AI Structured Summary
Not yet generated for this judgment
Judgment
M.G. Giratkar, J.
1.Appellants have assailed the judgment of conviction awarded by Special Judge, Wardha for the offence punishable under Section 376-D of the
Indian Penal Code, by which they are sentenced to suffer rigorous imprisonment for 20 years and to pay fine of Rs. 10,000/- in default to suffer
rigorous imprisonment for two years.
The case of prosecution against appellants in short is as under.
(i)P.W. 1 victim, aged about 16 years was residing at her paternal aunt's house at Wardha. She was studying in 10th Standard. On 26-9-2014, at about
5.15 to 5.30 a.m., she had gone to pluck the flowers near Gode grounds. When she was plucking flowers, two persons came from behind. They
caught hold her. One boy was wearing black colour shirt and blue colour pant and other boy was wearing yellow colour shirt. Appellant nos. 1 and 2
were the said persons. After catching hold of her, both appellants took her to a Gode ground. She tried to rescue herself. She shouted, but appellant
Vinod gagged her mouth and pressed her throat. Both of them took her inside the Gode ground. She escaped from their clutches but she fell down.
They again caught her. Both of them were saying that ""vxj rqeus djus ugh fn;k rks ekj Mkysaxs"". Appellant Vinod removed her clothes and did sexual
intercourse 3 jg.apeal.87.17.odt with her. She dressed up herself and went to her house. She told her parents about the incident. Her brother searched
both the accused but not found.
(ii)After the incident, she went to police station along with her brother and lodged report, Exhibit 26. She was examined by Medical Officer. Medical
Officer observed that there was sexual intercourse with her.
(iii)Investigating Officer, P.W. 8 API Devkar investigated crime. She came to know from secrete information about the accused. They were arrested
in the night. They were sent for medical examination. Permission was obtained from the Court for identification parade of both the accused. After
getting permission from the Court, letter was issued to the Executive Magistrate/Tahsildar on 6-10-2014. Tahsildar Priti Dudulkar conducted test
identification parade on 8-11-2014. Victim identified both the appellants in presence of panchas. API Devkar sent all the seized property to the
Chemical Analyser and after complete investigation, filed charge-sheet before the Special Court.
(iv)Charge was framed at Exhibit 12. Same was readover and explained to both the appellants. They pleaded not guilty and claimed to be tried. Their
defence appear to be of total denial.
(v)The prosecution has examined following 8 witnesses.
(1)P.W. 1 Rachana Balaji Akhud (Exhibit 25) (2) P.W. 2 Dr. Shilpa Ghanshamji Pande (Exhibit 33) (3) P.W. 3 Amit Anil Pande (Exhibit 39) (4) P.W.
4 Vrushab Vijayrao Deshmukh (Exhibit 46) (5) P.W. 5 Shantanu Pradiprao Bhoyar (Exhibit 49) (6) P.W. 6 Priti Mangesh Dudulkar (Exhibit 56) (7)
P.W. 7 Vijay Janardhan Tenpe (Exhibit 72) and (8) P.W. 8 Ku. Ujjawal Vitthalrao Devkar (Exhibit 80)
(vi)Learned Special Judge has recorded statements of accused/ appellants under Section 313 of the Code of Criminal Procedure. After hearing the
prosecution and defence, learned Special Judge convicted both the appellants for the offence punishable under Section 376-D of the Indian Penal
Code and sentenced them as aforesaid and hence, the present appeal.
3.Heard learned counsel Shri Mir Nagman Ali for the appellants. He has submitted that there was dark at the time of incident. Victim has stated
different identification mark in her evidence.
Test identification parade was not carried out as per the Criminal Manual. Appellants were not the persons who committed rape on the victim. They
are falsely involved in the case. In support of his submissions, learned counsel for the appellants relied on following decisions.
(1)Soni Vs. State of Uttar Pradesh [1982(3) SCC 368], (2) The State of Maharashtra Vs. Dashrath s/o Vishwanath @ Aangrajya Pawar and Ors.
[2017 ALL MR(Cri) 3838] and (3) Dharmendra s/o Laxman Sahare Vs. The State of Maharashtra [2014 ALL MR(Cri) 3196].
4.Learned counsel Shri Ali has submitted that no any blood stain or semen found on the clothes of appellants. There is no evidence to show that
appellant no. 1 committed sexual intercourse with the victim. There is no evidence to show that appellant no. 1 caught hold the victim and taken to the
isolated place. There is no evidence to show about involvement of the appellants.
5.Learned counsel Shri Ali has submitted that the victim has wrongly identified both the appellants in the Court and at the time of test identification
parade. The test identification parade conducted by Naib Tahsildar is not reliable and trustworthy.
6.Learned counsel Shri Ali has submitted that test identification parade was conducted on 8-11-2014 whereas the incident occurred on 26-9-2014, so
there is delay of more than 42 days from the time of incident. Learned counsel has submitted that as per the evidence of victim, there was dark and,
therefore, she could not identify both the appellants. She has wrongly identified both the appellants in jail at the time of test identification parade.
Except the evidence of victim, there is no other evidence. Evidence of victim is not reliable. At last, learned counsel prayed to allow the appeal and to
acquit both the appellants for the offence punishable under Section 376-D of the Indian Penal Code.
7.Heard learned Additional Public Prosecutor Shri M. J. Khan for the State/respondent. He has submitted that evidence of victim P.W. 1 is well
corroborated by the evidence of P.W. 2 Dr. Shilpa Pande. Incident took place on 26-9-2014 at about 5.30 a.m. There was no such dark. Appellant
gave description of the clothes i.e. colour of clothes and other description of the accused persons in the report, Exhibit 26. Incident continued near
about 15-20 minutes and, therefore, she has properly identified both the appellants in test identification parade. She has also identified both the
appellants before the Court.
8.Learned Additional Public Prosecutor has submitted that P.W. 1 has specifically stated that appellant nos. 1 and 2 caught hold her and taken her in
isolated place at Gode ground. She was threatened to kill. Appellant no. 1 removed her all clothes and did sexual intercourse with her. Her evidence is
well supported by Medical Officer.
9.Learned Additional Public Prosecutor has submitted that report was immediately lodged as per printed FIR, Exhibit 27. Information to the police was
given at 7.35 Hrs. on the same day. She was examined by P.W. 2 Dr. Shilpa Pande at about 12.30 Hrs. Learned Additional Public Prosecutor has
submitted that identification before the Court itself is sufficient. In support of his submission, learned Learned Additional Public Prosecutor pointed out
following decisions. (1) Ananta Nathu Dahibhate Vs. State of Maharashtra [2006 ALL MR(Cri) 357], (2) Mohan Chand Vs. State of Uttarakhand
[(2009) 4 SCC 63], (3) Pramod Mandal Vs. State of Bihar [(2004) 13 SCC 150] and (4) Daya Singh Vs. State of Haryana [(2001) 3 SCC 468].
10.Evidence of victim shows that she had gone to pluck flowers at about 5.15 - 5.30 a.m. towards Gode ground. When she was plucking flowers, both
accused caught hold her. They took her towards Gode ground. She tried to rescue herself. When she shouted, accused no. 1 Vinod gagged her mouth
and pressed her throat. Both the appellants took her inside Gode ground. Anyhow, she escaped from their clutches. While running, she fell down.
They again caught her. Both of them threatened her saying that if she did not allow for sexual intercourse, then she would be killed. She was
frightened. Appellant no. 1 undressed her. Accused no. 1 did sexual intercourse with her. Thereafter both of them ran away.
11.Evidence of victim is reliable and trustworthy. There is no reason to depose against both the appellants who were unknown to her before the
incident. She immediately came to the house and narrated incident to her cousin brother/relative (Shantanu Bhoyar, P.W. 5).P.W. 5 Shantanu has
stated that victim came to house at about 5.45 a.m. and stated him that when she had been to pluck the flowers, two persons caught hold her. They
took her towards Gode ground and committed rape on her. Immediately, Shantanu went to search both of them, however, they could not find. Victim
immediately went to police station at about 7.30 a.m. and lodged report. Timing of report, Exhibit 26 shows that it was received at about 7.25 a.m.
Report was registered at about 7.35 a.m. Thereafter victim was sent for medical examination.
12.Medical Officer, Dr. Shilpa Pande (P.W. 2) examined victim at about 12.30 Hrs. on 26-9-2014. She has proved M.L.C., Exhibit 36. She found
following injuries.
(1)Abrasion behind left ear of size 0.5 x 1 cm. It is super facial in nature.
On local examination of genitals of victim of labia major oedema and redness present, on labia minora redness present, on clitoris mild redness present.
On fourchette and introitus/vagina hymenal tear present at 3 O'clock position and minimal bleeding seen.
13.Evidence of Medical Officer Dr. Pande clearly shows that there was evidence of sexual intercourse with the victim. It appears that it was first
intercourse with the victim because hymen was torn and blood was found on the private part.
14.Investigating Officer API Devkar has stated that letter was sent to Naib Tahsildar on 6-10-2014 for conducting test identification parade after
obtaining permission from the Special Court. P.W. 6 Naib Tahsildar Dudulkar conducted test identification parade on 8-11-2014. Victim identified both
the appellants in presence of panchas. Detail panchanamas were recorded vide Exhibit Nos. 58 and 59.
15.Learned counsel for the appellants much more urged before us that appellants were not the persons who committed sexual intercourse with the
victim. Learned counsel has pointed out evidence of victim and submitted that she herself stated in her evidence that she fell down because there was
dark. This itself shows that she could not identify properly real culprits. Test identification parade was not conducted properly. There was delay of
more than 42 days after the incident, hence, test identification parade conducted by Naib Tahsildar 11 jg.apeal.87.17.odt Dudulkar is not relied.
Learned counsel has submitted that in view of the cited judgments, appellants are entitled for acquittal.
16.Learned counsel has pointed out decision in the case of Dharmendra Laxman Sahare Vs. The State of Maharashtra (cited supra) in which Division
Bench of this Court has observed as under :
Indian Penal Code Ss. 302, 201 Murder, Conviction, Sustainability : Prosecution case that accused-husband of deceased had called her at lodge where
he obtained room by disclosing false identity and then committed murder of his wife. No report of expert or fingerprints expert produced, though
several articles were seized from room. Difference in photograph in notice circulated and sketch of accused is also accepted by IO. Identification
parade was held in defective manner, relevant guidelines not followed. Evidence of witnesses reveal that accused was brought to lodge once before
holding of identification parade. Possibility of these witnesses having seen accused before identification parade, cannot be ruled out. Hence, only on
basis of a defective identification parade, conviction of accused is unsustainable. Set aside.
17.The facts in the cited decision is very much different. There was difference in photographs about sketch of culprit. Identification parade was held
in defective manner. The accused was brought to lodge once before holding of identification parade. Therefore, it was held that possibility of
witnesses having seen accused before identification parade, cannot be ruled out. Only on the basis of defective identification parade, conviction of
accused is not proper. In the present case, victim was raped. Such incident cannot be forgotten by victim. It appears from the medical evidence that it
was the first incident of sexual intercourse. Both the accused were with her for about 15-20 minutes. She has specifically given description in her
report, Exhibit 26. There is no evidence to show that victim had seen the appellants in the police station or anywhere before the identification parade.
Nothing is brought on record in the cross-examination to show that she falsely identified the appellants. Hence, the cited decision is not applicable to
the case in hand.
18.Learned counsel Shri Ali relied on the decision of Soni Vs. State of Uttar Pradesh (cited supra). Hon'ble Supreme Court has observed as under :
After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The
conviction rests purely upon his identification by five witness, Smt. Koori pritem Singh, Kewal Chaitoo and Sinru, but it cannot be forgotten that the
identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade
throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be
remembering the racial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction
of the appellant. We therefore allow the appeal and acquit the appellant.
Cited decision is on different footings. Evidence of victim shows that victim was plucking flowers. It was time of 5.15 - 5.30 a.m. on 26-9-2014. This
itself shows that there was no such dark. It was time of early in the morning and, therefore, there was no difficulty to the victim to identify both the
appellants, hence, cited decision is not helpful to the case of the appellants.
19.Learned counsel for the appellants pointed out decision in the case of The State of Maharashtra Vs. Dashrath s/o Vishwanath @ Aangrajya
Pawar & ors. (cited supra). The Division Bench of this Court observed as :
Indian Penal Code (1860), Ss. 394, 302, 307, 34 Evidence Act (1872), S. 9 Robbery, murder and attempt to murder. Appeal against acquittal, incident
occurred in night. No evidence showing that there was any source of light in that area. Accused immediately arrested within couple of days. Test
identification parade conducted after more than two months from date of arrest. No explanation offered for such delay. Guidelines mentioned in
manual for conducting TIP, not followed. Witness whose nose-ring was forcibly pulled by accused neither examined nor sustained any injuries.
Serious omissions, contradictions and improvements in evidence of witnesses. Finding of acquittal not perverse. No interference.
20.In the cases of Pramod Mandal Vs. State of Bihar and Mohan Chand Vs. State of Uttarakhand (cited supra), Hon'ble Supreme Court has
observed that there is no fixed rule as regards the period within which TI parade must be held or number of identifying witnesses. It is for the Court to
decide on the facts and circumstances of the case and evidence on record whether to accept or reject the evidence of identification. If substantive
evidence of eye witnesses come in Court is found trustworthy and without any motive, then absence of corroboration by test identification parade is
immaterial. It is also observed by Hon'ble Supreme Court that delay for conducting test identification parade is not material. Hence, in view of
observations of Hon'ble Supreme Court, submission of learned counsel for the appellants in respect of identification cannot be accepted.
21.The evidence of victim, P.W. 1 is well corroborated by evidence of P.W. 2 Dr. Pande. Her evidence shows that it was a first coitus with the
victim and, therefore, hymen was ruptured and she had bleeding injury on her private parts. Observations of Medical Officer show that genitals of
victim on labia majora : oedema and redness present, on labia minora : redness was present, on clitoris : mild redness present. On fourchette and
introitus/vagina hymenal tear present at 3 O'clock position and minimal bleeding seen. As per the observations of Medical Officer, clothes of victim
found soil on back side. So also, soil particles were present on back, buttocks, perineum and back side of left ear. It shows that victim was raped on a
ground.
22.Victim has stated that she tried to rescue from the clutches of appellants. She fell down and sustained injury to her ear. This evidence is also
corroborated by medical evidence. Dr. Pande has found abrasion behind left ear of 0.5x1cm. It was superficial in nature.
23.In the case of Ananta Nathu Dahibhate Vs. State of Maharashtra (cited supra), the Division Bench of this Court observed as under.
Prosecutrix alongwith her girl friend on the way to attend tuition classes in the morning, were passing through lonely and isolated place. Accused on
pretext of asking direction chased, slapped, assaulted and forcibly committed rape. Due to reluctance, complaint lodged after two days giving details of
accused and incident in question. Accused arrested and identification parade took place. Failure of Special Executive Magistrate to note description of
accused having black mark on his cheek is not of any consequence. Non-production of accused in court for identification by witnesses was not
objected during trial. Special Executive Magistrate gave details regarding manner in which identification parade was held. No infirmity found in the
parade. Confessional statement by accused made before SEM inspite of sufficient opportunity and informing him of consequences of making it.
Evidence of prosecution supported by doctor, Chemical Analysis showing same human blood found on clothes. Case proved beyond reasonable doubt.
Under the circumstances, no reason to interfere with the conviction and sentence awarded by trial court.
Nothing in the evidence of Executive Magistrate, panch or victim to disbelieve their evidence about identification of accused.
24.In the present case, the evidence of victim and other witnesses show that nothing is brought on record in their cross- examination to disbelieve their
testimony. Victim has stated her date of birth as 2-7-1999. Birth certificate issued by Municipal Council, Wardha is at Exhibit 29. Medical officer Dr.
Pande also stated that victim was in between 14 to 16 years. Date of birth of victim is 2-7-1999. Incident took place on 26-9-2014. This itself shows
that victim was minor i.e. below 18 years of age at the time of incident.
25.It is proved by evidence of victim that appellant nos. 1 and 2 caught hold the victim and taken her in Gode ground. Appellant no. 1 did sexual
intercourse with her. Offence punishable under Section 376-D of the Indian Penal Code is proved by the prosecution. Learned trial Court rightly
appreciated the evidence of victim and other witnesses. Learned trial Court rightly convicted both the appellants for the offence punishable under
Section 376-D of the Indian Penal Code. Impugned judgment is well reasoned. Hence, we proceed to pass the following order.
ORDER
(i)The appeal is dismissed with no order as to costs.
(ii)R & P be sent back to the trial Court.