1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.983 OF 2009 1. Bhagwan Jaywant Padwal .Appellants Age : 28 years, Occu : labourer R/o.Dhamari, Taluka : Shirur District : Pune. 2. Santosh Ashok Bodake Age : 22 years, Occu : labourer R/o.Vaduj, Taluka & District Satara V/s. The State of Maharashtra .Respondent Mr.D.G.Khamkar, Advocate, for the Appellants Smt.S.V.Sonawane, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 15TH NOVEMBER, 2011 ORAL JUDGMENT . This Appeal is directed against conviction of the appellants for the offences punishable under Sections 452, 394, 342, 506 read with Section 34 and 376(2)(g) of the Indian Penal Code and sentence of rigorous imprisonment 2 for three years with a fine of Rs.1000/- or in default of payment of fine to suffer simple imprisonment for one month each, sentence of rigorous imprisonment for five years with a fine of Rs.2000/- or in default of payment of fine to suffer simple imprisonment for two months each, sentence of imprisonment for six months, sentence of imprisonment for one year each and sentence of rigorous imprisonment for ten years with a fine of Rs.2000/- or in default of payment of fine to suffer simple imprisonment for two months each respectively imposed on these counts by the learned Additional Sessions Judge, Pune on conclusion of trial of Sessions Case No.166 of 2005 before him. 2. Facts which are material for deciding this appeal are as under :- The victim was residing with her husband and two and half years old child at a house situated on Manchar-Shirur road. On 10th 3 August, 2004 at about 11:00 p.m. two persons were knocking the door of the victim's house from outside and were threatening to break open the door. The victim's husband opened the door of the house and the two appellants entered the house. They demanded valuables threatening to kill the daughter. They assaulted the victim's husband by means of a wooden rod and took away Rs.1,060/-. They dragged the victim out of the house. They latched the door of the house locking husband and child inside. They took the victim to a nearby field. One of the appellants took out a quilt which they had brought in their motor cycle, laid the quilt on the ground, and one after another committed rape upon the victim. Both of them then left on the motor cycle. The victim went back to her house. Next morning the victim and her husband contacted husband's uncle Ramchandra Gawade at Mumbai and told him about the incident. The said Ramchandra stated that he would visit the 4 village on the next day, but he did not. Thereafter, on 12th August, 2004 a report was given, whereupon an offence was registered under Sections 452, 394, 342, 506 read with Section 34 and 376(2)(g) of the Indian Penal Code. 3. In course of investigation, police drew up panchanama of the spot, seized incriminating articles, caused the victim to be sent for medical examination, police found that the appellants had been arrested in another crime by Lonikalbhor Police Station and also that the appellants had already shown the spot in course of investigation into that crime. The appellants were arrested in this crime and requisition was sent to the Tahsildar for holding identification parade. Test identification parade was held by Tahsildar on 28th November, 2004. After completion of investigation, charge sheet was sent to the Court of the Judicial Magistrate First Class, 5 Ghodegaon, who committed the case to the Court of Sessions at Pune. 4. The learned Additional Sessions Judge, to whom the case was made over, charged the appellants for the offences punishable under Sections 452, 394, 342, 506 read with Section 34 and 376(2)(g) of the Indian Penal Code. Since the appellants pleaded not guilty, they were put on trial at which the prosecution examined in all 11 witnesses in its attempt to bring home guilt of the appellants. After considering the prosecution evidence, in the light of defence of denial and false implication raised, the learned trial Judge convicted and sentenced the appellants as indicated earlier. Aggrieved thereby, the appellants have preferred this appeal. 5. I have heard the learned counsel for the appellants and the learned Additional Public 6 Prosecutor for the State. With their help I have gone through the evidence on record. The learned counsel for the appellants submits that the entire story is contrived and thoroughly unbelievable. He states that due to strained relationship between maternal uncle of victim's husband and appellants, the appellants were falsely implicated in the case. He pointed out that victim's husband, who was examined as PW-1, admitted that the house is situated on a road having traffic of vehicles. The incident had not taken place at the time when there should have been no traffic on the road. The incident took place at about 11:00 p.m. PW-1 Prakash Dnyaneshwar Gorade had stated that he was watching TV and his wife was asleep when he heard banging on the door. He stated that the miscreants had broken open a window and they demanded that the door should be opened. Then he narrates the incident about robbery and taking away his wife. 7 6. His wife, who was examined as PW-2 corroborated her husband substantially. She stated that she told her husband to open the door. She states that she was taken away by the appellants and the appellants latched the door of the house from the outside. She states that one of the appellants brought a quilt which was kept in the motor cycle and laid the quilt on the floor. Then one after the other they had forcible sexual intercourse with her. The witness stated in his cross examination that while being carried she had struggled and attempted to escape from the miscreants. She went on to state that at the time of rape she had not struggled or resisted because she apprehended that she will be killed. The learned counsel for the appellants states that this makes strange reading. She states having given a report on 12th August, 2004 at about 2:00 p.m.. 8 7. PW-3 Dr.Utkarsha Nimbajirao Patil, who had examined the victim found that the victim was habituated to sexual intercourse and obviously so, but did not find any circumstances indicative of gang rape. She proved her Certificate at Exhibit 22. Since the report was given two days after the incident and incriminating articles were seized thereafter, the reports of the Forensic Science Laboratory which are at Exhibits 66 and 67 do not help the prosecution in proving its case. PW-4 Ramchandra Kashinath Gawade, the uncle of victim's husband stated that he had been informed of the rape on the next day and though he promised to visit the family on the next day. Since he was not feeling well, he did not go to the village. By the time he reached, report had been given. The learned counsel for the appellants submitted that this contrived evidence is brought on record only to explain the delay in lodging the report. PW-5 Rajaram 9 Sudam Mandale is a panch at the panchanama of the spot and seizures of certain articles from the victim. The panchanama of spot also shows that to the South of the house is Manchar-Shirur road. 8. PW-6 Dattatraya Babanrao Kavitke was Tahsildar of Ambegaon, who states having conducted Test Identification Parade on 28th November, 2004 at which the appellants were identified by PW-1 and PW-2. The significance of asking Haranbai Rokade and Pandurang Rokade to identify the appellants is not clear but the learned Additional Public Prosecutor states that possibly they were witnesses in another crime. The learned counsel for the appellants submits that the evidence of identification of the two appellants by PWs 1 and 2 at this identification parade is thoroughly useless, since the parade was held more than three months after the incident. He submits that there is evidence of 10 PW-8 Sukhadeo Namdeo Kand to show that on 19th August, 2004 one of the appellants was supposed to have disclosed to a police officer from Lonikalbhor Police Station that he would show the spot where the appellants committed rape upon the victim and according to him, the spot near the house of the victim was shown by the accused between 16:45 and 19:45 hours. The learned counsel submitted that when the appellants had gone near the house of the victim to show the spot, it is inconceivable that the victim or her husband were not shown the appellants by the police at that time. 9. PW-7 Vilas Sabaji Thorat is a panch at the arrest panchanama Exhibit 41 whereby the appellants were arrested on 26th September, 2004 by Manchar police. PW-9 API Sunil Dadasaheb Ghadge had stated that he had arrested the appellants in Crime No.208 of 2004 of Lonikalbhor Police Station on 15th August, 2004 11 and during investigation of that crime on 19th August, 2004 the appellants had taken them to the spot. The witness stated in his cross examination that accused was arrested in Crime No.208 of 2004 on 10th August, 2004. The learned Additional Public Prosecutor submitted that in fact, the appellants might have been arrested on 15th August, 2004 as stated in examination-in- chief and that it may be a mistake to mention the date as 10th August, 2004 in cross examination. The learned trial Judge also seems to have held that the accused were possibly arrested on 15th August, 2004. PW-10 Police Head Constable Baban Krishna Bhosale had recorded report of the complainant vide Exhibit 15 and sent her for medical examination. PW-11 API Kalyan Laxman Pawar stated that on 12th August, 2004 he was entrusted with investigation of this crime and on 15th August, 2004 he learnt from API Ghadge about the arrest of the two appellants and that he eventually arrested them only after 12 getting the transfer warrant on 6th September, 2004. 10. The learned counsel for the appellants submitted that the evidence tendered should not have been believed by the learned trial Judge first, because the story given by the victim and her husband is extremely fragile. He submitted that it was inconceivable that two persons would come to the victim's house and bang the door asking the inmates to open the door. He submitted that ordinarily, a closed the door is a better protection and therefore, victim's asking her husband to open the door is enigmatic. He further submitted that it is equally inconceivable that a husband would allow his wife to be taken away by two persons to a spot nearby the house and would raise no cries or offer no resistence. There is nothing to show that one of the miscreants had either held their small daughter or had made any attempt to 13 injure the daughter. Therefore, once the victim was taken away by the miscreants and the victim's husband and children were alone, there was no reason for the victim's husband not to raise cries or seek help, particularly since the house is situated on a busy road. 11. The learned counsel for the appellants submits that it is equally difficult to believe that the victim claims to have offered the resistence when being taken to a spot under a tree, but did not offer any resistence when actually being subjected to rape. He also points out that the story of the appellants having brought a quilt and committed rape upon the victim after spreading the quilt is equally unbelievable. It appears from the story given by the victim and her husband that the appellants had come, not come for committing robbery, but only in order to have intercourse with the victim. The learned counsel for the 14 appellants submitted that the story about quilt being laid on the spot has been given to explain absence of injuries on the person of the victim, since ordinarily, when a woman is raped by two persons by taking her out of the house, there would be some marks of violence. 12. Since the victim chose to give report of the incident two days after the incident, there was obviously no medical or scientific evidence to be found. The learned counsel for the appellants submitted, and rightly in my view, that in order to explain the delay in lodging the FIR, the story of consultation with PW-4 has been introduced. There was absolutely no reason for the victim or her husband not to give a report about the incident to the police immediately. In any case, the learned counsel for the appellants submits that since miscreants were not known to the victim or her husband, it was necessary for the prosecution to prove 15 identity of the miscreants properly. Here, according to PW-9 API Ghadge, who had arrested the miscreants on 15th August, 2004, he had taken the miscreants to the spot of incident at the instance of miscreants on 19th August, 2004, giving an opportunity to the victim and her husband to see the miscreants before they were actually paraded at Test Identification Parade held on 28th November, 2004. Therefore, identity of the appellants as miscreants is also in doubt. 13. Considering this, even if, the mistake of PW-9 about the date of arrest is to be ignored as a clerical error, the evidence tendered was thoroughly unsatisfactory and inadequate to hold the appellants guilty of serious offences with which they were charged. 14. Therefore, the Appeal is allowed. Conviction of the appellants for the offences 16 punishable under Sections 452, 394, 342, 506 read with Section 34 and 376(2)(g) of the Indian Penal Code and sentence of rigorous imprisonment for three years with a fine of Rs.1000/- or in default of payment of fine to suffer simple imprisonment for one month each, sentence of rigorous imprisonment for five years with a fine of Rs.2000/- or in default of payment of fine to suffer simple imprisonment for two months each, sentence of imprisonment for six months, sentence of imprisonment for one year each and sentence of rigorous imprisonment for ten years with a fine of Rs.2000/- or in default of payment of fine to suffer simple imprisonment for two months each respectively imposed upon the appellants is set aside. They are acquitted of the charges levelled. They shall be set at liberty, if not wanted in any other case. (R.C.CHAVAN, J.)