Criminal Appeal No.92 of 2002

8th April, 2004

Petitioner Counsel: Shri. V. D. GUNALE
Respondent Counsel: Shri. S. D. KALDATE

Cases Cited:
Sewakram s/o. Jangali Tembhare Vs. State of Maharashtra, 2003 ALL MR (Cri) 688 [Para 8]
Tukaram Vs. State of Maharashtra, AIR 1979 SC 185 [Para 9]
State of Maharashtra Vs. Teju @ Tejsingh @ Tejkumar, 2004 ALL MR (Cri) 675 [Para 10]
Pratap Misra Vs. State of Orissa, AIR 1977 SC 1307 [Para 11]
State of Punjab Vs. Gurmit Singh, (1996)2 SCC 384 [Para 12]
State of Maharashtra Vs. Suresh Nivrutti Bhusare, 1997 ALL MR (Cri) 814=1997 Cri.L.J. 200313 [Para 13]

JUDGMENT

JUDGMENT :- Heard learned counsel for the appellants/original accused and also learned A.P.P. for the respondent/State. Perused the records including evidence of prosecution witnesses and the Judgment of the trial Court with the assistance of learned counsel for the parties.

2. Both the appellants were tried for offences under Sections 366, 376 and 506 read with Section 34 of the Indian Penal Code for having in furtherance of common intention abducted prosecutrix, Sudhamati w/o. Goroba Deorkunde (P.W.1), a married woman with the intention to commit rape on her and also held threats to her life and then committed rape on her. The learned Addl. Sessions Judge, Udgir, Camp at Ahmedpur, convicted both the appellants by his Judgment dated 25th January, 2002 for offence under Sections 366, 376 and 506 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for six months and sentenced to suffer rigorous imprisonment for one year each and to pay fine of Rs.200/- each, in default to suffer simple imprisonment for 15 days each respectively. This judgment of conviction and sentence passed against the appellants is the subject matter of challenge in this appeal.

3. The facts of prosecution case lie in narrow campass and may be stated in brief as follows :

The victim of alleged sexual assault is married woman named Sudhamati (P.W.1) having two children born of her husband Goroba (P.W.2). The incident took place on the night of 15-05-1997 when Sudhamati was sleeping in the court yard of her house with her children while her husband and his relatives including Rukhminibai (P.W.3), wife of his brother, had gone to a temple where a discourse was going on. It was around 11 to 12 at night both the appellants entered the premises where Sudhamati was sleeping and appellant no.1 Narhari s/o. Kisan Khodave, immediately lifted the victim on his shoulder and when she tried to raise shouts and resisted, appellant no.2 Narhari s/o. Rajaram Shirsat caught hold her hands and put a piece of cloth in her mouth and then she was brought to a field which was on the bank of a river and appellant no.1 threw her on the ground and at once proceeded to have sexual intercourse with her by lifting her saree in spite of resistance what so ever she could offer. It is further the prosecution case that after appellant no.1 spent his lust, it was appellant no.2 expressed his desire to have sexual intercourse with the prosecutrix, when appellant no.1 told that the prosecutrix should be released then and her husband and other persons might get alerted and saying so both the appellants left the field leaving the prosecutrix there. The prosecutrix then in that situation rushed to her house and when her husband came, he noticed that the prosecutrix was weeping and when he asked her as to what had happened, she disclosed about what the appellants had did stating that appellant no.1 committed rape on her. Their relative Rukhminibai also came on hearing the cries of prosecutrix and it was also disclosed to her as to what the prosecutrix had to suffer at the hands of the appellants. Then, immediately, these persons went to Seetaram Shirsat, Police Patil of village (P.W.5) and disclosed to him as to what had happened to the prosecutrix who immediately took the prosecutrix accompanied by her husband to Kingaon Police Station where they reached around 3.00 a.m., on 16-05-1997 when police station officer recorded her complaint Exh.30 and registered offence at C.R. No.28/1997 and immediately sent her to Civil Hospital, Latur where at about 7.00 p.m. Doctor Sandhya Shiral (P.W.4) examined her and issued certificate (Exh.18) about her examination and findings. The Investigating Officer Prakash Giri (P.W.9) who was then P.S.I. carried out some part of the investigation including visiting the place of occurrence and drew panchanama of the house (Exh.27) and that of the place where actual incident of rape was committed vide (Exh.28). The case was further investigated by one Suresh Gaikwad who was then Police Sub-Inspector attached to Kingaon Police Station. After completing the investigation and receipt of the report of C.A., charge-sheet came to be filed in the court of Judicial Magistrate, First Class, Ahmedpur who in turn committed the case to the Court of Sessions which was tried by Addl. Sessions Judge, Udgir while camp at Ahmedpur.

4. The appellants pleaded not guilty to the charge and claimed to be tried. Their defence is that of total denial and they have contended that they have been falsely implicated on account of enmity with the Police Patil as well as Goroba the husband of prosecutrix. At the trial the prosecution examined in all nine witnesses and needless to say that the evidence of prosecutrix Sudhamati was the evidence, solitary as it was, as direct evidence on which the prosecution had banked upon. The trial court accepted the evidence of witness Goroba and witness Rukhminibai to spell out the conduct of prosecutrix she having made disclosure of the happening of the incident to them immediately when they came home from the temple. Amongst the article seized was petticoat of the prosecutrix which was sent to Chemical Analyst for examination and as per the report of C.A. (Exh.34) three semen stains have been detected. However, the blood group of semen detected could not be determined as the results were inconclusive. Admittedly, Vaginal swab was taken by the Medical Officer when prosecutrix was examined. The report of C.A. (Exh.33) shows that no semen is detected on Exhs.2 and 3. The Medical Officer Dr. Sandhya Shiral (P.W.4) in her evidence stated that she has opined on examination of the patient that she can not comment on intercourse as vagina was roomy, but spermatozoa are absent in microscopic examination or vaginal swab. But she made it clear in her examination-in-chief that even in the absence of spermatozoa there may be possibility of intercourse that is why in her cross-examination by the defence to a suggestion that was put to her, she has stated, "I do not agree that absence of spermatozoa in microscopic examination means there was no intercourse". The prosecution examined police Patil Seetaram Shirsat (P.W.5) who corroborated the evidence of witness Goroba and prosecutrix Sudhamati. He has stated in his evidence that Sudhamati told him that Narhari raped her. It is no doubt true that what has been disclosed to this witness by prosecutrix in his evidence, can not be accepted as direct evidence on the factum of rape. It is certainly hear say evidence. Even in respect of the evidence of Goroba, the husband of prosecutrix, the position remains the same. But then the trial court has rightly accepted their evidence as the immediate conduct of the prosecutrix in making disclosure to these witnesses. It must be noted that according to version of witness Seetaram after the 'Kirtan' was over when he came home at about 12.00 midnight Sudhamati, her husband and her husband's brother came to his house and then Sudhamati told him that Narhari raped her. Having regard to the sequence of events that had taken place, immediate disclosure by the prosecutrix to this witness is a relevant circumstances, and though the trial court has not said so specifically in his Judgment but it has to be said that the trial court has accepted the evidence of these witnesses in correct perspective. The disclosure by the prosecutrix to these witnesses is relevant as a conduct of the prosecutrix which naturally lends assurance as to what she has stated before the court and also what has been reflected in the complaint Exh.13. So ultimately, the trial court accepting the evidence of prosecutrix and these witnesses and considering the attending circumstances and also rejecting the defence convicted both the appellants and also imposed punishment as stated above. Hence, this appeal.

5. Before we consider the submissions of learned counsel for the parties, it is necessary to note few facts which are either not disputed or established on the evidence. The prosecutrix Sudhamati was a married woman having two children. She was no doubt examined by Medical Officer on 16-05-1997 at about 7.00 p.m. and in the certificate which Dr. Sandhya Shiral (P.W.4) issued vide Exh.18, she could not give any comments on rape and the reason for not expressing her candid opinion was that the Vagina of prosecutrix was roomy. She did not find spermatozoa or vaginal swab even on microscopic examination. But in spite of that she has made a guaranteed statement that even in the absence of spermatozoa there may be possibility of intercourse. In her cross-examination she has denied the suggestion that absence of spermatozoa in microscopic examination means there was no intercourse. It is not disputed that the prosecutrix did not suffer any injury on her private part and on other part of her body. The prosecutrix in her evidence has stated the manner in which she was carried by appellant no.1 from her house to the field and then appellant no.1 committed sexual intercourse on her in spite of some resistance by her. She has stated in clear words that the appellant no.1 has inserted his penis in her Vagina and in that manner he had sexual intercourse with her for about five minutes. As per the report of C.A. in respect of examination of petticoat (Exh.34), three semen stains were detected. It is true that in vaginal swab as per the report of C.A. Exh.33 no semen has been detected. That is of no consequence, as the Medical Officer has emphatically stated in her evidence that even in the absence of detection of spermatozoa there is possibility of rape. Therefore, finding of semen stains on the petticoat of the prosecutrix lends corroboration to the version of prosecutrix Sudhamati that appellant no.1 had sexual intercourse with her. It is also in her evidence that appellant no.1 lifted her while she was in sleep and when she woke up she raised shouts and offered resistance when she was being taken out from her house but it was appellant no.2 who held her hands and put a piece of cloth in her mouth, which rendered fruitless her resistance. This evidence of prosecutrix though she was subjected to cross-examination, remained undisturbed. It is also pertinent to note that prosecutrix immediately lodged complaint which was on the basis of her statement recorded at 3.05 on 16-05-1997. It means that leaving scope to the variance of timing as pointed out by the learned counsel for the appellants, fact remains that prosecutrix after having disclosed about the incident of rape to her husband and Police Patil, immediately, rushed to Kingaon Police Station, where her complaint was lodged. It is in this sense what has been stated in the report Exh.13 was the out come of immediate disclosure by the prosecutrix and her evidence before the court is substantial intoned that what has been disclosed by her in her statement Exh.13. This was also found to be intoned that what has been stated by her husband Goroba and Police Patil and their evidence before the court. In substance her evidence gains corroboration from the contents of the complaint (Exh.13) as well as what has been stated by the witness before the court.

6. It is no doubt true that defence has disputed and controverted the version of the prosecutrix in respect of the incident of rape. It is no doubt true that the evidence of both the witnesses Goroba and Seetaram Shirsat Police Patil has been controverted by the defence and as stated earlier as per the defence on account of dispute and rivalry vis-a-vis Police Patil and complainant on one hand and the appellant no.1 on the other, appellants have been implicated in this case. The complainant as well as the witnesses have stoutly denied the suggestions. The trial court on appreciation of evidence and having regard to the circumstances attending the case including the conduct of witnesses has rightly discarded the defence. I have also carefully assessed the evidence of prosecutrix as well as that of these two witnesses in the light of the suggestions made by defence. In my opinion the defence version is not only false but also not plausible. Let us assume for the sake of discussion that there was some dispute as suggested by the defence, but complainant and her husband who are persons of low strata of the community in the nature of things would not venture to make a false claim of accusation against the appellants and that too of a serious nature which is at the stake of the chastity of the prosecutrix, a woman married having two children. That apart, the sequence of events that has taken place, the conduct of complainant in reporting the matter to the police, absence of her husband in the house when complainant was taken away forcibly by the appellants, lends assurance to the credibility of the version of complainant.

7. From the evidence on record and particularly from the version of complainant prosecutrix Sudhamati, the factual position that emerges and it is also fortified from the circumstances, attending the case including what has been reflected in the complaint (Exh.13), appellants no.1 and 2 removed the prosecutrix from her house at night and brought to the field where the alleged incident of rape occurred. In connection with the incident of abduction appellant no.2 was with appellant no.1 right from the beginning. There is consistent version that both the appellants entered the court yard of prosecutrix's house and when appellant no.1 after having physically lifted, placed on his shoulder and when she offered resistance as much as she could and tried to raise shouts, it was appellant no.2 who caught hold her hands and gagged her mouth by placing a piece of cloth in her mouth. As regards the second part of incident, admittedly, it was appellant no.1 who committed sexual intercourse with the prosecutrix. It is true that appellant no.2 was present there. But it is not the case of prosecution that appellant no.2 also had sexual intercourse with her. What has come on record in the evidence of prosecutrix is that after appellant no.1 finished his act of sexual intercourse, it was appellant no.2 expressed his desire to have sexual intercourse but it was appellant no.1 who did not agree to that having said that the prosecutrix should be released now as the persons in the vicinity were likely to come there. The learned A.P.P. giving much emphasis on the fact that the appellant no.2 took part in abducting the prosecutrix and also did the positive act of holding her hand and putting a piece of cloth in her mouth so as to abstain her from raising shouts and further having expressed his desire to have sexual intercourse with the prosecutrix after appellant no.1 has satisfied his lust, this all suggested that the appellant no.2 also intended to commit rape and, therefore, with his active participation in abducting the prosecutrix with the intention to commit rape, he should be held liable for commission of rape by the force of section 34 of the Indian Penal Code. I do not think that with the factual situation that prevailed and when admittedly appellant no.2 did not have sexual intercourse with the prosecutrix, though abduction of the prosecutrix was above wholly by both the appellants in pursuance of the common intention to sexually seduce her, appellant no.2 could also be said to have committed rape by the force of Section 34 of the Indian Penal Code. In my opinion, there is no evidence that when appellant no.1 committed actual act of sexual assault on prosecutrix, appellant no.2 did any act either of holding the prosecutrix, physically or by putting her under threats as it was done by appellant no.1 or he has done any act to facilitate appellant no.1 to commit rape or to cause abduction to commit rape. In such situation, I am of the view that the trial court has committed an error in holding appellant no.2 guilty for offence under Section 376 of the Indian Penal Code.

8. The learned counsel for the appellant vehemently contended that having regard to the fact that the prosecutrix was married woman and that she has not suffered any injury on her person much less on her back even though she was thrown on the grassy ground and having regard to the medical evidence, it can be inferred that if at all appellant had sexual intercourse with the prosecutrix, it was with her consent. To substantiate this submission, the learned counsel placed reliance on decision of our High Court in Sewakram s/o. Jangali Tembhare Vs. State of Maharashtra (2003 ALL MR (Cri) 688). In the said case, as per prosecution there was rape committed on married woman having children by the accused. The defence of the accused was of total denial. It is true that the prosecution has to prove that intercourse occurred without the consent of the raped victim. In that case, total denial by the accused did not affect the duty and requirement of the prosecution to prove all ingredients of the offence. In that case no injuries were found on the person of victim and the Doctor has not given opinion that victim was raped. In that situation, the court found that consent could not be ruled out and as such element of doubt has crept in the prosecution case and of which benefit was given to the accused.

9. It is significant to note that for holding so by our High Court in the above referred decision reliance has been placed on the decision of Apex Court in Tukaram Vs. State of Maharashtra (AIR 1979 Supreme Court 185). In that case, admittedly, there was sexual intercourse with the prosecutrix. It was accused who was police constable, after leaving the police station accompanied the prosecutrix, who further left the company of her companions, who were no others than her brother, her aunt and her lover and then had sexual intercourse with the prosecutrix. In that case, the case of the prosecution was that the consent of the prosecutrix was obtained by putting her in fear. The defence of the accused was that of denial. But these circumstances, attending the case were found to be negativing the existence of fear and story of passive submission. It was in that context that the Apex Court found that the appellant therein did not commit offence of rape in that situation. The position more of less was the same so far as the case before our High Court in the above referred decision. There was no evidence of rape. No injuries were found. It was in that situation though there was defence of denial the possibility of consent and sexual intercourse by the appellants with her consent could not be ruled out. The position in the case before hand is entirely different. The fact that the prosecutrix made disclosure about the incident of rape to her husband and then to the Police Patil at deadly hours of the night and then all of them immediately rushed to the Police Station and lodged complaint, certainly indicate that in the event of sexual intercourse which was had with the prosecutrix she was not consenting party. If we take into consideration the timings, with variation apart, it is certain that there was no scope for the prosecutrix and her husband to concoct false theory of implicating the appellants, as I have said earlier there was no reason even for the prosecutrix and her husband to implicate the accused falsely. That apart, having regard to serious nature of the offence and the fact that the prosecutrix was a married woman, it does not stand probable and plausible that a false case would be foisted on the appellants on account of alleged rivalry or enmity as suggested by the defence.

10. The learned counsel for the appellants with all eagerness on his part and to emphasise his submissions, placed reliance on the decision of Division Bench of our High Court, of which myself was one of the member and the Judgment is delivered by me. The decision is reported in State of Maharashtra Vs. Teju @ Tejsingh @ Tejkumar (2004 ALL MR (Cri) 675). It was State's appeal challenging the order of acquittal of the respondent for offence under Section 376 of the Indian Penal Code. The respondent was also tried for offence under Section 302 for committing murder of the prosecutrix. The trial Court though acquitted respondent of offence under Section 376 of the Indian Penal Code, convicted him for offence under Section 302 of the Indian Penal Code and sentenced him to death. The matter reached in the High Court wherein (i) conviction and sentence of death for offence under Section 302 of the Indian Penal Code was challenged by independent appeal, (ii) acquittal for offence under Section 376 of Indian Penal Code was challenged by the State and (iii) confirmation case so far as the death sentence was concerned. The decision that has been referred to was relating to the appeal against acquittal. It has been held by me that absence of medical evidence showing that the rape was committed on victim, other circumstances of presence of the accused and his conduct of running away, how so ever incriminating it may be, is not sufficient to infer that the accused had sexual intercourse with the victim. The evidence in that case which was incriminating in nature was only the presence of the accused at the place where dead body of the victim was placed in a ditch on the bank of a river and the accused was pelting stones on the body. It was revealed that the post-mortem of the body was made, that rape had been committed on the victim. But there was no evidence much less medical evidence to show that the rape was committed. It was in that context that the Division Bench has held that these circumstances were not sufficient to hold the accused guilty for the offence of rape though his presence there and his act of throwing stones, is sufficient to hold him guilty for committing murder. Therefore, it was not that merely because there was absence of medical evidence, the High Court has held in that case that rape was not committed.

11. The learned counsel placed reliance on the decision of the Apex Court in Pratap Misra and others Vs. State of Orissa (AIR 1977 Supreme Court 1307), wherein on medical evidence the Apex Court has said that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused. The Doctor who has examined the victim was in a best position to depose about the medico legal aspects of the offence committed on the victim. In that case, on the basis of the absence of any injuries either on the accused or the prosecutrix, the Apex Court found that the prosecutrix did not put any resistance to the alleged rape committed by the accused and, therefore, the only irresistible inference therefrom was that she was a consenting party and that was reinforced by other circumstances in that case. In the case before hand, no doubt the prosecutrix Sudhamati had sustained no injuries on her person. The learned counsel giving much emphasis on the fact that no injury, nor even a simple scratch or abrasion was found on her back, negatives the theory of sexual intercourse having taken place against her consent. It is very difficult to hold so even accepting what has been observed by the Apex Court in the decision referred by the learned counsel on the basis of the fact finding position that prevailed in the case. I have already made clear from factual position the conduct of the prosecutrix in immediately making disclosure about the commission of the rape on her and also of lodging the complaint immediately in the police station accusing the appellants for having committed rape on her. We may refer to the findings of the C.A. about detection of semen stain on the petticoat of the prosecutrix. I am conscious of the fact that the result of detection of blood in the semen is inconclusive. That may not, therefore, alone be sufficient to hold appellant no.1 as the person who committed the rape. But having regard to the version of complainant who has identified un-mistakenly the appellant no.1 as the person who committed the rape and to that effect he has been named as perpetrator of the crime in the complaint totally ruled out the possibility of sexual intercourse being had with the prosecutrix by any other person. It is not even the case that after this episode, the prosecutrix who was at home her husband had intercourse with her. On the other hand, the sequence of events that the timings as has been stated by the witnesses including the prosecutrix did suggest that there was no time for manipulating things to foist a false charge of rape against the appellants. It has come in the evidence that when appellant no.1 had sexual intercourse with the prosecutrix she was put in fear. She has stated so in her evidence. Much has been made about the absence of recovery of knife to which a reference has been made by the prosecutrix in her evidence before the court. But considering the over all evidence of the prosecutrix, I do not think that much importance could be given to the fact that no knife was recovered nor there is any thing stated in the complaint Exh.18. The fact remains that the prosecutrix was not consenting party. It is not that the prosecutrix after having lifted by the appellant no.1, as if consenting to the accused to have sexual intercourse readily accompanied them. Nothing has been suggested even to the prosecutrix to spell out that she was a consenting party. In this connection it is very significant to note that the defence has suggested that the prosecutrix had sexual intercourse with other persons. There is also suggestion to her by the defence that no rape was committed and these suggestions stoutly denied by her. None the less facts remains that semen stains have been found on her petticoat. The prosecutrix being used to intercourse as she was a married woman having two children by stretch of imagination even there had been force while taking intercourse, she could suffer no injuries on her private part. In such situation even if there was sexual intercourse by the accused, against her will despite of her resistance, absence of injuries on her back or possibility thereof can not be ruled out. Therefore, no mathematical conclusion can be drawn because of absence of injuries on the person of prosecutrix that either no rape was committed on her or if rape was committed she was consenting party. The attending circumstances, undoubtedly indicates that rape was committed on her.

12. Let us now consider the decision relied upon by the learned A.P.P. of the Apex Court in State of Punjab Vs. Gurmit Singh and others ((1996)2 Supreme Court Cases 384). The learned A.P.P. with emphasis placed reliance on the observations of the Apex Court that in cases involving sexual molestation a duty is cast on court to deal with such cases with utmost sensitivity and while appreciation of evidence minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. The Apex Court has said "the testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable". It is well settled by the Apex Court in catena of decisions that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. The Apex Court has said "Why should the evidence of a girl or woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape". The principle laid down by the Apex Court in this case is applicable on all fours in the case before hand. That is why, I have given emphasis in earlier part of Judgment on the conduct of the prosecutrix. Defence has utterly failed to show as to why or what was the tangible reason for the prosecutrix or her husband to make false allegations against the appellants. It is for this reasons that the discrepancy or inconsistency which the learned counsel for the appellant has pointed out in his argument carry no weight much less that is sufficient to outweigh the credibility of the evidence of prosecutrix. Therefore, once it is found that the entire core of testimony of the prosecutrix is sufficient to satisfy judicial conscience, minor discrepancies here and there, not touching the basic fabric or core of the testimony of the prosecutrix have to be excused safely.

13. A decision of our High Court in State of Maharashtra Vs. Suresh Nivrutti Bhusare and others (1997 Cri.L.J. 2003 : [1997 ALL MR (Cri) 814]), relied upon by the learned A.P.P., wherein there was no medical evidence to corroborate the version of the prosecutrix that rape was committed on her. The prosecutrix was a married woman, therefore, there was no injury on her private part in spite of the fact that rape was committed on her. In that context, this court held that the prosecutrix being married lady was bound to be used to sexual intercourse and as such medical witness could not opine whether she was raped and in such a case it could not be said that claim of prosecutrix that she was raped stood disproved by absence of medical evidence.

14. As stated earlier in the case at hand though prosecutrix was examined immediately after the occurrence, the Medical Officer could not trace out of medical evidence such as injuries on her person or even the absence of spermatozoa in microscopic examination or vaginal swab. But then when Medical Officer has said that absence of spermatozoa can not be construed as that the prosecutrix or the woman was not raped. Therefore, applying the same analogy or parameters as it could be merely because of absence of any injury on her person and private part it can not be said that no intercourse has taken place, nor it can be said that if intercourse had taken place the prosecutrix was consenting party.

15. So after assessment of the evidence on record and having regard to the legal position as has been stated above it is established beyond reasonable doubt that appellants no.1 and 2 have abducted prosecutrix from her house by use of force or threats with intention to have sexual intercourse with her and that appellant no.2 did act or did play positive role of holding her hands and having gagged her by putting a piece of cloth in her mouth and then after having brought her in the field appellant no.1 has committed rape on her by having sexual intercourse with her, putting her under threats. So involvement of appellant no.2 is only in respect of the offence of causing abduction of the prosecutrix. He has neither caused threats, nor committed sexual intercourse on her. This fact is admitted by the prosecution. Therefore, appellant no.2 can not be found guilty for offence under Sections 376 and 506 of the Indian Penal Code. However, his conviction for offence under Section 366 read with Section 34 of the Indian Penal Code as held by the trial court is justified. So far as appellant no.1 is concerned, the trial court has committed no error in holding him guilty for the offence under Sections 366, 376, 506 of the Indian Penal Code.

16. The appellant no.2 has been sentenced to rigorous imprisonment for five years and to pay fine of Rs.500/- in default to suffer simple imprisonment for four months for offence under Section 366 of the Indian Penal Code. Taking into consideration the part played by this appellant restricted as it was, I feel that substantive sentence as awarded by the trial court is not justified. It is borne on the evidence on record that the appellant no.2 is in custody from 22-08-2000 to 06-09-2000 and after conviction he was in jail from 25-01-2002 till today. The learned counsel for the appellant has made a statement that the appellants have no criminal record of the past. Taking into consideration the fact that appellant no.2 is 30 years old, I feel that sentence for offence under Section 366 of the Indian Penal Code shall be reduced to the period already undergone.

17. So far as appellant no.1 is concerned, he was in custody from 16-06-2000 to 24-07-2000 and then in jail from 25-01-2002 till this date. Having regard to un-blemished record of past but at the same time considering the serious nature of the crime, he has committed the substantive sentence for offence under Section 376 of the Indian Penal Code is reduced to 5 (Five) years, would meet the ends of justice.

18. In the result, the appeal is partly allowed.

19. Conviction of appellant no.2 Narhari s/o. Rajaram Shirsat for offence under Sections 376 and 506 of the Indian Penal Code and sentence thereunder passed by the trial court is set-aside. While maintaining his conviction for offence under Section 366 read with Section 34 of the Indian Penal Code, his sentence is altered to the period already under gone, by maintaining the sentence of fine which he has already paid.

20. The appellant no.2 Narhari s/o. Rajaram Shirsat be released forth with if not required in any other case.

21. The conviction of appellant no.1 Narhari s/o. Khodave for offence under Sections 366, 376 and 506 of the Indian Penal Code is confirmed. However, the substantive sentence for offence under Section 376 of Indian Penal Code, is reduced to Rigorous Imprisonment for 5 (Five) years only, with liberty to have set off of period being in custody during trial and in jail after conviction. The sentence for an offence under Sections 366 and 506 of the Indian Penal Code and also the sentence of fine, awarded by the trial court is maintained.

22. The substantive sentences to run concurrently.

Appeal partly allowed.