SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vinod Baku Jadhao And Another vs State Of Maharashtra Thr. Police … on 15 March, 2018

1 jg.apeal.87.17.odt

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

CRIMINAL APPEAL NO. 87 OF 2017

(1) Vinod Baku Jadhao
Aged about 20 years, Occu : Labour

(2) Sunil Raju Jadhao
Aged about 20 years, Occu : Labour
R/o Both Wadar Zopadpatti, Arvi Naka,
Wardha, Tah and Dist. Wardha. … Appellants

VERSUS

State of Maharashtra,
Through Police Station Officer, Wardha
City Police Station, Wardha. … Respondent
————————————————————————————————-
Shri Mir Nagman Ali, Advocate for the appellants
Shri M. J. Khan, Additional Public Prosecutor for the respondent
————————————————————————————————————————

CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.

Date of reserving the judgment : 14/02/2018.

Date of pronouncing the judgment : 15/03/2018.

Judgment (Per : M.G. Giratkar, J)

Appellants have assailed the judgment of conviction

awarded by Special Judge, Wardha for the offence punishable under

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
2 jg.apeal.87.17.odt

Section 376-D of the Indian Penal Code, by which they are sentenced

to suffer rigorous imprisonment for 20 years and to pay fine of

Rs. 10,000/- in default to suffer rigorous imprisonment for two years.

2. The case of prosecution against appellants in short is as

under.

(i) P.W. 1 victim, aged about 16 years was residing at her paternal

aunt’s house at Wardha. She was studying in 10th Standard. On

26-9-2014, at about 5.15 to 5.30 a.m., she had gone to pluck the flowers

near Gode grounds. When she was plucking flowers, two persons came

from behind. They caught hold her. One boy was wearing black colour

shirt and blue colour pant and other boy was wearing yellow colour

shirt. Appellant nos. 1 and 2 were the said persons. After catching hold

of her, both appellants took her to a Gode ground. She tried to rescue

herself. She shouted, but appellant Vinod gagged her mouth and

pressed her throat. Both of them took her inside the Gode ground. She

escaped from their clutches but she fell down. They again caught her.

Both of them were saying that “vxj rqeus djus ugh fn;k rks ekj

Mkysaxs”. Appellant Vinod removed her clothes and did sexual intercourse

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
3 jg.apeal.87.17.odt

with her. She dressed up herself and went to her house. She told her

parents about the incident. Her brother searched both the accused but

not found.

(ii) After the incident, she went to police station along with her

brother and lodged report, Exhibit 26. She was examined by Medical

Officer. Medical Officer observed that there was sexual intercourse with

her.

(iii) Investigating Officer, P.W. 8 API Devkar investigated crime.

She came to know from secrete information about the accused. They

were arrested in the night. They were sent for medical examination.

Permission was obtained from the Court for identification parade of both

the accused. After getting permission from the Court, letter was issued

to the Executive Magistrate/Tahsildar on 6-10-2014. Tahsildar Priti

Dudulkar conducted test identification parade on 8-11-2014. Victim

identified both the appellants in presence of panchas. API Devkar sent

all the seized property to the Chemical Analyser and after complete

investigation, filed charge-sheet before the Special Court.

(iv) Charge was framed at Exhibit 12. Same was readover and

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
4 jg.apeal.87.17.odt

explained to both the appellants. They pleaded not guilty and claimed

to be tried. Their defence appear to be of total denial.

(v) The prosecution has examined following 8 witnesses.

(1) P.W. 1 Rachana Balaji Akhud (Exhibit 25)
(2) P.W. 2 Dr. Shilpa Ghanshamji Pande (Exhibit 33)
(3) P.W. 3 Amit Anil Pande (Exhibit 39)
(4) P.W. 4 Vrushab Vijayrao Deshmukh (Exhibit 46)
(5) P.W. 5 Shantanu Pradiprao Bhoyar (Exhibit 49)
(6) P.W. 6 Priti Mangesh Dudulkar (Exhibit 56)
(7) P.W. 7 Vijay Janardhan Tenpe (Exhibit 72) and
(8) P.W. 8 Ku. Ujjawal Vitthalrao Devkar (Exhibit 80)

(vi) Learned Special Judge has recorded statements of accused/

appellants under Section 313 of the Code of Criminal Procedure. After

hearing the prosecution and defence, learned Special Judge convicted

both the appellants for the offence punishable under Section 376-D of

the Indian Penal Code and sentenced them as aforesaid and hence, the

present appeal.

3. Heard learned counsel Shri Mir Nagman Ali for the

appellants. He has submitted that there was dark at the time of

incident. Victim has stated different identification mark in her evidence.

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::

5 jg.apeal.87.17.odt

Test identification parade was not carried out as per the Criminal

Manual. Appellants were not the persons who committed rape on the

victim. They are falsely involved in the case. In support of his

submissions, learned counsel for the appellants relied on following

decisions.

(1) Soni Vs. State of Uttar Pradesh [1982(3) SCC 368],

(2) The State of Maharashtra Vs. Dashrath s/o Vishwanath @

Aangrajya Pawar and Ors. [2017 ALL MR(Cri) 3838] and

(3) Dharmendra s/o Laxman Sahare Vs. The State of Maharashtra

[2014 ALL MR(Cri) 3196].

4. Learned counsel Shri Ali has submitted that no any blood

stain or semen found on the clothes of appellants. There is no evidence

to show that appellant no. 1 committed sexual intercourse with the

victim. There is no evidence to show that appellant no. 1 caught hold

the victim and taken to the isolated place. There is no evidence to show

about involvement of the appellants.

5. Learned counsel Shri Ali has submitted that the victim has

wrongly identified both the appellants in the Court and at the time of

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
6 jg.apeal.87.17.odt

test identification parade. The test identification parade conducted by

Naib Tahsildar is not reliable and trustworthy.

6. Learned counsel Shri Ali has submitted that test

identification parade was conducted on 8-11-2014 whereas the incident

occurred on 26-9-2014, so there is delay of more than 42 days from the

time of incident. Learned counsel has submitted that as per the

evidence of victim, there was dark and, therefore, she could not identify

both the appellants. She has wrongly identified both the appellants in

jail at the time of test identification parade. Except the evidence of

victim, there is no other evidence. Evidence of victim is not reliable. At

last, learned counsel prayed to allow the appeal and to acquit both the

appellants for the offence punishable under Section 376-D of the Indian

Penal Code.

7. Heard learned Additional Public Prosecutor Shri M. J. Khan

for the State/respondent. He has submitted that evidence of victim

P.W. 1 is well corroborated by the evidence of P.W. 2 Dr. Shilpa Pande.

Incident took place on 26-9-2014 at about 5.30 a.m. There was no such

dark. Appellant gave description of the clothes i.e. colour of clothes and

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
7 jg.apeal.87.17.odt

other description of the accused persons in the report, Exhibit 26.

Incident continued near about 15-20 minutes and, therefore, she has

properly identified both the appellants in test identification parade. She

has also identified both the appellants before the Court.

8. Learned Additional Public Prosecutor has submitted that

P.W. 1 has specifically stated that appellant nos. 1 and 2 caught hold her

and taken her in isolated place at Gode ground. She was threatened to

kill. Appellant no. 1 removed her all clothes and did sexual intercourse

with her. Her evidence is well supported by Medical Officer.

9. Learned Additional Public Prosecutor has submitted that

report was immediately lodged as per printed FIR, Exhibit 27.

Information to the police was given at 7.35 Hrs. on the same day. She

was examined by P.W. 2 Dr. Shilpa Pande at about 12.30 Hrs. Learned

Additional Public Prosecutor has submitted that identification before the

Court itself is sufficient. In support of his submission, learned Learned

Additional Public Prosecutor pointed out following decisions.

(1) Ananta Nathu Dahibhate Vs. State of Maharashtra [2006 ALL

MR(Cri) 357],

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
8 jg.apeal.87.17.odt

(2) Mohan Chand Vs. State of Uttarakhand [(2009) 4 SCC 63],

(3) Pramod Mandal Vs. State of Bihar [(2004) 13 SCC 150] and

(4) Daya Singh Vs. State of Haryana [(2001) 3 SCC 468].

10. Evidence of victim shows that she had gone to pluck flowers

at about 5.15 – 5.30 a.m. towards Gode ground. When she was plucking

flowers, both accused caught hold her. They took her towards Gode

ground. She tried to rescue herself. When she shouted, accused no. 1

Vinod gagged her mouth and pressed her throat. Both the appellants

took her inside Gode ground. Anyhow, she escaped from their clutches.

While running, she fell down. They again caught her. Both of them

threatened her saying that if she did not allow for sexual intercourse,

then she would be killed. She was frightened. Appellant no. 1

undressed her. Accused no. 1 did sexual intercourse with her.

Thereafter both of them ran away.

11. Evidence of victim is reliable and trustworthy. There is no

reason to depose against both the appellants who were unknown to her

before the incident. She immediately came to the house and narrated

incident to her cousin brother/relative (Shantanu Bhoyar, P.W. 5).

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::

9 jg.apeal.87.17.odt

P.W. 5 Shantanu has stated that victim came to house at about 5.45 a.m.

and stated him that when she had been to pluck the flowers, two

persons caught hold her. They took her towards Gode ground and

committed rape on her. Immediately, Shantanu went to search both of

them, however, they could not find. Victim immediately went to police

station at about 7.30 a.m. and lodged report. Timing of report, Exhibit

26 shows that it was received at about 7.25 a.m. Report was registered

at about 7.35 a.m. Thereafter victim was sent for medical examination.

12. Medical Officer, Dr. Shilpa Pande (P.W. 2) examined victim

at about 12.30 Hrs. on 26-9-2014. She has proved M.L.C., Exhibit 36.

She found following injuries.

(1) Abrasion behind left ear of size 0.5 x 1 cm. It is super

facial in nature.

On local examination of genitals of victim of labia

major oedema and redness present, on labia minora redness

present, on clitoris mild redness present. On fourchette and

introitus/vagina hymenal tear present at 3 O’clock position

and minimal bleeding seen.

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::

10 jg.apeal.87.17.odt

13. Evidence of Medical Officer Dr. Pande clearly shows that

there was evidence of sexual intercourse with the victim. It appears that

it was first intercourse with the victim because hymen was torn and

blood was found on the private part.

14. Investigating Officer API Devkar has stated that letter was

sent to Naib Tahsildar on 6-10-2014 for conducting test identification

parade after obtaining permission from the Special Court. P.W. 6 Naib

Tahsildar Dudulkar conducted test identification parade on 8-11-2014.

Victim identified both the appellants in presence of panchas. Detail

panchanamas were recorded vide Exhibit Nos. 58 and 59.

15. Learned counsel for the appellants much more urged before

us that appellants were not the persons who committed sexual

intercourse with the victim. Learned counsel has pointed out evidence

of victim and submitted that she herself stated in her evidence that she

fell down because there was dark. This itself shows that she could not

identify properly real culprits. Test identification parade was not

conducted properly. There was delay of more than 42 days after the

incident, hence, test identification parade conducted by Naib Tahsildar

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
11 jg.apeal.87.17.odt

Dudulkar is not relied. Learned counsel has submitted that in view of

the cited judgments, appellants are entitled for acquittal.

16. Learned counsel has pointed out decision in the case of

Dharmendra Laxman Sahare Vs. The State of Maharashtra (cited

supra) in which Division Bench of this Court has observed as under :

Penal Code Ss. 302, 201 Murder, Conviction, Sustainability :
Prosecution case that accused-husband of deceased had called
her at lodge where he obtained room by disclosing false
identity and then committed murder of his wife. No report of
expert or fingerprints expert produced, though several articles
were seized from room. Difference in photograph in notice
circulated and sketch of accused is also accepted by IO.
Identification parade was held in defective manner, relevant
guidelines not followed. Evidence of witnesses reveal that
accused was brought to lodge once before holding of
identification parade. Possibility of these witnesses having
seen accused before identification parade, cannot be ruled out.
Hence, only on basis of a defective identification parade,
conviction of accused is unsustainable. Set aside.

17. The facts in the cited decision is very much different. There

was difference in photographs about sketch of culprit. Identification

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
12 jg.apeal.87.17.odt

parade was held in defective manner. The accused was brought to lodge

once before holding of identification parade. Therefore, it was held that

possibility of witnesses having seen accused before identification parade,

cannot be ruled out. Only on the basis of defective identification

parade, conviction of accused is not proper. In the present case, victim

was raped. Such incident cannot be forgotten by victim. It appears

from the medical evidence that it was the first incident of sexual

intercourse. Both the accused were with her for about 15-20 minutes.

She has specifically given description in her report, Exhibit 26. There is

no evidence to show that victim had seen the appellants in the police

station or anywhere before the identification parade. Nothing is brought

on record in the cross-examination to show that she falsely identified the

appellants. Hence, the cited decision is not applicable to the case in

hand.

18. Learned counsel Shri Ali relied on the decision of Soni Vs.

State of Uttar Pradesh (cited supra). Hon’ble Supreme Court has

observed as under :

“After hearing counsel on either side we are satisfied that the
conviction of the appellant for the offence of dacoity is difficult

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
13 jg.apeal.87.17.odt

to sustain. The conviction rests purely upon his identification
by five witness, Smt. Koori pritem Singh, Kewal Chaitoo and
Sinru, but it cannot be forgotten that the identification parade
itself was held after a lapse of 42 days from the date of the
arrest of the appellant. This delay in holding the
identification parade throws a doubt on the genuineness
thereof apart from the fact that it is difficult that after lapse
of such a long time the witnesses would be remembering the
racial expressions of the appellant. If this evidence cannot be
relied upon there is no other evidence which can sustain the
conviction of the appellant. We therefore allow the appeal
and acquit the appellant.”

Cited decision is on different footings. Evidence of victim shows

that victim was plucking flowers. It was time of 5.15 – 5.30 a.m. on

26-9-2014. This itself shows that there was no such dark. It was

time of early in the morning and, therefore, there was no difficulty

to the victim to identify both the appellants, hence, cited decision is

not helpful to the case of the appellants.

19. Learned counsel for the appellants pointed out decision in

the case of The State of Maharashtra Vs. Dashrath s/o Vishwanath @

Aangrajya Pawar ors. (cited supra). The Division Bench of this

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
14 jg.apeal.87.17.odt

Court observed as :

Penal Code (1860), Ss. 394, 302, 307, 34 Evidence Act
(1872), S. 9 Robbery, murder and attempt to murder. Appeal
against acquittal, incident occurred in night. No evidence
showing that there was any source of light in that area.
Accused immediately arrested within couple of days. Test
identification parade conducted after more than two months
from date of arrest. No explanation offered for such delay.
Guidelines mentioned in manual for conducting TIP, not
followed. Witness whose nose-ring was forcibly pulled by
accused neither examined nor sustained any injuries. Serious
omissions, contradictions and improvements in evidence of
witnesses. Finding of acquittal not perverse. No interference.

20. In the cases of Pramod Mandal Vs. State of Bihar and

Mohan Chand Vs. State of Uttarakhand (cited supra), Hon’ble

Supreme Court has observed that there is no fixed rule as regards the

period within which TI parade must be held or number of identifying

witnesses. It is for the Court to decide on the facts and circumstances of

the case and evidence on record whether to accept or reject the evidence

of identification. If substantive evidence of eye witnesses come in Court

is found trustworthy and without any motive, then absence of

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
15 jg.apeal.87.17.odt

corroboration by test identification parade is immaterial. It is also

observed by Hon’ble Supreme Court that delay for conducting test

identification parade is not material. Hence, in view of observations of

Hon’ble Supreme Court, submission of learned counsel for the appellants

in respect of identification cannot be accepted.

21. The evidence of victim, P.W. 1 is well corroborated by

evidence of P.W. 2 Dr. Pande. Her evidence shows that it was a first

coitus with the victim and, therefore, hymen was ruptured and she had

bleeding injury on her private parts. Observations of Medical Officer

show that genitals of victim on labia majora : oedema and redness

present, on labia minora : redness was present, on clitoris : mild redness

present. On fourchette and introitus/vagina hymenal tear present at 3

O’clock position and minimal bleeding seen. As per the observations of

Medical Officer, clothes of victim found soil on back side. So also, soil

particles were present on back, buttocks, perineum and back side of left

ear. It shows that victim was raped on a ground.

22. Victim has stated that she tried to rescue from the clutches

of appellants. She fell down and sustained injury to her ear. This

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
16 jg.apeal.87.17.odt

evidence is also corroborated by medical evidence. Dr. Pande has found

abrasion behind left ear of 0.5x1cm. It was superficial in nature.

23. In the case of Ananta Nathu Dahibhate Vs. State of

Maharashtra (cited supra), the Division Bench of this Court observed as

under.

“Prosecutrix alongwith her girl friend on the way to attend
tuition classes in the morning, were passing through lonely
and isolated place. Accused on pretext of asking direction
chased, slapped, assaulted and forcibly committed rape. Due
to reluctance, complaint lodged after two days giving details
of accused and incident in question. Accused arrested and
identification parade took place. Failure of Special Executive
Magistrate to note description of accused having black mark
on his cheek is not of any consequence. Non-production of
accused in court for identification by witnesses was not
objected during trial. Special Executive Magistrate gave
details regarding manner in which identification parade was
held. No infirmity found in the parade. Confessional
statement by accused made before SEM inspite of sufficient
opportunity and informing him of consequences of making it.
Evidence of prosecution supported by doctor, Chemical
Analysis showing same human blood found on clothes. Case
proved beyond reasonable doubt. Under the circumstances, no

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
17 jg.apeal.87.17.odt

reason to interfere with the conviction and sentence awarded
by trial court.”

Nothing in the evidence of Executive Magistrate, panch or victim to

disbelieve their evidence about identification of accused.

24. In the present case, the evidence of victim and other

witnesses show that nothing is brought on record in their cross-

examination to disbelieve their testimony. Victim has stated her date of

birth as 2-7-1999. Birth certificate issued by Municipal Council, Wardha

is at Exhibit 29. Medical officer Dr. Pande also stated that victim was in

between 14 to 16 years. Date of birth of victim is 2-7-1999. Incident

took place on 26-9-2014. This itself shows that victim was minor i.e.

below 18 years of age at the time of incident.

25. It is proved by evidence of victim that appellant nos. 1 and

2 caught hold the victim and taken her in Gode ground. Appellant no. 1

did sexual intercourse with her. Offence punishable under Section

376-D of the Indian Penal Code is proved by the prosecution. Learned

trial Court rightly appreciated the evidence of victim and other

witnesses. Learned trial Court rightly convicted both the appellants for

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::
18 jg.apeal.87.17.odt

the offence punishable under Section 376-D of the Indian Penal Code.

Impugned judgment is well reasoned. Hence, we proceed to pass the

following order.

ORDER

(i) The appeal is dismissed with no order as to costs.

(ii) R P be sent back to the trial Court.

JUDGE JUDGE

wasnik

::: Uploaded on – 15/03/2018 16/03/2018 01:50:42 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation