1 APEAL-OJ-19.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.19 OF 1995 1. Ashok Ramchandra Mohite, aged 20 years, 2. Jawahar Kantilal Waghmare, aged 21 years, Both Indian Inhabitants, residing at Village Sangola, Taluka Sangola, District Solapur. .... Appellants - Versus - State of Maharashtra .... Respondent S/Shri Amogh Karandikar i/b A.S. Khandeparkar for the Appellants. Ms Alpa T. Javeri, Addl. Public Prosecutor, for the State. CORAM: R.C. CHAVAN, J. DATED: MAY 05, 2011 P.C: 1. This appeal is directed against the conviction of the appellants by the learned Addl. Sessions Judge, Pandharpur for the offences punishable under Sections 341, 363 and 376 of the Indian Penal Code (for short, IPC ) 2 APEAL-OJ-19.95 and sentences of RI for one month, three years with fine of Rs.500/- and seven years with fine of Rs.500/- imposed on each of them on the three counts. 2. Facts which are material for deciding this appeal are as under: The prosecutrix used to reside with her mother. Her mother ran a tea stall at Sangola. On the night of 4-2-1993, the prosecutrix had gone to school to watch a drams being enacted at a cultural programme. She claims to have returned from the programme half-way because her neighbours also returned. When she was proceeding towards her house, the appellants are alleged to have told her that her mother had gone to police station. Therefore, the prosecutrix also started towards the police station. The appellants gagged her when she was on her way to the police station, lifted her, took her towards a stream near the land of one Ghongade and committed rape upon her, one after the other. The victim bled from her private parts and after meeting her mother went to the police station and narrated the incident to the police on the same night. Her report was taken and an offence was registered. 3 APEAL-OJ-19.95 Since a lady Medical Officer was not available at the local hospital, the victim was sent to Civil Hospital at Solapur on the next morning. Before that, the appellants had also been arrested and had been sent for medical examination. In the course of the investigation, the I.O. seized the clothes of the victim as well as the appellants. The Medical Officers who examined the victim and the appellants had drawn necessary samples of body fluids. The property seized was sent to Forensic Science Laboratory which reported that there were stains of semen of blood groups A & B, which were the blood groups of the two appellants on the victim s under-garments. The underwears of the two appellants also had stains of blood. On completion of the investigation, charge-sheet was sent to the Court of the learned Judicial Magistrate First Class, Sangola, who committed the case to the Court of Sessions at Pandharpur. 3. The learned Addl. Sessions Judge charged the appellants of the offences punishable under Sections 341, 363 and 376 of the IPC. Since, the appellants pleaded not guilty, they were put on trial at which the prosecution examined in all ten witnesses in 4 APEAL-OJ-19.95 its attempt to bring home the guilt of the appellants. After considering the prosecution evidence in the light of defence of false implication, the learned trial Judge held the appellants guilty and convicted and sentenced them, as indicated above. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned APP for the State. With the help of both the learned counsel I have gone through the entire evidence on record. PW-1 Nanasaheb is a panch in whose presence the victim s clothes were seized vide the panchnama at Exhibit-12. Panchnama of the spot was performed in the presence of PW-2 Rafik vide Exhibit-14. Clothes of the appellants were seized vide Exhibit-16 in the presence of PW-3 Mohan. The victim herself was examined as PW-4 and her mother Sushilabai was examined as PW-5. Dr. Vayadande, who examined the appellants, was examined as PW-6. PW-7 Head Constable Usmanpasha received the report and registered the offence, PW-8 Head Constable Shivaji carried the samples to the Forensic Science Laboratory. PW-9 API Anis Ahmed carried out the investigation and PW-10 Dr. Neeta Kulkarni examined the prosecutrix. 5 APEAL-OJ-19.95 5. The learned counsel for the appellants submitted that according to the prosecutrix- PW-4, she did not know the appellants by name. The learned counsel, therefore, wondered as to how the FIR could contain the names of the appellants and how the appellants were promptly picked up by the police before the night was over. He submitted that it was the victim s mother PW-5 Sushilabai who provided the names of the appellants. He submitted that Sushilabai had admitted in her cross-examination that she had filed a report about outraging her modesty against a constable. The prosecutrix had stated in her evidence that the case was decided in favour of the mother of the prosecutrix before the trial Court but could not say if the constable was ultimately acquitted by the Court of the Sessions or not. The learned counsel for the appellants submitted that the appellants had been picked up by leveling such allegations only to extort money in collusion with the police. As rightly pointed out by the learned APP, there is absolutely no reason why the victim should have picked up the two appellants out of all inmates of Sangola town for leveling allegations of such a serious nature. Therefore, merely because the prosecutrix 6 APEAL-OJ-19.95 admitted that she did not know the accused persons by their full names, it does not follow that the appellants were wrongly picked up in place of some other miscreants who might have committed the offence. 6. In the course of cross-examination of the victim as well as PW-10 Dr. Neeta Kulkarni it was suggested that the victim could have suffered injuries on her private parts because of fall. Thus, the appellants must be taken to have admitted, or at least not disputed, the fact that the prosecutrix did have a bleeding injury on her private parts at the relevant time. The evidence of PW-10 Dr. Neeta Kulkarni would show that the victim had a scratch mark on the perineum, the vestibule was torn, hymen was torn at 6 O Clock possession and there was bleeding through the canal. She had also observed that there were scratch marks over the back of the victim, which is consistent with the fact that the victim was subjected to rape in a stream. The medical certificate at Exhibit-37 also shows that the Medical Officer had concluded that there was evidence of recent sexual intercourse. She had taken the necessary samples, including vaginal swabs. 7 APEAL-OJ-19.95 7. The victim herself stated as to how the two appellants perpetrated rape upon her. She had gone to the police station promptly and reported the matter to the police. PW-9 API Anis Ahmed, the I.O., stated that the accused persons were called from the village between 4-5 a.m.. They were examined by PW-6 Dr. Vayadande who did not notice any mark of injury on the private parts of the appellants. However, this cannot be said to be inconsistent to the story of rape since it is not always that a male organ would suffer an injury in the course of forcible sexual intercourse with a virgin, as has been rightly observed by the learned trial Judge. 8. PW-9 API Anis Ahmed stated that he sent the articles seized, including the medical exhibits, to the Forensic Science Laboratory on 17-2-1993. The reports from the Laboratory at Exhibits-38, 39 and 40 show that the blood groups of the appellants are A and B . The victim s petticoat had stains of semen of blood groups A and B both. Article No.3, a shirt, was also having some stains of blood groups A and B . But what nails the appellants is the fact that the under-garments of the appellants, which are articles 4 and 7 in Exhibit-38, had 8 APEAL-OJ-19.95 stains of human blood. Now, ordinarily if the appellants had no injury to their private parts, there would be no occasion for having stains of blood on their underwears unless it was the blood of the victim. Therefore, the evidence of the prosecutrix about the involvement of the two appellants in perpetration of rape upon her is corroborated by this scientific evidence and therefore was rightly relied upon by the learned trial Judge. 9. The learned counsel for the appellants submitted that there is a discrepancy about the manner in which the report was given to the police by the victim which, according to him, is glaring and should result in discarding the evidence of the prosecutrix. He submitted that while the prosecutrix and her mother had stated that they had gone together to the police station, PW-7 Head Constable Usmanpasha states in his cross-examination that on the relevant night PW-5 Sushilabai had not come to the police station to lodge the FIR. The victim had alone come and then she had brought her mother. As rightly submitted by the learned APP, this is not of much consequence since it may be a matter of how the Head Constable on duty in the dead of night noticed arrival of persons in the 9 APEAL-OJ-19.95 police station. Therefore, it cannot be said that the learned trial Judge erred in accepting the prosecution story or convicting the appellants. 10. The learned counsel for the appellants next submitted that the appellants were 21 years of age when they were put on trial and therefore the punishment of RI for seven years was very hash. He submitted that the learned Judge should have considered the young age of the appellants and the absence of previous criminal history and shown leniency. He also submitted that since the appellants have been convicted about sixteen years ago for the offences which took place about eighteen years ago and having lived under the shadow of conviction for all these years, some reduction of sentence may be called for at this stage. Ordinarily, this plea could have been considered but for the fact that the appellants committed an offence of gang rape and therefore would have been liable for higher sentence but for the fact that they have not been charged by the learned Judge for the offence punishable under Section 376(2)(g) of the IPC. The learned Judge has himself observed that a very harsh view of the matter was not required and had 10 APEAL-OJ-19.95 attempted to have golden mean in the matter of sentence and had inflicted sentence of RI for seven years for the offence punishable under Section 376 of the IPC. The learned APP submitted that in fact the learned trial Judge should have seen that since more than one person had engaged in committing rape upon the victim, the offence was one of gang rape and therefore the punishment should not have been less than ten years. However, since there is no appeal by the State as regards the punishment, there is no question of enhancing the punishment at this stage, as also, since the learned Judge had not chosen to charge the appellants of the offence punishable under Section 376(2)(g) of the IPC. 11. To sum up, the evidence shows that the appellants had wrongfully restrained the prosecutrix, could be said to have kidnapped a minor by taking her to a different spot than the place where she was proceeding and committed rape upon the victim. Therefore, the conviction of the appellants for the offences punishable under Sections 341, 363 and 376 of the IPC would have to be upheld, as also the sentences which have been imposed by the learned trial Judge upon the appellants. 11 APEAL-OJ-19.95 12. In view of this, the appeal is dismissed. If the appellants do not surrender to their bail within a period of six weeks, the learned trial Judge shall have them arrested and committed to prison to suffer their imprisonment. Sd/- (R.C. CHAVAN, J.)