1 Appeal 153/99 group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 153 of 1999
* Kalyan s/o Bansidharrao Renge,
Age 33 years,
Occupation : Agriculture,
R/o Parbhani,
Taluka District Parbhani. .. Appellant.
Versus
1) The State of Maharashtra.
2) Sangeeta d/o Rameshwar Agrawal (Mor)
Age Major, Occupation: Nil
R/o Partur, District Jalna.
3) Panchasheela @ Panchphula
D/o. Wamanrao Jayebhaye
Age Major, Occupation: Nil,
R/o Partur, Dist. Jalna. .. Respondents.
—-
Shri. V.D. Salunke, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
—-
With
Criminal Appeal No. 157 of 1999
* Rameshwar s/o Baburao Kanade,
Age 29 years,
Occupation : Agriculture,
R/o Parbhani,
Taluka District Parbhani. .. Appellant.
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Versus
1) The State of Maharashtra.
2) Sangeeta d/o Rameshwar Agrawal (Mor)
Age Major, Occupation: Nil
R/o Partur, District Jalna.
3) Panchasheela @ Panchphula
D/o. Wamanrao Jayebhaye
Age Major, Occupation: Nil,
R/o Partur, Dist. Jalna. .. Respondents.
—-
Shri. Shirish Gupte, Senior Counsel, instructed by Shri.
M.P. Kale, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent No.1.
—-
With
Criminal Appeal No. 281 of 1999
* The State of Maharashtra
Through Police Station Kotwali,
Parbhani. … Appellant.
Versus
1) Suryakant s/o Ganpatrao Dhage
Age 29 years,
Occupation: Business,
R/o Krantinagar, Parbhani,
Taluka Dist Parbhani.
2) Arun s/o Shahurao Mapari,
Age 20 years, Occupation: Education,
R/o Parbhani,
Taluka District Parbhani.
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3) Suresh s/o Bapurao Kopre
Age 27 years,
Occupation: Labour
R/o Krantinagar Parbhani,
Taluka District Parbhani.
4) Rameshwar s/o Baburao Kanade
Age 25 years,
Occupation: Agriculture
R/o Parsawat Nagar, Parbhani
Taluka District Parbhani.
5) Tukaram s/o Ramji Kharat,
Age 25 years,
Occupation: Education,
R/o Mahodi, Taluka Jintur,
District Parbhani.
6) Nitin s/o Limbajirao Dudhgaonkar,
Age 29 years,
Occupation: Agriculture
R/o Khaja colony, Parbhani,
Taluka District Parbhani.
7) Kalyan s/o Bansidhar Renge,
Age 33 years,
Occupation: Agriculture,
R/o Nawa Mondha, Parbhani,
Taluka and District Parbhani.
8) Dnyanoba s/o Namdeo Dharasurkar,
Age 34 years,
Occupation: Business,
R/o Komti Galli, Parbhani,
Taluka and District Parbhani.
9) Machinder s/o Vithalrao Ghadge,
Age 29 years,
Occupation Labour,
R/o Bhimnagar, Parbhani,
Taluka and District Parbhani.
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10) Sangeeta d/o Rameshwar Agrawal (Mor)
Age Major, Occupation: Nil
R/o Partur, District Jalna.
11) Panchasheela @ Panchphula
D/o. Wamanrao Jayebhaye
Age Major, Occupation: Nil,
R/o Partur, Dist. Jalna. .. Respondents.
—-
Shri. S.J. Salgare, Additional Public Prosecutor, for
appellant.
Shri. Shirish Gupte, Senior Counsel, instructed by Shri.
N.G. Kale, Advocate, for respondent Nos.4 and 5.
Shri. A.B. Kale, Advocate, for respondent No.7.
Appeal abated as against respondent Nos.1,2,3,6,8 9.
—-
Coram: T.V. NALAWADE
S.M. GAVHANE, JJ.
Judgment reserved on: 22 September 2017
Judgment pronounced on : 21 November 2017
JUDGMENT (Per T.V. Nalawade, J.):
1) All these three appeals are filed against the
judgment and order of Sessions Case No.121/1994 which
was pending in the Court of the learned Sessions Judge,
Parbhani. The learned Sessions Judge Parbhani has
convicted and sentenced the accused Nos. 1 to 4 and 6
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and 7 for offence of gang rape punishable under section
376(2)(g) of Indian Penal Code. Accused Nos.1 to 4 are
convicted and sentenced for offence punishable under
section 366 read with section 34 of Indian Penal Code.
The trial Court has acquitted accused Nos.5, accused No.8
and accused No.9. Criminal Appeal No.153/1999 is filed
by the original accused No.7 Kalyan Renge. Criminal
Appeal No.157/1999 is filed by Rameshwar Kanade,
accused No.4. Criminal Appeal No. 281/1999 is filed by
the State. The State has filed the appeal as the trial Court
has given sentence of rigorous imprisonment of 10 years
only and the State wants to see that the convicted accused
are sentenced with life imprisonment. Both the sides are
heard.
2) In short, the facts leading to the institution of
the appeals can be stated as follows :-
3) Two minor village girls were ravished in
Parbhani city and at the outskirts of Parbhani city by
different persons. In respect of these incidents two
separate charge-sheets were filed and two cases were
tried separately against those persons in respect of
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different incidents. In respect of other incidents, Sessions
Case No.139/1994 was filed and that case is also decided
by the same learned Judge of the Sessions Court. In that
case some accused persons are convicted. That decision
is also challenged by the State and the convicted accused
and those appeals are being decided separately. In view of
the nature of allegations made by the two victim girls in
the two cases, the case of the prosecution mentioned in
both these cases need to be considered for better
appreciation of the facts and circumstances.
4) The two victim girls, PW-4 and PW-5 were
friends. They were residents of Partur, District Jalna. At
the relevant time they had not crossed age of 16 years.
Mother of PW-4 was working as maid servant to earn
livelihood and she was required to maintain not only the
prosecutrix but also other issues as her husband is dead.
Parents of PW-5, other prosecutrix, hail from Hiwarkheda,
Tahsil Sindhkhed-Raja, District Buldhana. The parents of
PW-5 are very poor and as they could not afford to
maintain PW-5, they had kept PW-5 in the house of sister
of mother of PW-5 in Partur. PW-5 was not happy due to
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poverty and also due to bad treatment which she was
receiving in the house of her aunt on maternal side.
5) On 3-7-1994 PW-5 had some dispute with her
maternal aunt. As she was starving she met PW-4 and
expressed that she wanted to work to earn for her
livelihood. PW-4 has a relative by name Sham Agrawal and
he was running a shop in Parbhani city, District Parbhani.
PW-4 expressed that Sham Agrawal can help them in
giving job in Parbhani. Due to these circumstances on 3-7-
1994, PW-4 and PW-5 left Partur for Parbhani without
informing anything to anybody from Partur.
6) PW-4 and PW-5 first walked up to Raipur where
there is a field of relative of PW-4. Persons working in the
field knew PW-4 and they gave food and shelter to PW-4
and PW-5. PW-4 and PW-5 slept in the field from Raipur on
the night between 3-7-1994 and 4-7-1994. On 4-7-1994,
early in the morning they went to Osmanpur Railway
Station on foot and there they boarded a train proceeding
to Parbhani.
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7) On the train PW-4 and PW-5 met Raju and
Abhay, the boys who were known to PW-5. These boys
were also proceeding to Parbhani and they were doing
some course in Parbhani. During talk, PW-4 and PW-5
disclosed to these boys that they were going to Parbhani
in search of job. These boys advised the victim girls not to
go to Parbhani and return to home. They informed that it
was not safe for them to go to Parbhani. PW-4 and PW-5
and the two boys alighted at Parbhani from train. As the
boys were advising the girls to return to home but as
there was no train up to 3 p.m. the boys gave tea and
food to these girls in a hotel. As there was time upto 3
p.m., the boys took these two girls to Talreja Talkies to see
a movie. It was a matinée show and after seeing the movie
the girls were expected to return by train to home.
8) In Talreja Talkies three youngsters namely
accused No.1-Suryakant Dhage, accused No.2-Arun
Mapari and accused No.3-Suresh Kopre occupied the
seats by the side of the two girls. They opened talk with
the two girls and during talk the three accused realised
that these two girls wanted to go to Sham Agrawal.
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Accused Nos.1 to 3 falsely represented to these girls that
they knew Sham Agrawal and Sham Agrawal was their
friend. They gave false promise to the victim girls that
they would take them to Sham Agrawal. After arrival of
accused Nos.1 to 3 in the theatre, the aforesaid two boys
viz Raju and Abhay left the theatre.
9) Accused Nos.1 to 3 took the two girls in an
auto-rickshaw first to the house of a friend where they
provided meals to the girls. From this house, accused
Nos.1 to 3 took the girls to a banana garden situated at
the outskirts of Parbhani city. In the banana garden,
accused No.1-Suryakant took PW-4 to one side and then
he committed rape on her. Similarly, accused Nos.2 and 3
took PW-5 to other side and there they committed rape on
PW-5. After that accused No.1 to 3 took PW-4 and PW-5
towards the side of a brook known as Pingad-Gad-Nala.
There was water in the brook. There also accused Nos. 1
to 3 committed rape on PW-4 and PW-5. Here accused
No.1 committed rape on PW-5 and accused Nos.2 and 3
committed rape on PW-4. PW-4 and PW-5 could not resist
as threats were given to them.
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10) From the side of the brook accused No.1 to 3
took PW-4 and PW-5 towards the side of road. There they
met accused No.4 namely Rameshwar Kanade. From
there, accused Nos.1 to 4 took PW-4 and PW-5 to a lodge
of Parbhani by name Visawa Lodge. They reached there at
about 10.00 p.m. There accused Nos.1 to 4 informed to
PW-4 and PW-5 that two Sahibs, accused Nos.6 and 7
were to come to the lodge and they would help PW-4 and
PW-5 for getting work. After some time accused Nos.6
and 7 namely Nitin Dudhgaonkar and Kalyan Renge came
to the lodge. Under threat, accused No.6 committed rape
on PW-5 and accused No.7 committed rape on PW-4. They
gave threats not to disclose the incident to anybody.
Accused Nos.8 and 9 were managing the lodge. They kept
watch and saw to it that there was no interference, there
was no help to the victim girls. When accused Nos.6 and 7
left the lodge, accused Nos.1 to 4 took PW-4 and PW-5 to
campus of Shanti Niketan school. There accused Nos.1 to
4 consumed liquor. In the campus of the school accused
Nos.1 and 2 committed rape on PW-5 and accused Nos.3
and 4 committed rape on PW-4. Accused Nos.2,3 and 4
then left the campus of the school.
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11) From the campus of the school, accused No.1
took the two victim girls to other place which is called as
Wada, big house, where accused No.5 Tukaram Kharat
was present. Tukaram gave threats to PW-4 and PW-5 to
facilitate rape which accused No.1 wanted to commit.
Accused No.1 then committed rape on PW-5 and accused
No.5 committed rape on PW-4.
12) From the last place accused No.1 took the two
victim girls to Parbhani Railway Station and there he left
their company. While leaving he again gave threats to
them not to disclose the incidents to anybody. In respect
of the aforesaid five incidents of rape separate charge
sheet was filed and Sessions Case No.121/1994 was tried
against the aforesaid nine accused persons. These
accused are convicted for different incidents mentioned
above.
13) The second part of the prosecution case starts
from the incident which took place at Parbhani Railway
Station. As per the case of the prosecution, accused No.1
left PW-4 and PW-5 at Parbhani Railway Station in the
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early hours of 5-7-1994.
14) In the early hours of 5-7-1994 when PW-4 and
PW-5 were sitting on the stair case of the bridge situated
near the platform of the railway station, accused No.1 –
Abbas Baig of Sessions Case No.139/1994, who was
working as coolie at the railway station, approached PW-4
and PW-5. Under the pretext that he would help PW-4 and
PW-5 he took these two girls to retiring room situated on
railway platform. Abbas Baig then called accused No.2
Ashok of Sessions Case No.139/1994, who was working as
Police Head Constable and accused No.3 Tabuka of
Sessions Case No.139/1994, who was working as Railway
ticket booking clerk to the room. One more person also
came with them. The retiring place had many rooms.
Accused No.3 Tabuka of Sessions Case No.139/1994 and
the other person took PW-4 to one room and there they
raped her. Accused No.1 Abbas and accused No.2 Ashok,
both of Sessions Case No.139/1994, raped PW-5. After
committing the rape these persons allowed the victim girls
to leave the retiring room. The victim girls were very
much frightened and in that condition they went to the
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bridge of the railway station and from there in search of
water they went towards railway quarters situated by the
side of the railway station. There, accused No.4 Bhansing
Bundele of Sessions Case No.139/1994, who was
occupying railway quarters as he was employee of railway,
promised them to help and took them to his residential
quarters. In his quarters, accused No.5 Raju of Sessions
Case No.139/1994 was already present and one young boy
aged about 12 years was also present. Accused No.4 of
Sessions Case No.139/1994 supplied water to the victim
girls and then he left the railway quarters by informing
accused No.5 of Sessions Case No.139/1994 that he would
return after some time. While leaving, he took care to see
that the railway quarters was locked from outside and the
key was given to accused No.5 of Sessions Case No.139
of 1994.
15) At about 2.30 p.m. of 5-7-1994 accused No.4 of
Sessions Case No.139/1994 returned to the railway
quarters. He had brought with him a bottle of liquor and
some food items. He gave the food items to the victim
girls and asked the aforesaid young boy to leave the
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quarters. When the young boy left the quarters, accused
No.5 of Sessions Case No.139/1994 took PW-4 to one
room and there he raped her. Accused No.4 of Sessions
Case No.139/1994 raped PW-5. In this railway quarters, a
lace of the Salwar which PW-5 was wearing got broken
and so the lace of the shoe of accused No.4 of Sessions
Case No.139/1994 was used for the Salwar by PW-5.
16) Accused Nos.4 and 5 of Sessions Case No.139/
1994 virtually used PW-4 and PW-5 upto 4.00 p.m. of 5-7-
1994 and then they called accused No.6 Munna @
Ravindra Singh and accused No.7 Mahesh of Sessions
Case No.139/1994 to the railway quarters. They were
friends of accused Nos.4 and 5. From the railway quarters
PW-4 and PW-5 were taken by accused Nos.4 and 5 of
Sessions Case No.139/1994 in an auto-rickshaw to other
place, Shakti Bungalow from Parbhani. Accused No.6 and
7 had come to railway quarters on their motor-cycle and
they followed to that place on their motor-cycle. In Shakti
Bungalow accused No.6 Munna @ Ravindra Singh of
Sessions Case No.139/1994 raped PW-5. After that
accused No.4 of Sessions Case No.139/1994 raped PW-5.
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After that accused No.7 Mahesh of Sessions Case No.139/
1994 raped PW-5. Accused No.5 of Sessions Case No.
139/1994 also raped PW-5. This incident was going on
upto early hours of 6-7-1994. PW-4 somehow saved herself
by giving information regarding her menstruation period.
On the night between 5-7-1994 and 6-7-1994 the two
victim girls were present in Shakti Bungalow.
17) On 6-7-1994 in the morning when PW-4 woke
up from sleep, she noticed that PW-5 was not there.
Accused No.5 Rameshwar from Sessions Case No.139/
1994 was present in Shakti Bungalow and he informed
that PW-5 had already left the building. PW-4 searched for
some time to find PW-4 and then she went to Purna
Railway Station by a bus as she intended to return to
home by railway. At Purna, PW-4 met a lady police
constable and the said lady constable took PW-4 by train
to Parbhani Railway Station. At Parbhani Railway Station
PW-4 pointed PW-5 to the lady constable and due to that
the lady constable took PW-5 to Railway Police Chowki
and PW-5 was asked to stay there.
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18) The lady police constable Giribai reached PW-4
to Partur by train. After returning from Partur, Giribai
took PW-5 to Purna Railway Police Station. There, the FIR
of PW-5 came to be recorded and the crime at CR
No.29/1994 came to be registered on 7-7-1994. PW-5 was
taken to Parbhani for medical examination on 7-7-1994
and she was medically examined. During course of
investigation her clothes (Salwar and Kurta) were taken
over.
19) On 8-7-1994 PW-5 was taken to New Mondha
Police Station Parbhani where another FIR came to be
recorded and another crime came to be registered. On 7-
7-1994 police from Kotwali Police Station Parbhani went
to Partur and they brought PW-4 to Kotwali Police Station.
There, the report given by PW-4 came to be recorded. PW-
4 was then sent to New Mondha Police Station and in the
crime registered there, her statement came to be
recorded. PW-4 was also sent for medical examination and
she was medically examined on 7-7-1994.
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17 Appeal 153/99 group20) During course of investigation statements of
PW-4 and PW-5 came to be recorded under section 164 of
Criminal Procedure Code. The two victim girls took police
to various places where the offence was committed
against them. Accused persons came to be arrested. Some
incriminating articles like clothes, carpets came to be
recovered on the basis of statements given by accused
persons. Blood samples of the accused persons were sent
to CA office along with blood samples of the victim girls
and vaginal swabs collected by medical officer. Charge
sheet came to be filed in Crime No.29/1994 registered in
Purna Railway Police Station and Crime No.82/1994
registered in New Mondha Police station Parbhani and
that case is Sessions Case No.139/1994.
21) After making investigation of the two crimes
like Crime No.73/1994 registered with Kotwali Police
Station and Crime No.81/1994 registered with New
Mondha Police Station Parbhani charge sheet came to be
filed and the case came to be registered as Sessions Case
No.121/1994.
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18 Appeal 153/99 group22) Charge was framed in respect of different
incidents against different accused by the trial Court.
Accused Nos.1 to 3 had taken the victim girls from Talreja
Talkies to banana garden with the intention to rape them
and so against accused Nos.1 to 3 charge was framed for
offence punishable under section 366 read with 34 of the
Indian Penal Code. Near banana garden and near the
brook known as Pingad-Gad-Nala these youngsters raped
the two victim girls and so in respect of those two
incidents of rape there was a separate charge for offence
of gang rape against these three accused. As they had
taken the girls to Visawa Lodge for helping accused Nos.6
and 7 to have sexual intercourse with the victim girls
there was charge for the offence punishable under section
366-A read with section 34 of Indian Penal Code against
accused Nos.1 to 3. In Visawa Lodge accused Nos.6 and 7
raped the two victim girls and there was common
intention as per the case of the prosecution and so there
was charge against each of them for offence of gang rape.
From Visawa Lodge accused Nos.1 to 4 had taken the two
victim girls to the campus of Shanti Niketan school and
there they had raped the two victim girls and so for that
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19 Appeal 153/99 groupincident there was a separate charge for offence of gang
rape against accused Nos.1 to 4. Against accused No.1
separate charge was framed for offence of kidnapping, for
taking the victim girls to Munde Wada and there
committing offence of rape with the help of accused No.5
and as there was a case that accused No.5 Tukaram had
also raped one victim girl there was a charge for offence
of gang rape against these two accused. The trial Court
has acquitted accused Nos.1 and 5 in respect of the
incident which took place in Munde Wada and that
acquittal is not challenged.
23) PW-4, the first victim girl, has given evidence
that on 4-7-1994 when they boarded a train at Osmanpur
Railway Station for going to Parbhani, they met some
persons who were acquainted either to PW-4 or to PW-5,
the other victim girl. Two boys, one of whom was known to
PW-5 met them in this train as per the versions given by
both PW-4 and PW-5. They have given evidence that they
disclosed to these boys (Raju and Abhay) that they were
proceeding to Parbhani in search of job. PW-4 has given
evidence that these boys advised to return to their house
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20 Appeal 153/99 groupby saying that Parbhani is bad place, (it was not safe for
them). PW-4 has deposed that these two boys told that at
3.00 p.m. there was a train for Partur and they should
return to Partur by that train from Parbhani. She has
deposed that as there was time of more than three hours,
to kill the time, they decided to see a movie in a theatre,
Talreja Talkies. These two boys gave tea to them in a
hotel. She has given evidence that with these two boys
they went to Talreja Talkies to see movie. These two boys
sat on one side of these two victim girls in the theatre.
The evidence given by PW-5 on this incident is similar to
the evidence given by PW-4.
24) PW-4 has given evidence that after some time
the three boys came to them and they sat on their left side
and they opened talk by asking as to from where they had
come. PW-4 has given evidence that she disclosed that
they had come to Parbhani and they wanted to see Sham
Agrawal as they were in search of job. PW-4 has given
evidence that these three boys (accused Nos.1 to 3) said
to them that they were knowing Sham Agrawal and they
would take them to the house of Sham Agrawal. These
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21 Appeal 153/99 groupthree boys, accused Nos.1 to 3, are identified by PW-4 in
the Court as the same boys. PW-4 has given evidence that
when these boys were having talk with them, the first two
boys who had come with them from the train left the
theatre. PW-4 has given evidence that accused No.1 to 3
then took them out of the theatre and after calling auto-
rickshaw they asked to them to board the auto-rickshaw.
She has given evidence that due to aforesaid
representation made by accused Nos.1 to 3, they boarded
the auto-rickshaw.
25) Evidence given by PW-5 shows that she could
not hear the conversation which was going on in between
PW-4 and accused Nos.1 to 3. She has given evidence that
these 3 boys had some talk with PW-4. She has given
evidence that after some talk, the three boys took them
out of the theatre. PW-5 has correctly identified accused
Nos.1 to 3 in the Court as the same three boys by taking
their names. She has given evidence that in the auto-
rickshaw they were taken to the house of a friend of
accused Nos.1 to 3. PW-5 has given evidence that there,
meal was provided to them by these three boys and then
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Agrawal they again took them in one auto-rickshaw and
they took them by the auto-rickshaw upto banana garden.
Similar evidence is given by PW-4.
26) PW-4 has given evidence that in banana garden
there was no house and the soil had become wet and
slippery due to rain. She has given evidence that accused
Nos.1 to 3 took them inside of the banana garden and
then accused No.1 Suryakant took her to one side of the
garden and there by making her to fall on the soil he
raped her by using force. She has given evidence that
accused Nos.2 and 3 Arun and Suresh took PW-5 to other
side of the garden. She has given evidence that after some
time when the incident was over, she was taken to the
place where PW-5 was present and then PW-5 informed
that accused No.2 and 3 had raped her. She has given
evidence that she also told PW-4 that she was raped by
accused No.1. PW-5 has given evidence that in the banana
garden accused No.5 pointed a knife and wagh-nakh to
her for giving her threats and after that she was raped
one by one. Evidence of PW-5 is similar to the evidence
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23 Appeal 153/99 groupgiven by PW-4. Their evidence shows that this incident
took place at 3.00 p.m. of 4-7-1994.
27) PW-4 has given evidence that from banana
garden they were taken towards the side of one brook,
nala, for washing the clothes and the body as due to
aforesaid incident their clothes had become muddy. PW-4
has deposed that at this place accused No.2 and 3 took
her to one side and accused No.1 took PW-5 to other side
of the brook. She has deposed that at that place she was
raped by accused Nos.2 and 3. She has described the
incident of rape. She has deposed that after that PW-5 met
her and she disclosed when she was asked to wash clothes
and body, she was raped by accused No.1 Suryakant by
giving threats to her and after showing a knife to her. PW-
5 has given evidence that near the brook she was raped by
accused No.1 and she had not given consent and after this
incident she met PW-4 and disclosed about the incident.
She has deposed that PW-4 also disclosed that she was
raped by accused Nos.2 and 3.
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24 Appeal 153/99 group28) PW-4 has given evidence that from the brook
when they went towards the road for going to Parbhani,
on the road one friend met to accused Nos.1 to 3 and he
was accused No.4. Similar evidence is given by PW-5 and
both these victim girls have identified accused No.4 in the
Court. PW-5 has given evidence that after arrival of
accused No.4 again threat was given to them of life and
then they were taken to Parbhani. PW-4 has given
evidence that in auto-rickshaw they were taken to Visawa
Lodge of Parbhani and there they were taken to room
No.16 of the lodge and at that time it was around 10.00
p.m. She has given evidence that in room No.16 there was
one ante room and there was a cot. Similar evidence is
given by PW-5.
29) Evidence of PW-4 shows that after taking them
to the ante room accused Nos.1 to 4 said to them that
their Sahebs would come there. PW-5 has given evidence
that it was told that these Sahebs help the poor and needy
persons so they should wait for the Sahebs. Both of the
them have given evidence that accused Nos.1 to 4
remained there in room No.16 till arrived of the two
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25 Appeal 153/99 groupSahebs.
30) PW-4 has described the two Sahebs by giving
description of their appearance and their clothes. Accused
Nos.6 and 7 are identified by PW-4 in the Court. PW-5 has
also described these two persons and she identified
accused Nos.6 and 7 in the Court.
31) PW-4 has given evidence that these accused
Nos.6 and 7 had talk with them and they said that the two
victim girls should allow them to do what was done with
them by other persons (accused Nos1 to 3). PW-4 has
given evidence that she said that they should not do such
things with them as they were having pains due to wrong
done by those boys. Similar evidence is given by PW-5
against accused Nos.6 and 7.
32) PW-5 has given evidence that accused Nos.6
and 7 did not pay heed to their request and accused No.6
took PW-5 to one room and accused No.7 gave threats to
her and raped her. PW-5 has given evidence that accused
No. 6 took her to other room and there he raped her and
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26 Appeal 153/99 groupthat she had not consented to sexual intercourse. PW-4
has given evidence that when the incident of rape in
Visawa Lodge was over, PW-5 came to her, she was
weeping and she narrated the incident in which she was
raped by accused No.6. PW-4 has given evidence that both
these accused gave threats not to disclose the incident to
anybody as they were from high society (high family). PW-
4 has given evidence that when accused Nos.6 and 7 were
committing the offence, accused Nos.1 to 4 were present
in Visawa Lodge though in other room and accused Nos.8
and 9 (the staff of the lodge who are acquitted accused)
were present in the vicinity and by remaining there they
had helped accused Nos.6 and 7 for committing the crime.
Both PW-4 and PW-5 have given evidence that after the
incident was over they were taken through backside door,
outside of the lodge by accused Nos.1 to 4.
33) PW-4 and PW-5 have given evidence that from
Visawa Lodge in one auto-rickshaw accused Nos.1 to 4
took them away from the lodge and on the way they
stopped for purchasing liquor bottle and then they were
taken to campus of one school. They have described the
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27 Appeal 153/99 groupschool building in their evidence.
34) PW-4 and PW-5 have given evidence that they
were taken to the school and they were again raped. PW-
4 has given evidence that in the said school accused No.1
Suryakant and accused No.2 Arun took PW-5 to one room
and remaining two boys took her to other room and they
were Suresh and Rameshwar. In the Court she has
identified all the four accused. Similar evidence is given
by PW-5. She has given evidence that accused Nos.1 and 2
raped her in the building of the school. PW-4 has given
evidence that accused Nos.3 and 4 raped her in the
building of the school. PW-4 has deposed that after the
incident PW-5 narrated the incident of rape on her. PW-5
has given evidence that PW-4 also narrated the incident to
her about rape on her by accused Nos.3 and 4. Both the
victim girls have given evidence that accused No.1
remained with them and the remaining three accused left
them there. Both the victim girls have given evidence that
accused No.1 took them to railway station where they
were left after giving threat of life to them. The evidence
of PW-5 in respect of rape committed by accused No.1 on
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28 Appeal 153/99 groupher in one Wada after the incident of rape in the school
need not be discussed as no conviction is given to accused
No.1 in respect of that incident. Similarly, the evidence
given as against accused No.5 on this incident need not be
discussed.
35) The evidence given on subsequent incidents of
rape is considered in Sessions Case No.139/1994. Other
evidence on conduct however needs to be considered in
view of nature of challenge to the evidence of PW-4 and
PW-5.
36) PW-4 has given evidence that till 3.00 a.m. of 6-
7-1994 they were virtually used for satisfying sexual lust
by different persons. The evidence of PW-4 and PW-5
shows that they were tired due to the aforesaid incidents
and they slept in Shakti Building till morning. PW-4 has
given evidence that when she woke up, she noticed that
PW-5 was not there. She has deposed that on inquiry with
the accused they informed that PW-5 had already left that
building and so she went to bus stand. She has deposed
that she boarded a bus for Purna Railway Station and she
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29 Appeal 153/99 groupwent to Purna. She has deposed that on Purna Railway
Station one lady constable accosted her and on inquiry
she gave her address from Partur. Her evidence shows
that she did not disclose the incidents of rape to the lady
constable. Her evidence shows that the said lady
constable felt it proper to reach this girl to her residential
place, Partur and so she took PW-4 in train towards
Parbhani. PW-4 has given evidence that when she reached
Parbhani Railway Station, she saw PW-5 sitting on the
platform and she pointed PW-5 to the lady constable. Her
evidence shows that the lady countable took steps like
taking PW-5 to Police Chowki of Railway Station Parbhani
and then the lady constable reached PW-4 to Partur on 6-
7-1994. She has given evidence that she was frightened,
she was not able to talk and so in Partur she took meal
and went to bed. Her evidence shows that she did not
narrate the incident to anybody including her mother as
she was afraid that her mother will beat her and mother
will drive her out of the house.
37) The evidence of PW-5 shows that after the
incident of rape was over in Shakti Building, she was
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30 Appeal 153/99 groupsleeping in the building till morning of 6-7-1994 and when
she woke up she noticed that PW-4 was not there. She has
deposed that one person present in the building informed
her that PW-4 had already left the building. She has
deposed that she searched for PW-4 and then went to
railway station as she intended to return to Partur. She
has deposed that when she was waiting for train
proceeding towards Parbhani, she noticed that in the
same train PW-4 was travelling. She has deposed that a
lady constable got down from the train and the lady
constable took her to Railway Station Police Chowki and
she was asked to sit there and wait for her. She has
deposed that the lady constable went with PW-4 and she
returned to railway police Chowki in the night time. This
evidence of PW-4 and PW-5 is consistent with each other
and it also shows that they did not disclose about the
incident till the night time of 6-7-1994.
38) PW-5 has given evidence that she was taken to
Railway Police Station Purna and there PSI Khan made
inquiry with her. She has deposed that she narrated all the
incidents but PSI Khan said that he would write down
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31 Appeal 153/99 groupwhatever he wanted to write and so all the incidents were
not recorded and the incidents were not correctly
recorded. She has given evidence that her signature was
obtained on the complaint but the contents were not read
over to her. On the record, there are some statements
which are shown as supplementary statements and this
point will be considered at proper place. Here only it can
be observed that in view of the surrounding circumstances
the reports given under section 154 or even statements
recorded under section 164 of Cr.P.C. cannot be used in
the present matter for corroborative purpose for some
incidents.
39) The evidence of PW-5 shows that on 7-7-1994
she was taken to Parbhani for medical examination and
there a lady medical officer examined her. She has given
evidence that on 8-7-1994 PSI Khan took over the clothes,
Salwar, Kurta, Punjabi dress and she was wearing those
clothes, article Nos.9,10 and 11, Salwar, Kurta and
Odhani at the relevant time. She has specifically stated in
the evidence that in Salwar, articles 9 the lace is of a
shoe.
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32 Appeal 153/99 group40) PW-5 has given evidence that she was taken to
Kotwali Police Station Parbhani and there PSI Yeshwant
took over her nicker (nicker, underwear was not taken
over by PSI Khan). She has identified the nicker as article
No.6 produced in the Court and her signature appears on
the panchanama dated 8-7-1994.
41) PW-5 has given evidence that on 8-7-1994 she
showed various places where she and PW-4 were raped
like banana garden, the brook, Visawa Lodge and school
campus. She has given evidence that PSI Yeshwant
prepared panchanama of this incident and her signature
was obtained on the panchanama. PW-4 has given
evidence that on 7-7-1994 PSI Yeshwant came to her
house in the noon time and from Partur she was taken to
Parbhani. She has deposed that there in the night time,
her statement was recorded. Her report is proved at
Exhibit 51 in her evidence.
42) The evidence of PW-4 shows that on 8-7-1994
PSI Yeshwant took over her clothes like, Salwar, Kurta.
She has identified the articles as article Nos.4 and 5. She
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33 Appeal 153/99 grouphas given evidence that these clothes were used by her at
the relevant time and they were on her person right from
3-7-1994. She has given evidence that she had washed
these clothes after returning home on 6-7-1994. The
panchanama of seizure of the clothes is at Exhibit 52.
43) PW-4 has given evidence that on 8-7-1994 PSI
Khan came to Kotwali Police Station and made inquiry
with her and said that he would record the statement in
the manner which he would think proper and correct.
Thus, both PW-4 and PW-5 have grievance against PSI
Khan that he did not record all the incidents narrated by
them.
44) PW-4 has given evidence that on 8-7-1994 PSI
Yeshwant took her with him and then she showed the
places where they were raped. She has given evidence
that PW-5 was also with police. Her evidence shows that
the panchanama document is proved and PW-5 had signed
it on 8-7-1994.
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34 Appeal 153/99 group45) PW-4 has given evidence that on 8-7-1994 she
was referred for medical examination and she was
examined in Parbhani.
46) The aforesaid evidence shows that PW-5
disclosed the incident first to police i.e. on 7-7-1994 and
the first disclosure was made by PW-4 on 7-7-1994 in the
night time. This circumstance needs to be kept in kind in
view of the nature of challenge to the prosecution
evidence.
47) Ishteq Ahmed Khan (PW-17) is the investigating
officer who has given evidence on the seizure of clothes of
PW-5 on 8-7-1994. He has deposed that articles 9,10 and
11 were taken over by police under panchanama which is
proved at Exhibit 155. On the label pasted on the articles
there are signatures of the panch witnesses. This witness
is cross-examined by learned Special Public Prosecutor
due to the aforesaid grievance of PW-4 and PW-5 against
him. He has denied that he did not record the information
given by these two victim girls in respect of all the
incidents of rape. He has, however, given evidence on
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35 Appeal 153/99 groupother part of the investigation made by him. Thus, there
is no independent evidence on the seizure of the clothes of
PW-5 by police officers and there is evidence only of PW-5
and this police officer.
48) PSI Yeshwant (PW-18) was attached to Kotwali
Police Station, Parbhani. He has given evidence that when
he learnt that PW-5 had given her report to Purna Railway
Police Station and it was a case of gang rape, he supplied
the information to the District Superintendent of Police
Parbhani. He has deposed that he was directed to go to
Partur and bring PW-4 to Parbhani and make the
investigation. He has deposed that he brought PW-4 to
Parbhani, he made inquiry with her on 8-7-1994. He has
deposed that on the basis of this report of PW-4 he
registered the crime at CR No.73/1994 at Kotwali Police
Station in the night time i.e. on the night between 7 and 8
of July 1994. This report is proved at Exhibit 51.
49) Yeshwant (PW-18) has given evidence that he
prepared separate teams for making investigation of the
matter and his officers took accused No.1 Suryakant,
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36 Appeal 153/99 groupaccused No.2 Arun, accused No.4 Rameshwar, accused
No.8 Dnyanoba and accused No.9 Machindra in custody.
50) Yeshwant (PW-18) has given evidence that he
took over the clothes of PW-4 under panchanama on 8-7-
1994 in CR No.73/1994. In his evidence the panchanama
is proved at Exhibit 52. He has identified the clothes of
PW-4 as article Nos.4 and 5, Salwar and Kurta.
51) Yeshwant (PW-18) has given evidence that on 8-
7-1994 he made inquiry with PW-5 about her clothes and
he realised that her clothes like Salwar, Kurta were
already taken over by Railway Police Station Purna. He
has given evidence that as he realised that her underwear
was not taken over, he took over the underwear under
panchanama in CR No.73/1994 of Kotwali Police Station.
The panchanama at Exhibit 65 is proved in his evidence
and he has identified the underwear as Article No.6. On
this panchanama there are signatures of panchas also.
The evidence of Yeshwant (PW-18) also shows that there is
no independent corroboration of the evidence of panch
witness to the seizure of the clothes made by Yeshwant.
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37 Appeal 153/99 group52) API Shaikh Mujib (PW-19) has given evidence
on the two reports recorded by him of PW-4 and PW-5.
Evidence of Yeshwant (PW-18) shows that he had sent the
victim girls to New Mondha Police Station as there was no
toilet facility in Kotwali Police Station. Evidence of Shaikh
Mujib (PW-19) shows that he made inquiry with PW-5 and
he created two separate reports on the basis of statement
given by PW-5. He has deposed that he registered CR No.
81/1994 in respect of the incidents of rape which had
taken place in banana garden, near brook, in the campus
of the school, in Visawa Lodge and in Munde Wada. He
has deposed that in the second report he recorded the
incidents which had taken place in retiring room and in
the railway quarters of accused No.4 of other case and
Shakti Building. It appears that CR No.82/1994 was
registered in New Mondha Police Station in respect of the
subsequent incidents. In present matter the investigation
was made in CR No.81/1994. In the cross-examination of
PSI Khan (PW-17) it is suggested by the Special Public
Prosecutor that in the report of PW-5, Exhibit 82, some
incidents were not recorded. Similar suggestions are
given in respect of statements of PW-4 recorded by Khan
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38 Appeal 153/99 group(PW-17) on 8-7-1994 and 12-7-1994. It is also suggested
that some portions from Exhibit 82 were not stated before
him by PW-4 but he recored them. Defence has also
brought on record some portions from the previous
statements of the two victim girls and those portions are
proved in his evidence at Exhibits 159, 160, 161 and 162.
Some portions from the statement of PW-5 are proved at
Exhibits 163, 164, 165 and 166. Some portions like
portions at Exhibits 172, 173 and 174 from the previous
statement of PW-4 are in respect of the other case. Some
portions like portions at Exhibits 178, 179, 180, 181, 182
and 183 in respect of the present case cannot be called as
contradictions as they are not inconsistent with the
version given by PW-5. There are more such portions in
respect of other statements and this point needs to be
considered and decided as one objection or challenge of
defence.
53) PSI Yeshwant (PW-18) has given evidence that
on 8-7-1994 PW-4 and PW-5 showed him the places where
the incidents of rape had taken place and they were
banana garden of One Mr. Subhedar (Exhibit 87), near
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39 Appeal 153/99 groupbrook (Exhibit 88), the school campus (Exhibit 89) and
Munde Wada (Exhibit 90). His evidence shows that one
other place, Visawa Lodge was also shown by the victim
girls but this place was not within his local jurisdiction
and so he did not prepare panchanama of that place.
Yeshwant (PW-18) has given evidence that on 8-7-1994 he
referred PW-4 for medical examination.
54) Chalak (PW-20), Circle Police Inspector (CPI -
Parbhani Rural) took over investigation of CR No.81/1994
registered in New Mondha Police Station Parbhani, the
present matter, from Sub Inspector of the said police
station. The other Crime at CR No.73/1994 was registered
in Kotwali Police Station which is also in respect of
present matter. The evidence of Chalak shows that during
investigation PW-5 showed to him room No.16 of Visawa
Lodge where the offence of gang rape was committed. He
has given evidence that in the presence of panch
witnesses he took over two bed-sheets which were found
in room No.16 and also one underwear. He has deposed
that PW-4 identified the said underwear as her underwear.
He has identified article Nos.1,2 and 3 which are shown to
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40 Appeal 153/99 groupbe seized in CR No.81/1994 of New Mondha Police
Station. Exhibit 122 is proved in his evidence and the
evidence shows that there were labels bearing signatures
of panchas on these articles.
55) The evidence of Sahebrao Vyavahare (PW-22),
Police Inspector of CID Crime shows that he took over the
investigation of the present matter viz. CR No.73/1994
registered in Kotwali Police Station and CR No.81/1994
registered in New Mondha Police Station from the
previous investigating officers including from Chalak. His
evidence shows that he again recorded supplementary
statements of PW-4 and PW-5. Thus, the investigation was
made by many police officers as mentioned above and that
was due to the grievance expressed in social media and
also by the two victim girls. The evidence of Vyavahare
shows that the grievance was raised in State Legislative
Assembly also.
56) Both PW-4 and PW-5 have identified in the
Court all the appellants from the present appeals as the
persons who committed rape on them. T.I. parade was
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41 Appeal 153/99 grouparranged for giving opportunity to PW-4 and PW-5 to
identify these persons after their arrest. The evidence of
PW-4 shows that in the first T.I. parade she was asked to
identify the persons who had committed rape on her and
13 persons shown to her in the campus of jail, Parbhani.
She has given evidence that in the said T.I. parade she
identified accused No.1 Suryakant, accused No.2 Arun
and accused No.3 Suresh. She has deposed that she also
identified the two persons who were present in the lodge
as managers and she identified accused No.8 Dnyanoba
and accused No.9 Machindra in the T.I. parade. The
evidence given as against accused Nos.8 and 9 need not
be considered as they are acquitted and the acquittal is
not challenged. PW-4 has given evidence that on 20-8-
1994 in another test identification parade (T.I. parade) she
identified one person who was an associate of the other
accused who had committed rape on her. In the Court she
has pointed accused No.6 Nitin as the person who was
identified by her in the jail. PW-5 has also given evidence
on the T.I. parades dated 2-8-1994 and 20-8-1994. She has
given evidence that she identified accused Nos.1 to 4 in
T.I. parade. She pointed these accused in the Court also by
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42 Appeal 153/99 groupsaying that they were identified by her in the T.I. parade.
She identified even accused Nos.8 and 9 in the T.I. parade
and she pointed these persons also in the Court as the
persons who were identified by her in the T.I. parade. PW-
5 has given evidence that on 20-8-1994 she identified
accused No.7 as the person who was associate of the
persons who had raped her. She pointed accused No.7 in
the Court as the said person.
57) The evidence of PW-4 and PW-5 on the T.I.
parade shows that they identified accused No.6 and
accused No.7 in the Court but by saying that they were
the associates of the persons who had raped them. In any
case it needs to be kept in mind that both accused Nos.6
and 7 came to be identified in T.I. parade dated 20-8-1994.
Namdeo Jadhav (PW-16), the Tahsildar and Executive
Magistrate, who conducted the T.I. parade has given
evidence on these two T.I. parades. The correspondence
made with him by police and the correspondence made by
him with the jail is proved in his evidence. His evidence
and the evidence of PW-4 and PW-5 shows that precaution
was taken by him to see that the girls were separately
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43 Appeal 153/99 grouptaken to the place where the T.I. parade was conducted.
He has given evidence which is similar to the evidence of
PW-4 on the first T.I. parade and the record is consistent
with the oral evidence. Similar evidence is there showing
that PW-5 identified accused Nos.1 to 4 and also accused
Nos.8 and 9 in the first T.I. parade. Relevant record is
proved as Exhibit 139.
58) Namdeo Jadhav (PW-16) has given evidence on
the second T.I. parade dated 20-8-1994. He has given
evidence that he first asked PW-4 to identify the accused
and she identified accused No.6. He has given evidence
that PW-5 identified accused No.7. The record of T.I.
parade prepared by him is proved as Exhibit 142. The
challenge of the defence to the evidence of T.I. parades is
being considered at later stage. The evidence as a whole
on the T.I. parade shows that accused Nos.1 to 4 and
accused Nos.6 and 7 who are convicted by the trial Court
were identified by PW-4 and PW-5. Thus, there is evidence
of two victim girls given in the Court to the effect that
they identified these accused in the Court and there is
also evidence of T.I. parade showing that in the T.I. parade
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44 Appeal 153/99 groupthey together identified the appellants and this evidence is
available as corroborative piece of evidence.
59) There is medical evidence in corroboration to
the versions given by the two victim girls on the incidents
of rape. It is possible for the defence to say that as per
the versions given by the two victim girls, they were raped
in banana garden and also near book before the offence
was committed by accused Nos.6 and 7 against them in
Visawa Lodge and to that extent the medical evidence
cannot be used as corroborative piece of evidence as
against accused Nos.6 and 7. This point can be kept in
mind and it can be ascertained as to whether the evidence
given against accused Nos.6 and 7 is convincing and it
can form base for conviction.
60) The evidence of Dr. Jaishri (PW-13) shows that
she examined PW-5 on 7-7-1994 and she found following
things.
"On local examination she found :
1. Matting of pubic hair was seen.
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45 Appeal 153/99 group
2. Blood stains on clothes genital.
3. No evidence of external injuries over the genitals.
4. Hymen - Torn, congested + oozing through the tear
present.5. P.S. - Speculum could be passed with difficulty,
tenderness i.e. severe tenderness.6. Bleeding through cervical O.S. seen.
On P.V. Examination she found:
Vagina admits 1 finger with a pain i.e. severe tenderness.
Bleeding through cervical was present."Evidence of Dr. Jaishri shows that she had taken vaginal
swab and she had sent it to C.A. office. However, she did
not find live or dead spermatozoa in the vaginal swab.
61) Dr. Jaishri (PW-13) has given evidence that she
examined PW-4 on 8-7-1994. She found following things
during the examination.
"On local examination she found :
1. Matting of pubic hair not seen;
2. Blood stain on clothes genitals were seen.
3. Posterior fourchette congested and redness.
Libia minor was slightly congested.
4. Hymen - torn (old tear) No oozing, Bleeding
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46 Appeal 153/99 group
5. No evidence of injury over the external genitals.
Her other evidence is as follows :--
Per speculum examination I found :
Medium size speculum passed with the minimum
tenderness means pains; Bleeding through cervical was
seen; vaginal swab was taken and sent for chemical
analysis and for microscopic examination. vaginal
mucosa is congested. I have used the word congested -
it means redness. Uterus - normal size extroverted;
Bleeding through cervical seen; vaginal smear taken for
microscopic examination which revealed - No living or
dead spermatozoa. The living spermatozoa are seen
within 2 to 3 hours after the sexual intercourse and dead
spermatozoa are seen if examined within 24 hours from
sexual intercourse."Her evidence shows that she sent pubic hair and vaginal
swab of PW-5 also to C.A. office. However, she did not
notice live or dead spermatozoa in vaginal swab. She has
given evidence that live spermatozoa can be seen within 2
to 3 hours after sexual intercourse and dead spermatozoa
can be seen if examined within 24 hours from the sexual
intercourse. The evidence already discussed shows that
both PW-4 and PW-5 were examined after 24 hours of the
last incident of rape. She has given specific evidence on
the basis of examination done by her of PW-4 and PW-5
that against PW-4 and PW-5 sexual intercourse had
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47 Appeal 153/99 groupoccurred. The certificates issued by her are proved as
Exhibits 127 and 129. X-ray plates in respect of these two
girls are at Exhibits 126 and 128 but that record is being
discussed at later place for deciding the point of age of
the victim girls. Here only one circumstance needs to be
mentioned that Dr Jaishri has admitted in the cross-
examination that bleeding from vagina of the victim girls
was possible due to menses. However, this admission has
no relevance as other symptoms mentioned by her in the
evidence are in support of sexual intercourse, rape. She
has given evidence in the cross-examination that tear of
hymen in respect of PW-4 was old indicating that she was
accustomed to intercourse but that circumstance need to
be considered on the background of the age of this victim
girl and also after considering the direct evidence given
by PW-4. Thus, the medical evidence gives general
corroboration to the versions given by the two victim girls.
62) The prosecution has examined Abhay Kulkarni
(PW-2), a boy who had met PW-4 and PW-5 in the train
when they were proceeding towards Parbhani on the first
day. He has given evidence that he and his friend Raju had
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48 Appeal 153/99 groupmet these girls and they had taken these two girls to
Talreja Talkies Parbhani. He has given evidence that in
the Talreja Talkies due to inquiry made by the manager of
the theatre with them as they were in the company of the
minor girls they became frightened and they left the
theatre. He is cross-examined by learned Special Public
Prosecutor as he did not identify accused Nos.1 to 3 as
the same boys who had taken over the control of PW-4
and PW-5 in the theatre and no evidence is given by them.
However, there is evidence on the circumstance that the
two victim girls were taken to Talreja Talkies by them.
63) Bandu Raut (PW-3) is resident of Parbhani and
he has given evidence that he knew accused No.1
Suryakant and accused No.2 Arun from prior to the date
of incident. He has given evidence that in the year 1994
accused Nos.1 and 2 with their one male friend had
brought two girls to his house. He has given evidence that
he remembered the incident as this incident took place
within one month of his own marriage. He has admitted
that he had supplied food to the girls. He stood to the test
of cross-examination and his version gives corroboration
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49 Appeal 153/99 groupto the versions of PW-4 and PW-5 which is given at least as
against accused Nos.1 and 2.
64) Chalak (PW-20) has given evidence that after
taking over the investigation of the present mater on 16-7-
1994 he filed an application before the Judicial
Magistrate, First Class to take action against accused
Nos.6 and 7 as they were absconding. Action was
proposed under sections 82 and 83 of the Criminal
Procedure Code. He has given evidence that ultimately he
could arrest accused Nos.6 and 7 on 5-8-1994. This
evidence is on the circumstance that accused Nos.6 and 7
were absconding even when police had realised that they
were involved in the offence of gang rape committed in
Visawa Lodge.
65) Chalak (PW-20) has given evidence that on 6-8-
1994 while in police custody accused No.6 Nitin gave
statement in the presence of panch witnesses in respect of
the incident and also the clothes which were on his
person. Two memorandums of the statements are at
Exhibits 98 and 99. The evidence on showing the lodge by
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50 Appeal 153/99 groupaccused No.6 is of no use as this spot was known to
police. Evidence is given by Chalak that after preparing
second memorandum accused No.6 took police and the
panchas to his house and from his house he produced his
clothes like one Bush shirt, full pant, one banyan and
underwear and a goggle of golden frame. Articles 5 to 8
and 14 are identified by Chalak as the same articles and
they were shown as seized in CR No.81/1994 registered in
New Mondha Police Station. His evidence shows that
except article 7, underwear, there were labels bearing
signatures of panchas on other articles. The seizure
panchanama is proved as Exhibit 100. Shivaji panch
witness on this incident has given evidence on the
memorandum of the statement and also the seizure
panchanama and there is no reason to disbelieve this part
of the evidence.
66) Chalak (PW-20) has given evidence that on 6-8-
1994 accused No.7 - Kalyan Renge gave statement in the
presence of panch witness and the memorandum of the
statement is at Exhibit 101. He has given evidence that
after giving statement accused No.7 took police and the
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51 Appeal 153/99 grouppanch witnesses to Jam Society area. He has given
evidence that accused No.7 then produced from his house
his clothes like white shirt, white pant, underwear, banian
and one chain of beeds. He has given evidence that he
seized all these articles and they are article Nos.9,10,11,
12 and 15 in CR No.81/1994 registered in New Mondha
Police Station under panchanama at Exhibit 102. He has
identified these articles in the Court. His evidence shows
that article 10 and 11, pant and underwear, were not
having labels bearing signatures of panchas when he was
examined in the Court. Panch witness Shivaji Gore (PW-7)
has given similar evidence on this incident.
67) The evidence of Chalak (PW-20) shows that he
had sent all these articles to CA office along with covering
letter. This record is at Exhibits 221 and 222.
68) Yeshwant (PW-18), the Police Sub Inspector of
Kotwali Police Station has given evidence that during
investigation he arrested accused No.1 Suryakant and he
took over his clothes like pant, shirt, underwear and
banian (articles 7,8,9 and 10) in CR No.73/1994 registered
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52 Appeal 153/99 groupin Kotwali Police Station Parbhani. He has given evidence
that the articles were kept in different cloth bags and they
were sealed by him and the panchanama at Exhibit 85 was
prepared accordingly by him.
69) Yeshwant (PW-18) has given evidence that after
arrest of accused No.2, Arun he took over his clothes,
article Nos.11,12,13 and 14 in CR No.73/1994 under
panchanama at Exhibit 86. All these articles were having
labels bearing signatures of the panchas and his
signature. Similarly, on the articles which were taken
over from accused No.1 there were labels even in the
Court bearing signatures of the panchas.
70) Yeshwant (PW-18) recorded statement of Bandu
Raut. He had referred accused Nos.1 to 4 arrested by him
for medical examination and there is record of medical
examination of these accused persons. Accused Nos.6 and
7 were referred by Chalak for medical examination.
71) Yeshwant (PW-18) has given evidence that on
11-7-1994 in the presence of panchas he seized the
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53 Appeal 153/99 groupclothes like pant, shirt, banian and underwear, articles
18,19,20 and 21 in CR No.73/1994 of Kotwali Police
Station and they were on the person of accused No.3,
Suresh. On these articles there were labels bearing
signatures of panch witnesses when the clothes were
shown to him. The panchanama of seizure of these clothes
is at Exhibit 91.
72) Yeshwant (PW-18) has given evidence on the
recovery of brass fighter on the basis of the statement
given by accused No.2 Arun and that record is at Exhibits
92 and 93 and that record need not be considered in
detail in view of the nature of evidence given by the two
victim girls. Similar evidence is given on the recovery of
jambiya on the basis of statement given by accused No.1,
Suryakant and that record is at Exhibits 94 and 95.
73) Yeshwant (PW-18) had recorded statement of
Abhay (PW-2) who turned hostile and the relevant portions
from the police statement of this witness are proved at
Exhibits 191 to 193.
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54 Appeal 153/99 group74) Yeshwant (PW-18) has given evidence that he
had sent the aforesaid articles seized by him to CA office
and the relevant record is at Exhibits 194 and 195. He had
referred both the victim girls to the Judicial Magistrate for
recording their statements under section 164 Cr.P.C. The
evidence of Yeshwant (PW-18) and the record show that
panchas on the seizure of these articles made by Yeshwant
were not examined and so the prosecution relied entirely
on the evidence of Yeshwant (PW-18) on this piece of
circumstantial evidence.
75) It is the specific case of the prosecution that
both the victim girls viz PW-4 and PW-5 had not completed
age of 16 years at the relevant time and so there was no
question of giving of consent by them for sexual
intercourse. The tenor of the cross-examination of the two
victim girls by the defence counsels shows that they tried
to create probability of consent. In view of these
contentions of the two sides the evidence given by the
prosecution for proving the age of the two girls needs to
be considered separately. This evidence is being discussed
while considering the other challenges of the defence to
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55 Appeal 153/99 groupthat evidence and also the aforesaid evidence.
76) The challenges of the defence to the aforesaid
evidence of the prosecution and other contentions made
for the accused persons are as under :
CHALLENGES
(i) Both the victim girls did not disclose the incidents
immediately even when they had opportunity to disclose
the incidents to the persons in the vicinity and even to the
parents. They disclosed the incidents only when police
specifically made inquiry with them.
(ii) Both the victim girls gave different versions when
different police officers recorded the reports. Both the
victim girls did not narrate some of the incidents of rape
when they made first disclosure and then did not disclose
some incidents even when their statements were recorded
by the Judicial Magistrate under section 164 of the Cr.P.C.
(iii) The victim girls had left the shelter of their
guardians/parents on their own and so no offence of
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56 Appeal 153/99 groupkidnapping or abduction was committed by any of the
accused.
(iv) The evidence given by the prosecution on age is not
that convincing and the victim girls had probably crossed
the age of 16 years at the relevant time.
(v) There is probability that the victim girls were major
and they consented to the alleged acts of the accused.
(vi) The medical evidence is not that convincing and it
does not give corroboration to the versions of the
prosecutrix. Other circumstantial evidence like CA reports
also do not corroborate the case of the prosecution.
(vii) The evidence of T.I. parade cannot be relied upon as
the procedure laid down in Criminal Manual of this High
Court was not followed. The Executive Magistrate did not
act fairly.
(viii) The evidence of the investigating officers shows that
the State was required to change the officers many times.
Their evidence creates probability that they were not fair
during conducting the investigation.
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57 Appeal 153/99 group77) This Court is considering the aforesaid
challenges one by one. Similar challenges are there in the
other set of appeals. The challenge with regard to the age
of the victim girls needs to be considered first as many
things depend on the finding given on this point.
Age of the victim girls.
78) The evidence of the prosecution on the age of
the victim girls is in the form of oral evidence of two
victim girls. There is also defence evidence in the nature
of evidence of mother of one victim girl. The prosecution
has placed reliance on the record of date of birth in
respect of PW-4 and the school record in respect of PW-5.
The prosecution has also relied on the evidence of medical
opinion on age of the two victim girls.
79) In the case reported as 2014(2) Mh.L.J. (Cri.)
353 (Mahesh vs. State of Maharashtra) , the Single Judge
of this Court (one of us) had an opportunity to consider
various kinds of evidence which can be available for
proving the date of birth or age and the importance of
each piece of evidence and the precedence which needs to
be given when the two pieces of evidence are inconsistent
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58 Appeal 153/99 groupwith each other. This Court referred the case of the Apex
Court reported as AIR 1982 SC 1297, Jaya Mala vs. Home
Secretary, Government of Jammu and Kashmir and
others) and made following observations:
"13. 'Age' as ingredient of both the aforesaid offences
is required to be proved beyond reasonable doubt. This
'proved' under section 3 of Evidence Act needs to be
proved like any other fact in criminal case. Oral
evidence as to the age may always be available in such
a case. Where a person gives evidence on oath, the
Court is expected to start with presumption that he has
spoken the truth. Only because in a case like present
one, when there is oral evidence on age and it is given
by the interested witnesses like mother or father, the
Court is expected to look for corroboration.
Corroboration need not be only of expert evidence.
Corroboration may be of circumstances which may
differ for each case. The opinion of doctor on clinical
or radiological examination cannot be accepted
straight way as a legal proof. The margin of error is of
two years on either side even when the age is
ascertained on the basis of radiological examination.
(Reliance placed on AIR 1982 SC 1297, Jaya Mala vs.
Home Secretary, Government of Jammu and Kashmir
and ors.]. It is only medical opinion and other evidence
including oral evidence cannot be discarded only
because the medical evidence is in conflict with the
oral evidence. Further, the medical evidence cannot
stand against entries made in birth register, which are
properly authenticated. Entry made in birth register
has presumptive value in view of section 17(2) of Birth
and Death Registration Act, 1969 and this position of
law needs to be kept in mind, when there is conflict
between medical evidence and the other evidence.14. In view of section 35 of Evidence Act, the entry
made in school register about the date of birth also
needs to be treated as relevant. Such register is kept
in regular discharge of duty by school and it is
required to be kept as per the Rules made by the State
Government. When such entry was made before
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59 Appeal 153/99 groupcommission of offence and when entry is proved by
giving oral evidence of the concerned, due weight
needs to be given to such entry. Such entries need to
be treated as relevant and admissible in evidence,
though such entry cannot form sole clinching factor for
determining the age. It has no presumptive value like
in the case of entry made in birth register as already
observed."80) PW-4, the first victim girl, has given evidence
that she was born at Amarawati on 12-3-1979 and she
received education in Lal Bahadur Shastri School at
Partur. She has given evidence that her surname is
Agarwal and also Mor. She has given evidence that she
received education only up to 5 th Standard and then she
left the school. Her father died in the year 1989 and she
was living with her mother, brother and sister at Partur at
the relevant time. In the cross-examination it is brought
on record that in Amarawati there lives her uncle and the
surname of the uncle is Mor though the family of PW-4
uses the surname as Agrawal. She has given evidence
that in the school record her surname is shown as
Agrawal. It is suggested to her that she was 13 years of
age when she was studying in 6 th Standard but she has
denied that suggestion. She has admitted that she has
three more sisters and her elder sister is married but
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60 Appeal 153/99 groupremaining two are unmarried. She has given age of her
two younger sisters as 15 years (of Shital) and 13 years
(of Shivkanya) as on 25-11-1997. It is brought on record in
her cross-examination that to police she has given the age
approximately. It is brought on record in the cross-
examination that her elder sister was given in marriage
when the sister was 18 years of age and her marriage had
taken place 2 years prior to the date of the incident. She
has given specific evidence in the cross-examination that
she was 14 years old when she was working as maid-
servant with some persons.
81) It appears that PW-4 had given different age in
different statements which were recorded by investigating
officers and the age given was more than 16 years. Her
evidence shows that she was frightened and she did not
want to inform the incident even to her mother. The
circumstance that one lady constable picked up PW-4 at
Purna and she reached PW-4 at Partur is also there to
indicate that police felt that she was under age and her
care needs to be taken. It can be said that she wanted to
avoid further trouble and that is why she had tried to tell
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61 Appeal 153/99 groupthe age which was not correct and she was giving age
which was higher than her correct age. Even if the
answers given by her with regard to the age of her sisters
are considered as they are, they do not lead to an
inference that she had crossed the age of 16 years at the
relevant time. In such cases if there is record of date of
birth which has presumptive value, that record needs to
be given more weight than the information supplied to
police even by victim, like PW-4.
82) For proving the date of birth of PW-4 the
prosecution has examined one Krishnarao Choudhari (PW-
14), who was working as clerk in Dhapibai Maternity
Home, Amarawati. He has given evidence that as per the
record of the hospital, one Kirandevi Ramgopal Mor was
admitted in this hospital for delivery on 12-3-1979 and on
the very day she delivered a female child at 1.30 p.m. He
has given evidence that as per the register this was
second female child to Kirandevi. Certificate was issued
on the basis of entry made in this register and that is
given Exhibit 133. Krishnarao Choudhari (PW-14) has
given evidence that his hospital had informed about this
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62 Appeal 153/99 groupbirth to Municipal Corporation Amarawati. It is suggested
during his cross-examination that the entry cannot be
read as for the second female child as there is no specific
mention that whether it was a second female child or
second male child. However, it was an entry of a female
child. The oral evidence given by PW-4 and her mother
can be considered in that regard. Some cross-examination
is on the point that each entry was not signed by the
person who had maintained the register but this
circumstance cannot go to the root of the matter as it was
the register regularly maintained by the hospital and the
information was supplied on the basis of this entry to the
local body.
83) Dr. Rajkumar Dehankar (PW 15) is examined to
prove the entry of birth date made in the record of
Municipal Corporation Amarawati. This witness was in
charge of the birth and death register maintained under
the Act of 1969. This witness had brought original register
to the Court which includes the period 5-7-1979 to 14-6-
1979. He has given evidence that the entry at Sr. No.2131
of this register is in respect of female child and the name
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63 Appeal 153/99 groupof the father of the female child was Ramgopal Mor and
the name of the mother was Kiran. Date of birth was
shown as 12-3-1979 and the daughter was born in
Dhapibai Hospital, Amarawati. Extract of entry is proved
at Exhibit 135.
84) In the cross-examination of PW-15 it is brought
on record that in Column No.6 of the register initially the
name of the hospital where the child was born was
mentioned as "Ji.Stri.Ru." and the said name was
mentioned even in columns 21 and 22. It is brought on
record that subsequently this name was erased and the
name of Dhapibai Hospital mentioned. His evidence shows
that the entries from Sr. Nos.2116 to 2131 were in respect
of the information supplied by Dhapibai Hospital and by
mistake entries at Sr. Nos.2125 to 2131 were mentioned
as the entries made on the basis of information supplied
by "Ji.Stri.Ru". He has given evidence that subsequently
correction was made to show that these entries were also
made on the basis of information supplied by Dhapibai
Hospital. These entries are very old and showing the same
date of birth viz. 12-3-1979. This record is consistent with
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64 Appeal 153/99 groupthe other record, of Dhapibai Hospital which is already
mentioned. In the record of the hospital surname Agrawal
is also shown when the surname Mor was shown. Much
was argued on the circumstance that the entry was made
mainly for Mor and in the record of local body also the
surname is shown as Mor and there is possibility of
interpolation and manipulation. This submission is not at
all acceptable. It is very old record and in the evidence of
PW-4 it is brought on record that her uncle's surname is
Mor and her family is using the surname as Agrawal. It is
not possible to hold that this entry does not pertain to the
birth of PW-4. The aforesaid correction in the record of
local body was made for many entries like Nos.2125 to
2131 and so it does not look probable that the correction
was made only for the present matter. Thus, the record of
date of birth shows that at the relevant time, in July 1994,
the age of PW-4 was below 16 years.
85) Defence has examined Kirandevi (DW-1) mother
of PW-4. She has stated in the evidence that she has four
daughters and one son. She has given specific evidence
that Rekha is elder issue and PW-4 was born to her after
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65 Appeal 153/99 groupRekha. Though she had tried to say that PW-4 was aged 22
years on the date of deposition i.e. 13-10-1998, the
particulars given by her about the age of her other issues
show that she has falsely stated the age of PW-4 as 22
years. The son was not her second issue and he was 5 th
issue. Her younger daughter was aged about 13 years on
the date of deposition. She has admitted in the cross-
examination that her marriage with Ramgopal took place
24 to 25 years prior to the date of the deposition and the
first issue Rekha was born after 4 to 5 years of the
marriage. She has specifically admitted that PW-4 was
born 3-4 years after the birth of her first issue Rekha.
These admissions clearly show that in the examination-in-
chief she has falsely stated that the age of PW-4 was 22
years. This evidence of the defence shows that the age of
PW-4 as per the evidence of mother was also below 16
years at the relevant time. The circumstance that even the
mother has given evidence in support of the case of the
accused needs to be kept in mind as there are allegations
against some accused and police officers that due to
influence of the accused persons the investigating agency
did not care to correctly record the versions given by the
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66 Appeal 153/99 grouptwo victim girls. This point will be again touched while
considering the other challenge of the defence.
86) Dr. Jaishri (PW-13) has given opinion with
regard to the age of PW-4. She examined PW-4 on 8-7-
1994. The examination was both clinical and radiological.
Her evidence shows that she had taken X-ray plates to
collect the factual data (Exhibit-128). She has given
evidence that as per radiological examination head of
radius was found fused but the lower end of radius was
not fused and the process of fusion had not started. She
has deposed that the X-ray of ilia-crest showed that ilia-
crest had appeared but it was not fused and the process of
fusion had not started. This data, information used for
ascertaining the age and the chart supplied by the Civil
Surgeon in that regard was referred by her and on the
basis of clinical and radiological examination she has
given opinion that age of PW-4 was between 14 and 16
years and it was including margin of error. She has given
specific opinion that the age of PW-4 was not more than
16 years on the date of examination.
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67 Appeal 153/99 group87) PW-5 has given evidence that she was born at
Hiwarkheda, Tahsil Shindkheda-Raja, District Buldhana on
10-7-1981. She has given evidence that her parents live at
Hiwarkheda though she was living at Partur with her
mother's sister. She has given evidence that she received
education in Lal Bahadur Shastri High School Partur up to
6th Standard.
88) Arjun Kukde (PW-21) has given evidence that
PW-5 was student of his school Lal Bahadur Shastri High
School, Partur, District Jalna. The witness is headmaster of
the school and he had brought the original register of the
school. He had also brought admission application in
respect of PW-5. He has given evidence that prior to
giving admission to PW-5 in his school she was a student
of Central Primary School Partur and along with the
admission application she had produced transfer
certificate issued by the previous school (C.P.S.). PW-21
has given evidence that PW-5 was admitted in his school
on 25-6-1991. Original transfer certificate was also
brought by this witness to the Court and the record is
given Exhibits 229, 230, 231 and 232. The oral evidence
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68 Appeal 153/99 groupand the record show that the date of birth was informed
as 10-7-1981. This witness is cross-examined extensively
to ascertain as to who had admitted PW-5 in the school.
Though from the signature appearing on the admission
application the name of the person cannot be determined,
there is evidence of PW-5 to the effect that at Partur sister
of her mother and husband of the said sister of her mother
were her guardians and they had admitted her in the
school. This is also very old record and it is not possible
that false record was created by this school only for the
purpose of present matter.
89) The defence has examined Karbhari Nagre
(DW-2) for proving the record of Pre-Secondary School of
Hiwarkheda in respect of PW-5. He has given evidence as
in charge Headmaster that PW-5 was admitted in first
standard on 2-7-1985 and her date of birth was shown as
20-3-1979. Even if the date is accepted as it is, inference
is not possible that at the relevant time, in July 1994, PW-
5 had crossed the age of 16 years. The defence has
examined one Pandurang Nagre (DW-3) who is the
husband of the aunt on maternal side of PW-5. His
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69 Appeal 153/99 groupevidence is of no use as his evidence shows that PW-5 was
living with his family for about 10 to 11 years from
childhood. In the cross-examination made by the Special
Public Prosecutor, he has given specific admission that
PW-5 was living with him as the financial condition of her
parents was not good. He has given evidence that date of
birth of PW-5 is 10-7-1981 and she was admitted in Lal
Bahadur Shastri High School at Partur.
90) Dr. Jaishri (PW-13) has given evidence that she
examined PW-5 clinically and radiologically on 7-7-1994.
She has given evidence that in radiological examination
she found that fusion of lower end of radius had not
started though on the head of radius there was fusion. She
has given evidence that X-ray plate of PW-5 showed ilia-
crest but the process of fusion had not started. She has
given evidence that she used this data and on the basis of
clinical and radiological examination she has given
opinion that age of PW-5 was between 14 and 16 years.
She has given evidence that this opinion includes margin
of error and in any case the age of PW-5 was not more
than 16 years on the date of her examination.
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70 Appeal 153/99 group91) The provisions of Birth and Death Registration
Act, 1969 quoted already, and the provision of section 35
of the Evidence Act show that even without examining the
official, certified copy of entry made in the birth register
is admissible in evidence. Further, when there is such
record giving specific date of birth, such record needs to
be given precedence over the school record if there is
inconsistency between the two records. Similarly, the
opinion given by doctor on age if it is inconsistent,
precedence needs to be given to the record of birth date
prepared under the aforesaid Act. In the present matter,
the medical evidence is also consistent with oral and
documentary evidence and no probability is created in this
matter that age of PW-4 or PW-5 was more than 16 years
at the relevant time.
92) Evidence of Dr. Jaishri on opinion as expert
under section 45 of Evidence Act is challenged by
submitting that she is not Radiologist and the X-rays were
not taken by Radiologist. It was also argued that Dr.
Jaishri used a chart given by civil hospital for ascertaining
the age in which tests/data was given. There is no force
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71 Appeal 153/99 groupin both the challenges. Evidence of Dr. Jaishri shows that
under her instructions and supervision the X-rays were
taken by the technician. She has completed post graduate
course after completing MBBS. The trial Court has rightly
observed that the chart used by this witness has the basis
of the chart given in Modi's book on medical
jurisprudence in Edition 21. Thus, it cannot be said that
Dr. Jaishri committed error when she used the chart for
giving her opinion on the basis of radiological
examination. Evidence of Dr. Jaishri shows that no other
criteria or tests were confronted by showing the book of
another expert. Thus, no probability is created that the
opinion given by the doctor is not correct. To challenge
the evidence of expert like doctor the opinion of the other
expert needs to be confronted and then the matter needs
to be left to the court to decide the point. When the
opinion is based on some data and the Court is satisfied
with the opinion given by such expert, it becomes the
opinion of the Court. In view of these circumstances it is
not possible to interfere in the finding given by the trial
Court on the age of PW-4 and PW-5 which is to the effect
that both the victim girls had not completed 16 years of
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72 Appeal 153/99 groupage at the relevant time. This Court holds that the age of
both the victims was below 16 years at the relevant time.
93) Both the sides placed reliance on some
reported cases. In the case reported as (2011) 2 SCC 385
(Alamelu v. State), there was inconsistency in the opinion
given by the medical officer which was on clinical
examination and the opinion given by Radiologist. The
Radiologist had given higher age and the age was given
approximately. The Apex Court considered the possible
margin of error. Further the school record was not proved
properly. Thus, the facts of the reported case were
altogether different. Similarly, in the case reported as
(2016) 1 SCC 696 (State of M.P. v. Munna) the facts were
different. There was no record of birth register. Mother's
evidence on factual aspect was not found convincing and
the Court held that the opinion of the Radiologist was
necessary, which was not available.
94) In the case reported as (2010)1 SCC 742 (Sunil
v. State of Haryana) on which reliance was placed by the
counsel for the accused, the facts were different. The
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73 Appeal 153/99 groupprosecutrix was not certain about her age and there was
no record on the basis of which she had given age. In that
case the doctor had clinically examined the prosecutrix
and had sent the prosecutrix to Dental Surgeon/
Radiologist for verification but such verification was not
done. Thus, the doctor who had done clinical examination
was also not sure about the opinion which was formed on
the basis of clinical examination. In view of these
circumstances, the Apex Court held that there was
probability that the age of the prosecutrix was not below
16 years. However, the Apex Court made it clear that
there is no rule as such that such examination needs to be
done in every case.
95) In the case reported as 2010 Cri.L.J. 192 (State
of H.P. v. Jarnail Singh) , in view of the facts and
circumstances of that case the school record and the
Panchayat record was not believed by the Court. The
learned Additional Public Prosecutor placed reliance on
the case reported as (2015) 7 SCC 773 (State of M.P. v
Anoop Singh). In this case the importance of the
documents in respect of date of birth is discussed by the
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74 Appeal 153/99 groupApex Court. It is laid down by the Apex Court that such
record has the precedence over medical opinion. There
cannot be dispute over this proposition.
The Other challenges of defence to the evidence and
consideration of the evidence on the offences :96) The trial court has convicted accused Nos.1 to
3 for offence of kidnapping punishable under section 366
read with 34 of the IPC as they had taken PW-4 and PW-5
from Talreja Talkies to banana garden and then to the
brook with common intention to commit offence of rape.
They are convicted for offence of gang rape punishable
under section 376(2)(b) of the IPC for committing offence
of gang rape at banana garden and at Pingad-Gad-Nala.
Accused Nos.1 to 3 are convicted for offence punishable
under section 366-A read with 34 IPC for taking the victim
girls from Pingad-Gad-Nala to Visawa Lodge as they were
virtually supplying PW-4 and PW-5 for committing offence
of rape to accused Nos.6 and 7. In Visawa Lodge, accused
Nos.6 and 7 committed rape and they could do it due to
the assistance and common intention of accused Nos.1 to
4 and so all of them are convicted for the offence of
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75 Appeal 153/99 groupcommission of rape committed against PW-4 and PW-5 by
accused Nos.6 and 7. Accused Nos. 1 to 4 are convicted
for offence punishable under section 366/34 as they had
taken PW-5 from Visawa Lodge to the school campus with
the same intention. Accused Nos.1 to 4 did commit
offence of gang rape in the campus of the school against
PW-4 and PW-5 and so they are convicted for such
offences committed in the campus of the school.
97) The evidence given by PW-4 and PW-5 as
against accused Nos.1 to 3 is already quoted. The cross-
examination of these two victim girls made by defence
counsels shows that it was with the object to bring on the
record that these two girls had taken initiative and there
was consent of the victim girls to the acts done by accused
Nos. 1 to 3. To the direct evidence there is corroboration
of other circumstances which is already discussed and due
to the act of these accused of taking the victim girls from
the theatre to banana garden, they are liable for offence
punishable under section 366 read with 34 of the IPC.
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76 Appeal 153/99 group98) There is specific evidence as against accused
Nos.1 to 3 that one after other, they committed rape on
PW-4 and PW-5 first at banana garden and then at the
aforesaid brook. The evidence given by the two victim
girls and the tenor of the cross-examination show that
there is ring of truth in the evidence given by the two
victim girls as against accused Nos.1 to 3. On the basis of
this evidence the trial Court has convicted accused Nos.1
to 3 for the offence of gang rape committed at the two
places and in view of the circumstance that the two victim
girls had not completed 16 years of age, the defence of
consent taken by the accused cannot be considered.
99) PW-4 and PW-5 have given specific evidence as
against accused Nos.6 and 7 on the incident of rape which
took place in Visawa Lodge. The evidence and the record
show that accused Nos.1 to 4 were very much present in
the lodge to facilitate the offence committed by accused
Nos.6 and 7 and only due to accused Nos.1 to 4, the
accused Nos.6 and 7 could commit the offence.
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77 Appeal 153/99 group100) PW-4 and PW-5 have given evidence that
accused Nos.1 to 4 had taken them to the campus of the
school and there they were again raped by accused Nos.1
to 4. The role played by each accused is described by PW-
4 and PW-5. These four accused raped the two victim girls
by dividing the two victim girls amongst themselves in the
campus of the school and thus there was common
intention of all the accused on that occasion also.
101) The previous statements of PW-4 and PW-5
were confronted to them by the defence counsels during
their cross-examination. Some omissions are pointed out
and some inconsistent statements, contradictions were
also pointed out to these two victim girls. The submissions
and the record show that the first statement of PW-5 was
recorded on 7-7-1994 and in that statement, which was
treated as F.I.R., the incidents of banana garden, the
brook, the lodge and the school campus were not
mentioned. The grievance against police officer Khan is
already mentioned. However, in the F.I.R. of PW-4 which
came to be recorded on 8-7-1994 (Exhibit-51) the
incidents of banana garden, the brook, the lodge and the
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78 Appeal 153/99 groupschool campus are mentioned by PW-4. It can be said that
there is no corroboration of the so called F.I.R. (Exhibit
30) given by PW-5 to P.S.I. Khan of Railway Police Station.
The evidence of Khan and even of Yeshwant shows that
they were under misconception that these incidents had
not taken place within their local jurisdiction, they were
not entitle to record the reports and they were not
entitled to make the investigation. They could have
recorded the versions in respect of all the incidents of
rape and they could have contacted their superior officers
for taking further steps. It can be said that subsequently
such steps were taken and Chalak, C.P.I., who had
jurisdiction over all these spots was entrusted with the
investigation of all the crimes. Subsequently, the
investigation of both the matters was handed over to
Vyavahare (PW-22) Police Inspector of CID Crimes and the
same investigating officer filed charge sheets in both the
matters.
102) Much was argued on the circumstance like
absence of some incidents in the previous statements of
the two victim girls and also some inconsistencies in the
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79 Appeal 153/99 groupprevious statements in relation to the substantive
evidence. In a case like present one it is necessary to
keep in mind for Courts that when many police officers
record the statements and there is some misconception as
mentioned above, then it becomes the duty of the Court to
find out the truth. Statements under section 164 of the
Cr.P.C. were also recorded many times and those
statements are also confronted to PW-4 and PW-5 during
cross-examination.
103) The two victim girls were from very poor
families, they were new in Parbhani and they had no
support of anybody in Parbhani. It appears that when the
social media took up the matter, the things took proper
turn and the authority started to look into the matter. The
evidence of last investigating officer shows that even
question was raised in respect of these incidents in State
Legislative Assembly. When substantive evidence is there,
which is corroborated by circumstances and it is possible
for the Court to draw inference about the guilt of the
accused, in spite of existence of circumstances like
omissions of aforesaid nature and some inconsistencies,
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80 Appeal 153/99 groupthose omissions and inconsistencies cannot go to the root
of the matter. Police officers acted as per their own
notions in the present matter. Even the learned Judicial
Magistrates did not record the statements in respect of all
incidents. On the basis of the statements recorded by the
learned Judicial Magistrates, it can be said that they had
not taken care to go through the statements already given
by the victim girls to police. When Judicial Magistrate
records statements of such girls under section 164 Cr.P.C.,
it is the duty of the Judicial Magistrate to ascertain the
nature of allegations, disclosures already made by the
witnesses and then elicit information from such witnesses
by putting questions if he feels that for any reason the
witnesses are not disclosing few things which were
already disclosed. Thus, most casual approach was
adopted by the learned Judicial Magistrates and for the
reasons already given not much can be made out due to
the circumstance that even in the statements under
section 164 Cr.P.C. some incidents were not mentioned by
the two victim girls. What is important in the case like
present one is the substantive evidence and when on the
basis of the evidence available, inference of the guilt is
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81 Appeal 153/99 grouppossible, the Court should not hesitate to base conviction
on such evidence in spite of existence of the
circumstances noticed in the present matter.
104) It is true that in the first disclosure PW-5 had
not mentioned the incidents involved in the present
matter but PW-4 did disclose the incidents when her
report came to be recorded by other police officer.
105) The learned Senior Counsel for the accused
persons placed reliance on a landmark case reported as
AIR 1959 SC 1012 (Tahsildar Sing v. State of U.P.) . The
learned Senior Counsel submitted that due to variations in
the versions given to the police from time to time and the
omissions and contradictions proved by the defence in
relation to the previous statements, the two victim girls
could not have been believed. The Apex Court has made
observations in this regard at paragraphs 11 and 12 and
they are as under.
"11. It is, therefore, seen that the object of the
legislature throughout has been to exclude the
statement of a witness made before the police
during the investigation from being made use of
at the trial for any purpose, and the amendments::: Uploaded on - 22/11/2017 24/11/2017 14:01:13 :::
82 Appeal 153/99 groupmade from time to time were only intended to
make clear the said object and to dispel the cloud
cast on such intention. The Act of 1898 for the
first time introduced an exception enabling the
said statement reduced to writing to be used for
impeaching the credit of the witness in the
manner provided by the Evidence Act. As the
phraseology of the exception lent scope to defeat
the purpose of the legislature, by the Amendment
Act of 1923, the section was redrafted defining
the limits of the exception with precision so as to
confine it only to contradict the witness in the
manner provided under section 145 of the
Evidence Act. If one could guess the intention of
the legislature in framing the section in the
manner it did in 1923, it would be apparent that
it was to protect the accused against the user of
the statements of witnesses made before the
police during investigation at the trial
presumably on the assumption that the said
statements were not made under circumstances
inspiring confidence. Both the section and the
proviso intended to serve primarily the same
purpose i.e. the interest of the accused.12. Braund J., in Emperor v. Aftab Mohd. Khan, AIR
1940 All 291, gave the purpose of S.162 thus at
p.299:"As it seems to us it is to protect accused
persons from being prejudiced by statements
made to police officers who by reason of the
fact that an investigation is known to be on foot
at the time the statement is made, may be in a
position to influence the maker of it and, on the
other hand, to protect accused persons from the
prejudice at the hands of persons who in the
knowledge that an investigation has already
started, are prepared to tell untruths:.A division Bench of the Nagpur High Court in
Baliram Tikaram v. Emperor, AIR 1945 Nag 1,::: Uploaded on - 22/11/2017 24/11/2017 14:01:13 :::
83 Appeal 153/99 groupexpressed a similar idea in regard to the object
underlying the section, at p.5, thus :"The object of the section is to protect the
accused both against over-zealous police
officers and untruthful witnesses.:The Judicial Committee in Pakala Narayana Swami v.
Emperor, 66 Ind App. 66 : (AIR 1949 PC 47), found
another object underlying the section when they said
at p.78 (of 1nd App) : (at p.51 of AIR):"If one had to guess at the intention of the
Legislature in framing a section in the words
used, one would suppose that they had in mind
to encourage the free disclosure of information
or to protect the person making the statement
from a supposed unreality of police testimony
as to alleged statements or both."Section 162 with its proviso, if construed in a manner
which we will indicate at the later stage of the
judgment, clearly achieves the said objects."106) There is no dispute over the propositions made
in the aforesaid case by the Apex Court. When the
investigating agency does not act competently or there
are other reasons and the Court finds that the substantive
evidence given by the victim in a rape case, is in respect
of many incidents and some of the incidents were not
recorded in the first recorded disclosure which was either
recorded under section 154 or section 162 of the Cr.P.C., it
becomes the duty of the Court to consider all surrounding
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84 Appeal 153/99 groupcircumstances. The circumstance that the disclosures
were made many times to many police officers needs to be
kept in mind. The circumstance that it is the case of gang
rape and the prosecutrix must have been in shock needs
to be kept in mind by the Court. The circumstance that in
respect of every incident of rape separate registration of
the crime is possible under section 154 of the Cr.P.C.
needs to be kept in mind and crime can be registered in
respect of every different disclosure made in respect of
cognizable offence. When two or more victim girls are
involved in a case like the present one, this circumstance
also needs to be kept in mind by the Court. It is practically
not possible that two victim girls will give similar versions
on all the incidents when their statements are recorded by
different police officers. In view of the provision of Section
154 Cr.P.C., the so called omissions or contradictions need
to be ascertained in relation to the first disclosure made in
respect of that incident only by the Court. If the Court is
satisfied that the incident which does not find place in the
first disclosure, was disclosed in the subsequent
statement and the Court is convinced that the other
incident which was disclosed in the subsequent disclosure
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85 Appeal 153/99 groupdid take place, the Court cannot hold that the omission of
such incident in the first disclosure is fatal and the
substantive evidence in respect of that incident needs to
be discarded. What is said about Section 154 Cr,.P.C. can
be said in respect of Section 162 of the Cr.P.C. also and
when the Court is satisfied that the incident disclosed in
the subsequent statement recorded under section 162 of
Cr.P.C. did take place, not much can be made out from the
circumstance that in the first disclosure which was
recorded either under section 154 or 162 Cr.P.C., such
incident was not disclosed. The procedure laid down for
proving contradictions and omissions with reference to
section 145 of the Evidence Act as given by the Hon'ble
Apex Court in the case of Tahsildar Sing (cited supra)
needs to be followed in respect of each incident and in
relation to the disclosure made about that incident first
time before the police or even under section 164 of the
Cr.P.C. If that is not done the purpose behind the
provisions of Sections 154 and 164 of Cr.P.C. will be
defeated. If that is done, the purpose of provision of
section 162 of the Cr.P.C. mentioned above will also get
served.
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86 Appeal 153/99 group107) In the case reported as (1999)2 SCC 126 (Paras
Yadav v. State of Bihar) the Apex Court has discussed the
effect of such omissions in the F.I.R. due to investigating
agency and the procedure which is required to be
followed by the Court. The Apex Court used the
observations made by it in the past in the case of Ram
Bihari Yadav v. State of Bihar reported as (1998) 4 SCC
517. The observations are as under:
"In such cases, the story of the prosecution will have
to be examined dehors such omissions and
contaminated conduct of the officials otherwise the
mischief which was deliberately done would be
perpetuated and justice would be denied to the
complainant party and this would obviously shake
the confidence of the people not merely in the law-
enforcing agency but also in the administration of
justice."The law laid down by the Apex Court in this reported case
is considered by this Court while making the aforesaid
observations.
108) The learned Senior Counsel for the accused
persons placed reliance on another case reported as AIR
1960 SC 490(1) (State of Delhi v. Shri Ram Lohia) . This
case is on the point of use of statement recorded under
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87 Appeal 153/99 groupsection 164 of the Cr.P.C. It is laid down that the contents
of such statement cannot be used as substantive evidence.
There is no dispute over this proposition. In the case
reported as AIR 2013 SC 651 (R. Shaji v. State of Kerala)
the Apex Court has made following observations with
regard to duty of the Magistrate who is recording
statement under section 164 of the Cr.P.C. and the
observations are as under :-
"In a case where the Magistrate has to perform the
duty of recording a statement under S.164 Cr.P.C.,
he is under an obligation to elicit all informations
which the witness wishes to disclose, as a witness
who may be an illiterate, rustic villager may not be
aware of the purpose for which he has been brought,
and what he must disclose in his statements under
S.164 Cr.P.C. Hence, the Magistrate should ask the
witness explanatory questions and obtain all
possible information in relation to the said case.So far as the statement of witnesses recorded under
S.164 is concerned, the object is twofold; in the first
place, to deter the witness from changing his stand
by denying the contents of the his previously
recorded statement, and secondly, to tide over
immunity from prosecution by the witness under
S.164. Statement recorded under S.164 Cr.P.C., can
be relied upon for the purpose of corroboration of
statements made by witnesses in the Committal
Court or even to contradict the same."In view of the aforesaid observations and the object
behind provision of section 164 Cr.P.C., the circumstance
that some incidents were not mentioned by the victim girl
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88 Appeal 153/99 groupin the statement recorded under section 164 Cr.P.C.
cannot make much difference and that circumstance
cannot give benefit to the accused if the Court is satisfied
that the other incidents which were not mentioned in the
statement under section 164 Cr.P.C. did take place.
109) If the evidence of the investigating officers is
considered to ascertain as to whether the two victim girls
had disclosed all the incidents of the present matter it can
be said that in supplementary statement PW-5 did disclose
the incidents of the present matter also. That is why many
statements of the two victim girls came to be recorded by
different officers. It can be said that first time Yeshwant
made an attempt to see that two separate F.I.R.s are
recorded. Then Chalak (PW-20) made more inquiry after
considering the entire record and he also recorded
supplementary statements of PW-4 and PW-5.
110) To the substantive evidence of PW-5 there is
corroboration of medical officer, Dr. Jaishri (PW-13). She
found recent tear of hymen in case of PW-5. This witness
was extensively cross-examined by defence counsels but
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89 Appeal 153/99 groupshe stood to the test of the cross-examination. PW-5 was
examined on 7-7-1994 and PW-4 was medically examined
by Dr. Jaishri (PW-13) on 8-7-1994. The last incident took
place on the night between 5-7-1994 and 6-7-1994 but in
that incident only PW-5 was involved. That incident is part
of other sessions case.
111) Dr. Jaishri noticed bleeding from cervical OS.
On PV examination speculum tenderness was noticed and
vagina was admitting only one finger in the case of PW-5.
Dr. Jaishri noticed that there was posterior fourchette
congested and redness and she noticed that hymen was
congested. She noticed vagina was admitting one finger
with minimum pains but bleeding through cervical was
present. The record prepared by this witness is consistent
with her oral evidence. Though there is possibility that
PW-4 was observing menstruation, evidence of Dr. Jaishri
in respect of sexual intercourse cannot be ignored. During
cross-examination, Dr. Jaishri has admitted that possibly
there was menstruation of PW-5 also. In case of PW-5 the
circumstances were strong and rupture of hymen was
fresh. In the first incident of rape, accused Nos.1 to 3
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90 Appeal 153/99 groupwere involved and other accused were involved in the
subsequent incidents. That cannot give any benefit to
accused Nos.4,6 and 7 as there is substantive evidence
against them and there are other circumstances. This
Court has no hesitation to hold that the medical evidence
has given necessary corroboration to the versions of PW-4
and PW-5.
112) At Exhibit 204 there is CA report in respect of
clothes of PW-5 (Salwar, Kurta and Jangiya). Jangiya was
taken over on the next day. Salwar and Kurta were taken
over on 7-7-1994. Blood was present on these clothes and
it was of Group "A". PW-5 has the same blood group. It is
not brought on record in her evidence that she was
observing menstruation. In view of these circumstances
and as the clothes were taken over immediately after
making of the disclosure by PW-5 and that too by PSI
Khan against whom there are allegations, this Court holds
that there is no reason to disbelieve this circumstance.
The hymen had fresh tear, it was congested and so this
circumstance becomes more important.
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91 Appeal 153/99 group113) There is evidence of seizure of clothes of
accused Nos.1 to 4 who were arrested almost immediately
i.e. on 8-7-1994. The clothes of accused Nos.6 and 7 were
taken over after many days as they were absconding. It is
already observed that in respect of the seizure of the
clothes of accused Nos.1 to 4 there is only evidence of the
police officer. Further, PW-4 was admittedly observing
menstruation at the relevant time. In view of these
circumstances, this Court holds that the evidence in
respect of presence of blood stains on the clothes of some
of these accused and also on the clothes of PW-4 cannot
be of much importance in the present matter. Some bed-
sheets were taken over from the lodge and the
panchanama at Exhibit 234 shows that blood was found on
the bed-sheets. Bed-sheets were also taken over after few
days and as it is a lodge this circumstance cannot be
treated as clinching circumstance.
114) In respect of the challenge to the evidence
given on T.I. parade it can be said that there is substance
in the contentions made by the learned counsel for the
accused that there was no strict compliance of the
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92 Appeal 153/99 groupguidelines given in paragraph 16 of Chapter I of the
Criminal Manual of this Court. It is true that on both the
occasions the number of dummy persons used by Namdeo
Jadhav (PW-16) was less than the number expected in the
guidelines. There is no record to show that dummy
persons had appearance which was similar to the accused
persons. However, the evidence of Namdeo Jadhav (PW-
16) shows that he was satisfied about the identification of
the accused from the two victim girls in both the T.I.
parades.
115) It is true that accused Nos.6 and 7 were
identified as associates by the two victim girls but the fact
remains that they have given substantive evidence against
these accused that they had raped them in Visawa lodge.
accused Nos.1 to 4 were arrested almost immediately. As
accused Nos.1 to 4 were in the company of the two victim
girls for about 12 hours there was no problem for PW-4
and PW-5 to identify them. It can be said that immediate
arrest of these accused persons is also a circumstance
showing that on the basis of information given by the two
victim girls, police could easily trace out these accused.
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93 Appeal 153/99 group
Names of accused Nos.6 and 7 were also transpired and
the evidence is given that they were absconding for the
aforesaid period.
116) On the point of evidence given on T.I. parade,
learned Senior Counsel for the appellants has placed
reliance on some observations made by the Apex Court in
the case reported as (2007) 3 SCC 755 (State of Goa v.
Sanjay Thakran) and it is on the point of evidentiary value
of the test identification parade. The procedure which
needs to be followed for conducting test identification
parade is also discussed. In that case, the Courts below
had declined to place reliance on the evidence of test
identification parade due to the circumstances of that
case. The Apex Court held that the Courts below had not
committed error in rejecting that evidence. That was done
in view of the facts and circumstances of that case.
Husband and wife were involved as offenders and they
were placed in the same test identification parade with six
dummy for each. The Court had held that this was
contrary to the provision of paragraph 16(2)(h) of the
Criminal Manual of Bombay High Court and the Courts
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94 Appeal 153/99 groupbelow had rightly rejected this evidence. It was held that
the officers who conducted the test identification parade
did not act fairly. It was held that it was necessary in that
case to hold two separate test identification parades by
using different persons for each parade. It was case filed
for offences punishable under sections 302, 392, 120-B,
34 etc. of Indian Penal Code.
117) On the point of evidentiary value of the test
identification parade, the learned APP has placed reliance
on the observations made by the Apex Court in the case
reported as (2000)1 SCC 471 (State of Maharashtra v.
Suresh). The Apex Court has made observations as
under :
"Identification parades are not primarily meant for the
court. They are meant for investigation purposes. The
object of conducting a test identification parade is
twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is
really the one who was seen by them in connection
with the commission of the crime. Second is to satisfy
the investigating authorities that the suspect is the
real person whom the witnesses had seen in
connection with the said occurrence. So the officer
conducting the test identification parade should
ensure that the said object of the parade is achieved.
If he permits dilution of the modality to be followed in
a parade, he should see to it that such relaxation
would not impair the purpose for which the parade is
held. The safeguards adopted in this case by the::: Uploaded on - 22/11/2017 24/11/2017 14:01:14 :::
95 Appeal 153/99 groupExecutive Magistrate were quite sufficient for
ensuring that the parade was conducted in a
reasonably foolproof manner."The observations made by the Apex Court in the case
cited supra show that facts and circumstances of each and
every criminal case are always different and in one case in
view of the facts of that case the Court may be inclined to
hold that the evidence is reliable and it can be used as a
corroborative piece of evidence but in other case the
Court may not come to that conclusion. Further, peculiar
circumstances in the case of rape or gang rape need to be
kept in mind by the Court at the time of appreciation of
such evidence. In murder case the witnesses may not have
that opportunity to see the assailants from close distance
for longtime. In case of rape or gang rape, the victim girl
always gets the opportunity to see the accused from
close distance and it is very difficult for such victim girl to
forget such person. In view of the object behind the test
identification parade the satisfaction of the officer who
conducted test identification parade about capacity of the
witness to identify the offender is important. Further at
the end, on the basis of the substantive evidence of such
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96 Appeal 153/99 groupwitness and other evidence which can be used as check
and counter check the Court decides the matter. Thus, not
much can be made out of the irregularity pointed out in
the procedure followed in the present matter for
conducting the test identification parades. Even if that
evidence is ignored, other evidence, evidence of
identification in court needs to be believed due to other
circumstances of the case.
118) The discussions of the evidence and the
reasoning given by the Judge of the trial Court show that
the aforesaid objections were taken into consideration.
The trial Court has observed that even if the evidence on
T.I. parade is ignored, there is convincing and sufficient
evidence of PW-4 and PW-5 on the identification of the
accused persons by PW-4 and PW-5 in the Court and even
if it is treated as the first time identification after the
incident, that evidence needs to be believed. This Court
holds that in the present matter, even the evidence on T.I.
parade can be used as corroborative piece of evidence.
The procedure is given as guidelines and non compliance
of the procedure strictly as per the guidelines, cannot be a
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97 Appeal 153/99 groupground for discarding the evidence on T.I. parade in each
and case.
119) The prosecution has proved in the present
matter that age of the two victim girls was below 16 years
at the relevant time. As per the old provision of section
375, IPC for considering the defence of accused of
possible consent from PW-4 and PW-5 it was necessary to
show that both the victim girls had crossed age of 16
years. The learned counsel for the appellants-accused has
placed reliance on some observations made in the
landmark case of the Apex Court in S. Varadrajan v. State
of Madras, reported as AIR 1965 SC 942. These
observations were entirely on different point and there is
interpretation of the term like "taking" used in section 361
of the IPC. This ratio cannot be considered when the
Court is considering the case of gang rape. When there is
case of rape, the Court is not expected to consider the
case of defence of consent when the age of the victim girl
was below 16 years. The accused cannot take defence that
due to any reason he was under impression that the victim
girl had crossed 16 years of age. Whenever such incident
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98 Appeal 153/99 grouptakes place Court needs to adhere strictly to the
provisions of law and the Court needs to go with the
presumption that it was up to the accused to take decision
and if he takes the risk, he should be ready to face the
consequences. In the present matter, the defence of
consent was not available to any of the accused in view of
the aforesaid record. Surprisingly, the tenor of the cross-
examination made by the learned counsel for accused
Nos.1 to 3 shows that the questions were put to the victim
girls that the victim girls had taken the initiative in the
matter and one accused had left the place when one
victim girl took initiative and the boy felt that he was not
in a position to do anything. Such suggestions given in
the case like present one can be considered as they are
with regard to the particulars of the incident and they
were positive suggestions to elicit evidence on consent.
120) The accused persons from the present matter
were not known to PW-4 and PW-5. There was no reason
for both these girls to falsely implicate these accused
persons. The aforesaid circumstances, the description
given by the two victim girls of the accused and the
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99 Appeal 153/99 groupcircumstance that they were traced immediately by police
show that there is ring of truth in the versions given by
PW-4 and PW-5.
121) Some argument was advanced by the learned
counsel for the appellants that police did not try to trace
Sham Agrawal, relative of PW-4 and his statement is not
recorded. This lacunae cannot make much difference in
the present matter. Even after tracing of Sham Agrawal,
the things would not have changed. Even if it is presumed
that the girls had left the shelter of their guardians on
their own, they had no relative in Parbhani and they were
wandering in Parbhani even for enjoying, that cannot
make difference in the evidence, the case of the
prosecution. The fact remains that all the accused persons
exploited the situation in which PW-4 and PW-5 had put
themselves in.
122) The learned Senior Counsel for the accused has
placed reliance on a case reported as AIR 1957 SC 614(1)
(Vadivelu Thevar v. The State of Madras) on the point of
appreciation of evidence. Some more cases were cited like
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100 Appeal 153/99 group(2007) 2 SCC 170 (Ramdas v. State of Maharashtra) . At
para 13 of the first case following observations are made
by the Hon'ble Apex Court :
"13. . . . . The first question which the court has to
consider in a case like this, is whether the accused
has been proved, to the satisfaction of the court, to
have committed the crime. If the court is convinced
about the truth of the prosecution story, conviction
has to follow. The question of sentence has to be
determined, not with reference to the volume or
character of the evidence adduced by the
prosecution in support of the prosecution
case. . . . . "In the second case the Apex Court has considered the
defences like delay caused in filing F.I.R. and also the
circumstance where there is the sole testimony of the
prosecutrix. It is observed by the Apex Court that delay
has to be considered in the background of the facts and
circumstances of each case and it is a matter of
appreciation of evidence by the Court. It is further laid
down that conviction on the basis of sole testimony of the
prosecutrix is sustainable where the Court is convinced
about the truthfulness of the prosecutrix and where there
is no circumstance which casts a shadow of doubt over
her veracity. There cannot be dispute over these
propositions. It is further laid down that, however, similar
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101 Appeal 153/99 groupthe circumstances, facts of one case cannot be used as a
precedent to determine the conclusion on the facts in
other. There cannot be dispute over this proposition also.
123) The learned Additional Public Prosecutor has
placed reliance on the case reported as 2010 ALL MR
(Cri) 3326 (S.C.) (Vijay @ Chinee vs. State of M.P.) . In this
case, the Apex Court has laid down that the evidence
under section 3 of the Evidence Act of a witness needs to
be appreciated after considering it as a whole. Minor
discrepancies on trivial matters, which do not affect the
core of the prosecution case, should not be taken into
consideration and they cannot form grounds to reject the
evidence as a whole. There cannot be dispute over this
proposition also. The Apex Court has further laid down
that the circumstance of non resistance on the part of the
prosecutrix because of fear and conduct of the prosecutrix
cannot be held to be unnatural and that conduct would not
amount to consent. The circumstances that prosecutrix
did not know the accused prior to the incident and she
had no reason to enrope the accused falsely need to be
kept in mind and the circumstances that the evidence on
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102 Appeal 153/99 groupthe places where the incidents occurred is convincing also
needs to be kept in mind by the Court in such cases at the
time of appreciation of the evidence of the prosecutrix.
This Court has considered the law laid down in the cases
cited supra while appreciating the evidence of the two
victim girls and this Court has come to the conclusion that
there is no reason to disbelieve the two victim girls.
124) One learned counsel for the accused persons
has placed reliance on two reported cases viz. (2006) 10
SCC 92 (Sadashiv Ramrao Hadbe v. State of
Maharashtra) and 1970 (3) SCC 21 (Ram Murti v. State of
Haryana). On the basis of the observations made in these
two cases it was submitted that the medical evidence does
not corroborate the versions of the victim girls and so the
evidence of the victim girls needs to be rejected. The
proposition in respect of ratio decidendi in criminal case
made by the Apex Court is already quoted. In each and
every case it is upto the Court to decide as to whether the
medical evidence gives corroboration or it is inconsistent
with the ocular versions of the victim girls. This Court has
considered all the aspects in respect of the medical
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103 Appeal 153/99 groupevidence in relation to the facts of the present matter and
this Court has formed opinion that the medical evidence
needs to be accepted as a piece of corroborative evidence.
125) The facts of the aforesaid reported case were
totally different. In each and every criminal case it is up to
the Court to see whether the medical evidence gives
corroboration or it is inconsistent with the ocular versions
of the victim girls. This Court has considered all the
aspects of the present matter and from all angels. This
case can be of no help to the accused persons.
126) The learned Senior Counsel for the accused
persons has placed reliance on some observations made
by this Court in the case reported as 1998(2) Mh.L.J. 64
(Milind Ambadas v. State of Maharashtra) . This Court had
occasion to discuss the provision of section 376(2)(g) of
Indian Penal Code. This Court has mentioned the
necessary ingredients for proving this offence like
common intention, concerted meeting of mind of more
than one person. There is no dispute over the propositions
made by this Court in this case also. The provision of
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104 Appeal 153/99 groupsection 376(2)(g) which was applicable at the relevant
time is as under:
"376(2) Whoever,
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be
for life and shall also be liable to fine.Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term
of less than ten years.Explanation 1.-- Where a woman is raped by one or more
in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to
have committed gang rape within the meaning of this sub-
section.Explanation 2.-- "Women's or children's institution" means
an institution, whether called an orphanage or a home for
neglected women or children or a widow's home or by any
other name, which is established and maintained for the
reception and care of women or children.Explanation 3.-- "Hospital" means the precincts of the
hospital and includes the precincts of any institution for
the reception and treatment of persons during
convalescence or of persons requiring medical attention
or rehabilitation."On this point the latest case of the Apex Court is the case
reported as AIR 2017 SC 2161 (Mukesh v. State for NCT
of Delhi). The Apex Court has laid down that if there is
evidence that more than one accused were involved in
the offence and they were together having common
intention as mentioned in the aforesaid provision, all the
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105 Appeal 153/99 groupaccused can be held guilty even if only one or more of
them had committed the rape. This ingredient is
considered by the trial Court also. In view of this position
of law, not much can be made out due to so called
omissions in the previous disclosure of PW-4 and PW-5.
In this landmark case, the Apex Court has laid down that
dock identification by the prosecutrix can be accepted as
reliable identification in the case of gang rape.
127) The discussion of the evidence of the present
matter and the position of law mentioned above shows
that the trial Court has not committed any error in holding
the appellants guilty of the offence of gang rape and also
for the other offences as quoted above. This Court sees no
reason to interfere in the findings given by the Sessions
Court against the appellants.
128) The learned Additional Public Prosecutor
argued for enhancement of sentence as appeal is filed by
the State for enhancement. Relevant facts and
circumstances of the present matter are already quoted.
They show that there were symptoms of rape on the
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106 Appeal 153/99 groupprivate part but no injuries were found on other parts of
the body of PW-4 and PW-5. Their evidence shows that
they were supplied with food. This Court has already
observed that the accused persons exploited the situation
in which PW-4 and PW-5 had put themselves. The evidence
does not show that there was much violence like assault
on PW-4 and PW-5 though threats were given. Every time
after committing rape the accused allowed the victim girls
to leave the place showing that the accused wanted only
to exploit the situation. The accused persons virtually
used the two victim girls. The incidents are of the year
1994 and this circumstance also needs to be considered in
the present matter. This Court holds that this is not a fit
case where punishment of life imprisonment is warranted.
Sentence of ten years rigorous imprisonment given by the
trial Court is just and proper and interference in the
decision of the trial Court on this point is also not
possible. In the result, all the appeals stand dismissed.
The appellants-accused to surrender to bail bonds for
undergoing sentence.
Sd/- Sd/-
(S.M. GAVHANE, J.) ( T.V. NALAWADE, J.)
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107 Appeal 153/99 group129) 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/-
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