In view of the nature of allegations made by the two victim girls in the two cases, the case of the prosecution in its entirety mentioned in both these cases need to be mentioned for better appreciation of the facts and also to understand the plight of the two victim girls.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::4) The two victim girls PW-1 and PW-2 were friends.They were residents of Partur, District Jalna.At the relevant time they had not crossed age of 16 years.Mother of PW-1 was working as maid servant to earn livelihood and she was required to maintain not only the prosecutrix but also other issues as her husband is dead.The parents of PW-2, other prosecutrix, hail from Hiwarkheda.The parents of PW-2 are very poor and as they could not afford to maintain PW-2, they had kept PW-::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::8 Appeals 144, 151 158, 216, 306 of 1999 2 in the house of sister of mother of PW-2 in Partur.PW-2 was not happy due to poverty and also due to bad treatment which she was receiving in the house of her aunt on maternal side.5) On 3-7-1994, PW-2 had some dispute with her maternal aunt.As she was being starved she met PW-1 and expressed that she wanted to work to earn for her livelihood.PW-1 has a relative by name Sham Agrawal and he was running a shop in Parbhani city, District Parbhani.PW-1 expressed that Sham Agrawal can help them in giving job in Parbhani.Due to these circumstances on 3-7- 1994 PW-1 and PW-2 left Partur for Parbhani without informing anything to anybody from Partur.On 4-7-1994 early in the morning they went to Osmanpur railway::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 ::: 9 Appeals 144, 151 158, 216, 306 of 1999 station on foot and there they boarded a train proceeding to Parbhani.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::These boys were also proceeding to Parbhani as they were doing some diploma course in Parbhani.During talk, PW-1 and PW-2 disclosed to these boys that they were going to Parbhani in search of job.These boys advised the victim girls not to go to Parbhani and return to home.They informed that it was not safe for them to go to Parbhani.PW-1 and PW-2 and the two boys alighted at Parbhani from train.As the boys were advising the girls to return home but as there was no train up to 3 p.m. the boys gave tea and food to these girls in a hotel.As there was time upto 3 p.m., the boys took these two girls to Talreja Talkies to see a movie.It was a matinée show and after seeing the movie the girls were expected to return by train to home.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::(accused Nos.1 to 3 from Sessions Case No.121/1994) occupied the seats by the side of the two girls.They opened talk with the two girls and during talk the three accused realised that these two girls wanted to go to Sham Agrawal.Accused Nos.1 to 3 from Sessions Case No.121/1994 falsely represented to these girls that they knew Sham Agrawal and Sham Agrawal was their friend.They gave false promise to the victim girls that they would take them to Sham Agrawal.After arrival of accused Nos.1 to 3 from Sessions Case No.121/1994 in the theatre, the aforesaid two boys viz Raju and Abhay left the theatre.9) Accused Nos.1 to 3 from Sessions Case No. 121 of 1994 took the two girls in an auto-rickshaw first to the house of a friend where they provided meals to the girls.From this house accused Nos.1 to 3 from Sessions Case No.121/1994 took the girls to a banana garden situated at the outskirts of Parbhani city.In the banana garden, accused No.1 of Sessions Case No.121/1994 took PW-1 to::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 ::: 11 Appeals 144, 151 158, 216, 306 of 1999 one side and then he committed rape on her.After that accused No.1 to 3 from that case took PW-1 and PW-2 towards side of a brook known as Pingad-Gad-Nala.There was water in the brook.PW-1 and PW-2 could not resist as threats were given to them.From there, accused Nos.1 to 4 of Sessions Case No.121/1994 took PW-1 and PW-2 to a lodge of Parbhani by name Visawa Lodge.They reached there at about 10.00 p.m. There accused Nos.1 to 4 of Sessions Case No.121/1994 informed to PW-1 and PW-2 that two Sahibs, accused Nos.6 and 7 of Sessions Case No.121/1994, were to come to the lodge and they would::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 ::: 12 Appeals 144, 151 158, 216, 306 of 1999 help PW-1 and PW-2 for getting work.After some time accused Nos.6 and 7 of that case namely Nitin Dudhgaonkar and Kalyan Renge came to the lodge.They gave threats not to disclose the incident to anybody.Accused Nos.8 and 9 of Sessions Case No.121/1994 were managing the lodge and they kept watch to see that there was no interference or there was no help to the victim girls.When accused Nos.6 and 7 left the lodge, accused Nos.1 to 4 of Sessions Case No.121/1994 took PW-1 and PW-2 to campus of Shanti Niketan school.There accused Nos.1 to 4 consumed liquor.Accused Nos.2,3 and 4 then left the campus of the school.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::11) From the campus of the school, accused No.1 took the two victim girls to other place which is called as Wada, big house, where accused No.5 Tukaram Kharat of Sessions Case No.121/1994 was present.Tukaram gave::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 ::: 13 Appeals 144, 151 158, 216, 306 of 1999 threats to PW-1 and PW-2 to facilitate rape which accused No.1 wanted to commit.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::12) From the last place accused No.1 took the two victim girls to Parbhani Railway Station and there he left them.While leaving, he again gave threats to them not to disclose the incident to anybody.Under the pretext that he would help PW-1 and PW-2 he took these two girls to retiring room situated at railway platform.Abbas Baig then called accused No.2 Ashok, who was working as Police Head Constable and accused No.3 Tabuka, who was working as Railway ticket booking clerk to the room.One more person also came with them.The retiring place had many rooms.Accused No.3 Tabuka and the other person took PW-1 to one room and there they raped her.After committing the rape these persons allowed the victim girls to leave the retiring room.The victim girls were very::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 15 Appeals 144, 151 158, 216, 306 of 1999 much frightened and in that condition they went to the bridge of the railway and from there in search of water they went towards railway quarters situated by the side of the railway station.It was day time.There, accused No.4 Bhansing Bundele, who was occupying a railway quarters as he was employee of railway, promised them to help and took them to his residential quarters.In his quarters, accused No.5 Raju was already present and one young boy aged about 12 years was also present.accused No.4 supplied water to the victim girls and then he left the railway quarters by informing to accused No.5 that he would return after some time (after attending the duty).::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::15) At about 2.30 p.m. of 5-7-1994 accused No.4 of the present matter returned to the railway quarters.He had brought with him a bottle of liquor and some food items.He gave the food items to the victim girls and asked the aforesaid young boy to leave the quarters.When the young boy left the quarters, accused No.5 took PW-1::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 16 Appeals 144, 151 158, 216, 306 of 1999 to one room and there he raped her.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::16) Accused Nos.4 and 5 of the present matter virtually used PW-1 and PW-2 upto 4.00 p.m. of 5-7-1994 and then they called accused No.6 Munna @ Ravindra Singh and accused No.7 Mahesh to the railway quarters.From the railway quarters PW-1 and PW-2 were taken by accused Nos.4 and 5 in an auto-rickshaw to other place by name Shakti Bungalow from Parbhani.Accused No.6 and 7 had come on their motor cycle and they followed auto rickshaw to that place on their motor cycle.This incident was going on upto early hours of 6-7-1994 (upto 3 A.M.).PW-1 somehow saved her by giving information regarding her menstruation period.On::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 17 Appeals 144, 151 158, 216, 306 of 1999 the night between 5-7-1994 and 6-7-1994 the two victim girls were present in Shakti Bungalow.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::17) On 6-7-1994, in the morning when PW-2 woke up from sleep, she noticed that PW-1 was not there.Accused No.5 Rameshwar from the present matter was present in Shakti Bungalow and he informed that PW-1 had already left the building.PW-2 searched for some time to find PW-1 and then she went to Parbhani Railway Station as she intended to return to home by railway.In the meantime PW-1 had gone to other station viz. Purna and from there a lady police constable took her in railway to Parbhani Railway Station.At Parbhani Railway Station PW-1 pointed PW-2 to the lady constable and due to that the lady constable took PW-2 to Railway Police Chowki and PW-2 was asked to stay there.18) The lady police constable Giribai reached PW-1 to Partur by train.After returning from Partur, Giribai took PW-2 to Purna Railway Police Station.There, the FIR of PW-2 came to be recorded and the crime came to be::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 18 Appeals 144, 151 158, 216, 306 of 1999 registered.PW-2 was taken to Parbhani for medical examination on 7-4-1994 and she was medically examined.During course of investigation her clothes were taken over.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::19) On 9-7-1994 PW-2 was taken to New Mondha Police Station Parbhani where another FIR came to be recorded and another crime came to be registered.Sessions Case No.121/1994 is filed in the crime registered at New Mondha Police Station Parbhani in respect of the incidents which took place in banana garden, near Pingad- Gad-Nala, Visawa Lodge, Shanti Niketan school and one Wada.She has deposed that first, accused No.6 raped her against her will by removing her clothes.Bleeding through cervical os seen.The vaginal mucosa is contested.57) On 20-8-1994 Jadhav (PW-17) held T.I. parade in which opportunity was given to PW-1 and PW-2 to identify accused Nos.6 and 7 of the present matter.On this occasion he used six dummy persons.accused No.6 also gave statement to him and he prepared memorandum of his statement.73) Sahebrao Vyavahare (PW-23) was working as Police Inspector in CID and he made remaining investigation of the case.He has deposed that, he took over the investigation of CR No.29/1994 registered in Purna Railway Police Station by PSI Khan and he also took over the investigation of CR No.82/1994 registered with New Mondha Police Station which was with Chalak.1) All the appeals are filed against the judgment and order of Sessions Case No.139/1994 which was pending in the Court of the learned Sessions Judge,::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 ::: 6 Appeals 144, 151 158, 216, 306 of 1999 Parbhani.The learned Sessions Judge has convicted and sentenced accused Nos.4 to 7 for offence punishable under section 366 read with section 34 of Indian Penal Code and for offence punishable under section 376(2)(g) of Indian Penal Code.Accused Nos.4 and 5 are convicted and sentenced for offences punishable under section 342 read with section 34 of IPC also.The convicted accused persons have filed the first four appeals.The State has filed Criminal Appeal No.306/1999 as the trial Court has given jail sentence of 10 years rigorous imprisonment to accused Nos.4 to 7 and the State wants to see that they get imprisonment for life.Both the sides are heard.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::2) In short, the facts leading to the institution of the appeals can be stated as follows :--3) Two minor village girls were ravished in Parbhani city and at the outskirts of Parbhani city by different persons.In respect of these incidents two separate charge-sheets were filed and two cases were tried separately against those persons in respect of::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 ::: 7 Appeals 144, 151 158, 216, 306 of 1999 different incidents.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::9) Accused Nos.1 to 3 from Sessions Case No. 121::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:02 :::committed rape on PW-2 and accused Nos.2 and 310) From the side of the brook accused No.1 to 3 of Sessions Case No.121/1994 took PW-1 and PW-2 towards the side of road.There they met accused No.4 of that case namely Rameshwar.In respect of the aforesaid five incidents of rape separate charge sheet was filed and Sessions Case No.121/1994 was tried against the aforesaid 9 accused persons.In that case accused Nos.1 to 4 and accused Nos.6 and 7 are convicted and sentenced for offence of gang rape.Accused Nos.1 to 3 are also convicted and sentenced for offence punishable under section 366 read with 34 of IPC.These accused are convicted for different incidents mentioned above.13) The second part of the prosecution case starts from the incident which took place at Parbhani Railway Station.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::On 7-7-1994 police from Kotwali Police Station Parbhani went to Partur and they brought PW-1 to Kotwali Police Station.PW-1 was then sent to New Mondha Police Station and in the crime registered there, her statement came to be recorded.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::place in retiring room of the railways station, railway quarters and Shakti Bungalow came to be recorded as per the narration made by PW-2 and Sessions Case No. 139 of 1994, present matter, was filed after making investigation of that crime.During course of investigation statements of PW-1 and PW-2 came to be recorded under section 164 of the Code of Criminal Procedure.PW-2 took police to various places where the offence was committed against them.Accused persons came to be arrested.Some incriminating articles like clothes, carpets came to be recovered on the basis of statements given by accused persons.Blood samples of the accused persons came to be sent to CA office along with blood samples of the two victim girls along with vaginal swabs collected by medical officer.Charge sheet came to be filed in the present matter in Crime No.29/1994 registered in Purna Railway Police Station and Crime No.82/1994 registered in New Mondha Police Station Parbhani.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::22) Charge was framed against accused separately in accordance with the allegations made against him by the two victim girls and the material collected against accused.All the accused pleaded not guilty.Prosecution examined 23 witnesses who include the two victim girls.All the accused took the defence of total denial.No defence evidence is given.23) The prosecution relied on both, direct and the circumstantial evidence.The trial Court has believed both the victim girls so far as the evidence given by them as against accused Nos.4 to 7 is concerned.The evidence given as against accused Nos.1 to 3 is not believed by the trial Court.The trial Court has held that there is circumstantial check to the evidence given as against::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 21 Appeals 144, 151 158, 216, 306 of 1999 accused Nos.4 to 7 and the evidence as against these accused given by the two victim girls is consistent with each other.In view of these circumstances the evidence of prosecution given as against accused Nos.4 to 7 only and with regard to the incidents in which they were involved need to be considered and appreciated.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::24) Both the victim girls have given evidence in respect of the incidents which took place between 4-7- 1994 till early hours of 5-7-1994 and that evidence shows that prior to the incidents in which accused Nos.4 to 7 were involved both the victim girls were ravished by other persons at various places like banana garden, near brook, in a lodge, in the campus of a school, in Wada and also in the retiring room of Parbhani Railway Station.It needs to be mentioned here that the Court has not believed the victim girls in respect of the incidents of rape took place in the retiring room in which accused Nos.1 to 3 and one unknown person were involved.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::No.1") has given evidence that when the incident which took place in retiring room was over, she and PW-2 (victim girl No.2) came out of the retiring room, went to the stairs of the bridge and stayed there for some time.She has deposed that they wanted to have drinking water and so they started to proceed towards railway quarters of the railway employees situated by the side of the railway station.She has given evidence that on the way one man who was known, accused No.4, Bhansing, met them.This accused is identified by both the victim girls in the Court.She has given evidence that accused No.4 took them to his railway quarters by promising to give them drinking water.She has given evidence that one boy aged about 12 to 13 years was also present in this residential quarters.She has given evidence that accused No.4 gave water to them and then said that there was train for Partur at 3.00 p.m. and he would arrange to send them by train to Partur.She has given evidence that by saying so::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 23 Appeals 144, 151 158, 216, 306 of 1999 he left the quarters but while leaving, he closed the entrance door of the quarters and put a lock on it from outside.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::She has deposed that accused No.4 had brought liquor bottle with him.She has given evidence that accused No.4 supplied food to both of them and then accused Nos.4 and 5 consumed liquor.food to both of them and then accused Nos.4 and 527) PW-1 has given evidence that accused No.4 then took PW-2 to a room of the quarters and closed the door of the room from inside.She has given evidence that accused No.5 then raped her by removing her clothes.She::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 24 Appeals 144, 151 158, 216, 306 of 1999 has described the incident of rape in her evidence.She has given evidence that after some time PW-2 came out of the aforesaid room and she informed that accused No.4 had raped her.She has given evidence that accused No.5 gave threats to finish them by braking glass and so they could not resist and they stayed inside of the quarters.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::She has given specific evidence as against accused No.4 that in the noon time, when accused No.4 returned to the railway quarters, accused No.4 raped her.She has given evidence that the act was against her will.She has given particulars of the incident of rape.She has given evidence that during the incident the lace of her Salwar got broken and so accused No.4 gave lace of his shoe for using it as lace of her Salwar and she used that lace for her Salwar.She has identified accused Nos.4 and 5 in the Court and she has also identified her Salwar having lace of the shoe which was produced by her during course of investigation before police.She has given evidence that when accused No.4::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 25 Appeals 144, 151 158, 216, 306 of 1999 was committing the offence, accused No.5 had done the same thing against PW-1 and that incident was disclosed by PW-1 to her.The evidence given by PW-1 and PW-2 as against accused No.4 and 5 on the incident of rape which took place in the railway quarters of accused No.4 is consistent with each other.There is also circumstantial check and those circumstances are being discussed at other place.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::PW-2 has given similar evidence as against accused Nos.6 and 7 and their evidence leads to inference that it is accused No.4 who had called accused No.6 and 7 to his railway quarters.PW-2 has identified::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 26 Appeals 144, 151 158, 216, 306 of 1999 accused Nos.6 and 7 in the Court and she gave their description also.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::30) PW-1 has given evidence that from the railway quarters of accused No.4 she and PW-2 were taken in an auto-rickshaw by accused Nos.4 and 5 to one bungalow viz. Shakti Bungalow.She has given evidence that accused Nos.4 and 5 were sitting on the two sides of PW-1 and PW-PW-1 has given description of this bungalow and the substantive evidence which is being discussed shows that only due to information given by PW-2, police could trace both, the railway quarters of accused No.4 and Shakti bungalow.Some articles were also recovered in connection with the crime by police at the instance of one accused and on the basis of statement given under section 27 of the Evidence Act.She has given evidence that she was not raped because she was in menses.She has deposed that after coming from the room where rape was committed, PW-2 narrated the incident to her by saying that all the four accused (accused Nos.4,5,6 and 7) had raped her.She has deposed that PW-2 was weeping, she was feeling tired and she was having pains.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::She has specifically pointed accused No.6 in that regard.She has given evidence against accused No.4 that he had raped her in Shakti bungalow against her will.She has given evidence that accused No.7 then committed rape on her and at the end accused No.5 committed rape on her.She has identified these four accused persons in the Court as the persons who had raped her in Shakti::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 28 Appeals 144, 151 158, 216, 306 of 1999 bungalow.She has given evidence that she was ravished for long time by these four persons, till early hours of the next day.She has given evidence that she was having pains, she could not walk and she was frightened and as she was not able understand what to do, she slept in Shakti bungalow on that night for the remaining period.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::33) The remaining evidence given by PW-1 and PW- 2 is with regard to their subsequent conduct.The evidence shows that after the incident of rape which took place in Shakti bungalow they were allowed to leave Shakti bungalow.Their evidence shows that first PW-1 left the Shakti bungalow, she went to Purna station where a lady constable made inquiry with her and by way of precaution the lady constable took PW-1 with her.Evidence of PW-2 shows that after searching for PW-1 for some time, she went to Parbhani Railway Station as she wanted to return to::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 29 Appeals 144, 151 158, 216, 306 of 1999 Partur and there the aforesaid lady constable came to her and then she was taken to railway police Chowki by the said lady constable.The evidence of PW-1 shows that from Purna Railway Station she was taken to Partur to her residential place by the lady constable and she was reached to her house.The evidence of PW-1 shows that when train reached Parbhani, she showed PW-2 to the lady constable and so the lady constable took aforesaid step.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::The evidence of PW-2 shows that in the Parbhani Railway Police Station one PSI Khan made inquiry with her and he recorded her statement.PW-2 has tried to say that her entire version was not recorded by Khan and only the portion which he felt necessary was recorded by him.On that statement her signature was obtained by Khan.She has given evidence that on 7-7-1994 she was taken to Parbhani from Purna::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 30 Appeals 144, 151 158, 216, 306 of 1999 for her medical examination and there she was medically examined.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::35) PW-2 has given evidence that on 8-7-1994 her clothes were taken over by police which were Salwar and Kurta and they were the clothes which were on her person when she was raped in railway residential quarters of accused No.4 and in Shakti Bungalow.She has identified articles 9,10 and 11 as her clothes which were produced before police by her.She has deposed that her signature was obtained on the seizure panchanama (Exhibit 28) when the clothes were taken over by police.She has given evidence that on 8-7-1994 P.S.I. Yeshwant took over inner wear, nicker, which is article 6 and separate panchanama in that regard was prepared.36) PW-2 has given evidence that on 10-7-1994 she showed the places where the incidents narrated by her had taken place.The places were the railway quarters of accused No.4 and the Shakti Building.The evidence as regards the other place viz. retiring room of railway::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 31 Appeals 144, 151 158, 216, 306 of 1999 station need not be considered as that matter is not before this Court.PW-2 has deposed that panchanama of the incidents in which she showed the places was prepared in her presence.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::37) PW-2 has given evidence that during investigation, she was given opportunity to identify the accused persons.She has deposed that in the test identification parade dated 2-8-1994 she identified accused No.4 Bhansing and accused No.5 Raju.This witness has identified accused Nos.4 and 5 during the deposition in the Court also.PW-2 has given evidence on test identification parade dated 20-8-1994 in which she identified accused No.6 Ravindra @ Munna and accused No.7 Mahesh.PW-2 identified accused Nos.6 and 7 during deposition in the Court also.38) PW-2 has given evidence that the Judicial Magistrate recorded her statement (under section 164 of the Cr.P.C.) during the course of investigation.It is brought on the record in her evidence that the term used::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 32 Appeals 144, 151 158, 216, 306 of 1999 in Marathi by her viz. "Angawar Haat Takla" (v ax koj gkr Vkdyk ) means the commission of rape.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::39) PW-1 has given evidence that on 7-7-1994 PSI Yeshwant took her from her residential place from Partur to Parbhani Police Station and then her report was recorded.PW-1 has given evidence that PSI Khan recorded her statement in Parbhani on 8-7-1994 but that statement was not recorded as per the version given by her.PW-1 has deposed that her clothes viz. article Nos.4 and 5 (shown to be seized in Sessions Case No.121/1994) were taken over during investigation and she was wearing these clothes viz. Salwar and Kurta at the time of the incidents in question.40) PW-1 has given evidence that opportunity was given to her to identify accused persons in test identification parades.She has deposed that in the test identification parade dated 2-8-1994 she identified accused No.4 Bhansing and on that occasion she was::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 ::: 33 Appeals 144, 151 158, 216, 306 of 1999 asked to identify associate of the accused who raped her.PW-1 has deposed that on 20-8-1994 in other test identification parade she identified accused No.6 Munna and accused No.7 Mahesh.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::41) PW-1 has given evidence that her statement was recorded by the Judicial Magistrate (under section 164 of the Cr.P.C.) but she could not give the narration of the incidents correctly when the statement was recorded as she was still in shock.She has given evidence that she was referred for medical examination and she was medically examined.42) The prosecution has given other circumstantial evidence.His evidence shows that PW-1 produced Salwar and Kurta and they came to be seized.Panchanama of seizure of the clothes of PW-2 is also proved in his evidence as Exhibit 37and there were blood stains on the underwear of PW 2.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::dated 17-7-1994 in which he stated that he would show the places of the incidents like residential quarters of the railway and Shakti bungalow.No recovery or seizure of articles took place on the basis of the statement.However, there is circumstance that only after showing the places of the incidents by PW-2 and after arrest of accused No.4, accused Nos.6 and 7 were traced and arrested.They were not known to PW-2 prior to the date of incident.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::35 Appeals 144, 151 158, 216, 306 of 1999Panchanama of seizure of underwear and 'T' shirt of accused No.6 is proved at Exhibit 48 and the clothes were recovered on the basis of statement mentioned in Exhibit47.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::The evidence on record shows that this motor cycle is not identified by the two victim girls.44) Vaijnath (PW-12) is another panch who has given evidence on the seizure of clothes of accused No.4 Bhansing and on his arrest panchanama.His evidence shows that PW-2 was with police and panchas when they visited the quarters.One underwear having stains of blood was also taken over.A pair of shoes was taken over and to one shoe there was no lace.Here only it needs to be again mentioned that it is the case of PW-2 that she was given lace of this shoe by Bhansing as the lace of her Salwar got broken during the incident.Another document at Exhibit 77 is proved in the evidence this witness.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::46) Dr. Jaishri Deshpande (PW-14) is examined by prosecution to give medical evidence.She examined PW-2 on 7-7-1994 at about 4.p.m.On local examination she noted following things in respect of PW-2 :-Matting of pubic hair was seen.Blood stains on clothes and genitals.No evidence of external injuries over genitals.Hymen - torn, congested+ oozing through tear present.P.S. : Speculum could be passed with difficulty tenderness i.e. severe tenderness.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:03 :::38 Appeals 144, 151 158, 216, 306 of 1999 On PV examination she found following things :Vagina admits one finger with pains i.e. severe tenderness.Bleeding through cervical was present.This document is consistent with the oral evidence of the witness.47) Dr. Jaishri (PW-14) examined PW-1 on 8-7-1994 at 9.00 p.m. She has deposed that on local examination she found following things :-Matting of pubic hair not seenBlood stains on the clothes and genitals were seenPosterior fourchette congested and redness.Lebia minora was slightly congested.Hymen torn (old tear), no oozing bleeding through vagina was present.No evidence of injury over the external genitals.::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:04 :::::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:09:04 :::"Medium size speculum passed with a minimum tenderness means pains.Vagina admits two fingers with tenderness.Uterus - normal size, retroverted bleeding through cervical seen.No living or dead spermatozoa. "48) The evidence of Dr. Jaishri Deshpande shows that on microscopic examination no living or dead sperm