1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.796 OF 2004 Mustafa Ismail Shaikh } Age  24 years, } Residing at Barekar Nagar, }.. Appellants Janaseva Mitra Mandal, } (Original Ganesh Nagar, Charkopl, } Accused No.2) Kandivali(West), Mumbai-67. } V/s. The State of Maharashtra } .. Respondents ALONGWITH CRIMINAL APPEAL NO.588 OF 2004 IN SESSIONS CASE NO.483 OF 1998 Afsar Hussain Shaikh } Age  22 years, } Residing at Santosh Nagar, }.. Appellant Hussain Compund, 20 Padpatti, } (Original Gen.A.K.V.Marg, Goregaon (E), } Accused No.4) Mumbai 400 065. } V/s. The State of Maharashtra } Dindoshi Poice Station. }.. Respondents 2 Mr.Shekhar Ingawale for the Appellant in Appeal No. 796 of 2004. Mrs.Malika Ingale for the Appellant in Appeal NO.588 of 2004. Mr.A.S.Shitole, A.P.P. For the State in both the matters. CORAM : A.R.JOSHI, J. DATED : JUNE 18TH,2009. ORAL JUDGMENT :- By the present Judgment both the criminal appeals respectively preferred by accused Nos. 2 and 4 are being disposed of as in both the appeals same Judgment of conviction dated 11th March, 2004 passed by the Additional Sessions Judge, Greater Bombay, is challenged. 2. Heard rival submissions for some time. 3. It is to be mentioned that so far as the criminal Appeal No.588 of 2004 is concerned, the learned Advocate Smt.Ingle for accused No.4 submitted that recently she has no instructions from her client. However, this Court has gone through the entire evidence and reasoning given in the impugned Judgment and decided to dealt with both the appeals as the arguments on behalf of accused No.2 3 were adduced at length and heard touching the aspects so far as involvement of accused No.4 is concerned, apart from the involvement of other co- accused. Again at this juncture it must be mentioned that total six accused were tried in the matter of offence of gang rape punishable under section 376 (2)(g) of Indian Penal code. They were also charged for the alleged offence punishable under section 366, 506 II and 323 of Indian Penal Code. However, for the offence punishable under section 323 read with section 34 of Indian Penal Code, there is no conviction against the accused and they were convicted only for the offences punishable under section 366 read with section 34, for the offence under section 376 (2)(g) of I.P.C. and for the offence under section 506 II read with section 34 of I.P.C. It appears that so far as other convicted accused Nos.1,3,5 and 6 are concerned they have not preferred any appeal. It is also to be mentioned that though, during the trial in the Sessions case, appellant accused were on bail after their initial custody after their arrest, on their conviction they were taken in custody on 11th March, 2004 and since then they are in jail. 4. Certain factual position as to the case of the prosecution can be narrated as under : 4 Incident of gang rape on the prosecutrix P.W.1 took place on the night between 25/26th January, 1998 at early hours at Santosh Nagar Bus stop. At the relevant time prosecutrix alongwith her two other female relatives and two male relative was standing at the bus stop for leaving the male relatives to their respective residences. That time all the said persons noticed the presence of accused Nos. 1,5 and 6 near the bus stop. Said accused Nos. 1,5 and 6 were watching the movements of the prosecutrix and her relatives. Knowing that said accused persons were of gunda character and reside in the same locality as that of the prosecutrix, she became scarred and expressed so to her relatives. On this, it was decided by the male relatives to leave the prosecutrix and her two female relatives back to their homes and then to proceed further for their residence. While on the way back said persons were intercepted and accosted by accused Nos. 1,5 and 6 and threats were given to the relatives and prosecutrix was caught hold by them and taken by them to nearby isolated place. When the relatives tried to intervene, they were given threats of dire consequence and were asked to go away. Consequently, except P.W.No.1 prosecutrix other persons went away. Prosecutrix was taken in the 5 nearby area and there was forcible sexual intercourse on her, against her will by accused Nos. 1,5 and 6. In the meantime, other accused Nos.2,3 and 4 also arrived. They were the associates of accused Nos.1,5 and 6 and after the forcible sexual intercourse of accused Nos.1,5 and 6, those another accused Nos.2,3 and 4 also had forcibly intercourse with P.W.No.1. Such incident happened till about 2.00 a.m. of 26th January, 1998. After the accused persons fled away from the spot, P.W.1 prosecutrix came home and narrated the things to her relatives and also P.W.No.2 her brother Mahadev. Then, it was decided to lodge a complaint with Dindoshi police station. F.I.R.was registered at Exh.16 as complaint of P.W.1 prosecutrix. Significantly, names of all the accused appeared in the said F.I.R. Prosecutrix was sent for medical examination and medical certificate Exh.37 was obtained. During the investigation accused No.3 was arrested and his cloths were taken charge of under the panchanama on 28th January, 1998 vide Exh.26. On 29th January, 1998 cloths of accused Nos.1 and 4 were taken charged of under the respective panchanamas. Panch P.W.No.7 took part in the panchanama regarding seizure of cloths of accused Nos.2,3 and 4, whereas panch P.W.No.6 took part in the panchanama for seizure of cloths of accused No.1. 6 5. It is also the case of prosecution that on 12th February, 1998 accused Nos.1 to 4 then arrested were put to test identification parade and were identified by the prosecution witnesses. P.W.No.8 Special Executive Officer conducted the parade it is at Exh.30. Initially on completion of investigation against accused Nos.1 to 4 charge-sheet was filed against them on 20th April, 1998 and case was committed to the Court of Sessions on 30th April, 1998, 6. It is significant to note that subsequently the whereabouts of accused Nos.5 and 6 known and they were put under arrest on 5th June, 2000 and immediately on next day they were sent for medical examination to Nagpada Police hospital. Earlier accused Nos.1 to 4 were also sent for medical examination and medical reports were obtained, they are collectively exhibited. However, it must be said that the medical examination of prosecutrix and also of all the accused is not incrementing so far as connecting the accused with offence of gang rape, however what was weighed with the trial Court was the substantive evidence of main prosecution witnesses i.e. P.W.1 the prosecutrix and her brother P.W.No.2. 7 7. Supplementary charge sheet was filed against accused Nos.5 and 6 on 11th July, 2000 and they were committed to the Court of Sessions on 10th July, 2000. In all 11 prosecution witnesses were examined and finding the substantive evidence of prosecutrix and her brother and rejecting the defence of total denial and false implication even on preponderance of probability, the order of conviction came to be passed. 8. During the arguments, it is tried to argue on behalf of the appellant accused that they were falsely implicated in the matter and that they had nothing to do with the alleged rape much less a gang rape on the prosecutrix. It is tried to argue that there is a inordinate delay in filing the F.I.R., which came to be filed on 9.30 p.m. on 26th January, 1998 and in fact the medical examination of the prosecutrix was conducted in the afternoon of 27th January, 1998. It is also submitted that the test identification parade cannot be accepted for the reasons that all the four accused were put in one test identification parade and which is against the guidelines given by the High Court. Also defence appears to have been scrutinized and dealt with by the trial Court and a reasoning is given to 8 ascertain the guilt of the accused mainly believing the substantive evidence of the prosecutrix on the premise that there is nothing brought on record as to why the prosecutrix should falsely implicate these accused persons alleging the offence of gang rape. It must be mentioned that the substantive evidence of P.W.No.1 corroborated by her brother P.W.No.2 was much weighted with the trial court and in the opinion of this Court, it was rightly so. 9. Considering the social strata of the prosecutrix and the area in which she resides and admittedly knowing the accused persons as anti social elements of the said locality, apparent delay in filing the F.I.R. cannot be taken an detrimental to the prosecution. In the result, considering the total effect of substantive evidence of the prosecution witnesses and mainly that of the prosecutrix, coupled with that of her relative P.W. 2, it must be said that there is nothing to view the matter differently then that apprised by the trial Court. In other words, it must be said that there is nothing to interfere with the impugned Judgment and order and as such both the appeals must fail. Hence, order : 9 :: O R D E R :: Criminal Appeal No.796 filed by Appellant original accused No.2 Mustafa Ismail Shaikh and Criminal Appeal No.588 of 2004 filed by Appellant original accused No.4 Afsar Hussain Shaikh, stand dismissed. (A.R. JOSHI, J.)