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 Maharashtra2] 2015 All M R (Cri) 3780
Sk. Imam Sk. Azamoddin .Vs. State of Maharashtra3] 2016 All M R (Cri) 142
SectionGopal @ Gopi Ramds Shete .vs. State of MaharashtraThe 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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18 APEAL109.04+1.odtpresence 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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19 APEAL109.04+1.odtaware 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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20 APEAL109.04+1.odtperson 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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21 APEAL109.04+1.odther 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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22 APEAL109.04+1.odtparagraph 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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23 APEAL109.04+1.odtview, 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.odtvictim 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.odtwill 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
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26 APEAL109.04+1.odtintended 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.odtIsmail 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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28 APEAL109.04+1.odtORDER
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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