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Dattatraya Ramchandra Korde And … vs The State Of Maharashtra on 3 April, 2018

(201)APEALNo.504-657-2013(J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.504 OF 2013

1. Dattatraya Ramchandra Korde,
Age : 31 years.

2. Ganesh @ Manoj Somnath Pardeshi,
Age : 33 years,
Both R/at : Gadai, Tal.Trambakeshwar,
Dist.:Nashik.

3. Pintu Somnath Khoskar,
Age : 25 years,
R/at: Khoskar, Tal.Trambakeshwar,
Dist.: Nashik.
(All at present in Central Jail, Nashik.) … Appellants
V/s.

The State of Maharashtra
(At the instance of Trambakeshwar
Police Station, District Nashik.) … Respondent

WITH
CRIMINAL APPEAL NO.657 OF 2013

Ganesh Ramesh Zole,
Age : 20 years, R/at: Gadai,
Trambakeshwar, District : Nashik.
(Lodge in Nashik Road Central
Prison, District : Nashik. … Appellant
V/s.

The State of Maharashtra
(Through Trambakeshwar
Police Station, District). … Respondent

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…..

Ms.Nasreen S.K.Ayubi, appointed Advocate for the Appellants in
APEAL/504/2013.

Mr.S.A.Ghaisas, Advocate for the Appellant in APEAL/657/2013.

Mr.S.V.Gavand, APP for the Respondent/State in
APEAL/504/2013.

Mr.Prashant Jadhav, APP for the Respondent/State in
APEAL/657/2013.

….

CORAM : A.M.BADAR J.

DATED : 3rd APRIL 2018.

ORAL JUDGMENT :
1 Criminal Appeal bearing No.504 of 2013 is preferred

by appellants/accused Nos.1 to 3, whereas Criminal Appeal
bearing No.657 of 2013 is preferred by appellant/accused No.4.
By these appeals, the appellants/accused are challenging the
Judgment and Order dated 24/04/2013 passed by the learned
Additional Sessions Judge, Nashik in Sessions Case No.127 of
2012 thereby convicting the appellants/accused of offences
punishable under Sections 376(2)(g), 395, 342 read with Section
34, 323 read with Section 34, 504 read with Section 34 and 506
read with Section 34 of the Indian Penal Code. For the offence
punishable under
Section 376(2)(g) of the IPC, each of the
appellants/accused is sentenced to suffer rigorous imprisonment

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for ten years apart from imposition of fine of Rs.10000/- and
default sentence of two years. For the offence punishable under
Section 395 of the IPC, each of the appellants/accused is
sentenced to suffer rigorous imprisonment for ten years apart from
imposition of fine of Rs.10000/- and default sentence of two years.
For the offence punishable under
Section 342 read with Section 34
of the IPC, each of the appellants/accused is sentenced to suffer
rigorous imprisonment for one year apart from imposition of fine
of Rs.1000/- and default sentence of two months. For the offence
punishable under
Section 323 read with Section 34 of the IPC,
each of the appellants/accused is sentenced to suffer rigorous
imprisonment for one year apart from imposition of fine of
Rs.1000/- and default sentence of two months. For the offence
punishable under
Section 504 read with Section 34 of the IPC,
each of the appellants/accused is sentenced to suffer rigorous
imprisonment for one year apart from imposition of fine of
Rs.1000/- and default sentence of two months. For the offence
punishable under
Section 506 read with Section 34 of the IPC,
each of the appellants/accused is sentenced to suffer rigorous
imprisonment for five years apart from imposition of fine of
Rs.5000/- and default sentence of six months.

2 Facts in nutshell leading to the prosecution of the
appellants/accused are thus :

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(a) According to the prosecution case, on 15/03/2012, the
appellants/accused along with juvenile in conflict with law
namely Anand Namdev Zole committed gang rape on the
prosecutrix/P.W.No.1 near the road proceeding towards
Bramhagiri from Trimbakeshwar after committing dacoity of
cash amounting to Rs.7200/- and one cellphone after
wrongfully confining P.W.No.2 Suken Kusuvah by restraining
him and by causing hurt to the prosecutrix/P.W.No.1 and
P.W.No.2 Suken Kusuvah. The prosecution averred that the
appellants/accused along with the juvenile in conflict with
law caused criminal intimidation to the prosecutrix/P.W.No.1
and P.W.No.2 Suken Kusuvah and intentionally insulted them
knowing that the same would cause alarm in them leading to
breach of public peace by them.

(b) It is case of the prosecution that the prosecutrix/P.W.No.1
used to reside with her parents along with her son as well as
her daughter at Satpur area of Nashik. She was separated
from her husband since last eight years. P.W.No.2 Suken
Kusuvah is her co-worker and they both used to serve at the
same Company at Nashik.

(c) According to the prosecution case, the prosecutrix/P.W.No.1
along with P.W.No.2 Suken Kusuvah came to Trimbakeshwar
for darshan of Lord Shiva on 15/03/2012 in the morning

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hours. After taking darshan, they both decided to visit
another holy place Bramhagiri and, therefore, started
climbing the mountain. At about 2.30 p.m., they took a halt
for having lunch. At that time, the appellants/accused along
with the juvenile in conflict with law came there and
questioned them as to why they are sitting there. They had
beaten the prosecutrix/P.W.No.1 as well as P.W.No.2 Suken
Kusuvah. An amount of Rs.7200/- as well as cellphone came
to be robbed from both of them by snatching their money
purses and the cellphone.

(d) According to the prosecution case, then three of them dragged
the prosecutrix/P.W.No.1 to the nearby bushes while two of
them had immobilized P.W.No.2 Suken Kusuvah by holding
him. The prosecutrix/P.W.No.1 was then raped by the trio.
She was threatened that if the incident is disclosed to
anybody, they both shall be killed and thrown from the
mountain.

(e) After the incident of gang rape and after being the victims of
the dacoity, the prosecutrix/P.W.No.1 and P.W.No.2 Suken
Kusuvah returned to the Trimbakeshwar bus stop and by bus
they returned to Satpur. As the prosecutrix was frightened,
she stayed in the house and had not disclosed the incident.

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(f) On 17/03/2012, the prosecutrix/P.W.No.1 informed the
incident to her sister Jyoti as well as her sole brother named
Banti Adhav (D.W.No.1). Both of them gave support to the
prosecutrix/P.W.No.1 and took her to the Police Station
Trimbakeshwar, where she lodged the report (Exhibit 17) on
17/03/2012 itself, which came to be recorded by P.W.No.9
Bhausaheb Mali, Police Naik. Accordingly, Crime No.21 of
2012 for the offences punishable under
Sections 376(g), 395,
342, 323, 504 came to be registered and wheels of
investigation were set in motion. During course of
investigation, the prosecutrix/P.W.No.1 was sent for medical
examination to the Civil Hospital, Nashik, where she came to
be examined by P.W.No.3 Dr.Mandakini Barve, Medical
Officer. The accused persons came to be arrested. They were
examined medically from P.W.No.4 Dr.Nareshkumar Bagul,
Medical Officer of Civil Hospital, Nashik. The spot was
inspected and seizure came to be effected vide panchnama
(Exhibit 34) from the place of the incident. On the basis of
voluntary disclosure statement of the appellants/accused
Manoj Pardeshi and Dattatraya Korde, articles such as
cellphone, wallet containing driving licence of P.W.No.2
Suken Kusuvah, ladies purse, cash etc. came to be seized in
presence of panch witness P.W.No.6 Kailas Shinde by
P.W.No.8 Kishor More, Police Inspector of Trimbakeshwar
Police Station. The test identification parade came to be

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conducted by P.W.No.7 Arun Awate, Special Judicial
Magistrate, wherein, according to the prosecution case, the
prosecutrix/P.W.No.1 as well as P.W.No.2 Suken Kusuvah
had identified the appellants/accused on 30/03/2012. On
completion of routine investigation, the appellants/accused
persons came to be charge-sheeted.

(g) Charge for offences punishable under Sections 376(2)(g),
395, 342, 323, 504, 506 read with Section 34 of the IPC came
to be framed and explained to the appellants/accused
persons. They abjured guilt and claimed trial.

(h) In order to bring home the guilt to the appellants/accused,
the prosecution has examined in all nine witnesses. The
prosecutrix is examined as P.W.No.1. Her friend Suken
Kusuvah is examined as P.W.No.2. Medical Officer
Dr.Mandakini Barve, who had examined the
prosecutrix/P.W.No.1 is examined as P.W.No.3. Exhibit 24 is
the Medico Legal Certificate issued by P.W.No.3 Dr.Mandakini
Barve. Dr.Nareshkumar Bagul, Medical Officer, who had
examined the appellants/accused is examined as P.W.No.4.
Exhibits 27 to 30 are the Medico Legal Certificates regarding
medical examination of the appellants/accused persons.
Panch witness Manoj Bodke is examined as P.W.No.5.
Another panch Kailas Shinde is examined as P.W.No.6. He

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proved the spot panchanama (Exhibit 34), memorandum
statement and recovery panchnama (Exhibits 35 and 36)
showing recovery of cellphone of Samsung made as well as
clothes at the instance of appellant/accused No.2 Manoj
Pardeshi. This witness also proved memorandum statement
(Exhibit 37) and resultant recovery (Exhibit 38) showing
recovery of clothes, ladies purse, gents purse containing
driving licence of P.W.No.2 Suken Kusuvah, cash, clothes etc.
at the instance of appellant/accused No.1 Dattatraya Korde.
Arun Awate, Special Judicial Magistrate, who has conducted
test identification parade is examined as P.W.No.7.
Memorandum of test identification parade conducted on
30/03/2012 is at Exh.40. The Investigating Officer Kishor
More, Police Inspector of Trimbakeshwar Police Station is
examined as P.W.No.8. Exhibit 47 is the second spot
panchanama prepared by him. Bhausaheb Mali, Police Naik,
who recorded the FIR (Exhibit 17) is examined as P.W.No.9.
This witness had also ventured to conduct panchanama of
condition of body of the prosecutrix/P.W.No.1 (Exhibit 32).

(i) Defence of the appellants/accused persons is that of false
implication in the crime in question by the First
Informant/prosecutrix/P.W.No.1 as well as by P.W.No.2
Suken Kusuvah. They had also filed written statement
(Exhibit 79). As per the defence version, the

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prosecutrix/P.W.No.1 and P.W.No.2 Suken Kusuvah were
found in compromising position by the villagers as well as the
appellants. Therefore, they were being taken to the police
station. However, both of them tendered apology and
secured their liberty. Subsequently, in order to take revenge,
the prosecutrix/P.W.No.1 lodged report alleging rape as well
as dacoity. In addition, it is defence of appellant/accused
No.4 Ganesh Zole that his father is working as a Security
Guard at the Trimbakeshwar Temple and because of dispute
over the issue of standing in a queue for darshan, Banti got
him falsely implicated in the crime in question. The defence
has examined Stiphen Antony Adhav @ Banti as defence
witness to probabilize its version.

(j) After hearing the rival submissions, the learned trial Court by
the impugned Judgment and Order dated 24/04/2013 in
Sessions Case No.127 of 2012 was pleased to convict the
appellants/accused persons of the charges levelled against
them and accordingly, they came to be sentenced as indicated
in the opening paragraph of the Judgment.

3 I have heard Shri.Ghaisas, the learned Advocate
appearing for appellant/accused No.4 Ganesh Zole as well as
Ms.Nasreen Ayubi, the learned Advocated appointed to represent
appellants/accused Nos.1 to 3 at sufficient length of time.

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Shri.Ghaisas, the learned Advocate has also tendered written
submissions on record and the same are carefully perused by me.
In submission of the learned Advocate appearing for the
appellants/accused, the prosecution has failed to bring on record
common intention as well as the motive behind the crime in
question. The learned Advocates made following submissions :-

Though the prosecutrix/P.W.No.1 has averred that she came
to be gang-raped in the bushes on the way to Bramhagiri, there
were no injuries on her person. The so called injury to her hand
caused by breaking of the bangle was also not shown by her to the
Doctor nor she has deposed about the same in her substantive
evidence. Even before conducting the test identification parade,
the appellants/accused were shown to the prosecutrix/ P.W.No.1
on 18/03/2012. The prosecutrix/P.W.No.1 has stated that she has
not disclosed the incident to anybody, and therefore, evidence of
P.W.No.2 Suken Kusuvah is an hearsay evidence. His evidence
that the incident was disclosed to him when they were returning
by the bus is untrustworthy. There is delay in lodging the FIR,
which is not explained. The spot panchanama was prepared after
6.00 p.m., when there was no street lights at the place, as seen
from the evidence of Investigating Officer P.W.No.8 Kishor More,
Police Inspector. There is discrepancy and contradiction in respect
of the timing of the alleged incident. In the FIR, it is stated that
the incident took place at about 2.30 p.m., whereas in her
evidence, the prosecutrix/P.W.No.1 has stated the timing as 12.30

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noon. In the chief-examination, she has stated that she was
scared, whereas in the cross-examination, she has stated that she
was not scared. The prosecutrix/P.W.No.1 has stated that five
young persons rushed on the spot, whereas P.W.No.2 Suken
Kusuvah deposed that initially, two persons rushed on the spot
and they were followed by three young persons. The
prosecutrix/P.W.No.1 has stated in her evidence that she disclosed
the incident for the first time to her sister Jyoti and to D.W.No.1
Banti on 17/03/2012, whereas P.W.No.2 Suken Kusuvah has
stated that the incident was narrated to him by the
prosecutrix/P.W.No.1 during their return journey. All these
contradictions make the prosecution case unreliable. The
prosecutrix/P.W.No.1 has stated that P.W.No.2 Suken Kusuvah
was having Rs.4200/-, whereas the P.W.No.2 Suken Kusuvah has
deposed that he has not disclosed the amount which was being
carried by him to the prosecutrix/P.W.No.1. Interested panch
witnesses are used by the investigating agency and one of the
panch witness is a Home Guard. The defence witness named Banti
has stated that the prosecutrix/P.W.No.1 and P.W.No.2 Suken
Kusuvah were seen in compromising position by the villagers and
the villagers along with the appellants/accused caught them red-
handed. This indicates false implication. The learned Advocate
further pointed out the printed form of the charge-sheet and
submitted that Model number of the cellphone stated in the
printed form of the charge-sheet is not matching with the Model

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number reflected from the Seizure Panchanama and Muddemal
receipt. Even evidence of the prosecutrix/P.W.No.1 shows that
appellant/accused No.3 Pintu Khoskar had committed rape on the
prosecutrix/P.W.No.1. There were no injuries on person of the
prosecutrix/P.W.No.1 and P.W.No.2 Suken Kusuvah and therefore,
the appellants/accused are entitled for acquittal.

4 The learned Additional Public Prosecutor supported
the impugned Judgment and Order of conviction as well as
resultant sentence by contending that evidence of the
prosecutrix/P.W.No.1 is gaining corroboration from other
evidence collected by the prosecution and the same is reliable and
trustworthy. The learned trial Court, as such, rightly convicted the
appellants/accused and sentenced them according to law.

5 I have carefully considered the rival submissions and
also perused the entire Record and Proceedings including
depositions of prosecution witnesses as well as the documentary
evidence.

6 As stated in foregoing paragraphs, case of the
prosecution is that of a gang rape with dacoity after causing
criminal intimidation to the prosecutrix/P.W.No.1 and of causing
hurt to her as well as her companion by the appellants/accused
persons along with the juvenile in conflict with law. In any case of

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rape, evidence of the prosecutrix is of prime importance and fate
of the prosecution case to a large extent hinges on testimony of
the prosecutrix. From evidence of the prosecutrix/P.W.No.1 as
well as from that of P.W.No.2 Suken Kusuvah, who was
companion of the prosecutrix/P.W.No.1 and more particularly
from cross-examination of these witnesses, certain material is
brought on record. The position which was emerging on record,
rather undisputedly, from this material needs to be put on record,
at the outset itself, in order to have better understanding and
proper appreciation of the evidence of the prosecutrix/P.W.No.1.
The prosecutrix/P.W.No.1 is a married lady having responsibility
of two children. She was residing separately from her husband
since last eight and half years of the incident. She along with her
children was residing with her parents and brother. In order to
earn her livelihood, the prosecutrix/P.W.No.1 was serving in some
private Company and P.W.No.2 Suken Kusuvah was her co-
worker. He was acquainted with the prosecutrix/P.W.No.1 since
last one and half years prior to the incident, as they both were
serving with the same employer. P.W.No.2 Suken Kusuvah, at the
relevant time, was unmarried adult person. The prosecutrix/
P.W.No.1 accompanied by P.W.No.2 Suken Kusuvah had been to
Trimbakeshwar on 15/03/2012 and that excursion was without
knowledge of the parents and brothers of the prosecutrix/
P.W.No.1. It is, thus, clear from the evidence on record that the
prosecutrix/P.W.No.1, who is a matured married lady residing

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separately from her husband since last more than eight years was
on a secret tour to Trimbakeshwar along with her co-worker with
whom she had developed acquaintance while working together at
the Company. The Court is expected to bear in mind these facts as
they relate to human psychology and behavioural probabilities of
the prosecutrix. How evidence of the victim of a rape case is
required to be evaluated and assessed is the issue which is settled
by the Honourable Apex Court in catena of Judgments. In case of
Bharwada Bhoginbhai Hirjibahai v. State of Gujarat 1, relevant
observations of the Honourable Apex Court found in paragraphs 9
and 10 of its Judgment read thus :

“9. In the Indian setting, refusal to act on the testimony
of a victim of sexual assault in the absence of
corroboration as a rule, is adding insult to injury. Why
should the evidence of the girl or the woman who
complains of rape or sexual molestation be viewed with
the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? To do so is to justify the
charge of male chauvinism in a male dominated society.
We must analyze the argument in support of the need
for corroboration and subject it to relentless and
remorseless cross-examination. And we must do so with
a logical, and not an opinionated, eye in the light of
probabilities with our feet firmly planted on the soil of
India and with our eyes focused on the Indian horizon.

We must not be swept off the feet by the approach

1 AIR 1983 SC 753

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made in the western world which has its own social
milieu, its own social mores, its own permissive values,
and its own code of life. Corroboration may be
considered essential to establish a sexual offence in the
backdrop of the social ecology of the western world. It
is wholly unnecessary to import the said concept on a
turnkey basis and to transplant it on the Indian soil
regardless of the altogether different atmosphere,
attitudes, mores, responses of the Indian society, and
its profile. The identities of the two worlds are
different…………………….

“10…. Without the fear of making too wide a statement, or
of overstating the case, it can be said that rarely will a girl
or a woman in India make false allegations of sexual
assault on account of any such factor as has been just
enlisted. The statement is generally true in the context of
the urban as also rural society. It is also by and large true
in the context of the sophisticated not so sophisticated, and
unsophisticated society. Only very rarely can one
conceivably come across an exception or two and that too
possibly from amongst the urban elites. Because :-

(1) A girl or a woman in the tradition bound non-

permissive society of India would be extremely
reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred,

(2) She would be conscious of the danger of being

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ostracized by the Society or being looked down by
the society including by her own family members,
relatives, friends, and neighbours,

(3) She would have to brave the whole world.

(4) She would face the risk of losing the love and
respect of her own husband and near relatives,
and of her matrimonial home and happiness being
shattered.

(5) If she is unmarried, she would apprehend that it
would be difficult to secure an alliance with a
suitable match from a respectable or an
acceptable family.

(6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself.

(7) The fear of being taunted by others will always
haunt her.

(8) She would feel extremely embarrassed in relating
the incident to others being overpowered by a
feeling of shame on account of the upbringing in a
tradition bound society where by and large sex is
taboo.

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(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy.

(10)The parents of an unmarried girl as also the
husband and members of the husbands’ family of a
married woman, would also more often than not,
want to avoid publicity on account of the fear of
social stigma on the family name and family
honour.

(11)The fear of the victim herself being considered to
be promiscuous or in some way responsible for the
incident regardless of her innocence.

(12)The reluctance to face interrogation by the
investigating agency, to face the Court, to face the
cross-examination by counsel for the culprit, and
the-risk of being disbelieved, act as a deterrent. ”

7 Similarly, in the case of State of Punjab vs. Gurmeet
Singh1 the Honourable Apex Court took a view that the Courts
dealing with the rape cases shoulder a greater responsibility and
they must deal with such cases with utmost sincerity and it is
observed that :

“It is an irony that while we are celebrating women’s
1 1996 Cr.L.J. 172.

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rights in all spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of human
dignity of the victims of sex crimes. We must remember
that a rapist not only violates the victim’s privacy and
personal integrity, but inevitably causes serious
psychological as well as physical harm in the process.
Rape is not merely a physical assault – it is often
destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The
Courts, therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must deal
with such cases with utmost sensitivity. The Courts should
examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which
are not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
particulars. If for some reason the Court finds it difficult
to place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.”

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8 Keeping in mind these principles of appreciation of

evidence of the victim of the rape case, let us examine evidence of
the prosecutrix/P.W.No.1 as well as that of P.W.No.2 Suken
Kusuvah, who was accompanying her in the tour to
Trimbakeshwar on 15/03/2012.

9 Congruous evidence of the prosecutrix/P.W.No.1 and
P.W.No.2 Suken Kusuvah is to the effect that, as decided, they
both visited Trimbakeshwar – a holy place in Nashik District on
15/03/2012. After taking darshan of Lord Shiva, they both
proceeded towards Bramhagiri mountain by purchasing water
bottle etc. On the way to Bramhagiri, they took a halt for taking
lunch. As per version of the prosecutrix/P.W.No.1, then five boys
of age group of 20 to 25 years came there and started questioning
them as to why they are sitting there. In the words of P.W.No.2
Suken Kusuvah, initially, two boys came there followed by three
other boys and after questioning both of them, they started
assaulting both of them. Both these witnesses in unison have
stated that those five young boys assaulted them by means of
sticks and robbed them of their money purses and cellphone. The
prosecutrix/P.W.No.1 had stated that her money purse was
containing an amount of Rs.4200/-, whereas money purse of
P.W.No.2 Suken Kusuvah was containing an amount of Rs.3000/-.
As stated by both these witnesses, then two persons caught hold of

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P.W.No.2 Suken Kusuvah, whereas three persons dragged the
prosecutrix/P.W.No.1 to the nearby bushes. P.W.No.2 Suken
Kusuvah had stated that the prosecutrix/P.W.No.1 and those three
persons returned after about half an hour. What happened to her
after she was taken to the bushes by three persons is stated by the
prosecutrix/P.W.No.1. She stated that by taking her to nearby
bushes, she was denuded and was raped by those young persons
one by one.

10 Evidence of the prosecutrix/P.W.No.1 and that of
P.W.No.2 Suken Kusuvah shows that on return to P.W.No.2 Suken
Kusuvah, the prosecutrix/P.W.No.1 requested the rapists to return
her cellphone and then they obliged. They had threatened both of
them not to disclose the incident to anybody else or they will kill
them. As per version of P.W.No.2 Suken Kusuvah as well as that
of the prosecutrix/P.W.No.1, then they both returned to the bus
stand and by bus they went to Nashik. P.W.No.2 Suken Kusuvah
has stated that on the way, the prosecutrix/P.W.No.1 disclosed
him that she was raped. The prosecutrix/P.W.No.1 further told
him that she is not in a position to narrate the incident to her
family members as they would suffer a shock.

11 The prosecutrix/P.W.No.1 has stated in her statement
before the Court that she had disclosed the incident to her sister
and her sole brother on 17/03/2012 and then she had lodged

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report (Exhibit 17) about the incident on the very same day.
While in the witness box, the prosecutrix/P.W.No.1 has identified
appellant/accused No.3 Pintu Khoskar and appellant/accused No.4
Ganesh Zole as the persons, who had caught hold of P.W.No.2
Suken Kusuvah. She identified appellant/accused No.1 Dattatraya
Korde and appellant/accused No.2 Ganesh @ Manoj Pardeshi as
the persons, who had raped her along with the juvenile in conflict
with law.

12 So far as P.W.No.2 Suken Kusuvah is concerned, he
has stated before the Court that on 17/03/2012, the
prosecutrix/P.W.No.1 had informed him that she is going to the
police station and he also went to the police station. Thereafter,
he showed the spot of the incident to police. As per his version,
his locket having pendant of Saibaba with red colour thread, one
handkerchief and pieces of bangles were found lying on the spot of
the incident. This witness identified money purses belonging to
him as well as the prosecutrix/P.W.No.1 and his cellphone. Cross-
examination of both these witnesses viz. the prosecutrix/
P.W.No.1 and P.W.No.2 Suken Kusuvah is focused principally
towards alleged immoral behavior of both these witnesses. It was
suggested to both of them that they were indulging in obscene act
in lascivious manner and they were caught while in the act by the
appellants/accused and villagers. It was suggested to both of
them that then they were being taken to the police station by the

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appellants/accused as well as the villagers. Then, both of them
apologized and secured their liberty. Therefore, they were freed
by the appellants/accused as well as villagers and to take revenge
of this fact, they all are falsely implicated in the crime in question
by lodging the FIR after two days. Both these witnesses have
categorically denied all these suggestions. Similarly, an attempt
was made to show that the place where both these witnesses were
sitting was visible to the passersby. From cross-examination of
both these witnesses attempt was made to elicit that police outpost
as well as the police station is situated at the foot of the
Bramhagiri mountain and Trimbakeshwar respectively, and as
such, they both had ample opportunity to lodge the FIR, had such
incident actually occurred with them. One may assume that police
outpost as well as the police station was situated in the vicinity of
the scene of occurrence and the place being a holy place might
have been visited by many other persons. Further cross-
examination of P.W.No.2 Suken Kusuvah shows that he along with
the prosecutrix/P.W.No.1 were sitting at such a place from which
they were unable to see people passing from nearby area.

13 At this stage, human psychology, normal human
conduct and behavioural probabilities of both these witnesses will
have to be kept in mind. As indicated in foregoing paragraphs, it
was rendezvous without disclosing parents of the
prosecutrix/P.W.No.1, who herself was a married woman

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separated from her husband. She along with her two children had
taken shelter of her parental house. In that meet, unexpectedly,
she along with her companion P.W.No.2 Suken Kusuvah met with
the horrendous incident in which two persons over powered
P.W.No.2 Suken Kusuvah and three persons dragged the
prosecutrix/P.W.No.1 to the nearby bushes, where she was raped
one by one by the trio. Evidence of the prosecutrix/P.W.No.1 is
specific to the effect that she was frightened because of the
incident. In cross-examination, she has denied the fact that as she
was frightened, she could not see persons, who came there. This
sentence cannot be construed to mean that the prosecutrix was not
frightened at all. The incident was certainly shocking and
traumatic for both these witnesses, particularly when the meeting
was without knowledge of the parents of the victim married
woman. Therefore, I see no substance in the submission of the
learned Advocate for the appellants/accused that the
prosecutrix/P.W.No.1 was not frightened in the incident and there
was ample opportunity to her as well as to her companion to lodge
report on the very same day, either at the police out post or with
the police station. The psychological impact of such horrendous
incident must have prevented the prosecutrix/P.W.No.1 and her
companion from approaching the law enforcing agency
immediately. Similarly, it is seen from the evidence of the
prosecutrix/P.W.No.1 that she hails from the traditional bond of
non-permissive society and as such, she must be extremely

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reluctant to admit even happening of such incident, which was
likely to have reflection on her chastity. She had fear of being
looked down by the society including her parents. On the
backdrop of the fact that she was separated from her husband
since long, she must have been extremely embarrassed in such
situation. Being overpowered by a feeling of shame on account of
gang rape on her, her non-approaching to police station
immediately after the incident cannot be said to be a conduct
which is abnormal and throwing doubt on her version. Because of
her secret excursion with a male colleague, she must have
harboured the fear of she being considered to be promiscuous and
responsible for the incident. Therefore, leaving the place of
incident by her immediately instead of going to the Police Station
reflects a normal conduct of the victim of such offence. The act of
the prosecutrix/P.W.No.1 of immediately leaving Trimbakeshwar
and taking shelter of sanctuary of her house indicates that her
conduct is a natural conduct of a married lady in a given situation.

14 From cross-examination of P.W.No.2 Suken Kusuvah,
it was attempted to demonstrate that his evidence in respect of the
incident is coming on record by way of omissions. This fact cannot
be given any overbearing importance in the wake of evidence of
P.W.No.8 Kishor More, Police Inspector, who had recorded
statement under
Section 161 of the Code of Criminal Procedure of
this witness i.e. P.W.No.2 Suken Kusuvah. Evidence of P.W.No.8

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Kishor More, Police Inspector makes it clear that omissions are
occurring in the statement of P.W.No.2 Suken Kusuvah because
while recording his statement under
Section 161 of the Code of
Criminal Procedure instead of writing the date of incident as
“15/03/2012”, the date of incident is written as “17/03/2012”.
This makes it clear that substantive evidence of P.W.No.2 Suken
Kusuvah in respect of incident is not coming on record by way of
omission. It was merely a lapse on the part of the Investigator in
writing the date of incident as “17/03/2012” instead of
“15/03/2012”. What is effect of lapses or fault on the part of the
investigator on the fate of the criminal case can be found from the
Judgment of the Honourable Apex Court in the matter of Dhanraj
Singh alias
Shera v. State of Punjab. 1 Relying on earlier
decision, the Honourable Apex Court has reiterated that if the
lapse or omission is committed by the investigating agency
because of negligence, the prosecution evidence should be
examined dehorse such omissions to find out whether said
evidence is reliable or not. It is further held that if primacy is
given to negligent investigation, the faith and confidence of the
people would be shaken.

15 Some inconsequential discrepancies are sought to be
capitalized from evidence of the prosecutrix/P.W.No.1 and that of
P.W.No.2 Suken Kusuvah. It is sought to demonstrate that the
prosecutrix/P.W.No.1 has stated that she has not disclosed the
1 2004 SCC (Cri.) 851.

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incident to anybody till 17/03/2012, but evidence of P.W.No.2
Suken Kusuvah shows that during return journey she has disclosed
the incident to him. Similarly, attempt is made to demonstrate
that evidence regarding mental condition of the prosecutrix is at
variance as in her chief-examination, she has stated that she was
frightened, but in cross-examination she has stated that she was
not frightened. The discrepancy regarding timing of the incident
also sought to be made use of by arguing that in chief-examination
of the prosecutrix/P.W.No.1, she has disclosed the timing of the
incident as 12.30 noon, whereas in her FIR, the timing is given as
2.30 p.m. The law on this aspect is very clear. Minor
discrepancies on trivial matters not touching to the core of the
case does not make evidence of the prosecution witness
untrustworthy warranting its rejection. What is required to be
seen is whether basic version of the prosecution is shaken or not.
In depositions of witnesses there are always normal discrepancies.
Those discrepancies may be due to normal error of observation,
normal error of memory due to lapse of time, error due to mental
disposition such as shock or horror at the time of the occurrence
etc. In the case in hand, the prosecutrix/P.W.No.1 and P.W.No.2
Suken Kusuvah met with a sudden horrendous experience in their
life and the FIR, therefore, came to be lodged after two days.
Subsequently, after considerable time, the prosecutrix/P.W.No.1
has stepped into the witness box. If cumulative effect of her
evidence and that of P.W.No.2 Suken Kusuvah is considered, then

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it is seen that their evidence as a whole is having ring of truth and
therefore, such minor discrepancies sought to be made use of are
of no consequence. Mental state of victim of such incident can be
well understood by the way in which the incident has taken place.

16 Let us now examine whether the evidence of the
prosecutrix/P.W.No.1 is gaining corroboration from other
evidence on record, though in such cases the Court is not bound to
insist for corroboration to the version of the prosecutrix. It is seen
from evidence of P.W.No.6 Kailas Shinde, panch witness, that the
spot of the incident came to be inspected on 17/03/2018 itself. It
was shown by P.W.No.2 Suken Kusuvah. His evidence shows that
the spot was near Bhatkheda building and beneath the umbar tree.
The locket with red thread and pendant of photograph of Saibaba
belonging to this witness was found lying on the spot of the
incident where he was overpowered by the dacoits and rapists.
The spot on which the accused persons had taken the
prosecutrix/P.W.No.1 was found to be at a distance of 25 feet
from the first spot where P.W.No.2 Suken Kusuvah was
overpowered. At the second spot, pieces of bangles, one
handkerchief and a stick was found lying. The spot panchanama
(Exhibit 34) which is proved by P.W.No.6 Kailas Shinde shows
that the grass on the spot where the prosecutrix/P.W.No.1 was
taken was pressed.

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17 It was attempted to demonstrate that there was no

visibility on the spot of the incident by relying on the cross-
examination of P.W.No.6 Kailas Shinde. This witness has stated in
his cross-examination that the street lights were not available on
the way and at the spot of the incident, there was no street light.
However, recitals in the spot panchanama (Exhibit 34) makes the
position clear. It is seen from the spot panchanama that spot was
inspected in the light of batteries as well as search light from 6.05
p.m. to 7.30 p.m. of 17/03/2012. Hence, such half-hearted cross-
examination is not sufficient to doubt the spot panchanama and
seizure effected thereunder.

18 Congruous evidence of P.W.No.8 Kishor More, Police
Inspector, Investigating Officer and that of P.W.No.6 Kailas
Shinde, panch witness shows that on 19/03/2012
appellant/accused No.2 Manoj Pardeshi had made a disclosure
statement (Exhibit 35) which has resulted in recovery of cellphone
of Samsung on 19/03/2012. Similarly, evidence of these
witnesses shows that on the basis of voluntary disclosure
statement of appellant/accused No.1 Dattatraya Korde made on
20/03/2012, ladies purse and gents purse containing driving
licence of P.W.No.2 Suken Kusuvah with his three photographs
and cash came to be recovered. These articles were duly identified
by P.W.No.2 Suken Kusuvah to be belonging to him as well as the
prosecutrix/P.W.No.1. P.W.No.2 Suken Kusuvah has stated in his

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evidence that the mobile cellphone of Samsung make belongs to
him, so also the gents money purse belongs to him. He has stated
that ladies money purse belongs to the prosecutrix/P.W.No.1. He
had also identified the seized locket of red thread with pendant of
Saibaba, so also the pieces of bangles seized from the spot of the
incident.

19 Evidence of P.W.No.6 Kailas Shinde, panch witness is
sought to be criticized on the ground that he is associated with
police as Home Guard. However, careful scrutiny of cross-
examination of P.W.No.6 Kailas Shinde shows that he was earlier
working as guide at Trimbakeshwar and when his evidence was
being recorded he was working as Home Guard. He was not
questioned any further to demonstrate that at the time of
inspection of the spot as well as effecting recovery, he was in fact
serving as the Home Guard. Therefore, merely because at the time
of recording of his evidence, P.W.No.6 Kailas Shinde was working
as Home Guard, he cannot be termed as a partisan witness. His
testimony cannot be disbelieved on this count only. Moreover,
Investigating Officer P.W.No.8 Kishor More, Police Inspector is
vouching about recording of the disclosure statement and the
resultant recovery of the fact which resulted in seizure of
incriminating articles at the instance of appellant/accused No.2
Manoj Pardeshi and appellant/accused No.1 Dattatraya Korde.
Thus, this evidence of recovery of articles of day-to-day use

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belonging to the prosecutrix/P.W.No.1 and P.W.No.2 Suken
Kusuvah corroborates the version of the prosecutrix/P.W.No.1 in
respect of incident in question.

20 Attempt was made to discredit this evidence regarding
recovery by stating that in the charge-sheet, Model number of the
seized cellphone is different than what is reflected in the recovery
panchanama and muddemal receipt. The Model number
mentioned in the format of the charge-sheet may be different, but
the recovery panchanama (Exhibit 36) clearly demonstrate the
Model number of the cellphone as 2652 and the same is the
number mentioned in the muddemal receipt by which it was
deposited with the police station. Moreover, P.W.No.2 Suken
Kusuvah has duly identified the said cellphone as belonging to
him. Knowledge of these two accused with regard to the place
where money purses and cell phone belonging to the victims of the
offence were kept, makes their involvement in the crime clear.

21 P.W.No.3 Dr.Mandakini Barve, Medical Officer had
examined the prosecutrix/P.W.No.1 medically on 17/03/2012 i.e.
after two days from the date of the incident of rape of the
prosecutrix. This witness has not found any injury on person of
the prosecutrix/P.W.No.1. She deposed that hymen of the
prosecutrix/P.W.No.1 was found absent and accordingly, Medico
Legal Certificate (Exhibit 24) came to be issued by this witness.
The question is whether non-finding of injuries on the body of the

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victim of the gang rape constitutes material for granting benefit of
doubt to the accused. As per version of the prosecutrix/P.W.No.1,
she was raped by three persons one after another. Prior to that
she and her companion were overpowered by five young persons
of age group of 20 to 25 years when they had taken a stop for
having lunch at the secluded place. Cross-examination of
P.W.No.8 Kishor More, Police Inspector makes it clear that the
spot of the incident was 500 meters inside the road. Thus, the
prosecutrix/P.W.No.1 and her companion were not having any
hope that they would be saved by somebody from the clutches of
the rapists. That is how in her entire evidence the
prosecutrix/P.W.No.1 has not stated that she has offered
resistance to the acts of the rapists. It is seen that she meekly
submitted her chastity to the rapists, who were three in number
rather than choosing to offer resistance to them. P.W.No.2 Suken
Kusuvah, who was accompanying her was already overpowered by
two of the accused persons. Therefore, non-finding of injuries on
the body of the victim does not render her version improbable or
untrustworthy. Even otherwise, it is well settled that when the
ocular evidence is inconsistent with the medical evidence, then the
ocular evidence if found to be trustworthy shall always prevail
over the medical evidence. In the case of
Ranjit Hazarika v.
State of Assam1 because of absence of rupture of hymen and
injury over the private parts of the prosecutrix, the Medical Officer
had opined that no rape appears to have been committed on her.

1     (1998) 8 SCC 635.

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However, the Honourable Apex Court had taken a view in that
matter that the medical opinion cannot throw over board
otherwise cogent and trustworthy evidence of the prosecutrix.
Similarly, in the matter of
B.C.Deva v. State of Karnataka1 in
spite of the fact that there were no injuries on person of the
prosecutrix, on finding that version of the prosecutrix is reliable
and trustworthy, the Honourable Apex Court upheld the
conviction by observing that :

"18. The plea that no marks of injuries were found
either on the person of the accused or the person of the
prosecutrix, does not lead to any inference that the
accused has not committed forcible sexual intercourse on
the prosecutrix. Though the report of the gynecologist
pertaining to the medical examination of the prosecutrix
does not disclose any evidence of sexual intercourse, yet
even in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix, which is
found to be cogent, reliable, convincing and trustworthy
has to be accepted."

With this, it needs to be held that the
appellants/accused are not successful in dislodging the case of
prosecution merely because no injuries were found on person
of a married women two days after the incident of the gang
rape on her. Even otherwise, two days time is sufficient to
heal superficial abrasion, if any, caused by rough surface or
broken bangle.

1     (2007) 12 SCC 122.

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22 Now let us examine whether evidence regarding

identity of the appellants/accused persons as perpetrator of
the crime in question is duly established or not. It is seen
from evidence of the prosecutrix/P.W.No.1 as well as that of
P.W.No.2 Suken Kusuvah that they both were in company of
the dacoits-cum-rapists for a fairly long period of time.

Initially, they both were assaulted and looted by the dacoits-
cum-rapists. Subsequently, by immobilizing P.W.No.2 Suken
Kusuvah by two of them, three others took the
prosecutrix/P.W.No.1 at a distance of about 25 meters where
she was subjected to the gang rape. They, then, returned after
about half an hour. Thus, long period of time which the
victims spent with the appellants/accused naturally granted
them an ample opportunity to witness the dacoits as well as
rapists. The long time spent by these victims with the accused
persons granted them an opportunity to have features and
gate of accused persons impressed in their mind and memory.
The dock identification is the substantive piece of evidence
and while in the witness box, the prosecutrix/P.W.No.1 has
categorically ascribed specific role played by each of the
appellant/accused during the course of the incident.
Similarly, appellants/accused were duly identified by
P.W.No.2 Suken Kusuvah while in the witness box. The
prosecution has conducted test identification parade through
P.W.No.7 Arun Awate, Special Judicial Magistrate. However,

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so far as the prosecutrix/P.W.No.1 is concerned, as the
accused persons were already shown to her on 18/03/2012 at
the police station, evidence of test identification parade and
identification of the accused persons by the prosecutrix/
P.W.No.1 needs to be rejected. However, so far as P.W.No.2
Suken Kusuvah is concerned, his evidence coupled with
evidence of P.W.No.7 Arun Awate, Special Judicial Magistrate
makes it clear that the accused persons were duly identified by
him in the test identification parade conducted on
30/03/2012, memorandum of which is at Exhibit 40.
Evidence of P.W.No.7 Arun Awate, Special Judicial Magistrate
shows that he has taken all necessary precautions while
conducting test identification parade. At one point of time, he
called twelve panchas to stand with two accused persons and
opportunity was given to the accused persons to change their
clothes. There seems to be no procedural lapses while
conducting the test identification parade by P.W.No.7 Arun
Awate, Special Judicial Magistrate. Thus, evidence of dock
identification of the appellants/accused by P.W.No.2 Suken
Kusuvah is gaining further corroboration from the evidence of
test identification parade.

23 The prosecution case is sought to be doubted
because of delay in lodging the FIR. The incident of
15/03/2012 was reported to police on 17/03/2012 by the

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prosecutrix/P.W.No.1. The effect of delay in lodging the FIR
in rape case was examined by the Honourable Apex Court in
several cases. In the matter of
State of Himachal Pradesh v.
Shree Kant Shekari1 it is held thus in paragraph 18 by the
Honourable Apex Court :

"18. The unusual circumstances satisfactorily explained
the delay in lodging of the first information report. In any
event, delay per se is not a mitigating circumstance for
the accused when accusations of rape are involved. Delay
in lodging first information report cannot be used as a
ritualistic formula for discarding prosecution case and
doubting its authenticity. It only puts the Court on guard
to search for and consider if any explanation has been
offered for the delay. Once it is offered, the Court is to
only see whether it is satisfactory or not. In a case if the
prosecution fails to satisfactorily explain the delay and
there is possibility of embellishment or exaggeration in
the prosecution version on account of such delay, it is a
relevant factor. On the other hand satisfactory
explanation of the delay is weighty enough to reject the
plea of false implication or vulnerability of prosecution
case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had befallen to
her. That being so, the mere delay in lodging of first
information report does not in any way render
prosecution version brittle. These aspects were
highlighted in Tulshidas Kanolkar Vs. State of Goa
(2003 (8) SCC 590).

1     2004 ALL MR (Cri.) 3145 (S.C.).

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24 In the matter of Harpal Singh v. State of Himachal

Pradesh1 it is held by the Honourable Apex Court that it is not
uncommon that honour of the family is such a consideration,
which delay action on the part of the near relations of the girl,
who is raped. In that case, the delay in lodging the FIR was ten
days. In the matter of
Karnel Singh v. The State of Madhya
Pradesh2 it was held by the Honourable Apex Court that merely
because the complaint was lodged less than promptly does not
raise the inference that the complaint was false. The reluctance to
go to the police can be because of society's attitude towards such
woman. It casts doubt and shame upon her rather than comfort
and sympathy with her. It is already put on record that the
prosecutrix appears to be a deserted married woman having two
children to maintain and she was on excursion with her co-worker
without knowledge of her parents with whom she was staying. In
such situation, delay of two days in lodging the report is not at all
fatal to the prosecution case; particularly when the prosecutrix
was not having an axe to grind against the appellants/accused,
who were totally unknown to her.

25 By examining the defence witness, an attempt is made
to demonstrate that after being caught in compromising position
by the appellants/accused and other villagers, the

1 AIR 1981 SCC 361.

2     AIR 1995 SCC 2472.

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appellants/accused are falsely implicated in the instant case.
Evidence of D.W.No.1 Stiphen Antony Adhav @ Banti is
interesting. In chief-examination, he claimed to be a sympathizer
of the prosecutrix and stated that the prosecutrix/P.W.No.1
disclosed him that when she was engaged in love making with
P.W.No.2 Suken Kusuvah, the villagers came there and objected
their activities.

26 Upon her request, villagers left her and then the police
declined to accept her report. This witness claims to be the
member of R.P.I. party and had stated that he met the police and
insisted to take report of the prosecutrix/P.W.No.1. That is how
the police registered the crime at his instance. In cross-
examination, this witness stated that the prosecutrix/P.W.No.1
had not stated anything to him in respect of the incident in
question. He claims to have accompanied the prosecutrix/
P.W.No.1 to Trimbakeshwar Police Station for lodging the report,
as seen from his cross-examination. However, on the next breath,
he states that he is not aware about what report is lodged by the
prosecutrix/P.W.No.1 with police. Thus, it is seen that Defence
Witness Stiphen Antony Adhav @ Banti has scant regards for
truth and he is not the witness of truth. He has modulated his
version to suit his own convenience and therefore, his evidence
leads us nowhere.

Gaikwad RD                                                                        37/38

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(201)APEALNo.504-657-2013(J)

27 Thus, the cumulative effect of evidence adduced by the

prosecution makes it clear that by acting in concert, the
appellants/accused along with the juvenile in conflict with law
raided the secluded spot where the the prosecutrix/P.W.No.1 and
her co-worker P.W.No.2 Suken Kusuvah had taken a stop for
having lunch and then by beating both of them, they were robbed
of their valuables. Subsequently, by acting in league, two of the
dacoits-cum-robbers along with the juvenile in conflict with law
committed gang rape on the prosecutrix/P.W.No.1 by taking her at
a short distance from her co-worker P.W.No.2 Suken Kusuvah.
They both were threatened by the appellants/accused persons.
These facts are established by the cogent evidence of the
prosecution witnesses. Hence, no fault can be found in the
impugned Judgment and Order and resultant sentence which is
also in tune with the offences held to be proved against the
appellants/accused persons. The appeals are therefore, devoid of
substance and hence, the Order:

ORDER

(i) Both the appeals are, therefore, dismissed.

(A.M.BADAR J.)

Gaikwad RD 38/38

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