State Of Maharashtra vs Abbas Baig Afzal Baig And Ors on 21 November, 2017

1 Appeals 144, 151 158, 216, 306 of
1999

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No. 144 of 1999

* Mahesh Vasantrao Motaphale,
Age 31 years, Occupation : Nil,
R/o Parbhani,
Taluka and District Parbhani. .. Appellant.

Versus

1) The State of Maharashtra.

2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.

3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.

—-

Shri. A.B. Kale, Advocate, for appellant.

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

With

Criminal Appeal No. 151 of 1999

* Munna alias Ravindrasingh
Dilipsisngh Parihar
Age 38 years,
Occupation : Agriculture,
R/o Parbhani. .. Appellant.

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Versus

1) The State of Maharashtra.

2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.

3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.

—-

Shri. Joydeep Chatterjee, Advocate, for appellant.

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

—-

With

Criminal Appeal No. 158 of 1999

* Bhansing s/o Harnamsingh Bundele
Age 37 years,
Occupation : Railway Service,
R/o Parbhani. .. Appellant.

Versus

1) The State of Maharashtra.

2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.

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3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.

—-
Shri. Shirish Gupte, Senior Counsel, instructing by Shri.
Mahesh Kale, Advocate, Advocate, for appellant.

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

With

Criminal Appeal No. 216 of 1999

* Raju s/o Eknath Mahalge
Age 28 years,
Occupation : Labour,
auto-rickshaw driver,
R/o Parbhani
Taluka Dist. Parbhani. .. Appellant.

Versus

1) The State of Maharashtra.

2) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.

3) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.

—-
Mrs. R.V. Daxini, Advocate, with Mr. H.F. Pawar, Advocate
appointed for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
—-

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With

Criminal Appeal No. 306 of 1999

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

Versus

1) Abbas Baig s/o Afzal Baig
Age 33 years,
Occupation : Labour,
R/o Parbhani,
Taluka and District Parbhani.

2) Ashok s/o Tulshiram Sarode
Age 38 years,
Occupation: Service,
R/o Parbhani,
Taluka and District Parbhani.

3) Tabuka Ramlu Kishtayya
Age 32 years,
Occupatin : Railway Service,
R/o Secundrabad (Andhra Pradesh)

4) Bhansing s/o Harnamsingh Bundele,
Age 32 years,
Occupation : Service
R/o Parbhani.

5) Raju s/o Eknath Mahalge,
Age 28 years,
Occupation: Labour, auto-rickshaw
Driver, R/o Parbhani.

6) Munna alias Ravindra Singh
S/o Dilip Singh Parihar,
Age s33 years,
Occupation: Agriculture
R/o Parbhani.

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7) Mahesh s/o Vishwanathrao Motaphale,
Age 28 years, Occupation: Nil,
R/o Parbhani,
Taluka District Parbhani.

8) Panchaseela @ Panchphula
d/o Wamanrao Jayebhaye
Age Major, Occupation Nil,
R/o Partur, District Jalna.

9) Sangeeta d/o Rameshwar Agrawal,
Age Major, Occupation Nil,
R/o Partur, District Jalna. .. Respondents.

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

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

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

Appellants Nos.1 to 3 are deleted from the appeal.
—-

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 the appeals are filed against the judgment

and order of Sessions Case No.139/1994 which was

pending in the Court of the learned Sessions Judge,

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Parbhani. The learned Sessions Judge has convicted and

sentenced accused Nos.4 to 7 for offence punishable

under section 366 read with section 34 of Indian Penal

Code and for offence punishable under section 376(2)(g)

of Indian Penal Code. Accused Nos.4 and 5 are convicted

and sentenced for offences punishable under section 342

read with section 34 of IPC also. The convicted accused

persons have filed the first four appeals. The State has

filed Criminal Appeal No.306/1999 as the trial Court has

given jail sentence of 10 years rigorous imprisonment to

accused Nos.4 to 7 and the State wants to see that they

get imprisonment for life. 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 some incidents, Sessions

Case No.121/1994 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 in its entirety

mentioned in both these cases need to be mentioned for

better appreciation of the facts and also to understand the

plight of the two victim girls.

4) The two victim girls PW-1 and PW-2 were

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

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

Mother of PW-1 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.

The parents of PW-2, other prosecutrix, hail from

Hiwarkheda. The parents of PW-2 are very poor and as

they could not afford to maintain PW-2, they had kept PW-

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2 in the house of sister of mother of PW-2 in Partur. PW-2

was not happy due to 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-2 had some dispute with her

maternal aunt. As she was being starved she met PW-1

and expressed that she wanted to work to earn for her

livelihood. PW-1 has a relative by name Sham Agrawal and

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

PW-1 expressed that Sham Agrawal can help them in

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

1994 PW-1 and PW-2 left Partur for Parbhani without

informing anything to anybody from Partur.

6) PW-1 and PW-2 first walked up to Raipur where

there is a field of relative of PW-1. Persons working in the

field knew PW-1 and they gave food and shelter to PW-1

and PW-2. PW-1 and PW-2 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

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station on foot and there they boarded a train proceeding

to Parbhani.

7) On the train, PW-1 and PW-2 met Raju and

Abhay, the boys who were known to PW-2. These boys

were also proceeding to Parbhani as they were doing

some diploma course in Parbhani. During talk, PW-1 and

PW-2 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-1 and PW-2 and the two boys alighted at Parbhani

from train. As the boys were advising the girls to return

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.

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8) In Talreja Talkies three youngsters namely

Suryakant Dhage, Arun Mapari and Suresh Kopre

(accused Nos.1 to 3 from Sessions Case No.121/1994)

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. Accused Nos.1 to 3 from Sessions Case

No.121/1994 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 from Sessions Case No.121/1994 in the theatre,

the aforesaid two boys viz Raju and Abhay left the theatre.

9) Accused Nos.1 to 3 from Sessions Case No. 121

of 1994 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 from Sessions Case

No.121/1994 took the girls to a banana garden situated at

the outskirts of Parbhani city. In the banana garden,

accused No.1 of Sessions Case No.121/1994 took PW-1 to

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one side and then he committed rape on her. Similarly,

accused Nos.2 and 3 of the same case took PW-2 to other

side and there they committed rape on PW-2. After that

accused No.1 to 3 from that case took PW-1 and PW-2

towards 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-1 and PW-2. Here accused No.1

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

committed rape on PW-1. PW-1 and PW-2 could not resist

as threats were given to them.

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

Sessions Case No.121/1994 took PW-1 and PW-2 towards

the side of road. There they met accused No.4 of that case

namely Rameshwar. From there, accused Nos.1 to 4 of

Sessions Case No.121/1994 took PW-1 and PW-2 to a

lodge of Parbhani by name Visawa Lodge. They reached

there at about 10.00 p.m. There accused Nos.1 to 4 of

Sessions Case No.121/1994 informed to PW-1 and PW-2

that two Sahibs, accused Nos.6 and 7 of Sessions Case

No.121/1994, were to come to the lodge and they would

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help PW-1 and PW-2 for getting work. After some time

accused Nos.6 and 7 of that case namely Nitin

Dudhgaonkar and Kalyan Renge came to the lodge. Under

threat, accused No.6 committed rape on PW-2 and

accused No.7 committed rape on PW-1. They gave threats

not to disclose the incident to anybody. Accused Nos.8 and

9 of Sessions Case No.121/1994 were managing the lodge

and they kept watch to see that there was no interference

or there was no help to the victim girls. When accused

Nos.6 and 7 left the lodge, accused Nos.1 to 4 of Sessions

Case No.121/1994 took PW-1 and PW-2 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 of Sessions Case No.121/1994 committed

rape on PW-2 and accused Nos.3 and 4 committed rape on

PW-1. Accused Nos.2,3 and 4 then left the campus of the

school.

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 of

Sessions Case No.121/1994 was present. Tukaram gave

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threats to PW-1 and PW-2 to facilitate rape which accused

No.1 wanted to commit. Accused No.1 then committed

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

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

victim girls to Parbhani Railway Station and there he left

them. While leaving, he again gave threats to them not to

disclose the incident 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 9 accused persons. In that case accused Nos.1

to 4 and accused Nos.6 and 7 are convicted and sentenced

for offence of gang rape. Accused Nos.1 to 3 are also

convicted and sentenced for offence punishable under

section 366 read with 34 of IPC. 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

had left PW-1 and PW-2 at Parbhani Railway Station on

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night between 4-7-1994 and 5-7-1994 and the last incident

of rape was committed by accused No.7 of Sessions Case

No.121/1994 on the night between 4-7-1994 and 5-7-1994.

14) In the early hours of 5-7-1994 when PW-1 and

PW-2 were sitting on the stair case of the bridge situated

on the platform of the railway station, accused No.1 of the

present case, Sessions Case No.139/1994, Abbas Baig,

who was working as coolie at the railway station

approached PW-1 and PW-2. Under the pretext that he

would help PW-1 and PW-2 he took these two girls to

retiring room situated at railway platform. Abbas Baig

then called accused No.2 Ashok, who was working as

Police Head Constable and accused No.3 Tabuka, 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 and the other person

took PW-1 to one room and there they raped her. Accused

No.1 Abbas and accused No.2 Ashok raped PW-2. After

committing the rape these persons allowed the victim girls

to leave the retiring room. The victim girls were very

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much frightened and in that condition they went to the

bridge of the railway and from there in search of water

they went towards railway quarters situated by the side of

the railway station. It was day time. There, accused No.4

Bhansing Bundele, who was occupying a 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 was already present and one young boy

aged about 12 years was also present. accused No.4

supplied water to the victim girls and then he left the

railway quarters by informing to accused No.5 that he

would return after some time (after attending the duty).

While leaving, he took care to see that the railway

quarters was locked from outside and the key is given to

accused No.5.

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

the present matter 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 quarters. When

the young boy left the quarters, accused No.5 took PW-1

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to one room and there he raped her. Accused No.4 raped

PW-2. In this railway quarters, a lace of the Salwar which

PW-2 was wearing got broken and so the lase of shoe of

accused No.4 was used for the Salwar by PW-2.

16) Accused Nos.4 and 5 of the present matter

virtually used PW-1 and PW-2 upto 4.00 p.m. of 5-7-1994

and then they called accused No.6 Munna @ Ravindra

Singh and accused No.7 Mahesh to the railway quarters.

They were friends of accused Nos.4 and 5. From the

railway quarters PW-1 and PW-2 were taken by accused

Nos.4 and 5 in an auto-rickshaw to other place by name

Shakti Bungalow from Parbhani. Accused No.6 and 7 had

come on their motor cycle and they followed auto

rickshaw to that place on their motor cycle. In Shakti

bungalow accused No.6 Munna @ Ravindrasingh raped

PW-2. After that accused No.4 raped PW-2. After that

accused No.7 Mahesh raped PW-2. Accused No.5 also

raped PW-2. This incident was going on upto early hours

of 6-7-1994 (upto 3 A.M.). PW-1 somehow saved her by

giving information regarding her menstruation period. On

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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-2 woke

up from sleep, she noticed that PW-1 was not there.

Accused No.5 Rameshwar from the present matter was

present in Shakti Bungalow and he informed that PW-1

had already left the building. PW-2 searched for some time

to find PW-1 and then she went to Parbhani Railway

Station as she intended to return to home by railway. In

the meantime PW-1 had gone to other station viz. Purna

and from there a lady police constable took her in railway

to Parbhani Railway Station. At Parbhani Railway Station

PW-1 pointed PW-2 to the lady constable and due to that

the lady constable took PW-2 to Railway Police Chowki

and PW-2 was asked to stay there.

18) The lady police constable Giribai reached PW-1

to Partur by train. After returning from Partur, Giribai

took PW-2 to Purna Railway Police Station. There, the FIR

of PW-2 came to be recorded and the crime came to be

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registered. PW-2 was taken to Parbhani for medical

examination on 7-4-1994 and she was medically examined.

During course of investigation her clothes were taken

over.

19) On 9-7-1994 PW-2 was taken to New Mondha

Police Station Parbhani where another FIR came to be

recorded and another crime came to be registered.

Sessions Case No.121/1994 is filed in the crime registered

at New Mondha Police Station Parbhani in respect of the

incidents which took place in banana garden, near Pingad-

Gad-Nala, Visawa Lodge, Shanti Niketan school and one

Wada. On 7-7-1994 police from Kotwali Police Station

Parbhani went to Partur and they brought PW-1 to Kotwali

Police Station. There the report given by PW-1 came to be

recorded and that report is a part of Sessions Case

No.121/1994. PW-1 was then sent to New Mondha Police

Station and in the crime registered there, her statement

came to be recorded. PW-1 was also sent for medical

examination and she was medically examined on 7-7-1994.

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20) Separate complaint of the incidents which took

place in retiring room of the railways station, railway

quarters and Shakti Bungalow came to be recorded as per

the narration made by PW-2 and Sessions Case No. 139 of

1994, present matter, was filed after making investigation

of that crime. During course of investigation statements of

PW-1 and PW-2 came to be recorded under section 164 of

the Code of Criminal Procedure. PW-2 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 came to be

sent to CA office along with blood samples of the two

victim girls along with vaginal swabs collected by medical

officer. Charge sheet came to be filed in the present

matter in Crime No.29/1994 registered in Purna Railway

Police Station and Crime No.82/1994 registered in New

Mondha Police Station Parbhani.

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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 and the case came to be

registered as Sessions Case No.121/1994.

22) Charge was framed against accused separately

in accordance with the allegations made against him by

the two victim girls and the material collected against

accused. All the accused pleaded not guilty. Prosecution

examined 23 witnesses who include the two victim girls.

All the accused took the defence of total denial. No

defence evidence is given.

23) The prosecution relied on both, direct and the

circumstantial evidence. The trial Court has believed both

the victim girls so far as the evidence given by them as

against accused Nos.4 to 7 is concerned. The evidence

given as against accused Nos.1 to 3 is not believed by the

trial Court. The trial Court has held that there is

circumstantial check to the evidence given as against

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accused Nos.4 to 7 and the evidence as against these

accused given by the two victim girls is consistent with

each other. The appeal is filed by the State only for

enhancement of sentence given to accused Nos.4 to 7 and

it is not against the decision of acquittal given in favour of

accused Nos.1 to 3. In view of these circumstances the

evidence of prosecution given as against accused Nos.4 to

7 only and with regard to the incidents in which they were

involved need to be considered and appreciated.

24) Both the victim girls have given evidence in

respect of the incidents which took place between 4-7-

1994 till early hours of 5-7-1994 and that evidence shows

that prior to the incidents in which accused Nos.4 to 7

were involved both the victim girls were ravished by other

persons at various places like banana garden, near brook,

in a lodge, in the campus of a school, in Wada and also in

the retiring room of Parbhani Railway Station. It needs to

be mentioned here that the Court has not believed the

victim girls in respect of the incidents of rape took place

in the retiring room in which accused Nos.1 to 3 and one

unknown person were involved.

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25) PW-1 (hereinafter referred to as "the victim girl

No.1") has given evidence that when the incident which

took place in retiring room was over, she and PW-2 (victim

girl No.2) came out of the retiring room, went to the stairs

of the bridge and stayed there for some time. She has

deposed that they wanted to have drinking water and so

they started to proceed towards railway quarters of the

railway employees situated by the side of the railway

station. She has given evidence that on the way one man

who was known, accused No.4, Bhansing, met them. This

accused is identified by both the victim girls in the Court.

She has given evidence that accused No.4 took them to

his railway quarters by promising to give them drinking

water. She has given evidence that inside of this quarters,

accused No.5 was already present and he was a friend of

accused No.4. She has given evidence that one boy aged

about 12 to 13 years was also present in this residential

quarters. She has given evidence that accused No.4 gave

water to them and then said that there was train for

Partur at 3.00 p.m. and he would arrange to send them by

train to Partur. She has given evidence that by saying so

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he left the quarters but while leaving, he closed the

entrance door of the quarters and put a lock on it from

outside. She has given evidence that this way they were

virtually confined in the railway quarters of accused No.4.

According to her, the key of the lock was given by accused

No.4 to accused No.5.

26) PW-1 has deposed that accused No.4 returned

to his quarters at about 2.00 p.m. and till that time they

were kept in the quarters of accused No.4. She has

deposed that accused No.4 had brought liquor bottle with

him. She has given evidence that accused No.4 supplied

food to both of them and then accused Nos.4 and 5

consumed liquor. She has given evidence that the boy

aged about 12-13 years was virtually driven out of the

quarters by accused No.4.

27) PW-1 has given evidence that accused No.4

then took PW-2 to a room of the quarters and closed the

door of the room from inside. She has given evidence that

accused No.5 then raped her by removing her clothes. She

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has described the incident of rape in her evidence. She

has given evidence that after some time PW-2 came out of

the aforesaid room and she informed that accused No.4

had raped her. She has given evidence that accused No.5

gave threats to finish them by braking glass and so they

could not resist and they stayed inside of the quarters.

28) PW-2 (second victim girl) has given similar

evidence against accused Nos.4 and 5. She has given

specific evidence as against accused No.4 that in the noon

time, when accused No.4 returned to the railway quarters,

accused No.4 raped her. She has given evidence that the

act was against her will. She has given particulars of the

incident of rape. She has given evidence that during the

incident the lace of her Salwar got broken and so accused

No.4 gave lace of his shoe for using it as lace of her

Salwar and she used that lace for her Salwar. She has

identified accused Nos.4 and 5 in the Court and she has

also identified her Salwar having lace of the shoe which

was produced by her during course of investigation before

police. She has given evidence that when accused No.4

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was committing the offence, accused No.5 had done the

same thing against PW-1 and that incident was disclosed

by PW-1 to her. PW-2 has given evidence that the offence

was committed by accused Nos.4 and 5 at about 4.00 p.m.

in the railway quarters of accused No.4. The evidence

given by PW-1 and PW-2 as against accused No.4 and 5 on

the incident of rape which took place in the railway

quarters of accused No.4 is consistent with each other.

There is also circumstantial check and those

circumstances are being discussed at other place.

29) PW-1 has given evidence that at 7.30 p.m. two

unknown persons came to the railway quarters of accused

No.4. PW-1 has identified accused No.6 Munna @

Ravindrasingh and accused No.7 Mahesh Motaphale as

the two persons who had come to the railway quarters of

accused No.4. She has given evidence that they had talk

with accused No.4. PW-2 has given similar evidence as

against accused Nos.6 and 7 and their evidence leads to

inference that it is accused No.4 who had called accused

No.6 and 7 to his railway quarters. PW-2 has identified

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accused Nos.6 and 7 in the Court and she gave their

description also.

30) PW-1 has given evidence that from the railway

quarters of accused No.4 she and PW-2 were taken in an

auto-rickshaw by accused Nos.4 and 5 to one bungalow

viz. Shakti Bungalow. She has given evidence that accused

Nos.4 and 5 were sitting on the two sides of PW-1 and PW-

2. Similar evidence is given by PW-2 and their evidence

shows that this incident took place at about 7.30 p.m. of 5-

7-1994. PW-1 has given description of this bungalow and

the substantive evidence which is being discussed shows

that only due to information given by PW-2, police could

trace both, the railway quarters of accused No.4 and

Shakti bungalow. Some articles were also recovered in

connection with the crime by police at the instance of one

accused and on the basis of statement given under section

27 of the Evidence Act.

31) PW-1 has given evidence that in Shakti

Bungalow accused Nos.4,5,6 and 7 committed rape on

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PW-2. She has given evidence that she was not raped

because she was in menses. She has given evidence that

accused Nos.4 to 7 ravished PW-2 till 3.00 a.m. of 6-7-

1994. She has deposed that after coming from the room

where rape was committed, PW-2 narrated the incident to

her by saying that all the four accused (accused Nos.4,5,6

and 7) had raped her. She has deposed that PW-2 was

weeping, she was feeling tired and she was having pains.

32) PW-2 has given evidence that in Shakti

bungalow she was taken to one room by one of the

accused from accused Nos.4 to 7. She has specifically

pointed accused No.6 in that regard. She has deposed that

first, accused No.6 raped her against her will by removing

her clothes. She has described the incident of rape in her

evidence. She has given evidence against accused No.4

that he had raped her in Shakti bungalow against her will.

She has given evidence that accused No.7 then committed

rape on her and at the end accused No.5 committed rape

on her. She has identified these four accused persons in

the Court as the persons who had raped her in Shakti

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bungalow. She has given evidence that she was ravished

for long time by these four persons, till early hours of the

next day. She has given evidence that when she came out

of the room she saw PW-1 and she informed the incident

to PW-1. She has given evidence that she was having

pains, she could not walk and she was frightened and as

she was not able understand what to do, she slept in

Shakti bungalow on that night for the remaining period.

33) The remaining evidence given by PW-1 and PW-

2 is with regard to their subsequent conduct. The

evidence shows that after the incident of rape which took

place in Shakti bungalow they were allowed to leave

Shakti bungalow. Their evidence shows that they could not

meet each other on the morning of 6-7-1994. Their

evidence shows that first PW-1 left the Shakti bungalow,

she went to Purna station where a lady constable made

inquiry with her and by way of precaution the lady

constable took PW-1 with her. Evidence of PW-2 shows

that after searching for PW-1 for some time, she went to

Parbhani Railway Station as she wanted to return to

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Partur and there the aforesaid lady constable came to her

and then she was taken to railway police Chowki by the

said lady constable. The evidence of PW-1 shows that from

Purna Railway Station she was taken to Partur to her

residential place by the lady constable and she was

reached to her house. The evidence of PW-1 shows that

when train reached Parbhani, she showed PW-2 to the

lady constable and so the lady constable took aforesaid

step.

34) The evidence of PW-2 shows that from Railway

Police Chowki Parbhani the aforesaid lady constable took

her to Purna Railway Station in the night time i.e. on the

night between 6-7-1994 and 7-7-1994. The evidence of

PW-2 shows that in the Parbhani Railway Police Station

one PSI Khan made inquiry with her and he recorded her

statement. PW-2 has tried to say that her entire version

was not recorded by Khan and only the portion which he

felt necessary was recorded by him. On that statement her

signature was obtained by Khan. She has given evidence

that on 7-7-1994 she was taken to Parbhani from Purna

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for her medical examination and there she was medically

examined.

35) PW-2 has given evidence that on 8-7-1994 her

clothes were taken over by police which were Salwar and

Kurta and they were the clothes which were on her person

when she was raped in railway residential quarters of

accused No.4 and in Shakti Bungalow. She has identified

articles 9,10 and 11 as her clothes which were produced

before police by her. She has deposed that her signature

was obtained on the seizure panchanama (Exhibit 28)

when the clothes were taken over by police. She has given

evidence that on 8-7-1994 P.S.I. Yeshwant took over inner

wear, nicker, which is article 6 and separate panchanama

in that regard was prepared.

36) PW-2 has given evidence that on 10-7-1994 she

showed the places where the incidents narrated by her

had taken place. The places were the railway quarters of

accused No.4 and the Shakti Building. The evidence as

regards the other place viz. retiring room of railway

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station need not be considered as that matter is not before

this Court. PW-2 has deposed that panchanama of the

incidents in which she showed the places was prepared in

her presence.

37) PW-2 has given evidence that during

investigation, she was given opportunity to identify the

accused persons. She has deposed that in the test

identification parade dated 2-8-1994 she identified

accused No.4 Bhansing and accused No.5 Raju. This

witness has identified accused Nos.4 and 5 during the

deposition in the Court also. PW-2 has given evidence on

test identification parade dated 20-8-1994 in which she

identified accused No.6 Ravindra @ Munna and accused

No.7 Mahesh. PW-2 identified accused Nos.6 and 7 during

deposition in the Court also.

38) PW-2 has given evidence that the Judicial

Magistrate recorded her statement (under section 164 of

the Cr.P.C.) during the course of investigation. It is

brought on the record in her evidence that the term used

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in Marathi by her viz. "Angawar Haat Takla" (v ax koj gkr

Vkdyk ) means the commission of rape.

39) PW-1 has given evidence that on 7-7-1994 PSI

Yeshwant took her from her residential place from Partur

to Parbhani Police Station and then her report was

recorded. That report is a part of Sessions Case

No.121/1994. PW-1 has given evidence that PSI Khan

recorded her statement in Parbhani on 8-7-1994 but that

statement was not recorded as per the version given by

her. PW-1 has deposed that her clothes viz. article Nos.4

and 5 (shown to be seized in Sessions Case No.121/1994)

were taken over during investigation and she was wearing

these clothes viz. Salwar and Kurta at the time of the

incidents in question.

40) PW-1 has given evidence that opportunity was

given to her to identify accused persons in test

identification parades. She has deposed that in the test

identification parade dated 2-8-1994 she identified

accused No.4 Bhansing and on that occasion she was

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asked to identify associate of the accused who raped her.

She has deposed that accused No.4 had raped PW-2. PW-1

has deposed that on 20-8-1994 in other test identification

parade she identified accused No.6 Munna and accused

No.7 Mahesh. In the Court during deposition, PW-1

identified accused Nos.4,6 and 7.

41) PW-1 has given evidence that her statement

was recorded by the Judicial Magistrate (under section

164 of the Cr.P.C.) but she could not give the narration of

the incidents correctly when the statement was recorded

as she was still in shock. She has given evidence that she

was referred for medical examination and she was

medically examined.

42) The prosecution has given other circumstantial

evidence. Eknath (PW-3) panch witness is examined to

prove the seizure of the clothes of PW-1 on 8-7-1994. His

evidence shows that PW-1 produced Salwar and Kurta

and they came to be seized. Panchanama of seizure of the

clothes of PW-2 is also proved in his evidence as Exhibit

37and there were blood stains on the underwear of PW 2.

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43) Shivaji (PW-4) is examined as panch witness on

the following panchanamas :

(i) Statement was given by accused No.4 Bhansing

dated 17-7-1994 in which he stated that he would show

the places of the incidents like residential quarters of the

railway and Shakti bungalow. No recovery or seizure of

articles took place on the basis of the statement. The

memorandum in respect of statement and panchanama of

incidents of showing places cannot be used in evidence in

view of the object behind the provision of Section 27 of

Evidence Act and as it cannot be said that these places

were not known to police.

(ii) Panchanama of arrest of accused Nos.6 and 7. These

panchanamas are proved at Exhibits 41 and 42. These

panchanamas are of no help to prosecution. However,

there is circumstance that only after showing the places

of the incidents by PW-2 and after arrest of accused No.4,

accused Nos.6 and 7 were traced and arrested. They were

not known to PW-2 prior to the date of incident.

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(iii) The memorandum panchanama of statement of

accused No.6 which was in respect of carpet used at the

time of the incident and it is proved at Exhibit 43. Carpet

came to be recovered and seized from the house of

accused No.6 under panchanama at Exhibit 44.

(iv) Memorandum of the statement of accused No.7 with

regard to his clothes which were kept by him in his house

and it is proved at Exhibit 45. The accused then took

police and panchas to his house from where his clothes

came to be recovered and seized under panchanama at

Exhibit 47.

(v) Memorandum of statement of accused No.6 in

respect of his clothes which were on his person on the

date of the incident and it is proved at Exhibit 47.

Panchanama of seizure of underwear and 'T' shirt of

accused No.6 is proved at Exhibit 48 and the clothes were

recovered on the basis of statement mentioned in Exhibit

47.

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(vi) Panchanama of seizure of motor cycle of accused

No.6 is proved at Exhibit 49. The evidence on record

shows that this motor cycle is not identified by the two

victim girls. The evidence is given that on a motorcycle

accused No.6 and 7 had come upto Shakti bungalow from

the residential quarters of accused No..4.

44) Vaijnath (PW-12) is another panch who has

given evidence on the seizure of clothes of accused No.4

Bhansing and on his arrest panchanama. The clothes are

given article Nos.9,10 and 16 and they were shown to be

seized in CR No.82/1994.

45) Abdul Samad (PW-13) is examined as panch

witness to prove the seizure of some articles from the

residential quarters of accused No.4. His evidence shows

that PW-2 was with police and panchas when they visited

the quarters. The evidence shows that on 10-7-1994 the

articles like empty liquor bottle, two glasses, two mats

having some stains came to be taken over under

panchanama at Exhibit 76 from railway quarters of

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accused No.4. One underwear having stains of blood was

also taken over. A pair of shoes was taken over and to one

shoe there was no lace. Here only it needs to be again

mentioned that it is the case of PW-2 that she was given

lace of this shoe by Bhansing as the lace of her Salwar got

broken during the incident. Another document at Exhibit

77 is proved in the evidence this witness. This document

shows that Shakti bungalow, the other place of the

incident, was also shown by PW-2.

46) Dr. Jaishri Deshpande (PW-14) is examined by

prosecution to give medical evidence. She examined PW-2

on 7-7-1994 at about 4.p.m. She examined PW-1 on 8-7-

1994. On local examination she noted following things in

respect of PW-2 :-

1. Matting of pubic hair was seen.

2. Blood stains on clothes and genitals.

3. No evidence of external injuries over
genitals.

4. Hymen - torn, congested+ oozing through tear
present.

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

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On PV examination she found following things :

Vagina admits one finger with pains i.e. severe
tenderness.

Bleeding through cervical was present.

She has given specific evidence that on clinical

examination she formed opinion that there was sexual

intercourse with PW-2. She had collected vaginal swab,

pubic hair and the blood of PW-2. The medical certificate

prepared by her is proved in her evidence at Exhibit 79.

This document is consistent with the oral evidence of the

witness.

47) Dr. Jaishri (PW-14) examined PW-1 on 8-7-1994

at 9.00 p.m. She has deposed that on local examination

she found following things :-

1. Matting of pubic hair not seen

2. Blood stains on the clothes and genitals were seen

3. Posterior fourchette congested and redness. Lebia
minora was slightly congested.

4. Hymen torn (old tear), no oozing bleeding through
vagina was present.

5. No evidence of injury over the external genitals.

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Dr. Jaishri (PW-14) found following things on PV

examination of PW-1.

"Medium size speculum passed with a minimum
tenderness means pains. Bleeding through cervical os
seen. The vaginal mucosa is contested. Vagina admits two
fingers with tenderness. Uterus - normal size, retroverted
bleeding through cervical seen. No living or dead
spermatozoa. "

48) The evidence of Dr. Jaishri Deshpande shows

that on microscopic examination no living or dead

spermatozoa were revealed. Her evidence, however,

shows that living spermatozoa can be seen within 2 to 3

hours after sexual intercourse and dead spermatozoa can

be seen within 24 hours of sexual intercourse. The

evidence on the record shows that both the victim girls

were examined after 24 hours of the last incident of rape.

49) Dr. Jaishri (PW-14) has given evidence on the

examination done by her of both the victim girls to

ascertain their age. Her evidence shows that she had

taken X-rays and she had done clinical examination also.

In respect of PW-2 she has deposed that iliac crest had

appeared but not fused. The process of fusion of lower end

was not yet started but the head of radius was found

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fused. The X-ray plates are produced in the Court. On the

basis of the clinical and radiological examination she gave

opinion about the age of PW-2 as age between 14 and 16

years which include margin of error which is 1 to 2 years.

She has given specific opinion that the age of PW-2 was

less than 16 years.

50) Dr. Jaishri (PW-14) has given similar evidence in

respect of PW-1. She has given evidence that the age of

PW-1 was between 14 and 16 years which include margin

of error. She has given specific evidence that the age of

PW-1 was not more than 16 years on the date of

examination. X-ray plate of this victim girl was also

produced. The certificate in respect of age of PW-2 is at

Exhibit 79 and the certificate in respect of the age of PW-1

is at Exhibit 80. This record is consistent with the oral

evidence of Dr. Jaishri. Specific opinion was obtained by

police from this doctor by putting some queries and that

opinion is given at Exhibit 81 which is proved in her

evidence. At Exhibit 82 there is the record with regard to

radiological examination.

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51) Prosecution has given evidence on the dates of

birth also in respect of two victim girls. Krishnarao

Choudhari (PW-15) is working as Clerk in Dhapibai

Maternity Home Amarawati. He has given evidence that

as per the record one Kirandevi Mor was admitted in this

hospital for delivery on 12-3-1979 and on the same day

she delivered a female child at 1.30 p.m. According to

him, as per the record, it was second female child to

Kirandevi. Certificate was issued by this hospital and the

original certificate is produced in Sessions Case No.121/

1994. This certificate is signed by Dr. Ladda of the

hospital and it is at Exhibit 84. He has given evidence

that after the delivery, information was given to local body,

Municipal Corporation by this hospital. Challenge with

regard to the surname of the mother mentioned in the

register is being discussed at later place. It is the case of

the prosecution that this record is in respect of PW-1.

Original record was brought to the Court and Exhibit 84 is

consistent with the original record.

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52) Dr. Rajkumar (PW-16) who is working as

medical officer in the Department of Registration of Births

and death of Municipal Corporation Amarawati is

examined by the prosecution to prove the registration of

birth of PW-1 on the basis of information give by Dhapibai

Maternity Home, mentioned above. He had brought

original record to the Court and it was for the period from

5-3-1979 to 14-5-1979. Entry was made at Sr. No.2131 in

the register in respect of PW-1 and he has given evidence

that it is in respect of female child name of whose father

was Rameshwar Gangabhishan Mor and the name of the

mother of the child was Kiran. The date of birth is

recorded as 12-3-1979 and the girl was born in Dhapibai

Maternity Home Amarawati. It was the second female

child to this couple. Copy of this entry of birth register is

produced on record at Exhibit 86. Thus, the prosecution

has given medical evidence that age of PW-1 was around

16 years and the evidence is given on the date of birth as

she was born on 12-3-1979.

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53) Arjun Kukde (PW-22), Headmaster of Lal

Bahadur Shastri High School Partur is examined by the

prosecution to prove the date of birth of PW-2 on the basis

of her school record. His evidence shows that prior to the

admission of PW-2 in his school, she was student of C.P.S.

Partur (Ganj) and she was admitted in his school on the

basis of transfer certificate issued by C.P.S. Partur on 25-

6-1991. The transfer certificate issued by C.P.S. is proved

in Sessions Case No.121/1994 as Exhibit 229 and its copy

is produced in the present matter. He has given evidence

that as per original transfer certificate which was received

by his school, the PW-2 was admitted on 10-7-1981 and

accordingly the date of birth was recorded by his school.

The original admission form which was filed in his school

for admission of PW-2 was also brought to the Court and

its copy is produced at Exhibit 176. The original form is

given Exhibit 270 in Sessions Case No.121/1994. Copy of

the transfer certificate is taken on the record at Exhibit

175 in the present matter. In the school register entry of

the admission was taken and the original school record

was also brought to the Court. The entry of admission of

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PW-2 in this school is on record at Exhibit 177. This school

had issued school leaving certificate in favour of PW-2 and

this document is at Exhibit 178. All this record shows that

the date of birth of PW-2 is 10-7-1981. Thus, there is

medical evidence and also the evidence given on the basis

of school record by the prosecution to show that the age

of PW-2 was not more than 16 years at the relevant time.

The dates of birth of both the victim girls show that their

age was less than 16 years at the relevant time.

54) Namdeo Jadhav (PW-17), Executive Magistrate,

has given evidence on test identification parades

(hereinafter referred to as "T.I. Parade") held by him in the

campus of Parbhani Jail. He has given evidence that after

receipt of letter of police, he collected information about

the case and then he arranged for conducting T.I. parade.

The correspondence with police is at Exhibits 88 and 89.

The evidence of T.I. parade was seriously challenged

before the trial Court. Though the learned Senior Counsel

for the present appellants-accused submitted that the trial

Court has discarded the evidence of T.I. parade, the

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judgment does not show that there is such specific

finding. The trial Court has held that two victim girls were

in the position to identify the accused, who were identified

by them in the Court and identification in Court is

sufficient.

55) Namdeo Jadhav (PW-17) has given evidence

that in the T.I. parade held on 2-8-1994 PW-2 identified

accused Nos.4 and 5 of the present matter. The evidence

of Jadhav shows that he used 7 dummy persons for T.I.

parade dated 2-8-1994 and they were resembling to the

accused persons in appearance, in age and in height. He

has given evidence that opportunity was given separately

to PW-1 and PW-2 to identify accused Nos.4 and 5 though

accused Nos.4 and 5 were standing in the same group of

aforesaid 7 dummy persons. He has given evidence that

PW-1 and PW-2 were asked to identify the accused

persons who had raped them and also the persons who

had acted as associates in the incidents. He has given

evidence that PW-1 identified accused No.4 Bhansing as

an associate.

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56) Jadhav (PW-17) has given evidence that report

of T.I. parade was prepared by him which is at Exhibit 90.

This record is consistent with the evidence of Jadhav and

also the substantive evidence given by PW-1 and PW-2 on

T.I. parade.

57) On 20-8-1994 Jadhav (PW-17) held T.I. parade

in which opportunity was given to PW-1 and PW-2 to

identify accused Nos.6 and 7 of the present matter. The

correspondence in respect of this T.I. parade is at Exhibits

94 and 95 and the memorandums of the T.I. parade are at

Exhibits 96 and 97. On this occasion he used six dummy

persons. Evidence of Jadhav shows that in the T.I. parade

dated 20-8-1994 the position of accused Nos.6 and 7 was

changed and second opportunity was given to both PW-1

and PW-2 to identify these two persons. His evidence and

the record show that in the first opportunity PW-1

identified both accused Nos.6 and 7 but in the first

opportunity PW-2 could identify only accused No.6. In the

second opportunity PW-2 identified both, accused Nos.6

and 7.

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58) The prosecution has given evidence of the

investigating officers also. Khan (PW-18) is the first

investigating officer and he was attached to Purna

Railway Police Station as Police Sub Inspector. He was in

charge of Parbhani Railway Police Station also. According

to him, the railway quarters of the employees of the

railway like accused No.4 is not within his local

jurisdiction. This circumstance needs to be kept in mind

as some incidents are omitted in the report recorded by

Khan (PW-18).

59) The evidence of Khan (PW-18) shows that he

took over the investigation of the matter on 7-7-1994 at

4.00 p.m. According to him, he recorded the first

disclosure of PW-2. According to him, after recording the

report of PW-2 he took steps like sending PW-2 for medical

examination on 7-7-1994. He took over the clothes of PW-

2 which were on her person like Salwar, Odhani and Kurta

(articles Nos.9,10 and 11) under Exhibit 28 in CR

No.29/1994 registered by him in Purna Railway Police

Station. According to him, during investigation he

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collected record of Lal Bahadur Shastri High School in

respect of PW-2 to ascertain the date of her birth. His

evidence shows that he arrested accused No.5 Raju and

he seized the clothes of Raju after his arrest (articles 7

and 8) under panchanama at Exhibit 60. He has given

evidence that he had sent PW-1 and PW-2 to the Judicial

Magistrate First class for recording their statements

under section 164 of the Cr.P.C. He has given evidence

that he had sent articles which were seized by him to C.A.

office on 14-7-1994 with covering letter. He has given

evidence that he was required to hand over the

investigation of the case to C.I.D. Crime on 11-8-1994.

60) Khan (PW-18) was cross-examined by learned

Special Public Prosecutor. The evidence of both the victim

girls shows that they had the grievance against PW-18

that their versions were not completely and correctly

recorded by PW-18 Khan. It is suggested to him that he

did not record the incidents which took place near brook,

the incident of rape which took place in Visawa Lodge and

the incident of rape which took place in the campus of a

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school even when they were disclosed. These incidents

are not involved in the present matter but due to these

circumstances, Khan was cross-examined by the learned

Special Public Prosecutor.

61) In the examination-in-chief itself Khan (PW-18)

has deposed that PW-2 was appearing weak and she was

not able to speak and so he had obtained the information

by putting some questions to her. This evidence also needs

to be kept in mind as some incidents were not recorded by

him. After giving such evidence, he has given evidence

that PW-2 did not disclose the aforesaid incidents to him

and so he did not record those incidents in the report of

PW-2.

62) Here only it needs to be observed that the

mental condition of these two girls needs to be kept in

mind at the time of the appreciation of the evidence of

PW-1 and PW-2 and at the time of consideration of

absence of some incidents in the first disclosures made by

them to police. They had left the shelter of their parents/

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guardians, they were minor and were afraid of some

action against them. It also needs to be kept in mind that

their evidence shows that their guardians/parents

preferred to stay away from them and they did not opt for

the custody of these two minors and the minors were

required to be kept in Remand Home. These victims girls

must have felt that they were responsible for everything

including the incidents that had taken place against them.

The circumstance that PW-1 had given her age as 18 years

at the relevant time also needs to be kept in mind.

However, PW-2 had given her age as 14 years. It can be

said on the basis of evidence of PW-1 that she was little

more mature than PW-2 at the relevant time. Even when

their evidence was being recorded, they were kept in

Female Reformatory school.

63) Chandrabhan (PW-19) was attached to Kotwali

Police Station Parbhani as Police Sub Inspector. He has

deposed that he recorded statement of PW-1 and then sent

her to New Mondha Police Station Parbhani. He

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

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Station on the basis of report recorded by him. He has

given evidence that he took over the clothes of PW-1

(articles 4 and 5) in CR No.73/1994 under panchanama at

Exhibit 36. His evidence shows that this record was used

in Sessions Case No.121/1994 which was in respect of the

incidents which took place in Banana garden, near brook,

in the lodge, in the campus of the school and then in one

Wada. He has given evidence that during investigation he

seized under-wear of PW-2 (article 6) in CR No.73/1994

under panchanama Exhibit 37. On the basis of the

evidence of Chandrabhan it can be said that only after

recording of the statement by Chandrabhan of PW-1, he

realised that some more incidents had taken place and

then PW-1 was referred to other Police Station, New

Mondha Police Station as other incidents had taken place

within local jurisdiction of New Mondha Police Station.

Police realised that in the disclosure recorded on 7-7-1994

of PW-2 by Khan (PW-18) many incidents were not

recorded. Evidence is given by PW-18 that after recording

statement of PW-1 he referred PW-1 for medical

examination on 8-7-1994. He recorded the age of PW-1 as

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16 years and the age of PW-2 as 14 years when he

recorded their statements.

64) Shaikh Mujib (PW-20) is other investigating

officer who was working as Assistant Police Inspector in

New Mondha Police Station. He has deposed that on 9-7-

1994 he recorded statement of PW-2 and in that statement

she narrated all the incidents including the incidents of

retiring room of Railway Station Parbhani. This statement

of PW-2 is given Exhibit 29 and on that basis crime at CR

No.82/1994 was registered in New Mondha Police Station

Parbhani. Shakti bungalow where one incident took place

is within local jurisdiction of New Mondha Police Station.

According to PW-20 he recorded two separate F.I.Rs (after

realising the aforesaid things). PW-20 has given evidence

that the first F.I.R. was recorded by him in respect of the

incidents of Banana garden, brook, Visawa Lodge, school

campus and one Wada (Munde Wada) and these places

were situated within the local jurisdiction of Kotwali

Police Station. He has deposed that Circle Police Inspector

Chalak was having jurisdiction over both New Mondha

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Police Station and Kotwali Police Station. Thus, Chalak

could have made investigation of all the incidents of rape.

65) Chalak (PW-21), Circle Police Inspector, has

given evidence that aforesaid two police stations were

under his jurisdiction he had power to make investigation

of all the incidents. However, he has given evidence that

he took over the investigation of CR No.82/1994

registered in New Mondha Police Station from Shaikh

Mujib (PW-20). He has given evidence that he arrested

accused No.4 Bhansing on 9-7-1994 and during his arrest

he took over the clothes of Bhansing (articles, 9,10 and

16) under seizure panchanama at Exhibit 74 prepared in

CR No.82/1994.

66) Chalak (PW-21) has given evidence that on 10-

7-1994 PW-2 showed to him the places where the

incidents of rape had taken place. He has deposed that

the railway quarters of Bhansing, accused No.4 was also

shown by PW-2 and during that incident he took over the

articles like a pair of shoes in which one shoe was not

having lace under panchanama at Exhibit 77.

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67) Chalak (PW-21) has given evidence on the

arrest of accused No.5 Raju in Crime No.82/1994. It

appears that Raju was already arrested and he was taken

in custody by Chalak after transfer of this accused in CR

No.82/1994.

68) Evidence is given by Chalak that during the

course of investigation he collected blood sample of

accused No.4 and it was sent to CA office along with

covering letter at Exhibit 168. He has given evidence

that he had requested the learned Executive Magistrate to

hold T.I. parade. Chalak has given evidence that accused

Nos.6 and 7 from the present matter, CR No.82/1994 of

New Mondha Police Station, were absconding and so he

had requested the Judicial Magistrate to take action

against them under sections 82 and 83 of the Cr.P.C. He

has given evidence that he could arrest accused Nos.6 and

7 on 7-8-1994 and then he prepared panchanamas at

Exhibits 41 and 42. He has given evidence that he

collected blood samples of these persons and sent them

to CA office along with covering letter which is at Exhibit

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169. He has given evidence that he had sent PW-1 and

PW-2 to the learned Judicial Magistrate for recording

statements under section 164 of the Cr.P.C.

69) Chalak (PW-21) has given evidence that during

investigation, accused No.6 Munna gave statement to him

in the presence of panchas and he prepared memorandum

statement which is at Exhibit 43. He has given evidence

that after giving statement, accused No.6 produced one

carpet from his house and the carpet came to be seized

under panchanama at Exhibit 44 in CR No.82/1994 and

the carpet is Article No.8.

70) Chalak (PW-21) has given evidence that he

seized clothes of accused No.7 on the basis of statement

given by accused No.7. He prepared memorandum of the

statement which is at Exhibit 45 and the panchanama of

the seizure of the clothes of accused No.7 is at Exhibit 46.

Articles 5, 6 and 7 are the clothes of this accused in CR

No.82/1994.

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71) Chalak (PW-21) has given evidence that

accused No.6 also gave statement to him and he prepared

memorandum of his statement. He has given evidence

that on the basis of this statement, articles 1,2,3 and 4,

which were the clothes of accused No.6 were recovered

and they were seized under panchanama Exhibit 48.

72) Chalak (PW-21) has given evidence that he had

sent some articles to CA office on 10-8-1994 with covering

letter Exhibit 170 but after that he was required to hand

over the investigation to CID on 11-8-1994.

73) Sahebrao Vyavahare (PW-23) was working as

Police Inspector in CID and he made remaining

investigation of the case. He has deposed that, he took

over the investigation of CR No.29/1994 registered in

Purna Railway Police Station by PSI Khan and he also took

over the investigation of CR No.82/1994 registered with

New Mondha Police Station which was with Chalak. He

has deposed that he took over investigation of CR Nos.

73/1994 and 81/1994 which were registered in Kotwali

Police Station from P.S.I. Yeshwant and P.S.I. Jagadale.

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74) Sahebrao (PW-23) has deposed that he

requested the Executive Magistrate to hold T.I. parade in

respect of accused No.6, Munna and accused No.7

Mahesh who were arrested in CR No.82/1994. He has

given evidence that he had sent a lace of the shoe which

was recovered from the house of accused No.4 in the

present case along with lace of PW-2 to CA office for

comparison purpose along with covering letter at Exhibit

182.

75) The record of investigation and the aforesaid

evidence show that blood samples of all the accused were

collected and the samples of blood of the two victim girls

were collected. Similarly, vaginal swab collected by the

medical officer along with pubic hair so also the clothes of

the accused mentioned above and the mattresses used at

the time of rape in the lodge, in railway quarters of

accused No.4 and in the Shakti bungalow were sent to

C.A. office. The CA reports in respect of these articles are

produced before the Court. The trial Court has considered

all the aforesaid evidence for giving conviction against the

appellants in the present appeals.

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76) The C.A. reports in respect of the clothes of

PW-2 is at Exhibit 189, the articles like clothes Salwar,

Odhani, Kurta. Covering letter dated 12-7-1994 is there.

On the article Salwar, blood mixed with semen stains was

found. Group of the blood of PW-2 is "A" and the stains

gave reaction for both "A" and "B" groups. C.A. report at

Exhibit 194 is in respect of carpet shown to be recovered

on the basis of statement given by accused No.6 and blood

group "B" was found on it. Though it was sent to C.A.

office on 11-8-1994 as this accused came to be arrested

late, the fact remains that there was blood on the carpet

which ought to have been explained by accused No.6.

Similarly, on the clothes of PW-1 like Salwar, Kurta,

jangiya human blood was found. Though it is true that she

was observing menses, as per CA report, on other article

like Kurta blood was found and this fact needs to be kept

in mind. The blood group of PW-2 is "B". These

circumstances give corroboration to the versions of PW-1

and PW-2.

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77) The evidence and the record show that though

it transpired that accused Nos.6 and 7 were involved in

the incident of rape which took place in Shakti bungalow,

they were not available and they came to be arrested after

about one month. This circumstance also is not explained

by these accused persons.

78) Challenges of the accused to the aforesaid

evidence of the prosecution and other contentions of the

accused made during arguments of these matters 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

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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

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

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act fairly and he arranged even second T.I. parade for

giving one more opportunity to the victim girls.

(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.

79) This Court is considering the aforesaid

challenges one by one. The first challenge regarding the

age of the victim girls needs to be considered first.

AGE OF THE VICTIM GIRLS.

80) The evidence of the prosecution on the age of

the victim girls needs to be considered first. The finding

on the age of the victim girls will help in deciding the

other points like the possibility of consideration of defence

of consent. Finding on the age of the victim girls will also

help in appreciating the evidence of the two girls in

entirety as the conduct and reaction of minor is ordinarily

different than the conduct and approach of an adult. The

evidence on the record shows that these two girls were in

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distress as the financial condition of their parents/

guardians was not that good and they were feeling that

they had no prospects with their guardians/parents.

81) For proving the age of PW-1 the prosecution

has relied on the evidence of PW-1, the evidence of entry

in the birth register, the entry in the hospital where PW-1

was born, the evidence of opinion of doctor about age

which is on the basis of clinical and radiological

examination.

82) Learned Single Judge of this Court (one of us)

had occasion to consider the evidence which can be

available for proving the date of birth, the age of a person

and the importance of various kinds of evidence which can

be available for proving the date of birth or the age. In the

case reported as 2014(2) Mh.L.J. (Cri.) 353 (Mahesh vs.

State of Maharashtra) this Court has made following

observations on the basis of the observations made by the

Supreme Court in the case reported as AIR 1982 SC 1297,

Jaya Mala vs. Home Secretary, Government of Jammu and

Kashmir and others).

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"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 need 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
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

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in the case of entry made in birth register as already
observed."

This Court is endorsing the view expressed by the learned

Single Judge in the case of Mahesh (cited supra).

83) PW-1 has given evidence that she was born at

Amarawati on 12-3-1979 but she received education in

Partur upto 5th standard. She has given evidence that one

Gangabhishan Mor was her grand father of parental side.

She has given name of her father as Rameshwar. She has

given evidence that her mother had informed to her the

date of birth. In the cross-examination of PW-1 it is

brought on record that Rekha is her elder sister and

Rekha was given in marriage about 1 and half years prior

to the date of incident. Her evidence shows that she was

daughter No.2 to her parents.

84) It is brought on record in the cross-examination

of PW-1 that she received eduction upto 4th standard in

Ganj school Partur and then she was admitted to other

school. It is brought on the record that when her

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statement was recorded by police, she had not informed

the date of birth to police. It is already observed that the

mind set of such girls needs to be kept in mind at the time

of considering the discrepancies which can be there in the

disclosures made by them and the record which is

available. Further the record in respect of date of birth in

such cases has the precedence. It appears that PW-2 had

given age more than 16 years on different occasions to

police. Her evidence shows that she was frightened and

she did not want to inform the incident even to her

mother. The evidence on the record also shows that when

she was reached to Partur by a lady constable she did not

disclose the incident to her mother and she disclosed the

incident only when the report of PW-2 was recorded and

she was brought to Parbhani from Partur for the purpose

of investigation.

85) In the cross-examination, PW-1 has specifically

deposed that at the time of the incident her age was 15

years. In the cross-examination some questions were to

put to her in respect of her two sisters. Even if the

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answers given by PW-1 to those questions are accepted as

they are, those answers have not created probability that

she had crossed the age of 16 years at the relevant time.

In any case, if there is a record of date of birth which has

presumptive value, that record needs to be given more

weight than the information supplied to police by the

victim girl like PW-1.

86) In the record of birth register initially the

surname of her parents was recorded as "Mor" and the

surname "Agrawal" was shown as other surname. PW-1 is

cross-examined at length to test as to whether she was

knowing the particulars of the family of her grandfather

from paternal side, Gangabhishan Mor @ Agrawal. She

successfully faced the test of cross-examination and she

gave the particulars of the family of Gangabhishan. Father

of PW-1 is dead though mother is alive. Mother of PW-1 is

not examined in Sessions Case No.139/1994. The record

shows that evidence of PW-1 is on the basis of information

supplied by mother and it can be said that it is also on the

basis of the record of her birth. She has received eduction

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at least for some time and so it can be said that she can

give evidence about the birth date also.

87) Evidence of Krishnarao Choudhari (PW-15), one

employee of the hospital where PW-1 was born, is on the

basis of record of the hospital. If the evidence of PW-1 is

compared with the description of the parents given in the

register of the hospital, the description tallies. The record

shows that second daughter was born to Kirandevi

Rameshwar Mor (Agrawal), the mother of PW-1. Original

register was brought to the Court and it showed that it

was regularly maintained. As per the oral evidence and

the record, intimation of this birth was given by the

hospital to the local body, Amarawati Municipal

Corporation. In view of this check and the manner in

which the record was maintained, this Court has no

hesitation to observe that there was no possibility of

interpolation. There is only suggestion from defence that

surname Agrawal was added subsequently in the register.

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88) Evidence of Dr. Rajkumar (PW-16), the officer

in-charge of the birth and death register of Amarawati

Municipal Corporation is there on the certificate of birth

issued in favour of PW-1. This register was also regularly

maintained. Names of father and mother mentioned in

the register of the issue tally with the names given in the

present matter. The entry was made on the basis of

information supplied by Dhapibai Maternity Home. In the

cross-examination of this witness it is brought on record

that in the original register there is one correction and

name of the hospital which was initially mentioned as

"Ji.Stri.Ru." was changed to make it as Dhapibai Maternity

Home. This change was not only for the present entry but

it was for many entries. Entries were made on the basis of

information given by Dhapibai Maternity Home at Sr.

Nos.2116 to 2124 and after correction these entries were

also made from Sr. Nos.2125 to 2131. The present entry is

shown at Sr. No.2131. Thus, the correction was made in

respect of many entries viz. 2125 to 2131 and it does not

look probable that for the present matter any

manipulation was done by the local body. In this register

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the date of birth which was informed by the hospital was

recorded as 12-3-1979. Thus, at the relevant time, in July

1994, the age of PW-1 was below 16 years.

89) PW-2 has given evidence that her date of birth

is 1-7-1981. She has given evidence that she received

education in Lal Bahadur Shastri High School Partur till

6th Standard. Her evidence shows that she was kept in

Partur by her parents who are residents of Hiwarkheda

and so she was admitted in this school by her uncle living

there. Her evidence shows that prior to her admission in

Lal Bahadur Shastri High School she was receiving

education in Ganj school Partur. Even before police she

had given her age as 14 years. Her cross-examination

shows that when she was a kid, she was shifted to Partur.

She does not know even the particulars about her brother

and sister, what they are doing. Her evidence shows that

her parents visited Partur only twice after sending her to

Partur from Hiwarkheda. These circumstances show that

whatever happened to her was due to her poverty and

absence of care and protection of the parents.

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90) The evidence of Kukde (PW-22), Headmaster of

Lal Bahadur Shastri High School Partur shows that it is on

the basis of the original admission form in respect of PW-

2. His evidence shows that Ganj school had given transfer

certificate and on that basis PW-2 was admitted in Lal

Bahadur Shastri High School. In the school register, on

the basis of transfer certificate and the date mentioned on

the admission form the date of birth was recorded as 10-3-

1981. Original register was brought to the Court and it

was found to be regularly maintained. Though Kukde (PW

22) could not say as to who had admitted PW-2 in the

school on the basis of the signature, there is evidence of

PW-2 that her uncle/guardian at Partur had admitted her

in the school. In view of nature of evidence and the record

there was no possibility of interpolation or manipulation.

This record is very old and it is relevant in view of

provision of section 35 of the Evidence Act.

91) In the evidence, Dr. Jaishri (PW-14) has given

approximate age of PW-2 as already quoted. There is no

reason for not accepting the opinion given by Dr. Jaishri in

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view of the aforesaid record and the substantive evidence.

The medical evidence of the doctor of opinion is consistent

with the school record and the evidence of PW-1. No other

probability is created during cross-examination of this

witness. It is not even suggested to PW-2 that she was

studying in any other institution. At the cost of repetition

this Court feels it necessary to mention here that due to

the incidents in question, the parents and guardians of

PW-1 and PW-2 disowned them, they did not even turn up

to give evidence for the prosecution.

92) 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,

ordinarily precedence needs to be given to the record of

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birth date prepared under the aforesaid Act. In the

present matter, the medical evidence is also consistent

with this record and no probability is created in this

matter that age of PW-1 was more than 16 years at the

relevant time.

93) 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 were given. There is no force

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

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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-1 and PW-2 which is to the effect

that both the victims had not completed 16 years of age at

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

the victims was below 16 years at the relevant time.

94) 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

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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.

95) 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

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 possible on

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the basis of clinical examination. In view of these

circumstances, the Apex Court held 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.

96) 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

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.

Evidence on wrongful confinement and abduction:

97) The evidence given by PW-1 and PW-2 against

accused No.4-Bhansing that he took them to his

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residential quarters under pretext that he will supply

drinking water is consistent with each other. It can be said

that there could have been charge against accused No.4

for this incident also. There was intention of accused No.4

right from the beginning to commit the offence of rape by

exploiting the situation in which PW-1 and PW-2 were

found. Both these girls have given evidence that they were

kept in the railway quarters and the quarters was locked

from outside by accused No.4 and the key was handed

over to respondent No.5 Raju by accused No.4. The

evidence shows that accused No.5 did not allow them to

leave from the quarters when the key was with him. In

the noon time, accused No.4 returned to the quarters and

even after that they did not allow the two victim girls to

leave the railway quarters. Both the victim girls were kept

in the railway quarters and from there they were taken to

Shakti Bungalow by accused Nos.4 to 7 in the evening

time. This evidence is sufficient to prove that there was

wrongful confinement from accused Nos.4 and 5 of PW-1

and PW-2 and they committed offence punishable under

section 342 read with 34 of Indian Penal Code.

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98) PW-1 and PW-2 have given evidence that after

returning to the railway quarters from the office, some

food items were supplied to them by accused No.4.

Accused No.4 then consumed liquor along with accused

No.5. PW-1 has given evidence that accused No.5

committed rape on her. PW-2 has given evidence that

accused No.4 committed rape on her. The trial Court has

considered some omissions in the first disclosure made by

the girls in respect of this incident and that point is being

discussed at later place. It can be said that accused Nos.4

and 5 both wanted to commit offence as both the victim

girls were available. Considering the intention of accused

Nos.4 and 5 and the fact that both girls were kept in the

railway quarters with that intention, this Court holds that

the act amounts to gang rape.

99) The evidence of PW-1 and PW-2 given on rape

committed on PW-2 in Shakti Bungalow is consistent with

each other. The evidence of these two girls shows that

after every incident they used to disclose about the

incident to each other as they had no other option. The

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evidence shows that to Shakti Bungalow PW-1 and PW-2

were taken by accused Nos.4 and 5 in a vehicle and

accused Nos.6 and 7 had followed that vehicle up to

Shakti Bungalow. The evidence on the record shows that

accused Nos.6 and 7 were using that premises, Shakti

Bungalow. The very nature of the evidence given by PW-1

and PW-2 shows that it is accused Nos.4 and 5 who had

contacted accused No.6 and 7 and it was informed to

accused No.6 and 7 that these two victim girls were

available for commission of rape. The evidence of PW-2

shows that accused Nos.4 to 7 raped her one by one by

many hours on that night, till 3.00 a.m. Thus there is

specific evidence from PW-2 that in Shakti Bungalow

accused Nos.4 to 7 raped her one after other and they

committed offence of gang rape.

100) The record which is referred during cross-

examination of PW-1 and PW-2 by the defence counsels for

proving the inconsistencies in the versions of the PW-1

and PW-2, the omissions and the contradictions show that

the relevant portions were confronted to the witnesses

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and on proof, the relevant portions are exhibited. Much

was argued on this circumstance by the learned Senior

Counsel and other counsels for the appellants. At the time

of considering these inconsistencies or omissions, it is

necessary to keep in mind in a case like the present one

that many police officers have recorded the statements of

PW-1 and PW-2 and many supplementary statements were

recorded by them. Even statements under section 164 of

the Cr.P.C. were recorded many times. It can be said that

the statements were recorded from 7-7-1994 till 29-7-

1994. PW-1 and PW-2 have made allegations against

investigating officer Khan (PW-18) that their versions

were not correctly and completely recorded by him. It

needs to be kept in mind that two girls are from very poor

families and there was no support of anybody to them at

the relevant time. Some accused persons from the two

cases were employees in Railway and some were involved

in politics. The evidence and the record is sufficient to

prove that the incidents did take place as disclosed by PW-

1 and PW-2 but the police officers recorded only some

instances when they recorded the statements and the

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supplementary statements of PW-1 and PW-2. It can be

said that only the officer of C.I.D., who ultimately took

over the investigation, made an attempt to record the

statements in detail and those statements cover all the

incidents. Police officers acted as per their notions. Even,

the learned Judicial Magistrate did not record the

statements in respect of all the incidents and it can be

said that the learned Judicial Magistrate had not gone

through the record of the investigation already made by

police before recording the statements. When statement is

being recorded under section 164 of the Cr.P.C., it is the

duty of the learned Judicial Magistrate to ascertain the

nature of allegations, disclosures already made by the

witnesses and then elicit the information from the witness

by putting questions if they are missing something while

disclosing the incidents before him. It can be said that

most casual approach was used by the Judicial

Magistrates while recording statements under section 164

of the Cr.P.C. What is important in a criminal case like the

present one is the substantive evidence given by the

victim girls. Due to the existence of the circumstances like

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above, the Court can look for corroboration but the Court

cannot discard the substantive evidence only due to the

existence of such circumstances. In the present case, the

accused persons were not known to PW-1 and PW-2

though a probability is created that PW-1 knew accused

No.4 Bhansing. This point is discussed afterwards. The

circumstance that the two victim girls did not know the

accused and only on the basis of disclosures made by

them the accused were traced and police went to the

various places where the incidents took place need to be

kept in mind while considering the defence of the

aforesaid nature of the accused.

101) It is true that in the initial disclosure, PW-1 had

not informed that she was raped by accused No.5 in the

railway quarters of accused No.4. PW-2 had not

specifically contended that accused No.4 had raped her in

his quarters though she had indirectly contended that

after making her to drink liquor, something was done

against her in the railway quarters by accused No.4.

There was contention that due to something which was

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done against her (when she was under intoxication) she

had suffered pains in the private part. While ascertaining

the exact omissions in the evidence of the victim girl,

narrations of the victim girl before police in entirety need

to be considered and then the nature and extent of the

omission needs to be ascertained by the Courts.

102) PW-2 has given evidence on the rape committed

on her by accused Nos.4 to 7 in Shakti Bungalow. In that

regard also some omission is brought on record in the

previous statement about the actual act. In the previous

statement, PW-2 had stated before police that she was

feeling drowsy due to liquor but she was feeling that these

persons were doing something against her and she could

see that. What is said above, needs to be applied in

respect of this omission also. In the subsequent disclosure

made to police they had specifically contended that

accused No.4 had raped PW-2 and accused No.5 had

raped PW-1 in the railway quarters. PW-2 had disclosed

that she and PW-1 both were raped in Shakti bungalow

one by one by accused Nos.4 to 7 and it can be said that

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to some extent there is inconsistency and even

contradiction in the evidence of PW-2 in relation to such

previous statement. PW-1 has deposed that as she was

observing menstruation period and that disclosed by her

to the accused, she was not raped in Shakti Bungalow.

While considering such inconsistencies, omissions and

contradictions the evidence as a whole needs to be

considered and the evidence as a whole shows that they

had named accused Nos.4 to 7 as the persons who had

exploited the situation, who had raped them at two places.

103) In the statements recorded under section 164,

Cr.P.C. of PW-2 there are some omissions and also

inconsistencies. If the evidence of PW-2 is compared with

the disclosures made to Judicial Magistrate on 29-7-1994

it can be said that in the statement dated 29-7-1994 these

witnesses did not disclose the incidents of Shakti

Bungalow. Necessary observations in respect of this

omissions are already made by this Court.

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104) There is corroboration of medical evidence

given by Dr. Jaishri (PW-14) to the versions of PW-1 and

PW-2. PW-2 had recent tear of hymen. There were other

signs showing that there was sexual intercourse with

these two minor girls. Dr. Jaishri was extensively cross-

examined by the defence counsel on the opinion given by

her on the basis of her observations but she stood to the

test of the cross-examination. PW-1 was examined on 8-7-

1994 when PW-2 was examined on 7-7-1994. The last

incident as against PW-1 took place in the railway

quarters on 5-7-1994.

105) Dr. Jaishri (PW-14) has given evidence that she

found blood stains on the clothes and genital of PW-2.

Such things were there as from the railway quarters itself

on 7-7-1994 PW-2 was picked up and she was referred by

police for medical examination. PW-14 Jaishri noticed

bleeding through cervical OS. On PV examination,

speculum tenderness and vagina admitted one finger with

pains. The record of the examination of PW-2 is at Exhibit

79 and it is consistent with the oral evidence of the doctor.

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106) Dr. Jaishri (PW-14) has given evidence that she

noticed posterior fourchette congested and redness and

she noticed that hymen was congested. She found that

vagina was admitting one finger with minimum pains,

bleeding through cervical was present. The record of the

examination is at Exhibit 79 and it is consistent with the

oral evidence.

107) Many persons had raped these two victim girls.

Though it is possible for the accused from the present

case to say that these two victim girls were raped already

in other incidents which had already taken place and so

the medical evidence cannot be used for the purpose of

corroboration in the present matter, that proposition could

not have been accepted by the trial Court. These persons

exploited the situation in which PW-1 and PW-2 had found

themselves and there are specific allegations against the

accused from the present matter. As the acts against PW-

2 were continued till 3.0 a.m. of 7-7-1994, there were

aforesaid signs of rape. Only due to the period expired,

living spermatozoa could not be noticed by the doctor.

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This Court has no hesitation to hold that the medical

evidence gives corroboration to the ocular version of PW-1

and PW-2.

108) While considering the challenge to the

prosecution evidence on the ground of delay caused in

giving F.I.R. and on that ground it is very difficult to

ascertain as to which was the first statement given in

respect of the incident by PW 2, this Court holds that

whatever is said in respect of approach and conduct of

PW-1 and PW-2 already is applicable as explanation to the

delay caused in making the disclosure. To add few more

circumstances it can be said that these girls were new in

the city and they must have been shocked due to the

behavior of the accused persons with them and the things

which were done to them by many persons who included

some influential persons and some persons holding posts

in Government departments. Further, PW-1 has given

specific evidence that she did not want to disclose the

incident out of fear to anybody including to her mother.

They had left the shelter of their guardians without

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informing anything to anybody and they must have guilty

feeling that they were responsible for whatever had

happened to them. It can be said that the first disclosure

of PW-2 was made only due to the inquiry made by police

specifically with her on 7-7-1994. If police had not

intervened, the girls would not have even approached

police on their own. Due to these circumstances, this

Court holds that not much can be made out due to delay

caused in disclosing the incidents to police. In such cases

due to delay caused in making disclosures, the Court can

scrutinize the evidence minutely but only on that ground

the Court cannot discard the substantive evidence.

109) In respect of the challenge to the evidence

given on T.I. parade it can be said that there is substance

in the contentions that there was no strict compliance of

the guidelines given in Criminal Manual in paragraph 16

of Chapter I by this Court. Number of dummies used by

Jadhav at the time of conducting T.I. parade were less

than the number expected in the guidelines. There is no

record to support the evidence of Jadhav that the dummy

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persons had appearance which was similar to the accused

persons. However, the evidence of Jadhav shows that he

was satisfied about the identification of the accused

persons made by the two victim girls during T.I. parade.

110) Accused No.4 was identified by PW-1 though as

associate. PW-2 identified all the remaining accused in T.I.

parade. Though accused No.5 was not identified by PW-1,

he is identified by PW-2 and there is no reason to discard

the evidence of T.I. parade given as against accused No.5

by PW-2. These two girls were together. There is

possibility that PW-1 was misled at the time of

identification as, according to her, she was asked to

identify the associate and so she identified accused No.4.

Evidence of PW-1 shows that accused No.4 had not raped

her. Thus, the evidence of PW-2 on identification given as

against accused No.5 can be used in the present matter.

111) The trial Court has considered the CA reports

in respect of incriminating articles recovered during

investigation by police. Different police officers had taken

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over different articles. The beds, the carpets were

recovered from the lodge, from the railway quarters of

accused No.4 and also on the basis of statement given by

accused No.6. Some stains of blood were found on those

articles as per the CA reports. Similarly, some stains of

blood were found on the clothes of some accused persons.

Accused Nos.6 and 7 came to be arrested after many days

though accused Nos.4 and 5 were arrested immediately.

Due to the circumstances of the present matter even if

this circumstantial evidence is ignored, there is more than

sufficient evidence against accused Nos.4 to 7 to hold

them guilty for the offences for which they were charged

and tried.

112) The prosecution has proved that both the victim

girls had not crossed the age of 16 years at the relevant

time. As per the old provision of section 375 IPC the age

for defence of consent which could have been considered

was 16 years. The learned counsel for the appellants have

placed reliance on some observations made by the Apex

Court in the case of S. Varadrajan v. State of Madras ,

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reported as AIR 1965 SC 942. The observations were

made after interpreting the term "taking" used in section

361 of IPC. When there is a case of rape, the Court is not

expected to consider the defence of consent when the age

of the prosecutrix is below 16 years. The accused cannot

take defence that he was under impression that the

prosecutrix had crossed 16 years of age. Whenever such

incidents take place, Courts need 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

penalty. Thus the defence of consent is not available to

any of the accused from the present appeals. The tenor of

the cross-examination made by learned counsels of the

accused show that indirectly it was suggested that the

prosecutrix was the consenting party. It was also

suggested that the prosecutrix did not resist or did not

raise hue an cry when the offence was taking place. It is

already observed that the accused persons were not

known to both PW-1 and PW-2 though by referring to

previous statement of PW-2 the defence tried to show that

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probably PW-1 had initial talk with accused No.4 before

going to his railway quarters. The circumstance that PW-1

had disclosed that she had girl friend at that place or

probability that she knew accused No.4 cannot make

difference in the present matter. This is because the first

disclosure about the incident was made by PW-2 and not

by PW-1. Admittedly PW-2 was not acquainted with any of

the accused and it is due to the information supplied by

her the police traced accused persons. There was no

reason for PW-1 and PW-2 to falsely implicate accused

Nos.4 to 7. These circumstances show that there is ring of

truth in the versions given by PW-1 and PW-2. Further,

the evidence of the investigating officer does not show

that at any time they treated PW-1 as an accused person.

The evidence given by her is already discussed and it

shows that she was also raped. Thus, there was no

question of giving of consent by PW-1 and PW-2.

113) Some argument was advanced by the counsels

for the accused on the circumstance that Sham Agrawal, a

person from Parbhani who is relative of PW-1 was not

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traced. This lacunae is not that material as tracing of said

Agrawal would not have made difference in the present

matter. Even if it is presumed that the girls had left the

shelter of their guardians on their own, they had no such

relative in Parbhani, that cannot make difference in the

case of the prosecution. The fact remains that the accused

persons exploited the situation in which PW-1 and PW-2

found themselves in Parbhani.

114) The learned Senior Counsel for the accused

placed reliance on some observations made by Apex Court

in the case reported as (2003) 1 SCC 240 (Sarwan Singh

v. State of Punjab). While discussing the provision of

section 9 of the Evidence Act, the requirement of test

identification in a case when the accused are not known to

the witnesses, the Apex Court has laid down that

identification of the accused in such a case first time in

Court may not become admissible and in such case the

Court may expect corroboration of evidence of T.I. parade.

However, the Apex Court has not laid down a rule that in

each and every case there should be corroborative

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evidence of T.I. parade. In para 16 of this case the Apex

Court has quoted some observations made by the Apex

Court in the case of Budhsen v. State of U.P. reported as

(1970) 2 SCC 128 and the observations are as under :

"7. . . . The evidence in order to carry conviction
should ordinarily clarify as to how and under what
circumstances he came to pick out the particular
accused person and the details of the part which the
accused played in the crime in question with
reasonable particularity. The purpose of a prior test
identification, therefore, seems to be to test and
strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to them, in the form of
earlier identification proceeding. There may, however,
be exceptions to this general rule, when for example,
the court is impressed by a particular witness, on
whose testimony it can safely rely, without such or
other corroboration. The identification parades belong
to the investigation stage. They are generally held
during the course of investigation with the primary
object of enabling the witnesses to identify persons
concerned in the offence, who were not previously
known to them. This serves to satisfy the investigating
officers of the bona fides of the prosecution witnesses
and also to furnish evidence to corroborate their
testimony in court. Identification proceedings in their
legal effect amount simply to this: that certain
persons are brought to jail or some other place and
make statements either express or implied that
certain individuals whom they point out are persons
whom they recognise as having been concerned in the
crime. They do not constitute substantive evidence.
These parades are essentially governed by
Section
162 of the Criminal Procedure Code."

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Thus the purpose of T.I. parade is given by the Apex Court.

There is no rule of law showing that if the guidelines given

for T.I. parade are not followed strictly, the evidence of

T.I. parade is not admissible. This Court holds that in the

present matter also the evidence of T.I. parade needs to

be considered as a piece of corroborative evidence.

Further it is a case of rape where the victim girls had

opportunity to observe the accused closely and due to this

circumstance what can be said in other cases like case of

murder etc. cannot be said in a case of rape.

115) The learned Senior Counsel for the accused

persons 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 (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

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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

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.

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116) 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 the

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 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

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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.

117) 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
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

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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,
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

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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 late stage of the
judgment, dearly achieves the said objects."

118) 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

circumstances. The circumstance that the disclosures

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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 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 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 get served.

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102 Appeals 144, 151 158, 216, 306 of
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119) 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.

120) 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

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103 Appeals 144, 151 158, 216, 306 of
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case is on the point of use of statement recorded under

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."

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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

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.

121) The learned Senior Counsel for the accused

placed reliance on another 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 has 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

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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 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.

122) On the point of evidentiary value of the test

identification parade, the learned APP had 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 observation 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

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106 Appeals 144, 151 158, 216, 306 of
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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
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 or for longtime. When there is rape or gang rape,

the victim girl had always the opportunity to see the

accused from close distance and it is very difficult for

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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 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.

123) The learned counsel for the accused persons

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

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108 Appeals 144, 151 158, 216, 306 of
1999

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

evidence in relation to the facts of the present mater and

this Court has formed opinion that the medical evidence

needs to be accepted as the piece of corroborative

evidence.

124) The learned Senior counsel for the accused

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 this proposition

made by this Court in this case also. The provision of

section 376(2)(g) which was applicable at the relevant

time is as under:

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109 Appeals 144, 151 158, 216, 306 of
1999

"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 decided in

the case reported as AIR 2017 SC 2161 (Mukesh v. State

for NCT of Delhi) can be quoted. 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 accused can be held guilty even if only

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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 1 in

relation to the incidents of railway quarters of accused

No.4. 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.

125) The discussion of the facts and circumstances

of the present matter and the position of law discussed

above, show that the trial Court has not committed any

error in holding the present accused person guilty of the

offence of gang rape and also of the other offences. This

Court sees no reason to interfere in the findings of the

trial Court.

126) The learned Additional Public Prosecutor

argued for enhancement of the sentence. Relevant

provision is already quoted. Relevant facts and

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111 Appeals 144, 151 158, 216, 306 of
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circumstances of the present matter are quoted and they

show that there symptoms of rape on the private part but

no other injuries were found on the person of PW-1 and

PW-2. They have given evidence that they were supplied

with food. This Court has already observed that the

accused persons exploited the situations in which the PW-

1 and PW-2 had put themselves. The evidence does hot

show that much violence was done like assaulting the PW-

1 and PW-2. On the other hand, PW-1 admitted that in

Shakti Bungalow when she disclosed that she was

observing menstruation accused Nos.4 to 7 did not rape

her. Due to these circumstances this Court holds that it

not a case where penalty of life imprisonment is

warranted. This Court holds that the penalty given by the

trial Court is just and proper and interference on that

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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112 Appeals 144, 151 158, 216, 306 of
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127) Learned Advocate Shri. H.F. Pawar was

appointed for the appellant in Criminal Appeal No.216 of

1999. His fees is quantified at Rs.5000/- (Rupees Five

Thousand only).

128) 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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