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Ismail Shah Suleman Shah vs The State Of Mah.Thr. Pso Nagpur on 16 July, 2019

1 APEAL109.04+1.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

CRIMINAL APPEAL NO. 109 OF 2004
with
CRIMINAL APPEAL NO. 164 OF 2004
…….

CRIMINAL APPEAL NO. 109 OF 2004
APPELLANT : Raju S/o Narssya Annewar
Aged about 34 years,
R/o Lohari Sawanga, P.S. Jalalkheda,
Dist. Nagpur

VERSUS

RESPONDENT : State of Maharashtra,
through the Police Station Officer,
Police Station, Jalalkheda,
Tah. Narkhed, Dist. Nagpur

WITH
CRIMINAL APPEAL NO. 164 OF 2004
APPELLANT : Ismail Shah S/o Suleman Shah,
Aged about 42 years,
R/o Lohari Sawanga, P.S. Jalalkheda,
District Nagpur.

VERSUS

RESPONDENT : State of Maharashtra,
through the Police Station Officer,
Police Station, Jalalkheda,
Tah. Narkhed, Dist. Nagpur

——————————————————————————————————
Mr. Apurv De, Advocate for the appellant in Appeal No.109/04
Mr. J. D. Bastian, Advocate for appellant in Appeal No. 164/2004
Mr. P. S. Tembhare, Addl. P. P. for the respondent/State.
——————————————————————————————————

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CORAM : V. M. DESHPANDE, J.
Judgment Reserved on : 25th JUNE, 2019.
Judgment Delivered on : 16th JULY, 2019.

JUDGMENT

1. These appeals were heard simultaneously and they are

decided by this common judgment since both these appeals arise out

of the judgment and order of conviction passed by the learned 1 st Ad-

hoc Additional Sessions Judge, Nagpur on 18.12.2003 in Sessions

Trial No. 370 of 2001.

2. Criminal Appeal No.164/2004 is filed by original

accused no.1 – Ismail Shah, whereas Criminal Appeal No. 109/2004

is filed by original accused no.2 – Raju Annewar.

3. In this judgment, the appellants will be referred to by

their original position.

4. Accused no.1 Ismail Shah was convicted for the offence

punishable under Section 376 of the Indian Penal Code and was

directed to suffer rigorous imprisonment for seven years and to pay a

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fine of Rs.1,000/- and in default to suffer further rigorous

imprisonment for six months. Accused no.2 Raju Annewar was

convicted for the offence punishable under Section 109 read with

Section 376 of the Indian Penal Code and he was also sentenced to

suffer rigorous imprisonment for seven years and to pay a fine of

Rs.1,000/- and in default to suffer rigorous imprisonment for six

months.

I] FACTS :-

A] On 09.4.2001, PW10 victim, a blind lady, lodged her

oral report Exh.45. That time Namdev Ingole (PW11) was working

as Police Station Officer at Police Station, Jalalkheda. He asked ASI

Bansod to scribe down the report. On basis of said report, PW11

Namdeo Ingole registered a crime vide Crime No. 50/2001 for the

offences punishable under Section 376 and Section109 of the Indian Penal

Code against both the accused.

B] As per oral report (Exh.45), the victim resides at

Sultanpuri, New Delhi and she is a household lady. On 04.01.1997,

her marriage was solemnized with Arjunsingh Bairwa (PW6). She

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was issueless and therefore, on 21.2.2001, she came to Wadi, Nagpur

from Delhi for her treatment. One Namdeo Bagde of village Lohari-

Sawanga was staying in the neighbourhood of her mother at Wadi.

Therefore, she was acquainted with him. This Namdeo informed her

that there is a “Dargah” at Lohari-Sawanga and issueless women are

treated by way of “zadfuk” (treatment by way of giving magical

water and lemon). The first information report recites that therefore,

on 28.3.2001, she along with Namdeo Bagde, her mother Savitrabai

(PW5) and Devkabai Bagde went to Lohari-Sawanga for

“Moharrum”. The first information report further recites that there is

a ‘Dargah” at the house of Namdeo Bagde and it is influenced by

‘Pirbaba’. Both the accused used to visit Namdeo’s house for

“zadfuk”. As the first informant was issueless since four years, she

stayed in the house of Namdeo. At 4-5 times accused persons gave

her ash mixed water and magical lemons.

The first information report further recites that on

04.4.2001, her husband came to Lohari-Sawanga and he also stayed

at the house of Namdeo.

The report further recites that on 08.4.2001, between

12.00 and 12.30 in the afternoon, her husband, Namdeo Bagde and

one Kewate went to Wadi, Nagpur. Accused no.1 Ismail asked her

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that she is required to stay at ‘Dargah’ for one and quarter month.

On that day, between 8.00 and 8.30 in the night both the accused

persons came to the house of Namdeo. That time victim, her mother

Savitrabai and Devkabai were present in the kitchen. That time

accused no.2 called her mother and asked her to make arrangements

for worship. Thereafter, she and her mother went to ‘Dargah’.

Accused no.2 asked her mother to prepare nine lamps of wheat floor,

which were made and brought in a dish. Both the accused then

started making preparation for worship. Accused no.1 asked her

mother to stay outside. Then, she (victim) was taken in a room.

Thereafter, accused no.1 moved magical lemon on her person. That

time, accused no.2 was sitting beside her. Accused no.1 moved 12

lemons from her person and gave one lemon each in her hands.

Thereafter, accused no.1 asked her to follow each and everything.

Thereafter, he asked her to lay down on the ground and asked her

not to object any act, which he would be doing. Then, he made the

victim to lie in supine condition and then opened the string of her

salwar, removed her undergarments, caught hold both of her legs in

his hand and inserted his male organ into her vagina and raped her.

He pressed both of her breasts. He committed this act with her for

two minutes. Thereafter accused no.1 gave her undergarments and

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salwar in her hands. She stood up and put her clothes. The first

information report states that since it was religious thing, she did not

resist, but accused no.1 Ismail without her permission committed an

evil act with her. It is further reported in the first information report

that while committing the act, he was sitting on her person.

Therefore, she could sense his long beard. The first information

report states that accused no.2 might be standing somewhere in the

room and as she was blind, she could not notice where accused no.2

was standing. The report specifically states that accused no.2 did not

commit evil act with her. He is assistant of accused no.1.

Aforesaid are the statements made by the victim (PW10)

in her report (Exh.45).

C] After registration of the crime, PW11 Ingole sent the

victim to Primary Health Centre, Jalalkheda with a woman Police

Constable under requisition (Exh.53). Since the victim was blind, in

order to ascertain her blindness, the Investigating Officer also sent

her to Mayo Hospital, Nagpur for her examination.

The Investigating Officer also went to the house of

Devkabai at Lohari Sawanga along with panchas and prepared the

spot panchanama in presence of PW1 Diwakar Shende. The said is

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at Exh.20. He also prepared the sketch of spot of incident (Exh.21).

From the spot of the incident, he seized pieces of incense sticks, one

cotton ball, burnt match sticks, pieces of bidi under seizure

panchanama (Exh.23). The Investigating Officer also seized the

clothes of the victim under seizure panchamama (Exh.26).

He also arrested accused persons and seized their

clothes under seizure panchamamas (Exh.22 and 54 respectively).

D] The statement of the victim in Braille language was also

recorded. Those are at Exhs.36 and 37.

E] The Investigating Officer also sent accused no.1 for

collection of his semen sample. During the course of investigation

samples of victim were brought by LPC Vandana from hospital and

those were seized under seizure panchanama (Exh.28). All the

seized articles were sent to the Chemical Analyser under requisition

(Exh.57) and after completion of the investigation, charge-sheet was

filed in the Court of jurisdictional Magistrate at Narkhed.

F] The learned jurisdictional Magistrate found that the

offence is exclusively triable by the Court of Sessions and therefore,

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the case was committed to the Court of Sessions and it was

registered as Sessions Trial No. 370/2001. The learned 1 st Ad-hoc

Additional Sessions Judge, Nagpur on 16/11/2002, below Exh.5,

framed a Charge against accused no.1 for the offence punishable

under Section 376 of the Indian Penal Code. Accused no.2 was

charged that he has abated commission of rape on victim and

therefore, he was charged for the offence punishable under Section

109 of the Indian Penal Code. Both the accused were also charged

for the offence punishable under Section 7 of Drugs and Magic

Remedies Act.

G] After the Charge was explained to them, they abjured

their guilt and claimed for their trial.

H] In order to prove its case, the prosecution has examined

in all 11 witnesses and also relied upon various documents those

were proved during the course of trial. The statements of both the

accused were recorded under Section 313 of the Code of Criminal

Procedure. From the line of cross-examination of the prosecution

witnesses and the statements of accused under Section 313,

according to both the accused they are falsely implicated.

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I] The learned Judge of the Court below acquitted both the

accused for the offence punishable under Section 7 of the Drugs and

Magical Remedies act, however convicted them for the charge which

was framed against them. Hence, this appeal.

J] Accused no.1 Ismail Shah is represented by his counsel

Shri J.D. Bastian, whereas accused no.2 Raju Annewar is represented

by his counsel Shri Apurv De. In both these appeals, the State is

represented by Shri P.S. Tembhare, the learned Additional Public

Prosecutor. With their able assistance, I have gone through the

record and proceedings, notes of evidence and the proved

documents.

II] SUBMISSIONS :-

i] It is the submission of the learned counsel for

respondent no.1 that in absence of any corroboration from medical

evidence and the scientific evidence in the nature of Chemical

Analyser’s report, it would be unsafe to accept the evidence of

Savitrabai (PW5) and victim (PW10) to convict the appellants. He

invited my attention to MLC report (Exh.48) of the victim in which

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the Doctor has opined that it cannot be commented whether the

intercourse has occurred or not. He submitted that accused no.1 is

falsely implicated at the behest of the victim for removal of ‘Dargah’.

He also submitted that the appellant was not identified during the

course of trial by the victim through his voice. In order to buttress

his submissions, learned counsel Mr. Bastian placed reliance on

following reported cases of this Court :

1] 2004 (3) CRIMES 664
SectionAshok Shamrao Thakre .vs. State of Maharashtra

2] 2015 All M R (Cri) 3780
Sk. Imam Sk. Azamoddin .Vs. State of Maharashtra

3] 2016 All M R (Cri) 142
SectionGopal @ Gopi Ramds Shete .vs. State of Maharashtra

The learned counsel submitted that the appeal of appellant Ismail

Shah be allowed.

ii] Learned counsel Mr. De for accused no.2 would submit

that no overt act is attributed by the victim against accused no.2. He

also submitted that from the first information report and from the

evidence of the prosecution witnesses it is clear that there was no

participation on the part of accused no.2. It is also his submission

that even if the entire prosecution case is taken into account, it does

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not spell out the intention on the part of accused no.2 that the victim

should be raped. To substantiate his submissions, he invited my

attention to the following reported cases :-

1] AIR 1975 SC 175
SectionShri Ram .vs. State of U.P.

2] AIR 1960 Bom 393
SectionMalan W/o Rama and others .vs. State of Bombay
and another

He submitted that the Court below has committed an error in

convicting accused no.2 with the aid of Section 109 for the offence

punishable under Section 376 of the Indian Penal Code. He,

therefore, prayed that the appeal of appellant Raju be allowed.

iii] Per contra, Mr. P.S. Tembhare, the learned Additional

Public Prosecutor submitted that evidence of the victim is

trustworthy and in the case like this, when the evidence of victim is

found to be trustworthy, corroboration from medical evidence is not

required. He invited my attention to the law laid down by the

Hon’ble Apex Court in (2013) 7 SCC 278 in the case of SectionGanga

Singh .vs. State of Madhya Pradesh ; and (2014) 10 SCC 327 in

the case of SectionMukesh .vs. State of Chhattisgarh. So also his

submission is that the Court below was right in convicting accused

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no.2 since he was found to be present at the time of the incident.

He, therefore, submitted that both the appeals be dismissed.

III] ANALYSIS OF THE PROSECUTION CASE :-

5. The medical report of the victim is available at Exh.48.

Since, this document was admitted by the defence during the course

of trial, the Doctor who examined the victim, was not examined by

the prosecution. As per the medical report, the Doctor found no

injury over the body of the victim nor any injury on her private part

and her hymen was found to be torn old. After her examination, the

Doctor has given her following impression :

1] Cannot be commented whether the intercourse has
occurred or not
2] She is capable of sexual intercourse.
3] No injury over external genitalia.
4] Public hair sent.

5] Vaginal swab sent.

6] Blood Sample sent
7] Time of intercourse cannot be commented upon.

6. The Chemical Analyser’s report is at Exh.31. Neither

semen nor Spermatozoa were detected on clothes of appellant no.1.

No semen stains were found on the clothes of the victim. In the

backdrop of the aforesaid piece of evidence in the prosecution case, it

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is the submission of the learned counsel for accused no.1 that for

want of corroboration, the victim’s version is required to be

discarded.

7. It is a trait law that even in cases wherein there is a lack

of corroboration to the evidence of victim, a conviction can be safely

recorded, provided the evidence of the victim does not suffer from

any basic infirmity and the ‘probabilities factor’ does not render it

unworthy of credence. As a general rule, corroboration cannot be

insisted upon, except from medical evidence, where, having regard

to the circumstances of the case, the medical evidence can be

expected to be forthcoming, is the dictum laid down by the Hon’ble

Apex Court in SectionMadan Gopal Kakkad .vs. Naval Dubey and another

reported in (1992) 3 SCC 204.

In Mukesh’s case (supra) the Hon’ble Apex Court has

ruled as under :

“15. Further, as has been repeatedly held by this
Court in a catena of cases, the sole testimony of the
witness (sic prosecutrix) is sufficient to establish
commission of rape even in absence of
corroboration.”

The Hon’ble Apex Court in Ganga Singh’s case (supra),

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ruled that rape victim is not an accomplice, but the victim of offence.

She stands on same footing as injured witness. There is no provision

requiring corroboration to the sole testimony of the prosecutrix as it

is required in case of accomplice.

8. Keeping the above principles in mind, let us scrutinize

the evidence of the victim and her mother Savitrabai.

9. It is an admitted position on record that the victim

(PW10) and her husband Arjunsingh (PW6) are 100% blind persons.

Marriage of the victim and Arjunsingh was performed on 04.01.1997

and she used to stay with him at New Delhi. She is issueless. She

came in 2001 from Delhi to her mother’s place at Wadi, Nagpur for

marriage and for treatment.

10. Evidence of PW5 Savitrabai shows that Namdeo Bagde,

who resides near her house, informed her that there is a place of

‘Pirbaba’ at village Lohari-Sawanga and if the said place is visited,

there can be some relief of getting issue. Her evidence would show

that she herself, the victim, Namdeo and her mother went to Lohari-

Sawanga. Even in the first information report (Exh.45) the same

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facts are narrated. From the line of cross-examination of Savitrabai

(PW5) and the victim (PW10), their presence is not at all disputed at

Lohari-Sawanga.

11. Evidence of the victim and her mother Savitrabai would

show that the victim was desperate to have issue. That was the

reason they visited at Lohari Sawanga on the say of Namdeo.

12. Evidence of Savitrabai (PW5) and the victim (PW10)

would show that on the day of commission of the offence of rape,

Namdeo and Arjunsingh were not present at village Lohari-Sawanga

since they had gone to Wadi for making arrangement of money as

the accused persons asked the victim that she should stay there for

one and quarter month.

13. From the evidence of Savitrabai and the victim it is clear

that on the day of the incident, only three women were there namely

(1) victim, a fully blind woman (2) Savitrabai, mother of the victim

and (3) Devkabai, mother of Namdeo. Evidence of Savitrabai and

the victim would show that on prior days of the commission of the

offence, both the accused used to light incense sticks and used to

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give ‘angara’ (ash powder) to the victim. According to the evidence

of these two material witnesses, on the day of the incident at 8.00

pm, both the accused came in the house with some lemons.

According to the version of Savitrabai, both the accused asked her

and mother of Namdeo to seat outside the house as they will have to

perform some pooja with victim. They also asked her to prepare

some oil lamps of wheat floor. Accordingly, those were prepared and

were handed over to the victim. Thereafter, as per the version of

Savitrabai, she and Namdeo’s mother sat in the corridor of the house

and victim and both accused were inside the room. As per the

evidence of Savitrabai, after 5-10 minutes, accused Raju came out of

the room and asked them to take the victim. Accused no.1 Ismail

went away by another door of the house. Evidence of Savitrabai

would show that when she came inside the room, she noticed that

the victim was weeping and she told Savitrabai that accused no.1

Ismail Shah committed rape on her.

14. Evidence of the victim (PW10) also shows that on the

date of the incident at 8.00 pm both the accused came to the house

of Namdeo and that time she, her mother and mother of Namdeo

were present. As per her evidence, both the accused asked her

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mother to prepare 9 lamps of floor, which were prepared and they

were handed over to the accused persons. Her evidence would show

that both the accused asked her mother and mother of Namdeo not

to stay in the room while doing pooja and therefore, they were sent

out of the room.

According to the evidence of the victim, accused no.1

Ismail started pooja. He gave two lemons in her hand and he asked

her to do as per his say. Then an oath was administered to her.

Thereafter, accused no.1 Ismail asked her to lay down. Accordingly

she laid down. That time she was wearing salwar-kurta. Those were

removed. According to the version of the victim, she was under an

impression that they are doing religious act and therefore, she

allowed to take out her salwar and her underwear. According to the

version of the victim from the witness box, that time accused Raju

went outside the room and thereafter, accused no.1 Ismail

committed rape on her. Her version would show that as accused

no.1 sat on her person, his beard came in her hand. Her evidence

shows that accused no.1 asked her not to disclose this fact to

anybody.

15. Evidence of Savitrabai (PW5) firmly established

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presence of both the accused on the date and time of the incident.

They were also identified by her during the course of the trial.

16. The statement of victim was also recorded in Braille

language. Evidence of Kanchan Najpande (PW7) shows that she was

serving in a Blind Boys Institute as a Social Worker. Her evidence

would show that Mr. D.L. Meshram, Vice Principal (PW9) translated

the contents of her statement, which was in Braille language and as

per his dictation, she has got it written in Marathi. The said is at

Exh.36. Her evidence would show that it was a statement of the

victim and the translation is in her handwriting. It is at Exh.37.

Evidence of the victim as well as her mother would show that as

there was no male member and it was a night time, the matter could

not be reported to the police and on the next day, on arrival of her

husband, the report was lodged. She also state that on the next day

she took bath.

17. Since, the victim took bath prior to she lodging the

report, though her vaginal swab was collected, it appears that the

scientific evidence do not show presence of semen on her person.

There is nothing in her cross-examination to show that she was

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aware of the fact that she should not have taken bath after the

commission of rape and prior to her medical examination. A blind

lady coming from lower strata of the society may not be knowing the

fall out of taking bath prior to her medical examination. In that view

of the matter, I am not impressed by the submission of the learned

counsel for respondent no.1 that his semen was not found in the

vaginal swab of the victim.

18. Evidence of the victim and her mother withstood the

lengthy cross-examination. The core of their version about presence

of accused persons and Savitrabai and mother of Namdeo being

asked to stay outside the room and the victim alone was in the

company of accused persons in the room, is not at all shattered.

19. Also, the evidence of victim and Savitrabai is also

corroborated from the contemporaneous document (Exh.23) the

seizure panchanama, which shows that from the spot of incident the

Investigating Officer has seized three match sticks, one bidi and

burnt incense sticks.

20. In my view, not noticing any external injuries on the

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person of the victim and on private part, does not absolve accused

no.1 Ismail Shah.

21. The victim was a desperate lady to have an issue. In a

faith that 'Pirbaba' would do something for her, this blind lady visited

Lohari-Sawanga, which she would not have otherwise visited. Her

evidence shows that she went there on 20.3.2001 and the incident

has occurred on 08.4.2001. Thus, during this period, she was staying

there and as per her evidence, after she was introduced to both the

accused persons, they used to go and they used to lit incense stick

and used to give 'angara' to her. Her evidence would show that it

was told to her that she required to stay there for a longer period and

she agreed for that though she was not having money. Therefore,

her husband Arjunsingh went along with Namdeo to make financial

arrangements. Thus, in my view, it shows desperation on the part of

lady to have to have progeny to her.

22. At the time of the incident, no male member was present

in the house. Both the accused came after darkness was set in the

atmosphere. They asked Savitrabai and other lady to stay outside

the room and took the victim inside the room. What happened to

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her when she was in the company of the accused persons is vividly

described in the oral report (Exh.45) and in her version from the

witness box. It shows that the victim since was having faith that

pooja will be performed resulting into fulfillment of her desire, she

allowed accused no.1 to do the acts which she attributed to him in

her oral report as well as in her evidence. Thus, in my view, this is

nothing but a total surrender to her fate and her faith was, accused

no.1 is doing religious acts and his acts are the rituals of the pooja.

We cannot forget that this lady is a total blind lady. In view of this, if

there was no resistance on her part to accused no.1, it is not

unnatural and if there was no resistance whatsoever in nature,

existence of resistance in the nature of injuries stands completely

ruled out. In view of this, I am not prepared to accept the

submission of the learned counsel for accused no.1 that absence of

corroboration from medical evidence should be ruled in his favour.

23. The submission of the learned counsel for the appellants

is that in the report Exh.48, the Doctor has stated that it cannot be

commented whether intercourse has occurred or not. Whether the

opinion of the Doctor is binding on the Court or not, is decided by

the Hon'ble Apex Court in Madan Gopal Kakkad's case (supra). In

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paragraph 34 of the judgment, the Hon'ble Apex Court has ruled as

under :

"34. A medical witness called in as an expert to
assist the Court is not a witness of fact and the
evidence given by the medical officer is really of an
advisory character given on the basis of the symptoms
found on examination. The expert witness is expected
to put before the Court all materials inclusive of the
data which induced him to come to the conclusion
and enlighten the Court on the technical aspect of the
case by explaining the terms of science so that the
Court although, not an expert may form its own
judgment on those materials after giving due regard
to the expert's opinion because once the expert's
opinion is accepted, it is not the opinion of the
medical officer, but of the Court."

In view of this, merely because the Doctor is stating that it cannot be

stated as to whether the sexual intercourse has taken place or not,

the said cannot be weighed in the mind of the Court when the

version of the victim is found to be trustworthy and inspires

confidence.

24. The judgment cited by the learned counsel for accused

no.1 in Ashok Thakrae's case (supra) shows that the accused forcibly

laid down the victim, a small girl and committed rape on her. In that

scenario, the Court expected medical evidence. In this context, the

reported case cited by the learned counsel for accused no.1, in my

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view, could not support the submission since, this can be clearly

distinguished on the facts itself.

25. This blind lady, who otherwise resides at Delhi was not

having any reason to nurse grudge against accused persons.

Learned counsel for the accused no.1 submitted that the victim could

not identify him during course of the trial through his voice. True it

is, however, I do not attach any importance to it. During course of

the investigation, voice sample of accused no.1 was not collected.

May be a lapse on the part of the Investigation Officer, however, for

the lapse on the part of the Investigating Officer, justice cannot be

made victim. Further, there is always possibility of changing voice by

him during the course of trial just to misdirect the victim.

26. In the present case, right from lodging the report it is the

version of the victim that at the time of incident, she pushed accused

no.1 and his beard came in her hand. During the course of trial and

also during the course of hearing of this appeal, it is noticed that

accused no.1 is sporting long beard. There is nothing to show that

anybody even remotely suggested to the victim that accused no.1

Ismail Shah sports long beard. In view of this, the statement of the

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24 APEAL109.04+1.odt

victim which goes unchallenged during her cross-examination that

accused no.1's beard came in her hand, speaks volumes against

accused no.1 and the Court is required to attach great weightage to

this piece of evidence.

27. The version of the victim is very clear that sexual

intercourse with her was against her will and wish. Accused no.1 has

taken disadvantage of two things i.e. (1) blindness of the victim and

(2) her desperation to have to have a child.

28. After going through in detail in minute manner, there is

no hesitation in my mind to record a finding that the version of the

victim is trustworthy and far from implicating the accused falsely.

Had there been a tendency on her part to implicate falsely, she

would have also attributed overt acts against accused no.2 Raju. Not

attributing any overt acts and/or not accusing that he also committed

rape on her, in my view, lends credibility to victim's version.

29. On re-appreciation of the entire prosecution case, there

is no hesitation in my mind that accused no.1 Ismail Shah has

committed sexual intercourse with the victim against her wish and

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25 APEAL109.04+1.odt

will and by taking advantage of the fact situation. Therefore, I am

of the view that the prosecution has proved its case against accused

no.1 - Ismail.

IV] FOR ACCUSED NO.2 RAJU ANNEWAR :-

30. Though, presence of accused no.2 Raju is found to be

proved, from the first information report as well as from the evidence

of the victim, it is clear that he did not participate in the acts of

removing of clothes of the victim. Even her first information report

would show that at the time of the overt acts committed by accused

no.1 Ismail, the victim is not sure about the presence of Raju inside

the room. Even from the evidence of Savitrabai, it is clear that after

they were asked to stay outside and the victim was taken inside the

room by accused nos.1 and 2, after some time accused no.2 came

out. Accused no.2 was not charged for the offence punishable under

Section 376 of the Indian Penal Code. He was charged for abating

crime. In Shri Ram's case (supra), the Hon'ble Apex Court in

paragraph 6 of the judgment has observed as under :

"6. The question which then arises for consideration,
a question to which the Sessions Court and the High
Court have not paid enough attention, is whether the
only inference which arises from the fact that Violet
gave the particular shout is that by so doing, she

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26 APEAL109.04+1.odt

intended to facilitate the murder of Kunwar Singh,
Section 107 of the Penal Code which defines
abetment provides to the extent material that a
person abets the doing of a thing whom
"Intentionally aids, by any act or illegal omission, the
doing of that thing". Explanation 2 to the section
says that -

"Whoever, either prior to or at the time of
the commission of an act, does anything in
order to facilitate the commission of that
act, and thereby facilitates the commission
thereof, is said to aid the doing of that act."

Thus, in order to constitute abetment, the abettor
must be shown to have "intentionally" aided the
commission of the crime. Mere proof that the crime
charged could not have been committed without the
interposition of the alleged abettor is not enough
compliance with the requirements of Section 107. A
person may, for example, invite another casually or
for a friendly purpose and that may facilitate the
murder of the invitee. But unless the invitation was
extended with intent to facilitate the commission of
the murder, the person inviting cannot be said to
have abetted the murder. It is not enough that an
act on the part of the alleged abettor happens to
facilitate the commission of the crime. Intentional
aiding and therefore, active complicity is the gist of
the offence of abetment under the third paragraph of
Section 107."

31. Similarly, this Court in SectionMalan Rama and others .vs. State

of Bombay cited (supra) found that mere presence at the time of

commission of crime is itself cannot be attributed as intentional aid.

In my view, the prosecution has not brought on record anything to

show that accused no.2 Raju was sharing intention with accused no.1

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27 APEAL109.04+1.odt

Ismail Shah about the sexual intercourse. Mere presence of Raju is

not sufficient especially when in the first information report the

victim has stated that Raju was assistant of accused no.1.

32. Evidence of the victim would show that there was

prelude to the incident of sexual intercourse. That was lighting of

incense sticks, giving lemons and taking out the lemons on the body

of the victim. Even as per the prosecution case, presence of victim

was there for performing pooja. In that view of the matter, when it

is not firmly established that at the time of actual commission of

rape, Raju was inside the room and when victim herself absolves him

by not attributing anything, in my view, the Court below has

committed an error in convicting accused no.2 Raju with the aid of

Section 109 for the offence punishable under Sectionsection 376 of the

Indian Penal Code.

V] CONCLUSION :-

33. On re-appreciation of the entire prosecution case, I pass

the following order :

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ORDER

1. Criminal Appeal No.109/2004 filed by appellant-

Raju Annewar is allowed.

2. The judgment and order of conviction convicting

appellant - Raju Annewar in Sessions Trial No. 370/2001

by the learned 1st Ad-hoc Additional Sessions Judge,

Nagpur in 08.12.2004 is quashed and set aside.

3. Appellant Raju is acquitted of the offence punishable

under Section 109 read with Section 376 of the Indian

Penal code.

4. Appellant Raju being on bail, his bail bonds shall

stand cancelled.

5. Criminal Appeal No. 164/2004 filed by appellant -

Ismail Shah is hereby dismissed.

6. The judgment and order of conviction convicting

appellant Ismail Shah in Sessions Trial No. 370/2001 by

the learned 1st Ad-hoc Additional Sessions Judge, Nagpur

on 08.12.2004 stands confirmed.

7. Appellant - Ismail Shah, who is personally present in

the Court, is taken into custody and he be sent to Central

Prison, Nagpur to serve out the remainder of his sentence.

V.M. DESHPANDE, J.

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