( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 214 OF 2010 1. Bharat Ghansham Bhosale, R/o Sawargaon, Tq. Majalgaon, District Beed. 2. Vachistha Ganesh Chavan, R/o as above. APPELLANTS VERSUS The State of Maharashtra RESPONDENT ..... Mrs. S.G. Chincholkar, advocate for the appellant. Mr. V.D. Godbharle, APP for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 22nd October, 2010] ORAL JUDGEMENT : 1. This appeal is directed against judgement of conviction and sentence rendered by the learned Additional Sessions Judge, Majalgaon, in Sessions Case No. 1/2010. By the impugned judgement, both the appellants have been convicted for the offence punishable under section 376 (g) of the I.P. Code and are sentenced to suffer rigorous imprisonment for term ( 2 ) of ten (10) years and to pay fine of Rs. 1000/-, each, in default to suffer rigorous imprisonment for three (3) months. They are also convicted for the offence punishable under section 394 read with section 34 of the I.P. Code and are sentenced to undergo imprisonment for period of seven (7) years each and to pay fine of Rs. 500/- each, in default to suffer rigorous imprisonment for one (1) month. 2. The appellants were jointly chargesheeted for the alleged offence of gang rape and the robbery by house breaking alongwith a juvenile accused by name Balu. The juvenile accused - Balu was, however, directed to be tried by the Juvenile Court. 3. The prosecution case, stated briefly, is that the prosecutrix is estranged by her husband alongwith children. She was residing with her mother in a small house situated in an agricultural land within the limits of village Upali. Her mother - PW Sitabai use to reside with one Laxman Shinde since about 30/40 years due to ( 3 ) the intimacy developed between them. Both of them use to do work as agricultural labours. The natural son of said Laxman Shinde had nurtured grudge against mother of the prosecutrix and use to threaten her that he would eliminate her. The natural son of said Laxman Shinde by name Ashok had sold certain agricultural land regarding which her mother i.e. PW Sitabai was asking her due share and, therefore, there was bad blood between them. In the evening of 25th June, 2006, the prosecutrix had gone out of the house for easing herself at about 9 p.m. While she was sitting for such purpose, someone flashed a torchlight on her face. Immediately thereafter, she was assaulted by means of stick and the culprits cut electric connection of the electric bulb of the house. They entered inside the house and assaulted her mother (PW Sitabai). They wriggled her out and pulled her by force upto much distance. They brought her at an open space in the land. They assaulted her by means of stick and threatened her that she would be done to death. They removed her saree and torn out her blouse. The two (2) of the culprits pressed her legs and twisted the legs ( 4 ) and hands. Thereafter, the three (3) culprits, successively, one after another, committed sexual intercourse with her by use of force. There were four (4) such culprits out of which one did not commit the sexual intercourse with her. The culprits also had taken away silver ornaments from her person and ear-tops of her mother, valued about Rs. 2140/-. The prosecutrix got rescued herself after the gang-rape and ran away towards the locality of one Rambhau Sawant. He provided her saree of his wife and thereafter, she narrated the incident to the village police patil. The police patil took her to the Police Station. The police recorded her FIR (Exh-21). She was admitted in Civil Hospital at Beed. An identification parade was held during course of investigation. The appellants were identified as the culprits. The police also recovered the ear-tops and some of the articles from the appellants. On basis of material gathered during course of investigation, both the appellants were chargesheeted for the offences punishable under section 376 (g) and section 394 of the I.P. Code. ( 5 ) 4. The appellants denied truth into the charges levelled against them. They adopted defence of total denial. They submitted that they were falsely implicated only on basis of suspicion. 5. The prosecution examined in all ten (10) witnesses in support of its case. The learned Sessions Judge came to the conclusion that the appellants were guilty on both the counts and hence, convicted as well as sentenced them as indicated hereinbefore. 6. Smt. Chincholkar, learned advocate for the appellants, would submit that the entire case of the prosecution is founded on suspicion entertained by the prosecutrix and her mother against the natural son of Laxman Shinde, who was having dispute regarding the property of his father. It is argued that the foundation of the conviction rendered against the appellants is shaky. The learned advocate would further submit that benefit of reasonable doubt ought to have been given to the appellants when the FIR itself ( 6 ) indicates commission of the offence in the darkness and inability of the prosecutrix to identify the culprits. The learned APP, however, supports the impugned judgement. 7. The points for determination in the appeal are: (i) Whether it is duly proved that the appellants committed gang-rape on the prosecutrix in the relevant evening and have been rightly convicted by the learned Sessions Judge ? (ii) Whether it is duly proved that the appellants committed the robbery by house breaking and decamped with gold and silver ornaments belonging to the prosecutrix and her mother, in the relevant evening ? 8. Before I proceed to scrutinize the evidence of the witnesses examined by the prosecution, let it be noted that the alleged incident occurred in the night ( 7 ) time when the prosecutrix and her mother were inside the farm-house and co-incidentally, the prosecutrix had gone out of the house for easing herself. The spot panchanama (Exh-23) goes to show that there was a single electricity bulb available for illumination of the house and that too, was not working. The spot panchanama (Exh-23) purports to show that the house is situated within the sugarcane crop which was standing in the agricultural land of Mohan Shelke. It is an admitted fact that the appellants were not known to the prosecutrix and her mother prior to the alleged incident. There is absolutely no evidence to establish any link between the appellants and the natural son of said Laxman Shinde with whom the mother of the prosecutrix was residing together. The recitals of the FIR (Exh-21) purport to show that son of said Laxman Shinde i.e. Ashok Shinde was having grudge against her mother and one of the culprits, who did not perform sexual intercourse with her appear to be like said Ashok Shinde. She suspected that the incident was result of enmity nurtured by said Ashok Shinde against her mother. ( 8 ) It is but natural that the edifice of the FIR is based on suspicion entertained by the prosecutrix against said Ashok Shinde and it has been alleged that said Ashok Shinde might have brought the culprits to commit the heinous act of the gang-rape and the house burglary. 9. At the outset, it may be stated that out of the ten (10) witnesses, examined by the prosecution, PW3 Rameshwar, PW5 Sugriv and PW7 Mithu were declared hostile. They were examined as witnesses of the memorandum of identification parade. Both of them did not support case of the prosecution pertaining to the identification parade which was allegedly held on 27-09-2006. Secondly, it is the case of the prosecution that the incident occurred in the evening of 25th June, 2006. The prosecutrix narrated that on the very next day, the culprits were shown to her while she was at Civil Hospital, Beed and, therefore, she had identified them. If this could be the fact situation, holding of the identification parade after about three (3) months of the occurrence is itself a very suspicious ( 9 ) circumstance. Not only that the panch witnesses did not corroborate the identification parade, but PW8 Shri Pawar, who held the inquest panchanama, was himself unable to identify the appellants during course of her examination. He was attached to Tahsil office at Osmanabad when was examined. He stated that while working as Tahsildar, Wadwani, he arranged the test identification parade in District Jail at Beed on 27th September, 2006. According to him, the Jail Superintendent provided ten (10) persons alongwith the appellants for the purpose of mixing up them. According to PW8 Shri Pawar, the prosecutrix identified the appellants and, therefore, the memorandum panchanama (Exh-31) was drawn. He states that he has not noticed whether the PSI Jagdale of Dindrud Police Station was present in the jail at the relevant time. It appears from his cross-examination that he did not take appropriate care and precaution to arrange the test identification parade in accordance with the procedure laid down under the Criminal Manual. Needless to say, the test identification parade is a stage managed farce. ( 10 ) 10. Coming to the version of the prosecutrix (PW1 Mahananda), it is amply clear that she lodged the FIR (Exh-21) without loss of much time. Her story regarding gang-rape and the house burglary cannot be dislodged. The recitals of the FIR (Exh-21) go to show that someone from the culprits had flashed torchlight on her face while she was sitting outside the house for easing herself. It is but natural that her stare was dazed. For some moment, she was unable to see due to the direct torchlight and thereafter, the culprits had cut off the electricity connection. The FIR itself indicates that she was unable to identify the culprits due to darkness. She narrated that the culprits were probably in the age group of 25 to 30 years and were putting on pants and banians. No particular description of any of the culprits was narrated by her. Nor it was stated in the FIR that she would be able to identify the culprits on basis of the profile noticed by her. What emerges from the version of the prosecutrix and the recitals of the FIR is that the entire episode occurred in the darkness. ( 11 ) There is no iota of evidence to show that there was moonlight available when she was pulled upto the open place where she was sexually ravished, one after another, by the culprits. It is under these circumstances that her version is required to be closely scrutinized. 11. The prosecutrix states that while she was in the Civil Hospital, the State Minister Smt. Vimal Mundada visited for making enquiry. The cross- examination of the prosecutrix would make it amply clear that the Village Police Patil and Rajendra Shelke had talked to the police prior to drafting of the FIR. She does not know whether the police patil had contacted the State Minister Smt. Vimal Mundada on phone after the alleged incident. Her version reveals that the police had brought nine (9) persons on the next day including both the appellants. But she states that she identified both the appellants in the hospital itself. This part of her statement gives serious jolt to the case of prosecution regarding identification of the appellants ( 12 ) during the test identification parade held on 27th September, 2006. 12. The version of PW2 Bhaskar lends corroboration to the recitals of spot panchanama (Exh-26). Though the prosecution alleged recovery of the ear-tops, at the instance of the appellant No.2 Ganesh, yet, the recovery panchanama is not corroborated by PW3 Rameshwar. He was declared hostile. Nothing of much importance could be gathered from his cross-examination. 13. The testimony of PW6 Chagan pertains to seizure panchanama (Exh-33) under which the petticoat of the prosecutrix was attached. It is a formal evidence. 14. The testimony of PW4 Sitabai reveals that the three (3) culprits had taken away her ear-tops and other silver ornaments after forcing entry in her house in the relevant evening. She deposed that the culprits had taken away the prosecutrix outside the house after the burglary. She, her husband and the children of her ( 13 ) daughter had concealed inside the house when the prosecutrix was taken away by the culprits. The cross- examination of PW Sitabai reveals that the police had brought nine (9) suspects in the hospital at Beed, but the group of said nine (9) suspects did not include the appellants. This part of her version is contradictory to which the prosecutrix has stated. She admits that she did not give description of the culprits during her police statement. 15. The version of PW9 PSI Jagdale relates to the steps taken during course of investigation. PW10 Dr. Anand corroborated the medico-legal certificate (Exh-54). The prosecutrix being a married woman, the mere fact that there was absence of hymen is of no avail to infer the alleged rape. No external injury was found on person of the prosecutrix except one contused lacerated wound on her forehead. Had she been forcibly wriggled away to the open place, it was but natural that she might have grazed against rough surface of the agricultural field. It was more probable, therefore, ( 14 ) that she could have sustained abrasions on her backside and the legs during course of forcibly pulling from her house to the open place. That was not noticed by the Medical Officer. 16. All said and done, the identity of the culprits is rendered in obscurity particularly because of the fact that the incident occurred in the darkness of the night and the prosecutrix was unable to identify the culprits. Secondly, the test identification parade held after about three (3) months is uncreditworthy. Considering these aspects, though the alleged offences are heinous and grave in nature, yet, identity of the appellants as the same culprits is not established beyond reasonable realm of doubt and as such, the charges could not have been held as proved against them. The findings recorded by the learned Additional Sessions Judge are not based on sound appreciation of the evidence. In this view of the matter, the appeal will have to be allowed and both the appellants deserve benefit of reasonable doubt. ( 15 ) 17. In the result, the appeal is allowed. The impugned judgement and order of conviction and sentence is set aside. Both the appellants stand acquitted of the offences punishable under section 376 (g) and 394 read with section 34 of I.P. Code. The appellants are directed to be released immediately, if not required in any other case. The fine amount, if any paid by the appellants, be refunded to each of them. The remaining part of the impugned order regarding disposal of the property items is maintained. [V.R. KINGAONKAR] JUDGE NPJ/criapl214-10