1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 721 OF 2006 Santosh Ashok Bodake Age : 25 years, Occ.: Labour, R/At: Waduth, District : Satara ...Appellant (Accused No.2 in Trial Court) vs. The State of Maharashtra ...Respondent with CRIMINAL APPEAL NO. 1188 OF 2009 Bhagwan @ Ajit Jaiwant Padwal ...Appellant (Orig.Accused No.1) vs. The State of Maharashtra ...Respondents Mr.D.G. Khamkar for Appellant No.1. Mr.P.P. Kakade for Appellant No.2. Mrs.P.P. Bhosale, APP for the State. 2 CORAM : V.M. KANADE, J. DATED : JUNE 15, 2010 ORAL JUDGMENT :- 1 Heard. 2 Both these appeals arise out of a common judgment passed by the 10th Ad-hoc Additional Sessions Judge, Pune. By the said judgment and order, the learned Sessions Court was pleased to convict both the appellants for the offence punishable under Section 363 read with 34 of the IPC and sentenced them to suffer RI for a period of 7 years and also to pay fine of Rs.500/- EACH and in default, to suffer further SI for one month. They are also convicted for the offence punishable under Section 366(A) read with 34 of the IPC and sentenced to sufffer RI for 7 years and to pay fine of Rs. 500/- and in default, to suffer SI for one month. Accused No.1 Bagwan @ Ajit Jaywant Padwal was also 3 convicted for the offence under Section 376 of the IPC and sentenced to suffer RI for 7 years and pay fine of Rs.500/- and to suffer further SI for one month in case of default of payment of fine. 3 The prosecution case in brief is that the accused came to the house of the complainant at about 11 p.m. on 7th August, 2004. The complainant opened the door when they told him that they were sent by one Suresh Satav. According to the complainant, the two accused made enquiries with the family members of the complainant including the women and asked them to awake them up and thereafter, took away prosecutrix Shabana with them. According to the complainant who is a brother of the prosecutrix tried to search the prosecutrix with the accused, however, they were not found and therefore, the complaint was lodged and on the basis of the complaint, an offence punishable under Sections 363, 366(A) read with 34 of the IPC was registered. The Investigating Officer recorded the 4 statements of the witnesses and filed chargesheet against the accused. The prosecution examined eight witnesses and produced documentary evidence on record to establish the age of the prosecutrix and also Chemical Analyser s report and on the basis of the evidence adduced by the prosecution, the accused were convicted for the said offence. 4 The learned Counsel for the appellants submitted that the prosecution had failed to establish the offence punishable under Sections 363, 366(A) read with 34 of the IPC and under Section 376 against accused no.1. It was submitted that the prosecution had not established that the prosecutrix was below 16 years of age. Secondly, it was submitted that the prosecution had not held test identification parade since admittedly, both the accused were not known to the complainant or the prosecutrix and as such, mere identification of the accused in the court was not sufficient for the purpose of establishing the identity of the accused. 5 It was further submitted that the prosecution case was improbable. It was submitted that according to the prosecution, the accused had taken the prosecutrix along with them at various places on motorcycle. She had ample opportunity to raise hue and cry as she had been abducted and therefore, the prosecution case itself was highly improbable. In support of the said submission, both the learned Counsel relied on various judgments of the Apex Court and the High Courts. 5 The learned APP appearing on behalf of the State, however, pointed out that the age of the prosecutrix had been established by production of relevant certificate and also by virtue of the ossification test which was performed by the Medical Officer who has given his opinion about the age of the prosecutrix as between 13 to 14 years. 6 After having heard both the learned Counsel for the appellants and the learned APP for the State 6 and after having perused the evidence on record, in my view, the prosecution has reasonably failed to prove the offence against the appellants for the following reasons. 7 In the present case, the prosecution have examined eight witnesses. PW 1 Mehboob Allabaksha Mandewal is the brother of the prosecutrix. PW 2 is the prosecutrix Shabana. PW 3 is Babu Allabaksh Mandewal who is the brother of the prosecutrix Shabana. PW 4 is Dr.Sheetal Suresh Laxmanwar, Medical Officer who examined the prosecutrix on 10th August, 2004. PW 5 Maruti Vithoba Satav is the panch witness in respect of the recovery of the Hero Honda motorcycle which was recovered at the instance of the accused Bhagwan Padwal. PW 6 is Sunil Dadasaheb Gharage, API attached to Loni Kalbhor Police Station. PW 7 Dr.Satish Shrikrishna Abhyankar is the Medical Officer of Primary Health Centre, Wagholi, District Pune, who examined the accused Ajit Padwal and 7 Santosh Bodke and lastly, PW 8 is the Medical Officer - Dr.Ramkrishna Govindrao Bhusale who examined the prosecutrix Shabana and performed ossification test to ascertain the age of the prosecutrix. PW 2 Shabana in her evidence has stated that she was residing with her mother, sisters and two elder brothers in the house and she was 13 years old at the time of the incidence. She has further stated that on 7th August, 2004, she was sleeping with other family members in the house and two persons entered the house and had threatened them to take her with them. She has given description of one out of the two persons. She has stated that the person was having a dark complexion and somewhat tall and his two front teeth from lower jaw had fallen. When she tried to shout, he put his hand on her mouth and took her to the hill near her house. According to the prosecutrix, Bhagwan Padwal, therefore, forcibly committed sexual intercourse with her. She has stated that the other accused Santosh was standing at same place and thereafter, 8 both of them brought her to the road going towards Katkewadi from Vithalwadi and from there, they took her to Pune Nagar Road. While they were standing at the road, he gave signal to one trax and after it stopped on the road, she was taken to Koregaon. Then again from Koregaon, she went to some other place and Bhagwan brought Hero Honda motorcycle. According to her, she was asked to seat on backside on the motorcycle and they took her to the house of their friend and accused Bhagwan told the persons who were residing in the house that the prosecutrix was daughter of his friend. She has stated that accused Bhagwan committed forcible sexual intercourse with her. Thereafter, according to her, they took her to Bhimashankar and from there, she was taken to Sikrapur. According to the prosecutrix, when accused Bhagwan took her to Shikrapur, one old woman made enquiries with Bhagwan and she was informed that the prosecutrix was daughter of friend. Again Bhagwan accused had forcible intercourse with her. Thereafter, on the next date, Bhagwan took her to 9 Koregaon on motorcycle and gave Rs.20/- to go to her house, she then stopped a jeep and came back to her house. Thereafter, she narrated the entire incidence to family members and she was taken to policy chowky where her statement was recorded. Thereafter, She was taken to Sassoon Hospital and she was examined by the Medical officer. She identified both the accused in the criminal court. In the cross- examination, she admitted that she was not in a position to name the school where she took admission. She, however, stated that she was admitted in the school at Karnataka State. She admitted that she was not alone in the house when the accused came to the house and it was dark outside the house. She further admitted that none of the family resisted the accused when the accused slapped her brother and when she was taken away by the accused. She also admitted that she had not seen the accused prior to the incident when she was forcibly abducted by them. Even in the cross- examination, she accepted this fact. The prosecutrix 10 was further cross-examined on many other aspects regarding the alleged forcible rape by Bhagwan and the places she was taken. 8 There is much substance in the submission made by the learned Counsel for the appellants that it was the duty of the prosecution to hold the test identification parade in order to establish the identity of the accused who were not known to either the prosecutrix or the other members of the family and in absence of establishing the identity of the persons who had committed the offence, benefit of doubt ought to have been given to the accused. 9 The learned Counsel for the appellants relied on the Division Bench judgment of this Court in the Baban s/o. Rakhmaji Bichkule & Anr. vs. State of Maharashtra, reported in 1998 ALL MR (Cri) 1533. In the said judgment, the Division Bench of this Court has taken into consideration the effect of not holding a test identification parade. In the said 11 case, there is also a case for the offence punishable under Section 376(g). The prosecutrix had given the names to the accused in the FIR. However, the Division Bench observed that since the identification parade is not held, the identification of the accused before the court was not sufficient for the purpose of convicting the accused. The Division Bench in para 17 has further observed that FIR was not sufficient to hold that the prosecutrix was knowing the assailants and therefore, it was sufficient to accept the identification of the assailments before the court. The Apex Court, similarly, in the case of Kanan and others, Appellants v. State of Kerala, Respondent, reported in AIR 1979 Supreme Court 1127 has observed that evidence of a witness, who identifies an accused who is not known to him for the first time in the court, is absolutely valueless unless there is a previous test identification parade to test his powers of observations. The Apex Court in para 1 has observed as under :- 12 It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The idea of holding T.I. parade under S. 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. The testimony of the prosecutrix on the question of identification of the accused cannot be accepted since no test identification parade was held by the prosecution. Similarly, the evidence of her brothers PW 1 and PW 3 also cannot be accepted on the question of identity of the accused since they also did not know the accused before the said incident took place. That being the position, on this ground alone, the appellants are entitled to get the benefit of doubt. Apart from that, from the 13 testimony of the prosecutrix, it appears quite improbable that she was taken from various places, at no point of time, she has raised any hue and cry and make a complaint to the passers-by or the people who are residing in the house where she was taken by the accused. The medical evidence also does not support the prosecution case in respect of the commission of the offence of rape by accused Bhagwan. Taking into consideration the aforesaid circumstances, therefore, in my view, the trial court was not justified in convicting the appellants for the aforesaid offences. The appellants are entitled to get the benefit of doubt. 10 The appellants are hereby acquitted for the offence punishable under Sections 363, 366(A), 376 read with 34 of the IPC. The judgment and order passed by the Sessions Court is quashed and set aside. 11 In the result, the appeal is allowed. The 14 appellants be released forthwith unless they are required in any other case. 12 Appeals are disposed of. (V.M. KANADE, J.)