Bombay High Court
High Court Bench At Aurangabad vs Manik Mohan Gaikwad on 26 November, 2008
Bench: N.V. Dabholkar, S. S. Shinde
(-1-)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 219 OF 2006
The State of Maharashtra
(Through Public Prosecutor
High Court Bench at Aurangabad) ...Appellant
Versus
1. Manik Mohan Gaikwad,
Age 25 years,
R/o. Dadegraion,
Tq. Ashti District Beed
2. Bhausaheb Mohan Mali,
Age 30 years, R/o. Dhamangaon
Tq.Ashti, District Beed ...Respondents
ig ALONGWITH
CRIMINAL APPEAL NO. 44 OF 2007
1. Manik Mohan Gaikwad,
Age 25 years,
R/o. Dadegraion,
Tq. Ashti District Beed
2. Bhausaheb Mohan Mali,
Age 30 years, R/o. Dhamangaon
Tq.Ashti, District Beed ...Appellants
Versus
The State of Maharashtra
(Through Public Prosecutor
High Court Bench at Aurangabad) ...Respondents
.....
A.P.P. Shri N.N.Jadhav for the appellant in Criminal
appeal No. 219 of 2006 and for respondents in criminal
appeal No.44 of 2007
Advocate Shri. S.D. Hiwrekar for accused in both the
appeals.
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(-2-)
.....
CORAM: N.V. DABHOLKAR AND
S. S. SHINDE, JJ.
DATED OF RESERVING
THE JUDGMENT : 22ND SEPTEMBER, 2008.
DATED OF PRONOUNCING
THE JUDGMENT : 26TH NOVEMBER 2008.
JUDGMENT (PER SHINDE, J.):-
1. Both these appeals challenge the judgment and order dated 3.12.2005 passed by IIIrd Ad Hoc Additional Sessions 2004, thereby Judge, Ahmednagar in Sessions Case No. convicting the accused persons 202 for of the offences punishable under Sections 376(g) and 363, 366, 451, 323 and 506 r.w. 34 of I.P.C.
. Criminal appeal No. 219 of 2006 is by the State of Maharashtra for enhancement of sentence and criminal appeal No. 44 of 2007 is filed by accused challenging the conviction and sentence as imposed by the Sessions Court, Ahmednagar.
2. The prosecution case, in nutshell, is as under:-
. The prosecutrix is a minor girl residing with her father P.W.6 Jalindar Narayan Shirsath, mother Sumanbai, ::: Downloaded on - 09/06/2013 14:05:49 ::: (-3-) two sisters and two brothers. On 22.8.2004, after dinner, the kids including the prosecutrix went to sleep.
P.W.6 Jalindar and his wife were listening Kirtan (religious discourse) by sitting in the courtyard of their house. The Kirtan was going on in the village.
The door of the house was closed from inside, by the kids. It is the case of the prosecution that the prosecutrix, who happens to be a minor girl, heard that somebody was pushing the door. There was attempt from outside, to open the door forcibly. The prosecutrix did not open the door. The accused persons forcibly dashed and opened the door.
ig Two persons entered the house. One
was wearing half white shirt and white pant and another
persons was wearing khaki pant and black shirt. Both
were having black complexion. It is the case of the
prosecution that the prosecutrix saw both the persons in
the light of bulb. One of the accused broke the bulb.
The person wearing white shirt and pant caught hold the
hands of the prosecutrix and another person caught her
legs and kidnapped her by closing her mouth. They
slapped her and made her keep quiet. They carried her
towards the hilly area. The accused persons tore her
midi skirt and blouse. Further they removed her nicker.
They pulled her down to earth. Thereafter the person
wearing white dress raped her first. The person wearing
black shirt raped her thereafter. It is the case of the
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(-4-)
prosecutrix that since the accused persons were seen by
the prosecutrix in the light of bulb, she is able to
identify them.
. It is further case of the prosecution that before
opening door, these two persons assaulted P.W.6 Jalindar
when he was sitting with his wife in the courtyard for
listing Kirtan. His wife ran towards the village. Those
rapists assaulted P.W.6 Jalindar by iron pipe and another pelted bricks towards him. He also saw both the rapists in the light of bulb.
. It is further case of the prosecution that whatever happened inside the room was informed by the children that the thieves kidnapped the prosecutrix and they have taken her away. Therefore, P.W.6 Jalindar and other villagers started searching prosecutrix with the help of torch and in the light of head lamp of motorcycle. The prosecutrix was found in naked condition in hilly area having been raped by both the accused persons. They brought the prosecutrix to the house of P.W.6 Jalindar.
The prosecutrix was taken to the police station, where
complaint Exh. 42 was lodged.
3. The prosecutrix was referred for medical examination.
P.W.8 Dr. Manisha Narayan Hange carried out her medical ::: Downloaded on - 09/06/2013 14:05:49 ::: (-5-) examination. Similarly, to determine the age of the prosecutrix she was also referred to P.W.12 Dr. Ambadas Hari Sase, who was then working as Radiologist, who opined that the age of prosecutrix was in between 14 to 16 years. P.W.11 Pandharinath B. Kedare carried out the investigation in the matter.
. Accused No.1 Manik Mohan Gaikwad was arrested soon
after the incident. His identification parade was held
with the permission of the Court on 24.9.2004 at the
hands of P.W.9 Rajendra Wagh. P.W.5 prosecutrix and
P.W.6 Jalindar
in independent identification parades
identified him. He was sent for medical examination.
P.W.10 Dr. Suchitra Khedkar examined him.
. During the course of investigation accused No.2
Bhausaheb Mohan Mali was arrested. He was also promptly
sent for medical examination and his medical examination
was also done by P.W.8 Dr. Manisha on 22.3.2005. After arrest of accused No.2 with the permission of the court, test identification parade was held by P.W.9 Rajendra Wagh on 17.4.2005. In that parade P.W.5 prosecutrix and P.W.6 Jalindar in separate identification parades identified accused No.2 Bhausaheb.
. During investigation, spot panchanama was drawn in the ::: Downloaded on - 09/06/2013 14:05:49 ::: (-6-) presence of P.W.1 Dagadu Ghuge and another panch.
Similarly, clothes of the accused persons were seized under panchanama at Exh.31 in presence of P.W.2 Bhausaheb Shirsath and other panchas. The clothes of accused No.2 Bhausaheb were seized from hut of his father in presence of P.W.3 Sambhaji Warkad.
. The samples of blood stains and clothes were sent for Chemical Analyser's report with P.W.14 Jabbar Rahim Khan.
C.A. reports are at Exh.82 and 83. For the purpose of
age determination, school leaving certificate of the
prosecutrix was
igalso collected and for that purpose
evidence of P.W.16 Arun Bhagwat was taken into
consideration.
. On completion of investigation charge sheet was filed
before the court of J.M.F.C. Pathardi. Since the
offence was exclusively triable by the Court of Sessions, learned J.M.F.C. committed the case under Section 209 of Cr.P.C. to the Court of Sessions at Ahmednagar. The Sessions Judge, Ahmednagar framed the charges against both the accused under Sections 376(g) and 363, 366, 451, 323, 506 r.w. 34 of I.P.C. Both the accused pleaded not guilty, therefore, they were called upon to face the trial.
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4. In order to prove the case, the prosecution has examined in all 15 witnesses. The first important witness is P.W.5 prosecutrix herself. Her evidence is at Exh.41. Her name was not disclosed in the judgment in the light of observations made by the Supreme Court in the case of State of Punjab Vs. Ramdeo Singh, reported in A.I.R. 2004 SC 1290. P.W.6, father of the prosecutrix Jalindar Narayan Shirsath, who is also injured in the said episode at the hands of accused persons. P.W.7 Ajinath Shirsath is examined vide Exh.44, who claims to be a villager and had participated in the search operation for the prosecutrix.
. Another bunch of witnesses is from medical profession i.e. P.W.8 Dr. Manisha Hange at Exh.47, P.W.10 Dr. Suchitra Bappasaheb Khedkar at Exh.67 and P.W.12 Dr. Ambadas Hari Sase is at Exh.88.
. The next bunch of witnesses are panch witness P.W.1 Dagadu at Exh.28, P.W.21 Bhausaheb Shankar at Exh.20 and P.W.3 Sambhaji Maruti at Exh.32. P.W.4 Jagdish Mohan Gade at Exh.37 is Revenue Circle Inspector, who drew map of the spot at Exh.39. P.W.9 Rajendra Eknath Wagh at Exh.57 is Executive Magistrate, who held test identification parade of accused persons. P.W. 16 Arun Rangnath Bhagwat happens to be the Head Master of the ::: Downloaded on - 09/06/2013 14:05:49 ::: (-8-) school. His evidence is recorded at Exh.97. P.W.13 Sadashiv Gangadhar Puri at Exh.91, who happens to be P.S.O. who has recorded the complaint of prosecutrix.
P.W.14 Jabbar Rahimkhan Exh.92 is the carrier of Muddemal to the Chemical Analyser. P.W.11 Pandharinath Bapurao Kedare Exh.70 and P.W.15 Vikas Govindrao Tidake Exh.93 are examined as investigating Officers in the present case.
5. The statements of the accused are recorded under Section 313 of Cr.P.C. Accused No.1 Manik Gaikwad in his statement has stated that he demanded arrears of Rs.7500/- to one Bajirao Dada Shete. On refusal at the instance of said Bajirao Dada Shete, he is implicated in the false case.
. The accused represented their case through advocate.
On the basis of the pleadings and evidence on record brought by the parties, the learned Sessions Judge formulated points for his determination. The learned Sessions Judge while dealing with the first point came to the conclusion that the prosecution proved that both the accused in furtherance of their common intention have committed gang rape on prosecutrix. It is further held by the trial court that in furtherance of their common intention both the accused kidnapped the minor girl and ::: Downloaded on - 09/06/2013 14:05:49 ::: (-9-) thereby committed offence under Section 363 r.w. 34 of I.P.C. It is further held that the accused persons, in furtherance of their common intention, have not only kidnapped the minor girl but she is also subjected to forceful sexual intercourse and thereby both the accused have further committed offence punishable under Section 366 r.w. 34 of I.P.C..C. It was further held that both the accused persons in furtherance of their common intention committed house tress pass by entering in the house of prosecutrix and thereby committed offence under Section 451 r.w. 34 of I.P.C. It was further held that in furtherance of their common intention both the accused by means of iron pipe and brick assaulted Jalindar, father of prosecutrix, and therefore, they are also held guilty for the offence punishable under Section 323 r.w.
34 of I.P.C.
. The Sessions Court finally convicted both the accused under Section 235 of Cr.P.C. for the offence punishable under Sections 376 (g) of I.P.C. and they are sentenced to suffer R.I. for 10 years and to pay fine of Rs.500/-
i/d of payment of fine, they shall suffer further R.I. for one year each. Both accused are further convicted for the offence punishable under Section 366 r.w. 34 of I.P.C. and they are sentenced to suffer R.I. for five years each and to pay fine of Rs.100/- each i/d they ::: Downloaded on - 09/06/2013 14:05:49 ::: (-10-) shall suffer R.I. for 6 months each. Both the accused are further convicted for the offence punishable under section 451 r.w. 34 of I.P.C. and they are sentenced to suffer R.I. for six months and to pay fine of Rs.100/-
each i/d they shall suffer further R.I. for six months each. Accused are further convicted u/section 323 r.w.
34 of I.P.C. and they are sentenced to suffer R.I. for six months. Both the accused are further convicted for the offence punishable under Section 506 r.w. 34 of I.P.C. and they are sentenced to suffer R.I. for six months each. All the substantive sentences are to run concurrently.
Accused No.1 Manik Mohan is entitled for set off under Section 428 of Cr.P.C. in respect of substantive sentence for undergone period of jail i.e. from 23.8.2004 to 3.12.2005. It was further directed that accused No.2 Bhausaheb Mali is also entitled for set off under section 428 of Cr.P.C. in respect of substantive sentence for undergone period in jail i.e. from 22.3.2005 to 3.12.2005. If the amount of fine is recovered from the accused, the amount of Rs.1000/- is ordered to be paid to P.W.5 prosecutrix under Section 357 of Cr.P.C. towards compensation after appeal period is over.
6. Being aggrieved by inadequacy of sentence awarded vide impugned judgment and order passed by the Sessions ::: Downloaded on - 09/06/2013 14:05:49 ::: (-11-) Court, the State Government preferred Criminal Appeal No. 219 of 2006 for enhancement of the sentence and the original accused filed Criminal Appeal No. 44 of 2007 for setting aside the finding of guilty and convicting them.
7. Learned A.P.P. Shri. N.N. Jadhav, appearing for the State has submitted that the accused persons have committed heinous crime. They are charged under Section 376(g) of I.P.C. They have committed rape on the prosecutrix, who is minor. The manner in which the entire incident took place is very serious. It is not only that the accused persons committed gang rape but they went to the house of the prosecutrix during the night time. They opened the door forcibly. They kidnapped the prosecutrix, who is minor girl. They took her away to nearby hilly area and committed rape on her.
The prosecutrix had occasion to clearly observe and see the accused persons in the light of bulb, which was subsequently broken by the accused persons. In the said incident initially, the accused persons assaulted the father of the prosecutrix, thereafter forcibly opened the door, assaulted the prosecutrix, kidnapped her and to cause disappearance of the evidence they broke the bulb.
The panchnama shows that inside house electric holder and bulb were found in broken condition. They took the ::: Downloaded on - 09/06/2013 14:05:49 ::: (-12-) prosecutrix away from the house and committed gang rape.
All these events are of very serious nature and therefore, the sentence awarded by the Sessions Court be enhanced and ultimately it was prayed that the maximum sentence should be awarded to the accused persons. In the said appeal, various grounds are taken by the appellant. In Ground No.3 it is specifically stated that the prosecutrix was minor girl under the age of 16 years.
She was forcibly taken without bothering for the protest of her father and this itself shows that the accused persons were not bothered or scared about the age of the prosecutrix.
It is further stated that Hon'ble Supreme Court in the case of Dhananjay Vs. State of West Bengal (1994) 2 SCC 220 observed that the imposition of appropriate punishment is the manner in which the courts respond to the Society's cry for justice against the criminals. It is further argued by the learned A.P.P. that in the case of Rajiv Vs. State of Rajasthan (1996) 2 SCC 175, it is observed that the court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against the individual victims but also against the society to which the criminal and victims belong. Finally, it was argued that taking entire evidence into account and the heinous crime committed by the accused persons, the maximum sentence should be awarded to the accused persons.
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8. Learned counsel appearing for the accused has submitted that the concocted and false case is filed against the accused persons. It is further submitted that the presence of P.W.6 in the courtyard of the house as stated by the prosecution is not possible. Even if the prosecution story is believed, there was no light to see the accused persons. It is further submitted that the story of prosecution is twofold. It is further submitted that if version of prosecutrix is compared with the version of Jalindar, father of prosecutrix, there is variance.
The version of Jalindar is not corroborated by spot panchanama. It is further submitted that test identification parade carried out by P.W.9 was not in accordance with the guidelines laid down in Criminal Manual.
. It was further submitted that there are material contradictions and omissions in the deposition especially of P.W.7 and 8 in respect of time of the alleged incident. It was further submitted that as per medical evidence the age of the injuries sustained by the prosecutrix, her father and appellant No.1 are different and therefore, no inference can be drawn in respect of assault on Jalindar and the presence of the accused at the scene of offence. It was further submitted that in ::: Downloaded on - 09/06/2013 14:05:49 ::: (-14-) view of the specific admission of P.W.9 and 11 that Tahsil Office, police station and prison are adjacent and in the same premises, the learned trial court has wrongly held that the identity of the appellant is proved beyond reasonable doubt without any further corroboration. It was further argued that no proper identification parade is held by P.W.9 and Tahsildar. It was submitted that the trial court failed to consider that there are material contradictions and omissions in the deposition of P.W.11, Investigation Officer and P.W.13, as the Investigating Officer says that the complainant had narrated story to him and on his dictation it was reduced in writing by P.W.14. Whereas P.W.13 says that complainant had directly narrated the story to him.
Accordingly, he had reduced it in writing. It is further submitted that there are material contradictions and omissions in respect of the injuries sustained by P.W.6, and the story of search of accused in the light of motor cycle, is not corroborated by any of other witnesses. It was further submitted that all circumstances against the accused are not put to them in their statements under Section 313 of Cr.P.C. It is submitted that mere production of document from school is not sufficient to prove the age of victim. It was submitted that the entire prosecution story is concocted, there is no concrete evidence against the accused persons. The ::: Downloaded on - 09/06/2013 14:05:49 ::: (-15-) identification parade as carried out is in violation of the provisions laid down in criminal manual and therefore, the judgment and order passed by the Sessions Court is liable to be quashed and set aside.
9. We have heard learned counsel appearing for the respective parties at length. We have perused the judgment and order passed by the Sessions Judge. We would like to deal with the first point which is about the age of the prosecutrix at the time of alleged offence. According to the learned counsel appearing for the accused the prosecution has failed to prove that the prosecutrix was minor at the relevant time.
. To ascertain the age of prosecutrix, the prosecutrix was examined by P.W.12 Ambadas Hari Sase and after ossification test he opined that the age of the prosecutrix was in between 6 to 14 years. Apart from this, the prosecution did produce the school record of the prosecutrix vide Exh.100. Copy of birth extract at Exh.98. Copy of school register which is duly proved by producing original register at the hands of P.W.16 Arun Rangnath Bhagwat, Head Master of the school. The date of birth of prosecutrix is dated 1.11.1992 and the date of offence is 22.8.2004. So on 22.8.2004 the age of the prosecutrix was of 11 years and nine months and odd days.
::: Downloaded on - 09/06/2013 14:05:49 :::(-16-) Learned counsel appearing for the accused placed reliance on the judgment of this Court in the case of Amit @ Bapu Nanasaheb Handawalkar Vs. State of Maharashtra reported in 2006 All M.R. (Cri.) 3057 and contended that entry regarding age of the person in school register is not of much evidentiary value to prove the age of the person in absence of material on which the age was recorded. We do not agree with the submission of the learned counsel for the accused/appellants. The prosecution has brought on record the evidence of P.W.12 and P.W.16 and therefore, the prosecution has convincingly proved that at the time of incident the ig prosecutrix was minor. The evidence produced by the prosecution is admissible. There is nothing in the cross examination of the witnesses to disbelieve the evidence about the age of the prosecutrix.
10. The prosecutrix is examined as P.W.5 by the prosecution. Her evidence is at Exh.41. In her examination in chief, she deposed that at the time of incident she was studying in 7th standard. Incident took place on 22.8.2004 i.e. Sunday which was holiday for the school. At about 8.30 p.m. she took dinner alongwith other sisters and brothers. She went to sleep, her parents were listening Kirtan. The parents were sitting outside the house. She further states that door of the house was closed from inside. She further deposed that ::: Downloaded on - 09/06/2013 14:05:49 ::: (-17-) somebody knocked the door from outside. She woke up and heard that somebody was asking to open the door.
However, she did not open the door. The door was opened by giving dash to the door. Two persons entered in the house. She specifically states that she saw them in the light of bulb. She further states that one of the accused broke the bulb. One person was wearing white half shirt and white pant and another person was wearing Khaki pant and black shirt. She repeated in her deposition that she saw both of them in the light of electric bulb. She further deposed that the person wearing white ig pant caught her hands and person wearing black shirt caught her legs and lifted her. They brought her out of house. They pulled her towards small hill, She tried to cry for help. Accused persons slapped her.
She further deposed that accused persons tore her clothes i.e. midi skirt and blouse. They also removed her nicker. They pulled her down to earth. The person wearing white dress first raped her. Thereafter the person wearing black shirt raped her. She further deposed that both the accused committed rape on her twice. She tried to run away from the clutches of the accused. She scratched by her nails on the person of both the rapists. She further deposed that she sustained injuries on her face and chest. She further states that her bangles were broken in the incident.
::: Downloaded on - 09/06/2013 14:05:49 :::(-18-) . She further deposed that her father and villagers came towards them. Both the rapists ran away after seeing the people. She narrated the incident to her parents. Then police jeep came. Then they went to the police station and complaint was immediately lodged in the police station. Signature was put on the complaint which is at Exh.42. She further states that she was referred for medical examination at Pathardi Rural Hospital. She further deposed that in first identification parade, she identified one of the accused. In another identification parade she identified another accused. She deposed that both the accused forcibly took her to hill and while resisting the accused, she sustained nail injuries on her face. She was compelled to fell down on the ground.
Accused persons tore her clothes, removed her nicker and committed rape. She further deposed that she is telling true version.
. In her cross examination, she deposed that she was raped by the accused persons twice. She cannot tell that why the police did not mention the said fact in the complaint. She denied the suggestion that her father was with her when she went to identification parade. She denied all the suggestions put by the defence counsel.
Her evidence in examination in chief is not shattered in ::: Downloaded on - 09/06/2013 14:05:49 ::: (-19-) any manner in the cross examination. In the cross examination suggestion was given to her that she is giving false evidence that accused broke the bulb.
However, she reiterated that she saw the accused persons in the light of bulb and thereafter accused persons broke the bulb. About the description of the accused persons, her testimony remained intact even after cross examination. Nothing could be brought out by the defence counsel in the cross examination to make the testimony of P.W.5 prosecutrix unworthy. F.I.R. was lodged by the prosecutrix immediately.
11. Deposition of P.W.6 Jalindar Shirsath, father of the prosecutrix before the court is at Exh.43. He stated in his deposition that he himself, wife Sumanbai, daughters Deepali, Laxmi, Radha and Sons Sarangdhar and Haribhau were residing in the field house together at Shirsathwadi. On 22.8.2004 he went for labour work throughout the day and came back at evening. They took their dinner in the house. Then daughter Deepali and other kids went for sleeping inside the house. He alongwith his wife were sitting in Padavi, outside the house, for listening Kirtan. He deposed that dog barked, therefore, he stood up. Some sound came from western side. One person wearing black checks shirt having pipe in his hand, came to him. He saw them in the light of ::: Downloaded on - 09/06/2013 14:05:49 ::: (-20-) bulb of his house, which was outside the house, locally called as Padavi. The thief who was having check shirt abused him in the words "Bhainchod Bajula Ho" and assaulted him with pipe on his left hand. Another thief pelted bricks towards him on his back. The person having checks shirt broke the bulb. Though he cried for help, nobody came from village as Kirtan was going on and nobody could listen his cry. His wife went to village to call villagers for help. His sons Haribhau and Sarangdhar came running towards him. They stated him that their sister, daughter of P.W.6 is taken away by thieves.
. Villagers came to his house alongwith his wife. He alongwith other villagers started searching daughter in the light of motor cycle. He saw his daughter near hilly area. He further deposed that daughter was in naked condition. Both the thieves ran away by seeing them.
Daughter narrated the incident to him. He further deposed that on the spot, clothes of the daughter, hair bangle pieces, blood stains were found. Then daughter was brought to house. Then police came. They went to police station and complaint was lodged. Daughter was taken to hospital at Pathardi. Spot was shown to the police on the second day. The police seized clothes, hair bangle pieces from the spot. He further deposed ::: Downloaded on - 09/06/2013 14:05:49 ::: (-21-) that he can identify the accused persons. He identified the accused persons before the Court. He further deposed that he correctly identified the accused persons in identification parades.
. In his cross examination nothing substantial could be brought out by the defence counsel to disbelieve the testimony of P.W.6 father and he asserted even in the cross examination that accused did commit rape on his daughter and those are the same persons to whom he has identified.
12. P.W.7 Ajinath Dnyaneshwar Shirsath, who deposed that he resides in the nearby vicinity of the house of Jalindar P.W.6. He further deposed that he went to listen the Kirtan. Sumanbai, wife of P.W.6 came running in the Kirtan crying for help. She told that thieves assaulted them. He further deposed that he alongwith other came to Jalindar's house. Jalindar narrated the incident. Then they started to search Deepali. Deepali was found in the forest land on hill at a distance of 700 to 800 meters. She was found in naked condition. He narrated other details also. In his cross examination, nothing substantial could be brought on record by the defence to disbelieve his version.
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13. P.W.8 is Medical Officer. Her deposition is at Exh.47. In her examination in chief, she deposed that on 23.8.2004 at midnight she received a letter of P.S.I. Tidake, who personally brought the said letter and prosecutrix Deepali Jalindar Shirsath. She admitted endorsement on the letter, which was shown to her during chief examination. She further deposed that the said letter is at Exh.48. She further states that she also received another letter for examination of Jalindar Shirsath. She admitted the contents of the letter as well as endorsement made by her, which is at Exh.49.
. She further deposed that as per the police statement, the prosecutrix was under age, therefore, her father's consent was taken for medical examination. She further stated that probable age of the prosecution was around 13 years. She deposed that prosecutrix gave the history that there was sexual assault on her by two persons on 22.8.2004 at around 10.30 p.m. In Medical examination she observed as follows:-
" Her height was 147 cms. Weight was 36 Kgs. She was averagely built and averagely nourished. Her all teeth were present. Her axillary and pubic hairs were sparse. Breast development was present.::: Downloaded on - 09/06/2013 14:05:49 :::
(-23-) Genitals were well developed. She was well oriented, conscious and afebrile. her blood pressure was 120/70 mm of hg. pulse 86 per minute. R/R 18 per minute. C.N.S. examination conscious, no neurological deficit. Pupils bilaterally equal reacting to light R.S. examination; clear, air entry equal on both sides. C.V.S. Examination S-1, S-2 normal, her abdomen, L-O, S-O K-O. There is tenderness over supra pubic region. Her gait was broad based, painful. Blood was trickling down up to feet, while standing. There is no evidence of venereal disease noted. Regarding her clothes; she was found naked at the place of incident as told by her and other clothes were given to her and then brought to R.H.Pathardi. Regarding history of bath;
she had taken bath in the morning on 22nd August, 2004. Regarding the history of urine and motion passed after this incident. No urine or motion passed.
. P.W.8 Dr. Manisha Hange noted the following injuries on the person of prosecutrix:-
1. On face: Abrasion- multiple linear curved red abrasion on left cheek infra-orbital area, left ::: Downloaded on - 09/06/2013 14:05:49 ::: (-24-) side nose measuring 1/2 cm x 1/4 cms.
suggestive of nail marks etc.
2. Swelling: Over forehead in centre, upper lip in centre 1x1 cms.
3. Contusion: Red in colour, right infra-orbital area 1.5 x 1/2 cms. Another contusion on lateral angle of right eye, 1x1 cms.
On neck examination she found abrasion on anterior surface of neck, which is linear, curved and red in colour of 6 cms x 1/4 cms.
On breast examination:
Right breast, multiple linear abrasions which were red, extending from areola to sternal area 5 in number, 1/2 cm, apart from each other, 2 abrasions on lateral side. On left breast there were multiple linear abrasions, red in colour extending from areola to sternal area, 7 in Nos.
Abrasions present on (1) Right shoulder and Right Scapular area 5 cms x 2 cms, (2) right forearm ::: Downloaded on - 09/06/2013 14:05:49 ::: (-25-) medially which was 3x2 cms. (3) left forearm with left elbow joint post medially, which was 2.5 x 1.5 cms. (4) multiple abrasions over back (5) there was abrasion over right knee. 5 in number each measuring 1/2 x 1/2 cms./ (6) Abrasions on left knee, 6 in number 1.2 x 1/4 cms. There was abrasion on left thigh middle 1/3rd area laterally 3 cms x 1/2 cm.
There was abrasions on right buttock, lower outer quadrant, linear, red 4 in numbers, 4 cms x 1/4 cms each.
On Genital examination she found following things:-
Monspulis structure normal. External urethral meatus; normal, hymen is teared off. There was presence of second degree perennial tear noted on left medio later all including posterior vaginal wall upto 3 cms. (b) perennial muscle (v) perennial skin upto 3 cms. Fresh bleeding present through wound.
Cervix: No injury over curvi P/V examination: done under sedation.
There was tenderness over supra pubic area present:-
Sample sent for chemical analysis are:-::: Downloaded on - 09/06/2013 14:05:49 :::
(-26-)
1. blood in plan bulb and citrate bulb.
2. vaginal swab.
3. vulvar swab
4. Pubic hair
5. Nail clippings.
. She further deposed that patient was admitted overnight at residential Hospital Pathardi. The prosecutrix perennial tear was sutured under sedation.
She was given adequate I.V. fluids and necessary antibiotic course and she had been referred to Civil Hospital, Ahmednagar on 23.8.2004 for age determination.
She further deposed all injuries mentioned in the medical certificate are caused within six hours. She further deposed that the contents of medical certificate given by her are true and correct. The said certificate bears her signature which is at Exh.50. She further deposed that according to her examination and injuries noted by the prosecutrix on the person of prosecutrix, there is evidence of recent forceful sexual intercourse. She ::: Downloaded on - 09/06/2013 14:05:49 ::: (-27-) further deposed that police only asked to examine the patient and did not ask the opinion and therefore, through oversight she did not mention her specific opinion which she has given in chief. She further deposed that the prosecutrix was referred to Civil Hospital, Ahmednagar to civil surgeon and Radiologist for determination of age. The Civil surgeon and radiologist took X-rays 3 in number and gave opinion that the age of prosecutrix Deepali was between 6 to 14 years. The said X ray plates and opinion of radiologist was placed on record during her examination in chief.
. She further deposed that on the same day she examined Jalindar P.W.6 at about 1.00 a.m. She noted the following injuries on his person.
1. Contusion over left forearm, posterior laterally upper 1/2, 6 cms x 4 cms.
2. Right arm upper 1/3rd laterally, contusion with abrasion,2 cms x 2 cms.
3. Abrasion on right scapular area linear oblique and red in colour 7 cms x 1/2 cms. There was abrasion on right infrascapular area. Linear and red, it was 7 cms x 1/2 cms.
::: Downloaded on - 09/06/2013 14:05:49 :::(-28-) Above injuries may be caused by hard and blunt object.
The above injuries were caused within 12 hours.
All injuries were simple in nature. Accordingly she issued medical certificate. The contents therein are true and correct. It bear her signature. It also bear the thumb impression of P.W.6 Jalindar which is at Exh.53.
. She further deposed that on 22.3.2005 she received police yadi with police constable Gorde to examine a patent viz.
Bhausaheb Mohan Mali. She examined the said patient. She found that his general condition was good.
His height was 5 ft, 8 inch, his weight was 55 Kgs R/R 19 per minutes, pulse 78 per minute. etc. She observed that his penis was normal. Smegma absent. In her cross examination nothing substantial was brought on record by the defence to disbelieve the evidence of P.W.8 Dr. Manisha Hange.
14. P.W.9 Rajendra Eknath Wagh, is Executive Magistrate, Tahsildar Pathardi. He deposed that on 12.9.2004 P.I. Pathardi police station gave a letter to him for holding identification parade of accused Manik Mohan Gaikwad.
Identification parade was arranged on 24.9.2004 in his cabin. His clerks collected dummies. Police brought ::: Downloaded on - 09/06/2013 14:05:50 ::: (-29-) witnesses. He kept them in separate room. He called two panchas for this identification parade. Six dummies were asked to stand in a row. Police brought Manik Mohan Gaikwad accused by concealing his face by Burkha. He asked him his name and informed him about identification parade. He further deposed that he asked accused to select his place in the row of dummies and change his clothes. The accused refused to change his clothes.
Accused preferred serial No.4 in the row of dummies and
accordingly stood in the row. He further deposed that
thereafter he called witness Deepali Jalindar in his
cabin. He asked
ig Deepali to identify the accused by
touching his person from the row. Deepali observed all
the persons and identified accused Manik within two
minutes. Deepali was then sent to another room. Then he
asked accused Manik that he can change his place in the
row and dress. Accused did not change his dress but he
changed his place and stood at serial No.7. Then he
called witness Jalindar Narayan Shirsath. He asked him
to identify the accused from the row. The witness
Jalindar identified accused Manik by touching his person
from the row. Detailed panchanama of identification
parade was drawn in presence of panchas. He put his
signature and also obtained signature of the panchas on
the panchanama. The panchanama shown to him bear his
signature and signatures of the panchas. The contents
::: Downloaded on - 09/06/2013 14:05:50 :::
(-30-)
therein are true and correct. The panchanama is at
Exh.59. Memorandum chart of identification parade of
witness Deepali is at Exh.60. The memorandum chart of
witness Jalindar of identification parade is at Exh.61.
In all 12 persons were present for holding identification parade.
. He further deposed that on 13.4.2005 he again received letter from police station for holding test identification parade, of accused Bhausaheb. The office copy of that letter was shown to him is the same. It bears the endorsement of their clerk. It is at Exh.62.
He immediately informed orally that test identification parade will be held on 17.4.2005. He arranged identification parade in his cabin. He collected dummies who are appearing similar with that of accused. He collected dummies as per the description given in the letter. He collected 6 dummies. He also collected two panchas. Police brought accused Bhausaheb Mohan Mali by concealing his face by "Burkha" in his cabin. Accused did not change his dress. He informed accused that his identification parade was going to be held there.
Accused had chosen serial No.3 in the row. The witnesses were kept in separate room. First he called witness Jalindar. He asked Jalindar to identify the accused from the standing persons in the row. Within two minutes, ::: Downloaded on - 09/06/2013 14:05:50 ::: (-31-) Jalindar identified accused by touching his person. Then Jalindar was sent to another room. He gave chance to the accused to change his dress and place in the row. The accused did not change his dress but he changed his place in the row. Accused preferred serial No.4 in the row.
He then called witness Deepali and asked her to identify the accused from the row. Deepali saw all persons standing in the row and within two minutes identified accused at Sr. No.4. He drew detailed panchanama of identification parade. The panchanama bears his signature and signature of the panchas. Memorandum chart also bears his signature and signature of panchas. The contents of the panchanama of identification parade and chart of identification parade are true and correct.
Panchanama of T.I. parade is at Exh.63 and charts of identification parade are at Exh. 64 and 65. The accused before the court is the same. The chart and panchanama bear his signature and signatures of the panchas. He further deposed that in all 12 persons were present while holding identification parade.
. In his cross examination he denied that visitors, who visit the premises of Tahsil office, could see the accused. He further denied that the accused were shown to the witnesses first in the police and he drew the panchanama in the police station. Even in his cross ::: Downloaded on - 09/06/2013 14:05:50 ::: (-32-) examination nothing was brought on record by the defence which would lead to disbelieve the evidence of P.W.9.
15. P.W.10 is Dr. Suchitra Bappasaheb Khedkar. She examined accused Manik Mohan Gaikwad. She found following injuries over the body of accused Manik Mohan Gaikwad:-
1. There were linear abrasions over left side of face as shown in the diagram and also linear abrasion over left side of the neck as shown in the diagram and right side of the neck also.
There was linear abrasion over posterior surface of left shoulder 1 cm. Linear abrasion over right side of lower back.
. She further deposed that following samples were sent for chemical analyser:-
1. Nails
2. Pubic hair
3. Semen ::: Downloaded on - 09/06/2013 14:05:50 ::: (-33-)
4. Blood in plaint and citrate
5. Pant and Banian . She identified accused Manik Mohan Gaikwad before the court. She opined that he is capable of committing sexual intercourse. The medical certificate was shown to her. She identified her signature and stated that the contents are true and correct which is at Exh.69.
. In
her cross examination she denied the suggestions
that the accused was not having injuries which are shown
in Exh.69. Nothing was brought on record by the defence counsel to disbelieve the version of P.W.10.
16. P.W.11 is the police Inspector Pandharinath Baburao Kedare. In his examination in chief he stated that on 23.8.2004 at about 23.20 hours Head Constable Puri informed him that one girl of 13 years was kidnapped and raped. He immediately came to the police station.
Prosecutrix was brought by her parents in the police station. P.S.I. Tidake also came there as he was on patrolling duty in that area. Immediately she was sent for medical examination. After medical examination she was brought back to the police station. Then complaint ::: Downloaded on - 09/06/2013 14:05:50 ::: (-34-) was lodged at Exh.42. Same is in the handwriting of head Constable Puri. He further deposed that prosecutrix signed the complaint. He further deposed that P.S.I. Tidake took the prosecutrix and her father for medical examination to Rural Hospital, Pathardi. The father of prosecutrix had also suffered injures and referred to Rural hospital Pathardi alongwith medical yadi Exh. 48 and 49. He further deposed that they blocked area for arresting the accused and started searching the accused.
He further reported that the incident took place on
22.8.2004. He further deposed that on 23.8.2004 they
visited the
forest land where the incident took place.
Father of the prosecutrix Jalindar showed the spot. He
seized 10 muddemal articles i.e. pieces of hairs, pieces
bangles, iron pipe, midi skirt having blood stains, torn
top having blood stains, one white nicker having blood
stains, some stones having blood stains, hair bow, hair
pin. He identified article Nos. 1 to 10 before the
Court and stated that those are the same articles which
were attached from the spot. He further admitted the
signature on the panchanama which is at Exh.29. He further deposed that muddemal receipt was shown to him which bears his signatures at Exh.71.
. He further deposed that on search, they arrested accused Manik Mohan Gaikwad on 23.8.2004 at 17.30 hours.
::: Downloaded on - 09/06/2013 14:05:50 :::(-35-) Arrest panchanama was drawn in presence of two panchas.
He admits the arrest panchanama shown to him. He further admits that panchanama Exh.72 contains his signature. He further deposed that accused Manik was sent to Rural Hospital Pathardi alongwith Yadi at Exh.68. He further stated that he seized sweater and underpant of accused Manik in presence of panchas under panchanama Exh.31. He further stated that Muddemal is deposited with the clerk.
The muddemal receipt shown to him is the same which bears his signature at Exh.73. He identified the clothes articles 11 and 12. He further deposed that he requested Tahsildar to draw map of the spot vide Exh.38. He further deposed that clothes of accused Bhausaheb Mohan Mali were seized during search of his house under Exh.33.
He admits signature of panch at Exh.33 as well as Exh.74.
He further deposed that he obtained police custody of accused Manik till 6.9.2004. He further states that on 2.9.2004 Muddemal was sent to Chemical Analyser Aurangabad with police constable Jabbar Pathan, buckle No.419. He further deposed that on 9.9.2004 he obtained permission of J.M.F.C. Pathardi to hold test identification parade of accused Manik Mohan Gaikwad. He identified his signature on the letter at Exh.76. He further deposed that on 12.9.2004 he requested Tahsildar Pathardi to hold identification parade. Copy of the said letter is at Exh.58. He further deposed that on ::: Downloaded on - 09/06/2013 14:05:50 ::: (-36-) 24.9.2004 test identification parade was held of accused Manik in Tahsil Office, Pathardi. A proclamation report was sent against absconding accused No.2 to J.M.F.C. Pathardi under Section 82 and 83 of Cr.P.C.. He issued letter to Superintendent of Police, Ahmednagar to declare accused Bhausaheb as absconding. He further deposed that he got knowledge that Bhausaheb was arrested in cycle theft in C.R. No. 45 of 2003 under Section 379 r.w. 34 of I.P.C. by Pune police. On 22.3.2005 he arrested accused Bhausaheb with the permission of the Court. He sought his police custody till 25.3.2005. On 31.3.2005 he requested J.M.F.C. Pathardi to grant permission to hold identification parade of accused Bhausaheb. He requested Tahsildar vide Exh.62 for holding test identification parade of accused Bhausaheb and accordingly Tahsildar held identification parade in his office of accused Bhausaheb. He further deposed that charge sheet was submitted by him against accused No.2 on 28.4.2005, as he was earlier absconding. He further deposed that he received C.A. report. He identified C.A. report at Exh.82 to 85. He identified the accused before the Court.
. In his cross examination he admitted that he has not specifically mentioned in the complaint about committing rape by the accused in the second rotation. He further ::: Downloaded on - 09/06/2013 14:05:50 ::: (-37-) deposed that by way of correction figure 23 was scored out and 22 is written in the complaint. He denied all other suggestions of the defence counsel. He denied that accused No.1 went to demand money to Bajirao Dada Shete and there was quarrel between Bajirao and accused No.1 and therefore, on the say of Bajirao he arrested accused No.1 in this crime. He denied that he has falsely deposed before the Court. Nothing substantial was brought out by the defence on record to disbelieve the evidence of P.W.11.
17. P.W.1 Dagadu is panch to the spot panchanama. In his deposition at Exh.28 he stated that spot of the incident is at a distance of 700 to 800 feet from the village. The spot is situated in the field of Jalindar Narayan Shirsath, father of the prosecutrix. He further deposed that incident of rape took place at a distance of about 800 feet towards eastern side of the house of Jalindar. He further deposed that some pieces of bangle, hairs, hair pin, nicker, blouse etc. near about 10 things were seized by the police from the spot under the panchanama. He further deposed that police drew panchnama in his presence at 7.00 a.m.to 8.30 a.m. on 23.8.2004. He further deposed that there was another panch Ajinath Mahadeo Shirsath. He admitted the contents of the panchanama. He admitted his signature on the ::: Downloaded on - 09/06/2013 14:05:50 ::: (-38-) panchanama at Exh.29. He also identified seized articles. In his cross examination his testimony remain unshattered.
18. P.W.2 Bhausaheb Shankar Shirsath is another panch witness. His deposition is at Exh.30. He deposed that on 23.8.2004 police called him at police station.
clothes of accused Manik Mohan Gaikwad were seized. One
blue colour sweater and blue colour underpant were
seized. He further deposed that one Mahadeo Kondiba was
another panch. He admitted his signature and the
contents in
panchanama at Exh.31. Nothing was brought
out in the cross examination to disbelieve the evidence
of P.W.2.
19. P.W.3 is one Mr. Sambhaji Maruti Warkad, whose
evidence is at Exh.32. In his examination in chief he
deposed that Inspector Tidake called him in the police
station on 25.8.2004. He deposed that clothes of accused Bhausaheb Mohan Mali were found in the hut which was owned by one Mohan Mali, father of accused No.2. He further deposed that one white colour shirt was having blood stains. The clothes were seized under panchanama, article Nos. 14 and 15. He identified the clothes. He also identified the contents of panchanama and his signature which is at Exh.33. In the cross examination ::: Downloaded on - 09/06/2013 14:05:50 ::: (-39-) nothing was brought out on record by the counsel for defence to disbelieve his evidence.
20. P.W.4 Jagdish Mohanrao Gade. He deposed that from 4.8.2003 he was working as Circle Revenue Officer in Pathardi taluka. He deposed that he went to Shirsathwadi and drew a map of the spot on 4.12.2004. He identified his signature and the contents of the map which is at Exh.39.
21. P.W.12 Ambadas Hari Sase is one of the witness, whose evidence is at Exh.88. He deposed that he gave his opinion about the age of the prosecutrix at Exh.32, as under:-
1. Ossification centre for head of radius appeared (6) but not fused (14)
2. Ossification centre for medical epicondyl appeared (5) but not fused (14).
Hence, Radiological age is between 6 to 14 years. The certificate bears his signature vide Exh.53. The contents are true and correct. It is in his handwriting.
::: Downloaded on - 09/06/2013 14:05:50 :::(-40-) . He was cross examined. There is nothing to disbelieve the evidence of P.W.12.
22. P.W.13 Sadashiv Gangadhar Puri, police constable whose evidence is at Exh.91. He deposed in his examination in chief that on 22.8.2004 from 8.00 a.m. to 23.8.2004 8.00 a.m. he was on P.S.O. duty. In between 10.45 p.m. to 11. p.m. he received telephonic message from Shirsathwadi. Again he received another phone call after five minutes. He received message that thieves kidnapped one girl. He informed the said fact to P.I. Kedare on phone and P.S.I. Tidake on wireless. He called policemen for police line. He then gave information on phone to control room and others. He further deposed that after half an hour P.S.I. Tidake, prosecutrix, her parents came in the police station.
Thereafter Kedare P.I. also came in the police station.
Prosecutrix Deepali Jalindar Shirsath narrated complaint to him. He reduced the same in his handwriting and obtained signature of Deepali on the complaint. He identified his signature on the complaint Exh.42. He deposed that P.I. Kedare was present when he took the complaint. He further deposed that prosecutrix was sent for medical examination. He further deposed that he registered crime No.110 of 2004 under Section 376 (g), ::: Downloaded on - 09/06/2013 14:05:50 ::: (-41-) 452,323 of I.P.C. He admitted his signature on the complaint at Exh.42. He further deposed that he registered the said complaint at 0.45 hours on 23.8.2004.
He also informed the police station of Ambhora and Ashti about the said crime.
. In his cross examination, the defence counsel could not brought anything on record to disbelieve his evidence.
23. P.W.14 is Jabbar Rahimkha Pathan, whose evidence is at Exh.92.
He is constable buckle No. 419 serving in Pathardi police station. He stated that he received 9 to 10 sealed packets from Pathardi police station alongwith letter. The letter was addressed to C.A. Aurangabad.
On 3.9.2004 he went to C.A. Aurangabad. He handed over the said letter and sealed muddemal to C.A. office and obtained receipt of clerk of that office.
24. P.W.15 is Vikas Govindrao Tidake, his evidence is at Exh.93. He deposed that on 22.8.2004 he was on patrolling duty in Government Jeep. At 10.45 p.m. Head constable Puri informed him on wireless to go to Shirsathwadi as the thieves arrived there and therefore, he proceeded to Shirsathwadi. He further deposed that again Head Constable Puri further informed him that ::: Downloaded on - 09/06/2013 14:05:50 ::: (-42-) thieves have kidnapped one girl. He went to the spot from where the girl was kidnapped. At that time villagers were already there. He made enquiry with the prosecutrix in her house, who narrated the incident. He further deposed that he took prosecutrix to the police station. Head Constable Puri recorded complaint of Deepali. He further deposed that Deepali was taken to Rural Hospital, Pathardi. He further deposed that on 25.8.2004 he called two panchas and went to Dhamangaon at the house of accused Bhausaheb Mohan Mali and took search of his house. He further deposed that father of accused Bhausaheb handed over clothes of accused i.e. white full shirt and white pant, which were changed by the accused before two days as per the say of his father. There were blood stains. He drew seizure panchanama in presence of panchas. He admitted his signature on the panchanama.
In his cross examination he denied that whatever he has stated in chief examination is not true. Nothing specially was brought on record to disbelieve the evidence of P.W.15.
25. P.W.16 Aurn Rangnath Bhagwat, who is Head Master of Zilla Parishad School, where prosecutrix was prosecuting her studies. By way of his evidence, the prosecution has proved that certificate issued by the school about age of the prosecutrix is correct as per the original school ::: Downloaded on - 09/06/2013 14:05:50 ::: (-43-) record maintained by the school.
26. On careful perusal of the deposition of P.W.5 prosecutrix, it reveals that the incident took place in a very ghastly manner. The accused persons came to the house of prosecutrix. First they assaulted the father of the prosecutrix. Injury certificate issued in respect of father of prosecutrix Jalindar by P.W.8 shows that Jalindar had sustained injuries on his person, is a clear evidence that Jalindar was assaulted by accused persons.
Accused persons forcibly opened the door of the house.
27. In the light of bulb, the prosecutrix clearly saw the accused persons. Not only this, she has correctly described those persons while narrating the complaint.
She categorically in her deposition has narrated the incident. She had given minute details in the complaint as well as in her deposition. She narrated about the colour of the clothes, which were wore by the accused persons. She narrated about the face cut and complexion of the accused persons. She further narrated about the role played by each of the accused i.e. who caught hold her hands and who caught hold her legs. She further narrated that when she resisted the accused they slapped her. She further deposed that she saw the accused persons in the light of bulb and after that one of the ::: Downloaded on - 09/06/2013 14:05:50 ::: (-44-) accused broke that bulb. She categorically stated in her deposition that after that the person wearing white pant caught her hands and person wearing black shirt caught hold her legs and lifted her and brought her out of the house. When she was trying to cry and tried to shout for help, she was slapped by the accused persons. She was forcibly taken to hill side. In her statement she further deposed that accused persons first tore her clothes i.e. midi skirt and blouse and then accused persons removed her nicker. Accused persons raped her twice. She has given minute details who has raped first and who has raped afterwards. She further deposed that while resisting accused persons, she sustained injuries on her face and chest etc.
28. The incident took place in the field of father of prosecutrix. It has come in the deposition of panch witness that spot of incident is at a distance of 700 to 800 feet from the house of P.W.6. The prosecutrix has categorically narrated the story about the incident starting from opening of the door by the accused persons, their entry in the house, role played by the accused in catching legs and hands of the prosecutrix, her careful observations of the accused persons in the bulb light, one of the accused broke the bulb. Accused persons dragged her out from the house when she was crying and ::: Downloaded on - 09/06/2013 14:05:50 ::: (-45-) tried to shout for help, the accused persons slapped her.
They dragged her near hill. After they removed her clothes committed rape one after another. While resisting the accused persons, she sustained injuries on her chest and face. She narrated the complete story in detail. Her complete concentration was there and in that state of mind with full concentration she saw the accused persons in the light of bulb inside the house. She has categorically in her deposition stated that after she carefully saw the accused persons one of the accused broke the bulb. She also had more opportunity to watch their faces and from very close distance, when they raped her.
. In her deposition she further deposed that when accused persons saw that some persons were proceeding towards the spot, they ran away from the spot. The father of prosecutrix alongwith other villagers alongwith P.W.7 went to the spot. The prosecutrix narrated them incident in minute detail. The incident took place at about 10.30 p.m. Immediately after the villagers proceeded to the spot of incident because the mother of the victim ran away to the village when the accused persons assaulted Jalindar before they entered in the house and on her call, villagers came there and then father Jalindar, who was assaulted by accused, in the ::: Downloaded on - 09/06/2013 14:05:50 ::: (-46-) torch light and head lamp of motor cycle, proceeded towards the spot of the incident. By that time, accused persons ran away.
29. Narration of the prosecutrix about incident was immediate without lapse of any time. By that time, the police persons who were on patrolling also arrived there.
Immediately the prosecutrix alongwith father accompanied
by one police person, who was on patrolling went to the
police station and complaint came to be lodged. If the
time of the complaint is taken into consideration, which
was at
0.45 hours on 23.8.2004, it means the incident
took place at about 10.30 p.m. on 22.8.2003 and within
two hours the prosecutrix narrated about incident in
minute details. This is the case where the complaint was
lodged so promptly and there was no breathing time even
to think that the prosecutrix can add something in her
version. If narration of the prosecutrix as taken in the
complaint as well as in the deposition before the Court,
it clearly reveals that the incident certainly took
place. She saw accused persons in the light of bulb.
. Immediately after complaint was lodged, prosecutrix
was referred to the medical Officer. Medical Officer has
examined her and clearly opined that rape was committed
on her. The father of prosecutrix was also examined by
::: Downloaded on - 09/06/2013 14:05:50 :::
(-47-)
Doctor after her examination. P.W.8 in her deposition
has stated that Jalindar also sustained injuries and to
that effect she issued certificate. There is
overwhelming medical evidence about the prosecutrix.
. So far as the age of the prosecutrix is concerned, in deposition of P.W.8 she has stated that her age is about 13 years. The age of the prosecutrix has been proved by the prosecution through P.W.12 and P.W.16. P.W.12 in his examination has stated that on ossification test her age was in between 6 to 14 years. P.W.16 is the Head Master of the school, who produced evidence in respect of date of birth of prosecutrix, maintained by the school. So far as the incident of rape is concerned, the prosecution has proved the same beyond any doubt.
30. If the sequence of the events is taken into consideration, that incident took place at 10.30 p.m., immediately villagers alongwith father of the victim reached to the spot then police persons on patrolling also reached to the spot. Police persons took prosecutrix alongwith her father to the police station.
After going to the police station she narrated complaint immediately. All these events took place within 2/3 hours including medical examination of prosecutrix as well as P.W.6 father of the prosecutrix. From all these ::: Downloaded on - 09/06/2013 14:05:50 ::: (-48-) events inference can be drawn that prosecution story is absolutely correct. There was no room of doubt. Noting has been brought by the defence on record to disbelieve all these events.
31. P.W.8 Dr. Manisha Narayan Hange has immediately after the incident examined prosecutrix. In her elaborate evidence, she has opined that injuries found on face of the prosecutrix. She has also noted swelling and contusions on rest of the body of prosecutrix. She has also examined genitals of the prosecutrix and found that hymen was traced ig off. There was presence of second degree perennial tear noted on left media laterally including posterior vaginal wall upto 3 cms (b) perennial muscle (c) perennial skin upto 3 cms. Fresh bleeding present through wound. There was tenderness over supra pubic area present. In her opinion, there was recent forceful sexual intercourse on the person of prosecutrix.
Accordingly, she issued medical certificate of prosecutrix vide Exh.50. In the cross examination of Dr. Manisha she has explained that bleeding was due to fresh cut wound and not due to menstrual period. Thus evidence of P.W.8 Dr. Manisha has proved sexual assault on prosecutrix.
. Already in the foregoing paras the details in respect ::: Downloaded on - 09/06/2013 14:05:50 ::: (-49-) of examination in chief of P.W.8 Dr. Manisha has been discussed. In cross examination nothing is brought on record to disbelieve the evidence of P.W.8 Dr. Manisha.
P.W.8 Dr. Manisha had also an occasion to examine accused Bhausaheb on 22.3.2005. In her evidence on clinical examination of accused Bhausaheb, she stated that patient is potent. The said medical certificate is at Exh.55.
. Her evidence also disclosed that the father of prosecutrix Jalindar P.W.6 had also sustained injuries.
He was also examined by her immediately after prosecutrix was medically examined.
32. P.W.10 Dr. Suchitra examined accused Manik Mohan Gaikwad on 23.8.2004 immediately after lapse of one day from the date of incident. On examination she found injuries on the person of the accused. She saw there was linear abrasions over left side of face and so also linear abrasion over left side of the neck and on the right side of the neck. There was linear abrasion over posterior surface of left shoulder and linear abrasions over right side of lower back. According to evidence of Dr. Suchitra, all injuries were within 24 hours and they were possible by hard and blunt object with light sharp edge. These injuries, are possible by nails when person ::: Downloaded on - 09/06/2013 14:05:50 ::: (-50-) is sexually assaulted. Dr. Suchitra also collected samples and sent for chemical analysis. According to her, accused Manik Mohan was capable to commit sexual intercourse. Accordingly, she issued medical certificate which is at Exh.69. The suggestions put that the injuries can be possible by fall is denied. The evidence of P.W.10 is convincing and proved beyond reasonable doubt that the prosecutrix was raped and accused are potent to commit the offence of rape.
33. Evidence of P.W.1 Dagadu Ghuge has proved spot panchanama at Exh.29.
ig Same is not shattered in the cross
examination. All articles which were mentioned in
panchanama were identified by P.W.1 before the Court.
Those articles were also identified by the prosecutrix in her oral evidence. The prosecution has duly proved spot panchanama. Finding those articles in detail itself indicates that the prosecutrix was sexually assaulted in that area during night time.
. P.W.2 Bhausaheb Shirsath is another panch, who has proved seizure of clothes of accused Manik Mohan under panchanama Exh.31. Evidence of P.W.3 Sambhaji Gaikwad has proved seizure of clothes of accused Bhausaheb from his hut, where his father was present. The said panchanama is at Exh.33. Nothing is brought on record by ::: Downloaded on - 09/06/2013 14:05:50 ::: (-51-) way of cross examination by the appellants to disbelieve the evidence of P.Ws.2 and 3. The evidence of both the witnesses is quite convincing.
. Evidence of P.W.7 Ajinath Dnyandeo is also additional chain to the prosecution story. He went alongwith the mother of prosecutrix to the spot alongwith other persons from village and they went in search of the prosecutrix to that extent there is nothing to doubt his testimony.
34. Before we proceed to discuss about identification of the accused igpersons and manner in which the identification parade was conducted by the prosecution, we would like to refer certain observations of the Supreme Court in respect of importance of conducting test identification parade. The Hon'ble Supreme Court in case of Mahabir Vs. State of Delhi reported in AIR 2008 SC 2343 has held that the test identification parade do not constitute substantive evidence and identification can only be used as corroborative of statement in Court. The main object of holding identification parade during investigation stage is to test memory of witnesses based upon first impression and also to enable prosecution to decide whether all or any of them could be cited as eye witnesses of crime.
::: Downloaded on - 09/06/2013 14:05:50 :::(-52-) . Test identification parade should be conducted as soon as possible after arrest of accused to eliminate possibility of accused being shown to witnesses prior to parade. The purpose of holding test identification parade is to test and strengthen trustworthiness of the evidence. It is considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court. Test identification parade belongs to stage of investigation there is no provision in Cr.P.C. which obliges investigating agency to hold or confers a right upon accused to claim test identification parade.
It is further held that the test identification parade are essentially governed by Section 162 of Cr.P.C.
Failure to hold same would not make inadmissible evidence of identification in Court. It is further held that test identification parade in appropriate case, may accept the evidence of identification even without insisting on corroboration.
35. We have to proceed keeping in mind that identification parade is the stage of investigation and there is no provision in Cr.P.C. which obliges investigating agency to hold or confers a right upon accused to claim test identification parade. Further in appropriate cases, court may accept the evidence of identification even without insisting of corroboration.
::: Downloaded on - 09/06/2013 14:05:50 :::(-53-) We have to bear in mind that failure to hold test identification would not make inadmissible evidence of identification in Court.
36. P.W. 11 Police Inspector who investigated the case in his examination in chief stated that, on search, accused Manik Mohan Gaikwad was arrested on 23.8.2004 at 17.30 p.m. hours. Arrest panchanama was drawn in presence of two panchas. He admitted his signature and contents of panchanama before the Court at Exh.72. He further deposed that he sent accused Manik to Rural Hospital Pathardi ig for medical examination. He further deposed that he seized sweater and under pant of accused Manik under panchanama at Exh.31 in presence of panchas.
He further deposed that clothes of accused Manik Mohan Mali were seized during search of his house under panchanama Exh.33.
. He further deposed that he obtained police custody of accused Manik till 6.9.2004. On 2.9.2004 muddemal was sent to Chemical Analyses at Aurangabad with police constable Jabbar Pathan.
. On 9.9.2004 he obtained permission of J.M.F.C. Pathardi to hold identification parade of accused Manik.
He admitted that the copy of letter shown to him was ::: Downloaded on - 09/06/2013 14:05:50 ::: (-54-) signed by him at Exh.76. On 12.9.2004 he requested Tahsildar Pathardi to hold identification parade. That letter is at Exh.58. On 24.9.2004 identification parade of accused manik was held in Tahsil Officer, Pathardi.
. Proclamation report was sent against absconding accused No.2 by J.M.F.C. Pathardi under Sections 82 and 83 of Cr.P.C. Letter was issued to Superintendent of Police, Ahmednagar to declare accused Bhausaheb as absconding. The said letter is at Exh.77. Copy of the said letter was also sent to the police station Ashti and Ambhora.
The said letters are Exh.78.
. He further deposed that he got knowledge about whereabouts of the absconding accused Bhausaheb, who was arrested in cycle theft case in Crime No. 45 of 2003 under Section 379 r.w. 34 of I.P.C. by Pune police. He requested J.M.F.C. Pathardi to transfer the said accused to this case. Office copy of that letter is admitted by him. He also admitted signature on the said letter which is at Exh.79. He further deposed that on 22.3.2005 he arrested accused Bhausaheb with permission of the Court in presence of Panchas. Accused was sent for medical examination. His police custody was sought till 28.3.2005. On 31.3.2005, he requested J.M.F.C. Pathardi to grant permission to hold identification parade of ::: Downloaded on - 09/06/2013 14:05:50 ::: (-55-) accused Bhausaheb. The said letter by which permission was sought is at Exh.81. He admitted the contents and signature of the said letter. Vide Exh.62 he requested Tahsildar for holding identification parade of accused Bhausaheb and accordingly Tahsildar held identification parade of accused in his office. He further deposed that charge sheet was submitted against accused No.2 on 28.4.2005.
. In cross examination suggestion was put to him that he is giving false evidence, he arrested accused No.1 on 23.8.2004 under panchanama. He denied said suggestion.
He further denied suggestion that Manik was not sent for medical examination. He denied all suggestions. There is nothing in the cross examination of P.W.11 to disbelieve his evidence. He further deposed that identification of accused No.2 Bhausaheb was held on 13.4.2005.
37. We have carefully perused the examination in chief of investigation officer. He has taken timely action in the matter. Accused No.1 Manik was arrested immediately on 23.8.2004. His identification parade was conducted by Executive Magistrate, Tahsildar on 24.9.2004. In his examination in chief he has deposed all events from the date of arrest of the accused till identification parade ::: Downloaded on - 09/06/2013 14:05:50 ::: (-56-) was conducted. In the said identification parade P.W.5 and P.W.6 identified accused No.1 i.e. Manik Mohan Gaikwad. If examination in chief of P.W.11 is perused carefully, in our considered opinion, there is no delay in holding the identification parade of accused No.1.
38. In case of accused No.2 Bhausaheb it is stated by P.W.11 that since he was absconding, he issued letter to Superintendent of Police, Ahmednagar to declare accused Bhausaheb as absconding, which is at Exh.77. He further deposed that absconding accused Bhausaheb was arrested in cycle theft and he got knowledge about the same immediately. He requested J.M.F.C. Pathardi for custody of the said accused. Copy of that letter is at Exh.79 has been duly proved. The absconding accused No.2 Bhausaheb was arrested on 22.3.2005. In his examination in chief he stated in detail about the events took place from his arrest till identification parade of accused No.2 by the Executive Magistrate, which was held on 13.4.2005. Therefore, though the incident took place on 22.8.2004 and the identification parade of accused No.2 was conducted on 13.4.2005, it cannot be said that there was delay. In view of the observations of the Supreme Court in the case Mahabir (supra), identification parade should be conducted as son as possible after arrest of the accused. Therefore, there is no substance in the ::: Downloaded on - 09/06/2013 14:05:50 ::: (-57-) contention of the advocate for the appellants/accused that there was delay in holding test identification parade.
39. P.W.9 is the Executive Magistrate who conducted identification parade of accused persons. In his deposition before the Court at Exh.57 he has stated that on 12.9.2004 P.I. Pathardi gave a letter to him for holding test identification parade of accused Manik Mohan Gaikwad. He further deposed that he arranged identification parade on 24.9.2004 in his cabin. His clerks collected dummies. Police brought witnesses. He kept them in separate room. He called two panchas for identification parade. Six dummies were asked to stand in a row. Police brought Manik Mohan Gaikwad accused by concealing his face by Burkha. He asked him his name and informed him about identification parade. He further deposed that he asked accused to select his place in the row of dummies and change his clothes. The accused refused to change his clothes. Accused preferred serial No.4 in the row of dummies and accordingly stood in the row. He further deposed that thereafter he called witness Deepali Jalindar in his cabin. He asked Deepali to identify the accused by touching his person from the row. Deepali observed all the persons and identified accused Manik within two minutes. Deepali was then sent ::: Downloaded on - 09/06/2013 14:05:50 ::: (-58-) to another room. Then he asked accused Manik that he can change his place in the row and dress. Accused did not change his dress but he changed his place and stood at serial No.7. Then he called witness Jalindar Narayan Shirsath. He asked him to identify the accused from the row. Witness Jalindar identified accused Manik by touching his person from the row. Detailed panchanama of identification parade was drawn, in presence of panchas.
He put his signature and also obtained signature of the panchas on panchanama. The panchanama shown to him which bear his signature and signatures of the panchas. The contents therein are true and correct. The panchanama is at Exh.59. Memorandum chart of identification parade of witness Deepali is at Exh.60. The memorandum chart of witness Jalindar of identification parade is at Exh.61.
In all 12 persons were present for holding identification parade.
. He further deposed that on 13.4.2005 he again received letter from police station for holding test identification parade, of accused Bhausaheb. The office copy of that letter was shown to him is the same. It bears endorsement of their clerk. It is at Exh.62. He immediately informed orally that test identification parade will be held on 17.4.2005. He arranged identification parade in his cabin. He collected dummies ::: Downloaded on - 09/06/2013 14:05:50 ::: (-59-) who are appearing similar to that of accused. He collected dummies as per the description given in the letter. He collected 6 dummies. He also collected two panchas. Police brought accused Bhausaheb Mohan Mali by concealing his face by "Burkha" in his cabin. Accused did not change his dress. He informed accused that his identification parade was going to be held there.
Accused had chosen serial No.3 in row. The witnesses were kept in separate room. First he called witness Jalinder. He asked Jalinder to identify the accused from the standing persons in the row. Jalinder identified accused by touching his person. Then Jalindar was sent to another room. He gave chance to the accused to change his dress and place in the row. The accused did not change his dress but he changed his place in the row.
Accused preferred serial No.4 in the row. He then called witness Deepali and asked her to identify the accused from the row. Deepali saw all persons standing in the row and identified accused at Sr. No.4. He drew detailed panchanama of identification parade. The panchanama bear his signature and signature of the panchas. Memorandum chart also bear his signature and signature of panchas. The contents of the panchanama of identification parade and chart of identification parade are true and correct. Panchanama of T.I. parade is at Exh.63 and chart of identification parade are at Exh. 64 ::: Downloaded on - 09/06/2013 14:05:50 ::: (-60-) and 65. The accused before the court is the same. The chart and panchanama bear his signature and signatures of the panchas. He further deposed that in all 12 persons, as dummies were present while holding identification parade.
. In his cross examination he denied that accused can be seen by somebody who visited the premises of Tahsil Office though police station and jail are situated in the same campus of Tahsil Office. In cors examination he denied the suggestion that he is giving false evidence.
All suggestions put by the defence counsel are denied by P.W.9. There is nothing brought on record by the defence to disbelieve his evidence. His evidence is very convincing. He conducted the test identification parade after following proper procedure. There was no opportunity for the witnesses to see the accused persons before identification parade. His deposition in examination in chief has not shattered by any way in cross examination. He clearly stated that P.W.5 and P.W.6 prosecutrix and father Jalindar respectively identified accused persons in the test identification parade. Test identification parade was carried out properly after following proper procedure. There was no opportunity to witnesses to see accused persons before they were put to identification parade. If the evidence ::: Downloaded on - 09/06/2013 14:05:50 ::: (-61-) of P.W.9 is taken into consideration there is no doubt that he has conducted identification period properly after following due procedure, therefore, the contention of the appellants-accused that identification was not properly carried out as per the procedure is required to be rejected.
. We hold that there was proper identification of the accused persons by the victim who was near about 12 years old. She could not have forgotten face of accused persons who committed ghastly crime upon her. It can safely be said ig that identity of the accused is amply established by her evidence. Even P.W.6 father of prosecutrix has identified both the accused in identification parade. Evidence of P.W.9 Executive Magistrate/Tahsildar is not shattered in his cross examination.
40. In this case Chemical Analyser report is material.
C.A. reports are Exh. 82 to 85. P.W.14 was examined to establish that articles were properly sealed and same were sent to chemical analyzer. P.W.14 in his deposition stated that Exh.92 on 2.9.2004 he received sealed packet from Pathardi police station alongwith a letter addressed to Chemical Analyzer, Aurangabad and he handed over letter Exh.75 and obtained receipt from C.A. office.
::: Downloaded on - 09/06/2013 14:05:50 :::(-62-) . Evidence of P.W.8 Dr. Manisha and P.W.10 Dr. Suchitra prove that they collected usual samples as required to be taken. C.A. report Exh 82 to 85 are received by P.W.11. C.A. report Exh.82 is given about Muddemal articles which are 13 in numbers. They are sweater, nicker, pieces of glass bangles, torn skirt, cut ladies shirt, jangya, full pant.
. All these articles are having blood stains. Out of
them Exh. 4,5, 6 and 8 i.e. torn skirt, cut ladies
shirt, jangya
and stones are stained with blood group
"A". "A' blood group is of prosecutrix. Exh.84, full
pant of accused Manik Mohan was having blood stains of
blood group "A' which is blood group of prosecutrix,
while blood group of accused Manik was "B". Thus, on the
pant of accused Manik Mohan blood stains of blood of
prosecutrix were found. This is also clinching piece of
evidence against accused Manik. There is no explanation
offered by accused Manik Mohan how these blood stains of
"A" blood group were found on his pant.
41. Another accused Bhausaheb Mohan was specifically
identified by prosecutrix and P.W.6 Jalindar. It has
further came in the evidence of P.W.11 that clothes of
accused Bhausaheb were seized during search of his house
::: Downloaded on - 09/06/2013 14:05:50 :::
(-63-)
under panchanama Exh.32. P.W.3 was witness to the said
panchanama. Blood stained pant and shirt were seized
from the house of accused Bhausaheb. C.A. report at
Exh.82 shows that full pant wrapped in paper labelled E/2 which was recovered from the house of accused Bhausaheb was sent to Chemical Analyser. Chemical Analyser's report shows that Exh.13 has few blood stains ranging from 0.1 cm x 2.00 cm. diameters of both pockets.
42. The contention of the advocate for the appellants that in respect of C.A. report no question was put to accused persons, ig is required to be rejected because question No. 63 was put to accused No.1 Manik that P.W.11 Pandharinath further deposed that Muddemal was sent to Chemical analyser's report. C.A. report are at Exh. 82 to 85, what you have to say? So far as accused No.2 Bhausaheb is concerned, question No. 57 was put to him while recording his statement under Section 313 of Cr.P.C. that P.W.11 further deposed that the clothes of Bhausaheb were also seized during panchanama Exh.33, what you have to say?
43. The defence of accused No.2 Bhausaheb under 313 was that there is enmity between him and accused No.1 and therefore, accused No.1 falsely involved him in the present case. Learned Sessions Court has recorded that ::: Downloaded on - 09/06/2013 14:05:50 ::: (-64-) both accused have engaged same lawyer and that itself is indicative that such defence of the accused No.2 that there was enmity between accused Nos. 1 and 2 required to be rejected.
44. The prosecution has established that the accused persons took the prosecutrix from her house. Accused persons were seen by the prosecutrix in bulb light. When the incident took place at that time the prosecutrix was minor. Accused persons first assaulted the father of the victim. She was taken forcibly without her consent and therefore, the Sessions Court has rightly held that offence of kidnapping of lawful guardianship has taken place which is punishable under section 363 r.w. 34 of I.P.C.
. Accused persons not only kidnapped the minor girl but subjected to forcible sexual intercourse and further committed offence punishable under Section 376(g) r.w.
34 of I.P.C.
45. P.W.6 father of the prosecutrix was also assaulted by the accused persons. P.W.8 Dr. Manisha in her evidence has deposed about medical examination of Jalindar. Medical certificate at Exh.54 is duly proved by the prosecution. Thus, offence of voluntarily causing ::: Downloaded on - 09/06/2013 14:05:50 ::: (-65-) hurt is proved against both the accused. In the present case F.I.R. is promptly lodged. Medical examination was also conducted immediately with few hours from the incident.
46. In rape cases mere statement of prosecutrix, if it is 100% trustworthy, is sufficient to convict the accused. In the case in hand, accused persons committed gang rape on minor girl below 12 years of age in ghastly manner. P.W.5 prosecutrix in her deposition narrated the incident in detail. She has given description of the accused persons ig in detail. She has also given role played by each of the accused while taking her out from house. She has clearly stated that she saw both the accused persons in the light of bulb. The entire incident is unforgettable for the prosecutrix. Her statement in examination in chief is not shattered in any way in cross. According to us, said statement is fully trustworthy. Her version is corroborated by medical evidence in material particulars by way of evidence of P.W.8 Dr. Manisha. Evidence of P.W.11 Investigation Officer is also convincing.
. Identification of the accused in test identification parade has been proved through evidence of P.W.9. The prosecutrix has identified both the accused persons in ::: Downloaded on - 09/06/2013 14:05:50 ::: (-66-) identification parade. As we have already discussed in earlier paragraph that test identification parade does not constitute substantive evidence and identification can only be used as corroborative of statement in Court.
The main object of holding identification parade during investigation stage is to test memory of witnesses based upon first impression and also to enable prosecution to decide whether all or any of them could be cited as eye witnesses of crime. Test identification parade should be conducted as soon as possible after arrest of accused to eliminate possibility of accused being shown to witnesses prior to parade. The purpose of holding test identification parade is to test and strengthen trustworthiness of the evidence. It is considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court. Test identification parade belongs to stage of investigation there is no provision in Cr.P.C. which obliges investigating agency to hold or confers a right upon accused to claim test identification parade.
. Test identification parade are essentially governed by Section 162 of Cr.P.C. Failure to hold same would not make inadmissible evidence of identification in Court.
The test identification parade in appropriate case, may accept the evidence of identification even without ::: Downloaded on - 09/06/2013 14:05:50 ::: (-67-) insisting on corroboration.
. Therefore, we have no hesitation to hold that there is no provision in Cr.P.C. which obliges investigation agency to hold identification parade. On the strength of evidence of P.W.11 and P.W.9 we hold that P.W.9 has properly carried out identification parade as per procedure. There is nothing brought on record by the defence to disbelieve the evidence of P.W.9. His evidence is not in any way shattered in the cross examination. P.W.11 Investigating Officer has categorically stated about arrest of accused persons.
His request to the Magistrate to put accused for identification, his letter to the executive Magistrate for conducting test identification parade and accordingly test identification parade was conducted by P.W.9. What is relevant is to conduct the identification parade after arrest of accused as soon as it is possible.
47. In case of accused No.2 he was arrested on 22.3.2005. Immediately, P.W.11 Investigating Officer has taken steps to carry out identification parade. In serious crime like the case in hands, offence of gang rape is committed by the accused persons on minor girl and when there is convincing evidence of the medical Officer, Investigating Officer, Executive Magistrate and ::: Downloaded on - 09/06/2013 14:05:50 ::: (-68-) all other panchas, who are witnesses to the panchanama.
We have no hesitation to hold that incident took place and accused persons were involved, who first assaulted the prosecutrix. Prosecutrix saw them in the light of bulb and thereafter she was taken out of the house to forest near hill and rape was committed on her by both the accused persons. Medical evidence corroborates the version of prosecutrix.
48. There is additional link connecting accused persons to the incident is that of C.A. report about accused No.1, it does indicate that blood stains were detected on his clothes having blood group "A" which is blood group of prosecutrix. In case of accused No.2 the clothes which were recovered from his house immediately within two days from the date of incident, the C.A. report indicates that blood stains on the pant of accused are human.
. In our considered view, the prosecution has proved its case beyond reasonable doubt.
49. In addition to the above evidence, evidence of P.W.6 is also on record, who is father of prosecutrix. P.W.8 who medically examined P.W.6 and has given certificate that Jalindar sustained simple injuries. It cannot be ::: Downloaded on - 09/06/2013 14:05:50 ::: (-69-) forgotten that the incident took place at around 10.30 p.m., F.I.R. lodged immediately and thereafter medical examination was carried out immediately. All these things happened within 2/3 hours from the incident.
50. Criminal Appeal No.219 of 2006 is filed by the the State of Maharashtra for enhancement of sentence of the accused persons in the said case. The Sessions Court has convicted the accused persons under Section 235 of Cr.P.C. for the offence punishable under Section 376 (g) of the I.P.C.
and they were directed to suffer R.I. for 10 years and to pay fine of Rs.500/- each. They are also convicted and sentenced for offences under other Sections. However, the trial court has directed that all substantive sentences to run concurrently.
51. Learned A.P.P. has submitted that the offence committed by accused persons is very serious. They have committed the same in ghastly manner. A minor girl was raped by the accused persons. Therefore, taking into consideration the entire evidence which is brought by the prosecution on record, the trial court ought to have awarded maximum sentence to the accused.
52. The trail court has considered the seriousness of ::: Downloaded on - 09/06/2013 14:05:50 ::: (-70-) crime and considering that the parents of accused No.1 are old one, his father is handicapped. Similarly parents of accused No.2 are also old aged, he is also having large family like that of accused No.1, came to the correct conclusion and passed appropriate order convicting the accused persons. In our opinion, the trial court has properly considered this aspect and we do not see any reason to enhance the sentence awarded by the trial court.
53. In the result, the impugned judgment and order passed by the III Ad-hoc Additional Sessions Judge, Ahmednagar dated 3.12.2005 in Sessions Case No. 202 of 2004 is confirmed. Criminal Appeal Nos. 219 of 2006 filed by the State of Maharashtra and Criminal Appeal No. 44 of 2007 filed by the accused persons are dismissed.
54. Certified copy of this judgment be furnished to the accused persons through concerned prison authorities free of costs.
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