State Of Maharashtra vs Suryakant Ganpatrao Dhage And … on 21 November, 2017

1 Appeal 153/99 group

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No. 153 of 1999

* Kalyan s/o Bansidharrao Renge,
Age 33 years,
Occupation : Agriculture,
R/o Parbhani,
Taluka District Parbhani. .. Appellant.

Versus

1) The State of Maharashtra.

2) Sangeeta d/o Rameshwar Agrawal (Mor)
Age Major, Occupation: Nil
R/o Partur, District Jalna.

3) Panchasheela @ Panchphula
D/o. Wamanrao Jayebhaye
Age Major, Occupation: Nil,
R/o Partur, Dist. Jalna. .. Respondents.

—-

Shri. V.D. Salunke, Advocate, for appellant.

Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.

—-

With

Criminal Appeal No. 157 of 1999

* Rameshwar s/o Baburao Kanade,
Age 29 years,
Occupation : Agriculture,
R/o Parbhani,
Taluka District Parbhani. .. Appellant.

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Versus

1) The State of Maharashtra.

2) Sangeeta d/o Rameshwar Agrawal (Mor)
Age Major, Occupation: Nil
R/o Partur, District Jalna.

3) Panchasheela @ Panchphula
D/o. Wamanrao Jayebhaye
Age Major, Occupation: Nil,
R/o Partur, Dist. Jalna. .. Respondents.

—-

Shri. Shirish Gupte, Senior Counsel, instructed by Shri.
M.P. Kale, Advocate, for appellant.

Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
—-

With

Criminal Appeal No. 281 of 1999

* The State of Maharashtra
Through Police Station Kotwali,
Parbhani. … Appellant.

Versus

1) Suryakant s/o Ganpatrao Dhage
Age 29 years,
Occupation: Business,
R/o Krantinagar, Parbhani,
Taluka Dist Parbhani.

2) Arun s/o Shahurao Mapari,
Age 20 years, Occupation: Education,
R/o Parbhani,
Taluka District Parbhani.

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3) Suresh s/o Bapurao Kopre
Age 27 years,
Occupation: Labour
R/o Krantinagar Parbhani,
Taluka District Parbhani.

4) Rameshwar s/o Baburao Kanade
Age 25 years,
Occupation: Agriculture
R/o Parsawat Nagar, Parbhani
Taluka District Parbhani.

5) Tukaram s/o Ramji Kharat,
Age 25 years,
Occupation: Education,
R/o Mahodi, Taluka Jintur,
District Parbhani.

6) Nitin s/o Limbajirao Dudhgaonkar,
Age 29 years,
Occupation: Agriculture
R/o Khaja colony, Parbhani,
Taluka District Parbhani.

7) Kalyan s/o Bansidhar Renge,
Age 33 years,
Occupation: Agriculture,
R/o Nawa Mondha, Parbhani,
Taluka and District Parbhani.

8) Dnyanoba s/o Namdeo Dharasurkar,
Age 34 years,
Occupation: Business,
R/o Komti Galli, Parbhani,
Taluka and District Parbhani.

9) Machinder s/o Vithalrao Ghadge,
Age 29 years,
Occupation Labour,
R/o Bhimnagar, Parbhani,
Taluka and District Parbhani.

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10) Sangeeta d/o Rameshwar Agrawal (Mor)
Age Major, Occupation: Nil
R/o Partur, District Jalna.

11) Panchasheela @ Panchphula
D/o. Wamanrao Jayebhaye
Age Major, Occupation: Nil,
R/o Partur, Dist. Jalna. .. Respondents.

—-

Shri. S.J. Salgare, Additional Public Prosecutor, for
appellant.

Shri. Shirish Gupte, Senior Counsel, instructed by Shri.
N.G. Kale, Advocate, for respondent Nos.4 and 5.

Shri. A.B. Kale, Advocate, for respondent No.7.

Appeal abated as against respondent Nos.1,2,3,6,8 9.
—-

Coram: T.V. NALAWADE
S.M. GAVHANE, JJ.

Judgment reserved on: 22 September 2017

Judgment pronounced on : 21 November 2017

JUDGMENT (Per T.V. Nalawade, J.):

1) All these three appeals are filed against the

judgment and order of Sessions Case No.121/1994 which

was pending in the Court of the learned Sessions Judge,

Parbhani. The learned Sessions Judge Parbhani has

convicted and sentenced the accused Nos. 1 to 4 and 6

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and 7 for offence of gang rape punishable under section

376(2)(g) of Indian Penal Code. Accused Nos.1 to 4 are

convicted and sentenced for offence punishable under

section 366 read with section 34 of Indian Penal Code.

The trial Court has acquitted accused Nos.5, accused No.8

and accused No.9. Criminal Appeal No.153/1999 is filed

by the original accused No.7 Kalyan Renge. Criminal

Appeal No.157/1999 is filed by Rameshwar Kanade,

accused No.4. Criminal Appeal No. 281/1999 is filed by

the State. The State has filed the appeal as the trial Court

has given sentence of rigorous imprisonment of 10 years

only and the State wants to see that the convicted accused

are sentenced with life imprisonment. Both the sides are

heard.

2) In short, the facts leading to the institution of

the appeals can be stated as follows :-

3) Two minor village girls were ravished in

Parbhani city and at the outskirts of Parbhani city by

different persons. In respect of these incidents two

separate charge-sheets were filed and two cases were

tried separately against those persons in respect of

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different incidents. In respect of other incidents, Sessions

Case No.139/1994 was filed and that case is also decided

by the same learned Judge of the Sessions Court. In that

case some accused persons are convicted. That decision

is also challenged by the State and the convicted accused

and those appeals are being decided separately. In view of

the nature of allegations made by the two victim girls in

the two cases, the case of the prosecution mentioned in

both these cases need to be considered for better

appreciation of the facts and circumstances.

4) The two victim girls, PW-4 and PW-5 were

friends. They were residents of Partur, District Jalna. At

the relevant time they had not crossed age of 16 years.

Mother of PW-4 was working as maid servant to earn

livelihood and she was required to maintain not only the

prosecutrix but also other issues as her husband is dead.

Parents of PW-5, other prosecutrix, hail from Hiwarkheda,

Tahsil Sindhkhed-Raja, District Buldhana. The parents of

PW-5 are very poor and as they could not afford to

maintain PW-5, they had kept PW-5 in the house of sister

of mother of PW-5 in Partur. PW-5 was not happy due to

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poverty and also due to bad treatment which she was

receiving in the house of her aunt on maternal side.

5) On 3-7-1994 PW-5 had some dispute with her

maternal aunt. As she was starving she met PW-4 and

expressed that she wanted to work to earn for her

livelihood. PW-4 has a relative by name Sham Agrawal and

he was running a shop in Parbhani city, District Parbhani.

PW-4 expressed that Sham Agrawal can help them in

giving job in Parbhani. Due to these circumstances on 3-7-

1994, PW-4 and PW-5 left Partur for Parbhani without

informing anything to anybody from Partur.

6) PW-4 and PW-5 first walked up to Raipur where

there is a field of relative of PW-4. Persons working in the

field knew PW-4 and they gave food and shelter to PW-4

and PW-5. PW-4 and PW-5 slept in the field from Raipur on

the night between 3-7-1994 and 4-7-1994. On 4-7-1994,

early in the morning they went to Osmanpur Railway

Station on foot and there they boarded a train proceeding

to Parbhani.

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7) On the train PW-4 and PW-5 met Raju and

Abhay, the boys who were known to PW-5. These boys

were also proceeding to Parbhani and they were doing

some course in Parbhani. During talk, PW-4 and PW-5

disclosed to these boys that they were going to Parbhani

in search of job. These boys advised the victim girls not to

go to Parbhani and return to home. They informed that it

was not safe for them to go to Parbhani. PW-4 and PW-5

and the two boys alighted at Parbhani from train. As the

boys were advising the girls to return to home but as

there was no train up to 3 p.m. the boys gave tea and

food to these girls in a hotel. As there was time upto 3

p.m., the boys took these two girls to Talreja Talkies to see

a movie. It was a matinée show and after seeing the movie

the girls were expected to return by train to home.

8) In Talreja Talkies three youngsters namely

accused No.1-Suryakant Dhage, accused No.2-Arun

Mapari and accused No.3-Suresh Kopre occupied the

seats by the side of the two girls. They opened talk with

the two girls and during talk the three accused realised

that these two girls wanted to go to Sham Agrawal.

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Accused Nos.1 to 3 falsely represented to these girls that

they knew Sham Agrawal and Sham Agrawal was their

friend. They gave false promise to the victim girls that

they would take them to Sham Agrawal. After arrival of

accused Nos.1 to 3 in the theatre, the aforesaid two boys

viz Raju and Abhay left the theatre.

9) Accused Nos.1 to 3 took the two girls in an

auto-rickshaw first to the house of a friend where they

provided meals to the girls. From this house, accused

Nos.1 to 3 took the girls to a banana garden situated at

the outskirts of Parbhani city. In the banana garden,

accused No.1-Suryakant took PW-4 to one side and then

he committed rape on her. Similarly, accused Nos.2 and 3

took PW-5 to other side and there they committed rape on

PW-5. After that accused No.1 to 3 took PW-4 and PW-5

towards the side of a brook known as Pingad-Gad-Nala.

There was water in the brook. There also accused Nos. 1

to 3 committed rape on PW-4 and PW-5. Here accused

No.1 committed rape on PW-5 and accused Nos.2 and 3

committed rape on PW-4. PW-4 and PW-5 could not resist

as threats were given to them.

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10) From the side of the brook accused No.1 to 3

took PW-4 and PW-5 towards the side of road. There they

met accused No.4 namely Rameshwar Kanade. From

there, accused Nos.1 to 4 took PW-4 and PW-5 to a lodge

of Parbhani by name Visawa Lodge. They reached there at

about 10.00 p.m. There accused Nos.1 to 4 informed to

PW-4 and PW-5 that two Sahibs, accused Nos.6 and 7

were to come to the lodge and they would help PW-4 and

PW-5 for getting work. After some time accused Nos.6

and 7 namely Nitin Dudhgaonkar and Kalyan Renge came

to the lodge. Under threat, accused No.6 committed rape

on PW-5 and accused No.7 committed rape on PW-4. They

gave threats not to disclose the incident to anybody.

Accused Nos.8 and 9 were managing the lodge. They kept

watch and saw to it that there was no interference, there

was no help to the victim girls. When accused Nos.6 and 7

left the lodge, accused Nos.1 to 4 took PW-4 and PW-5 to

campus of Shanti Niketan school. There accused Nos.1 to

4 consumed liquor. In the campus of the school accused

Nos.1 and 2 committed rape on PW-5 and accused Nos.3

and 4 committed rape on PW-4. Accused Nos.2,3 and 4

then left the campus of the school.

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11) From the campus of the school, accused No.1

took the two victim girls to other place which is called as

Wada, big house, where accused No.5 Tukaram Kharat

was present. Tukaram gave threats to PW-4 and PW-5 to

facilitate rape which accused No.1 wanted to commit.

Accused No.1 then committed rape on PW-5 and accused

No.5 committed rape on PW-4.

12) From the last place accused No.1 took the two

victim girls to Parbhani Railway Station and there he left

their company. While leaving he again gave threats to

them not to disclose the incidents to anybody. In respect

of the aforesaid five incidents of rape separate charge

sheet was filed and Sessions Case No.121/1994 was tried

against the aforesaid nine accused persons. These

accused are convicted for different incidents mentioned

above.

13) The second part of the prosecution case starts

from the incident which took place at Parbhani Railway

Station. As per the case of the prosecution, accused No.1

left PW-4 and PW-5 at Parbhani Railway Station in the

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early hours of 5-7-1994.

14) In the early hours of 5-7-1994 when PW-4 and

PW-5 were sitting on the stair case of the bridge situated

near the platform of the railway station, accused No.1 –

Abbas Baig of Sessions Case No.139/1994, who was

working as coolie at the railway station, approached PW-4

and PW-5. Under the pretext that he would help PW-4 and

PW-5 he took these two girls to retiring room situated on

railway platform. Abbas Baig then called accused No.2

Ashok of Sessions Case No.139/1994, who was working as

Police Head Constable and accused No.3 Tabuka of

Sessions Case No.139/1994, who was working as Railway

ticket booking clerk to the room. One more person also

came with them. The retiring place had many rooms.

Accused No.3 Tabuka of Sessions Case No.139/1994 and

the other person took PW-4 to one room and there they

raped her. Accused No.1 Abbas and accused No.2 Ashok,

both of Sessions Case No.139/1994, raped PW-5. After

committing the rape these persons allowed the victim girls

to leave the retiring room. The victim girls were very

much frightened and in that condition they went to the

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bridge of the railway station and from there in search of

water they went towards railway quarters situated by the

side of the railway station. There, accused No.4 Bhansing

Bundele of Sessions Case No.139/1994, who was

occupying railway quarters as he was employee of railway,

promised them to help and took them to his residential

quarters. In his quarters, accused No.5 Raju of Sessions

Case No.139/1994 was already present and one young boy

aged about 12 years was also present. Accused No.4 of

Sessions Case No.139/1994 supplied water to the victim

girls and then he left the railway quarters by informing

accused No.5 of Sessions Case No.139/1994 that he would

return after some time. While leaving, he took care to see

that the railway quarters was locked from outside and the

key was given to accused No.5 of Sessions Case No.139

of 1994.

15) At about 2.30 p.m. of 5-7-1994 accused No.4 of

Sessions Case No.139/1994 returned to the railway

quarters. He had brought with him a bottle of liquor and

some food items. He gave the food items to the victim

girls and asked the aforesaid young boy to leave the

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quarters. When the young boy left the quarters, accused

No.5 of Sessions Case No.139/1994 took PW-4 to one

room and there he raped her. Accused No.4 of Sessions

Case No.139/1994 raped PW-5. In this railway quarters, a

lace of the Salwar which PW-5 was wearing got broken

and so the lace of the shoe of accused No.4 of Sessions

Case No.139/1994 was used for the Salwar by PW-5.

16) Accused Nos.4 and 5 of Sessions Case No.139/

1994 virtually used PW-4 and PW-5 upto 4.00 p.m. of 5-7-

1994 and then they called accused No.6 Munna @

Ravindra Singh and accused No.7 Mahesh of Sessions

Case No.139/1994 to the railway quarters. They were

friends of accused Nos.4 and 5. From the railway quarters

PW-4 and PW-5 were taken by accused Nos.4 and 5 of

Sessions Case No.139/1994 in an auto-rickshaw to other

place, Shakti Bungalow from Parbhani. Accused No.6 and

7 had come to railway quarters on their motor-cycle and

they followed to that place on their motor-cycle. In Shakti

Bungalow accused No.6 Munna @ Ravindra Singh of

Sessions Case No.139/1994 raped PW-5. After that

accused No.4 of Sessions Case No.139/1994 raped PW-5.

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After that accused No.7 Mahesh of Sessions Case No.139/

1994 raped PW-5. Accused No.5 of Sessions Case No.

139/1994 also raped PW-5. This incident was going on

upto early hours of 6-7-1994. PW-4 somehow saved herself

by giving information regarding her menstruation period.

On the night between 5-7-1994 and 6-7-1994 the two

victim girls were present in Shakti Bungalow.

17) On 6-7-1994 in the morning when PW-4 woke

up from sleep, she noticed that PW-5 was not there.

Accused No.5 Rameshwar from Sessions Case No.139/

1994 was present in Shakti Bungalow and he informed

that PW-5 had already left the building. PW-4 searched for

some time to find PW-4 and then she went to Purna

Railway Station by a bus as she intended to return to

home by railway. At Purna, PW-4 met a lady police

constable and the said lady constable took PW-4 by train

to Parbhani Railway Station. At Parbhani Railway Station

PW-4 pointed PW-5 to the lady constable and due to that

the lady constable took PW-5 to Railway Police Chowki

and PW-5 was asked to stay there.

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18) The lady police constable Giribai reached PW-4

to Partur by train. After returning from Partur, Giribai

took PW-5 to Purna Railway Police Station. There, the FIR

of PW-5 came to be recorded and the crime at CR

No.29/1994 came to be registered on 7-7-1994. PW-5 was

taken to Parbhani for medical examination on 7-7-1994

and she was medically examined. During course of

investigation her clothes (Salwar and Kurta) were taken

over.

19) On 8-7-1994 PW-5 was taken to New Mondha

Police Station Parbhani where another FIR came to be

recorded and another crime came to be registered. On 7-

7-1994 police from Kotwali Police Station Parbhani went

to Partur and they brought PW-4 to Kotwali Police Station.

There, the report given by PW-4 came to be recorded. PW-

4 was then sent to New Mondha Police Station and in the

crime registered there, her statement came to be

recorded. PW-4 was also sent for medical examination and

she was medically examined on 7-7-1994.

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20) During course of investigation statements of

PW-4 and PW-5 came to be recorded under section 164 of

Criminal Procedure Code. The two victim girls took police

to various places where the offence was committed

against them. Accused persons came to be arrested. Some

incriminating articles like clothes, carpets came to be

recovered on the basis of statements given by accused

persons. Blood samples of the accused persons were sent

to CA office along with blood samples of the victim girls

and vaginal swabs collected by medical officer. Charge

sheet came to be filed in Crime No.29/1994 registered in

Purna Railway Police Station and Crime No.82/1994

registered in New Mondha Police station Parbhani and

that case is Sessions Case No.139/1994.

21) After making investigation of the two crimes

like Crime No.73/1994 registered with Kotwali Police

Station and Crime No.81/1994 registered with New

Mondha Police Station Parbhani charge sheet came to be

filed and the case came to be registered as Sessions Case

No.121/1994.

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22) Charge was framed in respect of different

incidents against different accused by the trial Court.

Accused Nos.1 to 3 had taken the victim girls from Talreja

Talkies to banana garden with the intention to rape them

and so against accused Nos.1 to 3 charge was framed for

offence punishable under section 366 read with 34 of the

Indian Penal Code. Near banana garden and near the

brook known as Pingad-Gad-Nala these youngsters raped

the two victim girls and so in respect of those two

incidents of rape there was a separate charge for offence

of gang rape against these three accused. As they had

taken the girls to Visawa Lodge for helping accused Nos.6

and 7 to have sexual intercourse with the victim girls

there was charge for the offence punishable under section

366-A read with section 34 of Indian Penal Code against

accused Nos.1 to 3. In Visawa Lodge accused Nos.6 and 7

raped the two victim girls and there was common

intention as per the case of the prosecution and so there

was charge against each of them for offence of gang rape.

From Visawa Lodge accused Nos.1 to 4 had taken the two

victim girls to the campus of Shanti Niketan school and

there they had raped the two victim girls and so for that

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incident there was a separate charge for offence of gang

rape against accused Nos.1 to 4. Against accused No.1

separate charge was framed for offence of kidnapping, for

taking the victim girls to Munde Wada and there

committing offence of rape with the help of accused No.5

and as there was a case that accused No.5 Tukaram had

also raped one victim girl there was a charge for offence

of gang rape against these two accused. The trial Court

has acquitted accused Nos.1 and 5 in respect of the

incident which took place in Munde Wada and that

acquittal is not challenged.

23) PW-4, the first victim girl, has given evidence

that on 4-7-1994 when they boarded a train at Osmanpur

Railway Station for going to Parbhani, they met some

persons who were acquainted either to PW-4 or to PW-5,

the other victim girl. Two boys, one of whom was known to

PW-5 met them in this train as per the versions given by

both PW-4 and PW-5. They have given evidence that they

disclosed to these boys (Raju and Abhay) that they were

proceeding to Parbhani in search of job. PW-4 has given

evidence that these boys advised to return to their house

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by saying that Parbhani is bad place, (it was not safe for

them). PW-4 has deposed that these two boys told that at

3.00 p.m. there was a train for Partur and they should

return to Partur by that train from Parbhani. She has

deposed that as there was time of more than three hours,

to kill the time, they decided to see a movie in a theatre,

Talreja Talkies. These two boys gave tea to them in a

hotel. She has given evidence that with these two boys

they went to Talreja Talkies to see movie. These two boys

sat on one side of these two victim girls in the theatre.

The evidence given by PW-5 on this incident is similar to

the evidence given by PW-4.

24) PW-4 has given evidence that after some time

the three boys came to them and they sat on their left side

and they opened talk by asking as to from where they had

come. PW-4 has given evidence that she disclosed that

they had come to Parbhani and they wanted to see Sham

Agrawal as they were in search of job. PW-4 has given

evidence that these three boys (accused Nos.1 to 3) said

to them that they were knowing Sham Agrawal and they

would take them to the house of Sham Agrawal. These

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three boys, accused Nos.1 to 3, are identified by PW-4 in

the Court as the same boys. PW-4 has given evidence that

when these boys were having talk with them, the first two

boys who had come with them from the train left the

theatre. PW-4 has given evidence that accused No.1 to 3

then took them out of the theatre and after calling auto-

rickshaw they asked to them to board the auto-rickshaw.

She has given evidence that due to aforesaid

representation made by accused Nos.1 to 3, they boarded

the auto-rickshaw.

25) Evidence given by PW-5 shows that she could

not hear the conversation which was going on in between

PW-4 and accused Nos.1 to 3. She has given evidence that

these 3 boys had some talk with PW-4. She has given

evidence that after some talk, the three boys took them

out of the theatre. PW-5 has correctly identified accused

Nos.1 to 3 in the Court as the same three boys by taking

their names. She has given evidence that in the auto-

rickshaw they were taken to the house of a friend of

accused Nos.1 to 3. PW-5 has given evidence that there,

meal was provided to them by these three boys and then

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by saying that they would take them to the house of Sham

Agrawal they again took them in one auto-rickshaw and

they took them by the auto-rickshaw upto banana garden.

Similar evidence is given by PW-4.

26) PW-4 has given evidence that in banana garden

there was no house and the soil had become wet and

slippery due to rain. She has given evidence that accused

Nos.1 to 3 took them inside of the banana garden and

then accused No.1 Suryakant took her to one side of the

garden and there by making her to fall on the soil he

raped her by using force. She has given evidence that

accused Nos.2 and 3 Arun and Suresh took PW-5 to other

side of the garden. She has given evidence that after some

time when the incident was over, she was taken to the

place where PW-5 was present and then PW-5 informed

that accused No.2 and 3 had raped her. She has given

evidence that she also told PW-4 that she was raped by

accused No.1. PW-5 has given evidence that in the banana

garden accused No.5 pointed a knife and wagh-nakh to

her for giving her threats and after that she was raped

one by one. Evidence of PW-5 is similar to the evidence

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given by PW-4. Their evidence shows that this incident

took place at 3.00 p.m. of 4-7-1994.

27) PW-4 has given evidence that from banana

garden they were taken towards the side of one brook,

nala, for washing the clothes and the body as due to

aforesaid incident their clothes had become muddy. PW-4

has deposed that at this place accused No.2 and 3 took

her to one side and accused No.1 took PW-5 to other side

of the brook. She has deposed that at that place she was

raped by accused Nos.2 and 3. She has described the

incident of rape. She has deposed that after that PW-5 met

her and she disclosed when she was asked to wash clothes

and body, she was raped by accused No.1 Suryakant by

giving threats to her and after showing a knife to her. PW-

5 has given evidence that near the brook she was raped by

accused No.1 and she had not given consent and after this

incident she met PW-4 and disclosed about the incident.

She has deposed that PW-4 also disclosed that she was

raped by accused Nos.2 and 3.

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28) PW-4 has given evidence that from the brook

when they went towards the road for going to Parbhani,

on the road one friend met to accused Nos.1 to 3 and he

was accused No.4. Similar evidence is given by PW-5 and

both these victim girls have identified accused No.4 in the

Court. PW-5 has given evidence that after arrival of

accused No.4 again threat was given to them of life and

then they were taken to Parbhani. PW-4 has given

evidence that in auto-rickshaw they were taken to Visawa

Lodge of Parbhani and there they were taken to room

No.16 of the lodge and at that time it was around 10.00

p.m. She has given evidence that in room No.16 there was

one ante room and there was a cot. Similar evidence is

given by PW-5.

29) Evidence of PW-4 shows that after taking them

to the ante room accused Nos.1 to 4 said to them that

their Sahebs would come there. PW-5 has given evidence

that it was told that these Sahebs help the poor and needy

persons so they should wait for the Sahebs. Both of the

them have given evidence that accused Nos.1 to 4

remained there in room No.16 till arrived of the two

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Sahebs.

30) PW-4 has described the two Sahebs by giving

description of their appearance and their clothes. Accused

Nos.6 and 7 are identified by PW-4 in the Court. PW-5 has

also described these two persons and she identified

accused Nos.6 and 7 in the Court.

31) PW-4 has given evidence that these accused

Nos.6 and 7 had talk with them and they said that the two

victim girls should allow them to do what was done with

them by other persons (accused Nos1 to 3). PW-4 has

given evidence that she said that they should not do such

things with them as they were having pains due to wrong

done by those boys. Similar evidence is given by PW-5

against accused Nos.6 and 7.

32) PW-5 has given evidence that accused Nos.6

and 7 did not pay heed to their request and accused No.6

took PW-5 to one room and accused No.7 gave threats to

her and raped her. PW-5 has given evidence that accused

No. 6 took her to other room and there he raped her and

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that she had not consented to sexual intercourse. PW-4

has given evidence that when the incident of rape in

Visawa Lodge was over, PW-5 came to her, she was

weeping and she narrated the incident in which she was

raped by accused No.6. PW-4 has given evidence that both

these accused gave threats not to disclose the incident to

anybody as they were from high society (high family). PW-

4 has given evidence that when accused Nos.6 and 7 were

committing the offence, accused Nos.1 to 4 were present

in Visawa Lodge though in other room and accused Nos.8

and 9 (the staff of the lodge who are acquitted accused)

were present in the vicinity and by remaining there they

had helped accused Nos.6 and 7 for committing the crime.

Both PW-4 and PW-5 have given evidence that after the

incident was over they were taken through backside door,

outside of the lodge by accused Nos.1 to 4.

33) PW-4 and PW-5 have given evidence that from

Visawa Lodge in one auto-rickshaw accused Nos.1 to 4

took them away from the lodge and on the way they

stopped for purchasing liquor bottle and then they were

taken to campus of one school. They have described the

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school building in their evidence.

34) PW-4 and PW-5 have given evidence that they

were taken to the school and they were again raped. PW-

4 has given evidence that in the said school accused No.1

Suryakant and accused No.2 Arun took PW-5 to one room

and remaining two boys took her to other room and they

were Suresh and Rameshwar. In the Court she has

identified all the four accused. Similar evidence is given

by PW-5. She has given evidence that accused Nos.1 and 2

raped her in the building of the school. PW-4 has given

evidence that accused Nos.3 and 4 raped her in the

building of the school. PW-4 has deposed that after the

incident PW-5 narrated the incident of rape on her. PW-5

has given evidence that PW-4 also narrated the incident to

her about rape on her by accused Nos.3 and 4. Both the

victim girls have given evidence that accused No.1

remained with them and the remaining three accused left

them there. Both the victim girls have given evidence that

accused No.1 took them to railway station where they

were left after giving threat of life to them. The evidence

of PW-5 in respect of rape committed by accused No.1 on

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her in one Wada after the incident of rape in the school

need not be discussed as no conviction is given to accused

No.1 in respect of that incident. Similarly, the evidence

given as against accused No.5 on this incident need not be

discussed.

35) The evidence given on subsequent incidents of

rape is considered in Sessions Case No.139/1994. Other

evidence on conduct however needs to be considered in

view of nature of challenge to the evidence of PW-4 and

PW-5.

36) PW-4 has given evidence that till 3.00 a.m. of 6-

7-1994 they were virtually used for satisfying sexual lust

by different persons. The evidence of PW-4 and PW-5

shows that they were tired due to the aforesaid incidents

and they slept in Shakti Building till morning. PW-4 has

given evidence that when she woke up, she noticed that

PW-5 was not there. She has deposed that on inquiry with

the accused they informed that PW-5 had already left that

building and so she went to bus stand. She has deposed

that she boarded a bus for Purna Railway Station and she

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went to Purna. She has deposed that on Purna Railway

Station one lady constable accosted her and on inquiry

she gave her address from Partur. Her evidence shows

that she did not disclose the incidents of rape to the lady

constable. Her evidence shows that the said lady

constable felt it proper to reach this girl to her residential

place, Partur and so she took PW-4 in train towards

Parbhani. PW-4 has given evidence that when she reached

Parbhani Railway Station, she saw PW-5 sitting on the

platform and she pointed PW-5 to the lady constable. Her

evidence shows that the lady countable took steps like

taking PW-5 to Police Chowki of Railway Station Parbhani

and then the lady constable reached PW-4 to Partur on 6-

7-1994. She has given evidence that she was frightened,

she was not able to talk and so in Partur she took meal

and went to bed. Her evidence shows that she did not

narrate the incident to anybody including her mother as

she was afraid that her mother will beat her and mother

will drive her out of the house.

37) The evidence of PW-5 shows that after the

incident of rape was over in Shakti Building, she was

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sleeping in the building till morning of 6-7-1994 and when

she woke up she noticed that PW-4 was not there. She has

deposed that one person present in the building informed

her that PW-4 had already left the building. She has

deposed that she searched for PW-4 and then went to

railway station as she intended to return to Partur. She

has deposed that when she was waiting for train

proceeding towards Parbhani, she noticed that in the

same train PW-4 was travelling. She has deposed that a

lady constable got down from the train and the lady

constable took her to Railway Station Police Chowki and

she was asked to sit there and wait for her. She has

deposed that the lady constable went with PW-4 and she

returned to railway police Chowki in the night time. This

evidence of PW-4 and PW-5 is consistent with each other

and it also shows that they did not disclose about the

incident till the night time of 6-7-1994.

38) PW-5 has given evidence that she was taken to

Railway Police Station Purna and there PSI Khan made

inquiry with her. She has deposed that she narrated all the

incidents but PSI Khan said that he would write down

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whatever he wanted to write and so all the incidents were

not recorded and the incidents were not correctly

recorded. She has given evidence that her signature was

obtained on the complaint but the contents were not read

over to her. On the record, there are some statements

which are shown as supplementary statements and this

point will be considered at proper place. Here only it can

be observed that in view of the surrounding circumstances

the reports given under section 154 or even statements

recorded under section 164 of Cr.P.C. cannot be used in

the present matter for corroborative purpose for some

incidents.

39) The evidence of PW-5 shows that on 7-7-1994

she was taken to Parbhani for medical examination and

there a lady medical officer examined her. She has given

evidence that on 8-7-1994 PSI Khan took over the clothes,

Salwar, Kurta, Punjabi dress and she was wearing those

clothes, article Nos.9,10 and 11, Salwar, Kurta and

Odhani at the relevant time. She has specifically stated in

the evidence that in Salwar, articles 9 the lace is of a

shoe.

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40) PW-5 has given evidence that she was taken to

Kotwali Police Station Parbhani and there PSI Yeshwant

took over her nicker (nicker, underwear was not taken

over by PSI Khan). She has identified the nicker as article

No.6 produced in the Court and her signature appears on

the panchanama dated 8-7-1994.

41) PW-5 has given evidence that on 8-7-1994 she

showed various places where she and PW-4 were raped

like banana garden, the brook, Visawa Lodge and school

campus. She has given evidence that PSI Yeshwant

prepared panchanama of this incident and her signature

was obtained on the panchanama. PW-4 has given

evidence that on 7-7-1994 PSI Yeshwant came to her

house in the noon time and from Partur she was taken to

Parbhani. She has deposed that there in the night time,

her statement was recorded. Her report is proved at

Exhibit 51 in her evidence.

42) The evidence of PW-4 shows that on 8-7-1994

PSI Yeshwant took over her clothes like, Salwar, Kurta.

She has identified the articles as article Nos.4 and 5. She

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has given evidence that these clothes were used by her at

the relevant time and they were on her person right from

3-7-1994. She has given evidence that she had washed

these clothes after returning home on 6-7-1994. The

panchanama of seizure of the clothes is at Exhibit 52.

43) PW-4 has given evidence that on 8-7-1994 PSI

Khan came to Kotwali Police Station and made inquiry

with her and said that he would record the statement in

the manner which he would think proper and correct.

Thus, both PW-4 and PW-5 have grievance against PSI

Khan that he did not record all the incidents narrated by

them.

44) PW-4 has given evidence that on 8-7-1994 PSI

Yeshwant took her with him and then she showed the

places where they were raped. She has given evidence

that PW-5 was also with police. Her evidence shows that

the panchanama document is proved and PW-5 had signed

it on 8-7-1994.

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45) PW-4 has given evidence that on 8-7-1994 she

was referred for medical examination and she was

examined in Parbhani.

46) The aforesaid evidence shows that PW-5

disclosed the incident first to police i.e. on 7-7-1994 and

the first disclosure was made by PW-4 on 7-7-1994 in the

night time. This circumstance needs to be kept in kind in

view of the nature of challenge to the prosecution

evidence.

47) Ishteq Ahmed Khan (PW-17) is the investigating

officer who has given evidence on the seizure of clothes of

PW-5 on 8-7-1994. He has deposed that articles 9,10 and

11 were taken over by police under panchanama which is

proved at Exhibit 155. On the label pasted on the articles

there are signatures of the panch witnesses. This witness

is cross-examined by learned Special Public Prosecutor

due to the aforesaid grievance of PW-4 and PW-5 against

him. He has denied that he did not record the information

given by these two victim girls in respect of all the

incidents of rape. He has, however, given evidence on

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other part of the investigation made by him. Thus, there

is no independent evidence on the seizure of the clothes of

PW-5 by police officers and there is evidence only of PW-5

and this police officer.

48) PSI Yeshwant (PW-18) was attached to Kotwali

Police Station, Parbhani. He has given evidence that when

he learnt that PW-5 had given her report to Purna Railway

Police Station and it was a case of gang rape, he supplied

the information to the District Superintendent of Police

Parbhani. He has deposed that he was directed to go to

Partur and bring PW-4 to Parbhani and make the

investigation. He has deposed that he brought PW-4 to

Parbhani, he made inquiry with her on 8-7-1994. He has

deposed that on the basis of this report of PW-4 he

registered the crime at CR No.73/1994 at Kotwali Police

Station in the night time i.e. on the night between 7 and 8

of July 1994. This report is proved at Exhibit 51.

49) Yeshwant (PW-18) has given evidence that he

prepared separate teams for making investigation of the

matter and his officers took accused No.1 Suryakant,

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accused No.2 Arun, accused No.4 Rameshwar, accused

No.8 Dnyanoba and accused No.9 Machindra in custody.

50) Yeshwant (PW-18) has given evidence that he

took over the clothes of PW-4 under panchanama on 8-7-

1994 in CR No.73/1994. In his evidence the panchanama

is proved at Exhibit 52. He has identified the clothes of

PW-4 as article Nos.4 and 5, Salwar and Kurta.

51) Yeshwant (PW-18) has given evidence that on 8-

7-1994 he made inquiry with PW-5 about her clothes and

he realised that her clothes like Salwar, Kurta were

already taken over by Railway Police Station Purna. He

has given evidence that as he realised that her underwear

was not taken over, he took over the underwear under

panchanama in CR No.73/1994 of Kotwali Police Station.

The panchanama at Exhibit 65 is proved in his evidence

and he has identified the underwear as Article No.6. On

this panchanama there are signatures of panchas also.

The evidence of Yeshwant (PW-18) also shows that there is

no independent corroboration of the evidence of panch

witness to the seizure of the clothes made by Yeshwant.

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52) API Shaikh Mujib (PW-19) has given evidence

on the two reports recorded by him of PW-4 and PW-5.

Evidence of Yeshwant (PW-18) shows that he had sent the

victim girls to New Mondha Police Station as there was no

toilet facility in Kotwali Police Station. Evidence of Shaikh

Mujib (PW-19) shows that he made inquiry with PW-5 and

he created two separate reports on the basis of statement

given by PW-5. He has deposed that he registered CR No.

81/1994 in respect of the incidents of rape which had

taken place in banana garden, near brook, in the campus

of the school, in Visawa Lodge and in Munde Wada. He

has deposed that in the second report he recorded the

incidents which had taken place in retiring room and in

the railway quarters of accused No.4 of other case and

Shakti Building. It appears that CR No.82/1994 was

registered in New Mondha Police Station in respect of the

subsequent incidents. In present matter the investigation

was made in CR No.81/1994. In the cross-examination of

PSI Khan (PW-17) it is suggested by the Special Public

Prosecutor that in the report of PW-5, Exhibit 82, some

incidents were not recorded. Similar suggestions are

given in respect of statements of PW-4 recorded by Khan

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(PW-17) on 8-7-1994 and 12-7-1994. It is also suggested

that some portions from Exhibit 82 were not stated before

him by PW-4 but he recored them. Defence has also

brought on record some portions from the previous

statements of the two victim girls and those portions are

proved in his evidence at Exhibits 159, 160, 161 and 162.

Some portions from the statement of PW-5 are proved at

Exhibits 163, 164, 165 and 166. Some portions like

portions at Exhibits 172, 173 and 174 from the previous

statement of PW-4 are in respect of the other case. Some

portions like portions at Exhibits 178, 179, 180, 181, 182

and 183 in respect of the present case cannot be called as

contradictions as they are not inconsistent with the

version given by PW-5. There are more such portions in

respect of other statements and this point needs to be

considered and decided as one objection or challenge of

defence.

53) PSI Yeshwant (PW-18) has given evidence that

on 8-7-1994 PW-4 and PW-5 showed him the places where

the incidents of rape had taken place and they were

banana garden of One Mr. Subhedar (Exhibit 87), near

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brook (Exhibit 88), the school campus (Exhibit 89) and

Munde Wada (Exhibit 90). His evidence shows that one

other place, Visawa Lodge was also shown by the victim

girls but this place was not within his local jurisdiction

and so he did not prepare panchanama of that place.

Yeshwant (PW-18) has given evidence that on 8-7-1994 he

referred PW-4 for medical examination.

54) Chalak (PW-20), Circle Police Inspector (CPI -

Parbhani Rural) took over investigation of CR No.81/1994

registered in New Mondha Police Station Parbhani, the

present matter, from Sub Inspector of the said police

station. The other Crime at CR No.73/1994 was registered

in Kotwali Police Station which is also in respect of

present matter. The evidence of Chalak shows that during

investigation PW-5 showed to him room No.16 of Visawa

Lodge where the offence of gang rape was committed. He

has given evidence that in the presence of panch

witnesses he took over two bed-sheets which were found

in room No.16 and also one underwear. He has deposed

that PW-4 identified the said underwear as her underwear.

He has identified article Nos.1,2 and 3 which are shown to

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be seized in CR No.81/1994 of New Mondha Police

Station. Exhibit 122 is proved in his evidence and the

evidence shows that there were labels bearing signatures

of panchas on these articles.

55) The evidence of Sahebrao Vyavahare (PW-22),

Police Inspector of CID Crime shows that he took over the

investigation of the present matter viz. CR No.73/1994

registered in Kotwali Police Station and CR No.81/1994

registered in New Mondha Police Station from the

previous investigating officers including from Chalak. His

evidence shows that he again recorded supplementary

statements of PW-4 and PW-5. Thus, the investigation was

made by many police officers as mentioned above and that

was due to the grievance expressed in social media and

also by the two victim girls. The evidence of Vyavahare

shows that the grievance was raised in State Legislative

Assembly also.

56) Both PW-4 and PW-5 have identified in the

Court all the appellants from the present appeals as the

persons who committed rape on them. T.I. parade was

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arranged for giving opportunity to PW-4 and PW-5 to

identify these persons after their arrest. The evidence of

PW-4 shows that in the first T.I. parade she was asked to

identify the persons who had committed rape on her and

13 persons shown to her in the campus of jail, Parbhani.

She has given evidence that in the said T.I. parade she

identified accused No.1 Suryakant, accused No.2 Arun

and accused No.3 Suresh. She has deposed that she also

identified the two persons who were present in the lodge

as managers and she identified accused No.8 Dnyanoba

and accused No.9 Machindra in the T.I. parade. The

evidence given as against accused Nos.8 and 9 need not

be considered as they are acquitted and the acquittal is

not challenged. PW-4 has given evidence that on 20-8-

1994 in another test identification parade (T.I. parade) she

identified one person who was an associate of the other

accused who had committed rape on her. In the Court she

has pointed accused No.6 Nitin as the person who was

identified by her in the jail. PW-5 has also given evidence

on the T.I. parades dated 2-8-1994 and 20-8-1994. She has

given evidence that she identified accused Nos.1 to 4 in

T.I. parade. She pointed these accused in the Court also by

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saying that they were identified by her in the T.I. parade.

She identified even accused Nos.8 and 9 in the T.I. parade

and she pointed these persons also in the Court as the

persons who were identified by her in the T.I. parade. PW-

5 has given evidence that on 20-8-1994 she identified

accused No.7 as the person who was associate of the

persons who had raped her. She pointed accused No.7 in

the Court as the said person.

57) The evidence of PW-4 and PW-5 on the T.I.

parade shows that they identified accused No.6 and

accused No.7 in the Court but by saying that they were

the associates of the persons who had raped them. In any

case it needs to be kept in mind that both accused Nos.6

and 7 came to be identified in T.I. parade dated 20-8-1994.

Namdeo Jadhav (PW-16), the Tahsildar and Executive

Magistrate, who conducted the T.I. parade has given

evidence on these two T.I. parades. The correspondence

made with him by police and the correspondence made by

him with the jail is proved in his evidence. His evidence

and the evidence of PW-4 and PW-5 shows that precaution

was taken by him to see that the girls were separately

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taken to the place where the T.I. parade was conducted.

He has given evidence which is similar to the evidence of

PW-4 on the first T.I. parade and the record is consistent

with the oral evidence. Similar evidence is there showing

that PW-5 identified accused Nos.1 to 4 and also accused

Nos.8 and 9 in the first T.I. parade. Relevant record is

proved as Exhibit 139.

58) Namdeo Jadhav (PW-16) has given evidence on

the second T.I. parade dated 20-8-1994. He has given

evidence that he first asked PW-4 to identify the accused

and she identified accused No.6. He has given evidence

that PW-5 identified accused No.7. The record of T.I.

parade prepared by him is proved as Exhibit 142. The

challenge of the defence to the evidence of T.I. parades is

being considered at later stage. The evidence as a whole

on the T.I. parade shows that accused Nos.1 to 4 and

accused Nos.6 and 7 who are convicted by the trial Court

were identified by PW-4 and PW-5. Thus, there is evidence

of two victim girls given in the Court to the effect that

they identified these accused in the Court and there is

also evidence of T.I. parade showing that in the T.I. parade

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they together identified the appellants and this evidence is

available as corroborative piece of evidence.

59) There is medical evidence in corroboration to

the versions given by the two victim girls on the incidents

of rape. It is possible for the defence to say that as per

the versions given by the two victim girls, they were raped

in banana garden and also near book before the offence

was committed by accused Nos.6 and 7 against them in

Visawa Lodge and to that extent the medical evidence

cannot be used as corroborative piece of evidence as

against accused Nos.6 and 7. This point can be kept in

mind and it can be ascertained as to whether the evidence

given against accused Nos.6 and 7 is convincing and it

can form base for conviction.

60) The evidence of Dr. Jaishri (PW-13) shows that

she examined PW-5 on 7-7-1994 and she found following

things.

"On local examination she found :

1. Matting of pubic hair was seen.

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2. Blood stains on clothes genital.

3. No evidence of external injuries over the genitals.

4. Hymen - Torn, congested + oozing through the tear
present.

5. P.S. - Speculum could be passed with difficulty,
tenderness i.e. severe tenderness.

6. Bleeding through cervical O.S. seen.

On P.V. Examination she found:

Vagina admits 1 finger with a pain i.e. severe tenderness.
Bleeding through cervical was present."

Evidence of Dr. Jaishri shows that she had taken vaginal

swab and she had sent it to C.A. office. However, she did

not find live or dead spermatozoa in the vaginal swab.

61) Dr. Jaishri (PW-13) has given evidence that she

examined PW-4 on 8-7-1994. She found following things

during the examination.

"On local examination she found :

1. Matting of pubic hair not seen;

2. Blood stain on clothes genitals were seen.

3. Posterior fourchette congested and redness.

Libia minor was slightly congested.

4. Hymen - torn (old tear) No oozing, Bleeding
through vagina was present.

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5. No evidence of injury over the external genitals.

Her other evidence is as follows :--

Per speculum examination I found :

Medium size speculum passed with the minimum
tenderness means pains; Bleeding through cervical was
seen; vaginal swab was taken and sent for chemical
analysis and for microscopic examination. vaginal
mucosa is congested. I have used the word congested -
it means redness. Uterus - normal size extroverted;
Bleeding through cervical seen; vaginal smear taken for
microscopic examination which revealed - No living or
dead spermatozoa. The living spermatozoa are seen
within 2 to 3 hours after the sexual intercourse and dead
spermatozoa are seen if examined within 24 hours from
sexual intercourse."

Her evidence shows that she sent pubic hair and vaginal

swab of PW-5 also to C.A. office. However, she did not

notice live or dead spermatozoa in vaginal swab. She has

given evidence that live spermatozoa can be seen within 2

to 3 hours after sexual intercourse and dead spermatozoa

can be seen if examined within 24 hours from the sexual

intercourse. The evidence already discussed shows that

both PW-4 and PW-5 were examined after 24 hours of the

last incident of rape. She has given specific evidence on

the basis of examination done by her of PW-4 and PW-5

that against PW-4 and PW-5 sexual intercourse had

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occurred. The certificates issued by her are proved as

Exhibits 127 and 129. X-ray plates in respect of these two

girls are at Exhibits 126 and 128 but that record is being

discussed at later place for deciding the point of age of

the victim girls. Here only one circumstance needs to be

mentioned that Dr Jaishri has admitted in the cross-

examination that bleeding from vagina of the victim girls

was possible due to menses. However, this admission has

no relevance as other symptoms mentioned by her in the

evidence are in support of sexual intercourse, rape. She

has given evidence in the cross-examination that tear of

hymen in respect of PW-4 was old indicating that she was

accustomed to intercourse but that circumstance need to

be considered on the background of the age of this victim

girl and also after considering the direct evidence given

by PW-4. Thus, the medical evidence gives general

corroboration to the versions given by the two victim girls.

62) The prosecution has examined Abhay Kulkarni

(PW-2), a boy who had met PW-4 and PW-5 in the train

when they were proceeding towards Parbhani on the first

day. He has given evidence that he and his friend Raju had

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met these girls and they had taken these two girls to

Talreja Talkies Parbhani. He has given evidence that in

the Talreja Talkies due to inquiry made by the manager of

the theatre with them as they were in the company of the

minor girls they became frightened and they left the

theatre. He is cross-examined by learned Special Public

Prosecutor as he did not identify accused Nos.1 to 3 as

the same boys who had taken over the control of PW-4

and PW-5 in the theatre and no evidence is given by them.

However, there is evidence on the circumstance that the

two victim girls were taken to Talreja Talkies by them.

63) Bandu Raut (PW-3) is resident of Parbhani and

he has given evidence that he knew accused No.1

Suryakant and accused No.2 Arun from prior to the date

of incident. He has given evidence that in the year 1994

accused Nos.1 and 2 with their one male friend had

brought two girls to his house. He has given evidence that

he remembered the incident as this incident took place

within one month of his own marriage. He has admitted

that he had supplied food to the girls. He stood to the test

of cross-examination and his version gives corroboration

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to the versions of PW-4 and PW-5 which is given at least as

against accused Nos.1 and 2.

64) Chalak (PW-20) has given evidence that after

taking over the investigation of the present mater on 16-7-

1994 he filed an application before the Judicial

Magistrate, First Class to take action against accused

Nos.6 and 7 as they were absconding. Action was

proposed under sections 82 and 83 of the Criminal

Procedure Code. He has given evidence that ultimately he

could arrest accused Nos.6 and 7 on 5-8-1994. This

evidence is on the circumstance that accused Nos.6 and 7

were absconding even when police had realised that they

were involved in the offence of gang rape committed in

Visawa Lodge.

65) Chalak (PW-20) has given evidence that on 6-8-

1994 while in police custody accused No.6 Nitin gave

statement in the presence of panch witnesses in respect of

the incident and also the clothes which were on his

person. Two memorandums of the statements are at

Exhibits 98 and 99. The evidence on showing the lodge by

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accused No.6 is of no use as this spot was known to

police. Evidence is given by Chalak that after preparing

second memorandum accused No.6 took police and the

panchas to his house and from his house he produced his

clothes like one Bush shirt, full pant, one banyan and

underwear and a goggle of golden frame. Articles 5 to 8

and 14 are identified by Chalak as the same articles and

they were shown as seized in CR No.81/1994 registered in

New Mondha Police Station. His evidence shows that

except article 7, underwear, there were labels bearing

signatures of panchas on other articles. The seizure

panchanama is proved as Exhibit 100. Shivaji panch

witness on this incident has given evidence on the

memorandum of the statement and also the seizure

panchanama and there is no reason to disbelieve this part

of the evidence.

66) Chalak (PW-20) has given evidence that on 6-8-

1994 accused No.7 - Kalyan Renge gave statement in the

presence of panch witness and the memorandum of the

statement is at Exhibit 101. He has given evidence that

after giving statement accused No.7 took police and the

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panch witnesses to Jam Society area. He has given

evidence that accused No.7 then produced from his house

his clothes like white shirt, white pant, underwear, banian

and one chain of beeds. He has given evidence that he

seized all these articles and they are article Nos.9,10,11,

12 and 15 in CR No.81/1994 registered in New Mondha

Police Station under panchanama at Exhibit 102. He has

identified these articles in the Court. His evidence shows

that article 10 and 11, pant and underwear, were not

having labels bearing signatures of panchas when he was

examined in the Court. Panch witness Shivaji Gore (PW-7)

has given similar evidence on this incident.

67) The evidence of Chalak (PW-20) shows that he

had sent all these articles to CA office along with covering

letter. This record is at Exhibits 221 and 222.

68) Yeshwant (PW-18), the Police Sub Inspector of

Kotwali Police Station has given evidence that during

investigation he arrested accused No.1 Suryakant and he

took over his clothes like pant, shirt, underwear and

banian (articles 7,8,9 and 10) in CR No.73/1994 registered

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in Kotwali Police Station Parbhani. He has given evidence

that the articles were kept in different cloth bags and they

were sealed by him and the panchanama at Exhibit 85 was

prepared accordingly by him.

69) Yeshwant (PW-18) has given evidence that after

arrest of accused No.2, Arun he took over his clothes,

article Nos.11,12,13 and 14 in CR No.73/1994 under

panchanama at Exhibit 86. All these articles were having

labels bearing signatures of the panchas and his

signature. Similarly, on the articles which were taken

over from accused No.1 there were labels even in the

Court bearing signatures of the panchas.

70) Yeshwant (PW-18) recorded statement of Bandu

Raut. He had referred accused Nos.1 to 4 arrested by him

for medical examination and there is record of medical

examination of these accused persons. Accused Nos.6 and

7 were referred by Chalak for medical examination.

71) Yeshwant (PW-18) has given evidence that on

11-7-1994 in the presence of panchas he seized the

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clothes like pant, shirt, banian and underwear, articles

18,19,20 and 21 in CR No.73/1994 of Kotwali Police

Station and they were on the person of accused No.3,

Suresh. On these articles there were labels bearing

signatures of panch witnesses when the clothes were

shown to him. The panchanama of seizure of these clothes

is at Exhibit 91.

72) Yeshwant (PW-18) has given evidence on the

recovery of brass fighter on the basis of the statement

given by accused No.2 Arun and that record is at Exhibits

92 and 93 and that record need not be considered in

detail in view of the nature of evidence given by the two

victim girls. Similar evidence is given on the recovery of

jambiya on the basis of statement given by accused No.1,

Suryakant and that record is at Exhibits 94 and 95.

73) Yeshwant (PW-18) had recorded statement of

Abhay (PW-2) who turned hostile and the relevant portions

from the police statement of this witness are proved at

Exhibits 191 to 193.

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74) Yeshwant (PW-18) has given evidence that he

had sent the aforesaid articles seized by him to CA office

and the relevant record is at Exhibits 194 and 195. He had

referred both the victim girls to the Judicial Magistrate for

recording their statements under section 164 Cr.P.C. The

evidence of Yeshwant (PW-18) and the record show that

panchas on the seizure of these articles made by Yeshwant

were not examined and so the prosecution relied entirely

on the evidence of Yeshwant (PW-18) on this piece of

circumstantial evidence.

75) It is the specific case of the prosecution that

both the victim girls viz PW-4 and PW-5 had not completed

age of 16 years at the relevant time and so there was no

question of giving of consent by them for sexual

intercourse. The tenor of the cross-examination of the two

victim girls by the defence counsels shows that they tried

to create probability of consent. In view of these

contentions of the two sides the evidence given by the

prosecution for proving the age of the two girls needs to

be considered separately. This evidence is being discussed

while considering the other challenges of the defence to

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that evidence and also the aforesaid evidence.

76) The challenges of the defence to the aforesaid

evidence of the prosecution and other contentions made

for the accused persons are as under :

CHALLENGES

(i) Both the victim girls did not disclose the incidents

immediately even when they had opportunity to disclose

the incidents to the persons in the vicinity and even to the

parents. They disclosed the incidents only when police

specifically made inquiry with them.

(ii) Both the victim girls gave different versions when

different police officers recorded the reports. Both the

victim girls did not narrate some of the incidents of rape

when they made first disclosure and then did not disclose

some incidents even when their statements were recorded

by the Judicial Magistrate under section 164 of the Cr.P.C.

(iii) The victim girls had left the shelter of their

guardians/parents on their own and so no offence of

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kidnapping or abduction was committed by any of the

accused.

(iv) The evidence given by the prosecution on age is not

that convincing and the victim girls had probably crossed

the age of 16 years at the relevant time.

(v) There is probability that the victim girls were major

and they consented to the alleged acts of the accused.

(vi) The medical evidence is not that convincing and it

does not give corroboration to the versions of the

prosecutrix. Other circumstantial evidence like CA reports

also do not corroborate the case of the prosecution.

(vii) The evidence of T.I. parade cannot be relied upon as

the procedure laid down in Criminal Manual of this High

Court was not followed. The Executive Magistrate did not

act fairly.

(viii) The evidence of the investigating officers shows that

the State was required to change the officers many times.

Their evidence creates probability that they were not fair

during conducting the investigation.

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77) This Court is considering the aforesaid

challenges one by one. Similar challenges are there in the

other set of appeals. The challenge with regard to the age

of the victim girls needs to be considered first as many

things depend on the finding given on this point.

Age of the victim girls.

78) The evidence of the prosecution on the age of

the victim girls is in the form of oral evidence of two

victim girls. There is also defence evidence in the nature

of evidence of mother of one victim girl. The prosecution

has placed reliance on the record of date of birth in

respect of PW-4 and the school record in respect of PW-5.

The prosecution has also relied on the evidence of medical

opinion on age of the two victim girls.

79) In the case reported as 2014(2) Mh.L.J. (Cri.)

353 (Mahesh vs. State of Maharashtra) , the Single Judge

of this Court (one of us) had an opportunity to consider

various kinds of evidence which can be available for

proving the date of birth or age and the importance of

each piece of evidence and the precedence which needs to

be given when the two pieces of evidence are inconsistent

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with each other. This Court referred the case of the Apex

Court reported as AIR 1982 SC 1297, Jaya Mala vs. Home

Secretary, Government of Jammu and Kashmir and

others) and made following observations:

"13. 'Age' as ingredient of both the aforesaid offences
is required to be proved beyond reasonable doubt. This
'proved' under section 3 of Evidence Act needs to be
proved like any other fact in criminal case. Oral
evidence as to the age may always be available in such
a case. Where a person gives evidence on oath, the
Court is expected to start with presumption that he has
spoken the truth. Only because in a case like present
one, when there is oral evidence on age and it is given
by the interested witnesses like mother or father, the
Court is expected to look for corroboration.
Corroboration need not be only of expert evidence.
Corroboration may be of circumstances which may
differ for each case. The opinion of doctor on clinical
or radiological examination cannot be accepted
straight way as a legal proof. The margin of error is of
two years on either side even when the age is
ascertained on the basis of radiological examination.
(Reliance placed on AIR 1982 SC 1297, Jaya Mala vs.
Home Secretary, Government of Jammu and Kashmir
and ors.]. It is only medical opinion and other evidence
including oral evidence cannot be discarded only
because the medical evidence is in conflict with the
oral evidence. Further, the medical evidence cannot
stand against entries made in birth register, which are
properly authenticated. Entry made in birth register
has presumptive value in view of section 17(2) of Birth
and Death Registration Act, 1969 and this position of
law needs to be kept in mind, when there is conflict
between medical evidence and the other evidence.

14. In view of section 35 of Evidence Act, the entry
made in school register about the date of birth also
needs to be treated as relevant. Such register is kept
in regular discharge of duty by school and it is
required to be kept as per the Rules made by the State
Government. When such entry was made before
starting of dispute, many years prior to the

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commission of offence and when entry is proved by
giving oral evidence of the concerned, due weight
needs to be given to such entry. Such entries need to
be treated as relevant and admissible in evidence,
though such entry cannot form sole clinching factor for
determining the age. It has no presumptive value like
in the case of entry made in birth register as already
observed."

80) PW-4, the first victim girl, has given evidence

that she was born at Amarawati on 12-3-1979 and she

received education in Lal Bahadur Shastri School at

Partur. She has given evidence that her surname is

Agarwal and also Mor. She has given evidence that she

received education only up to 5 th Standard and then she

left the school. Her father died in the year 1989 and she

was living with her mother, brother and sister at Partur at

the relevant time. In the cross-examination it is brought

on record that in Amarawati there lives her uncle and the

surname of the uncle is Mor though the family of PW-4

uses the surname as Agrawal. She has given evidence

that in the school record her surname is shown as

Agrawal. It is suggested to her that she was 13 years of

age when she was studying in 6 th Standard but she has

denied that suggestion. She has admitted that she has

three more sisters and her elder sister is married but

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remaining two are unmarried. She has given age of her

two younger sisters as 15 years (of Shital) and 13 years

(of Shivkanya) as on 25-11-1997. It is brought on record in

her cross-examination that to police she has given the age

approximately. It is brought on record in the cross-

examination that her elder sister was given in marriage

when the sister was 18 years of age and her marriage had

taken place 2 years prior to the date of the incident. She

has given specific evidence in the cross-examination that

she was 14 years old when she was working as maid-

servant with some persons.

81) It appears that PW-4 had given different age in

different statements which were recorded by investigating

officers and the age given was more than 16 years. Her

evidence shows that she was frightened and she did not

want to inform the incident even to her mother. The

circumstance that one lady constable picked up PW-4 at

Purna and she reached PW-4 at Partur is also there to

indicate that police felt that she was under age and her

care needs to be taken. It can be said that she wanted to

avoid further trouble and that is why she had tried to tell

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the age which was not correct and she was giving age

which was higher than her correct age. Even if the

answers given by her with regard to the age of her sisters

are considered as they are, they do not lead to an

inference that she had crossed the age of 16 years at the

relevant time. In such cases if there is record of date of

birth which has presumptive value, that record needs to

be given more weight than the information supplied to

police even by victim, like PW-4.

82) For proving the date of birth of PW-4 the

prosecution has examined one Krishnarao Choudhari (PW-

14), who was working as clerk in Dhapibai Maternity

Home, Amarawati. He has given evidence that as per the

record of the hospital, one Kirandevi Ramgopal Mor was

admitted in this hospital for delivery on 12-3-1979 and on

the very day she delivered a female child at 1.30 p.m. He

has given evidence that as per the register this was

second female child to Kirandevi. Certificate was issued

on the basis of entry made in this register and that is

given Exhibit 133. Krishnarao Choudhari (PW-14) has

given evidence that his hospital had informed about this

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birth to Municipal Corporation Amarawati. It is suggested

during his cross-examination that the entry cannot be

read as for the second female child as there is no specific

mention that whether it was a second female child or

second male child. However, it was an entry of a female

child. The oral evidence given by PW-4 and her mother

can be considered in that regard. Some cross-examination

is on the point that each entry was not signed by the

person who had maintained the register but this

circumstance cannot go to the root of the matter as it was

the register regularly maintained by the hospital and the

information was supplied on the basis of this entry to the

local body.

83) Dr. Rajkumar Dehankar (PW 15) is examined to

prove the entry of birth date made in the record of

Municipal Corporation Amarawati. This witness was in

charge of the birth and death register maintained under

the Act of 1969. This witness had brought original register

to the Court which includes the period 5-7-1979 to 14-6-

1979. He has given evidence that the entry at Sr. No.2131

of this register is in respect of female child and the name

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of the father of the female child was Ramgopal Mor and

the name of the mother was Kiran. Date of birth was

shown as 12-3-1979 and the daughter was born in

Dhapibai Hospital, Amarawati. Extract of entry is proved

at Exhibit 135.

84) In the cross-examination of PW-15 it is brought

on record that in Column No.6 of the register initially the

name of the hospital where the child was born was

mentioned as "Ji.Stri.Ru." and the said name was

mentioned even in columns 21 and 22. It is brought on

record that subsequently this name was erased and the

name of Dhapibai Hospital mentioned. His evidence shows

that the entries from Sr. Nos.2116 to 2131 were in respect

of the information supplied by Dhapibai Hospital and by

mistake entries at Sr. Nos.2125 to 2131 were mentioned

as the entries made on the basis of information supplied

by "Ji.Stri.Ru". He has given evidence that subsequently

correction was made to show that these entries were also

made on the basis of information supplied by Dhapibai

Hospital. These entries are very old and showing the same

date of birth viz. 12-3-1979. This record is consistent with

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the other record, of Dhapibai Hospital which is already

mentioned. In the record of the hospital surname Agrawal

is also shown when the surname Mor was shown. Much

was argued on the circumstance that the entry was made

mainly for Mor and in the record of local body also the

surname is shown as Mor and there is possibility of

interpolation and manipulation. This submission is not at

all acceptable. It is very old record and in the evidence of

PW-4 it is brought on record that her uncle's surname is

Mor and her family is using the surname as Agrawal. It is

not possible to hold that this entry does not pertain to the

birth of PW-4. The aforesaid correction in the record of

local body was made for many entries like Nos.2125 to

2131 and so it does not look probable that the correction

was made only for the present matter. Thus, the record of

date of birth shows that at the relevant time, in July 1994,

the age of PW-4 was below 16 years.

85) Defence has examined Kirandevi (DW-1) mother

of PW-4. She has stated in the evidence that she has four

daughters and one son. She has given specific evidence

that Rekha is elder issue and PW-4 was born to her after

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Rekha. Though she had tried to say that PW-4 was aged 22

years on the date of deposition i.e. 13-10-1998, the

particulars given by her about the age of her other issues

show that she has falsely stated the age of PW-4 as 22

years. The son was not her second issue and he was 5 th

issue. Her younger daughter was aged about 13 years on

the date of deposition. She has admitted in the cross-

examination that her marriage with Ramgopal took place

24 to 25 years prior to the date of the deposition and the

first issue Rekha was born after 4 to 5 years of the

marriage. She has specifically admitted that PW-4 was

born 3-4 years after the birth of her first issue Rekha.

These admissions clearly show that in the examination-in-

chief she has falsely stated that the age of PW-4 was 22

years. This evidence of the defence shows that the age of

PW-4 as per the evidence of mother was also below 16

years at the relevant time. The circumstance that even the

mother has given evidence in support of the case of the

accused needs to be kept in mind as there are allegations

against some accused and police officers that due to

influence of the accused persons the investigating agency

did not care to correctly record the versions given by the

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two victim girls. This point will be again touched while

considering the other challenge of the defence.

86) Dr. Jaishri (PW-13) has given opinion with

regard to the age of PW-4. She examined PW-4 on 8-7-

1994. The examination was both clinical and radiological.

Her evidence shows that she had taken X-ray plates to

collect the factual data (Exhibit-128). She has given

evidence that as per radiological examination head of

radius was found fused but the lower end of radius was

not fused and the process of fusion had not started. She

has deposed that the X-ray of ilia-crest showed that ilia-

crest had appeared but it was not fused and the process of

fusion had not started. This data, information used for

ascertaining the age and the chart supplied by the Civil

Surgeon in that regard was referred by her and on the

basis of clinical and radiological examination she has

given opinion that age of PW-4 was between 14 and 16

years and it was including margin of error. She has given

specific opinion that the age of PW-4 was not more than

16 years on the date of examination.

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87) PW-5 has given evidence that she was born at

Hiwarkheda, Tahsil Shindkheda-Raja, District Buldhana on

10-7-1981. She has given evidence that her parents live at

Hiwarkheda though she was living at Partur with her

mother's sister. She has given evidence that she received

education in Lal Bahadur Shastri High School Partur up to

6th Standard.

88) Arjun Kukde (PW-21) has given evidence that

PW-5 was student of his school Lal Bahadur Shastri High

School, Partur, District Jalna. The witness is headmaster of

the school and he had brought the original register of the

school. He had also brought admission application in

respect of PW-5. He has given evidence that prior to

giving admission to PW-5 in his school she was a student

of Central Primary School Partur and along with the

admission application she had produced transfer

certificate issued by the previous school (C.P.S.). PW-21

has given evidence that PW-5 was admitted in his school

on 25-6-1991. Original transfer certificate was also

brought by this witness to the Court and the record is

given Exhibits 229, 230, 231 and 232. The oral evidence

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and the record show that the date of birth was informed

as 10-7-1981. This witness is cross-examined extensively

to ascertain as to who had admitted PW-5 in the school.

Though from the signature appearing on the admission

application the name of the person cannot be determined,

there is evidence of PW-5 to the effect that at Partur sister

of her mother and husband of the said sister of her mother

were her guardians and they had admitted her in the

school. This is also very old record and it is not possible

that false record was created by this school only for the

purpose of present matter.

89) The defence has examined Karbhari Nagre

(DW-2) for proving the record of Pre-Secondary School of

Hiwarkheda in respect of PW-5. He has given evidence as

in charge Headmaster that PW-5 was admitted in first

standard on 2-7-1985 and her date of birth was shown as

20-3-1979. Even if the date is accepted as it is, inference

is not possible that at the relevant time, in July 1994, PW-

5 had crossed the age of 16 years. The defence has

examined one Pandurang Nagre (DW-3) who is the

husband of the aunt on maternal side of PW-5. His

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evidence is of no use as his evidence shows that PW-5 was

living with his family for about 10 to 11 years from

childhood. In the cross-examination made by the Special

Public Prosecutor, he has given specific admission that

PW-5 was living with him as the financial condition of her

parents was not good. He has given evidence that date of

birth of PW-5 is 10-7-1981 and she was admitted in Lal

Bahadur Shastri High School at Partur.

90) Dr. Jaishri (PW-13) has given evidence that she

examined PW-5 clinically and radiologically on 7-7-1994.

She has given evidence that in radiological examination

she found that fusion of lower end of radius had not

started though on the head of radius there was fusion. She

has given evidence that X-ray plate of PW-5 showed ilia-

crest but the process of fusion had not started. She has

given evidence that she used this data and on the basis of

clinical and radiological examination she has given

opinion that age of PW-5 was between 14 and 16 years.

She has given evidence that this opinion includes margin

of error and in any case the age of PW-5 was not more

than 16 years on the date of her examination.

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91) The provisions of Birth and Death Registration

Act, 1969 quoted already, and the provision of section 35

of the Evidence Act show that even without examining the

official, certified copy of entry made in the birth register

is admissible in evidence. Further, when there is such

record giving specific date of birth, such record needs to

be given precedence over the school record if there is

inconsistency between the two records. Similarly, the

opinion given by doctor on age if it is inconsistent,

precedence needs to be given to the record of birth date

prepared under the aforesaid Act. In the present matter,

the medical evidence is also consistent with oral and

documentary evidence and no probability is created in this

matter that age of PW-4 or PW-5 was more than 16 years

at the relevant time.

92) Evidence of Dr. Jaishri on opinion as expert

under section 45 of Evidence Act is challenged by

submitting that she is not Radiologist and the X-rays were

not taken by Radiologist. It was also argued that Dr.

Jaishri used a chart given by civil hospital for ascertaining

the age in which tests/data was given. There is no force

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in both the challenges. Evidence of Dr. Jaishri shows that

under her instructions and supervision the X-rays were

taken by the technician. She has completed post graduate

course after completing MBBS. The trial Court has rightly

observed that the chart used by this witness has the basis

of the chart given in Modi's book on medical

jurisprudence in Edition 21. Thus, it cannot be said that

Dr. Jaishri committed error when she used the chart for

giving her opinion on the basis of radiological

examination. Evidence of Dr. Jaishri shows that no other

criteria or tests were confronted by showing the book of

another expert. Thus, no probability is created that the

opinion given by the doctor is not correct. To challenge

the evidence of expert like doctor the opinion of the other

expert needs to be confronted and then the matter needs

to be left to the court to decide the point. When the

opinion is based on some data and the Court is satisfied

with the opinion given by such expert, it becomes the

opinion of the Court. In view of these circumstances it is

not possible to interfere in the finding given by the trial

Court on the age of PW-4 and PW-5 which is to the effect

that both the victim girls had not completed 16 years of

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age at the relevant time. This Court holds that the age of

both the victims was below 16 years at the relevant time.

93) Both the sides placed reliance on some

reported cases. In the case reported as (2011) 2 SCC 385

(Alamelu v. State), there was inconsistency in the opinion

given by the medical officer which was on clinical

examination and the opinion given by Radiologist. The

Radiologist had given higher age and the age was given

approximately. The Apex Court considered the possible

margin of error. Further the school record was not proved

properly. Thus, the facts of the reported case were

altogether different. Similarly, in the case reported as

(2016) 1 SCC 696 (State of M.P. v. Munna) the facts were

different. There was no record of birth register. Mother's

evidence on factual aspect was not found convincing and

the Court held that the opinion of the Radiologist was

necessary, which was not available.

94) In the case reported as (2010)1 SCC 742 (Sunil

v. State of Haryana) on which reliance was placed by the

counsel for the accused, the facts were different. The

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prosecutrix was not certain about her age and there was

no record on the basis of which she had given age. In that

case the doctor had clinically examined the prosecutrix

and had sent the prosecutrix to Dental Surgeon/

Radiologist for verification but such verification was not

done. Thus, the doctor who had done clinical examination

was also not sure about the opinion which was formed on

the basis of clinical examination. In view of these

circumstances, the Apex Court held that there was

probability that the age of the prosecutrix was not below

16 years. However, the Apex Court made it clear that

there is no rule as such that such examination needs to be

done in every case.

95) In the case reported as 2010 Cri.L.J. 192 (State

of H.P. v. Jarnail Singh) , in view of the facts and

circumstances of that case the school record and the

Panchayat record was not believed by the Court. The

learned Additional Public Prosecutor placed reliance on

the case reported as (2015) 7 SCC 773 (State of M.P. v

Anoop Singh). In this case the importance of the

documents in respect of date of birth is discussed by the

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Apex Court. It is laid down by the Apex Court that such

record has the precedence over medical opinion. There

cannot be dispute over this proposition.

The Other challenges of defence to the evidence and
consideration of the evidence on the offences :

96) The trial court has convicted accused Nos.1 to

3 for offence of kidnapping punishable under section 366

read with 34 of the IPC as they had taken PW-4 and PW-5

from Talreja Talkies to banana garden and then to the

brook with common intention to commit offence of rape.

They are convicted for offence of gang rape punishable

under section 376(2)(b) of the IPC for committing offence

of gang rape at banana garden and at Pingad-Gad-Nala.

Accused Nos.1 to 3 are convicted for offence punishable

under section 366-A read with 34 IPC for taking the victim

girls from Pingad-Gad-Nala to Visawa Lodge as they were

virtually supplying PW-4 and PW-5 for committing offence

of rape to accused Nos.6 and 7. In Visawa Lodge, accused

Nos.6 and 7 committed rape and they could do it due to

the assistance and common intention of accused Nos.1 to

4 and so all of them are convicted for the offence of

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commission of rape committed against PW-4 and PW-5 by

accused Nos.6 and 7. Accused Nos. 1 to 4 are convicted

for offence punishable under section 366/34 as they had

taken PW-5 from Visawa Lodge to the school campus with

the same intention. Accused Nos.1 to 4 did commit

offence of gang rape in the campus of the school against

PW-4 and PW-5 and so they are convicted for such

offences committed in the campus of the school.

97) The evidence given by PW-4 and PW-5 as

against accused Nos.1 to 3 is already quoted. The cross-

examination of these two victim girls made by defence

counsels shows that it was with the object to bring on the

record that these two girls had taken initiative and there

was consent of the victim girls to the acts done by accused

Nos. 1 to 3. To the direct evidence there is corroboration

of other circumstances which is already discussed and due

to the act of these accused of taking the victim girls from

the theatre to banana garden, they are liable for offence

punishable under section 366 read with 34 of the IPC.

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98) There is specific evidence as against accused

Nos.1 to 3 that one after other, they committed rape on

PW-4 and PW-5 first at banana garden and then at the

aforesaid brook. The evidence given by the two victim

girls and the tenor of the cross-examination show that

there is ring of truth in the evidence given by the two

victim girls as against accused Nos.1 to 3. On the basis of

this evidence the trial Court has convicted accused Nos.1

to 3 for the offence of gang rape committed at the two

places and in view of the circumstance that the two victim

girls had not completed 16 years of age, the defence of

consent taken by the accused cannot be considered.

99) PW-4 and PW-5 have given specific evidence as

against accused Nos.6 and 7 on the incident of rape which

took place in Visawa Lodge. The evidence and the record

show that accused Nos.1 to 4 were very much present in

the lodge to facilitate the offence committed by accused

Nos.6 and 7 and only due to accused Nos.1 to 4, the

accused Nos.6 and 7 could commit the offence.

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100) PW-4 and PW-5 have given evidence that

accused Nos.1 to 4 had taken them to the campus of the

school and there they were again raped by accused Nos.1

to 4. The role played by each accused is described by PW-

4 and PW-5. These four accused raped the two victim girls

by dividing the two victim girls amongst themselves in the

campus of the school and thus there was common

intention of all the accused on that occasion also.

101) The previous statements of PW-4 and PW-5

were confronted to them by the defence counsels during

their cross-examination. Some omissions are pointed out

and some inconsistent statements, contradictions were

also pointed out to these two victim girls. The submissions

and the record show that the first statement of PW-5 was

recorded on 7-7-1994 and in that statement, which was

treated as F.I.R., the incidents of banana garden, the

brook, the lodge and the school campus were not

mentioned. The grievance against police officer Khan is

already mentioned. However, in the F.I.R. of PW-4 which

came to be recorded on 8-7-1994 (Exhibit-51) the

incidents of banana garden, the brook, the lodge and the

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school campus are mentioned by PW-4. It can be said that

there is no corroboration of the so called F.I.R. (Exhibit

30) given by PW-5 to P.S.I. Khan of Railway Police Station.

The evidence of Khan and even of Yeshwant shows that

they were under misconception that these incidents had

not taken place within their local jurisdiction, they were

not entitle to record the reports and they were not

entitled to make the investigation. They could have

recorded the versions in respect of all the incidents of

rape and they could have contacted their superior officers

for taking further steps. It can be said that subsequently

such steps were taken and Chalak, C.P.I., who had

jurisdiction over all these spots was entrusted with the

investigation of all the crimes. Subsequently, the

investigation of both the matters was handed over to

Vyavahare (PW-22) Police Inspector of CID Crimes and the

same investigating officer filed charge sheets in both the

matters.

102) Much was argued on the circumstance like

absence of some incidents in the previous statements of

the two victim girls and also some inconsistencies in the

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previous statements in relation to the substantive

evidence. In a case like present one it is necessary to

keep in mind for Courts that when many police officers

record the statements and there is some misconception as

mentioned above, then it becomes the duty of the Court to

find out the truth. Statements under section 164 of the

Cr.P.C. were also recorded many times and those

statements are also confronted to PW-4 and PW-5 during

cross-examination.

103) The two victim girls were from very poor

families, they were new in Parbhani and they had no

support of anybody in Parbhani. It appears that when the

social media took up the matter, the things took proper

turn and the authority started to look into the matter. The

evidence of last investigating officer shows that even

question was raised in respect of these incidents in State

Legislative Assembly. When substantive evidence is there,

which is corroborated by circumstances and it is possible

for the Court to draw inference about the guilt of the

accused, in spite of existence of circumstances like

omissions of aforesaid nature and some inconsistencies,

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those omissions and inconsistencies cannot go to the root

of the matter. Police officers acted as per their own

notions in the present matter. Even the learned Judicial

Magistrates did not record the statements in respect of all

incidents. On the basis of the statements recorded by the

learned Judicial Magistrates, it can be said that they had

not taken care to go through the statements already given

by the victim girls to police. When Judicial Magistrate

records statements of such girls under section 164 Cr.P.C.,

it is the duty of the Judicial Magistrate to ascertain the

nature of allegations, disclosures already made by the

witnesses and then elicit information from such witnesses

by putting questions if he feels that for any reason the

witnesses are not disclosing few things which were

already disclosed. Thus, most casual approach was

adopted by the learned Judicial Magistrates and for the

reasons already given not much can be made out due to

the circumstance that even in the statements under

section 164 Cr.P.C. some incidents were not mentioned by

the two victim girls. What is important in the case like

present one is the substantive evidence and when on the

basis of the evidence available, inference of the guilt is

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possible, the Court should not hesitate to base conviction

on such evidence in spite of existence of the

circumstances noticed in the present matter.

104) It is true that in the first disclosure PW-5 had

not mentioned the incidents involved in the present

matter but PW-4 did disclose the incidents when her

report came to be recorded by other police officer.

105) The learned Senior Counsel for the accused

persons placed reliance on a landmark case reported as

AIR 1959 SC 1012 (Tahsildar Sing v. State of U.P.) . The

learned Senior Counsel submitted that due to variations in

the versions given to the police from time to time and the

omissions and contradictions proved by the defence in

relation to the previous statements, the two victim girls

could not have been believed. The Apex Court has made

observations in this regard at paragraphs 11 and 12 and

they are as under.

"11. It is, therefore, seen that the object of the
legislature throughout has been to exclude the
statement of a witness made before the police
during the investigation from being made use of
at the trial for any purpose, and the amendments

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made from time to time were only intended to
make clear the said object and to dispel the cloud
cast on such intention. The Act of 1898 for the
first time introduced an exception enabling the
said statement reduced to writing to be used for
impeaching the credit of the witness in the
manner provided by the Evidence Act. As the
phraseology of the exception lent scope to defeat
the purpose of the legislature, by the Amendment
Act of 1923, the section was redrafted defining
the limits of the exception with precision so as to
confine it only to contradict the witness in the
manner provided under section 145 of the
Evidence Act. If one could guess the intention of
the legislature in framing the section in the
manner it did in 1923, it would be apparent that
it was to protect the accused against the user of
the statements of witnesses made before the
police during investigation at the trial
presumably on the assumption that the said
statements were not made under circumstances
inspiring confidence. Both the section and the
proviso intended to serve primarily the same
purpose i.e. the interest of the accused.

12. Braund J., in Emperor v. Aftab Mohd. Khan, AIR
1940 All 291, gave the purpose of S.162 thus at
p.299:

"As it seems to us it is to protect accused
persons from being prejudiced by statements
made to police officers who by reason of the
fact that an investigation is known to be on foot
at the time the statement is made, may be in a
position to influence the maker of it and, on the
other hand, to protect accused persons from the
prejudice at the hands of persons who in the
knowledge that an investigation has already
started, are prepared to tell untruths:.

A division Bench of the Nagpur High Court in
Baliram Tikaram v. Emperor, AIR 1945 Nag 1,

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expressed a similar idea in regard to the object
underlying the section, at p.5, thus :

"The object of the section is to protect the
accused both against over-zealous police
officers and untruthful witnesses.:

The Judicial Committee in Pakala Narayana Swami v.
Emperor, 66 Ind App. 66 : (AIR 1949 PC 47), found
another object underlying the section when they said
at p.78 (of 1nd App) : (at p.51 of AIR):

"If one had to guess at the intention of the
Legislature in framing a section in the words
used, one would suppose that they had in mind
to encourage the free disclosure of information
or to protect the person making the statement
from a supposed unreality of police testimony
as to alleged statements or both."

Section 162 with its proviso, if construed in a manner
which we will indicate at the later stage of the
judgment, clearly achieves the said objects."

106) There is no dispute over the propositions made

in the aforesaid case by the Apex Court. When the

investigating agency does not act competently or there

are other reasons and the Court finds that the substantive

evidence given by the victim in a rape case, is in respect

of many incidents and some of the incidents were not

recorded in the first recorded disclosure which was either

recorded under section 154 or section 162 of the Cr.P.C., it

becomes the duty of the Court to consider all surrounding

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circumstances. The circumstance that the disclosures

were made many times to many police officers needs to be

kept in mind. The circumstance that it is the case of gang

rape and the prosecutrix must have been in shock needs

to be kept in mind by the Court. The circumstance that in

respect of every incident of rape separate registration of

the crime is possible under section 154 of the Cr.P.C.

needs to be kept in mind and crime can be registered in

respect of every different disclosure made in respect of

cognizable offence. When two or more victim girls are

involved in a case like the present one, this circumstance

also needs to be kept in mind by the Court. It is practically

not possible that two victim girls will give similar versions

on all the incidents when their statements are recorded by

different police officers. In view of the provision of Section

154 Cr.P.C., the so called omissions or contradictions need

to be ascertained in relation to the first disclosure made in

respect of that incident only by the Court. If the Court is

satisfied that the incident which does not find place in the

first disclosure, was disclosed in the subsequent

statement and the Court is convinced that the other

incident which was disclosed in the subsequent disclosure

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did take place, the Court cannot hold that the omission of

such incident in the first disclosure is fatal and the

substantive evidence in respect of that incident needs to

be discarded. What is said about Section 154 Cr,.P.C. can

be said in respect of Section 162 of the Cr.P.C. also and

when the Court is satisfied that the incident disclosed in

the subsequent statement recorded under section 162 of

Cr.P.C. did take place, not much can be made out from the

circumstance that in the first disclosure which was

recorded either under section 154 or 162 Cr.P.C., such

incident was not disclosed. The procedure laid down for

proving contradictions and omissions with reference to

section 145 of the Evidence Act as given by the Hon'ble

Apex Court in the case of Tahsildar Sing (cited supra)

needs to be followed in respect of each incident and in

relation to the disclosure made about that incident first

time before the police or even under section 164 of the

Cr.P.C. If that is not done the purpose behind the

provisions of Sections 154 and 164 of Cr.P.C. will be

defeated. If that is done, the purpose of provision of

section 162 of the Cr.P.C. mentioned above will also get

served.

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107) In the case reported as (1999)2 SCC 126 (Paras

Yadav v. State of Bihar) the Apex Court has discussed the

effect of such omissions in the F.I.R. due to investigating

agency and the procedure which is required to be

followed by the Court. The Apex Court used the

observations made by it in the past in the case of Ram

Bihari Yadav v. State of Bihar reported as (1998) 4 SCC

517. The observations are as under:

"In such cases, the story of the prosecution will have
to be examined dehors such omissions and
contaminated conduct of the officials otherwise the
mischief which was deliberately done would be
perpetuated and justice would be denied to the
complainant party and this would obviously shake
the confidence of the people not merely in the law-
enforcing agency but also in the administration of
justice."

The law laid down by the Apex Court in this reported case

is considered by this Court while making the aforesaid

observations.

108) The learned Senior Counsel for the accused

persons placed reliance on another case reported as AIR

1960 SC 490(1) (State of Delhi v. Shri Ram Lohia) . This

case is on the point of use of statement recorded under

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section 164 of the Cr.P.C. It is laid down that the contents

of such statement cannot be used as substantive evidence.

There is no dispute over this proposition. In the case

reported as AIR 2013 SC 651 (R. Shaji v. State of Kerala)

the Apex Court has made following observations with

regard to duty of the Magistrate who is recording

statement under section 164 of the Cr.P.C. and the

observations are as under :-

"In a case where the Magistrate has to perform the
duty of recording a statement under S.164 Cr.P.C.,
he is under an obligation to elicit all informations
which the witness wishes to disclose, as a witness
who may be an illiterate, rustic villager may not be
aware of the purpose for which he has been brought,
and what he must disclose in his statements under
S.164 Cr.P.C. Hence, the Magistrate should ask the
witness explanatory questions and obtain all
possible information in relation to the said case.

So far as the statement of witnesses recorded under
S.164 is concerned, the object is twofold; in the first
place, to deter the witness from changing his stand
by denying the contents of the his previously
recorded statement, and secondly, to tide over
immunity from prosecution by the witness under
S.164. Statement recorded under S.164 Cr.P.C., can
be relied upon for the purpose of corroboration of
statements made by witnesses in the Committal
Court or even to contradict the same."

In view of the aforesaid observations and the object

behind provision of section 164 Cr.P.C., the circumstance

that some incidents were not mentioned by the victim girl

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in the statement recorded under section 164 Cr.P.C.

cannot make much difference and that circumstance

cannot give benefit to the accused if the Court is satisfied

that the other incidents which were not mentioned in the

statement under section 164 Cr.P.C. did take place.

109) If the evidence of the investigating officers is

considered to ascertain as to whether the two victim girls

had disclosed all the incidents of the present matter it can

be said that in supplementary statement PW-5 did disclose

the incidents of the present matter also. That is why many

statements of the two victim girls came to be recorded by

different officers. It can be said that first time Yeshwant

made an attempt to see that two separate F.I.R.s are

recorded. Then Chalak (PW-20) made more inquiry after

considering the entire record and he also recorded

supplementary statements of PW-4 and PW-5.

110) To the substantive evidence of PW-5 there is

corroboration of medical officer, Dr. Jaishri (PW-13). She

found recent tear of hymen in case of PW-5. This witness

was extensively cross-examined by defence counsels but

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she stood to the test of the cross-examination. PW-5 was

examined on 7-7-1994 and PW-4 was medically examined

by Dr. Jaishri (PW-13) on 8-7-1994. The last incident took

place on the night between 5-7-1994 and 6-7-1994 but in

that incident only PW-5 was involved. That incident is part

of other sessions case.

111) Dr. Jaishri noticed bleeding from cervical OS.

On PV examination speculum tenderness was noticed and

vagina was admitting only one finger in the case of PW-5.

Dr. Jaishri noticed that there was posterior fourchette

congested and redness and she noticed that hymen was

congested. She noticed vagina was admitting one finger

with minimum pains but bleeding through cervical was

present. The record prepared by this witness is consistent

with her oral evidence. Though there is possibility that

PW-4 was observing menstruation, evidence of Dr. Jaishri

in respect of sexual intercourse cannot be ignored. During

cross-examination, Dr. Jaishri has admitted that possibly

there was menstruation of PW-5 also. In case of PW-5 the

circumstances were strong and rupture of hymen was

fresh. In the first incident of rape, accused Nos.1 to 3

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were involved and other accused were involved in the

subsequent incidents. That cannot give any benefit to

accused Nos.4,6 and 7 as there is substantive evidence

against them and there are other circumstances. This

Court has no hesitation to hold that the medical evidence

has given necessary corroboration to the versions of PW-4

and PW-5.

112) At Exhibit 204 there is CA report in respect of

clothes of PW-5 (Salwar, Kurta and Jangiya). Jangiya was

taken over on the next day. Salwar and Kurta were taken

over on 7-7-1994. Blood was present on these clothes and

it was of Group "A". PW-5 has the same blood group. It is

not brought on record in her evidence that she was

observing menstruation. In view of these circumstances

and as the clothes were taken over immediately after

making of the disclosure by PW-5 and that too by PSI

Khan against whom there are allegations, this Court holds

that there is no reason to disbelieve this circumstance.

The hymen had fresh tear, it was congested and so this

circumstance becomes more important.

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113) There is evidence of seizure of clothes of

accused Nos.1 to 4 who were arrested almost immediately

i.e. on 8-7-1994. The clothes of accused Nos.6 and 7 were

taken over after many days as they were absconding. It is

already observed that in respect of the seizure of the

clothes of accused Nos.1 to 4 there is only evidence of the

police officer. Further, PW-4 was admittedly observing

menstruation at the relevant time. In view of these

circumstances, this Court holds that the evidence in

respect of presence of blood stains on the clothes of some

of these accused and also on the clothes of PW-4 cannot

be of much importance in the present matter. Some bed-

sheets were taken over from the lodge and the

panchanama at Exhibit 234 shows that blood was found on

the bed-sheets. Bed-sheets were also taken over after few

days and as it is a lodge this circumstance cannot be

treated as clinching circumstance.

114) In respect of the challenge to the evidence

given on T.I. parade it can be said that there is substance

in the contentions made by the learned counsel for the

accused that there was no strict compliance of the

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guidelines given in paragraph 16 of Chapter I of the

Criminal Manual of this Court. It is true that on both the

occasions the number of dummy persons used by Namdeo

Jadhav (PW-16) was less than the number expected in the

guidelines. There is no record to show that dummy

persons had appearance which was similar to the accused

persons. However, the evidence of Namdeo Jadhav (PW-

16) shows that he was satisfied about the identification of

the accused from the two victim girls in both the T.I.

parades.

115) It is true that accused Nos.6 and 7 were

identified as associates by the two victim girls but the fact

remains that they have given substantive evidence against

these accused that they had raped them in Visawa lodge.

accused Nos.1 to 4 were arrested almost immediately. As

accused Nos.1 to 4 were in the company of the two victim

girls for about 12 hours there was no problem for PW-4

and PW-5 to identify them. It can be said that immediate

arrest of these accused persons is also a circumstance

showing that on the basis of information given by the two

victim girls, police could easily trace out these accused.

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Names of accused Nos.6 and 7 were also transpired and

the evidence is given that they were absconding for the

aforesaid period.

116) On the point of evidence given on T.I. parade,

learned Senior Counsel for the appellants has placed

reliance on some observations made by the Apex Court in

the case reported as (2007) 3 SCC 755 (State of Goa v.

Sanjay Thakran) and it is on the point of evidentiary value

of the test identification parade. The procedure which

needs to be followed for conducting test identification

parade is also discussed. In that case, the Courts below

had declined to place reliance on the evidence of test

identification parade due to the circumstances of that

case. The Apex Court held that the Courts below had not

committed error in rejecting that evidence. That was done

in view of the facts and circumstances of that case.

Husband and wife were involved as offenders and they

were placed in the same test identification parade with six

dummy for each. The Court had held that this was

contrary to the provision of paragraph 16(2)(h) of the

Criminal Manual of Bombay High Court and the Courts

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below had rightly rejected this evidence. It was held that

the officers who conducted the test identification parade

did not act fairly. It was held that it was necessary in that

case to hold two separate test identification parades by

using different persons for each parade. It was case filed

for offences punishable under sections 302, 392, 120-B,

34 etc. of Indian Penal Code.

117) On the point of evidentiary value of the test

identification parade, the learned APP has placed reliance

on the observations made by the Apex Court in the case

reported as (2000)1 SCC 471 (State of Maharashtra v.

Suresh). The Apex Court has made observations as

under :

"Identification parades are not primarily meant for the
court. They are meant for investigation purposes. The
object of conducting a test identification parade is
twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is
really the one who was seen by them in connection
with the commission of the crime. Second is to satisfy
the investigating authorities that the suspect is the
real person whom the witnesses had seen in
connection with the said occurrence. So the officer
conducting the test identification parade should
ensure that the said object of the parade is achieved.
If he permits dilution of the modality to be followed in
a parade, he should see to it that such relaxation
would not impair the purpose for which the parade is
held. The safeguards adopted in this case by the

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Executive Magistrate were quite sufficient for
ensuring that the parade was conducted in a
reasonably foolproof manner."

The observations made by the Apex Court in the case

cited supra show that facts and circumstances of each and

every criminal case are always different and in one case in

view of the facts of that case the Court may be inclined to

hold that the evidence is reliable and it can be used as a

corroborative piece of evidence but in other case the

Court may not come to that conclusion. Further, peculiar

circumstances in the case of rape or gang rape need to be

kept in mind by the Court at the time of appreciation of

such evidence. In murder case the witnesses may not have

that opportunity to see the assailants from close distance

for longtime. In case of rape or gang rape, the victim girl

always gets the opportunity to see the accused from

close distance and it is very difficult for such victim girl to

forget such person. In view of the object behind the test

identification parade the satisfaction of the officer who

conducted test identification parade about capacity of the

witness to identify the offender is important. Further at

the end, on the basis of the substantive evidence of such

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witness and other evidence which can be used as check

and counter check the Court decides the matter. Thus, not

much can be made out of the irregularity pointed out in

the procedure followed in the present matter for

conducting the test identification parades. Even if that

evidence is ignored, other evidence, evidence of

identification in court needs to be believed due to other

circumstances of the case.

118) The discussions of the evidence and the

reasoning given by the Judge of the trial Court show that

the aforesaid objections were taken into consideration.

The trial Court has observed that even if the evidence on

T.I. parade is ignored, there is convincing and sufficient

evidence of PW-4 and PW-5 on the identification of the

accused persons by PW-4 and PW-5 in the Court and even

if it is treated as the first time identification after the

incident, that evidence needs to be believed. This Court

holds that in the present matter, even the evidence on T.I.

parade can be used as corroborative piece of evidence.

The procedure is given as guidelines and non compliance

of the procedure strictly as per the guidelines, cannot be a

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ground for discarding the evidence on T.I. parade in each

and case.

119) The prosecution has proved in the present

matter that age of the two victim girls was below 16 years

at the relevant time. As per the old provision of section

375, IPC for considering the defence of accused of

possible consent from PW-4 and PW-5 it was necessary to

show that both the victim girls had crossed age of 16

years. The learned counsel for the appellants-accused has

placed reliance on some observations made in the

landmark case of the Apex Court in S. Varadrajan v. State

of Madras, reported as AIR 1965 SC 942. These

observations were entirely on different point and there is

interpretation of the term like "taking" used in section 361

of the IPC. This ratio cannot be considered when the

Court is considering the case of gang rape. When there is

case of rape, the Court is not expected to consider the

case of defence of consent when the age of the victim girl

was below 16 years. The accused cannot take defence that

due to any reason he was under impression that the victim

girl had crossed 16 years of age. Whenever such incident

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takes place Court needs to adhere strictly to the

provisions of law and the Court needs to go with the

presumption that it was up to the accused to take decision

and if he takes the risk, he should be ready to face the

consequences. In the present matter, the defence of

consent was not available to any of the accused in view of

the aforesaid record. Surprisingly, the tenor of the cross-

examination made by the learned counsel for accused

Nos.1 to 3 shows that the questions were put to the victim

girls that the victim girls had taken the initiative in the

matter and one accused had left the place when one

victim girl took initiative and the boy felt that he was not

in a position to do anything. Such suggestions given in

the case like present one can be considered as they are

with regard to the particulars of the incident and they

were positive suggestions to elicit evidence on consent.

120) The accused persons from the present matter

were not known to PW-4 and PW-5. There was no reason

for both these girls to falsely implicate these accused

persons. The aforesaid circumstances, the description

given by the two victim girls of the accused and the

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circumstance that they were traced immediately by police

show that there is ring of truth in the versions given by

PW-4 and PW-5.

121) Some argument was advanced by the learned

counsel for the appellants that police did not try to trace

Sham Agrawal, relative of PW-4 and his statement is not

recorded. This lacunae cannot make much difference in

the present matter. Even after tracing of Sham Agrawal,

the things would not have changed. Even if it is presumed

that the girls had left the shelter of their guardians on

their own, they had no relative in Parbhani and they were

wandering in Parbhani even for enjoying, that cannot

make difference in the evidence, the case of the

prosecution. The fact remains that all the accused persons

exploited the situation in which PW-4 and PW-5 had put

themselves in.

122) The learned Senior Counsel for the accused has

placed reliance on a case reported as AIR 1957 SC 614(1)

(Vadivelu Thevar v. The State of Madras) on the point of

appreciation of evidence. Some more cases were cited like

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(2007) 2 SCC 170 (Ramdas v. State of Maharashtra) . At

para 13 of the first case following observations are made

by the Hon'ble Apex Court :

"13. . . . . The first question which the court has to
consider in a case like this, is whether the accused
has been proved, to the satisfaction of the court, to
have committed the crime. If the court is convinced
about the truth of the prosecution story, conviction
has to follow. The question of sentence has to be
determined, not with reference to the volume or
character of the evidence adduced by the
prosecution in support of the prosecution
case. . . . . "

In the second case the Apex Court has considered the

defences like delay caused in filing F.I.R. and also the

circumstance where there is the sole testimony of the

prosecutrix. It is observed by the Apex Court that delay

has to be considered in the background of the facts and

circumstances of each case and it is a matter of

appreciation of evidence by the Court. It is further laid

down that conviction on the basis of sole testimony of the

prosecutrix is sustainable where the Court is convinced

about the truthfulness of the prosecutrix and where there

is no circumstance which casts a shadow of doubt over

her veracity. There cannot be dispute over these

propositions. It is further laid down that, however, similar

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the circumstances, facts of one case cannot be used as a

precedent to determine the conclusion on the facts in

other. There cannot be dispute over this proposition also.

123) The learned Additional Public Prosecutor has

placed reliance on the case reported as 2010 ALL MR

(Cri) 3326 (S.C.) (Vijay @ Chinee vs. State of M.P.) . In this

case, the Apex Court has laid down that the evidence

under section 3 of the Evidence Act of a witness needs to

be appreciated after considering it as a whole. Minor

discrepancies on trivial matters, which do not affect the

core of the prosecution case, should not be taken into

consideration and they cannot form grounds to reject the

evidence as a whole. There cannot be dispute over this

proposition also. The Apex Court has further laid down

that the circumstance of non resistance on the part of the

prosecutrix because of fear and conduct of the prosecutrix

cannot be held to be unnatural and that conduct would not

amount to consent. The circumstances that prosecutrix

did not know the accused prior to the incident and she

had no reason to enrope the accused falsely need to be

kept in mind and the circumstances that the evidence on

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the places where the incidents occurred is convincing also

needs to be kept in mind by the Court in such cases at the

time of appreciation of the evidence of the prosecutrix.

This Court has considered the law laid down in the cases

cited supra while appreciating the evidence of the two

victim girls and this Court has come to the conclusion that

there is no reason to disbelieve the two victim girls.

124) One learned counsel for the accused persons

has placed reliance on two reported cases viz. (2006) 10

SCC 92 (Sadashiv Ramrao Hadbe v. State of

Maharashtra) and 1970 (3) SCC 21 (Ram Murti v. State of

Haryana). On the basis of the observations made in these

two cases it was submitted that the medical evidence does

not corroborate the versions of the victim girls and so the

evidence of the victim girls needs to be rejected. The

proposition in respect of ratio decidendi in criminal case

made by the Apex Court is already quoted. In each and

every case it is upto the Court to decide as to whether the

medical evidence gives corroboration or it is inconsistent

with the ocular versions of the victim girls. This Court has

considered all the aspects in respect of the medical

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evidence in relation to the facts of the present matter and

this Court has formed opinion that the medical evidence

needs to be accepted as a piece of corroborative evidence.

125) The facts of the aforesaid reported case were

totally different. In each and every criminal case it is up to

the Court to see whether the medical evidence gives

corroboration or it is inconsistent with the ocular versions

of the victim girls. This Court has considered all the

aspects of the present matter and from all angels. This

case can be of no help to the accused persons.

126) The learned Senior Counsel for the accused

persons has placed reliance on some observations made

by this Court in the case reported as 1998(2) Mh.L.J. 64

(Milind Ambadas v. State of Maharashtra) . This Court had

occasion to discuss the provision of section 376(2)(g) of

Indian Penal Code. This Court has mentioned the

necessary ingredients for proving this offence like

common intention, concerted meeting of mind of more

than one person. There is no dispute over the propositions

made by this Court in this case also. The provision of

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section 376(2)(g) which was applicable at the relevant

time is as under:

"376(2) Whoever,

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be
for life and shall also be liable to fine.

Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term
of less than ten years.

Explanation 1.-- Where a woman is raped by one or more
in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to
have committed gang rape within the meaning of this sub-
section.

Explanation 2.-- "Women's or children's institution" means
an institution, whether called an orphanage or a home for
neglected women or children or a widow's home or by any
other name, which is established and maintained for the
reception and care of women or children.

Explanation 3.-- "Hospital" means the precincts of the
hospital and includes the precincts of any institution for
the reception and treatment of persons during
convalescence or of persons requiring medical attention
or rehabilitation."

On this point the latest case of the Apex Court is the case

reported as AIR 2017 SC 2161 (Mukesh v. State for NCT

of Delhi). The Apex Court has laid down that if there is

evidence that more than one accused were involved in

the offence and they were together having common

intention as mentioned in the aforesaid provision, all the

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accused can be held guilty even if only one or more of

them had committed the rape. This ingredient is

considered by the trial Court also. In view of this position

of law, not much can be made out due to so called

omissions in the previous disclosure of PW-4 and PW-5.

In this landmark case, the Apex Court has laid down that

dock identification by the prosecutrix can be accepted as

reliable identification in the case of gang rape.

127) The discussion of the evidence of the present

matter and the position of law mentioned above shows

that the trial Court has not committed any error in holding

the appellants guilty of the offence of gang rape and also

for the other offences as quoted above. This Court sees no

reason to interfere in the findings given by the Sessions

Court against the appellants.

128) The learned Additional Public Prosecutor

argued for enhancement of sentence as appeal is filed by

the State for enhancement. Relevant facts and

circumstances of the present matter are already quoted.

They show that there were symptoms of rape on the

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private part but no injuries were found on other parts of

the body of PW-4 and PW-5. Their evidence shows that

they were supplied with food. This Court has already

observed that the accused persons exploited the situation

in which PW-4 and PW-5 had put themselves. The evidence

does not show that there was much violence like assault

on PW-4 and PW-5 though threats were given. Every time

after committing rape the accused allowed the victim girls

to leave the place showing that the accused wanted only

to exploit the situation. The accused persons virtually

used the two victim girls. The incidents are of the year

1994 and this circumstance also needs to be considered in

the present matter. This Court holds that this is not a fit

case where punishment of life imprisonment is warranted.

Sentence of ten years rigorous imprisonment given by the

trial Court is just and proper and interference in the

decision of the trial Court on this point is also not

possible. In the result, all the appeals stand dismissed.

The appellants-accused to surrender to bail bonds for

undergoing sentence.

                  Sd/-                                Sd/-
(S.M. GAVHANE, J.) ( T.V. NALAWADE, J.)
rsl

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129) Learned Senior Counsel requests for giving

time to surrender. This being appellate Court, giving time

to surrender would amount to give stay to the substantive

sentence. So, the prayer is rejected.

                 Sd/-                                     Sd/-
(S.M. GAVHANE, J.) ( T.V. NALAWADE, J.)

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