( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 65 OF 2008 WITH CRIMINAL APPEAL NO. 110 OF 2008 WITH CRIMINAL APPEAL NO. 117 OF 2008 * * * * * CRIMINAL APPEAL NO. 65 OF 2008 Shaikh Kaisar @ Gotya s/o. Sk. Mahemood .. Appellant Age. 20 years, Occ. Cleaner, R/o. Near Mastan Hall, Rashidpura, Aurangabad. Versus The State of Maharashtra .. Respondent Shri Mohsin Khan h/f. Shri T.W. Pathan, Advocate for the appellant. Shri K.M. Suryawanshi, A.P.P. for respondent/State. WITH CRIMINAL APPEAL NO. 110 OF 2008 Akhil Ahmed s/o. Gulam Yajdani .. Appellant Age. 21 years, Occ. Nil, R/o. Hina Nagar, Near Abu Bakar Masjid, Aurangabad. Versus The State of Maharashtra .. Respondent ( 2 ) Smt. V.S. Ghanekar h/f. Shri N.S. Ghanekar, Advocate for the appellant. Shri K.M. Suryawanshi, A.P.P. for respondent/State. WITH CRIMINAL APPEAL NO. 117 OF 2008 Syed Feroz s/o. Syed Ayyub .. Appellant Age. 20 years, Occ. Nil, R/o. Hina Nagar, Aurangabad. Versus The State of Maharashtra .. Respondent Shri Ashpak Patel h/f. Shri M.A. Madani, Advocate for the appellant. Shri K.M. Suryawanshi, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 16.02.2010 O R A L J U D G M E N T :- 1. These are three appeals filed by original accused No. 1 – Shaikh Kaisar, original accused No. 2 – Akhil Ahmed and accused No. 3 – Syed Feroz, who are convicted by Adhoc Additional Sessions Judge, Aurangabad, in Sessions Case No. 118 of 2006, decided on 04.02.2008, whereby these three accused are convicted of offence punishable under section 376 ( 3 ) (2) (g) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 7000/- each. Original Accused No. 3 – Syed Feroz is also sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 3000/-, for offence punishable under Section 354 of the Indian Penal Code. 2. Brief facts giving rise to these appeals may be stated as below :- . P.W.1 is the prosecutrix victim aged about 13 years, who lodged complaint on 25.03.2006 stating that on earlier day, along with her friend P.W.2-Ubed Chaus, aged about 17 years, she had gone for walk to Salim Ali Sarovar garden, which is also known as Surai Garden. They chitchatted up to 7.30 p.m. Then P.W.2-Ubed Chaus went to bring ice-cream for both. At that time seven boys came near the prosecutrix. Three of them lifted her and took her to the umbrella erected in the garden. There they removed clothes of the prosecutrix and one of them pressed her breasts. Second forcibly performed sexual intercourse with her. Thereafter, third boy also raped her. At that time ( 4 ) when P.W.2-Ubed Chaus was returning with ice-cream, remaining four boys stopped him, beat him and took Rs. 90/- from him. At that time police in plain clothes came and caught two of the boys. Other boys ran away. In the meantime prosecutrix put on her clothes. The police in plain clothes took P.W.2- Ubed Chaus, the prosecutrix and the two arrested culprits to their office. Out of those two culprits one who had committed rape was identified as accused No. 2 – Akhil Ahmed, the culprit who outraged her modesty by pressing her breasts was identified as accused No. 3 – Syed Feroz. Those two accused persons gave names of other culprits as Javed, Umed, Feroz, Johar and Imran, all resident of Hina Nagar, Aurangabad. Plain clothes Policemen took both accused, prosecutrix and P.W.2-Ubed Chaus to the City Chowk Police Station, where complaint of the prosecutrix was recorded by City Chowk police. The complaint was registered at about 1.50 mid-night. 3. Subsequently, accused Nos. 4 & 5 and other two juvenile offenders were arrested. Accused No.1 was arrested on 05.06.2006 i.e. about 2 ½ months after the incident. After recording complaint, the police attached clothes on the ( 5 ) person of the prosecutrix and accused Nos. 2 & 3 who were arrested. They were also sent for medical examination. After accused No.1 was arrested, he was also sent for medical examination. It is stated that he discovered his clothes from his house, which were attached under panchanama and sent to Chemical Analyser. In this case all panch witnesses have turned hostile. 4. The main evidence against the appellants is of the prosecutrix, who is examined at Exh.31 and who proved complaint (Exh.32). P.W.2-Ubed Chaus is examined at Exh.33 and P.W.10 P.S.I. Ubale, who had caught accused Nos. 2 and 3 on the spot and produced them with report Exh.67 before the City Police Station. Evidence of P.W.3-Dr. Tambe is also relevant for our consideration. P.W.1 – prosecutrix and P.W. 2-Ubed Chaus mainly deposed as per the complaint Exh. 32 which is reproduced above in para 2. 5. Before we go to other evidence, we may consider evidence regarding age of the prosecutrix. The prosecutrix in her statement on oath at Exh.31 stated that date of her birth is 12.06.1992. P.W.6 – Mirza Shahina examined at Exh. ( 6 ) 59 is Head Mistress in Khair-ul-Mominin Urdu High School. She had brought original T.C. Register. She stated that birth date of the prosecutrix as per record is 12.06.1992. She was admitted in 8th standard on 25.06.2005. She proved the School Leaving Certificate at Exh.60. Original School Leaving Certificate of Corporation School is at Exh.61. There is also Admission Form filed by mother of prosecutrix proved at Exh.62. Thus, it is proved that birth date of the prosecutrix was 12.06.1992. The incident had taken place on 25.03.2006. So, the prosecutrix had not even completed 14 years of age and to that extent absolutely there is no reason to differ from the findings of the Trial Court. 6. The prosecutrix at Exh.31 has stated that on the day of incident she along with her friend P.W.2-Ubed Chaus had gone to Surai Garden. They chitchatted up to 7.30 p.m. Then P.W.2-Ubed Chaus went away for bringing ice-cream. The prosecutrix was sitting under a tree. At that time seven boys came near her. Three boys lifted her forcibly and took her near the umbrella which was erected in the garden. She was raped by two boys and her modesty was outraged by third one by pressing her breasts. She stated that she was wearing ( 7 ) yellow coloured shirt and yellow coloured Salwar. She tried to raise hue and cry, but her mouth was pressed. Thereafter, she came down from the hilly portion, where she was raped. The three boys followed her. At that time she saw other four boys were beating P.W.2-Ubed Chaus. The prosecutrix was frightened and asked P.W.2-Ubed Chaus to leave the spot. When they came outside the garden, she was weeping. Some persons in civil dress came near her. They were 2-3 policemen. They asked why she was weeping. So, the prosecutrix narrated the incident. At that time those seven boys were about to leave the garden. The prosecutrix showed those boys to the police. Police caught hold of two boys, who were accused No.2 – Akhil and accused No. 3 – Feroz. Other boys succeeded in running away. The prosecutrix identified accused No.2 – Akhil as one of the two culprits who raped her and accused No. 3 – Feroz as one who pressed her breasts. Thereafter, police took them to their office and made enquiries. Thereafter, they were taken to City Chowk Police Station, where her complaint was recorded. The witness also stated that her nicker was removed by the culprits. On next day, when she pointed out the spot to Police, her nicker was found lying near the umbrella and it ( 8 ) was attached. It was identified by the witness as her clothe. She also identified accused No.1 Kaiser, when she was shown to her by police. She categorically stated that no test identification parade was held. 7. The evidence of prosecutrix is substantially supported by P.W.2-Ubed Chaus. P.W.2-Ubed Chaus stated almost same things. 8. P.W.10-P.S.I. Ubale of Crime Branch is an independent witness. He stated that on 24.05.2006 he was in the office. Police Inspector - Karande of Crime Branch was also present. P.I. Karande called him and told that he received information that some persons were committing rape on a woman and beating her companion in Surai Garden near Salim Ali Sarovar. P.I. Karande asked P.S.I. Ubale to proceed to the spot. This was about 8.05 p.m. Accordingly, P.S.I. Ubale along with some constables including lady constable Anita Shinde went to Salim Ali Sarovar garden. They reached at about 8.15 p.m. They stopped the vehicle outside the garden and started going into the garden. They saw one person was being beaten up by 4-5 persons and two ( 9 ) persons were standing by the side of a woman. On seeing that police had come, those persons started running away. The lady was crying. When asked what had happened, the prosecutrix said that the persons running away had rapped her. So, those persons were chased. Out of them accused Nos. 2 and 3 were arrested. Other boys succeeded in running away. Accused No. 2 – Akhil was identified by the prosecutrix as one who had raped the prosecutrix and accused No. 3 – Syed Feroz was identified as one who had pressed her breasts. Thereafter, they were taken to office and then to City Chowk Police Station. P.S.I. Ubale proved his report Exh.67 lodged at City Chowk Police Station, which is consistent with his deposition. He stated in his cross- examination that Salim Ali Sarovar is 1 ½ to 2 kms. away from the office. He could not tell name of the informant, as P.I. Karande had received the information. There was no lighting arrangement at umbrella itself. The witness stated that from the main gate the umbrella might be about 2500 to 3000 ft. and the umbrella might be at distance about 8000 to 9000 ft. He also said that there was no complete darkness. Two persons who were caught, disclosed their names, so also names of other boys. The prosecutrix did not disclose names of the ( 10 ) accused persons caught. 9. One thing is very clear from the evidence of the prosecutrix, the complaint, deposition of P.W.2-Ubed Chaus and also evidence of P.S.I. Ubale that accused persons were not known to the prosecutrix or P.W.2-Ubed Chaus prior to the incident, otherwise they would have named atleast some of them in the complaint. Names of the accused Nos. 2 and 3 and other became were known to the prosecutrix when the accused disclosed the names to police. 10. The learned Adv. Shri Mohsin Khan h/f. Adv. Shri T.W. Pathan for accused No.1 argued that accused No.1’s name was not appearing in the complaint. In the complaint, names of two persons who were caught and arrested by the police are given. It is also mentioned that accused Nos. 2 and 3 had given names of remaining accused persons as Javed, Umed, Feroz, Johar and Imran. They did not disclose name of Shaikh Kaisar @ Gotya. In the circumstances, it was necessary for the police to hold test identification parade particularly when accused No.1 was arrested after gap of 2 – 2 ½ months. This was more so when it was not the case of the prosecutrix ( 11 ) or P.W.2-Ubed Chaus that atleast they had face acquaintance with accused No.1. But, the Trial Court has mainly held accused No.1 – Kaiser as responsible because of C.A. Report. In para 20 of the Trial Court’s judgment it is stated that the blood group of the prosecutrix was of “O” and bloodstains of “A” group were found on the ‘Kurta’ of the prosecutrix. It is true that blood group of accused No.1 is “A” as per report Exh.85. So, blood mixed with semen stains were found on the ‘Kurta’ of the prosecutrix was of “A” group may be a corroborating circumstance. But “A” blood group is a normal group and therefore mere finding of blood semen stain of “A” group is not enough. There should have been test identification parade. The identification of accused No.1 by the prosecutrix before police after 2 ½ months cannot be believed when in the F.I.R. names of all seven culprits were disclosed, but said names did not include name of accused No. 1 – Kaisar. So, I am inclined to give benefit of doubt to accused No.1 – Shaikh Kaisar and accordingly, Criminal Appeal No. 65 of 2008 deserves to be allowed. 11. So far as other two appellants i.e. accused Nos. 2 and 3 are concerned, several circumstances are argued before ( 12 ) this Court by the learned advocate Smt. Ghanekar for accused No.2 and learned advocate Shri Ashpak Patel for accused No.3. It is argued before this Court that the prosecutrix did not attempt to shout. It is admitted that they were some persons moving in the garden. It is argued that if really such incident had occurred, at least when the prosecutrix was lifted and taken to umbrella, which appears to be secluded place, she would have shouted. However, the learned A.P.P. pointed out that the prosecutrix has stated in answer to a question put to her that she could not raise shouts as her mouth was pressed. Moreover, how a minor girl will react in such ghastly incident depends on several factors and nature of such lady. As has been observed by the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai V/s. State of Gujarat, AIR 1983 S.C. 753, different persons react differently under such circumstances and there cannot be common rule. In that case the Court also laid down that evidence of prosecutrix is to be considered as evidence of victim of any other physical violence. 12. In para 11 of the cross-examination of the prosecutrix, it is brought on record that there are certain ( 13 ) omissions. Thus, she did not state in her statement before police that the accused had pressed her mouth, but that answer was brought in the cross-examination. Similarly, it is not stated that the prosecutrix told P.W.2-Ubed Chaus that they should run away from the spot or that she was weeping when they came outside the garden and police saw her weeping. If the incident had taken place, weeping or crying is natural. The omissions brought in para 11 cannot be said to be material omissions which are sufficient to discard the evidence of the prosecutrix. It is also argued before this Court that it is admitted by prosecutrix that it was second day of menstruation period and under the circumstances her nicker was attached on the next day from the spot, but there is nothing to show that her napkins were there. No such question was put to the prosecutrix and this Court in appeal cannot consider such arguments. It is also argued that absolutely there was no injury on the person of the prosecutrix. Dr. Tambe examined prosecutrix and he did not find any external injuries. P.W.3-Dr. Tambe found that there was ruptured hymen and tears were fresh. He gave medical certificate at Exh.45. The C.A. Report has shown that on the ‘Kurta” of the prosecutrix, there were stains of ( 14 ) semen mixed with blood. So, that circumstance clearly supports the case of rape on the prosecutrix. At the most from absence of other external injuries we can say that the prosecutrix might not have offered resistance, though she might have said so in the deposition. However, merely because she did not offer resistance, it would not be sufficient to conclude that there was consent. Moreover, this is a case of 14 years minor girl. So, her consent is not consent in the eye of law. It is also argued that P.W.2- Ubed Chaus had no injuries on his person. However, in the evidence of P.W.2-Ubed Chaus it is brought on record that he had sustained bleeding injury on his pinna. He was examined by the doctor, however, said medical certificate is not brought on record and proved by the prosecution. It is also argued relying on one sentence in the complaint that the prosecutrix must have worn her clothes after police had come. But that is not so. If, we carefully consider the complaint the words are “in the meantime I wore my clothes”. 13. It is true that P.W.1 has stated that it was first time she visited the garden with P.W.2-Ubed Chaus; whereas P.W.2-Ubed Chaus said that it was their second visit. It may ( 15 ) be noted that when the prosecutrix was examined in the Court, by that time she was married and such deviation can be understood from a woman who is subsequently married. It is also argued that no ice-cream cones were found on the spot. If the incident had taken place atleast there would have been external injuries on the back of the prosecutrix, but there were no such injuries. There was no tearing of the clothes. 14. The basic question arises why the prosecutrix should depose falsely. In this case there are several circumstances which prove truth of main story of gang rape, such as, immediate conduct seen by P.S.I. Ubale of the prosecutrix weeping, her immediate disclosure and pointing out to culprits and action of police in catching two on the spot, the information got by P.I. Karande as told by P.S.I. Ubale, and stains on ‘Kurta’ of the prosecutrix. All these only show that there must be truth, so far as main incident is concerned. 15. After having given careful consideration to all arguments advanced on behalf of accused Nos. 2 and 3, in my opinion, this is not case where any reasonable doubt is ( 16 ) raised, so far as identification of accused Nos. 2 and 3 is concerned. It is a case of gang rape and outraging of modesty. The offences are duly proved. The evidence is sufficient so far as accused Nos. 2 and 3 are concerned. In the circumstances the following order is passed :- (i) Criminal Appeal No. 65 of 2008 filed by Shaikh Kaisar @ Gotya s/o. Sk. Mahemood (original accused No.1), is allowed. He is given benefit of doubt and acquitted of offence punishable under section 376 (2) (g) of the Indian Penal Code. The order of conviction and sentence passed against him is set aside. He be set at liberty forthwith, if not required in any other crime. (ii) Criminal Appeal No. 110 of 2008 and Criminal Appeal No. 117 of 2008 are hereby dismissed. The order of conviction and sentence awarded to Akhil Ahmed (original accused No.2) and Syed Firoz (original accused No.3) is hereby confirmed. [P.R. BORKAR, J.] snk/2010/FEB10/crap65.08