1 Cri.Application No.3934 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Application No.3934 Of 2010 In Criminal Appeal No.388 Of 2010 Raghunath s/o Ramnath Zolekar, ] Age 42 years, ] Occupation : Service, ] R/o Dhumalwadi, Taluka Akole, ] District Ahmednagar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- Shri. S.T. Shelke, Advocate, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4015 Of 2010 In Criminal Appeal No.394 Of 2010 Vasant S/o Mangu Pawara, ] Age 34 years, ] Occupation : Agriculture, ] R/o Durbudya Wakwad, ] Taluka Shirpur, ] District Dhule. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- 2 Cri.Application No.3934 of 2010 Shri. R.B. Raghuwanshi with Shri. D.S. Bagul and Shri. A.B. Girase, Advocates, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4024 Of 2010 In Criminal Appeal No.395 Of 2010 1) Ruchin S/o Sharad Mehta, ] Age 25 years, ] Occupation : Business, ] R/o. Telikhunt, Sarjepura, ] Ahmednagar, ] District Ahmednagar. ] ] 2) Hardik S/o Lakhmichand Jaggad, Age 25 years, ] Occupation : Business, ] R/o Netaji Subhash Chowk, ] Ahmednagar, ] District Ahmednagar. ] ] 3) Akash S/o Subhash Rathi, ] Age 25 years, ] Occupation : Business, ] R/o Krushna Apartment, ] Ahmednagar, ] District Ahmednagar. ] ... Applicants. Versus * The State of Maharashtra. ] ... Respondent. -------- Smt. Sadhana S. Jadhav, Advocate, for applicants. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. 3 Cri.Application No.3934 of 2010 With Criminal Application No.4042 Of 2010 In Criminal Appeal No.397 Of 2010 Abdul Haq Fakir Mohammad Kureshi,] Age 37 years, ] Occupation : Business, ] R/o Vyapari Mohalla, Ahmednagar, ] District Ahmednagar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- Shri. N.S. Ghanekar, Advocate, for applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. --------- With Criminal Application No.4170 Of 2010 In Criminal Appeal No.412 Of 2010 Chetan Popatlal Bhalgat, ] Age 30 years, ] Occupation : Business, ] R/o Sai Colony, Fulari Mala ] Savedi Road, Ahmednagar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- 4 Cri.Application No.3934 of 2010 Shri. V.N. Damle with Shri. K.N. Lokhande, Advocates, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4171 Of 2010 In Criminal Appeal No.413 Of 2010 Vilas s/o Babasaheb Karale, ] Age 32 years, ] Occupation : Business, ] R/o Telikhunt Sarjepura, ] Ahmednagar. ] District Ahmednagar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- Shri. V.N. Damle with Shri. K.N. Lokhande, Advocates, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. --------- With Criminal Application No.4192 Of 2010 In Criminal Appeal No.415 Of 2010 5 Cri.Application No.3934 of 2010 1) Ramakant Ramrao Dengale, ] Age 22 years, ] Occupation : Business. ] ] 2) Atmaram Ramrao Dengale, ] Age 22 years, ] Occupation : Business, ] ] Both resident of Nimgaon Jali, ] Taluka Sangamner, ] District Ahmednagar. ] ... Applicants. Versus * The State of Maharashtra. ] ... Respondent. -------- Shri. Harshad Nimbalkar with Shri. Sanket S. Kulkarni, Advocates, for the applicants. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4212 Of 2010 In Criminal Appeal No.416 Of 2010 Ramrao s/o Mohaniraj Dengale, ] Age 58 years, ] Occupation : Agriculture, ] R/o Nimgaon Jali, ] Taluka Sangamner, ] District Ahmednagar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- 6 Cri.Application No.3934 of 2010 Shri. Harshad Nimbalkar with Shri. Sanket S. Kulkarni, Advocates, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4319 Of 2010 In Criminal Appeal No.426 Of 2010 1) Tukaram s/o. Gena Misal, ] Age 45 years, ] Occupation : Contractor, ] R/o. Narharinagar, ] Gulmohar Road, ] Ahmednagar, ] District Ahmednagar. ] ] 2) Ramesh @ Ramakant ] s/o Rajaram Barkase, ] Age 43 years, ] Occupation : Rickshaw Driver, ] R/o Civil Lines, Hudco, ] Ahmednagar, ] District Ahmednagar. ] ] 3) Ashok s/o. Babasaheb Kasar, ] Age 35 years, ] Occupation : Business, ] R/o Walki, Ahmednagar, ] District Ahmednagar. ] ... Applicants. Versus * The State of Maharashtra. ] ... Respondent. -------- 7 Cri.Application No.3934 of 2010 Smt. Sadhana S. Jadhav, Advocate, for applicants. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. --------- With Criminal Application No.4401 Of 2010 In Criminal Appeal No.430 Of 2010 1) Aba @ Dnyandeo s/o ] Bhagchand Gondkar, ] Age 50 years, ] Occupation : Business, ] R/o. Pimpalwadi Road, Shirdi, ] District Ahmednagar. ] ] 2) Harjitsing S/o. Jodhsing Rajpal, ] Age 45 years, ] Occupation : Business, ] R/o Gandhi Nagar, Shahada, ] District Nandurbar. ] ... Applicants. Versus * The State of Maharashtra. ] ... Respondent. -------- Smt. Sadhana Jadhav, Advocates, for the applicants. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4403 Of 2010 In Criminal Appeal No.429 Of 2010 8 Cri.Application No.3934 of 2010 Ajay s/o Sudhakar Kate, ] Age 35 years, ] Occupation : Business, ] R/o Ganesh Nagar, Shahada, ] District Nandurbar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- Smt. Sadhana S. Jadhav, Advocate, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- With Criminal Application No.4412 Of 2010 In Criminal Appeal No.431 Of 2010 Balkisan s/o. Premraj Goyal, ] Age 40 years, ] Occupation : Business, ] R/o Pachlimb, Ahmednagar. ] ... Applicant. Versus The State of Maharashtra. ] ... Respondent. -------- Smt. Sadhana S. Jadhav and Shri. P.P. Darak, Advocate, for the applicant. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. -------- 9 Cri.Application No.3934 of 2010 With Criminal Application No.4414 Of 2010 In Criminal Appeal No.432 Of 2010 1) Rajendra Shivajirao Thorat, ] Age 32 years, ] Occupation : Business, ] ] 2) Ravindra Sambhajirao Thorat ] Age 36 years, ] Occupation : Business, ] Both R/o Sangamner, ] Taluka Sangamner, ] District Nandurbar. ] ... Applicants. Versus * The State of Maharashtra. ] ... Respondent. -------- Shri. A.M. Karad, Shri. S.W. Munde and Shri. E.G. Irale Patil, Advocates, for the applicants. Shri. Vijay Savant, Special Public Prosecutor, for the respondent - State. --------- CORAM: NARESH H PATIL & S.V. GANGAPURWALA, JJ. Order reserved on : 23th February 2011. Order pronounced on: 10th March 2011. 10 Cri.Application No.3934 of 2010 ORDER (Per Naresh H Patil, J.): 1) The applicants were convicted for offences punishable under sections 376, 376(2)(g), 366-A, 120-B of the Indian Penal Code and under section 5(1)(a) & (d) Proviso (i) of the Immoral Traffic (Prevention) Act, 1956. The applicants were sentenced to undergo life imprisonment for an offence punishable under section 376 of the Indian Penal Code along with other sentences imposed by the trial Court which were directed to run concurrently vide judgment and order dated 20-9-2010 in Sessions Case No.85 of 2006. The appeals filed by the applicants are already admitted. Record and proceedings was called for the purpose of hearing of these bail applications. 2) In brief, the prosecution case is that, the prosecutrix was staying with her family including father Anil, sister Priya and brother Kiran in a locality of Ahmednagar town. The date of birth of the prosecutrix as stated by her was 29th May 1991. At the relevant time she was studying in Markandeya Vidyalaya, Gandhi Maidan, Ahmednagar. 11 Cri.Application No.3934 of 2010 3) At Ahmednagar NGOs namely “Snehalaya" and "Child Line" are involved in social work. Their function is to help boys and girls who are minor below age of 18 years. 4) PW 1 Anil @ Annsaheb Gawade was working in Child-line Institute. On 23-2-2006 one Anil Narayan Jadhav came to the institute along with his friend and informed that the prosecutrix who was his daughter was missing from his house since last two days. A photograph was shown by Anil Jadhav to PW Anil Gawade. He filed an application requesting the institute to help him. Accordingly search of the prosecutrix was taken up. Anil Jadhav informed PW No.1 Anil Gawade that on 22nd February 2006 Satish Pathare (accused No.3) had come to him at about 1.00 a.m. to 2.00 a.m. and informed that the prosecutrix had taken away his motor cycle. On the next day, Satish Pathare told Anil Jadhav that his motor cycle was given back to him by Priti Sonwane near Siddhi baug, Ahmednagar. 5) The prosecutrix was found in a house in Padmanagar locality of Pipeline road, Ahmednagar, in which one Priti Sonwane was residing along with her 12 Cri.Application No.3934 of 2010 mother and sister. Both the prosecutrix and Priti Sonwane were brought to Child-line institute from the house of Priti Sonwane. A preliminary inquiry was conducted with the two girls. It was informed by the prosecutrix that Shila Bargal, Ram Salve and Vilas Karale compelled her to have sexual intercourse with various persons. The prosecutrix told names of persons with whom she was compelled to have sexual intercourse at various places. Priti Sonwane also told that she, too, was compelled to have sexual intercourse with some persons at the house of Shila Bargal and at other places. 6) Both the girls were taken to the office of Superintendent of Police, Ahmednagar. Anil Jadhav had accompanied them. Police Inspector from Tophkhana Police Station recorded complaint of the prosecutrix. Crime No.50 of 2006 was registered under sections 376, 366-A, 114 read with section 34 of the Indian Penal Code and under sections 3,4 and 5 of the Immoral Traffic (Prevention) Act, 1956. The incident in question took place during the period of 5 to 6 months prior to filing of the complaint and was spread over during the period of 3 to 4 months of the year 2005 and 1 or 2 months of the year 2006. 13 Cri.Application No.3934 of 2010 7) The case of the prosecutrix is that Shila Bargal posed Ramesh Barkase as her husband when in fact he was not. In the beginning the prosecutrix was being paid some amount by Shila Bargal and Vilas Karale out of the amount they used to get from customers. Ram Salve (absconding accused) used to pay some amount to the prosecutrix and these persons used to retain some of the amount. But later on they stopped paying anything to the prosecutrix. 8) Police took up the investigation. 2 to 3 groups of police officers were formed and accordingly the officers started investigating the offence. Later on, the investigation was taken up by State CID (Crime Branch) Maharashtra State on 7-3-2006. 9) The CID filed charge sheet against 18 accused on 22nd May 2006. First supplementary charge-sheet came to be filed against accused Ruchin Mehta on 4-10-2006. Second supplementary charge-sheet was filed against accused Vilas Karale and Raghunath Zolekar on 22nd December 2006 and third supplementary charge-sheet against accused Vasant Pawara on 28th June 2007. 14 Cri.Application No.3934 of 2010 10) Various cell phones, clothes were seized under panchanamas. The prosecutrix and the accused were sent for medical checkup. The clothes were sent for forensic examination. Reports of Forensic Laboratory were obtained. Information was obtained from cellular companies in respect of cell phones which were used in the offence. 11) The prosecution case is that, the accused were making arrangements by telephonic talk and they used to call the prosecutrix on telephone. The owner and driver of Indica car used by accused Vilas Karale for carrying the prosecutrix to various places like Shirdi, Shahada, Dhule were interrogated in connection with the crime. One practicing Advocate Sanjay Thanekar was also interrogated in connection with the crime. 12) Charge-sheet was filed in the Court of the Chief Judicial Magistrate, Ahmednagar and it was registered as Criminal Case No.214 of 2006. The case was committed to the Court of Sessions and it was registered as Sessions Case No.85 of 2006. Except two accused, all accused were released on bail during trial. Charge was framed against the accused, they pleaded not guilty and claimed 15 Cri.Application No.3934 of 2010 to the tried. 13) The prosecution examined in all 38 witnesses including three investigating officers. Criminal Application No.4212 of 2010 and 4192 of 2010 by original A-16 Ramakant Dengale, A-17 – Atmaram Dengale and A-11 Ramrao Dengale. 14) The learned counsel Shri. Harshad Nimbalkar appearing for the applicants submitted that, the names of these applicants were not mentioned in the First Information Report and in the supplementary statement. No identification parade was conducted by the prosecution. There is no documentary proof of their involvement in the incident in Hotel Tarang. The prosecutrix identified them in Court. There is no evidence of committing rape on the prosecutrix. The story of the prosecution is concocted one. The prosecutrix was not taken to the spot of incidents, the investigating agency failed to establish the case against the accused persons. The counsel submitted that, nothing was seized at Hotel Tarang neither any employee of Hotel Tarang was examined. The learned counsel disputed that the prosecutrix was minor, below age of 15 years. The counsel 16 Cri.Application No.3934 of 2010 referred to the evidence of two doctors – PW 29 Dr. Pokharna and PW 31 Dr. Swapnali Kale. The trial Court has wrongly relied on the school record of the prosecutrix to ascertain her age. The prosecutrix has improved her versions in Court and considering in entirety the evidence of the prosecutrix, no offence could be proved. In absence of any corroboration the conviction and sentence awarded is not sustainable. The counsel further submitted that, father of the prosecutrix was not examined neither Priti Sonwane was examined though their statements were recorded by the police. This circumstance is adverse to the prosecution. The counsel submitted that, the applicants were on bail during trial. Their conduct is unblameworthy while they were released on bail. They cooperated with the prosecution. The prosecutrix’s conduct is unnatural and the police have cooked up the case against applicants who are innocent persons. The driver Sandeep was not examined by the prosecution nor his statement was recorded. Ultimately the learned counsel submitted that accused No.11 - Ramrao Mohaniraj Dengale is 60 years of age and considering his age his case be sympathetically considered. The counsel submitted that the applicants, if released on bail, would 17 Cri.Application No.3934 of 2010 abide by conditions imposed by this Court. Criminal Application No.3934 of 2010 by original accused No.21 – Raghunath Ramnath Zolekar. 15) The learned counsel Smt. Sadhana Jadhav, appearing for the applicant submitted that, the applicant is falsely involved in the case. He is no way concerned with the incident in Hotel Tarang. The counsel had adopted the arguments of learned counsel Shri Nimbalkar. It was submitted that during trial the applicants were on bail and therefore they applicants be released on bail during pendency of the appeal. Criminal Application No.4412 of 2010 by original accused No.6 – Balkisan Premraj Goyal. 16) The learned counsel Smt. Sadhana Jadhav submitted that, the age of the prosecutrix is disputed and she was not minor as projected by the prosecution. There is no convincing record and evidence to show that she was minor. There is abnormal delay in lodging the First Information Report. The conduct of the prosecutrix is not natural. The police did not investigate the case fairly. The prosecutrix did not identify the places. The investigation is faulty. 18 Cri.Application No.3934 of 2010 Criminal Application Nos.4024, 4319, 4403, 4401 and 4412 of 2010 by original accused No.19 Ruchin, A-2 Hardik, A-4 Akash, A-5 – Tukaram, A-7 Ramesh @ Ramakant, A-18 Ashok, A-8 Ajay Kate, A-10 Aba @ Dnyandeo, A-9 Harjitsing and A-6 Balkisan. 17) The learned counsel Smt. Sadhana Jadhav appearing for the applicants submitted that, the mental and clinical age of the prosecutrix ought to have been ascertained and scrutinized by the trial Court. No role was attributed to accused No.7. The penal provisions of Section 376 of the Indian Penal Code the provisions of the Immoral Traffic (Prevention) Act are not applicable to the case of accused No.7. The prosecution has failed to justify the silence of the prosecutrix for a period of four months. The conduct of the prosecutrix was unnatural as she did not inform to her close relatives regarding the incidents regarding which she has filed complaint. There is no photograph on record in respect of places where the prosecutrix claimed to have been taken by the accused persons. The counsel submitted that, there is no case that the prosecutrix was forced by the accused persons or there was mounting pressure on the prosecutrix by the applicants. The prosecution case does not inspire confidence according to the counsel. 19 Cri.Application No.3934 of 2010 18) In respect of accused Nos.2,4 and 19 the learned counsel submitted that, no role is attributed to these accused in respect of the incident which took place in Sai Balaji Hotel. Accused No.8 was not identified in Court. Except accused No.8, the counsel submitted that, rest of the accused were identified in Court. On the age of the prosecutrix it was submitted that, she was having age of understanding. In view of the facts of the case and the evidence brought on record, there is no case made out by the prosecution. The trial Court has committed serious error in awarding harsh punishment of life imprisonment to the accused persons. Hearing of the appeal would take long time. The applicants are respectable persons in the society. The counsel submitted that the trial was conducted and the applicants were convicted and sentenced due to pressure of media and the trial was, in fact, a “trial by media”. Criminal application No.4015 of 2010 by original accused No.22 – Vasant Pawara. 19) The learned counsel Shri. R.B. Raghuwanshi appearing for the applicant submitted that, the name of the applicant was not mentioned in the First Information 20 Cri.Application No.3934 of 2010 Report. The statement of the prosecutrix was recorded on 24-2-2006. There was no hotel at Dhule namely Raj Palace which is, in fact, at Shahada. The prosecutrix did not refer to the name of the applicant till December 2006. The counsel submitted that there was no identification parade conducted by police. Identification of the accused in Court by the prosecutrix cannot be claimed to be the identification parade by the prosecutrix before trial. Criminal Application No.4042 of 2010 by original accused No.12 – Abdul Haq Fakir Mohd. Kureshi. 20) The learned counsel Shri. N.S. Ghanekar, appearing for the applicant submitted that, the officer, who investigated offence under the Immoral Traffic (Prevention) Act, was not competent to investigate the offence. There was no evidence to convict the applicant for offence under sections 376 read with section 120-B. The prosecutrix's sole testimony cannot be relied upon in absence of corroboration. Identification parade was not held. The applicant was on bail throughout trial. His conduct is unblameworthy. Criminal Application No.4170 and 4171 of 2010 by original accused No.13 – Chetan Bhalgat and A-20 – Vilas Balasaheb Karale. 21 Cri.Application No.3934 of 2010 21) The learned counsel Shri. V.N. Damle appearing for the applicants submitted that, the age of the prosecutrix was wrongly determined by the Court. The prosecutrix was not a minor. She had good understanding about life and people around her. Report of ossification test was not placed on record nor any doctor was examined. Medical evidence was not inspiring confidence in respect of age of the prosecutrix. Dr. Bhavar was not examined, according to the counsel. There was no tooth examination of the prosecutrix. No injury on the private part noted by the medical officers. The prosecutrix did not name the accused in Court in her testimony. 22) The learned Special Public Prosecutor Shri. Vijay Savant appearing for the State submitted that, out of 38 witnesses examined by the State, 10 witnesses were declared hostile. The prosecutrix, victim of the case, was 14 years and 8 months old when she lodged the complaint. Under the provisions of the Indian Penal Code the prosecutrix was 'minor' and for the purposes of the Immoral Traffic (Prevention) Act she was a 'child'. The learned Special Public Prosecutor submitted that, the prosecutrix’s Examination-in-chief was conducted within 22 Cri.Application No.3934 of 2010 one and half day whereas, the cross-examination by the accused was continued for about five months. It was submitted that, none of the accused challenged the birth date of the prosecutrix which was 28th May 1991, except original accused No.22 - Vasant Pawara, applicant in Criminal Application No.4015 of 2010 client of Mr. Raghuwanshi). 23) In support of the prosecution case that the victim was minor, reliance was placed on the evidence of Anil PW 1, PW 28 Dr. Sushama, Head Mistress, PW 27 - Dr. Narsing, Registrar of Birth and Death, PW 30 Gangadhar, PW 15 - Balkrishna, Head Master of school. Exhibit 485, birth certificate of Municipal Corporation was placed on record. Exhibit 486 is an extract of birth and death entry No.3280. Exhibit 487, birth slip of Balasaheb Deshpande Hospital was relied upon. The prosecution has relied on the evidence or PW 29 - Dr. Pokharna and Dr. PW 31 - Dr. Swapnali Kale. Opinion on X-ray plates are also relied on. Exhibit 514 is certificate of Dr. Pokharna. Exhibits 515 and 516 are X-ray plates. The learned counsel submitted that, there is clinching and convincing evidence on record to show that the prosecutrix was minor and was below 15 years of age at the time of 23 Cri.Application No.3934 of 2010 commissioner of offence. The learned counsel submitted that, the prosecution did not hold identification parade as the accused were known to the prosecutrix. It is submitted that, at the house of Shila Bargal accused Nos. 5,12,6,13 raped the prosecutrix and accused Nos.1,7,20 and absconding accused Ram guarded the house while the ghastly act was committed by these accused inside the house. At Hotel Sai Balaji the accused 18,2,4 and 19 committed rape on the prosecutrix. It is submitted that Hotel Tarang is situated at Sangamner. Accused No.11 was owner while accused Nos.16 and 17 were managers of the said hotel. All these accused and accused Nos. 15,14,21 and 10 committed rape on the prosecutrix. It is further submitted that, at Hotel Raj Palace Shahada accused No.9 owner and accused No.8 raped the prosecutrix at the house of Sabhapati accused No.22 raped her. The learned counsel submitted that most of the accused were identified by the prosecutrix and in few of the cases though the prosecutrix identified the accused she was not remembering their names which does no falsify the identification of the accused in Court by the prosecutrix. The learned Special Public Prosecutor submitted that, present case could be termed as a “sex 24 Cri.Application No.3934 of 2010 scam” and is a shocking incident wherein two school going girls were firstly lured and thereafter black mailed and forced to surrender to lust and desire of the accused, who were residing at different places. The counsel submitted that, during process the prosecutrix was put under lot of pressure, she was tried to be kidnapped but with great difficulty the police machinery could provide required support to the prosecutrix. The counsel submitted that, the evidence of PW 23 - Sanjay Thanekar, who is an Advocate, is crucial for the case. The accused were identified in Court except accused No.3 and the prosecutrix did not remember his name. 24) The learned Special Public Prosecutor submitted that, the evidence of the prosecutrix independently is reliable and trustworthy. Even without any corroboration conviction awarded against the accused is sustainable. But the prosecution has led evidence to corroborate the evidence of the prosecutrix which is as follows : (a) The evidence of PW 1 Anil Gawade (Exhibit 275) and PW