-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 650 OF 2008 1. Sachin Maruti Khandekar, ¦ age 24 yrs, Occ.Agriculture, ¦ R/o. Village Bhise, Tal. Roha ¦ Dist.Raigad. ¦ ¦ 2. Ganpat Vaman Karanje, ¦ .. Appellants. age 36 yrs, Occ. Agriculture, ¦ (Org.Accused R/o,. Village Bhise, Tal. Roha, ¦ Nos.2 and 3) Dist. Raigad. ¦ ¦ (Both accused are lodged in Central ¦ Prison, Kalamba, Kolhapur.) ¦ V/s. 1. The State of Maharashtra, ¦ .. Respondent. (At the instance of Sr.Inspector of ¦ Police, Tal. Roha, Dist.Raigad.) ¦ --- Mr.Rahul Thakur for the Appellants. Mr.Y.M.Nakhawa, APP for the Respondent- State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 23RD MARCH, 2009. DATED : 23RD MARCH, 2009. DATED : 23RD MARCH, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal is filed by the appellants, who are the accused nos. 2 and 3 respectively in Sessions Case No. 176 of 2005 on the file of the 1st Adhoc Additional Sessions Judge, Raigad at Alibaug. -: 2 :- 2. By the impugned judgment and order the original accused no.1 Ramesh Nathuram Mohite and the present appellants -accused no.2 Sachin M. Khandekar and accused no.3-Ganpat Vaman Karanje respectively, were convicted for the offence punishable under section 376 (2)(g) of the Indian Penal Code and each of them 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. 3. The original accused no.1 Ramesh Nathuram Mohite preferred criminal appeal no.173 of 2007. That appeal was heard by this court and dismissed by the judgment and order dated 06.01.2009. 4. The appellants, original accused nos. 2 and 3, preferred the present appeal which came to be admitted on 28.08.2008. The appellants also preferred an application, being criminal application no. 809 of 2008 for enlarging them on bail. That application was placed for orders before me on 20.02.2009. After hearing the learned counsel same was rejected. At the request of the learned counsel of the parties, the appeal itself was placed for final hearing inasmuch as criminal appeal no. 173 of 2007 filed by the original accused no. 1 Ramesh Nathuram Mohite was already dismissed. -: 3 :- 5. The appeal was placed on board for final hearing in the week commencing from 2nd of March, 2009, however, the same did not reach for final hearing till 17th of March, 2009. On 17.03.2009 when the appeal was called for hearing nobody appeared on behalf of the appellants and therefore, in order to give an opportunity, the appeal was kept back but nobody appeared. On 18.3.2009 the appeal was called out, however, nobody appeared on behalf of the appellants. Therefore, again the same was kept back. Today also when appeal was called nobody appeared on behalf of the appellants. Therefore, I am constrained to proceed with hearing of the appeal finally on merit. Heard Mr. Nakhawa, learned APP for the respondent State. 6. The prosecution case in brief was as under : 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 original accused no.1 was having acquaintance with the prosecutrix and her family. The prosecutrix was treating him as her brother. -: 4 :- iii. On 7th of April, 2005 at about 7.00 pm the original 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 original 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 went to the said field and searched the original accused no.1 in the field. However, she did not find the original accused no.1 in the field itself and when she was coming back to her house, at that time, the appellants - accused nos. 2 and 3, namely, Sachin and Ganpat came there. 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 appellants/accused 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 original accused no.1 came there. The prosecutrix was saying to all the accused that they -: 5 :- are like her brothers and they should leave her. All the accused took the prosecutrix near a Bandh of the said field and thereafter committed forcible sexual intercourse with her one by one. At that time 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 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 taken 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. 7. 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 committed the said case to the court of -: 6 :- Sessions at Alibag Dist. Raigad on 02.12.2005. The learned 1st Adhoc Additional Sessions Judge framed the charge against the appellant and the original accused nos. 1 for the offence punishable under section 376 (2)(g) of the IPC. All the accused pleaded not 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. 8. In order to prove the guilt of the accused, the prosecution 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. 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. 9. The prosecutrix PW-2 in her deposition stated that she was treating the original accused no.1 as her -: 7 :- brother. On the date of incident she had been to the said field known as "Khalche Shet" belonging to original accused no.1, in order to know her message from the original -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 appellants - 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 appellants- accused nos. 2 and 3 told her that they have not caught her to leave. Then the original 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 original accused no.1 was committing forcible sexual intercourse, at that time the appellants -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 original accused no.1, the appellants- 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 and thereafter 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, she was taken to -: 8 :- hospital. Thereafter, the prosecutrix went to Roha police station alongwith her father and lodged a 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. 10. The evidence of the prosecutrix is corroborated by the evidence of PW-2 Govind Thamke. PW-2 deposed that at the time of the alleged incident he was in his house. 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 alongwith above persons. They visited the said field. PW-2 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 weeping. She told them that the original accused no.1 and the appellants/ accused nos. 2 and 3 have forcibly committed sexual intercourse with her. PW-2 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 -: 9 :- 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, but his evidence is not shattered. 11. 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 received 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. 12. 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. -: 10 :- 13. The evidence of PW-1 prosecutrix, 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. 14. It is now settled principle that conviction can be based on the prosecutrix evidence if such evidence is trustworthy. In the present case, the the evidence of the prosecutrix inspires confidence and the same is corroborated by the evidence of PW-2, 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 original 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. 15. Mr. Thakur, learned counel for the appellants, -: 11 :- at this stage appeared and requested that his submissions may be taken into consideration. I accordingly allowed him to make his submissions. He submitted that the incident in question is dated 7th of April, 2005 and the prosecutrix was examined by Dr. Sunil Patil at about 5 p.m. on the 08th April, 2005. He further submitted that the prosecutrix, however, did not disclose the incident to doctor Sunil Patil. Non-discloser itself creats doubt about the prosecution story. This submission, in opinion, has no merit. The incident of rape was occurred at about 9 p.m. in the night between 7th and 8th April, 2005. It has come on record that before arrival of PW-2- Govind Thamke with the other two persons, the appellant and the original accused no.1 already committed forcible sexual intercourse on the prosecutrix. The prosecutrix was not feeling well as she was feeling some sort of giddiness. She was, thereafter, taken to the hut situated in the field and then to her house and her father was called. Thereafter, since she was not feeling well, she was taken to the dispensary of Dr. Sunil Patil in the morning. It is true that she has not disclosed the incident of rape to doctor Sunil Patil but that fact itself will not demolish the prosecution story. The prosecutrix may not have disclosed the incident of rape to doctor Sunil Patil for various reasons. However, the prosecutrix alongwith her father, reported the incident to the police at about 5.30 -: 12 :- p.m. on 8th April, 2005 and thereafter the FIR was registered and after registration of the FIR the prosecutrix was directed to the medical health officer. In view of this evidence, much importance cannot be given to the fact that the prosecutrix did not disclose about the incident of rape on her by the accused to doctor Sunil Patil. As such the submission of the learned counsel in this regard has no merit. 16. In the facts and circumstances of the case, as mentioned above, I am of the view that the prosecution has proved the offence punishable under section 376(2) (g) of the IPC against the appellants accused nos. 2 and 3 and the learned 1st Adhoc Additional Sessions Judge, has rightly convicted the appellants -accused nos. 2 and 3 and original accused no.1 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.) .....