Criminal Appeal No.70 of 1998,Criminal Appeal No.212 of 1998,Criminal Appeal No.305 of 1998

10th October, 2006

Petitioner Counsel: Shri. HABIBUDDIN AHMED & JUNAID AHMED
Respondent Counsel: Shri. D. M. KALE

JUDGMENT

JUDGMENT :- Appellants Pratik and Sudesh in Criminal Appeal No.70/1998, Prithviraj in Criminal Appeal No.212/1998 and Munna & Chhotu in Criminal Appeal No.305/1998 have filed these appeals in order to take exception to their convictions for the offences punishable under Sections 376(2)(g), 366 r/w 34, 456 r/w 34, 506 - II r/w and 354 r/w 34 of the Penal Code and sentences of various terms on imprisonment from one month to nine years and fine of Rs. Fifty to Rs. Five Hundred, imposed upon each of them, for these offences, by the learned Assistant Sessions Judge, Nagpur by his judgment in Sessions Trial No.289 of 1996.

2. The facts, which led to prosecution and conviction of the appellants alongwith one Rajesh Baliram Mandhe, original accused No.4, are as under:

On the night of 4th February, 1996 when prosecutrix was sleeping in her house along with her husband Tekchand and daughter Geeta, accused persons climbed over the roof of house, entered her house and dragged the prosecutrix to a nearby stream and committed rape upon the prosecutrix one after other. The prosecutrix took a chance of escaping when one Ramteke came to the spot. The prosecutrix and her husband approached Police Station, Kamptee where an oral report was given. An offence was registered and in course of investigation police caused prosecutrix to be examined and seized her clothing. The police also arrested accused, caused them to be medically examined, seized their clothes, caused samples of their body fluids taken, caused samples to be sent to Forensic Science Laboratory, performed necessary panchanamas, recorded statements of witnesses and on completion of investigation sent charge-sheet.

3. Upon commitment of the case to the Court of Sessions, learned 9th Additional Sessions Judge, Nagpur charged four appellants, along with original accused No.4 Rajesh, for the offences punishable under Sections 456 r/w 34, 354 r/w 34, 506 r/w 34 and 376(2)(g) of the Indian Penal Code. Since all the accused-appellants pleaded not guilty the accused were put on trial, in course of which the prosecution examined as many as eleven witness. Upon consideration of their evidence, the learned Assistant Sessions Judge, to whom the trial was eventually assigned, came to convict and sentence the appellants, as mentioned above. Aggrieved thereby, the appellants have preferred this appeal.

4. Original accused No.4 Rajesh, who too was convicted and sentenced along with the appellants, has not preferred any appeal and the learned counsel for the appellants orally disclosed that Rajesh had suffered his sentence.

5. I have heard Advocate Habibuddin Ahmed, learned counsel for the appellants in Criminal Appeal Nos.70/98 and 212/1998 and Shri. D. M. Kale, learned Additional Public Prosecutor for the Respondent/State. Advocate R. M. Daga with Advocate Vinay Dahat, learned counsel for appellants in Criminal Appeal No.305/1998 adopted arguments advanced by Advocate Habibuddin Ahmed. With the help of the learned counsel for the appellants and learned Additional Public Prosecutor, I have gone through the entire evidence on record to examine the correctness of the finding recorded by the learned trial Judge.

6. The learned counsel for the appellants pointed out that in this case, though according to the complainant P.W.1 when the incident was taking place people from the locality had gathered, there is no independent witness who saw either prosecutrix being dragged from her house or coming back to the house after molestation by the accused. In this case, the only witness, who stated something about the incident are, P.W.1 prosecutrix, her daughter P.W.2 Geeta and P.W.3 Tekchand, victim's husband. Other witnesses are P.W.4 Dr. Bhonde, who examined appellant Chhotu @ Munna on 16.02.1996 and found three injuries on his person which could have been caused by hard and blunt object 6-10 days prior to the examination. He also examined Chhotu @ Munna on 17.02.1996 about his capacity to have intercourse and issued requisite certificate that he was capable of performing coitus. He had drawn necessary sample of blood and pubic hair of Chhotu. Dr. Bhonde also examined convict Rajesh on 07.02.1996 and found two abrasions on his person. He had also taken necessary samples and handed them over to Police Station, Kamptee. P.W.9 Dr. Zohara Biviji had examined the victim and had given certificate vide Exh.49 about injuries on the victim. Dr. Zohara stated that she examined victim on 05.02.1996 about 3.30 p.m. and found no evidence of injury on the private parts. There were abrasion marks as well as nail marks on the right thigh with an injury to left middle finger and nail marks on right forearm. She collected necessary samples of vaginal swab and handed them over to the police. She proved her certificate at Exh.49. In cross-examination, she stated that she had noticed injuries on back or buttock of the prosecutrix. She stated that she had not mentioned age of injuries, since she was not asked for age by the police.

7. P.W.7 Manoj, P.W.8 Santosh and P.W.10 Ratan are panchas, who have not supported the prosecution. P.W.6 A.P.I. Thaokar had only sent charge-sheet. P.W.5 Executive Magistrate Shri. Dongarwar had conducted test identification parade at which the prosecutrix had identified the accused. The evidence of test identification parade, however, is of no value in view of the admission of prosecutrix in paragraph 11 of her deposition that accused Prithviraj and Rajesh were brought by the police in her locality and were shown to her after their arrest, as also rest of the three accused. In view of this, her subsequent identification, at the test identification parade conducted by P.W.5 Dongarwar, would not be of much help. P.W.1 Circle Police Inspector Sharma proved the steps taken in the investigation. Reports from the Forensic Science Laboratory, which have been filed by the police, show that the victim's petticoat had semen stains of blood groups A,B and O. This can be seen from the report at Exh.120. Victim's own blood group is certified by Exh.121 to be "A". Appellant No.2 in Criminal Appeal No.70/1998, Sudesh, is certified as having blood group "B" vide Exh.122. Convict Rajesh, who is stated to have undergone sentence, is certified as having blood group "A" vide Exh.123. Appellant No.1 Pratik in Cri. Appeal No.70/98 and Appellant Chhotu @ Munna in Cri. Appeal No.305/98 have been certified as having blood group "O", vide certificates at Exh.124 and 126, respectively. Blood group of appellant Prithviraj in Cri. Appeal No.212/98 could not be ascertained as stated in certificate at Exh.125.

8. The learned counsel for the appellants submitted that since the incident took place in darkness of night it was difficult to conclude that the prosecutrix or her daughter or husband could have had an opportunity of seeing the miscreants. Therefore, identification of the appellants by the witnesses has to be discarded. P.W.2 Geeta had specifically stated in her deposition, recorded on 08.08.1997, that electricity supply had been provided to the locality only six months before she deposed and, therefore, was obviously not available when the incident took place on 05.02.1996 i.e. about 1-1/2 years before her deposition. Incidentally Geeta had stated in her cross-examination that she was seeing the accused for the first time in the Court. She had stated that miscreants had covered their faces. P.W.3 Tekchand denied having stated to the police that the miscreants had come after covering their faces. He contradicted part-A of his police statement which was duly proved by P.W.11 C.P.I. Sharma at Exh.119. Both, Geeta and Tekchand had not been taken by the police for identification parade. In any case, as already observed, in respect of evidence of the prosecutrix, since the police had already shown the accused upon their arrest to the prosecutrix, the evidence of identification parade has absolutely no relevance. The learned counsel for the appellant, therefore, submitted that the appellants could not have been convicted for the alleged offences since their participation in the heinous act has not been duly established. The learned Additional Public Prosecutor submitted that this contention would have been valid had the reports from the Forensic Science Laboratory not indicated that the victim's petticoat had stains of semen of blood group A, B and O, which are blood groups of the appellants. The learned counsel for the appellants submitted that existence of stains of semen of blood group A, B and O on the victim's clothing need not be explained by the appellants. There may be several persons having same blood groups A, B and O as appellants have. Therefore, merely because the blood group of appellants was found to be A, B or O it does not follow that the stain of semen observed on the clothing of prosecutrix were those of the appellants. He submitted that the clothing of the appellants is not shown to have been stained by any body fluid of the prosecutrix, and therefore, it cannot be said that the reports from the Laboratory nail the appellants.

9. The learned counsel for the appellants further submitted that convict Rajesh was found to have blood group A and since he had not preferred appeal as far as stains of blood group A are concerned, they are duly explained. He further submitted that the police have not taken care to have sample of semen or blood of husband of prosecutrix P.W.3 Tekchand analysed by the Laboratory. Some stains on the clothing of the prosecutrix can be of semen of her own husband. Therefore, merely because some semen stains were found the appellants cannot be held guilty. He submitted that complicity of the appellant could have been established with the help of reports from the Laboratory had there been some evidence connecting them, which could then have been fortified by the reports from the Laboratory.

10. The learned Additional Public Prosecutor submitted that evidence of P.W.1 would show that she had clearly named appellant Sudesh as having entered her house and dragged her to the stream. She had also stated name of Munna and Prithviraj. Therefore, according to the learned APP convictions of these appellants are perfectly justified. He pointed out that in paragraph 3 of deposition of the prosecutrix had named apart from the appellants named above, appellant Pratik Fulzele as well as convict Rajesh Mendhe.

11. The learned counsel for the appellants submitted that in report at Exh.71 filed by the prosecutrix she had referred only two names: one of them is Sudhir Gajbhiye and other is one Ramteke. Sudhir Gajbhiye is same as Sudesh, appellant No.2 in Criminal Appeal No.70/98. Ramteke who has also been referred to as Prithvi @ Prithviraj is appellant in Cri. Appeal No.212/98. The learned counsel for the appellant submitted that in view of this prosecutrix's naming other appellants in her deposition is meaningless since she had come to know these names only after the police arrested those persons and paraded them before her. The learned counsel for the appellants submitted that such being the state of evidence of the prosecutrix, it did not warrant any belief and ought to have been rejected by the learned trial Judge.

12. The learned APP submitted that one must imagine plight of the helpless woman, dragged from her house in the dead of night and subjected to humiliating gang rape by several persons. He submitted that in these circumstances, her failure to identify or name the miscreants should not result in rejection of her testimony in toto. The Court would be under the duty to identify part of the testimony which does not inspire confidence and to reject only that part, accepting the remaining part of the testimony of the prosecutrix. He submitted that name of Sudhir Gajbhiye was specifically mentioned in the F.I.R. itself. Therefore, there is no reason to disbelieve the word of the prosecutrix as far as complicity of appellant Sudhir @ Sudesh is concerned. He submitted that even Prithviraj Ramteke has not named by the prosecutrix in her report and in the deposition. There is no reason why her word about complicity of Prithviraj should not be believed. The learned counsel stated that presence of Prithviraj on the spot with intention to join the rapists would be enough to sustain conviction of Prithviraj.

13. The learned counsel for the appellants submitted that neither Sudesh nor Prithviraj are shown to have committed rape on the prosecutrix. Drawing my attention to report at Exh.71, he stated that prosecutrix had reported that Sudhir Gajbhiye had descended in her house from roof and dragged her out. At the stream six persons were scuffling with her and they removed her blouse, pressed her breasts and her mouth etc. One of them rolled her Saree, removed his pant and sat on her thighs and committed sexual intercourse. This person had black complexion and short stature and was known to the prosecutrix by face. The learned counsel, therefore, submitted that since the prosecutrix had already named Sudhir @ Sudesh in the earlier part of the report, if this person, who committed intercourse with her was Sudhir, she would have stated so. Therefore, according to the learned counsel Sudhir was not the person who committed rape upon the prosecutrix. The learned counsel pointed out that report further reads that on hearing sound of some persons approaching, the persons scuffling with her started pushing one another and saying to one another that those who had completed intercourse did not allow others to do it. She then stated that, in the meantime, a boy named Ramteke came and while he was pushing and pulling them she dressed herself and ran away from the spot and hid in one house. Therefore, according to the learned counsel Ramteke had not at all indulged in any intercourse with the prosecutrix, and even Sudesh committing intercourse is ruled out by the recitals in the report. The learned APP rightly pointed out that F.I.R. cannot be an encyclopedia and it cannot be inferred from the F.I.R. that Sudesh had not indulged in the sexual intercourse with the prosecutrix. He submitted that, in any case, Sudesh was the person who dragged the prosecutrix from her house to the stream, where his accomplices had committed rape upon the prosecutrix. Complicity of Sudesh, therefore, cannot be avoided. The learned A.P.P. took me through the account of the incident given by the prosecutrix in paragraph 2 of her deposition. She stated that Rajesh Mendhe, Pratik Fulzele and Prithviraj Ramteke came about half an hour after she was taken near the nullah. The learned APP therefore, submitted that during this half an hour, apart from the black complexioned person, others, including Sudesh, must have committed intercourse upon the prosecutrix. He further stated that when Prithviraj came Pratik was committing rape upon her. She stated that Sudesh removed her clothes and gagged her. She again states that Prithvi came and asked other accused whether they had not completed sexual intercourse, and then there was a quarrel. Thus, even according to this account, complicity of appellant Prithviraj in the incident is ruled out. However, as rightly submitted by the learned APP, if three of the five accused had arrived after half an hour, it would be improper to rule out intercourse by appellant Sudesh, as well, there being no dispute in these appeals about intercourse by convict Rajesh.

14. To sum up, since the prosecutrix had specifically named appellant Sudesh and had stated that it was he who descended in her house and dragged her out, involvement of Sudesh in the house trespass, abduction, gang rape and intimidation along with use of criminal force to outrage the modesty of the prosecutrix has to be held as proved. To that extent, the finding recorded by the learned Additional Sessions Judge has to be upheld. Complicity of appellants Munna @ Chhotu and Pratik is not free from doubt and they would be entitled to benefit of doubt. Complicity of Prithviraj is not at all proved and therefore, he would be entitled to clean acquittal.

15. The learned counsel for the appellants submitted that Sudesh had already suffered three years imprisonment. He was just 22 years old at the time of incident and has settled down now. There are no criminal antecedents. During all these years Sudesh is not shown to have indulged himself in any improper activities. He, therefore, submitted that ends of justice would be secured if Sudesh is sentenced to suffer imprisonment which he had undergone. The learned APP submitted that merely because Sudesh has preferred appeal whereas Rajesh did not, Sudesh would not be entitled to lesser sentence than the one which Rajesh had suffered. He submitted that Sudesh had dragged the prosecutrix from her house and subjected her to humiliating gang rape. Therefore, there is absolutely no justification for reducing the substantive sentence. Ordinarily a person in position of Sudesh ought to be sentenced to the same term of imprisonment which the co-accused had already suffered. However, considering the fact that Sudesh was indeed twenty two years old when the incident took place, had suffered imprisonment for three years in respect of the incident which took place about ten years ago, it may not be inappropriate to reduce sentence to be imposed upon Sudesh, considering the fact that he has been living in the shadow of a prison sentence for all these ten years, which is punishment in itself.

16. In view of this, a reduced sentence of imprisonment with increase in the quantum of fine would meet the ends of justice. Following order is therefore, passed.

17. Criminal Appeals No.212 of 1998 and 305 of 1998 are allowed.

The convictions and sentences of appellants Prithviraj S/o. Ramdas Ramteke and Munna Chhotu S/o. Kalu for offences punishable under Sections 376(2)(g), 366, 456, 506 Part II and 354 read with Section 34 of the Penal Code are set aside. They are acquitted of the aforesaid offences.

Criminal Appeal No.70 of 1998 is partly allowed.

The convictions and sentences of appellant No.1 Pratik S/o. Manikrao Fulzele for offences punishable under Sections 376(2)(g), 366, 456, 506 Part II and 354 read with Section 34 of the Penal Code are set aside. He is acquitted of the aforesaid offences.

The convictions of appellant Sudesh @ Sudhir Damodhar Gajbhiye for offences punishable under Sections 376(2)(g), 366, 456, 354 and 506 Part II read with Section 34 of the Penal Code are maintained. However, his sentences for offence punishable under Sections 376(2)(g) and 366 of the Penal Code are reduced from RI for nine years and seven years respectively to RI for five years with a fine of rupees five thousand on each of the two counts; and in default of payment of fine, further RI for three months on each count. Sentences imposed by trial court for offences punishable under Sections 456, 354 and 506 Part-II of the Penal Code are maintained.

Appellant Sudesh @ Sudhir Damodhar Gajbhiye would be entitled to have the period of detention in custody during the trial and sentence suffered by him after conviction set-off against the sentences imposed upon on him now.

Appellant Sudesh Gajbhiye shall surrender to his bail within a period of four weeks from today; failing which, the learned Sessions Judge shall take steps to have the sentence executed.

Order accordingly.