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Vijay Tulshiram Bangar vs The State Of Mah.Thr.Pso Tatngaon on 28 June, 2019

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

CRIMINAL APPEAL NO. 618 OF 2005
with
CRIMINAL APPEAL NO. 612 OF 2005
…………..

CRIMINAL APPEAL NO. 618 OF 2005

APPELLANT : Vijay S/o Tulshiram Bangar,
Aged about 21 years,
R/o Tunki Bk., Tq. Sangrampur, Dist. Buldhana.

VERSUS

RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Tamgaon,
Tah. Khamgaon, Dist. Buldhana.

WITH
CRIMINAL APPEAL NO. 612 OF 2005

APPELLANT : Anil S/o Sahadeo Wankhede
Aged about 21 years, Occupation –
R/o Tunki Bk., Tq. Sangrampur, Dist. Buldhana.

VERSUS

RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Tamgaon,
Tah. Khamgaon, Dist. Buldhana.

—————————————————————————————————-
Mr. Saurabh Singha, Advocate appointed for the appellant
in Cri. Appeal No. 618/05.
Mr. S. V. Sirpurkar, Advocate for the appellant in Cri. Appeal
No. 612/05.
Mr. S. M. Ukey, Addl. P. P. for respondent /State in both appeals
—————————————————————————————————-

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CORAM : V. M. DESHPANDE, J.
Judgment Reserved on : JUNE 21, 2019.
Judgment pronounced on : JUNE 28, 2019

JUDGMENT

1. These two appeals were heard simultaneously and they

are decided by this common judgment. These appeals arise out of

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

hoc Additional Sessions Judge, Khamgaon in Sessions Case No.

06/2005 on 24.10.2005.

2. By the aforesaid judgment and order of conviction, the

Court below recorded a finding of guilt for the offence punishable

under Section 376(1) of the Indian Penal Code against appellant –

Vijay Tulshiram Bangar in Criminal Appeal No. 618/2005 and he was

sentenced to suffer rigorous imprisonment for Ten years and to pay a

fine amount of Rs.1,000/- and in default he was ordered to suffer

simple imprisonment for six months

Appellant – Anil Sahadev Wankhede in Criminal Appeal

No. 612/2005 was found to be guilty for the offence punishable

under Section 114 read with Section 376(1) of the Indian Penal Code

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and was directed to suffer rigorous imprisonment for Ten years. He

was also ordered to pay a fine amount of Rs.1,000/- and in default of

payment of fine to suffer simple imprisonment for six months.

Both the appellants were found to be guilty for the

offence punishable under Section 506 read with Section 34 of the

Indian Penal Code and therefore, they were directed to pay a fine of

Rs.1,000/- and in default of payment of fine to suffer simple

imprisonment for six months.

3. Appellant – Vijay Bangar is the accused no.1, whereas

appellant – Anil Wankhede is the accused no.2. They will be referred

to in this judgment as per their position in the trial.

4. Accused no.1 Vijay is represented by Advocate Saurabh

Singha, the counsel appointed to represent him, whereas accused

no.2 Anil is represented by Advocate S.V. Sirpurkar. The State is

represented in these two appeals by Mr. S.M. Ukey, the learned

Additional Public Prosecutor.

I] FACTUAL MATRIX :-

A] PSI Bhaskar Sonaji Mohod (PW4) on 15.11.2004 was

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attached to Police Station, Tamgaon. Along with him, ASI Subhash

Kale was also attached to the said police station. On the said date,

investigation of Crime No. 135/2004 for the offences punishable

under Sections 376, Section506 read with Section 34 of the Indian Penal

Code, registered by ASI Subhash Kale, was entrusted to PSI Bhaskar

Mohod (PW4).

B] The offence was registered on the basis of oral report

lodged by the victim (PW1) herself. Her oral report is at Exh.17. On

the basis of the said oral report, ASI Subhash Kale registered the

crime and the printed first information report is at Exh.19. When the

investigation was entrusted to PW4 Bhakar Mohod, that time the

victim was present in the police station itself.

C] The oral report of the victim is dated 15.11.2004. As per

the said report, she resides at village Tunki along with her parents.

Her father is an agricultural labour. As per the report, on 14.11.2004

at night, she along with her younger sister Diksha (PW3) went to

Sonala Road as usual to answer nature’s call at about 8.30 in the

night. While returning after answering nature’s call, both the

accused of the same village came near Zilla Parishad school and

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caught her and extended threat that if she raises voice, they will kill

her. Accused no.2 Anil pressed her mouth and caught hold of her

hands and accused no.1 Vijay was asking her to remove her clothes.

Both of them took her near urinal of the school. Accused no.1 Vijay

removed her pant/nicker. He also removed his clothes and forcibly

inserted his private part in her private part and committed sexual

intercourse and discharged his semen into her vagina. Accused no.2

Anil pressed her mouth and caught hold of her hands. Diksha, her

younger sister, rushed towards house and thinking that her parents

would come, both the accused ran away from the spot. Thereafter,

she started going towards the house. That time she noticed her

parents on the road itself. She narrated the entire incident to them

and as it was night time and there was no vehicle, they could not

come to police station to lodge the report. With these facts narrated

in the oral report, the crime was registered.

D] As the victim was present in the police station and the

investigation was entrusted to PSI Bhaskar Mohod, he recorded her

statement. Thereafter, he along with the victim visited the spot of

the incident. He prepared the spot panchanama (Exh.26) in

presence of panchas. Thereafter, he referred the victim to hospital.

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He also recorded the statement of victim’s mother, sister and brother.

On the same day, he received the sample of pubic hair, slides from

hospital. Those were seized vide seizure panchamama (Exh.27). He

also seized the clothes of the victim under seizure panchanama

(Exh.19). He also arrested both the accused and referred them to

the hospital. Under Exh.28, the Investigating Officer seized the

clothes of accused No.1 Vijay. Under seizure panchanama Exh.29, he

seized the samples of pubic hair, semen etc. of the accused received

from hospital. Under requisition letter (Exh.30), the Investigating

Officer sent the seized articles to the Chemical Analyser. PW4

Bhakar Mohod filed the final report in the Court of learned

jurisdictional Magistrate.

E] The learned jurisdictional Magistrate found that the

offence is exclusively triable by the Court of Sessions. Therefore, the

case was committed to the Court of Sessions. After its committal, it

was registered as Sessions Case No. 06/2005 and was alloted on the

file of learned 1st Ad-hoc Additional Sessions Judge, Khamgaon, who

framed the charge for the offence punishable under Section 376 read

with Section 34 of the Indian Penal Code against accused no.1 Vijay

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and also framed a charge against accused no.2 Anil that he abeted

accused no.1 in commission of rape. They were also charged for the

offence punishable under Section 506 read with Section 34 of the

Indian Penal Code. The charges framed against the accused persons

were denied by them and they claimed for their trial.

In order to bring home the guilt of the accused persons,

the prosecution has examined in all four witnesses. They are, PW1

victim, PW2 Dr. Rajesh Falke, who examined the victim, PW3 Diksha,

younger sister of the victim and PW4 PSI Bhaskar Mohod, the

Investigating Officer.

F] During trial, statements of both the accused persons

were also recorded by the learned Judge of the Court below under

Section 313 of the Code of Criminal Procedure. To a question

whether they intend to examine any defence witness, both answered

in affirmative and accordingly they examined Dr. Pramod Rojatkar

(DW1), Vishwanath Sasane (DW2), Dnyaneshwar Bendarkar (DW3)

and Sayyad Lukman (DW4). From the line of cross-examination and

adducing version through the defence witnesses, the accused

persons, it appears, have taken the plea of alibi.

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G] The learned Judge of the Court below, on an

appreciation of the prosecution case, found that the version of the

victim is trustworthy and safe for recording conviction. Accordingly,

after giving due weightage to the medical evidence, the learned

Judge passed the impugned judgment. Hence, this appeal.

II] SUBMISSIONS :-

i] Common thread of submissions of both the learned

counsel for the accused persons is that they are falsely implicated in

the crime. According to them, the medical evidence belies the victim

inasmuch as Dr. Rajesh (PW2) could not notice any injury over the

thighs, buttocks, back and over breasts of the victim. They also

submitted that though the doctor has found that hymen was torn,

Exh.21 the medical certificate does not show that hymen was torn

freshly. They also submitted that the doctor, on examination of the

victim, noted in Exh.21 that the blood oozing from vagina was brown

in colour and the doctor has said that it may be menstrual blood. In

view of the findings in medical certificate (Exh.21), they submitted

that it would be very unsafe to accept the version of the victim as

trustworthy since her version is not found corroborated by

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contemporaneous document (Exh.21). To buttress this, they relied

on two rulings of the Hon’ble Supreme Court in the case of (1)

SectionSadashiv Ramrao Hadbe .vs. State of Maharashtra and another

reported in (2006) 10 SCC 92 ; and (2) SectionDola @ Dolagobinda

Pradhan and another .vs. The State of Orissa, reported in 2018 All

SCR (Cri) 1394. They also relied on a writing by Jamie Eske, which

they took out from Internet to point out that brownish blood may

indicate that it’s a menstrual blood. It is also their submission that

the conduct of the victim is also unnatural in not raising voice for

help, though the spot of the incident in question is surrounded by

various shops. They submitted that evidence of Diksha (PW3) would

show that the house of the victim was only 3 minute away from the

spot and therefore, they submitted that the incident could not have

occurred within such a short span. They also raised suspicion about

the truthfulness of the prosecution case for not examining any person

whose shops were situated near the spot of the incident.

ii] According to the learned counsel for the accused

persons, evidence of the Investigating Officer (PW4) would show

that though the muddemal articles were sent to the Chemical

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Analyser, the prosecution did not file on record the Chemical

Analyser’s report. In view of that it is their submission that even the

scientific evidence is absent in this case. They, therefore, submitted

that this is a fit case wherein the benefit of doubt should be extended

in favour of the appellants.

iii] Both the learned counsel would submit that though both

the accused took a plea of alibi before the Court below and to

substantiate their defence, they examined four defence witnesses,

they submitted before this Court that on the instructions from the

accused persons, who were personally present during course of the

hearing, they are not pressing the said aspect and therefore, they did

not rely at all on the testimonies of four defence witnesses.

iv] Alternatively, they submitted that compromise has

arrived at in between the victim and the accused persons. Therefore,

lesser punishment be imposed upon them and for that they relied on

the decision of the Hon’ble Apex Court in the case of SectionBaldev Singh

and others .vs. State of Punjab, reported in AIR 2011 SCC 1231.

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v] Per contra, Mr. Ukey, the learned Additional Public

Prosecutor for the State with vehemence submitted that the helpless

girl was subjected to fulfill the lust. He submitted that the Court

below has rightly relied upon the evidence of the victim. He

submitted that if the version of the victim is found to be trustworthy,

then asking the corroboration to her version is nothing but to rub salt

on the injury. He submitted that the appeal be dismissed.

III. CRITICAL ANALYSIS OF THE PROSECUTION CASE :-

5. To prove the charge, the prosecution has examined four

witnesses, they are PW1 victim, PW2 Dr. Rajesh Falke, who

examined the victim, PW3 Diksha, the younger sister of the victim,

who was accompanying her when they were returning after

answering nature’s call and in her presence accused persons took

away the victim towards the place of incident where they committed

rape and PW4 PSO Bhaskar Mohod, the Investigating Officer.

A. ANALYSIS OF EVIDENCE OF VICTIM

6. It is the trait law and the established principle by various

judicial pronouncements that if evidence of the victim is found to be

trustworthy, reliable and inspires confidence in judicial mind of the

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Court, her solitary evidence can be the basis for recording conviction.

7. The law is also settled that unless there are compelling

reasons which necessitate looking corroboration to the victim’s

evidence, the Courts should not find difficulty in acting on the

testimony of the victim of sexual assault alone to convict an accused

when her testimony is found to be reliable and inspires confidence.

8. Reliance placed on Sadashiv Hadbe’s case (supra) can be

distinguished on the facts. In the said case, the appellant was

running a clinic and on the date of the incident, the victim along

with her husband came to his clinic on 17.12.1990 and during her

medical examination, it is alleged that the doctor meddled with the

private parts of the said victim. The Hon’ble Apex Court found in

paragraph 9 of the said report that though the accused could be

convicted on the sole testimony of the prosecutrix, if it is capable of

inspiring confidence in the mind of the Court. However, if the

version given by the prosecutrix is unsupported by the medical

evidence or the whole surrounding circumstances are highly

improbable, then the Court shall be extremely careful in accepting

the sole testimony of the prosecutrix when the whole case is

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improbable and unlikely to happen. Reliance placed on Dola @

Dolgobinda Pradhan’s case (supra) also, in my view, is not useful for

the accused persons since in paragraph 13 of the said report, it is

observed by the Hon’ble Apex Court that although the prosecutrix

admitted that she sustained bleeding injuries on her hand because of

the shattering of eight bangles worn by her on her right hand and

seven bangles on her right hand, the medical records do not support

the said version and no injuries were found on the breasts. No

internal injuries were there on any part of her body. The facts of

Dola’s case and the present case are altogether different.

9. The crucial question is whether the evidence of the

victim inspires confidence or not.

10. The incident in question has occurred on the day of

“Bhaubeej”, the part and parcel of Diwali festival and the said day is

observed in every household in this part of the region. On the said

day, a sister performs pooja of her brother and the said is only after

sighting of the moon. This day is not celebrated jointly with other

members of the community, but is it a solemn private affair of every

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family. According to the version of the victim, the incident took

place in between 8.00 to 8.30 pm on the said day. Though, in her

cross-examination it is brought on record that the place is

surrounded by various shops, there is no evidence on record to show

that at that particular point of time any of the shops was open. If

that be so, mere existence of the shops were of no use if they are not

open and the fact that the incident has occurred near the toilet of the

school, looking to the timing, there is no difficulty in my mind to

record a finding that at that particular point of time, the said place

was “isolated” one.

11. The incident in question has occurred on 14.11.2004

and the oral report is lodged on 15.11.2004 at Police Station,

Tamgaon. The printed first information report is at Exh.18. It shows

that the information was received at police station on 15.11.2004 at

8.30 in the morning. The distance between village Tunki where the

incident has occurred and the police station is 18 kilometers.

Further, the victim in her oral report itself has offered an explanation

to the effect that as the incident occurred in night time and there was

no vehicle available, on the very same day the report could not be

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lodged. Even in her substantive evidence, she deposed that after the

incident was narrated to her parents, they all went to the house of

Police Patil and narrated the incident, however, he advised them to

go to police station and accordingly they all went to Sonala police

chowki, though in deposition she states Sonala police station, on

foot. There they found nobody present. So they returned to home

and as there was no conveyance available, they came back and on

the next day they lodged the report. Though, in the present case it

was not the submission before this Court on behalf of both the

advocates for the appellants that the prosecution case is not truthful

because of delay in lodging the report, in my view, the victim has

given plausible explanation for lodging the report on the next day. I

am of the view that the explanation offered in both, the oral report

as well from the witness box by the victim, is acceptable one and the

delay cannot be an impediment in the prosecution case.

12. According to the evidence of the victim, when she and

her sister Diksha (PW3) were returning to home after answering the

nature’s call and when they reached to Zilla Parishad School, there

accused Anil caught hold the victim’s hand and thereafter they took

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the victim towards urinal of the school. Evidence of the victim and

Diksha corroborates each other on this aspect.

13. According to the victim, the incident of holding hand

occurred at the pan shop of Sachin Makode. This fact is also

corroborated by Diksha in her evidence. As per the version of the

victim, that time pan shop of Makode was closed and there is nothing

on record to disbelieve this version of the victim. At this stage,

according to the victim, Diksha ran away towards her home. This

also found corroboration in the evidence of Diksha.

14. According to the learned counsel for the appellants, if

the evidence of the victim is scanned then it shows that the accused

dragged her near the urinal of the school. According to the learned

counsel for the appellants if she was dragged from the spot i.e.

Sachin Makode’s pan shop to urinal of the school, there would have

been some sort of marks. At the first blush this submission looks to

be attractive, however, perusal of the entire record shows that there

is a variance in English version and vernacular version of the victim

on this aspect. In English version it is typed as “both the accused

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took me dragging to the urinal”, while in the vernacular it is written

as “R;k ‘kkGsP;k fo:n~/k fn’ksyk lfpu ekdksMsph ikuiV~Vh vkgs- nksUgh vkjksihauh eyk

eqh?kjki;Zar yksVr usys-” (emphasis supplied). When there is a difference

in English version and vernacular version, which version has to be

accepted is not in res integra. By a Division Bench decision of this

Court in the case of State of Maharashtra .vs. Bhaurao Doma

Udan and others, reported in 1996(1) Mh.L.J. 214, it is ruled by

this Court that in such an event, the vernacular version will prevail.

In that view of the matter, the victim was not ‘dragged’ from the pan

shop of Makode to the place of commission of the rate, rather she

was ‘pushed’ (yksV.ks). Further, it is not the version of the victim that

in that process she fell down. If that be so, the possibility of even

slightest external injury on her body is completely ruled out.

15. Evidence of the victim shows that accused Anil caught

hold of her hand and shut her mouth. Therefore, there was no

opportunity for the victim to raise shouts in order to call attention of

any passerby. According to the version of the victim, thereafter

accused Vijay removed her clothes and had sexual intercourse with

her. In her cross-examination also it is brought on record that

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accused Anil gagged her mouth. The only thing that could be

brought on record in the cross-examination is that she could not tell

which hand was caught by accused Anil, in my view, it is a very

minor omission. It is specifically brought on record through her

cross-examination that “I did not attempt to resist.” From the

aforesaid, it appears that in such a situation, the victim had

surrendered to her fate and did not resist at all. Once it is

established that she offered no resistance, the possibility of any

marks whatsoever on her body showing the violence is completely

ruled out. The evidence of the victim, in my view, after its very

careful reading shows that it is far away from any exaggeration. Her

evidence would show that the victim is not having any tendency to

falsely implicate anybody. The victim has given truthful version. If

the victim was having any tendency to exaggerate or deposing

falsely, she could have implicated accused Anil also that he has also

committed rape on her. Evidence of the victim shows that the act of

forcible sexual intercourse was done only by accused Vijay. The role

attributed to accused Anil is that he facilitated accused Vijay to

commit heinous act of committing forcible sexual intercourse on the

victim against her will. On re-appreciation of evidence of the victim

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independently, I record a finding that her version is truthful. She

gives truthful account of what happened to her at the hands of both

the accused and since her testimony is found to be away from

improvements, barring one or two, which has no bearing in respect

of the actual sexual assault on her, in my view, her solitary evidence

is sufficient to record finding of guilt against both the accused

persons.

B. MEDICAL EVIDENCE

16. The victim was examined when she was referred by

Police Station, Tamgaon at General Hospital, Khamgaon on

15.11.2004. On the said day, Dr. Rajesh Falke (PW2) was the

Medical Officer. He examined the victim girl. Evidence of Dr. Falke

would show that there were no injuries over her thigh, buttocks,

back and over breasts, however, he noticed two abrasions and one

blunt injury and for that he issued her medical certificate (Exh.22).

As per injury certificate (Exh.22), one abrasion of size 0.5 cm was

found on the face above nasal portion of the victim and another

abrasion of size 0.5 cm was found above upper lip. The victim was

examined at 2.40 pm on 15.11.2004. The incident in question has

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occurred on 14.11.2004 in between 8.00 – 8.30 pm. According to

document Exh.22, probable age of the injury was within 24 hours. In

my view, these two abrasions are supportive to the version of the

victim.

17. It was argued before this Court that in injury certificate

(Exh.21), no injuries were found on thigh, buttocks, back and over

breasts and therefore, the medical evidence is not supportive to the

version of the victim. As observed in preceding paragraphs of this

judgment, the victim herself has stated that she did not offer any

resistance. If that be so, there cannot be any injuries on the private

parts of the victim.

18. Much capital was made by the learned counsel for the

appellants during course of their submissions on the basis of the

findings recorded in Exh.21 by PW2 Dr. Falke – (1) that brown

colour bleeding from vagina may be menstrual blood ; and (2)

hymen is torn at 3 0’clock and 9 O’clock position, however, the

Doctor has not mentioned whether it was fresh or old one.

19. It is the submission of the learned counsel for the

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appellants that in the cross-examination the doctor has opined that it

is true that definite opinion about the rape cannot be given and

therefore, it is submitted that there took no rape.

20. Modi, in a Textbook of Medical Jurisprudence and

Toxicology, 24th Edition, states that rape is a crime and not a medical

diagnosis made by the Medical Officer while treating the victim. It is

a charge made by the Investigating Officer on the complaint made by

the victim. The law on the issue of appreciation of the evidence of

medical expert is well settled in SectionPratap Mishra and others .vs. State

of Orissa, reported in AIR 1977 SC 1307. In paragraph 5 of the said

report, the Hon’ble Apex Court has found that it is well settled that

medical jurisprudence is not an exact science and it is indeed difficult

for any Doctor to say with precision and exactitude as to when a

particular injury was caused. According to Exh.21, hymen of the

victim was found to be torn at 3 O’clock and 9 O’clock position. It

also shows that only index finger could be inserted. From this

medical evidence, it is crystal clear that the victim was virgin.

According to the learned counsel for the appellants, in cross-

examination, the Doctor did state that due to leg stretching exercise,

there is a chance of rupture in hymen. He also admitted that in some

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schools there are games or leg stretching exercise like high jump and

long jump. They, therefore, submitted that due to this also there

could be hymen torn as noticed by the Doctor.

In my view, the aforesaid submission is required to be

floored down. What was stated by the Doctor was general in nature.

The victim was subjected to very lengthy cross-examination. Nothing

was suggested to her that she used to do leg stretching exercise or

she used to participate in the games like long jump or high jump. In

absence of that, torn of her hymen cannot be attributed to such

activities as sought to be suggested by the Doctor, by the learned

cross-examiner.

21. No doubt true, in Exh.21 it is not stated by the Doctor

that hymen was torn freshly, however, at the same time it is also not

stated by the Doctor that it was old scar or it was old torn. On the

contrary, her vaginal examination shows that her vagina was

bleeding. Bleeding of vagina shows that torn must be fresh.

22. It is also the submission of the learned counsel for the

appellants that the blood that was oozing from vagina was brown in

colour and according to the Doctor, it may be menstrual blood.

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Insofar as the article of Jamie Eske, which was pointed out to the

Court, in my view, is not of any help at all to the appellants, if the

said article is read in its correct perspective. Further, the Doctor

himself is not sure as to whether it was menstrual blood or blood

from injury. Therefore, he has used phraseology “may be”.

Apart from that, only the victim could have the best

witness and/or her version would have been most important if

through her evidence it is brought on record that at the relevant time

she was in menses. In absence of anything on record to show that

she was in menses, this Court is not attaching any importance to the

words used “blood may be of menstrual” in Exh.21, rather this Court

positively record the finding that, that blood must be due to tear to

her hymen. In that view of the matter, I have no hesitation in my

mind that though, solitary version of the victim is sufficient in this

case to record the finding of guilt even her version finds due

corroboration from two documents, namely Exh.21 and Exh.22.

C. ABOUT C.A. REPORTS

23. It was also the contention of the counsel for the

appellants that in absence of scientific evidence on record, the Court

should grant benefit of doubt in their favour.

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24 APEAL612.05+1.odt

From the evidence of PW4 PSI Mohod, it is clear that he

sent the muddemal articles to the Chemical Analyser under

requisition (Exh.13). It is also clear that the CA reports were not

brought on record.

24. The scientific evidence in the nature of CA reports is

always a corroborative piece of evidence. This piece of evidence can

never take place of substantive evidence. When substantive evidence

is available on record and is found to be trustworthy, merely because

the CA reports were not brought on record, that does not render the

prosecution case untrustworthy and/or that cannot be the ground for

extending any benefit of doubt in favour of the accused. True that

the prosecution ought to have taken steps to file on record the CA

reports. Not bringing the CA reports on record is the lapse on the

part of prosecution. However, for lapse of the prosecution, justice

cannot become the victim. Justice cannot be denied to the victim girl

for inaction on the part of prosecuting agency.

D. ABOUT DEFENCE WITNESSES

25. Though, the learned counsel for the appellants did not

make submission in respect of plea of alibi and they even did not

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25 APEAL612.05+1.odt

read the version of the defence witnesses, this Court being the final

Court for recording the facts, has gone through the version of four

defence witnesses and their cross-examination. From their evidence,

it is crystal clear that DW3 Dnyaneshwar and DW4 Sayyad Lukman

are the got up witnesses. DW1 is Dr. Pramod Rajotkar. His evidence

would show that on 14.11.2004, one Sujita Bhaskar Wankhede came

in Primary Health Center, Sonala along with accused Anil and she

was having dysentery (loose motion). His evidence also does not

inspire confidence since he could not point out the register, which is

duly maintained in the hospital to show that Sujita was admitted in

the hospital. The learned Judge of the trial Court, in my view, has

rightly disbelieved the version of the defence witnesses, including the

version of DW2 Vishwanath, who tried to point out regarding the

enmity between the father of the victim and others.

E. ABOUT ACCUSED ANIL

26. According to the learned counsel for accused Anil, he

has not committed rape. He, therefore, submitted that the sentence

imposed on him similar to the sentence imposed on accused Vijay is

harsh.

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26 APEAL612.05+1.odt

27. From the evidence of victim (PW1) and her sister Diksha

(PW3), presence of accused Anil is with accused Vijay right from

beginning. Not only that, right from beginning accused Anil

participated actively to see that opportunity is given to Vijay to

commit rape on victim girl. Active participation of accused Anil

could be seen from the overt acts of holding the hands of victim,

gagging her mouth, pushing her towards the place where ultimately

Vijay committed rape on her. Not only that, even at the time of

commission of rape, Anil was present there and at that time also he

caught her hands and shut her mouth. These acts on the part of Anil

show that he was sharing common intention with accused Vijay and

not only that he is abetor in the crime. Had accused Anil was not

sharing any common intention with accused Vijay, as a citizen of this

country he would have resisted accused Vijay from indulging into

heinous act of committing rape of a virgin girl. In my view,

therefore, the Courts below has rightly awarded adequate

punishment to him also.

28. Insofar as alternate submission of the learned counsel

for the appellants is concerned, there is nothing on record to show

that there was any compromise between the victim and accused

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27 APEAL612.05+1.odt

persons. Even otherwise, in my view, importance cannot be given to

the compromise in a heinous offence like rape. The Court below has

awarded appropriate punishment to each accused.

F. CONCLUSION

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

is no doubt in my mind that both the accused are liable for their

conviction and sentence as awarded to them by the trial Court.

Resultantly, both the appeals fail and hence the following order :

ORDER

1] Criminal Appeal No. 618/2005 and Criminal Appeal No.

612/2005 are dismissed.

2] The conviction and sentence as awarded to the

appellants by the judgment and order passed by the

learned 1st Ad-hoc Additional Sessions Judge, Khamgaon

in Sessions Case No. 06/2005 on 24.10.2005, is upheld.

3] Mr. Saurabh Singha, Advocate appointed in Criminal

Appeal No. 618/2005 to represent the appellant is

entitled to receive the professional fees, which is

quantified at Rs.5,000/- (Rupees Five thousand only)

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28 APEAL612.05+1.odt

from the High Court Legal Services Sub-Committee,

Nagpur.

4. The appellants – Vijay Tulshiram Bangar and Anil

Sahadeo Wankhede are present in the Court. At this

stage, Advocate Mr. Sirpurkar submits that one month’s

time be granted to appellant Anil to surrender to the bail

bonds.

Looking to the heinous nature of the offence, the

prayer is rejected.

5. The appellants are taken into custody. They be sent to

Central Prison, Nagpur to serve the remainder of their

jail sentence.

JUDGE

Diwale

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