1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 614 OF 2008 1 Vasant Chailital Mandal, age: 21 years, Occ: Labour, R/o Ganon, Tq.Ghanshyampur, Dist. Darbhanga (Bihar) at present residing at Hanuman Nagar, Near Khandeshwari Temple, Peth Beed, Tq. & Dist. Beed. 2 Santoshkumar Sonsay Kevat, age: 22 years, Occ: Labour, R/o Bajarpara Shakti, Tq.Shakti, Dist.Jajgir (Chhatisgar), at present residing at Hanuman Nagar, Near Khandeshwari Temple, Peth Beed, Tq. & Dist. Beed. 3 Maklumsab @ Mama Saipansab Shaikh, age: 30 years, Occ: Labour, R/o Mudod, Tq. Mudod, Dist. Bagalkot (Karnatak), at present residing at Hanuman Nagar, Near Khandeshwari Temple, Peth Beed, Tq. & Dist.Beed. Appellants Versus The State of Maharashtra Respondent Mrs.D.G.Ansingkar, advocate for appellants. Mr. Dilip Bankar Patil, A.P.P. For Respondent-State. CORAM: R.M.BORDE, J. DATE : 09th June, 2009. 2 ORAL JUDGMENT: 1 This is an appeal by original accused nos.1, 2 and 4 raising exception to the judgment and order of conviction and sentence imposed by II Ad hoc Additional Sessions Judge, Beed, in Sessions Case No.126/2005 on 06.05.2006. 2 Accused-appellants, along with another accused Ajay @ Kalya Mangal Sakhare, were prosecuted for commission of offence punishable under Sections 457 and 394 read with Section 34 of I.P.C., whereas accused no.1 was also prosecuted for commission of offence punishable under Section 376 of I.P.C. 3 The prosecution case, in nutshell, can be summarised as below: One Pandurang Manik Bedre is resident of Hanumannagar, Beed, and was residing along with wife Pushpa, son Vaibhav and daughter Sheetal in a rented premises belonging to one Ashruba Bagal. On the relevant date i. e. on 30.09.2005, Pandurang Bedre went to sleep outside his house after taking his dinner. His wife Pushpa, son Vaibhav and daughter Sheetal were sleeping inside the house. At about 1.30 a.m., his son Vaibhav came out for urination. After his son went inside the house, his wife Pushpa and daughter Sheetal came outside for urination. While they returned back inside the house and closed door, thereafter four persons wearing banian and underwear and their faces covered with black cloth came there. Three persons caught hold of Pandurang. One 3 accused person broke opened the door with the help of a big stone thereby forcing their entry inside the house. They were talking in Hindi language. They threatened informant Pandurang to keep quite, otherwise he will be killed. One of the accused cut lips of the complainant with the help of razor and removed Rs.20/- from his pocket. Son of informant Vaibhav was caught hold by the accused and they forcibly snatched Rs.500/- from him and launched assault on him. It is further case of the prosecution that accused broke the electric bulb which was put on at the time of occurrence of the incident. They beat wife of complainant as well as son. One of the accused pulled Sheetal in the corner of the room and after tearing her clothes committed rape on her. Accused persons left the spot after commission of crime. Vaibhav Bedre thereafter went to the house of his uncle and narrated the incident. His uncle Dattatray Bedre informed the police telephonically as regards occurrence of the incident. Police thereafter came to the spot. Complainant Pandurang Bedre was taken to the Civil Hospital. His statement was recorded and same was treated as First Information Report. The offence was registered on the basis of information lodged by Pandurang. Police thereafter initiated investigation in the crime. Accused were apprehended and certain muddemal articles were seized from them. The weapons of assault as well as wearing apparels of the accused were seized. Accused No.1 Vasant was referred for medical examination to Civil Hospital, Beed. Samples of his blood, semen and pubic hairs were collected and sent for chemical analysis. Prosecutrix Sheetal was also got examined by the Medical Officer. The Medical Officer opined commission of rape on her. After effecting arrest of accused, police sent a request letter to Tahsildar for conducting 4 identification parade. Tahsildar, Beed, held identification parade on 22.10.2005. Complainant Pandurang, his daughter Sheetal and son Vaibhav identified accused no.1. After recording statements of witnesses, police presented charge sheet to the Court of Chief Judicial Magistrate, Beed. The offence, being triable by the Court of Sessions, case was committed on 15.12.2005 to the Court of Sessions. Charge was framed against accused nos.1 to 4. Accused pleaded not guilty to the charge. Defence of the accused is of total denial. According to them, they are falsely implicated in the crime. 4 In order to bring home the guilt, prosecution relied upon evidence of 16 witnesses. The material witnesses, on whom reliance is placed, include P.W.1 Pandurang, father of prosecutrix Sheetal. Prosecutrix Sheetal was examined as P.W.5, whereas her mother Pushpa was examined as P.W.6. Vaibhav has deposed as prosecution witness no. 10. Medical Officer Dr.Rahul Yande was examined as P.W.7, who has examined the accused, whereas Dr.Abhiman Waghmare was examined as P.W.9, who has conducted medical examination of prosecutrix Sheetal. Dr.Santosh Shinde, who is examined as P.W.11, has deposed about the injuries found on the person of Pushpa, mother of prosecutrix as well as, Pandurang, father of the prosecutrix and informant. Ganesh Keshav Nirale was working as Tahsildar, Beed, at the relevant time, who has conducted identification parade of accused and he is examined by the prosecution as P.W.8. Dhananjay Kshirsagar, P.W.3, is the witness in respect of discovery of currency notes of Rs.100/- as well as weapons at the instance of accused nos.1 and 4. Champalal Shevgan is the Investigating Officer, who is examined as P.W.15. 5 5 I have gone through the ocular evidence placed on record, with the assistance of learned Counsel for appellants and learned A.P.P. appearing for Respondent-State. 6 It is brought to my notice that original accused no.3 – Ajay alias Kalya Mangal Sakhare had preferred Criminal Appeal No.587/2006, before this Court raising exception to the judgment and order of conviction and sentence imposed by II Ad hoc Additional Sessions Judge, Beed, in Sessions Case No.126/2005 on 06.05.2006. This Court (Coram: A.S.Bagga, J.), by judgment and order dated 15 th January, 2007, allowed the appeal by seting aside order of conviction and sentence imposed against original accused no.3 and directed to release him forthwith. 7 Learned Counsel for accused-appellants has urged that so far as accused nos.2 and 4 i. e. Appellants no.2 and 3 are concerned, there is absolutely no evidence to connect them with the alleged crime. Accused nos.2 and 4 have not been identified by any of the prosecution witnesses during the test identification parade. There is also no recovery of stolen property at their instance. It is, thus, contended that in the absence of any material linking accused nos.2 and 4 with the alleged offence, conviction and sentence, imposed by the trial Court against them, is not sustainable. So far as case as against accused no.1 is concerned, it is urged that although there is charge in respect of commission of offence of rape levelled against him, P.W.1 Pandurang as well as P.W.10 Vaibhav 6 have not stated anything in that respect. The First Information Report lodged by P.W.1 Pandurang on the next day morning is silent in respect of allegations regarding commission of offence of rape by accused no.1. Although P.W.1 Pandurang claims that he was beaten during the course of incident and was just sleeping outside the house, he has not disclosed anything in respect of sexual assault on his daughter, either in the First Information Report or has not deposed anything in that respect before the Court. Although P.W.10 Vaibhav was stated to be inside the room when the assault was mounted and alleged offence of rape was committed on his sister, he has also not stated anything in that respect to the police. Strangely enough, he has stated before the Court that he gained knowledge in respect of commission of rape on his sister only after he returned to the house from Police Station. This version, according to the accused, is unbelievable. The conduct of P.W.1, father of prosecutrix and P.W.10 Vaibhav, brother of prosecutrix, appears to be quite unnatural and thus a serious doubt is raised as regards the allegations in respect of commission of offence of rape by accused no.1. 8 P.W.1 Pandurang has deposed before the Court that on 30 th September 2005, while he was sleeping outside his house at about 1.30 a.m. In the morning, his son Vaibhav woke up for urination. After his son returned back to the house, his daughter and wife went outside. After some time, they went inside the house and closed door. At that time, accused nos.1 to 4 came and they broke opened front door of the house by thrashing it with the help of big stone (`pata’). Pandurang was assaulted by the accused. He sustained injury on his lips. The witness has further deposed that three accused went inside the house and tied his 7 son Vaibhav with the help of towel and removed Rs.500/- forcibly after assaulting him. Accused also removed Rs.20/- from the shirt pocket of this witness. The witness has further stated that he became unconscious. He later on went to the Police Station in the morning for lodging report. The witness has deposed, during the cross examination, that he became unconscious because of the beating extended by the accused and that he did not know as to what had happened in the house. He came to know regarding the happenings only after he regained consciousness in the morning between 5.00 to 6.00 a.m. He thereafter lodged report against four unknown persons. P.W.1 has also deposed that he lodged report as per the version narrated by his son, which was reduced into writing by the police and he put his signature on the report. 9 It is true that this witness P.W.1 Pandurang has not stated anything about the commission of offence of rape by accused no.1. However, the story has been narrated by prosecutrix Sheetal, who is examined as P.W.5. Sheetal has deposed before the Court that at about 1.00 to 1.30 a.m., she along with her mother, went outside the house for urination. Her mother saw certain persons behind the house and, therefore, she ran inside the house and closed the door with the help of chain. Persons gathered outside the house assaulted her father and thereafter broke open the door with the help of a big stone. It is stated by the prosecutrix that accused tied hands and legs of her elder brother Vaibhav and had also broken the electric bulb which was illuminating. Accused also assaulted her mother Pushpa. She was thereafter pulled by one of the accused in the corner of the house. Said accused torn her clothes and committed rape on her. The prosecutrix has identified 8 accused no.1 as the person who has committed offence of rape on her. It is also stated by her that accused have forcibly snatched Rs.500/- from her brother Vaibhav and thereafter they went away. The story put up by the prosecutrix has not been shattered during the cross examination. However, she has explained, during the cross examination, that she had seen face of accused no.1 before the electric bulb was broken and as such, she could identify him. The prosecutrix is medically examined by Dr.Abhiman Waghmare, who has stated before the Court regarding presence of blood stains around the genital of the prosecutrix. He has also stated that hymen of Sheetal was ruptured, tears were fresh. In the cross examination, doctor has opined that rupture of hymen of prosecutrix was as a result of commission of rape on her person. The testimony of P.W. 5 Sheetal, coupled with the medical evidence brought on record in respect of commission of sexual intercourse against her wish by accused no.1, cannot be disbelieved. There is no reason for the prosecutrix to make false allegations against accused no.1. The prosecutrix has also identified accused no.1 as the person who has committed sexual assault on her during identification parade held by Executive Magistrate P.W.8. P.W.8 Ganesh Nirale, Tahsildar Beed has conducted test identification parade. Accused no.1 has been identified during the identification parade by P.W.5 Sheetal Bedre, so also P.W.1 Pandurang, P.W.6 Pushpa and P.W.10 Vaibhav. P.W.6 Pushpa and P.W.10 Vaibhav were inside the house when the offence had taken place and, therefore, it was but natural for them to identify accused no.1. It has also been brought on record that at the time when accused forcibly caused their entry in the house, there was sufficient light. The room was illuminated by electric bulb which was subsequently broken by the accused. However, before 9 accused broke the electric bulb, they were seen by the prosecution witnesses. As such, one of the accused could be recognised during the identification parade. Merely because P.W.1 Pandurang or P.W.10 Vaibhav have not stated in respect of commission of offence of rape by accused no.1, is no reason to disbelieve testimony of prosecutrix Sheetal. The version of prosecutrix Sheetal is supported by medical evidence and apart from this aspect, prosecutrix Sheetal has identified accused no.1, who has launched sexual assault on her. The evidence in respect of test identification parade conducted by P.W.8 Executive Magistrate has also been supported by testimony of P.W.4 Asaram Dahiwal. P.W.4 Asaram is the pancha witness in respect of test identification parade, who has deposed about the identification parade conducted by Executive Magistrate. P.W.4 has also deposed in respect of identification of accused no.1 by P.W.1 Pandurang, P.W.5 Sheetal and P.W.10 Vaibhav. The evidence in respect of identification, therefore, needs to be accepted. 10 There is also recovery of amount of Rs.500/- at the instance of accused no.1. P.W.3 Dnananjay Kshirsagar is the witness in respect of memorandum of panchanama as well as discovery of five currency notes of Rs.100/- totaling Rs.500/- at the instance of accused no.1. Discovery panchanama in respect of currency notes at the instance of accused no.1 is proved by P.W.3. Five currency notes of Rs.100/- denomination were seized at the instance of accused no.1. Evidence of P.W.3 is consistent and has not been shattered during the cross examination. 11 Taking stock of the prosecution evidence, complicity of 10 accused no.1 in the crime is far from doubt. There is evidence in respect of identification by the prosecution witnesses including prosecutrix Sheetal coupled with the evidence of recovery of stolen amount, at the instance of accused no.1. The act of commission of rape by accused no.1 is also supported by the version of Medical Officer Dr.Abhiman Waghmare P.W. 9, who has stated about the commission of rape on medical examination of prosecutrix Sheetal. The judgment delivered by trial Court holding accused no.1 guilty for commission of offence under Section 376 of I.P.C., therefore, cannot be faulted. It is also clear from the prosecution version that accused no.1 has committed house trespass and as such, his conviction for offence punishable under Section 457 of I.P.C., is also proper. It also does appear that while committing robbery, accused have caused injury to the inmates of house. P.W.1 Pandurang, so also P.W.6 Pushpa sustained injuries at the time of incident. P.W.5 was sexually assaulted by accused no.1. In this view of the matter, conviction and sentence imposed against accused no.1 under Section 394 of I.P.C. also, is justifiable. 12 So far as accused nos.2 and 4 are concerned, admittedly they have not been identified by any of the prosecution witnesses during test identification parade conducted by the Tahsildar. There is also no recovery of any articles alleged to have been stolen during commission of crime. Recovery of sticks at the instance of accused no.4 is a piece of evidence too weak to connect him with the crime. Except accused no.1, none of the accused has been identified by any of the prosecution witnesses. There is also no recovery of stolen property from any of the accused, except accused no.1. In these circumstances, accused nos.2 11 and 4 i. e. appellants no. 2 & 3 cannot be connected with the crime alleged to have been committed by them. In these circumstances, therefore, there was no justifiable reason for the trial Court to hold accused nos.2 and 4 guilty for the alleged crime. The judgment and order of conviction and sentence recorded by the trial Court holding accused nos.2 and 4 (appellants no.2 and 3) guilty, therefore, will have to be quashed and set aside. 13 In the result, appeal is partly allowed. The conviction and sentence imposed by the trial Court, so far as it relates to original accused no.1 (appellant no.1) Vasant Chalital Mandal, is maintained and appeal presented by accused no.1 stands dismissed. Appeal presented by original accused nos.2 and 4 (appellants no.2 and 3) Santoshkumar Sonsay Kevat and Maklumsab@ Mama Saipansab Shaikh stands allowed. They are acquitted of the charge levelled against them. Appellants No.2 & 3 (original accused nos. 2 & 4) be set at liberty, unless they are required in connection with any other offence. (R.M.BORDE) JUDGE ******* adb/criapeal61408