2014 ALL MR (Cri) 2445
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

B.R. GAVAI AND B.P. DHARMADHIKARI, JJ.

Deepak Babulal Dhurve & Ors. Vs. The State of Maharashtra

Criminal Appeal No.79 of 2010

3rd March, 2014

Petitioner Counsel: Mr. S.M. PURANIK, Mr. R.M. DAGA
Respondent Counsel: Mr. N.S. KHUBALKAR

(A) Penal Code (1860), S.376(2)(g) - Gang rape - Appeal against conviction - Testimony of prosecutrix itself that accused had threatened to kill her in case she raised shouts - It could be said that prosecutrix was subjected to rape under a threat to her life - Absence of injuries to private parts of prosecutrix would not be of much consequence - Conviction of accused persons is proper - No interference. (Para 10)

(B) Penal Code (1860), S.376(2)(g) - Gang rape - Appeal against conviction - Evidence of prosecutrix that she was subjected to rape under a threat to her life - Appellant accused was immediately arrested on same day and clothes worn by him came to be seized - Chemical Analyzer's report showing that underwear worn by appellant was having semen stains - Said incriminating circumstance has not been explained by appellant - His conviction was proper. (Para 11)

(C) Penal Code (1860), S.376(2)(g) - Gang rape - Appeal against conviction - Prosecutrix herself admitting that she has not identified accused in any test identification parade(TIP) conducted by Magistrate or at instance of police - TIP of accused was not conducted during course of investigation - Also there was no forensic evidence to corroborate version of prosecutrix against accused - Accused is entitled to benefit of doubt. (Paras 12, 14, 15)

(D) Penal Code (1860), S.376(2)(g) - Gang rape - Sentence - Not a case that prosecutrix was treated brutally and subjected to brutal injuries by accused persons - Prosecutrix in her examination-in-chief stating that she voluntarily sat on bicycle of accused and did not object when he drove bicycle in different direction - There was also absence of injuries on her body - Considering that all accused were of young age - Imposition of maximum punishment is not warranted - Hence, sentence of life imprisonment reduced to 10 years RI. (Paras 16, 17)

Cases Cited:
Omprakash Vs. State of Haryana, 2011 ALL MR (Cri) 2707 (S.C.)=(2011) 14 SCC 309 [Para 8]


JUDGMENT

B. R. GAVAI, J. :- Being aggrieved by the judgment and order passed by the learned Sessions Judge, Amravati in Sessions Case No. 136/08 dated 21.1.2010 thereby convicting all the appellants for the offence punishable under Section 376(2)(g) of the Indian Penal Code and sentencing them to suffer R.I. for life and to pay a fine of Rs.3000/- and in default to suffer further R.I. for two years and further sentencing accused no.6 Shankar for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer R.I. for ten years and to pay a fine of Rs.3000/- and in default, to suffer further R.I. for two years and sentencing accused nos. 1 Deepak, no. 2 Lokesh, no.3 Rajesh & no.6 Shankar for committing offence punishable under Section 506(ii) read with Section 34 of Indian Penal Code and sentencing them to suffer R.I. for six months and to pay a fine of Rs.2000/- and in default to suffer further R.I. for six months, the appellants have approached this Court.

2. The facts, in brief, giving rise to the prosecution case are as under :-

That the prosecutrix, namely, Sangita is a labour by profession and resides in the field of one Pannalal Manekar along with her mother, brother and sister. She had studied upto 7th standard and left the education thereafter. She used to work as an agricultural labour as and when the work was made available. The prosecutrix knew accused no.1 Deepak, accused no.4 Devidas, accused no.5 Sunil, accused no.6 Shankar and Ramkisan Uike, who was a juvenile in conflict with law, as he was also working as agricultural labour.

3. The prosecutrix used to go to Warud for purchasing household articles, etc. On 10.11.2007 she had left her home at 3.30 p.m. and had gone to Warud for purchasing the articles. She had come to Warud from home in an autorickshaw. When she alighted at Indira chowk, the accused no.1 Deepak met her and enquired with her as to where she was going. The prosecutrix replied that she had come there to purchase articles. The accused no.1 insisted that he would accompany her for shopping. However, she told him not to accompany her. Yet he accompanied her to Kedar Chowk. When the prosecutrix went to PCO to make a telephonic call to her sister, the accused no.1 came there, he snatched her money purse and tore off the paper on which telephone number of her sister was written. Thereafter she started proceeding towards her house on foot. The accused no.6 Shankar told her that he would drop her at her home. Ramkisan Uike was also present there. Accused no.6 Shankar and Ramkisan had a talk. She could not hear the conversation between accused no.6 Shankar and Ramkisan as they were speaking at some distance. She sat on bicycle of accused no.6 Shankar. Ramkisan went ahead. Accused no.6 Shankar took the cycle near the railway bridge. She enquired with him as to where he was taking her. She states that she jumped off the cycle and raised alarm but nobody came there. In the meantime, Ramkisan Uike had also come near the Railway bridge and a motorcycle also came. The accused no.1 Deepak, accused no.2 Lokesh and accused no.3 Rajesh had come on the said motorcycle. Accused no.1 Deepak caught hold of her hands and took her to a nearby place. The accused no.1 Deepak threatened her that if she raises alarm, she would be killed. Accused no.1 Deepak, no.2 Lokesh, and no.3 Rajesh made her lie on the ground. The accused no.1 Deepak undressed her Salwar. Accused no.1 Deepak, no.2 Lokesh, and no.3 Rajesh had sexual intercourse with her. Accused no.3 Rajesh and accused no.2 Lokesh left the spot on the said motor-cycle. Thereafter the accused no.1 Deepak, accused no.6 Shankar and Ramkisan took her to an orange orchard which was located at upper level. Accused no.1 Deepak and Ramkisan Uike stayed there. Accused no.6 Shankar went to his home and brought a blanket. Accused no.4 Devidas and accused no. 5 Sunil also came there. Accused no.4 Devidas and accused no.5 Sunil had accompanied the accused no.6 Shankar. The said accused had sexual intercourse with her till 12.30 to 1 midnight. Accused no.1 Deepak, no.4 Devidas, no.5 Sunil and Ramkisan thereafter left the spot. Accused no.6 Shankar stayed with her and had sexual intercourse with her for 3 to 4 times. She was left with no energy left in the body. At the dawn, accused no.6 Shankar also left the spot. She was not wearing Salwar at that time. She was sitting near the well and at around 6 a.m. to 6.30 a.m. a person, namely, Mr. Suresh Nehare was passing at that time. At that time, she was not wearing any clothes on her lower body. Mr. Suresh Nehare enquired as to why she was sitting there. She narrated the incident to him. The said Suresh Nehare brought a Salwar from a girl and gave it to her. He took her to his home and thereafter sent his son to her home. Thereafter, her mother, brother and brother-in-law came to the house of Suresh Nehare. She narrated the incident to them. Thereafter, victim herself, her mother, brother, brotherinlaw and Mr. Suresh Nehare went to Warud Police Station. The police made enquiries with her and the report came to be recorded at around 3 to 3.30 p.m.

4. On the basis of the report lodged by the prosecutrix, a crime came to be registered. The investigation was carried out by Investigating Officer. The medical examinations of the accused and the prosecutrix was done. Various articles were seized. At the conclusion of the investigation, the charge-sheet came to be filed in the Court of learned J.M.F.C., Warud. Since the case was exclusively triable by the Court of Sessions, the case came to be committed to the learned Sessions Judge, Amravati. At the conclusion of the trial, the learned trial Judge recorded the finding of conviction and sentence as aforesaid. Being aggrieved by the same, the present appeals have been filed.

5. Heard Mr. R.M. Daga and Mr. S.M. Puranik, learned Advocates for the appellants and Mr. N.S. Khubalkar, learned Additional Public Prosecutor for respondent.

6. The learned Counsel for the appellants submit that apart from the evidence of the prosecutrix, there is nothing to corroborate her version. The learned Counsel submit that on the basis of sole testimony of the prosecutrix, the conviction as recorded is not sustainable. It is submitted that there are no injuries either to the private part or to the person of the prosecutrix and, therefore, the case of the prosecution regarding the forced sexual intercourse cannot be believed. The learned Counsel for the appellants submit that in any case, the prosecution has failed to prove the case beyond reasonable doubt and as such, the appeals need to be allowed.

7. Mr. R.M. Daga, learned Advocate for the appellants, in addition submits that in so far as the accused no.2 Lokesh is concerned, he has been falsely implicated at the instance of Investigating Officer since he refused to satisfy his demand. It is submitted that though it has been admitted that the prosecutrix was not knowing the said accused at earlier point of time, neither the identification parade has been held by the police, nor any cogent material has been placed on record to establish his complicity beyond reasonable doubt.

8. As against this, Mr. N.S. Khubalkar, learned Additional Public Prosecutor for respondent, submits that the testimony of the prosecutrix is cogent, trustworthy and reliable. The learned A.P.P. submits that the conviction can be based on the sole testimony of the prosecutrix if her evidence is found to be trustworthy. He submits that further there are other corroborating circumstances, i.e. the evidence of the medical expert, the forensic evidence which finds the semen samples on the Kurti worn by victim, so also the undergarments used by the accused persons. He, therefore, submits that the appeals deserve to be dismissed. The learned A.P.P. relies on the judgment of the Apex Court in the case of Omprakash .vs. State of Haryana reported in (2011) 14 SCC 309 : [2011 ALL MR (Cri) 2707 (S.C.)].

9. With the assistance of the learned Counsel for the appellants and the learned A.P.P., we have scrutinized the evidence on record. The main evidence is that of the prosecutrix. We have in detail given the narration of the prosecutrix hereinabove. The prosecutrix has been thoroughly cross-examined. Though there are certain omissions in her evidence, nothing damaging could be brought into her evidence in so far as the accused no.1 and 3 to 6 are concerned. She has withstood the cross-examination and her evidence in so far as the accused no.6 Shankar taking her on bicycle and thereafter Ramkisan Uike awaiting her and the other accused coming there and having sexual intercourse with her, appears to be truthful, cogent and reliable. Apart from that, her testimony is also corroborated by the evidence of PW.2 Suresh Nehare, who is the first person who had met her after the incident. This witness also corroborates the version of the prosecutrix in so far as the involvement of the accused no.6 Shankar, accused no.1 Deepak, accused no.4 Devidas and accused no.5 Sunil along with the juvenile Ramkisan is concerned. It can thus be seen that in so far as the accused no.1 Deepak, no.4 Devidas, no. 5 Sunil & no.6 Shankar are concerned, there is a corroboration to the evidence of PW.1 Sangita from the evidence of PW.2 Suresh. Though PW.2 Suresh has also been thoroughly cross-examined, nothing damaging has come in his evidence.

10. The prosecution has also examined Dr. Vanita Pundlik Gawande as PW.8, who has given her findings as under :-

1) "Menarche at the age of 12 years. Secondary sexual characters well developed. Patient is approximately 14 to 18 years old,

2) Patient is liable for intercourse,

3) Hymen fresh torn and admits two fingers easily. Hymen was congested.

No external or internal injuries were noted. Rape has been taken place."

A specific question has been put to this witness that if a girl habituated to sexual intercourse is subjected to sexual intercourse by five to six persons, is it necessary that there should be injuries on her private parts ? She has specifically answered that if such girl does not resist, then injuries on private part may not occur. She has further observed that the redness, swelling and congestion on private part would subside within 24 hours if a girl habituated to sexual intercourse is subjected to sexual intercourse by five to six persons. She has further been asked a specific query in the cross-examination that would it be correct to suggest that if a virgin girl of 17 years is subjected to rape by 4 to 5 persons, then injuries on libia majora and libia minora are must. This witness has answered that if a girl is virgin and she forcefully resists, then injuries on libia majora and libia minora are possible. It can thus clearly be seen from the evidence of this witness that the injuries would occur to libia majora and libia minora if a girl forcefully resists. In the present case, it could be seen from the evidence of PW.1 Sangita itself that the prosecutrix has clearly stated that the accused had threatened to kill her in case she raised shouts. It can thus be clearly seen that under a threat to her life, the prosecutrix was subjected to the heinous act. In that view of the matter, we find that much attack on the absence of injuries to the private parts of the deceased would not be of much consequence. In that view of the matter, we find that no interference would be warranted in so far as the conviction of the accused no.1 Deepak, no. 4 Devidas, no. 5 Sunil & no.6 Shankar are concerned.

11. That leaves us to the case of accused no.2 Lokesh and accused no.3 Rajesh. We find that since there is no corroboration in so far as involvement of accused nos. 2 & 3 are concerned in the evidence of PW.2 Suresh Nehare, it will be appropriate to find some further corroboration from the evidence placed on record by the prosecution. It is to be noted that accused no.3 Rajesh was immediately arrested on the same day and the clothes worn by him came to be seized. The Chemical Analyser's report shows that the underwear worn by accused no.3 Rajesh was having semen stains. The defence of the accused has been of total denial. This incriminating circumstance has not been explained by the accused. In that view of the matter, we find that the conviction of the accused no.3 Rajesh would also warrant no interference.

12. Now, the question that remains is of accused no.2 Lokesh. It has come in the evidence of PW.1 Sangita that accused no.1 Deepak had introduced accused no.2 Lokesh and accused no.3 Rajesh. However, she has clearly admitted in her cross-examination that she had not stated before the Magistrate while recording her statement under Section 164 of Criminal Procedure Code that the accused no.1 Deepak had introduced accused no.2 Lokesh to her. She has further admitted that she has not identified the accused no.2 Lokesh in any test identification parade conducted by Magistrate or at the instance of police. She has further admitted in her cross-examination that she had disclosed the names of all the accused to the police for the first time at 3.15 p.m. on 11.11.2007. In her cross-examination, she has further admitted that even on that day, she was unaware of the father's name of accused no.2 Lokesh. She has also admitted the suggestion that she never disclosed the name of father of accused no.2 Lokesh to the police. In this background, it will have to be seen that in the printed FIR the name of the accused no.2 is written as "Lokesh Ganpatrao Shrikhande".

13. In this background, it will also be appropriate to refer to the evidence of PW.10 Anilsinh Gautam. In his evidence, he has clearly admitted that the name of the father of the accused no.2 Lokesh was not disclosed by the prosecutrix while lodging report. He has further admitted that the test identification parade of the accused no.2 Lokesh Ganpatrao Shrikhande was not conducted during the course of the investigation. He has further admitted that the accused no.2 Lokesh was called and detained at the Police Station from 10 a.m. on 11.11.2007.

14. Taking into consideration the aspect that the prosecutrix was not knowing the present appellant Lokesh prior to incident, that part of her evidence that she was introduced by accused no.1 Deepak to the accused no.2 Lokesh, that the identification parade was not held, that she was not aware about the name of father of the accused no.2 Lokesh even on the date of recording of her evidence, that the Investigating Officer has admitted that though the prosecutrix had come to the Police Station in the morning, the FIR came to be registered only at 3.15 p.m., the defence of the accused no.2 Lokesh will have to be examined. In answer to Question No. 196, accused no. 2 Lokesh has stated thus:

"Mr. Ramkisan was working in my field. He used to take my motorcycle. On 11.11.2007 when I returned from Nagpur to my house my wife informed me that Ramkisan had told that I was called at the police station. I was made to wait at the police station. I explained my position. Police officer Mr. Gautam demanded a bribe of Rs.50,000/- for exonerating me. As I did not pay the bribe of Rs. 50,000/- I was falsely implicated and my life has been ruined. I am impotent."

15. Taking into consideration the factors narrated hereinabove and particularly when there being no explanation as to why the FIR came to be registered at 3.15 p.m. when the prosecutrix had come there in the morning hours and when the accused no.2 was called in the Police Station at 10 a.m. and further there being no forensic evidence so as to corroborate the version of the prosecutrix, we find that the defence of the appellant Lokesh cannot be said to be improbable. We, therefore, find that the accused no.2 Lokesh is entitled to benefit of doubt and as such deserves to be acquitted.

16. That leaves us to the question as to whether the life imprisonment which is imposed upon the rest of the accused needs interference or not. On the question of the prosecutrix itself, it can be seen that it is not as if the prosecutrix by using a deadly weapon or so was made to undergo the heinous act. It can further be seen that it is not the prosecution case that the prosecutrix was treated brutally and subjected to brutal injuries by the appellants. The examinationinchief of the victim shows that she voluntarily sat on bicycle of accused no.6 Shankar and she also did not object when he drove bicycle in different direction. She claimed that she jumped off the cycle and raised alarm. In cross-examination conducted by Advocate Smt. Ghatol, the victim could not assign any reason as to why the words "jumped off" do not find place in her statement before the Magistrate. Similarly, fact of raising alarm is also missing in that statement and the girl could not assign any reason therefor. The Sessions Court has recorded two questions in question-answer form. Her answer shows that she did not raise any alarm. She has also stated that she did not resist accused people by kicking or with hands and she has given reason therefor that she was scared. She also accepted that when accused Deepak snatched money purse from her hands, she did not raise any alarm or did not lodge any report. Her story appears to be as her money purse was snatched, she was required to accompany accused no.6 Shankar. Absence of injuries on her body is already noted by us above. All these facts put together could have indicated something else. However, none of the accused has come up with defence of consent of said girl. It can further be seen that all the accused were of young age. In that view of the matter, we do not find that the present case warrants imposition of maximum punishment of imprisonment for life.

17. Taking into consideration these aspects of the matter, we find that the rigorous imprisonment for ten years would subserve the interest of justice.

18. Criminal Appeal No. 91 of 2010 in so far as appellant no.2 Lokesh s/o Ganpatrao Shrikhande is concerned, is allowed. The order of conviction and sentence insofar as appellant no.2 Lokesh s/o Ganpatrao Shrikhande is concerned, is quashed and set aside. The said appellant/accused is acquitted of the offence charged with. The appellant no.2 Lokesh s/o Ganpatrao Shrikhande is directed to be set at liberty forthwith, if not required in any other crime.

Criminal Appeal No. 91 of 2010 and Criminal Appeal No. 79/2010 of the rest of the appellants are partly allowed. Though the order of conviction for the offence punishable under Section 376(2)(g) of the Indian Penal Code is maintained, the sentence of life imprisonment is reduced to rigorous imprisonment for ten years.

Rest of the order regarding fine, etc. is maintained.

The fees to be paid to Shri S.M. Puranik, the learned Counsel appointed for the appellants are quantified at Rs.5000/-.

Ordered accordingly.