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Dyaneshwar Nathaji Dane vs The State Of Mah on 23 March, 2018

Cri.Appeal No.704/2002
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.704 OF 2002

1. Rameshwar s/o Dhondiba Kuber
Age 25 years, Occu. Agri.,
R/o Apatgaon, Taluka and
District Aurangabad

2. Kanhu s/o Vishwanath Kuber,
Age 30 years, Occu. And
R/o as above. … APPELLANTS
(Original Accused No.2 3)
VERSUS

1. The State of Maharashtra
through the Public Prosecutor,
High Court, Aurangabad

2. Vinod s/o Tatyarao Argle Appeal abated against
Age 23 years, Occu. Driver Respondent No.2 as
R/o Apatgaon, Tq. Aurangabad per order dt.2.12.2009
District Aurangabad

3. Dyaneshwar s/o Nathaji Dane,
Age 25 years, Occu. Agri.,
R/o as above. … RESPONDENTS
(Original Accused No.4)
…..
Shri A.K. Bhosale, Advocate for appellants
Mrs. D.S. Jape Ansingkar, A.P.P. for respondent No.1/ State
…..

WITH

CRIMINAL APPEAL NO.707 OF 2002

Dyaneshwar s/o Nathaji Dane
Age 26 years, Occu. Agri.,
R/o Bhalgaon, Taluka and
District Aurangabad … APPELLANT

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(Original Accused No.4)
VERSUS

The State of Maharashtra
through Police Station, Chikalthana,
(Copy to be served on
Assistant Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad) … RESPONDENTS

…..
Shri Pradeep Deshmukh, Advocate for appellants
Mrs. D.S. Jape Ansingkar, A.P.P. for respondent No.1/ State
…..

CORAM: SUNIL K. KOTWAL, J.

Date of reserving judgment : 13th March, 2018.
Date of pronouncing judgment : 26th March, 2018.

JUDGMENT :

1. Vires of the judgment and order of conviction for the

offence punishable under Section 376 read with Sections 109, 323,

504, 506 read with Section 34 of the Indian Penal Code, is challenged

by original accused No.2, 3 and 4, by filing this appeal, against the

said judgment passed in Sessions Case No.291/2001, by II Additional

Ad-hoc Sessions Judge, Aurangabad, dated 30.11.2012. The

respondent No.1 is State of Maharashtra. Respondents No.2 and 3 in

Criminal Appeal no.704/2002 are original accused No.1 and 4

respectively.

2. Shorn of unnecessary details, prosecution case in brief is

that, on 13.9.2001, at about 8.30 p.m., when prosecutrix (P.W.1) and

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her husband Jija Waghmare (P.W.2) were returning from Apatgaon to

their residence at Mukundwadi, Aurangabad, and when they were at

the distance of one furlong from Bhalgaon Phata, accused No.1 to 4

came from behind and accused No.2 to 4 assaulted Jija Waghmare

(P.W.2) by fists and slaps and made him to sit quitely on the road.

Accused No.1 dragged the prosecutrix in the field by the side of the

road and forcibly made her to fall on the ground and raped her. In

the meantime, Jija Waghmare (P.W.2) managed to escape from the

clutches of accused No.2 to 4 and rushed to S.T.D. Booth near

Videocon Factory and on telephone, informed Police Station,

Chikalthana about the occurrence. P.S.I. Shamsundar Chaudhari

(P.W.8), who was present at Police Station, Chikalthana, after

knowing this occurrence, immediately rushed towards Bhalgaon Phata

along with other police staff. Near Bhalgaon Phata, P.S.I. Chaudhari

(P.W.8) met to Jija Waghmare, who took the police staff towards the

spot of the incident. By that time, the prosecutrix (P.W.1) also

reached on the road and she informed the P.S.I. Chaudhari about the

details of the occurrence.

3. Immediately P.S.I. Chaudhari (P.W.8) started hunt for the

above said culprits and apprehended accused No.1 to 4 from behind

one Dhaba. The victim, her husband and apprehended accused No.1

to 4 were brought to Police Station, Chikalthana. Victim (P.W.1)

lodged F.I.R. (Exh.11) against the accused No.1 to 4. In the result,

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Crime No.94/2001 came to be registered against the accused persons

for the offences punishable under Sections 376, 323, 504, 506 read

with Section 34 of the Indian Penal Code and under Section 3(1)(xi)

(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as the Atrocities Act for

short).

4. The prosecutrix was referred to Government Medical

College Hospital, Aurangabad for medical examination. Dr.

Sundarpalsingh (P.W.6) examined the prosecutrix and issued

certificate (Exh.20). Even accused No.1 to 4 were referred to Primary

Health Centre, Karmad for medical examination and Dr. Manohar

Wakle (P.W.9) examined them and issued certificate (Exh.24). Part

of the investigation was carried out by P.S.I. Chaudhari (P.W.8) and

S.D.P.O. Hirasing Jadhav (P.W.10). During the course of

investigation, the investigating officer (P.W.10) prepared spot

panchanama (Exh.17), seized clothes of the prosecutrix under seizure

memo (Exh.27) and clothes of accused No.1 under seizure memo

(Exh.28). The seized muddemal was referred to Chemical Analyser,

Aurangabad for medical examination. After completion of

investigation, charge sheet was submitted against accused N.1 to 4 in

the Court of Judicial Magistrate, First Class, Aurangabad.

5. Offence punishable under Section 376 of the Indian Penal

Code being exclusively triable by Court of Sessions, this case was

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committed to Sessions Court, Aurangabad.

6. Charge Exh. 5 was framed against accused No.1 to 4 for

the offence punishable under Sections 376, 323, 504, 506 read with

Section 34 of the Indian Penal Code as well as under Section Section

3(ii) read with (xii) of the Atrocities Act. Accused pleaded not guilty

and claimed trial. Defence of the accused is of total denial. No

defence witness is examined by accused persons.

7. After considering the evidence placed on record by

prosecution, learned trial Court pleased to convict the accused No.1

for the offence punishable under Sections 376, 323, 504, 506 read

with Section 34 of the Indian Penal Code and he was sentenced to

suffer rigorous imprisonment for seven years and to pay fine of

Rs.1000/- under Section 376, till rising of Court and fine of Rs.100/-

each for the offences punishable under Sections 323, 504, 506 read

with Section 34 of the Indian Penal Code on each count. Accused

No.2 to 4 were convicted for the offence punishable under Section

376 read with 109 of the Indian Penal Code and they were sentenced

to suffer rigorous imprisonment for seven years and fine of Rs.1000/-

and they were sentenced to suffer till rising of the Court and fine of

Rs.100/- on each count for the offence punishable under Sections

323, 504, 506 read with Section 34 of the Indian Penal Code.

8. Original accused No.1 Vinod Tatyarao Angle died during

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the pendency of Criminal Appeal No.3/2003 and proceeding against

him is abated.

9. Heard learned defence counsel Shri A.R. Bhosale for

accused No.2 and 3, Shri P.R. Deshmukh, learned counsel for accused

No.4 and Mrs. Jape, learned A.P.P. for the State.

10. Learned counsel for appellants submitted that, except

testimony of prosecutrix (P.W.1) and Jija Waghmare (P.W.2), no

other evidence is available for corroboration. He pointed out that, on

medical examination of the prosecutrix, no injury was found on her

body and no signs of rape were noted by the Medical Officer. He has

also pointed out that, even in the C.A. Report, semen was not

detected on the clothes of prosecutrix or even on the clothes of

accused No.1.

11. Next limb of the argument of learned counsel for

appellants is that, the test of identification parade was not held by

investigating officer though accused were unknown to the prosecutrix

and her husband. He submitted that, identification of the accused

persons is not duly established by prosecution.

12. Next objection raised by learned counsel for the appellants

is that, there are material omissions in the testimony of Jija

Waghmare (P.W.2) and his conduct is abnormal because though his

wife was raped in the field, he did not try to take help of any road

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passer or nearby resident. He pointed out that, Jija Waghmare

(P.W.2) did not try to rescue his wife by using force against the

accused persons.

13. Learned counsel for the appellants assailed the testimony

of P.S.I. Chaudhari (P.W.8) on the ground that, he contradicted with

other prosecution witnesses regarding the manner in which accused

No.4 was arrested. At last, learned counsel for the appellants raised

technical objection that, though charge under Section 109 of the

Indian Penal Code was not framed, the learned trial Court convicted

the accused No.2, 3 and 4 for the offence punishable under Section

376 with the aid of Section 109 of the Indian Penal Code i.e.

abetment of the offence. He placed reliance on Abbas Ahmad

Choudhary Vs. State of Assam reported in [2010(12) SCC 115],

Main Pal Vs. State of Haryana reported in [(2010) 10 SCC 130],

State of Karnataka Vs. F. Nataraj reported in 2015(16) SCC 752,

Anant @ Anna Shankar Shivde Vs. The State of Maharashtra

reported in [2017(3) Mh.L.J. (Cri) 154], Sadashiv Ramrao

Hadbe Vs. State of Maharashtra anr. reported in [2006 (10)

SCC 92].

14. In reply, learned A.P.P. for the State submitted that, all

accused are duly identified by prosecutrix and her husband before the

Court on the date of recording of their evidence and such

identification can be relied upon. Next submission of learned A.P.P. is

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that, the incident occurred at night hours in secluded place and,

therefore, availability of independent witnesses was impossible.

Therefore, non-examination of independent witness is not fatal to the

prosecution case.

15. Her last submission is that, evidence of prosecutrix and

her husband regarding the occurrence is also corroborated by

testimony of P.S.I. Chaudhari (P.W.8) and telephone booth owner

Dilip Jaiswal (P.W.4). She placed reliance on Willie (William)

Slaney Vs. State of Madhya Pradesh reported in [1956(1) M.L.J.

100], Bansidhar Mohanty Vs. Orissa reported in 1955 AIR (SC)

585.

16. To substantiate charges against the accused persons,

prosecution has examined victim (P.W.1), her husband Jija Waghmare

(P.W.2), S.T.D. Booth owner Dilip Jaiswal (P.W.4) and Bandu Badge

(P.W.3) as well as Sahebrao Digode (P.W.5) as panch on spot

panchanama. Dr. Sundarpalsingh (P.W.6) is the Medical Officer who

examined the victim on 14.3.2001 at 3.00 a.m. in Government

Medical College Hospital, Aurangabad. Ashok Khose (P.W.7) is

panch witness on seizure memo of the clothes of the victim. Dr.

Manohar Wakle (P.W.9) is the Medical Officer, Primary Health Centre,

Karmad, who examined accused No.1 to 4. P.S.I. Shamsundar

Chaudhari (P.W.8) is the witness from Police Station, Chikalthana,

who reached on the spot immediately after the occurrence and

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Hirasingh Jadhav (P.W.10) is investigating officer of this crime.

17. Out of these prosecution witnesses, panch Bandu Badge

(P.W.3) and Ashok Khose (P.W.7) have turned hostile and nothing

could be elicited from their cross-examination which is helpful to the

either parties. Even evidence of Dr. Sundarpalsingh (P.W.6) and the

certificate issued by him (Exh.20) as well as evidence of Dr. Manohar

Wakle (P.W.9) who issued certificate Exh.24 regarding examination of

the accused is of no help to the prosecution, because Dr.

Sundarpalsingh (P.W.6) did not find any mark of violence or semen

stains or blood stains on the body of victim. He also opined that, the

hymen of the victim (P.W.1) was ruptured, but it was old rupture and

not recent rupture. Even Dr. Manohar Wakle (P.W.9) did not find any

sign of violence on the body of accused No.1 to 4. He did not notice

seminal stains even on the clothes of the accused No.1. Thus,

obviously, the medical evidence of Dr. Sundarpalsingh (P.W.6) and

Dr. Manohar Wakle (P.W.9) is useless piece of the evidence to

establish guilt of the accused. Even the C.A. Report Exh.30 shows

that no semen stains/ blood stains were found on the clothes of the

victim or on the clothes of accused No.1.

18. Even the spot panchanama Exh.17 proved by

investigating officer does not show that any incriminating article was

seized from the spot. Spot panchanama only shows that, the spot of

the incidence is on the eastern side of road, which passes from

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Apatgaon towards Bhalgaon Phata. Thus, even spot panchanama

exh.17 is not much useful as corroborative piece of evidence.

19. In the circumstances, only the evidence of victim (P.W.1),

her husband Jija Waghmare (P.W.2) is available to prove the actual

occurrence of rape. The evidence of S.T.D. booth owner Dilip Jaiswal

(P.W.4) and P.S.I. Chaudhari (P.W.8) can be used only as

corroboration to the testimony of victim (P.W.1) and her husband

(P.W.2). After going through the judgment passed by the trial Court,

it emerges that, trial Court has placed reliance on testimony of these

all witnesses and held that, their evidence is trustworthy to prove the

guilt of the accused No.1 to 4 beyond reasonable doubt.

20. Undisputedly, to prove the occurrence, no independent

witness is examined by prosecution who had actually witnessed the

occurrence. However, as the incident took place in secluded place, in

the field adjacent to road, availability of such independent witness is

impossible. Therefore, non-examination of independent witness by

prosecution cannot be viewed with suspicion.

21. Learned counsel for the assailants assailed the evidence of

victim (P.W.1) on the ground that, absence of injury on the body of

victim and absence of blood stains on her clothes as well as on the

clothes of accused No.1 creates doubt about the truthfulness of the

evidence of victim (P.W.1). My attention was drawn to the case of

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Rajoo ors. Vs. State of M.P. reported in [2009 AIR (SC) 858]

and Abbas Ahmad Choudhary (supra), where the Apex Court held

that, there can be no presumption that prosecutrix would always tell

the entire story truthfully and statement of prosecutrix should be

evaluated at par with that of injured witness who will not tell a lie, but

it can never be presumed that, her statement is a gospel truth.

22. However, recently, in Mukesh anr. Vs. State (NCT of

Delhi) ors., reported in [(2017) 6 SCC 1], the Apex Court laid

down following settled proposition of law :

“At the same time while dealing with cases of rape,
the Court must act with utmost sensitivity and appreciate
the evidence of the prosecutrix in view of settled legal
principles. Courts while trying an accused on the charge of
rape, must deal with the case with utmost sensitivity,
examining the broader probabilities of a case and it should
not be swayed by minor contradictions and discrepancies
in appreciation of evidence of the witnesses which are not
of a substantial character. It is now well settled that
conviction for an offence of rape can be based on the sole
testimony of the prosecutrix corroborated by medical
evidence and other circumstantial evidence such as the
report of chemical examination, scientific examination, etc.
if the same is found natural and trustworthy.

Persisting notion that the testimony of the victim has
to be corroborated by other evidence must be removed. To
equate a rape victim to an accomplice is to add insult to
womanhood. Ours is a conservative society and not a

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permissive society. Ordinarily a woman, more so, a young
woman will not stake her reputation by levelling a false
charge, concerning her chastity.

There is no legal compulsion to look for
corroboration of the prosecutrix’s testimony unless the
evidence of the victim suffers from serious infirmities,
thereby seeking corroboration.

It is well settled that conviction can be based on the
sole testimony of the prosecutrix if it is implicitly reliable and
there is a ring of truth in it. Corroboration as a condition for
judicial reliance on the testimony of a prosecutrix is not
requirement of law but a guidance of prudence under given
circumstances.

Courts should not attach undue importance to
discrepancies, where the contradictions sought to be
brought up from the evidence of the prosecutrix are
immaterial and of no consequence. Minor variations in the
testimony of the witnesses are often the hallmark of truth of
the testimony. Trivial discrepancies ought not to obliterate
an otherwise acceptable evidence. Due to efflux of time,
there are bound to be minor contradictions/ discrepancies
in the statement of the prosecutrix but such minor
discrepancies and inconsistencies are only natural since
when truth is sought to be projected through human, there
are bound to be certain inherent contradictions.

In the case of rape and sexual assault, the evidence
of the prosecutrix is very crucial and if it inspires confidence
of the Court, there is no requirement of law to insist upon
corroboration of the same for convicting the accused on the
basis of it. Courts are expected to act with sensitivity and
appreciate the evidence of the prosecutrix in the

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background of the entire facts of the case and not in
isolation.”

23. Regarding the absence of injury on the body of victim, the

Apex Court had occasion to consider this point in case of Utpal Das

anr. Vs. State of West Bengal reported in [2010(4) Mh.L.J. (Cri.)

97], wherein the Apex Court ruled that, in case of rape of a married

grown up woman, absence of injuries on her private part is not of

much significance. The mere fact that no injuries were found on the

private part of her body cannot be ground to hold that she was not

subjected to any sexual assault. In Ram Singh Vs. State of

Himachal Pradesh reported in [2010(1) Mh.L.J. (Cri.) 669], the

Apex Court ruled that, it is not an inevitable rule that in absence of

defence injuries on the body of victim the prosecution must

necessarily fail to establish its case. Absence of injury on private part

of victim who is married woman, may not be very significant.

Therefore, only because no injuries were found on the body of victim

(P.W.1), her testimony cannot be doubted, if otherwise she is a

trustworthy witness.

24. Victim (P.W.1) categorically deposes before the Court

that, on the date and time of the incident at about 8.30 p.m. when

along with her husband, she was walking by road towards Bhalgaon

Phata, that time three persons came right behind her and they caught

hold her husband, threatened him at the point of knife and the fourth

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accused dragged the victim to nearby field, gagged her mouth and in

the field, he had forcible sexual intercourse with her. From the

testimony of of victim (P.W.1), it further emerges that, after rape, the

rapist left the spot and when the victim went towards Bhalgaon Phata

by road, police jeep arrived on the spot. According to victim (P.W.1),

police started search of the culprits and apprehended them. The

victim (P.W.1) has identified accused No.1 as the same person who

raped her in the field and she pointed out accused No.2 to 4 as the

same persons who held her husband on the road at the time of

commission of the rape. Despite searching cross-examination by

defence counsel, no admission could be brought on record to create

doubt about truthfulness of the version of victim (P.W.1). On the

other hand, she has also proved her prompt F.I.R. Exh.11, which was

registered on 13.9.2001 at 10.45 p.m. Thus, there was no possibility

of concoction of any false case by the prosecution against the

accused.

25. It is to be noted that, no material omission or

contradictions are brought on record in the testimony of victim

(P.W.1). It is to be noted that, from the examination-in-chief as well

as from the cross-examination, it becomes clear that, at the time of

commission of rape, accused No.1 had removed her clothes.

Therefore, in natural course, there would not be semen stains on the

clothes of the victim. In the circumstances, absence of semen stains

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on the clothes of the victim cannot be a ground to disbelieve the

testimony of victim (P.W.1).

26. On the other hand, after careful examination of testimony

of victim (P.W.1), and even testimony of Jija Waghmare (P.W.2), it

becomes clear that, none of the accused was related with the victim

or with her husband in any manner prior to the occurrence. There is

absolutely no reason on record which indicates slightest possibility of

false implication of the accused due to previous dispute in between

accused and victim or her family members. In the circumstances, I

find that, testimony of victim (P.W.1), which is fully corroborated by

Jija Waghmare (P.W.2), who also repeated the same story in his

deposition, is trustworthy and conviction of all accused can be based

on the testimony of these both witnesses. Even Jija Waghmare

(P.W.2) has identified accused No.1 to 4 in the Court.

27. Learned defence counsel assailed the testimony of Jija

Waghmare (P.W.2) on the ground that he did not raise hue and cry

when he was caught by accused No.2 to 4 and when his wife was

raped. However, it cannot be ignored that, at the time of occurrence,

at night hours, Jija Waghmare (P.W.2) was alone present on the spot

and accused No.2 to 4 overpowered him by assaulting him. In fact,

there was no chance to Jija Waghmare (P.W.2) to raise hue and cry

on this secluded place. So also, from the testimony of these both

witnesses, it also becomes clear that, at the time of occurrence, there

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was no traffic on the road. Therefore, raising hue and cry by Jija

Waghmare (P.W.2) would have only useless attempt.

28. So also, it cannot be ignored that, a witness may re-act in

different manners, depending on his own nature. A dare-devil person

may try to fight with the assailants to to save his wife. However, a

timid person may choose to run away from the spot to get help from

nearby place. It appears that, Jija Waghmare (P.W.2) was timid in

nature and, therefore, he had chosen to run away from the spot when

he managed to rescue himself from the clutches of accused No.2 to 4.

From the testimony of Jija Waghmare (P.W.2), it becomes clear that,

he immediately ran towards Videocon Factory, which was the nearby

place and found S.T.D. Booth. From this booth, he informed the

Chikalthana Police Station on phone about the occurrence. This

version of Jija Waghmare (P.W.2) is also corroborated by Dilip Jaiswal

(P.W.4), who is S.T.D. Booth owner near Videocon Company. Dilip

Jaiswal (P.W.4) deposes before the Court that, on the date of

incident, at about 8.00 p.m. to 9.30 p.m., one person came to his

S.T.D. Booth and on telephone, informed Police Station, Chikalthana

that 2-3 miscreants kidnapped his wife after assaulting that person.

From the cross-examination of Dilip (P.W.4), it has been brought on

record that, Jija Waghmare (P.W.2) went to S.T.D. Booth while

running.

29. In view of above discussed evidence, it cannot be said

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that, Jija Waghmare (P.W.2) did not try to rescue his wife. On the

other hand, Jija Waghmare (P.W.2) immediately rushed to nearby

telephone booth and sought help from the Police Station, Chikalthana.

Even P.S.I. Chaudhari (P.W.8) has fully corroborated the testimony of

Jija Waghmare (P.W.2) that on 13.9.2001 at about 8.45 p.m., on

telephone Jija Waghmare informed the Police Station about the

occurrence. From the testimony of P.S.I. Chaudhari (P.W.8), it

further emerges that, he immediately rushed on the spot with other

police staff and when victim disclosed the occurrence, these police

officers immediately apprehended the accused persons near one

Dhaba.

30. Learned defence counsel pointed out that, Jija Waghmare

(P.W.2) has made contradictory statement that the accused No.4 was

brought by Police Patil towards Bhalgaon Phata. However, over much

importance cannot be given to this conflicting statement because

victim (P.W.1) and P.S.I. Chaudhari (P.W.8) are consistent regarding

apprehending the accused No.1 to 4 near Dhaba.

31. Learned defence counsel has pointed out that, threatening

to husband of victim at the point of knife is not mentioned in the

F.I.R. However, as ruled by Apex Court in “Mukesh anr. Vs. State”

(supra), F.I.R. Is not an Encyclopedia and each and every minor

details need not be mentioned in the F.I.R. Therefore, over much

importance cannot be given to the minor discrepancy emerged in the

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testimony of victim (P.W.1) regarding threat to her husband by

accused.

32. Next objection raised by learned defence counsel is

regarding identification of accused No.1 to 4 by victim and her

husband for the first time before the Court in absence of prior test of

identification by investigating officer. However, the Apex Court in

Manu Sharma Vs. State (NCT of Delhi) reported in [(2010) 6

SCC 1], held that, even if there is no previous test identification

parade, the Court may appreciate the dock identification as being

above board and more than conclusive.

33. In the case at hand, though incident occurred at night

hours at secluded place, the victim (P.W.1) as well as her husband

had full opportunity to observe the accused No.1 to 4 from the close

distance when they assaulted Jija Waghmare (P.W.2). So also, the

victim (P.W.1) was raped by accused No.1 and, therefore, she cannot

make mistake in identification of accused No.1 as same rapist, though

the incident occurred in darkness. Even in the cross-examination of

victim (P.W.1) and Jija Waghmare (P.W.2), their identification of

accused No.1 to 4 in the Court, cannot be shattered in any manner

despite searching cross-examination by defence counsel. Therefore, I

am fully satisfied that, identification of accused No.1 to 4 by victim

and her husband in the Court for the first time after the occurrence is

absolutely reliable and cannot be doubted only on the ground that

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Cri.Appeal No.704/2002
19

test identification parade is not held by investigating officer.

34. Learned counsel for the appellants has also raised

technical objection regarding conviction of the accused No.2 to 4 with

the aid of Section 109 of the Indian Penal Code though charge was

framed under Section 376 read with Section 34 of the Indian Penal

Code. However, after going through the charge Exh.5, it becomes

clear that, all particulars of abetment of the offence by detaining Jija

Waghmare (P.W.2) by accused No.2, 3 and 4 are mentioned in the

charge. Therefore, accused No.2 to 4 were well aware as to what are

the allegations levelled against them by prosecution. In the

circumstances, only because charge was framed under Sections 376,

323, 504, 506 read with Section 34 of the Indian Penal Code, no

prejudice will be caused to the accused by convicting them with the

aid of Section 109 of the Indian Penal Code. The ratio of the case of

Mani Pal Vs. State of Haryana (supra) relied by learned defence

counsel is distinguishable on facts because, in that case, charge was

framed against “Y”, but conviction for the offence was imposed

against “X” and, therefore, the Apex Court held that, prejudice was

caused to “X”.

35. On the other hand, learned A.P.P. rightly pointed out that,

in “State Vs. Ruplal anr.” (supra), the High Court, after following

Kashmira Singh Vs. State of Madhya Pradesh reported in [AIR

1952 SC 159] and Begu Vs. Emperor reported in [AIR 1925

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Cri.Appeal No.704/2002
20

Privy Council 130], held that, the accused may be convicted of

substantive offence even if he is charged only with abetment of the

offence, when no prejudice is caused in his defence.

36. In Ram Kumar Vs. State of Himachal Pradesh with

Nain Singh Vs. State of Himachal Pradesh reported in [AIR 1995

SC 1965], husband and wife were taken into Police Station. Wife

was raped by Head Constable. Supreme Court upheld the conviction

of Constable under Section 376 read with Section 109 of the Indian

Penal Code.

37. In the case at hand, at the time of occurrence, accused

No.2, 3 and 4 detained husband of the prosecutrix (P.W.1) on road

and thereby aided the accused No.1 to drag the victim in the field and

commit rape on her. Thus, conviction of the accused No.2, 3 and 4

under Section 376 read with Section 109 of the Indian Penal Code

cannot be faulted only on the ground that charge was framed against

them under Section 376 read with Section 34 of the Indian Penal

Code.

38. So also, as on the basis of truthful version of victim

(P.W.1) and Jija Waghmare (P.W.2) prosecution has proved that at

the time of occurrence all accused threatened Jija Waghmare (P.W.2)

and also assaulted him by fists and slaps. Therefore, no error has

been committed by learned trial Court while convicting the accused

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Cri.Appeal No.704/2002
21

No.2 to 4 for the offences punishable under Sections 323 and 506

read with Section 34 of the Indian Penal Code.

39. However, at the same time, it cannot be ignored that, on

the basis of evidence of prosecutrix and her husband, no case is made

out by prosecution to prove the offence punishable under Section 504

of the Indian Penal Code, which requires proof of intentional insult

with intent to provoke breach of the peace. Therefore, conviction of

accused No.2 to 4 for the offence punishable under Section 504 read

with Section 34 of the Indian Penal Code is bad in law and deserves to

be set aside.

40. In view of above discussion, I have no hesitation to hold

that, the testimony of victim (P.W.1) and Jija Waghmare (P.W.2) is

free from every infirmity and they are trustworthy witnesses to

convict the accused No.2 to 4 for the offence punishable under

Section 376 read with Section 109 of the Indian Penal Code and under

Sections 323 and 506 read with Section 34 of the Indian Penal Code.

The testimony of these both star witnesses is also corroborated by

evidence of S.T.D. Booth owner Dilip Jaiswal (P.W.4) and P.S.I.

Chaudhari (P.W.8). In the circumstances, I have no hesitation to hold

that, conviction of the accused No.2 to 4 for the offence punishable

under Section 376 read with Section 149 and Sections 323, 506 read

with Section 34 of the Indian Penal Code deserves to be confirmed.

However, conviction of these accused No.2 to 4 for the offence

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Cri.Appeal No.704/2002
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punishable under Section 504 read with Section 34 of the Indian

Penal Code needs to be set aside by partly allowing this appeal.

41. For the offence punishable under Sections 376 and 504 of

the Indian Penal Code, learned trial Court imposed rigorous

imprisonment for seven years and fine of Rs.1000/- each against

accused No.2 to 4. Considering the circumstances of the case, as well

as age of the accused, I hold that, this sentence is just and proper

and needs no interference. Regarding punishment under Sections

323 and 506 read with Section 34 of the Indian Penal Code, trial

Court has taken most lenient view, which calls for no interference.

42. Hence, I pass the following order.

ORDER

(i) Criminal Appeals No.704/2002 and 707/2002 are partly

allowed.

(ii) Conviction of accused No.2 to 4 for the offence punishable

under Section 504 read with Section 34 of the Indian

Penal Code is set aside.

(iii) Accused No.2 to 4 are acquitted of the offence punishable

under Section 504 read with Section 34 of the Indian

Penal Code.

(iv) Fine amount deposited by accused No.2 to 4 for the

offence punishable under Section 504 of the Indian Penal

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Cri.Appeal No.704/2002
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Code be refunded to them.

(v) Conviction and sentence imposed against the accused

No.2 to 4 recorded by learned II Additional Adhoc

Sessions Judge, Aurangabad, by judgment and order

dated 30.11.2002, passed in Sessions Case No.291/2001,

for the offences punishable under Section 376 read with

Section 109, Sections 323 and 506 read with Section 34

of the Indian Penal Code, is confirmed.

(vi) Accused No.2 to 4 shall surrender to their bail bonds

before the trial Court immediately to undergo the

sentence imposed by the trial Court.

( SUNIL K. KOTWAL )
JUDGE

fmp/

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