1 Appeals 34, 63 154 of 2014

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No.34 of 2014

Ashabai Kundalik Chate,
Age 28 years,
Occupation : Service,
R/o. Tambwa, Taluka Kaij,
District Beed. .. Appellant.

Versus

The State of Maharashtra. .. Respondent.

—-

Shri. Sudarshan J. Salunke, Advocate, for appellant.

Shri. D.R. Kale, Additional Public Prosecutor, for
respondent.
—-

With

Criminal Appeal No.63 of 2014

Amol @ Balu Sominath Dhakane,
Age 24 years,
Occupation : Labour,
R/o. Sarul, Taluka Kaij,
District Beed. .. Appellant.

Versus

The State of Maharashtra,
Through Police Station Officer,
Police Station Kaij,
Taluka Kaij, District Beed. .. Respondent.

—-

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Shri. V.D. Sapkal, Advocate, holding for Shri. N.R. Pawade,
Advocate, for appellant.

Shri. D.R. Kale, Additional Public Prosecutor, for
respondent.
—-

With

Criminal Appeal No.154 of 2014

Atamaram s/o Daiwan Munde,
Age 25 years,
Occupation : Labour,
R/o. Deogaon, Taluka Kaij,
District Beed. .. Appellant.

Versus

The State of Maharashtra,
Through Police Station Officer,
Police Station Kaij,
Taluka Kaij, District Beed. .. Respondent.

—-

Shri. G.A. Kulkarni, Advocate, holding for Shri. R.S.
Deshmukh, Advocate, for appellant.

Shri. D.R. Kale, Additional Public Prosecutor, for
respondent.
—-

Coram: T.V. NALAWADE
K.K. SONAWANE, JJ.

Judgment reserved on : 27th August 2019

Judgment pronounced on : 23rd September 2019

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COMMON JUDGMENT (By T.V. Nalawade, J.):

1) All the three appeals are filed against the

judgment and order of Sessions Case No.50/2012 which

was pending in the Court of the learned Additional

Sessions Judge Ambajogai. The trial court has convicted

and sentenced accused No.1 Amol and accused No.2

Atamaram for the offence punishable under section 376(g)

of the Indian Penal Code and also for other offences

punishable under the provisions of sections 3 (1)(xii),3(2)

(v) and 4 of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act. Accused No.3 Smt.

Ashabai, who has filed Criminal Appeal No.34/2014, is

convicted and sentenced for offence punishable under

section 306 of the Indian Penal Code. Imprisonment for

life is given to accused Nos.1 and 2 and rigorous

imprisonment for 10 years is given to accused No.3. Both

the sides are heard.

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

these three appeals can be stated as follows:

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3) The prosecutrix was aged about 19 years at the

relevant time. Accused No.1 Amol was aged 22 years and

accused No.3 Atamaram was aged about 23 years.

Accused Nos.1 and 2 together were plying taxi to earn the

livelihood. Accused No.3 was working as Home-guard at

the relevant time.

4) The prosecutrix hails from village Amalache

Barad, Tahsil Kaij, District Beed. She had two sisters and

two brothers. Two sisters were married and at the

relevant time, the married sister Tilotama and her

husband had come to Amalache Barad for short stay on

account of one festival. Accused Nos.1 and 2 hail from

different village and accused No.3 is also of other village.

5) The case was filed in respect of two incidents.

One incident is of gang rape and after few days of the

gang rape, the prosecutrix attempted to commit suicide

and it is contended that accused No.3 had driven her to

commit suicide by creating pressure on her.

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6) The first incident took place on 20-2-2012. On

that day the prosecutrix and her younger sister Babinanda

left home in the morning for visiting temple of Lord Shiva

situated at Uttareshwar Pimpri. The husband of Tilotama

and Tilotama had also left for that place and these 2

sisters met the husband of Tilotama at Uttareshwar

Pimpri. They had a darshan of Lord Shiva. When they

wanted to return to Amalache Barad, the prosecutrix

realised that the money which she had brought for

expenses was exhausted. The husband of Tilotama was

having a small gold ear-ring. He handed over it to the

prosecutrix and asked her to sell it and collect money.

From Uttareshwar Pimpri, the prosecutrix went to Kaij,

Tahsil place, for selling the ear-ring and she reached there

at about 6.30 p.m. As she was a girl aged about 19 years,

she was not having the receipt, the goldsmith from Kaij

refused to purchase the ear-ring. She was having some

cash amount so she went upto Massajog for returning to

Amalache Barad.

7) When the prosecutrix was waiting at Massajog

for some conveyance, accused Nos.1 and 2 came there

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with their jeep. They offered lift to the prosecutrix by

saying that they would reach her to her village. As she had

no money, she boarded the jeep. The accused took the

jeep first to Uttareshwar Pimpri and there the accused

dropped the passengers who were already in the jeep.

8) When they left Uttareshwar Pimpri it was dark,

8.00 to 8.30 p.m. On the way back, accused Nos.1 and 2

took the jeep to one kachha road and they stopped the

jeep there. On that road by giving threats of life, accused

Nos.1 and 2 committed rape on the prosecutrix one after

other. After the incident, they left the prosecutrix to

Uttareshwar Phata. It was night time, nobody was in the

vicinity and the prosecutrix helplessly stayed at

Uttareshwar Phata. As the prosecutrix had not returned to

home, the husband of Tilotama and the parents of the

prosecutrix started taking search for the prosecutrix. At

about 10.00 p.m. the father of the prosecutrix noted that

the prosecutrix was standing at Uttareshwar Phata.

9) At Uttareshwar Phata, the prosecutrix disclosed

the aforesaid incident to her father, Bhagwan. From there

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the prosecutrix and her father went to Kaij police station

for giving report. Her report was recorded on 21-2-2012

in the early hours. She informed that she belongs to

scheduled caste. Crime was registered for aforesaid

offences. The prosecutrix knew the accused from prior to

the date of incident, from her childhood and she had seen

the accused plying the taxi. After registration of the crime,

the clothes of the prosecutrix were taken over by police

under panchanama.

10) With one lady constable and Home-guard

(accused No.3) Kaij police referred the prosecutrix to

Government Hospital for medical examination. In the

Government Hospital, accused No.3 attempted to

convince the prosecutrix by pressurising her not to

proceed with the matter. She disclosed that she can

arrange for payment of Rs. three lakh to her from accused

Nos.1 and 2. She said that the prosecutrix had probably

affair with the accused persons and as she was caught red

handed, she had given the report. She advised the

prosecutrix to settle the dispute and she said that

prosecutrix cannot achieve anything, she will get defamed

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and ultimately she will have to commit suicide. Accused

No.3 expressed that accused Nos.1 and 2 were in a

position to manage everything. The lady Constable had

noticed this incident and on inquiry the prosecutrix

disclosed the incident to the lady constable. On 21-2-

2012, the prosecutrix was medically examined and it was

noticed that there was rupture of hymen and it was

recent.

11) On 25-2-2012, the prosecutrix consumed some

tablets to commit suicide. She was taken to Government

Hospital Kaij for treatment. There her second report was

recorded in respect of the attempt of suicide and she

disclosed the second incident.

12) Immediately after registration of the crime of

commission of gang rape, accused Nos.1 and 2 came to be

arrested. They were also referred for medical examination

to ascertain that they were able to take sexual

intercourse. Accused No.3 also came to be arrested.

Caste certificate of the prosecutrix came to be collected.

Blood samples came to be collected. Accused Nos.1 and 2

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belong to Banjara community, not a scheduled caste or

scheduled tribe. In view of the aforesaid circumstances,

one charge-sheet came to be filed against three accused

for the aforesaid two incidents.

13) In the trial court, the prosecution examined 17

witnesses including the prosecutrix, her father, two

medical officers in respect of the two incidents, police

constable who had noticed the second incident and the

investigating officer. The trial court has believed all these

witnesses.

14) The evidence of the prosecutrix (PW-1) shows

that on 20-2-2012, after having darshan and after making

attempt to sell the gold ear-ring at Kaij she had gone to

Massajog and she was waiting there for conveyance. Her

evidence shows that she had no money. Her other

evidence need not be discussed in detail as the incident

starts from Massajog where the prosecutrix was waiting

for conveyance.

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15) The prosecutrix (PW-1) has given evidence that

at Massajog accused Nos.1 and 2 came in a jeep and they

offered lift to her. She has deposed that she occupied the

third seat, the rear side seat. She has deposed that

accused dropped other passengers at Uttareshwar Pimpri

and then they stated to return from Uttareshwar Pimpri.

She has deposed that when she noticed that the jeep was

not proceeding towards her village Amalache Barad she

questioned the accused but the accused threatened her.

She has deposed that the accused then took their jeep to

kachha road and jeep was stopped at some distance and

there the first incident, rape was committed by accused

No.1 and 2 inside of the jeep.

16) The evidence of the prosecutrix (PW 1) shows

that accused had closed the doors and windows when they

were proceeding towards kachha road and even at kachha

road the doors and windows were closed. According to

her, accused No.1 and 2 took sexual intercourse with her

in the jeep one after the other. Evidence is given that at

that place also she was given threats. She has described

the acts of taking sexual intercourse by accused Nos.1 and

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2 in detail. She has deposed that after commission of the

offence accused No.1 and 2 left her at Uttareshwar Phata

and again threat was given to her not to disclose the

incident to anybody.

17) The evidence of the prosecutrix (PW-1) shows

that after some time her father noticed her at Uttareshwar

Phata and then she disclosed the incident to her father.

She has deposed that her father took her to Kaij Police

Station from that Uttareshwar Phata. Her evidence shows

that they were required to cross some distance on foot to

reach Massajog and there they got one truck in which

they went to Kaij Police Station. The report at Exhibit 25

given by the prosecutrix in respect of the first incident is

duly proved in her evidence.

18) Evidence of Bhagwan (PW-2), father of the

prosecutrix, shows that his daughter Tilotama and her

husband Mohan Kamble and other daughter Babinanda

returned to home from Uttareshwar Pimpri at about 7.00

to 7.30 p.m. but the prosecutrix did not return to home.

He has deposed that search was started for the

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prosecutrix and during the search they first went to Kaij

at about 9.00 p.m. He has deposed that from that spot

they went towards Massajog and Uttareshwar Pimpri also.

He has deposed that he noticed the prosecutrix at

Uttareshwar Phata. He has given evidence that the

prosecutrix appeared in frightened condition and she was

weeping and she disclosed the incident to him. He has

deposed that prosecutrix herself expressed that she

wanted to give report to police and so they went to Kaij

Police Station in a truck. According to the prosecutrix,

(PW-1) the incident took place at lonely place and both the

accused committed rape inside of the jeep. In the

substantive evidence she has described the place as

kachha road. There is evidence of panch witness on spot

panchanama and there is also the evidence of the

investigating officer. That evidence may not matter much

for either side and that evidence can be considered only to

ascertain as to whether it was possible for others to notice

that something suspicious was going on inside of the jeep

there. It was dark time and the incident took place at

about 8.30 p.m. on that day on kaccha road. Nothing is

brought on the record to create probability that there was

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always traffic at such hours on that road. Exhibit 86 and

the evidence of the investigating officer Akhilsh Kumar

(PW-15) shows that as per his instruction Bhujbal (PW-14)

had gone to the spot to prepare the spot panchanama. The

evidence of Bhujbal (PW-14) shows that the spot of offence

was shown by the informant and there he found one

empty beer bottle of Kingfisher in good condition and

other bottle in broken condition. Exhibit 86, the spot

panchanama, is duly proved by the prosecution. This road

leads to village Lavari. This evidence and the evidence of

map of scene of offence which is at Exhibit 71 which is

proved in the evidence of Widekar (PW-10), Circle

Inspector of Revenue Department shows that in the

vicinity of the spot there were only agricultural fields and

at some distance small temples were there but they were

inside of the fields. There were no houses. This road was

not in good condition and the evidence does not show that

they noticed traffic on this road. This evidence shows that

there was no opportunity to the prosecutrix to raise hue

and cry and call for help. Further, she has given evidence

that threats of life were given to her. Much cross

examination is there to create probability that on that day

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she had not raised hue and cry. Due to the nature of

evidence available in the present matter, this Court holds

that it was not possible for a lonely girl to resist or raise

hue and cry as anybody like her would have tried to first

save the life.

19) The evidence of Bhujbal (PW-14), a police

officer shows that the prosecutrix came to the police

station on 20-2-2012 at 11.30 p.m. to give the report. He

recorded the said report. His evidence and the aforesaid

evidence of the prosecutrix and her father show that the

report was given immediately after the incident, at the

first opportunity by the prosecutrix. She had first

disclosed the incident to her father and then she disclosed

the incident to police within two to three hours.

20) It is already observed that both the accused

were known to the prosecutrix. The tenor of the cross

examination made by the defence counsel also does not

show that the accused are disputing the contention of the

prosecution that she knew the accused. The evidence

shows that accused were using the jeep for carrying

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passengers. Due to this circumstance it was easy for

police to trace the accused immediately. Evidence of

Bhujbal (PW-14) shows that he could directly go to the

residential place of the accused, owner of the vehicle and

there he took the accused in custody and the jeep was also

seized there, at village Sarul. Bhujbal (PW-14) has

deposed that after taking accused No.1 in custody he got

information about accused No.2 and then accused No.2

was also taken in custody on that night though from other

place, like Kaij. Panchanama of seizure of jeep Exhibit 85

is duly proved in his evidence and it was prepared at

about 3.10 a.m. of 21-2-2012. Other panchanama of spot

was prepared at about 4.00 to 4.20 a.m. of 21-2-2012.

These circumstances show that police believed the

prosecutrix and action was taken immediately.

21) There is one admission of the prosecutrix

(PW-1) in the cross-examination that when she went to

police station to lodge report accused were present in the

police station. Not much can be made out in favour of the

accused due to this admission as the action was taken

immediately by police and it can be said that even after

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recording the report the prosecutrix was present in the

police station and then the accused were picked up by

police on that night and due to that she gave such

evidence. If there is such admission it was necessary for

the accused to explain as to why at such odd time they

were present in Kaij Police Station. It is not possible that

for any other reason they were called to the police station.

No probability is created by the defence in the evidence of

any witness that any witness had any reason to falsely

implicate accused Nos.1 and 2. The prosecutrix was

unmarried girl and she was doing one course. The

prosecutrix or her father had no reason like vengeance as

suggested for falsely implicating the accused in such a

serious case and there was question of entire future of the

prosecutrix. These circumstances show that action taken

by the prosecutrix and police was immediate and the

aforesaid circumstance give corroboration to the version

of the prosecutrix.

22) The evidence of lady medical officer Dr. Gore

(PW-8) shows that she examined the prosecutrix on 21-2-

2012 at about 6.00 p.m. in Ambajogai Hospital,

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Ambajogai. Referral slip and the letter of police are

proved as Exhibits 56 and 57. The evidence of PW-8 shows

that she noticed that there was tear of hymen. The report

at Exhibit 58 is duly proved in her evidence and even

opinion is also proved as Exhibit 59. Exhibit 58 shows that

tear of hymen was “recent”. Though no other injury was

found on the person of the prosecutrix by PW 8, due to the

aforesaid circumstances this Court holds that

circumstance of absence of other injuries on the person of

the prosecutrix has not created reasonable doubt about

her version.

23) Surprisingly Dr. Gore (PW-8) created some

other record which was unwarranted. She tried to collect

so called history from the prosecutrix in respect of her

previous sexual contacts with others. She noted that prior

to the date of the incident the prosecutrix had sexual

contact with other boy and such history was given by her.

She also collected other particulars and on the basis of

that, the doctor has given evidence that there was history

of attempt of rape on 20-2-2012 and it is a case of

attempt of rape.

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24) The doctor to whom such patient, like the

prosecutrix is referred for medical examination can collect

some information, may be about the incident but the

doctor is not expected to collect past history of the

patient. Only information with regard to the incident can

be collected. It is up to the court to draw inference on the

basis of the findings of the doctor which are required to

be recorded in the certificate of examination. The victim is

from backward class and from labour class community. In

the present matter the peculiar circumstances like the

prosecutrix had attempted to commit suicide and the lady

home-guard had created pressure on the prosecutrix need

to be kept in mind. They show that few things were not

done fairly at least in the hospital.

25) Dr. Gore (PW 8) has made positive attempt to

show that it is not the case of rape but it is a case of

attempt of rape. The tear of hymen was recent and the

prosecutrix was unmarried. It was not possible for any

medical witness to say that it was attempt of rape. The

court is expected to draw inference on the basis of

evidence of the prosecutrix and the medical evidence

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which is mainly about injuries noticed by the doctor.

Opinion of the aforesaid nature given by Dr. Gore that it

was attempt of rape is not binding on the court. In view of

the definition of rape given in section 375 of the Indian

Penal Code, the prosecution can prove the incident of rape

only on the bass of the evidence of the prosecutrix. In the

present matter there is something more like rupture of

hymen which was recent. Due to these circumstances and

the position of law, this Court holds that the aforesaid

circumstances like the evidence of doctor in favour of the

accused cannot help them in any way. There is one more

circumstance like the thumb impressions appearing on

Exhibits 59 and 60 and they are said to be of the

prosecutrix. She had put her signature in English on the

FIR which is proved at Exhibit 25. Due to these

circumstances this Court has formed opinion that the

Department of Dr. Gore (PW-8) needs to take action

against PW-8 for creation of aforesaid record and for

giving the evidence of aforesaid nature in the court. For

that, a copy of the judgment can be sent to her employer.

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26) This Court holds that the medical evidence has

given necessary corroboration to the version of the

prosecutrix. Other evidence has also given corroboration

to the version of the prosecutrix and the evidence as a

whole has ruled out the possibility that no incident had

taken place and the accused Nos.1 and 2 are falsely

implicated.

27) The cross-examination of PW-1 was extensive

and attempt was made to show that she did not raise hue

and cry when the accused were taking her towards lonely

place. In the cross-examination, attempt was made to

create probability that she did not resist and probably she

was consenting party. This was done because of the

circumstance that no other injury was found on the person

of the prosecutrix and no injury was found on the person

of both accused Nos.1 and 2. As already observed, there is

evidence to the effect that the windows of the vehicle

were closed and when she tried to raise hue and cry

threat of life was given to her. Her evidence shows that

she knew both the accused as they used to carry

passengers in the vehicle and she had seen them since her

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school days. Thus, there was prior acquaintance. But due

to that circumstance inference is not possible that she was

consenting party. On the basis of this circumstance it can

be inferred that she boarded the jeep due to prior

acquaintance and she felt that accused Nos.1 and 2 can be

trusted.

28) When a lonely girl is picked up with such

intention by two youngsters like accused No.1 and 2 in the

night time, when there is not much traffic on the road,

when there is threat of life, the girl of such age may not

offer resistance and she would like to save her life. The

court also cannot expect that such girl should have taken

risk of her life and she ought to have offered the

resistance. Due to all these circumstances, this Court

holds that the circumstance of absence of injuries on the

person of accused Nos.1 and 2 has not created reasonable

doubt about the case of the prosecution.

29) In the cross-examination of Bhagwan (PW-2) it

is brought on record that he had a transaction in respect

of open space with one Mahadeo Dhakane. The evidence

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shows that PW 2 is still in possession of that property. It is

suggested that accused No.1 and 2 were helping said

Mahadeo Dhakane, they were trying to evict PW-2 from

the plot and that is why they are falsely implicated in the

case. This suggestion is denied. Accused Nos.1 and 2 have

not produced any record to show that they have any

relation with Mahadeo Dhakane or Mahadeo Dhakane had

any dispute with PW-2 in respect of the said transaction.

Thus, the defence has not created any probability of false

implication of accused Nos.1 and 2. It is already observed

that no father will put the entire future of his daughter at

risk by using the daughter in such a case for false

implication.

30) The defence has cross examined both PW 1 and

PW 2 much on the amount which was taken by the

prosecutrix with her for the aforesaid Yatra. An attempt

was made by the defence to show that the version of the

prosecutrix that she wanted to sell the ear-ring and for

that she had left the company of the husband of her

married sister and she was alone on the road is false. No

such probability is created. In any case, even if it is

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presumed that the prosecution wanted to move on her

own on that day and she wants some space for herself,

that circumstance could not have created a probability

that she wanted to go with the accused Nos.1 and 2 and

she was consenting party.

31) The trial court has believed the prosecutrix on

all relevant points. When trial court gives finding in

respect of credibility of the witness like victim of rape

case and believes such witness the appellate court is not

expected to lightly interfere in that finding. This Court

holds that the trial court has not committed error in

convicting accused Nos.1 and 2 for the offence of gang

rape.

32) The learned counsel for the accused Nos.1 and

2 placed reliance on following cases.

(1) Mohan Lal v. State of Rajasthan (2002 DGLS (SC)
1052 (SC).

(2) Vimal Suresh Kamble v. Chaluverapinake Apal S.P.

(2003 DGLS (SC) 8).

(3) Sadashkiv Ramrao Hadbe v. State of Maharashtra
(2006 DGLS (SC) 1245).

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(4) Rajoo v. State of M.P. (2008 DGLS (SC) 1603).

(5) Sham Singh v. State of Haryana (2018) DGLS (SC)

806.

In the case of Mohan Lal (cited supra) the facts were

altogether different. On the previous occasion the

prosecutrix, who was a married woman, had taken some

amount for allowing the accused to have sexual

intercourse. F.I.R. was also late and in view of the facts of

that case, the Court held that there was possibility of

consent. In the case of Vimal Suresh Kamble (cited supra)

it is laid down by the Apex Court that conviction on the

basis of testimony of the prosecutrix alone is possible if it

inspires confidence, it is natural and truthful. The facts of

the reported case show that in that matter corroboration

was necessary but as there was no corroboration of

medical evidence or C.A. report and as the conduct of the

prosecutrix after the incident was found to be suspicious,

benefit of the circumstances was given to the accused. In

the case of Sadashiv (cited supra) one doctor was involved

as accused and the allegations made against him by the

patient were found to be improbable in nature in view of

the facts of that case. Close relatives of the accused were

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available at the place where the incident allegedly took

place. In the case of Rajoo (cited supra) the Apex Court

has laid down that the basic principle in such a case is

that ordinarily evidence of the prosecutrix should not be

suspected and should be believed and her evidence needs

to be evaluated as the evidence of injured witness. It is

laid down that if the evidence is found to be reliable, no

corroboration would be necessary. It is also laid down that

if the evidence creates doubt, the possibility of

embellishment or exaggeration needs to be kept in mind.

On facts, it was held that truth and falsehood in that case

was so inextricably intertwined, that it was not possible

to discern where one ends and other begins. It was found

that when allegedly, 13 accused persons were involved in

the case, no injury was found on the prosecutrix. The

prosecutrix was involved in some kind of improper

activities. In the test identification parade she could

identify only one of them when in the F.I.R. she had made

allegation of rape against four of them. In the case of

Sham Singh (cited supra) on facts it was held that the

prosecution case was not probable.

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33) In the case of Md. Ali v. State of U.P. 2015

Cri.L.J. 1967 (Supreme Court), the F.I.R. was late by 11

days. There was no medical evidence. The testimony of

the prosecutrix did not inspire confidence. In the case of

Valliappa Harijan v. Central Jail, Aghada, [1997 Bom. C.R.

(Cri.) 215] it was held that corroboration was necessary

but it was absent and so benefit was given to the accused.

In the case of Sudhakar v. State of Maharashtra, decided

on 27-3-2004 by a learned Single Judge of this High Court,

on facts the benefit of the circumstance was given to the

accused. The facts were totally different.

34) On the other hand, learned Additional Public

Prosecutor placed reliance on the case reported as (1996)

2 SCC 384 (State of Punjab v. Gurmit Singh) . In this case

it is laid down by the Apex Court that it is duty of the

court to show sensitivity in such cases. It is observed that

minor contradictions or insignificant discrepancies should

not be a ground to throw out the otherwise reliable

prosecution case. It is observed that probability that due

to threat, no alarm was raised and no resistance was

offered needs to be always kept in mind by the courts in

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such cases. In the case reported as AIR 1981 SC 559

(Rafiq v. State of U.P.) on which reliance is placed by the

learned Additional Public Prosecutor, the Apex Court has

observed that absence of corroboration or absence of

injuries on person of victim may not be fatal in every case.

In the case reported as 2008 (4) B Cr. C 191 (Navab Ansar

Shaikh v. State of Maharashtra) this Court has observed

that evidence of the prosecutrix needs to be treated as

evidence of an injured witness.

35) Facts of each and every criminal case are

always different. In the present matter to the direct

evidence there is corroboration of many circumstances

including the medical evidence. In view of the facts of this

case this Court holds that the observations made in the

aforesaid cases on which reliance was placed by the

learned counsel for accused Nos.1 and 2 cannot help the

accused Nos.1 and 2.

36) One more point was argued by the learned

counsel for the accused. The trial court has given

conviction for offence of gang rape by presuming that

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provisions of Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act need to be used. On this

point it was submitted by the learned counsel for the

appellants that the amendment to the Act like provisions

of section 3(2)(v) came to be introduced on 26-1-2016 and

only after that, this provision can be used along with the

provisions of section 376(g) of the Indian Penal Code and

only if the offence is committed after 26-10-2016 the

punishment like life imprisonment can be given. Reliance

is placed on a case reported as Asharfi Vs. State of Uttar

Pradesh [2019 ALL MR (Cri) 1365 (S.C.)].

37) This Court has carefully gone through the

observations made in the case of Asharfi (cited supra).

The observations and the law laid down show that prior to

the aforesaid amendment, it was necessary for the

prosecution to prove that offence was committed on the

ground that such prosecutrix was a member of scheduled

caste or scheduled tribe. Thus only due to the reason of

the caste if the offence was committed it was possible to

use the provisions of Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act and give conviction

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of life imprisonment. After the amendment of the year

2016 the State is required to prove that such person

prosecutrix belongs to scheduled caste or scheduled tribe

and that was within the knowledge of the accused. So, the

burden was heavy on the prosecution to prove the

ingredient quoted as per the requirement of previous

provision. That kind of evidence is not given in the present

matter. In the past, it was necessary to prove that to

belittle the person (prosecutrix) as she belongs to

scheduled caste or scheduled tribe the offence was

committed and that kind of evidence is not there. On the

contrary, there is the evidence that the prosecutrix was

known to the accused and the accused were also known to

her and the accused used the circumstance on that day

that she was alone on the road and she was helpless. The

incident in question took place in the year 2012 and the

evidence as per the requirement of the old provision is not

there. So, this Court holds that it is not possible to hold

that the accused persons committed the offence of gang

rape only to belittle the prosecutrix and only because of

the circumstance that she belongs to scheduled caste. In

view of these circumstances, this Court holds that it is not

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possible to give sentence of life imprisonment and in view

of the previous provision, sentence of rigorous

imprisonment for 10 years can be given to each of

accused Nos.1 and 2. The fine amount of Rs.5000/-

imposed on each of the accused can be maintained and

such sentence would be just and proper.

38) In the second incident for which accused No.3

is convicted, there is evidence of the victim (PW-1), her

father (PW-2), the evidence of lady constable Anita

Tandale (PW-7) and Dr. Gorakh Munde (PW-9).

39) The victim girl (PW 1) has given evidence that

she was referred for medical examination with Police

Constable Tandale (PW-7) and Home-guard Ashabai

(accused No.3). She has deposed that in the hospital,

accused No.3 said to her that she (the victim) had the

affair with accused and the report was given by her as

they were caught red-handed by others. She has deposed

that accused No.3 said to her that she would ask accused

(accused Nos.1 and 2) to give Rs.2 to 3 lakh to the

prosecutrix. She has deposed that accused No.3 said that

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things about the incident will be published in news paper,

TV etc. and the prosecutrix will be defamed. She has

deposed that accused No.3 then said that due to such

case, the prosecutrix will be required to commit suicide

and die.

40) The evidence of PW-1 shows that she felt that

accused No.3 was pressurizing her. She has deposed that

she felt harassed by accused No.3 and when she returned

home from the hospital she felt that she should commit

suicide. She has deposed that she consumed 8 to 9 tablets

and due to that she had vomiting and giddiness. She has

deposed that when her parents and sister enquired with

her she told that she had taken tablets on headache. She

has deposed that she was then taken to Government

Hospital Kaij where she was admitted for the treatment.

She has deposed that, there, report Exhibit 27 was

recoded by police in respect of the second incident. The

report at Exhibit 27 is in respect of separate offence and

it can be used for the corroboration purpose under section

157 of the Evidence Act. This report is consistent with the

version of PW 1 on material points.

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41) Lady constable Tandale (PW-7) who had taken

the prosecutrix for examination on 21-2-2012 has given

evidence that in the hospital the prosecutrix disclosed that

accused No.3 had taken the prosecutrix to one side and

there she had given offer of Rs. 3 lakh for settling the

matter. PW-7 has deposed that it was also disclosed that

accused No.3 had expressed that other alternative was

suicide. It is true that no evidence is given by the

prosecutrix that she had disclosed the second incident to

PW-7 and the evidence of PW-7 can be called as hearsay in

nature and can be ignored. However, the circumstance

remains that there is evidence of PW 7 and there is record

to show that accused No.3 was given with PW 7 for taking

the prosecutrix to the hospital for medical examination.

Such record is at Exhibit 52. Accused No.3 has not

disputed that she was deputed for taking the prosecutrix

along with PW-7 to Government Hospital.

42) Bhagwan (PW-2) has given evidence that on

24-2-2012 he learnt that the prosecutrix was not well, she

had giddiness and she had vomiting. He has deposed that

when he learnt that the prosecutrix had consumed tablets,

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he took her to Kaij Hospital and the prosecutrix was

admitted there. He has deposed that in the hospital the

prosecutrix disclosed the incident. He has given evidence

that the prosecutrix had disclosed to him that she was in

disturbed mental condition and she had attempted to

commit suicide. Though the prosecutrix has not given

specific evidence that she disclosed the incident to her

father (PW-2), the fact remains that the father had taken

the prosecutrix to Government Hospital and there her

report was recorded by police. Naturally the father got

the knowledge about the incident at least in the hospital.

43) Dr. Gorakh Munde (PW 9) has given evidence

that on 25-2-2012 the prosecutrix was admitted in the

hospital for giving treatment on poisoning as it was

informed that she had consumed tablets. He has deposed

that he had given fitness certificate Exhibit 68 when

police recorded the report of the prosecutrix which is at

Exhibit 27. Exhibit 68 is the endorsement appearing on

Exhibit 27. Though it is true that this doctor had not given

treatment to the prosecutrix, evidence of this doctor is

sufficient to prove that the prosecutrix was admitted in

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34 Appeals 34, 63 154 of 2014

Government Hospital for giving her treatment on

poisoning. It is not probable that false case was created to

implicate accused No.3 in the case.

44) For accused No.3 it is suggested to the

prosecution witnesses that there is some land dispute and

due to that accused No.3 is falsely implicated. Accused

No.3 hails from other village and no reasonable

probability is created that there was any reason either for

the prosecutrix or her father to falsely implicate accused

No.3.

45) The learned counsel for the accused No.3

submitted that accused No.3 cannot be convicted for

offence of attempt punishable under section 511 of the

Indian Penal Code. He placed reliance on some

observations made by the Apex Court in the case reported

as State of Maharashtra v. Mohd. Yakub [(1980) 3 SCC

57]. In this case the difference between ‘attempt’ and

‘preparation’ is given. Reliance was also placed on some

observations made by the Apex Court in the case reported

as AIR 1956 SC 460 (Gurucharan Singh v. State of

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35 Appeals 34, 63 154 of 2014

Punjab) in which the point of burden of proof is discussed

by the Apex Court. In the case reported as 2018 Cri.L.J.

1812 (Latesh @ Dadu Baburao Karlekar v. State of

Maharashtra) the Apex Court has laid down that the

prosecution needs to prove offence beyond reasonable

doubt. It was submitted that there is no sufficient

evidence to prove that it was an attempt of suicide and

further the accused No.3 had really created a situation for

accused No.3 due to which she made such attempt.

46) So far as the legal point raised by the learned

counsel for accused No.3 is concerned, it can be said that,

there is one case reported as Gian Kaur Vs. State of

Punjab (1996) 2 SCC 648. In this case the Apex Court has

held that abetment of attempt to commit suicide is outside

the purview of section 306 and such offence can be

punishable under section 309/107 of Indian Penal Code. It

is held that even if punishment for attempt to commit

suicide is not desirable (now not possible) its abetment

can become offence. The Apex Court has laid down that in

that case, section 116 of the Indian Penal Code can be

used. Thus, if the offence of attempt of suicide is

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36 Appeals 34, 63 154 of 2014

punishable under section 309 of the Indian Penal Code

then in that case the abetment by a person like accused

No.3 would be punishable by using section 109 of Indian

Penal Code.

47) The abetment of offence is one thing and

attempt to commit an offence like attempt of abetment of

the suicide is other thing. Abetment of suicide is itself

offence punishable under section 306 of the Indian Penal

Code. By virtue of section 40 of the Indian Penal Code

read with section 511 of the Indian Penal Code such

attempt is also offence. Section 40 of the Indian Penal

Code runs as under :-

“40. “Offence”.– Except in the Chapters and sections
mentioned in clauses 2 and 3 of this section, the word
“offence” denotes a thing made punishable by this
Code.

In Chapter IV, Chapter V-A and in the following
sections, namely, sections 64, 65, 66, 67, 71, 109, 110,
112, 114,115, 116,117,118,119 and 120, 187, 194, 195,
203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328,
329,330,331,347,348,388,389 and 445, the word
“offence” denotes a thing punishable under this Code,
or under any special or local law as hereinafter
defined.

And in sections 141,176,177,201,202,212,216 and 441,
the word “offence” has the same meaning when the
thing punishable under the special or local law is

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punishable under such law with imprisonment for a
term of six months or upwards, whether with or
without fine.”

48) Provision of section 108 Explanation 2 of the

Indian Penal Code provides that even if offence is not

committed the abetment becomes punishable as offence.

Provision runs as under.

“108. Abettor.– A person abets an offence, who abets
either the commission of an offence, or the commission of
an act which would be an offence, if committed by a
person capable by law of committing an offence with the
same intention or knowledge as that of the abettor.

Explanation 2.– To constitute the offence of abetment it
is not necessary that the act abetted should be
committed, or that the effect requisite to constitute the
offence should be caused.”

Abetment of suicide is an offence. By virtue of section 511

of the Indian Penal Code attempt to abet is also an

offence. Abettor is liable under section 116 of the Indian

Penal Code and the provision is as under.

“116. Abetment of offence punishable with
imprisonment – if offence be not committed.-
Whoever abets an offence punishable with
imprisonment shall, if that offence be not committed in
consequence of the abetment, and no express provision
is made by this Code for the punishment of such
abetment, be punished with imprisonment of any
description provided for that offence for a term which
may extend to one-fourth part of the longest term
provided for that offence; or with such fine as is
provided for that offence, or with both;

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38 Appeals 34, 63 154 of 2014

If abettor or person abetted be a public servant
whose duty it is to prevent offence.– and if the
abettor or the person abetted is a public servant, whose
duty it is to prevent the commission of such offence, the
abettor shall be punished with imprisonment of any
description provided for that offence, for a term which
may extend to one-half of the longest term provided for
that offence, or with such fine as is provided for the
offence, or with both.”

The attempt of abetment of such offence can be

considered for punishment by using section 511 of the

Indian Penal Code. The provision of section 511 runs as

under :

“511. Punishment for attempting to commit
offences punishable with imprisonment for life or
other imprisonment.– Whoever attempts to commit
an offence punishable by this Code with imprisonment
for life or imprisonment, or to cause such an offence to
be committed, and in such attempt does any act
towards the commission of the offence, shall, where no
express provision is made by this Code for the
punishment of such attempt, be punished with
imprisonment of any description provided for the
offence, for a term which may extend to one-half of the
imprisonment for life or, as the case may be, one-half of
the longest term of imprisonment provided for that
offence, or with such fine as is provided for the
offence, or with both.”

49) This Court holds that in such a case when a

situation is created by the accused due to which the victim

is driven to commit suicide and she makes an attempt to

commit suicide but she survives, the person like accused

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No.3 can be convicted by using section 306 read with 511

of the Indian Penal Code. If we read section 116 and

section 511 of the Indian penal Code together it can be

said that the punishment which is half of the sentence

provided for commission of the offence itself can be given

to such accused. So, this Court holds that the punishment

needs to be reduced. In case of the first incident, as the

provisions of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act could not have been

used, the punishment could have been given only for the

offence of gang rape punishable under the provision of the

Indian Penal Code applicable at the relevant time. At the

relevant time, for gang rape punishment of imprisonment

for the period of 10 years could have been given and so

this Court holds the period of imprisonment can be made

as 10 years rigorous imprisonment as against accused

No.1 and 2 and it needs to be 5 years for the second

incident as against accused No.3.

50) In the result, all the three appeals are partly

allowed. The conviction of accused Nos.1 and 2 given by

the trial court by using the provisions of the Scheduled

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40 Appeals 34, 63 154 of 2014

Castes and Scheduled Tribes (Prevention of Atrocities) Act

is hereby set aside and they are convicted for offence of

gang rape punishable under section 376(g) of the Indian

Penal Code and each of them is sentenced to suffer

rigorous imprisonment for 10 years and to pay a fine of

Rs.5000/- each. In default of payment of fine they will

have to undergo simple imprisonment for six months. The

accused Nos.1 and 2 also stand convicted for the offence

punishable under section 506 read with 34 of the Indian

Penal Code and each of them is sentenced to suffer

rigorous imprisonment for six months and to pay a fine of

Rs.500/- each. In default of payment of fine each of them

shall suffer simple imprisonment for one week. The

substantive sentence of accused No.1 and 2 to run

concurrently. They are entitled to set off in respect of the

period for which they have been behind the bars in the

case.

51) The conviction given to accused No.3 for

offence punishable under section 306 of the Indian Penal

Code is modified and it is given under section 306 read

with 511 of the Indian Penal Code and she is sentenced to

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suffer rigorous imprisonment for 5 years and to pay a fine

of Rs.5000/-. In default of payment of fine she is to

undergo simple imprisonment for 6 months. She is

entitled to set off in respect of the period for which she

has been behind the bars in the case. The bail bonds of

accused Ashabai stand cancelled. She is to surrender to

the bail to serve out the remaining sentence. The other

part of the decision like giving the amount of Rs.10,000/-

out of the fine amount to the victim as compensation is

maintained.

Sd/- Sd/-
(K.K. SONAWANE, J.) (T.V. NALAWADE, J.)

rsl

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