands. After pulling her
outside the tempo, he has removed her saree and petticoat
and committed forcible sexual assault on her. After some
time, Vishal has asked Kalu to take prosecutrix to jungle. It is
submitted that, even though the prosecutrix has
categorically named Vishal, he is not the only person in the
village or vicinity with the name Vishal. The claim of the
prosecutrix that she knew his name, as he frequently
purchased Vadapav in a nearby stall, is not established by
3 (2013) 7 SCC 278
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
examining the owners of the nearby stalls. There is delay in
conducting the TI Parade, due to which there is every
possibility that the prosecutrix had an opportunity to see the
accused prior to the TI Parade, while she visited the police
station.
31. It is further submitted that, though the prosecutrix has
named A-9 in the FIR and attributed a specific role, it is
surprising that in the medical history recorded as per her
say it is stated that, she has been sexually assaulted by
unknown persons. The CDR of the accused creates doubts
since his call record discloses that, A-9 had dialed number
100, which is not a natural conduct of an offender to call
police after committing an offence. The allegation of the
prosecution that A-9 had made calls to the other accused
persons is not supported by his CDR. The allegation that the
motor cycle used in the offence belong to him is shattered
during cross-examination of P.W.40, who admitted that,
panchanama was not conducted in his presence, while
seizing the said motorcycle, and he has also failed to identify
the bike.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
32. It is submitted that, irrespective of the specific
allegations in the FIR against him, the DNA report of A-9 did
not match with the specimen on the petticoat and saree of
the prosecutrix. It is submitted that he has been arrested
after a gap of 8 months, on suspicion, when the Mulund
police were in search of an accused, in some other offence.
After his arrest, when he disclosed his name as, 'Vishal
Sood', he was mistakenly identified as wanted accused in the
C.R. No. 426 of 2013. The learned advocate therefore submits
that conviction of Accused No. 9 is based totally on suspicion
without any concrete evidence. In fact, there are major
contradictions in the evidence of the prosecution which
results in failure to establish complicity of Accused No.9.
33. The learned APP Mr. Khan has vehemently opposed the
Appeals. He submitted that the prosecutrix has identified
accused nos. 1 to 9 in the Court. She has specifically named
Vishal A-9, Ajay A-1, Dastagir A-4 and Wasim A-5 in the FIR,
therefore, identification of these accused persons cannot be
doubted. There is no confusion in the mind of prosecutrix
about identification of all the accused, she could very well
remember them, and has identified all the accused persons.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
He further submits that a specific role is attributed by the
prosecutrix to Accused No. 1-Ajay Mahavir Gechand,
Accused No. 2-Mahesh Ramchandra Maragaj, Accused No. 3-
Wahid Kayyum Khan, Accused No. 4-Dastgir Abdul Khan,
Accused No. 6-Manpritsingh Kashmirsing Gill, Accused No.
7-Bhuvan Lalbahadur Hamal and Accused No. 9-Vishal
Ashwini Sood+. He submits that, she has narrated the
incident in detail attributing specific role to each of the
accused.
34. The first incident is near the Chinese hotel, after she
was dragged from the tempo towards the hotel, which was
much below the ground level, from where the passer by on
the road could not view the spot. She has specifically stated
as to who initiated the sexual assault, followed by the other
accused persons. During the incident, phone calls were made
by A-9 and after his call, some more boys had arrived on the
spot. She was thereafter taken to the jungle by A-3 and A-8
on the motor cycle of A-9. There is consistency in the
statement of the prosecutrix recorded during her testimony
before the Court as well as under Section 164 of the Cr.P.C. He
further submits that, so far as the FIR is concerned, the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
prosecutrix, who has undergone an harrowing experience is
not expected to provide minute details in the FIR. Hence, it
may lack certain details; however, in her testimony, she has
remained consistent and has maintained her version in her
cross-examination that, accused were never shown to her
prior to conduct of the TI Parade. P.W. 20 has also supported
the prosecution by confirming that, all the accused have been
identified by the prosecutrix during the TI Parade.
Relying on the testimony of P.W.13, Dr. S.S. Bhise, more
particularly, on his report, where 26 injuries are reported by
him, it is submitted that, the opinion of P.W. 13 suggests
sexual assault by multiple persons; he has opined that the
injuries are possible by the stick, Article 'E', which was
shown to him. The first Doctor, P.W. 11 Dr. Phad who
examined the prosecutrix, immediately after the incident
had noticed that there are multiple tears and tenderness on
the vaginal wall, therefore, the prosecutrix was immediately
referred her to J.J. Hospital for further examination.
Dr. Hemlata Pande, P.W. 12 examined the prosecutrix and
found bite marks on her right cheek, left lower bottom jaw,
left and right breast, which is consistent with her statement.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Upon analysis of the injury on the right cheek of the
prosecutrix, which was alleged to be as a result of bite by
accused Kalu, on its comparison with Kalu's Dentition, it
matched and coincided with the prosecutrix. Thus, it
unequivocally proves the allegation that, Kalu had bitten her
on the cheek. As regards the DNA report, it is submitted that
the DNA report of A-3 matched with the vaginal swab, and
the semen found on the saree of the prosecutrix and the
semen sample on the petticoat, matched with A-4, A-5 and
A-6.
35. Mr. Khan further submits that, the prosecutrix has
clearly mentioned names of names A-9, A-1, A-3, A-4 and A-8
in her statement, and has also given description about their
approximate age, built and clothes. She has specifically
named them in her statement recorded under Section 164 of
the Cr.P.C. She has maintained consistency while naming the
accused; therefore, the identity of the accused persons
cannot be doubted. He submits that the appellants are now
raising doubts about the validity of the DNA report; however,
no such objection was raised during the trial. He submits that
in view of Section 292 of the Cr.P.C. the DNA test has an
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
evidentiary value, which is admissible in evidence, and is not
required to be proved by examining the officer submitting the
report. He, therefore, submits that a minor infirmity here
and there in the testimony of the prosecutrix is required to
be ignored, in view of the consistency in her statement given
in the FIR, her testimony before the Court and her statement
recorded under Section 164 of Cr.P.C. The complicity of all
the accused has been thoroughly proved by the prosecution
by leading cogent evidence, which is reliable and credible.
The prosecution has established the guilt of all the accused,
through the testimony of the prosecutrix; the medical
evidence; the DNA report; the TI Parade and the CDRs of the
respective accused. Thus, the prosecution has fully proved
the complicity of all the accused, as such, the judgment
recording conviction against the accused does not deserve
any interference, and all the Appeals deserve to be dismissed.
36. We have heard elaborate submission of the respective
counsel for the Appellants and the learned Assistant Public
Prosector for the State, we have also perused the record with
their able assistance.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
All the Appeals are directed against the order of
conviction recorded against the respective accused under
Sections 376D, 377, 366, 354, 341, 342, 323, 506 Part II
read with 120 B of the IPC. All the accused have been
convicted with a maximum punishment of life imprisonment
as provided under Section 376(D) of the IPC. The conviction
is based on the evidence produced by the prosecution
primarily relying on the testimony of the prosecutrix and the
following corroborative evidence namely, (i) the test
Identification Parade; (ii) Medical evidence; (iii) DNA Test;
and; (iv) CDRs of the phone calls of some of the accused.
Therefore, we may now proceed to examine whether the
above evidence has been rightly appreciated by the learned
Additional Sessions Judge, Greater Bombay, while convicting
all the accused.
Testimony of the prosecutrix.
37. The primary evidence relied upon by the prosecution is
the evidence of the prosecutrix i.e. her complaint, her
statement under Section 164 of the Cr.P.C., and her testimony
recorded in the witness box. To corroborate her version,
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
prosecution has examined P.W.14, who was residing near the
spot, P.W.41 officer who recorded complaint of prosecutrix,
P.W. 2 and P.W. 3 panch witnesses for the spot panchanama,
P.W. 10 Dr. Prajakta Ahire, P.W. 11 Dr. Suchita Phad, P.W. 12
Dr. Hemlata Pandey and P.W.13 Dr. Sadanand Bhise in
support of medical examination for establishing sexual
assault.
38. There is no dispute about the settled position of law
that the testimony of the prosecutrix is the most reliable
piece of evidence and conviction can be recorded solely on its
basis. However, it is necessary that such testimony of the
prosecutrix should be of a sterling quality, and it should
qualify the strict scrutiny of well settled legal principles. The
evidence led by the prosecutrix should leave no room for any
doubt or suspicion, whatsoever about the complicity of the
accused persons, and most importantly, the evidence itself
should inspire confidence and it should not require
corroboration in material particulars.
In the light of the above settled legal position, we have
to examine the evidence of the prosecutix. She has given
names of accused Ajay, Vishal, Dastagir and Wasim, in the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
complaint. According to her, she knew four of them since
they were also residing in Amarnagar area, yet she has not
described them, by giving any specific identification marks.
She has admitted in her cross-examination that, she had not
stated about specific identification of any of the accused to
the police. Thus, the question that arises is that, if the
prosecutrix was already knowing the accused was there any
necessity to conduct the Test Identification parade. She
admits that she already knew the four accused and they
were addressing each other by their names, at the time of
incident. During the TI Parade, she has identified accused
Vishal. According to her, there were two incident of sexual
assault, one near the Om Sai Chinese Hotel, where accused
namely, Vishal, Ajay, Dastagir, Wasim, Mannu, Mahesh and
Hamal have committed the offence. In the second incident at
Rahulnagar Jungle, allegations are against Dhiru and Kalu,
where they have repeatedly committed sexual assault on her.
In the second incident she made specific allegations against
Kalu of inserting a stick in her Vagina repeatedly, as a result
of which she started bleeding. There were bruises on her
face, chest and breast.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
42. In her cross-examination, the prosecution has
succeeded in bringing certain omissions which are material,
such as, (i) her statement that it was day of Ganpati Visarjan
and the boys peeping inside the tempo were Ajay, Dastagir,
Vishal and Wasim; (ii) her statement about Ajay inserting
his penis in her mouth; (iii) name of the accused Dhiru is also
absent from her statement; (iv) She had stated to the police
that all the accused persons followed her in the Jungle, does
not appear in her statement recorded under Section 164 of
the Cr.P.C.; (v) Omission that she was made to sit between
Dhiru and Kalu on the motorcycle; (vi) Omission about
the prosecutrix making efforts to get help from Milkman PW
9 (who also turned hostile); (vii) Omission about P.W. 9
saying "mat re Kalu mat mar"; (viii) Omission that she was
not in a position to talk due to teeth marks on her cheek and
lips.
43. Apart from the above omissions, there are other
inconsistencies in the statement of the prosecutrix. While on
one hand she claims that she knows the names of the accused
since they were addressing each other with names during the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
incident, yet she has attributed the sexual assault to
unknown 9 to 10 persons in the medical history (Exhibit-
120) recorded by PW-10-Dr. Prajakta Ahire. This creates
doubt whether the prosecutrix was knowing the names of
accused.
44. In her cross-examination, she has admitted that while
narrating the incident to the police, she had stated that
though Zulawala people and one lady with them were
residing at some distance, from the tempo in a hut, yet she
has not called them for help. This conduct of the prosecutrix,
is contrary to the natural human conduct, when faced with
such situation. Even while she was being carried to the Rahul
Nagar Jungle, she admits that she did not resist the accused
by shouting or bitting. Although she raises a defence that,
her mouth was closed by the accused persons, at the same
time she also admits that she never tried to bite any of them
during the incident. She admits that though she had named
four persons, she was not knowing them, and she has failed
to identity accused Kalu, Mannu, Vishal and Hamal during
the TI Parade.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
45. These material omission and admissions in her cross
examination are fatal to the case of prosecution and cast
doubt about the credibility and truthfulness of the testimony
of the prosecutrix. Undoubtedly, the prosecutrix after
undergoing such a trauma is not expected to give finer details
of the incident, yet if we look at the material omissions in her
statement, as well as her evidence, it is not sufficient for
recording conviction of the accused. Therefore, it is
necessary to examine the credibility of her evidence from the
surrounding circumstances and corroborative evidence, to
establish the complicity of the accused in the offence.
The basic principle laid down in various judicial
pronouncements about evidentiary value of the testimony of
prosecutrix is that it should not be doubted, since it is treated
at par with an injured witness, provided it is reliable and
needs no corroboration. In case the version of prosecutrix is
inconsistent, and not supported by surrounding
circumstances and medical evidence, Court cannot act solely
on the evidence of the prosecturix. Undoubtedly the offence
of rape causes great anguish to the prosecutrix, but at the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
same time it is also required to be borne in mind that false
allegations against an accused also result in serious
consequences as person spoils his life, and he faces lifetime
social stigma and humiliation. Thus, in such case, it is
necessary to tread very carefully and examine the complicity
of the accused with no room for any doubt.
46. In this context, we may profitably refer to the
observations of the Hon'ble Supreme Court in case of
Sadashiv Ramrao Hadbe Vs. The State of Maharashtra 4,
which reads thus:
"8. It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it is
capable of inspiring of confidence in the mind of the court.
If the version given by the prosecutrix is unsupported by
any medical evidence or the whole surrounding
circumstances are highly improbable and belie the case set
up by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts shall be
extremely careful in accepting the sole testimony of the
prosecutrix when the entire case is improbable and
unlikely to happen."
Similarly, we may also profitably refer to the following
observations made by the Hon'ble Supreme Court in case of
Krishan Kumar Malik Vs. State of Haryana5, which is
4 (2006) 10 SCC 92
5 (2011) 7 SCC 130
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
reproduced as under:
"19. The prosecutrix admitted in her cross-examination
that she had come to know the names of all the accused
during the course of the occurrence, as they were taking
each other's names. If that be so, then why she did not
name the appellant in the FIR is a million dollar question?
These omissions speak volumes against her and her
credibility stands shaken. It is also to be noted that
initially she reported that there were in all 10 persons but
later on she deposed that there were only eight persons
and at some place she narrated that only 7 persons were
there. When she had ample time to count the number of
persons then why this wavering in the number of persons.
These acts or omissions of the prosecutrix cannot be said
to be minor contradictions as these are very relevant
pieces of evidence. Because of such contradictions, an
agile and active court can differentiate between genuine
cases from the frivolous and concocted ones. The role of
courts in such cases is to see, whether the evidence
available before the court is enough and cogent to prove
the accused guilty."
Thus, it is necessary to examine the corroborative evidence
to confirm the allegations against all the accused.
Medical evidence:-
47. According to the DNA report, the specimen of A-7 did
not match with the blood mixed with semen on the saree of
the prosecutrix. Medical evidence is one of the best piece of
evidence apart from the statement of the prosecutrix herself,
to establish commission of offence of rape. The prosecution
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
has examined PW-10, PW-11, PW-13 and PW-17, the Doctors
who examined the prosecutrix, and gave their respective
opinions at Exhibits-119, 153, 177 and 183. After narrating
the incident to the police officer (PW-41) Sarita Sarjerao
Bhosale, the prosecutrix was referred for medical
examination to the PW- 11 Dr. Suchita Ambhajirao Phad,
Medical Officer attached to Nagpada Police Station. According
to her, she noticed multiple tears on the vaginal wall with
severe tenderness and recorded insertion of foreign body.
Hence she referred the prosecutrix to J. J. Hospital for
further treatment and examination. PW-10 Dr. Prajakta
Ahire is the Doctor in the Department of Obstetrics and
Gynecology at Sir J.J. Group of Hospitals, Mumbai. The
medical history recorded by her, as narrated by the
prosecutrix reveals sexual assault by 9 to 10 unknown
persons, with a history of insertion of stick of a size of 10 c.m
in length to 5 c.m. in diameter. Upon examination by her, it
was noticed that there were bruise marks over right breast
and scratch marks over both breasts. On local examination,
the labia minora vaginal mucosa were normal. No external
injuries were found. Upon rectal examination there was no
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
injury. It is admitted that no foreign object is present in the
vagina, which does not support allegation of repeated
insertion of stick attributed to accused Kalu and allegation of
carnal sex.
48. The victim was thereafter referred to PW 17 Dr. Aftab
Shaikh on the recommendation of Dr. Prajakta Ahire (PW-
10). He did the rectal examination and proctoscopy, which is
reflective of normalcy. No evidence of bleeding was seen. He
therefore advised, ultrasonography and forensic opinion to
confirm the possibility of rape. He has accordingly given his
opinion. He has also admitted that there were no bite marks
on the person of the prosecutrix, which does not support her
allegation of bite marks on her cheek and lips by A-5. The
medical report only disclose bruise and scratch marks on her
body. In the patient history at Exhibit 183, PW 17 has
recorded that the prosecutrix has not taken bath or changed
clothes since assault, which is contrary to the testimony of
prosecutrix herself, who has admitted that, she had a change
of clothes in the police station, which is confirmed by the
testimony of PW 41, API Sarita Sarjerao Bhosle, who has
stated that after recording the statement of prosecutrix, her
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
clothes were seized, and she was given another saree and
blouse. Thus, the medical history recorded by PW 17 and the
testimony of PW 41 are inconsistent with each other.
The prosecutrix was referred to P.W.13 Dr. Sadanand
Bhise by P.W. 10 Dr. Prajakta Ahire. In his testimony, he
spoke of injury Nos. 1 to 26 on her person including injuries
on her private parts. In his cross-examination, he has
admitted that injury nos. 2, 4, 11 and 12 is possible by nails.
He further admits that he has not mentioned in the report
that the injuries in genital area can be caused due to sexual
intercourse. He also admitted that he failed to mention that
injuries can be caused due to insertion of foreign object such
as stick an he did not find any traces of foreign object. As
regards the allegation of insertion of stick in her vagina by
A-5 Kalu, he admitted that the Article-E i.e. the stick was
not shown to him and his opinion was not sought and if such
insertion is caused in the vagina, some particles of stick can
be found in it, which was not found in case of the prosecutrix.
These fatal admissions are inconsistent with the allegation of
the prosecutrix. Even though the prosecutrix was examined
by four Doctors, P.W. 10, 11, 13 and 17 immediately after the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
incident, on very day, the opinion given by the Doctors is not
consistent with each other.
In view of the inconsistency in the testimony of the
Doctors examined to establish the commission of sexual
assault, it becomes doubtful an unreliable piece of evidence,
which does not corroborate the testimony of prosecutrix.
In view thereof, in our opinion that benefit of doubt
needs to be given to the accused.
Test Identification Parade :-
The prosecution has heavily relied on TI Parade, to
establish the complicity of all the accused in the commission
of offence.
49. P.W.20 Naib Tahsildar has conducted the TI Parade, for
A-1 to A-8, memorandum of TI Parade dated 09.10.2013 is at
Exhibit 193 and P.W. 19 has conducted it for A-9 which is at
Exhibit 189. There is no material brought on record by the
prosecution for the basis of arrest of the accused. The
prosecutrix has merely given the first name of accused. The
prosecutrix has admitted in her cross-examination that, she
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
has not given description of the accused, thus, it was
necessary for the prosecution to establish the identification
of all the accused. Considering that, allegations of sexual
assault against number of persons, and the time of incident
i.e. the wee hours of night, it is necessary to establish
identity of the accused. The offence is allegedly committed on
21.09.2013 at 03:00 a.m. in the morning and the TI Parade
has been conducted on 09.10.2013, i.e. 18 days after the
incident. A-1 to A-5 have been arrested on 21.09.2013, A-6
on 22.09.2013, A-7 on 23.09.2013 and accused No. 8 was
arrested 26.09.2013. While A-9 was arrested after 8 months
of the offence, i.e. 26.05.2014 and his TI parade was
conducted on 08.07.2014.
50. PW-20 is the Naib Tahsildar, who conducted the TI
Parade. He admits in his cross-examination that the Collector
had authorized the Tahsildar to conduct the TI Parade. While
the Tahsildar had given him the letter to conduct the TI
Parade, however, he had not seen the authorization given by
the Collector to the Tahsildar and he was also not sure
whether the Tahsildar can further delegate his powers. He
also admits that, he did not possess the order issued by the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Court directing him to hold the TI Parade. According to him,
when he arrived outside the jail, the prosecutrix was already
present with the Panchas and police officer. He obtained the
names addressee, etc. of Panchas, while Clause 11 of the
Criminal Manual mandates the Executive Magistrate to
ascertain, whether the witness had an opportunity to see the
accused any time subsequent to the offence or after the
arrest and record a separate statement, but he has not
undertaken any such exercise. He did not question the
Panchas, whether they had acted as Panch in any other case,
or they are in any manner connected with the present case.
He has failed to produce dummies resembling the accused in
age, height, weight etc. In all there were eight accused to be
identified by the prosecutrix. Clause 5 of the Criminal
Manual provides ratio of dummies to be followed, at least six
dummies are necessary for one accused. The above
proportion is required to be maintained depending on
number of accused to be identified. He has failed to follow this
ratio in TI Parade of 8 accused.
51. He has admitted that, the first four accused were of
different appearance, complexion and height. Four accused
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
at the same time were made to stand alongwith the dummies
in four different groups during single TI parade. The same
exercise was repeated in respect of the rest of the four
accused. The dummies in the first set were repeated while
conducting the the TI Parade, for the second set of accused,
though serial numbers and the groups of the accused was
changed. Thus, he has failed to conduct the TI Parade, by
producing dummies of similar height, weight and
complexion, to that of each accused. In fact, he admits that
the first four accused were of different height, weight and
complexion, yet they are made to stand in the same TI
parade. As a result of several irregularities are committed
by him while conducting the TI Parade, by failing to adhere to
the procedure prescribed in Criminal Manual.
52. Apart from the irregularities in the procedure during
the TI parade, the prosecutrix has failed to identify A-3, A-
6, A-7 and A-9 during the TI parade. Although the
prosecutrix had claimed to have identified A-7 in the TI
parade, during her cross-examination, she has admitted that,
she has not identified A-7. Inspite of irregularities in the TI
parade being pointed out during the trial, the learned judge
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
has held that, such irregularities would not cause any hurdle
in the evidentiary value of the report submitted by the
Competent Authority conducting the TI Parade.
In fact, the TI parade is required to be conducted as per
the procedure set out in the Criminal Manual, in order to
maintain the fairness, confidentiality, impartiality and
reliability of the process, by producing the dummies of
similar height, age, weight and complexion of the accused
persons. Conducting the TI Parade of four accused at a time
is not recommended, as it is bound to create confusion in the
mind of witness. The TI parade though not a substantive
piece of evidence in itself but, it is one of the methods
provided under Section 9 of the Evidence Act to establish
complicity of accused. Properly conducted TI parade, lends
credibility to the case of prosecution, while improperly
conduct TI parade fails to corroborate the identification of
the accused. Thus, in our view, the whole TI Parade stands
vitiated and becomes unreliable piece of evidence.
Upon consideration of the evidence led by the
prosecution, we find that the TI Parade has been conducted
contrary to the procedure in the Criminal Manual. Various
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
judicial pronouncements on this issue hold that sufficient
precautions are to be taken to ensure that the witness who
participate in the TI Parade do not have an opportunity to see
the accused before the TI Parade. The prosecution should
establish before the Court that right from day of his arrest,
the accused was kept in seclusion to rule out the possibility of
his face being seen while in police custody. If the procedure
prescribed by the rules is not followed, the very efficacy of
conducting the TI Parade is lost and it becomes a mere
formality. In case of failure to take necessary precautions
and measures before the TI Parade, renders it inadmissible in
evidence. We may profitably refer to a decision of the Hon'ble
Supreme Court in Gireesan Nairs Vs. State of Kerala (Supra),
where the Hon'ble Supreme Court has following observations:
"31. In cases where the witnesses have had ample
opportunity to see the accused before the identification
parade is held, it may adversely affect the trial. It is the duty
of the prosecution to establish before the court that right from
the day of arrest, the accused was kept "baparda" to rule out
the possibility of their face being seen while in police custody.
If the witnesses had the opportunity to see the accused before
the TIP, be it in any form i.e. physically, through photographs
or via media (newspapers, television, etc.), the evidence of
the TIP is not admissible as a valid piece of evidence (Lal
Singh v. State of U.P. [Lal Singh v. State of U.P., (2003) 12 SCC
554 : 2004 SCC (Cri) Supp 489] and Suryamoorthi v.
Govindaswamy [Suryamoorthi v. Govindaswamy, (1989) 3
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
SCC 24 : 1989 SCC (Cri) 472] ).
32. If identification in the TIP has taken place after the
accused is shown to the witnesses, then not only is the
evidence of TIP inadmissible, even an identification in a court
during trial is meaningless (Sk. Umar Ahmed Shaikh v. State
of Maharashtra [Sk. Umar Ahmed Shaikh v. State of
Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276] ).
Even a TIP conducted in the presence of a police officer is
inadmissible in light of Section 162 of the Code of Criminal
Procedure, 1973 (Chunthuram v. State of Chhattisgarh
[Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 :
(2021) 1 SCC (Cri) 9] and Ramkishan Mithanlal Sharma v.
State of Bombay [Ramkishan Mithanlal Sharma v. State of
Bombay, (1955) 1 SCR 903 : AIR 1955 SC 104] ).
33. It is significant to maintain a healthy ratio between
suspects and non-suspects during a TIP. If rules to that effect
are provided in Prison Manuals or if an appropriate authority
has issued guidelines regarding the ratio to be maintained,
then such rules/guidelines shall be followed. The officer
conducting the TIP is under a compelling obligation to
mandatorily maintain the prescribed ratio. While conducting
a TIP, it is a sine qua non that the non-suspects should be of
the same age-group and should also have similar physical
features (size, weight, colour, beard, scars, marks, bodily
injuries, etc.) to that of the suspects. The officer concerned
overseeing the TIP should also record such physical features
before commencing the TIP proceeding. This gives credibility
to the TIP and ensures that the TIP is not just an empty
formality (Rajesh Govind Jagesha v. State of Maharashtra
[Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8
SCC 428 : 1999 SCC (Cri) 1452] and Ravi v. State [Ravi v.
State, (2007) 15 SCC 372 : (2010) 3 SCC (Cri) 730] )."
The aforementioned observations squarely apply to the
present case, hence, we are of the opinion that the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
irregularities during the TI Parade vitiates the entire process
and the trial Court has committed a serious error in placing
heavy reliance on it to corroborate the evidence of
prosecutrix for recording conviction against the accused.
DNA Test:-
53. The next piece of corroborative evidence to establish
the complicity of accused, is the DNA test. The prosecution
has relied on testimony of P.W.15, who is carrier of samples of
prosecutrix to FSL Kalina, Mumbai, P.W.18 is the Store
Hawaldar who carried the 14 sealed articles in the office to
FSL, Kalina, Mumbai, and P.W. 22, police constable who
carried 15 sealed samples of blood, nail clippings etc., of the
accused to the FSL Kalina, Mumbai. Alongwith the C.A.
report Exhibits-21 to 25 and DNA report Exhibits-126.
For conducting the DNA Analysis, the following
specimen were sent by the prosecution : (i) the hymenal
swab and vaginal swab of the prosecutrix; (ii) her Saree and
Petticoat, containing the blood mixed with the semen; (iii)
The piece of branch/stick; (vi) blood detected on half pant of
A-5; (v) semen detected on underwear of A-3; (vi) semen
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
detected on pant of A-6; (vii) blood detected on full pant of
A-5; (viii) and blood samples of prosecutrix alongwith the
blood sample of all the accused Nos. 1 to 9.
54. The result of the DNA profile of prosecutrix matched
with the blood samples of A-3 to A-6, however it did not
match with the rest of the accused. So far as A-3 and A-6
are concerned, the prosecutrix was not able to identify them
in the TI parade. The reliability of DNA report itself has been
challenged by all the accused, contending that, no panch
witness has been examined by the prosecution to prove the
collection, sealing, storage and transport of the blood
samples for the DNA Analysis so as to prove that at every
stage the procedure has been meticulously followed. If the
specimen for conducting DNA Analysis is not properly
documented, collected, packaged and preserved, it does not
meet the scientific requirement for admissibility in the court
of law. There is every possibility of the specimen, getting
contaminated and being tampered, during the process. The
importance of maintaining the procedural standards has
been underscored by the judicial pronouncements of the
Hon'ble Supreme Court in case of Prakash Nishad Alias
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Kewat Zinak Nishad Vs. State of Maharashtra 6. Referring to
the guidelines for collection, storage and transportation of
DNA samples by Investigating Officers issued by the "Central
Forensic Sciences Services, Ministry of Home Affairs,
Government of India". It is held that the specimen sample
must be submitted to the laboratory without any delay.
55. In the present case, the blood samples for examination
has been extracted from the prosecutrix and A-1 to A-7 on
25.09.2013. The report is prepared on 02.12.2013. However,
the prosecution has not examined any witness to prove the
extraction of blood samples of prosecutrix and the accused
persons. PW 15, 18, 21 and 22 are the panch witnesses who
are the carriers of samples of prosecutrix. Except these
carriers, no other witness has been examined to prove the
procedure undertaken before conducting the DNA Test.
56. In the case of Manoj Vs. State of MP.7, it is held by the
Hon'ble Supreme Court that mere exhibiting a document, i.e.
the DNA report profiling would not prove its contents, which
6 (2023) 16 SCC 357;
7 232 (2) SCC 353
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
reads thus:
"151. Collection and Preservation of Evidence
If DNA evidence is not properly documented, collected,
packaged, and preserved, It will not meet the legal and
scientific requirements for admissibility in a court of law.
Because extremely small samples of DNA can be used as
evidence, greater attention to contamination issues is
necessary while locating, collecting, and preserving DNA
evidence can be contaminated when DNA from another
source gets mixed with DNA relevant to the case. This can
happen when someone sneezes or coughs over the evidence
or touches his/her mouth, nose, or other part of the face and
then touches area that may contain the DNA to be tested.
The exhibits having biological specimen, which can establish
link among victim(s), suspect(s), scene of crime for solving
the case should be identified, preserved, packed and sent for
DNA profiling."
57. One more glaring aspect of the DNA profile which
warrant consideration is that, according to the prosecutrix,
her petticoat was removed by the accused Vishal before
committing the offence of rape near the Chinese hotel and it
was recovered during the spot inspection, yet the DNA report
shows blood mixed with semen on her petticoat, which
matched with A-5, A-4 and A-6, which is inconceivable as it
is inconsistent with the narrative of the prosecutix thus
raising serious doubts about its reliability.
58. The most crucial aspect of a DNA test is the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
examination of the expert who conducted the DNA Test. In
the present case, the expert who conducted the DNA test has
not been examined. The letter sent to C.A. for DNA analysis
at Exhibit 300 has been produced by the Investigating Officer
(PW-46). In the decision of Karandeep Sharma alias Razia
alias Raju Vs. State of Uttarakhand8, the Hon'ble Apex Court
observed that non-examination of the scientific expert, who
conducted the DNA profiling, is fatal to the prosecution.
"39. The first flaw in the prosecution case on the
aspect of DNA profiling is that the expert who
conducted the DNA examination was not examined in
evidence and the DNA report was merely exhibited in
evidence by the Investigating Officer (PW-14) who
undeniably is not connected with the report in any
manner. This Court in the case of Rahul v. State of
Delhi, Ministry of Home Affairs, while dealing with the
issue concerning evidentiary value of DNA report, has
held that DNA profiling reports cannot be admitted in
evidence ipso facto by virtue of Section 293 CrPC and it
is necessary for the prosecution to prove that the
techniques of DNA profiling were reliably applied by the
expert. The relevant excerpts from the said judgment
are reproduced hereinbelow for the sake of ready
reference:-
"36. The learned Amicus Curiae has also assailed
the forensic. evidence i.e. the report regarding the
DNA profiling dated 18-4-2012 (Ext. P-23/1), giving
incriminating findings. She vehemently submitted
that apart from the fact that the collection of the
samples sent for examination itself was very
doubtful, the said forensic evidence was neither
scientifically nor legally proved and could not have
8 2025 SCC OnLine SC 773
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
been used as a circumstance against the appellant-
accused. The Court finds substance in the said
submissions made by the Amicus Curiae. The DNA
evidence is in the nature of opinion evidence as
envisaged under Section 45 and like any other
opinion evidence, its probative value varies from
case to case.
38. It is true that PW 23 Dr B.K. Mohapatra, Senior
Scientific Officer (Biology) of CFSL, New Delhi had
stepped into the witness box and his report
regarding DNA profiling was exhibited as Ext. PW
23/A. however mere exhibiting a document, would
not prove its contents. The record shows that all the
samples relating to the accused and relating to the
deceased were seized by the investigating officer on
14-2-2012 and 16-2-2012; and they were sent to
CFSL for examination on 27-2-2012. During this
period. they remained in the malkhana of the police
station. Under the circumstances, the possibility of
tampering with the samples collected also could not
be ruled out. Neither the trial court nor the High
Court has examined the underlving basis of the
findings in the DNA reports nor have they examined
the fact whether the techniques were reliably
applied by the expert. In the absence of such
evidence on record, all the reports with regard to
the DNA profiling become highly vulnerable, more
particularly when the collection and sealing of the
samples sent for examination were also not free
from suspicion."
(emphasis supplied)
59. Thus, in view of the above legal position, it would not be
advisable to rely on the DNA report since it has not been
appropriately proved by examining the expert who prepared
it as well as the Panch witnesses to the extraction of samples,
its sealing, transportation etc. In view of the various missing
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
links in the chain of testing of DNA profile, credibility of this
piece of evidence becomes doubtful.
CDR of the Accused:-
57. The other corroborative evidence produced by the
prosecution is in the nature of CDR. The prosecution has
relied on testimony of service provider companies of the cell
phone i.e. P.W. 33, Nodal Officer of Reliance, P.W. 36, a Nodal
Officer of Vodafone and P.W. 37, Nodal Officer of Bharati
Airtel, P.W. 38 Nodal Officer of Idea Cellular to prove the CDR
and Tower Location of the accused nos. 1 to 5.
The mobile SIM-Card 9320307546 is in the name of
Rakesh Mahavir Ghechand who is the brother of A-1 Ajay
Ghechand. As per prosecution, the said cellphone was in
possession of the A-1 Ajay at the time of incident. The CDR
of the said number discloses that calls were made and
received on the said number 21st September, 2013 at
02:59:02 hours on 9987968668 and this number was alleged
to be possessed by Wasim Shaikh A-5.
One Charushila Jadhav, P.W.16, sister of A-2 Mahesh
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
Margaj has been examined to prove that sim-card
9920749575 belongs to A-2, and the CDRs disclose that
outgoing calls were seen at 02.31.01, 03.12.23 and 03.18.49
and some more called were made during the night.
In respect of CDR of A-3 Wahid Khan alias Kalu, the
prosecution has examined PW- 27. One Bharat Kup Mishra,
who has stated that SIM card 9769591764 stands in his
name. He had lost the phone with sim card, but he had not
bothered to lodge any report with the police. Except the
statement that he had lost the sim-card, nothing has been
stated by the said witness that would connect the A-3 with
the said sim-card.
Similarly, in case of accused No. 5, namely, Wasim
Shaikh, PW- 26- Mohammad Mehmoob Shaikh, has been
examined to establish the connection of the SIM Card, with
number 9004479612 with accused no.5. According to him,
he had given the SIM Card for the use of A-5, except this
nothing could be elicited from this witness. The prosecution
has failed to establish that this mobile number belongs to
A-5.
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
The CDR of A-7 Bhuvan Hamal indicates that he did not
abscond and continued to do his work. The last call received
by him was at 00.48 hours on 21.09.2013 from mobile
number 9004629880 which does not belong to any of the
accused. After that till 10:19:38 hours, there was no call
made or received from the said cell phone number therefore
the prosecution could not establish the connection of the
accused with the offence.
One Ajay Utekar PW 25 has been examined, to establish
connection of A-8 Dheeraj Panchal with mobile number
8452850970, however investigation revealed that sim-card
with that number was registered in the name of one Manoj
Tadpe and the location of the said number was not traceable,
thus the call details of accused No. 8 connecting with the
offence is not proved by the prosecution. Interestingly, the
CDR of A-9 revealed that, he has not made call to any of the
accused or establish contact with them. In fact, the CDR
discloses that he had dialed number 100 immediately after
the offence.
On the basis of the CDRs and tower location of the
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
cellphones of the accused, the learned Judge has held that, it
conclusively proves that all the accused were present on the
spot during the night and therefore their connection with the
offence stands corroborated by the CDR. However, in our
opinion, the evidence does not conclusively establish that,
those cell phones were used by the respective accused. Thus,
reliance on the CDRs to establish presence of accused on the
place of incident is totally misplaced.
Thus, on the basis of aforesaid evidence, when we
examine case of each of the accused, we find that the
evidence is not sufficient to sustain conviction against them.
There are major discrepancies in the evidence against each of
the accused, which do not permit to hold that, their guilt is
established beyond any doubt.
58. Admittedly, conviction of accused in the offence of rape
can be based on the evidence of prosecutrix alone in view of
the settled principle in Criminal Jurisprudence that evidence
of a prosecutrix in a rape case holds same value as that of an
injured witness. However, while doing so, the evidence should
inspire confidence and should be unblemished and
trustworthy without any lacuna or inconsistency, without
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
leaving any doubt about the complicity of the accused
involved in the offence.
59. In a recent decision, the Hon'ble Supreme Court has
taken a view on the reliability of testimony of prosecutrix in
offences under Section 376 of I.P.C., in Deepak Kumar Sahu
Vs. State of Chattisgrah9, which reads thus:
"5.6. It is an opt-reiterated dictum of law that in cases of
rape, the testimony of the prosecutrix alone may be
sufficient and sole evidence of the victim, when cogent and
consistent, could be properly used to arrive at a finding of
the guilt. In the State of Himachal Pradesh v. Manga Singh,
(2019) 16 SCC 759, this Court in terms stated that
conviction can be rested on the testimony of the prosecutrix
alone.
The conviction can be sustained on the sole testimony of
the prosecutrix, if it inspires confidence. The conviction can
be based solely on the solitary evidence of the prosecutrix
and no corroboration be required unless there are
compelling reasons which necessitate the courts to insist for
corroboration of her statement. Corroboration of the
testimony of the prosecutrix is not a requirement of law, but
a guidance of prudence under the given facts and
circumstances. Minor contractions or small discrepancies
should not be a ground for throwing the evidence of the
prosecutrix."
(Para 10)
5.6.1. It was further asserted that corroboration is not an
essential requirement for conviction in the cases of rape.
It is well settled by a catena of decisions of the Supreme
Court that corroboration is not a sine qua non for conviction
92025 SCC OnLine 1610;
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
in a rape case. If the evidence of the victim does not suffer
from any basic infirmity and the "probabilities factor" does
not render it unworthy of credence. As a general rule, there
is no reason to insist on corroboration except from medical
evidence. However, having regard to the circumstances of
the case, medical evidence may not be available. In such
cases, solitary testimony of the prosecutrix would be
sufficient to base the conviction, if it inspires the confidence
of the court.
(Para 11)
A crime constitutes a public wrong, as it affects not
only an individual but also the collective rights of the
community and is detrimental to society at large. In this
context, the Hon'ble Supreme Court in Dayal Singh v. State of
Uttaranchal10, has observed as follows:
"34. Where our criminal justice system provides safeguards of
fair trial and innocent till proven guilty to an accused,
there it also contemplates that a criminal trial is meant for
doing justice to all, the accused, the society and a fair
chance to prove to the prosecution. Then alone can law and
order be maintained. The courts do not merely discharge
the function to ensure that no innocent man is punished,
but also that a guilty man does not escape. Both are public
duties of the Judge. During the course of the trial, the
learned Presiding Judge is expected to work objectively
and in a correct perspective. Where the prosecution
attempts to misdirect the trial on the basis of a
perfunctory or designedly defective investigation, there
the Court is to be deeply cautious and ensure that despite
such an attempt, the determinative process is not
subverted. For truly attaining this object of a "fair trial",
10 (2012) 8 SCC 263
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
the Court should leave no stone unturned to do justice and
protect the interest of the society as well."
The aforesaid position, however, must be read
alongside the fundamental premise upon which a criminal
conviction rests, that the guilt of the accused must be
proved beyond reasonable doubt by the prosecution
through evidence that is credible and cogent. The accused
need not prove his innocence; it is for the prosecution to
prove his guilt. This burden is discharged only when the
evidence placed before the court is of such quality and
consistency that it leaves no ground for doubt as to the
guilt of the accused. It is against this backdrop that the
principle of reasonable doubt must be understood in its
correct legal sense, not as a technical escape route, but as a
rational safeguard that the law has built into the system to
protect against conviction on uncertain or insufficient
evidence.
The standard of proof beyond reasonable doubt,
therefore, does not demand that the prosecution's case be
flawless or that every conceivable possibility be ruled out.
What is required is that after a careful and dispassionate
consideration of the totality of evidence, the court is left
with a firm and well-founded conviction as to the guilt of
the accused.
Applying the aforesaid legal position to the facts of
the present case, this Court is of the considered opinion
that the doubts arising from the evidence on record are
neither trivial nor peripheral. They are substantial, go to
the root of the prosecution's case, and are firmly grounded
in what the evidence establishes and, significantly, in what
it fails to establish. The prosecution has not discharged its
burden to the degree of certainty that the law demands.
The lacunae and inconsistencies are of such a nature and
magnitude that a reasonable and prudent mind, upon a fair
assessment of the evidence, would be left genuinely
uncertain as to the guilt of the accused. The accused is,
therefore, entitled to the benefit of reasonable doubt."
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
60. In view of the evidence led by the prosecution, and
various judicial pronouncement on the issues, when we
examined the case of the prosecution in an attempt to prove
guilt of each of the accused, we find following inconsistencies
and contradictions in the evidence of prosecution that fall
short to prove the complicity of the accused beyond doubt,
which are as follows:
(i) Accused No.1 Ajay Ghechand : His name does not
appear in the FIR. The blood sample of the accused did not
match with the prosecutrix. His DNA report is negative.
(ii) Accused No.2 - Mahaesh Ramchandra Murgage : His
name does not appear in the FIR as well as statement
recorded under Section 164 of Cr.P.C. His DNA profile did not
match with the prosecutrix. Prosecutrix admit she has not
seen him prior to incident, nor named him in FIR as well as
statement under Section 164 of Cr.P.C.;
(iii) Accused No. 3 - Wahid Quyyum Khan : Apart from
number of material omissions, there is no evidence led by the
prosecution to establish that 'Kalu' is the same person,
namely, Wahid Quyyum Khan. The allegations of insertion of
stick in the private part of prosecutrix by him is not
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
corroborated by medical evidence. The prosecutrix has failed
to mention about insertion of stick by him in her statement
recorded under Section 164 of Cr.P.C.
(iv) Accused No.4 - Dastgir Abdul Khan : His name is not
mentioned in FIR as well as statement recorded under
Section 164 of Cr.P.C., his DNA profile did not match with the
prosecutrix.
(v) Accused No.5 - Wasim Samand Shaikh : No evidence
about specific charge under Section 377 of IPC is proved
against him. Although the DNA profile of the accused no.5
matched with the semen on the petticoat of the prosecutrix it
is a doubtful piece of evidence in view of the version of the
prosecutrix, where she reports that her petticoat was
removed before the sexual assault.
(vi) Accused No. 6 - Manpreetsingh Kashmirsingh Gill :
Prosecutrix has failed to identify him during the TI Parade.
He is not named in the FIR as well as statement recorded
under Section 164 of the Cr.P.C. Although the DNA profile of
the accused no.6 matched with the semen on the petticoat of
the prosecutrix it is a doubtful piece of evidence in view of
the version of the prosecutrix, where she reports that her
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
petticoat was removed before the sexual assault.
(vii) Accused No.7 - Bhuvan Lalbhahadur Hamal : Inspite of
his distinctive features being a Nepali, TI Parade against him
has failed. He is not named in the FIR and the Statement
recorded under Section 164 of the Cr.P.C. The forensic
evidence against him is negative.
(viii) Accused No.8 - Deeraj @ Dheeru Prakash Panchal : In
FIR as well as statement under Section 164 of Cr.P.C.
Prosecutrix named one 'Veeru' and it is not established that
this Veeru is Dheeraj Prakash Panchal. Neither his medical
reports nor the DNA report matches with the prosecutrix.
ix) Accused No. 9 - Vishal Ashwini Sood : Although there
are specific allegation of initiation of sexual assault by
accused no. 9, his DNA profile did not match with the
specimen of petticoat and saree of the prosecutrix. As per
CDR, he has dialed 100 immediately after the incident,
which is inconsistent with natural human conduct.
61. In view of the aforementioned inconsistencies and
contradictions, serious doubts are created about the
complicity of the accused. The prosecution has failed to
Rajeshri Aher
CR. APEAL 229 OF 2017 COMMON, J.ODT
prove the alleged offences against each of the accused,
beyond reasonable doubt. In our opinion, the learned
Additional Sessions Judge, Greater Mumbai has committed
grave error in convicting the accused under Sections
Section 235(1) of Cr.P.C., for offence under Section 376(D)
read with 120(B) of the IPC, Section 376(D) and 120 (B) of
IPC, Sections 366 and 377 read with 120 B of the IPC,
Section 354, read with 120 B of the IPC, Sections 341, 342,
read with 120 B of the IPC and Section 323, read with 120
of the IPC in absence of cogent evidence proving their
respective role in the offence.
In the wake of the observations made hereinabove, we
allow the Appeals of all the Appellants and quash and set
aside the judgment of conviction recorded against them vide
judgment and order dated 22 nd February, 2017, passed by
the Additional Sessions Judge, Greater Mumbai. As a result
of their acquittal, all the accused shall be released forthwith,
if not required to be detained, for any other reason.
{
62. In view of disposal of the Criminal Appeals, all pending
Applications stand disposed off.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
Rajeshri Aher
