Bombay High Court
Mohd. Afroz S/O Jiyauddin Pathan vs State Of Mah., Thr Pso on 20 July, 2022
Author: G. A. Sanap
Bench: Sunil B. Shukre, G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 748 OF 2018
with
CRIMINAL APPEAL NO. 63 OF 2019
with
CRIMINAL APPEAL NO. 308 OF 2019
with
CRIMINAL APPEAL NO. 409 OF 2019
.......
CRIMINAL APPEAL NO. 748 OF 2018
APPELLANT : Ashwin S/o Ashok Donode,
Aged about 28 years, R/o Hudkeshwar,
Nagpur (Presently Central Prison at Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
With
CRIMINAL APPEAL NO. 63 OF 2019
APPELLANTS : 1] Anil S/o Raju Ingle,
Aged about 35 years, R/o Goregaon,
Santosh Nagar, Mumbai
2] Roshan @ Ashish S/o Madhukarrao Ingle,
Aged about 25 years,
R/o Nandanwan, Nagpur.
(Both presently Central Prison at Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
2 331 apeal748.18+3(J).odt
With
CRIMINAL APPEAL NO. 308 OF 2019
APPELLANT : Pundlik S/o Domaji Bhoyar,
Aged about 34 years,
R/o Sanjay Gandhi Nagar, Nagpur.
(presently in Central Prison, Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
With
CRIMINAL APPEAL NO. 409 OF 2019
APPELLANT : Mohd. Afroz S/o Jiyauddin Pathan,
Aged about 38 years, R/o Behind Kharbi
Police Chowki, Nagpur.
(Presently Central Prison at Nagpur)
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
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Shri C. R. Thakur, Advocate for the Appellants in Cri. Appeal
Nos.748/18, 63/19 and 409/19
Shri S. R. Shinde, Advocate for the appellant in Cri. Appeal
No. 308/19.
Shri S. S. Doifode, Addl.P.P. for the respondent / State
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CORAM : SUNIL B. SHUKRE and G. A. SANAP, JJ.
Judgment Reserved on : JUNE 28, 2022.
Judgment Pronounced on : JULY 20, 2022
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JUDGMENT :(Per : G. A. SANAP, J.)
1. These four appeals arise out of the judgment and order dated 23rd of October, 2018 passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No. 278 of 2016 and the same are being disposed of by this common judgment.
2. Criminal Appeal No.748 of 2018 is filed by appellant - Ashwin Ashok Donode/original accused no.4. Criminal Appeal No.63 of 2019 is filed by appellants Anil Raju Ingle / original accused Nos.3 and Roshan @ Ashish S/o Madhukarrao Ingle / original accused no.6 ; Criminal Appeal No. 308 of 2019 is filed by appellant - Pundlik S/o Domaji Bhoyar / Original accused No.5, Criminal Appeal No. 409 of 2019 is filed by appellant - Mohd. Afroz S/o Jiyauddin Pathan / original accused no.1.
3. The learned Additional Sessions Judge convicted all the appellants for the offences punishable under Sections 376(D), 366, 506(II), 170 read with Section 34 of the Indian Penal Code. They are awarded sentence for these offences as follows :
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(i) For the offence punishable under Section 376(D) read with Section 34 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for twenty years and to pay a fine of Rs.10,000/- each and in default to suffer rigorous imprisonment for one year.
(ii) For the offence punishable under Section 366 read with Section 34 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/- each and in default to suffer rigorous imprisonment for six months each.
(iii) For the offence punishable under Section 506(II) read with Section 34 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- each and in default to suffer rigorous imprisonment for six months each.
(iv) For the offence punishable under Section 170 read with Sec. 34 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- each and in default to suffer rigorous imprisonment for three months each.
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4. The learned Judge acquitted original accused no.2 - Sudarshan Gajanan Mhaiskar of all the offences. In this judgment, the appellants would be referred to by their numbers and nomenclature before the trial Court. The prosecutrix would be referred to as "the victim".
5. The report was lodged by the victim herself at Kalamna Police Station on 2nd December, 2014. The facts unfolded from the report reveal that she resides at Mangaldeep Nagar-2, Besa Road, Manewada, Nagpur with her family. At the relevant time, she was serving as an Assistant Teacher in St. Paul High School, Hudkeshwar, Nagpur. One Shailesh Sheware (PW4) got acquainted with the victim on facebook. They became friends. They used to meet with each other on account of their friendship. It is stated that on 1 st December, 2014 at about 2.00 pm Shailesh made a phone call to the victim and they decided to meet at Swaminarayan Temple, Wathoda, Nandanwan in the evening. The victim left a message with her neighbour Smt. Swati Bhongade and left her house at 6.15 p.m. on her Honda Activa moped bearing registration No. MH-31/ER-5226. Shailesh met her at Kharbi 6 331 apeal748.18+3(J).odt square. They together went to Swaminarayan Temple. After offering prayers, they proceeded towards H.B.Town square by highway. After proceeding on the highway at some distance, they took 'U' turn and stopped at one place and were talking to each other.
6. It is the case of the prosecution that at about 8.00 p.m., five persons came on motorcycles from behind and proceeded ahead of the victim and her friend Shailesh from the spot they were standing. Those five persons saw the victim and her friend Shailesh. They turned back and came to the victim and Shailesh. They made enquiry with them. They told them that they were police officials. The victim and Shailesh requested them to show their identity. On that they got annoyed and one of them admonished the victim as "pqi cSB] T;knk 'kkuh er cu- chBk budks xkMh is" (keep quite. Don't be over smart. Make them to seat on the vehicle. ) Thereafter, two persons amongst them carried the victim and forced her to sit on her Activa moped between rider and pillion rider. Shailesh (PW4) was also forced to sit on another motorcycle between the rider and pillion rider. One person amongst them was riding one motorcycle. They took the victim and 7 331 apeal748.18+3(J).odt Shailesh towards over bridge. After traveling some distance, accused sitting on the motorcycle came near Activa moped and informed the rider and pillion rider of Activa moped that the friend of the victim had managed to run away.
7. It is stated that the victim, therefore, raised hue and cry for help. The person sitting behind the victim on Activa moped covered the face of the victim by her scarf. He pressed her hands and gagged her month. In this condition, they carried the victim on a straight road for 15 - 20 minutes. Thereafter, they took right turn and proceeded by kachcha (unmetal) road for about five minutes. They stopped the vehicle. They removed odhani from her face. The victim was scared after looking at her surroundings. The victim realized that she was brought at some distance away from highway. The victim pleaded with the accused persons to allow her to go to her house. The victim saw that two persons were of slim built and were in the age group of 20-25 years. The remaining three persons were having strong built and were in the age group of 35-40 years. It is stated that one person out of them pointed a knife at her and told her that " T;knk ukVd 8 331 apeal748.18+3(J).odt er dj- tSlk cksyrs gS oSlk dj ugh rks dkVdj ;gh Qsd nsaxs" (Don't do any drama. Listen to us. Do whatever we want otherwise they would cut her into pieces and throw away.)
8. The victim was frightened. Those persons overpowered her. Two persons caught hold her hands and legs and the remaining persons removed all her clothes. One person spread a scarf on the ground. The victim pleaded them with folded hands to leave her. It is stated that all the five persons threatened to kill her with knife and committed forcible sexual intercourse with her one by one. The victim disclosed that six persons were involved in the crime. It is stated that when the victim was carried to the spot by five persons, one more person came there on motorcycle. In the head light of said motorcycle, she could see the faces of all the persons. The victim also stated that near the spot there were white colour tree-guards. On the spot, two persons opened the dicky of her Activa moped. They checked the same. One of them made enquiry about her name and address. She gave false answer to the question. They took out scarf from the dicky and one person put the same on his shoulder.
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9. It is stated that after the beastly act of satisfying the lust, accused persons asked the victim to wear her clothes. They brought her back on the road. After traveling some distance, the victim saw a sign board of Renuka College and realized that she was at village Besa. The victim requested those persons to leave her there because one of her friends was residing in the same area and from there she would return to her house with her friend. Those persons left the victim at the said place and went away. The victim did not go to the house of her friend. She came back to her house at about 9.00 pm. She narrated the incident to her father. The father took her to Kalamna police station. The victim reported the entire incident to police. On the basis of the report, Crime bearing No.401/2014 came to be registered against unknown persons. The victim was sent for medical examination at Mayo Hospital, Nagpur. She was medically examined. The Medical Officer (PW9) collected the clothes on the person of the victim. The Medical Officer also obtained blood sample of the victim.
10. The Investigating Officer conducted the investigation. Senior Inspector of Police, Crime Branch, Nagpur informed Kalamna 10 331 apeal748.18+3(J).odt Police Station about arrest of the accused persons. The Investigating Officer, therefore, obtained their custody and arrested them in above crime on 22nd December, 2014. The Investigating Officer drew the spot panchanama. He recorded the statements of the witnesses. At the instance of the accused persons, five knives were discovered. Blood samples of all the accused were collected. A Test Identification Parade of all the accused was conducted. Muddemal and samples seized during the course of investigation were forwarded to the Chemical Analyser for analysis. The Investigating Officer obtained medical examination report of the victim and opinion of the Medical Officer. On completion of the investigation, he filed charge-sheet in the Court of learned Judicial Magistrate, First Class, Nagpur. The offence being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Additional Sessions Judge, Nagpur. On committal of the case, the learned Additional Sessions Judge framed Charge (Exhibit-30) against all the accused persons. They pleaded not guilty. Their defence is of total denial and false implication.
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11. The prosecution has examined 21 witnesses and proved the number of documents to bring home the guilt against the accused. Learned Additional Sessions Judge, on consideration of the evidence and material on record, found five accused guilty of the above offences and sentenced them as mentioned above. Being aggrieved by this judgment and order, the appellants have come before this Court in appeal.
12. We have heard Shri C. R. Thakur, learned advocate for the appellants in Cri. Appeal Nos. 748/18, 63/19 and 409/19, learned Advocate Shri S. R. Shinde for the appellant in Cri. Appeal No.308/19 and Shri S. S. Doifode, learned Additional Public Prosecutor for the respondent/State in all the appeals. With their able assistance, we have gone through the record and proceedings.
13. Learned advocate Shri C.R. Thakur for the appellants in Cri. Appeal Nos. 748/18, 63/19 and 409/19 submitted that evidence of the victim (PW11) and her friend Shailesh (PW4) is full of omissions and inconsistencies and therefore, it do not inspire 12 331 apeal748.18+3(J).odt confidence. He submitted that identity of the accused persons has not been established beyond doubt. He took us through their evidence and submitted that the version of the victim (PW11) and Shailesh (PW4) would show that there was no electric or natural light on the spot and therefore, they had no chance to see the faces of the accused persons. The learned advocate submitted that during the course of investigation, photographs of the accused persons were shown to the victim and Shailesh (PW4) and therefore, the evidence of identification parade and identification of the accused persons in the said parade is not reliable. The learned advocate further submitted that if the incident of forcible sexual intercourse, as narrated by the victim, had occurred with her, then there would have been number of injuries on her body and particularly on her private part. In the submission of the learned advocate, absence of such injuries belies the version of the victim on actual occurrence of the incident of sexual intercourse. The learned advocate submitted that evidence of Shailesh (PW4) is not reliable. He is a got up and tutored witness. Evidence of Shailesh (PW4) is not corroborating the version of the victim on material aspects. The learned advocate further submitted that the C.A. reports 13 331 apeal748.18+3(J).odt and DNA report cannot be relied upon to establish the guilt of the appellants. He submitted that there is no cogent, concrete and reliable evidence adduced by the prosecution to establish that there was no possibility of tampering with the blood samples. The learned advocate took us through the evidence and pointed out the lacunae in the said evidence. The learned advocate submitted that the learned Additional Sessions Judge, in the backdrop of shaky evidence led by the prosecution, ought to have given benefit of doubt to the accused persons and acquitted them.
14. Shri S.R. Shinde, learned advocate for appellant/ original accused no.5 Pundlik Bhoyar in Criminal Appeal No. 309/2019, besides adopting the above submissions advanced by learned advocate Shri C.R. Thakur, submitted that on the basis of evidence of the victim, the learned trial Judge ought to have given benefit of doubt to accused no.5 and acquitted him. Learned advocate Shri Shinde submitted that the victim has categorically stated that the person having ailment such as leg fracture had attempted to commit rape on her. However, since his leg was fractured, he was unable to do intercourse. The learned 14 331 apeal748.18+3(J).odt advocate submitted that the learned Judge based on positive DNA report of cervical swab taken from cervix of the victim found accused no.5 guilty and convicted him. The learned advocate submitted that in view of the positive statement of the victim, conviction of accused no.5 cannot be sustained.
15. Shri S. S. Doifode, learned Additional Public Prosecutor submitted that the victim has narrated the first hand account of the incident and which the learned Judge has found sufficient to prove the incident. The learned APP has submitted that evidence of the victim (PW11) and Shailesh (PW4) is beyond pale of doubt. Their evidence has not been shaken in their cross-examination. Learned APP submitted that oral evidence of the victim on the actual occurrence of rape has been corroborated by her medical examination report, C.A. reports and DNA reports. He submitted that evidence of Test Identification Parade of the accused persons conducted by the Executive Magistrate (PW15) proves beyond doubt that the procedure was scrupulously followed and after scrupulously following the procedure, the victim and her friend Shailesh identified the accused 15 331 apeal748.18+3(J).odt persons in the said Test Identification Parade. Learned APP, in short, submitted that oral testimony of the victim and independent witness Shailesh has been corroborated by other cogent evidence.
16. We have minutely scrutinized the evidence on record. The victim (PW11) in her evidence before the Court has placed on record vivid account of the unfortunate incident occurred with her. On the date of the incident, the victim was working as a Teacher. She was unmarried. The victim, as stated by her, got acquainted with Shailesh (PW4) on facebook and they became friends. They were frequently meeting each other. At the time of the incident, the victim was 21 years of age. She was gainfully employed as a Teacher. At this stage of her life, she would be dreaming and planning to find a suitable match and settle in her life. The unfortunate and unforeseen incident would have scattered her dream to smithereens. The victim would not have imagined such a fait accompli in her wildest dreams. The accused were not known to the victim prior to the incident. It can be seen from the judgment of the learned trial Judge that accused Mohd. Afroz, Anil Ingle and Pundlik Bhoyar were convicted and sentenced vide 16 331 apeal748.18+3(J).odt judgment and order dated 24th August, 2017 in Special MCOC Case No.3/2005 by the learned Special Judge, Nagpur for the offences punishable under Sections 376-D, 366, 504, 506-B, 377 and 394 read with Section 34 of the Indian Penal Code. It is seen that the said incident had occurred on 26.11.2014. The girl in the said case was abducted and subjected to forcible sexual intercourse by these accused. In the said case, these accused had impersonated before the victim and her boyfriend as forest personnel and under the threat of knife, they abducted the girl and committed rape. It is seen that these accused persons in the past had tasted the blood and satisfied their lust by committing gang rape.
17. It would be necessary in the above backdrop to appreciate the evidence of the victim. The victim has stated that on 11 th December 2014, she and Shailesh decided to visit Swaminarayan Temple in the evening. At about 5.00 p.m. the victim proceeded on her Activa moped bearing registration No. MH-31/ER-5226. As decided, Shailesh came to Kharbi square and from there they went to Swaminarayan Temple and offered prayers. After having tea at 17 331 apeal748.18+3(J).odt canteen, they proceeded ahead by Kalamna road till H.B. town square. At village Lihigaon, they took 'U' turn for returning back to Nagpur. They stopped at the side of the road and were chit-chatting. The victim has stated that at that time, two motorcycles came from behind and went ahead of them. However, the persons on the bike returned back to them. They made enquiry with the victim and Shailesh. They impersonated them to be the policemen and told the victim and Shailesh that they would have to accompany them to Pardi police station. The victim has stated that she made an enquiry with them about their identity cards inasmuch as they were not wearing police uniform. She has stated that at this point of time, one person amongst them told her as "T;knk 'kk;uh er cu" (don't be oversmart) and brandished a knife at her. Those persons thereafter forcibly made the victim to sit on her Activa moped between the rider and pillion rider and Shailesh on another motorcycle between the rider and pillion rider. On the way, the rider of the motorcycle came near Activa moped and informed that companion of the victim has ran away. The victim at that time raised alarm by shouting " cpkvks] cpkvks" (save, save). She has further stated that thereafter her face was covered by a scarf and a knife 18 331 apeal748.18+3(J).odt was pointed at her waist. They carried the victim on the spot. The victim has narrated that they threatened her of dire consequences. She raised alarm. She has stated that at that point of time, one more person came there on the motorcycle. She saw all the accused persons clearly. She has stated that thereafter the accused persons removed her clothes forcibly and they all committed sexual intercourse with her. The victim has stated that she requested the accused with folded hands to let her go. Evidence of the victim would show that the accused persons did not free her before satisfying their beastly lust. The victim has elaborately stated about arrival of the accused persons on the spot, occurrence of the incident, the place where she was dropped by the accused persons after crime and narration of the incident to her father by her. Evidence of the victim is consistent with the facts stated in the report. The crime was registered against unknown persons. The victim was sent for medical examination. Clothes on the person of the victim at the time of occurrence of the incident were collected by the Medical Officer. Those were seized and handed over to the police officer. The Medical Officer collected the blood sample of the victim. The Medical Officer found two injuries on the back of the victim. The 19 331 apeal748.18+3(J).odt Medical Officer on examination, prima facie, opined that the victim was subjected to forceful sexual intercourse.
18. The victim was subjected to grueling cross-examination on behalf of the accused persons. Perusal of the cross-examination of the victim would show that her testimony was assailed on the ground that there was no sufficient light either on the road or on the spot, which would enable the victim to see the accused persons with clarity and identify them. In our view, this line of cross-examination, has not caused any dent to the evidence of the victim. The victim has narrated in great detail the plight she had undergone at the hands of the accused persons and she has also narrated the interaction by the accused persons with her during the course of the incident. They subjected her to sexual intercourse. The victim, therefore, had an occasion to see the faces of the accused persons from a very close distance. The victim has further stated that there was a moon light as well as there was sufficient light of the bike when sixth accused later on came on the spot on a motorcycle. It has been proved in this case that the victim was carried on her Activa moped by two accused persons and other two accused carried her friend Shailesh on another motorcycle on the highway. The 20 331 apeal748.18+3(J).odt victim has stated that she saw the faces of all the accused persons with clarity in the headlight of the vehicles coming from opposite direction. It has come on record in her evidence that they travelled on the road for 15-20 minutes continuously. Her face was covered when she raised hue and cry after getting knowledge that her friend Shailesh had escaped from the clutches of two accused persons riding on another motorcycle. After this, her face was covered with her scarf. Therefore, the evidence on record clearly indicate that the victim had an opportunity to see the faces of the accused persons. Besides, in order to test the capacity and power of her observation, she was called upon to identify the accused persons in Test Identification Parade. The victim has stated that at the time of identification parade of the accused persons, she went to the prison and in the identification parade she identified the accused persons. It is to be mentioned at this stage that the evidence of Test Identification Parade can be used for the purpose of corroboration. Identification of the accused by the witness in Court is the substantive piece of evidence
19. On a perusal of evidence of the victim, it is seen that at 21 331 apeal748.18+3(J).odt the time of evidence, the victim has identified each and every accused. Perusal of her evidence would show that in the Court she pointed out each and every accused person to the Court and described the overt act done by each and every accused. In our opinion, her cross- examination has not caused a slightest dent to this part of the evidence of the victim. The core of her evidence on identification of the accused persons has not been shaken. Identification of the accused persons in the Test Identification Parade and the actual identification of the accused persons in the Court is consistent. The learned trial Judge has not given any weightage to this cross-examination. This line of cross- examination and the answers given by the witness are not worthy of credence to discard evidence of the victim on this point.
20. It is not the case of the accused persons that for one reason or the other or on account of some enmity they have been falsely implicated in this case. The unfortunate victim at prime age of her life was subjected to a beastly attack of the accused persons. The manner in which she was treated during the course of the incident indicates that her womanhood, pride, prestige and dignity was defiled. The accused 22 331 apeal748.18+3(J).odt persons satisfied their lust in a shameful manner. The accused persons took advantage of the situation. The victim has categorically stated that the accused who came lastly was having some ailment like fracture. He attempted to do sexual intercourse with her, however since his leg was fractured, he was unable to do so. The said person in order to satisfy his lust made her to turn but even thereafter he was unable to perform sexual intercourse with her. It is to be noted that this accused seems to have been spared on this count, however the DNA report and semen report of this accused is positive. It is to be noted that the victim in such a fearful state of mind, might not have sensed the penetration. However, positive DNA report clearly indicates that this accused also had a penetrative sexual intercourse with the victim, otherwise, there was no reason to detect his semen in the cervix of the victim. The victim, as can be seen from her cross-examination, has successfully weathered the storm of grueling and searching cross- examination. Perusal of the cross-examination in entirety would show that the cross-examiners despite their efforts to discredit her, could not deviate her an inch from the core of her evidence on the actual occurrence and the presence of the accused persons/appellants in these 23 331 apeal748.18+3(J).odt appeals on the spot. On re-appreciation of the evidence of the victim, we are convinced that the victim has narrated before the Court a truthful account of the incident occurred with her and involvement of the appellants.
21. In order to seek corroboration to the evidence of the victim (PW11), reliance has been placed on the evidence of Shailesh (PW4). In his evidence, Shailesh has stated that on the date of the incident at about 7.00 to 8.00 pm, he along with the victim were proceeding on Kamptee highway. They took 'U' turn from Lihigaon to come back to Nagpur. He has stated that after taking 'U' turn they stopped at the side of the road and were chit-chatting. His evidence is consistent with the evidence of the victim on the point of arrival of five persons on the spot on two motorcycles. He has categorically stated that those five persons went ahead of them but again returned back to them on their motorcycles. Those five persons made enquiry with them. On being questioned by the victim, those persons stated that they were police officers and insisted to accompany them to police station. He has categorically stated that the victim enquired with them 24 331 apeal748.18+3(J).odt about their identity cards. On such an enquiry, one person told victim as "rq T;knk 'kk;uh cu jgh D;k" (are you trying to become oversmart) . In his further evidence, he has stated that two persons out of them forced the victim to sit on her Activa moped between rider and pillion rider. Similarly, he was forced to sit on a motorcycle by the accused between rider and pillion rider. They carried them towards Umred. He has stated that one person on another motorcycle was following Activa moped and the motorcycle on which he was made to sit. Shailesh (PW4) has categorically stated that his pillion rider had gagged his moth and pointed knife at his waist. He was frightened. He apprehended that those persons would kill him. At that time, he observed the object pointed at his chest and realized that it was covered. He has stated that he caught hold the said object (knife) and made an attempt to remove the hand of said person from his mouth. He has stated that in this process the motorcycle lost its balance and the rider stopped it. He has stated that as soon as the motorcycle stopped, he gave a forcible push to the person sitting behind him and escaped from his custody. He ran away towards bridge. His further evidence would show that he went to a pan shop and narrated the 25 331 apeal748.18+3(J).odt incident to that pan stall keeper and sought his help. The pan stall keeper suggested him to go to the police, who were at some distance from his pan stall and inform the incident to them. Shailesh went there and found two police officials. He narrated the incident to them. He has stated that in his presence the police officials immediately conveyed this information on wireless to some other person. He has stated that he and two police officials took search of the victim upto 10.00 p.m., however they could not trace out her. He has stated that at about 10.00 pm he came to know from the police officials that the victim had reached her house. The police officials carried him to Kalamna police station. He has stated that the victim came to the police station after about one hour.
22. Perusal of evidence of Shailesh (PW4) would further show that on the part of the incident witnessed by him, his evidence is consistent with the victim and as such corroborates the version of the victim. His conduct as can be seen from his evidence is consistent with the man of ordinary prudence placed in the similar situation. He tried his level best to save the victim from the clutches of five persons who 26 331 apeal748.18+3(J).odt had kidnapped her. He made all possible efforts with the police to trace out the victim. His evidence would have become doubtful if he had not made any effort to locate and rescue the victim from the clutches of the five person.
23. It has come on record in the evidence of Shailesh (PW4) that one person out of five had a problem to one of his legs. He was not knowing the accused persons before the incident. He was called by the police for identification of the accused in Test Identification Parade. He has stated that on two occasions he was called to jail to identify the accused. His evidence would show that he could not identify some accused persons at the time of Test Identification Parade. It has come on record that on first occasion he identified accused Anil Ingle and Pundlik Bhoyar and on second occasion he identified accused Roshan Ingle. It is, therefore, apparent that on 23 rd January, 2015 Shailesh (PW4) identified accused Anil Ingle, Pundlik Bhoyar and Roshan Ingle. On the date of second Identification Parade namely 29th January, 2015, he identified accused Mohd. Afroz. He could not identify accused Sudarshan Mhaiskar and Ashwin Donode. While 27 331 apeal748.18+3(J).odt appreciating his evidence on the identification of the four accused by Shailesh (PW4), it needs to be borne in mind that he did not witness the entire incident. He was witness to the part of the incident. It is further pertinent to note that all of a sudden the victim and Shailesh were made to sit on the motorcycles. Shailesh's evidence indicates that a knife like object was pointed at his chest and his mouth was gagged by the pillion rider. He managed to escape from the clutches of the pillion rider of the motorcycle, on which he was made to sit. His evidence before the Court would show that in the Court he identified Pundlik Bhoyar, Sudarshan Mhaiskar and Mohd. Afroz. It is submitted on the basis of this statement of PW4 that he was not an eye-witness even to the part of the incident.
24. We have minutely perused the cross-examination of Shailesh (PW4). Perusal of his cross-examination would show that on the point of part of the incident deposed by him, his evidence has not been shaken. The answers given by him in his cross-examination are consistent and are sufficient to conclude that he is not a got up witness. It has further come on record that there are two independent witnesses, 28 331 apeal748.18+3(J).odt one is the pan stall keeper (PW13) to whom Shailesh had approached for the first time and the another is a police officer (PW10) to whom he narrated the incident. It is pertinent to mention that failure to identify some of the accused persons may not go against this witness inasmuch as he had not witnessed the entire incident. Identification of some of the accused by Shailesh is consistent with his evidence on the point of the part of the incident. On a minute scrutiny of the evidence of this witness, we are convinced that the evidence of this witness is consistent with the part of the incident narrated by the victim. His evidence proves beyond doubt that he was present on the spot, when the accused came on the spot and forcefully made them to sit on the motorcycles and carried them to an unknown destination. The other corroborative evidence adduced by the prosecution as discussed above lends an assurance to the testimony of Shailesh (PW4). We, therefore, do not see any reason to discard and disbelieve his evidence.
25. Evidence of the victim (PW11) has been corroborated on the first part of the incident by Shailesh (PW4). It is further pertinent to note that the victim in her evidence has narrated the first hand 29 331 apeal748.18+3(J).odt account of the entire incident. Even if it is assumed for the sake of argument that there is no corroborative evidence, in that event also this Court would not have rejected the evidence of the victim. In this context, we may usefully refer to the decisions of the Hon'ble Apex Court in the case of State of Punjab .vs. Gurmit Singh and others, reported at AIR 1996 SC 1393 and in the case of Ganga Singh .vs. State of Madhya Pradesh, reported at (2013) 7 SCC 278.
26. In the case of State of Punjab .vs. Gurmit Singh (supra), it is held that the testimony of a victim in sexual assault cases is vital and unless there are compelling reasons, which necessitated looking for corroboration to her statement, the Court should not find it difficult to act on the testimony of the victim of sexual assault alone to convict an accused, where the testimony inspires confidence and is found to be reliable. It is further held that insistence of seeking corroboration to the testimony of the victim in such offences before relying on the same as a rule, amounts to adding insult to the injury. In the case of Ganga Singh .vs. State of Madhya Pradesh (supra) , it is held that the prosecutrix is a victim and not an accomplice in the offence and there 30 331 apeal748.18+3(J).odt is no provision in the Evidence Act requiring corroboration in material particulars to the evidence of the prosecutrix as is required in case of evidence of an accomplice. It is held that sole testimony of the victim can be sufficient to prove the guilt of the accused. It is further held that at the most, the Court can look for other evidence, which may lend some assurance to her evidence, short of corroboration required in the case of an accomplice. The nature of evidence required to lend an assurance to the testimony of a prosecutrix most necessarily depend upon the facts and circumstances of each case. In our view, the decisions referred to above would be squarely applicable to this case.
27. In the case at hand, evidence of the victim (PW11), on minute scrutiny, is found to be worth credible. Her evidence inspires confidence. The first hand account of the incident narrated by the victim and involvement of the accused persons in commission of a crime has been proved. The evidence of the victim on the part of the incident has been fully corroborated by the evidence of Shailesh (PW4). The testimony of Shailesh (PW4) equally inspires confidence.
31 331 apeal748.18+3(J).odt
28. Before proceeding to the medical evidence, at this stage it would be appropriate to consider evidence of the Executive Magistrate Shri Ravindra Bhope (PW15) who had conducted the Test Identification Parade. In his evidence he has stated about the identification parade of the accused persons conducted by him. In his evidence in great detail he has narrated the procedure followed by him at the time of conducting Test Identification Parade of the accused. He has categorically stated that in the identification parade conducted on 23rd January, 2015, the victim had identified accused Anil Ingle and Pundlik Bhoyar in first round and accused Roshan Ingle in second round. He has stated that Shailesh (PW4) had identified accused Anil Ingle and Pundlik Bhoyar in the first round and accused Roshan Ingle in the second round. Shri Bhope (PW15) has stated that on 29 th January, 2015 again he had conducted Test Identification Parade of the other accused persons. He has stated that in the said identification parade the victim identified accused Mohd. Afroz and Sudarshan Mhaiskar in the first round and accused Ashwin Donode in the second round. He has categorically stated that Shailesh (PW4) identified accused Mohd. Afroz only. Shailesh (PW4) could not identify accused 32 331 apeal748.18+3(J).odt Sudarshan Mhaiskar and Ashwin Donode. The memorandums of Test Identification Parade conducted on 23 rd January, 2015 are at Exhibits- 90 to 93 and the memorandums of Test Identification Parade conducted on 29th January, 2015 are at Exhibits-96 to 99. Evidence of Shri Bhope (PW15) corroborates the version of the victim (PW11) and Shailesh (pw4) on the point of identification of the accused persons by them in the identification parade. We do not see any reason to doubt the evidence of Shri Bhope (PW15), who is an independent witness. By no stretch of imagination he could be said to be an interested witness. Evidence of Shri Bhope (PW15) has been corroborated by contemporaneous record of the Test Identification Parade maintained by him.
29. The evidence of medical examination of the victim in the given set of facts would be the vital corroborative piece of evidence. The victim (PW11) has deposed in her evidence about her examination by the Doctors. It has come on record that after lodging the report, she was referred to Mayo Hospital, Nagpur. The victim has identified her clothes, which were taken in custody by the Medical Officer at the time 33 331 apeal748.18+3(J).odt of her medical examination. Dr. Rajesh Chintalwar (PW9) is the Medical Officer, who has testified about medical examination of the victim. He has deposed that the victim was referred by the CMO Gynec Department to his Department. The victim was brought by WPC Sheela. He has stated that he himself, Dr. Zafar and Dr. Anuja examined the victim in the Labour Room with her consent. Dr. Chintalwar (PW9) has deposed that greenish yellow colour scarf (odhni) on the person of the victim was found stained with sticky fluid with adherent soil particles on the same. They found yellow colour top and blue leggings were having white stains. On actual examination of the victim, they found abrasion on her back in mid line at Level-1 vertebra of size 2 x 2 cm, dark red in colour and two linear abrasions parallel to each other over back to mid line of 7 cm, just above injury no.1. Dr. Chintalwar (PW9) has deposed that they collected perianal swab, vaginal swab, cervical swab, blood sample and nail clippings of the victim. Dr. Chintalwar (PW9) has categorically stated that immediately after examination of the victim and collection of the samples, clothes on the person of the victim, which were taken by him in his custody, were packed and sealed. Similarly all the samples were 34 331 apeal748.18+3(J).odt packed and sealed. The sealed samples were handed over to WPC Sheela Bisen (PW6). The medical examination report of the victim is at Exhibit-68.
30. Perusal of the medical examination report of the victim at Exhibit-68, inter alia, indicates that history of assault was narrated by the victim to the Medical Officers Dr. Chintalwar (PW9) and his associates and the same was recorded by the him in the report. The history of assault narrated by the victim to the Medical Officers and found recorded in the medical examination report at Exh.68 would further lend an assurance to the evidence of the victim as well as evidence of the Medical Officer Dr. Chintalwar (PW9). The Medical Officer gave opinion that there was evidence of application of force on the victim. The final opinion was reserved subject to the FSL report. On receipt of FSL report of the samples, the Medical Officer gave an opinion that the victim was recently subjected to forceful sexual assault and the sexual assault was committed by the accused persons. Evidence of Dr. Chintalwar (PW9) was assailed in cross-examination on the ground that in absence of serious injuries either on the private 35 331 apeal748.18+3(J).odt part or on other parts of the body of the victim, he has given a report supporting the case of the prosecution. It is sought to be contended that if evidence of the victim is considered at its face value, then there ought to have been number of injuries on her body as well as on private part. In our opinion, on this ground evidence of the Medical Officer and the version of the victim cannot be disbelieved. It has come on record in the evidence that five accused were carrying knives. They brandished knives in presence of the victim. One of the accused had pointed the knife at her body.
31. On the basis of the first hand vivid account of the incident narrated by the victim, one can visualize the precarious position of the victim in the custody of the accused. The accused had threatened the victim of dire consequences, if she did not submit to their lust. There were two injuries on her back. It, therefore, cannot be said that there were no injuries at all. The major injuries might not have caused because the victim was helpless and could not resist. There was no alternative before the victim than to submit to the commands of the accused. Evidence of the Medical Officer Dr. Chintalwar (PW9), 36 331 apeal748.18+3(J).odt therefore, corroborates the version of the victim on this material aspect. An attempt has been made in the cross-examination of the Medical Officer to indicate that packing and sealing of the samples and articles was not done properly. Perusal of his cross- examination would show that this attempt has been proved unsuccessful.
32. The next corroborative piece of evidence is C.A. and DNA reports. At the outset, on this point we may usefully refer to the decision of the Hon'ble Apex Court in the case of Mukesh and another .vs. State for NCT of Delhi and others, reported in 2017 All M.R. (Cri) 2448 (SC). The law as regards admissibility and evidentiary value of DNA report has been authoritatively laid down in this case. It is held that it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same it has to be established that there had been no quality control or quality assurance. It is held that if the sampling is proper and if there is no evidence as to tampering of the samples, DNA test report is to be accepted. It is held that DNA test is scientifically accurate.
33. In this case, the prosecution has adduced more than 37 331 apeal748.18+3(J).odt sufficient evidence to establish that possibility of tampering of the samples has been completely ruled out. The blood sample and vaginal samples of the victim had been collected by Dr. Chintalwar (PW9). The clothes on the person of the victim at the time of commission of rape had also been taken in custody by Dr. Chintalwar (PW9). The clothes and samples collected by PW9 had been sealed by him. He has testified about the packing and sealing of the samples. Dr. Chintalwar (PW9) had examined the victim and collected the samples on 2 nd December, 2014. WPC Sheela Bisen (PW6), who had taken the victim for medical examination to Mayo Hospital, has testified that on examination of the victim by Dr. Chintalwar (PW9), he handed over to her the samples in packed and sealed condition along with 'B' form and the same were handed over by her to the Investigating Officer. The Investigating Officer immediately forwarded those samples to the Regional Forensic Science Laboratory (RFSL), Nagpur in sealed condition. There is no material on record even to suggest that there was possibility of tempering with the seals on the sample packets.
34. In the context of the above, it would be necessary to 38 331 apeal748.18+3(J).odt appreciate the evidence of Smt. Shivangi Apte (PW16), Assistant Director of RFSL, Nagpur, who had analyzed the samples. In her evidence she has narrated the condition of the samples and the seals put on the sample packets. She has stated that she had conducted analysis of the samples for finding blood and semen, if any, on the clothes of the victim. She has stated that on examination of 'odhani', she found one stain of blood mixed with semen and few semen stains. On further analysis she found that blood and semen stains were of human origin. She accordingly prepared the report, which is at Exhibit-109. She has further deposed that she examined and analyzed the blood sample, cervical swab, perianal swab, vaginal swab and nail clippings. She referred those samples for DNA analysis to the DNA Division of RFSL, Nagpur. The report is at Exhibit-110. She was cross-examined on behalf of accused no.1. Except suggestions, no other questions were put to this witness. There is no denial to the evidence of Shivangi Apte (PW16) that she received the samples in sealed condition. On appreciation of the evidence, we are satisfied that the samples were immediately forwarded to the Chemical Analyser, Nagpur. It has been proved that there was no tampering of the seals of 39 331 apeal748.18+3(J).odt the samples. This evidence corroborates the version of the victim on the point of her examination by the Medical Officer (PW9), seizure of clothes on her person and drawing of the samples.
35. It has come on record that on 22nd December, 2014, accused persons were arrested in the crime. The Investigating Officer on 23rd December, 2014 made a request to RFSL, Nagpur to provide DNA kits for collection of the blood samples of the accused persons. Vijay Khangar (PW7), Naib Police Constable was deputed to collect the DNA kits. He has deposed about the same. Exhibit-59 is the requisition letter addressed by the Investigating Officer to the Deputy Director, RFSL, Nagpur in this connection. The Investigating Officer has deposed that immediately on the next day he arranged to send the accused to Mayo Hospital with written request to the Medical Officer to collect their blood samples for DNA analysis. NPC Vijay Khangar (PW7) has deposed that on the next day of bringing DNA kits, he along with the other police staff members, carried six accused persons to Mayo Hospital, for obtaining their DNA samples. He has stated that the Medical Officer collected the blood samples of all the accused 40 331 apeal748.18+3(J).odt persons. The samples were handed over to him in sealed condition. The request letter to the Medical Officer is at Exh.60. The Medical Officer acknowledged the receipt of said letter (Exh.60) on 24 th December, 2014. He has stated that on the same day, namely 24 th December, 2014, he carried the DNA samples to RFSL, Nagpur. The forwarding letter addressed by the Investigating Officer to the Deputy Director, RFSL, Nagpur is dated 24th December, 20124. It is at Exhibit-61. Exhibit-62 is the acknowledgment issued by the Receiving Clerk from the office of RFSL, Nagpur in token of receipt of the articles. It has come on record in the evidence of the Investigating Officer that the accused were referred to the Medical Officer for their examination to opine whether they were capable of performing sexual act. They were examined and the reports are on record.
36. Dr. Sandeep Gajbhiye (PW12), on 26th December, 2014 conducted medical examination of accused Anil Ingle, accused Roshan @ Ashish Ingle, accused Pundlik Bhoyar and accused Mohd. Afroz. Their examination reports are at Exhibits-80 to 84. He has categorically stated in his reports that there was nothing to suggest that 41 331 apeal748.18+3(J).odt they were incapable of performing sexual intercourse. For the purpose of testing the veracity and credibility of the version of the victim, it would be necessary to consider the medical examination report of accused Pundlik Bhoyar (Exhibit-83). It is the case of the prosecution that the Medical Officer found that he was having infected wound over his left foot covered with white hospital bandage. Accused-Pundlik had narrated the history of orthopedic surgery on his both upper limbs and left leg five years back. It is necessary to mention at this stage that this deformity was noticed by the victim at the time of the incident. Her evidence on this point has already been considered in great detail. Evidence of Dr. Gajbhiye (PW12), despite being subjected to searching cross-examination, has not been shaken on this material aspect.
37. Dr. Prasad Saigaonkar (PW17), is the Medical Officer who had examined accused Sudarshan Mhaiskar. He had collected the samples. His medical examination report is at Exhibit-113. He has opined that there was nothing to suggest that accused Sudarshan was incapable of performing sexual intercourse.
42 331 apeal748.18+3(J).odt
38. Dr. Pawan Raut, (PW20) is the Medical Officer, who on 24th December, 2014 had examined accused Ashwin Donode. He had collected the samples of accused Ashwin. His medical examination report is at Exh.165. The Medical Officer opined that there was nothing to suggest that he was incapable of performing sexual intercourse. In our opinion, evidence of the Medical Officers (PW12, PW17 and PW20) corroborate the case of the prosecution on material aspects.
39. The clothes of the accused persons seized during the course of investigation as well as their blood and other samples drawn by the Medical Officers were forwarded to the Regional Forensic Science Laboratory (RFSL), Nagpur. An acknowledgment to that effect is at Exh.145. The samples had been carried to the Chemical Analyzer, Nagpur by NPC Shekhar Kabhe. The Investigating Officer has deposed about the same in great detail.
40. In the above backdrop, it would be necessary to consider the evidence of Dr. Neha Bhandarkar (PW21). She had collected the 43 331 apeal748.18+3(J).odt blood samples of all the accused for the purpose of DNA analysis. She has deposed that after establishing identity of the accused persons, she obtained their consent for collection of the blood samples. Accused gave their consent. She has categorically stated that blood samples were collected with the help of needle and syringe. She has deposed about the precautions taken by her at the time of collection of the blood samples and packing and sealing of the same along with the identification forms. The identification forms are at Exhibits-169 to
174. Evidence of Dr. Bhandarkar (PW21) has been corroborated by contemporaneous documentary evidence. The evidence of Dr. Bhandarkar has proved beyond doubt that there was no possibility of manipulation or tampering with the samples of the accused persons.
41. Neha Bhale (PW18) at the relevant time was attached to RFSL, Nagpur as an Assistant Chemical Analyzer. She had analyzed the DNA samples received in DNA Division of RFSL, Nagpur. At this stage it is necessary to state that DNA which is found in chromosomes of the cells of living beings is the blueprint of an individual. DNA is the genetic blue print for life and is contained in every cell of the body.
44 331 apeal748.18+3(J).odt No two persons, except identical twins can have identical DNA. Therefore, DNA profiling is an extremely accurate method to draw comparison of a suspect's DNA with crime scene specimen, victim's DNA in the form of a blood stain, semen or any other part of the body of the accused. DNA evidence is as such now a predominant forensic technique for identifying criminals based on the biological tissues left behind at the seen of the crime or for the purpose of identifying the source of blood found on any article or clothes etc. either found on the spot or recovered from the accused or from the witnesses. DNA analysis of the samples such as saliva, skin, blood, hair or semen with certainty, not only helps to convict the criminal, but also to extend benefit to the criminal.
42. Neha Bhale (PW18), as stated above, analyzed the DNA samples. She has stated that she received one blood mixed semen stain cutting from odhani, simple semen stains cutting from odhani, blood and medical samples of the victim from Biological Section and the blood samples of six accused persons in Crime No. 401/2014 of Police Station, Kalamna. She carried out the analysis to extract DNA from 45 331 apeal748.18+3(J).odt the samples. She has stated that the extracted DNA from the samples was subjected to Polymerized Change Reaction (PCR) technique. With the help of PCR technique, she obtained DNA profile from the samples. She has stated that she found blood mixed semen stains on odhani. She has stated that mixed DNA profile obtained from blood mixed semen detected on odhani (Ex.5) matched with the DNA profile obtained from blood of the victim and blood of accused Roshan @ Ashish Madhukar Ingle. She has further stated that DNA profile obtained from semen stain Nos. 1, 3, 4, 5, 7 and 8 detected on odhani (Ex.5) were identical and from one and same source of male origin and matched with DNA profile obtained from blood of Roshan @ Ashish Ingle. She has further stated that mixed DNA profile obtained from semen stain no.2 detected on odhani (Ex.5) matched with DNA profile obtained from blood of accused Anil Raju Ingle, Ashwin Ashok Donode and the victim. She has further stated that the mixed DNA profile obtained from semen stain nos.6 and 9 detected on odhani (Ex.5) matched with DNA profile obtained from blood of Mohd. AfroZ Jiyauddin Pathan, Roshan @ Ashish Madhukar Ingle and the victim. She has stated that DNA profile obtained from Ex.2 cervical 46 331 apeal748.18+3(J).odt swab matched with DNA profile obtained from blood of Mohd. Afroz Jiyauddin Pathan, Anil Raju Ingle, Ashwin Ashok Donode, Pundlik Domaji Bhoyar, Roshan @ Ashish Madhukar Ingle and the victim. She has stated that DNA profile obtained from Ex.3 perianal swab was of female origin and the same matched with DNA profile obtained from the blood of the victim. She has stated that on completion of analysis, she prepared the report on 31st January, 2015. The report is at Exh.116. She has stated that she has recorded her interpretation on DNA samples at page no.4 of her report.
43. Before proceeding to consider the cross-examination of Smt. Bhale (PW18), it would necessary to advert to one important part of her evidence. She has stated that all the samples either received from Biological Section of RFSL, Nagpur or from the Investigating Officer, were in sealed condition. Document at Exhibit-117 is the DNA report. The description of sample parcels has been noted down in this report. It has been mentioned that the blood samples of six accused persons were received in six plastic containers. The seals were intact and were as per the copy sent. It is also mentioned that the 47 331 apeal748.18+3(J).odt samples received from Biological Section of RFSL, Nagpur were also in sealed condition. The oral evidence of Smt. Bhale (PW18) coupled with the documentary evidence in the form of DNA report (Exhibit-
117) and the evidence of Shivangi Apte (PW16) attached to Biological Section of RFSL, Nagpur, would show that the samples were in sealed condition. This evidence in our opinion rules out the possibility of tampering of the samples in any manner.
44. The line of cross-examination of Smt. Bhale (PW18) suggests that there was scope for tampering with the samples. We are not prepared to accept this line of cross-examination in view of cogent, concrete and reliable evidence discussed above. A perusal of the cross- examination of Shivangi Apte (PW16) and Smt. Bhale (PW18) would indicate that there is no scope to infer about tampering with the samples. It was further suggested to the witnesses in the cross- examination that it would be difficult to obtain correct result in case of the analysis of multiple DNA samples. Smt. Bhale (PW18) has categorically stated that it is not impossible to obtain the accurate result in case of analysis of multiple DNA samples. She has categorically 48 331 apeal748.18+3(J).odt stated that the components of semen used for obtaining DNA profile were subjected to PCR technique. She has categorically deposed that on the basis of the tests conducted, she obtained 100% accurate result of analysis of the samples. On the basis of answers given by the witness in her cross-examination, it is seen that her opinion as to the result of the analysis has been fortified. We do not see any reason to discard and disbelieve her evidence.
45. The chain from the time of collection of the samples till the analysis of the samples has been established on the basis of oral and documentary evidence. The possibility of tampering with the samples has been completely ruled out. In the facts and circumstances, therefore, the law laid down by the Hon'ble Apex Court in the case of Mukesh and another .vs. State for NCT of Delhi and others (supra) would be squarely applicable to this case. In our opinion, the above evidence of collection of samples, its preservation, analysis and the final result of the analysis of the samples fully corroborate the evidence of the victim and another eye-witness Shailesh (PW4). On the basis of the evidence as discussed above, involvement of the five accused 49 331 apeal748.18+3(J).odt persons, who have been convicted in the case, has been established beyond reasonable doubt.
46. It would be necessary to consider the evidence of Amar Wasnik (PW1), who is the panch witness to the spot panchanama. The Investigating Officer has deposed that PI Ramteke had visited the spot. It has come on record in the evidence that initially the spot could not be located inasmuch as the victim was mentally disturbed. Amar (PW1) has stated that on 2nd December, 2014, though, the victim accompanied the police and two panchas, the spot could not be located. The document at Exhibit-33 is the panchanama in that respect. It has come on record in the evidence of the Investigating Officer that the victim pointed out the spot on 15 th December, 2014. The victim at the time of the incident had noticed a white painted wall near the spot. The spot of the incident was revealed during the course of further investigation. The panchanama is at Exhibit-123. Even if it is assumed that evidence of the Investigating Officer and the panch witness on the spot panchanama is unacceptable, in our opinion, it would not materially affect the case of the prosecution. It is seen that 50 331 apeal748.18+3(J).odt no article was seized form the spot. The incident had occurred at an isolated place. Perusal of the panchanama (Exh.123) would show that the spot identified and pointed out by the victim was at some distance away from the highway.
47. The prosecution has relied upon the evidence of panch witness Amar Wasnik (PW1) and Ashwan Gaikwad (Shahu) (PW2) to prove the discovery of the knives used by the accused persons at the time of commission of the crime. Amar (PW1) has supported the case of the prosecution. Ashwasn (PW2) has not supported the case of the prosecution. He turned hostile. The Investigating Officer has deposed about the confessional statements made by the accused persons and the discovery of the knives at their instance, pursuant to the confessional statements. In our opinion, even if this evidence is eschewed from consideration, it would not make the case of the prosecution doubtful. It is undisputed that no injury was caused with the knife either to the victim or to her friend Shailesh (PW4) by the accused. It is the case of the prosecution that one or two accused pointed the knife at the chest and waist of the victim and Shailesh. Use of knives by the accused to 51 331 apeal748.18+3(J).odt threaten and terrorize them has been proved on the basis of the evidence of the victim and Shailesh (PW4). Recovery of knives and its strict proof could have assumed great importance if the same had been used for causing injury either to the victim (PW11) or Shailesh (PW4).
48. PI Satyaveer Bandiwar (PW19) is the Investigating Officer. In his evidence he has placed on record all the facts related to the investigation. On the basis of his evidence, arrest of the accused in this case has been proved. He has categorically deposed about forwarding of the samples seized in the crime to the Chemical Analyser. His evidence would show that without any delay he had forwarded the samples to the Chemical Analyzer. Perusal of his evidence would show that he had conducted fair investigation. No material has been brought on record in his cross-examination to indicate that he attempted to falsely implicate the innocent persons in the crime. He conducted the investigation in a serious crime solely with an object to take the same to its logical conclusion.
49. The prosecution has also relied upon the evidence of 52 331 apeal748.18+3(J).odt Prashant Misal (PW10), Chandrakant Rajutkar (PW13) and Nandlal Dhomne (PW14). It is the case of the prosecution that Shailesh (PW4) after escaping from the clutches of the accused, first went to Chandrakant Rajutkar (PW13), who is the pan shop keeper near Kapsi gate. Chandrakant (PW13) took Shailesh (PW4) to Prashant Misal (PW10), who at the relevant time along with HC Jagdish, B. No.978 was on patrolling duty in Indora area. Chandrakant (PW13) has stated that at about 9.00 to 9.30 p.m. on 2nd December, 2014, he was at his shop. At that time one boy came to his shop and asked him for help. He has stated that he took the said boy to Traffic Police officials who were at some distance from his shop. NPC Prashant Misal (PW10), has supported the evidence of Chandrakant (PW13) and Shailesh (PW4) on this point. He has stated that on 2nd December, 2014 he along with HC Jagdish were doing patrolling duty in Indora area. At that time, one pan shop keeper bought one person by name Shailesh to them. Shailesh informed them about kidnapping of the victim by unknown persons. He has stated that immediately he conveyed the information of the incident by walkie talkie to the control room. They took search of the girl, however they could not trace out her and the 53 331 apeal748.18+3(J).odt kidnappers. He has further stated that on receiving message from Control Room, Charlie Five Constable Shri Dhomne had come to make an enquiry about the incident. He has stated that Shailesh (PW4) went to Kalamna police station with Nandlal Dhomne (PW14). In order to prove that the information of the incident was conveyed to the control room, the prosecution has placed reliance on the documentary evidence at Exhibit-151, which is a certified copy of the log book showing entry about the information of the incident received on wireless. Nandlal Dhomne (PW14), a Naib Police Constable has deposed that on the given date he was having charge of Charlie No.5 on patrolling duty. At about 20.00 hours, he received wireless message about kidnapping of one girl. He has stated that he thereafter along with his colleague Vijay Pendam went to Kapsi bridge and met police officials namely Jambhulkar and Misal. One person was with them. The said person was Shailesh (PW4). He has stated that Shailesh informed the incident in brief. They together took search of the girl however they could not trace out the girl and the kidnappers. He has stated that therefore, along with the boy he came back to Kalamna police station.
54 331 apeal748.18+3(J).odt
50. Evidence of Prashant Misal (PW10), Chandrakant Rajutkar (PW13) and Nandlal Dhomne (PW14) is consistent on the point that Shailesh (PW4) first met Chandrakant (PW13), a pan shop keeper and he brought Shailesh to NPC Prashant (PW10). It has also been proved that NPC Prashant (PW10) conveyed information of the incident to control room. On receipt of the information, Nandlal (PW14) went to Kapsi gate to verify the information. Evidence of Shailesh (PW4) on this point has been fully corroborated by these three witnesses, who are the independent witnesses. Besides, there are contemporaneous documentary evidence to corroborate communication of the incident to the control room by walkie talkie.
51. On consideration of the evidence, we are convinced that on the basis of the same, the guilt of five accused has been proved. On the basis of available evidence, no case has been made out to give benefit of doubt to Pundlik Bhoyar, who is the appellant in Criminal Appeal No. 308/2019. It has come on record in the evidence of the victim that a man with fractured leg could not establish sexual 55 331 apeal748.18+3(J).odt intercourse with her. Pundlik Bhoyar is the said person. He, therefore, asked the victim to turn and even thereafter he could not perform intercourse with her. The evidence on record clearly indicates that he, at least, attempted to commit rape on the victim. The fact that his semen was detected in cervix, is also a pointer towards some kind of penetrative act on his part, within the contemplation of law, though the penetrative act may not have been sensed by the victim due to her fright or otherwise there was no reason why his semen would get lodged in the cervix of the victim. Besides, he was part of the gang which committed gang rape on the victim. On the basis of the evidence, particularly DNA report, complicity of accused Pundlik Bhoyar in commission of crime stands proved. At the cost of repetition, we say that detection of his semen in the cervix of the victim would indicate that at the time of intercourse there was ejaculation by Pundlik and therefore, his semen was detected in the cervical swab sample of the victim, which perhaps may not have been felt by the victim, she being terrified. In our view, therefore, there is no doubt about complicity of this accused in the crime.
56 331 apeal748.18+3(J).odt
52. On re-appreciation of the entire evidence led by the prosecution, we are satisfied that the prosecution has proved its case against accused persons beyond reasonable doubt. In view of above, we conclude that there is no substance in the appeals. The appeals are, therefore, dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge, Nagpur dated 23 rd October, 2018 in Sessions Trial No. 278 of 2016, are hereby maintained.
(G.A.SANAP, J.) (SUNIL B. SHUKRE, J.)
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:20.07.2022
18:13