1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.116 OF 2008 Subhash Bhagwan Kale, Age 24 years, Occu.Nil, R/o Jintur, Taluka Jintur, District Parbhani .. APPELLANT (Original Accused No.1) VERSUS State of Maharashtra .. RESPONDENT Shri S.S.Bora, Advocate holding for Shri S.C.Bora, Advocate for appellant Shri K.S.Patil, Assistant Public Prosecutor for respondent-State - WITH - CRIMINAL APPEAL NO.139 OF 2008 Dipak s/o Subhash Kurhe, Age 24 years, Occu.Nil, R/o Jintoor, Taluka Jintoor, District Jintoor .. APPELLANT (Orig.Accused No.2) VERSUS The State of Maharashtra Through Police Station Officer, Jintoor Police Station, Taluka Jintoor, Dist.Parbhani .. RESPONDENT (Original Complainant) Shri Amit A.Mukhedkar, Advocate for appellant Shri K.S.Patil, Assistant Public Prosecutor for respondent-State 2 - WITH - CRIMINAL APPEAL NO.451 OF 2008 Santosh s/o Gulab Thite, Age 21 years, Occu.Agri., R/o Dhobi Galli, Jintur, District Parbhani .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT Smt.S.S.Jadhav, Advocate for appellant Shri K.S.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 16th February 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellants (original accused Nos.1, 2 and 3) who are convicted for an offence punishable under Sections 376 (2) (g) and 302 read with sec.34 of the Indian Penal Code and are sentenced to imprisonment for life and to each pay fine of Rs. 2,000/- with a default condition of undergoing further rigorous imprisonment for one year in the event of non payment of fine and imprisonment for life and to each pay fine of Rs.5,000/- with a default stipulation of undergoing further rigorous imprisonment for one year in the event of non payment of fine with a direction that both the substantive sentences of imprisonment shall run 3 concurrently, by the Ad-hoc Additional Sessions Judge-1, Parbhani, in Sessions Trial No.67/2007, by these separate appeals question the correctness of their conviction and sentence. Since all the three appeals challenge the same judgment of the trial Court, all these appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus. PW-12 Prabhakar Giri, a Police Inspector attached to Jintur Police Station undertook investigation in respect of Crime No. 102/2006 for offence punishable under Sections 302, 307 read with sec.34 of the Indian Penal Code on the basis of complaint at Exh.23 which was recorded by P.S.I. Punjarwal, submitted by PW-1 Sk. Farooque Sk. Moinuddin on 28.6.2006. On investigation being entrusted to PW-12 P.I. Giri, he rushed to the Rural Hospital at Jintur and noticed injured Lahu who was unconscious. PW-1 Shaikh Farooque accompanied PW-12 P.I. Giri to the scene of the incident which was located in the field of one Shaikh Salim, situated near Jintur city. The complainant Shaikh Farooque pointed out the scene which was in front of the area where the servants employed by the owner were residing and which is referred to by the witnesses as “Akhada”. PW-1 Shaikh Farooque 4 also pointed out the dead body of Shobhabai wife of injured Lahu which was at a distance of about 500 to 600 feet from the “Akhada”. P.W.5 Rajabhau was summoned and other panch witnesses were summoned and accordingly, the inquest panchnama at Exh.29 came to be drawn. The dead body of Shobhabai was referred for post mortem examination to the Rural hospital at Jintur. Scene of the offence panchnama came to be drawn in the presence of P.W.5 Rajabhau and other witnesses at Exh.36. From the scene of the offence, sample of blood mixed mud, ordinary mud and pieces of bangles were seized. The sniffer dogs were summoned and the sniffer dog led the Police party from the scene of the incident upto Jintur-Aurangabad highway. On the same day statements of witnesses came to be recorded and on 29.6.2006 accused No.1 Subhash came to be arrested under arrest panchnama at Exh.62. During custodial interrogation, Subhash expressed his willingness on 30.6.2006 to point out the place where the “Harrow” was hidden. Accordingly, memorandum of Subhash came to be recorded in the presence of panch witnesses at Exh.38. Accused Subhash then led the Police and the panchas to the field of one Digamber Kale and from the brinjal plants produced one harrow which came to be seized at Exh.39. The seizure memo at Exh.39 recites that no blood stains were noticed on the said harrow. The seizure memo also does not state that the said harrow after its seizure was 5 sealed. On the same day accused Deepak came to be arrested under arrest panchnama at Exh.63. During custodial interrogation, accused Deepak had expressed his willingness to point out the place where the clothes of the accused had been burnt. The burnt pieces of the clothes came to be seized vide Exh.40 which are Article No.6. On 5.7.2006 during custodial interrogation, accused Subhash expressed his willingness to point out the place where an iron rod had been hidden. Accordingly, the memorandum at Exh.42 came to be drawn in the presence of P.W.6 Pramod. Accused Subhash then led the Police and the panchas to his house and produced an iron rod which had been kept under the zinc sheets of the house. Accordingly, the said iron rod came to be seized vide seizure memo at Exh.43. The seizure memo at Exh.43 does not state that any blood stains were noticed on the said iron rod/pipe and the seizure memo at Exh.43 also does not state that the said rod after its seizure was sealed. Injured Lahu succumbed to his injuries on 3.7.2006 and accordingly, inquest panchnama came to be drawn and the dead body of deceased Lahu was referred for post mortem examination. With the permission of the Judicial Magistrate, First Class, Jintur an offence punishable under Sections 376 and 201 read with sec.34 of the Indian Penal Code came to be added. Statements of witnesses under Section 164 of the Code of Criminal Procedure came to be recorded and statement of one 6 Gokarnabai Pandurang Dhakne came to be recorded on 7.7.2006. On 10.7.2006 the seized property was forwarded to the Chemical Analyzer along with the sample of pubic hair, semen sample and blood sample of accused Subhash and accused Deepak, vide requisition at Exh.65. Accused Santosh came to be arrested on 14.7.2006 under an arrest panchnama at Exh.66. His blood sample and semen sample were also obtained. Sample of semen and blood of the accused Santosh was obtained under permission of the Judicial Magistrate, First Class, Jintur for forwarding the same to the Chemical Analyzer at Mumbai for D.N.A. testing. The D.N.A. reports are at Exhs.69 and 70. The D.N.A. report states that the semen stains found on the petticoat of deceased Shobhabai matched with the semen of accused Subhash. Further investigation came to be entrusted to P.W.11 P.I. Bamne who filed charge-sheet against the accused. On committal of the case to Court of Sessions, charge vide Exh.8 came to be framed by the trial Court for offence punishable under Section 376 (2) (g) and Section 302 read with sec.34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined twelve witnesses. The defence of the appellants is of denial. The trial Court upon consideration of the evidence of the prosecution convicted and sentenced the appellants as afore stated. Hence these appeals. 7 3. In order to effectively deal with the submissions advanced before us by Shri Bora, Shri Mukhedkar and Smt.S.S.Jadhav, learned Counsel for the appellants and the learned Assistant Public Prosecutor for State, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution unfolds its case through the evidence of P.W.1 Shaikh Farooque. P.W.1 Shaikh Farooque states that the owner of the land Syed Salim is the husband of his sister. He states that as Syed Salim was employed as a Head Master and therefore he was looking after his land. One Lahu and Devidas had been employed as servants in the field of Syed Salim. Lahu and his wife with their son were residing in the field in one room while Devidas and his mother were residing in the field in another room. He states that on 28.6.2006 at about 7.00 to 7.30 a.m. he had visited the field of Syed Salim and had gone to the “Akhada” where the two servants were residing. On going to the room of Lahu, he noticed Lahu lying unconscious with injuries. Devidas was not available in the field as he had already left the previous evening for attending the Bazar at Jintur. One Babarao, a servant employed by the adjacent owner was called who took Lahu in a bullock-cart to the Rural Hospital at Jintur. He enquired from the mother of Devidas as to where Shobha wife of Lahu was and mother of Devidas informed him that Shobha was lying at a distance of about one furlong in 8 the field of Syed Salim. He immediately rushed to the spot and noticed wife of Lahu Shobha lying nude with her son near her who was crying. P.W.1 Shaikh Farooque then states as to what mother of Devidas had told him but since mother of Devidas had not been examined, whatever mother of Devidas had narrated to P.W.1 Shaikh Farooque would be inadmissible in evidence as hearsay. We, therefore, do not advert to that part of the evidence. He states that thereafter he had lodged his complaint at Exh.23. Though this witness had been cross-examined, looking to the nature of the evidence of this witness, nothing of importance has been elicited in his cross-examination. 4. The prosecution then relies upon the testimony of P.W.2 Balu and P.W.3 Munja in respect of the extra-judicial confession of accused Deepak. P.W.2 Balu states that he knows accused 1 to 3 because the accused reside in a lane adjacent to the lane where he resides at Jintur. He states that on 29.6.2006, the Police had called him at Jintur Police Station. He states that as usual once he was going to the Apna Tea House at Jintur at 8.30 a.m., where he was employed as a waiter, accused Deepak met him in front of his house and accused Deepak confessed to him that during the earlier night he was involved in an incident with accused Subhash and accused Santosh. P.W.2 Balu states that he noticed that Deepak was frightened and Deepak confessed to him that he 9 along with accused Subhash and Santosh had gone to the “Akhada” situated in the field of Syed Salim and Subhash had entered in one of the rooms through a window and had unlatched the door of that room. The servant who was sleeping in that room awakened and Subhash had gave him a blow of iron rod on his head. Due to the blow of iron rod the servant fell on the ground but after a while the servant got up and caught Subhash. Subhash then dealt another blow of a harrow on the head of that servant. Accused Santosh then carried son of that servant to a mango tree situated in the field of Syed Salim and, thereafter accused Deepak and Subhash lifted the wife of that servant and attempted to carry her to the mango tree. The wife of the servant started shouting and accused Subhash threatened her that if she would not keep quiet, he will kill her son. Thereafter accused Subhash, Deepak and Santosh committed rape on the wife of the servant and thereafter they returned to the house of Subhash and doused their clothes in petrol and set them on fire. She states that as the wife of the servant had identified accused Subhash, Subhash had killed her by giving her blows of the iron rod. In cross-examination he has admitted that he was called to the Police Station on 29.6.2006 and for about 3 to 4 days he was “with” P.I. Giri. He states that during that period P.I. Giri had obtained one signature on a document. He states that he does not know what were the contents of the document. He states 10 that he had signed that document on 30.6.2006. He has further admitted that since 28.6.2006 after the confession of accused Deepak till he was interrogated by the Police he had not disclosed about the confession to anyone else. Omission has been duly proved that he had not stated in his previous statement that accused Deepak had informed him that Santosh had carried the son of the servant upto the mango tree. Similarly, omission has been duly proved that he had not stated in his previous statement that accused Deepak had confessed to him that accused Subhash had threatened the lady not to shout otherwise he would kill her son. Omission has been duly proved that he had not stated in his previous statement that after the incident all the three accused had doused their clothes in petrol and had set them on fire. In further cross-examination he has admitted that he on his own had not gone to the Police Station to inform them about the confession of accused Deepak. He has also admitted that customers in the tea house were discussing about the assault on Lahu and his wife but he had not informed anyone about the confession of accused Deepak. He has also admitted that he had suppressed the information about the confession of accused Deepak for about 4 to 5 days. He has admitted that he knows P.W.2 Munja but had not told him about the confession of accused Deepak. 11 5. This witness states that he is acquainted with accused Deepak as accused Deepak resides in an adjacent lane in Jintur city. This witness has not stated as to how thick the acquaintance/friendship is with accused Deepak. Undisputedly, this witness is not related to accused Deepak. This witness has also not stated that he was a confidant of accused Deepak and that accused Deepak had shared numerous secrets with him. We, therefore, find it unbelievable that accused Deepak would go to his house early in the morning and confess the crime to him. This witness was in the custody of the Police for about 3 to 4 days. We find it inexplicable as to why the Investigating Officer would take this witness into custody for 3 to 4 days. In such circumstances, therefore, according to us no reliance at all can be placed on the extra-judicial confession of accused Deepak to this witness. We find no reasons whatsoever as to why accused Deepak would repose such high degree of confidence in this witness. The extra-judicial confession, therefore, alleged to have been made by accused Deepak to this witness will have to be left out of consideration while evaluating the evidence against the accused. 6. Prosecution has examined P.W.3 Munja a Barber by profession who also claims to be friend of accused 1 to 3. He 12 states that he runs a shop in the name and style as “Gajanan Hair Style”. He states that on 27th the accused had come to his shop at 8.30 a.m. and had enquired about the whereabouts of P.W.2 Balu. The accused had asked him if P.W.2 Balu had been to his shop and on his replying in the negative the accused left his shop and purchased liquor from an adjacent shop. He states that on the next day morning he opened his shop at about 8.00 a.m. and at about 10.00 a.m. accused Deepak came to his shop and requested for a hair cut and for dyeing his hair. At the request of accused Deepak P.W.3 Munja accompanied him to a nearby hotel for snacks. After coming out of the hotel, accused Deepak confessed to him that on the earlier night he along with accused Subhash and Santosh had gone to the “Akhada” situated in the field of one Salim and had assaulted the husband of a lady and had taken that lady under a mango tree and had committed rape on her. Accused Deepak also confessed to him that thereafter they had burnt their clothes. He states that accused Deepak then accompanied him to his shop and while P.W.3 Munja was cutting his hair asked him as to what would be his fate and the fate of his companions. In cross-examination he has admitted that he had not questioned the accused as to why they had asked him if P.W. 2 Balu had come to his shop. He has admitted that occasionally, P.W.2 Balu meets him. He has also admitted that occasionally accused 1 to 3 used to meet him. He has admitted “ I am not 13 having close friendship with accused 1 to 3 “. He has also admitted that there used to be a crowd in his shop. He further states that while going for snacks with accused Deepak he had informed his customers that he would be returning back shortly. He then somersaults from the original statement and states that accused Deepak had confessed to him while his hair being cut and dye was being applied in his shop. He then states that when accused Deepak was confessing, other two customers were also sitting in the two different chairs and his uncle Laxman and brother Gajanan were cutting the hairs of those two customers. He states that on 30th he had been called to the Police Station and again after about two days he was called to the Police Station. He admits to have signed a document at the Jintur Police Station but does not know in what connection his signature was obtained. He has admitted that the Police did not write anything in his presence. He has also admitted that he had not informed anyone about the confession of accused Deepak. He was confronted that portion marked “A” in his statement that accused Deepak had confessed his guilt while they were returning from the hotel after taking snacks. He has admitted that his statement that confession was made by Deepak while his hair were being cut in his shop was incorrect. He has denied portion marked “B” in his statement that after confessing his guilt he had cut the hair of Deepak and had applied the dye. Confronting of his portion 14 marked “B” was necessitated on account of his assertion that after cutting the hair of Deepak and applying dye he and Deepak had gone for tea and snacks. Omission has been duly proved that he had not stated in 164 statement that accused Deepak had confessed to him that he along with Santosh and Subhash had gone to Akhada of Salim and after assaulting Lahu they had raped his wife under a mango tree. Similarly, omission has been duly proved that he had not stated in his 164 statement about the accused burning their clothes. In further cross-examination he has admitted that on a day earlier to his recording of statement by the Magistrate, the Investigating Officer had called him at Jintur Police Station and had instructed him as to what this witness should depose before the Magistrate. 7. This witness had admitted in his cross-examination that he does not have close friendship with accused 1 to 3. In the face of such admission, we find it inexplicable that the accused would go to his shop and confess to the crime. There is also contradiction in respect of the place where the accused is alleged to have confessed. Firstly, he states that the accused had confessed to him after they had come from the hotel after tea and snacks. The second version of this witness is that accused Deepak had confessed to him in the presence of other two customers while his hair were being cut. He then asserts again that the confession 15 was made after they had left the hotel. The fourth version is that after cutting the hair of Deepak they had gone to the hotel for tea. Coupled with the omissions in the 164 statement, according to us no reliance whatsoever can be placed on the testimony of this witness. We find that the making of the extra-judicial confession by accused Deepak to this witness tasks human credulity for its acceptance. 8. Prosecution has examined P.W.4 Pandurang Dhakne who states that he was employed as servant by one Digambar Katare and was residing in the Akhada in the field. He states that he was residing there along with his wife Gokarnabai. He states that previously he had been employed as a servant in the field of Salim. He states that accused Subhash used to visit the Akhada accompanied by Digambar Katare and Datta Kale. He further states that during night of the incident he was awaken on account of the barking of the dogs. He accordingly came out of the room in order to see what the matter was and noticed three persons with their faces covered. One of those person hit the dog with an iron implement in his hand and told the dog to keep quiet. He states that because he was acquainted with the voice quality of accused Subhash, he immediately identified that person as Subhash. He states that since he was frightened he sat on a cot in front of the room. He states that the three persons then 16 proceeded towards the Akhada of Salim and thereafter he heard shouts as “Run, I am dying”. After about 15 minutes he heard the shouts of a woman as “Save”. He states that because he was frightened he did not go to the Akhada to see what the matter was. On the next day he accompanied by his wife Gokarna had gone to the field of Syed Salim for fetching water and had noticed the woman lying towards the Western side of the Well and near her he noticed a child who was crying. The said lady was nude. He states that his wife covered the body of that lady with the saree of that lady and thereafter his wife brought the child to his house and provided food to him. He states that after the arrival of the Police he had gone to the Akhada Syed Salim. In cross- examination he has admitted that his statement was not recorded by the Police. He states that his statement was recorded by the Magistrate and he was stating these facts after his statement was recorded by the Magistrate. He has stated that he had never met P.I. Giri of Jintur Police Station. He states that his thumb impression had been obtained on a document. He has admitted that he had met one Police Constable Kamble on the day he had seen the woman near the Well but had not informed the Police Constable about the incident during the night. He has admitted that he had on his own had not gone to the Police Station to inform anything about the incident. He has admitted not to have informed Syed Salim or his brother in law about the incident. He 17 has admitted that he had not raised any cries for help when he had seen the three accused with their faces covered. He has admitted that even after hearing the cries from the Akhada of Syed Salim, he had not left his room. He has denied to have stated portion marked “A” in his statement that at about 6.00 a.m. he accompanied his wife had gone to Akhada of Syed Salim had met P.W.1 Shaikh Farooque and one Sadal there. Omission has been duly proved that he had not stated in his 164 statement that on hearing the barking of the dogs he had come out of the house and had identified the accused Subhash on account of accused No.1 telling the dogs to keep quiet. Omission has been duly proved that he had not stated in his statement under Section 164 of the Code of Criminal Procedure that Subhash