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