-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 173 OF 2007 Ramesh Nathuram Mohite .. Dissociated. Age 28 years, R/o. Village Bhise Org.Appellant Tal. Roha, Dist. Raigad. Accused No.1 (Through Jail). V/s. 1. The State of Maharashtra, (At the instance of Sharmila Santosh Thamke, Age 25 yrs. R/o. Photalghar Taluka -Roha, Dist.Raigad .. Complainant. --- Mr.Suresh Bhosale, Advocate appointed for final hearing. Mr.Y.M.Nakhawa, APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 06th JANUARY, 2009. DATED : 06th JANUARY, 2009. DATED : 06th JANUARY, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant/original accused no.1 alongwith original accused no.2-Sachin Maruti Khandekar and accused no.3-Ganpat Vaman Karanje were charged for the offence punishable under section 376 (2)(g) of the Indian Penal Code. The learned 1st Ad Hoc Additional Sessions Judge, Raigad- Alibag, who tried the appellant/accused no.1 alongwith original accused nos. 2 and 3 for the above said offence, by the judgment and order dated 08.06.2006, -: 2 :- which is impugned in the present appeal, has convicted them for the offence punishable under section 376 (2) (g) of the IPC and each of the accused was sentenced to undergo R.I. for 10 years and fine of Rs.2000/-, in default of payment of fine to suffer S.I. for three months. The prosecution case in brief is as follows : i. That the prosecutrix, PW-1 at the time of incident was 25 years old. She lost her husband 9 years back, prior to the incident in motor accident. She is residing at village Phofalghar alongwith her 9 years old minor son and 75 years old father-in-law. ii. The appellant/original accused no.1 was having acquaintance with the prosecutrix and her family. The prosecutrix was treating the appellant/accused no.1 as her brother. iii. On 7th of April, 2005 at about 7.00 pm the appellant accused no.1 had been to the house of the prosecutrix and told her that there is important message for her and that she should come to the field known as "Khalche Shet" to know the message. However, at that time the father-in-law of the prosecutrix was not at home. At about 8.30 p.m., the father in law of the prosecutrix came home from Roha. The appellant -: 3 :- accused no.1 again came at prosecutrix’s house and informed her that he has important message for her and that she should come to the said field. Thereupon, the prosecutrix had been to the said field and searched the appellant accused no.1 in the field. However, she did not find the appellant accused no.1 in the field itself and when she was coming back to her house, at that time, the original accused nos. 2 and 3, namely, Sachin and Ganpat came there and they caught hold both the hands of the prosecutrix and dragged her in the field. On prosecutrix questioning them as to why they are dragging her they said that they would not leave her. The appellant nos. 2 and 3 dragged her in the field. The prosecutrix was shouting and tried to escape, however, it was of no use. Then the appellant accused no.1 came there. The prosecutrix was saying to all the accused that they are like her brothers and they should leave her. All the accused thereafter took the prosecutrix near a Bandh of the said field and thereafter all of them committed forcible sexual intercourse with her one by one. At the time of the accused persons committing forcible intercourse with the prosecutrix one Govind Thamke and Nilesh Thamke came there on hearing hue and cry and they noticed that all the three accused ran away. The prosecutrix narrated the incident to Govind -: 4 :- and Nilesh Thamke. The prosecutrix was taken by them to the hut located in the field and then to her house. Her father was called. The prosecutrix told the incident to her father. She was feeling weakness and giddiness and therefore, she was took to the dispensary of Dr. Sunil Patil. The prosecutrix could not lodge complaint due to her physical condition. Thereafter, the prosecutrix went to Roha Police Station with her father and lodged the complaint on 08.04.2005 at 7.25 p.m. and accordingly a crime at C.R. No. 25 of 2005 was registered against all the three accused. 3. PW-7,the Police Inspector -Bhalchandra Kulkarni after completion of the investigation in the said case submitted charge-sheet against the accused persons in the court of Judicial Magistrate, F.C., Roha on 07.07.2005. The JMFC, Roha has committed the said case to the court of Sessions at Alibag Dist. Raigad on 02.12.2005. 4. The learned 1st Adhoc Additional Sessions Judge framed the charge against the appellant and the original accused nos. 2 and 3 of the offence punishable under section 376 (2)(g) of the IPC. -: 5 :- 5. All the accused pleaded no guilty to the charge. They took the defence of false implication by the prosecutrix as there was/is enmity between the accused and the brother- in-law of the prosecutrix. 6. In order to prove the guilt of the accused, the prosecution has examined 7 witnesses. The prosecutrix was examined as PW-1. PW-2 is one Govind Ramchandra Thamke who went to the place of incident after hearing hue and cry alongwith Subhash Thakme and Prakash Kheratkar. By the time they reached, the accused had accomplished the crime. This witness PW-2 saw all the three accused running towards opposite direction and the prosecutrix was weeping there. PW-3 is one Maruti Patil in whose presence clothes of the prosecutrix were seized under Panchanama at Exh. 20. PW-4 is one Mahesh Rokade in whose presence all the accused were arrested under the panchanama at Exhs. 22 and 23. PW-5 is one Chandrakant Shankar Pilvankar in whose presence the clothes of accused were seized under panchanama. PW-6 is Medical Officer, Dr. Ashvinita Gaikwad who has examined prosecutrix on 08.04.2005 and PW-7- Bhalchandra Kulkarni is the Investigating Officer. 7. The prosecutrix PW-2 in her deposition stated that she was treating the appellant accused no.1 as her brother. On the date of incident she had been to the said -: 6 :- field known as "Khalche Shet" belonging to appellant accused no.1, in order to know her message from the appellant-accused no.1. She further testified that when she visited Khalche Shet she did not see anybody there in the field and therefore, she was to return to her home. At that time, the accused nos. 2 and 3 came there and they caught hold both the hands of the prosecutrix and dragged her towards the field. She requested them to leave her. However, the accused nos. 2 and 3 told her that they have not caught her to leave. Then the appellant accused no.1 came there and all of them have dragged the prosecutrix into the field. All the accused thereafter committed forcible sexual intercourse with the prosecutrix. When the appellant/ accused no.1 was committing forcible sexual intercourse, at that time the original accused nos. 2 and 3 were holding her hands and put their hands on the mouth of the prosecutrix. After accomplishment of the crime by the appellant accused no.1, the original accused nos. 2 and 3 also committed forcible intercourse. She further testified that by the time one Govind Thamke came there at the spot of incident, all the accused ran away. The evidence of the prosecutrix further disclosed that as she was not feeling well and there was weakness and some sort of giddiness in her and hence she was taken to hospital. Thereafter, the prosecutrix went to Roha police station alongwith her father and lodged a -: 7 :- complaint which was registered as C.R. No. 25/2005. Evidence of the prosecutrix is cogent, consistent and inspires confidence. The evidence of the prosecution is not shattered in the cross examination. 8. The evidence of the prosecutrix is corroborated by the evidence of PW-2 Govind Thamke. PW-2 deposed that when he was in his house by that time one Subhash Thamke and Prakash Kheratkar came to his house and they informed that they heard a noise of one lady and 2/3 persons from the side of the field. Thereafter PW-2 took the torch and left the house and they visited the said field. PW-3 threw a torch light to the spot and he saw three persons were running away from the place of incident and that the prosecutrix was in the field. She was weeping and told them that the appellant accused no.1 and the other accused have forcibly committed sexual intercourse with her. PW-3 further testified that he took the prosecutrix to her house and they informed the incident to her father. PW-2 immediately after the incident seen with the help of torch light that all the accused were running towards opposite direction. He also saw the prosecutrix and took her with him. The prosecutrix also told to PW-2 the names all the three accused. The statement of PW-2 was recorded immediately. The evidence of PW-2 is cogent, natural and consistent. This witness was cross-examined by defence, -: 8 :- but his evidence is not shattered. 9. The PW-6,Medical Officer has testified that she examined the prosecutrix on 08.04.2005. Her evidence discloses that the prosecutrix gave history of rape on her by three persons. Though she did not find any injury on the private part of the prosecutrix she collected samples of virginal swab, pubic hair and blood separately in three separate bottles. She was handed over report of Chemical Analyser. Though she initially did not give any opinion in respect of the rape, however, on receipt of report of the chemical analyser at Exh.36, the Medical Officer opined that there was sexual intercourse with the prosecutrix. The medical evidence of PW-6 thus corroborated with the version of the prosecutrix. 10. The PW-5 was the witness to the panchanama and seizure of the clothes of the accused. He has proved seizure panchanama at Exhs. 26, 28 and 30. The reports of the chemical analyser are at Exhs. 36 and 41. The report at Exh. 36 shows that human semens is detected in cervical swab of the prosecutrix. The report at Exh. 41 further discloses that there were stains of human semens on the parkar (i.e. Petticoat) and on the sari of the prosecutrix. These reports also corroborated the version of the prosecutrix. -: 9 :- 11. The evidence of PW-1 prosecutrix and PW-2 Govind and PW-6 -Medical Officer is cogent, consistent and trustworthy. Both PW-2 and PW-6 corroborated the prosecutrix version of commission of rape on her. The evidence of the prosecutrix is supported by the evidence of chemical analyser at Exhs. 36 and 41. 12. It is now settled principle that evidence of victim of sexual assault is unwhittled unless there is compelling evidence of uncorroborative statement of the victim alone. In the present case, the the evidence of the prosecutrix inspires confidence and the same is corroborated by the evidence of PW-6 and chemical analysers report at Exhs. 36 and 41. There is no reason for the prosecutrix to implicate the accused falsely in the present case more so when she was treating the appellant accused no.1 like her brother. It was the defence of the accused that there was dispute between him and brother in-law of the prosecutrix and therefore, they came to be implicated falsely. However, no details are given in respect of any such dispute between them. The prosecutrix who is a widow, would not involve herself in a case like rape merely to implicate the accused in a false case. -: 10 :- 13. Mr. Bhosale, the learned counsel appearing for the appellant-accued no.1 submitted that it is strange as to why the prosecutrix should go alone to the said field in the night at about 9.50 p.m. on the date of incident. It is further submitted that it is the prosecution case that there were stumps of paddy crops in the said field and therefore, had the alleged incident happened, as narrated by the prosecutrix, there would have been injuries on the persons of the prosecutrix. Mr. Bhosale also submitted that the incident occurred at about 9.30 p.m. to 10.30 p.m. on 07.04.2005, however, the incident was reported to the Roha Police Station on the next day at about 7.25 p.m.. 14. Above submissions in my view have no merit. The prosecutrix went to the field known as "Khalche Shet" believing the appellant accused no.1. The appellant accused no. 1 had told the prosecutrix that he wanted to give some important message. The appellant accused no.1 had been twice to the house of the prosecutrix, firstly at 7.00 p.m. and thereafter at about 8.30 p.m.. I do not find anything strange if the prosecutrix believing the appellant accused went to the said field at about 9.30 p.m. alone. The prosecutrix at that time was not aware of the intention of the appellant accused no.1 and other accused. Therefore, I find nothing wrong if prosecutrix -: 11 :- went alone at the field Khaleche Shet at about 9.30 p.m. which is less than one kilometre away from her house. 15. The second submission that in the said field there were stumps of the paddy crops and in case of occurrence of the incident as alleged by the prosecution there would have been injuries on the persons of the prosecutrix is also without any merit. Exh. 30 is the spot panchanama which shows actual place/spot of the incident is plain area and there were no stumps of paddy crops in the said spot. 16. The last submission of Mr.Bhosale is about delay, viz. the incident that occurred in the night at about 10’ O clock on 07.04.2005 and the same was reported to the police on 08.04.2005 at about 7.25 p.m. is concerned, the prosecutrix has given sufficient explanation for the same. She has stated in her deposition that she was unwell and was feeling giddiness as she was raped by the accused persons. It is unexpected from the victim like prosecutrix to lodge a report immediately. Otherwise also cogent and reliable evidence cannot be discarded on the so-called ground of delay. 17. In the facts and circumstances of the case, as mentioned above, I am of the view that the prosecution has -: 12 :- proved the offence punishable under section 376(2) (g) of the IPC against the appellant accused no.1 and other two accused and the learned 1st Adhoc Additional Sessions Judge, has rightly convicted the appellant -accused no.1 and other accused for the offence punishable under the said section. In the result, the impugned judgment and order of the trial court requires no interference at the hands of this court. The appeal is without any merit and the same is dismissed as such. (R.V.MORE,J.)