Bombay High Court
Nitin Ashok Shewale vs The State Of Maharashtra on 15 February, 2019
Equivalent citations: AIRONLINE 2019 BOM 181
Author: A.M.Badar
Bench: A.M.Badar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.903 OF 2015
Mr.Nitin Ashok Shewale,
An adult age about 24 years,
Occ.- Agriculturist,
R/o.Village-Mokbhangi,
Taluka-Kalwan, Dist.-Nashik. ... Appellant
V/s.
The State of Maharashtra,
through Senior Inspector of Police,
Kalwan Police Station, Kalwan,
Dist.-Nashik. ... Respondents
.....
Mr.B.K.Barve, Advocate for the Appellant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 15th FEBRUARY 2019.
Oral Judgment :
1 By this appeal, appellant/accused No.3 Nitin Shewale
is challenging the Judgment and Order dated 12/01/2015 passed
by the learned Additional Sessions Judge, Nashik in Sessions Case
No.23 of 2012 thereby convicting appellant/accused No.3 Nitin
Shewale of the offence punishable under Section 376(2)(g), 363
read with Section 34, 366-A read with Section 34 as well as under
Section 341 read with Section 34 of the Indian Penal Code. For
the offence punishable under Section 376(2)(g) of the Indian
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Penal Code, appellant/accused No.3 Nitin Shewale is sentenced to
suffer rigorous imprisonment for ten years apart from payment of
fine of Rs.1,000/- and default sentence of rigorous imprisonment
for six months. For the offence punishable under Section 363 read
with Section 34 of the Indian Penal Code, appellant/accused No.3
Nitin Shewale is sentenced to suffer rigorous imprisonment for
seven years apart from payment of fine of Rs.1,000/- and default
sentence of rigorous imprisonment for six months. For the offence
punishable under Section 366-A read with Section 34 of the Indian
Penal Code, appellant/accused No.3 Nitin Shewale is sentenced to
suffer rigorous imprisonment for seven years apart from payment
of fine of Rs.1,000/- and default sentence of rigorous
imprisonment for six months. For the offence punishable under
Section 341 read with Section 34 of the Indian Penal Code,
appellant/accused No.3 Nitin Shewale is sentenced to suffer
rigorous imprisonment for one month apart from payment of fine
of Rs.500/- and default sentence of rigorous imprisonment for
seven days. Co-accused No.1 Vicky @ Vikesh and accused No.2
Vishal were also convicted and sentenced in similar manner by the
learned trial Court. The learned trial Court had directed that
substantive sentences shall run concurrently.
2 Facts in brief leading to conviction and resultant
sentences imposed on appellant/accused No.3 Nitin Shewale as
well as the co-accused are thus :
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(a) The P.W.No.2 is the alleged victim of the crime in question.
Alleged incident of gang rape on her took place at about 9.30
a.m. of 04/10/2011 by the side of Darebhangi to Mokbhangi
tar road, when she along with her classmate P.W.No.7 Alka
Dhumse were proceeding to attend their school viz. Mahatma
Phule School situated at village Mokbhangi. They both were
studying in 10th Std. in the said school.
(b) According to the case of prosecution, accused No.1 Vicky @
Vikesh, accused No.2 Vishal and appellant/accused No.3 Nitin
Shewale were having evil-eyes on the prosecutrix/ P.W.No.2.
When the prosecutrix/ P.W.No.2 accompanied by her friend
P.W.No.7 Alka Dhumse were proceeding by foot from their
village Dalya Ambapada towards Mokbhangi for attending the
school by Darebhangi to Mokbhangi road, all accused persons
came on one motorcycle. They accosted the prosecutrix/
P.W.No.2 on that road. Accused No.1 Vicky @ Vikesh
questioned the prosecutrix/P.W.No.2 as to what is her answer
to his love towards her. The prosecutrix/ P.W.No.2 replied
that she belongs to Kokna caste. Then accused No.1 Vicky @
Vikesh caught hold of the prosecutrix/ P.W.No.2. Then her
friend P.W.No.7 Alka Dhumse ran towards village Mokbangi
by shouting. Accused No.2 Vishal and appellant/accused
No.3 Nitin Shewale also caught hold of the prosecutrix/
P.W.No.2. She was taken by the side of the road in an
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uncultivated field. The prosecutrix/ P.W.No.2 was trying to
extricate herself from clutches of the accused persons. She
suffered injury on her left hand by nail of accused No.1 Vicky
@ Vikesh. He then grounded the prosecutrix/ P.W.No.2,
opened the string of her slacks, removed her knicker and
committed forcible sexual intercourse with her when co-
accused Vishal and appellant/ accused No.3 Nitin Shewale
were standing near the teak tree. Thereafter, co-accused
Vishal removed his pant and committed forcible sexual
intercourse with her when the prosecutrix/ P.W.No.2 was still
lying on the ground. After accused No.2 Vishal finished the
act, appellant/accused No.3 Nitin Shewale committed forcible
sexual intercourse with her. Because of kiss of accused No.1
Vicky @ Vikesh, lips of the prosecutrix/ P.W.No.2 were
swollen. After finishing the act, all accused persons went by
motorcycle towards village Mokbhangi.
(c) The prosecutrix/ P.W.No.2 then proceeded towards school at
village Mokbhangi by wearing her clothes. On the way, Sarita
and Sunita, who were her classmates met her. She disclosed
the incident to them. On reaching the school, the
prosecutrix /P.W.No.2 disclosed the incident to P.W.No.6
Arun Gujar, Headmaster, class-teacher B.Y.Sonawane and
other teachers named Sawant and Pawar. She was then sent
to Police Station, Kalwan on 04.10.2011 itself by informing
her parents. At the said police station, the prosecutrix/
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P.W.No.2 lodged her report (Exhibit 34), which resulted in
registration of Crime No.I-51 of 2011 for the offences
punishable under Sections 376(2)(g), 363, 366-A, 341, 323,
506 of the Indian Penal Code as well as under Section 3(2)
(x), 11 and 12 of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as
the 'Atrocities Act' for the sake of brevity). During the course
of investigation, the prosecutrix/ P.W.No.2 was sent to
Government Medical Hospital, Nashik, where she was
examined by P.W.No.10 Dr.Vasant Jamdhade on the very
same day i.e. on 04/10/2011. The prosecutrix/ P.W.No.2
showed the spot of incident to police on 04/10/2011 itself
and accordingly, spot panchanama (Exhibit 31) came to be
drawn in presence of panch witnesses P.W.No.1 Shankar
Chaure and P.W.No.4 Vishwanath Jagtap. On the day of
alleged incident i.e. on 04/10/2011, clothes of the
prosecutrix/ P.W.No.2 came to be seized vide panchanama
(Exhibit 40) in presence of P.W.No.4 Vishwanath Jagtap.
Accused persons including appellant/ accused No.3 Nitin
Shewale came to be arrested on the very same day and their
clothes came to be seized vide panchanamas (Exhibits 42 to
44) in presence of P.W.No.5 Waman Jagtap. Statements of
witnesses came to be recorded. Ossification test was
conducted on the prosecutrix/ P.W.No.2 by P.W.No.9
Dr.Trimbak Chavan on 05/10/2011. During the course of
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investigation, nail clippings of the prosecutrix/ P.W.No.2 as
well as accused persons, samples of their pubic hairs, samples
of semen of accused persons, samples of vaginal swab and
vaginal smear of the prosecutrix/ P.W.No.2 came to be drawn
and seized. Thus, these samples so also seized clothes came to
be forwarded vide letter (Exhibit 69) for chemical analysis by
Investigating Officer P.W.No.11 Pradnya Jedge, Deputy
Superintendent of Police, Malegaon Rural. On completion of
investigation, the accused persons including
appellant/accused No.3 Nitin Shewale came to be charge-
sheeted.
(d) The learned trial Court framed the charge for the offences
punishable under Sections 363 read with Section 34, 366-A
read with Section 34, 341 read with Section 34, 323 read
with Section 34, 506 read with Section 34 and 376(2)(g) of
the Indian Penal Code as well as under Section 3(2)(x) of the
Atrocities Act.
(e) In order to bring home the guilt to appellant/accused No.3
Nitin Shewale along with other co-accused, the prosecution
has examined in all eleven witnesses. Shankar Chaure , a
spot panch is examined as P.W.No.1. Exhibit 31 is the spot
panchanama dated 04/10/2011. The prosecutrix is examined
as P.W.No.2. Report lodged by her on 04/10/2011 is at
Exhibit 34. Her father Vasant is examined as P.W.No.3.
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Panch witness to the spot panchanama as well as seizure of
clothes of the prosecutrix/P.W.No.2 namely Vishwanath
Jagtap is examined as P.W.No.4. Exhibit 40 is the seizure
panchanama dated 04/10/2011 by which slacks, white shirt,
blue frock and knicker of the prosecutrix/ P.W.No.2 came to
be seized. Waman Jagtap - a panch witness to seizure
panchnamas (Exhibit 42 to 44) by which clothes of accused
persons came to be seized, is examined as P.W.No.5. Arun
Gujar, Headmaster of Mahatma Phule School is examined as
P.W.No.6. Alka Dhumse, who was accompanied the
prosecutrix/ P.W.No.2 on the day of the incident is examined
as P.W.No.7. Yogesh Shewale, Police Patil of Mokbhangi is
examined as P.W.No.8. Dr.Trimbak Chavan, radiologist
working at the Government Medical Hospital, Nashik is
examined as P.W.No.9. Exhibit 56 is the report of ossification
test. Dr.Vasant Jamdhade, Medical Officer working at
Government Medical Hospital, Nashik is examined as
P.W.No.10. His report of medical examination of the
prosecutrix/ P.W.No.2 is at Exhibit 59. Investigating Officer
Pradnya Jedge, Deputy Superintendent of Police, Malegaon
Rural is examined as P.W.No.11. Exhibit 69 is the letter
forwarding seized articles including samples to the Forensic
Laboratory, Mumbai for chemical analysis. Chemical Analysis
Reports are at Exhibit 14, 15 and 16.
(f) Defence of the accused persons was that of total denial. They,
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however, did not enter in defence. According to them, they
are falsely implicated in the crime in question.
(g) After hearing the parties, by the impugned Judgment and
Order, the learned trial Court was pleased to held that there is
ample material on record to hold that the accused persons are
guilty of the offences of gang rape on the prosecutrix/
P.W.No.2 after wrongfully restraining her and then
kidnapping her with an intention to subject her to illicit
intercourse. Accordingly, all accused persons came to be
convicted and sentenced as indicated in the opening
paragraph of this Judgment.
3 I heard the learned Counsel appearing for
appellant/accused No.3 Nitin Shewale. He argued that as per
Medico Legal Certificate issued by P.W.No.10 Dr.Vasant
Jamdhade, the victim of the subject crime had given history of
rape on her by one person whereas in the FIR she has implicated
three persons as an accused. The FIR itself so also evidence of the
alleged victim shows that she tried to rescue herself from accused
persons. However, in submission of the learned Counsel for the
appellant/accused No.3 Nitin Shewale, medical evidence is not
supportive to this version of the prosecutrix. Though the
prosecutrix/P.W.No.2 had deposed that she suffered injuries on
her hand, leap and back, P.W.No.10 Dr.Vasant Jamdhade has not
noticed any injury on the victim, who complained of gang rape by
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three adult persons on rough surface of the field. The learned
Counsel further argued that the spot panchanama so also evidence
of the prosecutrix/P.W.No.2 and panch witnesses to the spot
panchanama, the alleged incident took place by the side of the
road having traffic. He argued that it is case of the prosecution
that three accused persons successively raped the prosecutrix,
however, still neither prosecutrix suffered the injury nor any
passerby had noticed the incident. With this, the learned Counsel
argued that appellant/accused No.3 Nitin Shewale deserves
benefit of doubt.
4 As against this, the learned Additional Public
Prosecutor argued that the prosecutrix/P.W.No.2 as well as her
classmate P.W.No.7 Alka Dhumse are star witnesses and their
version is sufficient for recording conviction against
appellant/accused No.3 Nitin Shewale and other co-accused.
5 I have considered the submissions so advanced and
perused the Record and Proceedings including oral as well as
documentary evidence adduced by the prosecution.
6 The prosecutrix/ P.W.No.2 along with her family
members including her father P.W.No.3 Vasant used to reside at
village Dalya Ambapada in Kalwan Taluka of Nashik District.
According to the prosecution case, on the date of alleged incident
i.e. 04/10/2011, she along with her schoolmate P.W.No.7 Alka
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Dhumse were proceeding by Darebhangi to Mokbhangi tar road
for attending Mahatma Phule School where they were studying in
10th Std. On the way to the school, they were accosted by accused
persons and then the prosecutrix/ P.W.No.2 was subjected to rape
by all three accused persons. In order to bring on record the
situation prevalent on the scene of occurrence, the prosecution has
placed reliance on spot panchanama (Exhibit 31), which came to
be recorded soon after the incident i.e. at about 2.30 p.m. of
04/10/2011. It was got proved through panch witness P.W.No.1
Shankar Chaure and P.W.No.4 Vishwanath Jagtap who had
actually inspected the spot. As per version of P.W.No.1 Shankar
Chaure, the spot of the incident was at Darebhangi shiwar in an
uncultivated field adjacent to the road. In words of P.W.No.4
Vishwanath Jagtap, the spot of the incident was at a distance of 20
to 25 feet from Darebhangi to Mokbhangi road. P.W.No.4
Vishwanath Jagtap has categorically deposed that the spot of the
incident was shown to them as well as police by the
prosecutrix/P.W.No.2 and on inspection of the spot, panchanama
(Exhibit 31) came to be recorded. P.W.No.4 Vishwanath Jagtap
has candidly stated that the soil at the spot of the incident was wet
and there were signs of rubbing of legs. As per version of both
these witness, one ear ring was found lying on the spot. Both
these panch witnesses have stated that spot of the incident was
visible from the tar road. P.W.No.1 Shankar Chaure has stated
that many bullock-carts as well as people used that road. As per
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version of P.W.No.4 Vishwanath Jagtap, the said road leading
from Darebhangi to Mokbhangi is a road with traffic. The
prosecutrix/PW-2 who used to go to her school daily by that road
has stated in her cross-examination that buses as well as other
vechiles used to pass from that road. On this backdrop, recitals in
the spot panchanama (Exhibit 31) shows that the spot of the
incident where the prosecutrix/ P.W.No.2 was subjected to rape by
accused persons was at a distance of 25 feet from the tar road
proceeding from Darebhangi to Mokbhangi village. The soil at
that place was wet. Same situation of the spot of the incident is
reflected from the sketch map of the scene of occurrence which is
at Exhibit 66. Thus evidence adduced by the prosecution makes it
clear that the place where the prosecutrix/ P.W.No.2 was allegedly
subjected to rape by three adult persons successively was clearly
visible from the Darebhangi to Mokbhangi road which was a busy
road having traffic of people vehicles as well as bullock-carts. The
soil at that place was wet probably because of rain. Recitals in the
spot panchanama prepared within few hours of the incident shows
that the soil on the spot of the incident was wet. One ear ring was
found lying on the spot of the incident which came to be seized
during the course of preparation of the spot panchanama. With
this, let us now ascertain what the victim of the crime in question
is deposing about the incident.
7 Before actually adverting to evidence of the alleged
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victim of the crime in question, it needs to be put on record that in
sexual offence, if version of the prosecutrix is found credible and
consistent, then the same can form basis of conviction without any
corroboration thereto. Evidence of a victim of sexual assault stands
on a higher pedestal than the evidence of an injured witness. If
evidence of the victim of sexual offence does not suffer from basic
infirmities and the probability factor does not render it unworthy
of credence, then corroboration cannot be insisted except from
medial evidence, where, having regard to the circumstances of the
case, availability of medical evidence can be expected. The
alleged victim of the crime in question i.e. the prosecutrix/
P.W.No.2 and her classmate P.W.No.7 Alka Dhumse were taking
education in 10th Std. at Mahatma Phule School of Village
Mokbhangi, as seen from their evidence as well as evidence of
Headmaster of the school P.W.No.6 Arun Gujar . The prosecutrix/
P.W.No.2 as well as P.W.No.7 Alka Dhumse deposed that on
04/10/2011, they were proceeding to school by walk and on the
way, all three accused persons including appellant/accused No.3
Nitin Shewale came by one motorcycle and accosted them. Both
these witnesses stated that accused No.1 Vicky @ Vikesh
questioned the prosecutrix/ P.W.No.2 about his proposal of love
and the prosecutrix/ P.W.No.2 replied that her caste is Kokana.
While in the dock, the prosecutrix/ P.W.No.2 has stated by way of
improvement to her version that she answered that proposal in
negative. As stated by the prosecutrix/P.W.No.2 and her
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classmate P.W.No.7 Alka Dhumse, then accused No.1 Vicky @
Vikesh caught hold of hand of the prosecutrix/ P.W.No.2 and
started dragging her by the side of the road. The prosecutrix/
P.W.No.2 as well as P.W.No.7 Alka Dhumse then started shouting.
Both these witnesses are unanimous in stating that then P.W.No.7
Alka Dhumse ran away towards her school.
8 As per version of the prosecutrix/P.W.No.2, then
accused persons by holding her hands, took her in an uncultivated
field by the side of the road. Though, she made hue and cry
nobody helped her. She tried to rescue herself, but the accused
persons held her by force. Then, as stated by the prosecutrix/
P.W.No.2, accused No.1 Vicky @ Vikesh fell her down. He then
untied string of her slacks and removed her knicker. Thereafter,
accused No.1 Vicky @ Vikesh removed his pant and committed
rape on her. The prosecutrix/ P.W.No.2 further testified that then
accused No.2 Vishal removed his pant and committed rape one
her. Thereafter, as stated by the prosecutrix/ P.W.No.2,
appellant/ accused No.3 Nitin Shewale also committed rape on
her. As per her version, due to her resistance, her ear ring fell
down and because of kiss by accused No.1 Vicky @ Vikesh her lips
were swollen. She suffered injury to her left hand by nails of
accused No.1 Vicky @ Vikesh. The prosecutrix/ P.W.No.2 stated
that then accused persons went towards village and she
immediately put on her clothes and started walking towards her
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school while weeping and at that time her friend Sarita and Sunita
came and asked her as to why she is weeping. She disclosed the
incident to them and they took her to her school at village
Mokbhangi. The prosecutrix/ P.W.No.2 categorically deposed that
she disclosed the incident to her Headmaster - P.W.No.6 Arun
Gujar so also her class-teacher - D.Y.Sonawane. She was then sent
to Police Station Kalwan where she lodged report (Exhibit 34).
The prosecutrix/ P.W.No.2 further stated that then she was sent to
Civil Hospital, Nashik for medical examination.
9 It is seen from cross-examination of the prosecutrix/
P.W.No.2 that prior to entering into witness box, she sought
several adjournments on the ground of her illness as well as other
reasons. She stated that on all those dates, she as well as her
relatives had come to the Court. She further denied the
suggestions that she and her relatives demanded money from
accused persons for giving favourable evidence. However, her
cross-examination suggests that she along with her relatives used
to come to the Court for adducing evidence on several dates, but
she used to seek adjournments on various pretext rather than
entering in the witness box. P.W.No.3 Vasant is father of the
prosecutrix/P.W.No.2. His cross-examination also shows that he
was attending the Court for adducing evidence since last eight to
ten dates prior to entering into the witness box. He also denied
that there was demand of money from accused persons and their
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relatives, but they refused to pay him. P.W.No.3 Vasant was
informed about the incident and he saw his daughter at the Police
Station with a swollen lips as deposed by him.
10 As per version of P.W.No.7 Alka Dhumse, after she left
the spot, she went to her school and narrated the incident to the
girls, who in turn told teachers about the said incident. P.W.No.7
Alka Dhumse has stated that after some time, the prosecutrix/
P.W.No.2 was brought to the school by two girls and at that time,
hair of the prosecutrix/ P.W.No.2 were scattered and her lips were
swollen. This witness identified accused persons while in the
dock. She stated that the incident was told to P.W.No.6 Arun
Gujar, Headmaster by girl students. As per her version in the
cross-examination, she never used to go to school with the
prosecutrix/P.W.No.2 nor she used to come back to her house with
the prosecutrix/ P.W.No.2.
11 Careful scrutiny of evidence of P.W.No.7 Alka Dhumse
shows that it was only on the day of alleged incident i.e. on
04/10/2011, she claimed to have accompanied the prosecutrix/
P.W.No.2 to the school. She seems to be a chance witness.
Though she noticed the incident of accused No.1 Vicky @ Vikesh
dragging her friend after all accused persons accosted them, she
had not chosen to disclose that incident directly either to the
Headmaster or to their class-teacher. Her cross-examination
shows that prior to the incident, she was not even knowing names
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of appellant/accused/accused. Therefore, her claim that she was
knowing the accused persons as they used to give call to the
prosecutrix/P.W.No.2 and they used to pelt stones at the
prosecutrix/P.W.No.2 when she used to go by S.T. bus seems to be
doubtful. Conduct of P.W.No.7 Alka Dhumse does not seems to be
a normal and natural conduct of a human being. Her evidence
fails to explain as to why after noticing the act of kidnapping of
her classmate and her friend, she has not reported the incident to
either to the Headmaster to their class-teacher for providing help
to her friend.
12 P.W.No.6 Arun Gujar, Headmaster of the school where
the prosecutrix/ P.W.No.2 was taking education has stated that on
04/10/2011, relatives of the prosecutrix/P.W.No.2 as well as
others gathered at the school and then he came to know that the
prosecutrix/P.W.No.2 was harassed at the place away from the
school. This Headmaster showed his inability to state names of
those boys, who harassed the prosecutrix/P.W.No.2, but has stated
that she came weeping and at that time, her hair were scattered.
He testified that there was abrasion on her hand and she was
breathing fast. P.W.No.6 Arun Gujar, Headmaster has not
supported the prosecution case so also version of the
prosecutrix/P.W.No.2, that she narrated the incident of
commission of rape on her by accused persons to him. As per
version of this witness all that he head about the incident is
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harassment of the prosecutrix/P.W.No.2 by some boys at a place
away from the school. He has also spoken about meeting of the
School Committee convened for taking action against rowdy boys,
who used to tease girls from the school. This evidence of P.W.No.6
Arun Gujar is not reflecting any recitals allegedly made by the
prosecutrix/P.W.No.2 to him after the incident about the incident
which took place with her. In other words, evidence of this
witness is not corroborating evidence of the victim so far as her
former statement allegedly made to him by her.
13 Case in hand is that of a gang rape by three males on a
virgin girl, who was taking education in 10 th Std. at the relevant
time. As per prosecution case, the victim was dragged in an
uncultivated field by the side of the road and by pining her down
and removing her slacks and knicker, she was subjected to
forcible sexual intercourse by accused persons. In foregoing
paragraphs, situation prevalent on the spot of the incident is
already stated. Suffice to state that it was a spot visible from the
road. The soil at the place of the incident was wet as seen from
the recitals of the spot panchanama as well as evidence of
P.W.No.4 Vishwanath Jagtap. On this backdrop, it is case of the
prosecution that clothes of the prosecutrix/P.W.No.2 came to be
sized on the day of the incident itself i.e. on 04/10/2011 vide
seizure panchnama (Exhibit 40). Clothes seized were white colour
slacks, white shirt, blue frock with white belt and a knicker.
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Neither seizure panchanama (Exhibit 40) nor evidence of
P.W.No.4 Vishwanath Jagtap, a panch witness shows that any of
these clothes were having stains of mud. Even the
prosecutrix/P.W.No.7 has not spoken of staining her clothes with
mud. Even if it is assumed that while doing forcible sexual
intercourse with her, slacks and knicker of the
prosecutrix/P.W.No.2 were removed by the accused persons then
also she was wearing blue colour frock with white colour shirt.
The prosecutrix/P.W.No.2 claimed to be subjected to rape after
felling her down to the ground by accused persons. She stated
that she was subjected to forcible sexual intercourse one by one by
three accused persons, after untying string of her slacks and by
removing her knicker meaning thereby that she was still wearing a
frock and shirt during the act. When the ground was wet and spot
of the incident was in an uncultivated field, it was but natural to
have her frock and shirt stained with mud from backside.
Evidence on record shows that clothes of the prosecutrix/
P.W.No.2 were sent for chemical analysis. However, CA report
Exhibit 40 is not showing any stains of mud on clothes of the
prosecutrix. During chemical analysis, no mud was found on her
clothes. Thus, version of the prosecutrix/ P.W.No.2 that she was
raped after pinning her down by all three accused persons
successively seems to be improbable and contrary to the
contemporaneous documentary evidence adduced by the
prosecution.
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14 Next important circumstance emerging from the
record which is making the version of the prosecutrix/P.W.No.2
highly doubtful is result of her medical examination. The
prosecutrix/ P.W.No.2 claimed to have suffered gang rape at about
9.30 a.m. of 04/10/2011. She stated that after felling her down by
accused No.1 Vicky @ Vikesh, all three accused persons have
successively committed forcible sexual intercourse on her one by
one. On the very same day she lodged FIR and immediately she
was sent to Civil Hospital, Nashik, where she was examined by
P.W.No.10 Dr.Vasant Jamdhade. The prosecutrix/P.W.No.2 in her
evidence has categorically stated that because of forcible sexual
intercourse by three accused persons, she suffered injuries to her
hand as well as back. Her FIR (Exhibit 34) contains an averment
that she was raped by all three accused persons. However, when
on the very same day, she was taken P.W.No.10 Dr.Vasant
Jamdhade, Medical Officer of Civil Hospital, Nashik, she gave
history of forcible vaginal intercourse by one person only. Medico
Legal Certificate at Exhibit 59 shows that the
prosecutrix/P.W.No.2 was examined by P.W.No.10 Dr.Vasant
Jamdhade at about 9.30 p.m. of 04/10/2011 though P.W.No.10
Dr.Vasant Jamdhade had wrongly stated before the Court that he
examined the prosecutrix/P.W.No.2 at about 9.00 a.m. of
05/10/2011. Ignoring this discrepancy, evidence of P.W.No.10
Dr.Vasant Jamdhade so also contemporaneous Medico Legal
Certificate at Exhibit 59 containing the record of medical
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examination the prosecutrix/ P.W.No.2 shows that her medical
examination was conducted within twelve hours from the alleged
incident. There was not a single visible external injury on the
person of the prosecutrix/P.W.No.2. P.W.No.10 Dr.Vasant
Jamdhade had not noticed any injury on the genitals or private
parts of the prosecutrix/P.W.No.2. He did not notice any active
bleeding or tenderness in the vagina, vulva, perineum of forchtte
of the prosecutrix/P.W.No.2.
15 Medical evidence shows that there was no injury to
vulva, vagina, perineum or forchtte of the prosecutrix/P.W.No.2,
though she claimed to have been raped by three adult males on
the very same day of her medical examination. If a girl aged
about 16 to 17 years was really subjected to forcible sexual
intercourse by three adult male boys by feeling her on the ground
at the open uncultivated field, then she would have suffered some
external injuries as well as internal injuries. Swelling, bleeding
and tenderness in private part of the school going girl who is
victim of the instant crime can be expected if such incident takes
place in the manner shouted by the victim and if victim is
medically examined within few hours of the incident. P.W.No.10
Dr.Vasant Jamdhade has accepted this fact in his cross-
examination. He also admitted in cross-examination that if such
incident took place at uncultivated field, then the rapist also get
injuries into the nature of abrasion or other kind on his knee.
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However, in the incident in question the prosecutrix/P.W.No.2 had
not suffered a single scratch and even report of medical
examination of accused No.3 shows that he has also not suffered
any external injury. P.W.No.10 Dr.Vasant Jamdhade had not
noticed the fact of swelling on lips of the prosecutrix/P.W.No.2.
Non-finding of any injury either external or internal on the person
of the prosecutrix/P.W.No.2 and negative medical evidence makes
her version about commission of gang rape on her highly doubtful.
In somewhat similar situation, following are the observations of
the Honourable Apex Court found in paragraphs 12 and 13 in its
judgment in the matter of Dola @ Dolagobinda Pradhan & Anr.
v. The State of Odisha1
"12. Curiously, the victim has not sustained any injury
except some bruises on her cheeks. Her clothes were not
even soiled with mud. In her cross-examination, she
admitted that there was a tussle at the time of the
alleged incident, and that she tried to save herself. She
also stated that both the accused persons physically
lifted her from the spot, and her bangles had been
broken, by which she had sustained bleeding injuries on
her hands. Furthermore, she said that she also sustained
marks of violence on her hands. She did not sustain any
injury on her knee, breasts and buttocks. She stated that
she has no acquaintance with the accused persons and
she did not have any kind of dealings with them. She
further admitted that she had worn eight bangles on
1 2018 ALL SCR (Cri.) 1394.
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each of her hands and all her bangles on the right hand
were broken and only one bangle of the left hand
remained unbroken, and that all the bangles were broken
at the spot of offence.
13. Although the prosecutrix admitted that she sustained
bleeding injuries on her hand because of the shattering
of eight bangles worn by her on her right hand and seven
bangles on her left hand, and had marks of violence
present on her body, the medical records do not support
the said version. The report of the medical examination is
at Ext. 4. It is clearly mentioned in the said report that
there is a bruise mark measuring half a centimeter,
which can be caused by a hard and sharp object, on the
right cheek. No other mark of injury was seen anywhere
on the body. There is no injury on the breasts, there is no
internal injury on any part of the body and no injury was
found on the vulva, pelvis and vagina. There are no signs
of injury on the thighs as well. Except for one bruise on
cheek which measures half a centimeter, no other injury
was found on the victim and the same is clear from the
medical report (Ext. 4)."
16 Despite the fact that the prosecutrix/P.W.No.2 had
reported to police in the FIR (Exhibit 35) lodged on the day of the
incident that she was subjected to gang rape by three accused
persons, why she has stated to P.W.No.10 Dr.Vasant Jamdhade
that she was subjected to forcible vaginal intercourse by one
person on that day is not explained by the prosecutrix/P.W.No.2 in
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its evidence. Cross-examination of this P.W.No.10 Dr.Vasant
Jamdhade shows that this history was given by the prosecutrix/
P.W.No.2 to him when she was examined by him. She was
examined by this Medical Officer on the day of the incident itself
and this narration of the prosecutrix/P.W.No.2 to the Medical
Officer even after lodgment of the FIR creates a serious doubt on
her version which is regarding gang rape by three accused
persons.
17 The prosecutrix/P.W.No.2 has stated in her evidence
that all accused persons committed rape on her successively and
after that incident was over, she immediately put her clothes and
started proceeding towards her school. This is happened on
04/10/2011 and after lodgment of the FIR immediately, her
clothes were seized on 04.10.2011 itself vide seizure panchanama
(Exhibit 45). On the very same day of the incident, at the time of
her medical examination sample of public heir, vaginal swab as
well as vaginal smear of the prosecutrix/P.W.No.2 were taken.
Report of medical evidence of the the prosecutrix/ P.W.No.2
which is at Exhibit 59 shows that the prosecutrix/ P.W.No.2 have
not taken bath prior to drawing those samples which has done the
very same day of the incident itself. Seizure panchanama (Exhibit
40) shows that at about 4.30 p.m. of 04/10/2011, clothes of the
prosecutrix/P.W.No.2 including her knicker and slacks came to be
seized before the P.W.No.1 Shankar Chaure. All these articles
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were sent for chemical analysis by Investigating Officer P.W.No.11
Pradnya Jedge with a forwarding letter (Exhibit 69). If really the
prosecutrix/P.W.No.2 was subjected to rape in an uncultivated
field successively by three accused persons and as claimed by her
if she had immediately put on her knicker and slacks after the act
and started proceeding towards her school, then because of
vaginal discharge, there ought to be some stains of semen on her
pubic hair, knicker and slacks. As the sample were drawn on the
day of the incident itself, in every probability her vaginal swab
ought to have contain spermatozoa. However, forensic evidence
like medical evidence is not supporting the case of the prosecution
in any manner. Chemical Analysis report at Exhibit 15 shows that
no semen was found on either vaginal swab or vaginal smear of
the prosecutrix/P.W.No.2. Chemical Analysis report at Exhibit 16
shows that no semen was found on knicker, petticoat or frock of
the prosecutrix/P.W.No.2. Thus, medical evidence as well as the
forensic evidence is an contradiction with evidence of the
prosecutrix/P.W.No.2.
18 In foregoing paragraphs of this Judgment I have also
stated situation prevalent on the spot of the incident. It was just
adjacent to Darebhangi to Mokbhangi tar road which, according to
the version of the prosecutrix/ P.W.No.2, is a road having
vehicular traffic. Even P.W.No.1 Shankar Chaure has stated that
many bullock-carts as well as people to use that road. The spot of
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incident was clearly visible from the adjoining road having heavy
traffic. The incident alleged was that of gang rape by three adult
persons by kidnapping and restraining the prosecutrix/ P.W.No.2
and her friend P.W.No.7 Alka Dhumse. Thus, on this backdrop,
how the incident went unnoticed by anybody else is a question
which is not getting answer from evidence of the prosecution.
19 In my considered opinion, the trial Court has convicted
appellant/accused No.3 Nitin Shewale without considering all
these circumstances in their proper perspectives. The learned trial
Court failed to consider all the circumstances meticulously in the
wake of the fact that the medical and forensic evidence is totally in
contradiction with evidence of the prosecution. Inconsistencies
the case of prosecution were lurking from documentary evidence
adduced by the prosecution itself. However, it is seen that the
learned trial Court has proceeded on the basis of assumptions and
presumptions by concluding that there is ample evidence on
record to prove the guilt. Evidence adduced by the prosecution is
not of a standard required in criminal trial to prove the guilt.
Principle of criminal jurisprudence requires that the prosecution
must establish its case by cogent and convincing evidence. No
matter how serious and heinous the crime is, the burden always
rests on prosecution to prove guilt of the accused beyond all
reasonable doubts. The same principle is equally applicable to the
case of gang rape on the female victim. No doubt, allegations
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made against the accused persons by the prosecutrix/ P.W.No.2 is
very serious in nature, but the Court is duty bound to analyze the
evidence in its proper perspective and if evidence of the
prosecution does not prove the case beyond all reasonable doubts,
the benefit thereof needs to be granted to the accused. Perusal of
entire evidence adduced by the prosecution including oral as well
as documentary shows that for reasons stated in foregoing
paragraphs, case against the appellant/accused No.3 Nitin
Shewale was not proved beyond reasonable doubts and, therefore,
he could not have been convicted and sentenced as has been done
by the learned trial Court.
20 In the result, the following Order :
ORDER
(i) The Appeal is allowed.
(ii) The impugned Judgment and Order dated 12/01/2015 passed by the learned Additional Sessions Judge, Nashik in Session Case No.23 of 2012 so far as it relates to conviction of the appellant/accused No.3 Nitin Shewale of the offences punishable under Sections 376(2)(g), 363, 366-A, 341 read with Section 34 of the Indian Penal Code as well as resultant sentences is quashed and set aside.
(iii) Appellant/accused No.3 Nitin Shewale is acquitted of the Gaikwad RD 26/27 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 14:06:30 ::: (202)APEALNo.9032015(J).doc offences with which he was charged. He be released from the custody forthwith, if not required in any case.
(iv) The fine amount, if any, paid by appellant/accused No.3 Nitin Shewale be refunded to him.
(v) The Appeal is disposed of accordingly.
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