Bombay High Court
Appa S/O. Walmik Darade And Others vs The State Of Maharashtra on 16 January, 2026
2026:BHC-AS:2548
Digitally
signed by Crim Apl 690-98 J C2.doc
ANANT
ANANT KRISHNA
KRISHNA NAIK
NAIK Date:
2026.01.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
12:37:35 CRIMINAL APPELLATE JURISDICTION
+0530
CRIMINAL APPEAL NO. 690 OF 1998
1. Shri Appa S/o Walmik Darade
Aged 35 years, Occp. Agriculturist
2. Shri Kailas s/o. Manik Avhad
Aged 34 years, Occp. Agriculturist
Both R/o. Karanjgaon,
Tal. Chalisgaon, Dist. Jalgaon ...Appellants
Versus
The State of Maharashtra ...Respondent
****
Mr. Ratnesh Dube for the Appellants.
Mr. Vinit A Kulkarni, APP for Respondent-State.
****
CORAM : M. M. SATHAYE, J.
RESERVED ON : 10th OCTOBER 2025
PRONOUNCED ON : 16th JANUARY 2026
JUDGMENT:
1. This Appeal is filed by Accused Nos. 1 & 2 challenging the judgment and order dated 14/08/1998 passed by Additional Sessions Judge, Malegaon, District Nashik in Sessions Case No. 122 of 1993. By the said impugned order, Appellant/Accused No. 1 is convicted for offence punishable u/s. 394 of Indian Penal Code, 1860 ('IPC' for short) and is sentenced to suffer rigorous imprisonment (R.I.) for 7 years and to pay fine of Rs.1,000/- or suffer R.I. of 6 months in default. By the impugned order, Accused No. 2 is convicted for offence punishable u/s. 376 of IPC and is akn 1/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc sentenced to suffer R.I. for 7 years and to pay fine of Rs.1,000/- and to suffer R.I. of 6 months in default. The Appellant/Accused No. 2 is acquitted of offence punishable u/s. 394 r/w. 34 and u/s. 376(2)(f) of IPC. The Appellants were in custody from 27/01/1993 to 27/04/1993 and this period has been given set off.
2. The case of the prosecution and other relevant facts, in short are as under.
2.1. The Complainant-Taibai (P.W.-1), her husband Shriram (P.W.-6) and their daughter Sugandha (P.W.-2) were residing in their farm house in village Bejgaon, Tal. Nandgaon, District-Nashik at the time of incident which took place on 23/01/1993. Both the Appellants/Accused are from village Karanjgaon, Tal. Chalisgaon, District-Jalgaon. The maternal aunt of the Appellant No. 1 is given in marriage to the cousin brother of the Complainant - Taibai and therefore the Appellant No. 1 used to visit the village-Bejgaon often and was known to the Complainant since before the incident.
2.2. On 23/01/1993 at about 10 PM, Complainant-Taibai, her daughter- Sugandha were sleeping in front of their house. The Complainant-Taibai was sleeping on cot and daughter - Sugandha was sleeping on the floor near the cot and her husband-Shriram had gone to irrigate the onion crop. At that time, four persons came to the house of Complainant. On seeing them, daughter-Sugandha shouted. Appellant/Accused No. 1 pointed knife at the neck of the Complainant-Taibai and snatched her gold Mangalsutra and Dorla, causing injury to her. When she resisted, Appellant/Accused No.1 gave her fist blow on mouth and as a result she lost her upper tooth. Appellant/Accused No.2 took daughter-Sugandha in the house and started akn 2/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc beating her, making inquiry as to where the amount received from sale of onion crop has been kept. It is alleged that Appellant/Accused No. 2 raped daughter Sugandha. At that time, Sugandha was wearing petti-coat and blouse. Remaining two persons had brought husband-Shriram from the field and had tied him. He was kept confined in the house. When Taibai and daughter-Sugandha shouted, the neighbour/villagers came to the spot. All three of them suffered injuries. Sarpanch of the village gave message on phone to Manmad City Police Station who sent a police van. The Complainant-Taibai, her husband and daughter were taken to police station. In the same night, complaint was lodged. The police referred them to Rural hospital at Manmad for treatment and examination of injuries. Dr. Lalchand Jadhav (P.W.-5) examined them in same night.
2.3. At the time of medical examination daughter-Sugandha disclosed to the medical officer that she was getting pains in her vagina due to commission of rape. Complainant-Taibai had sustained injuries and her husband-Shriam also sustained injuries. The said medical officer Mr. Jadhav (P.W.-5) referred daughter Sugandha to Civil Hospital, Nashik for examination on the point of rape and age. Next day, on 24/01/1993, Dr. Ramesh Agarwal (P.W.-4) examined daughter-Sugandha in Civil hospital, Nashik and issued medical certificate showing radiological age of about 12 to 13 years with margin of error of 6 months on either side. The hymen of P.W.-2-Sugandha was found torn and tearing of hymen was recent within 12 hours.
2.4. Complaint was registered under Crime No. 21 of 1993. Spot Panchnama (Exh. 20) was recorded. Petti-coat was seized under Panchnama which was sent to chemical analysis of which report is produced at Exh.35. According to prosecution, the age of Sugandha was under 12 years at the akn 3/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc time of incident and therefore, Appellant/Accused No. 2 was charged u/s 376(2)(f) of IPC. On 27/01/1993, the Appellants were arrested and produced before magistrate. During the course of investigation, PSI, Shri Sankeshwari (P.W.-9) got information that two more persons were with the Appellants and name of one of them was Bhika Hari Lahane and name of other person was not traced. However, the other two accused were never apprehended. After necessary investigation, charge-sheet was filed on 25/04/1993. The Appellants denied the charges and pleaded not guilty. The prosecution examined in all 9 witnesses in order to bring home the guilt. The defense of the Appellants/Accused is that they are falsely implicated in the crime.
RIVAL SUBMISSIONS
3. Learned Counsel, Mr. Dube, appearing for the Appellants submitted as under.
3.1 That four persons were allegedly involved. However, only the Appellants are arrested and prosecuted. That Test Identification Parade ('TIP' for short) was not conducted and as such, the involvement of the Appellants is highly doubtful. He submitted that except P.W.-1, P.W.-2 and P.W.-6, who are family members and interested witnesses, nobody else has supported that four persons were involved. He submitted that Complainant (P.W.-1) has stated that the faces of the persons, who allegedly committed the crime were covered and it was late night and as such, in absence of proper identification, the alleged incident cannot be said to have been committed by the Appellants. He submitted that considering the alleged time period of about one hour of the incident, it is difficult to believe that despite shouting, none of the neighbors/villagers turned up and therefore the whole incident akn 4/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc is doubtful.
3.2 He further submitted that the blood stains, which are found on the petti-coat of daughter (P.W.-2) can be of anybody and there is nothing on record to show that they are blood stains of Appellant No. 2. He submitted that ingredients of section 394 are not proved beyond reasonable doubt. That there is no cogent evidence about Complainant (P.W.-1) being threatened. That Complainant (P.W.-1) has stated that she did not see Appellant/Accused No. 2 at the time of incident. He submitted that there is contradiction in the evidence of Complainant (P.W.-1) about when daughter (P.W.-2) told her about commission of alleged rape. That father (P.W.-6) has stated in cross-examination that he got information of rape on his daughter from the nurse of the Rural hospital at Manmad. He submitted that it is highly improbable that daughter (P.W.-2) will not inform the commission of rape to anybody immediately after incident and will disclose it directly to the medical officer. He submitted that medical certificate does not prove commission of rape. That the Appellants/Accused are identified directly in the Court. That there is inconsistency in the statements of Complainant (P.W.-1) and daughter (P.W.-2) about faces being covered. That the Investigating Officer (P.W.-9) has stated that names of the Accused were not disclosed when he visited the spot. It is submitted that the Investigating Officer (P.W.-9) has admitted that TIP of both the accused was not held. That there is inconsistency in the statements of Complainant (P.W.-1) and husband (P.W.-6) about Appellant/Accused No.1 being relative. That P.W.-7 who was independent witness has not supported the case of prosecution. That age of daughter (P.W.-2) is not conclusively proved. That there has been no recovery of alleged weapon i.e. knife used by Appellant No.1 nor there is recovery of any Mangalsutra/Dorle. He relied upon following judgments :
akn 5/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 :::Crim Apl 690-98 J C2.doc
1. Santosh Prasad alias Santosh Kumar Vs. State of Bihar [(2020) 3 SCC 443] and Rai Sandeep Alias Deepu Vs. State (NCT OF DELHI) [(2012) 8 SCC 21] in support of his submission about conviction solely relying upon deposition of the prosecutrix.
2. Jafar Vs. State of Kerala [2024 SCC Online SC 310] in support of his submission about TIP.
3. Kanan and Ors. Vs. State of Kerala [AIR 1979 SC 1127] in support of his submission about Prosecution witness identifying the accused for the first time in court.
4. Iqbal and Anr. Vs. State of Uttar Pradesh [(2015) 6 SCC 623] in support of his submission about TIP and non-recovery of weapon and jewellery.
5. Kali Ram Vs. State of Himachal Pradesh [(1973) 2 SCC 808] in support of his submission about presumption of innocence of accused and that the burden of proving the guilt of the accused is on the prosecution.
4. On the other hand Learned APP, Mr. Kulkarni vehemently opposed the Appeal. He submitted as under.
4.1 That the fact that only two persons out of four persons were arrested cannot be capitalized. That the rural background of the area as well as night time of incident in a village will have to be considered. He submitted that identity of Appellants is proved beyond doubt. He submitted that Appellant/Accused No. 1 was known to the Complainant's family before the incident. If overall material on record is considered, absence of TIP will not be fatal. He submitted that non-recovery of weapon and jewellery is not fatal. He draws support from Paragraph 29 of the judgment of Sanjeev Kumar Gupta (details given below).
4.2 He submitted that there is no evidence about any enmity between the family of the Complainant and Accused Nos.1 & 2 and as such their akn 6/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc presence at night time was not justified and therefore the only motive that can be attributed is of robbery. He submitted that even identity of Accused No. 2 has been established sufficiently from the evidence of Complainant (P.W.-1), daughter (P.W.-2) and father (P.W.-6). That prosecution witnesses have sufficiently corroborated the case and there are no material contradictions/ omissions. That FIR has been filed within few hours of incident and there is no delay in lodging of FIR.
4.3 He submitted that the age of (P.W.-2) daughter must be kept in mind and it is obvious that she was traumatized by the incident and therefore non-mention of rape immediately to mother or father cannot be considered against the prosecution case. He submitted that no villagers/neighbor rushing for help in time, will have to be considered keeping in mind the circumstances involved and cannot be held against prosecution. He submitted that sufficient evidence has been led and the spot of the incident is beyond dispute. He submitted that it has come on record that the light on the 'Otta' was on, thereby indicating sufficient light for P.W.-1, P.W.-2 and P.W.-6 to see the faces of the accused and therefore there is no justifiable ground to doubt the identity of Appellants.
4.4 He submitted that the medical evidence in the form of injury certificates and depositions of both the doctors support that the injuries are found to be fresh. He submitted that prosecution has examined quality witnesses and as such the charges are proved beyond reasonable doubt and therefore there is no need to interfere in the conviction granted. He relied upon following judgments :
1. Vijay @ Chinee Vs. State of M.P. [2010 ALL MR (Cri) 3326 (S.C.)] in support of his submission that TIP not being conducted, is not fatal.akn 7/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 :::
Crim Apl 690-98 J C2.doc
2. Sanjeev Kumar Gupta Vs. State of U.P. [(2015) 11 SCC 69] in support of his submission that non-recovery of weapon is not fatal when it has been proved by medical evidence corroborated by testimonies of the prosecution witnesses.
3. Balu Sudam Khalde and Anr. Vs. State of Maharashtra [AIR 2023 SC 1736] in support of his submission about material and minor contradictions.
4. Wahid Khan Vs. State of M.P. [AIR 2010 SC 1] in support of his submission that semen not being found, is not fatal and penetration is sufficient.
5. Takdir Samsuddin Sheikh Vs. State of Gujarat and Anr. [AIR 2012 SC 37] in support of his submission that testimony of single witness can be acted upon provided he is wholly reliable and evidence has to be weighed and not counted.
REASONS AND CONCLUSIONS
5. I have considered rival submissions and perused oral as well as documentary evidence and the impugned judgment and order.
6. The prosecution has examined 9 witnesses. Let us consider them one by one.
7. The P.W.-1 is Taibai Shriram Kale who is complainant. She has stated in her complaint that on the date of the incident, after taking night meal, she was sleeping on the cot in front of the house and daughter Sugandha was sleeping on the ground near cot. That her husband was irrigating the onion crop near well. That when she was feeling asleep, her daughter Sugandha started shouting which woke up her. When she woke up she saw one person sitting on the cot who was holding a knife telling her that she should not raise alarm and the other person was beating the daughter. That the other akn 8/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc person took the daughter inside house and demanded to show where the money received from sale of onion crop is kept. That the person sitting on her cot was known to her and his name is Appa, who snatched the Mangalsutra and Dorle from her neck and did not permit her to run.
7.1 That her husband was held by two other persons, one of them had held the hands and the other one tied him with rope. The other person was holding the neck of her husband. She has stated that she knows Appa - Appellant No. 1 very well who is resident of Karanjgaon, Tal. Chalisgaon. When she tried to snatch the knife, she got hurt on the palm. Thereafter, Appellant No. 1 hit her face with a fist, due to which she lost an upper tooth.
7.2 Since Appa - Appellant No.1 snatched Mangalsutra and dorla she raised alarm, some people from some villagers started coming to their house; seeing them coming, all the four persons fled the scene and while running away, stole a battery (torch) from the house. She has stated that the maternal aunt of Appa - Appellant No. 1 (Latabai) is given in marriage in her brethren and since Latabai is not being treated properly, Appa - Appellant No.1 was angry who came with his accomplices and beat up her and her family and stole jewellery as well as battery.
8. P.W.-1 has corroborated her own case in examination in chief. She deposed that herself, her husband and her daughter reside in their 'Vasti'. That the time was of 9.00 to 10.00 pm. That after night meal, she had slept on cot infront of their house and her daughter had slept on ground near the cot and her husband was bringing water.
8.1 That the thieves came running towards them and one of them sat on her cot. That she woke up due to the shouting of her daughter. That one akn 9/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc thief pressed her chest. The other pointed knife at her and asked her about where was the money. That the other thief started beating her daughter and demanded amount of sale of onions from her. She further deposed that her mangalsutra, with gold bids and dorle were taken away. That the thief who caught her did not listen to her plea of release and caused injury on her left hand. That when she tried to shout, the thief gave hand blow on her mouth due to which she lost her upper front tooth. That two of them brought her husband and tied his hands. Due to shouting neighbours woke up and came to them and then the thieves ran away. She further deposed that the thief who committed theft of her mangalsutra was by name Appa from Village - Karanjgaon, Tal. Chalisgaon, Dist. Jalgaon. That Maternal aunt of said Appa was in her village and he used to come to her house often. That she was given in marriage to her cousin brother-in-law.
8.2 That she had seen Appa at the time of incident. That same Appa is Accused No.1 before the Court is the same. Accused No.2 who took her daughter inside the house at the time of incident is the same. That somebody phoned Manmad Police station and she gave her complaint to the said Police station. That the complaint shown to her bears her thumb impression and that the contents are correct. That they were referred to Civil Dispensary at Manmad. That daughter P.W.2 told them that Accused No.2 committed rape on her in their house.
8.3 In cross-examination, though she has admitted that faces of the persons were covered with cloth, she has denied that the electric light in the house was turned off. She further admitted that she had not seen Accused No.2 in her house at the time of incident. She further stated that in her complaint she stated to the Police that Accused No.1 came to their house, akn 10/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc however, there is no such mention in the said complaint. She further admitted that no villagers came to rescue them at the time of incident. She further admitted that her daughter did not tell her that she was raped at the time of incident and that she learnt in the hospital on next day of incident that her daughter was raped at the time of incident. She further admitted that she did not see the face of the Accused No.2 at the time of incident. She further stated that Police did not demand receipt of purchase of her gold mangalsutra from her.
9. P.W.-2 Sugandha has stated in examination-in-chief that at the time of incident she was not married. She has corroborated the case of P.W.-1 Taibai. She has stated that one of the four persons took her inside the house and beat her asking where was the amount of onion sale was kept. That another person pointed knife at the neck of her mother P.W.-1. That the person who had taken her inside room caught her breasts. That she told him that he can take away the gold earrings but he should not outrage her modesty. However, the said person did not listen and committed rape on her. That the said person penetrated her penis in her vagina and at that time she was wearing petti-coat and blouse. When the said person beat her by kicks blows and fist blows. That due to heavy beating she became unconscious. However, when she gained consciousness, the said persons had gone away. That her cousin brother Subhash had come to their house. On hearing their shouts, some other persons from village had also come, after the incident.
9.1 She has stated that in the same night she along with her mother P.W.-1 and father P.W.-6 were taken to government dispensary where a Medical Officer examined them. That she was getting pain in her vagina. When she went to dispensary, she told the same to her mother P.W.-1 and concerned akn 11/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc medical officer, who referred her to Civil Hospital, Nasik, where she was examined. That P.W.-2 has identified Appellant No. 2 in the Court. She has stated that both the accused who are present before the Court were amongst those four persons who had come to the house on the date of the incident. She has stated that Appellant No. 1 had pointed knife at the neck of her mother. She further identified the petti-coat shown to her in court.
9.2 In the cross- examination, she has denied that there was darkness in the house at the time of incident. She has admitted that the persons who had come to the house were not seen by her previously. She admitted that she has seen Accused No. 2 for the first time when he and other persons came to their house on the date of incident. She has stated that name of Accused No. 2 was known to her mother Taibai P.W.-1. She has stated that when she tried to escape from Appellate No. 2, scuffle took place and she sustained injuries. She admitted that immediately after the incident she had not informed her mother the description of Appellant/Accused No.2.
9.3 She stated that description of Accused No. 2 was given to Medical Officer at Manmad. She has stated that she has given description of Appellant/Accused No. 2 to her mother in dispensary at Manmad. That her mother gave her information about Accused No. 2. That she has given description of Accused No. 2 in her statement before police. However, there is no such mention in her statement before the police. She admitted that she has not stated to police about Accused No. 2 pressing her chest or throat. She admitted that she has not stated before police that cousin Subhash and other villagers came to their house after the incident. She stated that she informed her parents when she was getting pains in the vagina that Appellant/Accused No. 2 committed rape on her. She has admitted that akn 12/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc police had not shown her Accused No. 2 till the date of giving evidence in the Court.
10. P.W.-3 Mr. Subhash Kisan Kakad has stated in his examination-in-chief that police called him for Panchnama of the house. That police recorded spot Panchnama in his presence. That pieces of rope were seized under Panchnama. He admitted in cross-examination that when he went to the spot of incident, recording of Panchnama was going on and thereafter his signatures were obtained by the police.
11. The Panchnama (Exh.20) records that in front of 'Otta' the rope of about 4.5 feet in length was lying with blood stains which was seized and on the 'Otta' at various places the wooden tulsi beads and black beads had fallen.
12. P.W.-4 Dr. Ramesh Nathmal Agrawal has stated in his examination-in- chief that he examined P.W.-2 in Civil Hospital at Nashik on point of rape. He has stated that her gait was normal. She had no auxiliary hair. Pubic hair were sparse and light brown. The breasts were not developed. Multiple irregular abrasions were on left side neck. Her hymen was torn towards right side in 4 'O'clock position and the tearing of hymen was recent within 12 hours. Radiological examination was made and her physiological and radiological age was 12 to 13 years with margin of error of 6 months. In cross-examination, he admitted that P.W.-2 did not disclose the history of rape to him before examination. That she did not find any injury on her buttocks. That he has not given specific opinion regarding intercourse or commission of rape.
akn 13/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 :::Crim Apl 690-98 J C2.doc
13. P.W.-5 Dr. Lalchand Laxman Jadhav has stated in his examination-in- chief that he was attached to Rural hospital Manmad on the date of incident. That he examined P.W.-2. who had simple injuries caused by hard and blunt object and all the injuries were recent within 4 hours. He has stated that he examined P.W.- 6 Shriram who had about 6 injuries and all injuries were simple in nature caused by hard and blunt object. He has stated that he examined P.W.-1 Tarabai who had seven injuries, one of them being grievous and other being simple injuries. The nature of the injury No. 3 is grievous which was left upper incise wound fell down with bleeding gums and swelling of upper lip. P.W.-2 was referred to Civil hospital. In cross- examination, he stated that P.W.-2 complained to him about commission of rape which is not mentioned in the medical certificate. He has admitted that he has not mentioned history of assault in the medical certificate.
14. P.W.- 6 Shriram Bhika Kale had stated in examination-in-chief that at the time of incident he was irrigating the onion crop. That when P.W.-2 shouted he went running to the house and saw 4 persons on 'Otta'. One of the persons caught his hands and other persons tied it and he was confined in the room of the house. That Appellant No.1 / Accused No. 1, who is present in the Court, pointed knife to the neck of P.W.-1 Taibai, and threatened her and second person Kailas who is Accused No. 2, who is present before the Court, had taken his daughter in the house and was beating her. He has stated that the incident lasted for 30 to 45 minutes. As the neighbors shouted, the persons ran away. He has stated that he heard in the Rural hospital, Manmad, that his daughter was raped and also learned that Appellant/Accused No.2, raped his daughter.
akn 14/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 :::Crim Apl 690-98 J C2.doc 14.1 In cross-examination, he admitted that there are two houses adjoining his land as neighbors and those houses are at the distance of about 500 to 600 feet. He further admitted that after shouting of P.W.-2, his neighbors had not come to the house. He has also stated that the electric bulb light was on at the time of incident. He admitted that the 4 persons were not known to him.
14.2 He stated that he has identified Appellant/Accused No.2 at the time of incident and he was knowing name of Appellant/Accused No. 2 before police recorded the statement. That he had stated before the police the name of Accused No. 2. He has admitted that there is no name of Accused No. 2 in the statement before police. He has stated that Accused No. 1 previously used to come to village to his relatives. That he had stated before police the name of Appellant/Accused No. 1. He admitted that after the Appellants were arrested, police did not show them to him. He admitted that police did not call him or P.W.-1 and P.W.-2 for identification of the accused. That the concerned Nurse of the hospital told him that his daughter was raped.
15. P.W.-7 Punja Bhika Avahad. This witness has not supported the case of the prosecution. He has stated that Accused No. 1 had not come to his house and his wife's sister is not given in marriage at village Karanjgaon. He denied that Appellants had meals in his house or had stayed there.
16. P.W.-8 Keda Baburao Mali stated in his examination-in-chief that he had the duty of PSO on the night of the incident between 23/01/1993 and 24/01/1993. That Sarpanch of the village gave him information of the incident on telephone. That PSI Sankeshwari sent the police van to village to bring injured persons to police station. That PSI Sankeshwari was present in the police van. That he recorded the complaint of P.W.-1 Taibai. That he sent akn 15/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc the injured persons to rural hospital. That he registered the crime and investigation was given to PSI Sankeshwari.
17. P.W.-9 Investigating Officer Mr. Gundappa Ratnappa Sankeshwari stated in his examination-in-chief that on the date of incident, at the night of the incident, Police Patil of the village gave information to PSO in Manmad Police Station, which was given to him. That he went to the place of incident along with other police officers and found P.W.-1, P.W.-2 and P.W.-6 in their farmhouse in injured condition.
17.1 That he learnt from the said witnesses about 4 persons assaulting them and Mangalsutra of Taibai being taken away with battery. That he recorded Spot Panchnama (Exh. 20). Rope was seized from the spot. That he recorded statements of witnesses. That P.W.-2 disclosed before Police Inspector Palve that she was raped. That he seized the petti-coat under panchnama (Exh. 21) and sent it for chemical analysis. That he obtained age certificate from the school. He has stated that Taibai P.W.-1 has disclosed the name of Accused No. 1 Appa and that he was resident of Karanjgaon, Tal. Chalisgaon. That he arrested both the Accused on 27/01/1993 at 7.00 p.m. That both Accused disclosed that two more persons were involved and one of them was by name Bhika Hari Lahane. That he made enquiries but the other persons were not traced.
17.2 In cross examination, this witness admitted that P.W.-2 Sugandha had not given proper description of clothes of Accused No. 2 in her statement. That complainant P.W.-1 Taibai, P.W.-2 Sugandha and P.W.-6 Shriram have not given detailed descriptions of Appellant/Accused No. 2 in their statements. That nothing was seized from Accused Nos. 1 and 2. That identification parade of both the Accused has not taken place either from the witnesses or akn 16/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc through other villagers. That complainant P.W.-1 Taibai disclosed the name of Accused No. 1, saying that it is Appa. He admitted that though complainant Taibai had disclosed to him in the investigation that her daughter was raped, however, the same was not mentioned in the complaint.
18. I have persued the Medical Examination Report from Civil Hospital, Nashik at Exh.23 and the Injury Certificates by Rural Hospital, Manmad of P.W.-2, P.W.-6 and P.W.-1 at Exh.25, Exh.26 and Exh.27, respectively. I have also perused the Chemical Analyser Report at Exh.35.
19. Considering the aforesaid oral and documentary evidence, it is seen that both in complaint as well as evidence before the Court, Complainant P.W.-1 Taibai has categorically stated the name and place of residence of Accused No. 1 and has withstood cross-examination in that respect. The case of light bulb on 'Otta' being 'switched on' has been corroborated by all the witnesses, thereby clearly indicating that there was light at the place of incident. From the evidence, it is also beyond doubt that when the incident took place, the person who threatened P.W.-1 Tabai with a knife was sitting on her cot where she was sleeping and therefore P.W.-1 was at a close distance of such person and she had an advantage of looking at the person closely. Therefore it is not possible to disbelieve the details given by complainant Taibai about the said person being Accused No. 1. Not only first name, but his address, village and Taluka is also stated by her. She has also specifically stated that his maternal aunt was given in her village in the brethren and there was an element of anger in his mind.
20. Considering the said position, in my view, the trial Court was justified in holding that Appellant No. 1 was involved in the incident. Though the akn 17/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc alleged weapon of knife is not recovered, the medical evidence in the form of fresh injuries on the body of P.W.-1, P.W.-2 and P.W.-6, clearly establishes that some incident took place. Medical evidence is substantial in nature in the form of injury certificates, which specifically provides for Multiple abraisions on several body parts of all three family members/ P.W.-1, P.W.-2 and P.W.-6 and incised wounds caused on body parts of P.W.-1 and P.W.-6, clear ligatum marks of rope seen on both writs of P.W.-6, these injuries being caused by a hard and blunt object and those being admittedly, fresh and caused within 4 hours of examination. These certificates with oral evidence of the Medical Officers P.W.-4 and P.W.-5 clearly establishes that P.W.-1 Taibai suffered grievous injury to P.W.-1's lip/mouth, which is corroborating her case of fist blow by Appellant No. 1 on the mouth resulting in loss of tooth. P.W.-2 Sugandha and P.W.-6 Shriram suffered simple injuries on several body parts. Hence it is beyond doubt that the family suffered violence in the incident.
21. In the Panchnama, wooden tulsi beads and black beads are found lying scattered on the 'Otta', which also corroborates the case of snatching of Mangalsutra. In view of this corroborating evidence available on record, in my view, absence of recovery of the weapon or Mangalsutra is not fatal to the case of the prosecution.
22. Though admittedly the TIP was not conducted, considering the fact that P.W.-1 Taibai could see Accused No. 1 from close distance on the cot and since Appellant No. 1 was known to complainant Taibai with first name and place of residence, in my considered view, there is no doubt about the identity of Appellant No. 1 and his involvement in the crime. In that view of the matter, the conviction rendered by the trial Court for Appellant No. 1 akn 18/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc under Section 394 of IPC which is causing voluntary hurt while committing robbery, is proved against Appellant No. 1. Therefore, no interference is required in the impugned judgment to that extent.
23. However, the case of the Appellant/Accused No. 2 stands on a different footing.
24. The evidence on record is in the form of injuries suffered by P.W.-2 daughter Sugandha and torn hymen in the form of fresh wound. According to P.W.4 medical officer, she had no auxiliary hair, pubic hair were sparse and the breasts were not developed. Perusal of the Chemical Analyser report shows that there were some washed blood stains found on the petti-coat. Such person having torn hymen as a fresh wound, clearly establishes that her modesty was outraged, she was sexually assaulted and penetration had taken place. This medical evidence is directly in corroboration of her own statement in evidence that she was beaten and raped.
25. However, involvement of Appellant/ Accused No. 2 in the said Act is not proved beyond reasonable doubt, for following reasons:
i. The incident of rape has taken place inside a room where P.W.-2 was taken forcibly by one of the four persons. Admittedly, the said incident was not seen by anybody else and there is no eye witness, except PW-2.
ii. P.W.-1 Taibai has admitted that she has not seen Accused No. 2 at the time of incident. She has further admitted that she did not see the face of the Accused No. 2 at the time of incident.
iii. P.W.-2 who is the victim herself, has admitted in her cross-examination that the persons who had come to the house on the date of incident, were akn 19/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc not seen by her previously. Though she has stated that name of Accused No. 2 was known to her mother Taibai - P.W.-1, Taibai has not given the name of Appellant No. 2 in her complaint or statement.
iv. P.W.-1 has admitted that no description of Accused No. 2 is mentioned in the statement given before police. She has also admitted that police did not show her Accused No. 2 till the day of recording evidence in the Court. She has further admitted that she has not given name of Accused No. 2 to the police.
26. In view of these admissions, the absence of TIP assumes importance. Therefore, the fact that identification parade was not conducted for Appellant/Accused No. 2, in my view is fatal to the prosecution case so far as connecting Accused No. 2 to the crime concerned. He has been acquitted of offence under section 394 of IPC.
27. No doubt P.W.-2 daughter suffered the crime and there is sufficient evidence on record to hold that rape was committed and penetration has taken place. However, in the light of reasonable doubt about identity of Appellant No. 2, it is difficult to connect him with the crime and therefore the benefit of this doubt will have to be given to Appellant No. 2. Considering the aforesaid facts and circumstances, the impugned judgment and order requires interference to the extent of Appellant No. 2's conviction.
28. Therefore, the appeal partly succeeds and following order is passed.
(A) Criminal Appeal is partly allowed for Appellant No. 2.
(B) The judgment and order dated 14.08.1998 passed by Additional Sessions Judge, Malegaon, District Nashik in Sessions Case No. 122 of akn 20/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 ::: Crim Apl 690-98 J C2.doc 1993 convicting and sentencing the Appellant No. 2, is set aside and Appellant No. 2 is acquitted of charge under section 376 of the IPC.
(D) The Appellant No. 2 is directed to execute PR bond in the sum of Rs.15,000 within a period of one month under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437A of Cr.P.C.) to ensure their presence in case an appeal is preferred.
(E) Criminal Appeal is dismissed for Appellant No. 1, thereby confirming his conviction and sentence under impugned Judgment and Order dated 14.08.1998.
29. At this stage, learned Counsel for the Appellants seeks stay to the operation of the present order for a period of 6 weeks for Appellant No. 1 or suspension of his sentence. Request is opposed by learned APP. Considering the facts and circumstances, the Appellant No. 1 is granted six weeks' time to surrender.
(M. M. SATHAYE, J.) akn 21/21 ::: Uploaded on - 20/01/2026 ::: Downloaded on - 23/01/2026 21:35:15 :::