Bombay High Court
Dyaneshwar Nathaji Dane vs The State Of Mah on 23 March, 2018
Author: T.V. Nalawade
Bench: T.V. Nalawade
Cri.Appeal No.704/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.704 OF 2002
1. Rameshwar s/o Dhondiba Kuber
Age 25 years, Occu. Agri.,
R/o Apatgaon, Taluka and
District Aurangabad
2. Kanhu s/o Vishwanath Kuber,
Age 30 years, Occu. And
R/o as above. ... APPELLANTS
(Original Accused No.2 & 3)
VERSUS
1. The State of Maharashtra
through the Public Prosecutor,
High Court, Aurangabad
2. Vinod s/o Tatyarao Argle Appeal abated against
Age 23 years, Occu. Driver Respondent No.2 as
R/o Apatgaon, Tq. Aurangabad per order dt.2.12.2009
District Aurangabad
3. Dyaneshwar s/o Nathaji Dane,
Age 25 years, Occu. Agri.,
R/o as above. ... RESPONDENTS
(Original Accused No.4)
.....
Shri A.K. Bhosale, Advocate for appellants
Mrs. D.S. Jape Ansingkar, A.P.P. for respondent No.1/ State
.....
WITH
CRIMINAL APPEAL NO.707 OF 2002
Dyaneshwar s/o Nathaji Dane
Age 26 years, Occu. Agri.,
R/o Bhalgaon, Taluka and
District Aurangabad ... APPELLANT
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Cri.Appeal No.704/2002
2
(Original Accused No.4)
VERSUS
The State of Maharashtra
through Police Station, Chikalthana,
(Copy to be served on
Assistant Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENTS
.....
Shri Pradeep Deshmukh, Advocate for appellants
Mrs. D.S. Jape Ansingkar, A.P.P. for respondent No.1/ State
.....
CORAM: SUNIL K. KOTWAL, J.
Date of reserving judgment : 13th March, 2018.
Date of pronouncing judgment : 26th March, 2018.
JUDGMENT :
1. Vires of the judgment and order of conviction for the offence punishable under Section 376 read with Sections 109, 323, 504, 506 read with Section 34 of the Indian Penal Code, is challenged by original accused No.2, 3 and 4, by filing this appeal, against the said judgment passed in Sessions Case No.291/2001, by II Additional Ad-hoc Sessions Judge, Aurangabad, dated 30.11.2012. The respondent No.1 is State of Maharashtra. Respondents No.2 and 3 in Criminal Appeal no.704/2002 are original accused No.1 and 4 respectively.
2. Shorn of unnecessary details, prosecution case in brief is that, on 13.9.2001, at about 8.30 p.m., when prosecutrix (P.W.1) and ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 3 her husband Jija Waghmare (P.W.2) were returning from Apatgaon to their residence at Mukundwadi, Aurangabad, and when they were at the distance of one furlong from Bhalgaon Phata, accused No.1 to 4 came from behind and accused No.2 to 4 assaulted Jija Waghmare (P.W.2) by fists and slaps and made him to sit quitely on the road. Accused No.1 dragged the prosecutrix in the field by the side of the road and forcibly made her to fall on the ground and raped her. In the meantime, Jija Waghmare (P.W.2) managed to escape from the clutches of accused No.2 to 4 and rushed to S.T.D. Booth near Videocon Factory and on telephone, informed Police Station, Chikalthana about the occurrence. P.S.I. Shamsundar Chaudhari (P.W.8), who was present at Police Station, Chikalthana, after knowing this occurrence, immediately rushed towards Bhalgaon Phata along with other police staff. Near Bhalgaon Phata, P.S.I. Chaudhari (P.W.8) met to Jija Waghmare, who took the police staff towards the spot of the incident. By that time, the prosecutrix (P.W.1) also reached on the road and she informed the P.S.I. Chaudhari about the details of the occurrence.
3. Immediately P.S.I. Chaudhari (P.W.8) started hunt for the above said culprits and apprehended accused No.1 to 4 from behind one Dhaba. The victim, her husband and apprehended accused No.1 to 4 were brought to Police Station, Chikalthana. Victim (P.W.1) lodged F.I.R. (Exh.11) against the accused No.1 to 4. In the result, ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 4 Crime No.94/2001 came to be registered against the accused persons for the offences punishable under Sections 376, 323, 504, 506 read with Section 34 of the Indian Penal Code and under Section 3(1)(xi)
(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Atrocities Act for short).
4. The prosecutrix was referred to Government Medical College & Hospital, Aurangabad for medical examination. Dr. Sundarpalsingh (P.W.6) examined the prosecutrix and issued certificate (Exh.20). Even accused No.1 to 4 were referred to Primary Health Centre, Karmad for medical examination and Dr. Manohar Wakle (P.W.9) examined them and issued certificate (Exh.24). Part of the investigation was carried out by P.S.I. Chaudhari (P.W.8) and S.D.P.O. Hirasing Jadhav (P.W.10). During the course of investigation, the investigating officer (P.W.10) prepared spot panchanama (Exh.17), seized clothes of the prosecutrix under seizure memo (Exh.27) and clothes of accused No.1 under seizure memo (Exh.28). The seized muddemal was referred to Chemical Analyser, Aurangabad for medical examination. After completion of investigation, charge sheet was submitted against accused N.1 to 4 in the Court of Judicial Magistrate, First Class, Aurangabad.
5. Offence punishable under Section 376 of the Indian Penal Code being exclusively triable by Court of Sessions, this case was ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 5 committed to Sessions Court, Aurangabad.
6. Charge Exh. 5 was framed against accused No.1 to 4 for the offence punishable under Sections 376, 323, 504, 506 read with Section 34 of the Indian Penal Code as well as under Section Section 3(ii) read with (xii) of the Atrocities Act. Accused pleaded not guilty and claimed trial. Defence of the accused is of total denial. No defence witness is examined by accused persons.
7. After considering the evidence placed on record by prosecution, learned trial Court pleased to convict the accused No.1 for the offence punishable under Sections 376, 323, 504, 506 read with Section 34 of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1000/- under Section 376, till rising of Court and fine of Rs.100/- each for the offences punishable under Sections 323, 504, 506 read with Section 34 of the Indian Penal Code on each count. Accused No.2 to 4 were convicted for the offence punishable under Section 376 read with 109 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for seven years and fine of Rs.1000/- and they were sentenced to suffer till rising of the Court and fine of Rs.100/- on each count for the offence punishable under Sections 323, 504, 506 read with Section 34 of the Indian Penal Code.
8. Original accused No.1 Vinod Tatyarao Angle died during ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 6 the pendency of Criminal Appeal No.3/2003 and proceeding against him is abated.
9. Heard learned defence counsel Shri A.R. Bhosale for accused No.2 and 3, Shri P.R. Deshmukh, learned counsel for accused No.4 and Mrs. Jape, learned A.P.P. for the State.
10. Learned counsel for appellants submitted that, except testimony of prosecutrix (P.W.1) and Jija Waghmare (P.W.2), no other evidence is available for corroboration. He pointed out that, on medical examination of the prosecutrix, no injury was found on her body and no signs of rape were noted by the Medical Officer. He has also pointed out that, even in the C.A. Report, semen was not detected on the clothes of prosecutrix or even on the clothes of accused No.1.
11. Next limb of the argument of learned counsel for appellants is that, the test of identification parade was not held by investigating officer though accused were unknown to the prosecutrix and her husband. He submitted that, identification of the accused persons is not duly established by prosecution.
12. Next objection raised by learned counsel for the appellants is that, there are material omissions in the testimony of Jija Waghmare (P.W.2) and his conduct is abnormal because though his wife was raped in the field, he did not try to take help of any road ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 7 passer or nearby resident. He pointed out that, Jija Waghmare (P.W.2) did not try to rescue his wife by using force against the accused persons.
13. Learned counsel for the appellants assailed the testimony of P.S.I. Chaudhari (P.W.8) on the ground that, he contradicted with other prosecution witnesses regarding the manner in which accused No.4 was arrested. At last, learned counsel for the appellants raised technical objection that, though charge under Section 109 of the Indian Penal Code was not framed, the learned trial Court convicted the accused No.2, 3 and 4 for the offence punishable under Section 376 with the aid of Section 109 of the Indian Penal Code i.e. abetment of the offence. He placed reliance on Abbas Ahmad Choudhary Vs. State of Assam reported in [2010(12) SCC 115], Main Pal Vs. State of Haryana reported in [(2010) 10 SCC 130], State of Karnataka Vs. F. Nataraj reported in 2015(16) SCC 752, Anant @ Anna Shankar Shivde Vs. The State of Maharashtra reported in [2017(3) Mh.L.J. (Cri) 154], Sadashiv Ramrao Hadbe Vs. State of Maharashtra & anr. reported in [2006 (10) SCC 92].
14. In reply, learned A.P.P. for the State submitted that, all accused are duly identified by prosecutrix and her husband before the Court on the date of recording of their evidence and such identification can be relied upon. Next submission of learned A.P.P. is ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 8 that, the incident occurred at night hours in secluded place and, therefore, availability of independent witnesses was impossible. Therefore, non-examination of independent witness is not fatal to the prosecution case.
15. Her last submission is that, evidence of prosecutrix and her husband regarding the occurrence is also corroborated by testimony of P.S.I. Chaudhari (P.W.8) and telephone booth owner Dilip Jaiswal (P.W.4). She placed reliance on Willie (William) Slaney Vs. State of Madhya Pradesh reported in [1956(1) M.L.J. 100], Bansidhar Mohanty Vs. Orissa reported in 1955 AIR (SC)
585.
16. To substantiate charges against the accused persons, prosecution has examined victim (P.W.1), her husband Jija Waghmare (P.W.2), S.T.D. Booth owner Dilip Jaiswal (P.W.4) and Bandu Badge (P.W.3) as well as Sahebrao Digode (P.W.5) as panch on spot panchanama. Dr. Sundarpalsingh (P.W.6) is the Medical Officer who examined the victim on 14.3.2001 at 3.00 a.m. in Government Medical College & Hospital, Aurangabad. Ashok Khose (P.W.7) is panch witness on seizure memo of the clothes of the victim. Dr. Manohar Wakle (P.W.9) is the Medical Officer, Primary Health Centre, Karmad, who examined accused No.1 to 4. P.S.I. Shamsundar Chaudhari (P.W.8) is the witness from Police Station, Chikalthana, who reached on the spot immediately after the occurrence and ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 9 Hirasingh Jadhav (P.W.10) is investigating officer of this crime.
17. Out of these prosecution witnesses, panch Bandu Badge (P.W.3) and Ashok Khose (P.W.7) have turned hostile and nothing could be elicited from their cross-examination which is helpful to the either parties. Even evidence of Dr. Sundarpalsingh (P.W.6) and the certificate issued by him (Exh.20) as well as evidence of Dr. Manohar Wakle (P.W.9) who issued certificate Exh.24 regarding examination of the accused is of no help to the prosecution, because Dr. Sundarpalsingh (P.W.6) did not find any mark of violence or semen stains or blood stains on the body of victim. He also opined that, the hymen of the victim (P.W.1) was ruptured, but it was old rupture and not recent rupture. Even Dr. Manohar Wakle (P.W.9) did not find any sign of violence on the body of accused No.1 to 4. He did not notice seminal stains even on the clothes of the accused No.1. Thus, obviously, the medical evidence of Dr. Sundarpalsingh (P.W.6) and Dr. Manohar Wakle (P.W.9) is useless piece of the evidence to establish guilt of the accused. Even the C.A. Report Exh.30 shows that no semen stains/ blood stains were found on the clothes of the victim or on the clothes of accused No.1.
18. Even the spot panchanama Exh.17 proved by investigating officer does not show that any incriminating article was seized from the spot. Spot panchanama only shows that, the spot of the incidence is on the eastern side of road, which passes from ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 10 Apatgaon towards Bhalgaon Phata. Thus, even spot panchanama exh.17 is not much useful as corroborative piece of evidence.
19. In the circumstances, only the evidence of victim (P.W.1), her husband Jija Waghmare (P.W.2) is available to prove the actual occurrence of rape. The evidence of S.T.D. booth owner Dilip Jaiswal (P.W.4) and P.S.I. Chaudhari (P.W.8) can be used only as corroboration to the testimony of victim (P.W.1) and her husband (P.W.2). After going through the judgment passed by the trial Court, it emerges that, trial Court has placed reliance on testimony of these all witnesses and held that, their evidence is trustworthy to prove the guilt of the accused No.1 to 4 beyond reasonable doubt.
20. Undisputedly, to prove the occurrence, no independent witness is examined by prosecution who had actually witnessed the occurrence. However, as the incident took place in secluded place, in the field adjacent to road, availability of such independent witness is impossible. Therefore, non-examination of independent witness by prosecution cannot be viewed with suspicion.
21. Learned counsel for the assailants assailed the evidence of victim (P.W.1) on the ground that, absence of injury on the body of victim and absence of blood stains on her clothes as well as on the clothes of accused No.1 creates doubt about the truthfulness of the evidence of victim (P.W.1). My attention was drawn to the case of ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 11 Rajoo & ors. Vs. State of M.P. reported in [2009 AIR (SC) 858] and Abbas Ahmad Choudhary (supra), where the Apex Court held that, there can be no presumption that prosecutrix would always tell the entire story truthfully and statement of prosecutrix should be evaluated at par with that of injured witness who will not tell a lie, but it can never be presumed that, her statement is a gospel truth.
22. However, recently, in Mukesh & anr. Vs. State (NCT of Delhi) & ors., reported in [(2017) 6 SCC 1], the Apex Court laid down following settled proposition of law :
"At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of the prosecutrix in view of settled legal principles. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination, etc. if the same is found natural and trustworthy.
Persisting notion that the testimony of the victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood. Ours is a conservative society and not a ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 12 permissive society. Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false charge, concerning her chastity.
There is no legal compulsion to look for corroboration of the prosecutrix's testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration.
It is well settled that conviction can be based on the sole testimony of the prosecutrix if it is implicitly reliable and there is a ring of truth in it. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not requirement of law but a guidance of prudence under given circumstances.
Courts should not attach undue importance to discrepancies, where the contradictions sought to be brought up from the evidence of the prosecutrix are immaterial and of no consequence. Minor variations in the testimony of the witnesses are often the hallmark of truth of the testimony. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Due to efflux of time, there are bound to be minor contradictions/ discrepancies in the statement of the prosecutrix but such minor discrepancies and inconsistencies are only natural since when truth is sought to be projected through human, there are bound to be certain inherent contradictions.
In the case of rape and sexual assault, the evidence of the prosecutrix is very crucial and if it inspires confidence of the Court, there is no requirement of law to insist upon corroboration of the same for convicting the accused on the basis of it. Courts are expected to act with sensitivity and appreciate the evidence of the prosecutrix in the ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 13 background of the entire facts of the case and not in isolation."
23. Regarding the absence of injury on the body of victim, the Apex Court had occasion to consider this point in case of Utpal Das & anr. Vs. State of West Bengal reported in [2010(4) Mh.L.J. (Cri.) 97], wherein the Apex Court ruled that, in case of rape of a married grown up woman, absence of injuries on her private part is not of much significance. The mere fact that no injuries were found on the private part of her body cannot be ground to hold that she was not subjected to any sexual assault. In Ram Singh Vs. State of Himachal Pradesh reported in [2010(1) Mh.L.J. (Cri.) 669], the Apex Court ruled that, it is not an inevitable rule that in absence of defence injuries on the body of victim the prosecution must necessarily fail to establish its case. Absence of injury on private part of victim who is married woman, may not be very significant. Therefore, only because no injuries were found on the body of victim (P.W.1), her testimony cannot be doubted, if otherwise she is a trustworthy witness.
24. Victim (P.W.1) categorically deposes before the Court that, on the date and time of the incident at about 8.30 p.m. when along with her husband, she was walking by road towards Bhalgaon Phata, that time three persons came right behind her and they caught hold her husband, threatened him at the point of knife and the fourth ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 14 accused dragged the victim to nearby field, gagged her mouth and in the field, he had forcible sexual intercourse with her. From the testimony of of victim (P.W.1), it further emerges that, after rape, the rapist left the spot and when the victim went towards Bhalgaon Phata by road, police jeep arrived on the spot. According to victim (P.W.1), police started search of the culprits and apprehended them. The victim (P.W.1) has identified accused No.1 as the same person who raped her in the field and she pointed out accused No.2 to 4 as the same persons who held her husband on the road at the time of commission of the rape. Despite searching cross-examination by defence counsel, no admission could be brought on record to create doubt about truthfulness of the version of victim (P.W.1). On the other hand, she has also proved her prompt F.I.R. Exh.11, which was registered on 13.9.2001 at 10.45 p.m. Thus, there was no possibility of concoction of any false case by the prosecution against the accused.
25. It is to be noted that, no material omission or contradictions are brought on record in the testimony of victim (P.W.1). It is to be noted that, from the examination-in-chief as well as from the cross-examination, it becomes clear that, at the time of commission of rape, accused No.1 had removed her clothes. Therefore, in natural course, there would not be semen stains on the clothes of the victim. In the circumstances, absence of semen stains ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:01 ::: Cri.Appeal No.704/2002 15 on the clothes of the victim cannot be a ground to disbelieve the testimony of victim (P.W.1).
26. On the other hand, after careful examination of testimony of victim (P.W.1), and even testimony of Jija Waghmare (P.W.2), it becomes clear that, none of the accused was related with the victim or with her husband in any manner prior to the occurrence. There is absolutely no reason on record which indicates slightest possibility of false implication of the accused due to previous dispute in between accused and victim or her family members. In the circumstances, I find that, testimony of victim (P.W.1), which is fully corroborated by Jija Waghmare (P.W.2), who also repeated the same story in his deposition, is trustworthy and conviction of all accused can be based on the testimony of these both witnesses. Even Jija Waghmare (P.W.2) has identified accused No.1 to 4 in the Court.
27. Learned defence counsel assailed the testimony of Jija Waghmare (P.W.2) on the ground that he did not raise hue and cry when he was caught by accused No.2 to 4 and when his wife was raped. However, it cannot be ignored that, at the time of occurrence, at night hours, Jija Waghmare (P.W.2) was alone present on the spot and accused No.2 to 4 overpowered him by assaulting him. In fact, there was no chance to Jija Waghmare (P.W.2) to raise hue and cry on this secluded place. So also, from the testimony of these both witnesses, it also becomes clear that, at the time of occurrence, there ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 16 was no traffic on the road. Therefore, raising hue and cry by Jija Waghmare (P.W.2) would have only useless attempt.
28. So also, it cannot be ignored that, a witness may re-act in different manners, depending on his own nature. A dare-devil person may try to fight with the assailants to to save his wife. However, a timid person may choose to run away from the spot to get help from nearby place. It appears that, Jija Waghmare (P.W.2) was timid in nature and, therefore, he had chosen to run away from the spot when he managed to rescue himself from the clutches of accused No.2 to 4. From the testimony of Jija Waghmare (P.W.2), it becomes clear that, he immediately ran towards Videocon Factory, which was the nearby place and found S.T.D. Booth. From this booth, he informed the Chikalthana Police Station on phone about the occurrence. This version of Jija Waghmare (P.W.2) is also corroborated by Dilip Jaiswal (P.W.4), who is S.T.D. Booth owner near Videocon Company. Dilip Jaiswal (P.W.4) deposes before the Court that, on the date of incident, at about 8.00 p.m. to 9.30 p.m., one person came to his S.T.D. Booth and on telephone, informed Police Station, Chikalthana that 2-3 miscreants kidnapped his wife after assaulting that person. From the cross-examination of Dilip (P.W.4), it has been brought on record that, Jija Waghmare (P.W.2) went to S.T.D. Booth while running.
29. In view of above discussed evidence, it cannot be said ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 17 that, Jija Waghmare (P.W.2) did not try to rescue his wife. On the other hand, Jija Waghmare (P.W.2) immediately rushed to nearby telephone booth and sought help from the Police Station, Chikalthana. Even P.S.I. Chaudhari (P.W.8) has fully corroborated the testimony of Jija Waghmare (P.W.2) that on 13.9.2001 at about 8.45 p.m., on telephone Jija Waghmare informed the Police Station about the occurrence. From the testimony of P.S.I. Chaudhari (P.W.8), it further emerges that, he immediately rushed on the spot with other police staff and when victim disclosed the occurrence, these police officers immediately apprehended the accused persons near one Dhaba.
30. Learned defence counsel pointed out that, Jija Waghmare (P.W.2) has made contradictory statement that the accused No.4 was brought by Police Patil towards Bhalgaon Phata. However, over much importance cannot be given to this conflicting statement because victim (P.W.1) and P.S.I. Chaudhari (P.W.8) are consistent regarding apprehending the accused No.1 to 4 near Dhaba.
31. Learned defence counsel has pointed out that, threatening to husband of victim at the point of knife is not mentioned in the F.I.R. However, as ruled by Apex Court in "Mukesh & anr. Vs. State"
(supra), F.I.R. Is not an Encyclopedia and each and every minor details need not be mentioned in the F.I.R. Therefore, over much importance cannot be given to the minor discrepancy emerged in the ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 18 testimony of victim (P.W.1) regarding threat to her husband by accused.
32. Next objection raised by learned defence counsel is regarding identification of accused No.1 to 4 by victim and her husband for the first time before the Court in absence of prior test of identification by investigating officer. However, the Apex Court in Manu Sharma Vs. State (NCT of Delhi) reported in [(2010) 6 SCC 1], held that, even if there is no previous test identification parade, the Court may appreciate the dock identification as being above board and more than conclusive.
33. In the case at hand, though incident occurred at night hours at secluded place, the victim (P.W.1) as well as her husband had full opportunity to observe the accused No.1 to 4 from the close distance when they assaulted Jija Waghmare (P.W.2). So also, the victim (P.W.1) was raped by accused No.1 and, therefore, she cannot make mistake in identification of accused No.1 as same rapist, though the incident occurred in darkness. Even in the cross-examination of victim (P.W.1) and Jija Waghmare (P.W.2), their identification of accused No.1 to 4 in the Court, cannot be shattered in any manner despite searching cross-examination by defence counsel. Therefore, I am fully satisfied that, identification of accused No.1 to 4 by victim and her husband in the Court for the first time after the occurrence is absolutely reliable and cannot be doubted only on the ground that ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 19 test identification parade is not held by investigating officer.
34. Learned counsel for the appellants has also raised technical objection regarding conviction of the accused No.2 to 4 with the aid of Section 109 of the Indian Penal Code though charge was framed under Section 376 read with Section 34 of the Indian Penal Code. However, after going through the charge Exh.5, it becomes clear that, all particulars of abetment of the offence by detaining Jija Waghmare (P.W.2) by accused No.2, 3 and 4 are mentioned in the charge. Therefore, accused No.2 to 4 were well aware as to what are the allegations levelled against them by prosecution. In the circumstances, only because charge was framed under Sections 376, 323, 504, 506 read with Section 34 of the Indian Penal Code, no prejudice will be caused to the accused by convicting them with the aid of Section 109 of the Indian Penal Code. The ratio of the case of Mani Pal Vs. State of Haryana (supra) relied by learned defence counsel is distinguishable on facts because, in that case, charge was framed against "Y", but conviction for the offence was imposed against "X" and, therefore, the Apex Court held that, prejudice was caused to "X".
35. On the other hand, learned A.P.P. rightly pointed out that, in "State Vs. Ruplal & anr." (supra), the High Court, after following Kashmira Singh Vs. State of Madhya Pradesh reported in [AIR 1952 SC 159] and Begu Vs. Emperor reported in [AIR 1925 ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 20 Privy Council 130], held that, the accused may be convicted of substantive offence even if he is charged only with abetment of the offence, when no prejudice is caused in his defence.
36. In Ram Kumar Vs. State of Himachal Pradesh with Nain Singh Vs. State of Himachal Pradesh reported in [AIR 1995 SC 1965], husband and wife were taken into Police Station. Wife was raped by Head Constable. Supreme Court upheld the conviction of Constable under Section 376 read with Section 109 of the Indian Penal Code.
37. In the case at hand, at the time of occurrence, accused No.2, 3 and 4 detained husband of the prosecutrix (P.W.1) on road and thereby aided the accused No.1 to drag the victim in the field and commit rape on her. Thus, conviction of the accused No.2, 3 and 4 under Section 376 read with Section 109 of the Indian Penal Code cannot be faulted only on the ground that charge was framed against them under Section 376 read with Section 34 of the Indian Penal Code.
38. So also, as on the basis of truthful version of victim (P.W.1) and Jija Waghmare (P.W.2) prosecution has proved that at the time of occurrence all accused threatened Jija Waghmare (P.W.2) and also assaulted him by fists and slaps. Therefore, no error has been committed by learned trial Court while convicting the accused ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 21 No.2 to 4 for the offences punishable under Sections 323 and 506 read with Section 34 of the Indian Penal Code.
39. However, at the same time, it cannot be ignored that, on the basis of evidence of prosecutrix and her husband, no case is made out by prosecution to prove the offence punishable under Section 504 of the Indian Penal Code, which requires proof of intentional insult with intent to provoke breach of the peace. Therefore, conviction of accused No.2 to 4 for the offence punishable under Section 504 read with Section 34 of the Indian Penal Code is bad in law and deserves to be set aside.
40. In view of above discussion, I have no hesitation to hold that, the testimony of victim (P.W.1) and Jija Waghmare (P.W.2) is free from every infirmity and they are trustworthy witnesses to convict the accused No.2 to 4 for the offence punishable under Section 376 read with Section 109 of the Indian Penal Code and under Sections 323 and 506 read with Section 34 of the Indian Penal Code. The testimony of these both star witnesses is also corroborated by evidence of S.T.D. Booth owner Dilip Jaiswal (P.W.4) and P.S.I. Chaudhari (P.W.8). In the circumstances, I have no hesitation to hold that, conviction of the accused No.2 to 4 for the offence punishable under Section 376 read with Section 149 and Sections 323, 506 read with Section 34 of the Indian Penal Code deserves to be confirmed. However, conviction of these accused No.2 to 4 for the offence ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 22 punishable under Section 504 read with Section 34 of the Indian Penal Code needs to be set aside by partly allowing this appeal.
41. For the offence punishable under Sections 376 and 504 of the Indian Penal Code, learned trial Court imposed rigorous imprisonment for seven years and fine of Rs.1000/- each against accused No.2 to 4. Considering the circumstances of the case, as well as age of the accused, I hold that, this sentence is just and proper and needs no interference. Regarding punishment under Sections 323 and 506 read with Section 34 of the Indian Penal Code, trial Court has taken most lenient view, which calls for no interference.
42. Hence, I pass the following order.
ORDER
(i) Criminal Appeals No.704/2002 and 707/2002 are partly allowed.
(ii) Conviction of accused No.2 to 4 for the offence punishable under Section 504 read with Section 34 of the Indian Penal Code is set aside.
(iii) Accused No.2 to 4 are acquitted of the offence punishable under Section 504 read with Section 34 of the Indian Penal Code.
(iv) Fine amount deposited by accused No.2 to 4 for the offence punishable under Section 504 of the Indian Penal ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 ::: Cri.Appeal No.704/2002 23 Code be refunded to them.
(v) Conviction and sentence imposed against the accused No.2 to 4 recorded by learned II Additional Adhoc Sessions Judge, Aurangabad, by judgment and order dated 30.11.2002, passed in Sessions Case No.291/2001, for the offences punishable under Section 376 read with Section 109, Sections 323 and 506 read with Section 34 of the Indian Penal Code, is confirmed.
(vi) Accused No.2 to 4 shall surrender to their bail bonds before the trial Court immediately to undergo the sentence imposed by the trial Court.
( SUNIL K. KOTWAL ) JUDGE fmp/ ::: Uploaded on - 27/03/2018 ::: Downloaded on - 28/03/2018 01:42:02 :::