35. cr apeal 1230-05.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1230 OF 2005 1. Ramu Arjun Kacharya ] Age 24 years, ] 2. Ananta Kakdya Pared ] Age 24 years, ] 3. Raju Kakdya Pared ] Age 20 years ] All residing at Koloshi, Tal.Vasai, ] Dist. Thane (At present in Central ] Jail) ] Appellants Versus The State of Maharashtra ] Respondent Mr. Kuldeep S. Patil for the Appellants Ms. M.M. Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 1st SEPTEMBER, 2010. ORAL JUDGMENT: 1. Through this appeal, the appellants original accused nos. 1 to 3 have challenged the judgment and order dated 19th November, 2005 passed by learned Ad-hoc Additional Sessions Judge, Palghar in Sessions Case No. 338 of 2001. By the said judgment and order, the learned Judge convicted each of 1 35. cr apeal 1230-05.doc the appellants under Section 376(2)(G) of IPC and under Section 323 read with 34 of IPC. For the offence under Section 376(2)(G) of I.P.C., the appellants were sentenced to RI for five years and to pay fine amount of Rs. 2000/- each in default RI for a period of six months. For the offence under Section 323 read with 34 of IPC, the appellants were sentenced to SI for one year and to pay fine of Rs. 500/- each in default SI for three months. The learned Sessions Judge directed both the sentences to run concurrently. 2. The prosecution case briefly stated, is as under: The prosecutrix PW 1 Nanda was residing at village Vehlondha, Tal. Shahapur, Dist. Thane along with her three children. On 20th May 2001, as there was a marriage of her cousin Ramesh Dhavle at Village Koloshi, she along with her husband and children went to the said village on 20.05.2001. As per custom, there was dance party which went on till 2.30 a.m. Thereafter,all went to sleep. As usual, the prosecutrix got up at about 5.30 a.m. She asked her husband to look after the children and she went to attend the call of nature towards the nala which was behind the house of Ramesh. While returning, three persons appeared at the spot. One of them caught hold of her hands, another had caught hold of her legs and third one caught her mouth and they took her towards the hill area situated nearby where she was made to lie on the 2 35. cr apeal 1230-05.doc ground. She shouted for help, however, out of the three persons, one put his palm over her mouth to prevent her from shouting. The other accused caught her legs and third one committed rape on her. During the incident, PW 4 Valkibai aunt of the prosecutrix came towards the hill area for answering call of nature. She saw one person sleeping on body of the prosecutrix, hence she caught him. Meanwhile, two other accused ran away from the spot. PW 4 Valkibai raised shouts whereupon uncles of the prosecutrix i.e PW 2 Barku and PW 3 Ramesh came to the spot. Meanwhile, villagers gathered at the spot. These persons assaulted PW 2 Barku and PW 3 Ramesh. Thereafter, they ran away. The prosecutrix lodged FIR on the very same day at 5.30 p.m. at Virar Police Station. On the very same day, she was referred for medical examination to Government Hospital at Thane. The case of the prosecutrix is that accused no. 1 actually committed rape on the prosecutrix and accused nos. 2 and 3 assisted him in committing rape. After completion of investigation, charge sheet came to be filed 3 Charge came to be framed against the appellants under Sections 376(2)(G) and under Section 323 read with 34 of IPC. The appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. Their further 3 35. cr apeal 1230-05.doc defence is that all the accused were on cross terms with PW 2 Barku who is uncle of the prosecutrix, hence they were falsely implicated in the present case. After going through the evidence adduced by the prosecution, the learned Additional Sessions Judge convicted and sentenced the appellants as stated in para 1 above. Hence, this appeal. 4 I have heard the learned advocate for the appellants and learned APP for the State. I have perused the judgment and order passed by the learned Sessions Judge. I have also perused the evidence in this case. After carefully considering the matter, for the reasons stated herein below, I am of the opinion that the conviction of the appellant nos. 2 and 3 under Section 376(2)(g) deserves to be set aside. 5. The conviction of the appellant is based mainly on the evidence of PW 1 i.e the prosecutrix. The prosecutrix has stated that on 20th May, 2001, she went to Village Koloshi along with her husband and children for attending marriage of her cousin brother Ramesh. As per custom, there was dance party which went on till 2.30 a.m. Thereafter, all went to sleep. As usual, the proseutrix got up at about 5.30 a.m. She asked her husband to look after the children and she went towards a nala which was behind the house of Ramesh to attend call of nature. While returning, three persons appeared at 4 35. cr apeal 1230-05.doc the spot. One of them caught her mouth, second person caught her hands and third person caught her legs. She further stated that one of the accused removed her nicker, the second accused put her sari in upward direction and third accused committed rape on her by sleeping on her. In the meanwhile, her aunt reached at the spot and on seeing her, two accused ran away from the spot. Her aunt raised shouts, hence, people gathered at the spot including PW 2 Barku and PW 3 Ramesh who were her uncles. Meanwhile, villagers also reached near the spot and they assaulted her uncles with sticks. Thereafter, she lodged FIR at Virar Police Station. She identified appellant no. 1 as the person who committed rape on her and she has stated that appellant nos. 2 and 3 participated in the incident. 6. Learned advocate for the appellants submitted that the prosecutrix has only identified appellant no. 1 as having committed rape on her. He submitted that from the aveerment of the prosecutrix that appellant nos. 2 and 3 participated in the incident, it does not mean that they participated in the incident of rape but that they have participated in the incident of assault on her uncles i.e PW 2 Barku and PW 3 Ramesh. In order to support his contention, he has drawn my attention to the evidence of PW 1 prosecutrix which is reproduced below : 5 35. cr apeal 1230-05.doc "Three persons came in the dark area when I was answering the call of nature and they caught me. All the three persons caught me, one of the person caught my mouth, second caught my hand and third one caught my legs. I attempted to rescue from their clutches but as they were in three number they were over powered on me. One of the accused has removed my nicker and one of the accused put on my saree on upward direction and third one has committed rape on me by sleeping on my person. By that time, my aunt Waldi reached near the spot and on seeing her, two accused ran away from the spot. One of the accused caught on the spot. Accused who committed rape on me is present in the court today. His name is Ramu. My aunt raised shouts, so people gathered at the spot and they caught the accused. The people who were at the spot amongst them one was PW 2 Barku and other was PW 3 Ramesh my uncle. Due to the catching of the accused, the villagers of his village came near the spot, they used physical force, on my uncle, having stick. Thereafter, we returned to Virar, I lodged report in Virar Police Station. Complaint now shown to me is the same, it bears my thumb impression, contents are read over to me. The same are correct. Complaint is at Exh. 24. I know accused nos. 2 and 3 by face, they are present in the Court. They have participated in the incident." On going through the evidence of the prosecutrix which is reproduced above, I find much merit in the submission of learned advocate for the appellants that from the averment made by the prosecutrix that appellant nos. 2 and 3 participated in the incident it would mean that they had 6 35. cr apeal 1230-05.doc participated in the incident of assault on her uncle. Otherwise, at the stage where she has stated that appellant no. 1 who committed rape on her is present in the Court today and his name is Ramu, at that juncture, she would have stated that appellant nos. 2 and 3 participated in the said incident of rape. The fact that she speaks about the involvement of appellant nos. 2 and 3 only after assault on her uncle shows that they participated in the incident of assault on her uncle. Nowhere in her evidence, the prosecutrix has stated that appellant nos. 2 and 3 were the same persons who caught her or that they were the same persons who either caught her mouth or her hands or her legs or removed the nicker etc. Thus, from the evidence of the prosecutrix, it is seen that as far as the incident of rape is concerned, she has not attributed any role to appellant nos. 2 and 3. Thus, looking to the evidence of the prosecutrix, it is quite apparent that when she made the averment that appellant nos. 2 and 3 participated in the incident, it is in relation to incident of assault on her uncles. 7. Mr. Patil has drawn my attention to the FIR Exh 24 wherein the prosecutrix has stated about 2/3 persons carrying her away. Thereafter,her aunt came to the spot, as her aunt raised shout, her uncles Barku and Ramesh came to the spot. Meanwhile, persons from the village also gathered 7 35. cr apeal 1230-05.doc and they assaulted her uncle. Thereafter, she has stated that the persons who assaulted her uncles were appellant nos. 2 and 3. Thus, it is seen that she has not attributed any role in respect of the incident of rape to appellant nos. 2 and 3. This becomes very clear because at the end of FIR, in clear words, she has stated that on 21st May, 2001 at about 5.30 am, three persons forcibly carried her to hill area, thereafter, appellant no. 1 committed rape on her. She has thereafter stated that when her uncles came to the spot, appellant nos. 2 and 3 assaulted them with wooden stick. Thus, the evidence of the prosecutrix shows that she has not attributed any role to appellant nos. 2 and 3 as far as the actual incident of rape is concerned. 8. Mr. Patil also drew my attention to the evidence of IO PW 5 PSI Fulsing Ransing Valvi wherein he has stated that two accused helped accused no. 1 while committing rape on the prosecutrix. Those accused are still absconding. Mr. Patil contended that this clearly shows that appellant nos. 2 and 3 were not the persons who helped appellant no. 1 while committing rape but some other two persons helped appellant no. 1 while committing rape. On going through the evidence of PW 5 PSI Valvi, I find much merit in this contention. 9. In order to prove its case, the prosecution has 8 35. cr apeal 1230-05.doc examined five witnesses i.e the prosecutrix PW 1, PW 2 Barku & PW 3 Ramesh uncles of the prosecutrix, PW 4 Valkibai and PW 5 PSI Fulsing Valvi who is the investigating officer in the present case. As far as the incident of rape is concerned, PW 2 Barku and PW 3 Ramesh had reached the spot only after hearing the shouts of Valkibai. As far as Appellant nos. 2 and 3 are concerned, these two witnesses have only attributed to appellant nos. 2 and 3 the role of assault on them. Thus, PW 2 Barku and PW 3 Ramesh have not attributed any role or made any allegations against appellant nos. 2 and 3 in respect of rape. It may be stated here that PW 4 Valkibai has turned hostile, hence her evidence is of no use to the prosecution. Hence, as far as appellant nos. 2 and 3 are concerned, as far as the incident of rape is concerned, there is no reliable material on record to show their participation in the incident of rape. 10. Thus, as far as appellant nos. 2 and 3 are concerned, the evidence on record shows that they have assaulted PW 2 Barku and PW 3 Ramesh . On the aspect of assault, nothing has been elicited in the cross-examination of PW 1 to PW 3 so as to disbelieve their testimony that applicant nos. 2 and 3 assaulted PW 2 Barku and PW 3 Ramesh. Looking to the evidence on record, it is clear that only an offence under 9 35. cr apeal 1230-05.doc Section 323 can be said to be made out against appellant nos. 2 and 3. 11. As far as appellant no. 1 is concerned, the evidence of the prosecutrix clearly shows his involvement. The evidence of PW 2 Barku also shows that when he reached the spot, appellant no. 1 was on the person of the prosecutrix. The evidence on record shows that appellant no. 1 was caught on the spot. The prosecutrix has positively identified him as the person who committed rape on her. Thus, from the evidence on record, it can be said that the prosecution has proved the case under Section 376(2)(g), only in respect of appellant no. 1 and not in respect of appellant nos. 2 and 3. Thus, the conviction of appellant nos. 2 and 3 under Section 376(2)(g) has to be set aside. 12. As far as the offence under Section 323 and appellant no. 1 are concerned, no witness has deposed that he in any way participated in the assault of PW 2 Barku and PW 3 Ramesh. There is also no evidence that he shared any common intention with appellant nos. 2 and 3 in relation to assault on PW 2 Barku and PW 3 Ramesh. 13. Looking to the evidence on record, I find that there is sufficient material to show that appellant no. 1 participated in the offence under Section 376(2)(g) and that appellant 10 35. cr apeal 1230-05.doc nos. 2 and 3 committed an offence under Section 323 read with 34 of IPC. In the result, I proceed to pass the following order: O R D E R 1. Appeal is partly allowed. 2. The conviction and sentence in respect of appellant No. 1 under Section 376(2)(g) of IPC is maintained. His conviction under Section 323 is set aside. 3. The conviction and sentence of appellant nos. 2 and 3 under Section 376(2)(g) of IPC is set aside. 4. The conviction of appellant nos. 2 and 3 under Section 323 read with 34 of IPC is maintained. However, the sentence of imprisonment of one year imposed on them is reduced to six months and in default sentence is reduced to two months SI. Appellant nos. 2 and 3 have already been in custody for 8 months and 27 days. Appellant nos. 2 and 3 are on bail. Their bail bonds shall stand cancelled. [SMT. V.K. TAHILRAMANI, J.] 11 35. cr apeal 1230-05.doc 12